BREAKING NEWS!!
Updated 3/1/08
The case is now rapidly moving towards its trial date, set by Judge Shira Scheindlin as November 17, 2008. The lawyers have been engaged in a tremendous amount of the discovery process, with the City taking the depositions of a number of “representative plaintiffs,” and the lawyers for the plaintiffs taking depositions of the City’s labor relations, payroll, and other experts.
As we previously mentioned, Judge Scheindlin has also ordered that the trial proceed on a "representative plaintiff" basis. That means that instead of all 15,811 plaintiffs giving evidence in some form or another, the facts in the case will be developed through 250 representative plaintiffs. The representative plaintiffs were randomly selected, using a statistical computer program to which both the City and the plaintiffs' lawyers agreed.
A Reminder To All Representative Plaintiffs. IF YOU HAVEN’T PRODUCED YOUR MEMO BOOKS YET, YOU NEED TO DO SO IMMEDIATELY! To remove any worries plaintiffs have about NYPD’s rules concerning sharing memo books, the Judge has now ordered that the memo books be produced, and has made it easier to do so by allowing memo books to be produced directly to your supervisor. If you haven’t produced your memo books, call any of the lawyers on the case ASAP.
Almost all of the discovery in the case had to be completed by February 29, 2008. In the course of discovery, the City produced more than 115,000 documents, while the plaintiffs produced more than 60,000 pages of log books requested by the City. The only remaining discovery will be some more depositions of representative plaintiffs as well as the need for representative plaintiffs to produce their memo books and any pay stubs they have.
After all discovery is complete, both sides will almost certainly file summary judgment motions. These motions, which will argue that the case need not go to trial because the law and the facts compel a particular result, must be filed during the Spring. It is likely that at least some of the major issues in the case will be resolved through the summary judgment motions.
We'll keep you posted as more developments occur.
Updated 9/20/07
Judge Shira Scheindlin has set a trial date in the FLSA lawsuit against NYPD - September 16, 2008. During the next year, there's going to be a lot of activity in the case.
To begin with, Judge Scheindlin ordered that all "discovery" in the case be completed by February 29, 2008. That means that all depositions must be taken and documents must be produced no later than February 29, 2008. The City has already produced more than 110,000 documents relevant to the case; we anticipate that many more will be produced in the upcoming months.
After all discovery is complete, both sides will almost certainly file summary judgment motions. These motions, which will argue that the case need not go to trial because the law and the facts compel a particular result, must be filed no later than March 31, 2008. It is likely that at least some of the major issues in the case will be resolved through the summary judgment motions.
Judge Scheindlin has also ordered that the trial proceed on a "representative plaintiff" basis. That means that instead of all 15,811 plaintiffs giving evidence in some form or another, the facts in the case will be developed through 250 representative plaintiffs.
The representative plaintiffs will be randomly selected, using a statistical computer program to which both the City and the plaintiffs' lawyers can agree. We anticipate that this process will be completed over the next few weeks. Those chosen as representative plaintiffs will be required to produce any documents in their possession related to the five claims in the case, and may be asked to testify in depositions taken by the City. The plaintiffs' lawyers will immediately be in touch with those chosen as representative plaintiffs to brief them on what might occur, and to prepare them for any depositions.
Updated 6/25/07
As a reminder, this case involves five separate claims that the City has violated the Fair Labor Standards Act. The claims are these:
1. The City has unlawfully denied officers' attempts to use their comp time. In particular, the City has repeatedly designated "no-excusal" days, and denies requests to use compensatory time off simply because it would cost it overtime to fill in for the employee requesting the lost time.
2. The City has forced officers to accrue comp time, when they should have been allowed to work for cash overtime. This claims relates specifically to the 35-hour rule used by NYPD.
3. Uncompensated overtime is simply built into officers' duty schedules by virtue of the 8-hour, 35-minute day.
4. The City has miscalculated officers' overtime rates by failing to take into account certain special compensation, such as shift differential and longevity pay.
