Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 1 of 21
CLOSED,ECF,MEDT1
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:10−cv−05236−RJS

Goodman v. City of New York et al Assigned to: Judge Richard J. Sullivan Cause: 42:1983 Civil Rights (Employment Discrimination)
Plaintiff

Date Filed: 07/09/2010 Date Terminated: 01/21/2014 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

David Goodman

represented by Arastu Kabeer Chaudhury U.S. Attorney Office SDNY 86 Chambers Street New York, NY 10007 (212) 637−2633 Fax: (212) 637−2750 Email: arastu.chaudhury@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tara Marie La Morte U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2746 Fax: (212) 637−2730 Email: tara.lamorte2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael Doherty

represented by Arastu Kabeer Chaudhury (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tara Marie La Morte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Robert D. Black

represented by Arastu Kabeer Chaudhury (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tara Marie La Morte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant City of New York

represented by Alexis Downs New York City Law Department 100 Church Street, Room 4−114

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New York, NY 10007 212−356−2507 Fax: 212−356−1148 Email: adowns@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alicia Hayley Welch NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212)−788−6760 Fax: (212)−788−0940 Email: aliciahwelch@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keri Reid McNally New York City Law Department 100 Church Street, 3rd Fl. Room 3−310 New York, NY 10007 (212) 788−0922 Fax: (212) 788−8877 Email: kerimcnally@me.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Eldridge Stockman Corporation Counsel Office City of New York 100 Church Street New York, NY 10007 (212)−788−1177 Fax: (212)−788−9776 Email: bstockma@law.nyc.gov ATTORNEY TO BE NOTICED
Kathleen Marie Comfrey NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 212−848−4178 Fax: 646−848−4178 Email: kcomfrey@law.nyc.gov ATTORNEY TO BE NOTICED
Keith Michael Snow NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 212 788−0581 Fax: 212 788−8900 Email: ksnow@law.nyc.gov ATTORNEY TO BE NOTICED
Laura C. Rowntree Morgan Lewis & Bockius, LLP (NY) 101 Park Avenue New York, NY 10178 (212)−309−6817 Fax: (212) 309−6001

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Email: laura.rowntree@morganlewis.com ATTORNEY TO BE NOTICED

Defendant New York City Police Department

represented by Alexis Downs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alicia Hayley Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keri Reid McNally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Eldridge Stockman (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED

Keith Michael Snow (See above for address) ATTORNEY TO BE NOTICED

Laura C. Rowntree (See above for address) ATTORNEY TO BE NOTICED

Defendant New York City Police Pension Fund

represented by Alexis Downs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alicia Hayley Welch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keri Reid McNally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Eldridge Stockman (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED

Keith Michael Snow (See above for address) ATTORNEY TO BE NOTICED

Laura C. Rowntree

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(See above for address) ATTORNEY TO BE NOTICED

Counter Claimant
New York City Police Department TERMINATED: 02/22/2012

represented by Alexis Downs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alicia Hayley Welch (See above for address)

Benjamin Eldridge Stockman (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED

Keith Michael Snow (See above for address) ATTORNEY TO BE NOTICED

Keri Reid McNally (See above for address)

Counter Claimant
City of New York TERMINATED: 02/22/2012

represented by Alexis Downs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alicia Hayley Welch (See above for address)

Benjamin Eldridge Stockman (See above for address) ATTORNEY TO BE NOTICED

Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED

Keith Michael Snow (See above for address) ATTORNEY TO BE NOTICED

Keri Reid McNally (See above for address)

Counter Claimant
New York City Police Pension Fund TERMINATED: 02/22/2012

represented by Alexis Downs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alicia Hayley Welch (See above for address)

Benjamin Eldridge Stockman (See above for address) ATTORNEY TO BE NOTICED

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Kathleen Marie Comfrey (See above for address) ATTORNEY TO BE NOTICED
Keith Michael Snow (See above for address) ATTORNEY TO BE NOTICED
Keri Reid McNally (See above for address)

V.
Counter Defendant
David Goodman TERMINATED: 02/22/2012

represented by Tara Marie La Morte (See above for address)

Date Filed 07/09/2010 07/09/2010 07/09/2010 07/09/2010 07/20/2010 07/29/2010
08/02/2010 08/02/2010
08/02/2010
08/19/2010
08/26/2010

# Docket Text
1 COMPLAINT against City of New York, New York City Police Department, New York City Police Pension Fund. Document filed by David Goodman.(mro) (mro). (Entered: 07/09/2010)
SUMMONS ISSUED as to City of New York, New York City Police Department, New York City Police Pension Fund. (mro) (Entered: 07/09/2010)
Magistrate Judge Henry B. Pitman is so designated. (mro) (Entered: 07/09/2010)
Case Designated ECF. (mro) (Entered: 07/09/2010)
2 NOTICE OF APPEARANCE by Alicia Hayley Welch on behalf of City of New York, New York City Police Department, New York City Police Pension Fund (Welch, Alicia) (Entered: 07/20/2010)
3 ENDORSED LETTER: addressed to Judge Richard J. Sullivan from Alicia H. Welch dated 7/28/2010 re: Accordingly, defendants respectfully request an extension of time until September 3, 2010 to respond to the complaint. ENDORSEMENT: This request is GRANTED. It is hereby ordered that Defendants must answer or otherwise respond to the complaint by no later than September 3, 2010. So Ordered. (Signed by Judge Richard J. Sullivan on 7/28/2010) (js) (Entered: 07/29/2010)
4 AFFIDAVIT OF SERVICE of Summons and Complaint. City of New York served on 7/16/2010, answer due 9/3/2010. Service was accepted by Dimitri Aronov. Document filed by David Goodman. (La Morte, Tara) (Entered: 08/02/2010)
5 AFFIDAVIT OF SERVICE of Summons and Complaint. New York City Police Department served on 7/16/2010, answer due 9/3/2010. Service was accepted by Dimitri Aronov. Document filed by David Goodman. (La Morte, Tara) (Entered: 08/02/2010)
6 AFFIDAVIT OF SERVICE of Summons and Complaint. New York City Police Pension Fund served on 7/14/2010, answer due 9/3/2010. Service was accepted by Steven Welsome. Document filed by David Goodman. (La Morte, Tara) (Entered: 08/02/2010)
7 ORDER: Initial Status Conference set for 9/8/2010 at 09:30 AM in Courtroom 21C, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Sullivan. By 9/1/2010 at 4:00 p.m., the parties shall jointly submit a status letter, not to exceed fives pages. By Wednesday, 9/1/2010 at 4:00 p.m., the parties shall submit to the Court a proposed case management plan and scheduling order. (Signed by Judge Richard J. Sullivan on 8/19/2010) (tro) (Entered: 08/20/2010)
8 ORDER: The Court is in receipt of a letter, dated August 25, 2010, from Defendants, requesting leave to file a motion to dismiss the complaint. Pursuant to the Court's Individual Practices, Rule 2A, Plaintiff shall respond to this letter by no later than

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09/09/2010
10/04/2010 10/08/2010 10/08/2010 10/08/2010 11/08/2010 11/19/2010 06/14/2011
07/07/2011 07/11/2011

August 30, 2010. Plaintiff shall email his letter to sullivannysdchambers@nysd.uscourts.gov. The initial conference scheduled for Wednesday, September 8, 2010 shall also serve as a pre−motion conference. The conference, however, shall take place at 3:00 p.m., rather than at 9:30 am. Given Defendants' contemplated motion to dismiss, the parties shall not make the submissions described in the Court's August 19, 2010 Order at this time. (Initial Conference/Pre−Motion Conference set for 9/8/2010 at 03:00 PM before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 8/25/10) (db) (Entered: 08/26/2010)
9 ORDER: As stated on the record at today's conference, the parties shall adhere to the following schedule with respect to Defendants' motion to dismiss: (l) Defendants shall file their motion and supporting papers by October 8, 2010; (2) Plaintiff shall file his opposition papers by November 8, 2010; and (3) Defendants shall file their reply papers by no later than November 19, 2010. The parties are reminded to follow the Court's Individual Practices, Rule 2, with regard to motion papers. (Signed by Judge Richard J. Sullivan on 9/8/2010) (jpo) (Entered: 09/09/2010)
10 TRANSCRIPT of proceedings held on September 8, 2010 4:00 p.m. before Judge Richard J. Sullivan. (ajc) (Entered: 10/06/2010)
11 FIRST MOTION to Dismiss (Notice of Motion). Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. Responses due by 11/8/2010(Welch, Alicia) (Entered: 10/08/2010)
12 FIRST MEMORANDUM OF LAW in Support re: 11 FIRST MOTION to Dismiss (Notice of Motion).. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Welch, Alicia) (Entered: 10/08/2010)
13 DECLARATION of Assistant Corporation Counsel Alicia H. Welch in Support re: 11 FIRST MOTION to Dismiss (Notice of Motion).. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Exhibit A−H)(Welch, Alicia) (Entered: 10/08/2010)
14 MEMORANDUM OF LAW in Opposition re: 11 FIRST MOTION to Dismiss (Notice of Motion).. Document filed by David Goodman. (La Morte, Tara) (Entered: 11/08/2010)
15 FIRST REPLY MEMORANDUM OF LAW in Support re: 11 FIRST MOTION to Dismiss (Notice of Motion).. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Welch, Alicia) (Entered: 11/19/2010)
16 ORDER: Given the similarity of the legal issues presented by these cases, and the fact that the parties in each action are represented by the same counsel, Defendants' motion to dismiss the Doherty action is DEEMED MADE. The Court will therefore construe the parties' briefing on the Goodman motion to dismiss as applying equally to Defendant's motion to dismiss the Doherty action. If either party to the Doherty action wishes to supplement the submissions it made in the Goodman action, it may do so by July 8, 2011. Additionally, the status conference in the Doherty action, currently scheduled for July 15, 2011, at 10:30 a.m., is adjourned until Friday, July 22,2011, at 2:30p.m. At that time, the Court will hear argument from the parties on Defendants' motions. Finally, the parties in the Doherty action need not submit a joint letter or proposed case management plan in advance of the conference. (Signed by Judge Richard J. Sullivan on 6/13/2011) (jpo) (Entered: 06/14/2011)
17 ORDER. IT IS HEREBY ORDERED that the oral argument currently scheduled for July 22, 2011, is rescheduled for Wednesday, July 20, 2011, at 10:00 a.m. in Courtroom 21C. (Oral Argument set for 7/20/2011 at 10:00 AM in Courtroom 21C, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 7/6/2011) (rjm) (Entered: 07/07/2011)
18 ORDER: It is hereby ordered that Plaintiff Doherty may submit a response to defendants' supplemental briefing by July 22, 2011, and Defendants may submit reply papers by August 1, 2011. Additionally, the oral argument scheduled for July 20, 2011, is adjourned until Friday, August 19, 2011, at 2:00 p.m. in Courtroom 21C. So

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09/26/2011
09/26/2011 10/05/2011
10/14/2011 10/14/2011 10/17/2011 10/21/2011 10/28/2011
11/10/2011 11/28/2011

Ordered (Signed by Judge Richard J. Sullivan on 7/11/2011) (js) (Entered: 07/11/2011)
19 For the foregoing reasons, Defendants motions to dismiss are denied. Accordingly,It is hereby ordered that, by October 19, 2011, the parties shall submit a joint letter, not to exceed five pages, providing the following information in separate paragraphs: (1) a brief description of any discovery that has already taken place, and that which will be necessary for the parties to engage in meaningful settlement negotiations; (2) a list of all prior settlement discussions, including the date, the parties involved, and the approximate duration of such discussions, if any; and (3) the estimated length of trial IT IS FURTHER ORDERED that, by October 19, 2011, the parties shall submit a proposed case management plan and scheduling order, which is available at www.nysd.uscourts.gov/judge/sullivan. IT IS FURTHER ORDERED that the parties shall appear for a status conference on October 28, 2011, at 9:30 a.m. in Courtroom 21 C of the United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York.The Clerk of Court is respectfully directed to terminate the motions located at Doc. No.11 in Goodman v. NYC, 10 Civ. 5236, and at Doc. No. 11 in Doherty v. NYC, 11 Civ.3432. (Signed by Judge Richard J. Sullivan on 9/26/2011) (js) (Entered: 09/26/2011)
Set/Reset Deadlines:, Set/Reset Hearings:( Status Conference set for 10/28/2011 at 09:30 AM in Courtroom 21C, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Sullivan.) (js) (Entered: 09/26/2011)
20 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Diana Goell Voigt dated 10/5/11 re: Counsel for the City Defendants writes to request an extension of time from 10/11/11 to 10/14/11 to serve and file their response to the complaints. ENDORSEMENT: So ordered. City of New York answer due 10/14/2011; New York City Police Department answer due 10/14/2011; New York City Police Pension Fund answer due 10/14/2011. (Signed by Judge Richard J. Sullivan on 10/5/2011) (mro) (Entered: 10/06/2011)
21 NOTICE OF APPEARANCE by Keri Reid McNally on behalf of City of New York, New York City Police Department, New York City Police Pension Fund (McNally, Keri) (Entered: 10/14/2011)
22 ANSWER to 1 Complaint., COUNTERCLAIM against David Goodman. Document filed by New York City Police Department, City of New York, New York City Police Pension Fund.(McNally, Keri) (Entered: 10/14/2011)
23 ORDER OF AUTOMATIC REFERRAL TO MEDIATION (See M−10−468 Order filed January 3, 2011). Please reference the following when corresponding with the Mediation Office. E−mail MediationOffice@nysd.uscourts.gov, telephone (212) 805−0643, and facsimile (212) 805−0647. Mediator to be Assigned by 10/27/2011. Mediator Expertise Request due by 10/24/2011. (Signed by Judge Loretta A. Preska on 01/03/2011) (sc) (Entered: 10/17/2011)
NOTICE OF MEDIATOR ASSIGNMENT − Notice of assignment of mediator. Mediator Schedule due by 11/21/2011.(ms) (Entered: 10/21/2011)
24 CASE MANAGEMENT PLAN AND SCHEDULING ORDER: All parties do not consent to disposition of this case by a Magistrate Judge, pursuant to 28 U.S.C. 636(c). This case is not to be tried to a jury. Deposition due by 4/6/2012. All Discovery due by 4/6/2012. Referral to the Southern District's Mediation Program. Parties have conferred and their present best estimate of the length of trial is 2 days, and as further set forth. (Signed by Judge Richard J. Sullivan on 10/28/2011) (rjm) (Entered: 10/31/2011)
25 ORDER: that the parties shall appear for a pre−motion conference on Wednesday, November 30, 2011, at 2:30 p.m. (Signed by Judge Richard J. Sullivan on 11/10/2011) (pl) (Entered: 11/10/2011)
26 ORDER: Pre−Motion Conference rescheduled for 12/9/2011 at 03:00 PM before Judge Richard J. Sullivan. (Signed by Judge Richard J. Sullivan on 11/28/2011) (ft) (Entered: 11/28/2011)

