Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 1 of 10 PageID #: 649

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------------)(
ROBERTO RAMOS, FRANK RODRIGUEZ, JOSE LUIS MALDONADO, JOSE FERNANDEZ, CHRIS MAIETTA, RANDY WRAY, ROGELIO SMITH, AGBAN AGBAN, YADIRA GONZALEZ, MAXIMO ESTRELLA, JR., JAIME OYARVIDE, NACIM BENNEKAA, BRENO ZIMERER, OMAR FLOREZ and RAFIU OWOLABI, individually and on behalf of all other persons similarly situated who are or were employed by SimplexGrinnell LP with respect to Public Works Projects mentioned in this Complaint.
Plaintiffs,

07 Civ. 0981 (NG)(SMG)
FIRST AMENDED CLASS ACTION COMPLAINT

-against-

SIMPLE)(GRINNELL LP, Defendant.
---------------------------------------------------------------------)(
Plaintiffs, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oyarvide, Nacim Bennekaa, Breno Zimerer, Omar Florez and Rafiu Owolabi ("Plaintiffs"), on behalf of the putative class by their attorneys, Beranbaum Menken Ben-Asher & Bierman LLP, allege as follows:
PRELIMINARY STATEMENT 1. This action is brought on behalf of the plaintiffs, and a putative class of laborers, workmen and mechanics who furnished labor to defendants SimplexGrinnell LP, and/or any other entities affiliated with or controlled by SimplexGrinnell LP ("Defendants") on publicly financed construction projects~ including but not limited to: Binghamton Psychiatric Center.

Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 2 of 10 PageID #: 650
Hudson River Psychiatric Center, Mid-Hudson Forensic Psychiatric Center, Mohawk Valley Psychiatric Center, Sagamore Children's Psychiatric Center, Sl. Lawrence Psychiatric Center, Bronx Psychiatric Center, Bronx Children's Psychiatric Center, Brooklyn Children's Psychiatric Center, Creedmoor Psychiatric Center, Queens Children's Psychiatric Center, Kingsboro Psychiatric Center, Manhattan Psychiatric Center, Kirby Forensic Psychiatric Center, New York Psychiatric Institute, South Beach Psychiatric Center, Capital District Psychiatric Center and Rockland Group Psychiatric Center, New York City Department of Corrections, New York City Economic Development Corporation, New York State Department of Health, New York City Department of Education, New York State Department of Transportation and New York City Department of Transportation (the "Public Works Projects"). Plaintiffs seek to recover wages and benefits which they and members of the putative class were entitled to receive for work they performed on the Public Works Projects but did not receive.
JURISDICTION AND VENUE 2. Jurisdiction and venue are proper in this federal district as this case was properly removed to this court without objection on March 7, 2007. Removal was based on the Class Action Fairness Act and the jurisdictional prerequisites for this statute as articulated in 28 U.S.c. Sec. 1332(d)(2). In his Declaration in Support of Defendant's Notice of Removal, Shawn Love, Defendant's then Regional Manager for Northern Operations, declared under penalty of perjury that over 400 different individuals have performed electrical work on public works jobs for Defendant since February 2,2001 and, if the allegations in the complaint are true, have suffered over $5,800,000 in damages exclusive of interest and costs.
PARTIES 3. Plalntiffs. and other members of the putative class. are individuals residing in or

Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 3 of 10 PageID #: 651
around the State of New York, who are laborers, workmen or mechanics as defined by Article 8 of the New York Labor Law, who performed labor pursuant to public works contracts for defendants and/or other subsidiaries, affiliates and joint ventures of this entity.
4. Upon information and belief, defendant SimplexGrinnell LP (hereafter "SG") is a limited partnership formed in the State of Delaware and a subsidiary of Tyco International Ltd. SG's headquarters is located at 50 Technology Drive, Westminster, Massachusetts 01441 and/or One Town Center Road, Boca Raton, Florida.. It has over 100 district offices located throughout the United States, including the following New York offices located in Long Island City, Clifton Park, Williamsville, Endicott, Hauppauge, Newburgh, Rochester and Syracuse. The New York City district office, that administers all of the work performed in the five boroughs of New York City, is located at 2323 Randolph Avenue, Avenel, New Jersey 07001. Unless otherwise alleged herein, all of SG's employees were acting as agents in doing the things alleged in this complaint and, as such, were acting within the course and scope of that agency and employment.
5. SG provides integrated security alarm, fire suppression, healthcare communications and emergency lighting systems to government agencies, corporations, hospitals and educational facilities. Not only does SG design, engineer and install such systems, they provide inspection, testing, maintenance and monitoring of them, as well.
CLASS ALLEGATIONS 6. This action is properly maintainable as a class action pursuant to Rule 23 ofthe Federal Rules of Civil Procedure. 7. This action is brought on behalf of plaintiffs and a class consisting of all laborers, workmen and mechanics who performed work for SG on the sites of the public works projects listed above from February 2.2001 to the entry ofjudgrncnt in this case (the "class" and "class

Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 4 of 10 PageID #: 652
period," respectively). 8. The persons in the class identified above are so numerous that joinder of all
members is impracticable. Although the precise number of such persons is unknown, and facts on which the calculation ofthat number are presently within the sole control ofthe defendants, it is now believed that there are in excess of 400 members of the class during the class period.
9. There are questions oflaw and fact common to the class which predominate over any questions affecting only individual members.
10. The claims of plaintiffs are typical ofthe claims of the putative class. II. Plaintiffs and their counsel will fairly and adequately protect the interests of the class. 12. A class action is superior to other available methods for the fair and efficient adjudication of the controversy. This is particularly true in the context of wage and hour litigation where individual plaintiffs lack the financial resources to vigorously prosecute a lawsuit against large corporate defendants such as SG. 13. There are questions oflaw and fact common to the class which predominate over any questions solely affecting individual members of the class, including:
(a) whether SG entered into certain contracts with various government agencies, such as the New York State Office of Mental Health and the New York City Department of Corrections, to furnish the necessary labor, material and equipment to perform work upon the public work projects;
(b) whether SG paid plaintiffs and the putative class the prevailing rates of wages and supplements due them and all workers furnishing labor on the sites of the public works projects; and,

Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 5 of 10 PageID #: 653
(c) whether SG misclassified some or all ofthe plaintiffs and the putative class as apprentices rather than journeymen.
FACTS 14. Upon information and belief, beginning in or about 2001, SG entered into certain contracts, as either a subcontractor or prime contractor, with certain government agencies (e.g., New York State Office of Mental Health and the New York City Department of Correction), or with prime contractors not currently known, to furnish labor, material and equipment to perform work on these public works projects. 15. Upon information and belief, the public works contracts required that SG pay and ensure payment of the prevailing rates of wages and supplements to all workers furnishing labor on the sites ofthe public works projects, including their direct employees and all other persons furnishing labor on the sites ofthe public works projects. Upon infonnation and belief, the public works contracts also provided that any subcontracts that SG entered into contain language requiring the payment of prevailing rates of wages and supplements to all workers furnishing labor on the sites of the public works projects. 16. As required by law, a schedule containing prevailing rates of wages and supplemental benefits ("prevailing wage schedule") to be paid to the plaintiff class should have been annexed to and fonned a part ofthe public works contracts. If not annexed to the public works contracts, these schedules were expressly or impliedly incorporated into the contracts as a matter of law and/or public policy. 17. The promise to pay and ensure payment of the prevailing wage and supplemental benefit rates in the public works contracts was made for the benefit of all workers furnishing labor on the sites of the pub1ic ,,¥orks projects and, as such. the \yorkers funl1shing 1abor on the

Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 6 of 10 PageID #: 654
sites of the public works projects are the beneficiaries of that promise and the contracts entered into between SG and government agencies.
18. Upon information and belief, in furtherance of the public works contracts entered into by SG, plaintiffs and other members of the putative class performed various types of electrical and sprinkler related work including, but not limited to, installing, maintaining, inspecting, testing, repairing and/or replacing fire suppression and alarm and security system equipment.
19. Upon information and belief, for all work performed by plaintiffs and other members ofthe putative class for SG at the site of the public works projects, SG willfully paid plaintiffs and other members ofthe putative class less than the prevailing rates of wages and supplements to which they were entitled.
20. Upon information and belief, during the period of time for which plaintiffs and the members ofthe putative class performed work on the public works projects, SG also failed to ensure payment of the prevailing rates of wages and supplements to which plaintiffs and other members of the putative class were entitled.
FIRST CAUSE OF ACTION BREACH OF CONTRACT 21. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 20 herein. 22. Upon information and belief, the public works contracts entered into by SG contained schedules of the prevailing rates of wages and supplemental benefits to be paid plaintiffs and the other members of the putative class. Those prevailing rates of wages and supplen1cntal benefi1s "'',,'erc rnade a part ofthc

Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 7 of 10 PageID #: 655
public works contracts for the benefit of the plaintiffs and the other members of the putative class.
24. SG breached the public works contracts by failing to pay plaintiffs and the other members of the putative class the prevailing rates of wages and supplemental benefits for all labor performed upon the public works projects.
25. As a result of its breach ofthe public works contracts, SG is liable to plaintiffs and the other members of the putative class in an amount yet to be determined but believed to exceed $5,800,000.00 plus interest.
SECOND CAUSE OF ACTION (Pled in the Alternative) OUANTUM MERUIT
26. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 25 herein.
27. Plaintiffs and the other members of the putative class have performed numerous and valuable services at the request and for the benefit of SG. The reasonable value ofthose services for which plaintiffs and the other members of the putative class have not been paid is believed to be in excess of$5,800,000.00, plus interest.
28. As a result, SG is liable to plaintiffs and the other members ofthe putative class in an amount not yet determined but believed to exceed $5,800,000.00, plus interest.
THIRD CAUSE OF ACTION (Pled in the Alternative) UNJUST ENRICHMENT
29. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 28 herein.
30. Plaintiffs and members of the putative class have pCrfOlTI1Cd a significant amount of

Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 8 of 10 PageID #: 656
work for which they have not been paid. 31. Upon information and belief, when SO entered into the public works contracts, it
agreed to pay the required prevailing wage, overtime and supplemental benefit rates of pay to plaintiffs and members of the putative class.
32. Upon information and belief, SO billed the public owner, such as the New York State Office of Mental Health or the New York City Department of Corrections, for labor performed by plaintiffs and members of the putative class at the higher prevailing, overtime and supplemental benefit rates, which SO did not pay.
33. As a result of this failure to pay said wages, SO was unjustly enriched for work and services performed by plaintiffs and members of the putative class in an amount believed to exceed $5,800,000.00, plus interest.
FOURTH CAUSE OF ACTION NEW YORK OVERTIME
34. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 33 herein.
35. SO violated New York Labor Law Sec. 655 and 12 NYCRR 142-3.2 by failing to pay plaintiffs and the other members of the putative class overtime compensation for work they performed in furtherance of the public works contracts.
36. SO's failure to pay overtime compensation to plaintiffs and the other members of the putative class was willful.
37. As a result, SO is liable to plaintiffs and the other members of the putative class in an amount to be determined.

Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 9 of 10 PageID #: 657
FIFTH CAUSE OF ACTION FAILURE TO PAY WAGES 3S. Plaintiffs repeat and reallege the allegations contained in paragraphs I through 37 herein. 39. Plaintiffs' wage rate and/or overtime compensation rate were within the meaning of and covered by New York Labor Law Sections 190, 191 and 19S-c. 40. SG violated New York Labor Law Sec. 191 by failing to pay plaintiffs and other members of the putative class the required wage and overtime compensation rates for the work they performed during the putative class period. 41. SG violated New York Labor Law Sec. 19S-c by failing to pay plaintiffs and other members ofthe putative class the agreed upon benefits and/or wage supplements owed to them for the work they performed during the putative class period. 42. Upon information and belief, this failure to pay the agreed upon wages, overtime compensation benefit and supplement rates, on the part of the SG was willful. 43. As a result, SG is liable to plaintiff and other members of the putative class in an amount not yet determined but believed to exceed $5,SOO,000.00 plus attorneys' fees and costs and interest.
WHEREFORE, Plaintiffs demand judgment: a. On their first cause of action, against defendant SG, in an amount in excess of $5,800,000.00, plus interest; b. On their second cause of action, against defendant SG, in an amount in excess of S5,800,000.00, plus interest:

Case 1:07-cv-00981-SMG Document 56 Filed 07/14/08 Page 10 of 10 PageID #: 658

c. On their third cause of action, against defendant SO, in an amount in excess of $5,800,000.00, plus interest;
d. On their fourth cause of action, against defendant SO, in an amount to be determined by a jury to fully compensate the plaintiffs and the other members of the class for due to defendant SO's failure to pay overtime under New York Labor Law;
e. On their fifth cause of action, against defendant SO, in an amount in excess of $5,800,000.00, plus reasonable attorneys' fees, costs and interest;
f. Such other and further relief as the Court may deem just and proper.

Dated: New York, New York July 14, 2008

BERANBAUM MENKEN BEN-ASHER & BIERMAN LLP

By:

Is/_ _ _ _ _ _ _ __

Bruce E. Menken

80 Pine Street, 32"" Floor

New York, NY 10005

212-509-1616

 
 Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 1 of 63 PageID #: 1496

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------x

ROBERTO RAMOS et. al.,

:

:

Plaintiffs,

:

:

v.

:

:

SIMPLEXGRINNELL LP,

:

:

Defendant.

:

---------------------------------------------------------------x

Honorable Steven M. Gold Case No. 1:07-cv-981 (SMG)

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTIONS FOR
CLASS CERTIFICATION AND SUMMARY JUDGMENT

Raymond C. Fay (pro hac vice) Kerin E. Coughlin CONSTANTINE CANNON LLP 450 Lexington Avenue, 17th Floor New York, NY 10017 Telephone: (212) 350-2700

Bruce E. Menken Jason Rozger BERANBAUM MENKEN LLP 80 Pine Street, 33rd Floor New York, NY 10005 Telephone: (212) 509-1616
Attorneys for Plaintiffs

Dated: March 18, 2010

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 2 of 63 PageID #: 1497

TABLE OF CONTENTS I. INTRODUCTION AND SUMMARY ................................................................................... 1 II. FACTS APPLICABLE TO BOTH MOTIONS ..................................................................... 3
A. SimplexGrinnell and its New York State Operations .................................................... 3 B. The Plaintiffs and the Proposed Class of Workers ........................................................ 6 C. The Nature of Defendant’s Work on New York Public Sites........................................ 6 D. SimplexGrinnell’s Nonpayment of Prevailing Wages and Benefits.............................. 9 E. SimplexGrinnell’s Failure to Keep Adequate Records
Regarding Prevailing Wages........................................................................................ 12 F. SimplexGrinnell’s Electronic Data .............................................................................. 14 G. New York Department of Labor Opinion Letter on Testing and Inspection............... 15 H. Damages....................................................................................................................... 16 III. ARGUMENT--MOTION FOR CLASS CERTIFICATION................................................ 18 A. This Case, As a Prevailing Wage Case, is Perfectly Suited for Class Treatment........ 18 B. Rule 23 Is Satisfied. ..................................................................................................... 20
1. The Rule 23 Requirements .................................................................................... 20 2. The Class Satisfies Rule 23(a). ............................................................................. 21
a. The Class is Sufficiently Numerous............................................................. 21 b. Questions of Law and Fact are Common..................................................... 21 c. Plaintiffs’ Claims are Typical of the Class’ Claims..................................... 25 d. The Class is Adequately Represented.......................................................... 26 3. The Class Satisfies Rule 23(b)(3).......................................................................... 28 a. Common Questions Predominate................................................................. 28 b. A Class Action is the Superior Method for Resolving This Dispute........... 31

i

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 3 of 63 PageID #: 1498
IV. ARGUMENT--MOTION FOR SUMMARY JUDGMENT ................................................ 34
A. The Applicable Law and Legal Standards ................................................................... 34
1. The New York Prevailing Wage Law Requires the Payment of Prevailing Wages to Laborers, Workmen and Mechanics on Public Works........ 34
2. Courts’ Construction of Prevailing Wage Law Favors the Entry of Summary Judgment to Plaintiffs ....................................................... 35
3. Plaintiffs May Recover for Unpaid Prevailing Wages as Third Party Beneficiaries of Defendant’s Government Contracts................... 37
4. Summary Judgment Standards.............................................................................. 38
B. SimplexGrinnell Has Violated Section 220 by Failing to Pay Plaintiffs and the Class Members Prevailing Wages for Work Performed on Public Job Sites... 39
1. Plaintiffs Have Shown That SimplexGrinnell Has Entered Into Public Works Contracts Covered by the New York Prevailing Wage Law .......... 39
2. New York Labor Law Requires Employers to PayPrevailing Wage to Workers Who Test and Inspect Fire and Life Safety Systems............................ 41
3. The Evidence Is Undisputed That Defendant Failed to Pay Prevailing Wages and Therefore Breached Its Contractual Obligations .......................................... 46
C. Plaintiffs and Class Members Are Entitled to Summary Judgment on Damages......... 47
1. Legal Standards Support the Entry of Summary Judgment for Plaintiffs on Damages ..................................................................................... 47
2. Plaintiffs Are Not Required to Present Damages in the Form Demanded by Defendant, Particularly in Light of the Deficiencies in Defendant’s Employment Recordkeeping. ......................... 49
3. Damages Should Be Awarded to Each Class Member in the Amounts Stated in Dr. Crawford’s Report.................................................. 52
4. In the Alternative, the Court Should Enter Partial Summary Judgment on Damages ............................................................. 52
V. CONCLUSION..................................................................................................................... 54

ii

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 4 of 63 PageID #: 1499

TABLE OF AUTHORITIES
FEDERAL CASES
Alcantara v. CNA Mgmt., Inc., 2009 WL 4667091 (S.D.N.Y. Dec. 8, 2009) ............................................................................ 32
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).................................................................................................................. 27
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).................................................................................................................. 38
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)............................................................................................................ 50, 51
Ansoumana v. Gristede's Operating Corp., 201 F.R.D. 81 (S.D.N.Y. 2001) ................................................................................................ 27
Barone v. Safway Steel Prods., Inc., 2005 WL 2009882 (E.D.N.Y. Aug. 23, 2005)................................................................... passim
Barragan v. Evanger's Dog & Cat Food Co., 259 F.R.D. 330 (N.D. Ill. 2009)........................................................................................... 22-23
Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251 (1946).................................................................................................................. 51
Bragdon v. Abbott, 524 U.S. 624 (1998).................................................................................................................. 45
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)............................................................................................................. 38-39
Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995)........................................................................................................ 21
Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918 (2d Cir. 1977)...................................................................................................... 48
Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91 (2d Cir. 2007)................................................................................................... 26-27
Cuzco v. Orion Builders, Inc., 262 F.R.D. 325 (S.D.N.Y. 2009) .............................................................................................. 19

iii

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 5 of 63 PageID #: 1500
Damassia v. Duane Reade, Inc., 250 F.R.D. 152 (S.D.N.Y. 2008) .................................................................................. 22, 26, 27
Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327 (S.D.N.Y. 2005)....................................................................................... 49
Dupler v. Costco Wholesale Corp., 249 F.R.D. 29 (E.D.N.Y. 2008) ................................................................................................ 24
Dziennik v. Sealift, Inc., 2007 WL 1500080 (E.D.N.Y. May 29, 2007) .......................................................................... 20
Eastman Kodak Co. v. S. Photo Material Co., 273 U.S. 359 (1927).................................................................................................................. 51
Gonzalez v. Zito Racing Stable Inc., 2008 WL 941643 (E.D.N.Y. Mar. 31, 2008)............................................................................ 29
Gortat v. Capala Bros., Inc., 2009 WL 3347091 (E.D.N.Y. Oct. 16, 2009).................................................................... passim
Haddock v. Nationwide Fin. Servs., Inc., 262 F.R.D. 97 (D. Conn. 2009)............................................................................... 21, 22, 30, 33
Haywood v. Barnes, 109 F.R.D. 568 (E.D.N.C. 1986) .............................................................................................. 22
Hnot v. Willis Group Holdings Ltd., 241 F.R.D. 204 (S.D.N.Y. 2007) .............................................................................................. 25
In re Agent Orange Prod. Liab. Litig., 818 F.2d 145 (2d Cir. 1987)...................................................................................................... 21
In re Initial Pub. Offerings Secs. Litig., 471 F.3d 24 (2d Cir. 2006).................................................................................................. 20, 21
In re Visa Check / MasterMoney Antitrust Litig., 280 F.3d 126 (2d Cir. 2001).......................................................................................... 28, 29, 31
In re Visa Check/MasterMoney Antitrust Litigation, 297 F. Supp. 2d 503, aff'd, 396 F.3d 96 (2d Cir. 2005) ............................................................ 27
In re WRT Energy Secs. Litig., 2006 WL 2020947 (S.D.N.Y. July 13, 2006) ........................................................................... 24

iv

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 6 of 63 PageID #: 1501
Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490 (2d Cir.1995)......................................................................................................... 48
Jankowski v. Castaldi, 2006 WL 118973 (E.D.N.Y. Jan. 13, 2006) ................................................................. 20, 29, 30
Koss v. Wackenhut Corp., 2009 WL 928087 (S.D.N.Y. Mar. 30, 2009) ...................................................................... 23, 27
Lee v. ABC Carpet & Home, 236 F.R.D. 193 (S.D.N.Y. 2005) ........................................................................................ 24, 27
Levinson v. About.com, 2009 WL 1026021 (S.D.N.Y. Apr. 13, 2009)........................................................................... 20
Mack v. Suffolk County, 191 F.R.D. 16 (D. Mass. 2000)................................................................................................. 22
Marcella v. Cap. Dist. Physicians' Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002)........................................................................................................ 45
Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997).................................................................................... 20, 25, 26, 27
Martin v. Selker Bros., Inc., 949 F.2d 1286 (3d Cir. 1991).................................................................................................... 50
Mendez v. Radec Corp., 232 F.R.D. 78 (W.D.N.Y. 2005)................................................................................... 20, 31, 33
Mendez v. Radec Corp., 260 F.R.D. 38 (W.D.N.Y. 2009)............................................................................................... 29
Niemic v. Ann Bendick Realty, 2007 WL 5157027 (E.D.N.Y. Apr. 23, 2008) .......................................................................... 20
Perero v. Food Jungle, Inc., 2006 WL 2708055 (E.D.N.Y. Aug. 7, 2006)............................................................................ 48
R.B. Ventures, Ltd. v. Shane, 112 F.3d 54 (2d Cir. 1997)........................................................................................................ 38
Reich v. S. New England Telecommc'ns Corp., 121 F.3d 58 (2d Cir.1997)................................................................................................... 50, 51

v

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 7 of 63 PageID #: 1502

Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ............................................................................................ 23, 25
Secretary of Labor v. DeSisto, 929 F.2d 789 (1st Cir. 1991)..................................................................................................... 51
Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32 (1st Cir. 2003)....................................................................................................... 30
Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D 67 (E.D.N.Y. 2004) ........................................................................................... 22, 24
Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931).................................................................................................................. 51
Torres v. Gristede’s Operating Corp., 2006 WL 2819730 (S.D.N.Y. Sept. 29, 2006) ................................................................... 24, 33
Tractebel Energy Mktg. v. AEP Power Mktg., 487 F.3d 89 (2d Cir. 2007)........................................................................................................ 48
Trinidad v. Breakaway Courier Sys., Inc., 2007 WL 103073 (S.D.N.Y. Jan. 12, 2007) ........................................................... 21, 26, 31, 32
United States v. Jones, 958 F.2d 520 (2d Cir. 1992)...................................................................................................... 39
Zeng Liu v. Jen Chu Fashion Corp., 2004 WL 33412 (S.D.N.Y. Jan. 7, 2004) ................................................................................. 49

STATE CASES

Alphonse Hotel Corp. v. Sweeney, 674 N.Y.S.2d 351 (1st Dep't 1998)........................................................................................... 51

Austin v. City of N.Y., 258 N.Y. 113 (1932) ........................................................................................................... 36, 37

Bernstein v. Toia, 43 N.Y.2d 437 (1977) ............................................................................................................... 45

Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144 (S.D.N.Y. 2002) ............................................................................ 25, 28, 29, 32

Bridgestone/Firestone, Inc. v. Hartnett, 572 N.Y.S.2d 770 (3d Dep't 1991) ........................................................................................... 35

vi

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 8 of 63 PageID #: 1503

Bucci v. Vill. of Port Chester, 292 N.Y.S.2d 393 (1968)..................................................................................................... 35-36
Cardona v. Maramont Corp., 2009 WL 4026815 (Sup. Ct. N.Y. Co. Nov. 12, 2009) ................................................ 19, 27, 33
Cox v. NAP Constr. Co., 10 N.Y.3d 592 (2008) ............................................................................................................... 38
Edwards v. Jet Blue Airways Corp., 2009 WL 4482409 (Sup. Ct. N.Y. Co. 2008) ........................................................................... 45
Fata v. S.A. Healy Co., 289 N.Y. 401 (1943) ............................................................................................... 36, 37, 39, 41
Galdamez v. Biordi Constr. Corp., 2006 WL 296951 (Sup. Ct. N.Y. Co. Oct. 17, 2006) ............................................................... 19
Georgakis Painters Corp. v. Hartnett, 565 N.Y.S.2d 863 (3d Dep't 1991) ........................................................................................... 52
Inglesias-Mendoza v. LaBelle Farm, Inc., 239 F.R.D. 363 (S.D.N.Y. 2007) ........................................................................................ 19, 21
Matter of Gen. Elec. Co. v. N.Y.S. Dep't of Labor, 565 N.Y.S. 2d 863, aff’d on op. below, 76 N.Y.2d 946 (1990) ................................................ 43
Matter of Kelly v. Beame, 15 N.Y.2d 103 (1965) ......................................................................................................... 37, 43
McKernan v. City of N.Y. Civ. Serv. Comm'n, 127 Misc. 2d 946 (Sup. Ct. N.Y. Co. 1985) ............................................................................. 40
Mid Hudson Pam Corp. v. Hartnett, 549 N.Y.S.2d 835 (3d Dep't 1989) ........................................................................................... 52
Miele v. Joseph, 113 N.Y.S.2d 689, aff’d, 305 N.Y. 667 (1953)......................................................................... 37
Pajaczek v. Cema Constr. Corp., 2008 WL 541298 (Sup. Ct. N.Y. Co. Feb. 21, 2008) ................................................... 19, 24, 31
Pesantez v. Boyle Envtl. Servs., Inc., 673 N.Y.S.2d 659 (1st Dep't 1998)................................................................... 19, 28, 31, 32, 33

vii

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 9 of 63 PageID #: 1504
Strong v. American Fence Construction Co., 245 N.Y. 48 (1927) ................................................................................................................... 38
Tenalp Constr. Co. v. Roberts, 532 N.Y.S.2d 801 (2d Dep't 1989) ......................................................................... 34, 35, 36, 37
Twin State CCS Corp. v. Roberts, 72 N.Y.2d 897 (1988) ............................................................................................................... 36
Wakeman v. Wheeler & Wilson Mfg. Co., 101 N.Y. 205 (1886) ................................................................................................................. 48
Wright v. Herb Wright Stucco, Inc., 50 N.Y.2d 837 (1980) ............................................................................................................... 38
STATUTES, RULES & OTHER AUTHORITIES N.Y. Lab. Law § 220 ............................................................................................................. passim N.Y. C.P.L.R. § 213...................................................................................................................... 32 N.Y. C.P.L.R. § 901...................................................................................................................... 19 N.Y. C.P.L.R. § 5001.............................................................................................................. 48, 49 N.Y. C.P.L.R. § 5004.................................................................................................................... 48 N.Y. Gen. Bus. Law Art. 6 ................................................................................................. 9, 11, 12 Fed. R. Civ. P. 23................................................................................................................... passim Fed. R. Civ. P. 56................................................................................................................... passim Fed. R. Evid. 201 ........................................................................................................ 40, 42, 43, 44 NEWBERG ON CLASS ACTIONS (4th ed. 2002) ............................................................................... 53

viii

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 10 of 63 PageID #: 1505

Plaintiffs Roberto Ramos, et al., by their attorneys and pursuant to Federal Rules of Civil Procedure 23 and 56, respectfully move the Court to: (1) certify the class of more than 600 current and former employees of defendant SimplexGrinnell LP claiming defendant’s failure to pay them wages and supplements due and owing them under New York’s Prevailing Wage Law, New York Labor Law § 220; and (2) grant summary judgment to plaintiffs and class members on liability, and award damages in the total sum of $16.0 million.
I. INTRODUCTION AND SUMMARY SimplexGrinnell indisputably violated Section 220 by failing to pay prevailing wages to
fire alarm and sprinkler workers on nonfederal public works in the State of New York. SimplexGrinnell has violated not only the substantive provisions of the legal mandate, but also has disregarded the procedural provisions of the statute by failing to maintain or report accurate payroll records, by failing to advise workers of their rights under the prevailing wage law, and even by failing to maintain basic contractual prevailing wage schedules required by law. As a result, enforcement has been difficult and workers have been challenged to know their rights under the law or to have the tools to redress longstanding violations.
Plaintiffs ask the Court to certify the class of more than 600 current and former employees of SimplexGrinnell who have performed fire alarm and sprinkler system work on nonfederal public sites in New York and who have not been paid prevailing wages due them under Section 220. This Court should join numerous other courts in recognizing that wage claims such as these are perfectly suited for classwide treatment. SimplexGrinnell applied a practice of not paying prevailing wages due for maintenance, repair, testing, inspection, and installation of fire alarm of sprinkler systems statewide. As shown by defendant’s pay records, plaintiffs share commonly with other class members the nature of the work and the types of wage

1

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 11 of 63 PageID #: 1506

claims for which they seek redress, making class certification appropriate. On undisputed facts, plaintiffs are entitled to summary judgment for SimplexGrinnell’s
failure to pay proper prevailing wages since February 2001. The New York prevailing wage law requires SimplexGrinnell to include the obligation to pay prevailing wages in each contract with public entities, and to post prevailing wage rates. As third party beneficiaries of defendant’s public works contracts, plaintiffs are entitled to recover for any breach of the prevailing wage obligations in those contracts. SimplexGrinnell’s own business records show that the members of the plaintiff class worked hundreds of thousands of hours on public works under hundreds if not thousands of contracts, and were paid less than the prevailing wage. SimplexGrinnell’s liability for breach of contractual obligations intended to confer benefits on plaintiffs and class members is clear.
The only noteworthy legal issue to be decided on summary judgment is whether SimplexGrinnell is required to pay prevailing wages to laborers, workmen, or mechanics who perform testing and inspection of fire alarm systems. Assisted by the record of undisputed facts, the Court should enter summary judgment for plaintiffs. First, it is well-settled that maintenance of public works is covered work. Second, SimplexGrinnell workers performing testing and inspection maintain the systems as well, as supported not only by the testimony of the individuals actually performing the work, but also by the business records of SimplexGrinnell that describe testing and inspection as part of the maintenance function. Third, the New York Department of Labor, the enforcement agency of the State prevailing wage law, has confirmed, upon a request for ruling by SimplexGrinnell and after SimplexGrinnell made repeated presentations and demonstrations, that testing and inspection work requires the payment of prevailing wages. Plaintiffs’ Exhibit (“PX”) 3 (December 31, 2009 letter from M. Patricia

2

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 12 of 63 PageID #: 1507

Smith, New York Commissioner of Labor, to SimplexGrinnell) (“NYSDOL Op. Ltr.”).1 Plaintiffs seek summary judgment on damages as well as on liability. Plaintiffs have
presented the damages study of David Crawford, Ph.D., an economist from the University of Pennsylvania with three decades of experience in employment and wage cases. PX 1. Dr. Crawford has presented a reliable and relevant methodology for the calculation of estimated damages to plaintiffs and members of the class to a reasonable degree of certainty. Dr. Crawford, using the same SimplexGrinnell electronic pay and project records used by defendant in the ordinary course of business, accurately compiled the wage and benefit rates for class members, compared those with the wages they should have been paid under the prevailing wage schedules, added statutory interest, and subtracted the value of partial payments made by SimplexGrinnell. With interest as allowed by New York law, these losses total $16.0 million.
Therefore, plaintiffs request that the Court certify the class, enter summary judgment on both liability and damages in favor of the plaintiff class, and award each plaintiff and class member the amounts set forth for them in Dr. Crawford’s report. In the alternative, in the event that the Court finds that there is a remaining material factual dispute with regard to any of the claimed amounts due, then plaintiffs request partial summary judgment on all but the amounts the Court finds in dispute, or an aggregate damages award to the class as a whole, and a prompt trial by jury on any remaining damages issues.
II. FACTS APPLICABLE TO BOTH MOTIONS A. SimplexGrinnell and its New York State Operations Defendant SimplexGrinnell provides testing, inspection, maintenance, repair and

1

Plaintiffs’ exhibits 1 and 2 are attached to the Declaration of David L. Crawford, Ph.D. (“Crawford Decl.”)

submitted herewith. Plaintiffs’ remaining exhibits, beginning with PX 3, are attached to the Declaration of Kerin E.

Coughlin (“Coughlin Decl.”) submitted herewith. Certain of plaintiffs’ exhibits have been filed with the Court

under seal pursuant to the Protective Order entered in this case September 11, 2007 (Dkt. 14).

3

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 13 of 63 PageID #: 1508

installation of fire, security and communications systems inside private and public buildings throughout the United States. PX 33 (SimplexGrinnell website). Fire alarm, detection, and suppression equipment includes fire alarm systems, fire sprinklers, and other fire suppression systems. Id.
SimplexGrinnell has nine district offices that administer work throughout the state of New York. PX 61 at 21. All of these district offices operate in the same way. All offices are staffed in the same manner, and various template contracts are entered with clients. Field workers do the same work, and are generally paid pursuant to the same policies and practices.2
All New York district offices have a district manager, service managers, hourly rate field workers and clerical/administrative employees. PX 64 at 100-05; PX 20 ¶¶ 3-9. SimplexGrinnell’s hourly rate field workers perform work on federal, state and municipal public job sites, such as schools, hospitals and prisons.3
New York Labor Law (“NYLL”) § 220 requires the payment of a “prevailing rate of wage” (§ 220(5)) to “laborers, workmen or mechanics” for employment on “public works” (§ 220(3)(a)) contracted with “the state or a public benefit corporation or a municipal corporation or a commission appointed pursuant to law” (§ 220(2)), at wage rates set by reference to wages “in the same trade or occupation in the locality in which the work is being performed” (§ 220(5)(a)).4 The wage rates themselves, by job category and location, are revised annually by the New York Department of Labor and are published in schedules found on the agency’s

2

PX 64 at 100-05, 183-84; PX 20 ¶ 8; PX 10 at Appx. D (OMH Contract); PX 11 (SUNY Albany Contract);

PX 9 (NYC Dep’t of Corrections Contract); PX 12 at SG 26631-38, 26672-81 (Onondaga County Purchase Orders).

3

PX 64 at 183-84; PX 10 at Appx. D (OMH Contract); PX 11 (SUNY Albany Contract); PX 9 (NYC Dep’t

of Corrections Contract); PX 12 at SG 26631-38, 26672-81 (Onondaga County Purchase Orders).

4

New York Labor Law § 220(5)(e) also requires payment of prevailing wages and benefits to laborers,

workmen or mechanics who work on public sites pursuant to contract with the City of New York. The New York

City Comptroller, rather than the New York State Commissioner of Labor, sets these prevailing wage and benefit

rates.

4

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 14 of 63 PageID #: 1509

website.5 SimplexGrinnell enters into contracts to provide service, installation and preventive
maintenance services to state and local government agencies in New York State.6 The New York Labor Law requires that defendant’s public works “contracts shall contain a provision that each laborer, workman or mechanic, employed by such contractor, subcontractor or other person about or upon such public work, shall be paid the wages herein provided.” § 220(3)(a). Some of defendant’s contracts contain a “standard” procurement clause reflecting the obligation to pay prevailing wages: “Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the premium rates for overtime pay, as determined by the State Labor Department in accordance with the Labor Law.” PX 10 at SG0021473 (OMH); see PX 8 at SG0026714 (Cayuga Correctional Facility). A slight variant of the standard clause states that “any employees whose prevailing wage is required to be fixed pursuant to Section 220… shall be paid such prevailing wage.” PX 6 at SG0011506 (Apple Industrial Development Corp. #13510041); see PX 7 at SG0010752 (Apple Industrial Development Corp. #13510034).
Most local counties and municipalities have the same or similar provisions in its public contracts or other documents associated with the contracts. For example, Purchase Orders contain the legend: “The provisions of Section 220 of the NY Labor Law are deemed part of every purchase order with the same force and effect as if set forth at length.” PX 12 at SG0026674 (Onondaga County). Bid documents usually contain the above mandate. Further, the prevailing wage schedules are easily accessible on the New York Department of Labor

5

See http://wpp.labor.state.ny.us/wpp/publicViewPWChanges.do?method=showIt. See also PX 64 at 26:18

– 27:17 (Love Dep.).

6

See, e.g., PX 10 (OMH); PX 9 (NYC Dep’t of Corrections); PX 12; PX 64 at 183-86; PX 61 at 75-76.

5

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 15 of 63 PageID #: 1510

website and have warning language written on the top page directing contractors to contact the Department of Labor. PX 64 at 26-27; PX 48; PX 56 at 27-28.
B. The Plaintiffs and the Proposed Class of Workers Plaintiffs and members of the proposed class are former and current SimplexGrinnell employees who test, inspect, maintain, repair and install fire alarm, sprinkler system and other life safety devices annexed to private and public buildings throughout New York.7 Between February 2001 and the present, over 475 workers did this work and were supervised primarily by Shawn Love and Richard Zammitti, SimplexGrinnell’s New York area Regional Managers during this time. PX 64 at 38, 40, 59, 61-62; PX 72 at 27-28; see PX 1 at Table 4 (showing over 600 employees as having performed work on public sites). Plaintiffs and members of the class were regularly assigned to work on public work sites, including but not limited to, Office of Mental Health sites throughout New York.8 Between 50% and 75% of their time was spent working on public buildings. PX 50. Although SimplexGrinnell identifies some of the plaintiffs and class as “supervisors” or “site supervisors,” these workers use tools and do virtually the same work that their colleagues do on site. “Site supervisor” is just a title that SimplexGrinnell sets up as a single point of contact. PX 64 at 92; PX 63 at 36-40; PX 21 ¶ 16; PX 15 ¶ 6. SimplexGrinnell pays its “site supervisors” an hourly wage rather than a weekly or annual salary. PX 29 C. The Nature of Defendant’s Work on New York Public Sites. Plaintiffs and members of the class throughout the state performed the same type of work, regardless of where they worked. PX 64 at 62-64; PX 72 at 148; PX 56 at 72-74. Fire

7

PX 5 (SimplexGrinnell, Job Posting); PX 63 at 36-40; PX 71 at 73; PX 66 at 19-22, 29, 41; PX 67 at 80-83;

PX 17 ¶¶ 3, 7, 9, 10; PX 19 ¶¶ 3, 6, 8, 9; PX 13 ¶¶ 3, 5, 6, 8, 9, PX 21 ¶¶ 3, 5, 7, 8; PX 18 ¶¶ 3, 5, 7, 9; PX 15 ¶¶ 3,

4, 5, 7.

8

PX 63 at 25; PX 60 at 53, 71-72; PX 64 at 67.

6

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 16 of 63 PageID #: 1511

alarm technicians, inspectors (fire alarm and sprinkler) and sprinkler fitters throughout New York, when working on public job sites, did the same type of work. PX 64 at 62-64. These job titles were created by SimplexGrinnell corporate headquarters in Westminster, Massachusetts. PX 64 at 71. The New York Department of Labor has determined that the nature of the work performed by defendant’s electricians who install fire systems is “the same” as those who do testing and inspection, and that therefore “[e]mployees performing testing and inspection work on fire systems are properly categorized as laborers, workmen, or mechanics.” PX 3 at 2.
Plaintiffs and members of the class doing work on construction/installation projects program and install components within the original fire alarm panel, connect the wires leading to the other parts of the building (“field”), and troubleshoot the system until it functions properly. PX 20 ¶ 8. Those that do service work perform regular inspections and testing of existing systems and perform service calls to repair damaged systems. They also spend time in the field visually inspecting and testing fire alarm systems, cleaning, replacing or repairing equipment, and performing other tasks associated with ensuring that existing fire alarm systems continue to function properly. Id. Those plaintiffs and class members who install and service sprinkler systems work with pipes, flow switches, sprinkler heads and other mechanical equipment. Id. ¶ 9.
Plaintiffs Roberto Ramos and Frank Rodriguez, NYC technicians who primarily worked on fire alarm systems, did things such as tracing out circuits, replacing faulty horn strobes, checking voltages on wiring, replacing DACT cards, running wire and replacing smoke detectors. PX 70 at 36-39, 65, 132; PX 67 at 84. Plaintiff Jose Fernandez, a NYC technician who primarily worked on sprinkler systems, did things such as testing stand pipes and risers, checking sprinkler heads, moving or replacing sprinkler heads, working with fire hydrants and

7

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 17 of 63 PageID #: 1512

repairing sprinkler valves, sprinkler heads and fire pumps. PX 59 at 26-29. Plaintiff Rafiu Owalobi, another NYC technician who usually worked on fire alarm systems, did things such as troubleshooting of sprinkler systems, installing smoke detectors, pulling electrical wire, terminating wires, diagnosing fire alarm panel problems, installing electronic panels and tagging wires. PX 66 at 19, 25, 30, 39, 42.
Andrew Kwasigroch, a member of the proposed class who worked out of the Syracuse district office, removed cages and performed fire alarm and smoke detector tests and inspections, accessed and tested duct detectors; conducted panel checks and grounded wires, disassembled and replaced detectors, removed pull stations, conducted sprinkler tests and inspections, and replaced flow switches and fire hydrants. PX 63 at 36-40. Sean Orr, another member of the proposed class who worked out of the Syracuse district office, primarily did testing and inspection work on fire alarm and sprinkler systems. PX 65 at 52-54.
William Hobbs, a member of the proposed class who worked for SimplexGrinnell in three different district offices (Buffalo, Rochester and Long Island) for a total of over 25 years, inspected, tested, repaired and installed fire alarm systems. PX 14. Donald Kuhlman, a member of the proposed class who worked out of the Newburgh district office from 2001 to 2009, inspected and tested fire alarm and sprinkler systems and did repair and service work including installation of strobes, smoke detectors, compressors, valves, water flow switches and tamper switches. PX 15 ¶¶ 3, 6, 7.
The entire class, like the above plaintiffs and proposed class members throughout New York, filled out the same paperwork, such as time sheets and service reports, to document their hours and the general work they did. PX 64 at 71-72, 89-90, 125-29; PX 40-42.
Plaintiffs and members of the class were considered technicians. Many were trained to

8

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 18 of 63 PageID #: 1513

work on both fire alarm and sprinkler systems and, in fact, many performed inspection and testing and/or service and repair of both fire alarm and sprinkler systems. Inspection, testing and repair work are frequently performed at the same time. 9
The New York Department of State, in regulating the life safety business, requires an entity like SimplexGrinnell to be licensed to perform testing, inspecting, maintaining, repairing or installing an alarm system. N.Y. Gen. Bus. Law Art. 6-D. Defining “installation of an alarm system” as placing and connecting various equipment and devices into buildings, New York law also includes the work done to program a control panel. 19 N.Y. Comp. Codes R. & Regs. § 195.1(c) (2009). The maintenance or “maintaining an alarm system” includes the inspection and testing of components, devices or systems for the purpose of establishing proper operating conditions and detecting or preventing problems with the equipment. Id. § 195.1(d); see PX 3 (NYSDOL Op. Ltr.).
A building is not safe unless its fire alarm and sprinkler systems are properly inspected, tested and maintained. PX 58 at 26. Plaintiffs and class members who test and inspect fire alarms and sprinkler systems are doing work that is integral to the maintenance of the life safety systems in public buildings.10 SimplexGrinnell employees who test and inspect fire alarm and sprinkler systems use specialized tools and instrumentation to detect problems undetectable by visual inspection alone. PX 4 (SimplexGrinnell Web Advertisement).
D. SimplexGrinnell’s Nonpayment of Prevailing Wages and Benefits SimplexGrinnell entered into hundreds if not thousands of contracts with public entities that required it to pay prevailing wages and benefits to the plaintiffs and proposed class of

9

PX 39; PX 43; PX 5; PX 55 at 54:2-18. PX 59 at 7; PX 15 ¶¶ 4, 10; PX 65 at 52-54; PX 13 ¶ 19;

PX 66 at 19, 25, 30, 39, 42-43, 126:9-12.; PX 64 at 54:23-55:11; PX 63 at 50:8-51:19; PX 71 at 55:11-22.

10

PX 3 (NYSDOL Op. Ltr.); PX 4 (SimplexGrinnell Web Advertisement); PX 72 at 158; PX 54 at 180; PX

69 at 45-46.

9

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 19 of 63 PageID #: 1514

workers. PX 2; PX 64 at 183-86; PX 61 at 76; PX 6-12; NYLL § 220. Despite spending the majority of their work hours on public job sites pursuant to contracts entered into with public entities, plaintiffs and members of the class were not paid the prevailing wages and benefits due them.11 SimplexGrinnell’s records and payroll practices corroborate this. See infra Part F (Simplex Grinnell’s Electronic Data).
SimplexGrinnell’s payroll process was the same throughout all of the New York district offices. SimplexGrinnell paid and continues to pay its workforce on a weekly basis. PX 56 at 81-82. In order to get paid, plaintiffs would submit their time sheets to the district office, where a clerical person would input the time into the company’s computer system, known as Time Entry, and electronically deliver it to payroll in Westminster, Massachusetts. Pay checks were generated in Westminster and mailed (or direct deposited) to employees. PX 56 at 59-61; PX 64 at 105-09. These records confirm that SimplexGrinnell regularly did not pay the plaintiffs and the class of workers prevailing wages and benefits for thousands of hours when they worked on public sites. See PX 1 Table 4; PX 13-15, 17-19, 21.
SimplexGrinnell systematically failed to identify government jobs as “public” jobs when it entered the jobs and contracts into its data base systems. PX 56 at 71; PX 69 at 149; PX 61 at 217-27; PX 37; PX 72 at 78-79. Christie Hext, SimplexGrinnell’s National Prevailing Wage Manager, explained that these public jobs were not identified or “flagged” as public or prevailing wage jobs. PX 61 at 216-27. Even if a job was “flagged” as a public or prevailing wage job does not mean, by itself, that defendant paid the workers who performed work on the public job site prevailing wages and benefits. “Flagging” a job was only the first step. PX 61 at 202-03. In order for plaintiffs to get paid prevailing wages and benefits, a form called a wage set-up form

11

PX 1 Table 4; PX 50; PX 13-15, 17-19, 21; PX 64at 69-70, 78, 84-85, 114-17; PX 56 at 34-35, 53; PX 72

at 192.

10

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 20 of 63 PageID #: 1515

had to be filled out for the individual or individuals who worked on the public site, too. This rarely happened. PX 61 at 202-03, 207; PX 56 at 31-35. Instead, on the rare occasion when a worker knew about prevailing wages and asked for payment, a manual override was executed so he or she could get paid the difference between his or her regular hourly rate and the relevant prevailing wage rate. PX 64 at 240-41; PX 56 at 66; PX 44. Very few public jobs were properly “flagged”; little proof was produced by defendant to show that wage set-up forms were filled out by its payroll administrator; and relatively few manual override forms were processed for posthoc prevailing wage payments. PX 61 at 216-27; PX 28 (Document Request 5, response identifying only approximately 700 manual override forms during entire liability period).
Ms. Hext, as SimplexGrinnell’s National Prevailing Wage Manager, oversees its prevailing wage policies. PX 61 at 13. She has been in this position since March, 2005. PX 61 at 8. Her responsibilities include familiarizing herself with prevailing wage policies, setting up processes to ensure correct payment of prevailing wage and training personnel in district offices regarding prevailing wage practices. PX 61 at 15-17. Prior to August 1, 2006, no information was distributed to the New York district offices or to employees regarding the payment of prevailing wages. PX 61 at 32-35. Prior to August 1, 2006, SimplexGrinnell had no statewide policy or practice of paying prevailing wages to workers. PX 61 at 52-53; see also id. at 48-50.
Defendant rarely paid prevailing wages and supplemental benefits to plaintiffs and members of the class until early 2007. PX 17 ¶ 11; PX 21 ¶ 12; PX 14 ¶ 5. SimplexGrinnell held meetings in all of the NY district offices in late 2006/early 2007 to discuss prevailing wages. Planned change of the time sheets and inaccurate understanding of New York prevailing wage law were the two primary issues discussed. PX 17 ¶ 13; PX 67 at 6-11; PX 75 at 69-72; PX 73 at 90-94, 97; PX 61 at 83-85. Thereafter, SimplexGrinnell started to pay plaintiffs and

11

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 21 of 63 PageID #: 1516

members of the class prevailing wages for work performed on public sites, but only for time spent working on certain tasks. PX 67 at 29-30; PX 73 at 133-135; PX 74 at 125-126; PX 70 at 81, 113-114; PX 17 ¶¶ 11, 13; PX 60 at 92-93.
On August 31, 2006, Ms. Hext traveled from Texas to meet with several SimplexGrinnell attorneys, managers and New York City field workers to make a presentation concerning prevailing wages. PX 61 at 83-85. After her presentation, Ms. Hext asked every New York district office to provide her a list of 50 jobs and to identify whether they had been properly marked as a public or private site. PX 35. These jobs, and thousands of others, were not properly identified as public jobs to alert SimplexGrinnell to pay plaintiffs and the proposed class prevailing wages. PX 37; PX 56 at 71; PX 69 at 149; PX 64 at 78; PX 72 at 78-79.
As a result, each New York district office changed its time sheets to include (for the first time) a space on the sheets for workers to mark off whether they performed work on a public site on the particular day that they worked. PX 45. SimplexGrinnell called this new time sheet a daily project journal. It contained a “prevailing wage” column where plaintiffs and the class were instructed to check off “yes” or “no” and a space where plaintiffs and the class were instructed to provide a detailed description of the work they performed. PX 45. This was the first time a document used for payroll, rather than billing, included a place for workers to describe in detail their work. Id.

E. SimplexGrinnell’s Failure to Keep Adequate Records Regarding Prevailing Wages
New York law requires public contractors, such as defendant, to submit to the public agency it contracts with, a transcript of the original payroll record, also known as a certified payroll record, after it issues its first payroll on a public job and every thirty days thereafter. Subscribed and affirmed as true under the penalties of perjury, these records are kept to ensure

12

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 22 of 63 PageID #: 1517

that public contractors are held responsible for paying their laborers, workers and mechanics prevailing wages and benefits for those hours they work on public job sites. NYLL § 220 (3-a. a. (iii)).
New York Labor Law requires that these certified payroll records be preserved for three years from the date of completion of the work on the awarded contract. NYLL § 220 (3-a. a.). SimplexGrinnell failed to regularly submit or preserve certified payroll records documenting and subscribing as true the hourly (prevailing) wage rate and supplements paid to its workers who performed work on public job sites in New York as required by Labor Law Section 220(3-a. a). PX 64 at 167-68; PX 27; PX 49. Annexed to and part of the certified payroll is the certification page, which must be signed and certified by the employer as true. Aim’ee Bourgoin, SimplexGrinnell’s payroll administrator whose job it was to complete and sign the certification page, signed thousands of such pages without any knowledge of the wages paid to SimplexGrinnell’s workers or whether the workers were paid prevailing wages and benefits. PX 56 at 11, 31-35, 71, 91-96, 99-100; PX 51.
New York law also requires public contractors, such as SimplexGrinnell, to post in a prominent and accessible place on public job sites a legible statement of all prevailing wage rates and supplements as specified in the public contracts that are required to be paid. NYLL § 220 (3-a. a. (ii)). SimplexGrinnell failed to post information and notify its workers throughout New York State who worked on Office of Mental Health sites of the prevailing wage rates and benefits. PX 61 at 135:11 – 137:1. The NYC region’s manager of the OMH project, Marion Rivera, did not even know when prevailing wages should have been paid as late as mid-2008 when her deposition was taken. PX 68 at 64-65, 68-69. On company time sheets and pay stubs, there was no space prior to late 2006 for plaintiffs and class members to indicate they worked on

13

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 23 of 63 PageID #: 1518

a public job site and sought payment of prevailing wages and benefits. PX 72 at 113-14; PX 41; see PX 76.
On April 9, 2008, the New York State Department of Labor found SimplexGrinnell in violation of the law for failing to notify workers of the prevailing wage rates and benefits as required by New York Labor Law Section 220 (3-a. a.). PX 36; PX 61 at 134-36. The New York State Department of Labor also withheld $100,000.00 from SimplexGrinnell during the course of its investigation into the company’s failure to pay its laborers, workers and mechanics prevailing wages and supplements. PX 53.
F. SimplexGrinnell’s Electronic Data In the regular course of its business, SimplexGrinnell maintained several databases to keep track of the work done for their customers. Those were known as “ACE,” “LEGACY,” “Job Cost,” and “AS/400” (collectively, the “project databases”). SimplexGrinnell started to implement ACE in September of 2001 and was fully implemented in all district offices by August of 2006. PX 62 at 8. ACE (an acronym for “Achieving Customer Excellence”) was used to “track all customer interactions and transactions for the sales and service of the products we sell.” Id. at 7. This includes the local district office, customer name, project address, project county, the product type worked on, employee name, employee identification number, actual hours worked, the date of service, task type, problem code, and resolution code. See id. at 73. The “resolution code” is a numerical code that indicates the work actually performed on site. Id. at 66-67, 84-85. The system ensured that the time spent working on a task would be recorded in ACE. Id. at 96-97. The information given to the customer on the “service acknowledgment form” is also entered into the ACE system. Id. at 48-51. The LEGACY system preceded ACE and served the same function - as a centralized

14

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 24 of 63 PageID #: 1519

database to track all service transactions for all customers. Id. at 17; PX 56 at 102. Again, similar to ACE, LEGACY’s data fields include the local district name, the product type worked on, the date of the service, customer name, project name, project address, project county, employee name, straight time hours worked, and overtime hours worked. PX 25.
A separate database, “Job Cost,” tracks the work done on installation projects, as distinguished from service projects. PX 61 at 76 ; PX 62 at 19-20; PX 56 at 45-46. Job Cost’s data fields include project name, employee ID, employee name, the date of the work, and hours spent. PX 24.
The “AS/400” database (also known as CGC) included within its data fields project name, employee name, employee ID, week end date, total hours, and total overtime hours. PX 34. AS/400 was used prior to the Job Cost database coming into existence. PX 61 at 77.
In addition to the project databases, SimplexGrinnell maintained the Time Entry database. This database kept track of the hours the employee worked on each day, including data on the project the employee worked on, based on a paper time sheet filled out by the employee and input into the system. PX 57 at 12-17, PX 62 at 118-19, 120-22; see also PX 26. This data was input at the local district office, and then electronically delivered to the payroll department in Westminster, MA. There, the Time Entry data is fed into the payroll program called PeopleSoft, which has the employees’ tax and deduction information, and a paycheck is issued. PX 56 at 59-61.
G. New York Department of Labor Opinion Letter on Testing and Inspection. The New York Department of Labor, the administrative enforcement agency for the prevailing wage law, issued an opinion to SimplexGrinnell dated December 31, 2009, confirming that testing and inspection of fire systems are included as maintenance work under

15

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 25 of 63 PageID #: 1520

the prevailing wage law. PX 3. After considering a series of submissions and ex parte presentations by SimplexGrinnell, the Department opined that “public contracts for inspection and testing of fire systems do fall within the coverage of Article 8 [§ 220] of the New York State Labor Law;” more specifically, that “the testing of fire systems is included within the category of system maintenance and is, therefore, subject to the payment of prevailing wages.” Id. at 1, 3.
The Department of Labor determined: • Defendant’s electricians who install fire systems are, without dispute, laborers, workmen or mechanics under Section 220, • The nature of this work is “the same” as testing and inspection, and • Therefore “[e]mployees performing testing and inspection work on fire systems are properly categorized as laborers, workmen, or mechanics.” PX 3 at 2.
The Department concluded that “testing and inspection appear to be included…as integral parts of the maintenance of fire systems by employees working within your own company.” Id. at 3.
H. Damages Plaintiffs’ expert damages witness, David L. Crawford, Ph.D., analyzed data provided from defendant’s employee payroll and job project electronic files. From February 6, 2001 (from July 14, 2002 for sprinklerfitter damages) through December 31, 2009, for each class member, Dr. Crawford identified work on the public jobs, from the SimplexGrinnell job project data. PX 1; see Crawford Decl. From the payroll data, he determined the wage and benefit rates for class members, including regular and prevailing wages, and overtime. Then, from the project data identifying public work and from the New York prevailing wage schedules, he computed the difference between what the employee should have been paid and what the employee actually got paid, calculated the statutory interest, and subtracted payments made by SimplexGrinnell in

16

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 26 of 63 PageID #: 1521

the course of its “self-audit.”12 In conducting his study, Dr. Crawford used the electronic data files of SimplexGrinnell
referred to above—pay data in Time Entry (and, to a minor extent, in PeopleSoft), and project data in the Legacy, ACE, AS/400 and Job Cost systems. From these data, which he merged into a single data set, Dr. Crawford identified the public projects the proposed class members worked on, the number of hours spent working on public projects and the general work that they actually did. Crawford Decl.; PX 1.
Dr. Crawford obtained from defendant computerized lists of public jobs its employees worked on during the liability period. See PX 1 Ex. 2 (Public Job Lists Source Files). He extracted the records concerning these public jobs identified in defendant’s records in the Project Data, and forwarded a list of the remaining projects to plaintiffs’ counsel. From these remaining projects, plaintiffs’ counsel identified an additional 337 public projects, for a total of 13,408. Dr. Crawford used this master list, identified as “List of PublicProjectsIncluded.xls” (PX 2), as a basis for calculating the hours spent on public projects by the members of the proposed class.
Dr. Crawford used the prevailing wage and benefit rates from the 2001-2009 New York State and City Prevailing Wage Schedules for fire alarm and sprinkler work. PX 1 ¶ 52. The date the work was performed, the location of the work and the type of product associated with the work (to determine if the work was fire alarm or sprinkler work) were used to insure the proper prevailing wage and benefit rate. Crawford Decl.
With the above information, Dr. Crawford calculated, on a weekly basis, the difference between the public hours worked (from the Project data) for each class member, and the hours

12

As a result of investigations by the New York Department of Labor and the Suffolk County District

Attorney’s Office, SimplexGrinnell undertook a limited “self-audit” of its prevailing wage practices and made

payments to employees totaling $2.9 million. PX 61 at 196-99, 66-70; PX 47. Dr. Crawford deducted the audit

payments, with interest credit to defendant, from the damages. PX 1 Table 4.

17

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 27 of 63 PageID #: 1522
worked for which they were paid prevailing wages (from the Time/Payroll data). Interest was then added and any audit payments made by Defendant to each class member were subtracted, yielding total damages of $16,136,638 through December 31, 2009. See PX 1 Table 4 (List of each class member’s total damages).13
III. ARGUMENT--MOTION FOR CLASS CERTIFICATION Plaintiffs in this case respectfully seek certification under Federal Rule of Civil Procedure
23 of a class of all laborers, workmen and mechanics who furnished labor to SimplexGrinnell on non-federal public works projects in the State of New York at any time from February 6, 2001 until the final judgment in this matter, and who claim that they have not been paid prevailing wages and benefits as required by law (the “class”).14 Compl. ¶¶ 1, 7.
The class should be certified because, as courts have consistently recognized, unpaid prevailing wage claims such as theirs are ideal for classwide resolution. Further, the Rule 23 requirements are satisfied, including those of Rule 23(a)(1) and Rule 23(b)(3). Accordingly, as set forth more fully below, certification is warranted.
A. This Case, as a Prevailing Wage Case, is Perfectly Suited for Class Treatment
The class should be certified because their prevailing wage claims are perfectly suited for class treatment. This truism has been acknowledged explicitly and repeatedly by New York federal and state courts.

13

After the submission of his report and deposition, Dr. Crawford discovered a minor programming error that

would reduce the total damages to $15,991,174. Crawford Decl. ¶ 10.

14

The damages period for fire alarm work begins February 6, 2001, and for sprinkler work, July 14, 2002.

PX 1 ¶ 16. This difference is due to statutes of limitations. See July 14, 2008 minute entry.

18

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 28 of 63 PageID #: 1523

The New York Supreme Court and the Appellate Division for the First Department, which apply the same class certification requirements as this Court,15 have both observed that “the class action mechanism [is] the best way of adjudicating a controversy . . . where Plaintiffs are seeking payment of unpaid prevailing wages and supplemental benefits.” Pajaczek v. Cema Constr. Corp., 2008 WL 541298, at *2 (Sup. Ct. N.Y. Co. Feb. 21, 2008) (emphasis added). See also Pesantez v. Boyle Envtl. Servs., Inc., 673 N.Y.S.2d 659, 661 (1st Dep’t 1998) (same); Cardona v. Maramont Corp., 2009 WL 4026815 (Sup. Ct. N.Y. Co. Nov. 12, 2009) (same); Galdamez v. Biordi Constr. Corp., 2006 WL 296951, at *3 (Sup. Ct. N.Y. Co. Oct. 17, 2006).
The Southern District of New York has noted that “whether Defendants’ pay practices violated the NYLL [wage] provisions . . . are about the most perfect questions for class treatment.” Cuzco v. Orion Builders, Inc., 262 F.R.D. 325, 334 (S.D.N.Y. 2009) (quoting Iglesias-Mendoza v. LaBelle Farm, Inc., 239 F.R.D. 363, 373 (S.D.N.Y. 2007)) (emphasis added).
New York courts’ regard for prevailing wage claims as ideal for class treatment is evident from their frequent certification of prevailing wage classes. See, e.g., Cardona, 2009 WL 4026815 (certifying prevailing wage class and collecting cases that did the same); Barone v. Safway Steel Prods., Inc., 2005 WL 2009882 (E.D.N.Y. Aug. 23, 2005) (sole reported prevailing wage class certification decision in this Court, following this trend).
It is also evident from New York courts’ frequent certification of wage classes generally. See, e.g., Mendez v. Radec Corp., 260 F.R.D. 38, 54 (W.D.N.Y. 2009) (“Mendez II”) (“My conclusion that class certification is proper [for plaintiffs seeking lost wages] is in accord with many other decisions from within this circuit.”) (emphasis added) (collecting Second Circuit

15

See N.Y. C.P.L.R. § 901 (New York equivalent to Fed. R. Civ. P. 23); Pajaczek, 2008 WL 541298, at *2;

Pesantez. 673 N.Y.S.2d at 660-61 (both cited in full infra, applying CPLR § 901).

19

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 29 of 63 PageID #: 1524

cases); Levinson v. About.com, 2009 WL 1026021 (S.D.N.Y. Apr. 13, 2009); Niemic v. Ann Bendick Realty, 2007 WL 5157027 (E.D.N.Y. Apr. 23, 2008); Dziennik v. Sealift, Inc., 2007 WL 1500080 (E.D.N.Y. May 29, 2007); see also the numerous wage class action cases cited throughout this memorandum.
In keeping with this well-established precedent, the class should be certified here. B. Rule 23 is Satisfied
1. The Rule 23 Requirements “[I]t seems beyond peradventure that the Second Circuit’s general preference is for granting rather than denying class certification.” Gortat v. Capala Bros., Inc., 2009 WL 3347091, at *2 (E.D.N.Y. Oct. 16, 2009) (Gold, J.) (“Gortat II”) (quoting Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 361-62 (E.D.N.Y. 2009) (“Gortat I”)). Accordingly, “[t]he Second Circuit has emphasized that Rule 23 should be given liberal rather than restrictive construction . . . .” Id. (quoting Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997)). See also Jankowski v. Castaldi, 2006 WL 118973, at *1 (E.D.N.Y. Jan. 13, 2006) (quoting Marisol A., 126 F.3d at 377) (alteration omitted) (courts considering class certification “are to adopt a standard of flexibility”). Rule 23 permits a class to be certified when it satisfies the elements of Rule 23(a) and one of the subsections of Rule 23(b). See In re Initial Pub. Offerings Secs. Litig., 471 F.3d 24, 32 (2d Cir. 2006) (“IPO”). The Rule 23(a) elements are: (1) the class is too numerous for joinder to be practicable; (2) the class shares at least one common question of law or fact; (3) the named plaintiffs’ claims are typical of the class; and (4) the named plaintiffs will adequately represent the class. Id. Rule 23(b)(3), under which plaintiffs seek certification here, requires “predominance, i.e., law or fact questions common to the class predominate over questions

20

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 30 of 63 PageID #: 1525

affecting individual members, and superiority, i.e., class action is superior to other methods.” Id. All of these requirements are satisfied here.
2. The Class Satisfies Rule 23(a) a. The Class is Sufficiently Numerous
“Courts in the Second Circuit presume numerosity when the putative class has at least forty members.” Gortat II, 2009 WL 3347091, at *3 (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995)). SimplexGrinnell’s own data and testimony show that the class has well over 400 members. See PX 1 Table 4 (listing more than 600 class members, all identified from SimplexGrinnell data); PX 16 ¶ 5 (Since “February 2, 2001 . . . over 400 different individuals . . . performed electrical work on public works jobs covered by the Complaint.”). Therefore, numerosity is satisfied. See, e.g., Gortat II, 2009 WL 3347091, at *3 (certifying class of 74); Iglesias-Mendoza, 239 F.R.D. at 370 (125 members “easily satisfy the numerosity requirement”).16
b. Questions of Law and Fact are Common Commonality requires only one common issue of law or fact. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 166-67 (2d Cir. 1987); Barone, 2005 WL 2009882, at *4; see also Haddock v. Nationwide Fin. Servs., Inc., 262 F.R.D. 97, 116 (D. Conn. 2009) (“Commonality is established so long as the plaintiffs can identify some unifying thread among the members’ claims.”) (quotation and citation omitted). Plaintiffs need not show that all class members’ claims are identical. Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 156 (S.D.N.Y. 2008). Any differences among class members,

16

The factors demonstrating superiority under Rule 23(a)(4) also demonstrate numerosity. See infra;

Trinidad v. Breakaway Courier Sys., Inc., 2007 WL 103073, at *8 (S.D.N.Y. Jan. 12, 2007) (superiority and

numerosity are “closely related,” and superiority was found for the same reasons as numerosity).

21

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 31 of 63 PageID #: 1526
“while arguably relevant as defenses to liability, do not change the fact that [a] class action raises the same basic claim and shares common questions of law.” Mack v. Suffolk County, 191 F.R.D. 16, 23 (D. Mass. 2000) (certifying class despite “varying defenses to liability which may be raised regarding particular individuals”). A class should be certified where the class claims arise “from a common nucleus of operative fact regardless of whether the underlying facts fluctuate over the class period and vary as to individual claimants.” Haywood v. Barnes, 109 F.R.D. 568, 577 (E.D.N.C. 1986); see also Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D 67, 74 (E.D.N.Y. 2004) (claims arising from the interpretation of key terms that repeatedly appear in a contract show commonality and are also perfectly suited for class certification).
The requisite commonality is present here. Plaintiffs and the class allege a common wrong, i.e., that SimplexGrinnell failed to honor its contractual obligation to pay them, as third party beneficiaries, prevailing wages as required by law. Compl. ¶ 19; see PX 15, 17, 18. This alone is enough to satisfy Rule 23(a)(2). See Barone, 2005 WL 2009882, at *4 (commonality satisfied where “plaintiffs allege a common wrong -- that Safway failed to pay the prevailing wages and supplemental benefits required for public works contracts”); Haddock, 262 F.R.D. at 117 (“If one or more Class members brought suit individually, they would raise the same legal claim, that is, that Nationwide breached its fiduciary duty [in violation of ERISA] . . . . Thus, the commonality requirement is met.”); Barragan v. Evanger’s Dog & Cat Food Co., 259 F.R.D. 330, 334 (N.D. Ill. 2009) (commonality satisfied where one “alleged common employment practice [i.e., denying overtime pay] represents a sufficient common issue of law or fact”).
In addition, as plaintiffs allege and the evidence shows, SimplexGrinnell’s wrong arose from a common factual background, e.g.: (1) plaintiffs and the class did the same public work for

22

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 32 of 63 PageID #: 1527

SimplexGrinnell;17 (2) plaintiffs and the class performed the public work pursuant to contracts
between SimplexGrinnell and government agencies;18 and (3) plaintiffs and the class all were
subject to the same payroll procedures.19 These facts show that commonality is satisfied. See
Koss v. Wackenhut Corp., 2009 WL 928087, at *6 (S.D.N.Y. Mar. 30, 2009) (where “[e]ach
potential class member is or was a security officer employed by [defendant], . . . allegedly
promised a [] Bonus . . . [and] never received [it] . . . plaintiffs’ claims arise from a single set of
operative facts” such that commonality was present); see also Rodriguez v. Hayes, 591 F.3d.
1105, 1122 (9th Cir. 2010) (citing, inter alia, Marisol A., 126 F.3d 372) (“[T]he commonality
requirement asks us to look only for . . . a common core of salient facts.”).
Commonality also is satisfied because plaintiffs and the class share several specific
questions of fact and law, such as:
• whether SimplexGrinnell entered certain contracts with government agencies to perform work on public sites;
• whether SimplexGrinnell’s government contracts required it to pay prevailing wages to its workers;
• whether plaintiffs and the class performed work on public sites within the meaning the New York prevailing wage law;
• whether SimplexGrinnell is required to pay plaintiffs and the class prevailing wages for the testing and inspection work they perform on public sites;
• whether plaintiffs’ and the class’ work for SimplexGrinnell required payment of prevailing wages;
• what are the prevailing wage and benefit rates to which plaintiffs and the class are entitled for their work on public sites for SimplexGrinnell;
• whether SimplexGrinnell paid plaintiffs and the class the wages they were due; and • whether SimplexGrinnell is liable to plaintiffs and the class can sue SimplexGrinnell under a
third-party beneficiary contract theory.
Numerous plaintiff classes have been certified for sharing these very same questions.

17

Compl. ¶ 18; see PX 64 at 62-64, 92; PX 72 at 148; PX 56 at 72-74; PX 63 at 36-40.

18

Compl. ¶ 18; see PX 64 at 67, 183-86; PX 61 at 75-76; PX 63 at 25; PX 60 at 53; see also PX 16 ¶ 5

(“over 400 . . . individuals have performed electrical work for SimplexGrinnell in the State of New York . . . on

public works jobs covered by the Complaint”).

19

See PX 64 at 71-72; 89-90; 125-29; PX 56 at 59-61, 82.

23

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 33 of 63 PageID #: 1528

See, e.g., Pajaczek, 2008 WL 541298, at *3 (prevailing wage case); Barone, 2005 WL 2009882, at *4 (same).20
The different limitations periods for fire alarm and sprinkler work will not undermine commonality. See Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D. 67, 78 (E.D.N.Y. 2004) (“Courts have been nearly unanimous in holding that possible differences in the application of a statute of limitations . . . does not preclude certification[.]”) (quotation, citation and alteration omitted); see also Lee v. ABC Carpet & Home, 236 F.R.D. 193, 203 (S.D.N.Y. 2005). Nor will differences in work performed, schedules, or rates of pay. See Noble, 224 F.R.D. at 343 (commonality satisfied despite “differences among employees -- i.e., responsibilities, hours worked, and salaries”); Gortat I, 257 F.R.D. at 362 (rejecting defendant’s argument that “individualized questions regarding the number of hours that a specific employee worked” defeat certification).
Individualized defenses that SimplexGrinnell may raise also do not thwart commonality. See In re WRT Energy Secs. Litig., 2006 WL 2020947, at *2 (S.D.N.Y. July 13, 2006) (finding commonality despite individualized defenses and noting that such defenses will not “defeat . . . commonality”). Indeed, they may support commonality because their disposition is a common issue of law. See Dupler v. Costco Wholesale Corp., 249 F.R.D. 29, 45 (E.D.N.Y. 2008) (certifying class over defendants’ objection regarding individualized defenses because those defenses actually “provide[d] an additional link of commonality between the class members”) (quotation and citation omitted). For example, SimplexGrinnell’s expected defense that testing and inspecting are not included in the New York prevailing wage law raises a common issue

20

See also Torres v. Gristede’s Operating Corp., 2006 WL 2819730, at *12 (S.D.N.Y. Sept. 29, 2006) (in

overtime case, common questions warranting certification included “whether Defendants have failed to compensate

class members”); Bolanos, 212 F.R.D. at 153-54 (same).

24

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 34 of 63 PageID #: 1529

because as most if not all of the class performed such work. See PX 43; PX 5; PX 59 at 7; PX 15 at 4, 10; PX 65 at 52-54; PX 13 ¶ 19; PX 66 at 19, 25, 30, 39-40, 42-43.
The same goes for SimplexGrinnell’s other potential defenses, such as that the class is not the intended beneficiary of the public contracts, and that plaintiffs’ damages methodology is inaccurate. See id.; see also Hnot v. Willis Group Holdings Ltd., 241 F.R.D. 204, 209 (S.D.N.Y. 2007) (employer’s defense regarding its salary decisionmaking process “actually supported a finding of commonality” as it reflected a “common practice”) (emphasis in original). Therefore, commonality is satisfied.
c. Plaintiffs’ Claims are Typical of the Class’ Claims Rule 23(a)(3) “requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Gortat II, 2009 WL 3347091, at *6 (quoting Marisol A., 126 F.3d at 376). “[T]he typicality requirement is permissive and requires only that the representative’s claims are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Rodriguez, 591 F.3d at 1124 (internal quotation omitted) (citing, inter alia, Marisol A., 126 F.3d at 326). See also Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 155 (S.D.N.Y. 2002) (“Since the claims only need to share the same essential characteristics, and need not be identical, the typicality requirement is not highly demanding.”) (quotation and citation omitted). Here, typicality is satisfied for the same reasons as commonality. See Gortat I, 2009 WL 3347091, at *6 (quoting Marisol A., 126 F.3d at 376) (“The commonality and typicality requirements tend to merge into one another, so that similar considerations animate the analysis of each.”). That is, plaintiffs’ and class members’ claims arise from the same core set of facts.

25

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 35 of 63 PageID #: 1530
See supra. And, plaintiffs and the class make the same claims and legal arguments, including: (1) they all performed fire alarm and sprinkler work on non-federal public work sites during the relevant period; (2) SimplexGrinnell is required by contract and under the New York prevailing wage law to pay them prevailing wages for all their public work; and (3) SimplexGrinnell breached the contract for which they were the third party beneficiaries and violated the New York prevailing wage law by failing to pay them prevailing wages. See supra (identifying and citing evidence regarding common factual and legal questions).21
For these reasons, typicality is present and the class should be certified. See Gortat II, 2009 WL 3347091, at *6 (finding typicality where “[n]amed plaintiffs allege that they each performed similar work for defendants and that, like the other members of the class, they were never compensated for all the hours they worked as a result of Defendants’ common scheme to deprive employees of pay for all hours worked”) (quotation omitted).
d. The Class is Adequately Represented Adequacy under Rule 23(a)(4) “typically entails inquiry as to whether: 1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 99 (2d Cir. 2007) (quotation and citation omitted). See also Damassia., 250 F.R.D. at 158 (applying same inquiry in wage-and-hour context); Fed. R. Civ. P. 23(g) (considering lawyers’ qualifications in appointing class counsel).

21

Further, plaintiffs’ claims are typical of the class’ claims regardless of the part of the state in which they

worked. Investigations into SimplexGrinnell’s wage practices throughout the state (Westchester, Newburgh,

Syracuse, Long Island and New York City) consistently revealed failures to pay prevailing wages. See PX 47; PX

61 at 43:4-46:3, 72:8-19, 75:24-76:5, 78:20-21; PX 63 at 69:13-72:5; Trinidad, 2007 WL 103073, at *5 (“When it

is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to

be represented, the typicality requirement is usually met . . . .”).

26

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 36 of 63 PageID #: 1531
Here, plaintiffs’ interests are not antagonistic to the class. Plaintiffs and the class all allege the same wrongs and seek the same relief. See Barone, 2005 WL 2009882, at *5 (prevailing wage plaintiffs were adequate where they “seek the same relief as the rest of the class”) (citing Marisol A., 126 F.3d at 378); see also Koss, 2009 WL 928087, at *8 (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997)). Further, nothing suggests any conflicts between plaintiffs and the class, or that plaintiffs will not adequately and aggressively represent the class. See, e.g., Cardona, 2009 WL 4026815 (noting, in certifying prevailing wage class, “nothing in the record to indicate that plaintiffs and their counsel could not fairly and adequately represent the class”).
In addition, because commonality and typicality are satisfied, adequacy is satisfied. See Damassia, 250 F.R.D. at 158 (“[t]he fact that plaintiffs’ claims are typical of the class is strong evidence that their interests are not antagonistic to those of the class”); see also Lee, 236 F.R.D. at 204 (S.D.N.Y. 2006) (same); Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 87 (S.D.N.Y. 2001) (same).
Finally, plaintiffs’ counsel are qualified, experienced and able to conduct this litigation.22 See Lee, 236 F.R.D. at 204 (“based on the past experiences and current conduct of plaintiff’s counsel, [] they are entirely capable of conducting the instant litigation.”). Therefore, adequacy is present, and the class should be certified.

22

Beranbaum Menken has substantial class action experience and has represented workers in numerous

wage-and-hour cases before this Court and others. PX 31. Constantine Cannon previously served before this Court

as lead counsel for the plaintiff class in In re Visa Check/MasterMoney Antitrust Litigation, 297 F. Supp. 2d 503

(E.D.N.Y. 2003) (Gleeson, J.), aff’d, 396 F.3d 96 (2d Cir. 2005). See id. at 524 (“a premiere plaintiffs’ litigation

firm”). The lead Constantine Cannon attorney on this case, Raymond C. Fay, has extensive experience in

employment litigation of all types and at all judicial levels. PX 32. Both firms have done extensive work

investigating this case and will continue to devote significant resources to representing the Class. Coughlin Decl.

For these reasons, plaintiffs respectfully request that Beranbaum Menken and Constantine Cannon be appointed co-

lead Class Counsel pursuant to Rule 23(g).

27

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 37 of 63 PageID #: 1532

3. The Class Satisfies Rule 23(b)(3)

Certification is appropriate under Rule 23(b)(3) because (1) “questions of law or fact common to class members predominate” over questions affecting only individual class members and (2) “a class action is superior to other available methods for fairly and efficiently adjudicating [this] controversy.” Fed. R. Civ. P. 23(b)(3).

a. Common Questions Predominate Predominance is satisfied when “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, predominate over those issues that are subject only to individualized proof.” In re Visa Check / MasterMoney Antitrust Litig., 280 F.3d 126, 136 (2d Cir. 2001) (quotation, citation and alteration omitted); Gortat II, 2009 WL 3347091, at *7 (same). “When determining whether common questions predominate courts focus on the liability issue[,] and if the liability issue is common to the class, common questions are held to predominate[.]” Bolanos, 212 F.R.D. at 157-58 (quotation, citation and alteration omitted). Issues “predominate” when they are fundamental to the claim. See Koss, 2009 WL 928087, at *11 (“While some degree of individualized analysis will be necessary . . . the fundamental factual issue -- whether [bonuses should have been] paid . . . -- is subject to generalized proof” therefore predominance was satisfied). In wage cases such as this, the fundamental issues are whether the employer paid its employees properly, therefore predominance generally is found. See id.; Pesantez, 673 N.Y.S.2d at 660 (“the nature of the claims [for failure to pay prevailing wages] is such as to indicate a predominance of common issues of law and fact”); see also Noble, 224 F.R.D. at 345 (where “the gravamen of [plaintiffs’] claim is that defendants . . . deprived employees of . . . overtime pay[,] [a]lthough [some]

28

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 38 of 63 PageID #: 1533

determinations . . . will require individualized findings, common liability issues otherwise predominate”).
As with commonality, predominance will not be defeated by such factual variations as job titles, hours, and locations of work. See Gortat II, 2009 WL 3347091, at *7 (differences in position, hours and method of payment “do not predominate over the main issue: . . .that defendants paid all of these employees for fewer hours than they claim to have worked”) (citing Gortat I, 257 F.R.D. at 362, which found defendants’ arguments regarding these “distinctions” “not persuasive”); Bolanos, 212 F.R.D. at 157-58 (rejecting defendant’s argument that “each class member must individually prove actual overtime worked in the unique circumstances of his or her position, . . . [location,] time and place” because plaintiffs’ claims are based on alleged across-the-board deprivation of overtime wages[,]” therefore predominance was satisfied); see also Gonzalez v. Zito Racing Stable Inc., 2008 WL 941643 at *7 (E.D.N.Y. Mar. 31, 2008) (“some factual variation among the circumstances of the class members is inevitable and does not defeat the predominance requirement”).
Individualized defenses also will not defeat predominance. Visa Check, 280 F.3d at 139 (“the fact that a defense may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones”) (quotation and citation omitted); Mendez v. Radec Corp., 232 F.R.D. 78, 92 (W.D.N.Y. 2005) (“Mendez I”); Jankowski, 2006 WL 118973, at *4. Nor will differences in damages. See Barone, 2005 WL 2009882, at *5; Mar. 25, 2009 Hr’g Tr. at 16 (SimplexGrinnell counsel acknowledging that damages differences cannot preclude certification).
SimplexGrinnell may argue that individual claims predominate because determining class membership requires examining individualized hardcopy employment records (e.g., pay

29

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 39 of 63 PageID #: 1534

stubs and service reports). This argument fails. The electronic records that SimplexGrinnell produced to plaintiffs identify, for the entire damages period: (a) all SimplexGrinnell employees who worked on public sites in New York; (b) the sites on which they worked; (c) the nature of their work; (d) the dates and hours they worked; and (e) the wages and benefits they were paid. See Crawford Decl.23 Dr. Crawford used those electronic records, together with the job classification and wage rate information in the State and City Prevailing Wage Schedules, to identify the Class members and calculate their damages. See PX1 ¶¶ 51-57. Specifically, Dr. Crawford calculated, on a weekly basis, the difference between each class member’s actual wages and benefits received and the wages and benefits they should have received had prevailing rates appropriately been applied. PX 1 Table 4.
Courts have consistently held that the availability of electronic records such as those produced here favors certification. See Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003) (noting, in certifying class, that “individual factual determinations can be accomplished using computer records”); see also Haddock, 262 F.R.D. at 128 (where defendant “produced data demonstrating the amount of [wrongful] payments . . . determining the appropriate [recovery] for each Class member requires a mechanical calculation using readily available data” such that certification was appropriate); Jankowski, 2006 WL 118973, at *5 (reasons for certification included fact that “whether an individual worked [hours] for which they were not paid [proper] wages. . . can be verified by reference to objective documentation, including employee payroll records”).
As demonstrated earlier, numerous common questions of law and fact exist here. These common questions are central to the “common wrong” alleged, i.e., that SimplexGrinnell failed

23

See also NYLL § 220(3-a. a. (iii)) (requiring government contractors to maintain pay records that include

specific information, in order “to adequately enforce the provisions of this article”).

30

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 40 of 63 PageID #: 1535

to pay plaintiffs prevailing wages. See id.; Pajaczek, 2008 WL 541298, at *3 (certifying prevailing wage class because, inter alia, “questions of law and fact common to the class [] predominate over questions affecting only individual class members, namely, that [defendant] failed to ensure payment of the prevailing rates of wages”). Moreover, they outweigh any individual questions that may exist. See Pesantez, 673 N.Y.S.2d at 660; Trinidad, 2007 WL 103073, at *8 (predominance satisfied where “resolution of the common questions [e.g., regarding compensation and records of work] . . . are more substantial for each class member’s case than the issues subject only to individualized proof”); Mendez I, 232 F.R.D. at 93 (where plaintiffs challenge “policies, which allegedly have been applied in a more or less uniform fashion to [all] employees[,] . . . [common issues] ‘predominate over those issues that are subject only to individualized proof’”) (quoting Visa Check, 280 F.3d at 136). Therefore, predominance is present and the class should be certified.
b. A Class Action is the Superior Method for Resolving This Dispute Rule 23(b)(3) also is satisfied because a class action is the superior method for resolving plaintiffs’ and the class’ claims. First, as discussed supra, courts have explicitly and repeatedly held that “the class action mechanism [is] the best way of adjudicating a controversy . . . where plaintiffs are seeking payment of unpaid prevailing wages and supplemental benefits.” Pajaczek, 2008 WL 541298, at *2 (emphasis added). See Pesantez, 673 N.Y.S.2d at 12 (same); see also Barone, 2005 WL 2009882, at *3 (class action may be “the only avenue by which the individual [prevailing wage] plaintiffs are able to seek legal redress”). Second, although the State Department of Labor can prosecute employers who fail to pay prevailing wages and award unpaid wages to workers, it can only reach back two years. NYLL §

31

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 41 of 63 PageID #: 1536

220-b(2)(a)(1). Therefore, an administrative proceeding is an unsatisfactory alternative for the class, given that they can seek unpaid wages in this Court under a contract theory going back six years. N.Y. C.P.L.R. § 213.
Third, class members have little interest “in individually controlling . . . separate actions.” Fed. R. Civ. P. 23(b)(3)(A). Many of them still are employed by SimplexGrinnell, thus “the concern for possible employer reprisal action exists” if they institute their own lawsuits. See Trinidad, 2007 WL 103073, at *9 (quotation and citation omitted); Gortat I, 257 F.R.D. at 36263 (same); see also Alcantara v. CNA Mgmt., Inc., 2009 WL 4667091, at *4 (S.D.N.Y. Dec. 8, 2009); Coughlin Decl. Further, many of them seek relatively modest damages that may not justify the cost of individual litigation. See Barone, 2005 WL 2009882, at *3; Pesantez, 673 N.Y.S.2d at 661.
Fourth, continuing this litigation in this forum is desirable. Fed. R. Civ. P. 23(b)(3)(C). This Court has presided over plaintiffs’ claims since 2007, during which time it likely has become “intimately familiar with [the case’s] intricacies . . . having managed discovery and having ruled on various motions.” See Bolanos, 212 F.R.D. at 158 (finding superiority on this basis). See also Strip Search, 461 F.3d at 230 (superiority present where “this action already has progressed substantially”). Further, “concentrating the litigation in [this] forum simplifies and streamlines the litigation process.” See id. finding superiority on this ground); see also Barone, 2005 WL 2009882, at *3 (certifying prevailing wage class to “save [] considerable time and expense”).24 And deciding all class members’ claims in this Court “would eliminate the risk that

24

Indeed, efficiency benefits such as these are among the main reasons courts so frequently certify prevailing

wage and other wage plaintiff classes. See, e.g., Barone, 2005 WL 2009882 at *6 (noting, in certifying prevailing

wage class, that doing so will “serve judicial economy by avoiding the time and expense associated with a separate

adjudication of each plaintiff's claims”); Cardona, 2009 WL 4026815 (“it would be impractical and inefficient to

pursue independent actions for the [prevailing] wages and benefits owed”); see generally discussion supra of how

prevailing wage claims are perfectly suited for class treatment and cases cited therein.

32

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 42 of 63 PageID #: 1537
[common] questions . . . will be decided differently in [different] lawsuit[s].” See Torres, 2006 WL 2819730, at *16 (finding superiority on this ground).
Finally, a class action is superior because it would be manageable. See Fed. R. Civ. P. 23(b)(3)(D). As demonstrated supra, the many common questions in this case predominate over any individual questions. See Strip Search, 461 F.3d at 230 (“we perceive little difficulty in managing a class action of liability, especially since . . . any individualized inquiries will be few and far between”). To the extent that individual issues exist, “most of [them] can be resolved by [] documentary evidence[,]” particularly SimplexGrinnell’s electronic records. See Pesantez, 673 N.Y.2d at 661; see also Haddock, 262 F.R.D. at 128-29 (where defendant “produced data demonstrating the amount of [wrongful] revenue sharing payments . . . determining the appropriate figure [of disgorgement] for each class member requires a mechanical calculation using readily available data[,]” therefore class action was manageable). Individual issues also can be managed through such “tools” as “bifurcation . . . and appointment of a magistrate judge or special master to proceed over individual damages proceedings . . . .” Mendez, 232 F.R.D. at 95 (quoting In re Visa Check, 280 F.3d at 141).25
For all of these reasons, a class action is the superior method for adjudicating this case. Therefore, the class should be certified.

25

Even if a class action were deemed unmanageable here, that would be “an insufficient reason for denying

class certification.” Mendez I, 232 F.R.D. at 93 (citing, inter alia, In re Visa Check for proposition that “dismissal

for management reasons is never favored”) (additional citations omitted).

33

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 43 of 63 PageID #: 1538

IV. ARGUMENT--MOTION FOR SUMMARY JUDGMENT A. The Applicable Law and Legal Standards
1. The New York Prevailing Wage Law Requires the Payment of Prevailing Wages to Laborers, Workmen and Mechanics on Public Works
New York Labor Law § 220 requires the payment of a “prevailing rate of wage” (§ 220(5)) to “laborers, workmen or mechanics” for employment on “public works” (§ 220(3)(a)) contracted with “the state or a public benefit corporation or a municipal corporation or a commission appointed pursuant to law” (§ 220(2-a)). The prevailing wage rate is set by the New York Department of Labor annually, by reference to wages “in the same trade or occupation in the locality where the work is being performed.” § 220(5)(a). The law provides: “The wages to be paid for a legal day’s work, as hereinbefore defined, to laborers, workmen or mechanics upon such public works, shall not be less than the prevailing rate of wages….” § 220(3)(a).
Employees on public works must be paid, in addition to prevailing wages, “supplements” by reference to “prevailing practices in the locality.” § 220(3)(b), (5)(b) and (c). Supplements include non-wage fringe benefits, such as “health, welfare, non-occupational disability, retirement, vacation benefits, holiday pay[,] life insurance, and apprenticeship training.” § 220(5)(b). Employees must also be paid, for overtime work in excess of eight hours per day and five days per week, “a premium wage commensurate with the premium wages prevailing in the area in which the work is performed.” § 220(2).
Public works contracts include “reconstruction and repair of any such public work.” § 220(3)(c). “Repair” of public works includes maintenance of those public works. Tenalp Constr. Co. v. Roberts, 532 N.Y.S.2d 801, 804 (2d Dep’t 1989) (“an analysis of the Labor Law reveals that the legislators were interested in protecting that specific portion of the work force

34

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 44 of 63 PageID #: 1539

which is involved in the construction, replacement, maintenance and repair of public works”) (citation omitted). The prevailing wage law contains various provisions regarding the content and administration of such contracts. The key mandate is: “Such contracts shall contain a provision that each laborer, workman or mechanic, employed by such contractor, subcontractor or other person about or upon such public work, shall be paid the wages herein provided.” § 220(3)(a).
In addition, the prevailing wage law has specific reporting, record-keeping, and notice requirements. First, the contracting employer must keep and report, by sworn statement under penalty of perjury, a certified copy of its public works payroll every thirty days, in a form “as may be deemed necessary to adequately enforce the provisions of this article.” § 220(3-a)(a)(iii). Second, the contracting employer must prominently post in the workplace, in large type, the “Prevailing Rate of Wages” setting forth the prevailing wages and supplements for the various classes of laborers, workers or mechanics employed on the public work. § 220(3-a)(a)(ii). Third, the contracting employer must notify all employees in writing of the prevailing rate of wage for their job classification: “Such notification shall be given to every laborer, worker or mechanic on their first pay stub and with every pay stub thereafter.” Id. And at the beginning of the contract and annually thereafter the employer must notify the employees in writing of their right to contact the state agency contracting officer to air complaints about not being paid the correct prevailing wages and supplements. Id.

2. Courts’ Construction of Prevailing Wage Law Favors The Entry of Summary Judgment to Plaintiffs

New York courts hold that the prevailing wage law is remedial legislation to be construed

liberally in favor of the workers whom it is designed to protect. “The Labor Law's prevailing

wage requirement reflects a strong public policy in this State and the statute is to be liberally

35

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 45 of 63 PageID #: 1540

construed to effectuate its beneficent purposes.” Bridgestone/Firestone, Inc. v. Hartnett, 572 N.Y.S.2d 770, 772 (3d Dep’t 1991) (citation omitted). See also Bucci v. Vill. of Port Chester, 292 N.Y.S.2d 393, 397 (1968) (“[S]ection 220 must be construed with the liberality needed to carry out its beneficent purposes”); Austin v. City of N.Y., 258 N.Y. 113, 117 (1932) (“The present statute is an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen and mechanics. It is to be interpreted with the degree of liberality essential to the attainment of the end in view.”)
The prevailing wage law’s liberal construction and protective purpose, as well as longsettled principles of contract law, lead courts to enforce the law even when the contracting agencies and employers do not adhere to its provisions in their contracts. Long ago the Court of Appeals stated that Section 220 “governs the contract and the rights of the parties, whether actually incorporated into the writing or not, since all contracts are assumed to be made with a view to existing laws on the subject.” Fata v. S.A. Healy Co., 289 N.Y. 401, 406 (1943). See also Twin State CCS Corp. v. Roberts, 72 N.Y.2d 897, 899 (1988) (“the failure to annex the PRS [prevailing rate schedule] to the work specifications did not relieve petitioner of its obligation to pay prevailing wages”).
Another important principle of construction relates to the scope of work and type of worker covered by the prevailing wage law. The statute defines neither “public work” nor “laborers, workmen or mechanics.” However, consistent with the broad, remedial purposes of the statute, the courts have construed these terms liberally, and the same liberal construction should govern the disposition of the instant motion in favor of plaintiffs here. “Public work” includes “construction, replacement, maintenance, and repair of public works.” Tenalp, 532 N.Y.S.2d at 804 (quoting Varsity Transit v. Saporita, 98 Misc. 2d 255, 259, 260, aff’d, 48

36

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 46 of 63 PageID #: 1541

N.Y.2d 910 (1979)); see also Miele v. Joseph, 113 N.Y.S.2d 689, aff’d, 305 N.Y. 667 (1953) (sign painters doing “public work”). A broad construction of the phrase “laborers, workmen or mechanics” is also supported by Section 220(4), which sets forth certain workers who are excluded from the statute.
In determining whether an employee is a covered “laborer, workman or mechanic,” “[j]ob titles are not controlling.” Rather, “the pivotal question is the nature of the work actually performed.” Tenalp, 532 N.Y.S.2d at 803, 804 (quoting Matter of Kelly v. Beame, 15 N.Y.2d 103, 109 (1965)). Thus, workers with the title of “foreman” or “supervisor” are not excluded from the law’s coverage on the basis of those titles alone. Austin, 258 N.Y. at 115-16 (“His duties, though they put him in a grade above his fellows, were so close akin to theirs, so predominantly physical in content and attendant risks, that he was still in the same genus, the broadly inclusive class of ‘workmen,’ though, perhaps, in a different species…. If the plaintiff, while serving as a foreman, was still within the trade, he was still within the statute.”). The New York law does not contain exemptions for various classifications of work like those found in federal wage and hour law. Tenalp, 532 N.Y.S.2d at 804-05; see PX 3.

3. Plaintiffs May Recover For Unpaid Prevailing Wages as Third Party Beneficiaries of Defendant’s Government Contracts

New York courts long have held that employees may recover as third party beneficiaries

in a breach of contract action if the employer fails to pay the wages and supplements mandated

by the New York prevailing wage law. In Fata v. S.A. Healy Co., 289 N.Y. 401 (1943), the

Court of Appeals held that the workers had a common law contract claim even though the

prevailing wage law had its own administrative enforcement mechanism. The court held that

“where a valid statute requires the insertion of provisions intended for the protection of laborers

or other groups in contracts relating to matters which are subject to regulation by the State,” a

37

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 47 of 63 PageID #: 1542

“contractual obligation is created which may be enforced by action brought by one of the group for whose benefit the provisions have been inserted.” 289 N.Y. at 406. See also Wright v. Herb Wright Stucco, Inc., 50 N.Y.2d 837 (1980) (approving dissent below, reported at 422 N.Y.S.2d 253, 254) (affirming that private right of action available alongside proceedings in Department of Labor).
More recently, the Court of Appeals reviewed the history of third party beneficiary actions, observing that, as a matter of New York law, “the fact that the contractual provisions at issue were inserted in order to comply with statutes does not alter plaintiffs’ status as third-party beneficiaries.” Cox v. NAP Constr. Co., 10 N.Y.3d 592, 602 (2008). The court quoted Strong v. American Fence Construction Co., 245 N.Y. 48, 53 (1927) (Cardozo, C.J.): “A beneficiary of the promise, a laborer or materialman for whose protection it was given, has a right of action for the damages resulting from the breach (Lawrence v. Fox, 20 N.Y. 268; Seaver v. Ransom, 120 N.E. 639). The promise was exacted by the promise in fulfillment of a legal duty. It was exacted for the very purpose of assuring to the plaintiff and to others similarly situated the benefit of the security established by the statute.” Cox, 10 N.Y.3d at 602 (emphases in original).

4. Summary Judgment Standards

Summary judgment for the moving party “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). Summary judgment must be entered “against a party who fails to make a

38

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 48 of 63 PageID #: 1543

showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In such a situation, there is no genuine issue of material fact “since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322-23. Summary judgment may be rendered “on liability alone, even if there is a genuine issue on the amount of damages.” Fed. R. Civ. P. 56(d)(2).
B. SimplexGrinnell Has Violated Section 220 by Failing to Pay Plaintiffs and the Class Members Prevailing Wages for Work Performed On Public Job Sites

1. Plaintiffs Have Shown That SimplexGrinnell Has Entered Into Public Works Contracts Covered by the New York Prevailing Wage Law

Defendant has entered into numerous public works contracts in the State of New York

covered by the prevailing wage law over the course of the liability period in this case, from

February 2001 to the present. Some of the contracts contain the prevailing wage language and

schedules mandated to be incorporated by Section 220(3)(a), but many do not. This does not

matter, as the requirements of section 220 are incorporated into the contracts as a matter of law.

Fata, 289 N.Y. at 406. Thus, as a matter of law, defendant cannot perform public work without

entering into a contract governed by the prevailing wage law. The existence of the contracts at

issue here is shown by defendant’s electronic records that contain the names of nonfederal public

customers and projects for whom class members have performed work on public job sites, as

confirmed in the entries in defendant’s electronic project data. See Crawford Decl.; PX 2.

Production of the hundreds if not thousands of public works contracts is not necessary to prove

that they exist. See United States v. Jones, 958 F.2d 520, 521 (2d Cir. 1992) (best evidence rule

does not require admitting document at trial to prove existence of document; permitted 39

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 49 of 63 PageID #: 1544

admission of tax return transcript to prove existence of tax return) Although defendant would be hard-pressed to deny that the customers listed are not public entities covered by the prevailing wage law, the court can take judicial notice of their public status, see, e.g., McKernan v. City of N.Y. Civil Serv. Comm’n, 127 Misc. 2d 946, 955 (Sup. Ct. N.Y. Co. 1985) (court took judicial notice of departmental arms of New York City government), and plaintiffs hereby request that the court do so. Fed. R. Evid. 201(b).26
A similar rationale applies to the contents of the contracts. Contrary to the expected contention of defendant, plaintiffs do not have to produce the hundreds or thousands of public works contracts here, because the relevant content of those contracts is ordained as a matter of law, irrespective of defendant’s compliance vel non with the requirement to include the applicable prevailing wages in the contracts themselves. Stated another way, plaintiffs’ proof of the existence of the contracts through defendant’s electronic records, coupled with the legal requirement that each of those contracts must embody the obligation to pay prevailing wages for public work, provide the evidentiary basis for defendant’s contractual obligation to pay prevailing wages on the public work conducted by the plaintiff class.
A review of some of the public works contracts produced by defendant confirms plaintiffs’ contractual rights to be paid prevailing wages required under Section 220. For example, defendant’s largest public works contract is the ten-year, base charge $50.0 million contract with the New York State Office of Mental Health to provide inspection, testing, maintenance, repair and replacement for myriad fire alarm and sprinkler systems and associated devices at facilities statewide. PX 10. That contract contains the obligation to pay prevailing wages in a “standard clause” appendix: “If this is a public work contract covered by Article 8 of

26

If there is any question about the status of any of the 13,000 plus entries on the public customer list,

plaintiffs request that the court allow them to supply additional “necessary information,” F.R.E. 201(d), to confirm

the public status of the entity involved.

40

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 50 of 63 PageID #: 1545

the Labor Law…Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the premium rates for overtime pay, as determined by the State Labor Department in accordance with the Labor Law.” See PX 8. A slight variant of the standard clause states that “any employees whose prevailing wage is required to be fixed pursuant to Section 220… shall be paid such prevailing wage.” PX 6 (Apple Industrial Development Corp. Contract #13510041); see PX 7 (same: Apple Industrial Development Corp. Contract #13510034). 27 Since the required language is incorporated into each contract as a matter of law, see Fata, supra, plaintiffs may enforce their third party beneficiary contract claims on the basis of the legally-mandated wages and benefits found in the schedules issued by the Department of Labor.
2. New York Labor Law Requires Employers to Pay Prevailing Wage to Workers Who Test and Inspect Life Safety Systems
Defendant maintains that “code-related” testing and inspection of fire and life safety systems by its technical employees on public worksites is not work covered by the prevailing wage law. Specifically, defendant contends that testing and inspection does not fall within the scope of maintenance functions that are indisputably encompassed by the prevailing wage law. This presents a mixed question of fact and law for the court to decide. It should be decided in plaintiffs’ favor on summary judgment, on undisputed material facts.
First, there is no practical separation between testing and inspection, on the one hand, and other maintenance functions, on the other, in the SimplexGrinnell workforce and in the jobs on public sites. SimplexGrinnell employees do the same type of work, whether they are called fire alarm technicians, fire alarm or sprinkler inspectors, or sprinklerfitters. Generally, they are all

27

In another example, defendant entered into a contract with full detail concerning its obligations under the

prevailing wage law. See PX 8 at SG0026757-6813.

41

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 51 of 63 PageID #: 1546

considered technicians. They all use the tools of the trade to install, repair, maintain, test, and inspect the systems. PX 64 at 142-43.
Defendant touts this integrated function of its operations when it markets its testing and inspection services. It tells the public that “you can’t tell if a system is working properly just by looking at it,” and that its customers can expect “comprehensive, functional testing using specialized tools and instrumentation to detect malfunctions you can’t find by visual inspection alone.” Defendant further markets its “expertise to professionally test, inspect and service” its and others’ systems. PX 4.
This is because of the very nature of fire alarm and sprinkler devices, which are only called upon to function in an emergency. Thus, it is usually non-obvious when such systems are in need of repair, and absent specialized, regular testing and inspection there is no way to determine if those systems are functioning at all. In fact, Paul Coons, the New York State Office of Mental Health official who helped negotiate the contract with defendant, testified that a building is not safe unless its fire alarm system is properly inspected and tested. PX 58 at 26.
Second, SimplexGrinnell’s maintenance contracts themselves state that the inclusion of testing and inspection is part of the maintenance function. For example, the 2001 Life Safety Systems (sprinkler, standpipe systems, and fire extinguishers) maintenance contract for the New York Economic Development Corporation, South Brooklyn Marine Terminal states: “Maintenance shall include repair service required to keep the [Life Safety Systems] operational at all times, together with replacement of the system or its components, when for any reason they become undependable or inoperative. Maintenance includes periodic recurring inspections and tests….” PX 78 (emphasis added). Other service contracts with the same agency contain similar language: PX 7 at SG0010763 (inclusion of “periodic recurring inspections and tests” under

42

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 52 of 63 PageID #: 1547

“General Maintenance and Repair”); PX 6 at SG0011518 (same); id. at SG0011523 (“Contractor shall conduct periodic inspections and tests and maintain and repair each System.”).
Third, New York State, in licensing fire alarm technicians, recognizes that testing and inspection is an integral part of fire alarm system maintenance: “Maintaining an alarm system includes, but is not limited to, the inspection of a device, component or system for the purposes of detecting and preventing problems with equipment and devices….Maintenance shall also include testing of alarm components, devices or systems for the purpose of establishing proper operating conditions.” 19 N.Y. Comp. Codes R. & Regs. § 195.1(d) (2009).
Fourth, the New York Department of Labor, the administrative enforcement agency for the prevailing wage law, has issued an opinion to SimplexGrinnell dated December 31, 2009, finding testing and inspection of fire systems to be squarely covered as maintenance work under the prevailing wage law. PX 3. The Department opined that “public contracts for inspection and testing of fire systems do fall within the coverage of Article 8 [§ 220] of the New York State Labor Law;” more specifically, that “the testing of fire systems is included within the category of system maintenance and is, therefore, subject to the payment of prevailing wages.” Id. at 1, 3.
The Department of Labor reached its conclusions after a series of submissions and ex parte presentations by SimplexGrinnell in an attempt to convince the Department of the same position it has espoused in this lawsuit—that “code-related” inspections are not part of maintenance and repair under the prevailing wage law. In rejecting SimplexGrinnell’s position, the Department started with the core inquiry under the statute—the “nature of the work,” Matter of Gen. Elec. Co. v. N.Y.S. Dep’t of Labor, 565 N.Y.S. 2d 863, aff’d on op. below, 76 N.Y.2d 946 (1990) (quoting Matter of Kelly, 15 N.Y.2d at 109). The Department found that defendant’s employees who install fire systems are without dispute laborers, workmen or mechanics under

43

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 53 of 63 PageID #: 1548

Section 220, that the nature of this work is “the same” as testing and inspection, and that therefore “[e]mployees performing testing and inspection work on fire systems are properly categorized as laborers, workmen, or mechanics.” PX 3 at 2.
In rejecting SimplexGrinnell’s argument trivializing testing and inspection of fire systems as merely satisfying a customer’s compliance with fire and safety codes, the Department relied upon both public sources and SimplexGrinnell’s own materials to conclude that code-related testing and inspection is “an integral part of an overall contract for the maintenance of a system and is, therefore, included with the coverage of Article 8 of the Labor Law.” Id. at 3. The Department cited to the Fire Code itself, New York State procurement practices, defendant’s testing and inspection contracts, and defendant’s marketing materials. Fully consistent with the contract examples cited above, the Department noted that the testing and inspection contracts “generally require inspections to be undertaken so as to ensure that systems are properly operating up to code standard, and if not, that necessary repairs are made.” Id. at 2. Like the website materials referred to above, the SimplexGrinnell marketing materials on “maintenance activities for fire alarm systems” helped lead the Department to conclude that “testing and inspection appear to be included…as integral parts of the maintenance of fire systems by employees working within your own company.” Id. at 3.
Plaintiffs submit that the Court should come to the same conclusion as the Department of Labor, and grant plaintiffs summary judgment on the question of inclusion of testing and inspection as maintenance work covered by the prevailing wage law. The Department’s conclusion is wholly in line with the purposes of the statute, the case law, and the undisputed record here concerning the integration of testing and inspection with defendant’s system maintenance function. Moreover, the Department of Labor has special expertise in the matter, as

44

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 54 of 63 PageID #: 1549

the administrative agency in charge of enforcing the prevailing wage law, and its interpretations, if not irrational or unreasonable, should be deemed persuasive. See Bernstein v. Toia, 43 N.Y.2d 437, 448 (1977); see also Marcella v. Cap. Dist. Physicians’ Health Plan, Inc., 293 F.3d 42, 48 (2d Cir. 2002) (Sotomayor, J.) (“[T]hese opinion letters, as the views of the agency charged with implementing ERISA, are at least ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance[.]’”) (quoting Bragdon v. Abbott, 524 U.S. 624, 642 (1998)).
The Department of Labor’s opinion on testing and inspection is especially persuasive here, given the manner in which it was obtained. SimplexGrinnell lobbied the Department long and hard to convince the Department to come to an opposite conclusion, culminating in an ex parte “show and tell” test and inspect session in late December 2009 at a state facility in Albany, at which the Commissioner of Labor was present. PX 77. In essence, defendant was attempting to try an issue in this lawsuit before the Labor Department, but without the plaintiffs or the Court present. Irrespective of the defendant’s approach, the important persuasive point is that the Department was addressing the very situation before this Court. In similar circumstances, one New York court followed “DOL’s application of these provisions to the factual circumstances at issue here.” Edwards v. Jet Blue Airways Corp., 2009 WL 4482409 at *4 (Sup. Ct. Kings Co. 2008).
Defendant will doubtlessly argue that the Department’s agreement with defendant’s request to apply the opinion prospectively for the most part (PX 3 at 3) blunts the persuasive power of the opinion in this case. The Department’s discretionary timetable for administrative implementation of its opinion for its own purposes should have no impact on the Court’s decision here. The Court is ruling on a legal controversy that has been before it for three years,

45

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 55 of 63 PageID #: 1550

implicating the rights of plaintiffs and class members going back to 2001. The issues here include the substantive legal issue that was the focus of the Department’s opinion letter, not the agency’s enforcement timetable. The persuasive force of agency expertise lies in the Department’s analysis of the inclusion of testing and inspection as prevailing wage work, a subject different from the ministerial temporal application of the opinion itself. No change in the law was worked by the opinion; rather, the Department was opining on what the law always had required. We submit that the Court should come to the same conclusion in granting the instant motion, using the Department’s opinion as one strong point in favor of summary judgment for plaintiffs.

3. The Evidence Is Undisputed That Defendant Failed to Pay Prevailing Wages and Therefore Breached Its Contractual Obligations.

As set forth above in detail in Section D of the statement of facts, SimplexGrinnell has

had a long history of not complying with the prevailing wage law, and in those instances where

there was payment of prevailing wages, it was spotty and belated. Even after defendant

appointed a national prevailing wage manager, years passed before the company even enunciated

a policy of compliance, and additional time passed before payments owing were paid. On top of

that, any enforcement of the prevailing wage law by either employees or the regulatory agency

was hampered by defendant’s failure to comply with the notice requirements and other

formalities of the law, and defendant’s submission of certified payrolls that did not comply with

the law. In reviewing the weekly history of defendant’s prevailing wage pay practices since

2001, Dr. Crawford found that over 600 employees had worked on public jobs for which they

were not paid prevailing wages. Thus, there is no question that SimplexGrinnell breached the

contracts the prevailing wage provisions of which were for the benefit of plaintiffs and class

members as third party beneficiaries. 46

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 56 of 63 PageID #: 1551
C. Plaintiffs and Class Members Are Entitled to Summary Judgment on Damages
In this case, simultaneously with their request for class certification, plaintiffs seek summary judgment on damages for themselves and class members who have suffered damages because of defendant’s failure to pay prevailing wages for work on public jobs. The methodology used by plaintiffs, although somewhat difficult to implement because of the poor state of defendant’s pay records, is straightforward, and is explained in Dr. Crawford’s report. For each class member Dr. Crawford identified the public jobs worked during the entire liability period, from the SimplexGrinnell job project data. From the payroll data, he determined the hours for which they were paid prevailing wages. Then, from the project data identifying public work and from the New York prevailing wage schedules, he computed the difference between what the employee should have been paid and what the employee actually got paid, calculated the statutory interest, and subtracted payments made by SimplexGrinnell in the course of its “self-audit.” The resulting damages, $16.0 million, should be awarded to the class members on summary judgment. PX 1; Crawford Decl.
1. Legal Standards Support the Entry of Summary Judgment for Plaintiffs on Damages
It is fundamental that once a plaintiff has shown the right to recovery, he need prove damages only to a reasonable degree of certainty, including the use of approximations where necessary, without the need for precise certainty. As is stated in the New York Pattern Jury Instructions: “So long as the figure arrived at has a reasonable basis of computation and is not merely speculative, possible or imaginary, the fact finder has the right to resort to reasonable conjectures and probable estimates and to make the best approximation possible through the

47

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 57 of 63 PageID #: 1552

exercise of good judgment and common sense in arriving at an award of damages.” New York Pattern Jury Instructions PJI:2:227 Damages general (V1B p 1493).
The applicable principles were summarized in Tractebel Energy Marketing v. AEP Power Marketing, 487 F.3d 89, 110 (2d Cir. 2007): “It has long been established in New York that a breaching party is liable for all direct and proximate damages which result from the breach. Wakeman v. Wheeler & Wilson Mfg. Co., 56 Sickels 205, 209, 101 N.Y. 205, 4 N.E. 264, 266 (1886). The damages, however, ‘must be not merely speculative, possible, and imaginary, but they must be reasonably certain and such only as actually follow or may follow from the breach of the contract.’” (quoting Wakeman) (emphasis in original). See also Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 926 (2d Cir. 1977) (plaintiff need only show a “stable foundation for a reasonable estimate” of damages) (quotation and citation omitted); Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 496 (2d Cir.1995) (the amount of damages need only be proved with reasonable certainty).
The damages presented here contain a prejudgment interest component. In New York, prejudgment interest can be recovered “because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property.” N.Y. C.P.L.R. § 5001(a). Prejudgment interest accrues at 9% per annum (except where otherwise provided by statute) on a simple interest basis. N.Y. C.P.LR. § 5004; see Perero v. Food Jungle, Inc., 2006 WL 2708055, at *8 (E.D.N.Y. Aug. 7, 2006).
Interest accrues and “shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable

48

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 58 of 63 PageID #: 1553
intermediate date.” N.Y. C.P.L.R. § 5001(b). For example, when the “damages were incurred at various times,” plaintiffs may use the midpoint of the accrual of each set of damages to calculate interest. See Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 342 (S.D.N.Y. 2005); Zeng Liu v. Jen Chu Fashion Corp., 2004 WL 33412, at *5 (S.D.N.Y. Jan. 7, 2004). Dr. Crawford calculated interest from each period of loss, and credited the same rate of interest for payments made by defendant to the members of the class in the course of the self-audits.
2. Plaintiffs Are Not Required to Present Damages in the Form Demanded by Defendant, Particularly in Light of the Deficiencies in Defendant’s Employment Recordkeeping.
Defendant criticizes Dr. Crawford’s report because it does not break down, on a day by day basis for each individual, each public job for which prevailing wage pay is claimed. There is no controlling legal authority dictating that a litigant must break down its presentation of a reasonably certain damages estimate in the manner dictated by the defendant. The question is whether the plaintiffs’ methodology yields a reasonably certain damages estimate, not whether another method could yield the same result or arguably one marginally more precise.
In this case, there is another practical limitation preventing the matching, on a daily basis, of the work performed by plaintiffs and members of the proposed class, on the one hand, with the amounts they were paid or the daily prevailing wage shortfall, on the other. As explained by Dr. Crawford, SimplexGrinnell’s electronic pay data are deficient in that they do not record, contemporaneously or in a single location, pay and job task information. Often the job project information records lag the time entries by days or even weeks. This prevents the pay and job project databases from being merged completely on a contemporaneous basis. Crawford Decl. ¶ 9.