5. The City's 15-minute rule, where overtime is not counted until an employee has worked 15 minutes, violates the law.
The Plaintiffs' lawyers are currently in the process of taking the depositions of a variety of Departmental witnesses. Thus far, the following NYPD officials and employees have been deposed:
Chief Joseph Esposito
Housing Bureau Chief Joanne Jaffe
Assistant Chief Thomas Dale
Assistant Chief Thomas Purtell
Assistant Chief Albert Girimonte
Assistant Chief Diana Pizzuti
Assistant Chief Gerald Nelson
Assistant Chief Joseph Fox
Assistant Chief Raymond Diaz
Assistant Chief Bruce Smolka
Inspector James McCarthy
Lieutenant Gerardo Mayol
NYPD Payroll and Benefits Director Joseph Lodispoto
Associate Staff Analyst Sandra Flythe
Timekeeper Chrystal Cofield
We will be serving the City with a new set of interrogatories on the basis of the answers we received in these depositions. We plan to conduct further depositions in the near future.
In other developments, the judge has ordered a meeting of the parties' payroll experts to resolve questions about how the NYPD calculates overtime. Also, the full, detailed telephone survey of randomly selected plaintiffs is expected to begin in late summer.
Updated 11/17/06
The first round of the jointly administered survey of randomly-selected plaintiffs is nearing completion. During this process, select plaintiffs were asked about their work experiences, hours of work, and other information relevant to the claims in the lawsuit. The results of the survey will help facilitate future aspects of the litigation and may serve as a basis for, among other things, analysis by retained experts, dispositive motions, and damage calculations. The firm of Schulman, Ronca & Bucuvalas, Inc. ("SRBI") has been retained to conduct the telephone surveys. SRBI is an independent company that specializes in conducting surveys and collecting the results. If you get a call from SRBI, we encourage you to take the time to answer the questions, and to do so honestly and thoughtfully. The entire survey will take approximately 30 minutes.
The first round of the survey has alerted us to the fact that many people have changed their phone numbers or moved within the last few years, which makes it very difficult for us to contact you with information and questions that are critical to the success of the litigation. Recently, a letter was sent to all plaintiffs asking them to update their contact information. If you are a plaintiff and have not received a letter from us, please contact our office at 800-811-6530.
In addition to the telephone survey, we are actively preparing to begin depositions. Under the Rules of Procedure, parties are entitled to interview their opponent's witnesses under oath. We have scheduled depositions of a number of the New York Police Department's administrators and mid-level managers. Information obtained through depositions will be used in conjunction with the results from the survey and the Plaintiffs' payroll records to help verify the allegations in the Complaint.
Updated 4/6/06
Plaintiffs' Counsel and attorneys for the City have been working jointly to establish and administer a survey of randomly-selected plaintiffs in the lawsuit. The first survey was conducted during the month of January, 2006, and the parties anticipate conducting additional surveys in the near future. The attorneys handling the lawsuit for plaintiffs continue to receive and review information from the City relevant to the claims in the lawsuit. No trial date has been set by the court.
Updated 5/25/05
We are proceeding with trial preparations on three broad fronts. First, we are in the process of reviewing and cataloging tens of thousands of manuals, policies, scheduling, and other documents produced by the defendants in the discovery process. Many of these documents will form the basis for identifying the policies and procedures the NYPD and City have adopted with respect to a number of the claims in the lawsuit.
Second, in addition to the paper documents, we have received literally millions of electronic payroll records from the defendants. The payroll records cover the majority of the plaintiffs in the lawsuit, going back to 1999. Because of the resources necessary to review, process, and query the large volume of records, we are consulting with an expert on data analysis.
Third, because a number of the claims in the lawsuit are not particularly susceptible to proof by simply analyzing the payroll data (e.g., the denial of compensatory time claim), we are working in conjunction with the defendants to create and administer a survey to be directed towards a randomly sampled portion of the plaintiff class. If you are chosen to participate in the survey, you will hear more about the process from our firm in the future. We appreciate your participation in any interviews associated with the lawsuit.