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12/07/2011
12/07/2011
12/09/2011
12/09/2011 12/09/2011 12/09/2011 12/16/2011 12/16/2011 12/16/2011 01/10/2012 01/13/2012 01/21/2012

27 TRANSCRIPT of Proceedings re: Argument held on 8/19/2011 before Judge Richard J. Sullivan. Court Reporter/Transcriber: Tara Jones, (212) 805−0300. 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 1/3/2012. Redacted Transcript Deadline set for 1/12/2012. Release of Transcript Restriction set for 3/9/2012.(McGuirk, Kelly) (Entered: 12/07/2011)
28 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Argument proceeding held on 8/19/11 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 12/07/2011)
29 ORDER: As stated on the record at the December 9, 2011 conference, briefing on Plaintiffs' motion to dismiss Defendants' counterclaims shall adhere to the following schedule. Additionally, as stated on the record, all discovery deadlines are extended by thirty days. The post−discovery conference currently scheduled for April 20,2012, is adjourned until May 23, 2012, at11:00 a.m. Motions due by 12/16/2011. Responses due by 1/13/2012 Replies due by 1/23/2012. Oral Argument set for 2/22/2012 at 10:30 AM before Judge Richard J. Sullivan. (Signed by Judge Richard J. Sullivan on 12/9/2011) (rdz) (Entered: 12/12/2011)
30 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Keri R. McNally dated 12/9/2011 re: The Mediation Office has asked the parties to secure the Court's written authorization to appoint the Goodman mediator to the Doherty matter and allow both cases to be mediated together. Thank you in advance for your consideration of this request. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Sullivan on 12/9/2011) (rdz) (Entered: 12/12/2011)
Minute Entry for proceedings held before Judge Richard J. Sullivan: Status Conference held on 12/9/2011. The conference lasted approximately twenty minutes. (mro) (Entered: 12/12/2011)
Transmission to Mediation Clerk. Transmitted re: 30 Endorsed Letter,, to the Mediation Clerk for case processing. (rdz) (Entered: 12/12/2011)
31 MOTION to Dismiss for Lack of Jurisdiction or for failure to state a claim for relief, Defendants' counterclaims. Document filed by David Goodman. Responses due by 1/13/2012(La Morte, Tara) (Entered: 12/16/2011)
32 MEMORANDUM OF LAW in Support re: 31 MOTION to Dismiss for Lack of Jurisdiction or for failure to state a claim for relief, Defendants' counterclaims.. Document filed by David Goodman. (La Morte, Tara) (Entered: 12/16/2011)
33 DECLARATION of Tara M. La Morte in Support re: 31 MOTION to Dismiss for Lack of Jurisdiction or for failure to state a claim for relief, Defendants' counterclaims.. Document filed by David Goodman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(La Morte, Tara) (Entered: 12/16/2011)
34 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Tara M. La Morte dated 1/10/12 re: Counsel for the plaintiffs requests that the Court enter a partial stay of discovery on defendants' counterclaims. ENDORSEMENT: The request is granted. Discovery is hereby stayed on Defendants' counterclaims pending resolution of Plaintiffs' motion to dismiss. (Signed by Judge Richard J. Sullivan on 1/10/2012 ***as per Chambers) (mro) (Entered: 01/11/2012)
35 MEMORANDUM OF LAW in Opposition re: 31 MOTION to Dismiss for Lack of Jurisdiction or for failure to state a claim for relief, Defendants' counterclaims.. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Affidavit of Keri R. McNally)(McNally, Keri) (Entered: 01/13/2012)
36 ENDORSED LETTER addressed to Judge Richard J Sullivan from Tara M LaMorte dated 1/20/2012 re: Request for a 2 page extension o the 10 page limit for plaintiff's

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01/23/2012 01/23/2012 02/01/2012 02/22/2012 02/22/2012
02/22/2012 02/22/2012 02/27/2012 02/27/2012

reply memorandum. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Sullivan on 1/20/2012) (cd) (Entered: 01/23/2012)
37 REPLY MEMORANDUM OF LAW in Support re: 31 MOTION to Dismiss for Lack of Jurisdiction or for failure to state a claim for relief, Defendants' counterclaims.. Document filed by David Goodman. (La Morte, Tara) (Entered: 01/23/2012)
38 REPLY AFFIDAVIT of Tara M. La Morte in Support re: 31 MOTION to Dismiss for Lack of Jurisdiction or for failure to state a claim for relief, Defendants' counterclaims.. Document filed by David Goodman. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14)(La Morte, Tara) (Entered: 01/23/2012)
39 STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Richard J. Sullivan on 2/1/2012) (lmb) (Entered: 02/01/2012)
40 ORDER: For the reasons set forth on the record at the February 22, 2012 conference, the Court has revised the discovery schedule in the above−captioned matters. Accordingly, the mediation previously scheduled to be held by March 3, 2012 shall take place on or before May 2, 2012. (Signed by Judge Richard J. Sullivan on 2/22/2012) (mro) (Entered: 02/23/2012)
41 ORDER granting 31 Motion to Dismiss for Lack of Jurisdiction. For the reasons set forth on the record at the February 22, 2012 conference, Plaintiffs' motion to dismiss Defendants' counterclaims is HEREBY GRANTED. The Clerk of the Court is respectfully directed to terminate the motion located at Doc. No. 27 in Case No. 11 Civ. 3432 and the motion located at Doc. No. 31 in Case No.10 Civ. 5236. Additionally, the Court is in receipt of a joint letter from the parties, dated February 17, 2012, regarding three discovery issues requiring the Court's attention. For the reasons stated on the record at the February 22, 2012 conference, Defendants' objection to Plaintiffs' Request for Production 19 is OVERRULED; Defendants' objections to Plaintiffs' discovery "Requests for Production 27 and 28 and Interrogatories 3 and 4" are SUSTAINED. Finally, the parties requested a "60 day extension of the discovery deadlines" in the above−captioned matters. The Court grants the parties' request. Accordingly, IT IS HEREBY ORDERED that the post−discovery conference scheduled for May 23, 2012 is adjourned and rescheduled for July 27, 2012 at 10:00 a.m. IT IS FURTHER ORDERED that the existing discovery schedule shall be amended as follows: (1) deadlines for fact discovery and scheduling a mediation shall change from March 3, 2012 to May 2, 2012; (2) the deadline to identify experts and make Rule 26(b)(2) disclosures shall change from March 19, 2012 to May 18, 2012; (3) the deadline to disclose and serve rebuttal expert reports shall change from April 16, 2012 to June 15, 2012; and (4) the deadlines for concluding all discovery and for submitting pre−motion letters shall change from May 7, 2012 to July 6, 2012. (Signed by Judge Richard J. Sullivan on 2/22/2012) (mro) (Entered: 02/23/2012)
Set/Reset Deadlines: ( Discovery due by 7/6/2012., Fact Discovery due by 5/2/2012.), Set/Reset Hearings:( Status Conference set for 7/27/2012 at 10:00 AM before Judge Richard J. Sullivan.) (mro) (Entered: 02/23/2012)
Minute Entry for proceedings held before Judge Richard J. Sullivan: Oral Argument held on 2/22/2012 re: 31 MOTION to Dismiss for Lack of Jurisdiction or for failure to state a claim for relief, Defendants' counterclaims. filed by David Goodman. (jfe) (Entered: 02/24/2012)
42 TRANSCRIPT of Proceedings re: Conference held on 10/28/2011 before Judge Richard J. Sullivan. Court Reporter/Transcriber: Carol Ganley, (212) 805−0300. 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 3/22/2012. Redacted Transcript Deadline set for 4/2/2012. Release of Transcript Restriction set for 6/1/2012.(McGuirk, Kelly) (Entered: 02/27/2012)
43 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 10/28/2011 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this

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04/24/2012
04/25/2012
05/04/2012 05/08/2012 05/08/2012 05/14/2012 05/31/2012 06/01/2012

transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 02/27/2012)
44 ORDER: The Court is in receipt of Plaintiffs' letter, dated 4/23/2012, requesting an extension of the discovery deadlines in this action in light of (1) "Plaintiffs' intention to seek leave to file a motion to amend Goodman's Complaint," (2) the amount of discovery remaining to be completed," and (3) "counsel's current trial schedule." Although Plaintiffs proposed that "the parties be permitted to continue discovery pending the Court's disposition of Plaintiffs' pre−motion letter," Plaintiffs proposed no date by which they would submit their pre−motion letter and no date by which discovery would be extended. Accordingly, Plaintiffs' request is DENIED without prejudice for renewal. Should Plaintiffs renew their request, they should indicate the date by which they intend to submit their pre−motion letter and propose an amended discovery schedule. (Signed by Judge Richard J. Sullivan on 4/23/2012) (tro) (Entered: 04/24/2012)
45 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Tara M. La Morte dated 4/25/2012 re: The parties propose the following deadlines: Deadline to submit pre−motion letter: 5/2/12. Fact discovery deadline for individual claims: 6/25/12. Deadline to identify and make expert disclosures for individual claims: 7/11/12. Deadline to serve rebuttal expert reports for individual claims: 8/8/12. Deadline for expert discovery and submitting pre−motion letters for individual claims: 8/29/12. Postponement of July 27 post−discovery conference: To be set by the Court. ENDORSEMENT: Plaintiffs' request is GRANTED. The Court adopts Plaintiffs' proposed schedule. Additionally, IT IS HEREBY ORDERED that the post−discovery conference scheduled for July 27, 2012 is adjourned until Wednesday, September 19, 2012 at 10:00 a.m. ( Expert Discovery due by 8/29/2012., Fact Discovery due by 6/25/2012., Status Conference set for 9/19/2012 at 10:00 AM before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 4/25/2012) (jfe) (Entered: 04/26/2012)
46 ENDORSED LETTER addressed to Judge Richard J Sullivan from Keri Reid McNally dated 5/4/2012 re: We respectfully request that the Court issue an order confirming that the deadline for scheduling mediation−like the fact discovery deadline−has been adjourned to June 25, 2012. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Sullivan on 5/4/2012) (cd) (Entered: 05/04/2012)
47 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/9/2011 before Judge Richard J. Sullivan. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. 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 6/1/2012. Redacted Transcript Deadline set for 6/11/2012. Release of Transcript Restriction set for 8/9/2012.(McGuirk, Kelly) (Entered: 05/08/2012)
48 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/9/11 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/08/2012)
49 ORDER: The Court is in receipt of Plaintiffs' letter, dated May 2, 2012, requesting leave "to amend the Complaint to add class allegations," and Defendants' letter, dated May 14, 2012, opposing Plaintiffs' request. Accordingly, IT IS HEREBY ORDERED that the parties appear for a pre−motion conference on June 1, 2012 at 9:30a.m. in Courtroom 21C. (Signed by Judge Richard J. Sullivan on 5/14/2012) (js) (Entered: 05/15/2012)
50 NOTICE OF APPEARANCE by Arastu Kabeer Chaudhury on behalf of David Goodman (Chaudhury, Arastu) (Entered: 05/31/2012)
51 ORDER: Accordingly, after considering the parties' respective arguments, and for the reasons stated on the record at the June 1, 2012 conference, the Court grants Plaintiffs' request as to all three topics listed above. Also as stated on the record at the June 1,

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 11 of 21

06/01/2012 06/06/2012
06/13/2012 06/14/2012
06/14/2012 06/15/2012 06/15/2012

2012 conference, counsel for Defendants shall submit a letter to the Court no later than Tuesday, June 5, 2012, indicating whether it thinks briefing is necessary on Plaintiffs' contemplated motion to amend the Complaint to add class allegations. However, after considering the comprehensive arguments the parties set forth in their pre−motion letters and made at the June 1, 2012 conference, and as stated on the record at that conference, the Court is likely to grant Plaintiffs' contemplated motion. Additionally, for the reasons stated on the record at the June 1, 2012 conference, the Court denies Defendants' request that the Court certify any of the issues contained in its September 26, 2011 Order for immediate interlocutory appeal under 28 U.S.C. § 1292(b). (Signed by Judge Richard J. Sullivan on 6/1/2012) (lmb) (Entered: 06/01/2012)
Minute Entry for proceedings held before Judge Richard J. Sullivan: Pre−Motion Conference held on 6/1/2012. (jfe) (Entered: 06/05/2012)
52 ORDER: IT IS HEREBY ORDERED the parties shall adhere to the following briefing and oral argument schedule: June 15, 2012 − Plaintiffs shall submit their motion for leave to amend the Complaints and their accompanying brief, and Defendants shall submit their cross−motion regarding their request for interlocutory appeal and their accompanying brief; June 29, 2012 − The parties shall submit their respective opposition briefs; July 6, 2012 − Plaintiffs shall submit their respective reply briefs; and July 25, 2012 − The parties shall appear for oral argument regarding their respective motions at 10:00 a.m. in Courtroom 21C. Additionally, in their June 5 Letter, Defendants request "that the Court reconsider its ruling at the June 1, 2012 conference that the discovery [P]laintiffs requested concerning overtime predictions, forecasts, budgets, and expenditures, NYPD−wide and within [P]laintiffs' commands is relevant and [D]efendants must respond to the requests." For the reasons stated on the record at the June 1, 2012 conference, and in light of the fact that Defendants have failed to cite to any "controlling decisions or factual matters that were put before" the Court at the conference but that were overlooked, the Court DENIES Defendants' request for reconsideration. ( Cross Motions due by 6/15/2012., Motions due by 6/15/2012., Responses due by 6/29/2012, Replies due by 7/6/2012., Oral Argument set for 7/25/2012 at 10:00 AM in Courtroom 21C, 500 Pearl Street, New York, NY 10007 before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 6/6/2012) (jfe) (Entered: 06/06/2012)
53 NOTICE OF CHANGE OF ADDRESS by Arastu Kabeer Chaudhury on behalf of David Goodman. New Address: U.S. Attorney's Office, SDNY, 86 Chambers Street, Third Floor, New York, New York, USA 10007, 212−637−2633. (Chaudhury, Arastu) (Entered: 06/13/2012)
54 ORDER: IT IS HEREBY ORDERED that the parties shall adhere to the following revised deadlines and dates: Oral argument on the parties' pending motions by 7/31/12 at 2:30 p.m. Fact discovery deadline for individual claims by 7/31/12. Deadline to schedule mediation with the S.D.N.Y. Mediation Office by 7/31/12. Deadline to identify and make expert disclosures for individual claims by 8/17/12. Deadline to serve rebuttal expert reports for individual claims by 9/14/12. Deadline for expert discovery by 10/5/12. Deadline for submitting pre−motion letters for individual claims by 10/5/12. Post−discovery conference by 10/26/12 at 10:00 a.m. ( Expert Discovery due by 10/5/2012., Fact Discovery due by 7/31/2012., Oral Argument set for 7/31/2012 at 02:30 PM before Judge Richard J. Sullivan., Status Conference set for 10/26/2012 at 10:00 AM before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 6/13/2012) (jfe) (Entered: 06/14/2012)
Set/Reset Mediation Case Tracking Deadlines: Mediator Schedule due by 7/31/2012. (jge) (Entered: 06/25/2012)
55 MOTION for Leave to Appeal September 26, 2011 Interlocutory Order Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. Return Date set for 7/31/2012 at 02:30 PM.(McNally, Keri) (Entered: 06/15/2012)
56 MEMORANDUM OF LAW in Support re: 55 MOTION for Leave to Appeal September 26, 2011 Interlocutory Order. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (McNally, Keri) (Entered: 06/15/2012)