49

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 59 of 63 PageID #: 1554

As explained above, SimplexGrinnell has been deficient in its employment record
keeping not only with respect to its electronic databases, but in other respects as well—such as
the failure to include required material regarding prevailing wages in its public work contracts,
the failure to post prevailing wage schedules, and the failure to advise employees of their right to
be paid prevailing wages. Collectively, these deficiencies prevent plaintiffs from presenting a
damages study in the arbitrary fashion demanded by defendant, but they do not prevent plaintiffs
from presenting a reliable, alternative method of presenting damages.
In these circumstances, the employee need not present an exact replication of daily
employment records to justify an award of damages. The employee need only “submit sufficient
evidence from which violations of the Act and the amount of an award may be reasonably
inferred.” Martin v. Selker Bros., Inc. , 949 F.2d 1286, 1296-97 (3d Cir. 1991). The Second
Circuit, in Reich v. Southern New England Telecommunications Corp., 121 F.3d 58, 66 (2d
Cir.1997), quoted the applicable principles from the Supreme Court’s seminal decision in
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946):
where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes . . . [t]he solution . . . is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

50

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 60 of 63 PageID #: 1555

The court in Reich went on to explain the plaintiff’s burden in establishing a prima facie
damages case under Mt. Clemens, 121 F.3d at 67:
The Secretary's burden in such cases, while not overly onerous, is to establish a prima facie case. See [Reich v.] Gateway Press [, Inc.] , 13 F.3d [685,] 701 [(3d Cir. 1994)] ; Secretary of Labor v. DeSisto , 929 F.2d 789, 793 (1st Cir. 1991) (noting that “the Secretary's initial burden in these cases is minimal”). He is not required to do so in complete detail as to the wages lost by each employee. However, he must produce sufficient evidence to establish that the employees have in fact performed work for which they were improperly compensated and produce sufficient evidence to show the amount and extent of that work “as a matter of just and reasonable inference.” Mt. Clemens, 328 U.S. at 687; cf. Gateway Press, 13 F.3d at 701. Upon meeting this burden, the burden shifts to the employer, and if the employer fails to produce evidence of the “precise amount of work performed” or evidence to “negative the reasonableness of the inference to be drawn from the employee's evidence,” the court may then “award damages to the employee[s], even though the result be only approximate.” Mt. Clemens, 328 U.S. at 687 -88.
The Mt. Clemens rationale is a specialized application, in wage loss cases under remedial
labor legislation, of the longstanding damages principle that “a defendant whose wrongful
conduct has rendered difficult the ascertainment of the precise damages suffered by the plaintiff,
is not entitled to complain that they cannot be measured with the same exactness and precision as
would otherwise be possible.” Eastman Kodak Co. v. S. Photo Material Co., 273 U.S. 359, 379
(1927); see Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931);
Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264 (1946).
These principles have been followed in cases brought under the New York Labor Law.
See, e.g., Alphonse Hotel Corp. v. Sweeney, 674 N.Y.S.2d 351 (1st Dep’t 1998) (when a
contractor refuses to produce records or provides inadequate or inaccurate records, use of best
available evidence to determine underpayments to employees is permissible, even though these
inferences are approximate in nature). When these alternate methods are applied, as under Mt.
Clemens the burden shifts to the employer to negate the reasonableness of the calculations. See

51

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 61 of 63 PageID #: 1556

Georgakis Painters Corp. v. Hartnett, 565 N.Y.S.2d 863, 864-65 (3d Dep’t 1991) (prevailing wage case); Mid Hudson Pam Corp. v. Hartnett, 549 N.Y.S.2d 835 (3d Dep’t 1989) (same).
3. Damages Should Be Awarded to Each Class Member in the Amounts Stated in Dr. Crawford’s Report
The Court should enter summary judgment in favor of plaintiffs and the members of the plaintiff class in the amounts set forth in Table 4 of Dr. Crawford’s report through the period ending December 31, 2009, regardless of whether the Court deems it appropriate or necessary to utilize the Mt. Clemens principles. Here plaintiffs have satisfied the principles of reasonable certainty. Using defendant’s own electronic job project and payroll data, Dr. Crawford calculated each class member’s losses. He used reasonable assumptions where those were required. For example, where full data were not available for the very beginning of the damages period in 2001 and for the latter half of 2009 following the cutoff of records produced by defendants, he provided estimates based on the closest chronological periods where the data were available. See PX 1 ¶¶ 11-12. Where one of two prevailing wage rates might have been paid on a particular project, he chose the lower rate. In general, where assumptions and estimates were required, Dr. Crawford consistently favored defendant in the calculation, lowering the damages figures from what they otherwise would have been.
4. In the Alternative, the Court Should Enter Partial Summary Judgment on Damages
In the alternative, plaintiffs ask the Court to enter partial summary judgment under Fed. R. Civ. P. 56(d).
First, if in the course of defendant’s response to the calculations of particular class members the Court is persuaded that factual issues remain as to individual calculations, then those calculations should be set for trial promptly. In making this request, plaintiffs do not ask

52

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 62 of 63 PageID #: 1557
that the Court give defendant the benefit of mistakes it has made and not corrected. For example, Dr. Crawford points out in his report, in response to criticism by defendant, that there are some instances of high workweek hours in the project data. PX 1 at 15 n. 16. Because defendant has not shown more accurate data, plaintiffs’ primary request here is that the damages be awarded on the basis of what is shown in defendant’s own records, as reflected in Table 4 of Dr. Crawford’s report. Only if the Court allows defendant to dispute its own data do plaintiffs seek the alternative relief of sending certain individual damages claims to the jury.
Second, in the event that there are remaining questions about the individual damages awards even though the Court accepts the overall damages methodology as reliable and yielding just results, then plaintiffs ask the Court to award aggregate damages to the class as a whole in the amount calculated by Dr. Crawford, $15,991,174, and conduct additional appropriate proceedings to determine the individual damages awards. Crawford Decl. ¶ 10; see 3 ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 10:2 (4th ed. 2002) (“Proof of aggregate monetary relief for the class is feasible and reasonable under various circumstances. In fact, the ultimate goal in class actions is to determine the aggregate sum, which fairly represents the collective value of claims of individual class members.”) (internal citations omitted).
Third, given the fact that the data received by plaintiffs from defendant allowed a damages calculation up through December 31, 2009, the date of Dr. Crawford’s report, plaintiffs’ request that the Court order defendant to provide updated payroll data and allow plaintiffs’ to file a supplemental summary judgment motion on damages through the date of judgment.

53

137604.2

Case 1:07-cv-00981-SMG Document 109-2 Filed 03/18/10 Page 63 of 63 PageID #: 1558

V. CONCLUSION

For the foregoing reasons, plaintiffs respectfully request that the Court certify the class

and enter summary judgment in favor of plaintiffs and class members on liability and damages,

and award damages as prayed.

Respectfully submitted,

Dated: March 18, 2010

By

/s/

Raymond C. Fay Kerin E. Coughlin CONSTANTINE CANNON LLP 450 Lexington Avenue, 17th Floor New York, NY 10017 Telephone: (212) 350-2700

Bruce E. Menken Jason Rozger BERANBAUM MENKEN LLP 80 Pine Street, 33rd Floor New York, NY 10005 Telephone: (212) 509-1616
Attorneys for Plaintiffs

54

137604.2

 
 Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 1 of 29 PageID #: 2764

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

ROBERTO RAMOS, et al., Plaintiffs,
v. SIMPLEXGRINNELL LP,
Defendant.

Hon. Steven M. Gold CaseNo.l:07-cv-00981-SMG
Civil Action

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

David A. Copus (pro hac vice) Dominick C. Capozzola (DC-3124) OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 512 5th Avenue, Suite 1700 New York, New York 10175 (212) 292-4314 david.copus@odnss.com dominick.capozzola@odnss.com Attorneys for Defendant SimplexGrinnell LP

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 2 of 29 PageID #: 2765

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iv

OVERVIEW ................................................................................................................................... !

INTRODUCTION .......................................................................................................................... I

STATEMENT OF FACTS ............................................................................................................. 3

I.

Parties ..................................................................................................................... 3

II. An Overview of SimplexGrinnell's Business........................................................ 5

III. Procedural History................................................................................................. 6

IV. SimplexGrinnell's Request for Guidance from the New York Department of Labor.................................................................................................................. 9

V. Plaintiffs' Expert Report...................................................................................... 14

LEGAL STANDARD ................................................................................................................... 16

ARGUMENT ................................................................................................................................ 17

I.

Even If the Court Admits Plaintiffs' Expert Report Into Evidence, the

Court Should Grant Summary Judgment on Plaintiffs' Breach of

Contract Claims, in Whole or in Part................................................................... 17

A. Plaintiffs' Breach of Contract Claims Fail for All Work Not Related to the Twenty-Nine Contracts Plaintiffs Have Identified That Contain Promises to Pay Prevailing Wages...................................................................... 18

I. Plaintiffs' Breach of Contract Claim Permits Them to Enforce Only SimplexGrinnell' s Contractual Obligations to Pay Prevailing Wages................ 18

2. With the Exception of Only Twenty-Nine Contracts, Plaintiffs Cannot Establish That SimplexGrinnell Promised to Pay Prevailing Wages to Its Employees....................................................................................................... 20

B. Plaintiffs Cannot Establish the Essential Elements of a Prevailing Wage Claim for Themselves or Any Absent Class Member ......................................... 22

(I) The public project on which the employee performed the work. ........................ 22

(2) The date the employee performed the work at the public site for which Plaintiffs have an actionable contract. ................................................................. 22

1

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 3 of 29 PageID #: 2766

(3) The work performed during a given week at a public site for which Plaintiffs have an actionable contract. ................................................................. 22

(4) The wage rate SimplexGrinnell paid for the work performed at a public site............................................................................................................. 23

C. The Court Should Dismiss All Claims Based on Time Spent Performing Code-Driven Testing And Inspection.................................................................. 26

D. The Court Should Dismiss All Claims Arising from Other Non-Covered Job Tasks.............................................................................................................. 28

E. The Court Should Dismiss the Claims of All Persons Who Have No Damages......................................................................................................... 29

F. The Court Should Dismiss the Claims for Unpaid Prevailing Wages on Testing and Inspection Projects Where the Employees Incurred No Damages ............................................................................................................... 30

G. The Court Should Dismiss the Claims for Unpaid Prevailing Wages on Non-Testing and Inspection Projects Where the Employees Incurred No Damages............................................................................................................... 30

H. Plaintiffs' Evidence Establishes That They Have No Claims for Testing and Inspection in New York City for the Period February 6, 2001 to June 30, 2005 ....................................................................................................... 31

I.

The Court Should Dismiss All Claims Arising from the Alleged Failure

to Pay the Prevailing Wage Rate for Installation Work in New York City

and Long Island.................................................................................................... 31

J. The Court Should Dismiss the Claims of Employees Belonging to Approved Apprenticeship Programs Whose Pay Matched or Exceeded the Rates Established in Those Programs ............................................................ 33

K. Section 301 ofthe National Labor Relations Act Preempts Plaintiffs' Claims Pertaining to Work in New York City, Long Island and All Other Counties with Multiple Rates for Fire Alarm and Sprinkler Work ..................... 34

II. If the Court Excludes Plaintiffs' Expert Report, the Breach of Contract Claims of the Putative Class Fail Because Plaintiffs Have No Evidence Showing That SimplexGrinnell Is Liable to Absent Class Members .................. 36

III. The Court Should Grant Summary Judgment on Plaintiffs' Equitable Claims for Quantum Meruit and Unjust Enrichment ........................................... 36

11

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 4 of 29 PageID #: 2767
A. Plaintiffs' Quantum Meruit and Unjust Enriclunent Claims Fail Because Plaintiffs Improperly Base Their Claims on Promises Allegedly Contained in Express Contracts........................................................................... 37
B. Plaintiffs' Quantum Meruit and Unjust Enriclunent Claims Also Fail Because Plaintiffs Cannot Show that SimplexGrinnell Failed to Pay Them Reasonable Value for Their Services or that SimplexGrirmell Was Unjustly Enriched at Their Expense.................................................................... 38
IV. The Court Should Dismiss Plaintiffs' Overtime Claims Because New York Law Requires Employees Seeking Unpaid Overtime Prevailing Wages to Follow the Administrative Process Established by the Prevailing Wage Act and Because They Have No Evidence to Support Their Claims......................... 39
A. The Exclusive Statutory Remedy for Unpaid Prevailing Overtime Wages Lies in the Administrative Process Set Forth in New York Labor Law§ 220............................................................................................................ 40
B. Even if New York Law Authorized Plaintiffs' Overtime Claims, They Have No Evidence to Support Their Claims or the Claims of the Putative Class................................................................................................. 42
V. Plaintiffs' Statutory Claim for "Failure to Pay Wages" Must Be Dismissed............................................................................................................. 42
CONCLUSION ............................................................................................................................. 43
111

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 5 of 29 PageID #: 2768

TABLE OF AUTHORITIES

CASES

Page(s)

Allis-Chalmers Corp. v. Lueck,
471 u.s. 202 (1985) ...........................................................................................................34, 36

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986) ...................................................................................... 16

Brandy v. Canea Mare Contr., Inc., 825 N.Y.S.2d 230, 34 A.D.3d 512 (2006) .........................................................................18, 19

Brooks v. Outboard Marine Corp., 234 F.3d 89 ..............................................................................................................................36

Brown v. Tom-Cat Electrical Security, Inc., Case No. 03-cv-5175(FB)(JO), 2007 U.S. Dist. LEXIS 63542 (Aug. 27, 2007) ....................40

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) .................................................................................................................34

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986) ................................................................................ 16, 17

Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 516 NE2d 190, 521 NYS2d 653 (1987)) ........................................................ .38

Cox v. NAP Constr. Co., Inc., 10 N.Y.3d 592, 891 N.E.2d 271 (2008) .............................................................................37, 38

De La Cruz v. Caddell Dry Dock & Repair Co., Inc., 804 N.Y.S.2d 58, 22 A.D.3d 404 (2005) .....................................................................38, 42, 43

Electrical Workers v. Hechler, 481 U.S. 851 (1987) .................................................................................................................34

Erie County Indus. Dev 't Agency v. Roberts, 94 A.D.2d 532,465 N.Y.S.2d 301 (1983), aff'd, 63 N.Y.2d 810,472 N.E.2d 43,482 N.Y.S.2d 267 (1984) ................................................................................................................ 10

Fata v. S. A. Healy Co., 289N.Y. 401 (1943) .................................................................................................... 18, 19,20

Fernandez v. Cent. Mine Equip. Co., 2009 U.S. Dist. LEXIS 109388 ...............................................................................................36

IV

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 6 of 29 PageID #: 2769
GE v. NY State Dep 't ofLabor, 551 N.Y.S.2d 966, 154 A.D.2d 117, aff'd, 563 N.Y.S.2d 764, 565 N.E.2d 513 (1990).......................................................................................................27, 34
Goldman v. Metro. Life Ins. Co., 5 N.Y.3d 561 (2005) ................................................................................................................37
Harsco Corp. v. Segui, 91 F.3d 337 (2d Cir. 1996).......................................................................................................20
Jara v. Strong Steel Door, Inc., 872 N.Y.S.2d 691, 20 Misc. 3d 1135A....................................................................................43
Jara v. Strong Steel Door, Inc., Kings Cty. Case No. 14643/05,2008 WL 3823769 (N.Y. Sup. Ct., Aug. 15, 2008) ....................................................................................20, 21,37
Jara v. Strong Steel Doors, Inc., No. 14643-05,2007 NY Slip Op 51755U, 2007 WL 2696110 (N.Y. Sup. Sept. 12, 2007) ........................................................................................................................................21
Kelly v. Beame, 15 N.Y.2d 103,204 N.E.2d 491 (N.Y. 1965) ..........................................................................34
Mannix v. Chrysler Corp., 2001 U.S. Dist. LEXIS 4641 (E.D.N.Y. Mar. 14, 2001) ......................................................... 36
Marangos Constr. Corp. v. New York State Dep 't ofLabor, 216 A.D.2d 758, 628 N.Y.S.2d 451 (1995) .............................................................................40
Marren v Ludlam, 14 AD3d 667,790 N.Y.S.2d 146 (2005) .................................................................................40
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348 (1986) ..................................................................................... .17
Matter ofHoward v. Wyman, 28 N.Y.2d 434, 322 N.Y.S.2d 683,271 N.E.2d 528 (1971) ....................................................27
Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168 (2d Cir. 2005).....................................................................................................36
Nelson's Lamp Lighters, Inc. v. Roberts, 523 N.Y.S.2d 643, 136 A.D.2d 810 .........................................................................................27
Pepsico, Inc. v. Coca-Cola Co., 315 F.3d 101 (2001) ................................................................................................................. 16
v

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 7 of 29 PageID #: 2770
Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11 (1998) ........................................................................................................ 18, 19
Rexnord Holdings v. Bidermann, 21 F.3d 522 (2d Cir. 1994).......................................................................................................20
SEC v. Meltzer, 440 F. Supp. 2d 179 (E.D.N.Y. 2006) ..................................................................................... 16
Seiden Assoc., Inc. v. ANC Holdings, Inc., 768 F. Supp. 89 (S.D.N.Y. 1991) ...................................................................................... 36, 37
Varsity Transit, Inc. v. Saporita, 98 Misc.2d 255,413 N.Y.S.2d 868 (1979), aff'd 71 A.D.2d 643,418 N.Y.S.2d 667 (1979), aff'd 48 N.Y.2d 767,423 N.Y.S.2d 910,399 N.E.2d 941 (1979)...............................10
Winsch v. Espositio Building Specialty, Inc., 852 N.Y.S.2d 199 (2008) .........................................................................................................20
Wright v. Herb Wright Stucco, Inc., 422 N.Y.S.2d 253 (1979) ......................................................................................................... 19
Wright v. Herb Wright Stucco, Inc., 430 N.Y.S. 2d 52 (1980) .......................................................................................................... 19
STATUTES
40 U.S.C.§ 276a ............................................................................................................................41 Article 6 of the Labor Law§§ 190, 191 and 198-c......................................................... .3, 7, 42,43 Article 19 oftbe Labor Law.....................................................................................................41, 42 Labor Law§ 191 ............................................................................................................................43 Labor Law § 655 ......................................................................................................................... .3, 6 Labor-Management Relations Act, 29 U.S.C. § 141, et seq. .........................................................34 Minimum Wage Act, N.Y. Lab. Law§§ 650-665 .........................................................................41 N.Y. Lab. Law§ 220(2),(7)-(8) .....................................................................................................40 N.Y. Lab. Law§ 220(3) .................................................................................................................33 N.Y. Lab. Law§ 220(3)(a) ............................................................................................................10 N.Y. Lab. Law§ 220(5)(a) ............................................................................................................34
Vl

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 8 of 29 PageID #: 2771 N.Y. Lab. Law§ 220(7)-(8)oooooooooooo00oo00000000000000ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo18, 40,42 N.Y. Lab. Law§ 655(5)(c) oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo..41 N.Y. Lab. Law§ 663 oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo.41 New York Labor Law 00 00 00 00 00 00 00 00 00 00 00 00 00 00. 00. 00. 00. 00 00 00 00 00 00. 00 00 00 00 00 00 0000 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 0000 00.1 Article 8 of the New York Labor Law. 00000000000000000000000000000000000000000000000000000000000000000000000000000000000041, 42 Prevailing Wage Act, New York Labor Law § 220, et seq. 0000 000000 ooooooooooooooooooooOOooooOOOO 000000001, 18, 41
RULES
12 N.Y.C.R.R. § 142-3.2 oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo .............. .3, 6, 41 19NYCRR § 1221.1 ..oooo... oo................................................................................oooooooooooooooo.............5 Fed. R. Civ. P. 56(e) ................. oo........oo.... oo.... oo..oo....oo............oo.oooooooo....oo....oo................................16
Vll

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 9 of 29 PageID #: 2772
OVERVIEW Some claims fail on summary judgment because of an inherent legal defect. Plaintiffs' primary claim-that Defendant SimplexGrinnell LP ("SimplexGrinnell") failed to pay prevailing wages for routine, code-driven testing and inspection of fire alarms and sprinklers-is just such a claim. The New York Department of Labor has ruled that during the relevant time period, the New York Labor Law did not require SimplexGrinnell to pay prevailing wages to employees for routine, code-driven testing and inspection of fire alarms and sprinklers. That ruling extinguishes Plaintiffs' main claim. Other claims fail on summary judgment for want of evidentiary support. In this action, Plaintiffs have steadfastly refused to accept that their claims and the claims of the putative class required them to: (1) prove the contracts on which their claims are founded, and (2) obtain the essential records for the necessary-although highly individualized-inquiries into their daily activities. Consequently, Plaintiffs turned a blind eye to the voluminous records containing the information that might support their claims, and they never obtained copies of these documents. By failing to collect the evidence necessary to prove their claims, Plaintiffs ruined their chances of prevailing on the merits, and if the Court grants class certification, Plaintiffs' evidentiary deficiencies alone will extinguish the claims of hundreds of unwitting employees.
INTRODUCTION Fifteen named plaintiffs brought this putative class action against SimplexGrinnell, claiming that SimplexGrinnell breached its contractual promises to pay its employees the prevailing rate of pay in accordance with the Prevailing Wage Act, New York Labor Law Section 220, et seq. Plaintiffs' First Amended Complaint ("FAC") asserts a claim for third party beneficiary breach of contract, a derivative claim for unpaid overtime, and equitable claims for
1

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 10 of 29 PageID #: 2773
unjust enrichment and quantum meruit. All claims arise from Plaintiffs' primary allegation that SimplexGrinnell failed to pay its employees the prevailing rate of pay for work performed on public facilities.
After roughly three years of discovery, during which SimplexGrinnell freely granted Plaintiffs access to their paper records and electronic data, Plaintiffs failed to obtain the evidence needed to support the fundamental elements of their claims. For example, although Plaintiffs base their contract claims on alleged promises contained in thousands of contracts with state agencies, Plaintiffs can prove the contents of only twenty-nine contracts. 1 They similarly carmot identify the projects and dates on which they claim SimplexGrinnell failed to pay prevailing wages. Absent that and other crucial evidence, Plaintiffs carmot possibly carry their burden of proof at trial.
A multitude of other reasons exist for dismissing the FAC in whole or in part. First, Plaintiffs' expert, Dr. David Crawford, has identified 120 members of the putative class who have suffered no damages, and another 206 who did not incur damages for one of two major categories of work. Absent any damages, their claims carmot stand. Second, Plaintiffs base many of their claims and the claims of the putative class on the performance of job tasks that did not require SimplexGrinnell to pay prevailing wages, including but not limited to code-related testing and inspection from 2001 through 2009. All claims based on job tasks not covered by the Prevailing Wage Act must fail.
In an Affidavit filed in support of Plaintiffs' Motions for Class Certification and Summary Judgment, Dr. Crawford identified 13,409 public projects. If each project represents a separate contract, Plaintiffs have produced less than V.. of 1% of the applicable contracts.
2

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 11 of 29 PageID #: 2774
Plaintiffs' equitable claims fail as a matter oflaw. Plaintiffs cannot use equity to enforce alleged contractual provisions. Even if they could, SimplexGrinnell has always paid its hourly employees at least their regular rate of pay for their work.
Fourth, Plaintiffs' overtime claims fail because Labor Law Section 655 and 12 N.Y.C.R.R. § 142-3.2 do not authorize lawsuits for unpaid prevailing wages. Section 220 of the Prevailing Wage Act provides the exclusive statutory remedy for unpaid overtime prevailing wages, and that statute requires Plaintiffs to first seek an administrative review from the Department of Labor before filing a lawsuit. Plaintiffs have no evidence to establish their claims in any event. For similar reasons, Plaintiffs' statutory claim for unpaid wages in violation of Article 6 of the Labor Law Sections 190, 191 and 198-c fails. Plaintiffs' exclusive statutory remedy for unpaid prevailing wages lies in the administrative remedy set forth in Article 8, Section 220.
SimplexGrinnell respectfully submits the Court should grant summary judgment in SimplexGrinnell's favor and dismiss the FAC.
STATEMENT OF FACTS I. Parties
SimplexGrinnell formed in 2001 with the merger of Simplex and Grinnell Fire Protection-two long-time leaders in the fire and life-safety systems. (Affidavit of Richard Zanunitti ("Zammitti Aff."), ,2) SimplexGrinnell has offices throughout the United States, including nine that serve customers in the State of New York. (Zanunitti Aff. ,2)
Plaintiffs are fifteen current and former fire alarm and sprinkler employees who worked in the field performing various tasks for SimplexGrinnell's public and private customers. (FAC, ,,1,3,18) All fifteen named Plaintiffs have worked exclusively out ofthe New York City District
3

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 12 of 29 PageID #: 2775
Office. (Affidavit of Marion Rivera ("Rivera Aff."), ~2) Eleven of the named Plaintiffs-Agban, Bennekaa, Gonzalez, Maietta, Maldonado, Owolabi, Ramos, Rodriguez, Smith, Wray, and Zimerer-belong (or at one time belonged) to Local 3, Division H of the International Brotherhood of Electrical Workers ("Local 3H"). (Rivera Aff. ~3) During the time that they belonged to Local 3H and worked for SimplexGrinnell, their regular rates of pay matched or exceeded the pay rates for journeymen and apprentices established in the collective bargaining agreement between Local 3H and the New York Systems Suppliers Association. (Rivera Aff. ~3)
Many of SimplexGrinnell's sprinkler workers belong to the Enterprise Association of Steamfitters, Local 638, Divisions A and B. (Rivera Aff. ~4) Named Plaintiff Maietta quit Local 3H and joined Local 638B in 2008. (Deposition of Chris Maietta, 11 :2-12:2) Named Plaintiff Oyarvide also joined Local 638B in 2008. (Deposition of Jaime Oyarvide, 70:19-71:12) The collective bargaining agreements between Local 638 and the Mechanical Contractors Association of New York, Inc., govern the employment relationship between SimplexGrinnell and the members of Local 638, including the regular rates of pay. ("Rivera Aff. ~4) At all times, SimplexGrinnell has matched or exceeded the applicable journeymen and apprenticeship rates for the members ofLoca1638 in its employ. (Rivera Aff. ~4) None of the named Plaintiffs have ever belonged to Local 638A. (Rivera Aff. ~4)
Named Plaintiffs Estrella, Fernandez, and Florez have never belonged to any unions while they have worked for SimplexGrinnell. (Deposition of Maximo Estrella, 23:5-7; Deposition of Jose Fernandez, 6:21-7:1; Deposition ofOmar Florez, 18:3-19:2; RiveraAff. ~5)
4

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 13 of 29 PageID #: 2776
II. An Overview of SimplexGrinnell's Business. As indicated in the diagram below, SimplexGrinnell's business involves the installation,2
maintenance, repair, and routine, code-driven testing and inspection of fire safety systems, including fire alarms and sprinkler systems. (Affidavit of Christie Hext ("Hext Aff."), ~2) (Deposition of David Crawford ("Crawford Dep.") 1, pp. 58:22-59:7)

SimplexGrinnell conducts routine testing and inspection of fire alarm and sprinkler systems under National Fire Protection Association Standards adopted by New York State to ensure the operational integrity of different types of fire, life, and safety systems. (Hext Aff. ~4) The New York State Fire Code requires fire, life, and safety systems to undergo periodic testing or operation to ensure the proper functioning of the system. 19 NYCRR § 1221.1.
For large fire alarm or sprinkler installation projects, public entities usually require SimplexGrinnell to submit bids in response to requests for proposals. (Zammitti Aff. ~3) If a public entity awards an installation project to SimplexGrinnell, the public entity and SimplexGrinnell typically enter into a detailed, written contract specifying the work SimplexGrinnell will perform and the price for that work. (Zammitti Aff. ~3)
For work involving routine, code-driven testing and inspection, serv1ce and/or maintenance public entities sometimes require SimplexGrinnell to participate in a competitive bid process. (Zammitti Aff. ~4) Written contracts between SimplexGrinnell and its public

2

In some cases, SimplexGrinnell installs all elements of the fire safety systems. In other

cases, SimplexGrinnell's involvement with the installation of a new system is limited to "parts

and smarts," i.e., SimplexGrinnell supplies the fire alarm panels and technical support, while

separately employed electricians install the wiring, conduit, and other devices. (Hext Aff. ~3)

5

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 14 of 29 PageID #: 2777
customers may take many forms, ranging from a simple purchase order to a I 00-page installation contract. Since February, 2001, SimplexGrinnell has entered into thousands of contracts with New York State and New York City public entities to perform various installation, maintenance, repair, and/or testing and inspection services on life safety systems. (Zammitti Aff. 'j5)
III. Procedural History. Plaintiffs filed their original class action Complaint on February 6, 2007, seeking
damages for alleged unpaid prevailing wages on fire alarm work other than installation. (Original Complaint, 'j3) On July 14, 2008, Plaintiffs amended their Complaint to add claims for alleged unpaid prevailing wages arising from fire alarm installation projects, as well as all sprinkler and suppression work. (FAC, 'j18)
The FAC alleges five claims for relief, the first being a claim for third party beneficiary Breach of Contract. In this claim, Plaintiffs assert that SimplexGrinnell breached its contracts with various New York State and municipal agencies by allegedly failing to adhere to its written contractual promises to pay the prevailing rate of pay to its employees. (FAC, 'j22-24) Plaintiffs' second and third claims for relief are equitable claims for Unjust Enrichment and Quantum Meruit. These claims seek to do the same thing as their Breach of Contract claim, namely, secure for Plaintiffs and other SimplexGrinnell employees the prevailing wages that SimplexGrinnell allegedly promised the contracting state agencies it would pay, but allegedly failed to provide. (FAC, 'j'j26-33)
Plaintiffs' fourth claim asserts that SimplexGrinnell violated the overtime provisions of New York Labor Law Section 655 and 12 N.Y.C.R.R. § 142-3.2. (FAC, 'j35) Plaintiffs do not dispute that SimplexGrinnell always paid them at least one-and-one-half times the regular rate of pay for all hours worked over forty in a week. (Depositions of Agban Agban, p. 140:25-141:23;
6

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 15 of 29 PageID #: 2778
Maximo Estrella, Jr., p. 76:6-11; Jose Fernandez, p. 71:12-77:9; Omar Florez, p. 149:15-150:18; Yadira Gonzalez, p. 83:15-84:18; Chris Maietta, p. 133:12-20; Jose Luis Maldonado, p. 147:1317; Rafiu Owolabi, p. 202:4-13; Jaime Oyarvide, p. 124:23-125:11; Roberto Ramos, p. 173:12175:6; Frank Rodriguez, p. 139:18-21; Rogelio Smith, p. 93:24-94:20; Randy Wray, 126:8-15, Breno Zimerer, p. 113:10-115:12) Rather, Plaintiffs contend that SimplexGrinnell failed to pay the difference between the overtime rate they claim they should have received by virtue of their performance of prevailing wage work, and the overtime rate they actually received based on their regular rate of pay. (Florez Dep., 150:6-18; Zimerer Dep., p. 113:10-115:12) Plaintiffs' fifth claim alleges that SimplexGrinnell willfully failed to pay wages in violation of Labor Law Sections 190, 191 and 198-c.
Discovery commenced on May 3, 2007 and ended December 15, 2008. (Capozzola Aff. -,r3) Plaintiffs served a series of document requests, the very first of which requested SimplexGrinnell to produce "all documents that describe the work performed and time spent by [SimplexGrinnell's] employees while working on public works projects" for a nearly seve~r-year period. (Capozzola Aff. -,r3) Individual employees' paper time sheets are of great importance because they constitute the "system of record" concerning the time spent and work performed by SimplexGrinnell's employees. (Deposition of Dorothy Keene, 92:12-21)) SimplexGrinnell indicated that it would grant Plaintiffs access, for the purposes of inspection and copying, to the requested paper time sheets and individual employee work-related records as those paper records were maintained in the ordinary course of business at SimplexGrinnell's nine offices serving New York State. (Capozzola Aff. -,r3)
There were more than one million such time sheets and individual employee work-related paper records encompassed by their request. (Crawford Dep., p. 225:23-226:16) At a discovery
7

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 16 of 29 PageID #: 2779
conference on September 11, 2007, Plaintiffs objected to the "access" granted by SimplexGrinnell and asked the Court to direct SimplexGrinnell to gather the requested paper documents and produce them at their offices in New York City. The Court declined Plaintiffs' invitation and left Plaintiffs to their own resources to review the paper time sheets and work records in each ofSimplexGrirmell's offices. (Capozzola Aff. ~4)
Over the course of the discovery period, Plaintiffs visited only four of SimplexGrinnell's offices serving New York State. (Capozzola Aff. ~5) During those visits they gathered and copied approximately 25,000 pages of paper time sheets and related work documents. (!d.) In a letter dated February 8, 2010 identifying the documents Plaintiffs believed were responsive to interrogatories relating to the fundamental elements of their claims, they referenced only approximately 13,500 pages of documents. (Capozzola Aff. ~~23-24) Those 13,500 pages of paper documents obviously constituted less than 2% of the 1,000,000 or more pages of time records and related work documents that SimplexGrinnell made available for inspection and copying. Plaintiffs gathered no paper work records from five of SimplexGrinnell's offices serving New York State. (Capozzola Aff. ~6)
SimplexGrinnell served its Third Set of Interrogatories on November 14, 2008. (Capozzola Aff., ~23) This set of discovery included Interrogatories 9-12, which required Plaintiffs to identify: (1) the specific public work projects on which they or other putative class members worked when they suffered damages; (2) the dates they or other putative class members worked at each such project without receiving adequate pay; (3) the job tasks performed at a particular public site on each date on which they did not receive adequate pay; and (4) the actual wage rate paid to the employees for that work on that date and that particular public site. (Capozzola Aff. ~23) SimplexGrinnell also issued Request for Production No. 45, which
8

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 17 of 29 PageID #: 2780
requested copies of all of the contracts between SimplexGrinnell and state agencies in which SimplexGrinnell promised to pay prevailing wages. (Capozzola Aff. ~7 & Ex. 1)
Following approximately one year of continued litigation, SimplexGrinnell filed a motion to compel responses to Interrogatories 9-12 on November 23, 2005. On January 11, 2010, the Court ordered Plaintiffs to provide SimplexGrinnell with a letter identifYing the evidence upon which they may rely at trial to prove the elements addressed by these Interrogatories. Plaintiffs provided a letter on February 8, 2010, identifying all of the documents and other information on which they relied in response to Interrogatories 9-12. (Capozzola Aff. ~24) Taken collectively, these documents do not answer SimplexGrinnell's interrogatories and are inadequate to support all but a tiny fraction of Plaintiffs' claims. (Capozzola Aff. ~~25-51)
In a separate letter issued on the same date, Plaintiffs identified additional contracts on which they rest their claims and which were responsive to Request for Production No. 45. (Capozzola Aff. ~~7-13) In all, Plaintiffs have identified only thirty-nine purported contracts. (Capozzola Aff. ~13) Ten of these documents do not constitute actionable contracts. (Capozzola Aff. ~~14-22) Thus, out of the thousands of contracts SimplexGrinnell has entered into with public agencies in New York state during the relevant time period (Zammitti Aff, ~5), Plaintiffs possess only twenty-nine contracts on which they may base their breach of contract claims.
IV. SimplexGrinnell's Request for Guidance from the New York Department of Labor. Not all work performed on public work facilities requires the payment of prevailing
wages. Thus, Christopher Alund, the Director of the New York Bureau of Public Work, which enforces the New York prevailing wage law (Capozzola Aff. Ex. 42, 65), has testified by way of deposition in this case that "not all people employed on [a pubic site] will be required to be paid prevailing wage." (Deposition of Christopher Alund, p. 89: 14-16) "[J]ust because someone is on
9

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 18 of 29 PageID #: 2781
a public work project does not mean that they're entitled to prevailing wage." (Alund Dep., p. 102:17-19); N.Y. Lab. Law § 220(3)(a) (requiring payment of prevailing wages to "laborers, workmen or mechanics upon such public works" only); Varsity Transit, Inc. v. Saporito, 98 Misc.2d 255, 413 N.Y.S.2d 868 (1979), aif'd 71 A.D.2d 643, 418 N.Y.S.2d 667 (1979), aif'd 48 N.Y.2d 767, 423 N.Y.S.2d 910, 399 N.E.2d 941 (1979) ("An analysis of the Labor Law reveals that the legislators were interested in protecting that specific portion of the work force which is involved in the construction, replacement, maintenance and repair of public works. It has long been established that this law does not blanket all workers who have some working contact with the city or agency or department ofthe city.").
Indeed, "[i]t is hornbook law that the Labor Law provision applies only to workers involved in the construction, replacement, maintenance and repair of public works in a legally restricted sense of that term." Erie County Indus. Dev't Agency v. Roberts, 94 A.D.2d 532, 465 N.Y.S.2d 301 (1983), aif'd, 63 N.Y.2d 810, 472 N.E.2d 43, 482 N.Y.S.2d 267 (1984) (quoting Varsity Transit, Inc. v. Saporito, 71 A.D.2d at 644, 418 N.Y.S.2d 667). As the Director of the Bureau of Public Work has testified, "in order to determine where a worker is a laborer, workman or mechanic, you have to look at the nature of their work ... [and] the task that they are actually performing." (Alund Dep., p. 182:18-183:1)
[Y]ou have to look at the function and task, that the individual is performing on a public project [to determine if a worker is a] laborer, workman, or mechanic, [t]o use the definition of the Labor Law, yes, whether or not they should be receiving the prevailing wage for the time that they're on that project. You may work on a project all day long. You may only perform a function or a task that entitles you to prevailing wage for one hour that day. So, we're going to look at your function and task. (Alund Dep., p. 183:15-184:1) From as early as the time the Company formed, SimplexGrinnell firmly believed that the New York Prevailing Wage Act did not apply to code-related testing and inspection, and certain
10

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 19 of 29 PageID #: 2782
other aspects of fire safety system service, maintenance, and repair. (Deposition of Shawn Love ("Love Dep."), 117:13-118:10) To evaluate the accuracy of its views, SimplexGrinnell reached out to the New York Department of Labor's Bureau of Public Work in an effort to obtain clarity on the application of the New York Prevailing Wage Act to the fire alarm and sprinkler industries. (Zammitti, '1[6.) To that end, SimplexGrinnell representatives met with the Director of the Bureau of Public Work, Mr. Chris Alund, in January and April, 2008, and otherwise engaged in an extensive dialogue that included not only face-to-face meetings but conference calls and letters. (Alund Dep, , p. 13:3-12; 15:6-24; 19:11-16; 23:1-25; 61:13-15; 64:1-65:4) During this time period, Mr. Alund also conferred extensively with his staff, other industry leaders, and officials of the relevant unions about the specific tasks performed by the fire alarm and sprinkler workers and the application of the prevailing wage law to those tasks. (Alund Dep., p. 44:2547:16; 48:6-12; 56:20-57:9; 58:4-15; 60:2-14; 78:19-79:10; 95:11-16; 96:2-20; 117:6-19)
Ultimately, Mr. Alund concluded that routine, code-driven testing and inspection work was not covered by the prevailing wage law. More specifically, he testified at his deposition that if a worker is "performing solely a code related inspection, ... we would view him as not covered by prevailing wage." (Alund Dep., p. 93:12-17) Thus, if a worker is "doing a code related inspection ... he or she is not a laborer, workman, or mechanic pursuant to Labor Law Section 220." (Alund Dep., p. 94:17-22) According to the Director of the Bureau of Public Work, when fire alarm and sprinkler employees are doing code-related testing and inspection, "they're not laborers, workers, or mechanics" within the coverage of the prevailing wage law. (Alund Dep., p. 124:7-10) To emphasize the importance of identifying the specific task that an employee is performing, Mr. Alund offered this cogent example:
11

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 20 of 29 PageID #: 2783
Well, if a person who does a code related inspection finds a deficiency or a problem and then does the repair work, ... the employer's only required to pay prevailing wage for the work that was done to repair, rather than to inspect and repair. (Alund Dep., p. 123 :25-124:6) During the process of reaching this conclusion, Mr. Alund sought "to drill down this particular occupation" and to identify the "particular tasks" involved. (Alund Dep., p. 130:7-10) As a result of this drilling down process, in December, 2008, the Bureau of Public Work adopted matrices breaking down the tasks performed by fire alarm and sprinkler technicians and specifying whether each task required the payment of prevailing wages. (Alund Dep. 129:11130:21; Zammitti Aff., Ex. 1) Mr. Alund distributed the matrices to his staff. (Alund Dep., 105:4-9; 108:8-16; 125:20-23) We show below the Fire Alarm matrix adopted by the Bureau of Public Work. The Bureau of Public Work adopted a similar matrix for sprinkler work. (Zarnmitti Aff., Ex. 1)
12

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 21 of 29 PageID #: 2784

Public Work Guideline for Classific:atiott of
Fire Alarm iUld Low Vollag• Socurity Systems

.. .

.

Inspection:

Work ~-ategories & Tasks
..·· .

Pre•..ning Wage

...

COVERED NOT COVEREll

sernCt!Maintenallce; *

...... ,,_,

+-----+----""-----fi 11--"c-s-)R;-:eS:.Ju-pp,;"e·-r"vogisr7ni•mu,·'nl,'·_w;i;·.n::dH;;uh·d.'C~out_~<r::enc,_erve,_,ticie=.n·ogr=Snuaun=.n~'·"-?'--"Pt:ee"•'rpncm=-,.c',.",ec-:_'_:e,T'O·""_r·k-,_·_-·_~~_--_···__.·_··_•'·•-c4_·~~-''---+---·· -~:c-----11
Ins-ta.llntion:

). Tecb:DJ~':\l::SUpjJOii including advice~ monitor systcm-perfcmnanc:e

at .the pand •.tr_aining,. re~prngramming
> In._•ffil)lation of fire :alanntloY"' voltage system

" !nst.:U tiitlld and components .·.

.

....,

)- Pull wire, install cable

·l>. lnslall condilif. . ·

··· ,

» U.bel/tag wires

. · ·

·~..-+----'vI=· -----+-,--=-~-----~

.v

" "

> Warranty labor

..

Other Work: ,--:- ~ Ddive!):·/reh1r-u ofmaterial or-parts . _._ :: ·
>- O.ff~site fabrication (only if work is customflrily done trff~sitCr

* Note: Some counties !taw~ Sf!parate tales for .iervicelimtinteJWIIt:e tmdlor other tow J•oltage

""''k.

9762

The Department of Labor published these matrices on its website on or before April 14,

2009. (Hext Aff. ~5) These matrices provided that code-related testing and inspection, and an

13

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 22 of 29 PageID #: 2785
assortment of other tasks (e.g., design, programming, paperwork, supervision), did not require the payment of prevailing wages.
On or before June 18, 2009, the Department of Labor began reconsidering whether codedriven testing and inspection required the payment of prevailing wages. (Capozzola Aff., Ex. 41) After meeting with SimplexGrinnell and other industry representatives, the Labor Commissioner, Patricia M. Smith, issued an opinion letter to SimplexGrinnell on December 31, 2009, announcing that the Department "now" believed that all testing and inspection work on fire safety systems required the payment of prevailing wages. (Zanunitti Aff. ~8 & Ex. 2) The DOL's opinion letter applies prospectively only, except in those instances in which the contracts between New York agencies and life-safety contractors specifically require the payment of prevailing wage for testing and inspection. (Zammitti Aff. Ex. 2) The letter provides:
[T]he Department of Labor is now of the opinion that the testing of fire systems is included within the category of system maintenance and is, therefore, subject to the payment of prevailing wages.... However, because there has been much confusion in the past about the Department's position as to the applicability of the prevailing wage law to this work, this opinion shall be applied prospectively to contracts that are put out for bid after January 1, 2010, unless a previous contract actually required the payment of prevailing wages for this work. (Zanunitti Aff. Ex. 2 (emphasis added)) The Labor Commissioner's letter did not address any of the tasks contained in the Bureau of Public Work matrices, other than testing and inspection. (Id) V. Plaintiffs' Expert Report. ln recognition of the fact that they had gathered only a miniscule number of paper records supporting their claims, Plaintiffs turned to an expert, Dr. David Crawford, to examine certain elements of SimplexGrinnell's electronic records in the apparent hope of using his analysis to establish their claims. In its contemporaneously filed Daubert motion to exclude Dr. Crawford's
14

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 23 of 29 PageID #: 2786
report and accompanying spreadsheet ("report") in their entirety, SimplexGrinnell details the plethora of fatal errors committed by Dr. Crawford.
As described at length in SimplexGrinnell's Daubert motion, Dr. Crawford's report provides not one of the elements needed by Plaintiffs to support their claims. Thus, Dr. Crawford's report does not identify a single public site on which any putative class member worked. (Crawford Dep. 2, pp. 515:24-520:10) A fortiori, Dr. Crawford's report does not identify work performed pursuant to any of the twenty-nine contracts on which Plaintiffs' claims rest. (Crawford Dep. 2, pp. 515:24-520:10) Dr. Crawford's report cannot identify the pay that any employee received for work on any specific date or at any specific public site. (Crawford Dep. 2, pp. 515:24-520:10) Thus, even if the Court were to admit Dr. Crawford's report, it does not provide any evidentiary support for liability.
Even disregarding the specific elements of proof necessary to establish a prima facie claim, Dr. Crawford's report itself deals a fatal blow to many of Plaintiffs' claims. Dr. Crawford separated his analysis into two categories; one category includes all testing and inspection performed on state public work projects in the State of New York ("TI" work), while the other category includes all work on state public work projects except the testing and inspection work described in the first category ("Non-TI" work). (Crawford Dep. 1, p. 59:8-23; Crawford Dep. 2, pp. 279:13-282:1; 284:15-23; and 432:23-433-8)
In his analysis, Dr. Crawford identified 120 members of the putative class, including Plaintiff Agban Agban, who suffered no damages at all for work performed on public work projects from February 6, 2001. (Capozzola Aff. '1!47, Ex. 38) He identified 145 more, including Plaintiffs Rafiu Owolabi and Rogelio Smith, who have incurred no damages from testing and inspecting work performed for the State of New York. (Capozzola Aff. '1!48, Ex. 39) He
15

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 24 of 29 PageID #: 2787
identified another 61 employees, including Plaintiffs Nacim Bennekaa and Breno Zimerer, who incurred no damages from the performance of Non-TI prevailing wage work. (Capozzola Aff. ~49, Ex. 40)
In addition to the above, Dr. Crawford's Report also indicates that between February 6, 2001 and June 29, 2005, no employees in the New York City District Office suffered any damages from the alleged nonpayment of prevailing wages for work performed on testing and inspection projects. (CapozzolaAff. ~50; Crawford Dep. 2, p. 461:16-463:8)
LEGAL STANDARD
The seeds of Plaintiffs' demise lie in the United States Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986). There, the Supreme Court established that the burden on a defendant moving for sunnnary judgment "may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325 (emphasis added); see also Pepsico, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2001) (same, citing Celotex Corp); SEC v. Meltzer, 440 F. Supp. 2d 179, (E.D.N.Y. 2006) ("Where the non-moving party would bear the ultimate burden of proof on an issue at trial, the bmden on the moving party is satisfied if he can point to an absence of evidence to support an essential element ofthe non-movant's claim.").
The non-movant then bears the bmden of establishing through admissible evidence the existence of elements essential to its case, which it would have to prove at trial. Celotex Corp., 477 U.S. at 322; Delaware & Hudson Ry., 902 F.2d 174, 177 (2d Cir. 1990); Fed. R. Civ. P. 56(e). If no rational fact finder could find in the non-movant's favor, there is no genuine issue of material fact, and summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S.
16

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 25 of 29 PageID #: 2788
242, 251-52, 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986).
Under this standard, SimplexGrinnell need not affirmatively disprove any elements of Plaintiffs' claims. It suffices simply to point out-as SimplexGrinnell will show time and time again-that Plaintiffs lack the necessary evidence to prove a prima facie case on their claims. The "absence of evidence" is fatal to their claims and the claims of the putative class. Celotex Corp., 477 U.S. at 325.
ARGUMENT I. Even If the Court Admits Plaintiffs' Expert Report Into Evidence, the Court Should
Grant Summary Judgment on Plaintiffs' Breach of Contract Claims, in Whole or in Part. Under their claim for Breach of Contract, Plaintiffs seek to advance hundreds of thousands of individual claims that SimplexGrinnell failed to pay prevailing wages to different employees performing different tasks on different dates, at different worksites, and under different contracts. Except for a very small number of these claims, Plaintiffs lack the evidence necessary to show where putative class members worked, what tasks they performed, and the amount of pay they actually received for that work. Plaintiffs cannot even prove the terms of the overwhelming majority of the contracts upon which they base their claims. What few claims survive an examination of the evidence must also face serious legal hurdles, namely, the inapplicability of the Prevailing Wage Act to testing, inspection, and many other tasks, and the effect ofLMRA Section 301 preemption.
17

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 26 of 29 PageID #: 2789

A. Plaintiffs' Breach of Contract Claims Fail for All Work Not Related to the Twenty-Nine Contracts Plaintiffs Have Identified That Contain Promises to Pay Prevailing Wages.

1.

Plaintiffs' Breach of Contract Claim Permits Them to Enforce Only

SimplexGrinnell's Contractual Obligations to Pay Prevailing Wages.

Plaintiffs had two options for instituting an action for claimed unpaid prevailing wages.

First, using the statutory mechanism found in the New York Prevailing Wage Act, Labor Law

Section 220, et seq. (the "Prevailing Wage Act"), Plaintiffs could have enforced

SimplexGrinnell's statutory obligation to pay prevailing wages. This would have required

Plaintiffs to first seek an administrative determination from the Department of Labor before

filing an action in court. N.Y. Lab. Law§ 220(7)-(8). Brandy v. Canea Mare Contr., Inc., 825

N.Y.S.2d 230, 231-32, 34 A.D.3d 512, 514 (2006) ("It is undisputed that the plaintiffs did not

exhaust their administrative remedies and that exhaustion is required under Labor Law § 220.");

Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11 (1998) ("[A] private right of action for

underpayment of wages does not exist under Labor Law § 220 until there has been an

administrative determination pursuant to subdivision (8) that either has gone unreviewed or been

affirmed in the claimants-employees' favor."). In fact, named Plaintiffs Ramos and Jose Luis

Maldonado originally opted for this approach and filed administrative charges with the New

York Department of Labor. (Capozzola Aff. Ex. 46). However, on advice of counsel, they chose

not to pursue this option and withdrew their charges. (Id.)

Instead, Plaintiffs brought third party beneficiary breach of contract claims to enforce

any contractual obligations SimplexGrinnell may have assumed to pay prevailing wages to its

employees. The New York Court of Appeals first endorsed this method in Fata v. S. A. Healy

Co., 289 N.Y. 401, 406-07 (1943). There, the plaintiff alleged that the defendant contractor

breached its express promise, contained in a contract with the Board of Water Supply, to pay

18

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 27 of 29 PageID #: 2790

prevailing wages to its employees. !d. at 405. Eschewing the remedies permitted under the
Prevailing Wage Act, the employee brought a common law claim for breach of contract as a
third party beneficiary. The case required the Court to decide "whether a common-law action
may be maintained by an employee for breach of the agreement contained in the contract
between the employer and the Board of Water Supply." !d. (emphasis added)
Although the Prevailing Wage Act provides the exclusive remedy for enforcing statutory
obligations, Brandy, 825 N.Y.S.2d at 231-32, 34 A.D.3d at 514; Pesantez, 673 NYS2d at 660,
251 A.D.2d at 12, the Court of Appeals differentiated those obligations from contractual
obligations, and it held that employees working pursuant to contracts in which employers have
promised to pay the prevailing rate of pay may nonetheless maintain common law breach of
contract claims as third party beneficiaries. Carefully distinguishing between the obligations
imposed by statute and the obligations assumed via contract, the Court reasoned:
[T]he agreement which the parties have inserted in their contract is . . . an agreement to pay wages at rates fixed in accordance with the statute and set forth in a schedule of wages annexed to the contract.3 The obligation thus assumed by the contractor is precise, and extends beyond the scope of the statutory obligation. The statutory remedy provided for breach of the statutory obligation would be an inadequate and unsuitable remedy for a violation of this contractual obligation.

3

In a later decision, the Court of Appeals ruled that a breach of contract claim may

proceed where the contract contained a promise to pay prevailing wages but did not actually

annex the schedule of wages. Wright v. Herb Wright Stucco, Inc., 430 N.Y.S. 2d 52 (1980). In

reversing the decision of the Appellate Division, the Court of Appeals adopted the rationale of

the dissenting justice, who explained that establishing the prevailing wage rate for the locality

was "not an impossible task, ... as the term is appropriately defined in [the Prevailing Wage

Act]. In addition, it is a term with a lengthy judicial history and well susceptible of

ascertainment." Wrightv. Herb Wright Stucco, Inc., 422 N.Y.S.2d 253,255 (1979) (Cardamone,

J.P., dissenting). Neither that case or any other case has held that breach of contract claims for

unpaid prevailing wages may proceed where the contractor did not contractually agree to pay

prevailing wages. Moreover, where multiple rates apply-as in New York City and Long

Island-identifying the proper rate for a given task cannot be done unless the court were to

undertake an interpretation of the relevant union collective bargaining agreements, an

undertaking prohibited by the Labor Management Relations Act.

19

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 28 of 29 PageID #: 2791

Fata v. S. A. Healy Co., 289 N.Y. at 406-07. The Court of Appeals allowed the employees to

proceed with their action to enforce their employers' contractual duties. Id

2.

With the Exception of Only Twenty-Nine Contracts, Plaintiffs

Cannot Establish That SimplexGrinnell Promised to Pay Prevailing

Wages to Its Employees.

Breach of contract claims under New York law have four elements: (1) a valid contract;

(2) the plaintiffs performance; (3) the defendant's breach; and (4) damages. Harsco Corp. v.

Segui, 91 F.3d 337, 347 (2d Cir. 1996) (applying New York law); Rexnord Holdings v.

Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) (same). It is axiomatic that to prevail on their claims

for breach of contract, Plaintiffs must prove the terms of the contracts at issue. Otherwise, they

cannot establish that SirnplexGrinnell promised to pay prevailing wages in the first place, and

thus, they cannot show that the alleged failure to pay prevailing wages constitutes a breach.

Winsch v. Espositio Building Specialty, Inc., 852 N.Y.S.2d 199, 200 (2008) (affirming lower

court's grant of summary judgment on prevailing wage breach of contract causes of action

because the complaint failed to specifically identifY the provisions of the contract breached);

Jara v. Strong Steel Door, Inc., Kings Cty. Case No. 14643/05, 2008 WL 3823769, at* 11 (N.Y.

Sup. Ct., Aug. 15, 2008).

In Jara v. Strong Steel Door, Inc., the Kings County Supreme Court granted summary

judgment for the defendants on plaintiffs' claims for unpaid prevailing wages on two projects

where the plaintiffs failed to identify the specific contractual language the defendants breached.

The Court stated:

Plaintiffs do not allege the specific contractual provisions for the Richmond Center and Merchant Marine Academy projects . . . . Therefore, insofar as Huerta's eighth and ninth causes of action allege a breach of the Richmond Center and Merchant Marine contracts without specifying the provisions or terms of the contracts breached, summary judgment dismissing those causes of action is granted as a matter of law due to plaintiff's failure to provide the court and the

20

Case 1:07-cv-00981-SMG Document 111-2 Filed 03/25/10 Page 29 of 29 PageID #: 2792
parties with notice of the specific transactions, occurrences, or series of transactions or occurrences, intended to be proved. !d. (citations and quotes omitted). Notably, that same court denied the defendants' motion to dismiss claims where the plaintiff had properly identified the relevant language. See also Jara v. Strong Steel Doors, Inc., No. 14643-05, 2007 NY Slip Op 517550, 2007 WL 2696110, at *8 (N.Y. Sup. Sept. 12, 2007) ("[I]n order to plead a breach of contract cause of action, a complaint must allege the provisions of the contract upon which the claim is based.") (internal quotation marks and citations omitted). Shortly before the discovery deadline, SimplexGrinnell issued a Request for Production requiring Plaintiffs to produce all of the contracts they had obtained between SimplexGrinnell and New York state agencies that contain promises to pay prevailing wages and upon which they rely. (Capozzola Aff. ~7 & Ex. 1) Plaintiffs produced only twenty-nine contracts containing such promises.4 As to all other contracts between SimplexGrinnell and New York state agencies, Plaintiffs cannot prove the content of these contracts, and they cannot prove that SimplexGrinnell contractually agreed to pay prevailing wages. A fortiori, they cannot establish that SimplexGrinnell breached these contracts by allegedly failing to pay prevailing wages. The Court should therefore dismiss all claims for breach of contract premised on public work contracts other than the twenty-nine that plaintiffs have produced.

4

In their written discovery responses, and in a supplemental letter produced on February 8,

2010, Plaintiffs identified a total of thirty-nine purported contracts. (Capozzola Aff. ~~8-13)

Twenty-nine of these contracts require SimplexGrinnell to pay prevailing wages in accordance

with New York law. The other ten documents are inapposite. (Capozzola Aff. ~~14-22)

21

 
 Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 1 of 22 PageID #: 2793
B. Plaintiffs Cannot Establish the Essential Elements of a Prevailing Wage Claim for Themselves or Any Absent Class Member.
Plaintiffs allege that SimplexGrinnell breached its promises to pay prevailing wages in accordance with the Prevailing Wage Act for work performed on public projects. To establish a prima facie case of liability for any particular employee, Plaintiffs must identify, at a minimum, four elements. Each of the elements is cumulative, i.e., Plaintiffs must establish all four elements simultaneously for every claim.
(1) The public project on which the employee performed the work. Because the Prevailing Wage Act does not apply to work performed on private projects, Plaintiffs cannot establish liability unless they can show the aggrieved employees worked on public projects for the State of New York. In addition, because Plaintiffs base their claims on breach of contract, Plaintiffs must be able to show that an employee worked on a site for which they have an actionable contract. Thus, Plaintiffs must establish where SimplexGrinnell employees performed their services.
(2) The date the employee performed the work at the public site for which Plaintiffs have an actionable contract. Because SimplexGrinnell's payroll data, which constitutes the system of record for employees' pay, tracks wage payments on a weekly basis (Hext Aff. ~7 .) Plaintiffs must be able to establish when an employee worked at a specific public site for which Plaintiffs have an actionable contract in order to determine how much SimplexGrinnell paid him for that work.
(3) The work performed during a given week at a public site for which Plaintiffs have an actionable contract. As noted above and will be described in additional detail below, New York State's prevailing wage requirement does not apply to all tasks performed by SimplexGrinnell employees. Thus, at a minimum, Plaintiffs must establish the nature of the work
22

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 2 of 22 PageID #: 2794
performed during a given week at a specific public site for which Plaintiffs have an actionable contract in order to determine how much SimplexGrinnell should have paid an employee for that work.
(4) The wage rate SimplexGrinnell paid for the work performed at a public site. Liability in this case attaches only where the prevailing wage rate exceeds the actual pay rate for covered work at a public site for which Plaintiffs have an actionable contract. To establish a prima facie case that SimplexGrinnell paid less than the prevailing wage to its employees for covered work at a public site for which Plaintiffs have an actionable contract, Plaintiffs must show the rate of pay SimplexGrinnell actually paid its employees for that work. If they cannot make this showing, they cannot establish a prima facie case that SimplexGrinnell underpaid them.
With these essential requirements of a prima .facie case in mind, SimplexGrinnell issued Interrogatories requiring Plaintiffs to identify, for each employee they contend has suffered damages: (1) the specific public work projects on which they worked when they suffered damages; (2) the dates they worked at each such project without receiving adequate pay; (3) the job tasks performed at a particular public site on each date on which they did not receive adequate pay; and (4) the actual wage rate paid to the employees for that work on that date at that particular public site. (Capozzola Aff. ~23 & Ex. 6)
Plaintiffs responded to SimplexGrinnell's Interrogatories in three ways-by citing to thousands of pages of paper records, by citing to certain electronic records, and by citing to Dr. Crawford's report. Subject to an extremely small number of exceptions, none of these responses, individually or collectively, is sufficient to create a prima facie case. Thus, they are insufficient to avoid summary judgment.
23

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 3 of 22 PageID #: 2795
First, by letter dated February 8, 2010, Plaintiffs identified 13,456 pages of paper documents which allegedly support their claims. Of the approximately 13,456 pages of paper documents identified by Plaintiffs as supporting their claims, only six categories of documents can possibly assist them in establishing a prima facie case: (1) daily and weekly time sheets; (2) service reports; (3) inspection reports; (4) payroll stubs; (5) certified payroll reports; and (6) requests for payment of prevailing wages through a manual override process.5
SimplexGrinnell has examined every daily and weekly time sheet, every service report, and every inspection report identified to determine which, if any, of the documents indicate that the employee in question performed work at a public site for which Plaintiffs have an actionable contract. (Capozzola Aff. 141) For the timesheets, service reports, and inspection reports that relate to public entities for whom Plaintiffs have an actionable contract, SimplexGrinnell took the final step and compared those records against the pay stubs, certified payroll reports, and requests for manual overrides cited in Plaintiffs February 8, 2010 letter to see if it could match the records by employee and date. Matching these records would produce enough information to evaluate whether an employee received prevailing wages. (Capozzola Aff. 141)
For example, Plaintiff Maximo Estrella's Daily Time Logs show that he performed 40 hours of testing and inspection at the Manhattan Psychiatric Center on June 16, 19, 20, 21, & 22, 2006. His pay stub for that week shows that SimplexGrinnell paid him an hourly rate of$14.15. Using these records, Mr. Estrella has all of the information he needs to evaluate his claim. (Capozzola Aff. 142)

5

SirnplexGrinnell's simultaneously filed Daubert Motion to Exclude the Testimony of

Plaintiffs' Expert, Dr. David Crawford discusses the manual override process at length.

24

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 4 of 22 PageID #: 2796
SimplexGrinnell found hundreds of instances where the named Plaintiffs had enough pay and work records to determine whether they had valid claims for unpaid prevailing wages.6 For the rest of the putative class, however, it found only 78 instances where Plaintiffs had collected enough information to determine whether SimplexGrinnell paid them the prevailing rate. (Capozzola Aff. ~43)
Second, Plaintiffs listed hundreds of electronic files produced over the course of the discovery process. As set forth in the Affidavit of Christie Hext (attached as Exhibit 36 to Capozzola Affidavit), the files listed generally fell into two categories: (1) documents relating to SimplexGrinnell's State-Wide Self-Audit, performed during 2007 and 2008; (2) and files relating to local audits SimplexGrinnell has performed or evaluations of one-off inquiries from SimplexGrinnell employees.
Although Dr. Crawford had access to all of the cited documents relating to the StateWide Self-Audit, he failed to match the project, date, work performed, and pay rate received for any employees. (Crawford Dep. 2, p. 515:24-520:10) The remaining electronic documents similarly cannot be used to establish the elements of a claim. (Hext Aff. ~~15-17.) Given the methods SimplexGrinnell used to conduct local audits and one-off evaluations, the electronic data did not contain enough information to permit an employee to establish the four elements described in the Interrogatories. Notably, SimplexGrinnell frequently reviewed company records and documents shown to it by the employees, and it conducted employee interviews, in an effort to determine whether it had properly paid its employees. (Hext Aff. ~ 18.)

6

The ability of the named Plaintiffs to establish their individual claims is not at issue in

this motion. If the Court denies class certification, SimplexGrinnell will file a separate summary

judgment motion regarding their individual claims, as this Court authorized it to do at a Hearing

on January 11,2010.

25

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 5 of 22 PageID #: 2797
Third, Plaintiffs also referenced testimony from the depositions of all fifteen named Plaintiffs. The generalized discussion provided during these depositions did not provide the specificity Interrogatories 9-12 required. (Capozzola Aff. ~45)
Finally, Plaintiffs relied on Dr. Crawford's report. This report cannot satisfy even one of the required four elements needed for a prima facie case, much less all four. Dr. Crawford's report:
• Did not identify a single project on which any putative class member worked; • Did not identify a single date on which a putative class member allegedly
performed prevailing wage work but was not properly paid; • Did not identify the type of work for which the putative class member allegedly
did not receive the proper prevailing wage; and • Did not provide any information on the pay that any putative class member
received for work on any date or at any specific public site. (Crawford Dep. 2, p. 515:24-520:10)
Subject to the extremely limited exceptions above based on paper records, Plaintiffs cannot prevail on any of their claims or the claims of the putative class at trial. The Court should dismiss these claims from the FAC.
C. The Court Should Dismiss All Claims Based on Time Spent Performing Code-Driven Testing And Inspection.
As described above, in December, 2008, the Bureau of Public Work concluded that routine testing and inspection work was not covered by the prevailing wage requirement. Also as noted above, on December 31, 2009, after reconsidering whether code-driven testing and inspection required the payment of prevailing wages, the New York Department of Labor issued an opinion letter to SimplexGrinnell announcing that it "now" believed that code-driven testing and inspection required the payment of prevailing wages. (Zammitti Aff. Ex. 2) This opinion
26

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 6 of 22 PageID #: 2798
letter explicitly states that it applies prospectively only, except in those instances in which the contracts between New York agencies and life-safety contractors specifically require the payment of prevailing wages for testing and inspection. (Id) SimplexGrinnell has examined all of the twenty-nine contracts which Plaintiffs possess, and not one of them specifically requires the payment of prevailing wages for code-related testing and inspection. (Capozzola Aff. ~22)
As the agency charged with the enforcement and interpretation of the New York Prevailing Wage Act, the DOL receives substantial deference form state and federal courts concerning the proper application of the Prevailing Wage Act. GE v. N.Y. State Dep 't ofLabor, 551 N.Y.S.2d 966, 968, 154 A.D.2d 117, qff'd, 563 N.Y.S.2d 764, 565 N.E.2d 513 (1990) ("'trade or occupation' classifications for work embraced by Labor Law § 220 are a matter given to the expertise of the Department and courts are strongly disinclined to disturb them") (citations omitted); Nelson's Lamp Lighters, Inc. v. Roberts, 523 N.Y.S.2d 643, 645, 136 A.D.2d 810 ("Whether a particular undertaking constitutes electrician's work is a matter within the expertise of [the Department of Labor]."); Matter of Howard v. Wyman, 28 N.Y.2d 434, 438, 322 N.Y.S.2d 683, 271 N.E.2d 528 (1971) ("[C]onstruction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.").
Prior to January 1, 2010, according to the DOL's policy interpretation, New York State's prevailing wage law did not require SimplexGrinnell to pay prevailing wages for code-driven testing and inspection except in those limited circumstances where there was an explicit contractual provision containing that requirement. None of the twenty-nine contracts on which Plaintiffs can rely contain such an explicit provision. (Capozzola Aff. ~22) Thus, the Court should grant summary judgment on all testing and inspection claims prior to January 1, 2010.
27

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 7 of 22 PageID #: 2799
After January 1, 2010, according to the same DOL interpretation, code-driven testing and inspection requires the payment of prevailing wages only on contracts put out to bid after January 1, 2010 or on earlier contracts which specifically mandated the payment of prevailing wages for code-driven testing and inspection. Plaintiffs have no such contracts. (Capozzola Aff.
~22)
Plaintiffs have alleged numerous claims for damages arising from code-driven testing and inspection performed before January 1, 2010, and they continue to seek damages for codedriven testing and inspection performed after January 1, 2010 on contracts put out to bid before January 1, 2010, and which did not specifically mandate the payment of prevailing wages for code-driven testing and inspection. Because the New York Prevailing Wage Act did not require the payment of prevailing wages for any of these claims, SimplexGrinnell respectfully submits that the Court should dismiss them from the FAC.
D. The Court Should Dismiss All Claims Arising from Other Non-Covered Job Tasks.
As noted above, not all work performed on public work facilities requires the payment of prevailing wages.
Consistent with this long-standing authority, the Bureau of Public Work issued matrices in December, 2008 that carved out tasks regularly performed by Fire Alarm and Sprinkler employees which do not require the payment of prevailing wages. (Alund Dep. 129:11-130:21; Zarnmitti Aff. Ex. 1) With the exception of code-driven testing and inspection, the Labor Commissioner's December 31, 2009 Opinion Letter did not change the application of the prevailing wage law to any of the job tasks addressed in the Bureau of Public Work's matrices. (Zarnmitti Aff. Ex. 2) Consequently, according to the matrices adopted by the Bureau of Public Work the Prevailing Wage Act does not apply to any of the following tasks:
28

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 8 of 22 PageID #: 2800

• Re-set system without serv1ce or
maintenance;
• Re-program without serv1ce or
maintenance;
• Supervision including meetings and paperwork;
• Sales/design/engineering;
• Off-site programming;
• On-site uploading of program;
• Supervision including meetings and paperwork;
• Technical support including advice, monitor system performance at the panel, training, re-programming,
• Delivery/return of material or parts; and
• Off-site fabrication (only if work is customarily done off-site).

• Service fire extinguishers and tanks;
• Supervision including meetings and paperwork (Service/Maintenance);
• Sales/design/engineering;
• Supervision including meetings and paperwork (Installation);
• Technical support including advice, monitor system performance, and customer training;
• Delivery/return of material or parts; and
• Off-site fabrication (only if work IS customarily done off-site).

(Zammitti Aff. Ex.l)

Plaintiffs' broad claims seek damages for all time SimplexGrinnell's field employees

spent on public work projects, regardless of the nature of the task. Because the Prevailing Wage

Act does not apply to the tasks set out above, SimplexGrinnell could not have breached any

promises to comply with the Prevailing Wage Act with respect to those tasks. Accordingly, the

Court should dismiss all claims for damages arising from the performance of tasks that do not

require the payment of prevailing wages.

E. The Court Should Dismiss the Claims of All Persons Who Have No Damages. Table 2 of Dr. Crawford's narrative report, entitled "Damages and Interest Due

Individual Class Members," shows the "damages and interest for each individual employee," as

estimated by Dr. Crawford (Capozzola Aff. Ex. 37, ~60) This report lists Dr. Crawford's

calculations for 613 employees. (Capozzola Aff. ~46)

29

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 9 of 22 PageID #: 2801
According to Dr. Crawford's Report, 120 of these employees, including plaintiff Agban Agban, have suffered no damages at all. (Capozzola Aff. ~47 & Ex. 38) Because these individuals have suffered no damages, SimplexGrinnell respectfully submits that the Court should dismiss their claims.
F. The Court Should Dismiss the Claims for Unpaid Prevailing Wages on Testing and Inspection Projects Where the Employees Incurred No Damages.
As noted above, Dr. Crawford separated his analysis into two categories. (Crawford Dep. 1, p. 59:8-23; Crawford Dep. 2, pp. 279:13-282:1; 284:15-23; and 432:23-433-8) One category includes all testing and inspection performed on state public work projects in the State of New York. The other category includes all work on state public work projects except the testing and inspection work described in the first category. !d.
In addition to the 120 employees who have no damages whatsoever, Dr. Crawford identified an additional 145 employees who have incurred no damages arising from the first category of claims, i.e., testing and inspecting (Capozzola Aff. ~48, Ex. 39) This list includes named Plaintiffs Rafiu Owolabi and Rogelio Smith. Because Plaintiffs admit these employees have incurred no damages based on this category of work, any breach of contract claims they may have based on such work must fail, and the Court should dismiss all of these claims.
G. The Court Should Dismiss the Claims for Unpaid Prevailing Wages on NonTesting and Inspection Projects Where the Employees Incurred No Damages.
As noted immediately above, Dr. Crawford created a separate category (non-TI) for damages incurred on New York public projects for work other than testing and inspection. In addition to the 120 employees who have no damages at all, Dr. Crawford's Report identifies 61 employees whom he claims suffered no damages from the second category of work. (Capozzola
30

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 10 of 22 PageID #: 2802

Aff. ,49, Ex. 40) This list includes named Plaintiffs Nacim Bennekaa and Breno Zimerer.

Because Plaintiffs admit that these employees suffered no damages, any breach of contract

claims they may have based on this category of work must fail. SimplexGrinnell respectfully

submits that the Court should dismiss these claims as well.

H. Plaintiffs' Evidence Establishes That They Have No Claims for Testing and Inspection in New York City for the Period February 6, 2001 to June 30, 2005.

Dr. Crawford's Report also states that Plaintiffs and the putative class incurred no

damages for testing and inspection work at public facilities in New York City for the entire

period February 6, 2001 through June 30, 2005, with the single exception of employee Robert

Klawans on June 30, 2005. (Crawford Dep., 2, p. 461:16-463:8; Capozzola Aff. ,50)

Accordingly, the Court should dismiss all claims based on this category of work for employees

in the New York City District Office from February 6, 2001 through June 29,2005.

I.

The Court Should Dismiss All Claims Arising from the Alleged Failure to

Pay the Prevailing Wage Rate for Installation Work in New York City and

Long Island.

In the seven counties that comprise New York City and Long Island, the prevailing wage

schedules for electricians and sprinkler fitters contain multiple journeymen rates for each type of

work. (Hext Aff. ,8; Capozzola Aff. Ex. 43-45) For electricians in New York City, the New

York Department of Labor recognizes an "A" rate, which tracks the pay rates contained in the

collective bargaining agreement for IBEW Local 3A, and an "H" rate, which tracks the pay rates

in the IBEW Local 3H collective bargaining agreement. (Hext Aff., ,8; Capozzola Aff. Ex. 43)

A similar structure applies to electricians in Long Island, due to collective bargaining agreements

involving the IBEW Local25, Divisions A and M. (Hext Aff. , 8)

31

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 11 of 22 PageID #: 2803
In New York City and Long Island, the Department of Labor generally applies the "A" rate to tasks connected to the installation of fire alarm systems, such as laying conduit and pulling wire. (Hext Aff. ~9; Capozzola Aff. Ex. 44) The Department generally applies the "H" and "M" rates to service-related tasks. (Hext Aff. ~ 9)
A similar structure exists in these counties in the sprinkler industry. In the counties that make up New York City and Long Island, collective bargaining agreements involving Local638, Divisions A and B, have created a multi-tiered pay structure. (Hext Aff. ~1 0; Capozzola Aff. Ex. 36) The Department of Labor generally applies the 63 SA rate to the installation of sprinkler systems, and the 638B rate to service and repair. (Hext Aff. ~ 10)
Dr. Crawford made no effort to isolate the claims of employees who performed fire alarm or sprinkler installation work subject to the higher prevailing wage rates (i.e., the "A" rates) in New York City or Long Island. (Crawford Dep. 1, p. 19:22-20:9; 203:4-207:19; 211:25-213:18; Crawford Dep. 2, p. 428:19-437:5; Capozzola Aff. Ex. 37, ~53 & 54, p. 15) On the contrary, as Dr. Crawford explains, whenever more than one rate potentially applied, he always used the lowest rate available. (!d.) He further admitted that because he had "no way to be sure when a higher rate should have been applied, [he had] no way to identify when that higher rate was not paid." (Crawford Dep. 2, p. 445:10-24;449:15-22; Crawford Dep. 1:210:10-211 :4) Thus, because he could not "identify any of the times when employees on public projects did ... installation work, [he] had no way to determine whether they were being properly paid" for that work. (CrawfordDep.1,p.118: 1-7)
In short, Plaintiffs have no way to establish entitlement to the A rate for themselves or for putative class members. Hence, the Court should dismiss all claims by New York City and Long Island employees for the A rate.
32

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 12 of 22 PageID #: 2804

J. The Court Should Dismiss the Claims of Employees Belonging to Approved Apprenticeship Programs Whose Pay Matched or Exceeded the Rates Established in Those Programs.
The New York Prevailing Wage Act permits employers to pay apprentice rates where the employees belong to an apprenticeship program duly registered with the Department of Labor. N.Y. Lab. Law § 220(3). Indeed, the Department's prevailing wage schedules specifically carve out lower rates for apprentices. (Hext Aff. 111; Capozzola Aff. Ex. 45) For example, the Steamfitters Local 638A, to which numerous SimplexGrinnell employees belong, has an apprenticeship program registered with the Department. (Jd) The current prevailing wage schedules correspondingly provide separate wage rates for Local 638A apprentices, stated as percentages of the Journeymen's wage. (Jd)

lyVage~.s_> -_·-_-.__

40%

50%

65%

80%

85%

(Capozzola Aff. Ex 36) Pursuant to this regulatory framework, the New York Prevailing Wage Law permits
SimplexGrinnell to pay its Local 63 8A apprentices the lower apprentice rates for covered work, rather than the full journeymen rates set forth in the prevailing wage schedules. At his deposition, Dr. Crawford admitted that he did not consider the apprenticeship rates for any of the employees in his analysis. (Crawford Dep. 2, p. 559: 16-24) He used only the full journeymen rates contained in the prevailing wage schedules. (Crawford Dep. 2, p. 559:16-24) To the extent Plaintiffs have raised claims for damages where they or the putative class members belonged to Local 638A's registered apprenticeship. program, SimplexGrinnell respectfully submits that the Court should dismiss those claims.

33

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 13 of 22 PageID #: 2805
K. Section 301 of the National Labor Relations Act Preempts Plaintiffs' Claims Pertaining to Work in New York City, Long Island and All Other Counties with Multiple Rates for Fire Alarm and Sprinkler Work.
Federal labor law, embodied in the Labor-Management Relations Act, 29 U.S.C. § 141, et seq., preempts any state law claim that is "substantially dependent on analysis of a collective bargaining agreement." Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987) (quoting Electrical Workers v. Hechler, 481 U.S. 851, 859, n.3 (1987)). As the United States Supreme Court has explained,
when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a [LMRA §] 301 claim, see Avco Corp. v. Aero Lodge 735, 390 U.S. 557 (1968), or dismissed as pre-empted by federal laborcontract law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,220 (1985). The Prevailing Wage Act defines the "prevailing rate of wages" as the rate of wage paid under collective bargaining agreements to at least thirty percent of those employed "in the same trade or occupation" in a given locality. N.Y. Lab. Law§ 220(5)(a); GE v. NY. State Dep't of Labor, 551 N.Y.S.2d 966, 968, 154 A.D.2d 117, aff'd, 563 N.Y.S.2d 764, 565 N.E.2d 513 (1990). One cannot always readily discern, however, whether certain employees work "in the same trade or occupation." As the New York Court of Appeals recognized in 1965,
[I]t is clearly recognized that individuals, although in the same generic employment, may not be in the same "trade or occupation." The pivotal question is the nature of the work actually performed (see Matter of Flannery v. Joseph, [300 N. Y. 149, 89 N.E.2d 869 (N.Y. 1949)]) which leads to the factual determination of whether persons employed to do similar work but in different fields are engaged in the same "trade or occupation." Kelly v. Beame, 15 N.Y.2d 103, 109,204 N.E.2d 491 (N.Y. 1965) (emphasis added). In New York City and Long Island, some of the employees who work on fire alarms and
sprinkler systems earn the "A" rates, while others earn the "H," "M," or "B" rates. The
34

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 14 of 22 PageID #: 2806
prevailing wage schedules do not delineate where "H," "M," or "B" work ends and "A" work begins. (Capozzola Aff., Ex. 43-44.) How then can this Court make the "factual determination" necessary to establish which rate applies to which specific tasks?
For example, the Bureau of Public Work's Fire Alarm matrix reprinted above indicates that relocation of components, devices, or equipment is a task for which SimplexGrinnell must pay prevailing wage. But in New York City, Long Island, and other counties with multiple rates, which prevailing wage rate applies? Are employees entitled to the "A" rate for relocating components, devices or equipment? One can match the correct rate to specific tasks only by interpreting the scope of work covered by the various collective bargaining agreements. For New York City fire alarm employees, that process would involve interpreting the Local 3H and Local 3A collective bargaining agreements.
Thus, Mr. Alund indicated that he "would look to the collective bargaining agreements" to determine whether those tasks fell within in the agreement. (Alund Dep. 183:2-9) In practice, that happens routinely on an informal basis. Named Plaintiff Rogelio Smith, for example, indicates that he knows when to claim the "A" rate based on guidance obtained from the IBEW union steward about the scope of the IBEW Local 3A collective bargaining agreement. (Deposition ofRogelio Smith, 104:25-108:17; 113:20-118:5) SimplexGrinnell staff in the New York City office also allocate tasks to the "A" rate based on guidance from the IBEW about the scope of the Local 3A collective bargaining agreement. (Love Dep., 79:17-24; Deposition of William Roberts, 57:20-59:15)
Hence, in order to assign covered tasks to the proper prevailing wage rate in new York City and Long Island, and other counties with multiple rates, the Court must interpret the source of the rates-the applicable collective bargaining agreements-to determine their scope. Thus,
35

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 15 of 22 PageID #: 2807
because the claims in New York City and Long Island are "substantially dependent on analysis of[] collective bargaining agreement[s]," the Labor Management Relations Act preempts all of these claims. Allis-Chalmers Corp., 471 U.S. at 220 (1985). II. If the Court Excludes Plaintiffs' Expert Report, the Breach of Contract Claims of
the Putative Class Fail Because Plaintiffs Have No Evidence Showing That SimplexGrinnell Is Liable to Absent Class Members. Assuming that the Court excludes Dr. Crawford's report, Plaintiffs will be left only with paper records as a basis to establish a prima facie case. As discussed above, the paper records possessed by Plaintiffs can support a prima facie case for only a miniscule number of claims. The Court should therefore dismiss all claims except the handful previously noted. See Fernandez v. Cent. Mine Equip. Co., 2009 U.S. Dist. LEXIS 109388, at *26 (granting summary judgment after dismissing plaintiffs expert report under Rule 702); Mannix v. Chrysler Corp., 2001 U.S. Dist. LEXIS 4641, at *13-14 (E.D.N.Y. Mar. 14, 2001) (same); Brooks v. Outboard Marine Corp., 234 F.3d 89,92 (same). III. The Court Should Grant Summary Judgment on Plaintiffs' Equitable Claims for Quantum Meruit and Unjust Enrichment. As alternatives to their Breach of Contract claims, Plaintiffs have alleged claims for Quantum Meruit and Unjust Enrichment. As the Second Circuit has observed, these do not constitute separate claims, and courts may analyze them together as a single quasi-contract claim Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 2005) (citing Seiden Assoc., Inc. v. ANC Holdings, Inc., 768 F. Supp. 89, 96 (S.D.N.Y. 1991) (explaining that "quantum meruit and unjust enrichment are not separate causes of action," and that "unjust enrichment is a required element for an implied-in-law, or quasi contract, and quantum meruit, meaning 'as much as he deserves,' is one measure of liability for the breach of such a contract")). Plaintiffs' quasi-contract claims arise from the same factual allegations that
36

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 16 of 22 PageID #: 2808
support their breach of contract claims, namely, that SimplexGrinnell "entered into certain contracts ... with certain government agencies," (FAC, '\[14 ), that "in furtherance of the public works contracts entered into by [SimplexGrinnell], plaintiffs and other members of the putative class performed various types of electrical and sprinkler related work," (FAC, '\[18) and that SimplexGrinnell subsequently breached those contracts by allegedly failing to pay prevailing wages. (FAC, '\[19; see also id., '\['\[26, 29 (incorporating factual allegations contained in paragraphs l-25 into claims for Quantum Meruit and Unjust Enrichment))
As set forth below, Plaintiffs' quasi-contract claims fail as a matter of law because written contracts governing the relationships between SimplexGrinnell and the relevant New York state agencies preclude recovery in quasi-contract. In any event, Plaintiffs have no evidence to support their quasi-contract claims.
A. Plaintiffs' Quantum Meruit and Unjust Enrichment Claims Fail Because Plaintiffs Improperly Base Their Claims on Promises Allegedly Contained in Express Contracts.
A quasi-contract claim "is an obligation the law creates in the absence of any agreement." Goldman v. Metro. Life Ins. Co., 5 N.Y.3d 561, 572 (2005). "[W]hen a valid and enforceable written contract governs a given subject matter, recovery in quasi-contract is precluded." Jara v. Strong Steel Door, Inc., Kings Cty. Case No. 14643/05, 2008 WL 3823769, at *II (N.Y. Sup. Ct., Aug. 15, 2008) (citing Goldman, 5 N.Y.3d at 572) (dismissing claims for unpaid prevailing wages. "In this case it is undisputed that contracts existed for all four public works projects. Therefore, plaintiffs' quasi-contract claims, the thirteenth cause of action for quantum meruit and the fourteenth cause of action for unjust enrichment, must be dismissed.")
Plaintiffs' quasi-contract claims are identical to the claims the New York Court of Appeals addressed in Cox v. NAP Constr. Co., Inc., 10 N.Y.3d 592, 891 N.E.2d 271 (2008).
37

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 17 of 22 PageID #: 2809
There, the court affirmed the dismissal of the plaintiff's quasi contract claims for unpaid prevailing wages on the ground that "a party may not recover in quantum meruit or unjust enrichment where the parties have entered into a contract that governs the subject matter." !d. at 607, 891 N.E.2d at 278 (citing Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388, 516 NE2d 190, 521 NYS2d 653 (1987)). Similarly, in De La Cruz v. Caddell Dry Dock & Repair Co., Inc., 804 N.Y.S.2d 58, 22 A.D.3d 404 (2005), the court dismissed the plaintiffs' quasi-contract claims for unpaid prevailing wages, holding:
The court properly dismissed the third and fourth causes of action for quantum meruit and unjust enrichment. The existence of an enforceable written contract covering the matter at issue precludes recovery for causes of action sounding in quasi contract. !d. at 60, 22 A.D.3d at 405. The PAC plainly shows that Plaintiffs' quasi-contract claims arise from SimplexGrinnell's alleged failure to comply with promises contained in contracts between SimplexGrinnell and various state agencies. (PAC, ~31 ("Upon information and belief, when SG entered into the public works contracts, it agreed to pay the required prevailing wage, overtime and supplemental benefit rates of pay to plaintiffs and members of the putative class."); see also PAC, ~~26-33) Because Plaintiffs cannot bring quasi-contract claims to enforce the contracts between SimplexGrinnell and the relevant state agencies, the Court must dismiss Plaintiffs' quasi-contract claims. Cox, 10 N.Y.3d at 607, 891 N.E.2d at 278. B. Plaintiffs' Quantum Meruit and Unjust Enrichment Claims Also Fail
Because Plaintiffs Cannot Show that SimplexGrinnell Failed to Pay Them Reasonable Value for Their Services or that SimplexGrinnell Was Unjustly Enriched at Their Expense. Even if Plaintiffs could bring quasi-contract claims against SimplexGrinnell, their claims would still fail because they cannot demonstrate an equitable basis for disgorging revenue from SimplexGrinnell. SimplexGrinnell always paid Plaintiffs and the putative class reasonable value
38

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 18 of 22 PageID #: 2810
for their services. At all relevant times, SimplexGrinnell's policy required that it pay its hourly employees at least their regular rate of pay for any of the work that they perform, and at least time-and-one-half for all hours worked over forty in a week. (Hext Aff. 16) IV. The Court Should Dismiss Plaintiffs' Overtime Claims Because New York Law
Requires Employees Seeking Unpaid Overtime Prevailing Wages to Follow the Administrative Process Established by the Prevailing Wage Act and Because They Have No Evidence to Support Their Claims. Plaintiffs' fourth claim for relief alleges, in relevant part: SG violated New York Labor Law Sec. 655 and 12 NYCRR 142-3.2 by failing to pay plaintiffs and the other members of the putative class overtime compensation for work they performed in furtherance of the public works contracts. (FAC, 135) Plaintiffs do not contend that SimplexGrinnell failed to pay them at least one and one-half times their regular rates of pay for hours worked over forty in a week. (Depositions of Agban Agban, p. 140:25-141:23; Maximo Estrella, Jr., p. 76:6-11; Jose Fernandez, p. 71:1277:9; Omar Florez, p. 149:15-150:18; Yadira Gonzalez, p. 83:15-84:18; Chris Maietta, p. 133:12-20; Jose Luis Maldonado, p. 147:13-17; Rafiu Owolabi, p. 202:4-13; Jaime Oyarvide, p. 124:23-125:11; Roberto Ramos, p. 173:12-175:6; Frank Rodriguez, p. 139:18-21; Rogelio Smith, p. 93:24-94;20; Randy Wray, 126:8-15, Breno Zimerer, p. 113:10-115:12) Rather, their claim seeks to recover the margin between the overtime rates they received based on their regular rates of pay and the overtime rates they claim they should have received based on the prevailing wage rate. This claim fails for two reasons. First, because Plaintiffs seek to recover "prevailing" overtime wages, this claim is subject to the administrative process set forth in Labor Law Section 220. Second, even if Plaintiffs could bring a private action to collect the margin between the regular and prevailing wage overtime rates, Plaintiffs lack the evidence needed to prove their claims.
39

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 19 of 22 PageID #: 2811
A. The Exclusive Statutory Remedy for Unpaid Prevailing Overtime Wages Lies in the Administrative Process Set Forth in New York Labor Law § 220.
Section 220 of the Prevailing Wage Act permits employees to recover prevailing wages, at the regular and overtime rates, through the administrative process set forth in the statute. N.Y. Lab. Law § 220(2),(7)-(8); Marangos Constr. Corp. v. New York State Dep't of Labor, 216 A.D.2d 758, 759, 628 N.Y.S.2d 451 (1995) (enforcing Labor Commissioner's determination that employer owed overtime compensation to employees). This process requires employees to seek an administrative determination from the Labor Commissioner before filing a civil action. N.Y. Labor Law§ 220(7)-(8); Marren v Ludlam, 14 AD3d 667, 669, 790 N.Y.S.2d 146 (2005) ("[N]o private right of action ... exists under Labor Law § 220 until an administrative determination in the employee's favor has been made and has gone unreviewed or has been affirmed."). Plaintiffs apparently believe they can bring statutory claims to collect unpaid overtime prevailing wages without first exhausting the administrative remedies in the Prevailing Wage Act. The applicable statutes and case law offer Plaintiffs no support.
In Brown v. Tom-Cat Electrical Security, Inc., Case No. 03-cv-5175(FB)(JO), 2007 U.S. Dist. LEXIS 63542, (Aug. 27, 2007), as here, the plaintiffs brought claims to collect the difference between the overtime rates they received based on their regular rate of pay and the overtime rates they claimed they should have received for performing prevailing wage work. Citing the administrative process set forth in Section 220 of the Prevailing Wage Act, the Court properly declined to exercise supplemental jurisdiction over any claims for prevailing wages,
overtime or otherwise.Jd. at *10, 14. The Court reasoned:
The Court's research has revealed no case confronting such "hybrid" claims combining elements of both overtime and prevailing wage claims; however, the Second Circuit's opinion in Grochowski [v. Phoenix Constr., 318 F.3d 80, 87 (2d Cir. 2003)] provides some guidance. There, plaintiffs sought unpaid overtime for work on federal construction projects and argued that overtime should be
40

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 20 of 22 PageID #: 2812
calculated based on prevailing wage rates because the federal Davis-Bacon Act ("DBA"), 40 U.S.C. § 276a, required payment of prevailing wages on federal projects. See 318 F.3d at 87. Noting that the DBA provided a specific administrative procedure for recovery of prevailing wages, the circuit court rebuffed the plaintiffs' attempt to import the requirements of the DBA into an FLSA overtime claim: "[T]he district court properly limited the plaintiffs' claims under the FLSA for unpaid overtime compensation to one-and-a-half times the hourly rates actually paid." Id (emphasis added). Guided by Grochowski, the Court holds that even though the third category of plaintiffs' pre-January 2002 claims deals with overtime payments, it must be deemed a prevailing wage claim and, therefore, subject to the administrative process set forth in § 220. Id at *14-15. Similarly, because Plaintiffs did not exhaust the administrative remedies available under Labor Law Section 220, this Court should reject Plaintiffs' statutory overtime claims. Plaintiffs cite the applicable overtime regulation, 12 N.Y.C.R.R. § 142-3.2, in support of their claims. (FAC, '1[35) This regulation derives its statutory authority from Article 19 of the Labor Law (the Minimum Wage Act, N.Y. Lab. Law §§ 650-665). See N.Y. Lab. Law § 655(5)(c); 12 N.Y.C.R.R. § 142-3.2. That Article authorizes civil actions only to enforce violations of Article 19. See N.Y. Lab. Law § 663 ("If any employee is paid by his or her employer less than the wage to which he or she is entitled under the provisions of this article, he or she may recover in a civil action the amount of any such underpayments ....") (emphasis added). It does not authorize civil actions to enforce violations of Article 8 (the Prevailing Wage Act, N.Y. Lab. Law§§ 220, et seq.) Id Article 19's implementing regulations do not address prevailing wage rates at all. They require only that employers pay overtime "at a wage rate of one and one-half times the employee's regular rate." 12 N.Y.C.R.R. § 142-3.2 (emphasis added). Plaintiffs have no claims under Article 19, because they cannot dispute that SimplexGrinnell always pays its employees at least one-and-one-half times the regular rate of pay for all hours over forty. To the degree SimplexGrinnell may have improperly failed to pay one and one-half times the "prevailing" rate
41

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 21 of 22 PageID #: 2813
of pay, the New York Legislature has created a separate remedial scheme for addressing those claims in Article 8 of the New York Labor Law. See N.Y. Lab. Law § 220(7)-(8). Plaintiffs cannot remedy such violations through Article 19.
B. Even if New York Law Authorized Plaintiffs' Overtime Claims, They Have No Evidence to Support Their Claims or the Claims of the Putative Class.
As set forth earlier, Plaintiffs cannot prove when and where they and other putative class members were improperly paid for work performed on public work projects, nor can they establish the work performed or the actual wage rates paid for any of the work they performed. Accordingly, for the same reasons set forth above, Plaintiffs cannot prove any entitlement to additional overtime compensation for work performed on these projects. V. Plaintiffs' Statutory Claim for "Failure to Pay Wages" Must Be Dismissed.
Plaintiffs' fifth claim for relief alleges that "by failing to pay plaintiffs and other members of the putative class the required wage and overtime compensation ... [and] the agreed upon benefits and/or wage supplements owed to them," SimplexGrinnell violated Sections 190, 191 and 198-c of the Labor Law. (FAC, '1['1[40-41) In essence, Plaintiffs seek to recover liquidated damages and attorneys' fees by recasting their common law claims for unpaid prevailing wages as statutory wage claims enforceable under Article 6 (§§ 190-199a) of the Labor Law.
The Appellate Division of the Supreme Court faced this same issue in De La Cruz v. Caddell Dry Dock & Repair Co., Inc., 804, N.Y.S. 2d 58, 60-61, 22 A.D.3d 404 (2005), and it rejected the plaintiffs' bid to recover statutory remedies in connection with their breach of contract claims for unpaid prevailing wages.
The fifth cause of action for willful failure to pay prevailing wages was also properly dismissed. The statutory remedies of an award of attorneys' fees and liquidated damages which plaintiffs seek "are limited to actions for wage claims founded on the substantive provisions of Labor Law article 6" and are not recoverable, as here, in a common-law contractual remuneration action.
42

Case 1:07-cv-00981-SMG Document 111-3 Filed 03/25/10 Page 22 of 22 PageID #: 2814
Id; see also Jara v. Strong Steel Door, Inc., 872 N.Y.S.2d 691, 20 Misc. 3d 1135A ("To the extent that prevailing wages are sought to be recovered, Labor Law § 191 is an inappropriate vehicle for such recovery.... Rather, Labor Law § 220 is the appropriate statutory provision applicable to plaintiffs' claims regarding prevailing wages. However, plaintiff does not bring a cause of action pursuant to Labor Law § 220, presumably because such claims would be precluded in the first instance due to plaintiffs' failure to exhaust their administrative remedies as required under Labor Law § 220.... The motion to dismiss is granted")
Accordingly, because Plaintiffs' claims for unpaid prevailing wages are not founded on the substantive provisions of Article 6, the Court should dismiss their claims for violations of Section 190, 191, and 198-c.
CONCLUSION Plaintiffs failed to obtain the information necessary to prove their claims, and thus, they cannot possibly prevail at trial on the claims alleged in their Complaint. SimplexGrinnell respectfully submits that the Court should dismiss this case in its entirety, or at a minimum, grant partial summary judgment for the numerous reasons provided above.
Respectfully submitted,
~-
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 521 5th Avenue, Suite 1700 New York, New York 10175 Tel: (212) 292-4314 david.copus@odnss.com Attorneys for Defendant SimplexGrinnell LP
8400066.1 (OGLETREE)
43

 
 Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 1 of 46 PageID #: 5127

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------x ROBERTO RAMOS, et al.,

-against-

Plaintiffs,

Memorandum & Order 07-CV-981 (SMG)

SIMPLEXGRINNELL LP,

Defendant. -----------------------------------------------------x Gold, S., United States Magistrate Judge:

INTRODUCTION

Plaintiffs, on behalf of themselves and other employees of defendant, bring this action

seeking to recover unpaid prevailing wages for their work on various public works projects. The

parties have filed cross-motions for summary judgment. Plaintiffs have also moved for class

certification pursuant to Federal Rule of Civil Procedure 23(b)(3). Finally, defendant has filed a

Daubert motion seeking to exclude the testimony of plaintiffs’ expert.

FACTUAL BACKGROUND

Defendant SimplexGrinnell, formed in 2001, is a “leader[] in fire and life-safety systems”

with offices throughout the United States, including New York. Zammitti Aff. ¶ 2, Docket Entry

111-4. More specifically, defendant manufactures, installs and services fire alarm and sprinkler

systems and equipment. Zammitti Certification ¶ 2, Docket Entry 109-26; see also Hext 3/25/10

Aff. ¶ 2, Docket Entry 111-15 at 19-24. Over the years, defendant has entered into thousands of

contracts with New York State and City agencies for installation, maintenance, repair and

inspection of their safety systems. Zammitti Aff. ¶ 5.

