Justice Eileen Bransten

Defendants Clark Dodge & Co. moved to dismiss plaintiffs’ workers putative class action complaint. Plaintiffs, Menga and Ignace, were stockbrokers who previously worked at Clark, and now asserted claims for unpaid overtime and impermissible wage deductions. Plaintiffs alleged they were classified as “exempt” employees, thus did not receive overtime compensation for working in excess of 40 hours weekly. Defendants argued plaintiffs asserted their claim in the wrong forum, contending they should be compelled to arbitrate the dispute before the Financial Industry Regulatory Authority (FINRA). Plaintiffs argued the FINRA arbitration rules expressly disclaimed class action litigations, thus §15(A) of the “U-4″ agreement did not compel arbitration of their claims. The court agreed noting the First Department held that class action claims were not arbitrable until class certification was denied, the class was decertified or a member was excluded from the class. Thus, it denied defendants’ motion to dismiss based on the arbitration provision in the U-4. Also, the court noted evidence submitted raised questions of fact of plaintiffs’ exempt status, underscoring why dismissal under CPLR §3211 was inappropriate, denying same.