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 12 of 21

06/15/2012 06/15/2012 06/15/2012
06/29/2012 06/29/2012 06/29/2012 07/06/2012 07/06/2012 07/06/2012 07/13/2012 07/24/2012
07/24/2012

57 MOTION to Amend/Correct 1 Complaint pursuant to Rule 15(a) to add Class Action. Document filed by David Goodman. (Attachments: # 1 Exhibit 1: First Amended Complaint)(Chaudhury, Arastu) (Entered: 06/15/2012)
58 MEMORANDUM OF LAW in Support re: 57 MOTION to Amend/Correct 1 Complaint pursuant to Rule 15(a) to add Class Action.. Document filed by David Goodman. (Chaudhury, Arastu) (Entered: 06/15/2012)
59 DECLARATION of Arastu K. Chaudhury in Support re: 57 MOTION to Amend/Correct 1 Complaint pursuant to Rule 15(a) to add Class Action.. Document filed by David Goodman. (Attachments: # 1 Exhibit A: Original Complaint, # 2 Exhibit B: Court's September 26, 2011 Memoradum and Order, # 3 Exhibit C: Parties' Joint Letter to the Court, Dated February 17, 2012)(Chaudhury, Arastu) (Entered: 06/15/2012)
60 MEMORANDUM OF LAW in Opposition re: 55 MOTION for Leave to Appeal September 26, 2011 Interlocutory Order. Document filed by David Goodman. (La Morte, Tara) (Entered: 06/29/2012)
61 MEMORANDUM OF LAW in Opposition re: 57 MOTION to Amend/Correct 1 Complaint pursuant to Rule 15(a) to add Class Action.. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (McNally, Keri) (Entered: 06/29/2012)
62 DECLARATION of Keri R. McNally in Opposition re: 57 MOTION to Amend/Correct 1 Complaint pursuant to Rule 15(a) to add Class Action.. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(McNally, Keri) (Entered: 06/29/2012)
63 REPLY MEMORANDUM OF LAW in Support re: 57 MOTION to Amend/Correct 1 Complaint pursuant to Rule 15(a) to add Class Action.. Document filed by David Goodman. (Chaudhury, Arastu) (Entered: 07/06/2012)
64 DECLARATION of Arastu K. Chaudhury, supplementing his June 15, 2012 Declaration in Support re: 57 MOTION to Amend/Correct 1 Complaint pursuant to Rule 15(a) to add Class Action.. Document filed by David Goodman. (Chaudhury, Arastu) (Entered: 07/06/2012)
65 REPLY MEMORANDUM OF LAW in Support re: 55 MOTION for Leave to Appeal September 26, 2011 Interlocutory Order. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (McNally, Keri) (Entered: 07/06/2012)
66 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Tara M. La Morte dated 7/13/2012 re: We write to advise the Court of a minor correction to Goodman's proposed amended complaint, and ask for the Court's assistance with respect to scheduling a mediation date for these cases. ENDORSEMENT: SO ORDERED. (Signed by Judge Richard J. Sullivan on 7/13/2012) (ama) (Entered: 07/13/2012)
67 ENDORSED LETTER addressed to Judge Richard J Sullivan from Keri Reid McNally dated 7/23/2012 re: Request to extend time for discovery and for the post discovery conference. ENDORSEMENT: Defendants' request is GRANTED. IT IS HEREBY ORDERED that the post discovery conference scheduled for October 26, 2012 is adjourned until Friday, December 7, 2012, at 10:30 a.m. ( Expert Discovery due by 11/5/2012. Fact Discovery due by 8/31/2012. Status Conference set for 12/7/2012 at 10:30 AM before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 7/24/2012) (cd) (Entered: 07/24/2012)
68 TRANSCRIPT of Proceedings re: CONFERNCE held on 6/1/2012 before Judge Richard J. Sullivan. Court Reporter/Transcriber: Thomas Murray, (212) 805−0300. 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 8/17/2012. Redacted Transcript Deadline set for 8/27/2012. Release of Transcript Restriction set for 10/25/2012.(McGuirk, Kelly) (Entered: 07/24/2012)

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 13 of 21

07/24/2012 07/24/2012 07/30/2012
07/30/2012 07/30/2012 08/02/2012 08/13/2012

69 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNCE proceeding held on 6/1/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/24/2012)
70 ORDER: 7/31/2012 Oral Argument reset for 7/30/2012 at 02:30 PM before Judge Richard J. Sullivan. (Signed by Judge Richard J. Sullivan on 7/24/2012) (cd) (Entered: 07/24/2012)
71 ORDER: For the reasons stated on the record at the July 30, 2012 conference (the "conference"), the Court: (1) GRANTS Plaintiff Goodman's motion for leave to amend the Complaint to add class allegations; and (2) DENIES, without prejudice to renewal, Plaintiffs' motion for interlocutory appeal of this Court's Memorandum and Order, dated September 26, 2011. The Clerk of the Court is respectfully directed to terminate the motions located at Doc. Nos. 55 and 57 in Goodman v. City of New York, No. 10 Civ. 5236 (RJS), and the motion located at Doc. No. 49 in Doherty v. City of New York, No. 11 Civ. 3432 (RJS).Also as stated on the record at the conference, Plaintiff Goodman shall file his amended complaint no later than August 3, 2012. Lastly, and also as stated on the record at the conference, the parties shall submit, no later than August 13,2012, a joint letter with a proposed revised discovery plan in light of the Court's ruling on Plaintiff Goodman's motion to amend the complaint.. (Signed by Judge Richard J. Sullivan on 7/30/2012) (js) (Entered: 07/31/2012)
Set/Reset Deadlines: Amended Pleadings due by 8/3/2012. (js) (Entered: 07/31/2012)
Minute Entry for proceedings held before Judge Richard J. Sullivan: Oral Argument held on 7/30/2012 re: 55 MOTION for Leave to Appeal September 26, 2011 Interlocutory Order filed by New York City Police Department, New York City Police Pension Fund, City of New York, 57 MOTION to Amend/Correct 1 Complaint pursuant to Rule 15(a) to add Class Action. filed by David Goodman. (djc) (Entered: 08/07/2012)
72 FIRST AMENDED COMPLAINT − CLASS ACTION amending 1 Complaint against City of New York, New York City Police Department, New York City Police Pension Fund.Document filed by David Goodman, Michael Doherty, Robert D. Black. Related document: 1 Complaint filed by David Goodman.(djc) (Entered: 08/07/2012)
73 ENDORSED LETTER addressed to Judge Richard J Sullivan from Arastu K. Chaudhury and Keri Reid McNally dated 8/138/2012 re: counsel writes on behalf of all parties that pursuant to the Court's July 30, 2012 Order, the parties in the above−referenced action, after meeting and conferring on the matter, jointly submit the following proposed schedule for fact and expert discovery, class certification briefing, and dispositive motions as follows: By February 1, 2013, the parties shall complete all fact and expert discovery, except for discovery concerning records of the overtime and night shift differential compensation earned by the putative damages sub−class members, which primarily relates to post−certification damage determinations and, therefore, is not necessary to complete prior to the class certification stage. By February 1, 2013, the Plaintiffs shall file their motions for class certification and partial summary judgment. By March 8, 2013, the Defendants shall file their oppositions to Plaintiffs' motions for class certification and partial summary judgment as well as file Defendants' cross−motion for summary judgment. By April 5, 2013, Plaintiffs shall file their replies in support of class certification and partial summary judgment as well as their opposition to Defendants' cross− motion for summary judgment. By June 28, 2013, the parties shall complete any outstanding discovery concerning records of the overtime and night shift differential compensation earned by the damages sub−class members. Additional relief as set forth in this Order. ENDORSEMENT: The Court adopts the schedule set forth above. In addition, IT IS HEREBY ORDERED that the parties shall appear for oral argument on their contemplated motions on May 29, 2013 at 10:00 a.m. ( Motions due by 2/1/2013., Responses due by 3/8/2013, Replies due by 4/26/2013.), ( Oral Argument set for 5/29/2013 at 10:00 AM before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 8/13/2012) (pl) Modified on 8/13/2012 (pl). (Entered: 08/13/2012)

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 14 of 21

08/13/2012 08/22/2012 08/27/2012 10/19/2012 10/19/2012
10/24/2012
10/24/2012
11/30/2012 12/18/2012 01/11/2013

Set/Reset Deadlines: Discovery due by 6/28/2013. Expert Discovery due by 2/1/2013. Fact Discovery due by 2/1/2013. (pl) (Entered: 08/13/2012)
74 ENDORSED LETTER: addressed to Judge Richard J. Sullivan from Keri Reid McNally dated 8/22/2012 re: Defendants request a short extension of time, to next Monday, August 27, 2012, to file their Answer. ENDORSEMENT: So Ordered. City of New York answer due 8/27/2012; New York City Police Department answer due 8/27/2012; New York City Police Pension Fund answer due 8/27/2012. (Signed by Judge Richard J. Sullivan on 8/22/2012) (js) (Entered: 08/22/2012)
75 ANSWER to 72 Amended Complaint,. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund.(McNally, Keri) (Entered: 08/27/2012)
76 ENDORSED LETTER: addressed to Judge Richard J. Sullivan from Tara M. Lamorte dated 10/18/2012 re: Counsel requests that the Court permit the parties to schedule the mediation in January 2013. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Sullivan on 10/18/2012) (js) (Entered: 10/19/2012)
77 CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... Notwithstanding any other provision, no document be filed with the Clerk under seal without a further Order of this Court addressing the specific documents to be sealed. Any application to seal shall be accompanied by an affidavit or affidavits and a memorandum of law, demonstrating that the standards for sealing have been met and specifically addressing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 20 (2d Cir. 2006) and any other controlling authority. Nothing herein is intended to alter or modify the applicability of Federal Rule of Civil Procedure 5.2 to this case. The redactions expressly authorized by Rule 5.2 may be made without further application to the Court. (Signed by Judge Richard J. Sullivan on 10/19/2012) (ft) (Entered: 10/19/2012)
78 TRANSCRIPT of Proceedings re: MOTION held on 7/30/2012 before Judge Richard J. Sullivan. Court Reporter/Transcriber: Steven Griffing, (212) 805−0300. 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 11/19/2012. Redacted Transcript Deadline set for 11/29/2012. Release of Transcript Restriction set for 1/25/2013.(Moya, Goretti) (Entered: 10/24/2012)
79 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a MOTION proceeding held on 7/30/2012 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Moya, Goretti) (Entered: 10/24/2012)
80 ORDER: In light of the revised discovery schedule set forth in the Court's August 13, 2012 Order in Goodman v. City of New York, 10 Civ. 5236 (RJS), IT IS HEREBY ORDERED that the post−discovery conference scheduled for December 7, 2012 in both of the above−captioned cases is adjourned sine die. (Signed by Judge Richard J. Sullivan on 11/30/2012) (lmb) (Entered: 11/30/2012)
MEDIATOR SESSION SCHEDULED First Mediation Session scheduled for 1/28/13 at 10:00 a.m. at 40 Foley Square.(jno) (Entered: 12/18/2012)
81 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Keri Reid McNally dated 1/10/2013 re: Defendants write to request a two−week extension of time for defendants to serve a rebuttal expert report. Plaintiffs served their expert disclosures and report on December 14, 2012, and defendants' rebuttal report, if any is due by January 11, 2013 under the scheduling order that is currently in place. Plaintiffs consent to the two−week extension that defendants seek, which would bring the deadline to January 25, 2013. ENDORSEMENT: So Ordered. (Signed by Judge Richard J. Sullivan on 1/10/2013) (ago) (Entered: 01/11/2013)