Pursuant to New York law, public works contracts – i.e., contracts with state or local

governmental agencies to perform construction, maintenance and repair of public buildings –

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 2 of 46 PageID #: 5128
must provide that all laborers will be paid prevailing wages. N.Y. LABOR LAW § 220(3). Plaintiffs are fifteen current and former employees of defendant who performed electrical and sprinkler work, including installation, maintenance, inspection, testing, repairs, and replacement of fire alarms and security systems, on various public works projects throughout the state. Am. Compl. ¶ 18, Docket Entry 56. Plaintiffs contend that defendant failed to pay the named plaintiffs and the members of the putative class all the prevailing wages due to them for their work on public works projects.
STATUTORY BACKGROUND -- NEW YORK LABOR LAW § 220 New York has a strong public policy of protecting its workers, rooted in a 1905 amendment to the state’s Constitution.
Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed. No laborer, worker or mechanic . . . engaged in the performance of any public work[] shall be . . . paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used. N.Y. CONST. art. I, § 17. Labor Law § 220, a codification of the Constitutional amendment, was enacted “to ensure that employees on public works projects are paid wages equivalent to the prevailing rate of similarly employed workers in the locality where the contract is to be performed.” Beltrone Constr. Co. Inc. v. McGowan, 260 A.D.2d 870, 871-72 (3d Dep’t 1999); see also Cayuga-Onondaga Counties Bd. of Co-op. Educ. Servs. v. Sweeney, 89 N.Y.2d 395, 401 (1996) (discussing briefly the legislative history of § 220 and the prevailing wage constitutional amendment). Today, “[i]t is well-settled that the primary purpose and intent of the prevailing wage law (Labor Law § 220) is to protect workers by ensuring that they have an effective remedy to secure the prevailing wage and supplements.” E. Williamson Roofing & Sheet Metal Co. v. Town of Parish, 139 A.D.2d 97, 103 (4th Dep’t 1988).
2

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 3 of 46 PageID #: 5129
As noted above, under New York law, every public works contract must provide that all laborers employed on the public works project will be paid prevailing wages. N.Y. LABOR LAW § 220(3)(a). The Labor Law provides for administrative enforcement of its wage provisions. Id. § 220(7)-(9). See also Brown v. Tomcat Elec. Sec. Inc., 2007 WL 2461823, at *3 (E.D.N.Y. Aug. 27, 2007) (describing the administrative scheme that an aggrieved employee may follow to pursue payment of alleged unpaid prevailing wages). There is no private right of action directly under the Labor Law “until an administrative determination in the employee’s favor has been made and has gone unreviewed or has been affirmed.” Marren v. Ludlam, 14 A.D.3d 667, 669 (2d Dep’t 2005). The New York Court of Appeals, however, has held that an administrative claim is not the exclusive avenue for relief available to an employee denied prevailing wages, who may bring a common law breach of contract claim as the intended third-party beneficiary of a public works contract. Fata v. S.A. Healy Co., 289 N.Y. 401, 404-07 (1943). See also Quintanilla v. Suffolk Paving Corp., 2011 WL 1323033, at *7 (E.D.N.Y. Feb. 10, 2011).
DISCUSSION The various pending motions were, for all practical purposes, brought simultaneously. Because a ruling on any of the pending motions would affect issues raised by the others, the first question that arises is the order in which the motions should be addressed. I begin by ruling on the class certification motion. I next consider defendant’s motion for summary judgment. I then turn to defendant’s Daubert motion and finally address plaintiffs’ motion for summary judgment. 1. Class Certification Plaintiffs move for class certification of their prevailing wage claims pursuant to Rule 23(b)(3). Plaintiffs propose to certify a class defined as follows:
[A]ll laborers, workmen and mechanics who furnished labor to SimplexGrinnell on non-federal public works projects in the State of New
3

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 4 of 46 PageID #: 5130
York at any time from February 6, 2001[, or from July 14, 2001 for sprinkler work] until the final judgment in this matter, and who . . . have not been paid prevailing wages and benefits as required by law.1 Pl. Mem. 18;2 see also Am. Compl. ¶ 7. Plaintiffs bear the burden of establishing, by a preponderance of the evidence, the four prerequisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) fairness and adequacy of representation. A plaintiff must also qualify under one of the subdivisions of Rule 23(b). See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008); Marisol A. v. Giuliani, 126 F.3d 372, 375-76 (2d Cir. 1997). A district court undertakes a “rigorous analysis” and “assess[es] all of the relevant evidence admitted at the class certification stage [to] determine whether each Rule 23 requirement has been met.” In re Initial Pub. Offering Secs. Litig., 471 F.3d 24, 33, 42 (2d Cir. 2006). Although a court deciding a certification motion should not evaluate aspects of the merits unrelated to the requirements of Rule 23, it must determine whether each of the rule’s requirements has been satisfied, even when doing so involves resolving a question that also bears on the merits. Id. at 41. “The Second Circuit has emphasized that Rule 23 should be ‘given liberal rather than restrictive construction,’ . . . and ‘it seems beyond peradventure that the Second Circuit’s general preference is for granting rather than denying class certification.’” Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 361-62 (E.D.N.Y. 2009) (internal citations omitted).
1 In their motion papers, plaintiffs propose a class of employees who “claim” they were not paid prevailing wages. Pl. Mem. 18. At oral argument, however, plaintiffs’ counsel described the putative class as one that would “only include employees “who have not been paid prevailing wages due.” Transcript of 6/28/10 Oral Argument (“Tr.”) 5, Docket Entry 139. 2 “Pl. Mem.” refers to Plaintiffs’ Memorandum of Law in Support of Motions for Class Certification and Summary Judgment, Docket Entry 109.
4

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 5 of 46 PageID #: 5131
a. Numerosity Plaintiffs must show that “the class is so numerous that joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). Courts in the Second Circuit presume numerosity when the putative class has at least forty members. Gortat, 257 F.R.D. at 362 (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995)). Plaintiffs estimate that the class would be comprised of at least 400 and possibly more than 600 members based on an employee list produced by defendant. Pl. Mem. 21; Pl. R.56.1 ¶ 11; Pl. Ex. 1, Docket Entry 109-3 at 34-49 (identifying hundreds of employees with damages); Tr. 5-6 (noting that over 700 SimplexGrinnell employees worked on public sites).3 Even defendant appears to concede that numerosity is met. Love 3/7/07 Decl. ¶ 5, Pl. Ex. 16 (declaring that defendant has employed more than 400 individuals to perform electrical work in New York during the relevant time period). Clearly, numerosity is satisfied. b. Commonality Rule 23(a)(2) requires a showing that “there are questions of law or fact common to the class.” FED. R. CIV. P. 23(a)(2). Commonality may be met even though individual circumstances differ, so long as class members’ “‘injuries derive from a unitary course of conduct.’” Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 338 (S.D.N.Y. 2004) (quoting Marisol, 126 F.3d at 377). Here, the requirement of commonality is satisfied. Plaintiffs’ claim – that they and the proposed class members were denied prevailing wages by defendant – raises common questions of law and fact. Employees from defendant’s various offices throughout New York have stated that, at least prior to 2007, they and their fellow SimplexGrinnell employees were paid the same
3 “Pl. R.56.1” refers to Plaintiffs’ Local Rule 56.1 Statement of Undisputed Facts, Docket Entry 109-85. Plaintiffs’ exhibits 1-78 are found at Docket Entry 109, and plaintiffs’ exhibits 79-108 are found at Docket Entry 118.
5

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 6 of 46 PageID #: 5132
wages for their work on public and private projects and did not receive prevailing wages for their work on public job sites. Ford Decl. ¶¶ 13-14, Pl. Ex. 13; Hobbs Decl. ¶ 5, Pl. Ex. 14; Kuhlman Decl. ¶ 8, Pl. Ex. 15; Mitchell Decl. ¶¶ 11-12, Pl. Ex. 17; Stickney Decl. ¶¶ 10-12, Pl. Ex. 18; Ward Decl. ¶¶ 10-11, Pl. Ex. 19; Ziolkowski Decl. ¶¶ 9, 10, 12, Pl. Ex. 21. Plaintiffs have also submitted evidence indicating that defendant’s payroll procedures were centralized. Bourgoin Dep. 59-61, Pl Ex. 56; Love Dep. 105-09, Pl. Ex. 64.
Other evidence further demonstrates defendant’s practice, at least in some circumstances, of failing to pay prevailing wages. See, e.g., id. at 75-76 (noting that the Newburgh office failed to pay prevailing wages for certain work performed in Westchester County and that defendant then made back payments to its employees); id. at 221-27 (reviewing extracts from defendant’s computer records that indicate that various public projects were not “flagged” properly to ensure that employees were paid prevailing wages); Pl. Ex. 36 (reflecting a finding by the New York State Department of Labor that defendant “failed to notify workers of prevailing rates and [prevailing wage] projects”); Pl. Ex. 47 (indicating that defendant failed to pay prevailing wages for labor performed in connection with certain public works projects in Suffolk County from 2003 through 2005); Hext Dep. 72 (testifying that defendant conducted a second audit and made additional back payments for Suffolk County work performed after 2005); Pl. Ex. 49 (2007 letter from defendant conceding that it failed to submit certified payroll records for its work on a particular public works project); Hext Dep. 20 (noting that defendant also had a prevailing wage suit pending against it in California); id. at 109 (testifying that defendant began testing a prevailing wage compliance program only in November, 2006).
Although not proffered by plaintiffs for this proposition, the evidence before the Court also includes a concession by defendant that, from 2004 to 2008, payments of prevailing wages
6

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 7 of 46 PageID #: 5133
to its New York City employees could be made only by manually overriding defendant’s general payroll system. Hext 3/24/10 Aff. ¶ 11 (filed under seal as Docket Entry 110-4) (stating that “[e]xcept in rare circumstances, SimplexGrinnell’s New York City office used the manual override process as its exclusive means of paying prevailing wages during the period from at least April, 2004 through late-2008”); see also Pl. R.56.1 ¶ 25 (stating that defendant’s payroll process was uniform throughout New York); Def. Response ¶ 25, Docket Entry 115-2 (plaintiffs’ R.56.1 ¶ 25 is undisputed). A system of manual overrides is inherently likely to fail to pay all prevailing wages due because it depends upon the employees’ knowledge of their right to seek the wage differential, the submission by employees of additional paperwork seeking prevailing wages, and accurate processing of employee requests by the defendant. There is also a dispute between the parties as to whether defendant’s employee time sheets, particularly prior to 2006, even provided a space for an employee to indicate an entitlement to prevailing wages.4 See, e.g., Zammitti Dep. 110-15, Pl. Ex. 72 (discussing a sample 2004 time sheet that failed to include such a space); Pl. R.561. ¶ 26; Def. Response ¶ 26 (citing a 2005 timesheet that permitted an employee to indicate he should be paid prevailing wages).
According to defendant, its various offices used different procedures for paying prevailing wages. Defendant’s prevailing wage manager, hired in 2005, testified at her deposition that “some offices did and some offices did not” pay prevailing wages for service and maintenance work performed on public projects. Hext Dep. 47, Pl. Ex. 61. Defendant argues that its lack of uniform procedures defeats plaintiffs’ showing with respect to commonality. However, defendant’s various New York regional offices apparently did have one policy in common, at least according to plaintiffs’ allegations: a failure to adopt a regularly employed and
4 The parties also dispute whether pay stubs properly noted the payment of prevailing wages. See Pl. R.56.1 ¶ 27; Def. Response ¶ 27.
7

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 8 of 46 PageID #: 5134
reliable method of distinguishing covered work and ensuring that prevailing wages were paid to employees for covered work they performed. To the contrary, according to plaintiffs’ allegations, SimplexGrinnell’s various offices paid little or no heed to defendant’s obligation to pay prevailing wages for covered work. I therefore conclude that, while plaintiffs’ claims may raise individualized questions regarding the number of covered hours that a specific employee worked and the prevailing wage the employee was entitled to be paid, these questions “will not predominate over the questions of law and fact that are relevant to all members of the purported class.” Gortat, 257 F.R.D. at 362. See also Marisol, 126 F.3d at 376; Becher v. Long Island Lighting Co., 164 F.R.D. 144, 150 (E.D.N.Y. 1996) (“Rule 23(a)(2) requires only that questions of law or fact be shared by the prospective class. It does not require that all questions of law or fact raised be common.”) (internal quotation marks omitted). Rather, these individual questions “relate primarily to the level of damages, if any, owing to each individual,” and not to the question of liability. Noble, 224 F.R.D. at 343 (citing Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 86 (S.D.N.Y. 2001)).
Indeed, and of significance with respect to commonality as well as each of the other Rule 23 requirements discussed below, claims by workers that their employers have unlawfully denied them wages to which they were legally entitled have repeatedly been held to meet the prerequisites for class certification. See, e.g., Jankowski v. Castaldi, 2006 WL 118973, at *2-3 (E.D.N.Y. Jan. 13, 2006) (finding commonality among the plaintiffs who alleged that they had been denied overtime wages pursuant to defendants’ policy); Noble, 224 F.R.D. at 343 (finding the commonality requirement met where “each potential class member was employed by [defendant] . . ., was required to work in excess of forty hours each week, and was not properly
8

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 9 of 46 PageID #: 5135
compensated for this additional labor”). In this case, as in Eldred v. Comforce Corp., 2010 WL 812698, at *19 (N.D.N.Y. Mar. 2, 2010),
[t]he class definitions at issue . . . include all . . . employees who allegedly . . . were not paid prevailing wage[s] on state-funded contracts, . . . which resulted from the implementation of allegedly unlawful policies by their common employer. The predominant question raised is whether such a policy existed, and not whether any individual suffered its consequences on a particular job. See also Cuzco v. Orion Builders, 262 F.R.D. 325, 334 n.20 (S.D.N.Y. 2009) (finding that defendant’s pay practices were common to the class and thus met the commonality requirement). The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. _, 2011 WL 2437013 (2011), issued earlier this week, does not command a different result. In Wal-Mart, the Court considered whether plaintiffs had bridged the “conceptual gap” between an individual’s claim of injury and the existence of a class of persons who have suffered the same injury. 2011 WL 2437013, at *8. The Court held that the gap could be bridged with “significant proof that [defendant] operated under a general policy of discrimination.” Id. (internal quotation marks omitted). The Court found that such proof was “entirely absent” and emphasized that plaintiffs did not allege “any express corporate policy” of discrimination, id. at *4, and that the challenged pay and promotion decisions were “generally committed to local managers’ broad discretion, which [was] exercised in a largely subjective manner.” Id. at *3. The relevant facts and circumstances in Wal-Mart have little bearing here. As indicated above, plaintiffs have come forward with significant proof that defendant routinely failed to account for labor performed on public works projects and pay prevailing wages for covered work. Moreover, there is little discretion or subjective judgment in determining an employee’s right to be paid prevailing wages; the right arises automatically, by operation of law, provided the nature of the construction project and the type of labor performed fall within the scope of New York Labor Law § 220. In
9

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 10 of 46 PageID #: 5136
addition, whereas in Wal-Mart defendant had an “announced policy” prohibiting discrimination, id. at *8, defendant here has not come forward with evidence of an expressed uniform policy that ensured the payment of prevailing wages to its employees when due. Finally, although the efforts of the Wal-Mart plaintiffs to prove their case with statistical evidence failed, plaintiffs here have come forward with class-wide proof culled from defendant’s electronic data that, as discussed in greater detail below, is sufficiently reliable to be presented at trial.
Similarly, the cases cited by defendant holding that the commonality requirement was not met are distinguishable because in those cases liability was not susceptible to class-wide proof. Def. Opp. 20.5 For example, in Dobson v. Hartford Financial Services Group, Inc., 342 Fed. Appx. 706, 709 (2d Cir. 2009), the defendant insurer’s liability hinged on whether its delay in providing disability benefits was “unreasonable.” The Court held that this question could not be resolved with class-wide proof because “[t]he duration of a ‘reasonable time’ to review a claim might vary with such factors as the complexity of the facts, the need for follow-up to verify the proofs, and the difficulty of the determination.” Id. at 709. Defendant’s reliance on Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002), is similarly misplaced. In Moore, plaintiffs’ class claims were based on oral misrepresentations that undoubtedly varied among members of the putative class. The Court specifically held that, while fraud claims based on individualized representations are not properly certified for class treatment, fraud claims that rest on uniform representations are. Here, as discussed above, plaintiffs have put forth evidence of defendant’s general payroll practices as part of their proof that they were denied prevailing wages. For all these reasons, I find that plaintiffs meet the commonality requirement of Rule 23.
5 “Def. Opp.” refers to Defendant’s Memorandum of Law in Opposition to Plaintiffs’ Motions for Class Certification and Summary Judgment, Docket Entry 115.
10

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 11 of 46 PageID #: 5137
c. Typicality “Typicality . . . requires that the claims of the class representatives be typical of those of the class, and ‘is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.’” Marisol, 126 F.3d at 376 (internal citations omitted). “The commonality and typicality requirements tend to merge into one another, so that similar considerations animate” the analysis of each. Id. Named plaintiffs allege that they each performed similar work for defendant, were subject to the same payroll procedures of defendant, and, like other members of the class, were not paid prevailing wages to which they were entitled. Pl. R. 56.1 ¶¶ 12, 13, 16-28; Pl. Mem. 2223. Employees from defendant’s offices throughout the state make allegations similar to those of the named plaintiffs. See Ford Decl. ¶¶ 13-14, Pl. Ex. 13; Hobbs Decl. ¶ 5, Pl. Ex. 14; Kuhlman Decl. ¶ 8, Pl. Ex. 15; Mitchell Decl. ¶¶ 11-12, Pl. Ex. 17; Stickney Decl. ¶¶ 10-12, Pl. Ex. 18; Ward Decl. ¶¶ 10-11, Pl. Ex. 19; Ziolkowski Decl. ¶¶ 9, 10, 12, Pl. Ex. 21. Defendant does not assert that any of the named plaintiffs are subject to unique defenses that would destroy typicality. Def. Opp. 16-37; cf. Noble, 224 F.R.D. at 343 (noting that one of the named plaintiffs may be exempt from the overtime wage laws and concluding that his claims are not typical of the class). Although named plaintiffs and putative class members may differ with respect to job classification, office location, and the amount of testing and inspection work each performed, these differences do not destroy typicality. Defendant notes that all of the named plaintiffs work out of its New York City office, and that as a result there are no representatives from upstate New York or Long Island. Def. R.56.1 ¶ 4, Docket Entry 111-5. These differences – job
11

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 12 of 46 PageID #: 5138
classification and locality – are not sufficiently significant to plaintiffs’ claims to undermine typicality, particularly because plaintiffs challenge payroll practices defendant employed throughout the state. Indeed, as will be discussed below in connection with defendant’s Daubert motion, defendant’s alleged liability to the members of the class may be determined by examining the same electronic databases. I therefore find that the named plaintiffs’ claims are sufficiently typical of those of putative class members to satisfy Rule 23(a)(3), with the exception discussed below of any named plaintiff who is not owed any prevailing wages.
d. Adequate Representation Rule 23(a)(4) requires named plaintiffs to demonstrate that they will fairly and adequately protect the interests of the class. Here, with the exception noted below, the interests of the named plaintiffs are aligned with those of the proposed class members, and there is no reason they could not serve as adequate class representatives. See Gortat, 257 F.R.D. at 365. Defendant’s argument that each of the named plaintiffs has no personal stake in the claims for monetary damages of putative class members, Def. Opp. 36, would apply in virtually any class action. Defendant has not suggested that the claims of the named plaintiffs are in any way antagonistic to those of the putative class members, or that the representatives lack sufficient moral character. See Noble, 224 F.R.D. at 344. Moreover, according to plaintiffs’ expert’s analysis, the claims of the named plaintiffs cover a range of potential damage awards.6 It appears, however, that at least one of the named plaintiffs is not owed any prevailing wages. See Docket Entry 149-2 (calculating zero damages for named plaintiff Agban). I conclude that any
6 For example, according to Dr. Crawford’s most recent damages calculations, class representatives Ramos and Rodriguez claim substantial non-testing and inspection damages, while named plaintiffs Smith and Estrella each have less than one thousand dollars in damages, after accounting for the self-audit payments defendant has already made. Docket Entry 149-2.
12

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 13 of 46 PageID #: 5139
named plaintiff who was paid all wages he earned does not have a claim typical of those of the absent class members and may not serve as a class representative.7
I now turn to the adequacy of class counsel. At the time that plaintiffs filed their motion, they were represented by law firms Constantine Cannon and Berenbaum Menken. In October, 2010, I granted Constantine Cannon’s motion to be relieved. Plaintiffs continue to be represented by Raymond Fay, formerly of Constantine Cannon and now of Mehri & Skalet. Accordingly, plaintiffs seek to have Berenbaum Menken and Mehri & Skalet appointed as colead class counsel pursuant to Rule 23(g). Pl. Mem. 27 n.22. It appears that defendant does not challenge the appointment of Berenbaum Menken and Raymond Fay as counsel for the class. Def. Opp. 36-37. Plaintiffs, however, have not presented any information about Mehri & Skalet or whether its qualifications meet Rule 23(g). Nonetheless, I take judicial notice of the public information filed on the firm’s website, http://www.findjustice.com.
When determining whether proposed counsel should be appointed to represent the class, a court must consider
(i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. FED. R. CIV. P. 23(g)(1)(A). Berenbaum Menken and Mehri & Skalet have extensive class action and labor law experience. Pl. Ex. 31; http://www.findjustice.com. Berenbaum Menken has represented the plaintiffs since it filed this action in February of 2007 and has thus invested a substantial amount
7 I defer any determination as to which specific plaintiffs’ claims are not typical until after Dr. Crawford revises his report in accordance with my rulings made herein.
13

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 14 of 46 PageID #: 5140
of time and effort investigating and prosecuting plaintiffs’ claims. See Docket Entry 1. Both of the lead attorneys, Bruce Menken of Berenbaum Menken and Raymond Fay of Mehri & Skalet, have more than twenty years of legal experience and are more than capable of representing the class. Pl. Exs. 31, 32; see also http://www.findjustice.com. Accordingly, Berenbaum Menken and Mehri & Skalet are appointed class counsel pursuant to Rule 23(g).
e. Rule 23(b)(3) Requirements Plaintiffs seek certification under Rule 23(b)(3), which requires a demonstration that “questions of law or fact common to class members predominate” over questions affecting only individual class members. The “Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 623 (1997). “[T]o meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001) (alteration in original) (internal quotation marks omitted). The focus of the predominance inquiry is on defendant’s liability, not on damages. Bolanos v. Norwegian Cruise Lines Ltd., 212 F.R.D. 144, 148 (S.D.N.Y. 2002); see also In re Visa, 280 F.3d at 139 (noting that “[c]ommon issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues”); Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003) (“The individuation of damages in . . . class actions is rarely determinative under Rule 23(b)(3).”). “The predominance criterion is, in effect, a stricter version of the commonality requirement of Rule 23(a)(2).” Ansoumana, 201 F.R.D. at 89.
14

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 15 of 46 PageID #: 5141
Here, common questions of law and fact relevant to all class members predominate over individualized issues. True, the putative class members earned prevailing wages at different rates, some worked more hours than others, and some are electricians and others are sprinkler fitters. However, these differences do not predominate over the main issue: whether defendant systematically failed to pay its employees the prevailing wages due them. As discussed above, defendant failed to implement any routine or automated system for paying prevailing wages, instead relying on manual overrides, particularly prior to 2007. Accordingly, I find that plaintiffs have shown that common questions of law or fact predominate over any individualized issues. See Bolanos, 212 F.R.D. at 148 (noting that “a uniform practice or scheme [by defendant] to deprive [its] employees of overtime wages . . . [is] a significant step towards establishing liability to all class members”).
In fact, and also as discussed above, numerous courts have found that wage claims are especially suited to class litigation – perhaps “the most perfect questions for class treatment” – despite differences in hours worked, wages paid, and wages due. Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 373 (S.D.N.Y. 2007). See, e.g., Eldred, 2010 WL 812698, at *19 (granting plaintiffs’ motion for class certification for their prevailing wage claim); Alleyne v. Time Moving & Storage Inc., 264 F.R.D. 41, 49 (E.D.N.Y. 2010) (holding that “differences among class members as to the number of hours worked, the precise work they did and the amount of pay they received concern the amount of damages to which any individual class member might be entitled, not the amenability of their claims to Rule 23 certification.”); Gortat v. Capala Bros., Inc., 2010 WL 1423018, at *4-5 (E.D.N.Y. Apr. 9, 2010); Cuzco, 262 F.R.D. at 334-35; Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 159 (S.D.N.Y. 2008) (rejecting defendant’s argument that individual issues predominate and finding that defendant’s common,
15

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 16 of 46 PageID #: 5142
uniform policies established predominance); Barone v. Safway Steel Prods., Inc., 2005 WL 2009882, at *6 (E.D.N.Y. Aug. 23, 2005) (finding that common issues predominate in a prevailing wage class action); Noble, 224 F.R.D. at 345 (concluding that, “[a]lthough determinations as to damages . . . will require individualized findings, common liability issues otherwise predominate”); Bolanos, 212 F.R.D. at 148 (holding “different . . . departments kept track of overtime using different methods, differences in departments, job duties, and even factual variations in plaintiffs’ claims should not defeat class certification . . . where all plaintiffs claim they were denied overtime”); Ansoumana, 201 F.R.D. at 89 (certifying a class alleging violations of the New York Minimum Wage Act). Similarly, New York state courts have repeatedly approved class certification of prevailing wage claims against an employer. See Galdamez v. Biordi Constr. Corp., 50 A.D.3d 357 (1st Dep’t 2008); Brady v. Canea Mare Contracting, Inc., 34 A.D.3d 512 (2d Dep’t 2006); Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11 (1st Dep’t 1998); Nawrocki v. Proto Constr. & Dev. Corp., 2010 WL 1531428, at *6 (N.Y. Sup. Ct. Apr. 7, 2010), aff’d 82 A.D.3d 534 (1st Dep’t 2011); Pajaczek v. CEMA Constr. Corp., 18 Misc.3d 1140(A), at *2 (N.Y. Sup. Ct. 2008). Indeed, in Jara v. Strong Steel Door, Inc., 2008 WL 3823769 (N.Y. Sup. 2008), a case that defendant repeatedly cites in its memorandum in support of summary judgment, the court certified a prevailing wage class, finding that “[t]he only individual peculiarities among class members relate to the amount of damages recoverable depending on the number of hours worked and the prevailing wage rates applicable to each worker’s trade. Such peculiarities are not an impediment to class certification.” Id. at *13.
Defendant relies on various cases holding that class certification should be denied unless plaintiffs can establish liability on a class-wide basis using common proof. Def. Opp. 22 n.19.
16

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 17 of 46 PageID #: 5143
While this general proposition may be correct, the facts of the cases defendant cites are readily distinguished from those presented here. For example, in Deiter v. Microsoft Corp., 436 F.3d 461, 467-68 (4th Cir. 2006), an antitrust action claiming defendant charged monopoly prices, the court held that individualized proof would predominate because some putative class members negotiated with the defendant over the prices they paid. Similarly, in Rutstein v. Avis Rent-ACar Sys., Inc., 211 F.3d 1228, 1234-35 (11th Cir. 2000), a discrimination case, the Court of Appeals held that class certification was properly denied because the claim required “every member of the class” to present individualized proof of the defendant’s intentional discrimination. In this case, on the other hand, if plaintiffs establish that defendant had a practice or policy of failing to pay prevailing wages, defendant’s liability to all class members will be established.
Rule 23(b)(3) also requires a finding that a class action is superior to other means of adjudication. As noted above, questions that are relevant to all members of the class predominate over individualized issues, supporting the efficiency of proceeding in this case in the form of a class action. Moreover, a class action is the most efficient way to resolve the claims at issue here; although defendant has raised questions about the reliability of plaintiffs’ expert’s report, it appears that plaintiffs may calculate class damages by applying a common formula to data culled from defendant’s electronic records. See Crawford Rpt. ¶¶ 20-50.8
Defendant contends that many putative class members are allegedly owed significant damages, at least according to plaintiffs’ expert’s calculations, and that “courts regularly deny certification” when individual claims are relatively large. Def. Opp. 34. The court is not aware of any precedent instructing that a class should not be certified on the sole ground that some of the class members’ claims are substantial. In the cases that defendant cites, Def. Opp. 34, the
8 “Crawford Rpt.” refers to the Third Revised Expert Report of David L. Crawford, PhD, Docket Entry 109-3.
17

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 18 of 46 PageID #: 5144
courts denied certification on various grounds – for lack of commonality and typicality, and “overwhelming” individual issues – and one factor in the decision was the fact that individual claims had a significant dollar value. See Smith v. Texaco, Inc., 263 F.3d 394, 416 (5th Cir. 2001) (denying class certification of discrimination claims). Although some putative class members in this case may have damages of over $100,000, Def. Opp. 35, that fact, standing alone, is insufficient to defeat class certification. If any class members with such large claims prefer to pursue them individually, they may opt out of the class.
Finally, some of the claims of absent class members are small, and some of the absent class members are currently employed by the defendant. These facts support class certification as well. For these reasons, I conclude that a class action is a superior method for litigation of these claims. Accordingly, plaintiffs’ motion for class certification of their prevailing wage claims pursuant to Rule 23(b)(3) is granted.
2. Defendant’s Motion for Summary Judgment Defendant moves for summary judgment on essentially seven grounds: 1) on all breach
of contract claims other than those claims that rely on the twenty-nine contracts that plaintiffs have identified, 2) on claims for time spent testing and inspecting, 3) on claims for which plaintiffs’ expert calculated zero damages, 4) on all New York City and Long Island claims, 5) on claims for work in certain counties on the ground that the National Labor Relations Act preempts those claims, 6) on plaintiffs’ claims for quantum meruit and unjust enrichment, 7) on plaintiffs’ overtime claims, and 8) on plaintiffs’ fifth cause of action.
Standard Summary judgment is appropriate where “there is no genuine issue as to any material fact.” FED. R. CIV. P. 56(c). An issue of fact is material if it “might affect the outcome of the
18

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 19 of 46 PageID #: 5145
suit under the governing law,” and genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See also Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991). In reaching a summary judgment determination, the court must resolve ambiguities and draw reasonable inferences in favor of the nonmoving party. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991). The moving party bears the initial burden of establishing that there are no genuine issues of material fact; once he does so, the non-moving party may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial. Anderson, 477 U.S. at 256; Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996). Mere conclusory allegations, however, are insufficient, and “[t]here must be more than a ‘scintilla of evidence’” to defeat a motion for summary judgment. Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252).
a. Breach of Contract Plaintiffs, as third party beneficiaries of defendant’s public works contracts, allege that defendant breached thousands of public works contracts when it failed to pay its employees prevailing wages. See Am. Compl. ¶ 24; Table of SimplexGrinnell Public Works Projects (“Table”), Docket Entries 109-4, 109-5, 109-6, 109-7 (identifying 13,409 public works projects entered into by defendant during the relevant time period). In the course of discovery, though, plaintiffs obtained only twenty-nine actionable public works contracts from defendant.9 Defendant contends that plaintiffs may not maintain their breach of contract claims without submitting the contracts in evidence. Def. SJ Mem. 18-21. Plaintiffs respond that the thousands
9 Plaintiffs obtained thirty-nine contracts but defendant states that ten of them are “not actionable” for various reasons. SimplexGrinnell’s Memorandum of Law in Support of its Motion for Summary Judgment (“Def. SJ Mem.”) 9, Docket Entry 111; Capozzola Aff. ¶ 14, Docket Entry 111-6. For example, three of the documents were bid documents; one contract predated the actionable period in this suit; one was a federal contract; and one contract was with an entity other than defendant. Capozzola Aff. ¶¶ 14-21.
19

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 20 of 46 PageID #: 5146
of actual contracts are not needed because New York state law requires that all public works contracts contain a prevailing wage provision. Pl. Opp. 6-13.10 With respect to the projects for which they do not have contracts, plaintiffs intend to rely primarily upon this statutory requirement to prove their contractual entitlement to prevailing wages. Pl. Mem. 39-41; Pl. Reply 25-27.11
In light of the particular circumstances of this case, I conclude that defendant may not obtain summary judgment on plaintiffs’ third-party beneficiary claims on the grounds that plaintiffs will not be offering the underlying contracts in evidence. I reach this decision for the reasons set forth below, and primarily because defendant was required by law to include a prevailing wage provision in each of its public works contracts.
I begin from the premise that New York Labor Law explicitly provides that all construction contracts entered into by a public entity, including those for maintenance and repair of public buildings, “shall contain a provision that each laborer, workman or mechanic, employed by such contractor, subcontractor or other person about or upon such public work, shall be paid the wages herein provided.” N.Y. LABOR LAW § 220(3)(a). In short, the law mandates that defendant’s public works contracts contain prevailing wage provisions.
When parties enter into a contract, they are “presumed or deemed to have contracted with reference to” applicable existing laws. 11 WILLISTON ON CONTRACTS § 30:19 (4th ed.). See also Resolution Trust Corp. v. Diamond, 45 F.3d 665, 673 (2d Cir. 1995) (“When parties enter into a contract, they are presumed to accept all the rights and obligations imposed on their relationship by state (or federal) law.”); Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193 (2001) (“When
10 “Pl. Opp.” refers to Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment, Docket Entry 119. 11 “Pl. Reply” refers to Plaintiffs’ Reply Memorandum in Support of Motions for Class Certification and Summary Judgment, Docket Entry 126.
20

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 21 of 46 PageID #: 5147
evidence is lacking that both parties intended to violate the law, a contract . . . should be construed in favor of its legality.”); Rodgers v. Coler, 166 N.Y. 1, 9 (1901) (“If the law is valid, it governs the contract and the rights of the parties, whether actually incorporated into the writing or not, since all contracts are assumed to be made with a view to existing laws on the subject.”), quoted in Fata, 289 N.Y. at 406. “Under th[e] presumption of incorporation, valid applicable laws existing at the time of the making of the contract enter into and form a part of the contract as fully as if expressly incorporated in the contract” and become “implied terms of the contract, regardless of whether the agreement refers to the governing law.” WILLISTON § 30:19. See also Farmers’ & Merchants’ Bank of Monroe v. Fed. Reserve Bank of Richmond, 262 U.S. 649, 660 (1923) (“Laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as fully as if they had been expressly referred to or incorporated in its terms.”); 2 Tudor City Place Assocs. v. 2 Tudor City Tenants Corp., 924 F.2d 1247, 1254 (2d Cir. 1991) (“Laws and statutes in existence at a time a contract is executed are considered a part of the contract, as though they were expressly incorporated therein.”); Ronnen v. Ajax Elec. Motor Corp., 88 N.Y.2d 582, 588 (1996) (“We have held that the law in force at the time [an] agreement is entered becomes as much a part of the agreement as though it were expressed or referred to therein, for it is presumed that the parties had such law in contemplation when the contract was made and the contract will be construed in the light of such law.”) (alteration in original) (internal quotation marks omitted). Thus, and in particular absent any evidence to the contrary, I presume that all of defendant’s public works contracts either explicitly or implicitly provide for payment of prevailing wages as required by Labor Law § 220. See also Manhattan and Bronx Apple contract ¶ 8.2.1, Pl. Ex. 6 (stating that the “parties agree that each and every provision of federal or state or local law . . . required to be inserted in this Contract, is
21

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 22 of 46 PageID #: 5148
deemed by this reference to be so inserted”); id. ¶ 8.3 (requiring defendant to act “in strict conformity with all applicable federal, state, and local laws”).
Moreover, the Federal Rules of Evidence provide that plaintiffs may rely on evidence other than the contracts themselves to establish their contents. Federal Rule of Evidence 1004 provides that secondary evidence may be admitted to establish the contents of a contract. Although Rule 1002 generally limits proof of the contents of a document to the “original writing,” Rule 1004 permits other evidence, at least in certain circumstances, to establish the document’s contents. Plaintiffs rely on subdivision 3 of Rule 1004, which permits a party to rely upon evidence other than a document itself to prove its contents when the original document is in the possession of the party’s opponent. Here, defendant has, or should have, access to the public works contracts at issue, or at least copies of them, and plaintiffs have alerted defendant that they intend to prove that the contracts call for payment of prevailing wages by pointing out that § 220 requires that they do. Pls. 6/22/10 Ltr., Docket Entry 136, at 3.
Secondary evidence of a document’s contents may be admitted even when the original is not in the possession of an adversary; “if failure to produce the original is satisfactorily explained, secondary evidence is admissible.” FED. R. EVID. 1004 Advisory Committee Note to 1972 Proposed Rules. “[I]nconvenience of producing original writings can of course furnish satisfactory explanation of non-production and permit proof of contents by secondary evidence. One does not have to uproot a tombstone to prove in court the inscriptions which it bears.” JACK B. WEINSTEIN ET AL., EVIDENCE 226 (9th ed. 1997) Here, the significant burden that would be imposed on plaintiffs if they were required to obtain 13,409 original contracts, or even the burden of obtaining copies, when it is essentially undisputed that the contracts must, by law,
22

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 23 of 46 PageID #: 5149
contain a prevailing wage provision, sufficiently justifies the use of secondary evidence to prove the terms of the contracts.
Rule 1004 also permits a party to establish the contents of a writing with secondary evidence where the document relates only to a collateral matter. FED. R. EVID. 1004(4). Courts have applied this provision “when trouble, expense or tediousness of adducing primary documentary evidence outbalances its significance in the case.” EVIDENCE 227 (citing cases). See also WEINSTEIN’S FEDERAL EVIDENCE § 1004.41 (2d ed.) (noting that the Rule permits the “exercise of common sense” and that “as a matter of practical judicial administration, the court is justified in weighing the cost of production of an original against its importance and the litigant’s financial capacity”).
In this case, the burden of production substantially outweighs the significance of the contracts. When deciding whether or not a document is collateral, courts consider “the centrality of the document to the principal issues of the litigation; the complexity of the relevant features of the document; and the existence of [a] genuine dispute as to its contents.” KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE § 239 (6th ed. 2006). At first blush, it may seem anomalous to say that the contracts are collateral in a case where plaintiffs’ claims rest on the contention that they were breached. Here, though, the central issue is the amount of wages that plaintiffs and putative class members were paid and how much they should have been paid in prevailing wages. The contracts are essentially necessary only to establish for which projects, and thus which hours, the class should be paid prevailing wages. To that end, defendant does not dispute that the 13,409 projects identified in the Table are public works projects, nor does defendant contend – at least for purposes of the present motions – that it was not obligated to pay prevailing wages for at least some of the work done on those projects. See Def. Response ¶ 64, Docket
23

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 24 of 46 PageID #: 5150
Entry 115-2. The contracts are not even needed to determine the prevailing wage rates. Pursuant to § 220, the “fiscal officer” – either the Commissioner of Labor or the Comptroller for the City of New York – annually sets the prevailing wage rates for the state or the city, respectively. N.Y. LABOR LAW § 220(5)(a).12
Finally, the prevailing wage provision is not complex or difficult to understand; in fact, the provisions in the exemplars that plaintiffs provided are substantially similar and straightforward. See, e.g., Manhattan and Bronx Apple contract ¶ 8.5, Pl. Ex. 6 (requiring that the contractor pay prevailing wages, if applicable); Brooklyn Apple contract ¶ 8.05, Pl. Ex. 7 (same); Cayuga Correctional contract, Pl. Ex. 8 (providing that if the work is a “public work,” defendant must comply with prevailing wage requirements); OMH contract App. A ¶ 6, Pl. Ex. 10 (noting that “[i]f this is a public work contract,” defendant must pay “at least the prevailing wage rate”); Albany contract Amend. #1, Pl. Ex. 11 (including a provision requiring payment of prevailing wages and attaching wage schedule); Onondaga contract, Pl. Ex. 12 (“The provisions of Section 220 of the NY Labor Law are deemed part of every purchase order with the same force and effect as if set forth at length.”).
In short, although defendant does not admit that all of its public works contracts contain the mandatory prevailing wage provision, there is no real dispute as to the contents of the contracts or the specific language of the prevailing wage provisions. There is no need to parse the particular language of any one contract’s prevailing wage terms to determine whether defendant breached it; the provision is either present or not. There is no need to refer to the contract to determine the wage rate to be paid; that amount is published by the Commissioner or Comptroller. Accordingly, the contracts are collateral, and therefore secondary evidence – i.e.,
12 The wage rate schedules referred to in the text are published on the state’s and city’s websites. See http://www.labor.ny.gov/workerprotection/publicwork/PWContents.shtm (providing links to current and past prevailing wage schedules); http://www.comptroller.nyc.gov/bureaus/bll/schedules.shtm (same).
24

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 25 of 46 PageID #: 5151
evidence of the statutory mandate that prevailing wages be paid on public construction projects – may be admitted to support the inference that all of defendant’s public works contracts contain prevailing wage provisions. Defendant, of course, is free to challenge whether the class is entitled to prevailing wages on any particular project by submitting any contracts that it contends provide that prevailing wages need not be paid.
Plaintiffs’ contention that the contracts need not be produced because the law mandates that they contain prevailing wage provisions does appear to raise a question of first impression. There does not seem to be any case law supporting a plaintiff’s right to proceed on a breach of a public works contract as a third-party beneficiary without offering the contract in evidence. Rather, it seems that plaintiffs asserting their rights to prevailing wages as third-party beneficiaries have typically submitted the underlying contracts to the courts hearing their claims. See, e.g., Samborski v. Linear Abatement Corp., 1998 WL 474069, at *3 (S.D.N.Y. Aug. 10, 1998) (referring to a specific provision of the contracts in issue requiring payment of prevailing wages); Cox v. NAP Constr. Co., Inc., 10 N.Y.3d 592, 601-02 (2008) (same); Fata, 289 N.Y. at 405 (noting that the contract expressly included a prevailing wage provision)13; Wysocki v. KelTech Constr. Inc., 46 A.D.3d 251, 251 (1st Dep’t 2007) (finding that plaintiffs’ claims were not preempted, “[a]ssuming, as plaintiffs allege, that the public works contracts at issue, which none of the parties submitted to the motion court, incorporate the requirements of Labor Law § 220”).
In fact, some courts have dismissed breach of contract wage claims for failing to attach the contract or at least identifying the breached contractual provision. See Winsch v. Esposito Bldg. Specialty, Inc., 48 A.D.3d 558, 559 (2d Dep’t 2008) (affirming dismissal of complaint for
13 Moreover, language in Fata, the seminal Court of Appeals case permitting prevailing wages to be sought by workers as third-party beneficiaries, suggests that the contract must contain the prevailing wage provision before a breach of contract claim may be brought: “[W]e assume, arguendo, that if the obligation of the defendant to pay wages ‘not less than the prevailing rate’ existed only by fiat of the Legislature, the remedy provided by the Legislature for violation of the obligation it has created would be exclusive.” 289 N.Y. at 404.
25

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 26 of 46 PageID #: 5152
failure to identify the contractual provisions allegedly breached); Maldonado v. Olympia Mech. Piping & Heating Corp., 8 A.D.3d 348 (3d Dep’t 2004) (citing Fata and noting that workers may bring a breach of contract claim “when the contract between the employer and the municipality expressly provides” for the payment of prevailing wages) (emphasis added); Jara v. Strong Steel Door Inc., 20 Misc.3d 1135(A), at *10 (N.Y. Sup., Kings County, 2008) (dismissing those causes of action alleging a breach of contract where plaintiff failed to specify the actual contracts and terms allegedly breached). However, these cases are distinguishable. For example, in Jara, plaintiffs failed to identify the specific contractual provisions breached, despite the court’s prior order to plaintiffs to specify the contracts and terms at issue in their forthcoming amended complaint, and the court therefore held that plaintiffs failed to comply with its order “to provide the court and the parties with notice of the specific ‘transactions, occurrences, or series of transactions or occurrences, intended to be proved.’” Jara, 20 Misc.3d 1135(A), at *10 (quoting Winsch, 48 A.D.3d at 559); see also Tr. 10-11 (distinguishing Jara). Jara, therefore, concerns the adequacy of plaintiffs’ pleading, not the sufficiency of their evidence. Here, in contrast, plaintiffs have identified the contractual terms at issue – § 220’s prevailing wage provisions – and on which public works contracts they seek prevailing wages. See Table. Moreover, the aspect of the holding in Jara cited above is at least arguably dicta; the Court went on to hold that plaintiff’s claim would be subject to dismissal on summary judgment even if properly pled because of compelling documentary evidence that plaintiff did not work at the site in question. Defendant also relies on Brown, 2007 WL 2461823, at *6 n.4. In Brown, plaintiffs’ attempt to assert a third-party beneficiary theory was rejected because their employer was not a party to a contract requiring payment of prevailing wages. Here, plaintiffs allege – and defendant has not disproved – that defendant did enter into contracts requiring that prevailing
26

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 27 of 46 PageID #: 5153
wages be paid, but merely seek to prove that fact by means other than admitting into evidence the contracts themselves.
In any event, it is clear that New York law requires public works contracts like those at issue here to include prevailing wage provisions. It is equally clear that plaintiffs and the putative class are the intended third-party beneficiaries of these prevailing wage provisions. See Fata, 289 N.Y. at 405 (“It cannot be doubted that provisions requiring the contractor to pay [prevailing] wages are . . . inserted in the contract . . . for the benefit of the laborers . . . .”) (emphasis added); see also Bucci v. Village of Port Chester, 22 N.Y.2d 195, 201 (1968) (reaffirming that “section 220 must be construed with the liberality needed to carry out its beneficent purposes” – “the protection of workingmen” with respect to their right to be paid prevailing wages).
For all these reasons, defendant’s motion for summary judgment on the grounds that plaintiffs have failed to submit the intended public works contracts underlying their claims is denied. This ruling does not preclude defendant from submitting the contracts or other proof in evidence in an effort to establish that the contracts are not public works contracts, that they do not provide for payment of prevailing wages, or that they are otherwise not actionable.
b. Testing and Inspection Next, defendant moves for summary judgment on its liability with respect to plaintiffs’ claims for testing and inspection work. New York’s prevailing wage requirement applies only to work performed in the construction, maintenance, and repair of public buildings. Defendant argues that testing and inspection is not construction, maintenance, or repair work and are – or at least were during the time relevant to plaintiffs’ complaint – outside the parameters of work covered under § 220.
27

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 28 of 46 PageID #: 5154
Beginning in January 2008, defendant met with officials in the Department of Labor (“DOL”) concerning whether fire alarm testing and inspection (“TI”) work is covered under prevailing wage laws. Def. R.56.1 ¶ 37. On December 31, 2009, the Department of Labor issued an official opinion letter (“DOL Opinion Letter”) stating that testing and inspection falls within the coverage of prevailing wage laws. Pl. Ex. 3. The DOL Opinion Letter, however, further states that “because there has been much confusion in the past about the Departments [sic] position as to the applicability of the prevailing wage law to this work, this opinion shall be applied prospectively to contracts that are put out for bid after January 1, 2010, unless a previous contract actually required the payment of prevailing wages for this work.” Id. at 3.
Defendant contends that the language in the DOL Opinion Letter limiting its application to contracts put out for bid after January 1, 2010, precludes plaintiffs’ claims for unpaid prevailing wages for testing and inspection work, all of which are based upon labor performed before that date.14 Def. SJ Mem. 26-28. Plaintiffs respond that the DOL Opinion Letter is not entitled to the deference normally attributed to agency interpretations because the DOL does not possess “any particular authority to decide who is a ‘laborer, workman or mechanic.’” Pl. Opp. 14-15; see also id. at 16-18. Moreover, according to plaintiffs, testing and inspection work has always been covered under prevailing wage laws, and thus defendant had a statutory and contractual duty to pay prevailing wages at the time the contracts at issue were made. Plaintiffs suggest that the DOL’s decision to apply its ruling only prospectively was the result of defendant’s lobbying efforts, and should be given little or no weight. Pl. Opp. 14-18.
The New York Court of Appeals has repeatedly held that agency interpretations, including formal and informal opinions, are entitled to deference unless they are irrational,
14 According to defendant, none of the twenty-nine contracts that plaintiffs identified during discovery contain an explicit provision for the payment of prevailing wages for testing and inspection. Capozzola Aff. ¶ 22.
28

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 29 of 46 PageID #: 5155
unreasonable, or go against the plain meaning of the relevant statute.15 Samiento v. World Yacht Inc., 10 N.Y.3d 70, 78-79 (2008); Chesterfield Assocs. v. N.Y. State Dep’t of Labor, 4 N.Y.3d 597, 604 (2005); Council of the City of N.Y. v. Pub. Serv. Comm’n, 99 N.Y.2d 64, 74 (2002). In a decision particularly relevant to this case, the Court of Appeals noted that the Commissioner of the Department of Labor is especially well-suited to determine § 220 job classifications. Lantry v. State, 6 N.Y.3d 49, 54-55 (2005). In Lantry, the Court stated that “it is well settled that trade classifications are a matter given to the expertise of the Department and courts are strongly disinclined to disturb them, absent a clear showing that a classification does not reflect the nature of the work actually performed.” Id. at 55 (internal quotation marks omitted).
There was nothing irrational or unreasonable about the Commissioner’s decision to classify TI work as covered but to require that prevailing wages be paid only prospectively. The Commissioner explains in her letter that the DOL had failed to make its position on testing and inspection work clear, and the decision to require that prevailing wages be paid only on contracts bid upon after clarification seems logical and fair. Although plaintiffs argue that testing and inspection work has always been covered, Pl. Opp. 16, the DOL is in the best position to evaluate the extent of any pre-existing ambiguity surrounding the application of prevailing wage laws to TI work.
Moreover, the ambiguity acknowledged by the Commissioner undermines plaintiffs’ effort to impute an obligation to pay prevailing wages for testing and inspection work as a matter of law. As discussed above, I have concluded that plaintiffs are not required to present the underlying public works contracts in order to proceed with their third-party beneficiary claims. I
15 Under federal law, agency interpretations that “lack the force of law,” such as opinion letters, are “entitled to respect but only to the extent those interpretations have the power to persuade.” Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 490-91 (2d Cir. 2001); see also Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 149 (2d Cir. 2008).
29

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 30 of 46 PageID #: 5156
based this ruling on the ground that the obligation to pay prevailing wages was not seriously disputed; plaintiffs and defendant agree that the law requires prevailing wages be paid for covered work. Thus, when SimplexGrinnell took on public works projects, it knew it would be required to pay prevailing wage rates, and it at least implicitly agreed to do so when it entered into a contract to perform work at a public site. According to the DOL, though, SimplexGrinnell did not have reason to believe it would be required to pay prevailing wages for testing and inspection work it contracted to perform. Thus, absent a provision in a particular contract explicitly requiring that testing and inspection work be compensated at prevailing wages, there simply is no basis for concluding that SimplexGrinnell agreed to pay prevailing wages for such work. I therefore conclude that defendant may not be held liable for any unpaid prevailing wages for TI work. This aspect of defendant’s summary judgment motion is therefore granted.
In his report, plaintiffs’ expert concludes that TI work performed in New York City (“NYC TI”) should be included in the non-TI category, as work that should be paid at prevailing wage rates, even if the DOL Commissioner’s prospective-only ruling is applied. See Crawford Rpt. ¶ 16. Plaintiffs explain that NYC TI was included in non-TI hours because “testing and inspection was explicitly covered in the prevailing wage schedules for work for New York City government customers.” Pl. D. Opp. 33 n.12.16 See also Pl. 7/29/10 Letter, Docket Entry 146. To support this assertion, plaintiffs rely on § 230 wage schedules for alarm technicians that define the scope of covered work as specifically including testing and inspection. See Pl. Ex. 103. Plaintiffs’ claims, however, invoke § 220 of the Labor Law; indeed, in their motion for class certification, plaintiffs describe the class they seek to represent as comprised of SimplexGrinnell employees “who have not been paid prevailing wages due them under Section
16 “Pl. D. Opp.” refers to Plaintiffs’ Opposition to Defendant’s Daubert Motion to Exclude the Testimony of David L. Crawford, Ph.D, Docket Entry 116.
30

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 31 of 46 PageID #: 5157
220.” Pl. Mem. 1. Section 230, though, applies to “Building Service Employees,” and its definition of the employees within its scope specifically excludes those “to whom the provisions of article[] eight,” which includes § 220, “are applicable.” Plaintiffs, therefore, are not covered by § 230. Moreover, New York City’s § 220 wage schedules do not include a classification of alarm technician and do not define the scope of work for most laborers. Accordingly, I find that hours spent performing NYC TI work should not be included in the calculation of non-TI hours, and that plaintiffs may not, for the reasons stated above, recover damages with respect to them.
c. Experts’ Zero Damages Defendant seeks summary judgment on those claims of putative class members for whom plaintiffs’ expert calculated zero damages. As plaintiffs point out, however, defendant may be required to supplement the data it has already provided, and it is possible that absent class members who do not have claims for damages now may be able to demonstrate damages in the future. Pl. Opp. 21. Moreover, Dr. Crawford’s report will have to be modified to conform with my rulings herein. Therefore, this aspect of defendant’s motion is denied. d. NYC and Long Island Work Defendant seeks dismissal of all claims by New York City and Long Island employees subject to a higher prevailing wage rate than plaintiffs’ expert employed in his damages calculations. Def. SJ Mem. 32. Defendant contends that New York City and Long Island have multiple prevailing wage rates for the same job classification and acknowledges that plaintiffs’ expert “always used the lowest rate available.” Id. Essentially, defendant complains that plaintiffs’ expert was too conservative and that some putative class members might be entitled to greater damages based on a higher prevailing wage rate. As discussed below in connection with defendant’s Daubert motion, the damages calculations of plaintiffs’ expert should not be rejected
31

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 32 of 46 PageID #: 5158
because they are based on conservative assumptions that inured to defendant’s benefit. It is also not a reason to dismiss claims by these employees. Accordingly, this aspect of defendant’s motion for summary judgment is denied as well.
e. Preemption Defendant contends that the Labor-Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq., preempts all of plaintiffs’ claims for work in counties with multiple prevailing wage rates. Def. SJ Mem. 34-36. The LMRA preempts any claim that is “substantially dependent on analysis of a collective bargaining agreement.” Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987). Defendant here argues that determining the correct prevailing wage to apply in some counties requires analysis of the applicable collective bargaining agreements (“CBAs”). New York Labor Law defines the prevailing wage rate as “the rate of wage paid in the locality . . . by virtue of collective bargaining agreements.” N.Y. LABOR LAW § 220(5)(a). The statute, however, further provides that “[t]he prevailing rate of wage shall be annually determined in accordance herewith by the fiscal officer.” Id. See also supra n.12 (providing the websites for the prevailing wage schedules). Accordingly, there is no need for the court to interpret the CBAs to determine the prevailing wage rates as the rates are set by the fiscal officer – the Commissioner of Labor and the Comptroller for the City of New York. It is, accordingly, not clear that the court needs to undertake any review of the CBAs in this case. First, plaintiffs’ expert has reviewed the wage schedules and applied an appropriate rate, apparently without interpreting the CBAs. To the extent that the fiscal officer provides multiple rates for a particular job classification, plaintiffs’ expert utilized the lower rate. In addition, even if the court must review the CBAs to determine an appropriate rate, that would not
32

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 33 of 46 PageID #: 5159
require the level of analysis or interpretation of a CBA that results in preemption. “[N]ot every dispute . . . tangentially involving a provision of a collective-bargaining agreement[] is preempted.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985). Accordingly, in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988), the Court noted that, while CBAs often contain wage rates that may be helpful in determining damages, reference to such information does not require a finding that claims are preempted. 486 U.S. at 413 n.12 (citing Allis-Chalmers Corp., 471 U.S. at 211). For these reasons, the LMRA does not preempt any of plaintiffs’ claims. See also Livadas v. Bradshaw, 512 U.S. 107, 123-124 & n.17 (1994); Wysocki, 46 A.D.3d at 251-252 (finding that plaintiffs’ prevailing wage breach of contract claims were not preempted by the LMRA and noting that “[w]hile collective bargaining agreements are helpful on the issue of prevailing wage rates, they are not necessarily determinative, and do not bear on every issue presented under Labor Law § 220”) (internal citation omitted).
f. Equitable Claims Defendant contends that plaintiffs’ equitable claims for quantum meruit and unjust enrichment fail as a matter of law because plaintiffs’ claims are governed by contracts. Where a matter is governed by contract, such as here, plaintiffs cannot recover in quasi-contract, including claims for quantum meruit and unjust enrichment. Cox, 10 N.Y.3d at 607; Goldman v. Metro. Life Ins. Co., 5 N.Y.3d 561, 572 (2005). Plaintiffs make clear that these claims are asserted as alternatives to their contract claims. Moreover, as discussed at length above, defendant contends that plaintiffs will fail to establish the existence of all but a small number of contracts, much less that the contracts were breached. Accordingly, defendant’s motion is denied, without prejudice to renewal if plaintiffs ultimately prevail on their third-party beneficiary breach of contract claims.
33

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 34 of 46 PageID #: 5160
g. Overtime Claims Defendant seeks summary judgment on plaintiffs’ overtime claims on two grounds. First, defendant contends that plaintiffs cannot bring an overtime prevailing wage claim without exhausting the administrative remedy in § 220. Def. SJ Mem. 40-41. Second, defendant argues that plaintiffs cannot establish the prevailing wage hours for which they are due overtime. Id. at 41-42. With respect to its first argument – overtime prevailing wage claims must be brought pursuant to the administrative remedy outlined in § 220 – case law does not support defendant’s contention. Indeed, the very argument plaintiffs make here – that they are entitled to overtime pay based upon their § 220 prevailing wages – was accepted in Sobczak v. AWL Industries, Inc., 540 F. Supp. 2d 354, 361 (E.D.N.Y. 2007). Defendant relies on Marangos Construction Corp. v. New York State Department of Labor, 216 A.D.2d 758, 759 (3d Dep’t 1995), and Brown, 2007 WL 2461823, at *5, for the proposition that the administrative scheme is the exclusive remedy for violations of overtime prevailing wage claims. Def. SJ Mem. 40-41. Marangos, however, is silent on this issue; the case is brought by an employer seeking review of Article 78 proceedings, not by an employee seeking overtime wages. In Brown, the court dismissed plaintiff’s overtime claim because plaintiff had brought it, as well as regular time prevailing wage claims, directly pursuant to § 220, not as a breach of contract claim, and plaintiff’s administrative claim was still pending. Thus, there does not appear to be any reason why plaintiffs could not bring overtime prevailing wage claims based on a breach of contract theory, to the same extent as they may with respect to their regular time prevailing wage claims. Defendant’s second argument is simply that plaintiffs failed to establish which, if any, overtime hours resulted in unpaid prevailing wages. Def. SJ Mem. 42. For the reasons discussed
34

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 35 of 46 PageID #: 5161
below with respect to defendant’s Daubert motion, I find that Dr. Crawford has reasonably established the overtime hours subject to prevailing wages and reasonably calculated any unpaid overtime prevailing wages. Therefore, this aspect of defendant’s motion is denied.
h. Plaintiffs’ Fifth Cause of Action Finally, defendant moves for summary judgment on plaintiffs’ fifth cause of action, a statutory “failure to pay wages,” Am. Compl. ¶¶ 38-43, contending that plaintiffs improperly seek liquidated damages and attorneys’ fees “by recasting” their third-party beneficiary § 220 claims “as statutory wage claims enforceable under Article 6 (§§ 190-198) of the Labor Law.” Def. SJ Mem. 42-43. Plaintiffs do not address defendant’s argument in their opposition. This alone would be a basis to grant this aspect of defendant’s motion. In their complaint, plaintiffs allege that defendant violated § 191 by failing to pay plaintiffs within the time requirements provided by § 191. Am. Compl. ¶ 40. Other than the fact that plaintiffs may be owed unpaid prevailing wages, there is no evidence that defendant failed to comply with § 191, which requires that manual workers be paid weekly. N.Y. LABOR LAW § 191(1)(a). Plaintiffs also allege that defendant violated § 198-c. Am. Compl. ¶ 41. The statutory language of § 198-c, however, imposes criminal, not civil, liability on an employer for failing to pay benefits and supplements; although some courts have held otherwise, the weight of authority holds that there is no private right of action under this section. N.Y. LABOR LAW § 198-c; Moran v. GTL Const., LLC, 2007 WL 2142343, at *5 (S.D.N.Y. July 24, 2007); Hammell v. Banque Paribas, 780 F. Supp. 196, 200-01 (S.D.N.Y. 1991) (noting that the New York Court of Appeals affirmed a Fourth Department decision holding that there is no private civil action available under § 198-c); but see Castagna v. Luceno, 2011 WL 1584593, at *21 (S.D.N.Y. Apr. 26, 2011) (noting that there is “conflicting case law” whether § 198-c provides a private right of action and ultimately
35

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 36 of 46 PageID #: 5162
permitting plaintiff’s § 198 claim to proceed). For these reasons, defendant’s motion for summary judgment on the fifth cause of action is granted and this claim is dismissed.
For the reasons discussed above, defendant’s motion for summary judgment is granted in part and denied in part. More specifically, defendant’s motion is granted with respect to plaintiffs’ claim for prevailing wages for TI work, including New York City TI work, and with respect to plaintiffs’ fifth cause of action. Those claims are dismissed. Defendant’s motion is denied in all other respects.
3. Daubert In the third of the pending motions, defendant seeks to strike the report of David L.
Crawford, Ph. D., plaintiffs’ expert. Def. D. Mem.17 Trial courts serve as “gatekeepers,” responsible for “ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). Defendant challenges Dr. Crawford’s report as riddled with errors and unreliable. For the reasons stated below, defendant’s motion is denied.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which imposes two basic prerequisites for admitting expert testimony at trial. First, the witness must be properly qualified as an expert to testify on scientific, technical, or specialized matters. See Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81-82 (2d Cir. 1997). Second, the court must determine whether the expert testimony is both relevant and reliable. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); Daubert, 509 U.S. at 597. In determining whether any step in an expert’s analysis is reliable, a court
17 “Def. D. Mem.” refers to defendant’s Memorandum of Law in Support of its Daubert Motion, Docket Entry 1101. Dr. Crawford’s Report (“Crawford Rpt.”) may be found at Plaintiffs’ Exhibit 1, Docket Entry 109-3, to their motion for class certification and summary judgment.
36

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 37 of 46 PageID #: 5163
should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand. A minor flaw in an expert’s reasoning or a slight modification of an otherwise reliable method will not render an expert’s opinion per se inadmissible. “The judge should only exclude the evidence if the flaw is large enough that the expert lacks ‘good grounds’ for his or her conclusions.” Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 746 (3d Cir. 1994), and citing Daubert, 509 U.S. at 590). A proponent of expert testimony must prove that the elements of Rule 702 have been satisfied by a preponderance of the evidence. Daubert, 509 U.S. at 592 n.10; FED. R. EVID. 702, Advisory Committee Notes to 2000 Amendments. When considering whether to admit expert testimony, “[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. Moreover, the court must bear in mind that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. at 596. Accordingly, the rejection of expert testimony should be “‘the exception rather than the rule.’” U.S. Info. Sys. Inc. v. Int’l Bhd. of Elec. Workers Local Union No. 3, 313 F. Supp. 2d 213, 226 (S.D.N.Y. 2004) (quoting the Advisory Committee Notes to the 2000 Amendments to Rule 702). Plaintiffs seek to admit Dr. Crawford’s report to establish the amounts due to the members of the plaintiff class as damages. Dr. Crawford claims to have calculated “the difference between the wages and benefits that would have been received [by the plaintiff class] if prevailing wage and benefit rates had been applied whenever it was appropriate to do so for fire alarm and sprinkler work and the actual wages and benefits that were received for such
37

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 38 of 46 PageID #: 5164
work.” Crawford Rpt. ¶ 15. Dr. Crawford derived his calculations from data in electronic files provided by defendant during the course of this litigation. Id. ¶¶ 11-12.
Dr. Crawford holds a Ph.D. in Economics and is the president and founder of Econsult, an economics and statistics consulting firm. Crawford Rpt. ¶¶ 1, 5. He also serves as an adjunct professor at the Wharton School, where he has won several awards for his teaching, and has been qualified as an expert and testified in numerous cases over the past five years. Id. ¶¶ 4, 6 and Ex. 1. See also, e.g., Duling v. Gristede’s Operating Corp., 267 F.R.D. 86, 95 (S.D.N.Y. 2010) (qualifying Dr. Crawford as an expert and finding that his report “easily satisf[ies] the requirements of Rule 702”). Accordingly, I find that Dr. Crawford’s credentials and experience render him qualified to offer the expert testimony reflected in his report, and it seems defendant does not contend otherwise. See, e.g., Def. D. Mem. 1-2. Rather, defendant’s motion challenges the methodology Dr. Crawford used and the reliability of the results he reached. Id. at 3-55.
As set forth in detail in his report, Dr. Crawford determined the number of hours worked by plaintiffs and the hourly wage and benefit rates plaintiffs were paid primarily by analyzing data culled from defendant’s “Time Entry” system. Crawford Rpt. ¶ 14. To determine how many of those hours of labor constituted “covered work” subject to prevailing wage law requirements, Dr. Crawford also reviewed data from electronic files referred to by defendant as its “Project Data” and computerized lists provided by defendant of public sector jobs it completed. Crawford Rpt. ¶ 15; Crawford Decl. ¶ 6, Docket Entry 109-2. Finally, Dr. Crawford relied upon New York State and City Prevailing Wage Schedules for fire alarm and sprinkler work to determine the applicable prevailing wage and benefit rates plaintiffs were entitled to be paid for covered work. Plaintiffs assert that, armed with these electronic files produced by defendant and the relevant prevailing wage schedules, Dr. Crawford was able to calculate the
38

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 39 of 46 PageID #: 5165
number of hours worked by each class member on prevailing wage jobs as well as the number of hours of labor for which each class member was paid the proper prevailing wages and benefits. According to Dr. Crawford, many of defendant’s employees worked more hours that should have been paid at prevailing wage rates than in fact were. Dr. Crawford calculated damages based upon the difference between hours of covered work plaintiffs performed and those for which they were paid at applicable prevailing wage and benefit rates.
Dr. Crawford, however, was unable to tie all hours of labor reflected in defendant’s Time Entry database to those derived from defendant’s Project Data. This problem arose because data reflecting work performed in the Project Data indicated only the date the data was entered and not the date the work itself was actually performed. Crawford Decl. ¶ 9; Def. D. Mem. 17-18. As a result, Dr. Crawford was unable to link Time Entry data for a particular week to Project Data information for the same week. More specifically, while Dr. Crawford was able to determine from the Time Entry data how many hours a class member worked during a particular week and how much the class member was paid, he was not able to determine accurately from defendant’s Project Data whether the class member worked on a public works project during that particular week. Nonetheless, as discussed below, it appears that the total amount of damages calculated by Dr. Crawford was not materially affected by this inability to match up data on a weekly basis.
Defendant’s motion focuses primarily upon what appear to be crude errors in Dr. Crawford’s report but in fact, it seems, result only from Dr. Crawford’s inability to match up weekly Time Entry and Project Data. For example, defendant points to Dr. Crawford’s claim that one plaintiff is owed prevailing wages for 36 hours of work performed during a week when the plaintiff was on jury duty, and another for work done when he was in fact attending a training
39

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 40 of 46 PageID #: 5166
session in California. Def. D. Mem. 22-23. Plaintiffs have logically explained, however, that these apparent errors result from the lack of accurate information in defendant’s Project Data about when labor was performed. Therefore, as plaintiffs also explain, what appear to be “errors” – which in fact arise only because hours in the Time Entry and Project Data cannot be matched – cancel out when the total number of covered hours worked and the hours of prevailing wages paid are compared. In other words, while there may be weeks when Dr. Crawford claims prevailing wage work was performed when in fact it was not, there will necessarily, as a matter of logic, be other weeks when an equal amount of prevailing wage work was performed but none is reflected in Dr. Crawford’s calculations. Indeed, defendant acknowledges that “[f]or many weeks . . . Dr. Crawford found hours paid at prevailing wage according to the timekeeping data, but he found no corresponding prevailing wage work in the project billing data.” Def. D. Mem. 3; see also id. at 26. Put simply, when considered in their entirety rather than on a week-byweek basis, the Time Entry data will reflect the number of hours for which any class member was paid prevailing wages and the Project Data set will reflect the number of hours of prevailing wage work performed. Pl. D. Opp. 15. It therefore follows that, when totals are calculated for the time period relevant to the lawsuit, any week-by-week discrepancies or variations are rendered irrelevant.
Defendant contends that even the week-by-week errors or discrepancies described above could have been avoided, and a more reliable result obtained, had Dr. Crawford relied on defendant’s paper records rather than its electronic files. I reject this argument for several reasons. First, as indicated above, plaintiff has explained the apparent errors in Dr. Crawford’s week-by-week calculations, and demonstrated – sufficiently, at least, for purposes of admissibility – that they do not undermine the reliability of Dr. Crawford’s results. Moreover,
40

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 41 of 46 PageID #: 5167
defendant has not demonstrated that calculations based on its paper records would be more accurate than those based on its electronic data. Finally, as defendant has acknowledged, its paper records number more than one million documents, and are located at various offices throughout New York State. Def. D. Mem. 12-13. In light of these circumstances, it was reasonable for Dr. Crawford to rely upon defendant’s electronic files.
In a related argument, defendant contends that the reliability of Dr. Crawford’s report is undermined by its failure to account for data in defendant’s “PeopleSoft” database. Defendant points out that PeopleSoft includes data reflecting payments of prevailing wages by means of manual overrides. Def. D. Mem. 27-31. As plaintiffs state in response, however, it appears that Dr. Crawford’s calculations reveal that his decision not to rely on PeopleSoft had little impact on his final results. In response to plaintiffs’ document demands, defendant only identified approximately 700 manual override forms. Pl. D. Opp. 27 (citing Pl. Ex. 8). Moreover, as defendant acknowledges, some of the manual override information in PeopleSoft was also entered into the Time Entry system that Dr. Crawford used to prepare his report. Def. D. Mem. 28.
Defendant challenges other aspects of Dr. Crawford’s analysis as well. For example, defendant argues that Dr. Crawford did not reliably allocate time as TI or non-TI. If so, this would be particularly significant in light of my ruling that plaintiffs are not entitled to prevailing wages for TI work.
According to Dr. Crawford, he determined whether hours of work were TI or non-TI hours based upon certain codes in defendant’s Project Data. Crawford 7/13/10 Decl. ¶ 2, Docket Entry 140-1. Defendant contends that Dr. Crawford erred in his allocation of TI and non-TI hours and failed to capture some TI hours at all. Def. D. Mem. 32-33, 35-36, 38-39. For
41

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 42 of 46 PageID #: 5168
example, defendant notes that its paper records indicate that named plaintiffs Oyarvide and Ramos performed many hours of TI work in 2004 and 2005 that are not reflected in Dr. Crawford’s Report. Def. D. Mem. 35-36. Defendant also asserts that Dr. Crawford failed to identify all codes reflecting testing and inspection work in defendant’s Time Entry database. Def. Letter dated Aug. 17, 2010, Docket Entry 148. It does not follow, however, that the alleged discrepancies that defendant cites result from flaws in Dr. Crawford’s methodology. If Dr. Crawford failed to identify accurately those codes that indicate TI work and those that do not, the problem would be in the factual assumptions Dr. Crawford made and not in his methodology, and a ruling striking Dr. Crawford’s report would be unwarranted. Moreover, after oral argument on the motions, Dr. Crawford recalculated his allocation of TI and non-TI hours worked by plaintiffs, taking some of defendant’s contentions into account and – for what seem to be logical reasons – declining to adopt others. Crawford 7/13/10 Decl.; see also Crawford 8/24/10 Decl., Docket Entry 149-1 (revising again his allocation of TI and non-TI hours). I find the explanations offered by Dr. Crawford with respect to the steps he took after the oral argument to be clear and the steps themselves reasonable and likely to have yielded sufficiently reliable results to support the admission of Dr. Crawford’s report at trial.
Emphasizing yet another apparent anomaly in Dr. Crawford’s results, defendant points out that Dr. Crawford’s report concludes that some plaintiffs are owed zero damages.18 Plaintiffs, however, have logically explained that SimplexGrinell paid some employees a regular wage that was greater than or equal to the prevailing wage rate, without regard to whether the employee was working at a public site subject to prevailing wage laws. Tr. 66-67. Under that
18 Defendant also notes that Dr. Crawford calculates some class members as having negative damages, i.e., defendant overpaid them. Def. D. Mem. 25-27. Some of these anomalies may be due to the inability to match Time Entry and Project Data, or because Dr. Crawford made some conservative assumptions, as discussed in the text. In any event, these negative damage calculations do not support barring Dr. Crawford’s report.
42

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 43 of 46 PageID #: 5169
circumstance, the employee would have no claim for prevailing wages even if defendant never differentiated between work on private and public sector jobs. Dr. Crawford further explained that the data provided by defendant included entries for some employees with job titles indicating an exemption from prevailing wage requirements, and that he therefore attributed zero damages to those employees as well. Crawford 7/13/10 Decl. ¶ 7.
Defendant next cites to several conservative assumptions made by Dr. Crawford and argues that the resulting inaccuracies in Dr. Crawford’s report should preclude its admission at trial. For example, where more than one prevailing wage and benefit rate was arguably applicable, Dr. Crawford based his damages computation on the lowest potentially applicable rate. Def. D. Mem. 39-42. Similarly, when Dr. Crawford realized that defendant’s Time Entry data, while indicating whether prevailing wages were paid or not, did not reveal whether prevailing wages were paid for TI or non-TI work, he allocated all paid hours first to offset nonTI hours earned, then any remainder to offset TI hours earned; if any hours paid still remained, Dr. Crawford allocated them as non-TI hours paid. Crawford Rpt. 8 n.3; see also Crawford Dep. 411-13; Crawford 6/22/10 Decl. ¶ 5, Docket Entry 136-2. Defendant is correct to say that, if Dr. Crawford had obtained more precise information about which rate applied, or whether prevailing wages were paid for TI on non-TI work, he no doubt could have produced a report that was both more accurate and more beneficial to the class. Clearly, however, defendant will suffer no prejudice as a result of Dr. Crawford’s conservative assumptions, and those assumptions are not a basis for excluding Dr. Crawford’s testimony. See Floorgraphics, Inc. v. News Am. Mktg. InStore Servs., Inc., 546 F. Supp. 2d 155, 173-74 (D.N.J. 2008) (denying defendants’ Daubert motion where the expert made assumptions, among other things, that “tended to suppress his estimate of damages”); U.S.A. ex rel. Tyson v. Amerigroup Illinois, Inc., 488 F. Supp. 2d 719,
43

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 44 of 46 PageID #: 5170
733-34 (N.D. Ill. 2007) (stating that “[i]f all [the plaintiffs’ expert] was trying to do was provide a more conservative damages estimate, and this benefitted [defendant], this Court does not believe that it would render his methodology so unreliable as to be inadmissible under Daubert”). Moreover, any class members concerned that Dr. Crawford has understated the amount of wages they are owed has the option of declining to join the class and bringing an individual action.19 See FED. R. CIV. P. 23(c)(2)(B)(v), (vii) (requiring notice to class members of their right to be excluded from the class).
I have considered each of defendant’s contentions and, as indicated above, I do not find them to be sufficient to warrant exclusion of Dr. Crawford’s testimony or report at trial. Most of defendant’s arguments concern Dr. Crawford’s results and not his methodology, and are therefore not a proper basis for exclusion. See, e.g., Daubert, 509 U.S. at 595; Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 214 (2d Cir. 2009) (holding that an expert’s “unfounded” assumptions go to the weight, not the admissibility, of the testimony); Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (stating that “[a]lthough expert testimony should be excluded if it is speculative or conjectural, or if it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith, or to be in essence an apples and oranges comparison, other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony.”) (internal quotation marks and citations omitted). Defendant’s primary challenge to Dr. Crawford’s methodology concerns his decision to rely on defendant’s electronic data rather than its paper records. For the reasons discussed above, however, I conclude that this decision was reasonable and appropriate.
19 Although I have not yet heard from the parties on this subject, I suggest that the class notice include a means of gaining access to Dr. Crawford’s report – perhaps by providing a website where it may be viewed – so that a potential class member can learn the amount of damages calculated by Dr. Crawford on his or her behalf before deciding whether to participate in the class action.
44

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 45 of 46 PageID #: 5171
Finally, to the extent that Dr. Crawford approximated damages owed rather than calculating them precisely, this is not fatal to the admissibility of either his testimony or the conclusions in his report. Under New York law, it is “well established” that “‘[t]he rule of certainty as applied to the recovery of damages does not require mathematical accuracy or absolute certainty or exactness, but only that the loss or damage be capable of ascertainment with reasonable certainty.’” Okraynets v. Metro. Transp. Auth., 555 F. Supp. 2d 420, 444 (S.D.N.Y. 2008) (internal citations omitted). This rule applies with particular force here, where defendant’s records are arguably deficient in several respects, including the failure to account for certain prevailing wage work performed through consistently applied procedures and instead requiring “manual overrides.” Cf. Alphonse Hotel Corp. v. Sweeney, 251 A.D.2d 169, 169-70 (1st Dep’t 1998) (recognizing the Labor Commissioner’s authority to approximate any § 220 underpayment where an employer’s records are inadequate or inaccurate); Mid Hudson Pam Corp. v. Hartnett, 156 A.D.2d 818, 820-21 (3d Dep’t 1989) (noting that the “remedial nature of the enforcement of the prevailing wage statute . . . and its public purpose of protecting workmen . . . entitled the Commissioner to make just and reasonable inferences in awarding damages to employees even while the results may be approximate” and that the burden then shifts to the employer to negate those inferences). Indeed, a defendant whose recordkeeping is deficient bears the burden of coming forward with evidence to contradict any estimate based upon “just and reasonable inferences” offered by plaintiff. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946); Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 66-67 (2d Cir. 1997); Ramirez v. Rifkin, 568 F. Supp. 2d 262, 272-73 (E.D.N.Y. 2008).
For all these reasons, defendant’s motion to strike the report and testimony of plaintiffs’ expert is denied.
45

Case 1:07-cv-00981-SMG Document 154 Filed 06/21/11 Page 46 of 46 PageID #: 5172

4. Plaintiffs’ Summary Judgment Motion

Plaintiffs move for summary judgment on both liability and damages, relying extensively

on Dr. Crawford’s Report. As discussed above when addressing defendant’s Daubert motion,

defendant has raised material questions of fact about the accuracy of Dr. Crawford’s

calculations. For example, defendant has pointed to paper time records of individual employees

that seem to be inconsistent with Dr. Crawford’s calculations with respect to those employees.

See, e.g., Def. SJ Opp. 6, Docket Entry 115. Defendant has also raised a question of fact with

respect to whether Dr. Crawford accurately distinguished TI and non-TI hours of labor. Docket

Entry 148. Finally, the court assumes that Dr. Crawford will be required to further refine his

calculations in light of the holdings set forth above. For all these reasons, plaintiffs’ motion for

summary judgment is denied.

CONCLUSION

Plaintiffs’ motion for class certification is granted. Defendant’s motion for summary

judgment is granted with respect to TI work and plaintiffs’ fifth cause of action and denied in all

other respects. Defendant’s Daubert motion is denied. Plaintiffs’ motion for summary judgment

is denied.

SO ORDERED.

Dated:

Brooklyn, New York June 21, 2011

/s/ STEVEN M. GOLD United States Magistrate Judge

U:\eoc 2011\ramos final.docx

46

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------x ROBERTO RAMOS, et al.,

-against-

Plaintiffs,

Memorandum & Order 07-CV-981 (SMG)

SIMPLEXGRINNELL LP,

Defendant. -----------------------------------------------------x Gold, S., United States Magistrate Judge:

Plaintiffs, on behalf of themselves and as representatives of a class composed of certain

employees of defendant, bring this action seeking to recover unpaid prevailing wages for their work on various public works projects.1 Plaintiffs are fifteen current and former employees of

defendant who performed electrical and sprinkler work, including installation, maintenance,

inspection, testing, repairs, and replacement of fire alarms and security systems, on various

public works projects throughout the state. Am. Compl. ¶ 18, Docket Entry 56. Plaintiffs

contend that defendant failed to pay the named plaintiffs and the members of the class all the

prevailing wages due to them for their work on public works projects.

On June 21, 2011, I certified a class composed of

[A]ll laborers, workmen and mechanics who furnished labor to SimplexGrinnell on non-federal public works projects in the State of New York at any time from February 6, 2001[, or from July 14, 2001 for sprinkler work] until the final judgment in this matter, and who . . . have not been paid prevailing wages and benefits as required by law.

1 Pursuant to New York law, public works contracts – i.e., contracts with state or local governmental agencies to perform construction, maintenance and repair of public buildings – must provide that all laborers will be paid prevailing wages. N.Y. LABOR LAW § 220(3).

Memorandum & Order (“M&O”) 3-4, 18, Docket Entry 154. At the same time, I denied, in part, defendant’s motion for summary judgment and denied plaintiffs’ cross-motion for summary judgment in its entirety.2 M&O.
After extensive negotiations conducted with the assistance of a private mediator, the parties have agreed to the terms of a Joint Stipulation and Agreement (“Stipulation”), Docket Entry 228-3, that settles plaintiffs’ claims. The parties now move for preliminary approval of the settlement and approval of notice to the class. Docket Entry 228. For the reasons stated below, the motions are granted.
STIPULATION AND AGREEMENT OF SETTLEMENT Pursuant to the Stipulation, defendant agrees to pay $5,525,000, plus certain employer payroll taxes. Stipulation ¶¶ 17, 42. Before distributing the settlement to the class, attorney’s fees, expenses, class representative enhancement payments, and settlement administration costs are to be deducted. Id. ¶¶ 43(a), 43(b), 43(e), 43(f). Assuming the maximum amounts permitted under the Stipulation are deducted, the minimum net settlement amount available for distribution to class members will be $3,235,833. Dr. David Crawford, plaintiffs’ damages expert, has calculated the total damages owed to the class to be $12,512,308.3 Docket Entry 164 at 74. Thus, pursuant to the settlement, plaintiffs will receive approximately 26% of the damages calculated by their expert. The proposed Stipulation provides that each class member, excluding the eighteen individuals who previously opted out of the class, shall receive a share of the settlement proceeds
2 I granted defendant’s motion with respect to whether covered prevailing wage work included testing and inspection. M&O 31. As part of the settlement, plaintiffs have reserved their right to appeal my decision denying the inclusion of testing and inspection work in any recoverable prevailing wages calculation. Stipulation ¶ 32. 3 The amounts Dr. Crawford calculated as due to the eighteen opt-out class members have been subtracted from Dr. Crawford’s total damages calculation. See Stipulation ¶ 43(g).
2

to the extent Dr. Crawford calculated he is owed any wages.4 Stipulation ¶ 43(g). More specifically, each class member will receive a percentage of the net settlement amount equal to the percentage of his share of damages as previously calculated by Dr. Crawford, Docket Entry 164 at 58-74. For example, Dr. Crawford calculated class member Mark Accardi’s damages, plus interest, to be $35,964. Accardi’s percentage share of Dr. Crawford’s total damages is .287% (35,964/12,512,308). Pursuant to the settlement, Accardi would receive approximately $9,286.84.5
DISCUSSION Federal Rule of Civil Procedure 23(e) requires notice to class members and judicial approval of any class settlement. The court may approve a class action settlement only upon a finding that the settlement is both procedurally and substantively fair, reasonable, and adequate. FED. R. CIV. P. 23(e)(2); see also McReynolds v. Richards-Cantave, 588 F.3d 790, 804 (2d Cir. 2009); City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (outlining factors for courts to consider in determining the substantive fairness of proposed settlements). There is “a presumption of fairness, reasonableness, and adequacy as to the settlement where a class settlement [is] reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.” McReynolds, 588 F.3d at 803 (internal quotation marks omitted). Moreover, there is a “strong judicial policy” and public policy in favor of class settlements. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116-17 (2d Cir. 2005). Here, the parties engaged in extensive discovery, and plaintiffs retained an expert who prepared detailed reports about the amounts due and owing to members of the class. After I issued my Memorandum & Order granting class certification and granting, in part, defendant’s
4 Dr. Crawford found that approximately 200 class members are not owed any prevailing wages. 5 As noted above, defendant will also payroll taxes on 50% of each individual’s award. Stipulation ¶ 43(h).
3

motion for summary judgment, the parties engaged in lengthy settlement negotiations guided by a mediator. I am satisfied that the parties engaged in arm’s-length negotiations that resulted in a proposed settlement that is procedurally fair and reasonable and not the result of any collusion. See Pl. Mem. 4, Docket Entry 228.
A court determines whether a proposed settlement is substantively fair by considering the following Grinnell factors:
(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. McReynolds, 588 F.3d at 804 (citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (internal citations omitted), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000)). See also Wal-Mart Stores, 396 F.3d at 118-19 (combining the fourth, fifth and sixth factors and combining the eighth and ninth factors). These factors weigh heavily in favor of finding the proposed settlement fair. First, the parties have already spent five years litigating this case. This case is complex and raised some novel issues. Any trial would have required resolution of numerous motions in limine, see Docket Entries 197-207, and was expected to consume the entire month of June, 2012. Second, and as noted above, the case was on the eve of trial when the settlement was reached. By that time, the parties had engaged in extensive discovery that was more than sufficient to allow counsel to make a well-informed decision about the fairness of the
4

settlement.6 See Stipulation ¶ 29. Third, plaintiffs faced significant risks in establishing liability and damages at trial.7 See M&O 27 (denying defendant’s summary judgment on the ground that plaintiffs failed to obtain all of the public works contracts at issue but allowing defendant to submit evidence that would negate its liability); Stipulation ¶ 30. Of particular significance, defendant moved to exclude the testimony of plaintiff’s expert, Dr. Crawford, Docket Entry 200. Plaintiffs’ claims heavily relied on Dr. Crawford’s analysis. Defendant strenuously challenged almost each and every aspect of Dr. Crawford’s methodology and calculations, and Dr. Crawford was likely to be vigorously cross-examined at trial. Docket Entry 200; see also Docket Entries 110 (defendant’s Daubert motion challenging Dr. Crawford’s report), 207-3 (defendant’s expert report challenging the reliability of Dr. Crawford’s methodology and results). Thus, plaintiffs faced considerable risks in obtaining a judgment at any trial. Fourth, the defendant is a national “leader[] in fire and life-safety systems” with thousands of contracts with New York state and city agencies, M&O 1, and could likely withstand a greater judgment. This factor therefore does not favor settlement. Fifth, and finally, the settlement fund is reasonable in light of the attendant risks discussed above. Plaintiffs will receive approximately 26% of the damages calculated by Dr. Crawford, an amount that is reasonable in light of the significant risks plaintiffs faced at trial. For these reasons, plaintiffs’ motion for preliminary approval of the proposed settlement is granted.
6 Because a fairness hearing has not yet been held, I do not know the reaction of the class to the settlement at this stage of the case. However, I do note that, of the more than six hundred individuals identified as part of the class, only eighteen opted out. Pl. Mem. 4, 6. The opt-out notice informed individuals how to access Dr. Crawford’s report on the court’s PACER website, so that individuals could review their potential damages awards. Notice ¶¶ 10, 12, Docket Entry 163. 7 There is always a risk of decertification, see Wal-Mart Stores, 396 F.3d at 119 n.24, but it appears likely that the class here would be sustained through the trial.
5

CONCLUSION

Plaintiffs’ motion for preliminary approval of the settlement is granted. I have reviewed

the parties’ revised notice, Docket Entry 230, and find that it addresses my initial concerns and

meets the requirements of Rule 23(e). As previously indicated, the court will hold a fairness

hearing at 3:00 p.m. on October 3, 2012.

SO ORDERED.

Dated:

Brooklyn, New York July 17, 2012

/s/ STEVEN M. GOLD United States Magistrate Judge

U:\eoc 2012\ramos prelim approval - final.docx

6

 
 Case 1:07-cv-00981-SMG Document 241 Filed 11/30/12 Page 1 of 2 PageID #: 8458

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------x ROBERTO RAMOS, et al.,

-against-

Plaintiffs,

Order 07-CV-981 (SMG)

SIMPLEXGRINNELL LP,

Defendant. -----------------------------------------------------x GOLD, S., U.S.M.J.:

This Court was initially hesitant to approve a final settlement awarding $1,841,667 in

attorney’s fees, a figure calculated as one-third of the total Settlement Amount ($5,525,000) and

necessarily higher than if calculated by first subtracting costs and disbursements. See Docket

Entry 238. Out of concern that class members had adequate notice as to how this would affect

their individual awards, and to confirm that this method of calculation is consistent with the

awarding of attorney’s fees in other common fund class action settlements, I asked plaintiffs to

prepare briefing on these questions. Docket Entry 239.

After reviewing plaintiffs’ materials, Docket Entry 240, I am satisfied that class members

were appropriately notified regarding the calculation of attorney’s fees, and also that precedent

supports a calculation like that proposed by plaintiffs. Moreover, I have already ruled that final

approval of the class action settlement should be granted. Docket Entry 235.

Case 1:07-cv-00981-SMG Document 241 Filed 11/30/12 Page 2 of 2 PageID #: 8459

For these reasons, the proposed Final Approval Order and Judgment, Docket Entry 238,

is hereby entered as an Order of the Court. The Clerk is directed to enter the Judgment and close

the case.

SO ORDERED.

Dated:

Brooklyn, New York November 30, 2012

/s/ STEVEN M. GOLD

United States Magistrate Judge

U:\dfm 2012-2013\Ramos\Ramos final approval order.docx
2

 
 Case 1:07-cv-00981-SMG Document 272 Filed 06/17/16 Page 1 of 6 PageID #: 9006

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------x ROBERTO RAMOS, et al.,

Plaintiffs, -against-

MEMORANDUM & ORDER 07-CV-981 (SMG)

SIMPLEXGRINNELL LP,

Defendant. -----------------------------------------------------x Gold, S., United States Magistrate Judge:

INTRODUCTION

Plaintiffs, on behalf of themselves and as representatives of a class composed of certain

employees of defendant, originally brought this action to recover unpaid prevailing wages for

their work on various public works projects. Plaintiffs contended that defendant failed to pay the

named plaintiffs and the members of the class all of the prevailing wages due to them for their

work on public works projects.1

This case has had a somewhat complex procedural history. For present purposes, though,

it is sufficient to note that some of plaintiffs’ claims were settled in 2012, Docket Entry 241, and

that plaintiffs’ remaining claims were settled in 2015, Order dated August 17, 2015. Plaintiffs

have now filed a motion with respect to the second settlement agreement. Plaintiffs’ motion

seeks an extension of the time provided in the second class action settlement agreement for class

members to cash their settlement checks. For the reasons stated below, plaintiffs’ motion is

denied.

1 Pursuant to New York law, public works contracts—i.e., contracts with state or local governmental agencies to perform construction, maintenance and repair of public buildings—must provide that all laborers will be paid prevailing wages. N.Y. Lab. Law § 220(3).

Case 1:07-cv-00981-SMG Document 272 Filed 06/17/16 Page 2 of 6 PageID #: 9007
FACTS The settlement agreement at issue provides for a settlement fund of $9,500,000, with onethird of that amount to be paid to class counsel as attorney’s fees and the balance, less some relatively minor amounts for litigation expenses and settlement administration, to be disbursed to class members pursuant to a formula for calculating each member’s share. Settlement Agreement, Docket Entry 269-3, ¶¶ 45-46.2 The agreement calls for the appointment of a Settlement Administrator, whose responsibilities include calculating the settlement amount due to each class member and mailing checks in that amount to them. Settlement Agreement ¶ 48. Of particular relevance to the pending motion, the agreement further provides that any check not cashed within six months of mailing must be returned to defendant, as follows: A Participating Class Member must cash his or her Settlement Share check within one hundred eighty (180) calendar days after it is mailed to him or her. If a check is returned to the Settlement Administrator, the Settlement Administrator will make all reasonable efforts to re-mail it to the Participating Class Member at his or her correct address. If any Participating Class Member’s Settlement Share check is not cashed within one hundred eighty (180) calendar days after its last mailing to the Participating Class Member, the Settlement Administrator will return any funds to SimplexGrinnell. In such event, the Participating Class Member nevertheless will remain bound by the Settlement. Settlement Agreement ¶ 47. Notice of the settlement at issue was sent by the Settlement Administrator to more than 700 class members. Menken Decl. dated July 7, 2015, Docket Entry 255-4, ¶¶ 17-18. On March 21, 2016, the Settlement Administrator advised counsel for the parties that the time provided by the agreement for cashing checks had expired, and that fifty-nine class members to whom checks totaling $176,152.04 were mailed did not cash them. Pl. Mem., Docket Entry 269-5, at 2. Some
2 The first portion of the case was settled for a total of $5,525,000, of which $1,841,667 was paid as attorney’s fees. Menken Decl. dated July 7, 2015, Docket Entry 255-4, at ¶ 24. The total amount in attorney’s fees paid in connection with the two settlement agreements thus totals slightly more than five million dollars. Menken Decl. ¶ 39.
2

Case 1:07-cv-00981-SMG Document 272 Filed 06/17/16 Page 3 of 6 PageID #: 9008
of the uncashed checks were for large dollar amounts: ten of the checks exceeded $1,000, and four ranged from approximately $19,000 to $51,000. Pl. Mem. at 2 and Ex. C, Docket Entry 269-4. In the pending motion, plaintiffs’ counsel seeks an extension of the deadline provided in the settlement agreement for cashing checks so that an effort to locate the fifty-nine class members who did not cash their checks may be made and, if they are found, they may receive their shares of the settlement fund. Defendant opposes the motion on the grounds that paragraph forty-seven of the settlement agreement provides that, if any checks are not cashed by the deadline, the funds will be returned to SimplexGrinnell.
DISCUSSION Settlement agreements are contracts and must be construed according to general principles of contract law. Torres v. Walker, 356 F.3d 238, 245 (2d Cir. 2004). The settlement agreement in this case explicitly and unambiguously provides that checks not cashed by a particular date are to be returned to defendant SimplexGrinnell. Plaintiffs’ motion thus seeks relief that, if granted, would deprive defendant of a benefit for which it bargained and to which it is plainly entitled pursuant to the terms of the contract. The circumstances of this case are analogous to those at issue in Dahingo v. Royal Caribbean Cruises, Ltd., 312 F. Supp. 2d 440 (S.D.N.Y. 2004). As in this case, the defendant in Dahingo created a settlement fund that the parties agreed would satisfy the claims of a plaintiff class. The settlement agreement in Dahingo afforded plaintiffs a specified amount of time to submit a claim against the fund, and barred any class member who failed to submit a timely claim from receiving any portion of the settlement fund. Id. at 443. Finally, like here, the agreement provided that any portion of the settlement fund not claimed within the time provided would revert to the defendants. Id. A substantial number of claims in Dahingo were filed late,
3

Case 1:07-cv-00981-SMG Document 272 Filed 06/17/16 Page 4 of 6 PageID #: 9009
and counsel for the class moved for an order permitting claimants who filed untimely claims to participate in the settlement. The court in Dahingo recognized that the general principle that settlement agreements are to be construed according to general contract law principles applied to class action settlements, and that courts therefore generally do not have the authority to modify their terms to reach an equitable result. Id. at 445-46. Accordingly, the court went on to deny the motion, reasoning that “courts will not permit late-filed claims where the consequence is to increase the obligation of the defendant.” Id. The consequence of affording plaintiffs in this case additional time to cash their checks would be to increase the obligation of defendant SimplexGrinnell. The reasoning in Dahingo thus supports denial of plaintiffs’ motion.
Plaintiffs attempt to distinguish Dahingo on the grounds that it involved untimely claims and this case involves checks that were not cashed by a specified time. Reply Mem., Docket Entry 271, at 3-4. The distinction emphasized by plaintiffs is of no moment. The critical point is that, like the court in Dahingo, this Court lacks any authority to reform the settlement agreement—a contract—to defendant’s detriment, even if doing so might be fair and reasonable. See also Flynn v. New York Dolls Gentlemen’s Club, 2015 WL 2359830, at *2 (S.D.N.Y. Apr. 28, 2015) (refusing to allow late claims because to do so would impose obligations on defendants in excess of those bargained for and set forth in the terms of the settlement agreement).
Although plaintiffs cite cases in which courts modified the terms of settlement agreements, they are readily distinguishable. Indeed, in Beecher v. Able, 575 F.2d 1010 (2d Cir. 1978), the very first case cited in plaintiffs’ memorandum of law, the court held that a class action settlement agreement could be modified with respect to the allocation of settlement proceeds among class members “[s]ince reversion was foreclosed by the express terms of the
4

Case 1:07-cv-00981-SMG Document 272 Filed 06/17/16 Page 5 of 6 PageID #: 9010
settlement.” Id. at 1016.3 Similarly, in Zients v. LaMorte, 459 F.2d 628 (2d Cir. 1972), although the Second Circuit held that a court has equitable power to permit late claims, the adverse impact of allowing the late claims in that case fell upon plaintiffs who filed timely claims, not defendant, and even they would sustain “only a miniscule reduction in recovery.” Id. at 630.
Plaintiff does cite one case in which certain late claims were allowed even though the settlement agreement provided that any portion of a settlement fund not distributed to class members would revert to the defendant. See In re Crazy Eddie Securities Litig., 906 F. Supp. 840 (E.D.N.Y. 1995). In that case, though, the deadline for filing claims was imposed by the court, and was not bargained for by the parties or set forth in an agreement reached by them after negotiation. Id. at 844. The application for consideration of late claims was therefore analyzed as a request for an enlargement of time to comply with a court-imposed deadline, and not pursuant to general principles of contract law. Id.; see also Dahingo, 312 F. Supp. 2d at 446 (distinguishing Crazy Eddie on the ground that it involved a deadline established by the court and not one negotiated by the parties).
Finally, plaintiffs’ reliance on In re Cendant Corp. PRIDES Litig., 235 F.3d 176 (3d Cir. 2000) is misplaced. An earlier decision in the same case makes plain that the Third Circuit concluded that the stipulation of settlement expressly “anticipate[d] the need for some claimants to cure their proofs of claims, and the need for an extension of time in which to do so.” 233 F.3d 188, 194 (3d Cir. 2000). Accordingly, the decision to permit late claims in Cendant did not alter the bargain reached by the parties to defendant’s detriment, and the decision therefore has no bearing here.
3 As noted above, class counsel has been awarded more than five million dollars in attorney’s fees. The amount of the uncashed checks at issue is $176,152.04. If plaintiffs were to file a motion seeking reallocation of this amount of attorney’s fees to pay class members who failed to cash their checks on time, it seems the relief sought would be authorized by the case law cited in the text.
5

Case 1:07-cv-00981-SMG Document 272 Filed 06/17/16 Page 6 of 6 PageID #: 9011

CONCLUSION For the reasons stated above, plaintiffs’ motion to extend the time to locate class members who have not cashed their settlement checks is denied.
SO ORDERED.

Brooklyn, New York June 17, 2016

/s/ STEVEN M. GOLD United States Magistrate Judge

U:\AJC 2015-2016\Misc\ramos 061416FINAL.docx
6

 
 Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 1 of 102 PageID #: 5211

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

ROBERTO RAMOS, FRANK RODRIGUEZ, JOSE LUIS MALDONADO, JOSE FERNANDEZ, CHRIS MAIETTA, RANDY WRAY, ROGELIO SMITH, AGBAN AGBAN, YADIRA GONZALEZ, MAXIMO ESTRELLA, JR., JAMIE OYARVIDE, NACIM BENNEKAA, BRENO ZIMERER, OMAR FLOREZ, and RAFIU OWOLABI, individually and on behalf of all other persons similarly situated who are or were employed by SimplexGrinnell LP with respect to Public Works Projects mentioned in this Complaint,

-against-

Plaintiffs,

07 Civ. 0981(G)(SMG)

SIMPLEXGRINNELL LP, Defendant.

SUPPLEMENTAL EXPERT REPORT OF DAVID L. CRAWFORD, PH.D. ________________________________________________________________________
I, David L. Crawford, Ph.D., do hereby affirm to the Court in the above-captioned case that the following is true and correct to the best of my knowledge, information, and belief:
1. I have submitted an expert report and previous declarations in this case. This report supplements my report of 12/31/09 (report) in accordance with the Court’s Memorandum and Order of June 21, 2011.
1

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 2 of 102 PageID #: 5212
2. My 12/31/09 report is attached as Exhibit 1, minus Tables 2, 3, and 4 which were found in Exhibit 4 of that report and which are superseded by the tables in this supplement. That report explains the methodology and calculations to estimate the damages for the group of employees of SimplexGrinnell LP who were engaged in public works projects in the State of New York since 2001 (for fire alarm and associated work) or 2002 (for sprinkler work).
3. This supplement incorporates a number of changes and updates to my report that were provided to defendant and to the Court in a series of declarations given following the submission of my report.
4. In general, this supplement reallocates some of the damages from the “testing and inspection” (“TI”) category of work to the category of work other than testing and inspection (“non-TI”). It also applies all setoffs, due to “self-audit” payments by defendant, to the nonTI category. Finally, the report estimated damages up through December 31, 2009. This supplement incorporates the current employee data through June 30, 2011and estimates damages through December 31, 2011.
5. The changes to the report in this supplement include the following: a. I have corrected a programming error that was discussed and corrected in my 3/17/2010 and 5/3/2010 declarations. (See Paragraph 6 of this supplemental report.) b. I have reallocated fire alarm testing and inspection work for New York City government departments and agencies from non-TI to TI as discussed in my 7/29/2010 declaration. (See Paragraphs 7 and 8 of this supplemental report.) c. I have offset negative non-TI damages against TI damages as discussed in my 3/17/2010 declaration. (See Paragraph 9 of this supplemental report.)
2

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 3 of 102 PageID #: 5213
d. I have used my preferred method for dealing with project data hours that could not be precisely identified as either TI or non-TI as that method was discussed in my 7/13/2010 and 7/29/2010 declarations. I also report the results of an alternative allocation method that was defined in Paragraph 6 of my 8/24/2010 declaration. (See Paragraphs 10-13 of this supplemental report.)
e. In my 12/31/2009 report and in all of my 2010 declarations, I measured damages through the end of 2009. In this supplemental report I have extended my calculations of interest on damages and audit payments through December 31, 2011. (See Paragraph 14 of this supplemental report.)
The changes discussed above are reflected in Tables 2 (Supp.) and 4 Modified (Supp.). Individuals with zero estimated damages are listed at the bottoms of Tables 2 (Supp.) and 4 Modified (Supp.). 6. In my 3/17/2010 and 5/3/2010 declarations, I discussed a programming error in columns 26 and 27 of the worksheet on which Tables 2 and 4 were based, which had caused me to overstate damages by less than $200,000. The correction of that programming error is reflected in Tables 2 (Supp.) and 4 Modified (Supp.) of this report. 7. My 12/31/09 report broke down the work done by SimplexGrinnell on fire alarm and sprinkler system products and calculated estimated damages separately for (1) testing and inspection of fire alarm and sprinkler systems (TI) and (2) public work other than testing and inspection (non-TI). This was done because I understood that there was a legal dispute in the case regarding whether testing and inspection work is covered under the New York prevailing wage law, and Plaintiffs’ counsel asked me to separate the damages presentation
3

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 4 of 102 PageID #: 5214
in this manner. At the request of Plaintiffs’ counsel, I have continued to include estimated TI and non-TI damages separately in Table 2 of this supplemental report, with the understanding that the Court in its June 21, 2011 order granted summary judgment to the defendant with respect to plaintiffs’ prevailing wage claims for TI work. 8. In my 12/31/09 report, my calculation of non-TI damages included damages associated with fire alarm testing and inspection work for New York City government customers. In my 7/29/2010 declaration, I discussed the impact of removing the testing and inspection work for New York City government customers. Consistent with the Court’s ruling of June 21, 2011, in Tables 2 (Supp.) and 4 Modified (Supp.), I have reported calculations of non-TI damages that exclude damages associated with testing and inspection work for New York City government customers, and I have included those damages in the calculation of TI damages. 9. The calculations in my 12/31/09 report did not offset negative non-TI damages against positive TI damages. In my 5/3/2010 declaration, I altered the damage calculations so as to make such an offset, which lowered total damages by approximately $100,000. The offset is reflected in the results shown in Tables 2 (Supp.) and 4 Modified (Supp.). 10. The Court asked for a quantification of the amount of lost earnings associated with hours in the Project data that could not be identified as being either “TI” work or “non-TI” work. The Court also asked if there was a way to estimate the share of lost earnings that would be related to TI versus non-TI work. My original method of allocating hours in the Ace and Legacy project databases between TI and non-TI work was based on certain data fields called problem and resolution codes. Hours were assigned to TI when those codes indicated testing
4

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 5 of 102 PageID #: 5215
and inspection work and to non-TI when they did not. Many records, particularly in the Ace data, had no codes at all. 11. I have used my preferred method for dealing with these “ambiguous” records as that method was discussed in my 7/13/2010 and 7/29/2010 declarations. That method allocates ambiguous hours between TI and non-TI work based on assumed shares, using ratios between coded TI and non-TI work to assign shares to the work with missing codes. To estimate different non-TI shares for different types of work, I used the task_type variable in the Ace data and the task_desc variable in the Legacy data. These codes are missing for only 1 out of over 300,000 records. For each ambiguous record in the Ace data, I have identified all the unambiguous records that have the same value of the task_type variable and computed the share of those records that were identified as non-TI. For example there were 12 ambiguous and 123 unambiguous records with the task_type “CONTACT CUSTOMER”. 2 out of 123 or 1.6% of the unambiguous records had been identified as non-TI. Based on this information I allocated 1.6% of the prevailing wage hours in the 12 ambiguous records to non-TI work (implying that 98.4% was TI work.) The same method was applied to all of the ambiguous records. I applied the same method to ambiguous records in the Legacy data using the task_desc variable. 12. As reported in my 7/29/2010 declaration, the resulting estimate of non-TI damages including interest through 2009 and based on the assumption that all of the audit payments should be considered mitigation of damages related to non-TI work was $9,780,432. 13. In my 8/24/2010 declaration, I discussed an additional adjustment to the Non-TI/TI allocation, which was suggested by Defendant. To implement the Defendant’s suggestion, I
5

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 6 of 102 PageID #: 5216
have further reallocated from non-TI to TI (1) all project data in ACE containing the combination of "Problem Code - Gen/Svc" and a "Task Type" in which the word "inspection" is included, and (2) all project data in Legacy with the combination of Problem Code 97 ("See Service Code") and Task Code 50 ("Inspection"). The resulting estimate of non-TI damages including interest through 2009 and based on the assumption that all of the audit payments should be considered mitigation of damages related to non-TI work was $8,558,725. 14. The calculations reported in all of my 2010 declarations estimated damages and 9% simple interest through the end of 2009. Defendant has now provided data for the end of 2009, 2010 and the beginning of 2011. The damage calculations reported in this supplemental report estimate damages and 9% simple interest through the end of 2011. This increases the estimate of damages and interest related to non-TI work based on my preferred method from the $9,780,432 figure reported in my 7/29/2010 declaration to $14,039,987. (Supporting calculations are in Table 4 Modified (Supp.)) The increase in the estimate of damages and interest related to non-TI work based on Defendant’s suggested method increases from the $8,558,725 figure reported in my 8/24/2010 declaration to $12,666,099. (Supporting calculations are in Table 4 Modified (Supp.) – ALTERNATIVE.)
I declare under penalty of perjury that the foregoing is true and correct. Dated: September 8, 2011
Philadelphia, PA
________________________ David L. Crawford, Ph.D.
6

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGandDoIcnutmereenst 1t 6D4ueFiIlendd0iv9i/1d4u/1a1l CPlaasges7Moef m10b2ePrasgeID #: 5217

Employee Name (1)
ACCARDI, MARK S ADAMS JR, TIMOTHY M ALFANO JR, JAMES C ALFONSO, DENNIS ALFORD JR, JEFFREY W ALLEN, LIJ ALONZO, JOSE AMSTEIN, MATTHEW J ANDERSON, MICHAEL J ANNIS, JAMES G ARCHER, MICHAEL A BABCOCK, ROBERT L BACON, STUART BAGATTA, JOSEPH BARDEEN, DAVID K BARNING, WILLIAM A BARRETT, STEVEN CHARLES BARROS, PAUL BATES, KYLE JOSEPH BAUTISTA, ALFREDO A BAXTER, CHARLES A BAYLEY, JASON ALLEN BEAUCHAMP, RAYMOND C BELICKA, MICHAEL BELICKA, MICHAEL BENOIT JR, JAY W BENOIT SR, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, ROBERT J BIDDULPH-KRENTA, JEFFREY BINGMAN, ROBERT BLACK, WAYNE A BOISSEAU,GARY E BORDASH, JOHN BORTLIK, JOEL S BOSLEY, DENNIS M BOUTILLIER, ROBERT J BOWERS, JOSHUA K

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

127644 $

18,701 $

17,264 $

35,964

123375 $

53,681 $

31,077 $

84,759

120250 $

49,460 $

46,676 $

96,137

128502 $

8,383 $

6,814 $

15,197

165458 $

3,153 $

1,874 $

5,026

173171 $

234 $

75 $

309

510987 $

38,624 $

33,938 $

72,562

128534 $

1,341 $

996 $

2,337

127249 $

1,309 $

1,260 $

2,569

510835 $

148 $

(32) $

116

126703 $

11,570 $

11,069 $

22,639

126412 $

27,643 $

21,109 $

48,752

171410 $

1,742 $

196 $

1,938

120747 $

37,200 $

35,400 $

72,600

120801 $

22,676 $

7,596 $

30,271

161221 $

5,001 $

3,365 $

8,366

171049 $

21,601 $

2,535 $

24,137

530219 $

20,242 $

18,750 $

38,993

171097 $

2,058 $

220 $

2,279

171337 $

283 $

117 $

399

511027 $

461 $

412 $

872

172607 $

6,090 $

586 $

6,675

123081 $

61,948 $

49,338 $

111,286

532870 $

115,706 $

87,259 $

202,965

165835 $

2,354 $

399 $

2,753

169468 $

43,763 $

20,274 $

64,038

169484 $

17,341 $

11,083 $

28,424

11996 $

287 $

261 $

548

56 $

199 $

194 $

393

12120 $

111 $

102 $

213

510893 $

758 $

674 $

1,432

510803 $

77,135 $

24,812 $

101,947

534961 $

1,615 $

974 $

2,589

175219 $

1,182 $

74 $

1,256

510967 $

6,191 $

4,396 $

10,587

123282 $

4,319 $

3,925 $

8,244

121014 $

22,180 $

16,875 $

39,055

127588 $

22,796 $

21,383 $

44,178

163726 $

183 $

98 $

281

532948 $

1,558 $

529 $

2,087

128792 $

1,258 $

1,075 $

2,333

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

-$

-$

-

$

2,911 $

938 $

3,849

$

2,152 $

1,984 $

4,135

$

6,229 $

5,293 $

11,522

$

-$

-$

-

$

-$

-$

-

$

(1) $

-$

(1)

$

-$

-$

-

$

-$

-$

-

$

39,274 $

10,777 $

50,051

$

6,594 $

6,251 $

12,846

$

201 $

106 $

308

$

15,263 $

1,740 $

17,004

$

1,172 $

557 $

1,729

$

46 $

26 $

71

$

10,130 $

6,643 $

16,773

$

38,202 $

10,431 $

48,633

$

-$

-$

-

$

22,672 $

2,280 $

24,952

$

1,407 $

571 $

1,979

$

7,732 $

3,835 $

11,568

$

45,172 $

5,076 $

50,248

$

-$

-$

-

$

383,487 $

124,368 $

507,854

$

145,169 $

31,619 $

176,788

$

4,290 $

564 $

4,854

$

2,039 $

640 $

2,679

$

-$

-$

-

$

-$

-$

-

$

-$

-$

-

$

-$

-$

-

$

8,242 $

1,102 $

9,343

$

10,066 $

5,674 $

15,740

$

52,227 $

4,975 $

57,202

$

19,835 $

3,048 $

22,883

$

1$

1$

2

$

841 $

681 $

1,522

$

567 $

528 $

1,095

$

193 $

104 $

297

$

7,897 $

2,345 $

10,242

$

-$

-$

-

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGandDoIcnutmereenst 1t 6D4ueFiIlendd0iv9i/1d4u/1a1l CPlaasges8Moef m10b2ePrasgeID #: 5218

All Except T&I (Exclud. FA for NYC)

Damages +

Employee Name

Employee ID# Damages

Interest

Interest

(1)

(2)

(3)

(4)

(5)

BOYD, ORAN

174211 $

69 $

13 $

82

BOYLE, JAMES P

162898 $

7,639 $

3,189 $

10,828

BRASSEAUX, CHRISTOPHER

165062 $

1,709 $

1,234 $

2,943

BRIGHAM, JOHN

534244 $

694 $

317 $

1,011

BROWN, CHRISTOPHER

122375 $

134 $

112 $

246

BROWNING, DANIEL P

163625 $

3,490 $

1,407 $

4,896

BROWN-TAUROZZI, TODD L

533266 $

99,194 $

70,703 $

169,897

BUCAR, BRIAN MICHAEL

170126 $

3,041 $

361 $

3,401

BUCHAKIAN,PETER G

121157 $

179,004 $

54,630 $

233,633

BURGESS, ERIC S

127708 $

12,853 $

12,124 $

24,977

BURKE, RICHARD I

166721 $

19,670 $

7,924 $

27,594

BURKHARTZMEYER,ANDREW

120565 $

60,979 $

36,133 $

97,111

BYRON, KENNETH

166726 $

16,586 $

9,680 $

26,266

CABRERA, LENIN

174509 $

465 $

10 $

474

CALDONA, RAFAEL L

511059 $

26,698 $

22,620 $

49,318

CAMPBELL, O'NEIL KINGSLEY (END

170090 $

11,346 $

5,586 $

16,932

CANAVAN, ROBERT M

124803 $

11,004 $

9,982 $

20,986

CANCEMI, MICHAEL THOMAS

533646 $

11,352 $

7,143 $

18,494

CAPPIELLO, ANNMARIE

172306 $

116,777 $

27,324 $

144,102

CARPENTER, WILLIAM T

171582 $

8,372 $

1,156 $

9,528

CARRASQUILLO, JESUS M

530659 $

5,141 $

4,386 $

9,527

CARREON, GIAN CARLO

170304 $

44,784 $

17,652 $

62,436

CARRION, VINNY

531084 $

37,424 $

35,186 $

72,609

CARROLL, SCOTT F

128485 $

1,184 $

1,129 $

2,313

CARTER, JEFFREY A

169238 $

454 $

241 $

695

CARVER, PATRICK C

127445 $

2,461 $

1,546 $

4,006

CASSONE, JOSEPH E

121327 $

74,465 $

62,558 $

137,022

CASTILLO, FRANCIS M

166331 $

597 $

414 $

1,011

CASURAS, KEVIN M

510747 $

1,454 $

1,205 $

2,659

CAWLEY, JACOB A

173330 $

1,290 $

402 $

1,693

CEDANO, FRANCISCO A

533826 $

2,155 $

438 $

2,593

CHALUPKA,FRANK P

124395 $

20,206 $

15,027 $

35,233

CLARK,BRADLEY

121449 $

8,678 $

5,510 $

14,188

COLABELLI, JAMES M

121502 $

22,505 $

18,375 $

40,881

COLEMAN, MARTIN LEE

175152 $

965 $

110 $

1,075

CONANT, TIMOTHY

164052 $

39,768 $

22,186 $

61,955

CONERTY,RYAN J.