All three discovery-related procedures will help us develop all of the relevant facts we need to move forward with motions before the court, possible settlement considerations, and, ultimately, trial. As always, please give us a call at 800-811-6530 if you have any questions or concerns.
12/17/04 Update
As of December 2004, the lawsuit continues to progress through the discovery phase of litigation. The City has produced the payroll records for most, if not all, of the plaintiffs. By analyzing the records on a pay period-by-pay period basis, Aitchison & Vick will be able to determine the actual damages attributable to each plaintiff as a result of the City's violations of the FLSA. In particular, we anticipate that the payroll data will reveal information relevant to Claim 1 (denial of compensatory time off); Claim 3 (uncompensated time); and Claim 4 (regular rate). Further, Aitchison & Vick, together with its expert, continues to work with the City towards devising a stastical modeling approach for the purposes of developing evidence related to Claim 2 (forced acceptance of compensatory time off) and Claim 5 (15-minute claim). We anticipate that the respective data analysis procedures will confirm the alleged FLSA violations and put both parties in a position to begin meaningful discussions of resolution of this case. The court has not yet set a deadline on discovery or scheduled a trial date.
History
The lawsuit was filed on 11/27/02.
On 2/24/03, plaintiffs filed an Amended Complaint. The defendants responded to the Amended Complaint by filing an Answer and Affirmative Defenses on 3/28/03.
The lawsuit is currently proceeding in the United States District Court for the Southern District of New York. In July 2003, the Court approved a notice to be sent to all potential plaintiffs advising them of their right to join the lawsuit. The notices were mailed out to all potential plaintiffs in August and September of 2003 and potential plaintiffs had until 1/15/04 to join the lawsuit. The plaintiffs are in the process of undertaking "discovery," such as requesting documents and taking depositions. The defendants have responded to the plaintiffs' first written discovery request by providing over 7,000 pages of documents.
The class closed on 1/15/04, with no additional plaintiffs now allowed to be added to the case. As of April 2004, 15,873 plaintiffs have opted in to the FLSA lawsuit, making this lawsuit one of the largest collective action of its kind in the country. The FLSA lawsuit is progressing through the "discovery" and pre-trial motion phases of the litigation. The attorneys have sought and received literally tens of thousands of pages of documents related to the City's pay practices. The attorneys are continuing to seek, receive and review time records, paystubs, and comp time reports, among other things, for all 15,873 plaintiffs in the case. The attorneys expect to be able to create a statistical representation of every individual plaintiff's claims. The statistical representation will be important in establishing damages across the board without the need to depose every single plaintiff in this lawsuit. In addition, the parties are preparing and presenting pre-trial motions to the court that will help define the parameters of the claims for trial.
As of August 2004, the lawsuit continues to progress through the discovery phase of litigation. We are continuing to receive information from the City that is relevant to the lawsuit. Among our recent requests to the City are all payroll records that the City maintained for each plaintff for the last few years. The number of plaintiffs obviously impacts the timeline and procedures employed in collecting this information. You may have been contacted recently by Aitchison & Vick for additional information relevant to the lawsuit. If you have not, please contact one of our attorneys so that we may update our records. Updating our records will help facilitate the anticipated transfer of information from the City to our firm.
Once we have received all the payroll records, we will proceed to analyze the individual records as they pertain to the claims in the lawsuit. We also have enlisted the help of an expert for purposes of establishing damages based on a representative sample of plaintiffs, rather than proceeding in the normal course, which would entail allowing the City to depose each and every plaintiff. We anticipate reaching an agreement with the City regarding the use of representative sampling in the near future. The information we gather through the payroll records and sampling reports will put us in a better position to evaluate the claims in the lawsuit and enter into meaningful settlement discussion.
We also continue to brief legal issues to the court, such as, for example, the validity of the plaintiffs' claim based on the City's unlawful denial of compensatory time off requests. We recently received a favorable ruling from the court on the comp time claim. To date, the court has not established a timeline for completing discovery or a trial date.