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 15 of 21

01/28/2013 01/28/2013 01/29/2013
02/27/2013
03/11/2013
04/03/2013

82 ENDORSED LETTER addressed to Judge Richard J. Sullivan from Keri Reid McNally dated 1/25/13 re: Counsel for the defendants writes to request an additional three−day extension of time for defendants to serve rebuttal expert report. ENDORSEMENT: So ordered. (Signed by Judge Richard J. Sullivan on 1/28/2013) (mro) (Entered: 01/28/2013)
Mediator Session Held on 01/28/2013 at 40 Foley Square.(ms) (Entered: 01/28/2013)
83 REVISED SCHEDULING ORDER: IT IS HEREBY ORDERED that the briefing schedule set on August 13, 2012, shall be MODIFIED AND AMENDED as follows: 1. By March 4, 2013, the Plaintiffs shall file their motions for class certification and partial summary judgment. 2. By April 8, 2013, the Defendants shall file their oppositions to Plaintiffs' motions for class certification and partial summary judgment as well as file Defendants' cross−motion for summary judgment. 3. By May 6, 2013, Plaintiffs shall file their replies in support of class certification and partial summary judgment as well as their opposition to Defendants' cross−motion for summary judgment. 4. By May 27, 2013, Defendants shall file their reply in support of their cross−motion for summary judgment. 5. The parties shall appear for oral argument on their contemplated motions on Friday, June 28, 2013 at 2:30 p.m. (Motions due by 3/4/2013. Cross Motions due by 4/8/2013. Responses due by 5/6/2013. Replies due by 5/27/2013. Oral Argument set for 6/28/2013 at 02:30 PM before Judge Richard J. Sullivan.) (Signed by Judge Richard J. Sullivan on 1/28/2013) (rjm) (Entered: 01/29/2013)
84 REVISED SCHEDULING ORDER: IT IS HEREBY ORDERED that the briefing schedule set on January 29, 2013, shall be MODIFIED AND AMENDED as follows: By April 3, 2013, the Plaintiffs shall file their motions for class certification and partial summary judgment. By May 8, 2013, the Defendants shall file their oppositions to Plaintiffs' motions for class certification and partial summary judgment as well as file Defendants' cross−motion for summary judgment. By June 5, 2013, Plaintiffs shall file their replies in support of class certification and partial summary judgment as well as their opposition to Defendants' cross−motion for summary judgment. By June 26, 2013, Defendants shall file their reply in support of their cross−motion for summary judgment. The parties shall appear for oral argument on their contemplated motions on July 17, 2013. (Signed by Judge Richard J. Sullivan on 2/27/2013) (mro) Modified on 2/28/2013 (mro). (Entered: 02/27/2013)
85 STIPULATION AND ORDER: WHEREAS, the claims asserted in the Complaint were incorporated in the First Amended Complaint filed in Goodman, et al. v. City of New York, et al., 10 Civ. 5236 (RJS) (the "USERRA Putative Class Action") on August 2, 2012, effectively consolidating this action with the USERRA Putative Class Action; WHEREAS, there is now no need to maintain a separate action with respect to the claims alleged in Plaintiff Michael Doherty's Complaint in this action; The parties hereby stipulate and agree to the following: Any discovery exchanged by the parties in the above−captioned action shall be deemed exchanged in the USERRA Putative Class Action. Any submission made by the parties is deemed a submission in the USERRA Putative Class Action. Any determination of the Court in the above−captioned action not inconsistent with those made in the USERRA Putative Class Action shall be deemed a determination in the USERRA Putative Class Action. The above−referenced civil action is voluntarily dismissed pursuant to Rule 41 (a)(1)(A)(ii) of the Federal Rules of Civil Procedure. (Signed by Judge Richard J. Sullivan on 3/8/2013) (mro) Modified on 3/13/2013 (mro). (Entered: 03/12/2013)
86 REVISED SCHEDULING ORDER: IT IS HEREBY ORDERED that the briefing schedule set on February 27, 2013, shall be MODIFIED AND AMENDED as follows: 1. By May 3, 2013, the Plaintiffs shall file their motions for class certification and partial summary judgment. 2. By June 7, 2013, the Defendants shall file their oppositions to Plaintiffs' motions for class certification and partial summary judgment as well as file Defendants' cross−motion for summary judgment. 3. By July 3, 2013, Plaintiffs shall file their replies in support of class certification and partial summary judgment as well as their opposition to defendants' cross−motion for summary judgment. 4. By July 24, 2013, Defendants shall file their reply in support of their cross−motion for summary judgment. 5. The parties shall appear for oral argument on their contemplated motions on September 11, 2013 at 4:00 p.m. in Courtroom 905 at 40 Foley Square. 6. This will be the final extension of the motion briefing schedule. Motions due by 5/3/2013. Cross Motions due by 6/7/2013. Responses due by 7/3/2013

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 16 of 21

04/22/2013
05/30/2013 06/17/2013 06/17/2013 06/17/2013 06/20/2013
06/25/2013

Replies due by 7/24/2013. Oral Argument set for 9/11/2013 at 04:00 PM in Courtroom 905, 40 Centre Street, New York, NY 10007 before Judge Richard J. Sullivan. (Signed by Judge Richard J. Sullivan on 4/2/2013) (ago) (Entered: 04/03/2013)
87 REVISED SCHEDULING ORDER: IT IS HEREBY ORDERED that the briefing schedule set forth in the Court's Revised Scheduling Order, dated April 2, 2013, shall be extended as follows: 1. By June 3, 2013, Plaintiffs shall file their motions for class certification and partial summary judgment. 2. By July 8, 2013, Defendants shall file their opposition to Plaintiffs' motions for class certification and partial summary judgment as well as their own cross−motion for summary judgment. 3. By August 5, 2013, Plaintiffs shall file their replies in support of class certification and partial summary judgment as well as their opposition to Defendants' cross−motion for summary judgment. 4. By August 26, 2013, Defendants shall file their reply in support of their cross−motion for summary judgment. 5. As previously ordered, the parties shall appear for oral argument on these motions on September 11,2013 at 4:00 p.m. in Courtroom 905 at 40 Foley Square. SO ORDERED. Motions due by 6/3/2013. Cross Motions due by 7/8/2013. Responses due by 7/8/2013 Replies due by 8/26/2013. Oral Argument set for 9/11/2013 at 04:00 PM in Courtroom 905, 40 Centre Street, New York, NY 10007 before Judge Richard J. Sullivan. (Signed by Judge Richard J. Sullivan on 4/22/2013) (ama) (Entered: 04/23/2013)
89 REVISED SCHEDULING ORDER: IT IS HEREBY ORDERED that the briefing schedule set forth in the Court's Revised Scheduling Order, dated April 22, 2013, shall be extended as follows. The parties shall appear for oral argument on these motions in Courtroom 905 at 40 Foley Square on a date to be determined by the Court in the event that motions for class certification and summary judgment are filed on or before June 17,2013. SO ORDERED. Motions due by 6/17/2013. Cross Motions due by 7/22/2013. Responses due by 8/19/2013 Replies due by 9/9/2013. (Signed by Judge Richard J. Sullivan on 5/30/2013) (ama) (Entered: 05/31/2013)
90 MOTION to Certify Class conditionally for settlement purposes, for preliminary approval of the settlement agreement, and for approval of the forms of class notice,. Document filed by Robert D. Black, Michael Doherty, David Goodman.(Chaudhury, Arastu) (Entered: 06/17/2013)
91 MEMORANDUM OF LAW in Support re: 90 MOTION to Certify Class conditionally for settlement purposes, for preliminary approval of the settlement agreement, and for approval of the forms of class notice,.. Document filed by Robert D. Black, Michael Doherty, David Goodman. (Attachments: # 1 Exhibit A − Settlement Agreement, # 2 Exhibit B − Proposed Preliminary Order)(Chaudhury, Arastu) (Entered: 06/17/2013)
92 DECLARATION of Tara M. La Morte in Support re: 90 MOTION to Certify Class conditionally for settlement purposes, for preliminary approval of the settlement agreement, and for approval of the forms of class notice,.. Document filed by Robert D. Black, Michael Doherty, David Goodman. (Chaudhury, Arastu) (Entered: 06/17/2013)
93 ORDER: On June 17, 2013, Plaintiffs filed their unopposed motion for conditional certification of a settlement class, preliminary approval of the proposed settlement agreement, and approval of the forms of class notice (the "Motion"), as well as a supporting memorandum of law and declaration. (Doc. Nos. 90−92.) Fairness Hearing set for 6/28/2013 at 02:30 PM before Judge Richard J. Sullivan, and as further set forth in this document. The Court is also attaching copies of the proposed notice forms that include certain proposed edits and questions entered by the Court in track−changes. IT IS FURTHER ORDERED THAT the parties consider these edits and questions and submit an updated version of the notice forms on or before June 25, 2013 by filing them on ECF and emailing a copy to the Court. The parties shall also be prepared to discuss the notice forms at the June 28 hearing. (Signed by Judge Richard J. Sullivan on 6/20/2013) (cd) (Entered: 06/21/2013)
94 FILING ERROR − ELECTRONIC FILING OF NON−ECF DOCUMENT − STATUS REPORT. Updated Forms of Class Notice Filed Pursuant to Court's June 20, 2013 Order. Document filed by Robert D. Black, Michael Doherty, David Goodman.(Chaudhury, Arastu) Modified on 6/26/2013 (ka). (Entered: 06/25/2013)

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 17 of 21

06/25/2013
06/26/2013 06/26/2013 06/28/2013 07/02/2013
07/02/2013 07/26/2013 07/26/2013

96 ORDER: The Court is in receipt of the attached letter from Plaintiffs, dated June 25, 2013, concerning certain revisions that have been made to the proposed settlement agreement and class notice forms and responding to some of the Court's questions concerning the fairness of that proposed settlement agreement. The letter indicates that some of the changes made by the parties will require adjustments to the order approving the proposed settlement agreement. Accordingly, IT IS HEREBY ORDERED THAT the parties shall file an updated version of the proposed order for conditional certification, preliminary approval of the settlement agreement, approval of the forms of class notice and scheduling of a fairness hearing (currently, Doc. No. 91−2) by filing it on ECF on or before June 26, 2013 and emailing a Microsoft Word version of the proposed order to chambers. (Signed by Judge Richard J. Sullivan on 6/25/2013) (mro) (Entered: 06/26/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − NON−ECF DOCUMENT ERROR. Note to Attorney Arastu Kabeer Chaudhury to E−MAIL to judgments@nysd.uscourts.gov., Document No. 94 Notice of Proposed Class Action Settlement. This document is not filed via ECF. (ka) (Entered: 06/26/2013)
95 NOTICE of Revised Proposed Preliminary Order in Response to Court's Order dated June 25, 2013 re: 90 MOTION to Certify Class conditionally for settlement purposes, for preliminary approval of the settlement agreement, and for approval of the forms of class notice,.. Document filed by Robert D. Black, Michael Doherty, David Goodman. (La Morte, Tara) (Entered: 06/26/2013)
Minute Entry for proceedings held before Judge Richard J. Sullivan: Fairness Hearing held on 6/28/2013. The Court held a fairness hearing concerning the parties' motion for preliminary class certification and preliminary approval of the settlement agreement on June 28, 2013 in Courtroom 905 at 40 Foley Square. Counsel for Plaintiffs present. Counsel for Defendants present. Court reporter present. The Court inquired as to various aspects of the proposed agreement, and found the parties' proposed preliminary class certification and settlement agreement to be fair and reasonable. The parties were instructed to provide updated versions of all relevant documents to the Court. (lmb) (Entered: 07/03/2013)
97 ORDER CONDITIONALLY CERTIFYING THE SETTLEMENT CLASS AND SETTLEMENT SUB−CLASSES, PRELIMINARILY APPROVING THE SETTLEMENT AGREEMENT, APPROVING FORMS OF CLASS NOTICE AND SCHEDULING A FAIRNESS HEARING: granting 90 Motion to Certify Class.On this 2nd day of July, 2013, the Court considered Plaintiffs' Unopposed Motion for Conditional Certification of the Settlement Class and Sub−Classes, Preliminary Approval of the Settlement Agreement, and Approval of the Forms of Class Notice (the "Motion"). All capitalized terms used in this Preliminary Order shall have the meaning as defined in the Settlement Agreement (the "Agreement"), which is incorporated herein by reference. After consideration of the Motion, the Agreement, and the exhibits attached thereto, as well as discussions with counsel held at a conference on June 28, 2013, this Court hereby concludes that the Motion should be GRANTED. SO ORDERED.(Signed by Judge Richard J. Sullivan on 7/02/2013) (Attachments: # 1 Exhibit A, # 2 Exhibit B) (ama) (Entered: 07/02/2013)
Set/Reset Deadlines:, Set/Reset Hearings:( Fairness Hearing set for 1/13/2014 at 04:30 PM in Courtroom 905, 40 Centre Street, New York, NY 10007 before Judge Richard J. Sullivan.) (ama) (Entered: 07/02/2013)
98 TRANSCRIPT of Proceedings re: CONFERENCE held on 6/28/2013 before Judge Richard J. Sullivan. Court Reporter/Transcriber: Vincent Bologna, (212) 805−0300. 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 8/19/2013. Redacted Transcript Deadline set for 8/29/2013. Release of Transcript Restriction set for 10/28/2013.(McGuirk, Kelly) (Entered: 07/26/2013)
99 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 6/28/2013 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 18 of 21

10/08/2013 11/19/2013
11/22/2013 12/04/2013 12/16/2013
12/30/2013 12/30/2013 12/30/2013 12/30/2013 12/30/2013 01/13/2014
01/14/2014

days...(McGuirk, Kelly) (Entered: 07/26/2013)
100 NOTICE OF APPEARANCE by Benjamin Eldridge Stockman on behalf of City of New York, New York City Police Department, New York City Police Pension Fund. (Stockman, Benjamin) (Entered: 10/08/2013)
101 NOTICE of of Filing of Opt−Out Forms. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Exhibit Lashley, Victor, # 2 Exhibit Vasquez, Daniel, # 3 Exhibit Pasquarella, Paul, # 4 Exhibit Wilhelm, Joseph, # 5 Exhibit Casano, David, # 6 Exhibit Xuereb, Steven, # 7 Exhibit Prioriello, Mario, # 8 Exhibit Drogan, Thomas, # 9 Exhibit Dolan, Michael, # 10 Exhibit Felipe, Jeffrey, # 11 Exhibit Esposito, Pasquale, # 12 Exhibit Lamarca, Dan, # 13 Exhibit Lonecke, Richard)(Stockman, Benjamin) (Entered: 11/19/2013)
102 NOTICE of of Filing of Opt−Out Forms. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Exhibit McNamee, Lawrence, # 2 Exhibit Aguayo, Floriano)(Stockman, Benjamin) (Entered: 11/22/2013)
103 NOTICE of Filing of Opt−Out Forms. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Exhibit Maldonado, Daliris, # 2 Exhibit Suhrhoff, Robert)(Stockman, Benjamin) (Entered: 12/04/2013)
104 NOTICE of Filing of Objections. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Exhibit Blaize, Desmond, # 2 Exhibit Brown, Lynn, # 3 Exhibit Harms, Cathleen, # 4 Exhibit Hernandez, Harold, # 5 Exhibit Kwalwasser, Robert, # 6 Exhibit Lugo, Thomas, # 7 Exhibit Rickard, Kathleen, # 8 Exhibit Twitty, Theophlise)(Stockman, Benjamin) (Entered: 12/16/2013)
105 MOTION to Approve Settlement Agreement −− Final Approval. Document filed by Robert D. Black, Michael Doherty, David Goodman. Return Date set for 1/13/2014 at 04:30 PM.(Chaudhury, Arastu) (Entered: 12/30/2013)
106 MEMORANDUM OF LAW in Support re: 105 MOTION to Approve Settlement Agreement −− Final Approval.. Document filed by Robert D. Black, Michael Doherty, David Goodman. (Chaudhury, Arastu) (Entered: 12/30/2013)
107 DECLARATION of Tara M. La Morte in Support re: 105 MOTION to Approve Settlement Agreement −− Final Approval.. Document filed by Robert D. Black, Michael Doherty, David Goodman. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Chaudhury, Arastu) (Entered: 12/30/2013)
108 DECLARATION of Juliette E.A. Deen in Support re: 105 MOTION to Approve Settlement Agreement −− Final Approval.. Document filed by Robert D. Black, Michael Doherty, David Goodman. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Chaudhury, Arastu) (Entered: 12/30/2013)
109 DECLARATION of Chief Actuary of the New York City Retirement Systems, Robert C. North, Jr. in Support re: 105 MOTION to Approve Settlement Agreement −− Final Approval.. Document filed by Robert D. Black, Michael Doherty, David Goodman. (Chaudhury, Arastu) (Entered: 12/30/2013)
Minute Entry for proceedings held before Judge Richard J. Sullivan: Fairness Hearing held on 1/13/2014 concerning the parties' motion for approval of the final class settlement on 1/13/14 in Courtroom 905 at 40 Foley Square. Counsel for the plaintiffs was present with class representatives. Counsel for the defendants was present. The court reporter was present. The Court inquired as to various aspects of the proposed final class settlement agreement and reviewed objections to the settlement. Class member, Robert Kwalwasser, addressed the Court with his objection to the settlement agreement. (sc) Modified on 2/14/2014 (Landers, Rigoberto). (Entered: 01/14/2014)
110 FINAL ORDER APPROVING CLASS SETTLEMENT granting 105 Motion to Approve Settlement. For the reasons stated on the record at the Fairness Hearing and the reasons stated below, Plaintiffs' Motion is GRANTED. The "Effective Date" of the