167517 $

134 $

202 $

336

COOK, DAVID C

165563 $

19,613 $

13,470 $

33,083

COOKE, JOSEPH R

126239 $

18,426 $

15,627 $

34,052

COROMINAS, JAMES A

166934 $

48,323 $

34,027 $

82,350

CORREA, PHILIP

121569 $

55,611 $

46,257 $

101,868

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

20,863 $

4,211 $

25,074

$

58,826 $

14,301 $

73,127

$

-$

-$

-

$

2,465 $

1,045 $

3,511

$

-$

-$

-

$

68,843 $

16,425 $

85,268

$

127,712 $

58,902 $

186,614

$

75,264 $

14,700 $

89,965

$

14,375 $

1,156 $

15,531

$

-$

-$

-

$

35,253 $

3,147 $

38,400

$

265 $

137 $

402

$

69,856 $

15,853 $

85,709

$

20,979 $

2,235 $

23,214

$

-$

-$

-

$

277 $

140 $

418

$

323 $

298 $

621

$

127,506 $

28,905 $

156,412

$

189,654 $

32,831 $

222,485

$

31,529 $

9,429 $

40,958

$

-$

-$

-

$

230,604 $

45,358 $

275,961

$

(0) $

-$

(0)

$

-$

-$

-

$

1$

1$

2

$

2,353 $

1,161 $

3,514

$

45 $

38 $

82

$

-$

-$

-

$

-$

-$

-

$

21,300 $

6,099 $

27,399

$

-$

-$

-

$

1,457 $

1,155 $

2,611

$

1,075 $

173 $

1,248

$

963 $

843 $

1,806

$

33,887 $

3,404 $

37,291

$

108,813 $

30,360 $

139,173

$

681 $

440 $

1,121

$

-$

-$

-

$

3,142 $

3,009 $

6,151

$

1,264 $

334 $

1,598

$

7,286 $

6,515 $

13,801

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGandDoIcnutmereenst 1t 6D4ueFiIlendd0iv9i/1d4u/1a1l CPlaasges9Moef m10b2ePrasgeID #: 5219

Employee Name (1)
CULLUM, MICHAEL S CULSHAW, JOHN L CURRIE, BRIAN DOUGLAS DARCY JR, JAMES E DASHNAU, EDWARD ROBERT DAVID, JEAN DAVIDSON, CORY WILLIAM DAVIES, DOUGLASS G DAVIES, RICHARD A DAVIS, ANDREW MARK DAVIS, TIMOTHY A (119) DECICCO, STEVE DEFILIPPS, DANIEL P DEGROFF, DAVID DEMASI, JOSEPH DENSE, LOUIS C DEPAOLA, CHRISTOPHER JAMES DESOUZA, WAYNE DIAMOND, PHILLIP H (END DATED) DIFABIO JR,JOSEPH A DILLUVIO, NICHOLAS M DODGE, JOHN DOIN JR, DONALD G DONER,PETER W DUBUQUE IV, WILLIAM D DUPRA, ARTHUR DURYEA, DENNIS J DYNKO, MICHAEL MELVIN ECHAVARRIA, SIMON EISENHUTH, JANNA A ELFREICH, THOMAS P EMERSON, DANIEL E ENAMORADO, VICTOR ESTRELLA, MAXIMO ETIENNE, DAVIDSON FARRELL, PATRICK J FARROW, JOHN B FEATHERSON, ERIC S FERNANDEZ JR, JOSE L FERNANDEZ, JOSE FIORE, VINCENT B

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

123845 $

57,179 $

49,188 $

106,367

126890 $

22,765 $

16,690 $

39,455

173893 $

1,268 $

(96) $

1,172

173311 $

35,417 $

3,424 $

38,840

535582 $

21,676 $

10,480 $

32,156

170629 $

2,395 $

(320) $

2,075

535644 $

239 $

110 $

350

164291 $

77,771 $

18,207 $

95,978

167561 $

30,149 $

12,807 $

42,956

165411 $

7,932 $

4,451 $

12,383

176130 $

414 $

19 $

433

172639 $

7,070 $

474 $

7,544

165661 $

6,116 $

4,571 $

10,687

165817 $

33,958 $

18,807 $

52,765

174792 $

1,322 $

272 $

1,593

122004 $

1,796 $

1,568 $

3,365

530854 $

4,815 $

1,256 $

6,071

531792 $

52,721 $

40,371 $

93,092

535431 $

1,032 $

518 $

1,550

101845 $

34,048 $

28,470 $

62,518

170802 $

1,253 $

141 $

1,394

162139 $

1,870 $

1,084 $

2,954

164597 $

1,427 $

1,067 $

2,493

121907 $

5,446 $

4,000 $

9,446

171290 $

1$

3$

5

175993 $

1,819 $

106 $

1,924

121978 $

71,432 $

61,562 $

132,995

172873 $

2,414 $

200 $

2,614

510744 $

38,619 $

29,243 $

67,861

168158 $

15,035 $

8,098 $

23,133

510996 $

7,113 $

739 $

7,852

125990 $

38 $

34 $

72

531182 $

131,987 $

103,156 $

235,143

161423 $

189 $

100 $

289

11889 $

354 $

323 $

676

128274 $

1,251 $

989 $

2,241

173145 $

79,450 $

8,859 $

88,310

122764 $

8,790 $

7,276 $

16,066

510845 $

4,354 $

3,636 $

7,990

533722 $

21,615 $

8,357 $

29,972

120821 $

43,004 $

38,553 $

81,557

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

24,166 $

17,913 $

42,079

$

10,966 $

6,989 $

17,955

$

2,156 $

133 $

2,289

$

10,709 $

1,609 $

12,318

$

1,546 $

753 $

2,299

$

38,004 $

4,020 $

42,024

$

96 $

46 $

142

$

1,007 $

445 $

1,452

$

40,176 $

17,506 $

57,682

$

20,314 $

7,549 $

27,864

$

0$

0$

0

$

94 $

13 $

107

$

-$

-$

-

$

32,836 $

16,144 $

48,980

$

0$

0$

1

$

-$

-$

-

$

8,527 $

2,290 $

10,817

$

-$

-$

-

$

0$

0$

0

$

1,419 $

1,176 $

2,596

$

34,718 $

3,830 $

38,548

$

538 $

295 $

833

$

10,477 $

4,009 $

14,486

$

41 $

30 $

71

$

496 $

111 $

607

$

1$

0$

1

$

75 $

70 $

146

$

106,931 $

18,764 $

125,696

$

475 $

(36) $

439

$

290 $

154 $

443

$

33,084 $

3,740 $

36,824

$

162 $

147 $

308

$

-$

-$

-

$

32,998 $

16,594 $

49,592

$

-$

-$

-

$

250 $

241 $

491

$

1,735 $

332 $

2,067

$

415 $

323 $

738

$

4,464 $

999 $

5,463

$

77,219 $

31,925 $

109,144

$

818 $

767 $

1,585

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M0 oefm10b2ePrsageID #: 5220

Employee Name (1)
FISCHER, ROBERT FITZPATRICK,BRIAN J FIX JR.,DAVID FLEXON, CHRISTOPHER M FLORENTINO, JOSE FLOREZ, OMAR A FORBES, BRUCE R FORD, VERNON FORESTIERI, NICHOLAS A FRAISER, ZACHERY RYAN FRANCHI, GERALD FREDETTE, JEFFREY E FRENCH, BRENT W FRENCH, THOMAS P FREZZA JR, MICHAEL FRIEDMAN, STEVEN M GARCIA, PABLO GARDELLA, PETER J GARY, JASON GATES, JEFFERY GEORGE, ALEXANDRA B GIDDINGS, WILLIAM GILES,ERIC R GILLETTE, THOMAS K GILMAN,JOHN H GLADLE, BERNARD J GLADLE, BERNARD L GLASS, JAMES R GLOTZBACH, BRYAN PAUL GLOVER, EUGENE L GOLDBERG, JOHN M GONZALEZ, DAVID GONZALEZ, DELFINO GONZALEZ, YADIRA GOODWIN, PATRICK J GOODWIN, TODD J GORELIN, LEONID GORTON, ROBERT W GOVAN, KWAUHURU GRACIE, MICHAEL D GRADY, DONALD A

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

511125 $

10,241 $

10,165 $

20,406

164541 $

2,288 $

1,502 $

3,790

163390 $

26,297 $

12,156 $

38,452

163300 $

55 $

42 $

97

532727 $

13,798 $

4,507 $

18,306

167145 $

16,703 $

6,091 $

22,794

166283 $

30,827 $

19,183 $

50,010

122104 $

24,147 $

15,096 $

39,244

120153 $

23,716 $

21,018 $

44,733

172856 $

434 $

129 $

563

175257 $

1,078 $

64 $

1,141

170520 $

21 $

7$

28

122958 $

1,008 $

482 $

1,490

171778 $

196 $

9$

205

531923 $

5,199 $

4,327 $

9,526

125810 $

9,716 $

7,909 $

17,625

534096 $

9,638 $

4,885 $

14,523

126188 $

14,762 $

11,430 $

26,192

166821 $

15,417 $

9,690 $

25,108

120609 $

55,360 $

37,042 $

92,402

119809 $

217 $

176 $

393

175317 $

26,682 $

2,023 $

28,706

125395 $

21,520 $

14,731 $

36,252

124683 $

39,803 $

29,826 $

69,629

163697 $

22,003 $

17,036 $

39,039

175139 $

167 $

32 $

199

510868 $

8,630 $

(1,018) $

7,612

513289 $

1,471 $

159 $

1,631

174715 $

13,666 $

1,267 $

14,933

121255 $

11,518 $

9,946 $

21,464

120425 $

65,987 $

44,071 $

110,057

533294 $

3,057 $

2,336 $

5,393

519677 $

2,563 $

462 $

3,024

532506 $

15,835 $

14,144 $

29,979

123205 $

41,511 $

24,188 $

65,700

162906 $

15,373 $

8,174 $

23,547

122533 $

4,638 $

4,118 $

8,756

128759 $

6,821 $

2,292 $

9,114

533163 $

2,172 $

1,641 $

3,814

128383 $

35,424 $

26,367 $

61,791

120426 $

1,117 $

531 $

1,648

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

-$

-$

-

$

1,510 $

1,040 $

2,550

$

3,765 $

2,179 $

5,944

$

-$

-$

-

$

392 $

124 $

516

$

119,439 $

54,459 $

173,898

$

11 $

5$

15

$

6,353 $

4,259 $

10,613

$

7,102 $

6,167 $

13,269

$

29,847 $

8,836 $

38,683

$

-$

-$

-

$

183 $

66 $

249

$

75,943 $

9,401 $

85,344

$

75,564 $

11,645 $

87,208

$

-$

-$

-

$

10 $

8$

19

$

1,770 $

431 $

2,201

$

-$

-$

-

$

32,337 $

19,318 $

51,655

$

43 $

31 $

74

$

(0) $

-$

(0)

$

13 $

1$

14

$

7,926 $

4,711 $

12,637

$

36,503 $

8,406 $

44,909

$

40,916 $

7,177 $

48,093

$

10,052 $

1,199 $

11,251

$

14,617 $

1,573 $

16,190

$

5,058 $

822 $

5,880

$

1$

0$

1

$

167,985 $

47,263 $

215,247

$

6,408 $

3,258 $

9,666

$

-$

-$

-

$

4,822 $

916 $

5,738

$

9,375 $

3,820 $

13,195

$

18,663 $

4,117 $

22,780

$

5,124 $

2,832 $

7,956

$

18 $

17 $

35

$

5$

4$

9

$

-$

-$

-

$

206 $

192 $

398

$

769 $

329 $

1,098

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M1 oefm10b2ePrsageID #: 5221

Employee Name (1)
GRAVAGNE, JOSEPH GRAVAGNE, MICHAEL GREEN, JEFFREY ALLEN GRIFFO,JERRY GRINER, JOHN JOSEPH GROSSMAN, GLEN A GUETTLER, MICHAEL W HABERMEHL, DANIEL M HADSELL, JAMES D HALSTEAD, JAROD M. HALTER JR, JAMES HARPOLE, GERALD (END DATED) HARRIS, SHERRICK HARTLING, DALE ROBERT HARWOOD JR, ROGER B HAUTH, GREGORY J HERCHENRODER JR, MICHAEL F HESSELFELDT, DAVID A HESSELFELDT, DAVID A HETZEL, NORMAN P HOBBS, WILLIAM C HOOCK,JASON R HOUDE, THOMAS HUBER, PHILIP HUBNER, JOHN PAUL HUEBNER, KATHY E. HULTON, GERALD J IACCINO, LOUIS V (END DATED) ILACQUA, JOHN JOSEPH INGLESE, JAMIE M IORGOVAN, OVIDIU JAIME, BENJAMIN JAKUBOWSKI, MATTHEW JANKOSKI, PETER V JENNINGS, DAVID S. JIMENEZ, SAMUEL JOANIS, DAVID BRUCE JOHNSON, JOSEPH MARK JOHNSTON, BRETT MICHAEL JOINER,KEITH D JOLLY JR, DAVID J

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

510804 $

2,518 $

2,287 $

4,806

531651 $

106,191 $

79,357 $

185,548

166503 $

813 $

542 $

1,355

161342 $

10,687 $

7,261 $

17,948

173644 $

6,363 $

484 $

6,847

123305 $

1,606 $

1,557 $

3,164

124260 $

9,516 $

10,995 $

20,511

173633 $

19,042 $

1,544 $

20,586

172735 $

4,174 $

723 $

4,897

166660 $

13,256 $

8,745 $

22,001

532621 $

287 $

(126) $

161

162964 $

20,196 $

11,290 $

31,486

535417 $

5,102 $

244 $

5,347

170411 $

1,557 $

893 $

2,449

162496 $

53,285 $

35,450 $

88,735

175354 $

40,951 $

2,509 $

43,460

129502 $

295 $

256 $

551

513897 $

79 $

72 $

151

169389 $

996 $

818 $

1,814

123919 $

9,008 $

8,066 $

17,073

123667 $

85,584 $

43,589 $

129,173

127289 $

7,073 $

6,366 $

13,439

161999 $

1,550 $

895 $

2,445

532483 $

4,328 $

3,324 $

7,651

163220 $

16,810 $

8,025 $

24,835

163124 $

150 $

89 $

239

162167 $

5,654 $

1,577 $

7,231

531561 $

5,527 $

3,197 $

8,725

534037 $

2,543 $

1,774 $

4,317

123441 $

13,019 $

9,243 $

22,261

510728 $

27,865 $

24,080 $

51,945

161250 $

8,241 $

3,904 $

12,145

166984 $

0$

0$

0

124567 $

2,363 $

610 $

2,973

530642 $

192 $

87 $

279

535159 $

282 $

56 $

338

124609 $

58,444 $

41,753 $

100,198

172571 $

18,044 $

1,858 $

19,902

171050 $

553 $

242 $

796

168344 $

9,243 $

6,335 $

15,578

163087 $

104,360 $

19,999 $

124,360

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

-$

-$

-

$

30,635 $

10,713 $

41,348

$

715 $

480 $

1,195

$

5$

2$

7

$

58,455 $

10,328 $

68,784

$

397 $

382 $

778

$

4$

2$

7

$

31,781 $

3,448 $

35,229

$

89,864 $

11,832 $

101,696

$

737 $

510 $

1,247

$

2$

1$

3

$

3$

1$

4

$

37,193 $

5,032 $

42,225

$

524 $

222 $

746

$

48 $

27 $

75

$

14,138 $

891 $

15,029

$

-$

-$

-

$

-$

-$

-

$

69 $

58 $

126

$

313 $

270 $

583

$

70,315 $

56,565 $

126,880

$

383 $

351 $

735

$

12,830 $

6,828 $

19,658

$

-$

-$

-

$

15,801 $

4,429 $

20,230

$

-$

-$

-

$

25,694 $

8,569 $

34,263

$

0$

0$

0

$

-$

-$

-

$

1,844 $

1,272 $

3,117

$

(0) $

-$

(0)

$

2,386 $

1,113 $

3,499

$

1,219 $

543 $

1,762

$

76 $

59 $

135

$

-$

-$

-

$

39,028 $

8,890 $

47,918

$

2,396 $

1,117 $

3,513

$

3$

0$

4

$

13,170 $

5,415 $

18,585

$

3$

1$

4

$

638 $

251 $

889

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M2 oefm10b2ePrsageID #: 5222

Employee Name (1)
JOLLY, DANIEL P JONES, JASON S JONES, WALTER B JUDGE, MICHAEL J KARA JR, FRANK J KARPATHIOS, KONSTANTINOS A KEALY, JOHN T KEATING, CHARLES J KELLY, JEFFREY KENERSON, JOSEPH W KING, JOANN KIRK,CHARLES B KLAWANS, ROBERT KLEIN, GEORGE G KLUMP, GERALD D KORONOWSKI,JOSEPH M KOZELL, RONALD STEVEN KROUTH, ALFRED A KSZANAK, AARON J KUCSERA,ALVIN G KUHLMAN, DONALD A KUKLA, LAWRENCE M KWASIGROCH, ANDREW JAMES LA RUSSA,PHILIP ANTHONY LABOY, STEPHEN LACY,DAVID A LAMANDIA, ANTHONY J LAMORI,FRANCIS KEVIN LAMOUNTAIN, CHRISTOPHER N LANGE, DAVID LARABEE, JOHN O LASHER, RICHARD A LAWSON, JAMIE J LECAROS, CARLOS LEIGH-MANUELL, GARY LENDA, MICHAEL J LENDA,DUANE JOSEPH LESTER, BRIAN K LETOURNEAU, KEITH LEVIN, BRONIS LEVITAN, JEFFREY

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

170734 $

81,633 $

17,819 $

99,453

512017 $

9,281 $

4,992 $

14,273

124732 $

565 $

550 $

1,115

532663 $

4,511 $

(668) $

3,843

124834 $

74,494 $

49,152 $

123,646

167147 $

2,626 $

1,316 $

3,941

124845 $

41,300 $

31,384 $

72,684

125827 $

6,190 $

5,247 $

11,436

124873 $

14,594 $

14,769 $

29,363

164741 $

17,680 $

10,811 $

28,491

173760 $

772 $

247 $

1,019

124850 $

8,569 $

6,179 $

14,748

535112 $

7,715 $

4,447 $

12,162

164433 $

3,384 $

2,214 $

5,598

173243 $

254 $

62 $

316

125047 $

10,489 $

11,886 $

22,376

173440 $

15,961 $

1,283 $

17,244

126345 $

2,449 $

2,279 $

4,728

162002 $

10,280 $

1,519 $

11,800

125077 $

16,631 $

15,164 $

31,795

511029 $

82,148 $

61,275 $

143,423

125089 $

52,636 $

44,825 $

97,461

105100 $

28,630 $

18,103 $

46,733

161150 $

27,552 $

16,469 $

44,021

163500 $

154 $

86 $

240

122626 $

38,520 $

28,391 $

66,911

122797 $

6,792 $

6,054 $

12,846

121472 $

46,583 $

36,787 $

83,369

164062 $

28,795 $

20,304 $

49,099

125157 $

38,431 $

4,911 $

43,341

120240 $

747 $

694 $

1,440

125151 $

17,588 $

13,627 $

31,215

121433 $

26,883 $

23,866 $

50,748

171409 $

93 $

36 $

130

125201 $

107,842 $

73,292 $

181,134

128856 $

14,425 $

6,947 $

21,372

125737 $

4,908 $

3,272 $

8,180

125228 $

13,121 $

12,071 $

25,192

167450 $

238 $

138 $

376

535188 $

415 $

535 $

951

517705 $

3,142 $

670 $

3,812

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

176,925 $

33,599 $

210,524

$

5,180 $

506 $

5,686

$

597 $

586 $

1,183

$

4,248 $

747 $

4,995

$

55 $

51 $

106

$

855 $

410 $

1,265

$

400 $

337 $

737

$

-$

-$

-

$

298 $

278 $

576

$

9$

2$

11

$

-$

-$

-

$

959 $

378 $

1,337

$

6,496 $

3,469 $

9,966

$

3,093 $

1,999 $

5,092

$

71,014 $

10,414 $

81,427

$

639 $

475 $

1,114

$

9,074 $

698 $

9,771

$

-$

-$

-

$

23,311 $

8,299 $

31,610

$

686 $

654 $

1,341

$

65,820 $

26,912 $

92,732

$

707 $

685 $

1,392

$

3,564 $

2,049 $

5,613

$

37,289 $

16,333 $

53,622

$

4,458 $

2,465 $

6,923

$

46,581 $

15,322 $

61,903

$

861 $

757 $

1,618

$

6,178 $

3,965 $

10,143

$

427 $

237 $

664

$

85 $

18 $

103

$

-$

-$

-

$

4,753 $

2,002 $

6,755

$

-$

-$

-

$

-$

-$

-

$

923 $

419 $

1,342

$

59,303 $

19,205 $

78,507

$

8,006 $

1,055 $

9,061

$

2,507 $

2,438 $

4,945

$

-$

-$

-

$

(478) $

-$

(478)

$

1,417 $

303 $

1,720

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M3 oefm10b2ePrsageID #: 5223

Employee Name (1)
LEW, RONALD E LEWIS,KEVIN ALAN LINDEN, PETER LISSOW, JOSEPH LIVINGSTON, BRADLEY G LOEBL, THOMAS S LOPEZ, JAMES LOVE, JEFFERY S LUBNIEWSKI, LEONARD J LUCAS, JAMES BERNARD LULEVITCH, JEROME LUTZ, ROBERT ALEXANDER MACDONALD, WILLIAM P MACK, STEPHEN J MADDAGE, JEFFREY R MAHER,ALAN J MAHONEY, JOHN P MAIETTA, CHRISTOPHER MAIOLO, LEON S MAJEWSKI III, JOHN T MALAMUTT, ERIC S. MALDONADO, JOSE (NY) MALESKI, DAVID MALHEIRO, JOSEPH M MALLON, SEAN P MANDAGLIO, ROCCO MANNING, STEVEN M MARKAJANI, RICHARD J MARTIN, CHRISTOPHER MASCI, MICHAEL D MATHEWS, ALBERT MATTHIAS, JOSHUA MAURO, JOSEPH J MAZEWSKI, GRZEGORZ MCARDELL, JASON MCCANN, CHRISTOPHER J MCCARTY JR, WILLIAM M MCCROSSIN, BRIAN A MCCROSSIN, BRIAN E MCGARGHAN, MICHAEL F MCGRANE, MICHAEL

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

105232 $

36,513 $

5,130 $

41,642

128509 $

8,370 $

7,162 $

15,532

533245 $

12,881 $

11,797 $

24,678

532466 $

59 $

40 $

99

162342 $

991 $

590 $

1,581

162087 $

6,622 $

4,057 $

10,678

163799 $

15,814 $

11,657 $

27,471

165124 $

11,677 $

7,481 $

19,158

510748 $

20,699 $

9,460 $

30,159

535906 $

1,095 $

108 $

1,203

125073 $

531 $

518 $

1,050

170200 $

23,794 $

4,682 $

28,476

161936 $

831 $

522 $

1,354

171370 $

1,387 $

524 $

1,912

175049 $

4,374 $

360 $

4,735

125441 $

16,266 $

9,945 $

26,211

120575 $

86,548 $

62,883 $

149,431

535533 $

59,056 $

7,237 $

66,293

123645 $

719 $

705 $

1,424

174550 $

640 $

167 $

807

166873 $

1,717 $

894 $

2,611

534720 $

14,046 $

5,887 $

19,933

125425 $

1,276 $

1,201 $

2,478

510746 $

5,841 $

5,202 $

11,043

122036 $

1,377 $

1,189 $

2,566

125460 $

28,183 $

25,261 $

53,444

125436 $

40 $

39 $

80

124767 $

4,910 $

4,437 $

9,347

162939 $

2,121 $

6,751 $

8,872

120432 $

12,873 $

12,142 $

25,015

510713 $

48,268 $

38,821 $

87,089

174726 $

4,065 $

982 $

5,047

510940 $

26,485 $

13,779 $

40,264

172538 $

40,681 $

4,369 $

45,050

169179 $

169 $

22 $

191

121237 $

292,805 $

157,675 $

450,480

124061 $

4,898 $

4,410 $

9,308

168301 $

58,490 $

26,652 $

85,142

510805 $

171,492 $

30,043 $

201,535

121333 $

1,409 $

1,342 $

2,752

510888 $

8,969 $

8,220 $

17,189

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

465 $

182 $

647

$

277 $

267 $

544

$

41 $

2$

42

$

-$

-$

-

$

12,774 $

6,823 $

19,596

$

326 $

201 $

528

$

-$

-$

-

$

59,960 $

31,301 $

91,261

$

78,466 $

16,251 $

94,716

$

3,698 $

832 $

4,531

$

-$

-$

-

$

2,001 $

937 $

2,938

$

4,164 $

2,489 $

6,653

$

47 $

20 $

66

$

1,767 $

194 $

1,961

$

58 $

20 $

78

$

10 $

8$

18

$

57,254 $

8,230 $

65,484

$

-$

-$

-

$

-$

-$

-

$

7,983 $

3,621 $

11,604

$

57,576 $

14,574 $

72,150

$

0$

0$

0

$

-$

-$

-

$

145 $

130 $

275

$

-$

-$

-

$

-$

-$

-

$

4$

4$

9

$

765 $

317 $

1,081

$

502 $

375 $

877

$

21,845 $

5,039 $

26,884

$

4,617 $

646 $

5,264

$

46,298 $

15,553 $

61,850

$

249 $

24 $

273

$

0$

0$

0

$

79,848 $

33,484 $

113,332

$

100 $

98 $

198

$

85,608 $

29,892 $

115,500

$

5,200 $

391 $

5,592

$

-$

-$

-

$

-$

-$

-

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M4 oefm10b2ePrsageID #: 5224

Employee Name (1)
MCNALLY, ROBERT F MCNAMARA, PATRICK H. MCNAMARA, PATRICK H. MEDRANO, JAVIER A MEIGEL, JOHN JOSEPH MEISENZAHI, JEREMY MESISCA, MICHAEL S MILLER, GERALD E MILLER, JUSTIN EDWARD MITCHELL, JAMES R MITCHELL, KEITH ROBERT MITCHETTI JR, FRANKLIN M MITTLER, GEORGE MOLCHANOFF, GEORGE M MOLLACH, MADELINE M MORAN, RICHARD ALBERT MOREY, DOUGLAS N MORIN, ERIC D MORRONE,WILLIAM J MOSKAL, WILLIAM ANDREW MULLEN, JASON M MURPHY, TRAVIS R MURRAY,WILLIAM MYERS, GREG R. NADER, RADYS NAHOW, STEVEN NARAD, THOMAS E NELLIST, JASON D NELSON, STEVEN E NEVILLE, WILLIAM A NIGHTINGALE,DANIEL NOTARTOMASO, THOMAS NOWORYTA, JOHN NUNEZ, GEORGE OBERHAUSER JR, DANIEL O'BRIAN, CHRISTOPHER C O'CONNOR, DAVID G OLSZOWKA,ROBERT J ORR, SEAN OSBORNE, JAMES J OSTER, HARRY J

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

125640 $

12,162 $

9,945 $

22,107

166862 $

1,797 $

1,229 $

3,026

167532 $

342 $

229 $

571

172088 $

42,505 $

11,496 $

54,001

171459 $

95 $

39 $

135

510847 $

186 $

158 $

343

164286 $

13,098 $

1,890 $

14,988

126088 $

33,108 $

26,518 $

59,626

171376 $

63,921 $

8,129 $

72,050

166629 $

7,161 $

3,195 $

10,356

173632 $

9,692 $

841 $

10,533

175373 $

281 $

39 $

320

125758 $

150,924 $

88,213 $

239,137

122552 $

37,224 $

26,300 $

63,524

123214 $

23,050 $

16,744 $

39,794

172270 $

25,185 $

2,122 $

27,306

172160 $

2,840 $

938 $

3,778

169360 $

39 $

11 $

50

125825 $

64,755 $

35,119 $

99,875

125829 $

77,125 $

33,352 $

110,477

164628 $

32,163 $

21,884 $

54,046

163094 $

1,015 $

722 $

1,737

165992 $

81,400 $

28,313 $

109,713

161262 $

2,652 $

1,664 $

4,317

510927 $

58,560 $

48,054 $

106,614

532451 $

79,195 $

56,415 $

135,611

124851 $

42,628 $

38,002 $

80,630

172401 $

31,213 $

2,894 $

34,107

126027 $

10,362 $

9,157 $

19,519

126042 $

22,549 $

14,213 $

36,762

161991 $

225 $

129 $

354

161592 $

12,993 $

7,423 $

20,415

129521 $

30,648 $

22,494 $

53,142

510830 $

148,752 $

31,149 $

179,901

535807 $

138 $

74 $

212

164596 $

231 $

188 $

419

124249 $

62,188 $

6,304 $

68,492

120135 $

24,445 $

18,261 $

42,706

163397 $

2,190 $

1,382 $

3,572

511217 $

4,984 $

2,278 $

7,262

174513 $

33 $

8$

42

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

75 $

69 $

143

$

-$

-$

-

$

-$

-$

-

$

28,612 $

7,436 $

36,048

$

8,862 $

3,636 $

12,498

$

-$

-$

-

$

178,530 $

44,108 $

222,637

$

481 $

382 $

863

$

1,102 $

245 $

1,346

$

92,829 $

18,624 $

111,453

$

44,420 $

6,305 $

50,725

$

1,517 $

91 $

1,608

$

1,082 $

583 $

1,665

$

1,582 $

1,238 $

2,820

$

27,511 $

11,913 $

39,424

$

43 $

13 $

56

$

13,622 $

4,533 $

18,154

$

0$

0$

0

$

1,182 $

658 $

1,840

$

13,465 $

10,165 $

23,630

$

6,085 $

3,167 $

9,253

$

-$

-$

-

$

1,775 $

627 $

2,402

$

31 $

20 $

51

$

-$

-$

-

$

228,340 $

67,392 $

295,732

$

914 $

804 $

1,719

$

2,004 $

211 $

2,214

$

13,750 $

10,818 $

24,569

$

2,256 $

1,007 $

3,263

$

1,120 $

666 $

1,787

$

6,921 $

3,548 $

10,469

$

24 $

12 $

36

$

16,412 $

4,540 $

20,952

$

-$

-$

-

$

-$

-$

-

$

39,813 $

7,999 $

47,812

$

1,198 $

926 $

2,123

$

33,089 $

18,178 $

51,268

$

20,002 $

2,384 $

22,386

$

193 $

47 $

240

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M5 oefm10b2ePrsageID #: 5225

Employee Name (1)
OSTREGER, NATHAN OTMAR, JOSEPH M OUTHOUSE, DAVID G OWOLABI, RAFIU OYARVIDE, JAIME PADGETT, CORY PADGETT, WILLIAM H PAGAN, CHRISTOPHER M. PALERMO, PAUL G PALMER, RICHARD A PAOLINI,PHILIP A PARKER, BRENT DOUGLAS PARO, DANIEL D PARODY, TERRY J PATTON, RICHARD A PAUL, TIMOTHY JARED PAZMINO, MARIO A PECK, MATTHEW W PEREZ, ARNOLD PEREZ, LEOBARDO PERRY, DENNIS R PESLAK, RICHARD M PETERSEN, HENRY K PHILLIPS, EDWARD J PHILLIPS, JOHN A PIZZUTO, BENJAMIN F PLISKA, EDWARD PLOOF, JOHN S POLLEY, JOHN A POLNAK, JASON R PREMIELEWSKI, SCOTT F PRESIDENT, DENISE B PROCTOR II, RONALD THOMAS PURDY, ALVAN (END DATED) PUSZTAY, BENJAMIN QUIGG, PHILIP E QUIGLEY, PATRICK QUIGLEY, TIMOTHY J QUINN JR, MICHAEL F RAINERI, ANTHONY RAKUS, JAMES A

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

126673 $

222 $

216 $

438

125775 $

128,319 $

84,414 $

212,733

125080 $

12,971 $

11,789 $

24,760

536041 $

5,145 $

3,417 $

8,562

532478 $

110,172 $

66,422 $

176,594

534179 $

4,529 $

3,128 $

7,657

166844 $

4,278 $

2,688 $

6,966

534055 $

117 $

178 $

294

164267 $

7,594 $

5,668 $

13,262

120140 $

41,941 $

28,437 $

70,378

126902 $

32,643 $

24,691 $

57,334

174295 $

97 $

24 $

121

123826 $

112,711 $

79,037 $

191,748

163843 $

44,783 $

12,906 $

57,688

510885 $

60,315 $

21,817 $

82,132

175040 $

14,090 $

1,328 $

15,418

128133 $

1,246 $

1,222 $

2,468

161333 $

15,907 $

2,487 $

18,394

519715 $

1,179 $

425 $

1,604

172394 $

10,213 $

1,074 $

11,288

126694 $

138,165 $

66,476 $

204,641

120267 $

150,634 $

94,789 $

245,423

165665 $

4,699 $

3,543 $

8,242

511058 $

6,089 $

5,579 $

11,668

533464 $

1,366 $

694 $

2,060

162963 $

92,385 $

27,146 $

119,531

171375 $

9,191 $

361 $

9,552

125452 $

43,595 $

23,058 $

66,653

121463 $

72,096 $

43,333 $

115,429

168507 $

13,218 $

2,011 $

15,229

164513 $

7,440 $

5,284 $

12,725

168804 $

3,549 $

1,231 $

4,780

174533 $

3,054 $

436 $

3,490

161499 $

2,878 $

1,598 $

4,476

162414 $

23,941 $

2,498 $

26,439

172833 $

423 $

137 $

561

533825 $

1,768 $

1,272 $

3,040

168238 $

7,766 $

4,636 $

12,402

125697 $

181 $

164 $

345

128165 $

57,068 $

51,754 $

108,821

511177 $

40,856 $

29,977 $

70,834

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

-$

-$

-

$

459 $

304 $

763

$

100 $

28 $

128

$

23 $

2$

25

$

314,787 $

59,220 $

374,006

$

-$

-$

-

$

77,201 $

32,442 $

109,644

$

-$

-$

-

$

1,254 $

892 $

2,146

$

4,108 $

2,793 $

6,902

$

46,264 $

12,568 $

58,832

$

313 $

79 $

391

$

2,141 $

1,823 $

3,964

$

30,520 $

6,067 $

36,587

$

5,963 $

1,340 $

7,303

$

1,605 $

210 $

1,815

$

-$

-$

-

$

14,815 $

7,102 $

21,917

$

13 $

5$

18

$

20,445 $

2,150 $

22,595

$

7,880 $

3,018 $

10,898

$

346 $

209 $

555

$

-$

-$

-

$

-$

-$

-

$

1$

0$

1

$

51 $

12 $

62

$

1,815 $

326 $

2,141

$

127 $

36 $

162

$

17,272 $

4,230 $

21,502

$

73,131 $

26,466 $

99,597

$

6,886 $

1,427 $

8,313

$

178,096 $

43,247 $

221,343

$

71,476 $

7,188 $

78,664

$

-$

-$

-

$

44,422 $

10,047 $

54,469

$

12,551 $

4,375 $

16,926

$

-$

-$

-

$

56,643 $

25,242 $

81,885

$

59 $

53 $

112

$

629 $

202 $

832

$

47,281 $

7,441 $

54,723

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M6 oefm10b2ePrsageID #: 5226

Employee Name (1)
RAMIREZ, LINO RAMOS, ORLANDO RAMOS, ROBERT RAMSARAN, BEEJAY RAUBER, JEFFREY T REAVIS JR, RUDOLPH W REGGIO, MICHAEL ANTHONY REICHARDT, MARK E REILLY, MICHAEL REMLEY, FLOYD GARY REOME, MICHAEL GILBERT REYNOLDS, AARON PATRICK RICHARDSON, ANTHONY T RITTENHOUSE, KRIS THOMAS RIVENBURG, GUY RIVERA, JOSE ROCKWELL, DUANE N RODRIGUEZ, FRANK (143) ROMAN, JAIME ROMER, WAYNE A ROUTENBERG, EVAN ROWE, MICHAEL JAMES RUBINO, JOSEPH RUBINO, THOMAS A RUDOLPH,STEVEN W RUSSELL, FREDERICK A RUSSELL, KENT M RYAN, LAWRENCE V SAHMEL, EVAN WILLIAM SALVO, MARIO SAMMIS, MARK SANCHEZ, EUGENE SANTMYER, MARTIN SANTOO, RAMPERSAUD R SATAS, WAYNE A SCALISI, THOMAS SCHATZEL, ALCUIN A SCHWEIKLE, ARNE G SCIACCA, CARMEN F SCOFIELD, HOWARD D SEILER, THOMAS W

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

127330 $

1,850 $

1,423 $

3,273

531085 $

6,144 $

5,255 $

11,400

510963 $

80,346 $

65,732 $

146,077

510850 $

13,324 $

15,859 $

29,183

127906 $

15,897 $

11,717 $

27,613

123213 $

2,768 $

2,676 $

5,444

175229 $

2,145 $

165 $

2,310

127388 $

43,442 $

24,308 $

67,750

511110 $

103,829 $

43,191 $

147,020

167228 $

406 $

144 $

550

127705 $

86,199 $

43,767 $

129,966

175303 $

9,385 $

747 $

10,132

174542 $

457 $

(405) $

52

170675 $

1,305 $

(33) $

1,272

172465 $

147 $

46 $

193

169941 $

8,810 $

5,603 $

14,413

172980 $

587 $

59 $

645

531329 $

37,196 $

23,120 $

60,315

510709 $

6,004 $

1,752 $

7,756

128393 $

30,648 $

25,954 $

56,602

129405 $

3,878 $

3,237 $

7,115

170602 $

970 $

434 $

1,404

127608 $

88 $

78 $

166

532657 $

33 $

2$

35

127610 $

11,625 $

7,121 $

18,747

127624 $

29,729 $

17,011 $

46,740

127627 $

599 $

585 $

1,184

127652 $

13,348 $

11,621 $

24,969

171124 $

2,360 $

125 $

2,484

127692 $

4,376 $

4,099 $

8,475

172943 $

169 $

60 $

229

534312 $

101 $

69 $

170

164208 $

688 $

545 $

1,234

121634 $

50,830 $

42,648 $

93,479

171096 $

70 $

30 $

101

163550 $

723 $

396 $

1,120

127735 $

1,954 $

1,867 $

3,821

172642 $

1,172 $

430 $

1,602

125871 $

6,903 $

5,394 $

12,297

510914 $

62,173 $

39,063 $

101,236

519780 $

98,597 $

13,426 $

112,023

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

525 $

251 $

776

$

-$

-$

-

$

21,072 $

3,431 $

24,504

$

(0) $

-$

(0)

$

23 $

10 $

33

$

88 $

86 $

173

$

14,520 $

1,225 $

15,745

$

24 $

10 $

35

$

96,336 $

24,404 $

120,741

$

16,065 $

6,186 $

22,251

$

60,093 $

15,169 $

75,262

$

0$

0$

0

$

0$

0$

0

$

39,948 $

8,196 $

48,144

$

50,918 $

14,224 $

65,141

$

-$

-$

-

$

61,046 $

10,487 $

71,533

$

428 $

127 $

555

$

61,091 $

9,449 $

70,540

$

281 $

237 $

518

$

-$

-$

-

$

3,445 $

1,524 $

4,968

$

-$

-$

-

$

3,450 $

884 $

4,334

$

171 $

78 $

249

$

8,771 $

2,187 $

10,958

$

59 $

57 $

116

$

106 $

91 $

197

$

42,719 $

6,757 $

49,476

$

-$

-$

-

$

-$

-$

-

$

2,320 $

1,228 $

3,548

$

-$

-$

-

$

470 $

438 $

908

$

23,020 $

9,830 $

32,850

$

13,779 $

5,889 $

19,667

$

496 $

114 $

610

$

3,430 $

1,262 $

4,692

$

9$

8$

17

$

3$

1$

3

$

15,940 $

2,289 $

18,229

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M7 oefm10b2ePrsageID #: 5227

Employee Name (1)
SERAFIN, RANDY SESSLER, NATHAN A SHAW, ROBERT K. SHEMBEDA, JOSEPH C SHERRY, SAMUEL J SHERRY, STANLEY SHUMAN, GREGORY S SIGLER, DANIEL SKIBITSKI JR, JOHN F SLATTERY, GEORGE MATTHEW SLINGERLAND JR, BRIAN A SMITH, BENJAMIN M SMITH, ROGELIO SMITH,JONNY M SOCHA, MARTIN SOLT III, WILLIAM R SORVILLO, EDWARD M SPRINGS, JASON STACEY, ROBIN (END DATED) STACHNIUK, HENRY STALLONE, PAUL D STASKO, JOSEPH STICKNEY, WILLIAM O STRAIN, MARK F STRANKO, THOMAS E STUPKA, CHRISTOPHER SULLIVAN, DENNIS SUTHERLAND, JAMES R SVENSEN, KURT KYLE SWACKHAMER,GARY R SWATSKI,ROBERT VICTOR TAFEL, EDWARD CHRIS TARBELL, MICHAEL W TARDIFF, DOUGLAS J TAVORMINA, ANTHONY G TESTER, ANTHONY M TETLEY, GARY C THAYER, CHRISTOPHER THOMAS, FRANK TOBLER, GREGORY TOLLIS, DAVID J

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

127817 $

118 $

115 $

233

162459 $

180 $

(32) $

148

163008 $

340 $

209 $

549

125892 $

344 $

305 $

648

172157 $

11,344 $

1,689 $

13,033

171839 $

2,673 $

1,024 $

3,697

164467 $

2,617 $

2,129 $

4,747

127895 $

35,908 $

19,167 $

55,075

123285 $

11,669 $

10,868 $

22,537

171273 $

10,804 $

388 $

11,193

163923 $

29,926 $

21,647 $

51,573

531407 $

29,410 $

20,232 $

49,642

510759 $

76,439 $

64,231 $

140,670

166958 $

260 $

10 $

270

174659 $

6,926 $

1,285 $

8,211

126104 $

7,789 $

7,138 $

14,927

532452 $

3,258 $

6,914 $

10,171

164385 $

1,013 $

802 $

1,815

128094 $

30,446 $

26,917 $

57,363

511092 $

45,970 $

39,860 $

85,830

128530 $

58,187 $

44,714 $

102,901

175729 $

2,487 $

145 $

2,632

128150 $

43,522 $

29,259 $

72,781

172572 $

28,280 $

9,486 $

37,766

170103 $

1,624 $

832 $

2,456

531642 $

751 $

310 $

1,060

535833 $

828 $

449 $

1,277

128226 $

1$

1$

2

163391 $

2,432 $

1,229 $

3,661

125899 $

2,361 $

2,406 $

4,767

128249 $

38,612 $

29,746 $

68,358

128312 $

8,166 $

7,113 $

15,279

129817 $

55,484 $

31,960 $

87,444

511258 $

11,226 $

2,953 $

14,179

173558 $

8,597 $

1,567 $

10,164

519751 $

3,708 $

3,104 $

6,812

511120 $

147,306 $

27,251 $

174,557

168847 $

179 $

144 $

322

535107 $

22,729 $

7,105 $

29,834

161398 $

32,563 $

19,777 $

52,340

128495 $

10,294 $

9,516 $

19,810

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

-$

-$

-

$

182 $

11 $

193

$

-$

-$

-

$

0$

0$

0

$

60,296 $

14,379 $

74,675

$

686 $

269 $

955

$

0$

0$

1

$

415 $

39 $

454

$

2,218 $

2,020 $

4,239

$

2,751 $

333 $

3,084

$

6,570 $

3,642 $

10,212

$

368 $

89 $

457

$

63,591 $

7,864 $

71,455

$

0$

0$

0

$

4,811 $

895 $

5,705

$

146 $

132 $

277

$

4,326 $

(374) $

3,952

$

834 $

669 $

1,502

$

1$

1$

2

$

25,629 $

2,730 $

28,359

$

587 $

371 $

958

$

3,108 $

177 $

3,285

$

1,491 $

1,164 $

2,655

$

124,794 $

37,326 $

162,121

$

2,782 $

1,414 $

4,195

$

330 $

130 $

460

$

-$

-$

-

$

-$

-$

-

$

2$

1$

2

$

254 $

181 $

435

$

438 $

374 $

812

$

1,966 $

1,733 $

3,699

$

5,238 $

1,661 $

6,899

$

2,547 $

715 $

3,262

$

76,809 $

10,570 $

87,379

$

-$

-$

-

$

10,331 $

1,151 $

11,483

$

-$

-$

-

$

15,395 $

1,539 $

16,934

$

1$

0$

1

$

-$

-$

-

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M8 oefm10b2ePrsageID #: 5228

Employee Name (1)
TORRES, ELIEZER TORRES, JOSEPH WILLIAM TORSTRUP, DAWN TORSTRUP, PETER TROMBLEY, JAMES P TROMBLY,RONALD W TRUTOR, JOSHUA M TULLY, MICHAEL L TURNER, DEREK W UNKNOWN VACCARO, DANIEL J VALENTINE III, JOSEPH VAN LEUVAN, JAMES WILLIAM VANFOSSEN, JACK EARL VARGAS, JAVIER N VASQUEZ, EDWIN VASQUEZ, JAVIER VELASQUEZ, ANTONIO VELASQUEZ, CHRISTOPHER VINCENT, RICHARD VIOLANO, JOSEPH R VIRA, ANDREJ WAKELEE, KENT W WALSH, BRIAN WALTON, WILLIAM R WARD, BRIAN M WARD, MICHAEL J WARREN, JOSEPH G WARREN, STANLEY T WECH, DENNIS WEIGEL, ROBERT G WELTON, CHARLES A WHITE, STEVEN C WHITMAN, JOHN J WICAI, NEIL R WILDER, BRADFORD WILISHEFSKI, JASON E WILLIAMS, DIXON T WILLIAMS, ROBERT WILLSEY, BUDDY W (END DATED) WILSON, VERONICA

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

511053 $

94,807 $

36,962 $

131,770

171867 $

18,550 $

3,910 $

22,459

511201 $

2$

1$

2

533824 $

42,901 $

18,701 $

61,601

173344 $

1,727 $

217 $

1,944

128536 $

36 $

26 $

62

165363 $

4,762 $

3,394 $

8,157

168038 $

11,608 $

5,483 $

17,090

128617 $

12,298 $

7,218 $

19,516

121676 $

219 $

158 $

377

125155 $

39,150 $

21,919 $

61,069

510972 $

115 $

59 $

174

170388 $

111 $

39 $

150

122420 $

44,703 $

28,833 $

73,535

511185 $

10,794 $

8,222 $

19,016

172468 $

9$

3$

12

170823 $

3,879 $

(2,249) $

1,630

519779 $

98,870 $

80,073 $

178,943

510757 $

8,574 $

7,806 $

16,380

164037 $

63,365 $

41,503 $

104,868

163917 $

232 $

138 $

370

530992 $

4,034 $

3,499 $

7,533

165651 $

5,274 $

3,246 $

8,520

173555 $

1,134 $

160 $

1,294

129213 $

487 $

313 $

800

167917 $

17,407 $

11,140 $

28,547

162693 $

2,977 $

1,803 $

4,780

530937 $

32,106 $

26,848 $

58,954

129236 $

67,925 $

38,931 $

106,856

174289 $

20,241 $

1,615 $

21,856

129278 $

40,522 $

20,728 $

61,250

162396 $

3,626 $

1,866 $

5,492

163294 $

333 $

252 $

585

166144 $

6,456 $

4,456 $

10,912

167668 $

1,322 $

701 $

2,023

174597 $

36,548 $

4,411 $

40,960

172123 $

21,177 $

4,414 $

25,590

129416 $

46,360 $

18,888 $

65,248

161804 $

23,295 $

6,595 $

29,890

166280 $

18,814 $

11,298 $

30,111

173049 $

21 $

4$

26

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

22,216 $

3,086 $

25,303

$

128,596 $

24,613 $

153,208

$

4,183 $

1,585 $

5,768

$

103,496 $

26,727 $

130,224

$

6,932 $

848 $

7,780

$

-$

-$

-

$

122 $

41 $

163

$

51,864 $

10,638 $

62,502

$

238,822 $

89,769 $

328,591

$

-$

-$

-

$

8,684 $

5,087 $

13,771

$

18,080 $

4,566 $

22,647

$

-$

-$

-

$

17,143 $

11,725 $

28,868

$

1,130 $

165 $

1,295

$

2,057 $

786 $

2,842

$

117,567 $

18,355 $

135,922

$

16,571 $

3,727 $

20,298

$

3,943 $

1,343 $

5,286

$

2,993 $

701 $

3,695

$

7,367 $

3,966 $

11,333

$

-$

-$

-

$

30,133 $

8,160 $

38,293

$

12,668 $

1,675 $

14,344

$

(8) $

-$

(8)

$

5,464 $

2,897 $

8,361

$

16,587 $

9,385 $

25,973

$

9$

2$

11

$

17,688 $

6,211 $

23,899

$

9,576 $

1,889 $

11,465

$

1,060 $

511 $

1,572

$

5,907 $

2,888 $

8,795

$

-$

-$

-

$

-$

-$

-

$

62 $

33 $

95

$

20 $

4$

24

$

40,962 $

6,043 $

47,005

$

20,088 $

4,180 $

24,268

$

49,519 $

11,330 $

60,849

$

3,566 $

1,780 $

5,346

$

-$

-$

-

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses1M9 oefm10b2ePrsageID #: 5229

Employee Name (1)
WNENTA, DANIEL WOLCOTT, STEVEN D WRAY, ANDY WRAY, RANDY YATES, JEFFREY A ZIMMERMAN, CURT B ZOLDOS, SCOTT ANDREW ZUARINO, MICHAEL BERNARD ZUKOWSKI, DARIN ADDIS, RONALD L AGBAN, AGBAN ALFANO, KEVIN BAILEY, PHILIP G BARNETT, GERHARD G BARRETT, JOHN BEGAZO, JOSE BENNEKAA, NACIM BERENGER, JAMIE L. BETZ, KEITH JOHN BLACK, ROBERT BLACKWELL, WILLIAM BRITT, LOWELL BUENANO, JUAN CARLOS BUERKLE, ROBERT BUSTAMANTE, CARLOS CAILLIER, TIM CARBONE, MICHAEL CARDIO, ROBERT CARRASQUILLO, WILFREDO CHMIEL, DAVID CLOTHIER, THOMAS RUSSELL CONTRADA, JAMES FREDERICK COOK, MARK CRANE, BRUCE H CROSSMAN, PRESTON M CROSSMAN, STANLEY A CUDDON, TUBAL DAVIES, RICHARD G DELSANTO, MICHAEL N DEVENUTO III, ARKIE DOLCI, RAYMOND

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

129501 $

133,745 $

65,295 $

199,040 $

2,155 $

1,454 $

3,608

175448 $

2,045 $

146 $

2,191 $

23,807 $

1,668 $

25,475

510782 $

23,560 $

20,719 $

44,279 $

92 $

18 $

110

531051 $

29,610 $

24,268 $

53,878 $

3,529 $

1,641 $

5,171

127061 $

56,443 $

15,356 $

71,799 $

23,684 $

7,627 $

31,310

511127 $

3,259 $

2,523 $

5,782 $

99,067 $

29,716 $

128,782

174868 $

2,522 $

165 $

2,686 $

0$

0$

0

173389 $

10,052 $

1,682 $

11,734 $

69,413 $

6,861 $

76,274

124808 $

51,735 $

49,495 $

101,229 $

-$

-$

-

511581 $

-$

-$

-$

-$

-$

-

533169 $

(1,318) $

-$

(1,318) $

(22) $

-$

(22)

535242 $

(18,612) $

-$

(18,612) $

1$

0$

1

120762 $

(816) $

-$

(816) $

(78) $

-$

(78)

174833 $

(109) $

-$

(109) $

-$

-$

-

172269 $

(3,328) $

-$

(3,328) $

-$

-$

-

175657 $

(3,330) $

-$

(3,330) $

16,603 $

995 $

17,598

534781 $

(1,062) $

-$

(1,062) $

59,510 $

7,265 $

66,776

166624 $

(958) $

-$

(958) $

4,730 $

2,119 $

6,849

172994 $

(12,120) $

-$

(12,120) $

4,326 $

933 $

5,259

510988 $

(98,436) $

-$

(98,436) $

(0) $

-$

(0)

535584 $

(47,428) $

-$

(47,428) $

-$

-$

-

535583 $

(50,287) $

-$

(50,287) $

-$

-$

-

172858 $

(5,580) $

-$

(5,580) $

-$

-$

-

171037 $

(3,121) $

-$

(3,121) $

-$

-$

-

121191 $

(308) $

-$

(308) $

11,512 $

875 $

12,387

171194 $

(2,252) $

-$

(2,252) $

-$

-$

-

510862 $

(32,781) $

-$

(32,781) $

-$

-$

-

510806 $

(45,054) $

-$

(45,054) $

-$

-$

-

535172 $

(3,704) $

-$

(3,704) $

(629) $

-$

(629)

174938 $

(2,367) $

-$

(2,367) $

0$

0$

0

174157 $

(2,687) $

-$

(2,687) $

-$

-$

-

167004 $

(2,168) $

-$

(2,168) $

272,389 $

43,375 $

315,764

171577 $

(195) $

-$

(195) $

-$

-$

-

121609 $

(3,912) $

-$

(3,912) $

13 $

(22) $

(9)

533400 $

(31,144) $

-$

(31,144) $

1$

0$

1

169272 $

(10,491) $

-$

(10,491) $

-$

-$

-

534116 $

(233) $

-$

(233) $

24,269 $

3,443 $

27,713

510899 $

(1,686) $

-$

(1,686) $

6$

3$

9

121793 $

(2,577) $

-$

(2,577) $

(17) $

-$

(17)

173853 $

-$

-$

-$

8,805 $

2,516 $

11,321

530368 $

-$

-$

-$

-$

-$

-

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses2M0 oefm10b2ePrsageID #: 5230

Employee Name (1)
DOVE JR, JOHN E DREW, MICHAEL DRUGAN, JAMES J DUCHESNEAU, DOUGLAS P ENIDES, STEVEN FARR, GARY F FEHER, JOHN FELLO, RICHARD MICHAEL FERMIN, FRANCISCO A FERRER, HARRY FILIPPOV, ALEXEY FRANCESE, JASON FUQUA, GERARD A GARDNER JR, GERALD S GEBHARD, BRYON GIACOBBI, ROBERT VERNON GILLEO, MICHAEL C GIORDANO, MATTHEW GIORDANO, PAUL N GIORDANO, THEODORE GOEDECKE, JOHN D GUESNO, ARNOLD HAMBLIN, GLEN E HEALY, SEAN HENRY, ROBERT J HICKS, TIMOTHY ROGER HOAR, THOMAS HOLGUIN, MIGUEL A. HOSLER, ROBERT M JOHNSEN, CLIFFORD W JOHNSON, ANTHONY (143) JOHNSON, DALE JOHNSON, ERIC M KAUCHER, KURT C KAUCHER, KYLE KAUFMAN, MARK KEEVER, WAYNE S KELLY, BRIAN SCOTT KENNAN, DENNIS KIBBLE, JOHN T. KIMMEL, JASON LEE

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

170526 $

(7,978) $

-$

(7,978) $

(0) $

-$

(0)

175714 $

(284) $

-$

(284) $

319 $

20 $

339

510945 $

(3,083) $

-$

(3,083) $

-$

-$

-

510242 $

(2,517) $

-$

(2,517) $

-$

-$

-

510901 $

(323) $

-$

(323) $

-$

-$

-

511000 $

(1,839) $

-$

(1,839) $

3$

1$

4

174915 $

(6,033) $

-$

(6,033) $

47,680 $

5,155 $

52,835

170062 $

-$

-$

-$

-$

-$

-

175308 $

(32) $

-$

(32) $

-$

-$

-

171805 $

(4,620) $

-$

(4,620) $

27,243 $

3,784 $

31,027

176005 $

(68) $

-$

(68) $

1,197 $

64 $

1,262

170395 $

-$

-$

-$

-$

-$

-

510736 $

(20,027) $

-$

(20,027) $

-$

-$

-

510890 $

(0) $

-$

(0) $

10,192 $

4,362 $

14,554

166492 $

(1,089) $

-$

(1,089) $

88 $

40 $

128

171919 $

-$

-$

-$

1,936 $

779 $

2,715

510896 $

(3,170) $

-$

(3,170) $

-$

-$

-

535005 $

(27,599) $

-$

(27,599) $

12,053 $

4,883 $

16,936

511118 $

-$

-$

-$

-$

-$

-

534445 $

(1,530) $

-$

(1,530) $

0$

0$

0

166058 $

(1,219) $

-$

(1,219) $

81,765 $

17,764 $

99,529

533695 $

(18,061) $

-$

(18,061) $

-$

-$

-

510976 $

(13,824) $

-$

(13,824) $

-$

-$

-

531883 $

(40,924) $

-$

(40,924) $

-$

-$

-

511026 $

(6,661) $

-$

(6,661) $

75 $

31 $

106

173903 $

(16,794) $

-$

(16,794) $

4$

0$

4

511122 $

(32,755) $

-$

(32,755) $

-$

-$

-

163714 $

(3,181) $

-$

(3,181) $

0$

0$

0

511056 $

(275) $

-$

(275) $

-$

-$

-

173277 $

(8,352) $

-$

(8,352) $

0$

0$

0

173663 $

(2,785) $

-$

(2,785) $

22 $

3$

26

175011 $

(891) $

-$

(891) $

1,793 $

308 $

2,102

510739 $

-$

-$

-$

5,844 $

390 $

6,234

511072 $

(176) $

-$

(176) $

-$

-$

-

169367 $

(3,801) $

-$

(3,801) $

707 $

300 $

1,007

170494 $

(24,430) $

-$

(24,430) $

-$

-$

-

535536 $

(2,312) $

-$

(2,312) $

-$

-$

-

170407 $

(7,323) $

-$

(7,323) $

3$

1$

4

172429 $

(640) $

-$

(640) $

-$

-$

-

533879 $

(5,567) $

-$

(5,567) $

-$

-$

-

173627 $

(12,411) $

-$

(12,411) $

198 $

48 $

246

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses2M1 oefm10b2ePrsageID #: 5231

Employee Name (1)
KOHL, DALE KRAFT, CHRIS KRAFT, GEORGE O KRYSTYNIAK, DANIEL P KUDELSKI, ROBERT STANLEY LAM, TOAN LANCLOS, JOHN M LARSON, DENNIS E LEGG, RICKY D LENZ, STEPHEN M LOEFFEL, KEVIN J LOTZ, JOHN J LOWRY, PAUL LYNCH, DANIEL A MALDONADO, THOMAS H MARRONE, ROBERT MASON, RICHARD EDWARD MCARTHUR, THOMAS C MCDEVITT, DENIS MCGOWAN, SEAN THOMAS MCNAMARA, MARIE MENTZ, ROBERT MESEROLE, JON R MILIAMBRO, TIMOTHY V MOORES, KENNETH S MORALES, DAVID MORGAN, SCOTT DAVID MORRILL JR, MARK ALONZO MORRISSEY, DAVID J MUHAMMAD, ANWAR MUZA, BERNARDO NEDD, SHEVON NICHOLS, JOSHUA P OSMAN, MICHAEL E OVER, BRIAN LEROY PALMER, JOHN T PAPAY, DAVID PARRINELLO, VITO PARRY, CHRISTOPHER J PASCAL, MICHAEL LOUIS PEREZ, TINA

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

166533 $

(19,799) $

-$

(19,799) $

-$

-$

-

510797 $

(37,205) $

-$

(37,205) $

-$

-$

-

510966 $

(43,886) $

-$

(43,886) $

-$

-$

-

173002 $

-$

-$

-$

422 $

146 $

568

171012 $

(573) $

-$

(573) $

2$

1$

2

533892 $

(11,799) $

-$

(11,799) $

0$

0$

1

175411 $

(72) $

-$

(72) $

38 $

3$

40

161712 $

(30,453) $

-$

(30,453) $

-$

-$

-

512225 $

(13,319) $

-$

(13,319) $

-$

-$

-

511094 $

-$

-$

-$

-$

-$

-

174770 $

-$

-$

-$

-$

-$

-

511043 $

(54,154) $

-$

(54,154) $

-$

-$

-

532739 $

(38,029) $

-$

(38,029) $

0$

0$

0

165468 $

-$

-$

-$

12,232 $

6,601 $

18,834

171148 $

(18,165) $

-$

(18,165) $

-$

-$

-

519782 $

-$

-$

-$

-$

-$

-

171099 $

(31,890) $

-$

(31,890) $

3$

1$

4

125285 $

139 $

(242) $

(103) $

677 $

85 $

761

534947 $

(5,240) $

-$

(5,240) $

-$

-$

-

172201 $

(6,464) $

-$

(6,464) $

19,845 $

3,148 $

22,993

166997 $

-$

-$

-$

13,216 $

6,597 $

19,813

533694 $

(49,482) $

-$

(49,482) $

-$

-$

-

510717 $

(263) $

-$

(263) $

5,689 $

586 $

6,275

167613 $

-$

-$

-$

6,198 $

2,824 $

9,022

160076 $

(529) $

-$

(529) $

-$

-$

-

171193 $

(1,200) $

-$

(1,200) $

-$

-$

-

170120 $

(6,736) $

-$

(6,736) $

14,534 $

5,131 $

19,664

535727 $

(339) $

-$

(339) $

4,349 $

215 $

4,564

510959 $

(22,291) $

-$

(22,291) $

-$

-$

-

171171 $

(111) $

-$

(111) $

-$

-$

-

536012 $

(23,369) $

-$

(23,369) $

-$

-$

-

534770 $

(3,173) $

-$

(3,173) $

-$

-$

-

166355 $

-$

-$

-$

24,461 $

12,483 $

36,944

172392 $

-$

-$

-$

-$

-$

-

170567 $

(992) $

-$

(992) $

0$

0$

0

170493 $

(21,661) $

-$

(21,661) $

-$

-$

-

122112 $

(17) $

-$

(17) $

(4) $

-$

(4)

511075 $

(21,326) $

-$

(21,326) $

-$

-$

-

532722 $

(39,099) $

-$

(39,099) $

-$

-$

-

171468 $

-$

-$

-$

13,565 $

1,248 $

14,813

534311 $

(154) $

-$

(154) $

4,214 $

1,535 $

5,748

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses2M2 oefm10b2ePrsageID #: 5232

Employee Name (1)
PEREZIC, ENVER POLLARD, PATRICK PORTILLA, MANUEL EFRAIN PUGLISI, CHRISTOPHER C RAINEY, ANTHONY D RAPP, KENNETH MICHAEL REFVIK, EVAN REILLY, TIMOTHY J RELYEA, PAUL J ROMANO, ANTHONY ROWAN, TRICIA RUEDIN, THEODORE M RUSSELL, ROBERT SARKIS, SAMIR SCHIAVO, JOHN SCHUMAN, EDWARD SELENCHIK, STEPHEN SKINNER, JEREMY W SMOLENSKY, RONALD PAUL SPAGONE, ALEXANDER SPRANDEL, JAMES STASYS JR, JOSEPH STONE,LESLIE REBECCA THOBY, ADAM S THOMPSON, ROBERT C. TRAPANI, MARC TRAVER, PATRICA ANN TREMBLAY, MATTHEW A TURK, BRYAN D VAZQUEZ, LUIS VINING, SEAN VOGEL, RICHARD WALKER, MICHAEL WEBER, JODY VERNON WERNER, ANDREW KENNETH WEYAND, ANDREW DONALD WHITAKER, RICHARD WIBREW, FRANCIS W WROBLEWSKI, DAVID E ZIMERER, BRENO ZIMLINGHAUS, JOSHUA EDWARD

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

531086 $

(1,640) $

-$

(1,640) $

(4) $

-$

(4)

171336 $

(2,354) $

-$

(2,354) $

-$

-$

-

171031 $

(5,450) $

-$

(5,450) $

553 $

33 $

586

536080 $

(19,727) $

-$

(19,727) $

3,478 $

284 $

3,762

510,913 $

(21,795) $

-$

(21,795) $

63 $

24 $

87

535763 $

(7,864) $

-$

(7,864) $

58 $

12 $

70

173141 $

(1,750) $

-$

(1,750) $

-$

-$

-

510883 $

(6,496) $

-$

(6,496) $

107 $

19 $

127

173478 $

(7,431) $

-$

(7,431) $

(0) $

-$

(0)

510906 $

(3,018) $

-$

(3,018) $

0$

0$

0

172516 $

0$

(1) $

(1) $

-$

-$

-

168115 $

(950) $

-$

(950) $

11,351 $

4,524 $

15,875

175262 $

(501) $

-$

(501) $

(0) $

-$

(0)

534854 $

(7,737) $

-$

(7,737) $

37,376 $

7,505 $

44,881

173048 $

(490) $

-$

(490) $

-$

-$

-

127749 $

-$

-$

-$

1$

1$

3

511528 $

(15) $

-$

(15) $

-$

-$

-

511076 $

(5,372) $

-$

(5,372) $

-$

-$

-

170263 $

(7,872) $

-$

(7,872) $

0$

0$

0

534288 $

-$

-$

-$

-$

-$

-

176142 $

-$

-$

-$

-$

-$

-

536013 $

(6,459) $

-$

(6,459) $

-$

-$

-

162705 $

-$

-$

-$

-$

-$

-

511064 $

(10,504) $

-$

(10,504) $

0$

0$

0

534736 $

(1,842) $

-$

(1,842) $

-$

-$

-

510874 $

(178) $

-$

(178) $

67,553 $

16,222 $

83,775

161953 $

-$

-$

-$

-$

-$

-

172676 $

(8,761) $

-$

(8,761) $

357 $

78 $

435

175133 $

(796) $

-$

(796) $

40,780 $

3,851 $

44,631

534056 $

(4,819) $

-$

(4,819) $

128 $

62 $

190

173140 $

(1,750) $

-$

(1,750) $

-$

-$

-

121699 $

(135) $

-$

(135) $

-$

-$

-

171168 $

(71) $

-$

(71) $

-$

-$

-

171736 $

(1,526) $

-$

(1,526) $

2,889 $

455 $

3,344

174260 $

(5,265) $

-$

(5,265) $

0$

0$

0

173977 $

-$

-$

-$

7,608 $

2,246 $

9,854

510950 $

(1,412) $

-$

(1,412) $

5,361 $

1,621 $

6,983

174352 $

(1,627) $

-$

(1,627) $

-$

-$

-

516129 $

(10,825) $

-$

(10,825) $

5,676 $

557 $

6,233

535173 $

(21,629) $

-$

(21,629) $

12,483 $

5,170 $

17,653

534061 $

(6,711) $

-$

(6,711) $

-$

-$

-

Table 2 (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses2M3 oefm10b2ePrsageID #: 5233

Employee Name (1)
ZINK, JOHN THOMAS

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

171825 $

(11,998) $

-$

(11,998) $

0$

0$

0

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo2n4-oTfI1O02nlPya)geID #: 5234

Employee Name (1)
ACCARDI, MARK S ADAMS JR, TIMOTHY M ALFANO JR, JAMES C ALFONSO, DENNIS ALFORD JR, JEFFREY W ALLEN, LIJ ALONZO, JOSE AMSTEIN, MATTHEW J ANDERSON, MICHAEL J ARCHER, MICHAEL A BABCOCK, ROBERT L BACON, STUART BAGATTA, JOSEPH BARDEEN, DAVID K BARNING, WILLIAM A BARRETT, STEVEN CHARLES BARROS, PAUL BATES, KYLE JOSEPH BAUTISTA, ALFREDO A BAXTER, CHARLES A BAYLEY, JASON ALLEN BEAUCHAMP, RAYMOND C BELICKA, MICHAEL BENOIT JR, JAY W BENOIT SR, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, ROBERT J BIDDULPH-KRENTA, JEFFREY BINGMAN, ROBERT BLACK, WAYNE A BORDASH, JOHN BOSLEY, DENNIS M BOUTILLIER, ROBERT J BOWERS, JOSHUA K BOYD, ORAN BOYLE, JAMES P BRASSEAUX, CHRISTOPHER

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

127644 $

18,701 $

17,264 $

35,964 $

-$

-$

35,964

123375 $

53,681 $

31,077 $

84,759 $

18,179 $

5,595 $

60,986

120250 $

49,460 $

46,676 $

96,137 $

39,313 $ 12,099 $

44,725

128502 $

8,383 $

6,814 $

15,197 $

-$

-$

15,197

165458 $

3,153 $

1,874 $

5,026 $

886 $

273 $

3,868

173171 $

234 $

75 $

309 $

-$

-$

309

510987 $

38,624 $

33,938 $

72,562 $

21,696 $

6,677 $

44,189

128534 $

1,341 $

996 $

2,337 $

-$

-$

2,337

127249 $

1,309 $

1,260 $

2,569 $

-$

-$

2,569

126703 $

11,570 $

11,069 $

22,639 $

-$

-$

22,639

126412 $

27,643 $

21,109 $

48,752 $

8,029 $

2,471 $

38,252

171410 $

1,742 $

196 $

1,938 $

-$

-$

1,938

120747 $

37,200 $

35,400 $

72,600 $

-$

-$

72,600

120801 $

22,676 $

7,596 $

30,271 $

4,906 $

1,510 $

23,856

161221 $

5,001 $

3,365 $

8,366 $

142 $

44 $

8,181

171049 $

21,601 $

2,535 $

24,137 $

1,676 $

516 $

21,945

530219 $

20,242 $

18,750 $

38,993 $

600 $

185 $

38,209

171097 $

2,058 $

220 $

2,279 $

-$

-$

2,279

171337 $

283 $

117 $

399 $

91 $

28 $

280

511027 $

461 $

412 $

872 $

103 $

32 $

738

172607 $

6,090 $

586 $

6,675 $

-$

-$

6,675

123081 $

61,948 $

49,338 $

111,286 $

7,621 $

2,345 $

101,320

532870 $

115,706 $

87,259 $

202,965 $

15,036 $

4,628 $

183,302

169468 $

43,763 $

20,274 $

64,038 $

13,488 $

4,151 $

46,398

169484 $

17,341 $

11,083 $

28,424 $

12,008 $

3,696 $

12,721

11996 $

287 $

261 $

548 $

-$

-$

548

56 $

199 $

194 $

393 $

-$

-$

393

12120 $

111 $

102 $

213 $

-$

-$

213

510893 $

758 $

674 $

1,432 $

-$

-$

1,432

510803 $

77,135 $

24,812 $

101,947 $

-$

-$

101,947

534961 $

1,615 $

974 $

2,589 $

1,294 $

398 $

897

175219 $

1,182 $

74 $

1,256 $

-$

-$

1,256

510967 $

6,191 $

4,396 $

10,587 $

207 $

64 $

10,317

121014 $

22,180 $

16,875 $

39,055 $

-$

-$

39,055

163726 $

183 $

98 $

281 $

185 $

57 $

39

532948 $

1,558 $

529 $

2,087 $

-$

-$

2,087

128792 $

1,258 $

1,075 $

2,333 $

-$

-$

2,333

174211 $

69 $

13 $

82 $

-$

-$

82

162898 $

7,639 $

3,189 $

10,828 $

1,463 $

450 $

8,914

165062 $

1,709 $

1,234 $

2,943 $

-$

-$

2,943

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo2n5-oTfI1O02nlPya)geID #: 5235

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee Name

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

BRIGHAM, JOHN

534244 $

694 $

317 $

1,011 $

-$

-$

1,011

BROWN, CHRISTOPHER

122375 $

134 $

112 $

246 $

-$

-$

246

BROWN-TAUROZZI, TODD L

533266 $

99,194 $

70,703 $

169,897 $

17,872 $

5,500 $

146,525

BUCHAKIAN,PETER G

121157 $

179,004 $

54,630 $

233,633 $

9,124 $

2,808 $

221,702

BURGESS, ERIC S

127708 $

12,853 $

12,124 $

24,977 $

-$

-$

24,977

BURKE, RICHARD I

166721 $

19,670 $

7,924 $

27,594 $

5,337 $

1,642 $

20,615

BURKHARTZMEYER,ANDREW

120565 $

60,979 $

36,133 $

97,111 $

3,893 $

1,198 $

92,020

BYRON, KENNETH

166726 $

16,586 $

9,680 $

26,266 $

14,476 $

4,455 $

7,335

CABRERA, LENIN

174509 $

465 $

10 $

474 $

-$

-$

474

CALDONA, RAFAEL L

511059 $

26,698 $

22,620 $

49,318 $

-$

-$

49,318

CAMPBELL, O'NEIL KINGSLEY (END D

170090 $

11,346 $

5,586 $

16,932 $

4,879 $

1,502 $

10,551

CANAVAN, ROBERT M

124803 $

11,004 $

9,982 $

20,986 $

12,095 $

3,722 $

5,169

CANCEMI, MICHAEL THOMAS

533646 $

11,352 $

7,143 $

18,494 $

3,562 $

1,096 $

13,836

CAPPIELLO, ANNMARIE

172306 $

116,777 $

27,324 $

144,102 $

2,474 $

761 $

140,867

CARPENTER, WILLIAM T

171582 $

8,372 $

1,156 $

9,528 $

1,296 $

399 $

7,833

CARRASQUILLO, JESUS M

530659 $

5,141 $

4,386 $

9,527 $

-$

-$

9,527

CARREON, GIAN CARLO

170304 $

44,784 $

17,652 $

62,436 $

7,288 $

2,243 $

52,905

CARRION, VINNY

531084 $

37,424 $

35,186 $

72,609 $

54,020 $ 16,625 $

1,964

CARROLL, SCOTT F

128485 $

1,184 $

1,129 $

2,313 $

-$

-$

2,313

CARTER, JEFFREY A

169238 $

454 $

241 $

695 $

346 $

106 $

243

CARVER, PATRICK C

127445 $

2,461 $

1,546 $

4,006 $

-$

-$

4,006

CASSONE, JOSEPH E

121327 $

74,465 $

62,558 $

137,022 $

1,746 $

537 $

134,739

CASTILLO, FRANCIS M

166331 $

597 $

414 $

1,011 $

-$

-$

1,011

CASURAS, KEVIN M

510747 $

1,454 $

1,205 $

2,659 $

-$

-$

2,659

CAWLEY, JACOB A

173330 $

1,290 $

402 $

1,693 $

-$

-$

1,693

CEDANO, FRANCISCO A

533826 $

2,155 $

438 $

2,593 $

-$

-$

2,593

CHALUPKA,FRANK P

124395 $

20,206 $

15,027 $

35,233 $

2,578 $

793 $

31,862

CLARK,BRADLEY

121449 $

8,678 $

5,510 $

14,188 $

1,869 $

575 $

11,744

COLABELLI, JAMES M

121502 $

22,505 $

18,375 $

40,881 $

-$

-$

40,881

COLEMAN, MARTIN LEE

175152 $

965 $

110 $

1,075 $

-$

-$

1,075

CONANT, TIMOTHY

164052 $

39,768 $

22,186 $

61,955 $

6,911 $

2,127 $

52,916

COOK, DAVID C

165563 $

19,613 $

13,470 $

33,083 $

11,467 $

3,529 $

18,086

COOKE, JOSEPH R

126239 $

18,426 $

15,627 $

34,052 $

-$

-$

34,052

COROMINAS, JAMES A

166934 $

48,323 $

34,027 $

82,350 $

20,448 $

6,293 $

55,609

CORREA, PHILIP

121569 $

55,611 $

46,257 $

101,868 $

44,697 $ 13,756 $

43,415

CULLUM, MICHAEL S

123845 $

57,179 $

49,188 $

106,367 $

1,800 $

554 $

104,012

CULSHAW, JOHN L

126890 $

22,765 $

16,690 $

39,455 $

4,511 $

1,388 $

33,556

CURRIE, BRIAN DOUGLAS

173893 $

1,268 $

(96) $

1,172 $

-$

-$

1,172

DARCY JR, JAMES E

173311 $

35,417 $

3,424 $

38,840 $

-$

-$

38,840

DASHNAU, EDWARD ROBERT

535582 $

21,676 $

10,480 $

32,156 $

13,748 $

4,231 $

14,176

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo2n6-oTfI1O02nlPya)geID #: 5236

Employee Name (1)
DAVIDSON, CORY WILLIAM DAVIES, DOUGLASS G DAVIES, RICHARD A DAVIS, ANDREW MARK DAVIS, TIMOTHY A (119) DECICCO, STEVE DEFILIPPS, DANIEL P DEGROFF, DAVID DEMASI, JOSEPH DENSE, LOUIS C DEPAOLA, CHRISTOPHER JAMES DESOUZA, WAYNE DIAMOND, PHILLIP H (END DATED) DIFABIO JR,JOSEPH A DILLUVIO, NICHOLAS M DODGE, JOHN DONER,PETER W DUBUQUE IV, WILLIAM D DUPRA, ARTHUR DURYEA, DENNIS J DYNKO, MICHAEL MELVIN ECHAVARRIA, SIMON EISENHUTH, JANNA A ELFREICH, THOMAS P EMERSON, DANIEL E ENAMORADO, VICTOR ESTRELLA, MAXIMO ETIENNE, DAVIDSON FARROW, JOHN B FEATHERSON, ERIC S FERNANDEZ JR, JOSE L FERNANDEZ, JOSE FIORE, VINCENT B FISCHER, ROBERT FITZPATRICK,BRIAN J FIX JR.,DAVID FLEXON, CHRISTOPHER M FLORENTINO, JOSE FLOREZ, OMAR A FORBES, BRUCE R

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

535644 $

239 $

110 $

350 $

241 $

74 $

35

164291 $

77,771 $

18,207 $

95,978 $

20,278 $

6,241 $

69,459

167561 $

30,149 $

12,807 $

42,956 $

11,246 $

3,461 $

28,249

165411 $

7,932 $

4,451 $

12,383 $

4,052 $

1,247 $

7,085

176130 $

414 $

19 $

433 $

-$

-$

433

172639 $

7,070 $

474 $

7,544 $

-$

-$

7,544

165661 $

6,116 $

4,571 $

10,687 $

-$

-$

10,687

165817 $

33,958 $

18,807 $

52,765 $

36,192 $ 11,139 $

5,434

174792 $

1,322 $

272 $

1,593 $

-$

-$

1,593

122004 $

1,796 $

1,568 $

3,365 $

-$

-$

3,365

530854 $

4,815 $

1,256 $

6,071 $

-$

-$

6,071

531792 $

52,721 $

40,371 $

93,092 $

-$

-$

93,092

535431 $

1,032 $

518 $

1,550 $

776 $

239 $

535

101845 $

34,048 $

28,470 $

62,518 $

20,678 $

6,364 $

35,476

170802 $

1,253 $

141 $

1,394 $

-$

-$

1,394

162139 $

1,870 $

1,084 $

2,954 $

1,732 $

533 $

690

121907 $

5,446 $

4,000 $

9,446 $

76 $

23 $

9,347

171290 $

1$

3$

5$

-$

-$

5

175993 $

1,819 $

106 $

1,924 $

-$

-$

1,924

121978 $

71,432 $

61,562 $

132,995 $

32,527 $ 10,011 $

90,457

172873 $

2,414 $

200 $

2,614 $

153 $

47 $

2,413

510744 $

38,619 $

29,243 $

67,861 $

2,033 $

626 $

65,203

168158 $

15,035 $

8,098 $

23,133 $

6,581 $

2,025 $

14,527

510996 $

7,113 $

739 $

7,852 $

1,433 $

441 $

5,977

125990 $

38 $

34 $

72 $

-$

-$

72

531182 $

131,987 $

103,156 $

235,143 $

1,446 $

445 $

233,252

161423 $

189 $

100 $

289 $

6$

2$

281

11889 $

354 $

323 $

676 $

-$

-$

676

173145 $

79,450 $

8,859 $

88,310 $

-$

-$

88,310

122764 $

8,790 $

7,276 $

16,066 $

-$

-$

16,066

510845 $

4,354 $

3,636 $

7,990 $

-$

-$

7,990

533722 $

21,615 $

8,357 $

29,972 $

3,503 $

1,078 $

25,390

120821 $

43,004 $

38,553 $

81,557 $

-$

-$

81,557

511125 $

10,241 $

10,165 $

20,406 $

648 $

199 $

19,559

164541 $

2,288 $

1,502 $

3,790 $

373 $

115 $

3,303

163390 $

26,297 $

12,156 $

38,452 $

9,914 $

3,051 $

25,487

163300 $

55 $

42 $

97 $

-$

-$

97

532727 $

13,798 $

4,507 $

18,306 $

2,274 $

700 $

15,332

167145 $

16,703 $

6,091 $

22,794 $

2,042 $

628 $

20,124

166283 $

30,827 $

19,183 $

50,010 $

13,076 $

4,024 $

32,909

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo2n7-oTfI1O02nlPya)geID #: 5237

Employee Name (1)
FORD, VERNON FORESTIERI, NICHOLAS A FRAISER, ZACHERY RYAN FRANCHI, GERALD FREDETTE, JEFFREY E FRENCH, BRENT W FRENCH, THOMAS P FREZZA JR, MICHAEL FRIEDMAN, STEVEN M GARCIA, PABLO GARDELLA, PETER J GARY, JASON GATES, JEFFERY GEORGE, ALEXANDRA B GIDDINGS, WILLIAM GILES,ERIC R GILLETTE, THOMAS K GILMAN,JOHN H GLADLE, BERNARD J GLASS, JAMES R GLOTZBACH, BRYAN PAUL GOLDBERG, JOHN M GONZALEZ, DAVID GONZALEZ, DELFINO GONZALEZ, YADIRA GOODWIN, PATRICK J GOODWIN, TODD J GORELIN, LEONID GORTON, ROBERT W GOVAN, KWAUHURU GRACIE, MICHAEL D GRADY, DONALD A GRAVAGNE, JOSEPH GRAVAGNE, MICHAEL GREEN, JEFFREY ALLEN GRINER, JOHN JOSEPH GROSSMAN, GLEN A GUETTLER, MICHAEL W HABERMEHL, DANIEL M HADSELL, JAMES D

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

122104 $

24,147 $

15,096 $

39,244 $

11,724 $

3,608 $

23,911

120153 $

23,716 $

21,018 $

44,733 $

-$

-$

44,733

172856 $

434 $

129 $

563 $

93 $

29 $

441

175257 $

1,078 $

64 $

1,141 $

-$

-$

1,141

170520 $

21 $

7$

28 $

4$

1$

23

122958 $

1,008 $

482 $

1,490 $

147 $

45 $

1,297

171778 $

196 $

9$

205 $

22 $

7$

177

531923 $

5,199 $

4,327 $

9,526 $

-$

-$

9,526

125810 $

9,716 $

7,909 $

17,625 $

-$

-$

17,625

534096 $

9,638 $

4,885 $

14,523 $

5,208 $

1,603 $

7,712

126188 $

14,762 $

11,430 $

26,192 $

-$

-$

26,192

166821 $

15,417 $

9,690 $

25,108 $

8,703 $

2,679 $

13,726

120609 $

55,360 $

37,042 $

92,402 $

30,724 $

9,456 $

52,222

119809 $

217 $

176 $

393 $

-$

-$

393

175317 $

26,682 $

2,023 $

28,706 $

-$

-$

28,706

125395 $

21,520 $

14,731 $

36,252 $

15,350 $

4,724 $

16,178

124683 $

39,803 $

29,826 $

69,629 $

3,974 $

1,223 $

64,431

163697 $

22,003 $

17,036 $

39,039 $

2,898 $

892 $

35,249

175139 $

167 $

32 $

199 $

-$

-$

199

513289 $

1,471 $

159 $

1,631 $

-$

-$

1,631

174715 $

13,666 $

1,267 $

14,933 $

-$

-$

14,933

120425 $

65,987 $

44,071 $

110,057 $

29,347 $

9,032 $

71,679

533294 $

3,057 $

2,336 $

5,393 $

-$

-$

5,393

519677 $

2,563 $

462 $

3,024 $

1,041 $

320 $

1,663

532506 $

15,835 $

14,144 $

29,979 $

837 $

258 $

28,885

123205 $

41,511 $

24,188 $

65,700 $

1,071 $

330 $

64,299

162906 $

15,373 $

8,174 $

23,547 $

8,552 $

2,632 $

12,363

122533 $

4,638 $

4,118 $

8,756 $

-$

-$

8,756

128759 $

6,821 $

2,292 $

9,114 $

-$

-$

9,114

533163 $

2,172 $

1,641 $

3,814 $

-$

-$

3,814

128383 $

35,424 $

26,367 $

61,791 $

7,758 $

2,388 $

51,646

120426 $

1,117 $

531 $

1,648 $

210 $

65 $

1,373

510804 $

2,518 $

2,287 $

4,806 $

-$

-$

4,806

531651 $

106,191 $

79,357 $

185,548 $

11,982 $

3,687 $

169,879

166503 $

813 $

542 $

1,355 $

-$

-$

1,355

173644 $

6,363 $

484 $

6,847 $

-$

-$

6,847

123305 $

1,606 $

1,557 $

3,164 $

-$

-$

3,164

124260 $

9,516 $

10,995 $

20,511 $

9,200 $

2,831 $

8,480

173633 $

19,042 $

1,544 $

20,586 $

-$

-$

20,586

172735 $

4,174 $

723 $

4,897 $

35 $

11 $

4,851

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo2n8-oTfI1O02nlPya)geID #: 5238

Employee Name (1)
HALSTEAD, JAROD M. HARPOLE, GERALD (END DATED) HARWOOD JR, ROGER B HAUTH, GREGORY J HERCHENRODER JR, MICHAEL F HESSELFELDT, DAVID A HESSELFELDT, DAVID A HETZEL, NORMAN P HOBBS, WILLIAM C HOOCK,JASON R HOUDE, THOMAS HUBER, PHILIP HUBNER, JOHN PAUL HUEBNER, KATHY E. HULTON, GERALD J IACCINO, LOUIS V (END DATED) ILACQUA, JOHN JOSEPH INGLESE, JAMIE M IORGOVAN, OVIDIU JAIME, BENJAMIN JANKOSKI, PETER V JENNINGS, DAVID S. JIMENEZ, SAMUEL JOANIS, DAVID BRUCE JOHNSON, JOSEPH MARK JOINER,KEITH D JOLLY JR, DAVID J JOLLY, DANIEL P JONES, WALTER B JUDGE, MICHAEL J KARA JR, FRANK J KARPATHIOS, KONSTANTINOS A KEALY, JOHN T KEATING, CHARLES J KELLY, JEFFREY KENERSON, JOSEPH W KING, JOANN KIRK,CHARLES B KLAWANS, ROBERT KLEIN, GEORGE G

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

166660 $

13,256 $

8,745 $

22,001 $

1,602 $

493 $

19,905

162964 $

20,196 $

11,290 $

31,486 $

13,877 $

4,271 $

13,338

162496 $

53,285 $

35,450 $

88,735 $

3,263 $

1,004 $

84,468

175354 $

40,951 $

2,509 $

43,460 $

-$

-$

43,460

129502 $

295 $

256 $

551 $

-$

-$

551

513897 $

79 $

72 $

151 $

-$

-$

151

169389 $

996 $

818 $

1,814 $

-$

-$

1,814

123919 $

9,008 $

8,066 $

17,073 $

-$

-$

17,073

123667 $

85,584 $

43,589 $

129,173 $

4,355 $

1,340 $

123,478

127289 $

7,073 $

6,366 $

13,439 $

445 $

137 $

12,858

161999 $

1,550 $

895 $

2,445 $

1,857 $

571 $

17

532483 $

4,328 $

3,324 $

7,651 $

-$

-$

7,651

163220 $

16,810 $

8,025 $

24,835 $

16,138 $

4,967 $

3,730

163124 $

150 $

89 $

239 $

34 $

10 $

195

162167 $

5,654 $

1,577 $

7,231 $

594 $

183 $

6,454

531561 $

5,527 $

3,197 $

8,725 $

1,880 $

579 $

6,265

534037 $

2,543 $

1,774 $

4,317 $

-$

-$

4,317

123441 $

13,019 $

9,243 $

22,261 $

398 $

122 $

21,741

510728 $

27,865 $

24,080 $

51,945 $

1,383 $

426 $

50,137

161250 $

8,241 $

3,904 $

12,145 $

4,764 $

1,466 $

5,915

124567 $

2,363 $

610 $

2,973 $

354 $

109 $

2,510

530642 $

192 $

87 $

279 $

-$

-$

279

535159 $

282 $

56 $

338 $

-$

-$

338

124609 $

58,444 $

41,753 $

100,198 $

22,847 $

7,031 $

70,319

172571 $

18,044 $

1,858 $

19,902 $

52 $

16 $

19,833

168344 $

9,243 $

6,335 $

15,578 $

10,938 $

3,366 $

1,274

163087 $

104,360 $

19,999 $

124,360 $

16,248 $

5,001 $

103,111

170734 $

81,633 $

17,819 $

99,453 $

4,309 $

1,326 $

93,818

124732 $

565 $

550 $

1,115 $

-$

-$

1,115

532663 $

4,511 $

(668) $

3,843 $

88 $

27 $

3,727

124834 $

74,494 $

49,152 $

123,646 $

47,332 $ 14,567 $

61,747

167147 $

2,626 $

1,316 $

3,941 $

844 $

260 $

2,838

124845 $

41,300 $

31,384 $

72,684 $

3,759 $

1,157 $

67,769

125827 $

6,190 $

5,247 $

11,436 $

-$

-$

11,436

124873 $

14,594 $

14,769 $

29,363 $

-$

-$

29,363

164741 $

17,680 $

10,811 $

28,491 $

10,749 $

3,308 $

14,433

173760 $

772 $

247 $

1,019 $

-$

-$

1,019

124850 $

8,569 $

6,179 $

14,748 $

135 $

41 $

14,572

535112 $

7,715 $

4,447 $

12,162 $

1,898 $

584 $

9,680

164433 $

3,384 $

2,214 $

5,598 $

116 $

36 $

5,446

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo2n9-oTfI1O02nlPya)geID #: 5239

Employee Name (1)
KLUMP, GERALD D KORONOWSKI,JOSEPH M KOZELL, RONALD STEVEN KROUTH, ALFRED A KSZANAK, AARON J KUCSERA,ALVIN G KUHLMAN, DONALD A KUKLA, LAWRENCE M KWASIGROCH, ANDREW JAMES LA RUSSA,PHILIP ANTHONY LABOY, STEPHEN LACY,DAVID A LAMANDIA, ANTHONY J LAMORI,FRANCIS KEVIN LAMOUNTAIN, CHRISTOPHER N LANGE, DAVID LARABEE, JOHN O LASHER, RICHARD A LAWSON, JAMIE J LECAROS, CARLOS LEIGH-MANUELL, GARY LENDA, MICHAEL J LENDA,DUANE JOSEPH LESTER, BRIAN K LETOURNEAU, KEITH LEVITAN, JEFFREY LEW, RONALD E LEWIS,KEVIN ALAN LISSOW, JOSEPH LOEBL, THOMAS S LOPEZ, JAMES LOVE, JEFFERY S LUBNIEWSKI, LEONARD J LULEVITCH, JEROME LUTZ, ROBERT ALEXANDER MACK, STEPHEN J MADDAGE, JEFFREY R MAHER,ALAN J MAHONEY, JOHN P MAIETTA, CHRISTOPHER

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

173243 $

254 $

62 $

316 $

-$

-$

316

125047 $

10,489 $

11,886 $

22,376 $

6,746 $

2,076 $

13,554

173440 $

15,961 $

1,283 $

17,244 $

-$

-$

17,244

126345 $

2,449 $

2,279 $

4,728 $

-$

-$

4,728

162002 $

10,280 $

1,519 $

11,800 $

819 $

252 $

10,729

125077 $

16,631 $

15,164 $

31,795 $

218 $

67 $

31,509

511029 $

82,148 $

61,275 $

143,423 $

14,015 $

4,313 $

125,094

125089 $

52,636 $

44,825 $

97,461 $

4,844 $

1,491 $

91,126

105100 $

28,630 $

18,103 $

46,733 $

45 $

14 $

46,675

161150 $

27,552 $

16,469 $

44,021 $

7,883 $

2,426 $

33,711

163500 $

154 $

86 $

240 $

93 $

29 $

118

122626 $

38,520 $

28,391 $

66,911 $

4,448 $

1,369 $

61,094

122797 $

6,792 $

6,054 $

12,846 $

-$

-$

12,846

121472 $

46,583 $

36,787 $

83,369 $

1,192 $

367 $

81,810

164062 $

28,795 $

20,304 $

49,099 $

25,095 $

7,723 $

16,281

125157 $

38,431 $

4,911 $

43,341 $

8,113 $

2,497 $

32,731

120240 $

747 $

694 $

1,440 $

-$

-$

1,440

125151 $

17,588 $

13,627 $

31,215 $

7,363 $

2,266 $

21,586

121433 $

26,883 $

23,866 $

50,748 $

-$

-$

50,748

171409 $

93 $

36 $

130 $

-$

-$

130

125201 $

107,842 $

73,292 $

181,134 $

2,059 $

634 $

178,442

128856 $

14,425 $

6,947 $

21,372 $

6,446 $

1,984 $

12,942

125737 $

4,908 $

3,272 $

8,180 $

4,989 $

1,535 $

1,656

125228 $

13,121 $

12,071 $

25,192 $

-$

-$

25,192

167450 $

238 $

138 $

376 $

186 $

57 $

132

517705 $

3,142 $

670 $

3,812 $

480 $

148 $

3,184

105232 $

36,513 $

5,130 $

41,642 $

3,708 $

1,141 $

36,792

128509 $

8,370 $

7,162 $

15,532 $

-$

-$

15,532

532466 $

59 $

40 $

99 $

-$

-$

99

162087 $

6,622 $

4,057 $

10,678 $

2,156 $

663 $

7,859

163799 $

15,814 $

11,657 $

27,471 $

-$

-$

27,471

165124 $

11,677 $

7,481 $

19,158 $

7,222 $

2,223 $

9,713

510748 $

20,699 $

9,460 $

30,159 $

-$

-$

30,159

125073 $

531 $

518 $

1,050 $

-$

-$

1,050

170200 $

23,794 $

4,682 $

28,476 $

6,220 $

1,914 $

20,342

171370 $

1,387 $

524 $

1,912 $

826 $

254 $

831

175049 $

4,374 $

360 $

4,735 $

-$

-$

4,735

125441 $

16,266 $

9,945 $

26,211 $

-$

-$

26,211

120575 $

86,548 $

62,883 $

149,431 $

31,380 $

9,657 $

108,394

535533 $

59,056 $

7,237 $

66,293 $

7,500 $

2,308 $

56,485

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n0-oTfI1O02nlPya)geID #: 5240

Employee Name (1)
MAIOLO, LEON S MAJEWSKI III, JOHN T MALAMUTT, ERIC S. MALDONADO, JOSE (NY) MALESKI, DAVID MALHEIRO, JOSEPH M MANDAGLIO, ROCCO MANNING, STEVEN M MARKAJANI, RICHARD J MASCI, MICHAEL D MATHEWS, ALBERT MATTHIAS, JOSHUA MAURO, JOSEPH J MAZEWSKI, GRZEGORZ MCCANN, CHRISTOPHER J MCCARTY JR, WILLIAM M MCCROSSIN, BRIAN A MCCROSSIN, BRIAN E MCGARGHAN, MICHAEL F MCGRANE, MICHAEL MCNALLY, ROBERT F MCNAMARA, PATRICK H. MCNAMARA, PATRICK H. MEDRANO, JAVIER A MEISENZAHI, JEREMY MESISCA, MICHAEL S MILLER, GERALD E MILLER, JUSTIN EDWARD MITCHELL, JAMES R MITCHELL, KEITH ROBERT MITCHETTI JR, FRANKLIN M MITTLER, GEORGE MOLCHANOFF, GEORGE M MOLLACH, MADELINE M MORAN, RICHARD ALBERT MOREY, DOUGLAS N MORIN, ERIC D MORRONE,WILLIAM J MOSKAL, WILLIAM ANDREW MULLEN, JASON M

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

123645 $

719 $

705 $

1,424 $

-$

-$

1,424

174550 $

640 $

167 $

807 $

-$

-$

807

166873 $

1,717 $

894 $

2,611 $

726 $

223 $

1,661

534720 $

14,046 $

5,887 $

19,933 $

4,940 $

1,520 $

13,473

125425 $

1,276 $

1,201 $

2,478 $

-$

-$

2,478

510746 $

5,841 $

5,202 $

11,043 $

-$

-$

11,043

125460 $

28,183 $

25,261 $

53,444 $

-$

-$

53,444

125436 $

40 $

39 $

80 $

-$

-$

80

124767 $

4,910 $

4,437 $

9,347 $

1,927 $

593 $

6,827

120432 $

12,873 $

12,142 $

25,015 $

6,811 $

2,096 $

16,107

510713 $

48,268 $

38,821 $

87,089 $

2,917 $

898 $

83,275

174726 $

4,065 $

982 $

5,047 $

-$

-$

5,047

510940 $

26,485 $

13,779 $

40,264 $

-$

-$

40,264

172538 $

40,681 $

4,369 $

45,050 $

3,349 $

1,031 $

40,671

121237 $

292,805 $

157,675 $

450,480 $

20,554 $

6,326 $

423,599

124061 $

4,898 $

4,410 $

9,308 $

-$

-$

9,308

168301 $

58,490 $

26,652 $

85,142 $

15,463 $

4,759 $

64,920

510805 $

171,492 $

30,043 $

201,535 $

377 $

116 $

201,042

121333 $

1,409 $

1,342 $

2,752 $

-$

-$

2,752

510888 $

8,969 $

8,220 $

17,189 $

-$

-$

17,189

125640 $

12,162 $

9,945 $

22,107 $

-$

-$

22,107

166862 $

1,797 $

1,229 $

3,026 $

-$

-$

3,026

167532 $

342 $

229 $

571 $

-$

-$

571

172088 $

42,505 $

11,496 $

54,001 $

2,415 $

743 $

50,843

510847 $

186 $

158 $

343 $

-$

-$

343

164286 $

13,098 $

1,890 $

14,988 $

5,240 $

1,613 $

8,135

126088 $

33,108 $

26,518 $

59,626 $

-$

-$

59,626

171376 $

63,921 $

8,129 $

72,050 $

4,827 $

1,486 $

65,737

166629 $

7,161 $

3,195 $

10,356 $

1,883 $

579 $

7,894

173632 $

9,692 $

841 $

10,533 $

-$

-$

10,533

175373 $

281 $

39 $

320 $

-$

-$

320

125758 $

150,924 $

88,213 $

239,137 $

22,135 $

6,812 $

210,190

122552 $

37,224 $

26,300 $

63,524 $

18,107 $

5,573 $

39,844

123214 $

23,050 $

16,744 $

39,794 $

4,107 $

1,264 $

34,422

172270 $

25,185 $

2,122 $

27,306 $

3,155 $

971 $

23,180

172160 $

2,840 $

938 $

3,778 $

-$

-$

3,778

169360 $

39 $

11 $

50 $

-$

-$

50

125825 $

64,755 $

35,119 $

99,875 $

19,797 $

6,093 $

73,984

125829 $

77,125 $

33,352 $

110,477 $

15,036 $

4,627 $

90,813

164628 $

32,163 $

21,884 $

54,046 $

4,894 $

1,506 $

47,647

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n1-oTfI1O02nlPya)geID #: 5241

Employee Name (1)
MURPHY, TRAVIS R MURRAY,WILLIAM MYERS, GREG R. NADER, RADYS NAHOW, STEVEN NARAD, THOMAS E NELLIST, JASON D NELSON, STEVEN E NEVILLE, WILLIAM A NIGHTINGALE,DANIEL NOTARTOMASO, THOMAS NOWORYTA, JOHN NUNEZ, GEORGE OBERHAUSER JR, DANIEL O'BRIAN, CHRISTOPHER C O'CONNOR, DAVID G OLSZOWKA,ROBERT J ORR, SEAN OSBORNE, JAMES J OSTER, HARRY J OSTREGER, NATHAN OTMAR, JOSEPH M OYARVIDE, JAIME PADGETT, CORY PAGAN, CHRISTOPHER M. PALERMO, PAUL G PALMER, RICHARD A PAOLINI,PHILIP A PARKER, BRENT DOUGLAS PARO, DANIEL D PARODY, TERRY J PATTON, RICHARD A PAUL, TIMOTHY JARED PAZMINO, MARIO A PEREZ, ARNOLD PEREZ, LEOBARDO PERRY, DENNIS R PESLAK, RICHARD M PETERSEN, HENRY K PHILLIPS, EDWARD J

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

163094 $

1,015 $

722 $

1,737 $

-$

-$

1,737

165992 $

81,400 $

28,313 $

109,713 $

8,500 $

2,616 $

98,597

161262 $

2,652 $

1,664 $

4,317 $

448 $

138 $

3,731

510927 $

58,560 $

48,054 $

106,614 $

-$

-$

106,614

532451 $

79,195 $

56,415 $

135,611 $

11,859 $

3,650 $

120,102

124851 $

42,628 $

38,002 $

80,630 $

162 $

50 $

80,418

172401 $

31,213 $

2,894 $

34,107 $

457 $

141 $

33,510

126027 $

10,362 $

9,157 $

19,519 $

-$

-$

19,519

126042 $

22,549 $

14,213 $

36,762 $

7,282 $

2,241 $

27,238

161991 $

225 $

129 $

354 $

60 $

19 $

276

161592 $

12,993 $

7,423 $

20,415 $

11,660 $

3,588 $

5,167

129521 $

30,648 $

22,494 $

53,142 $

4,109 $

1,265 $

47,768

510830 $

148,752 $

31,149 $

179,901 $

-$

-$

179,901

535807 $

138 $

74 $

212 $

-$

-$

212

164596 $

231 $

188 $

419 $

-$

-$

419

124249 $

62,188 $

6,304 $

68,492 $

126 $

39 $

68,327

120135 $

24,445 $

18,261 $

42,706 $

6,153 $

1,894 $

34,660

163397 $

2,190 $

1,382 $

3,572 $

1,568 $

483 $

1,521

511217 $

4,984 $

2,278 $

7,262 $

4,230 $

1,302 $

1,730

174513 $

33 $

8$

42 $

-$

-$

42

126673 $

222 $

216 $

438 $

-$

-$

438

125775 $

128,319 $

84,414 $

212,733 $

7,151 $

2,201 $

203,382

532478 $

110,172 $

66,422 $

176,594 $

7,596 $

2,338 $

166,661

534179 $

4,529 $

3,128 $

7,657 $

-$

-$

7,657

534055 $

117 $

178 $

294 $

-$

-$

294

164267 $

7,594 $

5,668 $

13,262 $

433 $

133 $

12,696

120140 $

41,941 $

28,437 $

70,378 $

13,233 $

4,073 $

53,073

126902 $

32,643 $

24,691 $

57,334 $

3,412 $

1,050 $

52,872

174295 $

97 $

24 $

121 $

-$

-$

121

123826 $

112,711 $

79,037 $

191,748 $

14,054 $

4,325 $

173,369

163843 $

44,783 $

12,906 $

57,688 $

9,207 $

2,834 $

45,648

510885 $

60,315 $

21,817 $

82,132 $

-$

-$

82,132

175040 $

14,090 $

1,328 $

15,418 $

-$

-$

15,418

128133 $

1,246 $

1,222 $

2,468 $

-$

-$

2,468

519715 $

1,179 $

425 $

1,604 $

-$

-$

1,604

172394 $

10,213 $

1,074 $

11,288 $

-$

-$

11,288

126694 $

138,165 $

66,476 $

204,641 $

54,453 $ 16,759 $

133,430

120267 $

150,634 $

94,789 $

245,423 $

33,890 $ 10,430 $

201,102

165665 $

4,699 $

3,543 $

8,242 $

-$

-$

8,242

511058 $

6,089 $

5,579 $

11,668 $

-$

-$

11,668

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n2-oTfI1O02nlPya)geID #: 5242

Employee Name (1)
PIZZUTO, BENJAMIN F PLISKA, EDWARD PLOOF, JOHN S POLLEY, JOHN A POLNAK, JASON R PREMIELEWSKI, SCOTT F PROCTOR II, RONALD THOMAS PURDY, ALVAN (END DATED) PUSZTAY, BENJAMIN QUIGG, PHILIP E QUIGLEY, PATRICK QUIGLEY, TIMOTHY J QUINN JR, MICHAEL F RAINERI, ANTHONY RAKUS, JAMES A RAMIREZ, LINO RAMOS, ORLANDO RAMOS, ROBERT RAUBER, JEFFREY T REAVIS JR, RUDOLPH W REGGIO, MICHAEL ANTHONY REICHARDT, MARK E REILLY, MICHAEL REMLEY, FLOYD GARY REOME, MICHAEL GILBERT REYNOLDS, AARON PATRICK RICHARDSON, ANTHONY T RIVERA, JOSE ROCKWELL, DUANE N RODRIGUEZ, FRANK (143) ROMAN, JAIME ROMER, WAYNE A ROUTENBERG, EVAN ROWE, MICHAEL JAMES RUBINO, JOSEPH RUBINO, THOMAS A RUDOLPH,STEVEN W RUSSELL, FREDERICK A RUSSELL, KENT M RYAN, LAWRENCE V

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

162963 $

92,385 $

27,146 $

119,531 $

24,916 $

7,668 $

86,947

171375 $

9,191 $

361 $

9,552 $

1,044 $

321 $

8,188

125452 $

43,595 $

23,058 $

66,653 $

6,237 $

1,919 $

58,497

121463 $

72,096 $

43,333 $

115,429 $

22,549 $

6,940 $

85,940

168507 $

13,218 $

2,011 $

15,229 $

7,823 $

2,408 $

4,998

164513 $

7,440 $

5,284 $

12,725 $

295 $

91 $

12,338

174533 $

3,054 $

436 $

3,490 $

-$

-$

3,490

161499 $

2,878 $

1,598 $

4,476 $

95 $

29 $

4,352

162414 $

23,941 $

2,498 $

26,439 $

2,865 $

882 $

22,693

172833 $

423 $

137 $

561 $

223 $

69 $

269

533825 $

1,768 $

1,272 $

3,040 $

-$

-$

3,040

168238 $

7,766 $

4,636 $

12,402 $

7,977 $

2,455 $

1,970

125697 $

181 $

164 $

345 $

-$

-$

345

128165 $

57,068 $

51,754 $

108,821 $

3,657 $

1,125 $

104,039

511177 $

40,856 $

29,977 $

70,834 $

33 $

10 $

70,790

127330 $

1,850 $

1,423 $

3,273 $

525 $

162 $

2,587

531085 $

6,144 $

5,255 $

11,400 $

-$

-$

11,400

510963 $

80,346 $

65,732 $

146,077 $

4,235 $

1,303 $

140,539

127906 $

15,897 $

11,717 $

27,613 $

5,896 $

1,815 $

19,903

123213 $

2,768 $

2,676 $

5,444 $

-$

-$

5,444

175229 $

2,145 $

165 $

2,310 $

-$

-$

2,310

127388 $

43,442 $

24,308 $

67,750 $

10,407 $

3,203 $

54,139

511110 $

103,829 $

43,191 $

147,020 $

-$

-$

147,020

167228 $

406 $

144 $

550 $

37 $

12 $

501

127705 $

86,199 $

43,767 $

129,966 $

5,746 $

1,768 $

122,451

175303 $

9,385 $

747 $

10,132 $

-$

-$

10,132

174542 $

457 $

(405) $

52 $

-$

-$

52

169941 $

8,810 $

5,603 $

14,413 $

10,021 $

3,084 $

1,308

172980 $

587 $

59 $

645 $

-$

-$

645

531329 $

37,196 $

23,120 $

60,315 $

5,085 $

1,565 $

53,665

510709 $

6,004 $

1,752 $

7,756 $

2,479 $

763 $

4,513

128393 $

30,648 $

25,954 $

56,602 $

-$

-$

56,602

129405 $

3,878 $

3,237 $

7,115 $

-$

-$

7,115

170602 $

970 $

434 $

1,404 $

44 $

14 $

1,346

127608 $

88 $

78 $

166 $

-$

-$

166

532657 $

33 $

2$

35 $

16 $

5$

14

127610 $

11,625 $

7,121 $

18,747 $

999 $

307 $

17,441

127624 $

29,729 $

17,011 $

46,740 $

8,685 $

2,673 $

35,382

127627 $

599 $

585 $

1,184 $

-$

-$

1,184

127652 $

13,348 $

11,621 $

24,969 $

-$

-$

24,969

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n3-oTfI1O02nlPya)geID #: 5243

Employee Name (1)
SALVO, MARIO SAMMIS, MARK SANTMYER, MARTIN SANTOO, RAMPERSAUD R SCHATZEL, ALCUIN A SCHWEIKLE, ARNE G SCIACCA, CARMEN F SCOFIELD, HOWARD D SEILER, THOMAS W SERAFIN, RANDY SESSLER, NATHAN A SHERRY, SAMUEL J SHERRY, STANLEY SHUMAN, GREGORY S SIGLER, DANIEL SKIBITSKI JR, JOHN F SLATTERY, GEORGE MATTHEW SLINGERLAND JR, BRIAN A SMITH, BENJAMIN M SMITH, ROGELIO SOCHA, MARTIN SOLT III, WILLIAM R SORVILLO, EDWARD M SPRINGS, JASON STACEY, ROBIN (END DATED) STALLONE, PAUL D STASKO, JOSEPH STICKNEY, WILLIAM O STRAIN, MARK F STUPKA, CHRISTOPHER SULLIVAN, DENNIS SUTHERLAND, JAMES R SWACKHAMER,GARY R SWATSKI,ROBERT VICTOR TAFEL, EDWARD CHRIS TARBELL, MICHAEL W TARDIFF, DOUGLAS J TAVORMINA, ANTHONY G TESTER, ANTHONY M TETLEY, GARY C

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

127692 $

4,376 $

4,099 $

8,475 $

-$

-$

8,475

172943 $

169 $

60 $

229 $

-$

-$

229

164208 $

688 $

545 $

1,234 $

-$

-$

1,234

121634 $

50,830 $

42,648 $

93,479 $

1,524 $

469 $

91,485

127735 $

1,954 $

1,867 $

3,821 $

-$

-$

3,821

172642 $

1,172 $

430 $

1,602 $

109 $

33 $

1,460

125871 $

6,903 $

5,394 $

12,297 $

-$

-$

12,297

510914 $

62,173 $

39,063 $

101,236 $

-$

-$

101,236

519780 $

98,597 $

13,426 $

112,023 $

64 $

20 $

111,940

127817 $

118 $

115 $

233 $

-$

-$

233

162459 $

180 $

(32) $

148 $

-$

-$

148

172157 $

11,344 $

1,689 $

13,033 $

581 $

179 $

12,273

171839 $

2,673 $

1,024 $

3,697 $

1,693 $

521 $

1,483

164467 $

2,617 $

2,129 $

4,747 $

-$

-$

4,747

127895 $

35,908 $

19,167 $

55,075 $

20,924 $

6,440 $

27,712

123285 $

11,669 $

10,868 $

22,537 $

-$

-$

22,537

171273 $

10,804 $

388 $

11,193 $

915 $

281 $

9,996

163923 $

29,926 $

21,647 $

51,573 $

1,623 $

499 $

49,451

531407 $

29,410 $

20,232 $

49,642 $

1,663 $

512 $

47,466

510759 $

76,439 $

64,231 $

140,670 $

76,433 $ 23,523 $

40,714

174659 $

6,926 $

1,285 $

8,211 $

-$

-$

8,211

126104 $

7,789 $

7,138 $

14,927 $

-$

-$

14,927

532452 $

3,258 $

6,914 $

10,171 $

-$

-$

10,171

164385 $

1,013 $

802 $

1,815 $

-$

-$

1,815

128094 $

30,446 $

26,917 $

57,363 $

-$

-$

57,363

128530 $

58,187 $

44,714 $

102,901 $

3,640 $

1,120 $

98,140

175729 $

2,487 $

145 $

2,632 $

-$

-$

2,632

128150 $

43,522 $

29,259 $

72,781 $

17,136 $

5,274 $

50,372

172572 $

28,280 $

9,486 $

37,766 $

2,284 $

703 $

34,780

531642 $

751 $

310 $

1,060 $

581 $

179 $

301

535833 $

828 $

449 $

1,277 $

828 $

255 $

194

128226 $

1$

1$

2$

-$

-$

2

125899 $

2,361 $

2,406 $

4,767 $

1,065 $

328 $

3,374

128249 $

38,612 $

29,746 $

68,358 $

836 $

257 $

67,265

128312 $

8,166 $

7,113 $

15,279 $

-$

-$

15,279

129817 $

55,484 $

31,960 $

87,444 $

18,580 $

5,718 $

63,146

511258 $

11,226 $

2,953 $

14,179 $

-$

-$

14,179

173558 $

8,597 $

1,567 $

10,164 $

-$

-$

10,164

519751 $

3,708 $

3,104 $

6,812 $

-$

-$

6,812

511120 $

147,306 $

27,251 $

174,557 $

-$

-$

174,557

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n4-oTfI1O02nlPya)geID #: 5244

Employee Name (1)
THAYER, CHRISTOPHER THOMAS, FRANK TOBLER, GREGORY TOLLIS, DAVID J TORRES, ELIEZER TORRES, JOSEPH WILLIAM TORSTRUP, DAWN TORSTRUP, PETER TROMBLEY, JAMES P TROMBLY,RONALD W TRUTOR, JOSHUA M TULLY, MICHAEL L TURNER, DEREK W UNKNOWN VACCARO, DANIEL J VALENTINE III, JOSEPH VAN LEUVAN, JAMES WILLIAM VANFOSSEN, JACK EARL VARGAS, JAVIER N VASQUEZ, JAVIER VELASQUEZ, ANTONIO VELASQUEZ, CHRISTOPHER VINCENT, RICHARD VIRA, ANDREJ WAKELEE, KENT W WALSH, BRIAN WALTON, WILLIAM R WARD, BRIAN M WARREN, JOSEPH G WARREN, STANLEY T WECH, DENNIS WEIGEL, ROBERT G WELTON, CHARLES A WHITE, STEVEN C WHITMAN, JOHN J WILDER, BRADFORD WILISHEFSKI, JASON E WILLIAMS, DIXON T WILLIAMS, ROBERT WILLSEY, BUDDY W (END DATED)

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

168847 $

179 $

144 $

322 $

-$

-$

322

535107 $

22,729 $

7,105 $

29,834 $

13,744 $

4,230 $

11,860

161398 $

32,563 $

19,777 $

52,340 $

11,770 $

3,622 $

36,948

128495 $

10,294 $

9,516 $

19,810 $

-$

-$

19,810

511053 $

94,807 $

36,962 $

131,770 $

2,360 $

726 $

128,683

171867 $

18,550 $

3,910 $

22,459 $

1,566 $

482 $

20,411

511201 $

2$

1$

2$

-$

-$

2

533824 $

42,901 $

18,701 $

61,601 $

4,553 $

1,401 $

55,647

173344 $

1,727 $

217 $

1,944 $

-$

-$

1,944

128536 $

36 $

26 $

62 $

-$

-$

62

165363 $

4,762 $

3,394 $

8,157 $

119 $

37 $

8,001

168038 $

11,608 $

5,483 $

17,090 $

5,733 $

1,764 $

9,594

128617 $

12,298 $

7,218 $

19,516 $

5,969 $

1,837 $

11,709

121676 $

219 $

158 $

377 $

-$

-$

377

125155 $

39,150 $

21,919 $

61,069 $

21,231 $

6,534 $

33,305

510972 $

115 $

59 $

174 $

104 $

32 $

39

170388 $

111 $

39 $

150 $

-$

-$

150

122420 $

44,703 $

28,833 $

73,535 $

3,972 $

1,223 $

68,341

511185 $

10,794 $

8,222 $

19,016 $

6,001 $

1,847 $

11,168

170823 $

3,879 $

(2,249) $

1,630 $

1,066 $

328 $

236

519779 $

98,870 $

80,073 $

178,943 $

-$

-$

178,943

510757 $

8,574 $

7,806 $

16,380 $

-$

-$

16,380

164037 $

63,365 $

41,503 $

104,868 $

28,303 $

8,711 $

67,855

530992 $

4,034 $

3,499 $

7,533 $

-$

-$

7,533

165651 $

5,274 $

3,246 $

8,520 $

1,082 $

333 $

7,105

173555 $

1,134 $

160 $

1,294 $

-$

-$

1,294

129213 $

487 $

313 $

800 $

-$

-$

800

167917 $

17,407 $

11,140 $

28,547 $

221 $

68 $

28,259

530937 $

32,106 $

26,848 $

58,954 $

30,273 $

9,317 $

19,364

129236 $

67,925 $

38,931 $

106,856 $

16,111 $

4,958 $

85,786

174289 $

20,241 $

1,615 $

21,856 $

-$

-$

21,856

129278 $

40,522 $

20,728 $

61,250 $

5,183 $

1,595 $

54,472

162396 $

3,626 $

1,866 $

5,492 $

75 $

23 $

5,394

163294 $

333 $

252 $

585 $

-$

-$

585

166144 $

6,456 $

4,456 $

10,912 $

2,490 $

766 $

7,656

174597 $

36,548 $

4,411 $

40,960 $

-$

-$

40,960

172123 $

21,177 $

4,414 $

25,590 $

-$

-$

25,590

129416 $

46,360 $

18,888 $

65,248 $

13,680 $

4,210 $

47,358

161804 $

23,295 $

6,595 $

29,890 $

13,846 $

4,261 $

11,783

166280 $

18,814 $

11,298 $

30,111 $

12,220 $

3,761 $

14,130

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n5-oTfI1O02nlPya)geID #: 5245

Employee Name (1)
WNENTA, DANIEL WOLCOTT, STEVEN D WRAY, ANDY WRAY, RANDY YATES, JEFFREY A ZIMMERMAN, CURT B ZOLDOS, SCOTT ANDREW ZUARINO, MICHAEL BERNARD ZUKOWSKI, DARIN ADDIS, RONALD L AGBAN, AGBAN ALFANO, KEVIN ANNIS, JAMES G BAILEY, PHILIP G BARNETT, GERHARD G BARRETT, JOHN BEGAZO, JOSE BELICKA, MICHAEL BENNEKAA, NACIM BERENGER, JAMIE L. BETZ, KEITH JOHN BLACK, ROBERT BLACKWELL, WILLIAM BOISSEAU,GARY E BORTLIK, JOEL S BRITT, LOWELL BROWNING, DANIEL P BUCAR, BRIAN MICHAEL BUENANO, JUAN CARLOS BUERKLE, ROBERT BUSTAMANTE, CARLOS CAILLIER, TIM CARBONE, MICHAEL CARDIO, ROBERT CARRASQUILLO, WILFREDO CHMIEL, DAVID CLOTHIER, THOMAS RUSSELL CONERTY,RYAN J. CONTRADA, JAMES FREDERICK COOK, MARK

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

129501 $

133,745 $

65,295 $

199,040 $

14,894 $

4,584 $

179,562

175448 $

2,045 $

146 $

2,191 $

-$

-$

2,191

510782 $

23,560 $

20,719 $

44,279 $

33,084 $ 10,182 $

1,013

531051 $

29,610 $

24,268 $

53,878 $

3,883 $

1,195 $

48,800

127061 $

56,443 $

15,356 $

71,799 $

9,527 $

2,932 $

59,340

511127 $

3,259 $

2,523 $

5,782 $

-$

-$

5,782

174868 $

2,522 $

165 $

2,686 $

-$

-$

2,686

173389 $

10,052 $

1,682 $

11,734 $

-$

-$

11,734

124808 $

51,735 $

49,495 $

101,229 $

-$

-$

101,229

511581 $

-$

-$

-$

-$

-$

-

533169 $

-$

-$

-$

772 $

238 $

-

535242 $

-$

-$

-$

942 $

290 $

-

510835 $

148 $

(32) $

116 $

156 $

48 $

-

120762 $

-$

-$

-$

451 $

139 $

-

174833 $

-$

-$

-$

-$

-$

-

172269 $

-$

-$

-$

61 $

19 $

-

175657 $

-$

-$

-$

-$

-$

-

165835 $

2,354 $

399 $

2,753 $

5,174 $

1,592 $

-

534781 $

-$

-$

-$

851 $

262 $

-

166624 $

-$

-$

-$

3,632 $

1,118 $

-

172994 $

-$

-$

-$

9$

3$

-

510988 $

-$

-$

-$

-$

-$

-

535584 $

-$

-$

-$

366 $

113 $

-

123282 $

4,319 $

3,925 $

8,244 $

11,817 $

3,637 $

-

127588 $

22,796 $

21,383 $

44,178 $

37,615 $ 11,577 $

-

535583 $

-$

-$

-$

485 $

149 $

-

163625 $

3,490 $

1,407 $

4,896 $

5,313 $

1,635 $

-

170126 $

3,041 $

361 $

3,401 $

4,634 $

1,426 $

-

172858 $

-$

-$

-$

-$

-$

-

171037 $

-$

-$

-$

211 $

65 $

-

121191 $

-$

-$

-$

30 $

9$

-

171194 $

-$

-$

-$

9,896 $

3,046 $

-

510862 $

-$

-$

-$

-$

-$

-

510806 $

-$

-$

-$

-$

-$

-

535172 $

-$

-$

-$

246 $

76 $

-

174938 $

-$

-$

-$

-$

-$

-

174157 $

-$

-$

-$

-$

-$

-

167517 $

134 $

202 $

336 $

327 $

101 $

-

167004 $

-$

-$

-$

4,454 $

1,371 $

-

171577 $

-$

-$

-$

939 $

289 $

-

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n6-oTfI1O02nlPya)geID #: 5246

Employee Name (1)
CRANE, BRUCE H CROSSMAN, PRESTON M CROSSMAN, STANLEY A CUDDON, TUBAL DAVID, JEAN DAVIES, RICHARD G DELSANTO, MICHAEL N DEVENUTO III, ARKIE DOIN JR, DONALD G DOLCI, RAYMOND DOVE JR, JOHN E DREW, MICHAEL DRUGAN, JAMES J DUCHESNEAU, DOUGLAS P ENIDES, STEVEN FARR, GARY F FARRELL, PATRICK J FEHER, JOHN FELLO, RICHARD MICHAEL FERMIN, FRANCISCO A FERRER, HARRY FILIPPOV, ALEXEY FRANCESE, JASON FUQUA, GERARD A GARDNER JR, GERALD S GEBHARD, BRYON GIACOBBI, ROBERT VERNON GILLEO, MICHAEL C GIORDANO, MATTHEW GIORDANO, PAUL N GIORDANO, THEODORE GLADLE, BERNARD L GLOVER, EUGENE L GOEDECKE, JOHN D GRIFFO,JERRY GUESNO, ARNOLD HALTER JR, JAMES HAMBLIN, GLEN E HARRIS, SHERRICK HARTLING, DALE ROBERT

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

121609 $

-$

-$

-$

-$

-$

-

533400 $

-$

-$

-$

22,261 $

6,851 $

-

169272 $

-$

-$

-$

5,076 $

1,562 $

-

534116 $

-$

-$

-$

-$

-$

-

170629 $

2,395 $

(320) $

2,075 $

14,462 $

4,451 $

-

510899 $

-$

-$

-$

5,952 $

1,832 $

-

121793 $

-$

-$

-$

-$

-$

-

173853 $

-$

-$

-$

-$

-$

-

164597 $

1,427 $

1,067 $

2,493 $

2,246 $

691 $

-

530368 $

-$

-$

-$

4,164 $

1,281 $

-

170526 $

-$

-$

-$

12,311 $

3,789 $

-

175714 $

-$

-$

-$

-$

-$

-

510945 $

-$

-$

-$

-$

-$

-

510242 $

-$

-$

-$

-$

-$

-

510901 $

-$

-$

-$

137 $

42 $

-

511000 $

-$

-$

-$

1,077 $

331 $

-

128274 $

1,251 $

989 $

2,241 $

9,875 $

3,039 $

-

174915 $

-$

-$

-$

-$

-$

-

170062 $

-$

-$

-$

-$

-$

-

175308 $

-$

-$

-$

-$

-$

-

171805 $

-$

-$

-$

27 $

8$

-

176005 $

-$

-$

-$

-$

-$

-

170395 $

-$

-$

-$

346 $

106 $

-

510736 $

-$

-$

-$

3,608 $

1,110 $

-

510890 $

-$

-$

-$

106 $

33 $

-

166492 $

-$

-$

-$

-$

-$

-

171919 $

-$

-$

-$

275 $

85 $

-

510896 $

-$

-$

-$

-$

-$

-

535005 $

-$

-$

-$

1,383 $

426 $

-

511118 $

-$

-$

-$

384 $

118 $

-

534445 $

-$

-$

-$

2,278 $

701 $

-

510868 $

8,630 $

(1,018) $

7,612 $

23,567 $

7,253 $

-

121255 $

11,518 $

9,946 $

21,464 $

25,492 $

7,846 $

-

166058 $

-$

-$

-$

950 $

292 $

-

161342 $

10,687 $

7,261 $

17,948 $

17,336 $

5,336 $

-

533695 $

-$

-$

-$

61 $

19 $

-

532621 $

287 $

(126) $

161 $

3,949 $

1,215 $

-

510976 $

-$

-$

-$

-$

-$

-

535417 $

5,102 $

244 $

5,347 $

19,280 $

5,934 $

-

170411 $

1,557 $

893 $

2,449 $

4,748 $

1,461 $

-

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n7-oTfI1O02nlPya)geID #: 5247

Employee Name (1)
HEALY, SEAN HENRY, ROBERT J HICKS, TIMOTHY ROGER HOAR, THOMAS HOLGUIN, MIGUEL A. HOSLER, ROBERT M JAKUBOWSKI, MATTHEW JOHNSEN, CLIFFORD W JOHNSON, ANTHONY (143) JOHNSON, DALE JOHNSON, ERIC M JOHNSTON, BRETT MICHAEL JONES, JASON S KAUCHER, KURT C KAUCHER, KYLE KAUFMAN, MARK KEEVER, WAYNE S KELLY, BRIAN SCOTT KENNAN, DENNIS KIBBLE, JOHN T. KIMMEL, JASON LEE KOHL, DALE KRAFT, CHRIS KRAFT, GEORGE O KRYSTYNIAK, DANIEL P KUDELSKI, ROBERT STANLEY LAM, TOAN LANCLOS, JOHN M LARSON, DENNIS E LEGG, RICKY D LENZ, STEPHEN M LEVIN, BRONIS LINDEN, PETER LIVINGSTON, BRADLEY G LOEFFEL, KEVIN J LOTZ, JOHN J LOWRY, PAUL LUCAS, JAMES BERNARD LYNCH, DANIEL A MACDONALD, WILLIAM P

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

531883 $

-$

-$

-$

302 $

93 $

-

511026 $

-$

-$

-$

1,237 $

381 $

-

173903 $

-$

-$

-$

-$

-$

-

511122 $

-$

-$

-$

-$

-$

-

163714 $

-$

-$

-$

1,062 $

327 $

-

511056 $

-$

-$

-$

-$

-$

-

166984 $

0$

0$

0$

12 $

4$

-

173277 $

-$

-$

-$

-$

-$

-

173663 $

-$

-$

-$

-$

-$

-

175011 $

-$

-$

-$

-$

-$

-

510739 $

-$

-$

-$

-$

-$

-

171050 $

553 $

242 $

796 $

1,518 $

467 $

-

512017 $

9,281 $

4,992 $

14,273 $

17,326 $

5,332 $

-

511072 $

-$

-$

-$

-$

-$

-

169367 $

-$

-$

-$

611 $

188 $

-

170494 $

-$

-$

-$

678 $

209 $

-

535536 $

-$

-$

-$

1,376 $

423 $

-

170407 $

-$

-$

-$

1,186 $

365 $

-

172429 $

-$

-$

-$

-$

-$

-

533879 $

-$

-$

-$

217 $

67 $

-

173627 $

-$

-$

-$

-$

-$

-

166533 $

-$

-$

-$

168 $

52 $

-

510797 $

-$

-$

-$

-$

-$

-

510966 $

-$

-$

-$

-$

-$

-

173002 $

-$

-$

-$

-$

-$

-

171012 $

-$

-$

-$

12,283 $

3,780 $

-

533892 $

-$

-$

-$

2,311 $

711 $

-

175411 $

-$

-$

-$

-$

-$

-

161712 $

-$

-$

-$

16,283 $

5,011 $

-

512225 $

-$

-$

-$

702 $

216 $

-

511094 $

-$

-$

-$

-$

-$

-

535188 $

415 $

535 $

951 $

54,376 $ 16,735 $

-

533245 $

12,881 $

11,797 $

24,678 $

84,672 $ 26,059 $

-

162342 $

991 $

590 $

1,581 $

4,116 $

1,267 $

-

174770 $

-$

-$

-$

-$

-$

-

511043 $

-$

-$

-$

-$

-$

-

532739 $

-$

-$

-$

148 $

46 $

-

535906 $

1,095 $

108 $

1,203 $

2,119 $

652 $

-

165468 $

-$

-$

-$

2,641 $

813 $

-

161936 $

831 $

522 $

1,354 $

1,414 $

435 $

-

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n8-oTfI1O02nlPya)geID #: 5248

Employee Name (1)
MALDONADO, THOMAS H MALLON, SEAN P MARRONE, ROBERT MARTIN, CHRISTOPHER MASON, RICHARD EDWARD MCARDELL, JASON MCARTHUR, THOMAS C MCDEVITT, DENIS MCGOWAN, SEAN THOMAS MCNAMARA, MARIE MEIGEL, JOHN JOSEPH MENTZ, ROBERT MESEROLE, JON R MILIAMBRO, TIMOTHY V MOORES, KENNETH S MORALES, DAVID MORGAN, SCOTT DAVID MORRILL JR, MARK ALONZO MORRISSEY, DAVID J MUHAMMAD, ANWAR MUZA, BERNARDO NEDD, SHEVON NICHOLS, JOSHUA P OSMAN, MICHAEL E OUTHOUSE, DAVID G OVER, BRIAN LEROY OWOLABI, RAFIU PADGETT, WILLIAM H PALMER, JOHN T PAPAY, DAVID PARRINELLO, VITO PARRY, CHRISTOPHER J PASCAL, MICHAEL LOUIS PECK, MATTHEW W PEREZ, TINA PEREZIC, ENVER PHILLIPS, JOHN A POLLARD, PATRICK PORTILLA, MANUEL EFRAIN PRESIDENT, DENISE B