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 19 of 21

01/21/2014 01/21/2014 02/13/2014
02/13/2014
06/30/2014 12/17/2014 12/31/2014 01/30/2015 02/04/2015 03/17/2015

Agreement shall occur upon expiration of sixty days following the entry of this Final Order, or, if any appeal is filed, when the mandate has issued following resolution of the appeal. Defendants shall comply with the terms of the Agreement no later than one (1) year after the Effective Date. This deadline may be extended only by a written agreement between the Settlement Class Counsel and Defendants' counsel and approval of the Court. All Settlement Class Members who did not opt out are hereby permanently enjoined from pursuing and/or seeking to reopen claims released by the Agreement. This Court retains jurisdiction of all matters relating to the modification, interpretation, implementation, effectuation, enforcement, and administration of the Agreement and this Final Order, which jurisdiction may be called upon by filing a motion to enforce based upon an alleged failure to comply with the terms of the Agreement. In addition, the Parties may make a motion to conduct discovery under the Federal Rules of Civil Procedure for the purpose of determining compliance with this Agreement or defending against a claim of non−compliance. (Signed by Judge Richard J. Sullivan on 1/14/2014) (mro) (Main Document 110 replaced on 1/15/2014) (ama). (Entered: 01/15/2014)
111 ORDER: The Clerk of the Court is respectfully requested to close this case. SO ORDERED. (Signed by Judge Richard J. Sullivan on 1/17/2014) (ama) (Entered: 01/21/2014)
Terminate Transcript Deadlines (ama) (Entered: 01/21/2014)
112 TRANSCRIPT of Proceedings re: HEARING held on 1/13/2014 before Judge Richard J. Sullivan. Court Reporter/Transcriber: Martha Drevis, (212) 805−0300. 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 3/10/2014. Redacted Transcript Deadline set for 3/20/2014. Release of Transcript Restriction set for 5/19/2014.(Rodriguez, Somari) (Entered: 02/13/2014)
113 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 1/13/14 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 02/13/2014)
114 CERTIFICATE OF SERVICE of Periodic Report served on Tara LaMorte and Arastu Chaudhury on 6/30/14. Service was made by Mail. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Stockman, Benjamin) (Entered: 06/30/2014)
115 NOTICE OF APPEARANCE by Keith Michael Snow on behalf of City of New York, New York City Police Department, New York City Police Pension Fund. (Snow, Keith) (Entered: 12/17/2014)
116 CERTIFICATE OF SERVICE of Quarterly Report served on US on December 31, 2014. Service was made by Mail. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Snow, Keith) (Entered: 12/31/2014)
117 NOTICE OF APPEARANCE by Alexis Downs on behalf of City of New York, New York City Police Department, New York City Police Pension Fund. (Downs, Alexis) (Entered: 01/30/2015)
118 NOTICE OF APPEARANCE by Laura C. Rowntree on behalf of City of New York, New York City Police Department, New York City Police Pension Fund. (Rowntree, Laura) (Entered: 02/04/2015)
119 LETTER MOTION for Extension of Time addressed to Judge Richard J. Sullivan from Laura C. Rowntree dated March 17, 2015. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund.(Rowntree, Laura) (Entered: 03/17/2015)

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 20 of 21

03/17/2015 04/23/2015
04/24/2015 04/29/2015 04/30/2015 04/30/2015 04/30/2015 08/31/2015 09/01/2015 01/15/2016 02/26/2016

120 STIPULATION AND ORDER: IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for plaintiffs and defendants, that the deadline for defendants to comply with the terms of the Settlement Agreement shall be extended from March 17, 2015 to May 1, 2015, in accordance with the Final Order Approving Class Settlement dated January 14, 2014 (Docket No. 110). (Signed by Judge Richard J. Sullivan on 3/17/2015) (mro) (Entered: 03/18/2015)
121 ORDER: The Court is in receipt of the attached letter from Ivan Fragoso, dated September 29, 2014 and received in chambers on September 30, 2014 via mail. The Court sent the item for docketing, but has recently learned that it was never made available to the parties. Accordingly, IT IS HEREBY ORDERED THAT the parties shall respond to the statements made in the letter by April 30, 2015. (Signed by Judge Richard J. Sullivan on 4/23/2015) (mro) Modified on 4/24/2015 (mro). (mro). (Entered: 04/24/2015)
122 LETTER addressed to Judge Richard J. Sullivan from Laura C. Rowntree dated April 24, 2015 re: Order dated April 24, 2015 and its attachment. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Attachment reflecting redactions)(Rowntree, Laura) (Entered: 04/24/2015)
123 LETTER MOTION for Extension of Time and Approval of Proposed Letters to Potential and Existing Class Members addressed to Judge Richard J. Sullivan from Laura C. Rowntree dated April 29, 2015. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund.(Rowntree, Laura) (Entered: 04/29/2015)
124 AMENDED LETTER MOTION for Extension of Time and Approval of Proposed Letters to Potential and Existing Class Members addressed to Judge Richard J. Sullivan from Laura C. Rowntree dated April 29, 2015. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund.(Snow, Keith) (Entered: 04/30/2015)
125 ORDER granting 123 Letter Motion for Extension of Time. IT IS HEREBY ORDERED THAT the letters proposed in Exhibits A and B may issue to the individuals identified in this submission. IT IS FURTHER ORDERED THAT the time to comply with the settlement agreement in this action is extended to September 1, 2015. (Signed by Judge Richard J. Sullivan on 4/30/2015) (mro) (Entered: 05/01/2015)
126 STIPULATION AND ORDER: IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for plaintiffs and defendants, that the deadline for defendants to comply with the terms of the Settlement Agreement shall be extended from May 1, 2015 to [September 1, 2015], in accordance with the Final Order Approving Class Settlement dated January 14, 2014 (Dkt. No. 110). (Signed by Judge Richard J. Sullivan on 4/30/2015) (mro) (Entered: 05/01/2015)
127 LETTER MOTION for Extension of Time addressed to Judge Richard J. Sullivan from Laura C. Rowntree dated August 31, 2015. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Text of Proposed Order)(Rowntree, Laura) (Entered: 08/31/2015)
128 STIPULATION AND ORDER: IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for plaintiffs and defendants, that the deadline for defendants to comply with the terms of the Settlement Agreement shall be extended from September 1, 2015 to March 1, 2016, in accordance with the Final Order Approving Class Settlement dated January 14, 2014 (Dkt. No. 110). (Signed by Judge Richard J. Sullivan on 9/1/2015) (mro) (Entered: 09/01/2015)
129 NOTICE OF APPEARANCE by Kathleen Marie Comfrey on behalf of City of New York, New York City Police Department, New York City Police Pension Fund. (Comfrey, Kathleen) (Entered: 01/15/2016)
130 LETTER MOTION for Extension of Time to Extend March 1, 2016 deadline for compliance with terms of Settlement Agreement addressed to Judge Richard J. Sullivan from Kathleen M. Comfrey dated 2−26−2016. Document filed by New York City Police Department, New York City Police Pension Fund.(Comfrey, Kathleen) (Entered: 02/26/2016)

Case: 1:10-cv-5236 As of: 09/23/2017 09:24 PM EDT 21 of 21

02/29/2016 03/01/2016 03/01/2016
04/13/2016 04/13/2016

131 LETTER RESPONSE in Opposition to Motion addressed to Judge Richard J. Sullivan from Arastu K. Chaudhury dated February 29, 2016 re: 130 LETTER MOTION for Extension of Time to Extend March 1, 2016 deadline for compliance with terms of Settlement Agreement addressed to Judge Richard J. Sullivan from Kathleen M. Comfrey dated 2−26−2016. . Document filed by Robert D. Black, Michael Doherty, David Goodman. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Chaudhury, Arastu) (Entered: 02/29/2016)
132 LETTER REPLY to Response to Motion addressed to Judge Richard J. Sullivan from Kathleen M. Comfrey dated 3−01−2016 re: 130 LETTER MOTION for Extension of Time to Extend March 1, 2016 deadline for compliance with terms of Settlement Agreement addressed to Judge Richard J. Sullivan from Kathleen M. Comfrey dated 2−26−2016. Request to Court to hold decision in abeyance. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Comfrey, Kathleen) (Entered: 03/01/2016)
133 ORDER granting 130 Letter Motion for Extension of Time: that by April 15, 2016, Defendants shall complete all outstanding pension benefit calculations in a manner consistent with the Settlement Agreement; By May 15, 2016, Defendants shall obtain all necessary approvals from the Office of the Actuary related to the Police Pension Fund's calculations identified in Paragraph 1 above; and By June 15, 2016, Defendants shall obtain all the necessary approvals from the Office of the Comptroller related to the interest payments owed the class members pursuant to the Settlement Agreement. The Clerk of the Court is respectfully directed to terminate the motion located at docket number 130. (Signed by Judge Richard J. Sullivan on 3/1/2016) (tn) (Entered: 03/01/2016)
134 LETTER MOTION for Extension of Time addressed to Judge Richard J. Sullivan from Kathleen M. Comfrey dated April 13, 2016. Document filed by City of New York, New York City Police Department, New York City Police Pension Fund. (Attachments: # 1 Proposed Order)(Comfrey, Kathleen) (Entered: 04/13/2016)
135 ORDER granting 134 Letter Motion for Extension of Time. IT IS HEREBY ORDERED that the deadlines set forth in the Court's Order, dated March 1, 2016, docket number 133, shall be extended as follows: 1. By April 29, 2016, Defendants shall complete all outstanding pension benefit calculations in a manner consistent with the Settlement Agreement; 2. By May 27, 2016, Defendants shall shall obtain all necessary approvals from the Office of the Actuary related to the Police Pension Fund's calculations identified in Paragraph 1 above; and 3. By June 29, 2016, Defendants shall obtain all necessary approvals from the Office of the Comptroller related to the interest payments owed the class members pursuant to the Settlement Agreement. (Signed by Judge Richard J. Sullivan on 4/13/2016) (mro) (Entered: 04/13/2016)

 
 j ••~---~-··· ·------··-~-··-·---C--a--s-e--1-·:10-cv---0'-5-2-·3·6---·R--J-S" --·-·D. ocument 1 Filed 07/09/10 Page 1 of 7
JUuGE SULLW!W

PREET BH.ARARA United States Attorney Southern District ofNew York By: TAR,AM.LaMORTE
Assistant United States Attorney· ' 86 Chambers Street, 3rd Floor New York, New York 10007 .Tel. No. (212) 637-2746
Fax No. (212) 637-2730 tara.lamorte2@usdoj .gov

UNITED STATES DISTRICT COURT SOUTHERN DISTR,ICT OF NEW YORK
-------------------------------x
DAVID GOODMAN,

Plaintiff,

COMPLAINT

-against-

10Civ. _ __

CITY OF NEW YORK, NEW YORK

ECFCASE

CITY POLICE DEPARTMENT, and NEW : YORK CITY POLICE PENSION FUND,

i
l

Defendants.

I

-------------------~-----------x

j

Plaintiff David Goodman ("Goodman"), by his undersigned attorneys from the U.S.

I

Department of Justice pursuant to 38 U.S.C. § .43~3, alleges as follows:

I

1. 'I_'his ciyil action is br.ought pursuant to the Uniformed Services Employment and

Reemployment Rights Act of1994, 38 U.S.C. §§ 4301-4335'(''USERRA").

JURISDICTION ·~

AND.

VEN.UE

2. This Court has jurisdiction over the subject matter of this action pursuant to 38

U.S.C. § 4323(b) and 28 U.S.C. § 1331.

I

3. Venue is proper in this district under 38 U.S.C. § 4323(c)(2) because defendants

I

I

City ofNew York ("NYC"), New York City Police Department ("NYPD") and New York City

I

,------

Case 1:10-cv-05236-RJS Document 1 Filed 07/09/10 Page 2 of 7

Police Pension Fund ("Pension Fund") maintain their principal place ofbusiness in this district. ·Additionally, venue is proper under 28 U.S.C. § 139l(b) because a substantial part of the events

giving rise to this acti<?n occurred in this district.

PARTIES

4. Goodman is a former employee ofNYPD who resides in New York, New York,

within the jurisdiction of this Court. 5. NYPD is located within the jurisdiction of this Court and is an employer. within

the meanirig of38 U.S.C. § 4303(4)(A) and 38 U.S.C. § 4323(i). NYPD is an agency ofNYC. 6. NYC is located within the jurisdiction of this Court and is an employer within the

meaning of38 U.S.C. § 4303(4)(A) and 38 U.S.C. § 4323(i). 7. Pension ~und is located within the jurisdiction of this Court and is an. en;tploye:r:

within the meaning of38 U.S.C. § 4303(4)(C) and·38 U.S.C. § .4373(i). Pension Fund is an

agency

ofNYC

that,

purs~ant

to

'
the

I
Administrative

Code

of

the

City

ofNew

York,

has

the

powers and privileges of a corporation.