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

171148 $

-$

-$

-$

458 $

141 $

-

122036 $

1,377 $

1,189 $

2,566 $

9,467 $

2,914 $

-

519782 $

-$

-$

-$

-$

-$

-

162939 $

2,121 $

6,751 $

8,872 $

23,825 $

7,332 $

-

171099 $

-$

-$

-$

10,284 $

3,165 $

-

169179 $

169 $

22 $

191 $

56,157 $ 17,283 $

-

125285 $

139 $

(242) $

(103) $

-$

-$

-

534947 $

-$

-$

-$

-$

-$

-

172201 $

-$

-$

-$

177 $

54 $

-

166997 $

-$

-$

-$

2,337 $

719 $

-

171459 $

95 $

39 $

135 $

1,116 $

343 $

-

533694 $

-$

-$

-$

-$

-$

-

510717 $

-$

-$

-$

-$

-$

-

167613 $

-$

-$

-$

118 $

36 $

-

160076 $

-$

-$

-$

-$

-$

-

171193 $

-$

-$

-$

14,152 $

4,355 $

-

170120 $

-$

-$

-$

4,468 $

1,375 $

-

535727 $

-$

-$

-$

-$

-$

-

510959 $

-$

-$

-$

-$

-$

-

171171 $

-$

-$

-$

2,913 $

897 $

-

536012 $

-$

-$

-$

-$

-$

-

534770 $

-$

-$

-$

-$

-$

-

166355 $

-$

-$

-$

4,690 $

1,443 $

-

172392 $

-$

-$

-$

-$

-$

-

125080 $

12,971 $

11,789 $

24,760 $

20,487 $

6,305 $

-

170567 $

-$

-$

-$

-$

-$

-

536041 $

5,145 $

3,417 $

8,562 $

59,535 $ 18,323 $

-

166844 $

4,278 $

2,688 $

6,966 $

26,957 $

8,296 $

-

170493 $

-$

-$

-$

776 $

239 $

-

122112 $

-$

-$

-$

-$

-$

-

511075 $

-$

-$

-$

892 $

274 $

-

532722 $

-$

-$

-$

19,159 $

5,896 $

-

171468 $

-$

-$

-$

-$

-$

-

161333 $

15,907 $

2,487 $

18,394 $

18,130 $

5,580 $

-

534311 $

-$

-$

-$

4,284 $

1,319 $

-

531086 $

-$

-$

-$

56,270 $ 17,318 $

-

533464 $

1,366 $

694 $

2,060 $

15,985 $

4,920 $

-

171336 $

-$

-$

-$

3,958 $

1,218 $

-

171031 $

-$

-$

-$

1,196 $

368 $

-

168804 $

3,549 $

1,231 $

4,780 $

4,557 $

1,402 $

-

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo3n9-oTfI1O02nlPya)geID #: 5249

Employee Name (1)
PUGLISI, CHRISTOPHER C RAINEY, ANTHONY D RAMSARAN, BEEJAY RAPP, KENNETH MICHAEL REFVIK, EVAN REILLY, TIMOTHY J RELYEA, PAUL J RITTENHOUSE, KRIS THOMAS RIVENBURG, GUY ROMANO, ANTHONY ROWAN, TRICIA RUEDIN, THEODORE M RUSSELL, ROBERT SAHMEL, EVAN WILLIAM SANCHEZ, EUGENE SARKIS, SAMIR SATAS, WAYNE A SCALISI, THOMAS SCHIAVO, JOHN SCHUMAN, EDWARD SELENCHIK, STEPHEN SHAW, ROBERT K. SHEMBEDA, JOSEPH C SKINNER, JEREMY W SMITH,JONNY M SMOLENSKY, RONALD PAUL SPAGONE, ALEXANDER SPRANDEL, JAMES STACHNIUK, HENRY STASYS JR, JOSEPH STONE,LESLIE REBECCA STRANKO, THOMAS E SVENSEN, KURT KYLE THOBY, ADAM S THOMPSON, ROBERT C. TRAPANI, MARC TRAVER, PATRICA ANN TREMBLAY, MATTHEW A TURK, BRYAN D VASQUEZ, EDWIN

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

536080 $

-$

-$

-$

1,671 $

514 $

-

510913 $

-$

-$

-$

-$

-$

-

510850 $

13,324 $

15,859 $

29,183 $

57,073 $ 17,565 $

-

535763 $

-$

-$

-$

586 $

180 $

-

173141 $

-$

-$

-$

-$

-$

-

510883 $

-$

-$

-$

-$

-$

-

173478 $

-$

-$

-$

-$

-$

-

170675 $

1,305 $

(33) $

1,272 $

1,834 $

565 $

-

172465 $

147 $

46 $

193 $

259 $

80 $

-

510906 $

-$

-$

-$

149 $

46 $

-

172516 $

0$

(1) $

(1) $

1,474 $

454 $

-

168115 $

-$

-$

-$

628 $

193 $

-

175262 $

-$

-$

-$

-$

-$

-

171124 $

2,360 $

125 $

2,484 $

3,756 $

1,156 $

-

534312 $

101 $

69 $

170 $

459 $

141 $

-

534854 $

-$

-$

-$

866 $

266 $

-

171096 $

70 $

30 $

101 $

3,488 $

1,074 $

-

163550 $

723 $

396 $

1,120 $

1,213 $

373 $

-

173048 $

-$

-$

-$

1,228 $

378 $

-

127,749 $

-$

-$

-$

-$

-$

-

511528 $

-$

-$

-$

-$

-$

-

163008 $

340 $

209 $

549 $

1,322 $

407 $

-

125892 $

344 $

305 $

648 $

2,685 $

826 $

-

511076 $

-$

-$

-$

293 $

90 $

-

166958 $

260 $

10 $

270 $

4,459 $

1,372 $

-

170263 $

-$

-$

-$

-$

-$

-

534288 $

-$

-$

-$

-$

-$

-

176142 $

-$

-$

-$

-$

-$

-

511092 $

45,970 $

39,860 $

85,830 $

90,924 $ 27,983 $

-

536013 $

-$

-$

-$

-$

-$

-

162705 $

-$

-$

-$

513 $

158 $

-

170103 $

1,624 $

832 $

2,456 $

2,645 $

814 $

-

163391 $

2,432 $

1,229 $

3,661 $

2,918 $

898 $

-

511064 $

-$

-$

-$

1,165 $

358 $

-

534736 $

-$

-$

-$

-$

-$

-

510874 $

-$

-$

-$

196 $

60 $

-

161953 $

-$

-$

-$

-$

-$

-

172676 $

-$

-$

-$

2,444 $

752 $

-

175133 $

-$

-$

-$

-$

-$

-

172468 $

9$

3$

12 $

295 $

91 $

-

Table 4 Modified (Supp.) Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo4n0-oTfI1O02nlPya)geID #: 5250

Employee Name (1)
VAZQUEZ, LUIS VINING, SEAN VIOLANO, JOSEPH R VOGEL, RICHARD WALKER, MICHAEL WARD, MICHAEL J WEBER, JODY VERNON WERNER, ANDREW KENNETH WEYAND, ANDREW DONALD WHITAKER, RICHARD WIBREW, FRANCIS W WICAI, NEIL R WILSON, VERONICA WROBLEWSKI, DAVID E ZIMERER, BRENO ZIMLINGHAUS, JOSHUA EDWARD ZINK, JOHN THOMAS

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

534056 $

-$

-$

-$

58 $

18 $

-

173140 $

-$

-$

-$

-$

-$

-

163917 $

232 $

138 $

370 $

832 $

256 $

-

121699 $

-$

-$

-$

-$

-$

-

171168 $

-$

-$

-$

2,921 $

899 $

-

162693 $

2,977 $

1,803 $

4,780 $

4,662 $

1,435 $

-

171736 $

-$

-$

-$

280 $

86 $

-

174260 $

-$

-$

-$

-$

-$

-

173977 $

-$

-$

-$

-$

-$

-

510950 $

-$

-$

-$

-$

-$

-

174352 $

-$

-$

-$

-$

-$

-

167668 $

1,322 $

701 $

2,023 $

1,958 $

603 $

-

173049 $

21 $

4$

26 $

1,034 $

318 $

-

516129 $

-$

-$

-$

2,360 $

726 $

-

535173 $

-$

-$

-$

1,098 $

338 $

-

534061 $

-$

-$

-$

-$

-$

-

171825 $

-$

-$

-$

250 $

77 $

-

$ 14,039,987

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses4M1 oefm10b2ePrsageID #: 5251

Employee Name (1)
ACCARDI, MARK S ADAMS JR, TIMOTHY M ALFANO JR, JAMES C ALFONSO, DENNIS ALFORD JR, JEFFREY W ALLEN, LIJ ALONZO, JOSE AMSTEIN, MATTHEW J ANDERSON, MICHAEL J ANNIS, JAMES G ARCHER, MICHAEL A BABCOCK, ROBERT L BACON, STUART BAGATTA, JOSEPH BARDEEN, DAVID K BARNING, WILLIAM A BARRETT, STEVEN CHARLES BARROS, PAUL BATES, KYLE JOSEPH BAUTISTA, ALFREDO A BAXTER, CHARLES A BAYLEY, JASON ALLEN BEAUCHAMP, RAYMOND C BELICKA, MICHAEL BELICKA, MICHAEL BENOIT JR, JAY W BENOIT SR, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, ROBERT J BIDDULPH-KRENTA, JEFFREY BINGMAN, ROBERT BLACK, WAYNE A BOISSEAU,GARY E BORDASH, JOHN BORTLIK, JOEL S BOSLEY, DENNIS M BOUTILLIER, ROBERT J BOWERS, JOSHUA K

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

127644 $

18,701 $

17,264 $

35,964

123375 $

52,712 $

30,294 $

83,006

120250 $

49,441 $

46,657 $

96,098

128502 $

3,988 $

3,361 $

7,349

165458 $

3,153 $

1,874 $

5,026

173171 $

234 $

75 $

309

510987 $

38,624 $

33,938 $

72,562

128534 $

1,252 $

934 $

2,186

127249 $

175 $

169 $

344

510835 $

130 $

(42) $

88

126703 $

11,570 $

11,069 $

22,639

126412 $

27,542 $

21,031 $

48,573

171410 $

1,742 $

196 $

1,938

120747 $

37,200 $

35,400 $

72,600

120801 $

22,642 $

7,572 $

30,214

161221 $

1,586 $

1,096 $

2,682

171049 $

21,600 $

2,535 $

24,134

530219 $

20,242 $

18,750 $

38,993

171097 $

2,058 $

220 $

2,279

171337 $

256 $

106 $

362

511027 $

461 $

412 $

872

172607 $

6,090 $

586 $

6,675

123081 $

61,948 $

49,338 $

111,286

532870 $

115,706 $

87,259 $

202,965

165835 $

2,257 $

371 $

2,628

169468 $

41,875 $

18,958 $

60,833

169484 $

17,341 $

11,083 $

28,424

11996 $

287 $

261 $

548

56 $

199 $

194 $

393

12120 $

111 $

102 $

213

510893 $

758 $

674 $

1,432

510803 $

77,135 $

24,812 $

101,946

534961 $

1,190 $

730 $

1,920

175219 $

1,182 $

74 $

1,256

510967 $

6,185 $

4,393 $

10,578

123282 $

4,308 $

3,915 $

8,223

121014 $

22,147 $

16,851 $

38,997

127588 $

22,796 $

21,383 $

44,178

163726 $

183 $

98 $

281

532948 $

281 $

97 $

378

128792 $

489 $

418 $

907

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

-$

-$

-

$

3,880 $

1,721 $

5,602

$

2,171 $

2,002 $

4,174

$

10,624 $

8,746 $

19,369

$

-$

-$

-

$

-$

-$

-

$

(1) $

-$

(1)

$

89 $

62 $

151

$

1,134 $

1,091 $

2,225

$

39,292 $

10,787 $

50,079

$

6,594 $

6,251 $

12,846

$

302 $

185 $

487

$

15,263 $

1,740 $

17,004

$

1,172 $

557 $

1,729

$

79 $

50 $

129

$

13,545 $

8,912 $

22,458

$

38,203 $

10,432 $

48,635

$

-$

-$

-

$

22,672 $

2,280 $

24,952

$

1,433 $

582 $

2,015

$

7,732 $

3,835 $

11,568

$

45,172 $

5,076 $

50,248

$

-$

-$

-

$

383,487 $

124,368 $

507,854

$

145,267 $

31,647 $

176,914

$

6,178 $

1,880 $

8,059

$

2,039 $

640 $

2,679

$

-$

-$

-

$

-$

-$

-

$

-$

-$

-

$

-$

-$

-

$

8,242 $

1,102 $

9,344

$

10,490 $

5,919 $

16,409

$

52,227 $

4,975 $

57,202

$

19,841 $

3,051 $

22,892

$

12 $

11 $

23

$

874 $

705 $

1,579

$

567 $

528 $

1,095

$

193 $

104 $

297

$

9,174 $

2,777 $

11,951

$

769 $

657 $

1,426

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses4M2 oefm10b2ePrsageID #: 5252

All Except T&I (Exclud. FA for NYC)

Damages +

Employee Name

Employee ID# Damages

Interest

Interest

(1)

(2)

(3)

(4)

(5)

BOYD, ORAN

174211 $

69 $

13 $

82

BOYLE, JAMES P

162898 $

3,329 $

673 $

4,001

BRASSEAUX, CHRISTOPHER

165062 $

10 $

8$

18

BRIGHAM, JOHN

534244 $

586 $

282 $

868

BROWN, CHRISTOPHER

122375 $

134 $

112 $

246

BROWNING, DANIEL P

163625 $

3,363 $

1,334 $

4,697

BROWN-TAUROZZI, TODD L

533266 $

99,194 $

70,703 $

169,897

BUCAR, BRIAN MICHAEL

170126 $

3,041 $

361 $

3,401

BUCHAKIAN,PETER G

121157 $

178,259 $

54,120 $

232,378

BURGESS, ERIC S

127708 $

12,853 $

12,124 $

24,977

BURKE, RICHARD I

166721 $

19,670 $

7,924 $

27,594

BURKHARTZMEYER,ANDREW

120565 $

60,503 $

35,764 $

96,267

BYRON, KENNETH

166726 $

3,099 $

1,223 $

4,322

CABRERA, LENIN

174509 $

465 $

10 $

474

CALDONA, RAFAEL L

511059 $

26,698 $

22,620 $

49,318

CAMPBELL, O'NEIL KINGSLEY (END

170090 $

11,346 $

5,586 $

16,932

CANAVAN, ROBERT M

124803 $

10,958 $

9,940 $

20,899

CANCEMI, MICHAEL THOMAS

533646 $

11,352 $

7,143 $

18,494

CAPPIELLO, ANNMARIE

172306 $

116,487 $

27,213 $

143,700

CARPENTER, WILLIAM T

171582 $

8,372 $

1,156 $

9,528

CARRASQUILLO, JESUS M

530659 $

5,141 $

4,386 $

9,527

CARREON, GIAN CARLO

170304 $

42,932 $

16,783 $

59,715

CARRION, VINNY

531084 $

37,424 $

35,186 $

72,609

CARROLL, SCOTT F

128485 $

1,184 $

1,129 $

2,313

CARTER, JEFFREY A

169238 $

454 $

241 $

695

CARVER, PATRICK C

127445 $

950 $

512 $

1,462

CASSONE, JOSEPH E

121327 $

72,127 $

60,664 $

132,791

CASTILLO, FRANCIS M

166331 $

340 $

237 $

577

CASURAS, KEVIN M

510747 $

1,454 $

1,205 $

2,659

CAWLEY, JACOB A

173330 $

1,290 $

402 $

1,693

CEDANO, FRANCISCO A

533826 $

2,155 $

438 $

2,593

CHALUPKA,FRANK P

124395 $

20,193 $

15,015 $

35,208

CLARK,BRADLEY

121449 $

8,443 $

5,321 $

13,764

COLABELLI, JAMES M

121502 $

21,354 $

17,442 $

38,796

COLEMAN, MARTIN LEE

175152 $

965 $

110 $

1,075

CONANT, TIMOTHY

164052 $

14,343 $

5,171 $

19,514

COOK, DAVID C

165563 $

19,613 $

13,470 $

33,083

COOKE, JOSEPH R

126239 $

3,476 $

2,888 $

6,365

COROMINAS, JAMES A

166934 $

48,323 $

34,027 $

82,350

CORREA, PHILIP

121569 $

55,611 $

46,257 $

101,868

CULLUM, MICHAEL S

123845 $

49,331 $

43,419 $

92,749

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

20,863 $

4,211 $

25,074

$

63,135 $

16,816 $

79,950

$

1,698 $

1,227 $

2,925

$

2,574 $

1,080 $

3,654

$

-$

-$

-

$

68,970 $

16,497 $

85,467

$

127,712 $

58,902 $

186,614

$

75,264 $

14,701 $

89,965

$

15,120 $

1,667 $

16,786

$

-$

-$

-

$

35,253 $

3,147 $

38,400

$

741 $

505 $

1,246

$

83,342 $

24,311 $

107,653

$

20,979 $

2,235 $

23,214

$

-$

-$

-

$

277 $

140 $

418

$

369 $

340 $

709

$

127,506 $

28,905 $

156,412

$

189,944 $

32,943 $

222,887

$

31,529 $

9,429 $

40,958

$

-$

-$

-

$

232,456 $

46,226 $

278,682

$

(0) $

-$

(0)

$

-$

-$

-

$

1$

1$

2

$

3,864 $

2,194 $

6,058

$

2,383 $

1,931 $

4,314

$

257 $

177 $

435

$

-$

-$

-

$

21,300 $

6,099 $

27,399

$

-$

-$

-

$

1,470 $

1,167 $

2,637

$

1,321 $

370 $

1,691

$

2,114 $

1,776 $

3,890

$

33,887 $

3,404 $

37,291

$

134,238 $

47,375 $

181,614

$

-$

-$

-

$

18,092 $

15,747 $

33,839

$

1,264 $

334 $

1,598

$

7,286 $

6,515 $

13,801

$

32,014 $

23,682 $

55,696

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses4M3 oefm10b2ePrsageID #: 5253

Employee Name (1)
CULSHAW, JOHN L CURRIE, BRIAN DOUGLAS DARCY JR, JAMES E DASHNAU, EDWARD ROBERT DAVID, JEAN DAVIDSON, CORY WILLIAM DAVIES, DOUGLASS G DAVIES, RICHARD A DAVIS, ANDREW MARK DAVIS, TIMOTHY A (119) DECICCO, STEVE DEFILIPPS, DANIEL P DEGROFF, DAVID DEMASI, JOSEPH DENSE, LOUIS C DEPAOLA, CHRISTOPHER JAMES DESOUZA, WAYNE DIAMOND, PHILLIP H (END DATED) DIFABIO JR,JOSEPH A DILLUVIO, NICHOLAS M DODGE, JOHN DOIN JR, DONALD G DONER,PETER W DUBUQUE IV, WILLIAM D DUPRA, ARTHUR DURYEA, DENNIS J DYNKO, MICHAEL MELVIN ECHAVARRIA, SIMON EISENHUTH, JANNA A ELFREICH, THOMAS P EMERSON, DANIEL E ENAMORADO, VICTOR ESTRELLA, MAXIMO ETIENNE, DAVIDSON FARRELL, PATRICK J FARROW, JOHN B FEATHERSON, ERIC S FERNANDEZ JR, JOSE L FERNANDEZ, JOSE FIORE, VINCENT B FISCHER, ROBERT

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

126890 $

18,328 $

13,795 $

32,123

173893 $

1,268 $

(96) $

1,172

173311 $

35,417 $

3,424 $

38,840

535582 $

21,676 $

10,480 $

32,156

170629 $

2,395 $

(320) $

2,075

535644 $

239 $

110 $

350

164291 $

77,771 $

18,207 $

95,978

167561 $

29,713 $

12,615 $

42,328

165411 $

2,204 $

1,160 $

3,364

176130 $

414 $

19 $

433

172639 $

7,070 $

474 $

7,544

165661 $

115 $

87 $

202

165817 $

33,805 $

18,736 $

52,541

174792 $

1,322 $

272 $

1,593

122004 $

555 $

490 $

1,045

530854 $

4,815 $

1,256 $

6,071

531792 $

52,721 $

40,371 $

93,092

535431 $

1,032 $

518 $

1,550

101845 $

34,047 $

28,469 $

62,516

170802 $

1,253 $

141 $

1,394

162139 $

1,279 $

733 $

2,012

164597 $

39 $

347 $

386

121907 $

5,194 $

3,757 $

8,951

171290 $

1$

3$

5

175993 $

1,819 $

106 $

1,924

121978 $

71,432 $

61,562 $

132,995

172873 $

2,225 $

140 $

2,365

510744 $

38,427 $

29,056 $

67,484

168158 $

13,848 $

7,450 $

21,298

510996 $

7,113 $

739 $

7,852

125990 $

28 $

26 $

54

531182 $

131,987 $

103,156 $

235,143

161423 $

189 $

100 $

289

11889 $

354 $

323 $

676

128274 $

1,251 $

989 $

2,241

173145 $

79,450 $

8,859 $

88,310

122764 $

7,947 $

6,576 $

14,523

510845 $

4,317 $

3,621 $

7,938

533722 $

20,492 $

7,778 $

28,270

120821 $

41,472 $

37,083 $

78,555

511125 $

10,241 $

10,165 $

20,406

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

15,403 $

9,884 $

25,287

$

2,156 $

133 $

2,289

$

10,709 $

1,609 $

12,318

$

1,546 $

753 $

2,299

$

38,004 $

4,020 $

42,024

$

96 $

46 $

142

$

1,007 $

445 $

1,452

$

40,612 $

17,698 $

58,310

$

26,042 $

10,840 $

36,882

$

0$

0$

0

$

94 $

13 $

107

$

6,398 $

4,775 $

11,172

$

32,988 $

16,215 $

49,203

$

0$

0$

1

$

1,242 $

1,078 $

2,320

$

8,527 $

2,290 $

10,817

$

-$

-$

-

$

0$

0$

0

$

1,420 $

1,177 $

2,597

$

34,718 $

3,830 $

38,548

$

1,129 $

646 $

1,775

$

11,824 $

4,717 $

16,541

$

293 $

273 $

566

$

496 $

111 $

607

$

1$

0$

1

$

75 $

70 $

146

$

107,120 $

18,824 $

125,944

$

666 $

150 $

817

$

1,476 $

802 $

2,278

$

33,084 $

3,740 $

36,824

$

171 $

155 $

326

$

-$

-$

-

$

32,998 $

16,594 $

49,592

$

-$

-$

-

$

250 $

241 $

491

$

1,735 $

332 $

2,067

$

1,258 $

1,023 $

2,281

$

4,501 $

1,014 $

5,515

$

78,342 $

32,503 $

110,846

$

2,351 $

2,237 $

4,587

$

-$

-$

-

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses4M4 oefm10b2ePrsageID #: 5254

Employee Name (1)
FITZPATRICK,BRIAN J FIX JR.,DAVID FLEXON, CHRISTOPHER M FLORENTINO, JOSE FLOREZ, OMAR A FORBES, BRUCE R FORD, VERNON FORESTIERI, NICHOLAS A FRAISER, ZACHERY RYAN FRANCHI, GERALD FREDETTE, JEFFREY E FRENCH, BRENT W FRENCH, THOMAS P FREZZA JR, MICHAEL FRIEDMAN, STEVEN M GARCIA, PABLO GARDELLA, PETER J GARY, JASON GATES, JEFFERY GEORGE, ALEXANDRA B GIDDINGS, WILLIAM GILES,ERIC R GILLETTE, THOMAS K GILMAN,JOHN H GLADLE, BERNARD J GLADLE, BERNARD L GLASS, JAMES R GLOTZBACH, BRYAN PAUL GLOVER, EUGENE L GOLDBERG, JOHN M GONZALEZ, DAVID GONZALEZ, DELFINO GONZALEZ, YADIRA GOODWIN, PATRICK J GOODWIN, TODD J GORELIN, LEONID GORTON, ROBERT W GOVAN, KWAUHURU GRACIE, MICHAEL D GRADY, DONALD A GRAVAGNE, JOSEPH

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

164541 $

1,267 $

837 $

2,103

163390 $

26,238 $

12,118 $

38,356

163300 $

55 $

42 $

97

532727 $

13,798 $

4,507 $

18,306

167145 $

15,939 $

5,812 $

21,751

166283 $

30,827 $

19,183 $

50,010

122104 $

22,990 $

14,108 $

37,098

120153 $

23,716 $

21,018 $

44,733

172856 $

292 $

83 $

375

175257 $

1,078 $

64 $

1,141

170520 $

0$

0$

0

122958 $

1,008 $

482 $

1,490

171778 $

196 $

9$

205

531923 $

5,199 $

4,327 $

9,526

125810 $

948 $

758 $

1,706

534096 $

9,530 $

4,827 $

14,358

126188 $

1,040 $

908 $

1,947

166821 $

5,130 $

3,146 $

8,276

120609 $

55,303 $

36,994 $

92,297

119809 $

217 $

176 $

393

175317 $

26,682 $

2,023 $

28,706

125395 $

20,758 $

14,130 $

34,888

124683 $

5,723 $

3,255 $

8,978

163697 $

927 $

2,363 $

3,290

175139 $

167 $

32 $

199

510868 $

8,629 $

(1,018) $

7,611

513289 $

1,440 $

148 $

1,589

174715 $

13,666 $

1,267 $

14,933

121255 $

10,315 $

9,144 $

19,459

120425 $

61,958 $

41,104 $

103,063

533294 $

3,057 $

2,336 $

5,393

519677 $

2,563 $

462 $

3,024

532506 $

15,835 $

14,144 $

29,979

123205 $

37,876 $

21,242 $

59,118

162906 $

14,118 $

7,480 $

21,598

122533 $

4,159 $

3,684 $

7,843

128759 $

6,821 $

2,292 $

9,114

533163 $

2,172 $

1,641 $

3,814

128383 $

26,867 $

18,611 $

45,477

120426 $

461 $

140 $

601

510804 $

2,518 $

2,287 $

4,806

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

2,532 $

1,705 $

4,237

$

3,823 $

2,217 $

6,040

$

-$

-$

-

$

392 $

124 $

516

$

120,204 $

54,738 $

174,941

$

11 $

5$

15

$

7,510 $

5,248 $

12,758

$

7,102 $

6,167 $

13,269

$

29,990 $

8,881 $

38,871

$

-$

-$

-

$

204 $

73 $

277

$

75,943 $

9,401 $

85,344

$

75,564 $

11,645 $

87,208

$

-$

-$

-

$

8,778 $

7,159 $

15,938

$

1,877 $

489 $

2,366

$

13,723 $

10,523 $

24,245

$

42,624 $

25,862 $

68,487

$

99 $

79 $

178

$

(0) $

-$

(0)

$

13 $

1$

14

$

8,688 $

5,312 $

14,000

$

70,583 $

34,977 $

105,560

$

61,992 $

21,849 $

83,841

$

10,053 $

1,199 $

11,251

$

14,619 $

1,573 $

16,192

$

5,089 $

833 $

5,922

$

1$

0$

1

$

169,187 $

48,065 $

217,252

$

10,437 $

6,224 $

16,662

$

-$

-$

-

$

4,822 $

916 $

5,738

$

9,375 $

3,820 $

13,195

$

22,302 $

7,066 $

29,367

$

6,379 $

3,526 $

9,905

$

497 $

451 $

948

$

5$

4$

9

$

-$

-$

-

$

8,763 $

7,948 $

16,712

$

1,425 $

720 $

2,145

$

-$

-$

-

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses4M5 oefm10b2ePrsageID #: 5255

Employee Name (1)
GRAVAGNE, MICHAEL GREEN, JEFFREY ALLEN GRIFFO,JERRY GRINER, JOHN JOSEPH GROSSMAN, GLEN A GUETTLER, MICHAEL W HABERMEHL, DANIEL M HADSELL, JAMES D HALSTEAD, JAROD M. HALTER JR, JAMES HARPOLE, GERALD (END DATED) HARRIS, SHERRICK HARTLING, DALE ROBERT HARWOOD JR, ROGER B HAUTH, GREGORY J HERCHENRODER JR, MICHAEL F HESSELFELDT, DAVID A HESSELFELDT, DAVID A HETZEL, NORMAN P HOBBS, WILLIAM C HOOCK,JASON R HOUDE, THOMAS HUBER, PHILIP HUBNER, JOHN PAUL HUEBNER, KATHY E. HULTON, GERALD J IACCINO, LOUIS V (END DATED) ILACQUA, JOHN JOSEPH INGLESE, JAMIE M IORGOVAN, OVIDIU JAIME, BENJAMIN JAKUBOWSKI, MATTHEW JANKOSKI, PETER V JENNINGS, DAVID S. JIMENEZ, SAMUEL JOANIS, DAVID BRUCE JOHNSON, JOSEPH MARK JOHNSTON, BRETT MICHAEL JOINER,KEITH D JOLLY JR, DAVID J JOLLY, DANIEL P

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

531651 $

105,622 $

79,127 $

184,748

166503 $

52 $

34 $

86

161342 $

8,037 $

5,616 $

13,653

173644 $

6,261 $

455 $

6,716

123305 $

454 $

442 $

897

124260 $

9,516 $

10,995 $

20,511

173633 $

19,042 $

1,544 $

20,586

172735 $

4,174 $

723 $

4,897

166660 $

12,646 $

8,320 $

20,966

532621 $

287 $

(126) $

161

162964 $

20,196 $

11,290 $

31,486

535417 $

5,018 $

228 $

5,246

170411 $

1,557 $

893 $

2,449

162496 $

51,003 $

33,652 $

84,655

175354 $

40,951 $

2,509 $

43,460

129502 $

295 $

256 $

551

513897 $

79 $

72 $

151

169389 $

323 $

268 $

592

123919 $

8,734 $

7,823 $

16,557

123667 $

81,933 $

40,588 $

122,522

127289 $

4,117 $

3,705 $

7,823

161999 $

1,505 $

873 $

2,379

532483 $

4,328 $

3,324 $

7,651

163220 $

16,677 $

7,958 $

24,634

163124 $

150 $

89 $

239

162167 $

4,519 $

930 $

5,449

531561 $

5,527 $

3,197 $

8,725

534037 $

2,543 $

1,774 $

4,317

123441 $

1,007 $

650 $

1,657

510728 $

27,865 $

24,080 $

51,945

161250 $

8,189 $

3,878 $

12,067

166984 $

0$

0$

0

124567 $

2,289 $

554 $

2,843

530642 $

192 $

87 $

279

535159 $

282 $

56 $

338

124609 $

57,693 $

41,195 $

98,889

172571 $

18,044 $

1,858 $

19,902

171050 $

553 $

242 $

796

168344 $

9,243 $

6,335 $

15,578

163087 $

104,360 $

19,999 $

124,360

170734 $

81,290 $

17,687 $

98,977

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

31,204 $

10,943 $

42,148

$

1,475 $

988 $

2,463

$

2,655 $

1,647 $

4,302

$

58,557 $

10,358 $

68,914

$

1,549 $

1,497 $

3,046

$

4$

2$

7

$

31,781 $

3,448 $

35,229

$

89,865 $

11,832 $

101,697

$

1,350 $

936 $

2,286

$

2$

1$

3

$

3$

1$

4

$

37,295 $

5,051 $

42,346

$

524 $

222 $

746

$

2,331 $

1,824 $

4,155

$

14,138 $

891 $

15,029

$

-$

-$

-

$

-$

-$

-

$

742 $

607 $

1,349

$

587 $

513 $

1,100

$

73,966 $

59,566 $

133,531

$

3,340 $

3,012 $

6,351

$

12,874 $

6,850 $

19,724

$

-$

-$

-

$

15,934 $

4,497 $

20,430

$

-$

-$

-

$

26,829 $

9,216 $

36,045

$

0$

0$

0

$

-$

-$

-

$

13,856 $

9,865 $

23,721

$

(0) $

-$

(0)

$

2,438 $

1,139 $

3,577

$

1,219 $

543 $

1,762

$

150 $

116 $

265

$

-$

-$

-

$

39,028 $

8,890 $

47,918

$

3,137 $

1,669 $

4,806

$

3$

0$

4

$

13,170 $

5,415 $

18,585

$

3$

1$

4

$

638 $

251 $

889

$

177,268 $

33,732 $

210,999

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses4M6 oefm10b2ePrsageID #: 5256

Employee Name (1)
JONES, JASON S JONES, WALTER B JUDGE, MICHAEL J KARA JR, FRANK J KARPATHIOS, KONSTANTINOS A KEALY, JOHN T KEATING, CHARLES J KELLY, JEFFREY KENERSON, JOSEPH W KING, JOANN KIRK,CHARLES B KLAWANS, ROBERT KLEIN, GEORGE G KLUMP, GERALD D KORONOWSKI,JOSEPH M KOZELL, RONALD STEVEN KROUTH, ALFRED A KSZANAK, AARON J KUCSERA,ALVIN G KUHLMAN, DONALD A KUKLA, LAWRENCE M KWASIGROCH, ANDREW JAMES LA RUSSA,PHILIP ANTHONY LABOY, STEPHEN LACY,DAVID A LAMANDIA, ANTHONY J LAMORI,FRANCIS KEVIN LAMOUNTAIN, CHRISTOPHER N LANGE, DAVID LARABEE, JOHN O LASHER, RICHARD A LAWSON, JAMIE J LECAROS, CARLOS LEIGH-MANUELL, GARY LENDA, MICHAEL J LENDA,DUANE JOSEPH LESTER, BRIAN K LETOURNEAU, KEITH LEVIN, BRONIS LEVITAN, JEFFREY LEW, RONALD E

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

512017 $

9,281 $

4,992 $

14,273

124732 $

62 $

60 $

122

532663 $

4,218 $

(795) $

3,423

124834 $

74,494 $

49,152 $

123,646

167147 $

2,626 $

1,316 $

3,941

124845 $

39,178 $

29,796 $

68,974

125827 $

5,149 $

4,350 $

9,500

124873 $

14,573 $

14,753 $

29,326

164741 $

17,680 $

10,811 $

28,491

173760 $

772 $

247 $

1,019

124850 $

347 $

272 $

619

535112 $

6,879 $

3,969 $

10,848

164433 $

474 $

320 $

794

173243 $

252 $

62 $

314

125047 $

10,466 $

11,865 $

22,331

173440 $

15,961 $

1,283 $

17,244

126345 $

336 $

318 $

654

162002 $

9,759 $

1,277 $

11,037

125077 $

6,726 $

6,071 $

12,797

511029 $

82,148 $

61,275 $

143,423

125089 $

52,393 $

44,598 $

96,992

105100 $

28,544 $

18,046 $

46,589

161150 $

27,475 $

16,435 $

43,910

163500 $

154 $

86 $

240

122626 $

10,467 $

7,606 $

18,073

122797 $

5,035 $

4,460 $

9,495

121472 $

1,056 $

836 $

1,893

164062 $

28,795 $

20,304 $

49,099

125157 $

38,431 $

4,911 $

43,341

120240 $

747 $

694 $

1,440

125151 $

13,511 $

10,666 $

24,176

121433 $

1,590 $

1,353 $

2,943

171409 $

93 $

36 $

130

125201 $

107,504 $

73,005 $

180,508

128856 $

12,533 $

5,552 $

18,085

125737 $

3,079 $

1,618 $

4,697

125228 $

2,854 $

2,559 $

5,413

167450 $

238 $

138 $

376

535188 $

415 $

535 $

951

517705 $

3,142 $

670 $

3,812

105232 $

36,513 $

5,130 $

41,642

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

5,180 $

506 $

5,686

$

1,101 $

1,075 $

2,176

$

4,426 $

836 $

5,262

$

55 $

51 $

106

$

855 $

410 $

1,265

$

2,522 $

1,925 $

4,447

$

1,040 $

896 $

1,937

$

319 $

294 $

613

$

9$

2$

11

$

-$

-$

-

$

9,181 $

6,285 $

15,466

$

7,332 $

3,947 $

11,279

$

6,003 $

3,893 $

9,896

$

71,016 $

10,414 $

81,430

$

662 $

496 $

1,159

$

9,074 $

698 $

9,771

$

2,113 $

1,961 $

4,073

$

23,832 $

8,541 $

32,373

$

10,599 $

9,754 $

20,353

$

65,820 $

26,912 $

92,732

$

950 $

912 $

1,861

$

3,651 $

2,106 $

5,757

$

37,366 $

16,367 $

53,733

$

4,458 $

2,465 $

6,923

$

74,633 $

36,107 $

110,740

$

2,618 $

2,350 $

4,969

$

51,704 $

39,916 $

91,619

$

427 $

237 $

664

$

85 $

18 $

103

$

-$

-$

-

$

8,830 $

4,963 $

13,792

$

25,293 $

22,512 $

47,805

$

-$

-$

-

$

1,261 $

707 $

1,968

$

61,194 $

20,600 $

81,794

$

9,835 $

2,708 $

12,544

$

12,774 $

11,950 $

24,724

$

-$

-$

-

$

(478) $

-$

(478)

$

1,417 $

303 $

1,720

$

465 $

182 $

647

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses4M7 oefm10b2ePrsageID #: 5257

Employee Name (1)
LEWIS,KEVIN ALAN LINDEN, PETER LISSOW, JOSEPH LIVINGSTON, BRADLEY G LOEBL, THOMAS S LOPEZ, JAMES LOVE, JEFFERY S LUBNIEWSKI, LEONARD J LUCAS, JAMES BERNARD LULEVITCH, JEROME LUTZ, ROBERT ALEXANDER MACDONALD, WILLIAM P MACK, STEPHEN J MADDAGE, JEFFREY R MAHER,ALAN J MAHONEY, JOHN P MAIETTA, CHRISTOPHER MAIOLO, LEON S MAJEWSKI III, JOHN T MALAMUTT, ERIC S. MALDONADO, JOSE (NY) MALESKI, DAVID MALHEIRO, JOSEPH M MALLON, SEAN P MANDAGLIO, ROCCO MARKAJANI, RICHARD J MARTIN, CHRISTOPHER MASCI, MICHAEL D MATHEWS, ALBERT MATTHIAS, JOSHUA MAURO, JOSEPH J MAZEWSKI, GRZEGORZ MCARDELL, JASON MCCANN, CHRISTOPHER J MCCARTY JR, WILLIAM M MCCROSSIN, BRIAN A MCCROSSIN, BRIAN E MCGARGHAN, MICHAEL F MCGRANE, MICHAEL MCNALLY, ROBERT F MCNAMARA, PATRICK H.

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

128509 $

8,370 $

7,162 $

15,532

533245 $

12,881 $

11,797 $

24,678

532466 $

59 $

40 $

99

162342 $

446 $

268 $

714

162087 $

6,043 $

3,708 $

9,751

163799 $

15,814 $

11,657 $

27,471

165124 $

11,681 $

7,562 $

19,243

510748 $

20,572 $

9,435 $

30,008

535906 $

1,095 $

108 $

1,203

125073 $

531 $

518 $

1,050

170200 $

23,794 $

4,682 $

28,476

161936 $

829 $

521 $

1,350

171370 $

1,387 $

524 $

1,912

175049 $

4,374 $

360 $

4,735

125441 $

16,266 $

9,945 $

26,211

120575 $

86,314 $

62,658 $

148,973

535533 $

57,892 $

6,907 $

64,799

123645 $

14 $

14 $

28

174550 $

640 $

167 $

807

166873 $

1,717 $

894 $

2,611

534720 $

13,728 $

5,764 $

19,491

125425 $

1,276 $

1,201 $

2,478

510746 $

5,841 $

5,202 $

11,043

122036 $

1,250 $

1,077 $

2,326

125460 $

6,949 $

5,895 $

12,844

124767 $

1,555 $

1,325 $

2,880

162939 $

2,121 $

6,751 $

8,872

120432 $

12,873 $

12,142 $

25,015

510713 $

48,271 $

38,822 $

87,093

174726 $

4,065 $

982 $

5,047

510940 $

21,199 $

11,836 $

33,034

172538 $

40,681 $

4,369 $

45,050

169179 $

169 $

22 $

191

121237 $

254,366 $

131,114 $

385,479

124061 $

4,800 $

4,314 $

9,114

168301 $

47,472 $

20,781 $

68,253

510805 $

171,824 $

30,186 $

202,010

121333 $

1,409 $

1,342 $

2,752

510888 $

8,969 $

8,220 $

17,189

125640 $

10,836 $

8,953 $

19,789

166862 $

1,797 $

1,229 $

3,026

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

277 $

267 $

544

$

41 $

2$

42

$

-$

-$

-

$

13,318 $

7,144 $

20,463

$

905 $

550 $

1,455

$

-$

-$

-

$

60,566 $

31,686 $

92,252

$

78,592 $

16,276 $

94,867

$

3,698 $

832 $

4,531

$

-$

-$

-

$

2,001 $

937 $

2,938

$

4,166 $

2,491 $

6,656

$

47 $

20 $

66

$

1,767 $

194 $

1,961

$

58 $

20 $

78

$

244 $

233 $

477

$

58,306 $

8,528 $

66,835

$

705 $

691 $

1,396

$

-$

-$

-

$

7,984 $

3,621 $

11,605

$

58,106 $

14,765 $

72,871

$

0$

0$

0

$

-$

-$

-

$

273 $

242 $

515

$

21,234 $

19,366 $

40,600

$

3,360 $

3,116 $

6,476

$

765 $

317 $

1,081

$

502 $

375 $

877

$

21,841 $

5,038 $

26,879

$

4,617 $

646 $

5,264

$

51,584 $

17,496 $

69,080

$

249 $

24 $

273

$

0$

0$

0

$

118,288 $

60,045 $

178,332

$

198 $

193 $

391

$

96,626 $

35,763 $

132,389

$

4,931 $

264 $

5,196

$

-$

-$

-

$

-$

-$

-

$

1,401 $

1,060 $

2,461

$

-$

-$

-

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses4M8 oefm10b2ePrsageID #: 5258

Employee Name (1)
MCNAMARA, PATRICK H. MEDRANO, JAVIER A MEIGEL, JOHN JOSEPH MEISENZAHI, JEREMY MESISCA, MICHAEL S MILLER, GERALD E MILLER, JUSTIN EDWARD MITCHELL, JAMES R MITCHELL, KEITH ROBERT MITCHETTI JR, FRANKLIN M MITTLER, GEORGE MOLCHANOFF, GEORGE M MOLLACH, MADELINE M MORAN, RICHARD ALBERT MOREY, DOUGLAS N MORIN, ERIC D MORRONE,WILLIAM J MOSKAL, WILLIAM ANDREW MULLEN, JASON M MURPHY, TRAVIS R MURRAY,WILLIAM MYERS, GREG R. NADER, RADYS NAHOW, STEVEN NARAD, THOMAS E NELLIST, JASON D NELSON, STEVEN E NEVILLE, WILLIAM A NIGHTINGALE,DANIEL NOTARTOMASO, THOMAS NOWORYTA, JOHN NUNEZ, GEORGE OBERHAUSER JR, DANIEL O'CONNOR, DAVID G OLSZOWKA,ROBERT J ORR, SEAN OSBORNE, JAMES J OSTER, HARRY J OSTREGER, NATHAN OTMAR, JOSEPH M OUTHOUSE, DAVID G

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

167532 $

342 $

229 $

571

172088 $

42,505 $

11,496 $

54,001

171459 $

1$

0$

1

510847 $

186 $

158 $

343

164286 $

13,073 $

1,878 $

14,951

126088 $

7,628 $

5,871 $

13,499

171376 $

63,921 $

8,129 $

72,050

166629 $

2,908 $

533 $

3,441

173632 $

9,692 $

841 $

10,533

175373 $

281 $

39 $

320

125758 $

149,964 $

87,538 $

237,502

122552 $

37,102 $

26,185 $

63,286

123214 $

7,510 $

5,514 $

13,025

172270 $

25,185 $

2,122 $

27,306

172160 $

2,840 $

938 $

3,778

169360 $

39 $

11 $

50

125825 $

64,611 $

34,992 $

99,603

125829 $

73,427 $

30,055 $

103,482

164628 $

11,500 $

7,394 $

18,893

163094 $

1,015 $

722 $

1,737

165992 $

81,029 $

28,062 $

109,091

161262 $

2,542 $

1,592 $

4,134

510927 $

58,560 $

48,054 $

106,614

532451 $

79,195 $

56,415 $

135,611

124851 $

8,365 $

7,168 $

15,533

172401 $

31,213 $

2,894 $

34,107

126027 $

2,980 $

2,622 $

5,603

126042 $

22,150 $

13,892 $

36,042

161991 $

184 $

104 $

288

161592 $

11,128 $

6,311 $

17,438

129521 $

18,938 $

12,025 $

30,963

510830 $

145,366 $

29,879 $

175,245

535807 $

138 $

74 $

212

124249 $

62,188 $

6,304 $

68,492

120135 $

24,429 $

18,248 $

42,677

163397 $

1,632 $

1,006 $

2,637

511217 $

4,984 $

2,278 $

7,262

174513 $

33 $

8$

42

126673 $

222 $

216 $

438

125775 $

128,005 $

84,208 $

212,212

125080 $

12,865 $

11,689 $

24,555

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

-$

-$

-

$

28,612 $

7,436 $

36,048

$

8,957 $

3,675 $

12,632

$

-$

-$

-

$

178,555 $

44,119 $

222,674

$

25,961 $

21,029 $

46,990

$

1,102 $

245 $

1,346

$

97,082 $

21,286 $

118,368

$

44,420 $

6,305 $

50,725

$

1,517 $

91 $

1,608

$

2,042 $

1,258 $

3,300

$

1,705 $

1,353 $

3,058

$

43,050 $

23,143 $

66,193

$

43 $

13 $

56

$

13,622 $

4,533 $

18,154

$

0$

0$

0

$

1,326 $

785 $

2,112

$

17,163 $

13,462 $

30,625

$

26,822 $

17,706 $

44,528

$

-$

-$

-

$

2,145 $

879 $

3,024

$

142 $

92 $

234

$

-$

-$

-

$

228,340 $

67,392 $

295,732

$

35,177 $

31,639 $

66,816

$

2,004 $

211 $

2,214

$

21,132 $

17,353 $

38,485

$

2,655 $

1,328 $

3,983

$

1,162 $

691 $

1,853

$

8,783 $

4,658 $

13,440

$

11,733 $

10,480 $

22,213

$

19,798 $

5,810 $

25,608

$

-$

-$

-

$

39,813 $

7,999 $

47,812

$

1,214 $

939 $

2,153

$

33,648 $

18,555 $

52,203

$

20,002 $

2,384 $

22,386

$

193 $

47 $

240

$

-$

-$

-

$

774 $

510 $

1,284

$

205 $

128 $

333

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses4M9 oefm10b2ePrsageID #: 5259

Employee Name (1)
OWOLABI, RAFIU OYARVIDE, JAIME PADGETT, CORY PADGETT, WILLIAM H PAGAN, CHRISTOPHER M. PALERMO, PAUL G PALMER, RICHARD A PAOLINI,PHILIP A PARKER, BRENT DOUGLAS PARO, DANIEL D PARODY, TERRY J PATTON, RICHARD A PAUL, TIMOTHY JARED PAZMINO, MARIO A PECK, MATTHEW W PEREZ, ARNOLD PEREZ, LEOBARDO PERRY, DENNIS R PESLAK, RICHARD M PETERSEN, HENRY K PHILLIPS, EDWARD J PHILLIPS, JOHN A PIZZUTO, BENJAMIN F PLISKA, EDWARD PLOOF, JOHN S POLLEY, JOHN A POLNAK, JASON R PREMIELEWSKI, SCOTT F PRESIDENT, DENISE B PROCTOR II, RONALD THOMAS PURDY, ALVAN (END DATED) PUSZTAY, BENJAMIN QUIGG, PHILIP E QUIGLEY, PATRICK QUIGLEY, TIMOTHY J QUINN JR, MICHAEL F RAINERI, ANTHONY RAKUS, JAMES A RAMIREZ, LINO RAMOS, ORLANDO RAMOS, ROBERT

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

536041 $

5,145 $

3,417 $

8,562

532478 $

108,741 $

65,765 $

174,506

534179 $

4,529 $

3,128 $

7,657

166844 $

2,772 $

1,746 $

4,518

534055 $

117 $

178 $

294

164267 $

6,967 $

5,226 $

12,193

120140 $

41,941 $

28,437 $

70,378

126902 $

11,200 $

8,751 $

19,951

174295 $

1$

0$

1

123826 $

112,366 $

78,808 $

191,174

163843 $

44,783 $

12,906 $

57,688

510885 $

60,116 $

21,685 $

81,801

175040 $

14,090 $

1,328 $

15,418

128133 $

1,246 $

1,222 $

2,468

161333 $

15,764 $

2,407 $

18,172

519715 $

1,179 $

425 $

1,604

172394 $

10,213 $

1,074 $

11,288

126694 $

137,831 $

66,204 $

204,035

120267 $

150,509 $

94,703 $

245,212

165665 $

4,699 $

3,543 $

8,242

511058 $

6,089 $

5,579 $

11,668

533464 $

1,366 $

694 $

2,060

162963 $

92,309 $

27,116 $

119,425

171375 $

9,191 $

361 $

9,552

125452 $

43,594 $

23,058 $

66,652

121463 $

64,160 $

37,408 $

101,568

168507 $

13,000 $

1,933 $

14,934

164513 $

1,970 $

1,332 $

3,302

168804 $

3,205 $

1,084 $

4,290

174533 $

3,054 $

436 $

3,490

161499 $

2,878 $

1,598 $

4,476

162414 $

23,941 $

2,498 $

26,439

172833 $

423 $

137 $

561

533825 $

1,768 $

1,272 $

3,040

168238 $

1,847 $

1,058 $

2,905

125697 $

181 $

164 $

345

128165 $

56,319 $

51,137 $

107,456

511177 $

40,541 $

29,855 $

70,396

127330 $

1,571 $

1,220 $

2,791

531085 $

6,144 $

5,255 $

11,400

510963 $

80,270 $

65,697 $

145,967

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

23 $

2$

25

$

316,217 $

59,877 $

376,094

$

-$

-$

-

$

78,707 $

33,384 $

112,092

$

-$

-$

-

$

1,882 $

1,334 $

3,216

$

4,108 $

2,793 $

6,902

$

67,707 $

28,508 $

96,215

$

409 $

103 $

512

$

2,486 $

2,052 $

4,538

$

30,520 $

6,067 $

36,587

$

6,162 $

1,473 $

7,635

$

1,605 $

210 $

1,815

$

-$

-$

-

$

14,958 $

7,182 $

22,140

$

13 $

5$

18

$

20,445 $

2,150 $

22,595

$

8,214 $

3,290 $

11,504

$

471 $

294 $

765

$

-$

-$

-

$

-$

-$

-

$

1$

0$

1

$

170 $

59 $

229

$

1,815 $

326 $

2,141

$

127 $

36 $

163

$

25,209 $

10,155 $

35,364

$

73,349 $

26,543 $

99,892

$

12,356 $

5,380 $

17,736

$

178,440 $

43,394 $

221,833

$

71,476 $

7,188 $

78,664

$

-$

-$

-

$

44,422 $

10,047 $

54,469

$

12,551 $

4,375 $

16,926

$

-$

-$

-

$

62,561 $

28,821 $

91,382

$

59 $

53 $

112

$

1,378 $

819 $

2,197

$

47,597 $

7,563 $

55,160

$

804 $

454 $

1,258

$

-$

-$

-

$

21,148 $

3,466 $

24,614

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses5M0 oefm10b2ePrsageID #: 5260

Employee Name (1)
RAMSARAN, BEEJAY RAUBER, JEFFREY T REAVIS JR, RUDOLPH W REGGIO, MICHAEL ANTHONY REICHARDT, MARK E REILLY, MICHAEL REMLEY, FLOYD GARY REOME, MICHAEL GILBERT REYNOLDS, AARON PATRICK RICHARDSON, ANTHONY T RITTENHOUSE, KRIS THOMAS RIVENBURG, GUY RIVERA, JOSE ROCKWELL, DUANE N RODRIGUEZ, FRANK (143) ROMAN, JAIME ROMER, WAYNE A ROUTENBERG, EVAN ROWE, MICHAEL JAMES RUBINO, JOSEPH RUBINO, THOMAS A RUDOLPH,STEVEN W RUSSELL, FREDERICK A RUSSELL, KENT M RYAN, LAWRENCE V SAHMEL, EVAN WILLIAM SALVO, MARIO SAMMIS, MARK SANCHEZ, EUGENE SANTMYER, MARTIN SANTOO, RAMPERSAUD R SATAS, WAYNE A SCALISI, THOMAS SCHATZEL, ALCUIN A SCHWEIKLE, ARNE G SCIACCA, CARMEN F SCOFIELD, HOWARD D SEILER, THOMAS W SERAFIN, RANDY SESSLER, NATHAN A SHAW, ROBERT K.

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

510850 $

13,324 $

15,859 $

29,183

127906 $

15,897 $

11,717 $

27,613

123213 $

2,768 $

2,676 $

5,444

175229 $

2,145 $

165 $

2,310

127388 $

43,381 $

24,268 $

67,648

511110 $

96,720 $

41,011 $

137,731

167228 $

406 $

144 $

550

127705 $

65,546 $

26,748 $

92,295

175303 $

9,385 $

747 $

10,132

174542 $

457 $

(405) $

52

170675 $

1,305 $

(33) $

1,272

172465 $

57 $

20 $

76

169941 $

8,810 $

5,603 $

14,413

172980 $

587 $

59 $

645

531329 $

37,196 $

23,120 $

60,315

510709 $

5,885 $

1,688 $

7,573

128393 $

15,428 $

12,573 $

28,001

129405 $

1,341 $

1,126 $

2,467

170602 $

935 $

418 $

1,353

127608 $

66 $

60 $

126

532657 $

33 $

2$

35

127610 $

11,544 $

7,048 $

18,592

127624 $

25,091 $

13,513 $

38,605

127627 $

599 $

585 $

1,184

127652 $

13,348 $

11,621 $

24,969

171124 $

2,360 $

125 $

2,484

127692 $

4,376 $

4,099 $

8,475

172943 $

169 $

60 $

229

534312 $

101 $

69 $

170

164208 $

414 $

331 $

745

121634 $

49,869 $

41,809 $

91,679

171096 $

70 $

30 $

101

163550 $

723 $

396 $

1,120

127735 $

1,954 $

1,867 $

3,821

172642 $

327 $

119 $

447

125871 $

1,041 $

791 $

1,832

510914 $

62,173 $

39,063 $

101,236

519780 $

97,347 $

13,002 $

110,350

127817 $

118 $

115 $

233

162459 $

180 $

(32) $

148

163008 $

102 $

63 $

165

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

(0) $

-$

(0)

$

23 $

10 $

33

$

88 $

86 $

173

$

14,520 $

1,225 $

15,745

$

85 $

51 $

136

$

103,445 $

26,584 $

130,029

$

16,065 $

6,186 $

22,251

$

80,745 $

32,188 $

112,933

$

0$

0$

0

$

0$

0$

0

$

39,948 $

8,196 $

48,144

$

51,008 $

14,250 $

65,258

$

-$

-$

-

$

61,046 $

10,487 $

71,534

$

428 $

127 $

555

$

61,210 $

9,513 $

70,723

$

15,501 $

13,618 $

29,119

$

2,537 $

2,111 $

4,648

$

3,479 $

1,540 $

5,019

$

21 $

18 $

40

$

3,450 $

884 $

4,334

$

252 $

151 $

403

$

13,409 $

5,686 $

19,095

$

59 $

57 $

116

$

106 $

91 $

197

$

42,719 $

6,757 $

49,476

$

-$

-$

-

$

-$

-$

-

$

2,320 $

1,228 $

3,548

$

274 $

214 $

488

$

1,431 $

1,276 $

2,708

$

23,020 $

9,830 $

32,850

$

13,779 $

5,889 $

19,667

$

496 $

114 $

610

$

4,275 $

1,572 $

5,847

$

5,871 $

4,610 $

10,481

$

3$

1$

3

$

17,190 $

2,713 $

19,903

$

-$

-$

-

$

182 $

11 $

193

$

238 $

146 $

384

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses5M1 oefm10b2ePrsageID #: 5261

Employee Name (1)
SHEMBEDA, JOSEPH C SHERRY, SAMUEL J SHERRY, STANLEY SHUMAN, GREGORY S SIGLER, DANIEL SKIBITSKI JR, JOHN F SLATTERY, GEORGE MATTHEW SLINGERLAND JR, BRIAN A SMITH, BENJAMIN M SMITH, ROGELIO SMITH,JONNY M SOCHA, MARTIN SOLT III, WILLIAM R SORVILLO, EDWARD M SPRINGS, JASON STACEY, ROBIN (END DATED) STACHNIUK, HENRY STALLONE, PAUL D STASKO, JOSEPH STICKNEY, WILLIAM O STRAIN, MARK F STRANKO, THOMAS E STUPKA, CHRISTOPHER SULLIVAN, DENNIS SUTHERLAND, JAMES R SVENSEN, KURT KYLE SWACKHAMER,GARY R SWATSKI,ROBERT VICTOR TAFEL, EDWARD CHRIS TARBELL, MICHAEL W TARDIFF, DOUGLAS J TAVORMINA, ANTHONY G TESTER, ANTHONY M TETLEY, GARY C THOMAS, FRANK TOBLER, GREGORY TOLLIS, DAVID J TORRES, ELIEZER TORRES, JOSEPH WILLIAM TORSTRUP, DAWN TORSTRUP, PETER

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

125892 $

306 $

271 $

577

172157 $

11,344 $

1,689 $

13,033

171839 $

2,673 $

1,024 $

3,697

164467 $

2,575 $

2,095 $

4,671

127895 $

35,863 $

19,133 $

54,995

123285 $

10,273 $

9,591 $

19,864

171273 $

10,804 $

388 $

11,193

163923 $

12,487 $

8,847 $

21,334

531407 $

29,410 $

20,232 $

49,642

510759 $

76,439 $

64,231 $

140,670

166958 $

260 $

10 $

270

174659 $

6,926 $

1,285 $

8,211

126104 $

6,751 $

6,189 $

12,940

532452 $

3,021 $

6,845 $

9,866

164385 $

1,013 $

802 $

1,815

128094 $

30,340 $

26,825 $

57,165

511092 $

45,970 $

39,860 $

85,830

128530 $

56,600 $

43,730 $

100,330

175729 $

2,487 $

145 $

2,632

128150 $

43,487 $

29,225 $

72,712

172572 $

28,092 $

9,423 $

37,515

170103 $

1,520 $

778 $

2,297

531642 $

750 $

310 $

1,060

535833 $

828 $

449 $

1,277

128226 $

1$

1$

2

163391 $

2,432 $

1,229 $

3,661

125899 $

2,331 $

2,386 $

4,717

128249 $

38,599 $

29,736 $

68,335

128312 $

7,357 $

6,382 $

13,739

129817 $

55,301 $

31,821 $

87,122

511258 $

11,153 $

2,932 $

14,085

173558 $

8,597 $

1,567 $

10,164

519751 $

3,708 $

3,104 $

6,812

511120 $

146,220 $

26,868 $

173,088

535107 $

22,724 $

7,103 $

29,827

161398 $

32,563 $

19,777 $

52,340

128495 $

10,294 $

9,516 $

19,810

511053 $

94,114 $

36,704 $

130,819

171867 $

18,546 $

3,909 $

22,455

511201 $

1$

0$

1

533824 $

42,362 $

18,392 $

60,753

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

38 $

33 $

71

$

60,296 $

14,379 $

74,675

$

686 $

269 $

955

$

42 $

34 $

77

$

460 $

74 $

534

$

3,614 $

3,297 $

6,911

$

2,751 $

333 $

3,084

$

24,009 $

16,442 $

40,450

$

368 $

89 $

457

$

63,591 $

7,864 $

71,455

$

0$

0$

0

$

4,811 $

895 $

5,705

$

1,184 $

1,080 $

2,264

$

4,297 $

(391) $

3,906

$

834 $

669 $

1,502

$

107 $

93 $

200

$

25,629 $

2,730 $

28,359

$

2,175 $

1,355 $

3,530

$

3,108 $

177 $

3,285

$

1,527 $

1,197 $

2,724

$

124,950 $

37,379 $

162,329

$

2,886 $

1,467 $

4,354

$

330 $

130 $

460

$

-$

-$

-

$

-$

-$

-

$

2$

1$

2

$

283 $

201 $

484

$

451 $

384 $

835

$

2,775 $

2,464 $

5,240

$

5,422 $

1,800 $

7,222

$

2,612 $

734 $

3,346

$

76,809 $

10,570 $

87,379

$

-$

-$

-

$

11,253 $

1,494 $

12,747

$

15,400 $

1,541 $

16,941

$

1$

0$

1

$

-$

-$

-

$

22,909 $

3,345 $

26,254

$

128,599 $

24,614 $

153,213

$

4,184 $

1,586 $

5,770

$

104,035 $

27,036 $

131,072

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses5M2 oefm10b2ePrsageID #: 5262

Employee Name (1)
TROMBLEY, JAMES P TROMBLY,RONALD W TRUTOR, JOSHUA M TULLY, MICHAEL L TURNER, DEREK W VACCARO, DANIEL J VALENTINE III, JOSEPH VAN LEUVAN, JAMES WILLIAM VANFOSSEN, JACK EARL VARGAS, JAVIER N VASQUEZ, EDWIN VASQUEZ, JAVIER VELASQUEZ, ANTONIO VELASQUEZ, CHRISTOPHER VINCENT, RICHARD VIOLANO, JOSEPH R VIRA, ANDREJ WAKELEE, KENT W WALSH, BRIAN WALTON, WILLIAM R WARD, BRIAN M WARD, MICHAEL J WARREN, JOSEPH G WARREN, STANLEY T WECH, DENNIS WEIGEL, ROBERT G WELTON, CHARLES A WHITE, STEVEN C WHITMAN, JOHN J WICAI, NEIL R WILDER, BRADFORD WILISHEFSKI, JASON E WILLIAMS, DIXON T WILLIAMS, ROBERT WILLSEY, BUDDY W (END DATED) WILSON, VERONICA WNENTA, DANIEL WOLCOTT, STEVEN D WRAY, ANDY WRAY, RANDY YATES, JEFFREY A

All Except T&I (Exclud. FA for NYC)

Damages +

Employee ID# Damages

Interest

Interest

(2)

(3)

(4)

(5)

173344 $

1,727 $

217 $

1,944

128536 $

36 $

26 $

62

165363 $

3,180 $

2,378 $

5,558

168038 $

3,739 $

619 $

4,358

128617 $

4,559 $

1,914 $

6,473

125155 $

33,502 $

18,090 $

51,592

510972 $

115 $

59 $

174

170388 $

111 $

39 $

150

122420 $

43,987 $

28,283 $

72,269

511185 $

10,794 $

8,222 $

19,016

172468 $

9$

3$

12

170823 $

3,776 $

(2,286) $

1,490

519779 $

98,826 $

80,060 $

178,886

510757 $

8,574 $

7,806 $

16,380

164037 $

63,365 $

41,503 $

104,868

163917 $

202 $

122 $

324

530992 $

4,034 $

3,499 $

7,533

165651 $

705 $

307 $

1,012

173555 $

1,134 $

160 $

1,294

129213 $

504 $

329 $

833

167917 $

12,355 $

7,818 $

20,173

162693 $

749 $

455 $

1,205

530937 $

32,106 $

26,848 $

58,954

129236 $

66,038 $

37,470 $

103,508

174289 $

20,241 $

1,615 $

21,856

129278 $

40,388 $

20,613 $

61,001

162396 $

3,505 $

1,812 $

5,317

163294 $

116 $

87 $

202

166144 $

4,848 $

3,314 $

8,162

167668 $

1,322 $

701 $

2,023

174597 $

36,548 $

4,411 $

40,960

172123 $

21,176 $

4,414 $

25,590

129416 $

45,689 $

18,483 $

64,172

161804 $

23,198 $

6,544 $

29,742

166280 $

14,728 $

8,550 $

23,278

173049 $

21 $

4$

26

129501 $

133,215 $

64,929 $

198,144

175448 $

2,045 $

146 $

2,191

510782 $

23,560 $

20,719 $

44,279

531051 $

29,610 $

24,268 $

53,878

127061 $

55,771 $

14,872 $

70,643

T&I (Exclud. FA for NYC)

Damages +

Damages

Interest

Interest

(6)

(7)

(8)

$

6,932 $

848 $

7,780

$

-$

-$

-

$

1,705 $

1,057 $

2,762

$

59,733 $

15,501 $

75,234

$

246,560 $

95,072 $

341,633

$

14,333 $

8,916 $

23,248

$

18,080 $

4,566 $

22,647

$

-$

-$

-

$

17,859 $

12,275 $

30,134

$

1,130 $

165 $

1,295

$

2,057 $

786 $

2,842

$

117,670 $

18,393 $

136,062

$

16,615 $

3,740 $

20,355

$

3,943 $

1,343 $

5,286

$

2,993 $

701 $

3,695

$

7,397 $

3,982 $

11,379

$

-$

-$

-

$

34,702 $

11,099 $

45,801

$

12,668 $

1,675 $

14,344

$

(25) $

-$

(25)

$

10,517 $

6,220 $

16,737

$

18,815 $

10,733 $

29,548

$

9$

2$

11

$

19,574 $

7,671 $

27,245

$

9,576 $

1,889 $

11,465

$

1,195 $

626 $

1,821

$

6,029 $

2,942 $

8,970

$

217 $

165 $

381

$

1,634 $

1,162 $

2,796

$

62 $

33 $

95

$

20 $

4$

24

$

40,962 $

6,043 $

47,005

$

20,759 $

4,585 $

25,344

$

49,617 $

11,380 $

60,997

$

7,652 $

4,528 $

12,180

$

-$

-$

-

$

2,685 $

1,820 $

4,505

$

23,807 $

1,668 $

25,475

$

92 $

18 $

110

$

3,529 $

1,641 $

5,171

$

24,355 $

8,111 $

32,467

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses5M3 oefm10b2ePrsageID #: 5263

Employee Name (1)
ZIMMERMAN, CURT B ZOLDOS, SCOTT ANDREW ZUARINO, MICHAEL BERNARD ZUKOWSKI, DARIN ADDIS, RONALD L AGBAN, AGBAN ALFANO, KEVIN BAILEY, PHILIP G BARNETT, GERHARD G BARRETT, JOHN BEGAZO, JOSE BENNEKAA, NACIM BERENGER, JAMIE L. BETZ, KEITH JOHN BLACK, ROBERT BLACKWELL, WILLIAM BRITT, LOWELL BUENANO, JUAN CARLOS BUERKLE, ROBERT BUSTAMANTE, CARLOS CAILLIER, TIM CARBONE, MICHAEL CARDIO, ROBERT CARRASQUILLO, WILFREDO CHMIEL, DAVID CLOTHIER, THOMAS RUSSELL CONERTY,RYAN J. CONTRADA, JAMES FREDERICK COOK, MARK CRANE, BRUCE H CROSSMAN, PRESTON M CROSSMAN, STANLEY A CUDDON, TUBAL DAVIES, RICHARD G DELSANTO, MICHAEL N DEVENUTO III, ARKIE DOLCI, RAYMOND DOVE JR, JOHN E DREW, MICHAEL DRUGAN, JAMES J DUCHESNEAU, DOUGLAS P

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

511127 $

2,662 $

2,153 $

4,815 $

99,663 $

30,086 $

129,749

174868 $

2,522 $

165 $

2,686 $

0$

0$

0

173389 $

10,052 $

1,682 $

11,734 $

69,413 $

6,861 $

76,274

124808 $

39,867 $

38,185 $

78,053 $

11,867 $

11,309 $

23,176

511581 $

-$

-$

-$

-$

-$

-

533169 $

(1,318) $

-$

(1,318) $

(22) $

-$

(22)

535242 $

(18,612) $

-$

(18,612) $

1$

0$

1

120762 $

(822) $

-$

(822) $

(71) $

-$

(71)

174833 $

(109) $

-$

(109) $

-$

-$

-

172269 $

(3,328) $

-$

(3,328) $

-$

-$

-

175657 $

(3,330) $

-$

(3,330) $

16,603 $

995 $

17,598

534781 $

(1,062) $

-$

(1,062) $

59,510 $

7,265 $

66,776

166624 $

(8,237) $

-$

(8,237) $

12,009 $

6,853 $

18,862

172994 $

(12,120) $

-$

(12,120) $

4,326 $

933 $

5,259

510988 $

(98,436) $

-$

(98,436) $

(0) $

-$

(0)

535584 $

(47,428) $

-$

(47,428) $

-$

-$

-

535583 $

(50,287) $

-$

(50,287) $

-$

-$

-

172858 $

(5,580) $

-$

(5,580) $

-$

-$

-

171037 $

(3,121) $

-$

(3,121) $

-$

-$

-

121191 $

(308) $

-$

(308) $

11,512 $

875 $

12,387

171194 $

(2,252) $

-$

(2,252) $

-$

-$

-

510862 $

(32,781) $

-$

(32,781) $

-$

-$

-

510806 $

(45,054) $

-$

(45,054) $

-$

-$

-

535172 $

(3,704) $

-$

(3,704) $

(629) $

-$

(629)

174938 $

(2,367) $

-$

(2,367) $

0$

0$

0

174157 $

(2,687) $

-$

(2,687) $

-$

-$

-

167517 $

(231) $

-$

(231) $

1,046 $

671 $

1,717

167004 $

(2,266) $

-$

(2,266) $

272,487 $

43,422 $

315,909

171577 $

(195) $

-$

(195) $

-$

-$

-

121609 $

(3,912) $

-$

(3,912) $

13 $

(22) $

(9)

533400 $

(31,144) $

-$

(31,144) $

1$

0$

1

169272 $

(10,491) $

-$

(10,491) $

-$

-$

-

534116 $

(233) $

-$

(233) $

24,269 $

3,443 $

27,713

510899 $

(1,686) $

-$

(1,686) $

6$

3$

9

121793 $

(2,714) $

-$

(2,714) $

120 $

58 $

179

173853 $

-$

-$

-$

8,805 $

2,516 $

11,321

530368 $

-$

-$

-$

-$

-$

-

170526 $

(7,978) $

-$

(7,978) $

(0) $

-$

(0)

175714 $

(284) $

-$

(284) $

319 $

20 $

339

510945 $

(3,083) $

-$

(3,083) $

-$

-$

-

510242 $

(2,517) $

-$

(2,517) $

-$

-$

-

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses5M4 oefm10b2ePrsageID #: 5264

Employee Name (1)
ENIDES, STEVEN FARR, GARY F FEHER, JOHN FELLO, RICHARD MICHAEL FERMIN, FRANCISCO A FERRER, HARRY FILIPPOV, ALEXEY FRANCESE, JASON FUQUA, GERARD A GARDNER JR, GERALD S GEBHARD, BRYON GIACOBBI, ROBERT VERNON GILLEO, MICHAEL C GIORDANO, MATTHEW GIORDANO, PAUL N GIORDANO, THEODORE GOEDECKE, JOHN D GUESNO, ARNOLD HAMBLIN, GLEN E HEALY, SEAN HENRY, ROBERT J HICKS, TIMOTHY ROGER HOAR, THOMAS HOLGUIN, MIGUEL A. HOSLER, ROBERT M JOHNSEN, CLIFFORD W JOHNSON, ANTHONY (143) JOHNSON, DALE JOHNSON, ERIC M KAUCHER, KURT C KAUCHER, KYLE KAUFMAN, MARK KEEVER, WAYNE S KELLY, BRIAN SCOTT KENNAN, DENNIS KIBBLE, JOHN T. KIMMEL, JASON LEE KOHL, DALE KRAFT, CHRIS KRAFT, GEORGE O KRYSTYNIAK, DANIEL P

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

510901 $

(323) $

-$

(323) $

-$

-$

-

511000 $

(1,839) $

-$

(1,839) $

3$

1$

4

174915 $

(6,033) $

-$

(6,033) $

47,680 $

5,155 $

52,835

170062 $

-$

-$

-$

-$

-$

-

175308 $

(32) $

-$

(32) $

-$

-$

-

171805 $

(4,620) $

-$

(4,620) $

27,243 $

3,784 $

31,027

176005 $

(68) $

-$

(68) $

1,197 $

64 $

1,262

170395 $

-$

-$

-$

-$

-$

-

510736 $

(20,027) $

-$

(20,027) $

-$

-$

-

510890 $

(0) $

-$

(0) $

10,192 $

4,362 $

14,554

166492 $

(1,089) $

-$

(1,089) $

88 $

40 $

128

171919 $

-$

-$

-$

1,936 $

779 $

2,715

510896 $

(3,170) $

-$

(3,170) $

-$

-$

-

535005 $

(27,599) $

-$

(27,599) $

12,053 $

4,883 $

16,936

511118 $

-$

-$

-$

-$

-$

-

534445 $

(1,530) $

-$

(1,530) $

0$

0$

0

166058 $

(1,219) $

-$

(1,219) $

81,765 $

17,764 $

99,529

533695 $

(18,061) $

-$

(18,061) $

-$

-$

-

510976 $

(13,824) $

-$

(13,824) $

-$

-$

-

531883 $

(40,924) $

-$

(40,924) $

-$

-$

-

511026 $

(6,661) $

-$

(6,661) $

75 $

31 $

106

173903 $

(16,794) $

-$

(16,794) $

4$

0$

4

511122 $

(32,755) $

-$

(32,755) $

-$

-$

-

163714 $

(3,181) $

-$

(3,181) $

0$

0$

0

511056 $

(275) $

-$

(275) $

-$

-$

-

173277 $

(8,352) $

-$

(8,352) $

0$

0$

0

173663 $

(2,785) $

-$

(2,785) $

22 $

3$

26

175011 $

(891) $

-$

(891) $

1,793 $

308 $

2,102

510739 $

-$

-$

-$

5,844 $

390 $

6,234

511072 $

(176) $

-$

(176) $

-$

-$

-

169367 $

(3,801) $

-$

(3,801) $

707 $

300 $

1,007

170494 $

(24,430) $

-$

(24,430) $

-$

-$

-

535536 $

(2,312) $

-$

(2,312) $

-$

-$

-

170407 $

(7,323) $

-$

(7,323) $

3$

1$

4

172429 $

(640) $

-$

(640) $

-$

-$

-

533879 $

(5,567) $

-$

(5,567) $

-$

-$

-

173627 $

(12,411) $

-$

(12,411) $

198 $

48 $

246

166533 $

(19,799) $

-$

(19,799) $

-$

-$

-

510797 $

(37,205) $

-$

(37,205) $

-$

-$

-

510966 $

(43,886) $

-$

(43,886) $

-$

-$

-

173002 $

-$

-$

-$

422 $

146 $

568

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses5M5 oefm10b2ePrsageID #: 5265

Employee Name (1)
KUDELSKI, ROBERT STANLEY LAM, TOAN LANCLOS, JOHN M LARSON, DENNIS E LEGG, RICKY D LENZ, STEPHEN M LOEFFEL, KEVIN J LOTZ, JOHN J LOWRY, PAUL LYNCH, DANIEL A MALDONADO, THOMAS H MANNING, STEVEN M MARRONE, ROBERT MASON, RICHARD EDWARD MCARTHUR, THOMAS C MCDEVITT, DENIS MCGOWAN, SEAN THOMAS MCNAMARA, MARIE MENTZ, ROBERT MESEROLE, JON R MILIAMBRO, TIMOTHY V MOORES, KENNETH S MORALES, DAVID MORGAN, SCOTT DAVID MORRILL JR, MARK ALONZO MORRISSEY, DAVID J MUHAMMAD, ANWAR MUZA, BERNARDO NEDD, SHEVON NICHOLS, JOSHUA P O'BRIAN, CHRISTOPHER C OSMAN, MICHAEL E OVER, BRIAN LEROY PALMER, JOHN T PAPAY, DAVID PARRINELLO, VITO PARRY, CHRISTOPHER J PASCAL, MICHAEL LOUIS PEREZ, TINA PEREZIC, ENVER POLLARD, PATRICK

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

171012 $

(573) $

-$

(573) $

2$

1$

2

533892 $

(11,799) $

-$

(11,799) $

0$

0$

1

175411 $

(72) $

-$

(72) $

38 $

3$

40

161712 $

(30,453) $

-$

(30,453) $

-$

-$

-

512225 $

(13,319) $

-$

(13,319) $

-$

-$

-

511094 $

-$

-$

-$

-$

-$

-

174770 $

-$

-$

-$

-$

-$

-

511043 $

(54,154) $

-$

(54,154) $

-$

-$

-

532739 $

(38,029) $

-$

(38,029) $

0$

0$

0

165468 $

-$

-$

-$

12,232 $

6,601 $

18,834

171148 $

(18,165) $

-$

(18,165) $

-$

-$

-

125436 $

-$

-$

-$

40 $

39 $

80

519782 $

-$

-$

-$

-$

-$

-

171099 $

(31,890) $

-$

(31,890) $

3$

1$

4

125285 $

139 $

(242) $

(103) $

677 $

85 $

761

534947 $

(5,240) $

-$

(5,240) $

-$

-$

-

172201 $

(6,559) $

-$

(6,559) $

19,940 $

3,178 $

23,117

166997 $

-$

-$

-$

13,216 $

6,597 $

19,813

533694 $

(49,482) $

-$

(49,482) $

-$

-$

-

510717 $

(241) $

-$

(241) $

5,689 $

586 $

6,275

167613 $

-$

-$

-$

6,198 $

2,824 $

9,022

160076 $

(529) $

-$

(529) $

-$

-$

-

171193 $

(1,200) $

-$

(1,200) $

-$

-$

-

170120 $

(6,902) $

-$

(6,902) $

14,700 $

5,211 $

19,911

535727 $

(339) $

-$

(339) $

4,349 $

215 $

4,564

510959 $

(22,291) $

-$

(22,291) $

-$

-$

-

171171 $

(111) $

-$

(111) $

-$

-$

-

536012 $

(23,369) $

-$

(23,369) $

-$

-$

-

534770 $

(3,173) $

-$

(3,173) $

-$

-$

-

166355 $

-$

-$

-$

24,461 $

12,483 $

36,944

164596 $

-$

-$

-$

231 $

188 $

419

172392 $

-$

-$

-$

-$

-$

-

170567 $

(992) $

-$

(992) $

0$

0$

0

170493 $

(21,661) $

-$

(21,661) $

-$

-$

-

122112 $

(17) $

-$

(17) $

(4) $

-$

(4)

511075 $

(21,326) $

-$

(21,326) $

-$

-$

-

532722 $

(39,099) $

-$

(39,099) $

-$

-$

-

171468 $

-$

-$

-$

13,565 $

1,248 $

14,813

534311 $

(154) $

-$

(154) $

4,214 $

1,535 $

5,748

531086 $

(1,640) $

-$

(1,640) $

(4) $

-$

(4)

171336 $

(2,354) $

-$

(2,354) $

-$

-$

-

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses5M6 oefm10b2ePrsageID #: 5266

Employee Name (1)
PORTILLA, MANUEL EFRAIN PUGLISI, CHRISTOPHER C RAINEY, ANTHONY D RAPP, KENNETH MICHAEL REFVIK, EVAN REILLY, TIMOTHY J RELYEA, PAUL J ROMANO, ANTHONY ROWAN, TRICIA RUEDIN, THEODORE M RUSSELL, ROBERT SARKIS, SAMIR SCHIAVO, JOHN SCHUMAN, EDWARD SELENCHIK, STEPHEN SKINNER, JEREMY W SMOLENSKY, RONALD PAUL SPAGONE, ALEXANDER SPRANDEL, JAMES STASYS JR, JOSEPH STONE,LESLIE REBECCA THAYER, CHRISTOPHER THOBY, ADAM S THOMPSON, ROBERT C. TRAPANI, MARC TRAVER, PATRICA ANN TREMBLAY, MATTHEW A TURK, BRYAN D UNKNOWN VAZQUEZ, LUIS VINING, SEAN VOGEL, RICHARD WALKER, MICHAEL WEBER, JODY VERNON WERNER, ANDREW KENNETH WEYAND, ANDREW DONALD WHITAKER, RICHARD WIBREW, FRANCIS W WROBLEWSKI, DAVID E ZIMERER, BRENO ZIMLINGHAUS, JOSHUA EDWARD

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

171031 $

(5,450) $

-$

(5,450) $

553 $

33 $

586

536080 $

(19,727) $

-$

(19,727) $

3,478 $

284 $

3,762

510913 $

(21,795) $

-$

(21,795) $

63 $

24 $

87

535763 $

(7,864) $

-$

(7,864) $

58 $

12 $

70

173,141 $

(1,750) $

-$

(1,750) $

-$

-$

-

510883 $

(6,496) $

-$

(6,496) $

107 $

19 $

127

173478 $

(7,431) $

-$

(7,431) $

(0) $

-$

(0)

510906 $

(3,018) $

-$

(3,018) $

0$

0$

0

172516 $

0$

(1) $

(1) $

-$

-$

-

168115 $

(972) $

-$

(972) $

11,373 $

4,531 $

15,904

175262 $

(501) $

-$

(501) $

(0) $

-$

(0)

534854 $

(7,738) $

-$

(7,738) $

37,377 $

7,506 $

44,883

173048 $

(490) $

-$

(490) $

-$

-$

-

127749 $

-$

-$

-$

1$

1$

3

511528 $

(15) $

-$

(15) $

-$

-$

-

511076 $

(5,372) $

-$

(5,372) $

-$

-$

-

170263 $

(7,872) $

-$

(7,872) $

0$

0$

0

534288 $

-$

-$

-$

-$

-$

-

176142 $

-$

-$

-$

-$

-$

-

536013 $

(6,459) $

-$

(6,459) $

-$

-$

-

162705 $

-$

-$

-$

-$

-$

-

168847 $

-$

-$

-$

179 $

144 $

322

511064 $

(10,504) $

-$

(10,504) $

0$

0$

0

534736 $

(1,842) $

-$

(1,842) $

-$

-$

-

510874 $

(179) $

-$

(179) $

67,553 $

16,222 $

83,776

161953 $

-$

-$

-$

-$

-$

-

172676 $

(8,761) $

-$

(8,761) $

357 $

78 $

435

175133 $

(796) $

-$

(796) $

40,780 $

3,851 $

44,631

121676 $

-$

-$

-$

219 $

158 $

377

534056 $

(4,819) $

-$

(4,819) $

128 $

62 $

190

173140 $

(1,750) $

-$

(1,750) $

-$

-$

-

121699 $

(135) $

-$

(135) $

-$

-$

-

171168 $

(71) $

-$

(71) $

-$

-$

-

171736 $

(1,526) $

-$

(1,526) $

2,889 $

455 $

3,344

174260 $

(5,265) $

-$

(5,265) $

0$

0$

0

173977 $

-$

-$

-$

7,608 $

2,246 $

9,854

510950 $

(1,412) $

-$

(1,412) $

5,361 $

1,621 $

6,983

174352 $

(1,627) $

-$

(1,627) $

-$

-$

-

516129 $

(10,825) $

-$

(10,825) $

5,676 $

557 $

6,233

535173 $

(21,629) $

-$

(21,629) $

12,483 $

5,170 $

17,653

534061 $

(6,711) $

-$

(6,711) $

-$

-$

-

Table 2 (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsGanDdocInumteernets1t6D4 uFeilIendd0i9v/i1d4u/1a1l CPlaagses5M7 oefm10b2ePrsageID #: 5267

Employee Name (1)
ZINK, JOHN THOMAS

All Except T&I (Exclud. FA for NYC)

T&I (Exclud. FA for NYC)

Damages +

Damages +

Employee ID# Damages

Interest

Interest

Damages

Interest

Interest

(2)

(3)

(4)

(5)

(6)

(7)

(8)

171825 $

(11,998) $

-$

(11,998) $

0$

0$

0

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo5n8-oTfI1O02nlPya)geID #: 5268

Employee Name (1)
ACCARDI, MARK S ADAMS JR, TIMOTHY M ALFANO JR, JAMES C ALFONSO, DENNIS ALFORD JR, JEFFREY W ALLEN, LIJ ALONZO, JOSE AMSTEIN, MATTHEW J ANDERSON, MICHAEL J ARCHER, MICHAEL A BABCOCK, ROBERT L BACON, STUART BAGATTA, JOSEPH BARDEEN, DAVID K BARNING, WILLIAM A BARRETT, STEVEN CHARLES BARROS, PAUL BATES, KYLE JOSEPH BAUTISTA, ALFREDO A BAXTER, CHARLES A BAYLEY, JASON ALLEN BEAUCHAMP, RAYMOND C BELICKA, MICHAEL BENOIT JR, JAY W BENOIT SR, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, JAY W BENOIT, ROBERT J BIDDULPH-KRENTA, JEFFREY BINGMAN, ROBERT BLACK, WAYNE A BORDASH, JOHN BOSLEY, DENNIS M BOUTILLIER, ROBERT J BOWERS, JOSHUA K BOYD, ORAN BOYLE, JAMES P BRASSEAUX, CHRISTOPHER

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

127644 $

18,701 $

17,264 $

35,964 $

-$

-$

35,964

123375 $

52,712 $

30,294 $

83,006 $

18,179 $

5,595 $

59,233

120250 $

49,441 $

46,657 $

96,098 $

39,313 $ 12,099 $

44,687

128502 $

3,988 $

3,361 $

7,349 $

-$

-$

7,349

165458 $

3,153 $

1,874 $

5,026 $

886 $

273 $

3,868

173171 $

234 $

75 $

309 $

-$

-$

309

510987 $

38,624 $

33,938 $

72,562 $

21,696 $

6,677 $

44,189

128534 $

1,252 $

934 $

2,186 $

-$

-$

2,186

127249 $

175 $

169 $

344 $

-$

-$

344

126703 $

11,570 $

11,069 $

22,639 $

-$

-$

22,639

126412 $

27,542 $

21,031 $

48,573 $

8,029 $

2,471 $

38,073

171410 $

1,742 $

196 $

1,938 $

-$

-$

1,938

120747 $

37,200 $

35,400 $

72,600 $

-$

-$

72,600

120801 $

22,642 $

7,572 $

30,214 $

4,906 $

1,510 $

23,798

161221 $

1,586 $

1,096 $

2,682 $

142 $

44 $

2,497

171049 $

21,600 $

2,535 $

24,134 $

1,676 $

516 $

21,943

530219 $

20,242 $

18,750 $

38,993 $

600 $

185 $

38,209

171097 $

2,058 $

220 $

2,279 $

-$

-$

2,279

171337 $

256 $

106 $

362 $

91 $

28 $

243

511027 $

461 $

412 $

872 $

103 $

32 $

738

172607 $

6,090 $

586 $

6,675 $

-$

-$

6,675

123081 $

61,948 $

49,338 $

111,286 $

7,621 $

2,345 $

101,320

532870 $

115,706 $

87,259 $

202,965 $

15,036 $

4,628 $

183,302

169468 $

41,875 $

18,958 $

60,833 $

13,488 $

4,151 $

43,193

169484 $

17,341 $

11,083 $

28,424 $

12,008 $

3,696 $

12,721

11996 $

287 $

261 $

548 $

-$

-$

548

56 $

199 $

194 $

393 $

-$

-$

393

12120 $

111 $

102 $

213 $

-$

-$

213

510893 $

758 $

674 $

1,432 $

-$

-$

1,432

510803 $

77,135 $

24,812 $

101,946 $

-$

-$

101,946

534961 $

1,190 $

730 $

1,920 $

1,294 $

398 $

228

175219 $

1,182 $

74 $

1,256 $

-$

-$

1,256

510967 $

6,185 $

4,393 $

10,578 $

207 $

64 $

10,308

121014 $

22,147 $

16,851 $

38,997 $

-$

-$

38,997

163726 $

183 $

98 $

281 $

185 $

57 $

39

532948 $

281 $

97 $

378 $

-$

-$

378

128792 $

489 $

418 $

907 $

-$

-$

907

174211 $

69 $

13 $

82 $

-$

-$

82

162898 $

3,329 $

673 $

4,001 $

1,463 $

450 $

2,088

165062 $

10 $

8$

18 $

-$

-$

18

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo5n9-oTfI1O02nlPya)geID #: 5269

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee Name

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

BRIGHAM, JOHN

534244 $

586 $

282 $

868 $

-$

-$

868

BROWN, CHRISTOPHER

122375 $

134 $

112 $

246 $

-$

-$

246

BROWN-TAUROZZI, TODD L

533266 $

99,194 $

70,703 $

169,897 $

17,872 $

5,500 $

146,525

BUCHAKIAN,PETER G

121157 $

178,259 $

54,120 $

232,378 $

9,124 $

2,808 $

220,446

BURGESS, ERIC S

127708 $

12,853 $

12,124 $

24,977 $

-$

-$

24,977

BURKE, RICHARD I

166721 $

19,670 $

7,924 $

27,594 $

5,337 $

1,642 $

20,615

BURKHARTZMEYER,ANDREW

120565 $

60,503 $

35,764 $

96,267 $

3,893 $

1,198 $

91,175

CABRERA, LENIN

174509 $

465 $

10 $

474 $

-$

-$

474

CALDONA, RAFAEL L

511059 $

26,698 $

22,620 $

49,318 $

-$

-$

49,318

CAMPBELL, O'NEIL KINGSLEY (END DA

170090 $

11,346 $

5,586 $

16,932 $

4,879 $

1,502 $

10,551

CANAVAN, ROBERT M

124803 $

10,958 $

9,940 $

20,899 $

12,095 $

3,722 $

5,082

CANCEMI, MICHAEL THOMAS

533646 $

11,352 $

7,143 $

18,494 $

3,562 $

1,096 $

13,836

CAPPIELLO, ANNMARIE

172306 $

116,487 $

27,213 $

143,700 $

2,474 $

761 $

140,465

CARPENTER, WILLIAM T

171582 $

8,372 $

1,156 $

9,528 $

1,296 $

399 $

7,833

CARRASQUILLO, JESUS M

530659 $

5,141 $

4,386 $

9,527 $

-$

-$

9,527

CARREON, GIAN CARLO

170304 $

42,932 $

16,783 $

59,715 $

7,288 $

2,243 $

50,185

CARRION, VINNY

531084 $

37,424 $

35,186 $

72,609 $

54,020 $ 16,625 $

1,964

CARROLL, SCOTT F

128485 $

1,184 $

1,129 $

2,313 $

-$

-$

2,313

CARTER, JEFFREY A

169238 $

454 $

241 $

695 $

346 $

106 $

243

CARVER, PATRICK C

127445 $

950 $

512 $

1,462 $

-$

-$

1,462

CASSONE, JOSEPH E

121327 $

72,127 $

60,664 $

132,791 $

1,746 $

537 $

130,507

CASTILLO, FRANCIS M

166331 $

340 $

237 $

577 $

-$

-$

577

CASURAS, KEVIN M

510747 $

1,454 $

1,205 $

2,659 $

-$

-$

2,659

CAWLEY, JACOB A

173330 $

1,290 $

402 $

1,693 $

-$

-$

1,693

CEDANO, FRANCISCO A

533826 $

2,155 $

438 $

2,593 $

-$

-$

2,593

CHALUPKA,FRANK P

124395 $

20,193 $

15,015 $

35,208 $

2,578 $

793 $

31,837

CLARK,BRADLEY

121449 $

8,443 $

5,321 $

13,764 $

1,869 $

575 $

11,320

COLABELLI, JAMES M

121502 $

21,354 $

17,442 $

38,796 $

-$

-$

38,796

COLEMAN, MARTIN LEE

175152 $

965 $

110 $

1,075 $

-$

-$

1,075

CONANT, TIMOTHY

164052 $

14,343 $

5,171 $

19,514 $

6,911 $

2,127 $

10,475

COOK, DAVID C

165563 $

19,613 $

13,470 $

33,083 $

11,467 $

3,529 $

18,086

COOKE, JOSEPH R

126239 $

3,476 $

2,888 $

6,365 $

-$

-$

6,365

COROMINAS, JAMES A

166934 $

48,323 $

34,027 $

82,350 $

20,448 $

6,293 $

55,609

CORREA, PHILIP

121569 $

55,611 $

46,257 $

101,868 $

44,697 $ 13,756 $

43,415

CULLUM, MICHAEL S

123845 $

49,331 $

43,419 $

92,749 $

1,800 $

554 $

90,395

CULSHAW, JOHN L

126890 $

18,328 $

13,795 $

32,123 $

4,511 $

1,388 $

26,224

CURRIE, BRIAN DOUGLAS

173893 $

1,268 $

(96) $

1,172 $

-$

-$

1,172

DARCY JR, JAMES E

173311 $

35,417 $

3,424 $

38,840 $

-$

-$

38,840

DASHNAU, EDWARD ROBERT

535582 $

21,676 $

10,480 $

32,156 $

13,748 $

4,231 $

14,176

DAVIDSON, CORY WILLIAM

535644 $

239 $

110 $

350 $

241 $

74 $

35

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n0-oTfI1O02nlPya)geID #: 5270

Employee Name (1)
DAVIES, DOUGLASS G DAVIES, RICHARD A DAVIS, TIMOTHY A (119) DECICCO, STEVE DEFILIPPS, DANIEL P DEGROFF, DAVID DEMASI, JOSEPH DENSE, LOUIS C DEPAOLA, CHRISTOPHER JAMES DESOUZA, WAYNE DIAMOND, PHILLIP H (END DATED) DIFABIO JR,JOSEPH A DILLUVIO, NICHOLAS M DONER,PETER W DUBUQUE IV, WILLIAM D DUPRA, ARTHUR DURYEA, DENNIS J DYNKO, MICHAEL MELVIN ECHAVARRIA, SIMON EISENHUTH, JANNA A ELFREICH, THOMAS P EMERSON, DANIEL E ENAMORADO, VICTOR ESTRELLA, MAXIMO ETIENNE, DAVIDSON FARROW, JOHN B FEATHERSON, ERIC S FERNANDEZ JR, JOSE L FERNANDEZ, JOSE FIORE, VINCENT B FISCHER, ROBERT FITZPATRICK,BRIAN J FIX JR.,DAVID FLEXON, CHRISTOPHER M FLORENTINO, JOSE FLOREZ, OMAR A FORBES, BRUCE R FORD, VERNON FORESTIERI, NICHOLAS A FRAISER, ZACHERY RYAN

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

164291 $

77,771 $

18,207 $

95,978 $

20,278 $

6,241 $

69,459

167561 $

29,713 $

12,615 $

42,328 $

11,246 $

3,461 $

27,621

176130 $

414 $

19 $

433 $

-$

-$

433

172639 $

7,070 $

474 $

7,544 $

-$

-$

7,544

165661 $

115 $

87 $

202 $

-$

-$

202

165817 $

33,805 $

18,736 $

52,541 $

36,192 $ 11,139 $

5,211

174792 $

1,322 $

272 $

1,593 $

-$

-$

1,593

122004 $

555 $

490 $

1,045 $

-$

-$

1,045

530854 $

4,815 $

1,256 $

6,071 $

-$

-$

6,071

531792 $

52,721 $

40,371 $

93,092 $

-$

-$

93,092

535431 $

1,032 $

518 $

1,550 $

776 $

239 $

535

101845 $

34,047 $

28,469 $

62,516 $

20,678 $

6,364 $

35,474

170802 $

1,253 $

141 $

1,394 $

-$

-$

1,394

121907 $

5,194 $

3,757 $

8,951 $

76 $

23 $

8,851

171290 $

1$

3$

5$

-$

-$

5

175993 $

1,819 $

106 $

1,924 $

-$

-$

1,924

121978 $

71,432 $

61,562 $

132,995 $

32,527 $ 10,011 $

90,457

172873 $

2,225 $

140 $

2,365 $

153 $

47 $

2,165

510744 $

38,427 $

29,056 $

67,484 $

2,033 $

626 $

64,826

168158 $

13,848 $

7,450 $

21,298 $

6,581 $

2,025 $

12,692

510996 $

7,113 $

739 $

7,852 $

1,433 $

441 $

5,977

125990 $

28 $

26 $

54 $

-$

-$

54

531182 $

131,987 $

103,156 $

235,143 $

1,446 $

445 $

233,252

161423 $

189 $

100 $

289 $

6$

2$

281

11889 $

354 $

323 $

676 $

-$

-$

676

173145 $

79,450 $

8,859 $

88,310 $

-$

-$

88,310

122764 $

7,947 $

6,576 $

14,523 $

-$

-$

14,523

510845 $

4,317 $

3,621 $

7,938 $

-$

-$

7,938

533722 $

20,492 $

7,778 $

28,270 $

3,503 $

1,078 $

23,689

120821 $

41,472 $

37,083 $

78,555 $

-$

-$

78,555

511125 $

10,241 $

10,165 $

20,406 $

648 $

199 $

19,559

164541 $

1,267 $

837 $

2,103 $

373 $

115 $

1,616

163390 $

26,238 $

12,118 $

38,356 $

9,914 $

3,051 $

25,391

163300 $

55 $

42 $

97 $

-$

-$

97

532727 $

13,798 $

4,507 $

18,306 $

2,274 $

700 $

15,332

167145 $

15,939 $

5,812 $

21,751 $

2,042 $

628 $

19,081

166283 $

30,827 $

19,183 $

50,010 $

13,076 $

4,024 $

32,909

122104 $

22,990 $

14,108 $

37,098 $

11,724 $

3,608 $

21,765

120153 $

23,716 $

21,018 $

44,733 $

-$

-$

44,733

172856 $

292 $

83 $

375 $

93 $

29 $

253

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n1-oTfI1O02nlPya)geID #: 5271

Employee Name (1)
FRANCHI, GERALD FRENCH, BRENT W FRENCH, THOMAS P FREZZA JR, MICHAEL FRIEDMAN, STEVEN M GARCIA, PABLO GARDELLA, PETER J GATES, JEFFERY GEORGE, ALEXANDRA B GIDDINGS, WILLIAM GILES,ERIC R GILLETTE, THOMAS K GLADLE, BERNARD J GLASS, JAMES R GLOTZBACH, BRYAN PAUL GOLDBERG, JOHN M GONZALEZ, DAVID GONZALEZ, DELFINO GONZALEZ, YADIRA GOODWIN, PATRICK J GOODWIN, TODD J GORELIN, LEONID GORTON, ROBERT W GOVAN, KWAUHURU GRACIE, MICHAEL D GRADY, DONALD A GRAVAGNE, JOSEPH GRAVAGNE, MICHAEL GREEN, JEFFREY ALLEN GRINER, JOHN JOSEPH GROSSMAN, GLEN A GUETTLER, MICHAEL W HABERMEHL, DANIEL M HADSELL, JAMES D HALSTEAD, JAROD M. HARPOLE, GERALD (END DATED) HARWOOD JR, ROGER B HAUTH, GREGORY J HERCHENRODER JR, MICHAEL F HESSELFELDT, DAVID A

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

175257 $

1,078 $

64 $

1,141 $

-$

-$

1,141

122958 $

1,008 $

482 $

1,490 $

147 $

45 $

1,297

171778 $

196 $

9$

205 $

22 $

7$

177

531923 $

5,199 $

4,327 $

9,526 $

-$

-$

9,526

125810 $

948 $

758 $

1,706 $

-$

-$

1,706

534096 $

9,530 $

4,827 $

14,358 $

5,208 $

1,603 $

7,547

126188 $

1,040 $

908 $

1,947 $

-$

-$

1,947

120609 $

55,303 $

36,994 $

92,297 $

30,724 $

9,456 $

52,118

119809 $

217 $

176 $

393 $

-$

-$

393

175317 $

26,682 $

2,023 $

28,706 $

-$

-$

28,706

125395 $

20,758 $

14,130 $

34,888 $

15,350 $

4,724 $

14,814

124683 $

5,723 $

3,255 $

8,978 $

3,974 $

1,223 $

3,781

175139 $

167 $

32 $

199 $

-$

-$

199

513289 $

1,440 $

148 $

1,589 $

-$

-$

1,589

174715 $

13,666 $

1,267 $

14,933 $

-$

-$

14,933

120425 $

61,958 $

41,104 $

103,063 $

29,347 $

9,032 $

64,684

533294 $

3,057 $

2,336 $

5,393 $

-$

-$

5,393

519677 $

2,563 $

462 $

3,024 $

1,041 $

320 $

1,663

532506 $

15,835 $

14,144 $

29,979 $

837 $

258 $

28,885

123205 $

37,876 $

21,242 $

59,118 $

1,071 $

330 $

57,717

162906 $

14,118 $

7,480 $

21,598 $

8,552 $

2,632 $

10,414

122533 $

4,159 $

3,684 $

7,843 $

-$

-$

7,843

128759 $

6,821 $

2,292 $

9,114 $

-$

-$

9,114

533163 $

2,172 $

1,641 $

3,814 $

-$

-$

3,814

128383 $

26,867 $

18,611 $

45,477 $

7,758 $

2,388 $

35,332

120426 $

461 $

140 $

601 $

210 $

65 $

326

510804 $

2,518 $

2,287 $

4,806 $

-$

-$

4,806

531651 $

105,622 $

79,127 $

184,748 $

11,982 $

3,687 $

169,079

166503 $

52 $

34 $

86 $

-$

-$

86

173644 $

6,261 $

455 $

6,716 $

-$

-$

6,716

123305 $

454 $

442 $

897 $

-$

-$

897

124260 $

9,516 $

10,995 $

20,511 $

9,200 $

2,831 $

8,480

173633 $

19,042 $

1,544 $

20,586 $

-$

-$

20,586

172735 $

4,174 $

723 $

4,897 $

35 $

11 $

4,850

166660 $

12,646 $

8,320 $

20,966 $

1,602 $

493 $

18,870

162964 $

20,196 $

11,290 $

31,486 $

13,877 $

4,271 $

13,338

162496 $

51,003 $

33,652 $

84,655 $

3,263 $

1,004 $

80,388

175354 $

40,951 $

2,509 $

43,460 $

-$

-$

43,460

129502 $

295 $

256 $

551 $

-$

-$

551

513897 $

79 $

72 $

151 $

-$

-$

151

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n2-oTfI1O02nlPya)geID #: 5272

Employee Name (1)
HESSELFELDT, DAVID A HETZEL, NORMAN P HOBBS, WILLIAM C HOOCK,JASON R HUBER, PHILIP HUBNER, JOHN PAUL HUEBNER, KATHY E. HULTON, GERALD J IACCINO, LOUIS V (END DATED) ILACQUA, JOHN JOSEPH INGLESE, JAMIE M IORGOVAN, OVIDIU JAIME, BENJAMIN JANKOSKI, PETER V JENNINGS, DAVID S. JIMENEZ, SAMUEL JOANIS, DAVID BRUCE JOHNSON, JOSEPH MARK JOINER,KEITH D JOLLY JR, DAVID J JOLLY, DANIEL P JONES, WALTER B JUDGE, MICHAEL J KARA JR, FRANK J KARPATHIOS, KONSTANTINOS A KEALY, JOHN T KEATING, CHARLES J KELLY, JEFFREY KENERSON, JOSEPH W KING, JOANN KIRK,CHARLES B KLAWANS, ROBERT KLEIN, GEORGE G KLUMP, GERALD D KORONOWSKI,JOSEPH M KOZELL, RONALD STEVEN KROUTH, ALFRED A KSZANAK, AARON J KUCSERA,ALVIN G KUHLMAN, DONALD A

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

169389 $

323 $

268 $

592 $

-$

-$

592

123919 $

8,734 $

7,823 $

16,557 $

-$

-$

16,557

123667 $

81,933 $

40,588 $

122,522 $

4,355 $

1,340 $

116,827

127289 $

4,117 $

3,705 $

7,823 $

445 $

137 $

7,241

532483 $

4,328 $

3,324 $

7,651 $

-$

-$

7,651

163220 $

16,677 $

7,958 $

24,634 $

16,138 $

4,967 $

3,530

163124 $

150 $

89 $

239 $

34 $

10 $

195

162167 $

4,519 $

930 $

5,449 $

594 $

183 $

4,672

531561 $

5,527 $

3,197 $

8,725 $

1,880 $

579 $

6,265

534037 $

2,543 $

1,774 $

4,317 $

-$

-$

4,317

123441 $

1,007 $

650 $

1,657 $

398 $

122 $

1,136

510728 $

27,865 $

24,080 $

51,945 $

1,383 $

426 $

50,137

161250 $

8,189 $

3,878 $

12,067 $

4,764 $

1,466 $

5,837

124567 $

2,289 $

554 $

2,843 $

354 $

109 $

2,380

530642 $

192 $

87 $

279 $

-$

-$

279

535159 $

282 $

56 $

338 $

-$

-$

338

124609 $

57,693 $

41,195 $

98,889 $

22,847 $

7,031 $

69,010

172571 $

18,044 $

1,858 $

19,902 $

52 $

16 $

19,833

168344 $

9,243 $

6,335 $

15,578 $

10,938 $

3,366 $

1,274

163087 $

104,360 $

19,999 $

124,360 $

16,248 $

5,001 $

103,111

170734 $

81,290 $

17,687 $

98,977 $

4,309 $

1,326 $

93,342

124732 $

62 $

60 $

122 $

-$

-$

122

532663 $

4,218 $

(795) $

3,423 $

88 $

27 $

3,308

124834 $

74,494 $

49,152 $

123,646 $

47,332 $ 14,567 $

61,747

167147 $

2,626 $

1,316 $

3,941 $

844 $

260 $

2,838

124845 $

39,178 $

29,796 $

68,974 $

3,759 $

1,157 $

64,058

125827 $

5,149 $

4,350 $

9,500 $

-$

-$

9,500

124873 $

14,573 $

14,753 $

29,326 $

-$

-$

29,326

164741 $

17,680 $

10,811 $

28,491 $

10,749 $

3,308 $

14,433

173760 $

772 $

247 $

1,019 $

-$

-$

1,019

124850 $

347 $

272 $

619 $

135 $

41 $

443

535112 $

6,879 $

3,969 $

10,848 $

1,898 $

584 $

8,366

164433 $

474 $

320 $

794 $

116 $

36 $

642

173243 $

252 $

62 $

314 $

-$

-$

314

125047 $

10,466 $

11,865 $

22,331 $

6,746 $

2,076 $

13,509

173440 $

15,961 $

1,283 $

17,244 $

-$

-$

17,244

126345 $

336 $

318 $

654 $

-$

-$

654

162002 $

9,759 $

1,277 $

11,037 $

819 $

252 $

9,966

125077 $

6,726 $

6,071 $

12,797 $

218 $

67 $

12,512

511029 $

82,148 $

61,275 $

143,423 $

14,015 $

4,313 $

125,094

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n3-oTfI1O02nlPya)geID #: 5273

Employee Name (1)
KUKLA, LAWRENCE M KWASIGROCH, ANDREW JAMES LA RUSSA,PHILIP ANTHONY LABOY, STEPHEN LACY,DAVID A LAMANDIA, ANTHONY J LAMORI,FRANCIS KEVIN LAMOUNTAIN, CHRISTOPHER N LANGE, DAVID LARABEE, JOHN O LASHER, RICHARD A LAWSON, JAMIE J LECAROS, CARLOS LEIGH-MANUELL, GARY LENDA, MICHAEL J LESTER, BRIAN K LETOURNEAU, KEITH LEVITAN, JEFFREY LEW, RONALD E LEWIS,KEVIN ALAN LISSOW, JOSEPH LOEBL, THOMAS S LOPEZ, JAMES LOVE, JEFFERY S LUBNIEWSKI, LEONARD J LULEVITCH, JEROME LUTZ, ROBERT ALEXANDER MACK, STEPHEN J MADDAGE, JEFFREY R MAHER,ALAN J MAHONEY, JOHN P MAIETTA, CHRISTOPHER MAIOLO, LEON S MAJEWSKI III, JOHN T MALAMUTT, ERIC S. MALDONADO, JOSE (NY) MALESKI, DAVID MALHEIRO, JOSEPH M MANDAGLIO, ROCCO MARKAJANI, RICHARD J

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

125089 $

52,393 $

44,598 $

96,992 $

4,844 $

1,491 $

90,656

105100 $

28,544 $

18,046 $

46,589 $

45 $

14 $

46,531

161150 $

27,475 $

16,435 $

43,910 $

7,883 $

2,426 $

33,600

163500 $

154 $

86 $

240 $

93 $

29 $

118

122626 $

10,467 $

7,606 $

18,073 $

4,448 $

1,369 $

12,256

122797 $

5,035 $

4,460 $

9,495 $

-$

-$

9,495

121472 $

1,056 $

836 $

1,893 $

1,192 $

367 $

334

164062 $

28,795 $

20,304 $

49,099 $

25,095 $

7,723 $

16,281

125157 $

38,431 $

4,911 $

43,341 $

8,113 $

2,497 $

32,731

120240 $

747 $

694 $

1,440 $

-$

-$

1,440

125151 $

13,511 $

10,666 $

24,176 $

7,363 $

2,266 $

14,547

121433 $

1,590 $

1,353 $

2,943 $

-$

-$

2,943

171409 $

93 $

36 $

130 $

-$

-$

130

125201 $

107,504 $

73,005 $

180,508 $

2,059 $

634 $

177,816

128856 $

12,533 $

5,552 $

18,085 $

6,446 $

1,984 $

9,655

125228 $

2,854 $

2,559 $

5,413 $

-$

-$

5,413

167450 $

238 $

138 $

376 $

186 $

57 $

132

517705 $

3,142 $

670 $

3,812 $

480 $

148 $

3,184

105232 $

36,513 $

5,130 $

41,642 $

3,708 $

1,141 $

36,792

128509 $

8,370 $

7,162 $

15,532 $

-$

-$

15,532

532466 $

59 $

40 $

99 $

-$

-$

99

162087 $

6,043 $

3,708 $

9,751 $

2,156 $

663 $

6,932

163799 $

15,814 $

11,657 $

27,471 $

-$

-$

27,471

165124 $

11,681 $

7,562 $

19,243 $

7,222 $

2,223 $

9,798

510748 $

20,572 $

9,435 $

30,008 $

-$

-$

30,008

125073 $

531 $

518 $

1,050 $

-$

-$

1,050

170200 $

23,794 $

4,682 $

28,476 $

6,220 $

1,914 $

20,342

171370 $

1,387 $

524 $

1,912 $

826 $

254 $

831

175049 $

4,374 $

360 $

4,735 $

-$

-$

4,735

125441 $

16,266 $

9,945 $

26,211 $

-$

-$

26,211

120575 $

86,314 $

62,658 $

148,973 $

31,380 $

9,657 $

107,935

535533 $

57,892 $

6,907 $

64,799 $

7,500 $

2,308 $

54,991

123645 $

14 $

14 $

28 $

-$

-$

28

174550 $

640 $

167 $

807 $

-$

-$

807

166873 $

1,717 $

894 $

2,611 $

726 $

223 $

1,661

534720 $

13,728 $

5,764 $

19,491 $

4,940 $

1,520 $

13,032

125425 $

1,276 $

1,201 $

2,478 $

-$

-$

2,478

510746 $

5,841 $

5,202 $

11,043 $

-$

-$

11,043

125460 $

6,949 $

5,895 $

12,844 $

-$

-$

12,844

124767 $

1,555 $

1,325 $

2,880 $

1,927 $

593 $

360

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n4-oTfI1O02nlPya)geID #: 5274

Employee Name (1)
MASCI, MICHAEL D MATHEWS, ALBERT MATTHIAS, JOSHUA MAURO, JOSEPH J MAZEWSKI, GRZEGORZ MCCANN, CHRISTOPHER J MCCARTY JR, WILLIAM M MCCROSSIN, BRIAN A MCCROSSIN, BRIAN E MCGARGHAN, MICHAEL F MCGRANE, MICHAEL MCNALLY, ROBERT F MCNAMARA, PATRICK H. MCNAMARA, PATRICK H. MEDRANO, JAVIER A MEISENZAHI, JEREMY MESISCA, MICHAEL S MILLER, GERALD E MILLER, JUSTIN EDWARD MITCHELL, JAMES R MITCHELL, KEITH ROBERT MITCHETTI JR, FRANKLIN M MITTLER, GEORGE MOLCHANOFF, GEORGE M MOLLACH, MADELINE M MORAN, RICHARD ALBERT MOREY, DOUGLAS N MORIN, ERIC D MORRONE,WILLIAM J MOSKAL, WILLIAM ANDREW MULLEN, JASON M MURPHY, TRAVIS R MURRAY,WILLIAM MYERS, GREG R. NADER, RADYS NAHOW, STEVEN NARAD, THOMAS E NELLIST, JASON D NELSON, STEVEN E NEVILLE, WILLIAM A

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

120432 $

12,873 $

12,142 $

25,015 $

6,811 $

2,096 $

16,107

510713 $

48,271 $

38,822 $

87,093 $

2,917 $

898 $

83,279

174726 $

4,065 $

982 $

5,047 $

-$

-$

5,047

510940 $

21,199 $

11,836 $

33,034 $

-$

-$

33,034

172538 $

40,681 $

4,369 $

45,050 $

3,349 $

1,031 $

40,671

121237 $

254,366 $

131,114 $

385,479 $

20,554 $

6,326 $

358,599

124061 $

4,800 $

4,314 $

9,114 $

-$

-$

9,114

168301 $

47,472 $

20,781 $

68,253 $

15,463 $

4,759 $

48,031

510805 $

171,824 $

30,186 $

202,010 $

377 $

116 $

201,517

121333 $

1,409 $

1,342 $

2,752 $

-$

-$

2,752

510888 $

8,969 $

8,220 $

17,189 $

-$

-$

17,189

125640 $

10,836 $

8,953 $

19,789 $

-$

-$

19,789

166862 $

1,797 $

1,229 $

3,026 $

-$

-$

3,026

167532 $

342 $

229 $

571 $

-$

-$

571

172088 $

42,505 $

11,496 $

54,001 $

2,415 $

743 $

50,843

510847 $

186 $

158 $

343 $

-$

-$

343

164286 $

13,073 $

1,878 $

14,951 $

5,240 $

1,613 $

8,099

126088 $

7,628 $

5,871 $

13,499 $

-$

-$

13,499

171376 $

63,921 $

8,129 $

72,050 $

4,827 $

1,486 $

65,737

166629 $

2,908 $

533 $

3,441 $

1,883 $

579 $

979

173632 $

9,692 $

841 $

10,533 $

-$

-$

10,533

175373 $

281 $

39 $

320 $

-$

-$

320

125758 $

149,964 $

87,538 $

237,502 $

22,135 $

6,812 $

208,555

122552 $

37,102 $

26,185 $

63,286 $

18,107 $

5,573 $

39,606

123214 $

7,510 $

5,514 $

13,025 $

4,107 $

1,264 $

7,653

172270 $

25,185 $

2,122 $

27,306 $

3,155 $

971 $

23,180

172160 $

2,840 $

938 $

3,778 $

-$

-$

3,778

169360 $

39 $

11 $

50 $

-$

-$

50

125825 $

64,611 $

34,992 $

99,603 $

19,797 $

6,093 $

73,713

125829 $

73,427 $

30,055 $

103,482 $

15,036 $

4,627 $

83,818

164628 $

11,500 $

7,394 $

18,893 $

4,894 $

1,506 $

12,494

163094 $

1,015 $

722 $

1,737 $

-$

-$

1,737

165992 $

81,029 $

28,062 $

109,091 $

8,500 $

2,616 $

97,975

161262 $

2,542 $

1,592 $

4,134 $

448 $

138 $

3,548

510927 $

58,560 $

48,054 $

106,614 $

-$

-$

106,614

532451 $

79,195 $

56,415 $

135,611 $

11,859 $

3,650 $

120,102

124851 $

8,365 $

7,168 $

15,533 $

162 $

50 $

15,321

172401 $

31,213 $

2,894 $

34,107 $

457 $

141 $

33,510

126027 $

2,980 $

2,622 $

5,603 $

-$

-$

5,603

126042 $

22,150 $

13,892 $

36,042 $

7,282 $

2,241 $

26,519

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n5-oTfI1O02nlPya)geID #: 5275