FACTUAL ALLEGATIONS

8. Goodman has been a member of the United States Army Reserves since 1981 and

currently holds the rank of second lieutenant.

9. J;n 1992, Goodman began work at the NYPD. From May 11, 1999 to his

retirement on July 28,2009, he held the position of Detective, third grade. 10. On March 12,2002, NYPD assigned Goodman. to the counterterrorism division.
· On September 12,2008, NYPD assigned Goodman to the Office ofEmerg~ncy Management. 11. Since 1981, Goodman has performed his Army Reserve duties and has been

2

Case 1:10-cv-05236-RJS Document 1 Filed 07/09/10 Page 3 of 7
called to active duty on multiple occasions. For example, from March 5, 2002 to March 4, 2003, he was ordered to active duty in support of Operation Enduring Freedom. From March 7, 2004 to September 27, 2004, he was ordered to active duty and served a portion of this time in Afghanistan. From November 15, 2005 to May 13, 2006, he was ordered to active duty and deployed to Jordan to help train Iraqi counterterrorism forces. From. October 27, 2008 to April 23, 2009, he was ordered to active duty during which time he served on a joint task force in Iraq.
12. Throughout the time ofhis employment with NYP:O, Goodman worked. overtime hours, for which he was compensated. The NYPD compensated Goodman for most ofhis overtime work by cash payments. For other overtime hours worked, NYPD compensated Goodman with additional leave. The amount of compensation Goodman earned for working
overtime hours depended 1;1pon, inte~ alia, the time of day Goodman worked overtime hours.
13. During the periods of Goodman's active military service, NYPD employees had the opportunity to work, and did work, overtime hours. Had Goodman not been performing active military service, he would have been working overtime hours for NYPD.
14. Effective October(), 2008, NYPP a.ssigned Qoodman to. a 2:00p.m. to 10:00 p.m. shift, entitling Goodman to earn six hours ofpay per day at the night differential rate. Had Goodman not perfof!.Ued active military service oetween October 27, 2008 i:md April23, 2009, he would have earned night differential pay for at least six hours of work per day for NYPI). Goodman also earned night differential pay at variou.s other times throughout his employment withNYPD.
15. Goodman is a member of thti Pension Fund. The Pension Fund operates' pursuant to Title 13, Chapter 2, Subchapter 2 ofthe Administrative Code of the City ofNew York. The
3

Case 1:10-cv-05236-RJS Document 1 Filed 07/09/10 Page 4 of 7

Pension Fund is responsible for, inter alia, performing pension payment calculations. Since his

retirement from the NYPD on July 28, 2009, Goodman is entitled to receive, and has been

receiving, an annual pension paid in equal monthly installments. 16. The Pension Fund must compute Goodman's compensation during his periods of

active service in order to determine Goodman's pensionable earnings, which serves as the basis

for Goodman's annual pension benefit.

·l

17. In performing the comp\ltations described in paragraph 16 of this Complaint, the

Pension Fund did not take into acco\lllt the compensation Goodman would have received but for his periods ofmilitary service, including but not limited to overtime hours and night differential

pay. 18.

In performing the computati~ns described in paragraph 12 of this Complains to

the extent the compensation Goodman would have re.ceived but for his periods ofmilitary service was not reasonably certain, the Pension Fund did not rely upon Goodman's average rate of

compensation, including overtime hqurs and associat~d night differential pay, during the 12mon~ periods immediately preceding his ·respective periods qf military service (or, if shorter, the

period of employment immediately preceding sucp. period).

19. NYPD is respqnsi~le f9J," ma.J.qng,pensi9n: contribqtions to the Pen:;;ion Fund on

behalf of the Pension Fund's members. The 'N'XPD was respoi!sible for making pension contributions on Goodman's behalfbased on his pensionable earnings, including during the

periods of Goodman's active military service. 20. ~C is responsible for making pension ~ontributions to the Pension Fund on

behalf of the Pension Fund's members. NYC was and is responsible for making pension

4

Case 1:10-cv-05236-RJS Document 1 Filed 07/09/10 Page 5 of 7

I
l
I
I

contributions on Goodman's behalfbased on his pensionable earnings, including during the

I

i

periods of Goodman's active military service.

I .
21. On August 10,2009, ip. accordance with Section 4322(a)(1) ofUSERRA,

I

Goodman filed a complaint against NYPD and the Pension Fimd with the Veterans' Employment

I

!

and Training Service of the United States l)epartment ofLabor.

22. NYC~ NYPD and the Pension Fund violate4 Section 4318 ofUSERRA:, among

other ways, by failing to calculate Goodman's compensation for peJ?,sion purposes during his

periods of military service in accordance with the statutory commands.

23. As a result of the statutory violations committed by NYC, NYPD and the Pension

Fund, Goodman suffered the loss of pension benefits in an amount to be determined at trial.

PRAYER FOR RELIEF

WHEREFORE, Goodman prays that the Court enter judgment against NYC, NYPD, the
Pension Fund, and their. resp~ctive officers, agent~, t?mploye~s, successors and all perso~s in

active concert or participatio~with it, a~ follo'Y~: . · . · .

A. Declare that the Pension Fund's method ~f calculating compensation during

periods of military service for purposes of determining liability for pension benefits is in

violation ofUSERRA, 38 U.S.C. § 4318;

B. Declare that the Pension Fumj. miscalculated Goodman's compensation during the

periods of his military service, for purposes of determining liability for pension benefits in

violation of1)SERR,A, 38 U.S.C. § 4318;

C. Declare that 38 U.S.C. § 4318 preempts any and all inconsistent NYC, NYPD,

and Pension Fund rules, regulations, policies, and practices concerning the calculation of

s·.

- - - - ·- --·---··-·C· ase 1:10-cv-05236-RJS Document 1 Filed 07/09/10 Page 6 of 7

compensation during periods of military service and the calculation ofpension benefits;

D. Order that the Pension Fund recalculate compensation during periods of.military

service in accordance with USERRA, 38 U.S.C. § 4318;

.

.

E. Order that the Pension Fund recalculate Goodman's compensation during the

periods ofhis military service in accordance with USERRA, 38 U.S.C. § 4318;

F. Order that the Pension Fund calculate and inform Goodman of the amoupt of

pension contributions owed by Goodman as a rest!lt of recalculating Goodman's compensation

during the periods of his military service in accordance with USERR,A, 38 U.S. C. § 4318;

G. Order that NYC, the NYPD and the Pension Fund remit to Goodman the

additional pens. ion benefits owed to.him as a result ofrecalculating his compensa.tion du.ring_his
periods of his military service in accordance with USERRA, 38 U.S:C. § 4318;

H. Award Goodman prejudgment interest on the amount of pension benefits due; and

I. · Grant such other relief as may be just.

THOMAS E.. PEREZ

By:
.S. Department ofJustice Civil: Rights Division Employment Litigation Section 950 ~ennsyly~ia Av.enue, NW Patrick Henry Building, Room 4920 Washington, DC 2Q530

6

Case 1:10-cv-05236-RJS Document 1 Filed 07/09/10 Page 7 of 7

Dated:

t!:i 'e York,'N20e1w0York

PREET BHA,R.ARA United S

By:.

.

MORTE

ss · tant United States Attorney h~mbers Street, 3rd Floor

New York, New York 10007

Tel. No. (212) 637-2746

Fax No. (212) 637-2730

'tara.lamorte2@usdoj .gov

Attorneys for Plaintiff David Goodman

1.

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 Case 1:10-cv-05236-RJS Document 19 Filed 09/26/11 Page 1 of 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
_____________________

No. 10 Civ. 5236 (RJS) _____________________

DAVID GOODMAN,

Plaintiff,

VERSUS

CITY OF NEW YORK, et al.,

Defendants. _____________________

No. 11 Civ. 3432 (RJS) _____________________

MICHAEL DOHERTY,

Plaintiff,

VERSUS

CITY OF NEW YORK, et al.,

Defendants. _____________________

MEMORANDUM AND ORDER September 26, 2011
_____________________

RICHARD J. SULLIVAN, District Judge:
Plaintiffs in these factually-similar cases are former New York City police officers and military reservists who, at various periods during their employment with the New York City Police Department (“NYPD”), were summoned to active duty. Plaintiffs have asserted individual claims alleging that Defendants violated the

Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301, et seq. (“USERRA”), by failing to correctly calculate Plaintiffs’ pension benefits. Specifically, Plaintiffs argue that Defendants’ determination of Plaintiffs’ pension payments should have taken into account the overtime and night shift differential pay that Plaintiffs would

Case 1:10-cv-05236-RJS Document 19 Filed 09/26/11 Page 2 of 10

have earned had they not been deployed to active duty.
Before the Court are Defendants’ motions to dismiss Plaintiffs’ complaints pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, Defendants’ motions are denied.
I. BACKGROUND
A. Statutory Framework
Congress enacted USERRA in 1994 to “clarify, simplify, and, where necessary, strengthen the existing veterans’ employment and reemployment rights provisions.” Gummo v. Vill. of Depew, NY, 75 F.3d 98, 105 (2d Cir. 1996) (internal quotation marks omitted). Specifically, in passing USERRA, Congress sought “(1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers . . . ; (2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers . . . ; and (3) to prohibit discrimination against persons because of their service in the uniformed services.” 38 U.S.C. § 4301.
Among the protections provided by USERRA are provisions related to the pension benefits a servicemember receives from his civilian employer. See 38 U.S.C. § 4318. As a general matter, § 4318 of USERRA provides that a servicemember’s pension benefits will continue to accrue while he is on active duty:
Each period served by a person in the uniformed services shall, upon reemployment . . . be deemed to constitute service with the employer . . . for the purpose of determining

the nonforfeitability of the person’s accrued benefits and for the purpose of determining the accrual of benefits under the plan.
Id. § 4318(a)(2)(B). To that end, USERRA requires an employer to make contributions to the pension fund of a deployed reservist “in the same manner and to the same extent the allocation occurs for other employees during the period of service.” Id. § 4318(b)(1).
To determine the amount that an employer is required to contribute to a servicemember’s pension plan while he is on active duty, USERRA provides as follows:
[T]he employee’s compensation during the period of service described in subsection (a)(2)(B) shall be computed--
(A) at the rate the employee would have received but for the period of service described in subsection (a)(2)(B), or
(B) in the case that the determination of such rate is not reasonably certain, on the basis of the employee’s average rate of compensation during the 12month period immediately preceding such period (or, if shorter, the period of employment immediately preceding such period).
38 U.S.C. § 4318(b)(3).

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B. Facts1
Plaintiffs are retired military reservists and NYPD officers who are members of the New York City Police Pension Fund (the “Pension Fund”). (Goodman Compl. ¶¶ 8-9, 15; Doherty Compl. ¶¶ 8-9, 14.) The Pension Fund requires contributions by the employee and the employer in an amount that constitutes a percentage of the employee’s income. See New York City Police Pension Fund, About PPF, available at http://www.nyc.gov/html/nycppf/html/abo ut_ppf/about.shtml (accessed September 9, 2011) (“Pension Fund Website”). According to the Complaint, while employed by the NYPD, Plaintiffs regularly worked overtime and night shifts, for which they received extra pay. (Goodman Compl. ¶ 12; Doherty Compl. ¶ 11.) On several occasions during their employment with the NYPD, Plaintiffs were called to active duty. (Goodman Compl. ¶ 11; Doherty Compl. ¶ 10.) During each period of active service, the NYPD continued to pay Plaintiffs their base salaries, and contributions were made to Plaintiffs’ pension funds based on this rate of pay.
Since Plaintiffs’ retirement from the NYPD, each has received monthly payments from the Pension Fund. (Goodman ¶ 15; Doherty ¶ 14.) Each Plaintiff’s monthly pension payment is calculated based on his
1 The following facts, which are not in dispute, are taken from Plaintiffs’ respective complaints as well as matters of which the Court may take judicial notice. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). In addition, the Court makes reference to the parties’ memoranda of law, designated as follows: Defendants’ opening brief in Goodman (“Defs.’ Mem.”); Plaintiff’s opposition brief in Goodman (“Pl.’s Opp’n); Defendants’ supplemental brief in Doherty (“Doherty Mem.”); Plaintiffs’ opposition brief in Doherty (“Doherty Opp’n); Defendants’ reply brief in Doherty (“Doherty Reply”).

rate of pay in either the thirty-six months preceding retirement or the twelve months preceding retirement, whichever is higher. See Pension Fund Website. Plaintiffs allege that they were deployed to active duty during the final thirty-six months of their employment with the NYPD and, accordingly, their pension payments do not reflect the extra pay they would have received had they not been deployed.
II. PROCEDURAL HISTORY
Plaintiff Goodman commenced his action in this Court on July 9, 2010. Defendants moved to dismiss the complaint on October 8, 2010, and the motion was fully submitted as of November 19, 2010. On May 19, 2011, Plaintiff Doherty filed his complaint, advancing substantially similar allegations to those put forward by Plaintiff Goodman. Shortly thereafter, Defendants expressed their intention to move to dismiss the Doherty action. Due to the similarity of the two actions, and the fact that the parties in each action are represented by the same counsel, the Court deemed Defendants’ contemplated motion to dismiss Doherty’s complaint as made, and construed the briefing in the Goodman action as applying equally toward Defendants’ motion to dismiss the Doherty action. The Court permitted the parties to make supplemental submissions, and, on July 8, 2011, Defendants submitted a brief in which they argued that, in addition to failing to state a claim under USERRA, Doherty’s action is barred by the statute of limitations. Briefing on this issue was completed as of August 1, 2011. The Court thereafter held oral argument on August 19, 2011.
III. STANDARD OF REVIEW
On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

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Procedure, the Court must accept all wellpleaded allegations contained in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). To state a legally sufficient claim, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility where the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. ---, 129 S. Ct. 1937, 1949 (2009). By contrast, a pleading that only “offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). If the plaintiffs “have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570.
IV. DISCUSSION
A. Calculation of Plaintiffs’ Pension Benefits
As stated above, Plaintiffs argue that Defendants failed to calculate Plaintiffs’ pension benefits in accordance with USERRA, because the compensation rate that was used for this calculation did not include overtime and differential pay that Plaintiffs would have earned “but for the period of service.”2 Id. § 4318(b)(3)(A). To
2 Plaintiffs are not seeking back pay for the overtime and differential pay they allegedly would have received had they not been deployed. Indeed, a civilian employer is not required to pay servicemembers any compensation during periods of active duty. See Monroe v. Standard Oil Co., 452 U.S. 549, 563 (1981). Rather, Plaintiffs are merely

the extent that the amount of such compensation is not “reasonably certain,” Plaintiffs argue that their pension benefits should be based on their average rate of compensation during the 12-month period immediately preceding their period of service. See id. § 4318(b)(3)(B). Defendants, referencing USERRA’s legislative history as well as certain provisions of its implementing regulations, contend that the pension provisions of USERRA “contemplate a situation in which the employee was not paid at all during his or her period of military service” and, therefore, do not apply to Plaintiffs. (Defs.’ Mem. at 8.)
The first step in the Court’s analysis of USERRA’s pension provisions “is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005); accord Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072-73 (2d Cir. 1993) (“[A] court should presume that the statute says what it means.”). “If the words of a statute are unambiguous, judicial inquiry should end, and the law [shall be] interpreted according to the plain meaning of its words.” Aslanidis, 7 F.3d at 1072-73 (citing Rubin v. United States, 449 U.S. 424, 430 (1981)).
The statutory language at the center of this dispute is USERRA’s provision that, “[f]or purposes of computing an employer’s
seeking that their pension benefits be based on the compensation they would have received had they not been on active service.