Employee Name (1)
NIGHTINGALE,DANIEL NOTARTOMASO, THOMAS NOWORYTA, JOHN NUNEZ, GEORGE OBERHAUSER JR, DANIEL O'CONNOR, DAVID G OLSZOWKA,ROBERT J ORR, SEAN OSBORNE, JAMES J OSTER, HARRY J OSTREGER, NATHAN OTMAR, JOSEPH M OYARVIDE, JAIME PADGETT, CORY PAGAN, CHRISTOPHER M. PALERMO, PAUL G PALMER, RICHARD A PAOLINI,PHILIP A PARKER, BRENT DOUGLAS PARO, DANIEL D PARODY, TERRY J PATTON, RICHARD A PAUL, TIMOTHY JARED PAZMINO, MARIO A PEREZ, ARNOLD PEREZ, LEOBARDO PERRY, DENNIS R PESLAK, RICHARD M PETERSEN, HENRY K PHILLIPS, EDWARD J PIZZUTO, BENJAMIN F PLISKA, EDWARD PLOOF, JOHN S POLLEY, JOHN A POLNAK, JASON R PREMIELEWSKI, SCOTT F PROCTOR II, RONALD THOMAS PURDY, ALVAN (END DATED) PUSZTAY, BENJAMIN QUIGG, PHILIP E

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

161991 $

184 $

104 $

288 $

60 $

19 $

210

161592 $

11,128 $

6,311 $

17,438 $

11,660 $

3,588 $

2,190

129521 $

18,938 $

12,025 $

30,963 $

4,109 $

1,265 $

25,589

510830 $

145,366 $

29,879 $

175,245 $

-$

-$

175,245

535807 $

138 $

74 $

212 $

-$

-$

212

124249 $

62,188 $

6,304 $

68,492 $

126 $

39 $

68,327

120135 $

24,429 $

18,248 $

42,677 $

6,153 $

1,894 $

34,631

163397 $

1,632 $

1,006 $

2,637 $

1,568 $

483 $

586

511217 $

4,984 $

2,278 $

7,262 $

4,230 $

1,302 $

1,730

174513 $

33 $

8$

42 $

-$

-$

42

126673 $

222 $

216 $

438 $

-$

-$

438

125775 $

128,005 $

84,208 $

212,212 $

7,151 $

2,201 $

202,861

532478 $

108,741 $

65,765 $

174,506 $

7,596 $

2,338 $

164,573

534179 $

4,529 $

3,128 $

7,657 $

-$

-$

7,657

534055 $

117 $

178 $

294 $

-$

-$

294

164267 $

6,967 $

5,226 $

12,193 $

433 $

133 $

11,627

120140 $

41,941 $

28,437 $

70,378 $

13,233 $

4,073 $

53,073

126902 $

11,200 $

8,751 $

19,951 $

3,412 $

1,050 $

15,489

174295 $

1$

0$

1$

-$

-$

1

123826 $

112,366 $

78,808 $

191,174 $

14,054 $

4,325 $

172,795

163843 $

44,783 $

12,906 $

57,688 $

9,207 $

2,834 $

45,648

510885 $

60,116 $

21,685 $

81,801 $

-$

-$

81,801

175040 $

14,090 $

1,328 $

15,418 $

-$

-$

15,418

128133 $

1,246 $

1,222 $

2,468 $

-$

-$

2,468

519715 $

1,179 $

425 $

1,604 $

-$

-$

1,604

172394 $

10,213 $

1,074 $

11,288 $

-$

-$

11,288

126694 $

137,831 $

66,204 $

204,035 $

54,453 $ 16,759 $

132,824

120267 $

150,509 $

94,703 $

245,212 $

33,890 $ 10,430 $

200,891

165665 $

4,699 $

3,543 $

8,242 $

-$

-$

8,242

511058 $

6,089 $

5,579 $

11,668 $

-$

-$

11,668

162963 $

92,309 $

27,116 $

119,425 $

24,916 $

7,668 $

86,841

171375 $

9,191 $

361 $

9,552 $

1,044 $

321 $

8,188

125452 $

43,594 $

23,058 $

66,652 $

6,237 $

1,919 $

58,497

121463 $

64,160 $

37,408 $

101,568 $

22,549 $

6,940 $

72,080

168507 $

13,000 $

1,933 $

14,934 $

7,823 $

2,408 $

4,703

164513 $

1,970 $

1,332 $

3,302 $

295 $

91 $

2,916

174533 $

3,054 $

436 $

3,490 $

-$

-$

3,490

161499 $

2,878 $

1,598 $

4,476 $

95 $

29 $

4,352

162414 $

23,941 $

2,498 $

26,439 $

2,865 $

882 $

22,692

172833 $

423 $

137 $

561 $

223 $

69 $

269

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n6-oTfI1O02nlPya)geID #: 5276

Employee Name (1)
QUIGLEY, PATRICK QUINN JR, MICHAEL F RAINERI, ANTHONY RAKUS, JAMES A RAMIREZ, LINO RAMOS, ORLANDO RAMOS, ROBERT RAUBER, JEFFREY T REAVIS JR, RUDOLPH W REGGIO, MICHAEL ANTHONY REICHARDT, MARK E REILLY, MICHAEL REMLEY, FLOYD GARY REOME, MICHAEL GILBERT REYNOLDS, AARON PATRICK RICHARDSON, ANTHONY T RIVERA, JOSE ROCKWELL, DUANE N RODRIGUEZ, FRANK (143) ROMAN, JAIME ROMER, WAYNE A ROUTENBERG, EVAN ROWE, MICHAEL JAMES RUBINO, JOSEPH RUBINO, THOMAS A RUDOLPH,STEVEN W RUSSELL, FREDERICK A RUSSELL, KENT M RYAN, LAWRENCE V SALVO, MARIO SAMMIS, MARK SANTMYER, MARTIN SANTOO, RAMPERSAUD R SCHATZEL, ALCUIN A SCHWEIKLE, ARNE G SCIACCA, CARMEN F SCOFIELD, HOWARD D SEILER, THOMAS W SERAFIN, RANDY SESSLER, NATHAN A

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

533825 $

1,768 $

1,272 $

3,040 $

-$

-$

3,040

125697 $

181 $

164 $

345 $

-$

-$

345

128165 $

56,319 $

51,137 $

107,456 $

3,657 $

1,125 $

102,673

511177 $

40,541 $

29,855 $

70,396 $

33 $

10 $

70,352

127330 $

1,571 $

1,220 $

2,791 $

525 $

162 $

2,105

531085 $

6,144 $

5,255 $

11,400 $

-$

-$

11,400

510963 $

80,270 $

65,697 $

145,967 $

4,235 $

1,303 $

140,429

127906 $

15,897 $

11,717 $

27,613 $

5,896 $

1,815 $

19,903

123213 $

2,768 $

2,676 $

5,444 $

-$

-$

5,444

175229 $

2,145 $

165 $

2,310 $

-$

-$

2,310

127388 $

43,381 $

24,268 $

67,648 $

10,407 $

3,203 $

54,038

511110 $

96,720 $

41,011 $

137,731 $

-$

-$

137,731

167228 $

406 $

144 $

550 $

37 $

12 $

501

127705 $

65,546 $

26,748 $

92,295 $

5,746 $

1,768 $

84,780

175303 $

9,385 $

747 $

10,132 $

-$

-$

10,132

174542 $

457 $

(405) $

52 $

-$

-$

52

169941 $

8,810 $

5,603 $

14,413 $

10,021 $

3,084 $

1,308

172980 $

587 $

59 $

645 $

-$

-$

645

531329 $

37,196 $

23,120 $

60,315 $

5,085 $

1,565 $

53,665

510709 $

5,885 $

1,688 $

7,573 $

2,479 $

763 $

4,330

128393 $

15,428 $

12,573 $

28,001 $

-$

-$

28,001

129405 $

1,341 $

1,126 $

2,467 $

-$

-$

2,467

170602 $

935 $

418 $

1,353 $

44 $

14 $

1,295

127608 $

66 $

60 $

126 $

-$

-$

126

532657 $

33 $

2$

35 $

16 $

5$

14

127610 $

11,544 $

7,048 $

18,592 $

999 $

307 $

17,286

127624 $

25,091 $

13,513 $

38,605 $

8,685 $

2,673 $

27,246

127627 $

599 $

585 $

1,184 $

-$

-$

1,184

127652 $

13,348 $

11,621 $

24,969 $

-$

-$

24,969

127692 $

4,376 $

4,099 $

8,475 $

-$

-$

8,475

172943 $

169 $

60 $

229 $

-$

-$

229

164208 $

414 $

331 $

745 $

-$

-$

745

121634 $

49,869 $

41,809 $

91,679 $

1,524 $

469 $

89,685

127735 $

1,954 $

1,867 $

3,821 $

-$

-$

3,821

172642 $

327 $

119 $

447 $

109 $

33 $

304

125871 $

1,041 $

791 $

1,832 $

-$

-$

1,832

510914 $

62,173 $

39,063 $

101,236 $

-$

-$

101,236

519780 $

97,347 $

13,002 $

110,350 $

64 $

20 $

110,267

127817 $

118 $

115 $

233 $

-$

-$

233

162459 $

180 $

(32) $

148 $

-$

-$

148

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n7-oTfI1O02nlPya)geID #: 5277

Employee Name (1)
SHERRY, SAMUEL J SHERRY, STANLEY SHUMAN, GREGORY S SIGLER, DANIEL SKIBITSKI JR, JOHN F SLATTERY, GEORGE MATTHEW SLINGERLAND JR, BRIAN A SMITH, BENJAMIN M SMITH, ROGELIO SOCHA, MARTIN SOLT III, WILLIAM R SORVILLO, EDWARD M SPRINGS, JASON STACEY, ROBIN (END DATED) STALLONE, PAUL D STASKO, JOSEPH STICKNEY, WILLIAM O STRAIN, MARK F STUPKA, CHRISTOPHER SULLIVAN, DENNIS SUTHERLAND, JAMES R SWACKHAMER,GARY R SWATSKI,ROBERT VICTOR TAFEL, EDWARD CHRIS TARBELL, MICHAEL W TARDIFF, DOUGLAS J TAVORMINA, ANTHONY G TESTER, ANTHONY M TETLEY, GARY C THOMAS, FRANK TOBLER, GREGORY TOLLIS, DAVID J TORRES, ELIEZER TORRES, JOSEPH WILLIAM TORSTRUP, DAWN TORSTRUP, PETER TROMBLEY, JAMES P TROMBLY,RONALD W TRUTOR, JOSHUA M VACCARO, DANIEL J

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

172157 $

11,344 $

1,689 $

13,033 $

581 $

179 $

12,273

171839 $

2,673 $

1,024 $

3,697 $

1,693 $

521 $

1,483

164467 $

2,575 $

2,095 $

4,671 $

-$

-$

4,671

127895 $

35,863 $

19,133 $

54,995 $

20,924 $

6,440 $

27,632

123285 $

10,273 $

9,591 $

19,864 $

-$

-$

19,864

171273 $

10,804 $

388 $

11,193 $

915 $

281 $

9,996

163923 $

12,487 $

8,847 $

21,334 $

1,623 $

499 $

19,212

531407 $

29,410 $

20,232 $

49,642 $

1,663 $

512 $

47,466

510759 $

76,439 $

64,231 $

140,670 $

76,433 $ 23,523 $

40,714

174659 $

6,926 $

1,285 $

8,211 $

-$

-$

8,211

126104 $

6,751 $

6,189 $

12,940 $

-$

-$

12,940

532452 $

3,021 $

6,845 $

9,866 $

-$

-$

9,866

164385 $

1,013 $

802 $

1,815 $

-$

-$

1,815

128094 $

30,340 $

26,825 $

57,165 $

-$

-$

57,165

128530 $

56,600 $

43,730 $

100,330 $

3,640 $

1,120 $

95,569

175729 $

2,487 $

145 $

2,632 $

-$

-$

2,632

128150 $

43,487 $

29,225 $

72,712 $

17,136 $

5,274 $

50,303

172572 $

28,092 $

9,423 $

37,515 $

2,284 $

703 $

34,529

531642 $

750 $

310 $

1,060 $

581 $

179 $

300

535833 $

828 $

449 $

1,277 $

828 $

255 $

194

128226 $

1$

1$

2$

-$

-$

2

125899 $

2,331 $

2,386 $

4,717 $

1,065 $

328 $

3,324

128249 $

38,599 $

29,736 $

68,335 $

836 $

257 $

67,242

128312 $

7,357 $

6,382 $

13,739 $

-$

-$

13,739

129817 $

55,301 $

31,821 $

87,122 $

18,580 $

5,718 $

62,824

511258 $

11,153 $

2,932 $

14,085 $

-$

-$

14,085

173558 $

8,597 $

1,567 $

10,164 $

-$

-$

10,164

519751 $

3,708 $

3,104 $

6,812 $

-$

-$

6,812

511120 $

146,220 $

26,868 $

173,088 $

-$

-$

173,088

535107 $

22,724 $

7,103 $

29,827 $

13,744 $

4,230 $

11,854

161398 $

32,563 $

19,777 $

52,340 $

11,770 $

3,622 $

36,948

128495 $

10,294 $

9,516 $

19,810 $

-$

-$

19,810

511053 $

94,114 $

36,704 $

130,819 $

2,360 $

726 $

127,732

171867 $

18,546 $

3,909 $

22,455 $

1,566 $

482 $

20,407

511201 $

1$

0$

1$

-$

-$

1

533824 $

42,362 $

18,392 $

60,753 $

4,553 $

1,401 $

54,799

173344 $

1,727 $

217 $

1,944 $

-$

-$

1,944

128536 $

36 $

26 $

62 $

-$

-$

62

165363 $

3,180 $

2,378 $

5,558 $

119 $

37 $

5,402

125155 $

33,502 $

18,090 $

51,592 $

21,231 $

6,534 $

23,827

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n8-oTfI1O02nlPya)geID #: 5278

Employee Name (1)
VALENTINE III, JOSEPH VAN LEUVAN, JAMES WILLIAM VANFOSSEN, JACK EARL VARGAS, JAVIER N VASQUEZ, JAVIER VELASQUEZ, ANTONIO VELASQUEZ, CHRISTOPHER VINCENT, RICHARD VIRA, ANDREJ WALSH, BRIAN WALTON, WILLIAM R WARD, BRIAN M WARREN, JOSEPH G WARREN, STANLEY T WECH, DENNIS WEIGEL, ROBERT G WELTON, CHARLES A WHITE, STEVEN C WHITMAN, JOHN J WILDER, BRADFORD WILISHEFSKI, JASON E WILLIAMS, DIXON T WILLIAMS, ROBERT WILLSEY, BUDDY W (END DATED) WNENTA, DANIEL WOLCOTT, STEVEN D WRAY, ANDY WRAY, RANDY YATES, JEFFREY A ZIMMERMAN, CURT B ZOLDOS, SCOTT ANDREW ZUARINO, MICHAEL BERNARD ZUKOWSKI, DARIN ADDIS, RONALD L AGBAN, AGBAN ALFANO, KEVIN ANNIS, JAMES G BAILEY, PHILIP G BARNETT, GERHARD G BARRETT, JOHN

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

510972 $

115 $

59 $

174 $

104 $

32 $

39

170388 $

111 $

39 $

150 $

-$

-$

150

122420 $

43,987 $

28,283 $

72,269 $

3,972 $

1,223 $

67,075

511185 $

10,794 $

8,222 $

19,016 $

6,001 $

1,847 $

11,168

170823 $

3,776 $

(2,286) $

1,490 $

1,066 $

328 $

96

519779 $

98,826 $

80,060 $

178,886 $

-$

-$

178,886

510757 $

8,574 $

7,806 $

16,380 $

-$

-$

16,380

164037 $

63,365 $

41,503 $

104,868 $

28,303 $

8,711 $

67,855

530992 $

4,034 $

3,499 $

7,533 $

-$

-$

7,533

173555 $

1,134 $

160 $

1,294 $

-$

-$

1,294

129213 $

504 $

329 $

833 $

-$

-$

833

167917 $

12,355 $

7,818 $

20,173 $

221 $

68 $

19,885

530937 $

32,106 $

26,848 $

58,954 $

30,273 $

9,317 $

19,364

129236 $

66,038 $

37,470 $

103,508 $

16,111 $

4,958 $

82,438

174289 $

20,241 $

1,615 $

21,856 $

-$

-$

21,856

129278 $

40,388 $

20,613 $

61,001 $

5,183 $

1,595 $

54,223

162396 $

3,505 $

1,812 $

5,317 $

75 $

23 $

5,219

163294 $

116 $

87 $

202 $

-$

-$

202

166144 $

4,848 $

3,314 $

8,162 $

2,490 $

766 $

4,906

174597 $

36,548 $

4,411 $

40,960 $

-$

-$

40,960

172123 $

21,176 $

4,414 $

25,590 $

-$

-$

25,590

129416 $

45,689 $

18,483 $

64,172 $

13,680 $

4,210 $

46,282

161804 $

23,198 $

6,544 $

29,742 $

13,846 $

4,261 $

11,635

166280 $

14,728 $

8,550 $

23,278 $

12,220 $

3,761 $

7,297

129501 $

133,215 $

64,929 $

198,144 $

14,894 $

4,584 $

178,666

175448 $

2,045 $

146 $

2,191 $

-$

-$

2,191

510782 $

23,560 $

20,719 $

44,279 $

33,084 $ 10,182 $

1,013

531051 $

29,610 $

24,268 $

53,878 $

3,883 $

1,195 $

48,800

127061 $

55,771 $

14,872 $

70,643 $

9,527 $

2,932 $

58,184

511127 $

2,662 $

2,153 $

4,815 $

-$

-$

4,815

174868 $

2,522 $

165 $

2,686 $

-$

-$

2,686

173389 $

10,052 $

1,682 $

11,734 $

-$

-$

11,734

124808 $

39,867 $

38,185 $

78,053 $

-$

-$

78,053

511581 $

-$

-$

-$

-$

-$

-

533169 $

-$

-$

-$

772 $

238 $

-

535242 $

-$

-$

-$

942 $

290 $

-

510835 $

130 $

(42) $

88 $

156 $

48 $

-

120762 $

-$

-$

-$

451 $

139 $

-

174833 $

-$

-$

-$

-$

-$

-

172269 $

-$

-$

-$

61 $

19 $

-

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo6n9-oTfI1O02nlPya)geID #: 5279

Employee Name (1)
BEGAZO, JOSE BELICKA, MICHAEL BENNEKAA, NACIM BERENGER, JAMIE L. BETZ, KEITH JOHN BLACK, ROBERT BLACKWELL, WILLIAM BOISSEAU,GARY E BORTLIK, JOEL S BRITT, LOWELL BROWNING, DANIEL P BUCAR, BRIAN MICHAEL BUENANO, JUAN CARLOS BUERKLE, ROBERT BUSTAMANTE, CARLOS BYRON, KENNETH CAILLIER, TIM CARBONE, MICHAEL CARDIO, ROBERT CARRASQUILLO, WILFREDO CHMIEL, DAVID CLOTHIER, THOMAS RUSSELL CONERTY,RYAN J. CONTRADA, JAMES FREDERICK COOK, MARK CRANE, BRUCE H CROSSMAN, PRESTON M CROSSMAN, STANLEY A CUDDON, TUBAL DAVID, JEAN DAVIES, RICHARD G DAVIS, ANDREW MARK DELSANTO, MICHAEL N DEVENUTO III, ARKIE DODGE, JOHN DOIN JR, DONALD G DOLCI, RAYMOND DOVE JR, JOHN E DREW, MICHAEL DRUGAN, JAMES J

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

175657 $

-$

-$

-$

-$

-$

-

165835 $

2,257 $

371 $

2,628 $

5,174 $

1,592 $

-

534781 $

-$

-$

-$

851 $

262 $

-

166624 $

-$

-$

-$

3,632 $

1,118 $

-

172994 $

-$

-$

-$

9$

3$

-

510988 $

-$

-$

-$

-$

-$

-

535584 $

-$

-$

-$

366 $

113 $

-

123282 $

4,308 $

3,915 $

8,223 $

11,817 $

3,637 $

-

127588 $

22,796 $

21,383 $

44,178 $

37,615 $ 11,577 $

-

535583 $

-$

-$

-$

485 $

149 $

-

163625 $

3,363 $

1,334 $

4,697 $

5,313 $

1,635 $

-

170126 $

3,041 $

361 $

3,401 $

4,634 $

1,426 $

-

172858 $

-$

-$

-$

-$

-$

-

171037 $

-$

-$

-$

211 $

65 $

-

121191 $

-$

-$

-$

30 $

9$

-

166726 $

3,099 $

1,223 $

4,322 $

14,476 $

4,455 $

-

171194 $

-$

-$

-$

9,896 $

3,046 $

-

510862 $

-$

-$

-$

-$

-$

-

510806 $

-$

-$

-$

-$

-$

-

535172 $

-$

-$

-$

246 $

76 $

-

174938 $

-$

-$

-$

-$

-$

-

174157 $

-$

-$

-$

-$

-$

-

167517 $

-$

-$

-$

327 $

101 $

-

167004 $

-$

-$

-$

4,454 $

1,371 $

-

171577 $

-$

-$

-$

939 $

289 $

-

121609 $

-$

-$

-$

-$

-$

-

533400 $

-$

-$

-$

22,261 $

6,851 $

-

169272 $

-$

-$

-$

5,076 $

1,562 $

-

534116 $

-$

-$

-$

-$

-$

-

170629 $

2,395 $

(320) $

2,075 $

14,462 $

4,451 $

-

510899 $

-$

-$

-$

5,952 $

1,832 $

-

165411 $

2,204 $

1,160 $

3,364 $

4,052 $

1,247 $

-

121793 $

-$

-$

-$

-$

-$

-

173853 $

-$

-$

-$

-$

-$

-

162139 $

1,279 $

733 $

2,012 $

1,732 $

533 $

-

164597 $

39 $

347 $

386 $

2,246 $

691 $

-

530368 $

-$

-$

-$

4,164 $

1,281 $

-

170526 $

-$

-$

-$

12,311 $

3,789 $

-

175714 $

-$

-$

-$

-$

-$

-

510945 $

-$

-$

-$

-$

-$

-

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo7n0-oTfI1O02nlPya)geID #: 5280

Employee Name (1)
DUCHESNEAU, DOUGLAS P ENIDES, STEVEN FARR, GARY F FARRELL, PATRICK J FEHER, JOHN FELLO, RICHARD MICHAEL FERMIN, FRANCISCO A FERRER, HARRY FILIPPOV, ALEXEY FRANCESE, JASON FREDETTE, JEFFREY E FUQUA, GERARD A GARDNER JR, GERALD S GARY, JASON GEBHARD, BRYON GIACOBBI, ROBERT VERNON GILLEO, MICHAEL C GILMAN,JOHN H GIORDANO, MATTHEW GIORDANO, PAUL N GIORDANO, THEODORE GLADLE, BERNARD L GLOVER, EUGENE L GOEDECKE, JOHN D GRIFFO,JERRY GUESNO, ARNOLD HALTER JR, JAMES HAMBLIN, GLEN E HARRIS, SHERRICK HARTLING, DALE ROBERT HEALY, SEAN HENRY, ROBERT J HICKS, TIMOTHY ROGER HOAR, THOMAS HOLGUIN, MIGUEL A. HOSLER, ROBERT M HOUDE, THOMAS JAKUBOWSKI, MATTHEW JOHNSEN, CLIFFORD W JOHNSON, ANTHONY (143)

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

510242 $

-$

-$

-$

-$

-$

-

510901 $

-$

-$

-$

137 $

42 $

-

511000 $

-$

-$

-$

1,077 $

331 $

-

128274 $

1,251 $

989 $

2,241 $

9,875 $

3,039 $

-

174915 $

-$

-$

-$

-$

-$

-

170062 $

-$

-$

-$

-$

-$

-

175308 $

-$

-$

-$

-$

-$

-

171805 $

-$

-$

-$

27 $

8$

-

176005 $

-$

-$

-$

-$

-$

-

170395 $

-$

-$

-$

346 $

106 $

-

170520 $

0$

0$

0$

4$

1$

-

510736 $

-$

-$

-$

3,608 $

1,110 $

-

510890 $

-$

-$

-$

106 $

33 $

-

166821 $

5,130 $

3,146 $

8,276 $

8,703 $

2,679 $

-

166492 $

-$

-$

-$

-$

-$

-

171919 $

-$

-$

-$

275 $

85 $

-

510896 $

-$

-$

-$

-$

-$

-

163697 $

927 $

2,363 $

3,290 $

2,898 $

892 $

-

535005 $

-$

-$

-$

1,383 $

426 $

-

511118 $

-$

-$

-$

384 $

118 $

-

534445 $

-$

-$

-$

2,278 $

701 $

-

510868 $

8,629 $

(1,018) $

7,611 $

23,567 $

7,253 $

-

121255 $

10,315 $

9,144 $

19,459 $

25,492 $

7,846 $

-

166058 $

-$

-$

-$

950 $

292 $

-

161342 $

8,037 $

5,616 $

13,653 $

17,336 $

5,336 $

-

533695 $

-$

-$

-$

61 $

19 $

-

532621 $

287 $

(126) $

161 $

3,949 $

1,215 $

-

510976 $

-$

-$

-$

-$

-$

-

535417 $

5,018 $

228 $

5,246 $

19,280 $

5,934 $

-

170411 $

1,557 $

893 $

2,449 $

4,748 $

1,461 $

-

531883 $

-$

-$

-$

302 $

93 $

-

511026 $

-$

-$

-$

1,237 $

381 $

-

173903 $

-$

-$

-$

-$

-$

-

511122 $

-$

-$

-$

-$

-$

-

163714 $

-$

-$

-$

1,062 $

327 $

-

511056 $

-$

-$

-$

-$

-$

-

161999 $

1,505 $

873 $

2,379 $

1,857 $

571 $

-

166984 $

0$

0$

0$

12 $

4$

-

173277 $

-$

-$

-$

-$

-$

-

173663 $

-$

-$

-$

-$

-$

-

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo7n1-oTfI1O02nlPya)geID #: 5281

Employee Name (1)
JOHNSON, DALE JOHNSON, ERIC M JOHNSTON, BRETT MICHAEL JONES, JASON S KAUCHER, KURT C KAUCHER, KYLE KAUFMAN, MARK KEEVER, WAYNE S KELLY, BRIAN SCOTT KENNAN, DENNIS KIBBLE, JOHN T. KIMMEL, JASON LEE KOHL, DALE KRAFT, CHRIS KRAFT, GEORGE O KRYSTYNIAK, DANIEL P KUDELSKI, ROBERT STANLEY LAM, TOAN LANCLOS, JOHN M LARSON, DENNIS E LEGG, RICKY D LENDA,DUANE JOSEPH LENZ, STEPHEN M LEVIN, BRONIS LINDEN, PETER LIVINGSTON, BRADLEY G LOEFFEL, KEVIN J LOTZ, JOHN J LOWRY, PAUL LUCAS, JAMES BERNARD LYNCH, DANIEL A MACDONALD, WILLIAM P MALDONADO, THOMAS H MALLON, SEAN P MANNING, STEVEN M MARRONE, ROBERT MARTIN, CHRISTOPHER MASON, RICHARD EDWARD MCARDELL, JASON MCARTHUR, THOMAS C

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

175011 $

-$

-$

-$

-$

-$

-

510739 $

-$

-$

-$

-$

-$

-

171050 $

553 $

242 $

796 $

1,518 $

467 $

-

512017 $

9,281 $

4,992 $

14,273 $

17,326 $

5,332 $

-

511072 $

-$

-$

-$

-$

-$

-

169367 $

-$

-$

-$

611 $

188 $

-

170494 $

-$

-$

-$

678 $

209 $

-

535536 $

-$

-$

-$

1,376 $

423 $

-

170407 $

-$

-$

-$

1,186 $

365 $

-

172429 $

-$

-$

-$

-$

-$

-

533879 $

-$

-$

-$

217 $

67 $

-

173627 $

-$

-$

-$

-$

-$

-

166533 $

-$

-$

-$

168 $

52 $

-

510797 $

-$

-$

-$

-$

-$

-

510966 $

-$

-$

-$

-$

-$

-

173002 $

-$

-$

-$

-$

-$

-

171012 $

-$

-$

-$

12,283 $

3,780 $

-

533892 $

-$

-$

-$

2,311 $

711 $

-

175411 $

-$

-$

-$

-$

-$

-

161712 $

-$

-$

-$

16,283 $

5,011 $

-

512225 $

-$

-$

-$

702 $

216 $

-

125737 $

3,079 $

1,618 $

4,697 $

4,989 $

1,535 $

-

511094 $

-$

-$

-$

-$

-$

-

535188 $

415 $

535 $

951 $

54,376 $ 16,735 $

-

533245 $

12,881 $

11,797 $

24,678 $

84,672 $ 26,059 $

-

162342 $

446 $

268 $

714 $

4,116 $

1,267 $

-

174770 $

-$

-$

-$

-$

-$

-

511043 $

-$

-$

-$

-$

-$

-

532739 $

-$

-$

-$

148 $

46 $

-

535906 $

1,095 $

108 $

1,203 $

2,119 $

652 $

-

165468 $

-$

-$

-$

2,641 $

813 $

-

161936 $

829 $

521 $

1,350 $

1,414 $

435 $

-

171148 $

-$

-$

-$

458 $

141 $

-

122036 $

1,250 $

1,077 $

2,326 $

9,467 $

2,914 $

-

125436 $

-$

-$

-$

-$

-$

-

519782 $

-$

-$

-$

-$

-$

-

162939 $

2,121 $

6,751 $

8,872 $

23,825 $

7,332 $

-

171099 $

-$

-$

-$

10,284 $

3,165 $

-

169179 $

169 $

22 $

191 $

56,157 $ 17,283 $

-

125285 $

139 $

(242) $

(103) $

-$

-$

-

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo7n2-oTfI1O02nlPya)geID #: 5282

Employee Name (1)
MCDEVITT, DENIS MCGOWAN, SEAN THOMAS MCNAMARA, MARIE MEIGEL, JOHN JOSEPH MENTZ, ROBERT MESEROLE, JON R MILIAMBRO, TIMOTHY V MOORES, KENNETH S MORALES, DAVID MORGAN, SCOTT DAVID MORRILL JR, MARK ALONZO MORRISSEY, DAVID J MUHAMMAD, ANWAR MUZA, BERNARDO NEDD, SHEVON NICHOLS, JOSHUA P O'BRIAN, CHRISTOPHER C OSMAN, MICHAEL E OUTHOUSE, DAVID G OVER, BRIAN LEROY OWOLABI, RAFIU PADGETT, WILLIAM H PALMER, JOHN T PAPAY, DAVID PARRINELLO, VITO PARRY, CHRISTOPHER J PASCAL, MICHAEL LOUIS PECK, MATTHEW W PEREZ, TINA PEREZIC, ENVER PHILLIPS, JOHN A POLLARD, PATRICK PORTILLA, MANUEL EFRAIN PRESIDENT, DENISE B PUGLISI, CHRISTOPHER C QUIGLEY, TIMOTHY J RAINEY, ANTHONY D RAMSARAN, BEEJAY RAPP, KENNETH MICHAEL REFVIK, EVAN

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

534947 $

-$

-$

-$

-$

-$

-

172201 $

-$

-$

-$

177 $

54 $

-

166997 $

-$

-$

-$

2,337 $

719 $

-

171459 $

1$

0$

1$

1,116 $

343 $

-

533694 $

-$

-$

-$

-$

-$

-

510717 $

-$

-$

-$

-$

-$

-

167613 $

-$

-$

-$

118 $

36 $

-

160076 $

-$

-$

-$

-$

-$

-

171193 $

-$

-$

-$

14,152 $

4,355 $

-

170120 $

-$

-$

-$

4,468 $

1,375 $

-

535727 $

-$

-$

-$

-$

-$

-

510959 $

-$

-$

-$

-$

-$

-

171171 $

-$

-$

-$

2,913 $

897 $

-

536012 $

-$

-$

-$

-$

-$

-

534770 $

-$

-$

-$

-$

-$

-

166355 $

-$

-$

-$

4,690 $

1,443 $

-

164596 $

-$

-$

-$

-$

-$

-

172392 $

-$

-$

-$

-$

-$

-

125080 $

12,865 $

11,689 $

24,555 $

20,487 $

6,305 $

-

170567 $

-$

-$

-$

-$

-$

-

536041 $

5,145 $

3,417 $

8,562 $

59,535 $ 18,323 $

-

166844 $

2,772 $

1,746 $

4,518 $

26,957 $

8,296 $

-

170493 $

-$

-$

-$

776 $

239 $

-

122112 $

-$

-$

-$

-$

-$

-

511075 $

-$

-$

-$

892 $

274 $

-

532722 $

-$

-$

-$

19,159 $

5,896 $

-

171468 $

-$

-$

-$

-$

-$

-

161333 $

15,764 $

2,407 $

18,172 $

18,130 $

5,580 $

-

534311 $

-$

-$

-$

4,284 $

1,319 $

-

531086 $

-$

-$

-$

56,270 $ 17,318 $

-

533464 $

1,366 $

694 $

2,060 $

15,985 $

4,920 $

-

171336 $

-$

-$

-$

3,958 $

1,218 $

-

171031 $

-$

-$

-$

1,196 $

368 $

-

168804 $

3,205 $

1,084 $

4,290 $

4,557 $

1,402 $

-

536080 $

-$

-$

-$

1,671 $

514 $

-

168238 $

1,847 $

1,058 $

2,905 $

7,977 $

2,455 $

-

510913 $

-$

-$

-$

-$

-$

-

510850 $

13,324 $

15,859 $

29,183 $

57,073 $ 17,565 $

-

535763 $

-$

-$

-$

586 $

180 $

-

173141 $

-$

-$

-$

-$

-$

-

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo7n3-oTfI1O02nlPya)geID #: 5283

Employee Name (1)
REILLY, TIMOTHY J RELYEA, PAUL J RITTENHOUSE, KRIS THOMAS RIVENBURG, GUY ROMANO, ANTHONY ROWAN, TRICIA RUEDIN, THEODORE M RUSSELL, ROBERT SAHMEL, EVAN WILLIAM SANCHEZ, EUGENE SARKIS, SAMIR SATAS, WAYNE A SCALISI, THOMAS SCHIAVO, JOHN SCHUMAN, EDWARD SELENCHIK, STEPHEN SHAW, ROBERT K. SHEMBEDA, JOSEPH C SKINNER, JEREMY W SMITH,JONNY M SMOLENSKY, RONALD PAUL SPAGONE, ALEXANDER SPRANDEL, JAMES STACHNIUK, HENRY STASYS JR, JOSEPH STONE,LESLIE REBECCA STRANKO, THOMAS E SVENSEN, KURT KYLE THAYER, CHRISTOPHER THOBY, ADAM S THOMPSON, ROBERT C. TRAPANI, MARC TRAVER, PATRICA ANN TREMBLAY, MATTHEW A TULLY, MICHAEL L TURK, BRYAN D TURNER, DEREK W UNKNOWN VASQUEZ, EDWIN VAZQUEZ, LUIS

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

510883 $

-$

-$

-$

-$

-$

-

173478 $

-$

-$

-$

-$

-$

-

170675 $

1,305 $

(33) $

1,272 $

1,834 $

565 $

-

172465 $

57 $

20 $

76 $

259 $

80 $

-

510906 $

-$

-$

-$

149 $

46 $

-

172516 $

0$

(1) $

(1) $

1,474 $

454 $

-

168115 $

-$

-$

-$

628 $

193 $

-

175262 $

-$

-$

-$

-$

-$

-

171124 $

2,360 $

125 $

2,484 $

3,756 $

1,156 $

-

534312 $

101 $

69 $

170 $

459 $

141 $

-

534854 $

-$

-$

-$

866 $

266 $

-

171096 $

70 $

30 $

101 $

3,488 $

1,074 $

-

163550 $

723 $

396 $

1,120 $

1,213 $

373 $

-

173048 $

-$

-$

-$

1,228 $

378 $

-

127749 $

-$

-$

-$

-$

-$

-

511528 $

-$

-$

-$

-$

-$

-

163008 $

102 $

63 $

165 $

1,322 $

407 $

-

125892 $

306 $

271 $

577 $

2,685 $

826 $

-

511076 $

-$

-$

-$

293 $

90 $

-

166,958 $

260 $

10 $

270 $

4,459 $

1,372 $

-

170263 $

-$

-$

-$

-$

-$

-

534288 $

-$

-$

-$

-$

-$

-

176142 $

-$

-$

-$

-$

-$

-

511092 $

45,970 $

39,860 $

85,830 $

90,924 $ 27,983 $

-

536013 $

-$

-$

-$

-$

-$

-

162705 $

-$

-$

-$

513 $

158 $

-

170103 $

1,520 $

778 $

2,297 $

2,645 $

814 $

-

163391 $

2,432 $

1,229 $

3,661 $

2,918 $

898 $

-

168847 $

-$

-$

-$

-$

-$

-

511064 $

-$

-$

-$

1,165 $

358 $

-

534736 $

-$

-$

-$

-$

-$

-

510874 $

-$

-$

-$

196 $

60 $

-

161953 $

-$

-$

-$

-$

-$

-

172676 $

-$

-$

-$

2,444 $

752 $

-

168038 $

3,739 $

619 $

4,358 $

5,733 $

1,764 $

-

175133 $

-$

-$

-$

-$

-$

-

128617 $

4,559 $

1,914 $

6,473 $

5,969 $

1,837 $

-

121676 $

-$

-$

-$

-$

-$

-

172468 $

9$

3$

12 $

295 $

91 $

-

534056 $

-$

-$

-$

58 $

18 $

-

Table 4 Modified (Supp.) - ALTERNATIVE Case 1:07-cvD-0a0m98a1g-SeMsG, InDteorceusmte,natn1d64AuFdileitd P09a/y14m/1e1ntPsa(gNeo7n4-oTfI1O02nlPya)geID #: 5284

Employee Name (1)
VINING, SEAN VIOLANO, JOSEPH R VOGEL, RICHARD WAKELEE, KENT W WALKER, MICHAEL WARD, MICHAEL J WEBER, JODY VERNON WERNER, ANDREW KENNETH WEYAND, ANDREW DONALD WHITAKER, RICHARD WIBREW, FRANCIS W WICAI, NEIL R WILSON, VERONICA WROBLEWSKI, DAVID E ZIMERER, BRENO ZIMLINGHAUS, JOSHUA EDWARD ZINK, JOHN THOMAS

Damages +

Interest - Audit

Damages +

Interest on Payment - Aud.

Employee ID#

Damages

Interest

Interest

Audit Payment Audit Payment

Int.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

173140 $

-$

-$

-$

-$

-$

-

163917 $

202 $

122 $

324 $

832 $

256 $

-

121699 $

-$

-$

-$

-$

-$

-

165651 $

705 $

307 $

1,012 $

1,082 $

333 $

-

171168 $

-$

-$

-$

2,921 $

899 $

-

162693 $

749 $

455 $

1,205 $

4,662 $

1,435 $

-

171736 $

-$

-$

-$

280 $

86 $

-

174260 $

-$

-$

-$

-$

-$

-

173977 $

-$

-$

-$

-$

-$

-

510950 $

-$

-$

-$

-$

-$

-

174352 $

-$

-$

-$

-$

-$

-

167668 $

1,322 $

701 $

2,023 $

1,958 $

603 $

-

173049 $

21 $

4$

26 $

1,034 $

318 $

-

516129 $

-$

-$

-$

2,360 $

726 $

-

535173 $

-$

-$

-$

1,098 $

338 $

-

534061 $

-$

-$

-$

-$

-$

-

171825 $

-$

-$

-$

250 $

77 $

-

$ 12,666,099

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 75 of 102 PageID #: 5285

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

ROBERTO RAMOS, FRANK RODRIGUEZ, JOSE LUIS MALDONADO, JOSE FERNANDEZ, CHRIS MAIETTA, RANDY WRAY, ROGELIO SMITH, AGBAN AGBAN, YADIRA GONZALEZ, MAXIMO ESTRELLA, JR., JAMIE OYARVIDE, NACIM BENNEKAA, BRENO ZIMERER, OMAR FLOREZ, and RAFIU OWOLABI, individually and on behalf of all other persons similarly situated who are or were employed by SimplexGrinnell LP with respect to Public Works Projects mentioned in this Complaint,

-against-

Plaintiffs,

07 Civ. 0981(NG)(SMG)

SIMPLEXGRINNELL LP, Defendant.

THIRD REVISED EXPERT REPORT OF DAVID L. CRAWFORD, PH.D.
________________________________________________________________________
This document is a revision of my December 11, 2009 Second Revised Expert report, which incorporates information that was previously not provided by the Defendant.

I, David L. Crawford, Ph.D., do hereby affirm to the Court in the above-captioned case that the following is true and correct to the best of my knowledge, information, and belief:
1. I am an economist and the President of Econsult Corporation.

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 76 of 102 PageID #: 5286
2. I have extensive experience as a consultant and expert witness on economic and statistical issues under the auspices of Econsult Corporation since 1979. Much of that experience has involved analysis of employment issues for both plaintiffs and defendants.
3. Econsult Corporation is an economic consulting and litigation support firm in Philadelphia, Pennsylvania. Since its founding in 1979, Econsult Corporation has had extensive experience in economic and statistical analyses in a wide range of cases including employment discrimination and other employment issues, antitrust, infringement of intellectual property, other commercial claims, and personal injury.
4. I am also an Adjunct Professor of Management in the Wharton School of the University of Pennsylvania where I have taught courses in managerial economics, human resource management, labor economics, and statistics since 1984.
5. I received a Bachelor of Arts degree in economics from the University of North Carolina at Chapel Hill in 1971, and M.S. and Ph.D. degrees in economics from the University of Wisconsin in 1975 and 1979, respectively.
6. Exhibit 1 is my Curriculum Vitae (including my testimony appearances in the last 4 years).
7. I have been retained by Plaintiffs, through their attorneys Beranbaum Menken BenAsher & Bierman LLP, to examine data provided by Defendant and use those data to calculate damages suffered by the putative class of laborers, workmen, and mechanics who furnished labor to Defendant SimplexGrinnell LP (“Defendant”) on non-federal public works projects in the State of New York any time between February 6, 2001 and the date of final judgment in this matter (the “class” and “class period,” respectively) and who claim that they have not been paid prevailing wages as required by law.
2

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 77 of 102 PageID #: 5287
8. My billing rate for all of my work on this project is $400 per hour.
9. My analysis is based in part upon my training and experience in economics and its application, information received from counsel for Plaintiffs, and my review and analysis of the materials listed in Exhibit 2.
10. This report is necessarily preliminary because it is based on the information that is currently available to me. If additional information becomes available, I will consider it.
Data Received from Defendant
11. Data on hours worked and hourly wage and benefit rates from the Defendant’s Time Entry system were provided by counsel for the Defendant. Time entry data for the week-ending December 27, 2001 to June 11, 2009 were contained in an electronic file named Time Data Extract PE 2001 thru 2009.xls. Defendant has provided limited employee time data from its PeopleSoft and AS400 systems for the period February 6, 2001 to December 20, 2001. As described later in this report, I have used available data for the period December 21, 2001 to June 11, 2009 to estimate damages for the period June 12, 2009 to the end of the class period. If additional data become available, I will consider using them.
12. Defendant has also provided data on work performed on particular projects (hereafter project data) from the Legacy, ACE, AS400, and JOBCOST systems. Project data are included for the period February 2001 to June 2009, which were contained in electronic files listed in Exhibit 2. The data from the Legacy, ACE, AS400, and JOBCOST have been merged into a single data set that is called the Project Data set in this report. No project data have been provided for the period July 2009 to the date
3

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 78 of 102 PageID #: 5288
of this report, or, obviously, the period from the date of this report to the end of the class period. As described later in this report, I have used available data for the period ending July 2009 to estimate damages through the end of the class period. If additional data become available, I will consider using them.
13. Most of the employee identification numbers in the Project Data are 6-digit numbers, but the AS400 and Legacy data include some employee identification numbers with 3, 4, and 5 digits. In some cases, I have been able to convert 3, 4, and 5-digit identification numbers to 6-digit numbers based on information provided by defendant.
14. In my Revised Report of October 28, 2009, I inadvertently used zero regular wage and benefit rates for employees who appear in the project data with 140 IDs because my computer program did not find any regular wage data for them in the Time Entry data. Regardless of the reasons for the missing data, it was an error on my part to use zero regular wage and benefit rates in my calculations for the 140 employees who appear in the Project Data, but not in the Time Entry data. My correction of that error is described in detail in Appendix 1. I have now found nonzero regular wage and benefit data that allow me to calculate damages for 40 of the 140. I have excluded 69 of the remaining 100 IDs from my calculations based on recently received information regarding the job titles of the 69. For the remaining 31 of the 100 IDs, I have calculated the prevailing wages and benefits that they earned, but Defendant has represented that there are no data indicating who these IDs represent or what they were actually paid, so I have excluded those individuals from the calculation of damages. I have reported my calculations of prevailing wages and benefits earned under the 31 IDs in Table 2A. All of the corrections discussed in this paragraph, with the exception of including damages for 6 additional employees, have had the effect of lowering the amount of calculated damages reported in my Revised Report of October 27, 2009.
4

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 79 of 102 PageID #: 5289
Damages Calculated in this Report
15. The damages in this case are the differences between the wages and benefits that would have been received if prevailing wage and benefit rates had been applied whenever it was appropriate to do so for fire alarm and sprinkler work1 and the actual wages and benefits that were received for such work.
16. I am presenting damages associated with two types of work that are mutually exclusive in terms of their calculation:
a. All fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, excluding sprinkler work during the period February 6, 2001 to July 14, 2002 and
b. All fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, excluding sprinkler work during the period February 6, 2001 to July 14, 2002.
17. All of the damages that I have estimated in this report are associated with fire alarm and sprinkler work done in the State of New York for non-federal government agencies and public benefit corporations. A list of the included customers is contained in the electronic file PublicProjectsIncluded.xls that has been supplied with this report in Exhibit 3.
18. As part of his work for the SimplexGrinnell self-audit, Mr. Rob Crandall included lists of product types, which he used to identify work performed on public projects. Work showing product types, which were marked “OMIT” in these lists, has been excluded from all of my calculations.
1 Hereinafter “fire alarm and sprinkler work” shall also include work performed on other suppression and/or low voltage systems such as kitchen hoods, nurse call, CCTV, security systems and time and master clocks. A review of the data indicates that this other work constituted a very small amount of the work performed by the class of workers on public works projects.
5

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 80 of 102 PageID #: 5290
19. Following Mr. Crandall, records for which the trans_type includes the word “travel” or for which the service request type includes the word “survey” have been excluded from all calculations.
Hypothetical Calculation of Lost Wages and Benefits
20. My calculation of lost wages and benefits is illustrated with hypothetical data in Table 1.
21. Column 1 is the week identifier.
22. Column 2 is the employee’s regular wage rate.
23. Column 3 is the employee’s regular benefit rate.
24. Column 4 is the employee’s regular “wage and benefit rate” (the sum of columns 2 and 3).
25. Column 5 is the weighted average of applicable prevailing wage rates for all fire alarm and sprinkler work for non-federal public customers, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, in which the weights are the numbers of hours of work at each rate in the particular week (from the Project data). (A weighted average is required because there may be more than one applicable prevailing wage rate in a single week.) The determination of applicable prevailing wage and benefit rates is discussed below.
26. Column 6 is the weighted average of applicable prevailing benefit rates for all fire alarm and sprinkler work for non-federal public customers, except all fire alarm and
6

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 81 of 102 PageID #: 5291
sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, in which the weights are the numbers of hours of work at each rate in the particular week (from the Project data). (Again, a weighted average is required because there may be more than one applicable prevailing benefits rate in a single week.) The determination of applicable prevailing wage and benefit rates is discussed below in the next section.
27. Column 7 is the employee’s weighted average applicable prevailing “wage and benefit rate” for all fire alarm and sprinkler work except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City (the sum of columns 5 and 6).
28. Column 8 is the weighted average of applicable prevailing wage rates for fire alarm and sprinkler testing and inspection work other than fire alarm testing and inspection for the Government of New York City, in which the weights are the numbers of hours of work at each rate in the particular week (from the Project data). (Again, a weighted average is required because there may be more than one applicable prevailing wage rate in a single week.) The determination of applicable prevailing wage and benefit rates is discussed below.
29. Column 9 is the weighted average of applicable prevailing wage rates for fire alarm and sprinkler testing and inspection work other than fire alarm testing and inspection for the Government of New York City, in which the weights are the numbers of hours of prevailing wage work at each rate in the particular week (from the Project data). (Again, a weighted average is required because there may be more than one applicable prevailing wage rate in a single week.) The determination of applicable prevailing wage and benefit rates is discussed below.
30. Column 10 is the employee’s weighted average applicable prevailing “wage and benefit rate” for all fire alarm and sprinkler testing and inspection work other than fire
7

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 82 of 102 PageID #: 5292
alarm testing and inspection for the Government of New York City (the sum of columns 8 and 9).
31. Column 11 is the week identifier (same as column 1).
32. Column 12 is the number of straight-time hours for which the employee earned prevailing wages and benefits in each particular week doing any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for nonfederal public customers (from the Project Data).
33. Column 13 is the number of overtime hours for which the employee earned prevailing wages and benefits in each particular week doing any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for nonfederal public customers (from the Project Data).2
34. Column 14 is the total number of straight-time hours of fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal public customers that were paid at prevailing wage and benefit rates according to the Time Entry, PeopleSoft, or AS400 pay data.3
35. Column 15 is the total number of overtime hours of fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal public
2 I have treated double-time hours on prevailing wage work as though they were straight-time hours. 3 Paid straight-time hours were allocated first to fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City. Any remaining hours are allocated to fire alarm and sprinkler testing and inspection work other than fire alarm testing and inspection for the Government of New York City. Any hours remaining after those allocations to the two categories are assigned to the first category.
8

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 83 of 102 PageID #: 5293
customers that were paid at prevailing wage and benefit rates according to the Time Entry, PeopleSoft, or AS400 pay data.4
36. Column 16 is the number of straight-time hours for which the employee earned prevailing wages and benefits in each particular week doing fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers (from the Project Data).
37. Column 17 is the number of overtime hours for which the employee earned prevailing wages and benefits in each particular week doing fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers (from the Project Data).5
38. Column 18 is straight-time hours of fire alarm and sprinkler testing and inspection work other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers in that week that were paid at prevailing wage and benefit rates according to the Time Entry, PeopleSoft, or AS400 pay data.6
39. Column 19 is overtime hours recorded as prevailing wage fire alarm and sprinkler testing and inspection work other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers in that week that were paid at prevailing wage and benefit rates according to the Time Entry, PeopleSoft, or AS400 pay data.7
40. Column 20 is the week identifier (same as columns 1 and 11).
41. Column 21 of Table 1 is unpaid straight time hours of any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm
4 Paid overtime hours were allocated as described in the previous footnote. 5 Again, I have treated double-time hours on prevailing wage work as though they were straight-time hours. 6 Paid straight-time hours were allocated as described in footnote 3. 7 Paid overtime hours were allocated as described in footnote 3.
9

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 84 of 102 PageID #: 5294
testing and inspection for the Government of New York City , for non-federal public customers, defined as
a. straight-time hours for which the employee earned prevailing wages and benefits in a particular week (from the Project Data) doing any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City , for non-federal public customers (column 12) minus
b. estimated straight-time hours actually paid at prevailing wage and benefit rates for any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City , for non-federal public customers, which I define as the total number of hours of any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City , for non-federal public customers that were paid at prevailing wage and benefit rates according to the Time Entry, PeopleSoft, or AS400 pay data.(column 14).
42. Column 22 of Table 1 is analogous to Column 21 except that it is based on overtime hours. Specifically, Column 22 is
a. overtime hours for which the employee earned prevailing wages and benefits in a particular week (from the Project Data) doing any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City , for non-federal public customers (column 13) minus
b. estimated overtime hours actually paid at prevailing wage and benefit rates for any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City , for non-federal public customers, which I
10

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 85 of 102 PageID #: 5295
define as the total number of overtime hours of any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City , for non-federal public customers that were paid at prevailing wage and benefit rates according to the Time Entry, PeopleSoft, or AS400 pay data (column 15).8
43. Column 23 of Table 1 is unpaid wages and benefits for any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City , for non-federal public customers, defined as the sum of a. the product of column 5 and column 21 plus the product of columns 6 and 21, plus b. 150% of the product of column 5 and column 22 plus the product of columns 6 and 22.
44. Column 24 is the regular wages and benefits that were paid for any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City , for nonfederal public customers, defined as the sum of a. The product of column 2 and column 21 plus the product of columns 3 and 21, plus b. 150% of the product of column 2 and column 22 plus the product of columns 3 and 22.
45. Column 25 is lost wages and benefits (column 23 minus column 24, if positive, otherwise zero9) for any fire alarm and sprinkler work, except all fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City , for non-federal public customers.
8 Paid overtime hours were allocated as described in footnote 3. 9 Difference will be negative if regular wage is larger than relevant prevailing wage.
11

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 86 of 102 PageID #: 5296
46. Column 26 of Table 1 is unpaid straight time hours of fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers, defined as
a. straight-time hours for which the employee earned prevailing wages and benefits in a particular week (from the Project Data) doing fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers (column 16) minus
b. straight-time hours of fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers in that week that were paid at prevailing wage and benefit rates according to the Time Entry, PeopleSoft, or AS400 pay data (column 18).
47. Column 27 of Table is analogous to Column 26 except that it is based on overtime hours. Specifically, Column 27 is
a. overtime hours for which the employee earned prevailing wages and benefits in a particular week (from the Project Data) doing fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers (column 17) minus
b. overtime hours recorded as prevailing wage fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers in that week that were designated prevailing wage work using the PW indicator variable in the Project Data (column 19).
12

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 87 of 102 PageID #: 5297
48. Column 28 of Table 1 is unpaid wages and benefits for all prevailing wage fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers, defined as the sum of a. The product of column 8 and column 26 plus the product of columns 9 and 26, plus b. 150% of the product of column 8 and column 27 plus the product of columns 9 and 27.
49. Column 29 is the regular wages and benefits that were paid for prevailing wage fire alarm and sprinkler testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers, defined as the sum of a. The product of column 2 and column 26 plus the product of columns 3 and 26, plus b. 150% of the product of column 2 and column 27 plus the product of columns 3 and 27.
50. Column 30 is lost wages and benefits (column 28 minus column 29, if positive, otherwise zero10) for testing and inspection other than fire alarm testing and inspection for the Government of New York City, for non-federal, public customers.
Implementing the Calculation
51. I have implemented the calculation described above with the Project Data and Time Entry data that were provided by the Defendant. I have calculated damages for all individuals who appear in the Project Data doing fire alarm and sprinkler work for non-federal public customers, except when they appear with the following titles: ADMINISTRATIVE ASSISTANT, ANALYST DEFICIENCIES,
10 Difference will be negative if regular wage is larger than relevant prevailing wage.
13

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 88 of 102 PageID #: 5298
CONSTRUCTION MANAGER, CONTRACT ADMINISTRATIVE ASST, DEFICIENCY SPECIALIST, DESIGN MANAGER, DESIGNER, DISPATCHER, DRAFTER/CAD OPERATOR I, DRAFTER/CAD OPERATOR II, ELECT MAC SERVICE SALES REP, ELECTRONIC SYSTEMS SALES REP, ESTIMATOR, FIELD PROJECT MANAGER, FUNCTIONAL BUSINESS ADVISOR, INSPECTION MANAGER, INVENTORY SPECIALIST, OFFICE MANAGER, OPERATIONS MANAGER I, OPERATIONS MANAGER II, OPERATIONS MANAGER III, PMA SALES REP, PRODUCT MANAGER, PROJECT ENGINEER, PROJECT MANAGER, RECEPTIONIST, ROUTE SVC/SLS REP RSSR, SERVICE COORDINATOR, SERVICE SLS REP – SUPPRESSION, SHOP TECHNICIAN, SHOP TECHNICIAN I, SHOP TECHNICIAN II, SPRINKLER DESIGNER II, SPRINKLER SERVICE SALES REP, SPRINKLER SVC & PMA SLS REP, SUPERVISOR11, TOTAL SERVICE MANAGER I.
52. The determination of applicable prevailing wage and benefit rates for fire alarm work is based on the date the work was performed, the location of the work, the type of product associated with the work, the New York Department of Labor Prevailing Wage charts for the years 2001-2009, and the New York City Comptroller’s prevailing wage and benefit rates for projects for New York City. The determination of applicable prevailing wage and benefit rates for sprinkler work is based on the date the work was performed, the location of the work, the type of product associated with the work, the New York Department of Labor Prevailing Wage charts for the years 2001-2009, and Mr. Crandall’s information regarding prevailing wages.12 13
11 I have included 3 employees with the title Supervisor who were identified by defendant as meeting the definition of the class proposed by plaintiff in the file Employee list.xls. 12 In this revised report, I have made corrections for counties that have different rates for different subcounty areas. The corrections are to determine the applicable rate based on the work location within the county. 13 I have been unable to obtain New York Department of Labor Prevailing Wage Charts for July 2000 to June 2001 for many of the counties. In such cases I have estimated the prevailing rates for July 2000 to June 2001 as 95.8% of the rates for July 2001 to June 2002 based on the growth of hourly earnings of production workers employed by specialty trade contractors in New York State from the first half of 2001 to the first half of 2002. http://www.labor.state ny.us/workforceindustrydata/ceshourearn2.asp)
14

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 89 of 102 PageID #: 5299
53. When the county in which the work was done is not available in the Project Data, the average rate across all counties in that year has been used.14 When the New York State regulations specify different prevailing wage and benefit rates for fire alarm technician, teledata, and electrician, the fire alarm technician rate has been used for fire alarm work. When the New York regulations specify different prevailing wage and benefit rates for teledata, and electrician, the teledata rate has been used for fire alarm work. When the New York State regulations specify only prevailing wage and benefit rates for electrician, the electrician rate has been used for fire alarm work.
54. When Crandall’s data show different prevailing wage and benefit rates for sprinkler work (sprinkler fitter install – 638A) and sprinkler maintenance (Sprinklerfitter Refrig. - 638B), the lower maintenance rate has been used for sprinkler work.
55. The New York City Comptroller specifies prevailing wage and benefit rates for fire alarm work and sprinkler work for which New York City is the customer. I have used the Comptroller’s rates to calculate damages associated with fire alarm work and sprinkler work for which New York City is the customer.
56. Regular rates paid for Prevailing Wage work were taken from the Time Entry data.
57. I have used the method described above to compute lost wages and benefits for each member of the putative class for whom Defendant has provided sufficient data over the period from February 2001 to June 11, 2009.15 16
14 For this revised report, I have substantially reduced the number of records that are missing county information. (This reduction was achieved by correcting the spelling of Niagara , treating “Hamilton” and “Hamilton County” as a match, and inferring some missing counties from the names of towns. 15 For my Revised Report of October 28, 2009, my computer algorithm incorrectly calculated positive damages for a small percentage of person-weeks that had negative unpaid prevailing wage hours and a prevailing wage and benefit rate that was less than the employee’s regular wage and benefit rate. I have now inserted an override for such cases that resets damages to zero. 16 The Project Data provided by Defendant include some very large values of hours worked in individual weeks. 168 (less than 0.2%) of the person-weeks show more than 100 hours. I have included these values in the calculations reported in the tables of this report. To provide a sense of the impact of the large values, I have determined that the damages implied by the 168 person-weeks are $388,627. If additional information becomes available, I may reconsider the inclusion of these damages.
15

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 90 of 102 PageID #: 5300
Estimation of Net Losses from June 12, 2009 to December 31, 2009
58. The data that can be used to estimate lost wages ends on June 11, 2009, so it is necessary to estimate lost wages and benefits for the period from June 12, 2009 through December 31, the assumed date of final judgment. I have estimated damages for that period with the damages that were calculated for the corresponding weeks in 2008. If actual Time Entry and Project Data for the remainder of 2009 become available, I will recalculate damages for that period using the methods that I have used to estimate damages through June 11, 2009.
Interest
59. I have calculated 9% simple interest on the damages for each individual for each week. Interest is calculated from the end of the particular week to December 31, 2009, the assumed date of final judgment. This calculation can be easily revised if the date of final judgment turns out to be earlier or later than I have assumed.
Damage and Interest Estimates
60. Table 2 shows damages and interest for each individual employee:
a. The individual damages associated with all fire alarm and sprinkler work, except testing and inspection for customers other than New York City, excluding sprinkler work during the period February 6, 2001 to July 14, 2002 are listed in column 3 of Table 2. The related interest amounts are displayed in column 4 of Table 2.
b. The individual damages associated with fire alarm and sprinkler testing and inspection for customers other than New York City, excluding sprinkler work during the period February 6, 2001 to July 14, 2002 are
16

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 91 of 102 PageID #: 5301
listed in column 6 of Table 2. The related interest amounts are displayed in column 7 of Table 2.
61. As I noted in an earlier section of this report, I have been unable to compute damages associated with 31 IDs because Defendant has not provided Time Entry or similar data for them. I have calculated the prevailing wages and benefits earned under all 31 IDs. I have displayed the results of my calculations of prevailing wages and benefits earned under the 31 IDs in Table 2A.
62. Table 3 shows the total damages and interest for all individuals by time period17: a. The individual damages associated with all fire alarm and sprinkler work, except testing and inspection for customers other than New York City, excluding sprinkler work during the period February 6, 2001 to July 14, 2002 are listed in column 3 of Table 2. The related interest amounts are displayed in column 4 of Table 2. b. The individual damages associated with fire alarm and sprinkler testing and inspection for customers other than New York City, excluding sprinkler work during the period February 6, 2001 to July 14, 2002 are listed in column 5 of Table 3. The related interest amounts are displayed in column 6 of Table 3.
63. The sums of damages and interest for each individual across types of work are displayed in columns 3 and 4 of Table 4. 18
17 Table 3 reflects all of the corrections described in this report and its appendix 1. 18 The figures in Tables 3 and 4 do not reflect any damages that may have been associated with the 31 IDs associated with Table 2A.
17

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 92 of 102 PageID #: 5302
Adjusting for Audit Payments 64. Some of the putative class members received payments as a result of audits conducted
in 2007 and 2008. Individuals’ total audit payments are displayed in column 6 of Table 4. 19 I have computed 9% simple interest on each audit payment from the date of the payment to December 31, 2009, the assumed date of final judgment. Interest on the audit payments is displayed in column 7 of Table 4. 65. In column 8 of Table 4, I have displayed the sum of damages and interest minus the audit payment and the interest on the audit payment, which is the total amount due to each class member.
Summary 66. This report describes and incorporates my corrections of the calculations I presented
in my Second Revised Report of December 11, 2009. 67. This report describes my calculations of lost wages and benefits plus interest minus
audit payments and the interest on the audit payment for members of the putative class. The total due to the putative class is the sum of column 8 of Table 4, which is $16,136,638.
David L. Crawford, Ph.D. December 31, 2009
19 Table 4 reflects all of the corrections described in this report and its Appendix 1.
18

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 93 of 102 PageID #: 5303

EXHIBIT 1

CURRICULAR VITAE AND TESTIMONY LIST DAVID L. CRAWFORD, PH.D.

Econsult Corporation 3600 Market Street – Sixth Floor Philadelphia, PA 19104 Voice: (215) 382-1894 Fax: (215) 382-1895 E-mail: crawford@econsult.com

September 2009

EDUCATION

University of Wisconsin, Madison, 1972-1976 Ph.D. Economics, 1979, M.S. Economics, 1974

University of North Carolina, Chapel Hill, 1968-1972 B.A. with Honors, Economics, 1971 Phi Beta Kappa

CURRENT POSITIONS

President and Founder, Econsult Corporation, Philadelphia, PA, since 1979 (on leave 1988 - 1989). Provides economic and statistical consulting for private firms and government agencies including expert testimony in PA, NJ, NY and federal courts and other economic and statistical analyses. Has consulted extensively on human resource management issues. Directed a major study of labor and management problems at the Pennsylvania Convention Center that received wide support from business, labor, and government and became the template for a new collective bargaining agreement that dramatically changed the way work is done at the Center. Has advised the Administrative Office of the Pennsylvania Courts, Delaware County (Pennsylvania) government, Philadelphia Community College, the Colonial School District (Pennsylvania), the Philadelphia School District, and the Bermuda Ministry of Finance on human resource management issues. Litigation experience includes employment discrimination, employment termination, damage analysis, personal injury, antitrust, and intellectual property.

Adjunct Professor of Management, The Wharton School, University of Pennsylvania, Philadelphia, PA, since 1991. Teaching managerial economics and human resource management to Executive MBA and undergraduate students. Received Excellence in Teaching Award from Wharton MBA students (1987), Irving B. Kravis Prize for Distinction in Undergraduate Teaching in Economics (1991), Wharton Dean's Award for Excellent Teaching in the MBA Core Curriculum (1992), and Wharton Executive MBA Core Teaching Award (1997, 2005, 2006, and 2009).

21

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 94 of 102 PageID #: 5304
PAST POSITIONS
Senior Advisor, Philadelphia Mayor’s Advisory Council on Construction Industry Diversity, 2008-9.
Policy Advisor, Philadelphia Mayoral Campaign of Michael Nutter, 2006-7.
Member, Program Evaluation Committee, Philadelphia 21st Century Review Forum, Appointed by Mayor John Street, 2004.
Member, Board of Senior Scholars, The National Center on the Educational Quality of the Workforce, University of Pennsylvania, Philadelphia, PA, 1991-1996.
Director, Employment Management Association Foundation. Elected by Board of Directors, 1993-1995.
Chairperson, New Jersey State Council on Vocational Education. Appointed to Council by Governor Florio; Elected chairperson by Council members; 1991-1994.
Commissioner, New Jersey State Employment and Training Commission. Appointed by Governor Florio; Chairperson of Occupational Education Task Force; Member of Executive Committee, 1990-1994.
Member, Philadelphia Naval Shipyard Labor and Retraining Committee. Appointed by the Director of Commerce of the City of Philadelphia.
Executive Director, Secretary's Commission on Workforce Quality and Labor Market Efficiency, U.S. Department of Labor, Washington, DC, 1988-1989. Appointed by Secretary McLaughlin.
Various Adjunct Faculty Positions in the Departments of Management and Economics, University of Pennsylvania, Philadelphia, PA, 1984-1996. Taught managerial economics and human resource management to MBA students (including Executive MBA), labor economics to undergraduate students in the Economics Department, and statistics to graduate students in the Annenberg School of Communications.
Assistant Professor of Economics, Rutgers University, New Brunswick, NJ, 1981-1985, on leave 1984-1985. Taught introductory economics and intermediate microeconomics.
Lecturer of Economics, Assistant Professor of Economics, University of Pennsylvania, Philadelphia, PA, 1976-1982, on leave 1981-1982. Taught introductory economics, undergraduate statistics, undergraduate labor economics, and graduate econometrics.
22

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 95 of 102 PageID #: 5305
PUBLICATIONS AND WORKING PAPERS
“Should Governments Cut Fuel Taxes? No!” Business Spotlight, November-December 2008, p. 26.
“’Oil Futures’ Are a Phony Target”Philadelphia Daily News Op-Ed, August 4, 2008.
“We Need a Gas-Tax Hike, Not a Tax Holiday” Philadelphia Daily News Op-Ed, May 12, 2008 (with Richard Voith).
“’It’s Going to Cost Whatever It Costs’” Philadelphia Daily News Op-Ed, September 20, 2005.
“George W. Bush, CEO: How’s He Doing?” Philadelphia Daily News Op-Ed, October 12, 2004.
“Smart Growth and Affordable Housing,” Chapter 3 of Growth Management and Affordable Housing – Do They Conflict?, Brookings Institution Press, 2004 (with Richard Voith).
“Performance-Based Pay for Teachers Will Work,” Philadelphia Daily News Op-Ed, October 20, 2003 (with Anita Summers).
“Convention Center Deal: Truly a Grand Slam,” Philadelphia Daily News Op-Ed, July 24, 2003.
“Unify the Workforce,” Philadelphia Inquirer Op-Ed, June 13, 2003.
“Simple Inference in Multinomial and Ordered Logit,” Econometric Reviews, 17(3), 289-299 (1998) (with Robert Pollak and Francis Vella).
"Schools and Labor Market Outcomes," Economics of Education Review, June 1997, 255-269 (with Amy W. Johnson and Anita A. Summers).
"Managing Diversity," Next Step, Winter 1997.
"Introduction," Chapter 1 of The Social Benefits of Education, edited by Jere R.Behrman and Nevzer G. Stacey, The University of Michigan Press, (with Jere R. Behrman and Nevzer G. Stacey), Winter 1997.
"Conclusion," Chapter 8 of The Social Benefits of Education, edited by Jere R. Behrman and Nevzer G. Stacey, The University of Michigan Press, (with Jere R. Behrman and Nevzer G. Stacey), Winter 1997.
"Workforce Diversity: Sources and Implications," Next Step, Fall 1996.
23

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 96 of 102 PageID #: 5306
"Investing in People," Chief Executive, October 1990. Reprinted in J.P. Donlon, editor, The Best of Chief Executive, Homewood, Illinois: Business One Irwin, 1993. "Labor Economics and Public Policy," in Labor Economics and Public Policy, volume in Research in Labor Economics series, edited by Laurie J. Bassi and David L. Crawford, JAI Press, (with Laurie J. Bassi), 1990. "Labor Union Objectives and Collective Bargaining," Quarterly Journal of Economics, August 1984, 547-66 (with Douglas H. Blair). Reprinted in P. Garonna, P.A. Mori, and P. Tedeschi, editors, Economic Models of Trade Unions, London, UK: Chapman and Hall, 1991. To be reprinted in A. L. Booth, editor, The Economics of Labor Unions, Cheltenham, UK: Edward Elgar, 2002, as part of The International Library of Critical Writings in Economics. "New Evidence on the Labor Supply Elasticity of Prime-Aged White Males," Bureau of Economic Research Working Paper 82-9, Rutgers University, December 1982. "A Note on Misspecification and Univariate Truncation,” June 1982. "Order and Inference in Qualitative Response Models," Bureau of Economic Research Working Paper 82-4, Rutgers University, June 1982. (with Robert A. Pollak). "Production Function Estimates of Capacity Utilization," (with G. Fromm, L.Klein, M. Prywes, and F. Ripley), 1980. "School Performance," Part IV, Chapter 12, Rural Income Maintenance Experiment Final Report, (with Rebecca Maynard), 1977. "The Wage Work Response of Elderly Heads," Part IV, Chapter 7, Rural Income Maintenance Experiment Final Report, 1977. "The Wage Work Response of Female Heads," Part IV, Chapter 5, Rural Income Maintenance Experiment Final Report, (with Steven G. Garber), 1977. "Estimating Earnings Functions from Truncated Samples," Institute for Research on Poverty Discussion Paper 287-75. University of Wisconsin, July 1975.
BOOK EDITED Labor Economics and Public Policy, volume in Research in Labor Economics series, JAI Press, (with Laurie J. Bassi), 1990.
24

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 97 of 102 PageID #: 5307
EXPERT TESTIMONY OF DR. DAVID L. CRAWFORD, PH.D.
SINCE AUGUST 2005
1. Howard Casper v. SMG (formerly known as Spectacor Management Group) and Robert McClintock and South Jersey Regional Carpenters, Local 623, U.S. District Court For The Eastern District Of Pennsylvania: No. 00-3465. Testified for defendant in antitrust case. (August 2005)
2. Theresa Piascik and Henry Piascik v. Crown American Association, et al., Dauphin County Court of Common Pleas: No. 5132 CV 2004. Testified for plaintiff in personal injury case. (March 2006)
3. Michael P. Randazzo v. Lucia, et al., Circuit Court for Anne Arundel County: Case No. 02C04097412. Testified for plaintiff in personal injury case. (June 2006)
4. Lori Gee v. State Farm Insurance, Superior Court of New Jersey, Essex County, Docket No. L-3110-05. Testified for plaintiff in employment discrimination case. (January 2007)
5. Ziner v. Cedar Crest College, U.S. District Court For The Eastern District Of Pennsylvania: No. 04-3491. Testified for defendant in employment discrimination case. (Deposition - June 2007)
6. Gail Weber v. Lancaster Newspapers, Inc., et al., Lancaster County Court of Common Pleas: No. CI-98-13401. Testified for defendants in defamation case. (Trial - July 2007)
7. Walter Mairose, Ind. And Executor of Estate of Mae I. Mairose, et al. v. The Dow Chemical Company, et al., Circuit Court for Baltimore City, State of Maryland. Case No. 24-C06-011110. Testified for group of defendants regarding alleged conspiracy to conceal information. (Deposition - July 2008)
8. Office of Federal Contract Compliance Programs v. Bank of America, Case No. 1997-OFC-16, SOL Case No. 96-10335. Testified for OFCCP in employment discrimination case. (Deposition - August 2008)
9. Susan Duling and Margaret Anderson, on behalf of themselves and all others similarly situated v. Gristede’s Operating Corporation, et al., U.S. District Court for the Southern District of New York, 06 Civ. 10197 (LTS) (HBP). Testified for plaintiffs in employment discrimination case. (January 2009)
10. Office of Federal Contract Compliance Programs v. Bank of America, Case No. 1997-OFC-16, SOL Case No. 96-10335. Testified for OFCCP in employment discrimination case. (Trial - March 2009)
25

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 98 of 102 PageID #: 5308
11. Office of Federal Contract Compliance Programs v. Bank of America, Case No. 1997-OFC-16, SOL Case No. 96-10335. Testified for OFCCP in employment discrimination case. (Deposition - May 2009)
12. Carlos Torres et al., on behalf of themselves and all others similarly situated v. Gristede’s Operating Corporation, et al., U.S. District Court for the Southern District of New York, 04 Civ. 3316 (PAC). Testified for plaintiffs in employment discrimination case. (Deposition - June 2009)
13. Nilda Gutierrez et al., individually and as Class Representatives v. Johnson & Johnson, U.S. District Court for the District of New Jersey, Civil Action No. 015302 (WHW). Testified for plaintiffs in employment discrimination case. (Deposition – November 2009)
14. Roberto Ramos et al., , individually and on behalf of all other persons similarly situated who are or were employed by SimplexGrinnell LP with respect to Public Works Projects v. SimplexGrinnell LP, U.S. District Court for the Eastern District of New York, 07 Civ. 0981 (NG) (SMG). Testified for plaintiffs in prevailing wage. (Deposition – November 2009)
26

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 99 of 102 PageID #: 5309
EXHIBIT 2
DOCUMENTS REVIEWED
First Amended Class Action Complaint
Depositions Aim’ee Burgoin Rob Crandall Christie Hext (pages 46-49, 138-141, 178-181) Shawn Love (pages 114-117) David Crawford (November 20, 2009)
220-2008-2009-Final.pdf 220PrevailingWageSchedule06-07.pdf 220PrevailingWageSchedule07-08.pdf 230-2000_w_addend.pdf 230-2001.pdf 230-2002_publish.pdf 230-2008-2009-FINAL.pdf 230-2009-2010-FINAL.pdf 230PrevailingWageSchedule05to06.pdf 230PrevailingWageSchedule06-07.pdf 230PrevailingWageSchedule07-08.pdf 230-Prevailing-Wage-Schedule-03to04.pdf 230-Prevailing-Wage-Schedule-04to05.pdf Employee list.xls Time Data Extract PE 2001 thru 2009.xls NYS DOL Prevailing Wage Schedules and Summaries:
PW chart 01-02.doc PW chart 02-03.doc PW chart 03-04.doc PW chart 04-05.doc PW chart 05-06.doc PW chart 06-07.doc PW chart 07-08.doc PW chart 08-09.doc Defendant’s Exhibit 604 5 pages labeled EMPL_LIST_ACTIVE_LOC December 4, 2009 Email from Mr. Cappozola to Mr. Menken (including attachment) December 7, 2009 Email from Mr. Cappozola to Mr. Fay and Mr. Menken (including attachment)
27

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 100 of 102 PageID #: 5310
December 8, 2009 Email from Mr. Cappozola to Mr. Fay, Mr. Rozger, and Mr. Menken (including attachments) December 9, 2009 Email Mr. Cappozola to Mr. Fay and Mr. Menken (including attachments) December 9, 2009 Email from Mr. Copus to Mr. Rozger and Mr. Cappozola ACE Data Extract – Descrp of Fields.xls Job Cost Data Extract – Descrp of Fields.xls Legacy Data Extract – Descrp of Fields.xls Time Entry Data Extract – Descrp of Fields.xls SG 11-23-09 D Mot Compel.pdf (with Exhibits A, B, D, E and F) PeopleSoft data 2001.xls December 21, 2009 Email Mr. Cappozola to Mr. Menken (including attachments)
• PS data produced 12-21-09.xls • Time Entry data produced 12-21-09
PROJECT DATA SOURCE FILES
ACE Data Extract_NYS_062309.txt JobCost Data Extract Stage Tbl_NYS_062309.txt
Legacy Data Extract_NYS_062409.txt AS400.xls
AS400 Proj Data for Time Entry 6 Digit List.xls
PUBLIC JOB LISTS SOURCE FILES
AS400 Projects by District 12-15-2008.xls ACE Public Projects-Data Request 12152008.xls ACE Public Projects-Data Request 12152008_district 101.xls
JC Projects by District 12-15-2008.xls Legacy Public Projects-Data Request 12152008 part1.xls Legacy Public Projects-Data Request 12152008 part2.xls
PRODUCT TYPE SOURCE FILES
Filters for All Systems and Time Entry (As of June 18 2008).xls
28

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 101 of 102 PageID #: 5311 SPRINKLER PREVAILING WAGE SOURCE FILES NY Sprinkler rates 2001_2003.xls NYS Sprinkler Rates Issued July 1, 2004.xls NYS Sprinkler Rates Issued July 1, 2005.xls NYS Sprinkler Rates Issued July 1, 2006.xls NYS Sprinkler Rates Issued July 1, 2007.xls
29

Case 1:07-cv-00981-SMG Document 164 Filed 09/14/11 Page 102 of 102 PageID #: 5312
EXHIBIT 3 (NOT INCLUDED IN JULY 22, 2011 SUPPLEMENTAL REPORT)
Computer Disk Containing PublicProjectsIncluded.xls (Same file as Exhibit 3 to October 28, 2009 Report)
30

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------x ROBERTO RAMOS, et al.,

-against-

Plaintiffs,

Memorandum & Order 07-CV-981 (SMG)

SIMPLEXGRINNELL LP,

Defendant.
-----------------------------------------------------x Gold, S., United States Magistrate Judge:

On June 21, 2011, after substantial briefing and oral argument, I issued a detailed

Memorandum and Order granting plaintiff’s motion for class certification, partially granting and

partially denying defendant’s motion for summary judgment, denying defendant’s motion to

preclude expert testimony, and denying plaintiff’s motion for summary judgment. Docket Entry

154. On August 8, 2011, I issued a second Memorandum and Order denying defendant’s motion

for leave to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Docket Entry 161.

Defendant has now submitted a letter dated September 15, 2011. Docket Entry 165. In

its letter, defendant announces that it will be seeking leave to file another motion for summary

judgment and for decertification of the class that was just certified. Defendant’s application is

based upon its own records which, it contends, demonstrate its entitlement to summary judgment.1 Plaintiffs urge in response that the Court should deny defendant leave to bring the

described anticipated motions. Docket Entry 167.

Defendant’s application in essence seeks leave to move for reconsideration of my

decision partially denying its motion for summary judgment. However, motions for

1 Defendant also states that it may seek an additional deposition session with plaintiff’s expert, Dr. Crawford. I do not address this issue because defendant only suggests the possibility that it will seek a further deposition and does not now move to reopen discovery for that purpose.

reconsideration must be brought within fourteen days of the Court’s determination of the original motion. Local Civil Rule 6.3. Even assuming that defendant’s Section 1292(b) motion extended the time to move for reconsideration, defendant’s motion would be untimely and subject to being denied on that basis. See Cyrus v. City of New York, 2010 WL 148078, at *1 (E.D.N.Y. Jan. 14, 2010) (noting that “the untimely filing of a motion pursuant to Local Rule 6.3 is a sufficient basis for denial of the motion”).
Moreover, a motion for reconsideration based upon the grounds described in defendant’s letter would be entirely without merit. Generally, a motion for reconsideration is appropriate only when the Court has overlooked controlling decisions or factual matters put before it on the underlying motion, or where there has been an intervening change in the law or new evidence has become available. See, e.g., Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Tatum v. City of New York, 2009 WL 976840, at *1 (S.D.N.Y. Apr. 9, 2009); Zinnamon v. Bank of New York, 2006 WL 1652662, at *1 (E.D.N.Y. June 8, 2006). A party seeking reconsideration may not, therefore, put forth new facts or issues that could have been presented in support of its original motion. Cohen v. Federal Exp. Corp., 2007 WL 1573918, at *4 (S.D.N.Y. May 24, 2007). These standards are strictly applied, with the result that motions for reconsideration are rarely granted. Zinnamon, 2009 WL 1652662, at *1.
When a motion for reconsideration is based on a claim of newly discovered evidence, “the movant must demonstrate that the newly discovered evidence could not have been discovered ‘with reasonable diligence’ prior to the court’s ruling.” Tatum, 2009 WL 976840, at *1. Here, the documents defendant refers to in its letter are its own, and defendant does not even attempt to argue that the documents were unavailable or could not have been discovered before
2

its summary judgment motion was decided. Accordingly, defendant has failed to raise appropriate grounds for a motion for reconsideration.
Defendant’s application could be construed as seeking leave to file a second motion for summary judgment. Whether to permit a party to make such a motion generally rests within a court’s discretion. 11 Moore’s Federal Practice § 56.121[1][b]. Of particular relevance here, though, “[c]ourts are more likely to find a successive motion appropriate when it is supported by additional facts that were not available at the time of the first motion.” Id. As indicated above, that is not the case here. See also Int’l Bus. Machines v. Johnson, 2009 WL 2356430, at *2 (S.D.N.Y. July 30, 2009) (holding that party would not be permitted “to litigate this matter through piecemeal, seriatim motions requesting the same relief, especially when the information that is the basis for the successive motion was in [that party’s] possession at the time of the filing of its first motion”); Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D.N.Y. 2004) (refusing to entertain a second summary judgment motion where movant failed to present facts or arguments that could not have been raised in support of its original motion, emphasizing that “parties ought to be held to the requirement that they present their strongest case for summary judgment when the matter is first raised”) (internal quotations and citations omitted).
3

For the reasons stated above, to the extent defendant’s letter is intended as an application for leave to bring a motion for reconsideration or a second motion for summary judgment, the application is denied.
SO ORDERED. /s/
STEVEN M. GOLD United States Magistrate Judge Brooklyn, New York October 4, 2011
U:\ramos 100311.docx
4

 
 Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 1 of 26 PageID #: 8266

BERANBAUM MENKEN LLP Bruce Menken Jason Rozger 80 Pine Street, 33rd Floor New York, New York 10005 (212)509-1616 (212)509-8088

MEHRI & SKALET, PLLC Raymond C. Fay Taryn Null 1250 Connecticut Ave NW, Suite 300 Washington, DC 20036 (202)822-5100 (202)822-4997 (fax)
Attorneys for Plaintiffs
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Grant Petersen David Copus Dominick Capozzola 10 Madison Avenue, Suite 400 Morristown, NJ 07960 (973) 656-1600 (973) 656-1611

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------

ROBERTO RAMOS, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

SIMPLEXGRINNELL LP,

:

:

Defendants.

:

--------------------------------------------------------

Hon. Steven M. Gold, U.S.M.J. Case No. 1:07-cv-00981-SMG
Civil Action
JOINT STIPULATION AND AGREEMENT REGARDING CLASS
ACTION SETTLEMENT OF CLAIMS OTHER THAN “TESTING
AND INSPECTION CLAIMS”

TO THE HONORABLE COURT, ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF RECORD:
This Joint Stipulation Regarding Class Action Settlement (hereinafter “Stipulation” or
“Settlement” or “Agreement”) is made and entered into by and between Plaintiffs Roberto
Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray,

1

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 2 of 26 PageID #: 8267
Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oyarvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, and Rafiu Owolabi (“Plaintiffs” or “Class Representatives”), on behalf of themselves and on behalf of others similarly situated; and SimplexGrinnell LP (“SimplexGrinnell” or “Defendant”). Subject to the approval of the Court, the Action is hereby being compromised and settled with respect to claims other than Testing and Inspection Claims as explained below, pursuant to the terms and conditions set forth in this Stipulation. This Settlement shall be binding on Plaintiffs and the class they represent, and Defendant, subject to the terms and conditions hereof and the approval of the Court. THE PARTIES STIPULATE AND AGREE AS FOLLOWS:
I. DEFINITION OF TERMS The following terms, as used throughout this Stipulation, are defined as follows: 1. The Action. The term “the Action” shall refer to the legal action filed in the United States District Court, Eastern District of New York, Case No. 1:07-cv-0981(SMG), entitled Roberto Ramos, et al., individually and on behalf of all other persons similarly situated who are or were employed by SimplexGrinnell LP with respect to Public Works Projects mentioned in this Complaint, v. SimplexGrinnell LP, except that the claims alleged in the First Amended Complaint relating to Testing and Inspection Claims shall be excluded from this definition, and shall also be excluded from the definition of Settlement below, so that Plaintiffs may have the option to appeal the summary judgment ruling dismissing those claims. 2. Class Representatives or Plaintiffs. The terms “Class Representatives” or “Plaintiffs” shall refer to plaintiffs Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oyarvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, and Rafiu Owolabi. 3. Defendant or SimplexGrinnell. The terms “Defendant” or “SimplexGrinnell” shall refer to the named defendant in the Action, SimplexGrinnell LP, and its present and former parent companies, subsidiaries, related or affiliated companies, shareholders, owners, officers,
2

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 3 of 26 PageID #: 8268
directors, employees, agents, attorneys, insurers, successors and assigns, and any individual or entity which could be jointly liable with Defendant.
4. Parties. The term “the Parties” shall refer collectively to Plaintiffs and Defendant. 5. Class Counsel. The term “Class Counsel” shall refer collectively to (1) Bruce E. Menken and Jason J. Rozger, Beranbaum Menken, 80 Pine Street, 33rd Floor, New York, New York 10005; and (2) Raymond C. Fay and Taryn Null, Mehri & Skalet, PLLC, 1250 Connecticut Ave NW, Suite 300, Washington, DC 20036. 6. Defendant’s Counsel. The term “Defendant’s Counsel” shall refer collectively to Grant Petersen, David Copus, Dominick C. Capozzola, and Jocelyn Merced, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 10 Madison Avenue, Suite 400 Morristown, NJ 07960. 7. Settlement Administrator. The term “Settlement Administrator” shall refer to Settlement Services, Inc., 2032D Thomasville Road, Tallahassee, FL 32308. 8. The Class. The term “the Class” shall refer to all laborers, workmen and mechanics who furnished labor to SimplexGrinnell on non-federal public works projects in the State of New York at any time from February 6, 2001, or from July 14, 2002 for sprinkler work, until the final judgment in this matter, and who have not been paid prevailing wages and benefits as required by law, irrespective of whether or not such individuals receive a Settlement Share under this Settlement. 9. Class Counsel Fees Payment. The term “Class Counsel Fees Payment” means the amount awarded to Class Counsel by the United States District Court for the Eastern District of New York (hereinafter the “Court”), to compensate them for their fees in connection with the Action, including their pre-filing investigation, their filing of the Action and all related litigation activities, this Settlement, and all post-Settlement compliance procedures. 10. Class Counsel Litigation Expenses Payment. The term “Class Counsel Litigation Expenses Payment” means the amount awarded to Class Counsel by the Court to compensate them for their expenses in connection with the Action, including their filing of the Action and all related litigation activities, this Settlement, and all post-Settlement compliance procedures.
3

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 4 of 26 PageID #: 8269
11. Class Members. The term “Class Members” means all members of the Class as defined in Paragraph 8, above.
12. Class Notice. The term “Class Notice” means the Notice of Class Action Settlement, Proposed Settlement, Preliminary Approval of Settlement, and Hearing Date for Final Court Approval, attached as Exhibit A to this Agreement and incorporated by reference into this Agreement.
13. Class Notice Packet. The term “Class Notice Packet” means the Class Notice and the Information Correction Form (attached hereto as Exhibit B).
14. The Class Period. The term “Class Period” shall mean the time period of February 6, 2001 to the date of the Court’s Final Approval of the Settlement.
15. Class Representative Enhancement Payment. The term “Class Representative Enhancement Payment” means the special payment made to each Plaintiff in his or her capacity as Class Representative to compensate him or her for initiating the Action, performing work in support of the Action, granting a general release of all claims against SimplexGrinnell in addition to those claims he will be releasing as a Participating Class Member, and undertaking the risk of liability for attorneys’ fees and expenses in the event he or she were unsuccessful in the prosecution of the Action.
16. Final Approval Hearing. The term “Final Approval Hearing” means the hearing to be conducted by the Court following Class Notice and the expiration of all dates set forth therein to determine whether to approve finally and implement the terms of this Agreement.
17. Settlement Amount. The term “Settlement Amount” means the amount of Five Million, Five Hundred Twenty Five Thousand Dollars ($5,525,000) to be paid by SimplexGrinnell as provided by this Agreement.
18. Net Settlement Amount. The term “Net Settlement Amount” means the Settlement Amount to be paid by SimplexGrinnell pursuant to this Settlement, less (i) the Class Representative Enhancement Payment approved by the Court; (ii) the Class Counsel Fees Payment and the Class Counsel Litigation Expenses Payment approved by the Court; (iii) the
4

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 5 of 26 PageID #: 8270
Settlement Administrator’s reasonable fees and expenses approved by the Court; and (iv) any other fees or expenses (other than attorneys’ fees and expenses) incurred in implementing the terms and conditions of this Agreement.
19. Non-Participating Class Member. The term “Non-Participating Class Member” means a Class Member who has submitted a valid and timely Election Not to Participate in Settlement (Opt-Out Form).
20. Participating Class Member. The term “Participating Class Member” means a Class Member who has not submitted a valid and timely Request To Be Excluded From Lawsuit (Opt-Out Form).
21. Preliminary Approval of the Settlement. The term “Preliminary Approval of the Settlement” means the Court’s preliminary approval of the Settlement without material change.
22. Settlement. The term “Settlement” means the disposition of the Action and all related claims effectuated by this Agreement, with the exception of Testing and Inspection Claims.
23. Settlement Share. The term “Settlement Share” means each Participating Class Member’s share of the Net Settlement Amount as provided by this Agreement.
24. Testing and Inspection Claims. The term “Testing and Inspection Claims” shall refer to the claims alleged in the Plaintiffs’ July 14, 2008 First Amended Complaint relating to the testing and inspection of fire alarms, sprinkler and suppression systems, and other life safety systems, which were dismissed in the Court’s June 21, 2011 Memorandum and Order granting partial summary judgment. (See Docket Entry 154, pp. 27-31, Discussion, Part 2.b.)
II. BACKGROUND OF THE LEGAL ACTION 25. Original Complaint. On February 6, 2007, Class Representatives (except Plaintiff Rafiu Owolabi, who did not join the action until later) filed a proposed Class Action Complaint against Defendant and John Doe Bonding Companies #1-3, in the Supreme Court for the State of New York, Kings County, on behalf of themselves and all others similarly situated. The action was assigned the index number 4393/07. The Complaint alleged causes of action for: (1) Breach
5

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 6 of 26 PageID #: 8271
of Contract; (2) Quantum Meruit; (3) Unjust Enrichment; (4) New York Overtime; and (5) Failure to Pay Wages. The Complaint sought recovery of unpaid prevailing wages, injunctive relief, attorneys’ fees and costs, and pre-judgment interest.
26. Removal. On March 7, 2007, SimplexGrinnell removed the action to the United States District Court for the Eastern District of New York under the Class Action Fairness Act. Plaintiffs agreed to dismiss the John Doe Bonding Companies.
27. First Amended Complaint. On July 14, 2008, Plaintiffs filed a First Amended Complaint with the approval of the Court, adding further specification to claims relating to sprinkler and suppression work. Pursuant to the Court’s Order granting leave to amend, dated July 11, 2008, claims relating to sprinkler and suppression work did not relate back to the filing of the Original Complaint. The Plaintiffs’ First Amended Complaint added Rafiu Owolabi as a party and deleted the reference to John Doe Bonding Companies from the caption.
28. Class Certified and Summary Judgment Granted in Part. On June 21, 2011, the Court issued a Memorandum and order dated June 21, 2011, which addressed several motions, including the Plaintiffs’ Motion for Class Certification and Defendant’s Motion for Summary Judgment. The Court granted Plaintiffs’ Motion for Class Certification, and it granted Defendant’s Motion for Summary Judgment, in part, dismissing the following claims: (1) Testing and Inspection claims; and (2) Plaintiffs’ Fifth Cause of Action (“Failure to Pay Wages”). In September, 2011, under the Court’s direction, the Plaintiffs issued Notices of Pendency of Class Action, notifying the Class Members about the lawsuit and providing them with an opportunity to opt out of the case.
29. Investigation. The Parties have conducted significant discovery and investigation of the facts and law during the prosecution of the Action. Such discovery and investigation have included the exchange of the relevant time and pay records of the putative class; analyses by both Parties of the exchanged time and pay records; the informal exchange of information; discussions and meetings between representatives of the Parties; interviews of potential witnesses and Class Members; and analysis of relevant records. The Parties have also conducted
6

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 7 of 26 PageID #: 8272
the depositions of the class representatives and numerous employees of Defendant and third party witnesses, exchanged written discovery including Requests for Production of Documents and Interrogatories. In addition, counsel for the Parties have investigated the applicable law regarding the claims and defenses to such claims, as well as the damages alleged by Plaintiffs.
30. Benefits of Settlement. Class Representatives and Class Counsel recognize the uncertainty and risk of the outcome of further litigation, and the difficulties and delays inherent in such litigation. Class Representatives and Class Counsel also are aware of the burdens of proof necessary to establish liability for the claims asserted in the Action, the defenses thereto, and the difficulties inherent in the Action. Based on the foregoing, Class Representatives and Class Counsel have determined that the settlement set forth in this Stipulation is a fair, adequate and reasonable settlement, and is in the best interest of the Class Members. Defendant has concluded that any further defense of this Action would be protracted and expensive, and the results uncertain. Substantial amounts of time, energy and resources have been, and will continue to be devoted to the defense of the Action unless this Settlement is made. Therefore, Defendant has agreed to settle in the manner and upon the terms set forth in this Stipulation to fully and finally resolve the claims asserted in the Action, except for the Testing and Inspection claims.
31. Denial of Wrongdoing. Defendant has denied and continues to deny each of the claims asserted by Class Representatives in the Action. Defendant has asserted and continues to assert defenses to Class Representatives’ claims, and has expressly denied and continues to deny any wrongdoing whatsoever. Neither this Stipulation nor any action taken to carry out the Settlement may be construed as an admission by Defendant of any fault, wrongdoing, or liability whatsoever.
32. All Claims and Defenses Relating to Testing and Inspection Claims Reserved. The parties reserve all claims, defenses, and arguments relating to the Testing and Inspection claims defined in Paragraph 24, either at the appellate level or—if Plaintiffs prevail in whole or in part on their appeal—on remand to the District Court, subject to and consistent with the
7

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 8 of 26 PageID #: 8273
decision of the Court of Appeals. Such claims are to be excluded from the Settlement and the claims and associated defenses and arguments are not affected in any way by the Settlement. If the Plaintiffs obtain a judgment on the Testing and Inspection claims, amounts paid in this Settlement will not be set off from the recovery on the Testing and Inspection claims.
III. DATE OF SETTLEMENT 33. The Class. This Stipulation is made as of the date set forth below by and between Plaintiffs on behalf of themselves and the Class, on the one hand, and Defendant on the other hand, subject to the approval of the Court. 34. Effective Date. As used in this Stipulation, “Effective Date” means the date by which the Court has held a Final Approval Hearing and entered a Final Order and Judgment approving the Stipulation.
IV. CLASS MEMBERS INCLUDED IN SETTLEMENT 35. The Class. On June 21, 2011, the Court certified the Class, which is defined above in Paragraph 8. 36. Excludes Testing and Inspection Claims. The Parties agree that, for purposes of Settlement, Testing and Inspection Claims that may be held by Class Representatives and Class Members are not included in the claims ultimately to be dismissed through this Stipulation. 37. Class Members’ Objections to This Settlement. Any Class Member may comment on or object to the Settlement provided herein by filing a written comment on or objection to the Settlement with the Court and serving the written comment or objection to the Settlement on counsel for the Parties no more than 30 days after the Settlement Administrator mails the initial Class Notice. The written comment on or objection to the Settlement must set forth the grounds for the comment or objection and indicate whether the Class Member intends to appear and comment or object at the Final Approval Hearing. The failure to so indicate will constitute a waiver of the right to appear at the hearing. A Class Member who does not file and serve a written comment or objection in the manner and by the deadline specified above will be
8

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 9 of 26 PageID #: 8274
deemed to have waived any comments or objections and will be foreclosed from making any comments or objections (whether by appeal or otherwise) to the Settlement. In the event that the Court approves this Settlement notwithstanding the objections of Class Members, Class Members who object to the Settlement will nonetheless be bound by the Settlement unless such Class Members have opted out of the Settlement, as detailed in Paragraph 38.
38. Non-Participating Class Members. The Class Members received Notices of Pendency of Class Action in September, 2011, at the direction of the Court, and they were given opportunities to opt out of the case. (Docket No. 162 and Order of September 14, 2011.) Eighteen of the Class Members in fact returned valid Requests to be Excluded from Lawsuit, and are no longer Class Members: Edward Chris Tafel; Albert Mathews; Javier Vasquez; Harry Ferrer; Michael Anthony Reggio; Thomas K. Gillette; Jose Begazo; James P Trombley; David S. Jennings; Michael Thomas Cancemi; Bryan D.Turk; Carlos Bustamante; Robert Cardio; Jason E.Wilishefski; Joseph Stasys Jr; Peter W. Doner; Jeffrey Allen Green; and Dennis Kennan..
39. Effect of Settlement of Claims Other Than Testing and Inspection Claims. The Settlement contained herein, including the Release outlined below, shall be effective and binding upon all Class Members who have not excluded themselves from the lawsuit.
V. RELEASES 40. Release By Participating Class Members. As of the Date of Final Approval, Participating Class Members (including Class Representatives) release Defendant and Defendant’s predecessors, successors, as well as their current, former and future subsidiaries, affiliates, fiduciaries, owners, partners, insurers, agents, employees, assigns, subrogees, privies, officers, officials, directors, administrators, attorneys and shareholders (“Released Parties”) from the Released Class Claims as defined below: With the exception of Testing and Inspection Claims, which are excluded from the Settlement, any and all claims, actions, demands, causes of action, suits, debts, obligations, damages, rights or liabilities, of any nature and description whatsoever, known or unknown that have been or could have been asserted by Class Representatives, or the Class Members or any of
9

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 10 of 26 PageID #: 8275
their respective heirs, executors, administrators, beneficiaries, predecessors, successors, attorneys, assigns, agents and/or representatives arising out of any claims that were or could reasonably have been encompassed in the Action, from the beginning of time up to and including the date of Final Approval of the Settlement (collectively referred to as “Released Class Claims”).
41. General Releases By Class Representative. In addition to the release set forth in the above paragraph, and in consideration in part for the Class Representative Enhancement Payments, Class Representatives makes the additional general release of all claims as follows: Class Representatives release Released Parties from any and all claims, actions, demands, causes of action, suits, debts, obligations, damages, rights or liabilities of any nature and description whatsoever, known or unknown, that Class Representative may possess against the Released Parties arising from Class Representatives’ employment with Defendant, including but not limited to claims for the Age Discrimination in Employment Act (42 U.S.C. § 621), Title VII of the Civil Rights act of 1964 as amended (42 U.S.C. § 2000e), the Equal Pay Act of 1963 (29 U.S.C. § 206(d)), the Civil Rights Acts of 1866 and 1871 (42 U.S.C. § 1981), the Worker Adjustment and Retraining Notification Act (29 U.S.C. § 1651), the Employee Retirement Income Security Act (29 U.S.C. § 1001), the Family and Medical Leave Act (29 U.S.C. §2601), the Americans with Disabilities Act (42 U.S.C. § 12,101), the Occupational Safety and Health Act (29 U.S.C. § 651), the New York State Human Rights Law, as amended; the general regulations of the New York State Division of Human Rights, New York Executive Law Section 290 et seq., New York Rights of Persons With Disabilities, New York Whistleblower Law, New York State Labor Relations Act, New York Labor Law, New York Equal Rights Law, New York Wage Hour and Wage Payment Laws, New York Minimum Wage Law, Equal Pay Law for New York, as amended, New York Adoptive Parents’ Child Care Leave Law, New York Smokers’ Right Law, New York Bone Marrow Leave Law, New York State Workers Adjustment and Retraining Notification (WARN) Act, New York City Administrative Code, as amended, New York City Human Rights Law, as amended; or any other federal, state or local statute concerning
10

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 11 of 26 PageID #: 8276
the employment relationship or prohibiting retaliation or discrimination on the basis of age, race, creed, color, religion, national origin, sex, disability, marital status or any other protected classification which I have, or at any time had, including but not limited to all claims for compensatory damages, punitive damages, attorney’s fees, salary, commissions, bonuses, expense reimbursements, severance payments, deferred compensation payments, or other monies due. Class Representatives hereby acknowledge that upon receiving the sums provided to them pursuant to this Agreement that they will have received all wages, damages and penalties owing to them by Defendant, and further, that they are not owed any additional wages, penalties, or damages from Defendant. Class Representatives’ release shall cover the time period from prior to his or her employment with Defendant up to the Effective Date.
VI. AMOUNT AND DISTRIBUTION OF SETTLEMENT 42. Settlement Amount. The Settlement Amount shall be up to the total sum of: (1) Five Million Five Hundred Twenty-Five Thousand Dollars ($5,525,000); and (2) the amount of the employer’s share of payroll taxes to be paid on the Settlement Shares as outlined in Paragraph 45(h) herein. Defendant will not be obligated to pay more than the amount of Five Million Five Hundred Twenty-Five Thousand Dollars ($5,525,000) plus the amount of the employer’s share of the payroll taxes to be paid on the Settlement Shares (“Settlement Amount”), under any circumstances. 43. Deductions From Settlement Amount. Deductions from the Settlement Amount, all subject to Court approval, shall be made for:
a. Class Counsel Fees Payment. Class Counsel will apply to the Court for an award of not more than One Million Eight Hundred Forty-One Thousand, Six Hundred SixtySeven Dollars ($1,841,667) (33 1/3% of the Settlement Amount) as their Class Counsel Fees Payment. The attorneys’ fees award shall be paid from the Settlement Amount. Defendant agrees not to oppose any such applications which are consistent with this paragraph. The amount of attorneys’ fees shall include payment for time expended by class counsel up to and including the final approval of the Settlement, and any time on appeal expended in defense of the
11

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 12 of 26 PageID #: 8277
Settlement. b. Class Counsel Litigation Expenses Payment. Class Counsel will apply to
the Court for an award of not more than Three Hundred Sixty Thousand Dollars ($ 360,000) as their Class Counsel Litigation Expenses Payment, and Defendant will not oppose these requests. The Settlement Administrator will pay the amount approved by the Court (but not more than Three Hundred Sixty Thousand Dollars ($ 360,000) out of the Settlement Amount.
c. Approval by Court of Lesser Amounts. If the Court approves a Class Counsel Fees Payment or a Class Counsel Litigation Expenses Payment of less than One Million Eight Hundred Forty-One Thousand, Six Hundred Sixty-Seven Dollars ($1,841,667) or Three Hundred Sixty Thousand Dollars ($ 360,000), respectively, the remainder will be retained in the Net Settlement Amount for distribution to Participating Class Members.
d. Tax Treatment of Class Counsel Fees and Expenses. Tax deductions and withholdings will not be taken from the Class Counsel Fees and Expenses Payment and instead one or more Forms 1099 will be issued to Class Counsel by the Settlement Administrator.
e. Class Representative Enhancement Payment. Class Counsel may apply for an enhancement award to each Class Representative in an amount not to exceed Two Thousand Five Hundred Dollars ($2,500) per Class Representative, for a total amount no greater than Thirty-Seven Thousand Five Hundred Dollars ($37,500) for all fifteen Class Representatives. The enhancement award shall be paid from the Settlement Amount. Defendant agrees not to oppose any such applications which are consistent with this paragraph.
f. Settlement Administration Costs and Fees. All actual costs for settlement administration, including related accounting costs, up to a maximum of Fifty Thousand Dollars ($50,000), shall be paid from the Settlement Amount.
g. Payment of Individual Settlement Shares to Settlement Class Members. Subject to the terms and conditions of this Stipulation, the Settlement Administrator will pay a Settlement Share from the Net Settlement Amount to each Participating Class Member. The Settlement Share for each Participating Class Member will be based on the calculations in Table
12

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 13 of 26 PageID #: 8278
4 Modified (Supp.)-ALTERNATIVE of the Supplemental Expert Report of Plaintiffs’ Expert Witness, Dr. David Crawford, dated September 8, 2011. Participating Class Members shall take a pro rata share of the amounts identified for them in Column 8 of Table 4 Modified (Supp.)ALTERNATIVE in Dr. Crawford’s report, such share to be the percentage of the Net Settlement Amount divided by the total amount of damages in Table 4 Modified (Supp.)-ALTERNATIVE, Column 8, after subtracting the amounts in the Table for Non-Participating Class Members.
h. Withholding. Fifty percent (50%) of each Settlement Share (the “Wage Portion”) is intended to settle each Participating Class Member’s claims for unpaid wages. Accordingly, the Wage Portion will be reduced by the Participating Class Member’s applicable tax deductions and withholdings which will be remitted by the Settlement Administrator. The employer’s share of legally required payroll taxes for the Wage Portion will be paid separate and in addition to the Settlement Amount by the Defendant. The Settlement Administrator will issue a Form W-2 with respect to the Wage Portion.
i. Interest and Penalties. Fifty percent (50 %) of the Settlement Share (the “Non-Wage Portion”) is intended to settle each Participating Class Member’s claims for interest and penalties (36% deemed interest and 14% deemed penalties for unpaid overtime pursuant to New York Labor Law Section 198(1-a) (allowing liquidated damages of one hundred percent for wage claims)). Accordingly, the Non-Wage Portion will not be reduced by tax deductions and withholdings; and, instead, the Settlement Administrator will issue a Form 1099 with respect to the Non-Wage Portion.
j. Effect of Non-Participating Class Members. Non-Participating Class Members will receive no Settlement Share, and their election not to participate will reduce neither the Maximum Settlement Amount nor the Net Settlement Amount.
44. Uncashed Settlement Share Checks. A Participating Class Member must cash his or her Settlement Share check within one hundred eighty (180) calendar days after it is mailed to him or her. If a check is returned to the Settlement Administrator, the Settlement Administrator will make all reasonable efforts to re-mail it to the Participating Class Member at his or her
13

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 14 of 26 PageID #: 8279
correct address. If any Participating Class Member’s Settlement Share check is not cashed within one hundred eighty (180) calendar days after its last mailing to the Participating Class Member, the Settlement Administrator will return any funds to SimplexGrinnell. In such event, the Participating Class Member nevertheless will remain bound by the Settlement.
VII. SETTLEMENT ADMINISTRATION 45. Settlement Administrator’s Duties. The Settlement Administrator shall be responsible for (1) preparing, printing, and mailing to Class Members the Class Notice Packet; (2) setting up a toll-free telephone number to receive calls from Class Members;; (3) providing the Parties with periodic status reports about the delivery of Class Notice Packets and receipt of completed Opt-Out Forms; (4) calculating Settlement Shares; (5) delivering approved fees and expenses to Class Counsel and mailing Settlement Shares to Settlement Class Members; (6) filing any required reports with the Court; (7) remitting tax payments due and issuing the tax reports required under this Settlement; and (8) such other tasks as the Parties mutually agree or the Court orders the Settlement Administrator to perform. Specifically, the Settlement Administrator shall perform the following duties:
a. Mailing of Class Notice Packet. Within ten (10) days of receipt of the Defendant’s records pursuant to Paragraph 48 herein, the Settlement Administrator shall mail a copy of the Class Notice Packet to all Class Members by first class regular U.S. mail, using the most current mailing address information possessed by Defendant, unless modified by any updated address information that the Settlement Administrator obtains in the course of administration of the Settlement (including a search of the National Change of Address Database). The Settlement Administrator will engage in address searches consistent with the agreement of the Parties, including skip tracing. Any returned envelopes from this mailing with forwarding addresses will be utilized by the Settlement Administrator to forward the Class Notice Packet to the Class Members.
b. Re-Mailing of Returned Class Notice Packet. Class Notice Packets returned to the Settlement Administrator as non-delivered shall be resent to the forwarding
14

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 15 of 26 PageID #: 8280
address, if any, on the returned envelope. If a Class Notice Packet is returned without a forwarding address, the Settlement Administrator will promptly, and not longer than 15 days after the initial mailing date, search for a more current address for the Class Member and re-mail the Class Notice Packet to the Class Member. The Settlement Administrator will use the Class Members’ Data and otherwise work with SimplexGrinnell to find that more current address. The Settlement Administrator will be responsible for taking reasonable steps to trace the mailing address of any Class Member for whom a Class Notice Packet is returned by the U.S. Postal Service as undeliverable. These reasonable steps shall include, at a minimum, the tracking of all undelivered mail; performing address searches (or “skip traces”) for all mail returned without a forwarding address; and promptly re-mailing to Class Members for whom new addresses are found. If the Class Notice Packet is re-mailed, the Settlement Administrator will note for its own records and notify Class Counsel and SimplexGrinnell’s Counsel of the date of each such remailing as part of a weekly status report provided to the Parties. A returned Class Notice Packet will be forwarded only once per Class Member by the Settlement Administrator. Upon completion of these steps by the Settlement Administrator, Defendant shall be deemed to have satisfied its obligation to provide the Notice to the affected member of the Class. The affected member of the Class shall remain a member of the Class and shall be bound by all the terms of this Stipulation and the Court’s Order and Final Judgment.
c. Information Correction Form. Each Information Correction Form sent to each Class Member shall state the following: (1) the name, address, and last four digits of the Social Security Number of the Class Member; and (2) the latest W-4 information SimplexGrinnell has for each Class Member.
d. Payment of Settlement Shares. The Settlement Administrator shall be solely responsible for the disbursement of the settlement payments. Participating Class Members with damages in Column 8 of Table 4 Modified (Supp.)-ALTERNATIVE of Dr. Crawford’s repport will receive a Settlement Share.
e. Initial Determination of Settlement Shares. Each Class Member’s 15

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 16 of 26 PageID #: 8281
Settlement Share will be determined as set forth in Paragraph 43(g) above. f. Declaration of Due Diligence. No later than ten (10) days prior to the
Final Approval Hearing, the Settlement Administrator shall provide both Parties with a declaration of due diligence to be filed with the Court.
g. Allocating Portions of the Settlement Shares as Wages and Penalties and Interest. The Settlement Administrator shall be responsible for determining the portion of each Settlement Share to be allocated as (1) wages and (2) penalties and interest. Fifty percent (50%) of each Settlement Share shall be allocated as wages. Fifty percent (50%) of each Settlement Share shall be allocated as penalties and interest.
h. Taxation of Settlement Shares. The Settlement Administrator shall be responsible for the appropriate payroll withholding of the Settlement Shares. The portion of each Settlement Share allocated as wages shall be subject to payroll withholding. Appropriate withholding of federal, state and local income taxes, including each claimant’s share of FICA taxes (on the portion of the award that constitutes wages) shall be deducted from each Settlement Share. The employer’s share of payroll withholding shall be paid by Defendant. The Settlement Administrator shall issue an IRS Form W-2 to each Settlement Class Member for the portion of the Settlement Share that is designated as wages. The Settlement Administrator shall issue an IRS Form 1099 to each Settlement Class Member for the portion of the Settlement Share that is designated as interest and penalties. The Settlement Administrator shall issue an IRS Form 1099 to Class Representative for the enhancement fee paid pursuant to Paragraph 43(e) herein for his role as Class Representative. All Settlement Class Members and the Class Representatives will be responsible for correctly characterizing this compensation for tax purposes and for paying any taxes on the amounts received. The Settlement Class Members and Class Representatives agree to indemnify Defendant for any liability it incurs to any tax authority on account of the Settlement Class Members’ or Class Representative’s failure to pay all taxes due on the enhancement fees; however, each Class Member or Class Representative’s liability is limited to the liability caused by that Class Member or Class Representative’s failure.
16

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 17 of 26 PageID #: 8282
i. Mailing of Settlement Shares. The Settlement Administrator shall mail all Settlement Class Members their Settlement Shares within thirty (30) days of the latest of the following dates: (a) in the event that no written objections are filed prior to the Final Approval Hearing, or that any filed written objections are withdrawn prior to the conclusion of the Final Approval Hearing, the Effective Date; or (b) if written objections are filed and not withdrawn but no appeal is filed in connection with such objections, the expiration date for filing any appeal of the Judgment; or (c) if written objections are filed and not withdrawn and an appeal is filed in connection with any such objections, the date of final affirmance on an appeal of the Judgment, the expiration of the time for a petition to review the Judgment and, if review is granted, the date of final affirmance of the Judgment following review. Each check issued to a Settlement Class Member shall remain valid and negotiable for one hundred eighty (180) days from the date of issuance (“Check Cashing Deadline”). Any Settlement Share not cashed by the Check Cashing Deadline shall be canceled automatically, in which event the Settlement Class Member’s claim will be deemed void and the funds shall be returned to SimplexGrinnell as set forth in Paragraph 44, above.
j. Certifying the Class Members Bound by the Settlement. Within sixty (60) days from the Effective Date, the Settlement Administrator shall file written certification with the Court with copies to counsel for all Parties that all Settlement Class Members have been mailed their Settlement Shares.
k. Payment of Attorneys’ Fees and Expenses and Class Representative Enhancement Payment. Within seven (7) days of the latest of the dates described in Paragraph 45(i) above, the Settlement Administrator shall pay via wire transfer the Class Counsel Fees Payment and Class Counsel Litigation Expenses Payment to Class Counsel, as detailed in Paragraphs 43(a) and 43(b) of the Stipulation, and shall send checks made payable to the Class Representatives for the Class Representative Enhancement Payments, as detailed in Paragraph 43(e) of the Stipulation.
l. Disputes Regarding The Settlement Administrator’s Performance of 17

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 18 of 26 PageID #: 8283
Duties. All disputes relating to the Settlement Administrator’s performance of its duties shall be referred to the Court, if necessary, which will have continuing jurisdiction over the terms and conditions of this Stipulation until all payments and obligations contemplated by this Stipulation have been fully carried out.
VIII. DUTIES OF THE PARTIES PRIOR TO PRELIMINARY COURT APPROVAL 46. Prompt Submission. The Parties shall promptly submit this Stipulation to the
Court in support of Plaintiffs’ Motion for Preliminary Approval and determination by the Court as to its fairness, adequacy, and reasonableness, and shall apply to the Court for the entry of an order substantially in the following form:
a. Scheduling a fairness hearing on the question of whether the proposed Settlement, including payment of attorneys’ fees, the Class Representative’s enhancement, and the amount of Settlement Shares to be paid to Settlement Class Members, including the methodology used in calculating such amounts, should be finally approved as fair, reasonable and adequate as to the members of the Class;
b. Approving as to form and content the attached proposed Class Notice Packet and all documents included therein;
c. Directing the mailing of the Class Notice Packet, by first class U.S. mail to the Class Members, pursuant to the terms specified herein; and
d. Preliminarily approving the settlement subject only to the objections of Class Members and final review by the Court.
47. Amendment of This Stipulation To Conform To The Court’s Order. To the extent that the Court does not approve this Stipulation, or any specific term contained herein, and the Court allows the Parties to amend this Stipulation, the Parties agree to cooperate in good faith to amend the Stipulation in accordance with the Court’s direction, and to retain all other terms of the Stipulation that the Court approves. IX. DUTIES OF THE PARTIES FOLLOWING PRELIMINARY COURT APPROVAL
48. Defendant’s Provision of Class Member Data To Settlement Administrator. No 18

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 19 of 26 PageID #: 8284
later than seven (7) days following preliminary approval of this Settlement by the Court, Defendant shall provide the Settlement Administrator in electronic format the following information that is within Defendant’s possession for each Class Member: (1) the Class Member’s name, (2) last known address, (3) last four digits of the Class Member’s social security number; and (4) the Class Members’ most recent W-4 information. This information shall be based on Defendant’s payroll and other business records and in a format readily accessible to Defendant. Within ten (10) days of receipt of the information from Defendant, the Settlement Administrator will mail the Class Notice Packet to the Class Members.
49. Disputes Arising From Settlement Administration. If either of the Parties disagrees with the Settlement Administrator’s determination of a class member’s Settlement Share, it must file a motion with the Court no later than fifteen (15) days from notice of the Settlement Administrator’s determination, requesting that the Court determine the amount of the Settlement Share or the validity of the information contained in the Information Correction Form. If such a motion is not filed, the Parties shall be barred from contesting the amount of a Settlement Share or the validity of the information contained in the Information Correction Form at any later date. If such a motion is filed, the Settlement Administrator’s determination shall have no binding effect, and the Court will have sole authority to resolve the matter. All other deadlines prescribed by the Stipulation and timing of actions to take place pursuant to the Stipulation shall be stayed from the date of filing the motion described herein until the date that the dispute is resolved.
50. Motion for Final Approval of the Settlement. Class Counsel shall timely prepare, subject to Defendant’s review and comment, a Motion for Final Approval of the Settlement. Class Counsel will timely file, within five (5) days of the Fairness Hearing, the Motion for Final Approval of the Settlement, for Approval of the Motion for Attorneys’ Fees and Expenses, and for Class Representatives’ Enhancements, which will include a proposed Final Order and Judgment ordering:
i. Approval of the Settlement, adjudging the terms thereof to be fair, 19

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 20 of 26 PageID #: 8285
reasonable and adequate, and directing consummation of its terms and provisions; ii. Approval of Class Counsel’s application for an award of attorneys’
fees, costs and expenses as provided herein; iii. Approval of the enhancement payments to the Class
Representatives; iv. Permanently barring and enjoining all members of the Class from
prosecuting against the Released Parties any individual or class or collective claims released herein pursuant to Paragraphs 40-41 above, upon satisfaction of all payments and obligations hereunder; and,
v. Reserving jurisdiction over the construction, interpretation, implementation, and enforcement of the parties’ settlement and over the administration and distribution of settlement benefits.
51. Fairness Hearing. Forty-five (45) days after the mailing of the Class Notice Packet, or as soon thereafter as may be practicable, the Parties shall attend a Final Settlement Approval Hearing with the Court to finally approve the Settlement as fair, reasonable, and adequate as to Class Members, attorney’s fees to Class Counsel, the enhancement awards to Class Representatives, the Settlement Administration fees and costs, the Settlement Shares to be paid to the Settlement Class Members, including the methodology used to calculate such awards, and the disposition of unclaimed funds (if any).
X. DUTIES OF THE PARTIES FOLLOWING FINAL COURT APPROVAL 52. Final Settlement and Approval and Entry of Judgment. With the motion for final
approval of the Settlement by the Court, the Parties shall submit a Final Judgment (“Final Judgment”) for the Court’s approval and entry. After entry of the Final Judgment, the Court shall have continuing jurisdiction over the administration of the Settlement.
53. Payment of Settlement Amount. Defendant shall deposit, not later than fifteen (15) days following the Effective Date, the following amounts into an account established by the Settlement Administrator: (1) Class Counsel Fees Payment approved by the Court (not to exceed
20

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 21 of 26 PageID #: 8286
One Million Eight Hundred Forty-One Thousand, Six Hundred Sixty-Seven Dollars ($1,841,667)); (2) Class Counsel Litigation Expenses Payment approved by the Court (not to exceed Three Hundred Sixty Thousand Dollars $360,000 (3) Class Representative’s enhancement fee approved by the Court (not to exceed $37,500 in the aggregate); (4) actual settlement administration costs (not to exceed $50,000.00); (5) the Net Settlement Amount; and (6) the employer’s share of payroll taxes as provided in Paragraph 45(h) herein. The Settlement Administrator will retain exclusive authority over the deposited funds. The Settlement Administrator shall make all payments and other disbursements required by this Stipulation from the Settlement Amount. Defendant shall have no further obligations over the distribution of the Settlement Amount.
54. Provision of Final Order and Judgment to Settlement Administrator. Following final approval by the Court of the Settlement provided for in the Stipulation, Class Counsel shall provide the Settlement Administrator with a copy of the Final Order and Judgment.
XI. ADDITIONAL TERMS 55. Nullification of Settlement. This Stipulation shall be null and void and any order of judgment entered by the Court in furtherance of the Settlement shall be vitiated nunc pro tunc if any of the following occurs:
a. the Court does not preliminarily approve the settlement; b. the Court does not finally approve the settlement; c. the Court does not enter a Final Judgment which becomes final as a result of the occurrence of the Effective Date; or d. The Settlement does not become final for any other reason. In such a case, the Parties and any funds awarded under this Stipulation shall be returned to their respective status as of the date and time immediately prior to the execution of this Stipulation, and the Parties shall proceed in all respects as if this Stipulation had not been executed. Except as relates to Testing and Inspection Claims, if an appeal is filed from the Court’s Judgment, administration of the Settlement shall be immediately stayed pending final
21

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 22 of 26 PageID #: 8287
resolution of the appeal process. 56. No Admissions. Nothing contained herein is to be construed or deemed an
admission of liability or wrongdoing by Defendant which is expressly denied by Defendant. This Stipulation and attached exhibits are settlement documents and shall be inadmissible in any proceeding, except an action or proceeding to approve, interpret, or enforce this Stipulation. This settlement may not be used for any purposes in any other litigation.
57. Public Comment. The Parties and their counsel agree that they will not, unless required by law, issue any press release concerning this settlement or the claims that have been settled. Plaintiffs and their counsel further agree that any communications they make with clients or prospective clients about this settlement will be limited to the facts of the settlement, the nature of the claims, the amount of the settlement, and the identity of the parties. In addition, Plaintiffs and their counsel agree to refrain from referencing or discussing the settlement or the Action in connection with advertisements placed on or in (a) written media (newspapers, magazines, etc.), (b) the internet, (c) unsolicited telephone calls, letters or email communications, (d) radio, or (e) television; except that Plaintiffs' counsel may post information on their firm websites as stated below. Additionally, if questioned about this settlement by the press or if Plaintiffs or their counsel publish any information on websites or make any other public comment regarding this settlement, such information will be limited to (a) the facts of the settlement, (b) the nature of the claims, (c) the amount of the settlement, and (d) the identity of the parties; however, this limitation does not in any way apply to claims not settled in this settlement. Any comments by Plaintiffs or Plaintiffs' counsel that characterize, or may be viewed as characterizing, SimplexGrinnell as a bad actor, such as affirmative representations that the company failed to pay prevailing wages or failed to comply with the law, as it relates to claims that were settled in the Action, are prohibited.
58. Amendment or Modification. This Stipulation may be amended or modified only by a written instrument signed by counsel for all Parties.
59. Entire Agreement. This Stipulation and accompanying exhibits constitute the 22

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 23 of 26 PageID #: 8288
entire agreement between the Parties, and no oral or written representations, warranties or inducements have been made to any Party concerning this Stipulations other than the representations, warranties and covenants contained and memorialized herein.
60. Construction. The Parties agree that the terms of this Stipulation and the accompanying exhibits are the result of lengthy, arms-length negotiations and that this Stipulation shall not be construed in favor of or against any Party.
61. Parties’ Authority. The signatories to this Stipulation represent that they are fully authorized to enter into this Stipulation and bind the Parties hereto to the terms and conditions hereof.
62. Attorney Authorization. Class Counsel and SimplexGrinnell’s Counsel warrant and represent that they are authorized by Plaintiff and SimplexGrinnell, respectively, to take all appropriate action required or permitted to be taken by such Parties pursuant to this Agreement to effectuate its terms, and to execute any other documents required to effectuate the terms of this Agreement. The Parties and their counsel will cooperate with each other and use their best efforts to effect the implementation of the Settlement. In the event the Parties are unable to reach agreement on the form or content of any document needed to implement the Agreement, or on any supplemental provisions that may become necessary to effectuate the terms of this Agreement, the Parties will seek the assistance of the Court, and in all cases all such documents, supplemental provisions and assistance of the Court will be consistent with this Agreement.
63. Successors and Assigns. This Stipulation is binding upon, and inures to the benefit of the Parties’ successors or assigns. The Parties represent and warrant that they have not directly or indirectly, assigned, transferred, or encumbered to any person or entity any portion of any claim, demand, action, or cause of action or rights herein released and discharged except as set forth herein.
64. Enforcement of Actions. In the event a Party to this Stipulation institutes any legal action, arbitration, or other proceeding against any other Party to enforce the provisions of this Stipulation or to declare rights or obligations under this Stipulation, the successful Party
23

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 24 of 26 PageID #: 8289
shall be entitled to recover from the unsuccessful Party or Parties, reasonable attorney’s fees and costs, including expert witness fees incurred in connection with any enforcement proceedings.
65. Governing Law. All terms of this Stipulation shall be governed by and interpreted according to the laws of the State of New York.
66. Cooperation in Drafting. The Parties have cooperated in the drafting and preparation of this Agreement. This Agreement will not be construed against any Party on the basis that the Party was the drafter or participated in the drafting.
67. Headings. The descriptive heading of any section or paragraph of this Agreement is inserted for convenience of reference only and does not constitute a part of this Agreement.
68. Jurisdiction of the Court. The Court shall retain jurisdiction with respect to the interpretation, implementation, and enforcement of the terms of this Stipulation and all orders and judgments entered in connection therewith.
69. Counterparts. This Stipulation may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument.
70. Notices. Unless otherwise specifically provided in this Stipulation, all notices, demands or other communications given will be in writing and will be deemed to have been duly given as of the third business day after mailing by U.S. registered or certified mail, return receipt requested, addressed as follows:
To the Class:
Bruce E. Menken Jason J. Rozger Beranbaum Menken LLP 80 Pine Street, 33rd Floor New York, New York 10005
Raymond C. Fay Taryn Null Mehri & Skalet, PLLC 1250 Connecticut Ave NW, Suite 300 Washington, DC 20036.
24

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 25 of 26 PageID #: 8290

To Defendant:
David Copus Dominick Capozzola OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10 Madison Avenue, Suite 400 Morristown, NJ 07950
71. Enforceability. The Parties intend for this Agreement to be enforceable in the
United States District Court for the Eastern District of New York, by and subject to the Court’s
pending and/or ancillary jurisdiction.

DATED: June 29, 2012

BERANBAUM, MENKEN LLP MERHI & SKALET, PLLC

By: ___/s/ Bruce E. Menken ______________ Bruce Menken
Jason Rozger BERANBAUM MENKEN LLP 80 Pine Street, 33rd Floor New York, New York 10005
Raymond C. Fay Taryn Null MEHRI & SKALET, PLLC 1250 Connecticut Ave NW, Suite 300 Washington, DC 20036
Attorneys for Plaintiffs Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oyarvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, and Rafiu Owolabi

25

Case 1:07-cv-00981-SMG Document 228-3 Filed 06/29/12 Page 26 of 26 PageID #: 8291

DATED: June 29, 2012

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
By: ____/s/ Grant Petersen _______________ Grant Petersen
David Copus Dominick Capozzola 10 Madison Avenue, Suite 400 Morristown, NJ 07960 (973)656-1600 (973)656-1611 (fax) grant.petersen@odnss.com david.copus@odnss.com dominick.capozzola@odnss.com Attorneys for Defendant SIMPLEXGRINNELL LP

26

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------x ROBERTO RAMOS, et al.,

-against-

Plaintiffs,

Memorandum & Order 07-CV-981 (SMG)

SIMPLEXGRINNELL LP,

Defendant. -----------------------------------------------------x Gold, S., United States Magistrate Judge:

On June 21, 2011, I issued a Memorandum and Order (“M&O”) that partially denied

defendant’s motion for summary judgment. Docket Entry 154. Among other things, I ruled that

defendant was not entitled to summary judgment on plaintiffs’ third-party beneficiary claims

even though plaintiffs plan to offer at trial only a few of the many contracts they claim were

breached. M&O at 19-27. Defendant now moves for leave to file an interlocutory appeal from

this aspect of my ruling. Docket Entry 156.

Defendant’s motion is brought pursuant to 28 U.S.C. § 1292(b). Circuit Courts of Appeal

generally have jurisdiction over appeals only from final orders of district courts. 28 U.S.C.

§ 1291. However, a district court may permit the interlocutory appeal of an order if it “involves

a controlling question of law as to which there is substantial ground for difference of opinion”

and “an immediate appeal from the order may materially advance the ultimate termination of the

litigation.” 28 U.S.C. § 1292(b). The Court of Appeals then has discretion over whether to

permit the appeal. Id.

A question of law is controlling for purposes of Section 1292(b) only if reversal of the

district court’s order would “significantly affect the conduct of the action.” Aspen Ford, Inc. v.

Ford Motor Co., 2008 WL 163695 *2 (E.D.N.Y. Jan. 15, 2008), quoting S.E.C. v.

CreditBancorp, Ltd., 103 F. Supp. 2d 223, 227 (S.D.N.Y. 2000). Moreover, to warrant interlocutory review, the question of law must be “pure” and capable of being decided on appeal “quickly and cleanly without having to study the record.” Id.
District courts have broad discretion over applications pursuant to § 1292(b), and may exercise that discretion to deny an application even when the statute’s criteria are satisfied. Id. Because interlocutory appeals prolong judicial proceedings, add delay and expense, burden appellate courts, and present issues for review on incomplete records, a court should grant applications brought under Section 1292(b) only in exceptional circumstances. In re Flor, 79 F.3d 281, 284 (2d Cir. 1996); Lothian Cassidy LLC v. Ransom, 2010 WL 3767617 *1 (E.D.N.Y. Sept. 17, 2010).
This case does not present extraordinary circumstances warranting interlocutory appeal. The ruling defendant seeks to appeal is that plaintiffs may rely upon evidence other than the contracts themselves to prove at trial that defendant was contractually obligated to pay prevailing wages. Although it is conceivable that a reviewing court might hold that a plaintiff suing for breach as a third-party beneficiary must, under any circumstances, offer the allegedly breached contract into evidence, it is also possible that the Court of Appeals would seek to review the nature and quantum of the evidence of defendant’s contractual obligation offered at trial before deciding whether plaintiffs’ evidence was sufficient. Thus, the ruling at issue does not raise a “pure” question of law.
Moreover, while reversal might materially affect the outcome of the case, it would not terminate the action; plaintiffs would still have the right to proceed with respect to those claims based upon the 29 contracts they intend to offer in evidence at trial. Indeed, if the case were to
2

proceed to trial with respect to those 29 contracts while an appeal were litigated, and if my order were affirmed, a second trial with much of the same evidence would have to be held.
Finally, for Section 1292(b) to apply, the question of law must be one about which there is substantial grounds for difference of opinion. Here, as I noted in my decision, plaintiffs’ contention that third-party beneficiary claims for prevailing wages may proceed without the underlying public works contracts being offered into evidence appears to raise a question of first impression. M&O at 25. However, I also pointed out that the principle that contracts are presumed to incorporate existing laws is well-settled, and that the Federal Rules of Evidence permit the terms of a contract to be established with evidence other than the contract itself. M&O at 20-23. Moreover, “the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion.” In re Flor, 79 F.3d at 284.
For all these reasons, defendant’s motion pursuant to Section 1292(b) is denied. SO ORDERED.
/s/ STEVEN M. GOLD United States Magistrate Judge
Brooklyn, New York August 8, 2011
U:\eoc 2011\ramos\ramos 1292(b).docx
3

 
 Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 1 of 25 PageID #: 8510

BERANBAUM MENKEN LLP Bruce Menken Jason Rozger 80 Pine Street, 33rd Floor New York, New York 10005
(212)509-1616 (212)509-8088

FAY LAW GROUP PLLC
Raymond C. Fay
1250 Connecticut Ave NW, Suite 200 Washington, DC 20036 (202)263-4604

Attorneys for Plaintiffs

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

Peter 0. Hughes

Grant D. Petersen 10 Madison Avenue, Suite 400 Morristown, NJ 07960 (973) 656-1600

I
'-

(973) 656-1611

Attorneys for Defendant

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ROBERTO RAMOS, et al.,

Ron. Steven M. Gold, U.S.M.J. Case No. 1:07-cv-00981-SMG

Plaintiffs,

Civil Action

v.

JOINT STIPULATION AND

AGREEMENT REGARDING CLASS

SIMPLEXGRINNELL LP,

ACTION SETTLEMENT

OF TESTING AND INSPECTION

Defendants.

CLAIMS

i

TO THE HONORABLE COURT, ALL PARTIES AND THEIR RESPECTIVE

i-

COUNSEL OF RECORD:

This Joint Stipulation Regarding Class Action Settlement (hereinafter "Stipulation" or

"Settlement" or "Agreement") is made and entered into by and between Plaintiffs Roberto

Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray,

Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oyarvide, Nacim

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 2 of 25 PageID #: 8511
Bennekaa, Breno Zimerer, Omar Florez, and Rafiu Owolabi ("Plaintiffs" or "Class Representatives"), on behalf of themselves and on behalf of others similarly situated; and SimplexGrinnell LP ("SimplexGrinnell" or "Defendant"). Subject to the approval of the Court, the Action is hereby being compromised and settled pursuant to the terms and conditions set forth in this Stipulation. This Settlement shall be binding on Plaintiffs and the class they represent, and Defendant, subject to the terms and conditions hereof and the approval of the Court.
THE PARTIES STIPULATE AND AGREE AS FOLLOWS:!. DEFINITION OF TERMS
The following terms, as used throughout this Stipulation, are defined as follows: 1. The Action. The term ''the Action" shall refer to the legal action filed in the United States District Court, Eastern District ofNew York, Case No. 1:07-cv-0981(SMG), entitled Roberto Ramos, et al., individually and on behalfofall other persons similarly situated who are or were employed by SimplexGrinnell LP with respect to Public Works Projects mentioned in this Complaint, v. SimplexGrinnell LP. 2. Class Representatives or Plaintiffs. The terms "Class Representatives" or "Plaintiffs" shall refer to plaintiffs Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oyarvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, and Rafiu Owolabi. 3. Defendant or SimplexGrinnell. The terms "Defendant" or "SimplexGrinnell" shall refer to the named defendant in the Action, SimplexGrinnell LP, and its present and former parent companies, subsidiaries, related or affiliated companies, shareholders, owners, officers, directors, employees, agents, attorneys, insurers, successors and assigns, and any individual or entity which could be jointly,liable with Defendant. 4. Parties. The term ''the Parties" shall refer collectively to Plaintiffs and Defendant. 5. Class Counsel. The term "Class Counsel" shall refer collectively to (1) Bruce E.
2

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 3 of 25 PageID #: 8512
Menken and Jason J. Rozger, Beranbaum Menken, 80 Pine Street, 33rd Floor, New York, New York 10005; and (2) Raymond C. Fay, Fay Law Group, PLLC, 1250 Connecticut Ave NW, Suite 200, Washington, DC 20036.
6. Defendant's Counsel. The term "Defendant's Counsel" shall refer collectively to Peter Hughes and Grant Petersen, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 10 Madison Avenue, Suite 400 Morristown, NJ 07960.
7. Settlement Administrator. The term "Settlement Administrator" shall refer to Settlement Services, Inc., located at PO Drawer 1657, Tallahassee, Florida 32302.
8. The Class. The term "the Class" shall refer to all laborers, workmen and mechanics who furnished labor to SimplexGrinnell on non-federal public works projects in the State ofNew York at any time from February 6, 2001, or from July 14,2002 for sprinkler work, until the fmaljudgment in this matter, and who have not been paid prevailing wages and benefits for testing and inspection work as required by law, irrespective of whether or not such individuals receive a Settlement Share under this Settlement.
9. Class Counsel Fees Payment. The term "Class Counsel Fees Payment" means the amount awarded to Class Counsel by the United States District Court for the Eastern District of New York (hereinafter the "Court"), to compensate them for their fees in connection with the Action, including their pre-filing investigation, their filing of the Action and all related litigation activities, this Settlement, and all post-Settlement compliance procedures.
10. Class Counsel Litigation Expenses Payment. The term "Class Counsel Litigation Expenses Payment" means the amount awarded to Class Counsel by the Court to compensate them for their expenses in connection with the Action, including their filing of the Action and all related litigation activities, this Settlement, and all post-Settlement compliance procedures.
11. Class Members. The term "Class Members" means all members of the Class as defmed in Paragraph 8, above.
12. Class Notice. The term "Class Notice" means the Notice of Class Action Settlement, Proposed Settlement, Preliminary Approval of Settlement, and Hearing Date for
3

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 4 of 25 PageID #: 8513
Final Court Approval, attached as Exhibit A to this Agreement and incorporated by reference into this Agreement.
13. Class Notice Packet. The term "Class Notice Packet" means the Class Notice and the Information Correction Form (attached hereto as Exhibit B).
14. The Class Period. The term "Class Period" shall mean the time period of February 6, 2001 to the date of the Court's Final Approval of the Settlement.
15. Final Approval Hearing. The term "Final Approval Hearing" means the hearing to be conducted by the Court following Class Notice and the expiration of all dates set forth therein to determine whether to approve finally and implement the terms of this Agreement.
16. Settlement Amount. The term "Settlement Amount" means the amount ofNine Million, Five Hundred Thousand Dollars ($9,500,000) to be paid by SimplexGrinnell as provided by this Agreement.
17. Net Settlement Amount. The term "Net Settlement Amount" means the Settlement Amount to be paid by SimplexGrinnell pursuant to this Settlement, less (i) the Class Counsel Fees Payment and the Class Counsel Litigation Expenses Payment approved by the Court; (ii) the Settlement Administrator's reasonable fees and expenses approved by the Court; and (iii) any other fees or expenses (other than attorneys' fees and expenses) incurred in implementing the terms and conditions of this Agreement.
18. Non-Participating Class Member. The term ''Non-Participating Class Member" means a Class Member who has submitted a valid and timely Election Not to Participate in Settlement (Opt-Out Form).
19. Participating Class Member. The term "Participating Class Member" means a Class Member who has not submitted a valid and timely Request To Be Excluded From Lawsuit (Opt-Out Form).
20. Preliminary Approval of the Settlement. The term "Preliminary Approval of the Settlement" means the Court's preliminary approval of the Settlement without material change.
21. Settlement. The term "Settlement" means the disposition of the Action and all
4

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 5 of 25 PageID #: 8514
remaining claims effectuated by this Agreement. 22. Settlement Share. The term "Settlement Share" means each Participating Class
Member's share of the Net Settlement Amount as provided by this Agreement. 23. Non-Testing and Inspection Claims. The term "Non-Testing and Inspection
Claims" shall refer to the claims alleged in the Plaintiffs' July 14, 2008 First Amended Complaint not relating to the testing and inspection of fire alarms, sprinkler and suppression systems, and other life safety systems, which were settled between the parties on June 29,2012 (Dkt. 228) and dismissed in the Court's December 3, 2012 Judgment, incorporating the November 30,2012 Order Granting Motion to Approve Consent Judgment (Dkt. 241, 242).
24. Testing and Inspection Claims. The term "Testing and Inspection Claims" shall refer to the claims alleged in the Plaintiffs' July 14,2008 First Amended Complaint relating to the testing and inspection of fire alarms, sprinkler and suppression systems, and other life safety systems, which were dismissed on June 21, 2011 (796 F.Supp.2d 346, 367-9) and then reinstated and remanded by the United States Court of Appeals for the Second Circuit on December 4, 2014. 773 F.3d 394 (2d Cir. 2014).
II. BACKGROUND OF THE LEGAL ACTION 25. Original Complaint. On February 6, 2007, Class Representatives (except Plaintiff Rafiu Owolabi, who did not join the action until later) filed a proposed Class Action Complaint against Defendant and John Doe Bonding Companies #1-3, in the Supreme Court for the State of New York, Kings County, on behalf of themselves and all others similarly situated. The action was assigned the index number 4393/07. The Complaint alleged causes of action for: (1) Breach of Contract; (2) Quantum Meruit; (3) Unjust Enrichment; (4) New York Overtime; and (5) Failure to Pay Wages. The Complaint sought recovery of unpaid prevailing wages, injunctive relief, attorneys' fees and costs, and pre-judgment interest. 26. Removal. On March 7, 2007, SimplexGrinnell removed the action to the United States District Court for the Eastern District ofNew York under the Class Action Fairness Act. Plaintiffs agreed to dismiss the John Doe Bonding Companies.
5

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 6 of 25 PageID #: 8515

27. First Amended Complaint. On July 14, 2008, Plaintiffs filed a First Amended

Complaint with the approval ofthe Court, adding further specification to claims relating to

sprinkler and suppression work. Pursuant to the Court's Order granting leave to amend, dated

July 11, 2008, claims relating to sprinkler and suppression work did not relate back to the filing

of the Original Complaint. The Plaintiffs' First Amended Complaint added Rafiu Owolabi as a

party and deleted the reference to John Doe Bonding Companies from the caption.

28. Class Certified and Summary Judgment Granted in Part. On June 21,2011, the

Court issued a Memorandum and Order which addressed several motions, including the

Plaintiffs' Motion for Class Certification and Defendant's Motion for Summary Judgment. The

Court granted Plaintiffs' Motion for Class Certification, and it granted Defendant's Motion for

Summary Judgment, in part, dismissing the following claims: (1) Testing and Inspection claims;

and (2) Plaintiffs' Fifth Cause of Action ("Failure to Pay Wages"). In September, 2011, under

the Court's direction, the Plaintiffs issued Notices of Pendency of Class Action, notifying the

Class Members about the lawsuit and providing them with an opportunity to opt out of the case.

29. Settlement ofPlaintiffs Non-Testing and Inspection Claims. On June 29,2012,

the Plaintiffs settled part of this case by agreeing to accept a payment of$5,525,000 as and for

'

Defendant's alleged failure to pay prevailing wages for the non-testing and inspection work they

I

I'I

performed on public jobs in the State ofNew York. 30. Plaintiffs' Appeal. Plaintiffs retained their right to appeal the District Court's
summary judgment dismissal oftheir Testing and Inspection Claims in the June 29, 2012 partial

~

,,

!'

settlement and submitted their appeal to the United States Court of Appeals for the Second

Circuit. On December 4, 2014, the Second Circuit vacated this Court's summary judgment

order on testing and inspection and remanded the case. 773 F.3d 394 (2d Cir. 2014).

31. Mediation. The Parties appeared before National Arbitration and Mediation

Mediator Richard P. Byrne on February 26, 2015, and a term sheet was executed that included

the material terms of a settlement of the remaining claims in this case, those described in par. 24

above. Defendant agreed to settle the testing and inspection claims for $9,500,000 and to pay

6

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 7 of 25 PageID #: 8516

prevailing wages to all of its employees who perform testing and inspection work on fire alarm

and sprinkler systems within 15 days of the preliminary approval of this settlement.

32. Investigation. The Parties have conducted significant discovery and investigation

of the facts and law during the prosecution of the Action. Such discovery and investigation have

included the exchange of the relevant time and pay records of the putative class; analyses by both

Parties of the exchanged time and pay records; the informal exchange of information;

discussions and meetings between representatives of the Parties; interviews of potential

witnes~es and Class Members; and analysis of relevant records. The Parties have also conducted

the depositions ofthe class representatives and numerous employees of Defendant and third

party witnesses, exchanged written discovery including Requests for Production of Documents

and Interrogatories. In addition, counsel for the Parties have investigated the applicable law

regarding the claims and defenses to such claims, as well as the damages alleged by Plaintiffs.

33. Benefits of Settlement. Class Representatives and Class Counsel recognize the

uncertainty and risk of the outcome of further litigation, and the difficulties and delays inherent

in such litigation. Class Representatives and Class Counsel also are aware of the burdens of

proof necessary to establish liability for the claims asserted in the Action, the defenses thereto,

and the difficulties inherent in the Action. Based on the foregoing, Class Representatives and

Class Counsel have determined that the settlement set forth in this Stipulation is a fair, adequate

and reasonable settlement, and is in the best interest of the Class Members. Defendant has concluded that any further defense of this Action would be protracted and expensive, and the

r

results uncertain. Substantial amounts oftime, energy and resources have been, and will

!

continue to be devoted to the defense ofthe Action unless this Settlement is made. Therefore,

Defendant has agreed to settle in the manner and upon the terms set forth in this Stipulation to

fully and finally resolve the remaining claims asserted in the Action, namely the Testing and

Inspection claims.

34. Denial of Wrongdoing. Defendant has denied and continues to deny each of the

testing and inspection claims asserted by Class Representatives in the Action. Defendant has

7

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 8 of 25 PageID #: 8517

asserted and continues to assert defenses to these claims, and has expressly denied and continues

to deny any wrongdoing whatsoever. Neither this Stipulation nor any action taken to carry out

the Settlement may be construed as an admission by Defendant of any fault, wrongdoing, or

liability whatsoever.

III. DATE OF SETTLEMENT

35. The Class. This Stipulation is made as of the date set forth below by and between

Plaintiffs on behalf of themselves and the Class, on the one hand, and Defendant on the other

hand, subject to the approval of the Court.

36. Effective Date. As used in this Stipulation, "Effective Date" means the date by

which the Court has held a Final Approval Hearing and entered a Final Order and Judgment

approving the Settlement Agreement.

IV. CLASS MEMBERS INCLUDED IN SETTLEMENT

37. The Class. Class membership, for purposes of this Settlement Agreement, is

defmed as above in paragraph 8.

38. Excludes Non-Testing and Inspection Claims. The Parties agree that, for

purposes ofthis Settlement, Non-Testing and Inspection Claims that may be held by Class

Representatives and Class Members are not included in the claims ultimately to be dismissed

through this Stipulation because they were resolved and dismissed with prejudice in 2012.

39. Class Members' Objections to This Settlement. Any Class Member may

I

comment on or object to the Settlement provided herein by filing a written comment on or

I

objection to the Settlement with the Court and serving the written comment or objection to the

Settlement on counsel for the Parties no more than 30 days after the Settlement Administrator

mails the initial Class Notice. The written comment on or objection to the Settlement must set

forth the grounds for the comment or objection and indicate whether the Class Member intends

to appear and comment or object at the Final Approval Hearing. The failure to so indicate will

constitute a waiver of the right to appear at the hearing. A Class Member who does not file and

serve a written comment or objection in the manner and by the deadline specified above will be

8

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 9 of 25 PageID #: 8518

deemed to have waived any comments or objections and will be foreclosed from making any

comments or objections (whether by appeal or otherwise) to the Settlement. In the event that the

Court approves this Settlement notwithstanding the objections of Class Members, Class

Members who object to the Settlement will nonetheless be bound by the Settlement unless such

Class Members have opted out of the Settlement, as detailed in Paragraph 40.

40. Maximum Opt-Out Class Members. The Class Members received Notices of

Pendency of Class Action in September, 2011, at the direction of the Court, and they were given

opportunities to opt out of the case. (Docket No. 162 and Order of September 14, 2011.).

Eighteen of the Class Members in fact returned valid Requests to be Excluded from Lawsuit, and

are no longer Class Members: Edward Chris Tafel; Albert Mathews; Javier Vasquez; Harry

Ferrer; Michael Anthony Reggio; Thomas K. Gillette; Jose Begazo; James P Trombley; David S.

Jennings; Michael Thomas Cancemi; Bryan D.Turk; Carlos Bustamante; Robert Cardio; Jason

E.Wilishefski; Joseph Stasys Jr; Peter W. Doner; Jeffrey Allen Green; and Dennis Kennan. In

the event the Court decides that the Class Members should have another opportunity to opt out of

the case due to the settlement of the testing and inspection claims, Defendant reserves the right to

revoke this Stipulation and the Settlement contained herein if the number ofpersons who opt out

of the Settlement, together with the number of persons who already have opted out, comprise

more than fifteen percent (15%) ofthe total Class Members. If Defendant exercises that right upon the opting out of more than fifteen percent (15%) ofthe total Class Members, this

~

Stipulation will not have any force and effect. Class Counsel and Class Representative agree not

!i

to oppose any such application which is consistent with this paragraph.

41. Finality of Settlement. The Settlement contained herein, including the Release

outlined below, shall be final and binding upon all Class Members who do not exclude

themselves from the Settlement, as of the Effective Date.

V. CHANGE IN EMPLOYMENT PRACTICES

42. Payment for All Testing and Inspection Work. Defendant will change its

payment practices and, to the extent it has not paid prevailing wages to its workers for testing

9

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 10 of 25 PageID #: 8519
and inspection work, will commence paying prevailing wages to all of its workers, including but not limited to the members of this settlement class, for all testing and inspection work performed on fire alarms or sprinkler systems in New York on "public works." Defendant will implement this change within 15 days of preliminary approval, payment to be made retroactive to May 1, 2015 for all testing and inspection work not paid from May 1, 2015 to the date of implementation.
VI. RELEASES 43. Release By Participating Class Members. As of the Date of Final Approval, Participating Class Members (including Class Representatives) release Defendant and Defendant's predecessors, successors, as well as their current, former and future subsidiaries, affiliates, fiduciaries, owners, partners, insurers, agents, employees, assigns, subrogees, privies, officers, officials, directors, administrators, attorneys and shareholders ("Released Parties") from the Released Class Claims as defined below: Any and all claims, actions, demands, causes of action, suits, debts, obligations, damages, rights or liabilities, of any nature and description whatsoever, known or unknown that have been or could have been asserted by Class Representatives, or the Class Members or any of their respective heirs, executors, administrators, beneficiaries, predecessors, successors, attorneys, assigns, agents and/or representatives arising out of any claims that were or could reasonably have been encompassed in the Action from the beginning of time up to and including the date of Final Approval-ofthe Settlement (collectively referred to as "Released Class Claims"). 44. General Releases By Class Representative. In addition to the release set forth in the above paragraph, and in consideration in part for the Class Representative Enhancement Payments, Class Representatives makes the additional general release of all claims as follows: Class Representatives release Released Parties from any and all claims, actions, demands, causes of action, suits, debts, obligations, damages, rights or liabilities of any nature and description whatsoever, known or unknown, that Class Representative may possess against the Released Parties arising from Class Representatives' employment with Defendant, including but not
10

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 11 of 25 PageID #: 8520
limited to claims for the Age Discrimination in Employment Act (42 U.S.C. § 621), Title VII of the Civil Rights act of 1964 as amended (42 U.S.C. § 2000e), the Equal Pay Act of 1963 (29 U.S.C. § 206(d)), the Civil Rights Acts of 1866 and 1871 (42 U.S.C. § 1981), the Worker Adjustment and Retraining Notification Act (29 U.S.C. § 1651), the Employee Retirement Income Security Act (29 U.S.C. § 1001), the Family and Medical Leave Act (29 U.S.C. §2601), the Americans with Disabilities Act (42 U.S.C. § 12,101), the Occupational Safety and Health Act (29 U.S.C. § 651), the New York State Human Rights Law, as amended; the general regulations of the New York State Division of Human Rights, New York Executive Law Section 290 et seq., New York Rights of Persons With Disabilities, New York Whistleblower Law, New York State Labor Relations Act, New York Labor Law, New York Equal Rights Law, New York Wage Hour and Wage Payment Laws, New York Minimum Wage Law, Equal Pay Law for New York, as amended, New York Adoptive Parents' Child Care Leave Law, New York Smokers' Right Law, New York Bone Marrow Leave Law, New York State Workers Adjustment and Retraining Notification (WARN) Act, New York City Administrative Code, as amended, New York City Human Rights Law, as amended; or any other federal, state or local statute concerning the employment relationship or prohibiting retaliation or discrimination on the basis of age, race, creed, color, religion, national origin, sex, disability, marital status or any other protected classification which he or she has, or at any time has had, including but not limited to all claims for compensatory damages, punitive damages, attorney's fees, salary, commissions, bonuses, expense reimbursements, severance payments, deferred compensation payments, or other monies due. Class Representatives hereby acknowledge that upon receiving the sums provided to them pursuant to this Agreement that they will have received all wages, damages and penalties owing to them by Defendant, and further, that they are not owed any additional wages, penalties, or damages from Defendant. Class Representatives' release shall cover the time period from prior to his or her employment with Defendant up to the Effective Date.
VII. AMOUNT AND DISTRIBUTION OF SETTLEMENT 45. Settlement Amount. The Settlement Amount shall be Nine Million Five Hundred
11

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 12 of 25 PageID #: 8521
Thousand Dollars ($9,500,000). Defendant will not be obligated to pay more than the amount of Nine Million Five Hundred Thousand Dollars ($9,500,000) plus the amount of the employer's share of the payroll taxes to be paid on the Settlement Shares ("Maximum Settlement Amount"), under any circumstances.
46. Deductions From Settlement Amount. Deductions from the Settlement Amount, all subject to Court approval, shall be made for:
a. Class Counsel Fees Payment. Class Counsel will apply to the Court for an award of not more than Three Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Six Dollars ($3,166,666), which constitutes 33 1/3% of the total Settlement Amount as their Class Counsel Fees Payment. The attorneys' fees award shall be paid from the Settlement Amount. Defendant agrees not to oppose any such applications which are consistent with this paragraph. The amount of attorneys' fees shall include payment for time expended by class counsel up to and including the final approval of the Settlement, and any time on appeal expended in defense of the Settlement.
b. Class Counsel Litigation Expenses Payment. Class Counsel will apply to the Court for an award of not more than Twenty Five Thousand Dollars ($25,000) as their Class Counsel Litigation Expenses Payment, and Defendant will not oppose these requests. The Settlement Administrator will pay the amount approved by the Court, but not more than Twenty Five Thousand Dollars ($25,000) out of the Settlement Amount.
c. Approval by Court of Lesser Amounts. If the Court approves a Class Counsel Fees Payment or a Class Counsel Litigation Expenses Payment of less than Three Million, One Hundred Sixty-Six Thousand, One Hundred Sixty-Six Dollars ($3,166,666) or Twenty Five Thousand Dollars ($25,000), respectively, the remainder will be retained in the Net Settlement Amount for distribution to Participating Class Members.
d. Tax Treatment of Class Counsel Fees and Expenses. Tax deductions and withholdings will not be taken from the Class Counsel Fees and Expenses Payment and instead one or more Forms 1099 will be issued to Class Counsel by the Settlement Administrator.
12

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 13 of 25 PageID #: 8522

e. Settlement Administration Costs and Fees. All actual costs for settlement

administration, including related accounting costs, up to a maximum of Twenty Five Thousand

Dollars ($25,000), shall be paid from the Settlement Amount.

g. Payment of Individual Settlement Shares to Settlement Class Members.

Subject to the terms and conditions of this Stipulation, the Settlement Administrator will pay a

Settlement Share from the Net Settlement Amount to each Participating Class Member. The pro

rata Settlement Share for each Participating Class Member will be based on the calculations

made for purposes of the February 26, 2015 mediation by Plaintiffs' Expert Witness, Dr. David

Crawford, subject to a minimum payment of $250 for each Participating Class member. .

Attached to this Settlement Agreement as Exhibit C is a list of the estimated Settlement Shares,

based on the assumption that the deductions in this paragraph will apply in full.

h. Withholding. Fifty percent (50%) of each Settlement Share (the "Wage

Portion") is intended to settle each Participating Class Member's claims for unpaid wages.

Accordingly, the Wage Portion will be reduced by the Participating Class Member's applicable

tax deductions and withholdings which will be remitted by the Settlement Administrator. The

employer's share oflegally required payroll taxes for the Wage Portion will be paid separate and

in addition to the Settlement Amount by the Defendant. The Settlement Administrator will issue

a Form W-2 with respect to the Wage Portion.

1.

Interest and Penalties. Fifty percent (50%) of the Settlement Share (the

"Non-Wage Portion") is intended to settle each Participating Class Member's claims for interest

and penalties (36% deemed interest and 14% deemed penalties for unpaid overtime pursuant to

New York Labor Law Section 198(1-a) (allowing liquidated damages of one hundred percent for

wage claims)). Accordingly, the Non-Wage Portion will not be reduced by tax deductions and

withholdings; and, instead, the Settlement Administrator will issue a Form 1099 with respect to

the Non-Wage Portion.

J.

Effect ofNon-Participating Class Members. Non-Participating Class

Members will receive no Settlement Share, and their election not to participate will reduce

13

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 14 of 25 PageID #: 8523

neither the Maximum Settlement Amount nor the Net Settlement Amount.

47. Uncashed Settlement Share Checks. A Participating Class Member must cash his

or her Settlement Share check within one hundred eighty (180) calendar days after it is mailed to

him or her. If a check is returned to the Settlement Administrator, the Settlement Administrator

will make all reasonable efforts to re-mail it to the Participating Class Member at his or her

correct address. If any Participating Class Member's Settlement Share check is not cashed

within one hundred eighty (180) calendar days after its last mailing to the Participating Class

Member, the Settlement Administrator will return any funds to SimplexGrinnell. In such event,

the Participating Class Member nevertheless will remain bound by the Settlement.

VIII. SETTLEMENT ADMINISTRATION

48. Settlement Administrator's Duties. The Settlement Administrator shall be

responsible for (1) preparing, printing, and mailing to Class Members the Class Notice Packet;

(2) setting up a toll-free telephone number to receive calls from Class Members; (3) receiving

completed Opt-Out Forms; (4) providing the Parties with periodic status reports about the

delivery of Class Notice Packets and receipt of completed Opt-Out Forms; (5) calculating

Settlement Shares; (6) mailing Settlement Shares to Settlement Class Members; (7) filing any

required reports with the Court; (8) remitting tax payments due and issuing the tax reports

required under this Settlement; and (9) such other tasks as the Parties mutually agree or the Court

orders the Settlement Administrator to perform. Specifically, the Settlement Administrator shall

perform the following duties:

a. Mailing of Class Notice Packet. Within ten (10) days of receipt ofthe

i
!

Defendant's records pursuant to Paragraph 51 herein, the Settlement Administrator shall mail a

II!

'

copy of the Class Notice Packet to all Class Members by first class regular U.S. mail, using the

most current mailing address information possessed by Defendant, unless modified by any

updated address information that the Settlement Administrator obtains in the course of

administration ofthe Settlement (including a search ofthe National Change ofAddress

Database). The Settlement Administrator will engage in address searches consistent with the

14

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 15 of 25 PageID #: 8524
agreement of the Parties, including skip tracing. Any returned envelopes from this mailing with forwarding addresses will be utilized by the Settlement Administrator to forward the Class Notice Packet to the Class Members.
b. Re-Mailing of Returned Class Notice Packet. Class Notice Packets returned to the Settlement Administrator as non-delivered shall be resent to the forwarding address, if any, on the returned envelope. If a Class Notice Packet is returned without a forwarding address, the Settlement Administrator will promptly, and not longer than 15 days after the initial mailing date, search for a more current address for the Class Member and re-mail the Class Notice Packet to the Class Member. The Settlement Administrator will use the Class Members' Data and otherwise work with SimplexGrinnell to find that more current address. The Settlement Administrator will be responsible for taking reasonable steps to trace the mailing address of any Class Member for whom a Class Notice Packet is returned by the U.S. Postal Service as undeliverable. These reasonable steps shall include, at a minimum, the tracking of all undelivered mail; performing address searches (or "skip traces") for all mail returned without a forwarding address; and promptly re-mailing to Class Members for whom new addresses are found. If the Class Notice Packet is re-mailed, the Settlement Administrator will note for its own records and notify Class Counsel and SimplexGrinnell's Counsel of the date of each such remailing as part of a weekly status report provided to the Parties. A returned Class Notice Packet will be forwarded only once per Class Member by the Settlement Administrator. Upon completion of these steps by the Settlement Administrator, Defendant shall be deemed to have satisfied its obligation to provide the Notice to the affected member of the Class. The affected member of the Class shall remain a member of the Class and shall be bound by all the terms of this Stipulation and th~ Court's Order and Final Judgment.
c. Information Correction Form. Each Information Correction Form sent to each Class Member shall state the following: (1) the name, address, and last four digits ofthe Social Security Number of the Class Member; and (2) the latest W-4 information SimplexGrinnell has for each Class Member.
15

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 16 of 25 PageID #: 8525

d. Payment of Settlement Shares. The Settlement Administrator shall be

solely responsible for the disbursement of the settlement payments. Class Members who have

not submitted a timely and valid Opt-Out Form will receive a Settlement Share.

e. Initial Determination of Settlement Shares. Each Class Member's

Settlement Share will be determined as set forth in Paragraph 43(g) above.

f.

Declaration of Due Diligence. No later than ten (10) days prior to the

Final Approval Hearing, the Settlement Administrator shall provide both Parties with a

declaration of due diligence to be filed with the Court.

g. Allocating Portions of the Settlement Shares as Wages and Penalties and

Interest. The Settlement Administrator shall be responsible for determining the portion of each

Settlement Share to be allocated as (1) wages and (2) penalties and interest. Fifty percent (50%)

of each Settlement Share shall be allocated as wages. Fifty percent (50%) of each Settlement

Share shall be allocated as penalties and interest.

h. Taxation of Settlement Shares. The Settlement Administrator shall be

responsible for the appropriate payroll withholding of the Settlement Shares. The portion of

each Settlement Share allocated as wages shall be subject to payroll withholding. Appropriate

withholding of federal, state and local income taxes, including each claimant's share of FICA

taxes (on the portion ofthe award that constitutes wages) shall be deducted from each Settlement

Share. The employer's share of payroll withholding shall be paid by Defendant. The Settlement

Administrator shall issue an IRS Form W-2 to each Settlement Class Member for the portion of

the Settlement Share that is designated as wages. The Settlement Administrator shall issue an

IRS Form 1099 to each Settlement Class Member for the portion ofthe Settlement Share that is

designated as interest and penalties.

1.

Mailing of Settlement Shares. Within thirty (30) days from the Effective

Date, the Settlement Administrator shall mail all Settlement Class Members their Settlement

Shares. Each check issued to a Settlement Class Member shall remain valid and negotiable for

one hundred eighty (180) days from the date of issuance ("Check Cashing Deadline"). Any

16

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 17 of 25 PageID #: 8526

Settlement Share not cashed by the Check Cashing Deadline shall be canceled automatically, in

which event the Settlement Class Member's claim will be deemed void and the funds shall be

returned to SimplexGrinnell as set forth in Paragraph 44, above.

J.

Certifying the Class Members Bound by the Settlement. Within sixty (60)

days from the Effective Date, the Settlement Administrator shall file written certification with

the Court with copies to counsel for all Parties that all Settlement Class Members have been

mailed their Settlement Shares.

k. Payment of Attorneys' Fees and Expenses. Within seven (7) days after

the payment by Defendant of the Settlement Amount as provided by paragraph 57, the

Settlement Administrator shall pay via wire transfer the Class Counsel Fees Payment and Class

Counsel Litigation Expenses Payment to Class Counsel, as detailed in Paragraphs 46(a) and

46(b) ofthe Stipulation.

1.

Disputes Regarding The Settlement Administrator's Performance of

Duties. All disputes relating to the Settlement Administrator's performance of its duties shall be

referred to the Court, if necessary, which will have continuing jurisdiction over the terms and

conditions of this Stipulation until all payments and obligations contemplated by this Stipulation

have been fully carried out.

IX. DUTIES OF THE PARTIES PRIOR TO PRELIMINARY COURT APPROVAL

49. Prompt Submission. The Parties shall promptly submit this Stipulation to the

Court in support of Plaintiffs' Motion for Preliminary Approval and determination by the Court

as to its fairness, adequacy, and reasonableness, and shall apply to the Court for the entry of an

order substantially in the following form:

a. Scheduling a fairness hearing on the question of whether the proposed

Settlement, including payment of attorneys' fees, and the amount of Settlement Shares to be paid

to Settlement Class Members, including the methodology used in calculating such amounts,

should be finally approved as fair, reasonable and adequate as to the members of the Class;

b. Approving as to form and content the attached proposed Class Notice

17

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 18 of 25 PageID #: 8527
Packet and all documents included therein; c. Directing the mailing of the Class Notice Packet, by first class U.S. mail to
the Class Members, pursuant to the terms specified herein; and d. Preliminarily approving the settlement subject only to the objections of
Class Members and final review by the Court. 50. Amendment of This Stipulation To Conform To The Court's Order. To the extent
that the Court does not approve this Stipulation, or any specific term contained herein, and the Court allows the Parties to amend this Stipulation, the Parties agree to cooperate in good faith to amend the Stipulation in accordance with the Court's direction, and to retain all other terms of the Stipulation that the Court approves. X. DUTIES OF THE PARTIES FOLLOWING PRELIMINARY COURT APPROVAL
51. Defendant's Provision of Class Member Data To Settlement Administrator. No later than seven (7) days following preliminary approval of this Settlement by the Court, Defendant shall provide the Settlement Administrator in electronic format the following information that is within Defendant's possession for each Class Member: (1) the Class Member's name, (2) last known address, (3) last four digits of the Class Member's social security number; and (4) the Class Members' most recent W-4 information. This information shall be based on Defendant's payroll and other business records and in a format readily accessible to Defendant. Within ten (1 0) days of receipt of the information from Defendant, the Settlement Administrator will mail the Class Notice Packet to the Class Members.
52. CAFA Notice. Pursuant to CAFA, within ten (1 0) calendar days after the Class Representatives file their motion for preliminary approval of the Settlement, Defendant will mail the CAFA Notice to the Attorney General ofthe United States, the Attorney General of the State ofNew York, and the Attorney General of any state where a Settlement Class Member resides. The Parties intend and believe that the CAFA Notice pursuant to the procedures described in this section comply with the requirements of CAFA; will seek approval of the procedures in the motion for preliminary approval of the Settlement; and will request the Court to adjudicate the
18

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 19 of 25 PageID #: 8528

validity of the CAFA Notice in the motion for final approval ofthe Settlement and bar any

Settlement Class Member's claim to void or avoid the Settlement under CAFA.

53. Disputes Arising From Settlement Administration. If either of the Parties

disagrees with the Settlement Administrator's determination of a class member's Settlement

Share, it must file a motion with the Court no later than fifteen (15) days from notice of the

Settlement Administrator's determination, requesting that the Court determine the amount of the

Settlement Share or the validity of the information contained in the Information Correction

Form. If such a motion is not filed, the Parties shall be barred from contesting the amount of a

Settlement Share or the validity ofthe information contained in the Information Correction Form

at any later date. If such a motion is filed, the Settlement Administrator's determination shall

have no binding effect, and the Court will have sole authority to resolve the matter. All other

deadlines prescribed by the Stipulation and timing of actions to take place pursuant to the

Stipulation shall be stayed from the date of filing the motion described herein until the date that

the dispute is resolved.

54. Motion for Final Approval of the Settlement. Class Counsel shall timely prepare,

subject to Defendant's review and comment, a Motion for Final Approval of the Settlement.

Class Counsel will timely file, within five (5) days of the Fairness Hearing, the Motion for Final

Approval of the Settlement and for Approval of the Motion for Attorneys' Fees and Expenses,

which will include a proposed Final Order and Judgment ordering:

1.

Approval ofthe Settlement, adjudging the terms thereof to be fair,

reasonable and adequate, and directing consummation of its terms and provisions, specifically

including the change of practice to pay prevailing wages for testing and inspection work as set

forth in this Settlement;

n. Approval of Class Counsel's application for an award of attorneys'

fees, costs and expenses as provided herein;

111. Permanently barring and enjoining all members of the Class from

prosecuting against the Released Parties any individual or class or collective claims released

19

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 20 of 25 PageID #: 8529

herein pursuant to Paragraphs 43-44 above, upon satisfaction of all payments and obligations hereunder; and,
IV. Reserving jurisdiction over the construction, interpretation, implementation, and enforcement of the parties' settlement and over the administration and distribution of settlement benefits.
55. Fairness Hearing. Forty-five (45) days after the mailing of the Class Notice Packet, or as soon thereafter as may be practicable, the Parties shall attend a Final Settlement Approval Hearing with the Court to finally approve the Settlement as fair, reasonable, and adequate as to Class Members, attorney's fees to Class Counsel, the Settlement Administration fees and costs, the Settlement Shares to be paid to the Settlement Class Members, including the methodology used to calculate such awards, and the disposition of unclaimed funds (if any).

XI. DUTIES OF THE PARTIES FOLLOWING FINAL COURT APPROVAL

56. Final Settlement and Approval and Entry of Judgment. With the motion for fmal

approval of the Settlement by the Court, the Parties shall submit a Final Judgment ("Final

Judgment") for the Court's approval and entry. After entry of the Final Judgment, the Court

shall have continuing jurisdiction over the administration of the Settlement.

i

57. Payment of Settlement Amount. Defendant shall deposit, not later than fifteen (15) days following the Effective Date, the following amounts into an account established by the Settlement Administrator: (1) Class Counsel Fees Payment approved by the Court (not to exceed

~

I

Three Million One Hundred Sixty-Six Thousand Six Hundred Sixty Six Dollars ($3,166,666));

I

(2) Class Counsel Litigation Expenses Payment approved by the Court (not to exceed

t

$20,000.00;(3) actual settlement administration costs (not to exceed $30,000.00); (4) the Net

Settlement Amount; and (5) the employer's share of payroll taxes as provided in Paragraph 45(h)

herein. The Settlement Administrator will retain exclusive authority over the deposited funds.

The Settlement Administrator shall make all payments and other disbursements required by this

Stipulation from the Settlement Amount. Defendant shall have no further obligations over the

20

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 21 of 25 PageID #: 8530
distribution of the Settlement Amount. 58. Provision of Final Order and Judgment to Settlement Administrator. Following
final approval by the Court of the Settlement provided for in the Stipulation, Class Counsel shall provide the Settlement Administrator with a copy of the Final Order and Judgment.
XII. ADDITIONAL TERMS 59. Nullification of Settlement. This Stipulation shall be null and void and any order ofjudgment entered by the Court in furtherance of the Settlement shall be vitiated nunc pro tunc if any ofthe following occurs:
a. the Court does not preliminarily approve the settlement; b. the Court does not finally approve the settlement; c. the Court does not enter a Final Judgment which becomes final as a result of the occurrence of the Effective Date; d. More than fifteen percent of Class Members opt out, and Defendant elects to revoke the Settlement on that basis; or e. The Settlement does not become final for any other reason. In such a case, the Parties and any funds awarded under this Stipulation shall be returned to their respective status as of the date and time immediately prior to the execution of this Stipulation, and the Parties shall proceed in all respects as if this Stipulation had not been executed. 60. No Admissions. Nothing contained herein is to be construed or deemed an admission of liability or wrongdoing by Defendant which is expressly denied by Defendant. This Stipulation and attached exhibits are settlement documents and shall be inadmissible in any proceeding, except an action or proceeding to approve, interpret, or enforce this Stipulation. This settlement may not be used for any purposes in any other litigation. 61. Amendment or Modification. This Stipulation may be amended or modified only by a written instrument signed by counsel for all Parties. 62. Entire Agreement. This Stipulation and accompanying exhibits constitute the
21

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 22 of 25 PageID #: 8531
entire agreement between the Parties, and no oral or written representations, warranties or inducements have been made to any Party concerning this Stipulations other than the representations, warranties and covenants contained and memorialized herein.
63. Construction. The Parties agree that the terms of this Stipulation and the accompanying exhibits are the result oflengthy, arms-length negotiations and that this Stipulation shall not be construed in favor of or against any Party.
64. Parties' Authority. The signatories to this Stipulation represent that they are fully authorized to enter into this Stipulation and bind the Parties hereto to the terms and conditions hereof.
65. Attorney Authorization. Class Counsel and SimplexGrinnell's Counsel warrant and represent that they are authorized by Plaintiffs and SimplexGrinnell, respectively, to take all appropriate action required or permitted to be taken by such Parties pursuant to this Agreement to effectuate its terms, and to execute any other documents required to effectuate the terms of this Agreement. The Parties and their counsel will cooperate with each other and use their best efforts to effect the implementation of the Settlement. In the event the Parties are unable to reach agreement on the form or content of any document needed to implement the Agreement, or on any supplemental provisions that may become necessary to effectuate the terms of this Agreement, the Parties will seek the assistance of the Court, and in all cases all such documents, supplemental provisions and assistance of the Court will be consistent with this Agreement.
66. Successors and Assigns. This Stipulation is binding upon, and inures to the benefit of the Parties' successors or assigns. The Parties represent and warrant that they have not directly or indirectly, assigned, transferred, or encumbered to any person or entity any portion of any claim, demand, action, or cause of action or rights herein released and discharged except as set forth herein.
67. Enforcement of Actions. In the event a Party to this Stipulation institutes any legal action, arbitration, or other proceeding against any other Party to enforce the provisions of this Stipulation or to declare rights or obligations under this Stipulation, the successful Party
22

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 23 of 25 PageID #: 8532

shall be entitled to recover from the unsuccessful Party or Parties, reasonable attorney's fees and

costs, including expert witness fees incurred in connection with any enforcement proceedings.

68. Governing Law. All terms ofthis Stipulation shall be governed by and

interpreted according to the laws ofthe State ofNew York.

69. Cooperation in Drafting. The Parties have cooperated in the drafting and

preparation of this Agreement. This Agreement will not be construed against any Party on the

\

.

basis that the Party was the drafter or participated in the drafting.

70. Headings. The descriptive heading of any section or paragraph of this Agreement

is inserted for convenience of reference only and does not constitute a part ofthis Agreement.

71. Jurisdiction of the Court. The Court shall retain jurisdiction with respect to the

interpretation, implementation, and enforcement of the terms of this Stipulation and all orders

and judgments entered in connection therewith.

72. Counterparts. This Stipulation may be executed in one or more counterparts. All

executed counterparts and each of them shall be deemed to be one and the same instrument.

73. Notices. Unless otherwise specifically provided in this Stipulation, all notices,

demands or other communications given will be in writing and will be deemed to have been duly

given as of the third business day after mailing by U.S. registered or certified mail, return receipt

requested, addressed as follows:

To the Class:

Bruce E. Menken Jason J. Rozger Beranbaum Menken LLP 80 Pine Street, 33rd Floor New York, New York 10005

Raymond C. Fay Fay Law Group PLLC 1250 Connecticut Ave NW, Suite 200 Washington, DC 20036.

To Defendant:

23

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 24 of 25 PageID #: 8533

Peter 0. Hughes Grant D. Petersen OGLETREE, DEAKINS, NASH, SMOAK& STEWART,P.C. 10 Madison Avenue, Suite 400 Morristown, NJ 07950
74. Enforceability. The Parties intend for this Agreement to be enforceable in the
United States District Court for the Eastern District ofNew York, by and subject to the Court's
pending and/or ancillary jurisdiction.

DATED: AprillU, 2015

BERANBAUM, MENKEN LLP FAY LAW GROUP, PLLC

Raymond C. Fay FAY LAW GROUP PLLC 1250 Connecticut Ave NW, Suite 200 Washington, DC 20036
Attorneys for the Class and Plaintiffs Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oyarvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, and Rafiu Owolabi

24

Case 1:07-cv-00981-SMG Document 252-3 Filed 04/10/15 Page 25 of 25 PageID #: 8534

DATED: AprilJ_, 2015

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

20872400.1

25

 
 Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 1 of 43
CLOSED,MAGAPP
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:07−cv−00981−SMG

Ramos et al v. SimplexGrinnell LP et al Assigned to: Chief Mag. Judge Steven M. Gold Cause: 28:1441 Notice of Removal
Plaintiff

Date Filed: 03/07/2007 Date Terminated: 08/17/2015 Jury Demand: Plaintiff Nature of Suit: 190 Contract: Other Jurisdiction: Diversity

Roberto Ramos

represented by Bruce E. Menken Beranbaum Menken Ben−Asher & Fishel LLP 80 Pine Street, 32nd Floor New York, NY 10005 212−509−1616 Fax: 212−509−8088 Email: bmenken@bmbblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn W. Null Mehri & Skalet, PLLC 1250 Connecticut Ave Nw Suite 300 Washington, DC 20036 202−822−5100 Fax: 202−822−4997 Email: Twilgus−null@findjustice.com TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger Beranbaum Menken LLP 80 Pine Street, 33rd Flr. New York, NY 10005 (212) 509−1616 Fax: (212) 509−8088 Email: jrozger@nyemployeelaw.com ATTORNEY TO BE NOTICED

Kerin E. Coughlin Constantine Cannon, P.C. 477 Madison Avenue 11th Floor New York, NY 10022 212−350−2700 Email: kcoughlin@constantinecannon.com TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay Fay Law Group PLLC 1250 Connecticut Avenue NW Suite 200 Washington, DC 20036 202−263−4604 Fax: 202−722−1393 Email: rfay@faylawdc.com

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 2 of 43

PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Frank Rodriguez

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jose Luis Maldonado

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jose Fernandez

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 3 of 43

Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Chris Maietta

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Randy Wray

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 4 of 43

Plaintiff Rogelio Smith
Plaintiff Agban Agban

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED
Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED
Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED
Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED
Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED
Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Taryn W. Null (See above for address) TERMINATED: 11/04/2013 ATTORNEY TO BE NOTICED

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 5 of 43

Plaintiff Yadira Gonzalez

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Maximo Estrella, Jr.

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Jaime Oy Arvide

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn W. Null (See above for address) TERMINATED: 11/04/2013

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 6 of 43

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Nacim Bennekaa

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Breno Zimerer

represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED

Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED

Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 7 of 43

Plaintiff
Omar Florez individually and on behalf of all other persons similarly situated who are or were employed by SimplexGrinnell LP with respect to Public Works Project mentioned in this Complaint

Taryn W. Null (See above for address) TERMINATED: 11/04/2013 ATTORNEY TO BE NOTICED
represented by Bruce E. Menken (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Taryn W. Null (See above for address) TERMINATED: 11/04/2013 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jason J. Rozger (See above for address) ATTORNEY TO BE NOTICED
Kerin E. Coughlin (See above for address) TERMINATED: 10/06/2010 ATTORNEY TO BE NOTICED
Raymond C. Fay (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant SimplexGrinnell LP

represented by David Allen Copus Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 10 Madison Avenue, Suite 402 Morristown, NJ 07960 973−630−2320 Email: David.Copus@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer A. Rygiel−Boyd Ogletree Deakin Nash Smoak & Stewart P.C. 10 Madison Avenue Suite 402 Morristown, NJ 07960 973−656−1660 Fax: 973−656−1611 Email: jennifer.rygiel−boyd@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter O. Hughes Ogletree Deakins 10 Madison Avenue Suite 400 Morristown, NJ 07960

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 8 of 43

973−656−1600 Fax: 973−656−1611 Email: peter.hughes@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce E. Menken (See above for address) ATTORNEY TO BE NOTICED

Dominick Cameron Capozzola Ogletree Deakins Nash Smoak & Stewart P.C. 10 Madison Avenue Suite 402 Morristown, NJ 07966 973−656−1600 Fax: 973−656−1611 Email: dominick.capozzola@odnss.com ATTORNEY TO BE NOTICED

Defendant
John Doe Bonding Companies #1−3

represented by Bruce E. Menken (See above for address) ATTORNEY TO BE NOTICED

Interested Party Joseph N Valentine, III

represented by Bruce E. Menken Beranbaum Menken LLP 80 Pine Street 33rd floor New York, NY 10005 212−509−1616 Fax: 212−509−8088 Email: bmenken@nyemployeelaw.com ATTORNEY TO BE NOTICED

Jeanne M. Valentine The Valentine Law Office PLLC 1511 Route 22 Ste 101 Brewster, NY 10509 914−461−3282 Fax: 914−461−3288 Email: jvalentine@valentinelawoffice.com ATTORNEY TO BE NOTICED

Date Filed 03/07/2007
03/07/2007 03/14/2007 03/14/2007

# Docket Text
1 NOTICE OF REMOVAL from the Supreme Court of the State of New York, Kings County by SimplexGrinnell LP ( Filing fee $ 350) (Attachments: # 1 Civil Cover Sheet # 2 declar# 3 proof) (Bowens, Priscilla) (Entered: 03/07/2007)
2 NOTICE of Appearance by Jennifer A. Rygiel−Boyd on behalf of SimplexGrinnell LP (notification declined) (Bowens, Priscilla) (Entered: 03/07/2007)
3 First MOTION for Extension of Time to File Answer filed with plaintiff's consent by SimplexGrinnell LP. (Rygiel−Boyd, Jennifer) (Entered: 03/14/2007)
ORDER granting 3 Motion for Extension of Time to Answer SimplexGrinnell LP answer due 3/30/2007. So Ordered by Magistrate JudgeSteven M. Gold on 3/14/2007. (Vasquez, Lea) (Entered: 03/14/2007)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 9 of 43

03/16/2007 03/29/2007 03/29/2007 04/24/2007 04/24/2007 04/24/2007 05/04/2007
05/25/2007 05/29/2007
06/01/2007
06/29/2007 06/29/2007

4 SCHEDULING ORDER Attached:Initial Conference set for 5/3/2007 at 2:00 PM in 13D South before Magistrate−Judge Steven M. Gold. (Vasquez, Lea) (Entered: 03/16/2007)
5 ANSWER to Complaint by SimplexGrinnell LP. (Rygiel−Boyd, Jennifer) (Entered: 03/29/2007)
6 CERTIFICATE OF SERVICE by SimplexGrinnell LP re 5 Answer to Complaint (Rygiel−Boyd, Jennifer) (Entered: 03/29/2007)
7 MOTION for Leave to Appear Pro Hac Vice David A. Copus by SimplexGrinnell LP. (Clarke, Melonie) (Entered: 04/25/2007)
8 FILING FEE: $ 25.00, receipt number 338346 for David A. Copus. (Clarke, Melonie) (Entered: 04/25/2007)
ORDER granting 7 Motion for Leave to Appear Pro Hac Vice. Ordered by Judge Steven M. Gold on 4/24/2007. (Clarke, Melonie) (Entered: 04/25/2007)
Minute Entry for proceedings held before Steven M. Gold : Initial Conference Hearing held on 5/3/2007. Menken and Bierman for plaintiffs, Copus and Capozzola for defendant. The setting of a case management schedule will be deferred until the next conference to permit counsel additional time to investigate certain fundamental underlying facts, including whether the contracts at issue had prevailing wage schedules attached. Counsel agree that no potential class members will be approached by defendant, and none presented with releases of claims that might be asserted in this lawsuit, for at least one week, and that counsel will either agree on the circumstances under which releases may be sought and obtained or advise this court within one week that they are unable to do so. Plaintiffs may issue subpoenas to obtain contracts and attached schedules, if any, from non−parties. Defendant will promptly advise plaintiff whether any surety companies provided bonds in connection with any of the contracts at issue in this case. NEXT CONFERENCE: MAY 31 AT 2 PM. (Vasquez, Lea) (Entered: 05/04/2007)
9 Letter requesting change in conference time by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Menken, Bruce) (Entered: 05/25/2007)
ORDER re 9 Letter, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos. The conference previously scheduled for 2:30 p.m. on May 31st will instead be held at 10:00 a.m. at counsels' request. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/29/2007. (Vasquez, Lea) (Entered: 05/29/2007)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 5/31/2007. Menken for plaintiffs, Copus for defendant. The parties will complete their automatic disclosures by June 29, serve interrogatories and document demands by July 16 and responses by August 15, and complete fact discovery by December 31. Plaintiffs will either amend their complaint, or state that they do not intend to do so, by June 29, and file their demand for a jury trial by that same date. NEXT CONFERENCE: JANUARY 10, 2008, AT 10 AM. Counsel shall be prepared to state their position on settlement, with principals present or available by telephone, to articulate the basis for any anticipated summary judgment motions, and to state whether they will agree to assignment of this case to a magistrate judge for all purposes, including jury trial and entry of final judgment. (Vasquez, Lea) (Entered: 06/01/2007)
10 DEMAND for Trial by Jury by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Menken, Bruce) (Entered: 06/29/2007)
11 Letter in compliance with Magistrate Judge Gold's Order by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Menken, Bruce) (Entered:

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 10 of 43

07/03/2007 07/05/2007 08/31/2007 09/03/2007 09/11/2007 09/11/2007 09/11/2007 09/12/2007 12/14/2007
01/11/2008
03/04/2008 03/05/2008

06/29/2007)
12 Letter with proposed order by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Attachments: # 1 Proposed Order) (Menken, Bruce) (Entered: 07/03/2007)
ORDER re 12 Letter, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos : The parties' proposed order is hereby entered by the court. Ordered by Judge Steven M. Gold on 07/05/07. (Gold, Steven) (Entered: 07/05/2007)
13 Letter seeking assistance with discovery. by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Attachments: # 1 Exhibit A) (Menken, Bruce) (Entered: 08/31/2007)
SCHEDULING ORDER:An in−person discovery conference will be held at 11:30 on September 11, 2007 before Chief Magistrate Judge Steven M. Gold in courtroom 13−D. So Ordered by Chief Magistrate Judge Steven M. Gold on 9/3/2007. (Vasquez, Lea) (Entered: 09/03/2007)
14 Proposed Pretrial Order Regarding Confidentiality of Discovery Materials by SimplexGrinnell LP (Attachments: # 1 Cover letter for proposed order) (Capozzola, Dominick) (Entered: 09/11/2007)
15 NOTICE of Appearance by Dominick Cameron Capozzola on behalf of SimplexGrinnell LP (aty to be noticed) (Capozzola, Dominick) (Entered: 09/11/2007)
ORDER re 14 Proposed Pretrial Order filed by SimplexGrinnell LP, entering the proposed order as an order of the court. Ordered by Judge Steven M. Gold on 09/11/07. (Gold, Steven) (Entered: 09/11/2007)
Minute Entry for proceedings held before Steven M. Gold : Discovery Hearing held on 9/11/2007. Menken for plaintiffs, Copus for defendants. Defendant will file protective order, which the court will enter, in its current form, without prejudice to plaintiff's right to seek relief if they believe defendants are abusing the right to designate documents as confidential. (Vasquez, Lea) (Entered: 09/12/2007)
16 Letter Seeking a Conference by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F) (Menken, Bruce) (Entered: 12/14/2007)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Status Conference held on 1/10/2008. Menken and Rozger for plaintiffs, Copus and Capozzola for defendants. By January 24, plaintiffs will provide a letter setting forth their complaints about the adequacy of defendants' privilege log; defendants shall supplement their log and provide the verification in issue by February 7. Defendants, by January 24, will produce, or provide prompt dates to inspect, documents responsive to items 11, 12, 19, 23, and 25−27 from plaintiffs' first document demands, and will produce those items not yet provided that are responsive to plaintiffs' second set of document demands. Discovery will be concluded by April 30. NEXT CONFERENCE, IN−PERSON: MAY 9, 2008 AT 11:00 AM. (Vasquez, Lea) (Entered: 01/11/2008)
17 Letter to Magistrate Judge Gold by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Menken, Bruce) (Entered: 03/04/2008)
18 Letter to Magistrate Judge Gold by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 03/05/2008)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 11 of 43

03/14/2008 03/14/2008 03/17/2008 03/20/2008 03/24/2008
03/24/2008 03/25/2008 03/29/2008
04/02/2008 04/02/2008 04/03/2008
04/04/2008

19 SCHEDULING ORDER: A Telephone Conference has been scheduled for 3/19/2008 at 2:00 PM before Chief Magistrate Judge Steven M. Gold. Counsel are to refer to the attached Order for further information. (Vasquez, Lea) (Entered: 03/14/2008)
20 Letter MOTION to Adjourn Conference to March 18 or March 21 by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Menken, Bruce) (Entered: 03/14/2008)
ORDER granting 20 Motion to Adjourn Conference. The telephone conference wil be held at 10:30 a.m. on Friday, March 21, 2008. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/17/2008. (Vasquez, Lea) (Entered: 03/17/2008)
21 Letter regarding March 21, 2008 telephone conference by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Finlon, Kristen) (Entered: 03/20/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Telephone Conference held on 3/21/2008. (1) Depositions noticed by plaintiffs of defendant's witnesses will be held where the witnesses reside. Reasonable travel expenses of plaintiff's counsel will be a taxable cost in the event plaintiffs obtain a judgment. (2) Defendant will response to the payment issue raised in the letter filed by plaintiffs on March 20th by March 25th, and the court will hold an in−person conference to resolve the issue, at 3:00 p.m. on March 28, 2008. (3) If plaintiffs seek leave to file an amended complaint, they shall submit a pre−motion conference application by April 4th. (Tape #FTR 10:32−10:56.) (Vasquez, Lea) (Entered: 03/24/2008)
22 Letter Requesting a Pre−Motion Conference by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Menken, Bruce) (Entered: 03/24/2008)
23 Letter to Magistrate Judge Steven M Gold by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 03/25/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Status Conference held on 3/28/2008. Menken for plaintiffs, Copus for defendants. With respect to the issues raised by plaintiffs and defendants in their respective letters of March 20 and 25, docket entries 21 and 23, it is hereby ordered that defendants are to hold the additional funds due to named plaintiffs as a result of the audit conducted by defendants until April 11, 2008. Any authorizations or instructions received by defendant by that date, directing that the funds due to any particular plaintiff be paid to counsel, will be honored. If, with respect to any individual named plaintiff, no such authorization or instructions are received by that date, the payment due to that plainitiff shall be made directly to him or her. (Vasquez, Lea) (Entered: 03/29/2008)
24 Letter Responding to Plaintiffs' Request for a Pre−Motion Conference by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 04/02/2008)
25 Consent MOTION for Extension of Time to Complete Discovery (Made via Letter Request) by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 04/02/2008)
ORDER granting 25 Motion for Extension of Time to Complete Discovery. Counsel shall advise the court whether they seek to proceed with the conference currently set for May 9, or whether they prefer to adjourn that conference until a date after the completion of discovery. The conference will proceed as scheduled on May 9 absent an order adjourning it. Ordered by Chief Magistrate Steven M. Gold on 04/03/08. (Gold, Steven) (Entered: 04/03/2008)
26 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, SimplexGrinnell LP, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez re

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 12 of 43

04/04/2008 04/11/2008 04/11/2008 04/16/2008 04/17/2008 04/18/2008 04/18/2008
04/25/2008 04/25/2008 04/29/2008
05/05/2008
05/07/2008 05/09/2008

Telephone Conference,, (Attachments: # 1 Exhibit A, 30(b)(6) deposition notice, # 2 Exhibit B, email between counsel, # 3 Exhibit C, 2/28/08 letter from Defendants' counsel, # 4 Exhibit D, 2/29/08 letter from Defendants' counsel, # 5 Exhibit E, 3/4/08 letter to Magistrate Gold, # 6 Exhibit 3/21/08 text only order) (Menken, Bruce) (Entered: 04/04/2008)
27 Consent MOTION for Leave to File Additional Briefing Relating to Plaintiffs' Objections to Magistrate Judge Steven Gold's March 24, 2008 Order by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 04/04/2008)
28 ORDER granting 27 Motion for Leave to File; Deft will file a Response to Plaintiffs' Objections on or before 4/25/08; Plaintiffs will file a Reply on or before 5/5/08; So Ordered by Judge Nina Gershon on 4/9/08. (Fernandez, Erica) (Entered: 04/11/2008)
29 Joint MOTION to Adjourn Conference Presently Set for May 9, 2008 by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 04/11/2008)
30 ORDER: Plaintiffs' request is referred to Mag Gold. It is within Judge Gold's discretion to hold or deny a pre−motion conference. Any motion for leave to amend is referred to Mag Gold to hear and determine. Ordered by Judge Nina Gershon on 4/15/08. (Fernandez, Erica) (Entered: 04/16/2008)
31 SCHEDULING ORDER: A telephone conference has been scheduled for 4/23/2008 at 2:00 PM before Chief Magistrate Judge Steven M. Gold. Counsel are to refer to the attached Order for further information. (Vasquez, Lea) (Entered: 04/17/2008)
32 Letter to Magistrate Judge Gold by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Menken, Bruce) (Entered: 04/18/2008)
SCHEDULING ORDER: The Telephone Conference set for 4/23/08 will instead be held on 4/28/2008 at 3:00 PM before Chief Magistrate Steven M. Gold. Future requests for adjournment must be filed as MOTIONS but may remain in letter form. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/18/2008. (Vasquez, Lea) (Entered: 04/18/2008)
33 MEMORANDUM in Opposition re 26 Appeal of Magistrate Judge Decision to District Court,, filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 04/25/2008)
34 MEMORANDUM in Opposition re 26 Appeal of Magistrate Judge Decision to District Court,, EXHIBIT A IN SUPPORT OF MEMORANDUM (Docket Entry 33) filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 04/25/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Telephone Conference held on 4/28/2008. Rozger for plaintiffs, Copus and Capozzola for defendants. Plaintiffs will file their motion for leave to amend the complaint by May 9, addressing inter alia the issues discussed today. Defendant's opposition is due May 23, and plaintiff's reply is due June 3. The motion will be decided on the papers unless oral argument is requested. (Vasquez, Lea) (Entered: 04/29/2008)
35 REPLY to Response to Motion re 27 Consent MOTION for Leave to File Additional Briefing Relating to Plaintiffs' Objections to Magistrate Judge Steven Gold's March 24, 2008 Order Plaintiffs' Reply to Defendant's Response to Plaintiffs' Objections to Magistrate's Order filed by all plaintiffs. (Attachments: # 1 Exhibit Exhibit A: Plaintiffs' Objections to Magistrate's Order) (Menken, Bruce) (Entered: 05/05/2008)
ORDER granting 29 Motion to Adjourn Conference. The conference previously scheduled for May 9th will instead be held at 10:00 a.m. on September 8, 2008. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/7/2008. (Vasquez, Lea) (Entered: 05/07/2008)
36 MOTION to Amend/Correct Telephone Conference, by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Attachments: # 1 Affidavit of

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 13 of 43

05/23/2008 05/23/2008 05/23/2008 06/03/2008
06/03/2008
06/05/2008 06/05/2008 06/09/2008 06/11/2008 06/12/2008 06/23/2008 06/23/2008 06/23/2008

Bruce Menken, # 2 Exhibit A., documents produced by defendants, # 3 Exhibit B, proposed amended complaint, # 4 Exhibit C, Declaration of Rogelio Smith, # 5 Exhibit D., letter from defense counsel, # 6 Exhibit E., declaration of Shawn Love, # 7 Memorandum in Support) (Rozger, Jason) (Entered: 05/09/2008)
37 MEMORANDUM in Opposition re 36 MOTION to Amend/Correct Telephone Conference, filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 05/23/2008)
38 AFFIDAVIT/DECLARATION in Opposition re 36 MOTION to Amend/Correct Telephone Conference, filed by SimplexGrinnell LP. (Attachments: # 1 Exhibit A−C, # 2 Exhibit D, part one, # 3 Exhibit D, part two, # 4 Exhibit D, part three) (Capozzola, Dominick) (Entered: 05/23/2008)
39 AFFIDAVIT/DECLARATION in Opposition re 36 MOTION to Amend/Correct Telephone Conference, (Affidavit of David Copus) filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 05/23/2008)
40 MOTION for Discovery and cost shifting by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Attachments: # 1 Exhibit A, # 2 Exhibit B., # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit J, # 9 Exhibit K) (Rozger, Jason) (Entered: 06/03/2008)
41 REPLY in Support of Plaintiffs' Motion to Amend filed by all plaintiffs. (Attachments: # 1 Affidavit Grunfeld Affirmation in Further Support of Plaintiffs' Motion to Amend, # 2 Exhibit A to Grunfeld Affirmation, # 3 Exhibit B to Grunfeld Affirmation, # 4 Exhibit C to Grunfeld Affirmation, # 5 Exhibit D to Grunfeld Affirmation, # 6 Exhibit E to Grunfeld Affirmation, # 7 Exhibit F to Grunfeld Affirmation, # 8 Exhibit G to Grunfeld Affirmation) (Grunfeld, Nicole) (Entered: 06/03/2008)
42 Consent MOTION for Extension of Time to File Response/Reply as to 40 MOTION for Discovery and cost shifting by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 06/05/2008)
ORDER granting 42 Motion for Extension of Time to File Response/Reply re 42 Consent MOTION for Extension of Time to File Response/Reply as to 40 MOTION for Discovery and cost shifting Response due by 6/9/2008. Ordered by Chief Magistrate Judge Steven M. Gold on 6/5/2008. (Vasquez, Lea) (Entered: 06/05/2008)
43 RESPONSE in Opposition re 40 MOTION for Discovery and cost shifting filed by SimplexGrinnell LP. (Attachments: # 1 Declaration of Christie Hext, # 2 Declaration of John Moretto, # 3 Declaration of David Copus) (Capozzola, Dominick) (Entered: 06/09/2008)
44 Letter regarding email discovery dispute by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Grunfeld, Nicole) (Entered: 06/11/2008)
45 ORDER: On this appeal, plaintiffs renew arguments made before Judge Gold. They fail to show that his conclusion was clearly erroneous, contrary to law, or an abuse of his broad discretion in resolving discovery disputes. Their appeal is denied, and Judge Gold's order is affirmed. Ordered by Judge Nina Gershon on 6/9/08. (Fernandez, Erica) (Entered: 06/12/2008)
46 MOTION for Extension of Time to Complete Discovery by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Rozger, Jason) (Entered: 06/23/2008)
47 Letter MOTION for Leave to File Motion for Judgment on the Pleadings by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 06/23/2008)
48 Letter MOTION for Leave to File Motion for Judgment on the Pleadings (ATTACHMENT TO LETTER MOTION) by SimplexGrinnell LP. (Capozzola,

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 14 of 43

06/23/2008 06/24/2008 06/24/2008 06/26/2008 06/30/2008
07/02/2008
07/07/2008 07/09/2008 07/10/2008

Dominick) (Entered: 06/23/2008)
49 Letter MOTION for Leave to File Motion to Compel by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 06/23/2008)
50 RESPONSE in Opposition re 48 Letter MOTION for Leave to File Motion for Judgment on the Pleadings (ATTACHMENT TO LETTER MOTION), 47 Letter MOTION for Leave to File Motion for Judgment on the Pleadings filed by all plaintiffs. (Attachments: # 1 Exhibit A., Complaint, # 2 Exhibit B, email from defense counsel) (Rozger, Jason) (Entered: 06/24/2008)
51 Letter in response to Defednant's request for leave to file motion to compel by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Attachments: # 1 Exhibit A − NYS Dept of Labor Opinion Letter, # 2 Exhibit B − Department of Labor Bureau of Public Work Case Contacts Report, # 3 Exhibit C − SimplexGrinnell/NYS Office of Mental Hygiene Contract) (Grunfeld, Nicole) (Entered: 06/24/2008)
52 RESPONSE in Opposition re 46 MOTION for Extension of Time to Complete Discovery filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 06/26/2008)
ORDER granting in part and denying in part 46 Motion for Extension of Time to Complete Discovery. In light of the volume of documents produced and the various disputes between the parties concerning payment for electronic discovery, location of depositions, and the plaintiffs' efforts to amend their complaint, plaintiffs' application for additional time to complete discovery is reasonable. Because the current schedule does not cut off discovery until August 15, however, the ninety−day extension sought does not seem necessary. DISCOVERY IS EXTENDED TO OCTOBER 17, 2008. THE CONFERENCE PREVIOUSLY SET FOR SEPTEMBER 8 IS ADJOURNED TO OCTOBER 29, 2008 at 2:00 PM. Ordered by Chief Magistrate Steven M. Gold on 06/30/08. (Gold, Steven) (Entered: 06/30/2008)
ORDER: I will hear argument on the various motions pending before me at 3:00 pm on July 11, 2008. It appears that the motions pending before me are (1) Plaintiffs' motion for leave to file an amended complaint, docket entries 36, 37 and 41; (2) Defendant's motion to compel plaintiffs to produce documents relating to their work for other employers, docket entries 49 and 51; and (3) Plaintiffs' motion seeking to require defendant to bear the cost of electronic discovery, docket entries 40 and 43. If there are other motions pending, or if additional documents have been submitted in support of the pending motions listed above, counsel shall promptly so inform the court. Although the parties seem to have stated their positions in detail with respect to motions (2) and (3) above in the letters they have already submitted, they also seem to seek leave to file formal memoranda in connection with these motions. Any additional submissions in connection with the above−referenced pending motions, should the parties wish to make them, shall be limited to ten pages and filed simultaneously no later than July 7, 2008. Replies limited to five pages may be submitted by July 9, 2008. Ordered by Chief Magistrate Steven M. Gold on 07/02/08. (Gold, Steven) (Entered: 07/02/2008)
53 REPLY in Support re 40 MOTION for Discovery and cost shifting, 36 MOTION to Amend/Correct Telephone Conference, filed by all plaintiffs. (Attachments: # 1 Exhibit A, 7/1/08 letter to defense counsel, # 2 Exhibit B, Defendant's privilege log, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Rozger, Jason) (Entered: 07/07/2008)
54 REPLY in Opposition re 40 MOTION for Discovery and cost shifting, 36 MOTION to Amend/Correct Telephone Conference, filed by SimplexGrinnell LP. (Attachments: # 1 Exhibit A−D) (Capozzola, Dominick) (Entered: 07/09/2008)
55 SCHEDULING ORDER: Pre motion conference scheduled for 9/9/2008 at 10:00 a.m. in courtroom 6D South before Judge Nina Gershon. All parties involved in the action are directed to appear at this conference, whether or not they are involved in the proposed motion(s). The parties are reminded to adhere to the Individual Motion Practices of Judge Nina Gershon which are attached. Ordered by Judge Nina Gershon on 7/10/2008. (Joe, Victor) (Entered: 07/10/2008)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 15 of 43

07/11/2008 07/14/2008 07/14/2008
07/25/2008 08/04/2008 09/04/2008 09/08/2008 09/09/2008 09/10/2008

ORDER granting 36 Motion to Amend/Correct/Supplement; denying 40 Motion for Discovery; denying 49 Motion for Leave to File. See minute entry of today's date for additional details and qualifications, and the minutes of today's proceedings for a statement of the reasons for each ruling. Ordered by Chief Magistrate Steven M. Gold on 07/11/08. (Gold, Steven) (Entered: 07/11/2008)
56 AMENDED COMPLAINT against SimplexGrinnell LP, filed by all plaintiffs. (Menken, Bruce) (Entered: 07/14/2008)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Motion Hearing held on 7/11/2008 re 40 MOTION for Discovery, 36 MOTION to Amend. (1) Counsel will submit a letter by July 25 informing the court whether they have been able to resolve by agreement the issues raised by the premotion conference letters submitted to Judge Gershon, particularly in light of the decision of the New York Court of Appeals in Cox v Nap Construction. (2) Defendant's motion to compel information about plaintiffs' other employment is denied, except that defendant may inquire at plaintiffs' depositions about plaintiffs' other work and whether plaintiffs were paid prevailing wages. In no event may defendant contact any plaintiffs' current employer absent prior application to the court. (3) Plaintiffs' motion to compel production of Hext's emails at defendant's expense is denied without prejudice to the discovery and reapplication discussed on the record today, except that plaintiffs may designate two days for which defendant will restore the Hext emails at its own expense. The purpose of this discovery is to help determine whether each of defendant's back−up tapes reflects all email traffic to date that has not been deleted, or only the email traffic transmitted or received on the date of the tape. (4) Plaintiffs' motion for leave to amend is granted for reasons stated on the record. Defendant will answer the amended complaint in twenty days. Plaintiffs' alarm and detection claims relate back to the date of the original complaint, but plaintiffs' sprinkler system and fire suppression claims do not. (5) The conference previously set for October 29 will proceed as scheduled absent further application to the court. (Tape #3:02−3:58.) (O'Connor, Erin) (Entered: 07/14/2008)
57 Letter re pre−motion conference pending before Judge Gershon by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez (Menken, Bruce) (Entered: 07/25/2008)
58 ANSWER to 56 Amended Complaint by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 08/04/2008)
59 MOTION for Discovery or for pre−motion conference by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rozger, Jason) (Entered: 09/04/2008)
60 Transcript of Proceedings held on 7/11/2008, before Judge Gold. Court Reporter/Transcriber Aria Transcription, Telephone number 215−767−7700. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/29/2008. Redacted Transcript Deadline set for 10/9/2008. Release of Transcript Restriction set for 12/8/2008. (Sanders, Melanie) (Entered: 09/08/2008)
61 RESPONSE to Motion re 59 MOTION for Discovery or for pre−motion conference filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 09/09/2008)
SCHEDULING ORDER: A telephone conference will be held at 3:00 p.m. on September 15th to address plaintiff's motion filed September 4th. Counsel for plaintiff is directed to arrange the call with all parties as well as confirm with defendants counsel that they are aware of this conference date and time. Requests for adjournment will not be considered unless made at least forty−eight (48) hours before the scheduled conference on consent of all parties. So Ordered by Chief Magistrate Steven M. Gold on 9/10/2008. (Vasquez, Lea) (Entered: 09/10/2008)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 16 of 43

09/16/2008
10/20/2008 10/22/2008 12/19/2008 12/22/2008 12/22/2008
01/07/2009
01/13/2009 01/15/2009 01/20/2009 01/20/2009

Minute Order for telephone conference held on September 16, 2008 before Chief Magistrate Judge Steven M. Gold: DENYING 59 Plaintiff's motion to compel deposition of defendant's general counsel, Mr. D'Orsi for reasons stated on teh record. Upon the joint application of the parties, discovery is extended to December 15, 2008. THE CONFERENCE PREVIOUSLY SCHEDULED FOR OCTOBER 19TH IS ADJOURNED TO JANUARY 6, 2009 AT 10:00 A.M.. (Tape #FTR 3:03−3:14 Courtroom 13−A.) (Vasquez, Lea) (Entered: 09/16/2008)
62 Letter to District Judge Nina Gershon by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 10/20/2008)
63 ORDER OF RECUSAL. Senior Judge Nina Gershon recused. Case reassigned to Judge Dora Lizette Irizarry for all further proceedings. Ordered by Chief Judge Raymond J. Dearie on 10/22/2008. (Bowens, Priscilla) (Entered: 10/23/2008)
64 MOTION for Extension of Time to Complete Discovery for the purpose of taking the deposition of Christopher Alund, by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Rozger, Jason) (Entered: 12/19/2008)
65 RESPONSE in Opposition re 64 MOTION for Extension of Time to Complete Discovery for the purpose of taking the deposition of Christopher Alund, filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 12/22/2008)
ORDER granting 64 Motion for Extension of Time to Complete Discovery. Although defendants object on the grounds that plaintiffs failed to comply with the deadlines set by the court, plaintiffs have satisfactorily explained that they seek to take discovery beyond the previously set deadline because of recent events. Moreover, defendants have not identified any prejudice they will suffer if discovery is extended to permit the single remaining deposition plaintiffs seek to conduct. Counsel shall confer and attempt to agree on a prompt date for the Alund deposition, and shall advise the court as soon as possible if they seek to adjourn the conference set for January 6 in light of the extension of time to complete discovery. Ordered by Chief Magistrate Steven M. Gold on 12/22/08. (Gold, Steven) (Entered: 12/22/2008)
Minute Entry for Status Conference held on 1/6/2009 before Chief Magistrate Judge Steven M. Gold: Menken and Rozger for plaintiffs, Copus and Capozzola for defendants. (1) Counsel report that they have completed fact depositions and most of fact discovery, but that they intend to confer on January 9 with respect to certain outstanding interrogatories and document demands. If all remaining issues concerning fact discovery are not resolved by then, counsel may file a motion to compel no later than January 23. (2) Plaintiffs report that they intend to move for class certification and partial summary judgment, and defendants report that they intend to move for summary judgment and dismissal on preemption grounds. Counsel shall file premotion conference applications pursuant to Judge Irizarry's motion practices by February 6. (3) Counsel shall promptly contact my chambers if they seek a settlement conference or agree to consent to reassignment of this matter to a magistrate judge for all purposes. (Vasquez, Lea) (Entered: 01/07/2009)
66 Letter MOTION for Extension of Time to File motions to compel and pre−motion letter applications for class certification and summary judgment/dismissal by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Menken, Bruce) (Entered: 01/13/2009)
ORDER granting 66 Motion for Extension of Time to File. Counsel may contact my chambers at any time to schedule a settlement conference. Ordered by Chief Magistrate Steven M. Gold on 1/15/2009. (Gold, Steven) (Entered: 01/15/2009)
67 CONSENT to Jurisdiction by US Magistrate Judge by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 01/20/2009)
ORDER re 67 Consent to Jurisdiction by US Magistrate Judge filed by SimplexGrinnell LP −− The parties have consented by stipulation to submit themselves to the jurisdiction of the magistrate judge assigned to this matter for all

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 17 of 43

01/22/2009 02/04/2009 02/04/2009 02/12/2009 02/12/2009
02/18/2009 02/18/2009
02/19/2009 02/19/2009 02/23/2009
02/26/2009 02/27/2009 02/27/2009 02/27/2009

purposes. The stipulation is SO ORDERED by Judge Dora Lizette Irizarry on 1/20/2009. (Irizarry, Dora) (Entered: 01/20/2009)
Chief Magistrate Steven M. Gold added. Judge Dora Lizette Irizarry no longer assigned to case. (Vaughn, Terry) (Entered: 01/22/2009)
68 Emergency MOTION for Extension of Time to File Motion to Compel by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 02/04/2009)
ORDER granting 68 Motion for Extension of Time to File. Ordered by Chief Magistrate Steven M. Gold on 2/4/2009. (Gold, Steven) (Entered: 02/04/2009)
69 MOTION to Compel Further Discovery Responses by SimplexGrinnell LP. (Attachments: # 1 Exhibits 1−4, # 2 Exhibits 5−7, # 3 Exhibits 8−9, # 4 Exhibit 10, # 5 Exhibit 11, # 6 Exhibits 12−13) (Capozzola, Dominick) (Entered: 02/12/2009)
70 MOTION to Compel by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, Crandall deposition, # 7 Exhibit G, spreadsheet, # 8 Exhibit H, email correspondence, # 9 Exhibit I, correspondence with counsel, # 10 Exhibit J, corrspondence from defense counsel, # 11 Exhibit K, 1−26−09 privilege log, # 12 Exhibit L, 1−29−09 privilege log, # 13 Exhibit M, proposed subpoena) (Rozger, Jason) (Entered: 02/12/2009)
71 RESPONSE in Opposition re 70 MOTION to Compel filed by SimplexGrinnell LP. (Attachments: # 1 Exhibits A−B, # 2 Exhibits C−D) (Capozzola, Dominick) (Entered: 02/18/2009)
72 Letter MOTION for Extension of Time to File opposition to Defendant's Motion to Compel and Pre−Motion Letters by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Menken, Bruce) (Entered: 02/18/2009)
73 RESPONSE in Opposition re 72 Letter MOTION for Extension of Time to File opposition to Defendant's Motion to Compel and Pre−Motion Letters filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 02/19/2009)
74 REPLY to Response to Motion re 72 Letter MOTION for Extension of Time to File opposition to Defendant's Motion to Compel and Pre−Motion Letters filed by all plaintiffs. (Menken, Bruce) (Entered: 02/19/2009)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Telephone Conference held on 2/20/2009. Menken for plaintiffs, Copus for defendants. The parties may respond to the letter motions to compel filed on February 12th and February 26th. Pre−motion conference letters are due March 18th. The court will hold an in−person conference on March 25th at 3:00 p.m. to address all outstanding issues. Counsel may request, by March 23rd, that the conference be held by telephone provided they are able to represent that they are in agreement as to the procedures by which the case should proceed. (Vasquez, Lea) (Entered: 02/23/2009)
75 REPLY in Opposition to Defendant's Motion to Compel and in Further Support of Plaintiffs' Motion to Compel filed by all plaintiffs. (Menken, Bruce) (Entered: 02/26/2009)
ORDER terminating as moot 47 Motion for Leave to File; terminating 48 Motion for Leave to File. Docket Entry 48 is not a motion but an attachment to Docket Entry 47. Ordered by Chief Magistrate Steven M. Gold on 2/27/2009. (O'Connor, Erin) (Entered: 02/27/2009)
76 REPLY in Support re 69 MOTION to Compel Further Discovery Responses filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 02/27/2009)
77 REPLY in Opposition re 75 Reply in Opposition to Defendant's Motion to Compel and in Further Support of Plaintiffs' Motion to Compel− EXHIBIT A filed by all plaintiffs. (Menken, Bruce) (Entered: 02/27/2009)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 18 of 43

03/18/2009 03/18/2009 03/19/2009 03/25/2009
03/26/2009
04/24/2009
05/20/2009 05/22/2009 06/04/2009 06/11/2009 06/12/2009
06/15/2009

78 Letter MOTION for pre motion conference regarding motion for summary judgment by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 03/18/2009)
79 Letter MOTION for Leave to File Motions for class certifciation and summary judgment by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Menken, Bruce) (Entered: 03/18/2009)
80 RESPONSE to Motion re 79 Letter MOTION for Leave to File Motions for class certifciation and summary judgment filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 03/19/2009)
ORDER granting in part and denying in part 69 Motion to Compel; granting in part and denying in part 70 Motion to Compel; denying as moot 72 Motion for Extension of Time to File; denying as moot 78 Motion for Pre Motion Conference; denying as moot 79 Motion for Leave to File. See minutes of proceedings held on this date, during which various rulings on the parties' discovery motions were made and a schedule for briefing the parties' anticipated motions was set. Ordered by Chief Magistrate Steven M. Gold on 3/25/2009. (Gold, Steven) (Entered: 03/25/2009)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Status Conference held on 3/25/2009. Mencken, Rozger and Grunfeld for plaintiffs, Copus and Cappazolla for defendant. Various discovery rulings on the record. The parties shall file their cross−motions by June 30. Opposition papers are due July 30 and reply papers are due September 18. Counsel shall indicate whether oral argument is desired. If so, the court will schedule a date after the motions are fully briefed. (Tape #FTR 3:09−4:58.) (Vasquez, Lea) (Entered: 03/26/2009)
81 TRANSCRIPT of Proceedings held on 3/25/09, before Judge Gold. Court Transcriber TYPEWRITE WORD PROCESSING SERVICE, Telephone number 718−966−1401. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/15/2009. Redacted Transcript Deadline set for 5/26/2009. Release of Transcript Restriction set for 7/23/2009. (Hong, Loan) (Entered: 04/24/2009)
82 MOTION for Extension of Time to Complete Discovery by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 05/20/2009)
ORDER granting 82 Motion for Extension of Time to Complete Discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/22/2009. (Vasquez, Lea) (Entered: 05/22/2009)
83 MOTION for pre motion conference re discovery issues by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 06/04/2009)
SCHEDULING ORDER: A telephone conference will be held at 11:00 a.m. on June 16th. Counsel for defendant is directed to arrange the call with all parties as well as confirm with plaintiffs' counsel that they are aware of this conference date and time. So Ordered by Chief Magistrate Judge Steven M. Gold on 6/11/2009. (Vasquez, Lea) (Entered: 06/11/2009)
84 Letter MOTION to Adjourn Conference by telephone on June 16, 2009, Letter MOTION for Extension of Time to File Motions for Summary Judgment and Class Certification by Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr, Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, Roberto Ramos, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez. (Menken, Bruce) (Entered: 06/12/2009)
ORDER granting 84 Motion to Adjourn Conference; granting 84 Motion for Extension of Time to File. The parties shall file their cross−motions by September 30th, opposition papers are due October 30th and reply papers are due December 30th. Counsel shall indicate whether oral argument is desired. If so, the court will schedule a date after the motions are fully briefed. So Ordered by Chief Magistrate Judge Steven M. Gold on 6/15/2009. (Vasquez, Lea) (Entered: 06/15/2009)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 19 of 43

08/07/2009 08/07/2009 08/07/2009 08/10/2009 08/13/2009
08/26/2009
08/28/2009 08/31/2009 09/04/2009 09/07/2009 09/08/2009 09/11/2009

85 MOTION for Leave to Appear Pro Hac Vice of Raymond C. Fay by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Fay, Raymond) (Entered: 08/07/2009)
86 NOTICE of Appearance by Kerin E. Coughlin on behalf of Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (aty to be noticed) (Coughlin, Kerin) (Entered: 08/07/2009)
ORDER granting 85 Motion for Leave for Raymond C. Fay to Appear Pro Hac Vice provided any necessary fees associated with this application are promptly paid to the Clerk of Court. So Ordered by Chief Magistrate Judge Steven M. Gold on 8/7/2009. (Vasquez, Lea) (Entered: 08/07/2009)
87 Letter MOTION for pre motion conference regarding plaintiffs' responses to defendant's requests for production and interrogatories by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 08/10/2009)
88 RESPONSE in Opposition re 87 Letter MOTION for pre motion conference regarding plaintiffs' responses to defendant's requests for production and interrogatories filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Exhibit A, May 29, 2009 letter from defense counsel, # 2 Exhibit B, June 10, 2009 email from plaintiff's counsel, # 3 Exhibit C, June 16, 2009 letter from defense counsel) (Rozger, Jason) (Entered: 08/13/2009)
ORDER deferring ruling on 87 Motion for Pre Motion Conference. Plaintiffs' response to defendants' letter motion indicates that plaintiffs will be providing supplemental information by August 30, 2009. (Because August 30 falls on a Sunday, the court assumes plaintiffs intend to supplement their responses by August 31.) Counsel shall confer after plaintiffs complete their responses on August 31. The court will hold a telephone conference, with the conference call arranged by counsel, at 3:00 p.m. on September 11, 2009. In the event defendants still seek to file a formal motion to compel, a briefing and argument schedule will be set at that time. Ordered by Chief Magistrate Steven M. Gold on 8/26/2009. (Gold, Steven) (Entered: 08/26/2009)
89 Consent MOTION to Adjourn Conference by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 08/28/2009)
ORDER granting 89 Motion to Adjourn Conference. The conference previously scheduled for September 11th will instead be held at 11:00 a.m. on September 8, 2009. So Ordered by Chief Magistrate Judge Steven M. Gold on 8/31/2009. (Vasquez, Lea) (Entered: 08/31/2009)
90 MOTION to Amend/Correct/Supplement, MOTION for Extension of Time to File Class certification and summary judgment motions, and to modify expert disclosure schedule, on consent of all parties, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 09/04/2009)
ORDER deferring ruling on 90 Motion to Amend/Correct/Supplement; deferring ruling on 90 Motion for Extension of Time to File. The motion will be discussed during the September 8th conference. So Ordered by Chief Magistrate Judge Steven M. Gold on 9/7/2009. (Vasquez, Lea) (Entered: 09/07/2009)
ORDER denying as moot 83 Motion for Pre Motion Conference; denying as moot 87 Motion for Pre Motion Conference; denying as moot 90 Motion to Amend/Correct/Supplement; granting 90 Motion for Extension of Time to File. See minute entry for telephone conference held on September 8, 2009. Ordered by Chief Magistrate Steven M. Gold on 9/8/2009. (Gold, Steven) (Entered: 09/08/2009)
Minute Entry for Telephone Conference held on 9/8/2009 before Chief Magistrate Judge Steven M. Gold: Menken et al for plaintiffs, Copus et al for defendants. The

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 20 of 43

10/13/2009 10/13/2009 10/16/2009 10/19/2009
10/19/2009
11/09/2009 11/11/2009 11/23/2009 11/30/2009 12/01/2009 12/11/2009

schedule jointly proposed by the parties in plaintiffs' letter dated September 4, 2009 is approved. In the event defendants do not seek to bring a discovery motion after receiving plaintiffs' expert disclosure, the court will hear oral argument on the parties' cross motions for class certification and summary judgment at 2:00 pm on March 11, 2010. If defendants do seek to bring a discovery motion after reviewing plaintiffs' expert disclosures, they shall do so by October 16, and may file a formal motion in excess of three pages setting forth their position. Plaintiffs' response will be due October 23, and defendants' reply will be due October 26. The schedule set forth in plaintiffs' September 4, 2009 letter will then be revisited accordingly. (Vasquez, Lea) (Entered: 09/11/2009)
91 Emergency MOTION for Extension of Time to File Motion to Compel by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 10/13/2009)
ORDER granting 91 Motion for Extension of Time to File. Ordered by Chief Magistrate Steven M. Gold on 10/13/2009. (Gold, Steven) (Entered: 10/13/2009)
92 MOTION for Extension of Time to Complete Discovery Relating to Expert Witnesses, MOTION for Extension of Time to File Motions for Summary Judgment and Class Certification by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 10/16/2009)
93 MEMORANDUM in Opposition re 92 MOTION for Extension of Time to Complete Discovery Relating to Expert Witnesses MOTION for Extension of Time to File Motions for Summary Judgment and Class Certification filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Fay, Raymond) (Entered: 10/19/2009)
ORDER granting 92 Motion for Extension of Time to Complete Discovery; granting 92 Motion for Extension of Time to File. While the court agrees with plaintiffs that defendant's explanation of the need for additional time is not completely clear or entirely compelling, the amount of time sought is relatively brief, and plaintiffs have failed to identify any significant prejudice they will suffer if the additional time is granted. Accordingly, the motion for additional time is granted. THE MOTION HEARING PREVIOUSLY SET FOR MARCH 11 WILL BE HELD INSTEAD AT 2:00 P.M. ON APRIL 8, 2010. Ordered by Chief Magistrate Steven M. Gold on 10/19/2009. (Gold, Steven) (Entered: 10/19/2009)
94 MOTION for Protective Order by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Exhibit A, emails between counsel) (Rozger, Jason) (Entered: 11/09/2009)
95 RESPONSE in Opposition re 94 MOTION for Protective Order filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 11/11/2009)
96 MOTION to Compel Further Responses to SimplexGrinnell's Third Set of Interrogatories by SimplexGrinnell LP. (Attachments: # 1 Exhibit B−C, # 2 Exhibit E, # 3 Exhibit A,D,F (cover letter for documents filed under seal)) (Capozzola, Dominick) (Entered: 11/23/2009)
97 Consent MOTION for Extension of Time to Complete Discovery With Respect to Certain Discovery Dates by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Fay, Raymond) (Entered: 11/30/2009)
ORDER granting 97 Motion for Extension of Time to Complete Discovery. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/1/2009. (Vasquez, Lea) (Entered: 12/01/2009)
98 MOTION for Discovery to compel production of wage data, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered:

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 21 of 43

12/11/2009
12/14/2009
12/16/2009 12/17/2009 12/18/2009 12/18/2009 01/08/2010 01/11/2010 01/12/2010

12/11/2009)
99 RESPONSE in Opposition re 96 MOTION to Compel Further Responses to SimplexGrinnell's Third Set of Interrogatories filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Exhibit A., cover letter for sealed report, # 2 Exhibit B, email from defense counsel, # 3 Exhibit C, excerpts from 30(b)(6) deposition of Breau and Keene, # 4 Exhibit D, excerpts from deposition of David Crawford, # 5 Exhibit E, Defendant's initial and supplemental initial disclosures, # 6 Exhibit F, May 21, 2009 letter from defense counsel, # 7 Exhibit G, excerpts from 30(b)(6) deposition of Rob Crandall, # 8 Exhibit H, excerpts from Shawn Love deposition, # 9 Exhibit I, excerpts from Ai'mee Bourgoin deposition) (Rozger, Jason) (Entered: 12/11/2009)
SCHEDULING ORDER: re 99 Response in Opposition to Motion,,, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos, 98 MOTION for Discovery to compel production of wage data, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Randy Wray, Jose Fernandez, Maximo Estrella, Jr., Yadira Gonzalez, Nacim Bennekaa, Chris Maietta, Roberto Ramos, 94 MOTION for Protective Order filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Randy Wray, Jose Fernandez, Maximo Estrella, Jr., Yadira Gonzalez, Nacim Bennekaa, Chris Maietta, Roberto Ramos, 95 Response in Opposition to Motion filed by SimplexGrinnell LP, 96 MOTION to Compel Further Responses to SimplexGrinnell's Third Set of Interrogatories filed by SimplexGrinnell LP. All pending discovery motions will be heard at an in−person hearing at 12:00 p.m. on January 11, 2010. Counsel for plaintiffs is directed to confirm this conference date and time with defendants' counsel. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/14/2009. (Vasquez, Lea) (Entered: 12/14/2009)
100 MOTION for Extension of Time to File Response/Reply as to 96 MOTION to Compel Further Responses to SimplexGrinnell's Third Set of Interrogatories by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, John Doe Bonding Companies, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, SimplexGrinnell LP, Rogelio Smith, Randy Wray, Breno Zimerer. (Menken, Bruce) (Entered: 12/16/2009)
ORDER granting 100 Motion for Extension of Time to File Response/Reply. The application is granted. The conference previously scheduled for January 11th will instead be held on January 13th at 3:00, not 12:00 p.m. as requested as the Court is unavailable at that time. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/17/2009. (Vasquez, Lea) (Entered: 12/17/2009)
101 REPLY in Support re 96 MOTION to Compel Further Responses to SimplexGrinnell's Third Set of Interrogatories filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 12/18/2009)
102 RESPONSE to Motion re 98 MOTION for Discovery to compel production of wage data, filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 12/18/2009)
103 Letter MOTION for pre motion conference regarding Daubert motion to exclude testimony and report of plaintiffs' expert by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 01/08/2010)
104 REPLY in Support re 96 MOTION to Compel Further Responses to SimplexGrinnell's Third Set of Interrogatories (Supplemental Reply to Include New Evidence) filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 01/11/2010)
105 STATUS REPORT by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Attachments: # 1 Exhibit A, NYSDOL 12/31/09 opinion letter) (Rozger, Jason) (Entered: 01/12/2010)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 22 of 43

01/14/2010 01/14/2010 01/14/2010
01/19/2010 03/15/2010 03/15/2010 03/18/2010 03/18/2010 03/18/2010

ORDER denying 96 Motion to Compel; denying 98 Motion for Discovery; terminating 103 Motion for Pre Motion Conference. The court ruled on the discovery motions, and set a briefing schedule with respect to the motion for which a premotion conference was sought, during the hearing held on January 13, 2010. Ordered by Chief Magistrate Steven M. Gold on 1/14/2010. (Gold, Steven) (Entered: 01/14/2010)
ORDER terminating 94 Motion for Protective Order in that the issues raised by the motion were addressed during the hearing held on January 13, 2010. Ordered by Chief Magistrate Steven M. Gold on 1/14/2010. (Gold, Steven) (Entered: 01/14/2010)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Motion Hearing held on 1/13/2010 re 103 Letter MOTION for pre motion conference regarding Daubert motion to exclude testimony and report of plaintiffs' expert filed by SimplexGrinnell LP, 98 MOTION for Discovery to compel production of wage data, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos, 96 MOTION to Compel Further Responses to SimplexGrinnell's Third Set of Interrogatories filed by SimplexGrinnell LP: Menken, Fay and Rozger for plaintiffs, Copus and Capazzola for defendant. Plaintiff will provide the specification of additional proof described on the record today by January 20. Plaintiff's motion for class certification will be filed by March 17. Defendant's motions in limine and for summary judgment will, absent further application to the court, be filed by March 24, with defendant reserving its right to move with respect to the individually named plaintiffs at a later date if class certification is not granted and/or its Daubert/in limine motion is granted. Opposition to the motions made by both sides will be filed by May 3, and replies will be filed by May 17. THE COURT WILL HEAR THE MOTIONS ARGUED AT 2:00 PM ON JUNE 10, 2010. (Tape #FTR 3:11−3:55.) (Vasquez, Lea) (Entered: 01/14/2010)
106 Second Revised Amended Expert Report of David L. Crawford, PhD. Sealed by request to Judge Gold, per 9/11/2007 protective order (Docket Entry No. 14 ) (Barrett, C) (Entered: 01/19/2010)
107 MOTION for Leave to File Excess Pages for Plaintiffs' brief in support of class certification and summary judgment by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 03/15/2010)
ORDER granting 107 Motion for Leave to File Excess Pages. Ordered by Chief Magistrate Steven M. Gold on 3/15/2010. (O'Connor, Erin) (Entered: 03/15/2010)
108 MOTION for Extension of Time to File Plaintiffs' Motions for Class Certification and Summary Judgment by Roberto Ramos. (Menken, Bruce) (Entered: 03/18/2010)
ORDER granting 108 Motion for Extension of Time to File. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/18/2010. (Vasquez, Lea) (Entered: 03/18/2010)
109 First MOTION to Certify Class and Summary Judgment by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. Responses due by 5/3/2010 (Attachments: # 1 Memorandum in Support Memorandum of Law in Support of Motions for Class Certification and Summary Judgment, # 2 Affidavit in Support Declaration of David L. Crawford, PH.D, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2 1/4, # 5 Exhibit Exhibit 2 2/4, # 6 Exhibit Exhibit 2 3/4, # 7 Exhibit Exhibit 2 4/4, # 8 Affidavit in Support Declaration of Kerin E. Coughlin, Esq., # 9 Exhibit Exhibit 3, # 10 Exhibit Exhibit 4, # 11 Exhibit Exhibit 5, # 12 Exhibit Exhibit 6, # 13 Exhibit Exhibit 7, # 14 Exhibit Exhibit 8, # 15 Exhibit Exhibit 9, # 16 Exhibit Exhibit 10, # 17 Exhibit Exhibit 11, # 18 Exhibit Exhibit 12, # 19 Exhibit Exhibit 13, # 20 Exhibit Exhibit 14, # 21 Exhibit Exhibit 15, # 22 Exhibit Exhibit 16, # 23 Exhibit Exhibit 17, # 24 Exhibit Exhibit 18, # 25 Exhibit Exhibit 19, # 26 Exhibit Exhibit 20, # 27 Exhibit Exhibit 21, # 28 Exhibit Exhibit 22, # 29 Exhibit Exhibit 23, # 30 Exhibit Exhibit 24, # 31 Exhibit Exhibit 25, # 32 Exhibit Exhibit 26, # 33 Exhibit Exhibit 27, # 34 Exhibit Exhibit 28, # 35 Exhibit Exhibit 29, # 36 Exhibit Exhibit 30, # 37 Exhibit Exhibit 31, # 38 Exhibit Exhibit 32, # 39 Exhibit Exhibit 33, # 40 Exhibit Exhibit 34, # 41 Exhibit