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liability” to an employee’s pension plan, “the employee’s compensation during the period of service . . . shall be computed”:
(A) at the rate the employee would have received but for the period of service . . . , or
(B) in the case that the determination of such rate is not reasonably certain, on the basis of the employee’s average rate of compensation during the 12-month period immediately preceding such period.
38 U.S.C. § 4318(b)(3). The Court finds nothing in the plain language of these provisions to support Defendants’ claim that Congress intended § 4318(b)(3) to apply only in a situation “in which the employee was not paid at all during his or her period of military service.” (Defs.’ Mem. at 8.) The statute explicitly directs employers to calculate a reservist’s pension benefit “at the rate [of compensation] the employee would have received but for the period of service.” 38 U.S.C. § 4318(b)(3)(A) (emphasis added). While this statutory provision would certainly be triggered in the event that a servicemember receives no compensation from his civilian employer while on active duty, there is nothing in the plain language of the statute to suggest that the provision is limited to such a circumstance. To the contrary, the most natural reading of this provision is that it includes all aspects of “the employee’s compensation” that would have been received “but for” his deployment, regardless of whether some or all of such compensation has in fact been paid. Id. § 4318(b)(3).
Defendants argue, nevertheless, that the regulation promulgated under USERRA, 20 C.F.R. § 1002.267, is reflective of Congress’s purported intention that

USERRA’s pension provisions apply only to reservists who were not compensated at all while on active duty. Specifically, Defendants highlight the regulation’s instruction that “[w]here the employee’s rate of compensation must be calculated to determine pension entitlement, the calculation must be made using the rate of pay that the employee would have received but for the period of uniformed service.” (Defs.’ Mem. at 8-9 (quoting 20 C.F.R. § 1002.267).) According to Defendants, because Plaintiffs were in fact compensated by Defendants during their periods of active duty, and because both Plaintiffs and Defendants made pension contributions based on this rate of compensation, there is nothing to calculate and USERRA’s pension provisions are not triggered.
The Court is not persuaded, however, that the regulation’s use of the phrase “must be calculated” compels the conclusion that USERRA’s pension provisions are limited to servicemembers who were not paid at all while on active duty. To the contrary, the language of this regulation appears to apply naturally to the circumstances raised in this case – where an element of the employee’s compensation, which by its very nature is uncertain, was not actually paid to the reservist and therefore “must be calculated.” Indeed, the regulation’s next provision explicitly contemplates a situation in which some or all of the servicemember’s compensation is similarly indefinite: “[w]here the rate of pay the employee would have received is not reasonably certain, such as where compensation is based on commissions earned, the average rate of compensation during the 12-month period prior to the period of uniformed service must be used.” 20 C.F.R. § 1002.267(b)(1) (emphasis added). The Court sees no meaningful difference between the example described in the regulation and the facts of

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the case at bar. There is certainly no basis for concluding that the drafters of this regulation intended to articulate, in such a cryptic fashion, a distinction between employees who were paid a portion of their compensation while on active duty and those who were not. If Congress had intended to draw such a distinction, it could have done so with much greater clarity in the language of the statute itself.
Further, there is no merit to Defendants’ argument that overtime and night shift differential pay should be excluded from pension calculations because they are “nonseniority benefits.” (Defs.’ Mem. at 12 (citing 38 U.S.C. § 4316(a)).) Defendants correctly note that § 4316 of USERRA provides certain protections to seniority benefits that it does not provide to nonseniority benefits. (See Defs.’ Mem. at 12.) Citing the Fifth Circuit’s decision in Rogers v. City of San Antonio, 392 F.3d 758 (5th Cir. 2004), Defendants argue that, because the right to receive overtime pay is a nonseniority benefit, it is improper to include such pay in the calculation of a servicemember’s pensionable compensation. (Defs.’ Mem. at 11-18.)
However, as noted above, Plaintiffs are not seeking to be compensated for the overtime and differential pay they did not earn while on active duty. Rather, Plaintiffs only seek to include this income in the calculation of their pensionable compensation. Accordingly, § 4316 does not apply and the seniority/non-seniority distinction is inapposite. Indeed, § 4316 explicitly exempts pension benefits from its treatment of non-seniority benefits. 38 U.S.C. § 4316(b)(6) (“The entitlement of a person to a right or benefit under an employee pension benefit plan is provided for under section 4318.”).

Despite the plain language of the statute, Defendants point to isolated statements from USERRA’s legislative history in support of their position that the pension benefit provisions at issue apply only to servicemembers who were not compensated by their employer while on active duty. Specifically, Defendants rely on a House Report that states, in relevant part:
[USERRA’s pension provisions] provide[] that if there is a need to use imputed earnings of an employee to calculate pension benefits during a period when in fact there were no earnings because of the absence in military service, the employee’s preservice rate of pay will be used.
103 H. Rpt. 65 (1993) (emphasis added). Defendants argue that this piece of legislative history suggests that Congress only intended USERRA’s pension provisions to “ensure that an employee absent for military duty will not lose contributions to his or her pension in a circumstance where the employer opts not to pay the employee during a period of military absence.” (Defs.’ Mem. at 9.)
Because the Court finds that USERRA’s pension provisions are unambiguous, it need not consider the statute’s legislative history. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002) (stating that “if the statutory language is unambiguous and the statutory scheme is coherent and consistent,” then “[t]he inquiry ceases” (internal quotation marks omitted)); Peralta-Taveras v. Attorney Gen., 488 F.3d 580, 584 (2d Cir. 2007) (“Legislative history is not to be used to ‘beget’ ambiguity in an otherwise unambiguous statute.”) Nevertheless, a broader examination of USERRA’s legislative history reveals a more varied

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landscape than Defendants represent. As the

bill’s sponsor in the House of

Representatives stressed, Congress’ intent in

passing USERRA was to “assure civilians

called to the colors that they would not be

disadvantaged while in service compared to

workers whose lives were not similarly

interrupted.” 140 Cong. Rec. H91135 (daily

ed. Sept. 13, 1994) (statement of Rep.

Montgomery).

Courts interpreting

USERRA have consistently concurred with

this notion, finding that the statute “is to be

liberally construed in favor of those who

served their country.” McGuire v. United

Parcel Serv., 152 F.3d 673, 676 (7th Cir.

1998); accord Hill v. Michelin N. Am., Inc.,

252 F.3d 307, 312-13 (4th Cir. 2001)

(USERRA “must be broadly construed in

favor of its military beneficiaries”). Thus,

even if the Court were to consider

USERRA’s legislative history, it would find

that Congress’ intention weighs strongly in

favor of ensuring that a servicemember’s

pension is the same as if he had not been

called to active duty.

Accordingly, the Court cannot find, as a matter of law, that Congress intended USERRA to exclude from pension calculations overtime and night shift pay that Plaintiffs would have earned “but for” the servicemember’s deployment. Rather, whether Plaintiffs would have earned such variable compensation is an issue of fact that cannot be resolved without discovery.3

3 Defendants’ also argue that Plaintiffs are not entitled to pension credit for overtime and differential pay because Plaintiffs did not make contributions to their pensions based on this level of compensation. In each complaint, however, Plaintiff seeks an order that Defendants “calculate and inform [Plaintiff] of the amount of pension contributions owed by [Plaintiff] as a result of recalculating [Plaintiff’s] compensation . . . in accordance with USERRA.” (Goodman Compl. ¶ F; Doherty Compl. ¶ F.) The Court agrees that whether and how much each Plaintiff may need to contribute to his pension fund is

B. Statute of Limitations
Defendants also argue that Plaintiff Doherty’s USERRA claims are barred by the four-year statute of limitations set forth in 28 U.S.C. § 1658(a). For purposes of this motion, the parties do not dispute that Doherty’s claim accrued on January 27, 2007.4 Thus, if the Court were to apply the four-year statute of limitations, Doherty’s claim would have been time barred as of January 27, 2011 – four months prior to the commencement of his action. Doherty argues, however, that, pursuant to the Veterans’ Benefits Improvement Act of 2008 (“VBIA”), 38 U.S.C. § 4327(b), his claim is timely.
USERRA, as originally enacted in 1994, did not specify a statute of limitations, providing instead that “no State statute of limitations shall apply to any proceeding under this chapter.” 38 U.S.C. § 4323(i) (1994). While the plain language suggests that Congress did not intend for any statute of limitations – state or federal – to apply to USERRA, in practice courts have generally applied the four-year statute of limitations that attaches to any cause of action “aris[ing] under an Act of Congress enacted after [December 1, 1990.]” 28 U.S.C. § 1658(a); see, e.g., Middleton v. City of Chicago, 578 F.3d 655, 661-62 (7th Cir. 2009).
a question of fact that cannot be resolved at this stage of the litigation.
4 Doherty retired from the NYPD on January 4, 2004. Upon his retirement, Doherty was redeployed to active duty, where he remained until January 27, 2007. Pursuant to the Servicemembers Civil Relief Act, 50 App. U.S.C. § 526, Doherty’s USERRA claim was tolled during this period of service. See id. § 526(a) (“The period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court.”)

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On October 10, 2008, however, Congress enacted the VBIA, which definitively exempted claims brought under USERRA from any statute of limitations. The statute provides, in relevant part:
If any person seeks to file a complaint or claim with . . . a Federal or State court under this chapter alleging a violation of this chapter, there shall be no limit on the period for filing the complaint or claim.
38 U.S.C. § 4327(b). Because Doherty’s claim accrued on January 27, 2007, it was not time barred when the VBIA took effect. The parties dispute, however, whether the VBIA eliminated the statute of limitations for such “live claims,” or whether it applies only to claims that accrued after its enactment.
Defendants cite to Landgraf v. USI Film Prods., 511 U.S. 244 (1994), in support of their position that application of the VBIA to Doherty’s claims would have an “impermissible retroactive [e]ffect.” (Doherty Reply at 2.) In Landgraf, the Supreme Court formulated a two-prong test for courts to apply in cases where a federal statute enacted after the events giving rise to a suit has the potential to affect the outcome of the case. First, a court must examine the statute to determine whether Congress has “expressly prescribed the statute’s proper reach.” Landgraf, 511 U.S. at 280. If Congress has done so, the inquiry ends. See id. “When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. If

so, then the traditional presumption against retroactivity applies and the statute must be construed “as inapplicable to the event or act in question.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37-38 (2006).
The plain language of the VBIA suggests that Congress clearly “prescribed the statue’s proper reach” and intended for no statute of limitations to apply to claims such as Doherty’s. As noted above, the VBIA applies to “any person” who “seeks to file a complaint or claim . . . with a Federal or State court.” 38 U.S.C. § 4327(b). Defendants argue that this language “suggests that [the statute] applies prospectively” and, therefore, only includes claims that accrued after the VBIA’s passage. (Doherty Mem. at 9.) While the language “seeks to file” does indeed suggest a prospective application, the activity that is the subject of such application is the filing of the complaint, not the underlying actions that gave rise to the claim. See Vernon v. Cassadaga Vally Cent. Sch. Dist., 49 F.3d 886, 890 (2d Cir. 1995) (“[W]here as here, the new rule announces a period of limitations, the conduct to which it refers is the plaintiff’s conduct relating to the filing of the claim and not the defendant’s conduct giving rise to the claim.”). Accordingly, the express language of the VBIA indicates that it applies to any plaintiff who, like Doherty, filed his complaint after the statute was enacted.
Moreover, even if the Court were to conclude that the statute was silent on this point, thus triggering analysis of the second Landgraf factor, the Court nevertheless finds that application of the VBIA to Doherty’s claims would clearly not result in an impermissible retroactive effect. As noted above, application of a statute has a “retroactive effect” only where such application “would impair rights a party

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possessed when he acted, [or] increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280. Here, applying the VBIA to Doherty’s USERRA claim does not impair any of Defendants’ rights, because, at the time that the VBIA was enacted, Defendants could not have asserted the statute of limitations defense. Further, the VBIA plainly does not impose new duties or liabilities on Defendants, but merely extends the time in which a plaintiff may assert claims for violations of already-existing rights. See Vernon, 49 F.3d at 889 (noting that, as a general matter, applying a new or amended statute of limitations to a cause of action “filed after its enactment, but arising out of events that predate its enactment, generally is not a retroactive application of the statute”). Because the VBIA did not change the rights or duties of either party, Doherty’s claim is not barred by the second prong of Landgraf.
Other courts that have considered this issue have likewise found that application of the VBIA to claims that were live at the time of its enactment did not have an impermissible retroactive effect. See Andritzky v. Concordia Univ. Chicago, 096633 (RWG), 2010 WL 1474582, at *4-5 (N.D. Ill. Apr. 8, 2010) (holding that USERRA claims accruing within four years of the VBIA’s enactment are governed by the VBIA and are therefore not time barred); Roark v. Lee Co., No 09-0402 (WJH), 2009 WL 4041691, at *5 (M.D. Tenn. Nov. 20, 2009) (same).
The cases cited by Defendants involve claims by plaintiffs that had expired prior to a revision of the applicable statute of limitations and are therefore inapposite. See Middleton, 578 F.3d at 657 (7th Cir. 2009) (finding plaintiff’s USERRA claim time

barred where it was filed thirteen years after it had accrued and prior to the VBIA’s enactment); In re Enter. Mortg. Acceptance Co. Sec. Litig., 391 F.3d 401 (2d Cir. 2004) (finding that Section 804 of the SarbanesOxley Act, which extended the statute of limitations period for certain securities fraud claims, did not revive previously-expired claims). In contrast to these cases, here the VBIA did not result in the “resurrection of previously time-barred claims” and therefore does not “increase [a defendant’s] liability for past conduct.” In re Enterprise, 391 F.3d at 410; see Andritzky, 2010 WL 1474582, at *3-4 (distinguishing Middleton from a case in which a plaintiff’s USERRA claim accrued within four years of the VBIA’s enactment). As such, the retroactivity concerns raised by these courts are not applicable here.
Accordingly, the Court finds that Plaintiff Doherty’s claim is not barred by the statute of limitations.
V. CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss are denied. Accordingly, IT IS HEREBY ORDRED that, by October 19, 2011, the parties shall submit a joint letter, not to exceed five pages, providing the following information in separate paragraphs: (1) a brief description of any discovery that has already taken place, and that which will be necessary for the parties to engage in meaningful settlement negotiations; (2) a list of all prior settlement discussions, including the date, the parties involved, and the approximate duration of such discussions, if any; and (3) the estimated length of trial.
IT IS FURTHER ORDERED that, by October 19, 2011, the parties shall submit a proposed case management plan and

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Case 1:10-cv-05236-RJS Document 19 Filed 09/26/11 Page 10 of 10

scheduling order, which is available at www.nysd.uscourts.gov/judge/sullivan.