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 23 of 43

03/25/2010
03/25/2010 03/31/2010 03/31/2010 03/31/2010 05/03/2010 05/03/2010
05/04/2010

Exhibit 35, # 42 Exhibit Exhibit 36, # 43 Exhibit Exhibit 37, # 44 Exhibit Exhibit 38, # 45 Exhibit Exhibit 39, # 46 Exhibit Exhibit 40, # 47 Exhibit Exhibit 41, # 48 Exhibit Exhibit 42, # 49 Exhibit Exhibit 43, # 50 Exhibit Exhibit 44, # 51 Exhibit Exhibit 45, # 52 Exhibit Exhibit 46, # 53 Exhibit Exhibit 47, # 54 Exhibit Exhibit 48, # 55 Exhibit Exhibit 49, # 56 Exhibit Exhibit 50, # 57 Exhibit Exhibit 51, # 58 Exhibit Exhibit 52, # 59 Exhibit Exhibit 53, # 60 Exhibit Exhibit 54, # 61 Exhibit Exhibit 55, # 62 Exhibit Exhibit 56, # 63 Exhibit Exhibit 57, # 64 Exhibit Exhibit 58, # 65 Exhibit Exhibit 59, # 66 Exhibit Exhibit 60, # 67 Exhibit Exhibit 61, # 68 Exhibit Exhibit 62, # 69 Exhibit Exhibit 63, # 70 Exhibit Exhibit 64, # 71 Exhibit Exhibit 65, # 72 Exhibit Exhibit 66, # 73 Exhibit Exhibit 67, # 74 Exhibit Exhibit 68, # 75 Exhibit Exhibit 69, # 76 Exhibit Exhibit 70, # 77 Exhibit Exhibit 71, # 78 Exhibit Exhibit 72, # 79 Exhibit Exhibit 73, # 80 Exhibit Exhibit 74, # 81 Exhibit Exhibit 75, # 82 Exhibit Exhibit 76, # 83 Exhibit Exhibit 77, # 84 Exhibit Exhibit 78, # 85 Rule 56.1 Statement Plaintiffs' Local Rule 56.1 Statement of Undisputed Facts) (Coughlin, Kerin) (Modified: Attachment 34 replaced on 5/3/2010) (Entered: 03/18/2010)
110 MOTION in Limine −− Daubert Motion to Exclude the Testimony of Plaintiffs' Expert, Dr. David Crawford by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support of Daubert Motion to Exclude the Testimony of Plaintiffs' Expert, Dr. David Crawford, Part One, # 2 Memorandum in Support of Daubert Motion to Exclude the Testimony of Plaintiffs' Expert, Dr. David Crawford, Part Two, # 3 Affidavit of David Copus, # 4 Exhibit 1−10 of Copus Affidavit, # 5 Exhibit 11−12 of Copus Affidavit, # 6 Exhibit 13−14 of Copus Affidavit, # 7 Exhibit 15 of Copus Affidavit, # 8 Exhibit 16−19 of Copus Affidavit) (Capozzola, Dominick) (Entered: 03/25/2010)
111 MOTION for Summary Judgment by SimplexGrinnell LP. Responses due by 5/3/2010 (Attachments: # 1 Memorandum in Support Part 1, # 2 Memorandum in Support Part 2, # 3 Affidavit of Marion Rivera, # 4 Affidavit of Richard Zammitti, # 5 Rule 56.1 Statement, # 6 Affidavit of Dominick Capozzola, # 7 Exhibit 1−7, # 8 Exhibit 8−1, # 9 Exhibit 8−2, # 10 Exhibit 9−11, # 11 Exhibit 12−15, # 12 Exhibit 16−17, # 13 Exhibit 18, # 14 Exhibit 19−31, # 15 Exhibit 32−46, # 16 Exhibit 47−56, # 17 Exhibit 57−64, # 18 Exhibit 65) (Capozzola, Dominick) (Entered: 03/25/2010)
112 Sealed Document containing confidential exhibits to defendant's 110 Daubert motion to exclude the testimony of plaintiff's expert, Dr. David Crawford; submitted by SimplexGrinnell LP on 3/26/10. (Chee, Alvin) (Entered: 04/22/2010)
113 Sealed document containing confidential exhibits to plaintiffs' 109 motions for class certification and summary judgment; submitted by plaintiffs on 3/18/10. (Chee, Alvin) (Entered: 04/22/2010)
114 Sealed document containing confidential exhibits to defendant's 111 motion for summary judgment; submitted by SimplexGrinnell LP on 3/26/10. (Chee, Alvin) (Entered: 04/22/2010)
115 RESPONSE to Motion re 109 First MOTION to Certify Class and Summary Judgment (Main Document: Memorandum in Opposition Part One) filed by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Opposition Part Two, # 2 Rule 56.1 Statement, # 3 Affidavit in Opposition by Richard Zammitti, # 4 Affidavit in Opposition by Christie Hext, # 5 Affidavit in Opposition by Marion Rivera, # 6 Affidavit in Opposition by David Copus) (Capozzola, Dominick) (Entered: 05/03/2010)
116 MEMORANDUM in Opposition re 110 MOTION in Limine −− Daubert Motion to Exclude the Testimony of Plaintiffs' Expert, Dr. David Crawford filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Declaration Declaration of David L. Crawford, PhD, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Declaration Declaration of Kerin E. Coughlin, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13) (Coughlin, Kerin) (Entered: 05/03/2010)
117 RULE 56.1 STATEMENT re 111 MOTION for Summary Judgment responding to Defendant's Rule 56.1 statement filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith,

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 24 of 43

05/04/2010
05/04/2010 05/04/2010 05/04/2010 05/06/2010 05/06/2010 05/13/2010 05/17/2010

Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 05/04/2010)
118 AFFIDAVIT/DECLARATION in Opposition re 111 MOTION for Summary Judgment filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Exhibit PX 79, Hext depo excerpts, # 2 Exhibit PX 80, tade agreement, # 3 Exhibit PX81, Florez depo excerpts, # 4 Exhibit PX 82, Zimerer depo excerpts, # 5 Exhibit PX 83, timesheet samples, # 6 Exhibit PX 84Love depo excerpts, # 7 Exhibit PX 85, D'Orsi email, # 8 Exhibit PX 86, Alund depo excerpts, # 9 Exhibit PX 87, Defendant's submitted checklist, # 10 Exhibit PX 88, rescinded checklist, # 11 Exhibit PX 89, email from Bouchard, # 12 Exhibit PX 90, Crandall depo excerpts, # 13 Exhibit PX 91, letter to Court, # 14 Exhibit PX 92, Crawford depo excerpts, # 15 Exhibit PX 93, Bourgoin depo excerpts, # 16 Exhibit PX 94, Keene depo excerpts, # 17 Exhibit PX 95, DOL website screen, # 18 Exhibit PX 96, DOL correspondence, # 19 Exhibit PX 97, NYC refuse removal classifiction, # 20 Exhibit PX 98, letter to Alund, # 21 Exhibit PX 99, Ward check stubs, # 22 Exhibit PX 100, Breau depo excerpts, # 23 Exhibit PX 101, service reports, # 24 Exhibit PX 102, Comer depo excerpts, # 25 Exhibit PX 103, NYC PW schedule for alarm service tech, # 26 Exhibit PX 104, Frederick letter, # 27 Exhibit PX 105, Comer declaration, # 28 Exhibit PX 106, Zammitti depo excerpts, # 29 Exhibit PX 107, Roberts depo excerpts, # 30 Exhibit PX 108, Smith depo excerpts) (Rozger, Jason) (Entered: 05/04/2010)
119 MEMORANDUM in Opposition re 111 MOTION for Summary Judgment filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 05/04/2010)
120 MOTION for Extension of Time to File Response/Reply as to 118 Affidavit in Opposition to Motion,,,,,, 117 Rule 56.1 Statement, 119 Memorandum in Opposition, for one day extension nunc pro tunc by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 05/04/2010)
ORDER granting 120 Motion for Extension of Time to File Response/Reply. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/4/2010. (Vasquez, Lea) (Entered: 05/04/2010)
121 Sealed document containing confidential exhibits to Affidavits of Richard Zammitti and Marion Rivera in Opposition to Plaintiffs' Motion for Class Certification and Summary Judgment; submitted by SimplexGrinnell LP on 3/26/10. (Chee, Alvin) (Entered: 05/06/2010)
122 EXHIBIT Amended Exhibit PX 93 to AFFIDAVIT/DECLARATION in Opposition re 111 MOTION for Summary Judgment by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. Related document: 118 Affidavit in Opposition to Motion,,,,,, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos. (Coughlin, Kerin) (Entered: 05/06/2010)
123 TRANSCRIPT of Proceedings held on 1/13/10, before Judge Gold. Court Transcriber ARIA TRANSCRIPTIONS, Telephone number 215−767−7700. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/3/2010. Redacted Transcript Deadline set for 6/14/2010. Release of Transcript Restriction set for 8/11/2010. (Hong, Loan) (Entered: 05/13/2010)
ORDER: Since the scheduling of the oral argument, the undersigned has been assigned criminal duty the week of June 7, 2010. Accordingly, the oral argument that was previously scheduled for June 10th will be held instead at 2:00 p.m. on June 28, 2010. Ordered by Chief Magistrate Steven M. Gold on 5/17/2010. (O'Connor, Erin)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 25 of 43

05/17/2010 05/17/2010 05/18/2010
05/18/2010 05/18/2010 05/18/2010 05/18/2010 05/18/2010 05/18/2010
05/18/2010

(Entered: 05/17/2010)
124 REPLY in Support re 110 MOTION in Limine −− Daubert Motion to Exclude the Testimony of Plaintiffs' Expert, Dr. David Crawford filed by SimplexGrinnell LP. (Attachments: # 1 Affidavit of David Copus in Support of Reply) (Capozzola, Dominick) (Entered: 05/17/2010)
125 REPLY in Support re 111 MOTION for Summary Judgment filed by SimplexGrinnell LP. (Attachments: # 1 Rule 56.1 Statement in Response to Plaintiffs' Opposition Statement, # 2 Affidavit of Christie Hext) (Capozzola, Dominick) (Entered: 05/17/2010)
126 REPLY in Support re 109 First MOTION to Certify Class and Summary Judgment filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Declaration of David L Crawford, PhD, # 2 Declaration of Kerin E. Coughlin, Esq., # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Declaration of Mariana Castaneda, # 8 Declaration of Bruce E. Menken, Esq., # 9 Exhibit 5, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11) (Coughlin, Kerin) (Entered: 05/18/2010)
127 Letter MOTION for Extension of Time to File Response/Reply as to 126 Reply in Support,, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Coughlin, Kerin) (Entered: 05/18/2010)
ORDER granting 127 Motion for Extension of Time to File Response/Reply. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/18/2010. (Vasquez, Lea) (Entered: 05/18/2010)
128 MOTION to Amend/Correct/Supplement 126 Reply in Support,, of Plaintiffs' Motion for Class Certification and Summary Judgment by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Coughlin, Kerin) (Entered: 05/18/2010)
Motions terminated, docketed incorrectly: 128 This is an amended version of plaintiffs' reply and not a motion to amend. (O'Connor, Erin) (Entered: 05/18/2010)
129 REPLY in Support re 109 First MOTION to Certify Class and Summary Judgment AMENDED Reply in Support filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Coughlin, Kerin) (Entered: 05/18/2010)
130 EXHIBIT Amended Exhibit 60 to Declaration of Kerin E. Coughlin in Support of Motion for Class Certification and Summary Judgment by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. Related document: 109 First MOTION to Certify Class and Summary Judgment filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos. (Coughlin, Kerin) (Entered: 05/18/2010)
131 EXHIBIT Amended Exhibit 64 to Declaration of Kerin E. Coughlin in Support of Motion for Class Certification and Summary Judgment by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. Related document: 109 First MOTION to Certify Class and Summary Judgment filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos. (Coughlin, Kerin) (Entered: 05/18/2010)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 26 of 43

05/18/2010
05/18/2010
06/07/2010 06/11/2010
06/15/2010 06/18/2010 06/18/2010 06/22/2010 06/22/2010

132 EXHIBIT Amended Exhibit 67 to Declaration of Kerin E. Coughlin in Support of Motion for Class Certification and Summary Judgment by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. Related document: 109 First MOTION to Certify Class and Summary Judgment filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos. (Coughlin, Kerin) (Entered: 05/18/2010)
133 EXHIBIT Amended Exhibit 70 to Declaration of Kerin E. Coughlin in Support of Motion for Class Certification and Summary Judgment by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. Related document: 109 First MOTION to Certify Class and Summary Judgment filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos. (Coughlin, Kerin) (Entered: 05/18/2010)
SCHEDULING ORDER: The court will hold a telephone conference at 10:30 a.m. on June 11, 2010. Plaintiffs are directed to arrange the call and to confer immediately with defendant to ensure that it is aware of the conference date and time. Ordered by Chief Magistrate Steven M. Gold on 6/7/2010. (O'Connor, Erin) (Entered: 06/07/2010)
Minute Entry for Telephone Conference held on 6/11/2010 before Chief Magistrate Judge Steven M. Gold: The court discussed with the parties certain issues to address in connection with the various pending motions. The parties agree that they do not seek an evidentiary hearing in connection with the pending Daubert motion. The court scheduled additional time at 10:00 on July 1, 2010 for the oral argument, if it is not completed on June 28th. In addition to the issues raised today, the court also directs the parties' attention to the overtime issue, and specifically the following issues: 1) plaintiffs shall clarify the legal basis upon which they seek unpaid overtime wages −− is it pursuant to statute, and if so, which one, or is it brought as a breach of contract claim, and 2) what is the proper method for calculating the overtime rate, which should be one−and−a−half the "regular rate," see, e.g., Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460 (1948). The parties shall submit simultaneous letters of no more than five pages addressing the issues raised by the court today by June 21, 2010. (Tape #FTR: 10:00 − 10:31.) (Vasquez, Lea) (Entered: 06/11/2010)
134 TRANSCRIPT of Proceedings held on 6/11/10, before Judge Gold. Court Transcriber TYPEWRITE WORD PROCESSING SERVICE, Telephone number 718−966−1401. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/6/2010. Redacted Transcript Deadline set for 7/16/2010. Release of Transcript Restriction set for 9/13/2010. (Hong, Loan) (Entered: 06/15/2010)
135 MOTION for Extension of Time to File supplemental letter regarding pending motions until Tuesday June 22, 2010, on consent by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 06/18/2010)
ORDER granting 135 Motion for Extension of Time to File. Ordered by Chief Magistrate Steven M. Gold on 6/18/2010. (O'Connor, Erin) (Entered: 06/18/2010)
136 Letter to J. Gold per June 11, 2010 conference by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Attachments: # 1 Exhibit 6.17.10 ltr from R. Fay to D. Copus, # 2 Exhibit 6.22.10 D. Crawford Declaration) (Coughlin, Kerin) (Entered: 06/22/2010)
137 Letter to Judge Gold regarding June 11, 2010 conference by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 06/22/2010)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 27 of 43

06/29/2010
06/29/2010
07/01/2010 07/01/2010 07/02/2010
07/13/2010 07/16/2010 07/19/2010 07/20/2010 07/23/2010 07/23/2010

Minute Entry for proceedings held before Chief Magistrate Steven M. Gold: Motion Hearing held on 6/28/2010 re 110 MOTION in Limine −− Daubert, 111 MOTION for Summary Judgment filed by SimplexGrinnell LP, 109 First MOTION to Certify Class and Summary Judgment filed by Roberto Ramos. Fay for plaintiffs, Copus for defendant. Argument held on pending motions. Plaintiffs may submit a letter responding to the Court's inquiries by July 2. Decision reserved. (FTR 2:04 − 4:44.) (O'Connor, Erin) (Entered: 06/29/2010)
ORDER: During yesterday's oral argument, plaintiffs contended that Stop 'N' Shop is a public works project requiring the payment of prevailing wages. In addition to Stop 'N' Shop, plaintiffs' Table of Public Works Projects, Exhibit 2, Docket Entries 109−4, 109−5, 109−6, 109−7, includes various private entities, such as Abercombie & Fitch, Row 89; Bravo Cucina Italiana, Row 1282; and EGL Realty Partnership, LP, Row 3278. The court does not understand how contracts with these private entities are within the ambit of New York's Prevailing Wage Laws. In their letter due July 2nd, plaintiffs shall more fully explain the basis for their contention that work done for private entities are public works projects. Ordered by Chief Magistrate Steven M. Gold on 6/29/2010. (O'Connor, Erin) (Entered: 06/29/2010)
138 MOTION for Extension of Time to File Letter Responding to the Court's Inquiries by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Coughlin, Kerin) (Entered: 07/01/2010)
ORDER granting 138 Motion for Extension of Time to File. Plaintiffs' letter responding to the Court's inquiries shall be submitted no later than July 13, 2010. Ordered by Chief Magistrate Steven M. Gold on 7/1/2010. (O'Connor, Erin) (Entered: 07/01/2010)
139 TRANSCRIPT of Proceedings held on 6/28/10, before Judge Gold. Court Transcriber TRANSCRIPTION PLUS II, Telephone number 516−358−7352. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/23/2010. Redacted Transcript Deadline set for 8/2/2010. Release of Transcript Restriction set for 9/30/2010. (Hong, Loan) (Entered: 07/02/2010)
140 Letter responding to questions raised by the Court at oral argument by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Attachments: # 1 Declaration of Dr. David L. Crawford, # 2 Exhibit 1) (Coughlin, Kerin) (Entered: 07/13/2010)
141 ORDER: Attached is a copy of the exhibit used by the court during the oral argument held on June 28, 2010. Ordered by Chief Magistrate Steven M. Gold on 7/16/2010. (O'Connor, Erin) (Entered: 07/16/2010)
142 Letter MOTION to Take Deposition from Dr. David Crawford by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 07/19/2010)
143 RESPONSE in Opposition re 142 Letter MOTION to Take Deposition from Dr. David Crawford Letter in Opposition of SimplexGrinnells Request to Take Deposition from Dr. David Crawford filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Coughlin, Kerin) (Entered: 07/20/2010)
ORDER granting 142 Motion to Take Deposition from Dr. Crawford for reasons stated on the record of today's proceeding. Ordered by Chief Magistrate Steven M. Gold on 7/23/2010. (Gold, Steven) (Entered: 07/23/2010)
Minute Entry for Telephone Conference held on 7/23/2010 before Chief Magistrate Judge Steven M. Gold: Fay for plaintiffs; Copus for defendant. Defendant's motion for an additional 90−minute deposition of Dr. Crawford is granted. By July 28, 2010, the parties shall submit a schedule indicating the date of the deposition and dates for further submissions. (Tape #FTR 10:35 − 10:54.) (Vasquez, Lea) (Entered: 07/23/2010)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 28 of 43

07/27/2010
07/28/2010 07/29/2010 07/29/2010 08/16/2010 08/17/2010
08/24/2010
09/07/2010 09/07/2010 09/07/2010 10/06/2010 10/06/2010

144 TRANSCRIPT of Proceedings held on 7/23/10, before Judge Gold. Court Transcriber TRANSCRIPTION PLUS II, Telephone number 516−358−7352. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/17/2010. Redacted Transcript Deadline set for 8/27/2010. Release of Transcript Restriction set for 10/25/2010. (Hong, Loan) (Entered: 07/27/2010)
145 Letter indicating the date of David Crawford's deposition and dates for further submissions by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Coughlin, Kerin) (Entered: 07/28/2010)
ORDER re 145 Letter, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos: The schedule for the deposition and further dates for submissions is approved and hereby entered as an Order of the Court. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/29/2010. (Vasquez, Lea) (Entered: 07/29/2010)
146 Letter responding to the questions raised by the Court during the July 23, 2010 telephone conference by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Attachments: # 1 Declaration of Dr. David L. Crawford, # 2 Exhibit 1 & 2) (Coughlin, Kerin) (Entered: 07/29/2010)
147 NOTICE of Change of Firm and Address by Raymond C. Fay (Fay, Raymond) (Entered: 08/16/2010)
148 REPLY in Support re 110 MOTION in Limine −− Daubert Motion to Exclude the Testimony of Plaintiffs' Expert, Dr. David Crawford, 111 MOTION for Summary Judgment filed by SimplexGrinnell LP. (Attachments: # 1 Affidavit of David Copus in Support of Defendants' Supplemental Submission, # 2 Exhibit 1−3 to Copus Affidavit, # 3 Exhibit 4−17 to Copus Affidavit, # 4 Exhibit 18−29 to Copus Affidavit, # 5 Affidavit of Christie Hext in Support of Defendant's Supplemental Submission, # 6 Affidavit of Dominick C. Capozzola in Support of Defendant's Supplemental Submission) (Capozzola, Dominick) (Entered: 08/17/2010)
149 RESPONSE in Opposition re 110 MOTION in Limine −− Daubert Motion to Exclude the Testimony of Plaintiffs' Expert, Dr. David Crawford Response to Defendant's 8/17/10 additional submission filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Declaration of David Crawford, # 2 Exhibit Modified Table 4 to Dr. Crawford's declaration, # 3 Declaration of Jason Rozger, # 4 Exhibit 1, Hext deposition excerpts, # 5 Exhibit 2, Legacy codes, # 6 Exhibit 3, LEgacy field descriptions) (Rozger, Jason) (Entered: 08/24/2010)
150 Sealed document containing Confidential Exhibit (Exhibit 1) to Affidavit of Dominick C. Capozzola; submitted by SimplexGrinnell LP. (Chee, Alvin) (Entered: 09/09/2010)
151 Sealed document containing Confidential Exhibits (Exhibits 5−21) to Affidavit of David Copus; submitted by SimplexGrinnell LP. (Chee, Alvin) (Entered: 09/09/2010)
152 Sealed document containing Confidential Exhibits (Exhibits 22−28) to Affidavit of David Copus; submitted by SimplexGrinnell LP. (Chee, Alvin) (Entered: 09/09/2010)
153 MOTION to Withdraw as Attorney by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Declaration in Support of Constantine Cannon's Motion for Leave to Withdraw as Counsel) (Coughlin, Kerin) (Entered: 10/06/2010)
ORDER granting 153 Motion to Withdraw as Attorney. Attorney Kerin E. Coughlin terminated. So Ordered by Chief Magistrate Judge Steven M. Gold on 10/6/2010.

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 29 of 43

06/21/2011
06/21/2011 07/06/2011 07/08/2011 07/13/2011 07/14/2011 07/15/2011 07/24/2011 08/02/2011
08/08/2011

(Vasquez, Lea) (Entered: 10/06/2010)
154 ORDER granting in part and denying in part 109 Motion to Certify Class and plaintiffs' Motion for Summary Judgment; denying 110 Motion in Limine; granting in part and denying in part 111 Motion for Summary Judgment, for the reasons stated in the attached MEMORANDUM AND ORDER. More specifically, plaintiffs' motion for class certification is granted. Defendant's motion for summary judgment is granted with respect to TI work and plaintiffs' fifth cause of action and denied in all other respects. Defendant's Daubert motion is denied. Plaintiffs' motion for summary judgment is denied. Ordered by Chief Magistrate Steven M. Gold on 6/21/2011. (O'Connor, Erin) (Entered: 06/21/2011)
155 SCHEDULING ORDER: See attached Order for instructions. Next conference: 10:00 a.m. on August 2, 2011. Ordered by Chief Magistrate Judge Steven M. Gold on 6/21/2011. (O'Connor, Erin) (Entered: 06/21/2011)
156 MOTION for pre motion conference regarding proposed Motion for Leave to File Interlocutory Appeal by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 07/06/2011)
157 RESPONSE in Opposition re 156 MOTION for pre motion conference regarding proposed Motion for Leave to File Interlocutory Appeal filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Fay, Raymond) (Entered: 07/08/2011)
158 Consent MOTION for Extension of Time to File /Serve Revised Expert Report by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, John Doe Bonding Companies, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez. (Fay, Raymond) (Entered: 07/13/2011)
ORDER granting 158 Motion for Extension of Time to File. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/14/2011. (Vasquez, Lea) (Entered: 07/14/2011)
159 NOTICE by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer of Plaintiffs' proposed class notice, pursuant to the Court's order of 6/21/11 (Rozger, Jason) (Entered: 07/15/2011)
160 REPLY in Opposition re 159 Notice(Other), (response to proposed class notice) filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 07/24/2011)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Status Conference held on 8/2/2011: Menken, Faye, & Rozger for plaintiffs; Copus, Capozzola, & Merced for defendant. (1) The parties rest on the papers already submitted with respect to defendant's 1292(b) motions, and the Court reserves decision. (2) With respect to Dr. Crawford's final report, defendant will produce additional data to plaintiffs by August 15th, and Dr. Crawford's final report will be served no later than September 8th. (3) With respect to the proposed class notice, plaintiffs shall provide defendant with a revised class notice that comports with the rulings made today by August 15th. The parties shall then confer with respect to any disputed aspects of the notice and attempt to submit an agreed−upon revised class notice by August 30th. THE COURT WILL HOLD A TELEPHONE CONFERENCE, TO BE ARRANGED BY DEFENDANT, AT 12:00 NOON ON SEPTEMBER 13, 2011 TO REVIEW THE NOTICE. Any additional pre−trial motions shall be identified and described in a letter to the court no later than September 15th. Plaintiffs shall serve their portion of the pre−trial order on defendant by October 14th; defendant shall serve its portion by November 4th; plaintiffs shall file the joint pre−trial order by November 18th. THE COURT WILL HOLD A FINAL PRE−TRIAL CONFERENCE AT 2:00 P.M. ON NOVEMBER 29, 2011. (FTR # 10:01 − 11:13.) (O'Connor, Erin) (Entered: 08/02/2011)
161 ORDER denying 156 Motion for Pre Motion Conference; MEMORANDUM AND OPINION: For the reasons stated in the attached M&O, defendant's motion pursuant to

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 30 of 43

09/12/2011 09/13/2011 09/14/2011 09/14/2011 09/14/2011
09/15/2011 09/16/2011 09/16/2011 10/04/2011

Section 1292(b) is denied. So Ordered by Chief Magistrate Judge Steven M. Gold on 8/8/2011. (O'Connor, Erin) (Entered: 08/08/2011)
162 NOTICE by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, John Doe Bonding Companies, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, SimplexGrinnell LP, Rogelio Smith, Randy Wray, Breno Zimerer Proposed Notice of Pendency of Class Action (Menken, Bruce) (Entered: 09/12/2011)
163 NOTICE by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer − Notice of Pendency of Class Action (Rozger, Jason) (Entered: 09/13/2011)
Minute Entry for Telephone Conference held on 9/13/2011 before Chief Magistrate Judge Steven M. Gold: Menken, Fay and Rozger for plaintiffs, Capozzola for defendants. Plaintiffs will submit a revised class notice with an opt−out date of November 18, and a proposed order attaching the Crawford report, forthwith. The parties shall use their best efforts to send the notice out by September 19. (Vasquez, Lea) (Entered: 09/14/2011)
164 NOTICE by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer of expert report (Attachments: # 1 Proposed Order) (Rozger, Jason) (Entered: 09/14/2011)
ORDER, addressing class notice and the proposed Order attaching Dr. Crawford's Expert Report: 1) The court may have erroneously informed counsel that court orders could be viewed by class members for free. Only court orders viewed from a public ECF terminal at the courthouses are free. Accordingly, paragraph 12 of the proposed notice should be revised to read as follows:"You may also access court documents electronically through the PACER system. Registration and log−in are required, and there is a nominal per−page charge to review the docket sheet and to access documents. Dr. Crawford's report appears as Item 164 on the court's docket sheet. You may register for PACER online at http://pacer.psc.uscourts.gov and the PACER log−in site for the Eastern District of New York is https://ecf.nyed.uscourts.gov/cgi−bin/login.pl." Paragraph 10 should strike the phrase "free of charge" in reference to Dr. Crawford's Report and the sentence "Class members are listed alphabetically" should be amended to state as follows:"Class members are listed alphabetically, with class members with no estimated damages listed alphabetically at the end of Table 4." 2) In light of the above, the court will not be entering a separate order attaching Dr. Crawford's Report. 3) With these modifications, the class notice is hereby approved for distribution. SO ORDERED by Chief Magistrate Judge Steven M. Gold on 9/14/2011. (O'Connor, Erin) (Entered: 09/14/2011)
165 MOTION for pre motion conference concerning various pretrial motions by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 09/15/2011)
166 RESPONSE in Opposition re 165 MOTION for pre motion conference concerning various pretrial motions filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 09/16/2011)
167 RESPONSE in Opposition re 165 MOTION for pre motion conference concerning various pretrial motions CORRECTED FOR MISSING PAGE filed by All Plaintiffs. (Rozger, Jason) (Entered: 09/16/2011)
168 MEMORANDUM AND OPINION: For the reasons stated in the attached Memorandum & Order, defendant's application for leave to bring a motion for reconsideration or a second motion for summary judgment is denied. So Ordered by Chief Magistrate Judge Steven M. Gold on 10/4/2011. (O'Connor, Erin) (Entered: 10/04/2011)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 31 of 43

10/05/2011
10/13/2011 10/13/2011 10/31/2011 11/01/2011 11/23/2011
11/28/2011 11/28/2011 11/28/2011 11/29/2011 11/29/2011 12/30/2011

169 TRANSCRIPT of Proceedings held on 8/2/11, before Judge Gold. Court Transcriber ARIA TRANSCRIPTIONS, Telephone number 845−260−1377. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/26/2011. Redacted Transcript Deadline set for 11/7/2011. Release of Transcript Restriction set for 1/3/2012. (Hong, Loan) (Entered: 10/05/2011)
170 MOTION to Adjourn Conference and pre−trial schedule so that the parties can engage in private mediation, on consent, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 10/13/2011)
ORDER granting 170 Motion to Adjourn Conference: The schedule is extended as proposed in counsels' letter. The conference previously scheduled for November 29th will instead be held at 10:00 a.m. on January 10, 2012. So Ordered by Chief Magistrate Judge Steven M. Gold on 10/13/2011. (Vasquez, Lea) (Entered: 10/13/2011)
171 MOTION for Extension of Time to File pretrial order on consent by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 10/31/2011)
ORDER granting 171 Motion for Extension of Time to File: So Ordered by Chief Magistrate Judge Steven M. Gold on 11/1/2011. (Vasquez, Lea) (Entered: 11/01/2011)
172 Notice of MOTION for Leave to Appear Pro Hac Vice of Grant D. Petersen, Esq. Filing fee $ 25, receipt number 0207−5157090. by SimplexGrinnell LP. (Attachments: # 1 Affidavit Affidavit of Dominic C. Capozzola, Esq. In Support of Motion To Admit Grant D. Petersen, Esq. Pro Hac Vice, # 2 Affidavit Affidavit of Grant D. Petersen, Esq. In Support of Motion to Admit Pro Hac Vice, # 3 Exhibit Exhibit A To Affidavit of Grant D. Petersen, Esq. Motion To Admit Pro Hac Vice, # 4 Proposed Order Proposed Order To Admit Grant D. Petersen, Esq. Pro Hac Vice) (Capozzola, Dominick) (Entered: 11/23/2011)
ORDER granting 172 Motion for Leave to Appear Pro Hac Vice GRANT D. PETERSEN for Simplex Grinnell. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/28/2011. (Vasquez, Lea) (Entered: 11/28/2011)
173 MOTION for Extension of Time to File Plaintiffs' portion of pre−trial order by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 11/28/2011)
174 Amended MOTION for Extension of Time to File pre−trial order, corrected, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 11/28/2011)
ORDER terminating as moot 173 Motion for Extension of Time to File. Plaintiff filed an amended motion. Ordered by Chief Magistrate Judge Steven M. Gold on 11/29/2011. (O'Connor, Erin) (Entered: 11/29/2011)
ORDER granting 174 Motion for Extension of Time to File. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/29/2011. (O'Connor, Erin) (Entered: 11/29/2011)
175 Proposed Pretrial Order by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, SimplexGrinnell LP, Rogelio Smith, Randy Wray, Breno Zimerer (Attachments: # 1 Exhibit A, Plaintiffs' witness list, # 2 Exhibit B, Plaintiffs' exhibit list, # 3 Exhibit C, Defendant's witness list, # 4 Exhibit D, Defendant's exhibit list) (Rozger, Jason) (Entered: 12/30/2011)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 32 of 43

01/03/2012
01/09/2012 01/10/2012
01/11/2012 01/24/2012 01/24/2012 01/24/2012
02/01/2012 02/01/2012 02/22/2012
02/27/2012 02/28/2012
02/28/2012 03/01/2012

176 NOTICE by Jaime Oy Arvide, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray re 175 Proposed Pretrial Order,, Plaintiffs' objections to Defendant's witness and exhibit lists (Rozger, Jason) (Entered: 01/03/2012)
177 NOTICE by SimplexGrinnell LP re 176 Notice(Other), Defendant SimplexGrinnell LP's Reply to Plaintiffs' Objections to Defendant's Pre−Trial Submission (Attachments: # 1 Certificate of Service) (Capozzola, Dominick) (Entered: 01/09/2012)
178 Minute Entry for Final Pretrial Conference held on 1/10/2012 before Chief Magistrate Judge Steven M. Gold: Menken, Fay, and Rozger for plaintiffs; Peterson, Copus, and Capozzola for defendant. Trial schedule set. A separate scheduling order identifying dates set during today's conference will follow separately. Jury selection scheduled for June 4, 2012 with the trial commencing June 11, 2012. (Tape #FTR 10:02−10:50.) (Vasquez, Lea) (Entered: 01/10/2012)
179 PRETRIAL & TRIAL SCHEDULING ORDER: See attached Order for schedule. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/11/2012. (O'Connor, Erin) (Entered: 01/11/2012)
180 NOTICE OF MOTION TO ADMIT COUNSEL PRO HAC VICE as to Taryn Wilgus Null by SimplexGrinnell LP. (Manuel, Germaine) (Entered: 01/24/2012)
ORDER granting 180 Motion for Taryn Wilgus Null Leave to Appear Pro Hac Vice for plaintiff. So Ordered by Chief Magistrate Judge Steven M. Gold on 01/24/2012. (Vasquez, Lea) (Entered: 01/24/2012)
181 Proposed Scheduling Order Re: Proposed Trial Outline by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, John Doe Bonding Companies, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, SimplexGrinnell LP, Rogelio Smith, Randy Wray, Breno Zimerer (Fay, Raymond) (Entered: 01/24/2012)
182 Letter by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Menken, Bruce) (Entered: 02/01/2012)
183 Letter by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Menken, Bruce) (Entered: 02/01/2012)
184 MOTION to Compel Discovery by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Exhibit Attachments A−F) (Fay, Raymond) (Entered: 02/22/2012)
185 RESPONSE to Motion re 184 MOTION to Compel Discovery filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 02/27/2012)
186 MOTION for Discovery Letter providing case authority in advance of 2:00 PM conference call on privilege disputes at Robert Crandall's deposition by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 02/28/2012)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Telephone Conference held on 2/28/2012: Menken for plaintiffs; Copus for defendant. Rulings made on deposition dispute. (O'Connor, Erin) (Entered: 02/28/2012)
ORDER finding as moot 186 Motion for Discovery. The Court assumes that defendant's letter of February 27, 2012 renders plaintiff's motion moot. If plaintiffs contend otherwise, they may submit a letter seeking to reinstate their motion. Ordered

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 33 of 43

03/01/2012 03/08/2012 03/13/2012 03/14/2012 03/15/2012
03/20/2012 03/21/2012 03/26/2012 03/27/2012 03/30/2012 04/02/2012 04/25/2012 04/26/2012

by Chief Magistrate Steven M. Gold on 3/1/2012. (Gold, Steven) (Entered: 03/01/2012)
187 Letter to Judge Gold by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 03/01/2012)
188 MOTION to Compel Discovery by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Exhibit Exhibit A−B of Motion) (Fay, Raymond) (Entered: 03/08/2012)
189 RESPONSE in Opposition re 188 MOTION to Compel Discovery filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 03/13/2012)
190 REPLY in Support re 188 MOTION to Compel Discovery filed by All Plaintiffs. (Fay, Raymond) (Entered: 03/14/2012)
SCHEDULING ORDER re 189 Response in Opposition to Motion filed by SimplexGrinnell LP, 188 MOTION to Compel Discovery filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos, 190 Reply in Support filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Randy Wray, Jose Fernandez, Maximo Estrella, Jr., Yadira Gonzalez, Nacim Bennekaa, Chris Maietta, Roberto Ramos: A TELEPHONE CONFERENCE WILL BE HELD AT 3:00 P.M. ON MARCH 26, 2012. COUNSEL FOR PLAINTIFFS IF DIRECTED TO ARRANGE THE CALL WITH ALL PARTIES AS WELL AS CONFIRM THIS CONFERENCE DATE AND TIME WITH DEFENDANTS' COUNSEL. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/15/2012. (Vasquez, Lea) (Entered: 03/15/2012)
191 Supplemental MOTION to Compel Discovery by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Fay, Raymond) (Entered: 03/20/2012)
Motions terminated, docketed incorrectly: 191 Supplemental MOTION to Compel Discovery: This is not a new motion but a Reply to plaintiffs' original motion to compel. (O'Connor, Erin) (Entered: 03/21/2012)
ORDER granting in part and denying in part 184 Motion to Compel; granting in part and denying in part 188 Motion to Compel as indicated on the record of the telephone conference held today. Ordered by Chief Magistrate Steven M. Gold on 3/26/2012. (Gold, Steven) (Entered: 03/26/2012)
192 Minute Entry for Telephone Conference held on 3/26/2012 before Chief Magistrate Judge Steven M. Gold: Various discovery rulings on the record. Defendant to submit a letter by March 30 setting forth a brief time frame for completing the production of documents and information discussed today. (Tape #FTR 3:03−3:46.) (Vasquez, Lea) (Entered: 03/27/2012)
193 Letter to Judge Gold regarding the Court's Order of March 26, 2012 by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 03/30/2012)
194 Letter Settlement Update by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, John Doe Bonding Companies, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, SimplexGrinnell LP, Rogelio Smith, Randy Wray, Breno Zimerer (Menken, Bruce) (Entered: 04/02/2012)
195 MOTION to Compel discovery by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 04/25/2012)
ORDER re 195 MOTION to Compel discovery filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 34 of 43

05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/01/2012 05/01/2012
05/01/2012
05/01/2012

Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos: The timing of plaintiff's identification of the three witnesses in question is not a sufficient basis to preclude the depositions. If defendant objects on some other basis, it shall submit a letter setting forth that basis by the close of business today. Ordered by Chief Magistrate Steven M. Gold on 4/26/2012. (Gold, Steven) (Entered: 04/26/2012)
196 Letter to Judge Gold by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 05/01/2012)
197 MOTION in Limine #1 (Contracts Between State Agencies and Prime Contractors) by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dominick C. Capozzola, # 3 Exhibit 1) (Capozzola, Dominick) (Entered: 05/01/2012)
198 MOTION in Limine #2 (Technical Requirements of Prevailing Wage Act) by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dominick C. Capozzola, # 3 Exhibit 1−2) (Capozzola, Dominick) (Entered: 05/01/2012)
199 MOTION in Limine #3 (Programming and Other Non−Covered Tasks) by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dominick C. Capozzola, # 3 Exhibit 1, # 4 Exhibit 2−9) (Capozzola, Dominick) (Entered: 05/01/2012)
200 MOTION in Limine #4 (Plaintiffs' Expert Report) by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dominick C. Capozzola, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3) (Capozzola, Dominick) (Entered: 05/01/2012)
201 MOTION in Limine #5 (Witness Kenneth Jackson) by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dominick C. Capozzola, # 3 Exhibit 1) (Capozzola, Dominick) (Entered: 05/01/2012)
202 MOTION in Limine #6 (Witnesses John Bodine and Jeremiah Comer) by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dominick C. Capozzola, # 3 Exhibit 1−2) (Capozzola, Dominick) (Entered: 05/01/2012)
203 MOTION in Limine #9 ("Lobbyist") by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dominick C. Capozzola, # 3 Exhibit 1) (Capozzola, Dominick) (Entered: 05/01/2012)
204 MOTION in Limine #7 (Contracts with no Prevailing Wage Language) by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dominick C. Capozzola, # 3 Exhibit 1) (Capozzola, Dominick) (Entered: 05/01/2012)
205 MOTION in Limine #8 (Suffolk County Investigation) by SimplexGrinnell LP. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Dominick C. Capozzola, # 3 Exhibit 1−2) (Capozzola, Dominick) (Entered: 05/01/2012)
206 MOTION in Limine by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Memorandum in Support Memorandum of Law in Support of Motion in Limine, # 2 Declaration Declaration of Ian Hawkins, # 3 Declaration Declaration of Raymond Fay, # 4 Exhibit Exhibits A−F, # 5 Exhibit Exhibits G−R) (Fay, Raymond) (Entered: 05/01/2012)
207 MOTION in Limine Daubert Motion to Exclude Testimony and Report of Robert Crandall by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Memorandum in Support Memorandum of Law in Support of Motion to Exclude Testimony of Robert Crandall, # 2 Declaration Declaration of Taryn Wilgus Null, # 3 Exhibit Exhibits 1−2) (Fay, Raymond) (Entered: 05/01/2012)
208 Proposed Jury Instructions by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta,

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 35 of 43

05/01/2012 05/01/2012 05/02/2012 05/04/2012 05/07/2012
05/10/2012 05/11/2012 05/15/2012 05/15/2012
05/15/2012
05/15/2012

Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Fay, Raymond) (Entered: 05/01/2012)
209 Proposed Jury Instructions by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Fay, Raymond) (Entered: 05/01/2012)
210 Proposed Voir Dire by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Fay, Raymond) (Entered: 05/01/2012)
211 CERTIFICATE OF SERVICE by SimplexGrinnell LP for Defendant's Motions in Limine one through nine (Capozzola, Dominick) (Entered: 05/02/2012)
ORDER: The parties shall provide courtesy copies of the May 1st motions and documents forthwith. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/4/2012. (O'Connor, Erin) (Entered: 05/04/2012)
212 TRANSCRIPT of Proceedings held on January 10, 2012, before Judge Gold. Court Transcriber: Transcription Plus II, Telephone number 718−987−4285. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/29/2012. Redacted Transcript Deadline set for 6/7/2012. Release of Transcript Restriction set for 8/6/2012. (Rocco, Christine) (Entered: 05/07/2012)
213 Letter MOTION for Discovery regarding AS400 data by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Rozger, Jason) (Entered: 05/10/2012)
214 Letter to Judge Gold by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 05/11/2012)
215 Minute Entry for Telephone Conference held on 5/14/2012 before Chief Magistrate Judge Steven M. Gold: By MAY 18, 1) Defendant shall clarify its position with regard to its prior disclosure of the AS400 codes; and 2) the parties shall submit a joint status report on the progress of settlement discussions. (Tape #FTR: # 1:49−2:06.) (Vasquez, Lea) (Entered: 05/15/2012)
216 MEMORANDUM in Opposition re 197 MOTION in Limine #1 (Contracts Between State Agencies and Prime Contractors), 198 MOTION in Limine #2 (Technical Requirements of Prevailing Wage Act), 199 MOTION in Limine #3 (Programming and Other Non−Covered Tasks), 205 MOTION in Limine #8 (Suffolk County Investigation), 204 MOTION in Limine #7 (Contracts with no Prevailing Wage Language), 201 MOTION in Limine #5 (Witness Kenneth Jackson), 202 MOTION in Limine #6 (Witnesses John Bodine and Jeremiah Comer), 203 MOTION in Limine #9 ("Lobbyist"), 200 MOTION in Limine #4 (Plaintiffs' Expert Report) filed by All Plaintiffs. (Rozger, Jason) (Entered: 05/15/2012)
217 AFFIDAVIT/DECLARATION in Opposition re 197 MOTION in Limine #1 (Contracts Between State Agencies and Prime Contractors), 198 MOTION in Limine #2 (Technical Requirements of Prevailing Wage Act), 205 MOTION in Limine #8 (Suffolk County Investigation), 204 MOTION in Limine #7 (Contracts with no Prevailing Wage Language), 201 MOTION in Limine #5 (Witness Kenneth Jackson), 202 MOTION in Limine #6 (Witnesses John Bodine and Jeremiah Comer), 203 MOTION in Limine #9 ("Lobbyist"), 199 MOTION in Limine #3 (Programming and Other Non−Covered Tasks), 200 MOTION in Limine #4 (Plaintiffs' Expert Report) filed by All Plaintiffs. (Attachments: # 1 Exhibit 1−4, # 2 Exhibit 5−6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibit 9−10, # 6 Exhibit 11, # 7 Exhibit 12, # 8 Exhibit 13) (Rozger, Jason) (Entered: 05/15/2012)
218 Proposed Voir Dire by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 05/15/2012)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 36 of 43

05/15/2012 05/15/2012 05/15/2012 05/15/2012 05/17/2012 05/18/2012
05/18/2012 05/27/2012 05/29/2012
05/31/2012
05/31/2012
06/06/2012
06/20/2012 06/22/2012

219 Proposed Jury Instructions by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 05/15/2012)
220 NOTICE by SimplexGrinnell LP Defendant's Proposed Jury Verdict Form (Capozzola, Dominick) (Entered: 05/15/2012)
221 MEMORANDUM in Opposition to Plaintiffs' Motion In Limine to Exclude the Testimony and Report of Robert W. Crandall filed by SimplexGrinnell LP. (Capozzola, Dominick) (Entered: 05/15/2012)
222 MEMORANDUM in Opposition to Plaintiffs' Motion In Limine filed by SimplexGrinnell LP. (Attachments: # 1 Affidavit of Dominick C. Capozzola, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F) (Capozzola, Dominick) (Entered: 05/15/2012)
ORDER finding as moot 195 Motion to Compel in light of the order entered on April 26, 2012 and the absence of any ensuing objection by defendant. Ordered by Chief Magistrate Steven M. Gold on 5/17/2012. (Gold, Steven) (Entered: 05/17/2012)
223 STATUS REPORT by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, John Doe Bonding Companies, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, SimplexGrinnell LP, Rogelio Smith, Randy Wray, Breno Zimerer (Menken, Bruce) (Entered: 05/18/2012)
ORDER finding as moot 213 Motion for Discovery. See docket entry 215. Ordered by Chief Magistrate Steven M. Gold on 5/18/2012. (Gold, Steven) (Entered: 05/18/2012)
224 MOTION to Compel Discovery by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Null, Taryn) (Entered: 05/27/2012)
SCHEDULING ORDER: re 224 : The court will hold a telephone conference at 2:00 p.m. on May 30, 2012. Counsel for plaintiffs are directed to arrange the call and to confirm with counsel for defendant that they are aware of the conference date and time. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/29/2012. (O'Connor, Erin) (Entered: 05/29/2012)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Telephone Conference held on 5/30/2012: Faye for plaintiffs; Capozzola for defendant. The parties report that class settlement has been reached. Accordingly, the jury selection and trial scheduled to begin June 4th is canceled. The parties shall submit a schedule for submitting their motion for preliminary approval of the class settlement and for a fairness hearing no later than June 20, 2012. (O'Connor, Erin) (Entered: 05/31/2012)
ORDER terminating as moot 197 Motion in Limine; 198 Motion in Limine; 199 Motion in Limine; 200 Motion in Limine; 201 Motion in Limine; 202 Motion in Limine; 203 Motion in Limine; 204 Motion in Limine; 205 Motion in Limine; 206 Motion in Limine; 207 Motion in Limine; 224 Motion to Compel, in light of the parties reported settlement. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/31/2012. (O'Connor, Erin) (Entered: 05/31/2012)
225 Letter proposing preliminary approval schedule on consent of all parties by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Menken, Bruce) (Entered: 06/06/2012)
226 Letter requesting assistance with settlement by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 06/20/2012)
227 Minute Entry for Telephone Conference held on 6/21/2012 before Chief Magistrate Judge Steven M. Gold: Menken, Fay and Rozger for plaintiffs, Peterson and Capozzola for defendant. The parties' joint application that absent class members not be given further opportunity to opt out now that the terms of settlement are about set forth in a publicly filed document is GRANTED for the reasons set forth in defendants' letter of June 20, 2012, Docket Entry 226, and on the record during today's conference.

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 37 of 43

06/29/2012
07/03/2012 07/13/2012
07/13/2012 07/17/2012 08/02/2012 08/02/2012 09/17/2012 09/28/2012
10/04/2012

(Tape #FTR 3:30−3:38.) (Vasquez, Lea) (Entered: 06/22/2012)
228 Notice of MOTION for Settlement Preliminary Approval by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Memorandum in Support of Motion for Preliminary Settlement Approval, # 2 Affidavit in Support of Plaintiffs' Motion for Preliminary Settlement Approval, # 3 Exhibit Joint Stipulation and Agreement, # 4 Exhibit Class Notice) (Fay, Raymond) (Entered: 06/29/2012)
SCHEDULING ORDER: re 228 Notice of MOTION for Settlement Preliminary Approval: The court will hold a telephone conference at 10:30 a.m. on July 13, 2012. Counsel for plaintiffs is directed to arrange the call with all parties. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/3/2012. (O'Connor, Erin) (Entered: 07/03/2012)
229 Minute Entry for Telephone Conference held on 7/13/2012 before Chief Magistrate Judge Steven M. Gold: Menken, Faye & Rozger for plaintiffs; Peterson, Copus, & Capozzola for defendant. The parties shall submit a revised and final version of the notice, as discussed during the conference held today, no later than July 16, 2012. The period for filing any objections shall be extended to 45 days from the date of mailing. Accordingly, the parties shall submit their motion for final approval of the class settlement no later than September 28, 2012 and the court will hold a fairness hearing at 3:00 p.m. on October 3, 2012. (Tape #FTR: 10:32 − 10:54.) (Vasquez, Lea) (Entered: 07/13/2012)
230 NOTICE by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer re 229 Telephone Conference,, Revised Class Notice (Attachments: # 1 Revised Class Notice) (Fay, Raymond) (Entered: 07/13/2012)
231 MEMORANDUM AND OPINION & ORDER granting 228 Motion for Preliminary Approval of the Settlement: See attached M&O. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/17/2012. (O'Connor, Erin) (Entered: 07/17/2012)
232 Letter to Judge Gold regarding CAFA requirements by SimplexGrinnell LP (Capozzola, Dominick) (Entered: 08/02/2012)
ORDER re 232 Letter filed by SimplexGrinnell LP: Defendant shall issue the notice required by CAFA, 28 U.S.C. 1715, to the appropriate officials forthwith. The fairness hearing scheduled for October 3, 2012 will remain as scheduled. The court will hold a final hearing on the settlement at 3:00 p.m. on November 7, 2012, in compliance with CAFA. So Ordered by Chief Magistrate Judge Steven M. Gold on 8/2/2012. (O'Connor, Erin) (Entered: 08/02/2012)
233 Letter dated 9/7/12 from Vernon V. Ford to Clerk of Court, submitting Mr. Ford's objection to the settlement. (Galeano, Sonia) (Entered: 09/18/2012)
234 MOTION to Approve Consent Judgment and for final approval of class action settlement by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Bruce Menken in support of final approval motion, # 3 Exhibit A to Menken declaration, payouts to class members, # 4 Exhibit B to Menken declaration, summary of BMLLP lodestar, # 5 Declaration of Ray Fay, Esq. in support of final approval, # 6 Declaration Mark Patton declaration in support of final approval motion, # 7 Exhibit A to Patton declaration, class notice, # 8 Declaration of Jason Rozger in support of final approval) (Rozger, Jason) (Entered: 09/28/2012)
235 Minute Entry for Motion Hearing held on 10/3/2012 re 234 MOTION to Approve Consent Judgment and for final approval of class action settlement filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos before Chief Magistrate Judge Steven M. Gold: Menken, Fay and Null for plaintiffs, Capozzola for defendant.

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 38 of 43

11/07/2012 11/07/2012 11/08/2012 11/13/2012
11/19/2012 11/19/2012 11/30/2012 12/03/2012

For reasons stated on the record, the parties' joint motion for final approval of the class action settlement is granted. The Court finds that the sole objection does not warrant a different result. By November 7, counsel shall file a proposed final order, certification that all government notifications required by law have been made and that no government agency of entity has responded, and an itemization of disbursements. The itemization of disbursements may be filed ex parte if a cover letter explaining the basis for doing so is filed at the same time. (Tape #FTR 2:58−3:13.) (Vasquez, Lea) (Entered: 10/04/2012)
236 CERTIFICATE of Counsel re 235 Motion Hearing,,,, (affirming Class Action Fairness Act compliance) by Dominick Cameron Capozzola on behalf of SimplexGrinnell LP (Capozzola, Dominick) (Entered: 11/07/2012)
237 NOTICE by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer re 235 Motion Hearing,,,, Itemization of Case Disbursements (Fay, Raymond) (Entered: 11/07/2012)
238 NOTICE by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer re 235 Motion Hearing,,,, Proposed Final Approval Order and Judgment (Fay, Raymond) (Entered: 11/08/2012)
SCHEDULING ORDER re 237 Notice(Other), filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos, 238 Notice(Other), filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Randy Wray, Jose Fernandez, Maximo Estrella, Jr., Yadira Gonzalez, Nacim Bennekaa, Chris Maietta, Roberto Ramos: A telephone conference will be held at 2:30 p.m. on November 16th before the undersigned. Counsel for plaintiffs is directed to arrange the call with all parties as well as confirm this conference date and time with defendants' counsel. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/13/2012. (Vasquez, Lea) (Entered: 11/13/2012)
239 Minute Entry for Telephone Conference held on 11/16/2012 before Chief Magistrate Judge Steven M. Gold: Fay, Menken and Rozger for plaintiffs, Capozzola for defendants. Plaintiffs will submit a letter brief addressing the issues raised today by November 30, 2012. (Tape #FTR 2:34−2:42.) (Vasquez, Lea) (Entered: 11/19/2012)
240 NOTICE by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer re 234 MOTION to Approve Consent Judgment and for final approval of class action settlement Letter re Attorneys Fees (Fay, Raymond) (Entered: 11/19/2012)
241 ORDER granting 234 Motion to Approve Consent Judgment. For the reasons in the attached Order, the proposed Final Approval Order and Judgment is hereby entered as an Order of the Court. The Clerk is hereby directed to enter the Judgment and close the case. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/30/2012. (Megdal, Deborah) (Entered: 11/30/2012)
242 CLERK'S JUDGMENT: Ordered and Adjudged that the terms of the settlement are finally approved as fair, reasonable, and adequate, and that the parties are directed to consummate the settlement in accordance with its terms and provisions, including the settlement payments approved by the Court in the Orders dated October 3, 2012 and November 30, 2012; and that the members of the class are permanently barred and enjoined from prosecuting against any of the Released Parties the Released Claims described in Paragraphs 40 and 41 of the settlement, upon satisfaction of all payments and obligations under the settlement. All claims in this action against Defendants SimplexGrinnell LP and John Doe Bonding Companies 1−3 are dismissed with prejudice, and without costs; and that the Court retains jurisdiction over the construction, interpretation, implementation, and enforcement of the parties' settlement and over the administration and distribution of settlements payments. Ordered by Clerk of Court on 12/3/2012. (Brucella, Michelle) (Entered: 12/03/2012)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 39 of 43

12/07/2012
12/07/2012 11/04/2013 11/04/2013 11/04/2013 12/05/2014
12/10/2014 12/22/2014 12/23/2014 01/02/2015 01/05/2015 01/07/2015
01/12/2015
02/27/2015

243 NOTICE OF APPEAL as to 242 Clerk's Judgment,,,, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. Filing fee $ 455, receipt number 0207−5886476. Service done electronically. (Fay, Raymond) Modified on 12/7/2012 (McGee, Mary Ann). (Entered: 12/07/2012)
Electronic Index to Record on Appeal sent to US Court of Appeals. 243 Notice of Appeal, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 12/07/2012)
244 NOTICE of Change of Law Firm by Raymond C. Fay (Fay, Raymond) (Entered: 11/04/2013)
245 MOTION to Withdraw as Attorney of Taryn Wilgus Null by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Null, Taryn) (Entered: 11/04/2013)
ORDER granting 245 Motion to Withdraw as Attorney. Attorney Taryn W. Null terminated. So Ordered by Chief Magistrate Judge Steven M. Gold on 11/4/2013. (Vasquez, Lea) (Entered: 11/04/2013)
SCHEDULING ORDER: The Court will hold a telephone conference at 10:00 a.m. on January 8, 2015. Counsel for plaintiffs is directed to arrange the call. The Court expects counsel to confer in advance of the conference and to be prepared to discuss how they intend to move forward with the litigation and to propose a case management schedule. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/5/2014. (Vasquez, Lea) (Entered: 12/05/2014)
Case Reopened (Vasquez, Lea) (Entered: 12/10/2014)
246 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 25, receipt number 0207−7415496. by SimplexGrinnell LP. (Attachments: # 1 Affidavit of Peter O. Hughes in support of motion, # 2 Admission to Practice Pro Hac Vice, # 3 Certificate of Service) (Rygiel−Boyd, Jennifer) (Entered: 12/22/2014)
ORDER granting 246 Motion for Leave for Peter O. Hughes to Appear Pro Hac Vice for defendant SimplexGrinnell LP. So Ordered by Chief Magistrate Judge Steven M. Gold on 12/23/2014. (Vasquez, Lea) (Entered: 12/23/2014)
247 MOTION to Adjourn Conference Request to Adjourn Telephone Conference by SimplexGrinnell LP. (Hughes, Peter) (Entered: 01/02/2015)
ORDER granting 247 Motion to Adjourn Conference: The telephone conference scheduled for January 8th will instead be held at 12:30 p.m. on January 9th. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/5/2015. (Vasquez, Lea) (Entered: 01/05/2015)
248 MANDATE of USCA as to 243 Notice of Appeal, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos. It is Ordered that the June 21, 2011 memorandum and order of the District Court is VACATED in part and REMANDED. Issued as Mandate: 1/5/15. (Attachments: # 1 Opinion) (McGee, Mary Ann) (Entered: 01/07/2015)
249 Minute Entry for Telephone Conference held on 1/9/2015 before Chief Magistrate Judge Steven M. Gold: Menken, Rozger and Fay for plaintiffs, Hughes and Peterson for defendants. The parties report that they intend to pursue private mediation and anticipate scheduling same for March. Counsel shall submit a joint report on the status of their efforts to reach a settlement by April 1 or promptly upon the completion of mediation, whichever shall first occur. (Vasquez, Lea) (Entered: 01/12/2015)
250 NOTICE of Settlement by Roberto Ramos (Menken, Bruce) (Entered: 02/27/2015)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 40 of 43

03/04/2015 03/31/2015 04/10/2015 04/14/2015 04/17/2015 04/24/2015 04/24/2015
07/07/2015
07/08/2015

ORDER re 250 Notice of Settlement filed by Roberto Ramos: Counsel shall file their motion for preliminary approval or an updated status report by March 31st. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/4/2015. (Vasquez, Lea) (Entered: 03/04/2015)
251 Letter updating Court of status of settlement, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Rozger, Jason) (Entered: 03/31/2015)
252 MOTION to Approve Consent Judgment , preliminary approval of class action settlement, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Memorandum in Support of motion for preliminary approval of class action settlement, # 2 Declaration of Jason J. Rozger, Esq., # 3 Exhibit A, Joint Stipulation and Agreement, # 4 Exhibit B, proposed class notice, # 5 Exhibit C, estimated settlement shares) (Rozger, Jason) (Entered: 04/10/2015)
ORDER deferring ruling on 252 Motion to Approve Consent Judgment: A telephone conference will be held at 10:30 a.m. on April 17, 2015 before the undersigned. Counsel for plaintiffs is directed to arrange the call with all parties as well as immediately confirm this conference date and time with defendants' counsel. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/14/2015. (Vasquez, Lea) (Entered: 04/14/2015)
253 Minute Entry for Telephone Conference held on 4/17/2015 before Chief Magistrate Judge Steven M. Gold: Fay and Rozger for plaintiffs, Hughes for defendants. The parties will submit a proposed class notice that has been revised to address the issues discussed today by April 24. (Tape #FTR 10:30−10:46.) (Vasquez, Lea) (Entered: 04/17/2015)
254 Letter and proposed amended class notice, in further support of preliminary approval motion, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Attachments: # 1 Exhibit amended proposed class notice) (Rozger, Jason) (Entered: 04/24/2015)
ORDER granting 252 Motion to Approve Consent Judgment. Although styled as indicated above, the motion is one for preliminary approval of a class action settlement. The motion is granted, and the proposed class notice is approved, with the following modifications and additions. (1) The proposed notice contains a paragraph on page 3 under the heading, "How do you know if you are a class member?' The final paragraph advises the recipient that he or she "should have received a notice about this case in September 2011." This sentence of the notice should be amended to add "if you were already employed by Simplex Grinnell at that time." (2) The parties are urged to proof read the notice, and its formatting in particular, before distribution. On the Court's copy, in paragraph 12 on page 5, Mr. Menken's name appears under the heading for defense counsel, and the Court's address spreads from under the heading "Court" and into the heading "Class Counsel." (3) Recipients of the notice should be given eight weeks to exclude themselves or submit objections. THE COURT WILL HOLD A FAIRNESS HEARING AT 4:00 PM ON JULY 14, 2015. Ordered by Chief Mag. Judge Steven M. Gold on 4/24/2015. (Gold, Steven) (Entered: 04/24/2015)
255 MOTION to Approve Consent Judgment , final approval of class action settlement by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Memorandum in Support, # 2 Affidavit in Support of Jason Rozger, Esq., # 3 Affidavit in Support of Ray Fay, Esq., # 4 Affidavit in Support of Bruce Menken, Esq., # 5 Exhibit A to Menken affirmation, declaration of Mark Patton, # 6 Exhibit B to Menken affirmation, summary of BM LLP time, # 7 Exhibit C to Menken affirmation, BM LLP expenses) (Rozger, Jason) (Entered: 07/07/2015)
256 RESPONSE to Motion re 255 MOTION to Approve Consent Judgment , final approval of class action settlement filed by SimplexGrinnell LP. (Hughes, Peter)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 41 of 43

07/10/2015 07/13/2015 07/13/2015 07/13/2015 07/14/2015
07/15/2015
07/31/2015 07/31/2015 08/17/2015
03/24/2016 03/25/2016

(Entered: 07/08/2015)
SCHEDULING ORDER: Due to a conflict in the Court's calendar, the hearing scheduled for 4:00 p.m. on July 14th will instead begin at 2:30 p.m. on the same date. Counsel for plaintiff is directed to immediately notify all parties of this new conference time. So Ordered by Chief Magistrate Judge Steven M. Gold on 7/10/2015. (Vasquez, Lea) (Entered: 07/10/2015)
NOTICE re Scheduling Order: In light of the objection filed, and the original notice that the July 14th hearing will be held at 4:00 p.m., while the hearing will begin at 2:30 p.m., counsel will be expected to still be available at 4:00 p.m. in the event any class members appear. (Vasquez, Lea) (Entered: 07/13/2015)
257 NOTICE of Appearance by Jeanne M. Valentine on behalf of Joseph N Valentine, III (aty to be noticed) (Valentine, Jeanne) (Entered: 07/13/2015)
258 Letter MOTION for Attorney Fees by Joseph N Valentine, III. (Valentine, Jeanne) (Entered: 07/13/2015)
259 AFFIDAVIT/DECLARATION in Support re 255 MOTION to Approve Consent Judgment , final approval of class action settlement filed by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Exhibit A, Affidavit regarding class members with missing addresses, # 2 Exhibit B, email to Valentine counsel, # 3 Exhibit C, email from Valentine counsel, # 4 Exhibit D, spreadsheet from Valentine counsel, # 5 Exhibit E, Valentine ACE data, # 6 Exhibit F, email to Valentine counsel 7/9/15, # 7 Exhibit G, Valentine counsel's spreadhseet with comments by class counsel, # 8 Exhibit H, corporate information on non−profits listed in Valentine spreadsheet) (Rozger, Jason) (Entered: 07/14/2015)
260 Minute Entry for Discovery Hearing held on 7/14/2015 before Chief Magistrate Judge Steven M. Gold: Menken, Rozger and Fay for plaintiffs, Huches for defendant, Vallentine for objector. The objection was withdrawn under circumstances stated on the record. The motion for final approval is granted for reasons stated on the record, subject to certification under CAFA that no state or federal attorney general objects or otherwise seeks to be heard by July 30. The parties will submit an appropriate certification and proposed order by July 31. (Tape #FTR 2:33−2:35; 3:07−3:31.) (Vasquez, Lea) (Entered: 07/15/2015)
261 AFFIDAVIT/DECLARATION in Support re 255 MOTION to Approve Consent Judgment , final approval of class action settlement and compliance with CAFA filed by SimplexGrinnell LP. (Hughes, Peter) (Entered: 07/31/2015)
262 Notice of MOTION for Judgment Based on Settlement by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Joseph N Valentine, III, Randy Wray, Breno Zimerer. (Menken, Bruce) (Entered: 07/31/2015)
ORDER terminating 262 Motion for Judgment Based on Settlement because the submission is a proposed final approval order and judgment and not a motion, but entering the proposed final approval order and judgment as an Order of the Court that terminates the case; granting 255 Motion to Approve Consent Judgment; terminating 258 Motion for Attorney Fees because the objection brought by this attorney was withdrawn as indicated in the minute entry for July 14, 2015. Ordered by Chief Mag. Judge Steven M. Gold on 8/17/2015. (Gold, Steven) (Entered: 08/17/2015)
263 Letter Seeking court's assistance regarding an issue arrising out of the Joint Stipulation & Agreement by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Attachments: # 1 Exhibit Ex A − Joint − Stipulation & Agreement, # 2 Exhibit Ex B − List of Uncashed Checks) (Rozger, Jason) (Entered: 03/24/2016)
264 MEMORANDUM in Opposition re 263 Letter, Regarding Enforcement of Court−Approved Class Action Settlement Agreement filed by SimplexGrinnell LP.

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 42 of 43

04/01/2016
04/01/2016 04/06/2016 04/14/2016 04/14/2016
04/15/2016 04/15/2016 04/29/2016
05/20/2016 06/03/2016

(Hughes, Peter) (Entered: 03/25/2016)
SCHEDULING ORDER re 263 Letter, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos, 264 Memorandum in Opposition filed by SimplexGrinnell LP: A telephone conference will be held at 2:00 p.m. on April 4, 2016 before the undersigned. Counsel for defendant is directed to arrange the call with all parties as well as immediately confirm this conference date and time with plaintiffs' counsel. So Ordered by Magistrate Judge Steven M. Gold on 4/1/2016. (Vasquez, Lea) (Entered: 04/01/2016)
265 Letter by SimplexGrinnell LP (Hughes, Peter) (Entered: 04/01/2016)
266 Minute Entry for Telephone Conference held on 4/4/2016 before Magistrate Judge Steven M. Gold: Menken and Rozger for plaintiffs, Hughes for defendant. If plaintiffs intend to move for relief, they shall submit a letter by April 14 indicating the nature of the motion they anticipate bringing and proposing, after consultation with defendant, a schedule for briefing it. (Tape #2:01−2:14.) (Vasquez, Lea) (Entered: 04/06/2016)
267 Letter by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Rozger, Jason) (Entered: 04/14/2016)
ORDER re 267 Letter, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos : The letter submitted by plaintiffs does not make clear whether the briefing schedule they propose is agreed to by defendant. Accordingly, plaintiffs shall submit a further letter so indicating and, if defendant does not agree, defendant shall submit a responsive letter one day following plaintiffs' submission. Ordered by Magistrate Judge Steven M. Gold on 4/14/2016. (Gold, Steven) (Entered: 04/14/2016)
268 Letter regarding proposed motion schedule by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer (Rozger, Jason) (Entered: 04/15/2016)
ORDER re 268 Letter, filed by Rogelio Smith, Agban Agban, Breno Zimerer, Jaime Oy Arvide, Jose Luis Maldonado, Frank Rodriguez, Omar Florez, Jose Fernandez, Randy Wray, Yadira Gonzalez, Maximo Estrella, Jr., Nacim Bennekaa, Chris Maietta, Roberto Ramos. The briefing schedule proposed by the parties is approved. Ordered by Magistrate Judge Steven M. Gold on 4/15/2016. (Gold, Steven) (Entered: 04/15/2016)
269 MOTION to Amend/Correct/Supplement settlement agreement to allow location of class members with uncashed settlement checks, by Agban Agban, Jaime Oy Arvide, Nacim Bennekaa, Maximo Estrella, Jr, Jose Fernandez, Omar Florez, Yadira Gonzalez, Chris Maietta, Jose Luis Maldonado, Roberto Ramos, Frank Rodriguez, Rogelio Smith, Randy Wray, Breno Zimerer. (Attachments: # 1 Declaration of Jason Rozger in support of motion, # 2 Exhibit A, term sheet, # 3 Exhibit B, settlement agreement, # 4 Exhibit C, list of class members with uncashed checks, # 5 Memorandum in Support) (Rozger, Jason) (Entered: 04/29/2016)
270 RESPONSE in Opposition re 269 MOTION to Amend/Correct/Supplement settlement agreement to allow location of class members with uncashed settlement checks, filed by SimplexGrinnell LP. (Attachments: # 1 Certification of Peter O. Hughes, # 2 Exhibit A to Hughes Certification, # 3 Exhibit B to Hughes Certification, # 4 Exhibit C to Hughes Certification, # 5 Exhibit D to Hughes Certification) (Hughes, Peter) (Entered: 05/20/2016)
271 REPLY in Support re 269 MOTION to Amend/Correct/Supplement settlement agreement to allow location of class members with uncashed settlement checks, filed by All Plaintiffs. (Attachments: # 1 Supplement letter to court concerning filing date) (Rozger, Jason) (Entered: 06/03/2016)

Case: 1:07-cv-00981-SMG As of: 01/08/2017 02:53 PM EST 43 of 43
06/17/2016 272 ORDER denying 269 Motion to Amend/Correct/Supplement for the reasons stated in the attached Memorandum and Order. Ordered by Magistrate Judge Steven M. Gold on 6/17/2016. (Collins, Anne) (Entered: 06/17/2016)

 
 852

740 FEDERAL REPORTER, 3d SERIES

Roberto RAMOS, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, individually and on behalf of all other persons similarly situated, Plaintiffs–Appellants,
v.
SIMPLEXGRINNELL LP, John Doe Bonding Companies, # 1–
3, Defendants–Appellees.*
Docket No. 12–4901–cv.
United States Court of Appeals, Second Circuit.
Argued: Sept. 4, 2013.
Decided: Jan. 23, 2014.
Background: Workers who installed, maintained, repaired, tested, and inspected fire alarm and suppression systems in public and private buildings in New York brought state-court class action against employer, alleging employer did not pay them prevailing wages for their labor on public works in violation of New York’s prevailing wage law. Following removal, the United States District Court for the Eastern District of New York, Steven M. Gold, 796 F.Supp.2d 346, inter alia, granted summary judgment against workers on their testing and inspection claims. Workers appealed.
Holdings: The Court of Appeals, Calabresi, Circuit Judge, held that:
(1) certification of question to the New York Court of Appeals was warranted as to deference due an agency’s decision to construe prevailing wage law prospectively only, and

(2) certification of question to the New York Court of Appeals was warranted as to the effect of a party’s commitment to pay prevailing wages.
Questions certified.
1. Federal Courts O3604(4) A court of appeals reviews a district
court’s grant of summary judgment de novo.
2. Administrative Law and Procedure O438(15)
Labor and Employment O2357 Under New York law, Department of
Labor’s construction of prevailing wage statute as covering testing and inspection work was entitled to deference. N.Y.McKinney’s Labor Law § 220.
3. Federal Courts O3107 United States Court of Appeals for
the Second Circuit would certify to the New York Court of Appeals question of what deference, if any, should a court pay to an agency’s decision, made for its own enforcement purposes, to construe New York’s prevailing wage law prospectively only, when the court is deciding the meaning of that section for a period of time arising before the agency’s decision; issue had not been addressed by the New York Court of Appeals, issue was important to how administrative determinations were weighed by New York courts in a variety of areas of law, and a New York Court of Appeals ruling would likely determine the claim before the Second Circuit. N.Y.McKinney’s Labor Law § 220.
4. Federal Courts O3106 Certification permits federal courts to
invite state courts to clarify and establish their own law.

* The Clerk of the Court is directed to amend the caption as set out above.

RAMOS v. SIMPLEXGRINNELL LP
Cite as 740 F.3d 852 (2nd Cir. 2014)

853

5. Federal Courts O3106
The decision to certify a question or not is guided by various factors, including: (1) whether the state’s highest court has addressed the issue and, if not, whether the decisions of other state courts permit a federal court to predict how the state’s highest court would resolve it; (2) whether the question is of importance to the state and may require value judgments and public policy choices; and (3) whether the certified question is determinative of a claim before the federal court.
6. Federal Courts O3106
Certification is especially important in cases where it seems likely that, absent certification, state courts may be substantially deprived of the opportunity to define state law.
7. Federal Courts O3107
United States Court of Appeals for the Second Circuit would certify to the New York Court of Appeals question of whether a party’s commitment to pay prevailing wages pursuant to New York law binds it to pay those wages only for work activities that were clearly understood by the parties to be covered by New York’s prevailing wage law, or requires the party to pay prevailing wages for all the work activities ultimately deemed by a court or agency to be ‘‘covered’’ by that portion of the statute; New York Court of Appeals had not addressed the issue, the issue was one of importance that would recur for both workers and employers, and the answer to the question would determine whether the plaintiffs in the action could bring their breach of contract claims. N.Y.McKinney’s Labor Law § 220.
8. Contracts O167
Parties entering into a contract are presumed to accept all the rights and obli-

gations imposed on their relationship by state or federal law.
Raymond C. Fay (Taryn Wilgus Null, on the brief), Mehri & Skalet, PLLC, Washington, D.C., Bruce E. Menken and Jason Rozger, Beranbaum Menken LLP, New York, NY, for Plaintiffs–Appellants.
Edward Cerasia, II (Dominick C. Capozzola, on the brief), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York, NY, for Defendants–Appellees.
Before: CALABRESI, LIVINGSTON, and CHIN, Circuit Judges.
CALABRESI, Circuit Judge:
This case raises two questions of New York State law that are unsettled and of importance to the relationship between the State’s administrative agencies and its courts, as well as to the functioning of New York’s labor law. It asks, first, whether a court should give deference not only to an agency’s substantive interpretation of a statute arising from an unrelated proceeding but also to its decision to enforce that interpretation only prospectively. And it asks, second, whether contracts committing parties to pay prevailing wages pursuant to section 220 of the New York Labor Law (‘‘NYLL’’) need to specify—when the scope of the statute’s coverage is unclear to the parties—what particular work the prevailing wages will be paid for. At oral argument, the Appellees stated that certification would be useful and appropriate. We agree, and we certify two questions to the New York Court of Appeals. See N.Y.C.R.R. § 500.27(a).
BACKGROUND
This case was brought by workers who installed, maintained, repaired, tested, and inspected fire alarm and suppression systems in public and private buildings in

854

740 FEDERAL REPORTER, 3d SERIES

New York for SimplexGrinnell LP (‘‘Simplex’’). They claimed that, since at least February of 2001, Simplex did not pay them ‘‘prevailing wages’’ for their labor on ‘‘public works’’ in violation of NYLL section 220.
Though the case was initially brought in New York State court in 2007, it was removed to the United States District Court for the Eastern District of New York, where the parties consented to the jurisdiction of Magistrate Judge Steven Gold. Among other things, the plaintiffs brought third-party breach of contract claims based on Simplex’s failure to pay prevailing wages.
Because the plaintiffs had chosen to bring a third-party breach of contract suit in court, rather than in an Article 78 proceeding before the Department of Labor (‘‘DOL’’), see N.Y. C.P.L.R. § 7803, that agency had no formal role in the proceeding. However, while the litigation was ongoing, Simplex turned to the DOL and, on its own, asked for clarification. The plaintiffs were not privy to these communications between Simplex and the DOL.
As part of these communications, Simplex provided the DOL with matrices reflecting its views of what work was ‘‘covered’’ by the statute and therefore entitled to the payment of prevailing wages, and what work was not. In the matrices provided by Simplex, testing and inspection work was not listed as covered. The DOL posted the matrices on its website.
Subsequently, however, then-Commissioner of the DOL, Patricia Smith, ordered the matrices removed, and decided to issue an opinion letter on the matter. In that letter, the DOL concluded that testing and

inspection work was ‘‘covered’’ work under section 220 of the NYLL and hence entitled to payment of the prevailing wage. Joint App’x at 330–33. The DOL reached this conclusion because, inter alia, testing and inspection work was a form of ‘‘maintenance work’’ a category that is covered under the statute. Id. at 330–31. The opinion letter noted that both New York State and Simplex’s own documents had treated testing and inspection work as within the category of ‘‘maintenance’’ work. Id. at 331–32.
But the DOL also stated that there had been ‘‘much confusion’’ as to whether it had earlier interpreted testing and inspection work as being covered and, for this reason, decided to enforce its decision prospectively only. Id. at 332. The opinion letter, issued on December 31, 2009, went into effect on the following day: January 1, 2010. Id.
After the DOL issued its opinion letter to Simplex, the parties completed discovery in the Eastern District and filed crossmotions for summary judgment. Simplex relied on the DOL’s opinion letter in its motion.
The district court granted Simplex’s motion to dismiss the plaintiff’s claims relating to testing and inspection work. Ramos v. SimplexGrinnell LP, 796 F.Supp.2d 346, 367–69 (E.D.N.Y.2011).1 The court focused principally on the DOL’s opinion letter, and ruled that deference was due both to the conclusion reached in the letter—that testing and inspection work was to be paid prevailing wages— and to its decision to enforce that conclusion prospectively only. Id. at 368. That

1. The district court denied Simplex’s motion for summary judgment with regard to the claims for non—testing and inspection work—that is, for the payment of prevailing wages for work done servicing, installing,

maintaining, and repairing fire alarm and suppression systems. Ramos, 796 F.Supp.2d at 362–66. As to these, the court also certified the class of approximately 600 plaintiffs. Id. at 361. These claims were later settled.

RAMOS v. SIMPLEXGRINNELL LP
Cite as 740 F.3d 852 (2nd Cir. 2014)

855

is, the district court held that the plaintiffs’ testing and inspection claims for the period of the litigation could not proceed since the agency, in its own enforcement subsequent to its December 31, 2009 ruling, was requiring that prevailing wages only be paid prospectively. The district court reached this result because ‘‘[t]here was nothing irrational or unreasonable about the Commissioner’s decision to classify [testing and inspection] work as covered but to require that prevailing wages be paid only prospectively.’’ Id.
The district court also held that, under the circumstances, the plaintiffs’ third-party breach of contract claim could not be brought for the testing and inspection work. Id. at 368–69. Here, its reasoning was more complicated. The court stated that when it allowed the plaintiffs’ claims to proceed on their non-testing and inspection work, see footnote 1, it had reasoned that since Simplex had contracted to pay a prevailing wage for such covered work, the plaintiffs could bring a third-party breach of contract claim for unpaid prevailing wages for such work. Id. at 365. The district based this conclusion on: (1) the notion that it is typically understood by parties such as Simplex, when they take on public works projects, that they need to pay the prevailing wages mandated by law; and (2) the fact that some of Simplex’s contracts did, in fact, contain provisions binding it to pay the prevailing wage. Id. at 362–65.
While the district court found that Simplex had generally agreed to pay prevailing wages in entering into its contracts, it nonetheless held that in light of the uncertainty at the time surrounding testing and inspection work, Simplex could not have had ‘‘reason to believe it would be required to pay prevailing wages for testing and inspection work it contracted to perform.’’ Id. at 368. ‘‘Thus, absent a provision in a

particular contract explicitly requiring that testing and inspection work’’ be covered, there was ‘‘no basis for concluding’’ that Simplex had agreed to pay prevailing wages for such work. Id. The district court’s reasoning therefore appeared to be that a general agreement to pay the wages required by the statute applied only to work that was clearly understood by the parties to be covered by the statute at the time the contract was made and not to work subsequently held to be covered.
[1] The plaintiffs appeal the district court’s grant of summary judgment against them on the testing and inspection claims. We review that grant de novo. See Mullins v. City of New York, 653 F.3d 104, 113 (2d Cir.2011).
DISCUSSION
I.
Under New York law, the requirement that workers engaged in ‘‘public works’’ should be paid at prevailing wages reaches back at least to 1905, when Article 1, Section 17 of the State’s Constitution was passed. The amendment stated that no worker ‘‘engaged in the performance of any public work, shall be TTT paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used.’’ N.Y. CONST. art. I. § 17.
The portion of the NYLL at issue here—section 220—is, as the district court put it, a ‘‘codification’’ of that amendment. Ramos, 796 F.Supp.2d at 352. Section 220 has not changed in any significant way over the course of this litigation, and states that every public works contract must provide that all laborers employed by the contract will be paid prevailing wages. N.Y. LAB. LAW 220(3)(a). It also furnishes administrative mechanisms to enforce this

856

740 FEDERAL REPORTER, 3d SERIES

requirement. Id. § 220(3)(e). Additionally, the New York Court of Appeals has held that workers may bring common law breach of contract suits as the intended third-party beneficiaries of such public works contracts. See Fata v. S.A. Healy Co., 289 N.Y. 401, 404–07, 46 N.E.2d 339 (1943).
The plaintiffs here pursued the latter course. To prevail in their suit, they need to show, first, that they are ‘‘laborers, workmen, or mechanics’’ within the meaning of NYLL section 220, a proposition which is not disputed here. See Erie County Indus. Dev. Agency v. Roberts, 94 A.D.2d 532, 465 N.Y.S.2d 301, 305 (Fourth Dep’t 1983), aff’d, 63 N.Y.2d 810, 482 N.Y.S.2d 267, 472 N.E.2d 43 (1984). Second, they must show that theirs was ‘‘covered’’ work—that is, work entitled to prevailing wages under the statute. See id.
Though the plaintiffs brought their claim to a court rather than to an agency, Simplex, during the course of the litigation, turned separately to the DOL. The DOL, in its December 31, 2009 opinion letter, answered the two very same questions posed above. The DOL ruled that (1) Simplex employees were workers within the meaning of the statute, and (2) testing and inspection were ‘‘maintenance’’ functions, which have long been held to be covered by NYLL section 220. Joint App’x at 330–32.
Under New York law it is clear that, though the agency made its determination separate from the litigation, its conclusion is entitled to some deference. In Samiento v. World Yacht Inc., 10 N.Y.3d 70, 854 N.Y.S.2d 83, 883 N.E.2d 990 (2008), the Court of Appeals considered a DOL determination that arose apart from the litigation. While the Court of Appeals described the DOL’s opinion letter as giving ‘‘support [for its] holding,’’ it also stated that the ‘‘Labor Department’s interpreta-

tion of a statute it is charged with enforcing is entitled to deference,’’ id. at 79, 854 N.Y.S.2d 83, 883 N.E.2d 990, and that the ‘‘construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld,’’ id. (internal quotation marks omitted). See also Barenboim v. Starbucks Corp., 21 N.Y.3d 460, 470–72, 972 N.Y.S.2d 191, 995 N.E.2d 153 (2013) (deferring to the DOL’s interpretation of a statute when it arose in an agency proceeding parallel to the litigation).
[2, 3] Applying this reasoning to the case at hand, the DOL’s ‘‘construction’’ of the statute as covering testing and inspection work is entitled to deference. See Samiento, 10 N.Y.3d at 79, 854 N.Y.S.2d 83, 883 N.E.2d 990. What remains uncertain—and what the plaintiffs and defendants here dispute—is whether deference is due, or even appropriate, not only to the DOL’s substantive construction of the statute (as covering testing and inspection work) but also to its administrative decision to apply that construction in its own enforcement prospectively only.
The district court held that deference was due to the DOL’s interpretation that testing and inspection were entitled to a prevailing wage. But it also concluded that the DOL’s decision to ‘‘require that prevailing wages be paid only prospectively’’ was due deference in any lawsuit based on the statute. Ramos, 796 F.Supp.2d at 368. Under New York law, this conclusion may be appropriate. But it would be equally possible to conclude that the DOL did not answer the question of whether or not the statute covered testing and inspection work stretching back to 2001, when this litigation began.
In this respect, it is worth noting that (a) the statute itself did not change during the relevant time, and (b) the DOL did not

RAMOS v. SIMPLEXGRINNELL LP
Cite as 740 F.3d 852 (2nd Cir. 2014)

857

say that testing and inspection work was not covered by the statute before its 2009 ruling. It said that there had been ‘‘much confusion in the past’’ about whether the DOL itself considered such work to be covered, and it only expressly held that, given this confusion, it would just apply its ruling going forward for purposes of its own in agency enforcement proceedings. Joint App’x at 332.2
Notably, the DOL did not have before it, in an agency proceeding, any question about the past. The district court, however, did face just such a question, since the plaintiffs, as they were entitled to do, had brought a common law breach of contract proceeding to the court. See Fata, 289 N.Y. at 406, 46 N.E.2d 339. The NYLL provided judicial as well as administrative enforcement routes. Thus, unlike the agency, the court had before it a substantive question of statutory interpretation that reached back to 2001. Accordingly, it would seem perfectly possible to require the district court to defer to the DOL’s construction of what the statute covered, but not to its decision relating to its own enforcement in agency proceedings.
Whatever the merits of either of these approaches, the scope of deference to be given here is unclear to us. This is especially so because—unlike a case that begins as a review proceeding under Article 78, and in which after the agency has held

a hearing and has made a determination, judicial review is limited to whether that determination was arbitrary, capricious, or an abuse of discretion, see, e.g., Toys ‘‘R’’ Us v. Silva, 89 N.Y.2d 411, 419, 654 N.Y.S.2d 100, 676 N.E.2d 862 (1996)—this case began in court. Significantly, while the Court of Appeals has made clear that some deference is due to an agency determination even when the case was begun in court, the deference the district court paid here related not solely to the substantive conclusion drawn by the agency but also to the agency’s decision to enforce the statute in its own proceedings solely in the future. Whether such deference should be given to any agency is an unsettled matter in New York courts.
[4, 5] The issue, then, seems appropriate for certification. Certification permits us to invite state courts to clarify and establish their own law. See Arizonans for Official English v. Arizona, 520 U.S. 43, 76, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (‘‘Certification procedure TTT allows a federal court faced with a novel state-law question to put the question directly to the State’s highest court, reducing [ ] delay, cutting the cost, and increasing the assurance of gaining an authoritative response.’’). The decision to certify a question or not is guided by various factors, including: ‘‘(1) whether the New York Court of Appeals has addressed the issue

2. Simplex maintains that there was no such confusion, and instead that the DOL had considered testing and inspection work not to be entitled prevailing wages before 2009. We think this a stretch. Simplex’s main justification for this conclusion is that the DOL posted the matrices that did not include testing and inspection work as ‘‘covered’’ work on its website. These matrices, however, were made by Simplex, and even if they had any authority, they were posted in 2008, while the claims here date back to at least February of 2001. Furthermore, and indeed more importantly, it is unclear that matrices posted on

the website constitute an ‘‘administrative rule, regulation, or general order,’’ State Div. of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 221, 491 N.Y.S.2d 106, 480 N.E.2d 695 (1985), qualifying as an administrative determination. Moreover, the very fact that the Commissioner of the DOL ordered the matrices removed and subsequently produced an opinion undermining the positions in the matrices supports the notion that before the DOL opinion, there was, at the very least, ‘‘confusion’’ about whether the DOL considered testing and inspection work to be covered.

858

740 FEDERAL REPORTER, 3d SERIES

and, if not, whether the decisions of other New York courts permit us to predict how the Court of Appeals would resolve it; (2) whether the question is of importance to the state and may require value judgments and public policy choices; and (3) whether the certified question is determinative of a claim before us.’’ Barenboim v. Starbucks Corp., 698 F.3d 104, 109 (2d Cir.2012).
This case meets all of the above guidelines. (1) This is an issue that, so far as we can tell, has not been addressed by the New York Court of Appeals, and the limited precedents in New York courts do not tell us how New York law would resolve it. That is, the precedents make clear that deference to the substantive ‘‘construction’’ of the statute is appropriate, but they do not touch upon whether judicial deference to agency enforcement choices is also correct. (2) The issue, moreover, is important to how administrative determinations are weighed by New York courts in a variety of areas of law in which cases of statutory interpretation are brought in the New York courts and in agency proceedings separately. (3) A New York Court of Appeals ruling would likely determine the claim before us.
[6] Furthermore, certification is ‘‘especially important’’ in cases like this one where it seems likely that, absent certification, New York courts may be ‘‘substantially deprived of the opportunity to define state law.’’ Gutierrez v. Smith, 702 F.3d 103, 116 (2d Cir.2012). Additionally, the decision of how to treat agency determinations that are made separately from a direct legal claim, and the extent to which the agency’s own prospective enforcement decision ought to bear upon that, separately brought, claim, will affect cases far beyond the particular question before us. We therefore certify this question to the New York Court of Appeals.

II.
[7] We will certify a second question, as well. The district court concluded that even if it did not defer to the DOL’s timetable for enforcement, summary judgment could still be granted to Simplex. See Ramos, 796 F.Supp.2d at 367–68. It did so because it concluded that Simplex had not contracted to pay prevailing wages for the relevant work. Id. at 368. Accordingly, the plaintiffs could not succeed on their third-party breach of contract claims. Id. But this conclusion is, itself, not clearly supported by existing New York precedents.
New York courts have held that, in order for workers to bring a third-party breach of contract claim under NYLL section 220, the contract between the employer and the municipality must expressly state that a prevailing wage will be paid. See, e.g., Fata, 289 N.Y. at 406–07, 46 N.E.2d 339 (holding that the contractual obligation to pay the prevailing wages provided by the statute provides workers with the third-party enforcement rights); Maldonado v. Olympia Mech. Piping & Heating Corp., 8 A.D.3d 348, 777 N.Y.S.2d 730, 731 (2d Dep’t 2004) (a third party claim can be brought when the ‘‘contract between the employer and the municipality expressly provides for the [prevailing] wages to be paid’’); see also Seidel v. Hoffman Floor Covering Corp., No. 09–cv– 4027(js)(wdw), 2012 WL 3064153 (E.D.N.Y. July 26, 2012) (‘‘New York courts have indicated that a breach of contract claim depends on the actual insertion of Section 220’s prevailing wage language into the contract’’).
The district court here, in denying Simplex’s motion for summary judgment on the non-testing and inspection claims, concluded that at least some of the relevant contracts did expressly bind Simplex to pay prevailing wages. Ramos, 796

RAMOS v. SIMPLEXGRINNELL LP
Cite as 740 F.3d 852 (2nd Cir. 2014)

859

F.Supp.2d at 364–65. But the court also concluded that, in light of the confusion surrounding testing and inspection work, a commitment to pay a prevailing wage did not expressly extend to testing and inspection work. Id. at 368.
We are uncertain as to whether this approach is correct under New York law. New York law does require that the parties provide in the contract that prevailing wages be paid. See, e.g., Fata, 289 N.Y. at 405–06, 46 N.E.2d 339. But it is far from clear that more than a general contractual promise to pay prevailing wages is required when the scope of section 220 is uncertain. Indeed, we are doubtful that it is. At least as plausible a reading of the statute would seem to be that when an employer agrees to be bound to pay prevailing wages pursuant to section 220 of the NYLL, that employer has agreed to pay such a wage for all work that is covered by the statute as the statute is reasonably interpreted. Simplex, that is, agreed to be bound to pay prevailing wages for every kind of work that NYLL section 220 covered. And the meaning of the statute, as determined by an appropriate agency or court interpretation, sets the boundaries of that agreement.
[8] The notion that parties entering into a contract ‘‘are presumed to accept all the rights and obligations imposed on their relationship by state (or federal) law’’ Resolution Trust Corp. v. Diamond, 45 F.3d 665, 673 (2d Cir.1995), is well-settled. Hence the district court could just as easily have concluded that Simplex, having agreed to be bound by section 220 of the NYLL, also contracted to be bound by what the statute was ultimately read to require, even if that requirement was not clear to the parties when the contract was signed.
Nevertheless, we cannot say, based on New York law as it is today, that this

reading of the parties’ obligations would prevail over that applied by the district court. This issue, therefore, seems ripe for certification. (1) The Court of Appeals has not addressed the question. (2) The issue is one of importance that will recur for both workers and employers as they enter into contracts and attempt to enforce NYLL section 220, since the answer will determine the contours of how much an express, but general agreement binds the parties. (3) The answer to this question would determine, regardless of how the first question in this case is answered, whether the plaintiffs can bring their breach of contract claims, and hence, whether they can prevail. See, e.g., Barenboim, 698 F.3d at 109 (outlining the guidelines of certification analysis). For these reasons, we also certify this question to the New York Court of Appeals.
III.
Because this case involves two important, determinative, and unsettled issues of New York State law, each of which will likely recur as courts attempt to divine the proper measure of deference to agency determinations and the requirements of public works contracts, we deem it appropriate to CERTIFY the following two questions to the New York Court of Appeals:
1. What deference, if any, should a court pay to an agency’s decision, made for its own enforcement purposes, to construe section 220 of the NYLL prospectively only, when the court is deciding the meaning of that section for a period of time arising before the agency’s decision?
2. Does a party’s commitment to pay prevailing wages pursuant to NYLL section 220 bind it to pay those wages only for work activities that were clearly understood by the par-

860

740 FEDERAL REPORTER, 3d SERIES

ties to be covered by section 220, or does it require the party to pay prevailing wages for all the work activities that are ultimately deemed by a court or agency to be ‘‘covered’’ by that portion of the statute?
The Court of Appeals may, of course, rephrase, expand, or cabin these questions as it wishes. We welcome whatever guidance it is inclined to offer.
It is hereby ORDERED that the Clerk of the Court transmit to the Clerk of the New York Court of Appeals a Certificate in the form attached, together with a copy of this opinion and a complete set of the briefs, appendices, and record filed by the parties in this Court. This panel will retain jurisdiction to decide the case once we have had the benefit of the views of the New York Court of Appeals, or once that court declines certification.
CERTIFICATE
The foregoing is hereby certified to the Court of Appeals of the State of New York pursuant to Second Circuit Local Rule 27.2 and New York Codes, Rules, and Regulations Title 22, § 500.27(a), as ordered by the United States Court of Appeals for the Second Circuit.
,
Edward KOEHL, Plaintiff–Appellant,
v.
Dr. Fredick BERNSTEIN, Medical Director, M.D., William Lee, Warden Greenhaven C.F., Robert E. Ercole, Former Warden Greenhaven C.F., Richard Cunningham, Deputy Superintendent Greenhaven C.F., Andrea

Evans, Chairwoman, Division of Parole, Francis Herman, Director, Executive Clemency Bureau Division of Parole, Lester Edwards, Secretary to the Chairwoman Division of Parole, Terrence X. Tracy, Chief Attorney Division of Parole, Andrew Harvey, Commisioner’s Hearing Officer, I. Russo, Docs, Assistant Inspector General, Joseph Brennan, Chairman, Committee on Professional Standards, Third Judicial Department, R. Hilliar, Docs IGP Supervisor, D. Sawyer, Docs Lieutenant, Hearing Officer, Brian Fischer, Commissioner of Docs, Lester Wright, Docs, Chief Medical, State of New York, Dr. Steven Weinstein, M.D., Defendant–Appellees.
Docket No. 12–3855–cv.
United States Court of Appeals, Second Circuit.
Submitted Sept. 23, 2013.
Decided Jan. 23, 2014.
Background: Pro se prisoner brought § 1983 action, alleging that he was not provided necessary medical treatment during his incarceration. The United States District Court for the Southern District of New York, Sidney H. Stein, J., 2012 WL 3264543, adopted report and recommendation of Gabriel W. Gorenstein, United States Magistrate Judge, 2012 WL 2135382, and dismissed action with prejudice as sanction for using offensive, abusive, and insulting language toward the Magistrate. Prisoner appealed.
Holding: The Court of Appeals held that district court did not abuse its discretion in dismissing action as sanction.
Affirmed.
1. Federal Courts O3610(1) A district court’s imposition of sanc-
tions for misconduct is reviewed for abuse of discretion.

 
 RAMOS v. SIMPLEXGRINNELL LP
Cite as 21 N.E.3d 237 (N.Y. 2014)

N. Y. 237

24 N.Y.3d 143
Roberto RAMOS et al., Individually and on Behalf of All Other Persons Similarly Situated, Appellants,
v.
SIMPLEXGRINNELL LP et al., Respondents.

2. Contracts O167
An agreement to comply with a statute is an agreement to comply with it as correctly interpreted, whether or not the correct interpretation was known to the parties at the time of contracting.

Court of Appeals of New York.
Oct. 23, 2014. Background: Workers who installed, maintained, repaired, tested, and inspected fire alarm and suppression systems in public and private buildings in New York brought state-court class action against employer, alleging employer did not pay them prevailing wages for their labor on public works in violation of New York’s prevailing wage law. Following removal, the United States District Court for the Eastern District of New York, Steven M. Gold, United States Magistrate Judge, 796 F.Supp.2d 346, inter alia, granted summary judgment against workers on their testing and inspection claims, and workers appealed. The Second Circuit Court of Appeals, Calabresi, Circuit Judge, 740 F.3d 852, certified questions. Holdings: The Court of Appeals, Smith, J., held that:
(1) Court of Appeals would not give agency more deference than it was asking for when construing statute, and
(2) agreement to comply with statute was an agreement to comply with it as correctly interpreted.
Questions answered.
1. Administrative Law and Procedure O431
Court of Appeals will not give an agency more deference than it is asking for when construing a statute.

Fay Law Group PLLC, Washington, D.C. (Raymond C. Fay of counsel), and Beranbaum Menken LLP, New York City (Bruce E. Menken and Jason Rozger of counsel), for appellants.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Morristown, New Jersey (Peter O. Hughes and Grant D. Petersen of counsel), for respondents.
Eric T. Schneiderman, Attorney General, New York City (Judith N. Vale, Barbara D. Underwood and Steven C. Wu of counsel), for New York State Department of Labor, amicus curiae.
S 146OPINION OF THE COURT
SMITH, J.
[1] The United States Court of Appeals for the Second Circuit has asked us what deference a court should pay to an agency’s decision, made for its own enforcement purposes, to construe a statute prospectively only. The agency in question, the New York State Department of Labor, has submitted an amicus brief to us in which it renounces any claim to deference in this litigation. This leads us to give a narrow answer to the Second Circuit’s question: We will not give the agency more deference than it claims for itself.
I In this lawsuit, the federal courts have been called on to interpret New York’s ‘‘prevailing wage’’ statute, which requires

238 N. Y.

21 NORTH EASTERN REPORTER, 3d SERIES

that certain employees upon ‘‘public works’’ be paid ‘‘not less than the prevailing rate of wages’’ as defined by law (Labor Law § 220[3][a] ). The statute has been held applicable only to workers employed in construction, maintenance or repair work (see Matter of Golden v. Joseph, 307 N.Y. 62, 66–67, 120 N.E.2d 162 [1954]; Matter of Pinkwater v. Joseph, 300 N.Y. 729, 92 N.E.2d 62 [1950] ). The dispute between the parties, to the extent relevant here, is whether workers engaged in the testing and inspection of certain fire protection equipment are covered by the statute. On December 31, 2009, the Department’s Commissioner issued an opinion letter saying that the workers were covered, but that ‘‘because there has been much confusion in the past about the Departments [sic] position as to the applicability of the prevailing wage law to this work, this opinion shall be applied prospectively to contracts that are put out for bid after January 1, 2010.’’
The Second Circuit held that the Department’s ‘‘substantive construction of the statute (as covering testing and inspection work)’’ is entitled to deference (Ramos v. SimplexGrinnell LP, 740 F.3d 852, 856 [2d Cir.2014] ). The court was in doubt, however, as to whether it should defer to the Department’s ruling that its opinion would be applied prospectively only, and it therefore certified the following question to us:
‘‘What deference, if any, should a court pay to an agency’s decision, made for its own enforcement purposes, to construe section 220 of the [New York Labor Law] prospectively only, when the court is deciding the meaning of that section for a period of S 147time arising before the agency’s decision?’’ (Id. at 859.)
In its amicus brief in this Court, the Department asserts that no deference is due to it by the courts deciding this litigation. It says that its prospectivity ruling

‘‘has no relevance to a private contract action such as this one’’ and therefore ‘‘provides no occasion for deference’’ (brief for amicus curiae New York State Department of Labor at 16, 17). We conclude that this determines our answer to the Second Circuit’s question. We will not give the agency more deference than it is asking for. It is inherent in the very idea of deference to an administrative agency that the agency has determined that its view of the law merits deference.
We add a word to make clear the very limited nature of our decision. The agency appears to assume that, while it renounces deference in ‘‘private litigation,’’ it may nevertheless seek deference when the issue is ‘‘its own enforcement of Labor Law § 220’’ (id. at 15–16). Thus, it seems that in the Department’s view a court that did not defer to the agency in a suit initially brought in court would nevertheless defer in its review of an administrative determination—so that cases might come out differently, on identical facts, depending on whether they were originally lawsuits or administrative proceedings. We have no occasion to consider the correctness of this assumption. Obviously, the fact that we will not give an agency more deference than it seeks does not mean that it cannot be given less.
II
The Second Circuit has also asked us another question, prompted by the opinion of the Federal District Court that was before it on appeal (Ramos v. SimplexGrinnell LP, 796 F.Supp.2d 346 [E.D.N.Y. 2011] ). The District Court held that, even if Labor Law § 220, correctly understood, covered testing and inspection work, plaintiffs could still not show that defendant breached its contracts with public entities to pay prevailing wages as required by section 220. The District Court’s reason-

STATE v. DONALD DD.
Cite as 21 N.E.3d 239 (N.Y. 2014)

N. Y. 239

ing was that, because of the acknowledged confusion surrounding this question until the Commissioner’s opinion was issued, defendant did not have reason to believe when it entered the contracts that its obligation included testing and inspection work (id. at 368).
The Second Circuit doubted the correctness of the District Court’s conclusion, saying:
S 148‘‘At least as plausible a reading of the statute would seem to be that when an employer agrees to be bound to pay prevailing wages pursuant to section 220 TTT that employer has agreed to pay such a wage for all work that is covered by the statute as the statute is reasonably interpreted’’ (740 F.3d at 859).
The Second Circuit therefore certified to us the question:
‘‘Does a party’s commitment to pay prevailing wages pursuant to [New York Labor Law] section 220 bind it to pay those wages only for work activities that were clearly understood by the parties to be covered by section 220, or does it require the party to pay prevailing wages for all the work activities that are ultimately deemed by a court or agency to be ‘covered’ by that portion of the statute?’’ (Id. at 859–860.)
[2] We adopt the reading that the Second Circuit found ‘‘[a]t least as plausible’’ as the alternative (id. at 859). An agreement to comply with a statute is an agreement to comply with it as correctly interpreted, whether or not the correct interpretation was known to the parties at the time of contracting. This is particularly clear where, as here, a contractual clause agreeing to comply is required by the statute itself (see Labor Law § 220[2] ). The legislature surely meant that the parties must agree to comply with the law as correctly understood, not as the parties may have misunderstood it.

The certified questions should be answered in accordance with this opinion.
Chief Judge LIPPMAN and Judges GRAFFEO, READ, PIGOTT, RIVERA and ABDUS–SALAAM concur.
Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of this Court’s Rules of Practice, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.
,
24 N.Y.3d 174
In the Matter of STATE of New York, Respondent, v.
DONALD DD., Appellant.
In the Matter of State of New York, Respondent, v.
Kenneth T., Appellant.
Court of Appeals of New York.
Oct. 28, 2014. Background: State brought proceeding under the Sex Offender Management and Treatment Act seeking civil commitment of sex offender. After nonjury trial, the Supreme Court, Queens County, Knopf, J., granted the State’s petition and directed that offender be committed to a secure treatment facility. Offender appealed. The

 
 394

773 FEDERAL REPORTER, 3d SERIES

error. Cf., e.g., United States v. Folkes, 622 F.3d 152, 158 (2d Cir.2010) (vacating and remanding sentence affected by inflated Guidelines range on plain-error review).
Accordingly, we vacate and remand for resentencing. We of course intimate no view as to the sentence that should be imposed on remand or as to the substantive reasonableness of the 288–month sentence the District Court imposed.
CONCLUSION
To summarize, we hold that, in the circumstances presented here, Sanchez’s rights were substantially affected and the fairness and integrity of the judicial proceedings were seriously compromised— that is, there was ‘‘plain error’’—where Sanchez’s mandatory minimum sentence was miscalculated and where the record reflects that this miscalculation had an impact on the sentence imposed.
For the reasons set forth above, we VACATE the sentence and REMAND the cause for resentencing consistent with this Opinion.
,
Roberto RAMOS, Frank Rodriguez, Jose Luis Maldonado, Jose Fernandez, Chris Maietta, Randy Wray, Rogelio Smith, Agban Agban, Yadira Gonzalez, Maximo Estrella, Jr., Jaime Oy Arvide, Nacim Bennekaa, Breno Zimerer, Omar Florez, individually and on behalf of all other persons similarly situated who are or were employed by SimplexGrinnell LP with respect to Public Works Project mentioned in this Complaint, Plaintiffs–Appellants,

v.
SIMPLEXGRINNELL LP, John Doe Bonding Companies, # 1–3, Defendants–Appellees.
No. 12–4901–cv.
United States Court of Appeals, Second Circuit.
Argued: Sept. 4, 2013.
Decided: Dec. 4, 2014.
Background: Workers who installed, maintained, repaired, tested, and inspected fire alarm and suppression systems in public and private buildings in New York brought state-court class action alleging that their employer did not pay them prevailing wages for their labor on public works, in violation of New York’s prevailing wage statute. Following removal, the United States District Court for the Eastern District of New York, Steven M. Gold, United States Magistrate Judge, 796 F.Supp.2d 346, entered summary judgment against workers on their testing and inspection claims, and workers appealed. The Court of Appeals, 740 F.3d 852, certified questions, and the New York Court of Appeals, 24 N.Y.3d 143, 21 N.E.3d 237, answered questions.
Holding: The Court of Appeals held that employer was required to pay its workers prevailing wages for testing and inspection work performed pursuant to public works contracts.
Vacated and remanded.
Labor and Employment O2304 Under New York law, employer was
required to pay its workers prevailing wages for testing and inspection work performed pursuant to public works contracts, even though it was not clear that testing and inspection work fell under scope of prevailing wage statute at time

RAMOS v. SIMPLEXGRINNELL LP
Cite as 773 F.3d 394 (2nd Cir. 2014)

395

parties entered into public works contracts, and New York Department of Labor (NYDOL) construed statute to cover testing and inspection work only prospectively; NYDOL renounced any claim to deference, and statute, as correctly interpreted, covered testing and inspection work. N.Y.McKinney’s Labor Law § 220.
Raymond C. Fay (Taryn Wilgus Null, on the brief), Mehri & Skalet, PLLC, Washington, D.C., Bruce E. Menken and Jason Rozger, Beranbaum Menken LLP, New York, NY, for Plaintiffs–Appellants.
Edward Cerasia, II (Dominick C. Capozzola, on the brief), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York, NY, for Defendants–Appellees.
Before: CALABRESI, LIVINGSTON and CHIN, Circuit Judges.
PER CURIAM:
Plaintiffs–Appellants appeal from portions of a June 21, 2011 memorandum and order of the United States District Court for the Eastern District of New York (Gold, M.J.), granting summary judgment in favor of Defendants–Appellees SimplexGrinnell LP (‘‘Simplex’’) and John Doe Bonding Companies # 1–3 (collectively ‘‘Defendants’’), on breach of contract claims relating to Simplex’s failure to pay Plaintiffs–Appellants prevailing wages for testing and inspection work they performed. We set forth the underlying facts and procedural history of this case in Ramos v. SimplexGrinnell LP, 740 F.3d 852 (2d Cir.2014) [hereinafter ‘‘SimplexGrinnell I ’’]. In SimplexGrinnell I, we certified two questions: (1) ‘‘whether a court should give deference not only to an agency’s substantive interpretation of a statute arising from an unrelated proceeding but

also to its decision to enforce that interpretation only prospectively’’; and (2) ‘‘whether contracts committing parties to pay prevailing wages pursuant to section 220 of the New York Labor Law (‘NYLL’) need to specify—when the scope of the statute’s coverage is unclear to the parties—what particular work the prevailing wages will be paid for.’’ Id. at 853. The Court of Appeals accepted certification. Ramos v. SimplexGrinell LP, 22 N.Y.3d 1102, 982 N.Y.S.2d 62, 5 N.E.3d 34 (2014). The Court of Appeals answered the first question narrowly, holding that it ‘‘will not give the agency more deference than it claims for itself.’’ Ramos v. SimplexGrinnell LP, 24 N.Y.3d 143 (2014), available at 21 N.E.3d 237 (2014) [hereinafter ‘‘SimplexGrinnell II ’’]. Because the agency in question, the New York Department of Labor (‘‘NYDOL’’), has ‘‘renounce[d] any claim to deference in this litigation,’’ id., 21 N.E.3d at 237, in this case the agency’s decision to construe NYLL section 220 to cover testing and inspection work only prospectively is due no deference. On the second question, the Court of Appeals held that ‘‘[a]n agreement to comply with a statute is an agreement to comply with it as correctly interpreted, whether or not the correct interpretation was known to the parties at the time of contracting.’’ Id., 21 N.E.3d at 239.
Given the Court of Appeals’ responses to the questions we certified, we vacate the portion of the district court’s decision granting Simplex’s motion to dismiss Plaintiffs’ claims relating to testing and inspection work and remand the case to the district court. As we explained in SimplexGrinnell I, it is undisputed that Plaintiffs constitute ‘‘laborers, workmen, or mechanics’’ within the meaning of NYLL section 220. 740 F.3d at 856 (internal quotation marks omitted). In addition, we must give deference to NYDOL’s inter-

396

773 FEDERAL REPORTER, 3d SERIES

pretation that testing and inspection work falls within the scope of NYLL section 220, id., and because that interpretation is not ‘‘irrational or unreasonable,’’ it must be upheld. Samiento v. World Yacht Inc., 10 N.Y.3d 70, 854 N.Y.S.2d 83, 883 N.E.2d 990, 995 (2008) (internal quotation marks omitted). Thus, it is clear that the testing and inspection work done by Plaintiffs fell under the scope of NYLL section 220. And even though this was not clear at the time that the parties entered into the public works contracts at issue here, the Court of Appeals has now made clear that the contracts nevertheless required compliance with NYLL section 220 as correctly interpreted, meaning that prevailing wages were required to be paid for the testing and inspection work. SimplexGrinnell II, 21 N.E.3d at 238.
Plaintiffs argue that rather than vacating and remanding the portion of the judgment of the district court regarding Plaintiffs’ claims related to the testing and inspection work, we should decide the issue of damages ourselves and award a total of $13,086,761 in damages, with amounts for each class member calculated by updating their expert’s damages report to reflect the additional amounts of interest required by New York law.1 Plaintiffs note that the settlement reached by the parties with regard to Plaintiffs’ other claims precludes Defendants from challenging the district court’s decision denying Simplex’s motion to strike the report of Plaintiffs’ expert, Dr. Crawford. Plaintiffs essentially argue that because their expert’s report is admissible, there are no material issues of fact regarding damages. But while Defendants can no longer challenge the reliability of Dr. Crawford, they are still free to challenge his conclusions. And as the district court explained, Sim-

plex has pointed out certain inconsistencies in Dr. Crawford’s report and raised a question of fact regarding whether Dr. Crawford accurately distinguished hours spent on testing and inspection work from other labor hours. Accordingly, material issues of fact remain with regard to the issue of damages and judgment is not proper at this stage.
For the foregoing reasons, the June 21, 2011 memorandum and order of the district court is hereby VACATED in part and REMANDED.
,
HUO QIANG CHEN, Petitioner,
v. Eric H. HOLDER, Jr., United States
Attorney General, Respondent.
Docket No. 13–2030–ag.
United States Court of Appeals, Second Circuit.
Argued: Aug. 25, 2014. Decided: Dec. 5, 2014. Background: Alien, citizen of China, applied for asylum and withholding of removal. Immigration Judge (IJ) Sandy K. Hom denied those applications. Alien appealed. Board of Immigration Appeals (BIA) affirmed. Alien petitioned for judicial review. Holdings: The Court of Appeals, Reena Raggi, Circuit Judge, held that: (1) substantial evidence supported finding by BIA that alien did not demonstrate that imposition of severe fine for resis-

1. Plaintiffs argue in the alternative that we should remand with direction to award the

specific amount of testing and inspection damages set forth above.