IT IS FURTHER ORDERED that the parties shall appear for a status conference on October 28, 2011, at 9:30 a.m. in Courtroom 21 C of the United States District Court for the Southern District of New York, 500 Pearl Street, New York, New York.

The Clerk of Court is respectfully directed to terminate the motions located at Doc. No. 11 in Goodman v. NYC, 10 Civ. 5236, and at Doc. No. 11 in Doherty v. NYC, 11 Civ. 3432.

SO ORDERED.

Dated: September 26, 2011 


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Plaintiffs are represented by Assistant United States Attorney Tara La Morte, United States Attorneys' Office for the Southern District of New York, 86 Chambers Stree!. j\;ew York, New York 10007.

Defendants arc represented by Alicia Welch, New York City Law Department, Office of the Corporation Counsel, 100 Church Street, New York. New York 10007.

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10

 
 Case 1:10-cv-05236-RJS Document 72 Filed 08/02/12 Page 1 of 16

PREET BHARARA United States Attorney Southern District of New York By: TARA M. La MORTE
ARASTU K. CHAUDHURY Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel. No. (212) 637-2746 Fax No. (212) 637-2702 tara.lamorte2@usdoj.gov arastu.chaudhury@usdoj.gov

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

DAVID GOODMAN,

:

MICHAEL DOHERTY, and

:

ROBERT D. BLACK,

:

Individually and on behalf of a class of :

similarly situated persons,

:

:

Plaintiffs, :

:

- against -

:

:

CITY OF NEW YORK, NEW YORK

:

CITY POLICE DEPARTMENT, and NEW :

YORK CITY POLICE PENSION FUND, :

:

Defendants. :

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

FIRST AMENDED COMPLAINT-CLASS ACTION
10 Civ. 5236 (RJS)
ECF CASE

Plaintiffs David Goodman (“Goodman”), Michael Doherty (“Doherty”), and Robert D.

Black (“Black”), on behalf of themselves and a class of similarly situated persons, by and

through undersigned attorneys, allege as follows:

1. This civil action is brought pursuant to the Uniformed Services Employment and

Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-4335 (“USERRA”).

Case 1:10-cv-05236-RJS Document 72 Filed 08/02/12 Page 2 of 16
JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action pursuant to 38 U.S.C. § 4323(b) and 28 U.S.C. § 1331. 3. Venue is proper in this district under 38 U.S.C. § 4323(c)(2) because defendants City of New York (“NYC”), New York City Police Department (“NYPD”) and New York City Police Pension Fund (“Pension Fund”) maintain their principal place of business in this district. Additionally, venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to this action occurred in this district.
PARTIES 4. Goodman is a retired officer of the NYPD who resides in New York, New York, within the jurisdiction of this Court. 5. Doherty is a retired officer of the NYPD who resides in Lindenhurst, New York. 6. Black is a retired officer of the NYPD who resides in Levittown, New York. 7. NYPD is located within the jurisdiction of this Court and is an employer within the meaning of 38 U.S.C. § 4303(4)(A) and 38 U.S.C. § 4323(i). NYPD is an agency of NYC. 8. NYC is located within the jurisdiction of this Court and is an employer within the meaning of 38 U.S.C. § 4303(4)(A) and 38 U.S.C. § 4323(i). 9. Pension Fund is located within the jurisdiction of this Court and is an employer within the meaning of 38 U.S.C. § 4303(4)(C) and 38 U.S.C. § 4323(i). Pension Fund is an agency of NYC that, pursuant to the Administrative Code of the City of New York, has the powers and privileges of a corporation.
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FACTUAL ALLEGATIONS 10. The Pension Fund operates pursuant to Title 13 of the Administrative Code of the City of New York. The Pension Fund is responsible for, inter alia, performing pension payment calculations on behalf of its members, which include members of the police force. 11. As calculated by the Pension Fund, pensionable earnings include overtime compensation and night shift differential compensation that members earn. Pensionable earnings serve as the basis for members’ annual pension benefit. 12. Based on past practice and policy of the NYPD, it is reasonably certain that NYPD officers who work hours falling within a night shift will earn night shift differential pay, although the amount of night shift differential pay that an individual officer will receive may not be reasonably certain. Based on past practice and policy of the NYPD, it is reasonably certain that NYPD officers will earn overtime compensation, although the amount of overtime compensation that an individual officer will receive may not be reasonably certain. 13. To determine the pensionable earnings of members who are NYPD officers and are absent from NYPD employment to perform active military service in the uniformed services, the Pension Fund must impute and calculate the pensionable earnings the officers would have had during their periods of military service as if those officers had remained continuously employed. 14. In performing the computations described in paragraph 13 of this Complaint, the Pension Fund did not rely upon members’ average rate of compensation, including overtime hours and night shift differential pay, during the 12 months immediately preceding members’ respective period(s) of military service (or, if shorter, the period of employment immediately
3

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preceding such period). Nor did the Pension Fund otherwise rely upon the compensation, including overtime and/or night shift differential pay, members would have earned but for their respective period(s) of military service.
15. NYPD is responsible for making pension contributions to the Pension Fund on behalf of the Pension Fund’s members. The NYPD was responsible for making pension contributions on members’ behalf based upon their pensionable earnings, including during their period(s) of active military service. However, the NYPD’s contributions were not based upon the average rate of compensation, including overtime hours and night shift differential pay, members received during the 12 months immediately preceding each of their respective periods of military service (or, if shorter, the period of employment immediately preceding such uniformed service). Nor were they otherwise based upon the compensation, including overtime and/or night shift differential pay, members would have earned but for their respective period(s) military service.
16. NYC also is responsible for making pension contributions to the Pension Fund on behalf of the Pension Fund’s members. NYC was responsible for making pension contributions on members’ behalf based upon their pensionable earnings, including during their period(s) of active military service. However, the NYPD’s contributions were not based upon the average rate of compensation, including overtime hours and night shift differential pay, members received during the 12 months immediately preceding each of their respective periods of military service (or, if shorter, the period of employment immediately preceding such uniformed service). Nor were they otherwise based upon the compensation, including overtime and/or night shift differential pay, members would have earned but for their respective period(s) of military service.
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David Goodman 17. Goodman has been a member of the United States Army Reserves since 1981 and
currently holds the rank of Lieutenant Colonel. 18. In 1992, Goodman began work at the NYPD. From May 11, 1999 to his
retirement on July 28, 2009, he held the position of Detective, third grade. 19. On March 12, 2002, NYPD assigned Goodman to the counterterrorism division.
On September 12, 2008, NYPD assigned Goodman to the Office of Emergency Management. 20. Since 1981, Goodman has performed his Army Reserve duties and has been
called to active duty on multiple occasions. For example, from March 5, 2002 to March 4, 2003, he was ordered to active duty in support of Operation Enduring Freedom. From March 7, 2004 to September 27, 2004, he was ordered to active duty and served a portion of this time in Afghanistan. From November 15, 2005 to May 13, 2006, he was ordered to active duty and deployed to Jordan to help train Iraqi counterterrorism forces. From October 27, 2008 to April 23, 2009, he was ordered to active duty during which time he served on a joint task force in Iraq.
21. Throughout the time of his employment with NYPD, including but not limited to the 12 months preceding each of his periods of active military service, Goodman worked overtime hours, for which he was compensated. The NYPD compensated Goodman for most of his overtime work by cash payments. For other overtime hours worked, NYPD compensated Goodman with additional leave. The amount of compensation Goodman earned for working overtime hours depended upon, inter alia, the time of day Goodman worked overtime hours.
22. During the periods of Goodman’s active military service, NYPD employees had the opportunity to work, and did work, overtime hours. Had Goodman not been performing
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active military service, he would have been working overtime hours for NYPD. 23. Throughout the time of his employment with NYPD, including but not limited to
within the 12 months preceding each of his periods of active military service, Goodman worked hours entitling him to night shift differential compensation.
24. During the periods of Goodman’s active military service, NYPD employees had the opportunity to work, and did work hours entitling them to payment of night shift differential. Had Goodman not been performing active military service, he would have earned night shift differential pay.
25. Goodman is a member of the Pension Fund. Since his retirement from the NYPD on July 28, 2009, Goodman is entitled to receive, and has been receiving, an annual pension paid in equal monthly installments.
26. The Pension Fund must compute Goodman’s compensation during his periods of active military service in order to determine Goodman’s pensionable earnings, which serves as the basis for Goodman’s annual pension benefit.
27. In performing the computations described in paragraph 26 of this Complaint, the Pension Fund did not rely upon Goodman’s average rate of compensation, including overtime hours and night shift differential pay, during the 12 months immediately preceding each of his periods of military service (or, if shorter, the period of employment immediately preceding such period). Nor did the Pension Fund otherwise rely upon the overtime and/or night shift differential pay Goodman would have earned but for his military service.
28. The NYPD was responsible for making pension contributions on Goodman’s behalf based on his pensionable earnings, including during the periods of Goodman’s active
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military service. The NYPD’s contributions with respect to Goodman’s periods of active military service were not based upon Goodman’s average rate of compensation, including overtime hours and night shift differential pay, during the 12 months immediately preceding each of his periods of military service (or, if shorter, the period of employment immediately preceding such period). Nor were they otherwise based upon the overtime and/or night shift differential pay Goodman would have earned but for his military service.
29. NYC also was and is responsible for making pension contributions on Goodman’s behalf based on his pensionable earnings, including during the periods of Goodman’s active military service. NYC’s contributions with respect to Goodman’s periods of active military service were not based upon Goodman’s average rate of compensation, including overtime hours and night shift differential pay, during the 12 months immediately preceding each of his periods of military service (or, if shorter, the period of employment immediately preceding such period). Nor were they otherwise based upon the overtime and/or night shift differential pay Goodman would have earned but for his military service.
30. The acts and practices of the NYC, NYPD and the Pension Fund, set forth in paragraphs 10-29, violated Section 4318 of USERRA, with respect to Plaintiff Goodman. Michael Doherty
31. Doherty joined the United States Coast Guard Reserves in 1987, and retired in 2007.
32. In 1984, Doherty began work at the NYPD. From July 1997, to his retirement on January 4, 2004, he held the position of Detective, third grade, and was assigned to Brooklyn South Night Watch, where he handled major crimes.
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33. Since 1987, Doherty has performed his U.S. Coast Guard Reserve duties and has been called to active duty. For example, from January 28, 2003 to August 11, 2003, Doherty was mobilized in support of Operation Enduring Freedom. He was reactivated from February 2, 2004 to January 27, 2007. Doherty earned a number of awards and commendations for his U.S. Coast Guard Reserve service.
34. Throughout the time of his employment with NYPD, including but not limited to the 12 months preceding each of his periods of active military service, Doherty worked overtime hours, for which he was compensated. The NYPD compensated Doherty for his overtime work by either cash payments or additional leave, at Doherty’s discretion. The amount of compensation Doherty earned for working overtime hours depended upon, among other things, the time of day Doherty worked overtime hours.
35. During the periods of Doherty’s active military service, NYPD employees had the opportunity to work, and did work, overtime hours. Had Doherty not been performing active military service, he would have been working overtime hours for NYPD.
36. Beginning in 1997, Doherty was assigned an overnight tour of duty, which required him to work between the hours of 11:00 p.m. and 8:00 a.m. Doherty earned night shift differential pay for performing this tour of duty. Had Doherty not performed active military service, he would have earned night shift differential pay from the NYPD. Upon returning to employment with NYPD following his active military service, Doherty was ultimately reassigned to Brooklyn South Night Watch, where he resumed his overnight tour of duty.
37. Doherty is a member of the Pension Fund. Since his retirement from the NYPD on January 4, 2004, Doherty is entitled to receive, and has been receiving, an annual pension paid
8

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in equal monthly installments. 38. The Pension Fund must compute Doherty’s compensation during his periods of
active service in order to determine Doherty’s pensionable earnings, which serves as the basis for Doherty’s annual pension benefit.
39. In performing the computations described in paragraph 38 of this Complaint, the Pension Fund did not rely upon Doherty’s average rate of compensation, including overtime hours and night shift differential pay, during the 12-month period immediately preceding each of his periods of military service (or, if shorter, the period of employment immediately preceding such period). Nor did the Pension Fund otherwise rely upon the overtime and/or night shift differential pay Doherty would have earned but for his military service.
40. The NYPD was responsible for making pension contributions on Doherty’s behalf based on his pensionable earnings, including during the periods of Doherty’s active military service. The NYPD’s contributions with respect to Doherty’s periods of active military service were not based upon Doherty’s average rate of compensation, including overtime hours and night shift differential pay, during the 12 months immediately preceding each of his periods of military service (or, if shorter, the period of employment immediately preceding such period). Nor were they otherwise based upon the overtime and/or night shift differential pay Doherty would have earned but for his military service.
41. NYC was and is responsible for making pension contributions on Doherty’s behalf based on his pensionable earnings, including during the periods of Doherty’s active military service. NYC’s contributions with respect to Doherty’s periods of active military service were not based upon Doherty’s average rate of compensation, including overtime hours
9

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and night shift differential pay, during the 12 months immediately preceding each of his periods of military service (or, if shorter, the period of employment immediately preceding such period). Nor were they otherwise based upon the overtime and/or night shift differential pay Doherty would have earned but for his military service.
42. The acts and practices of the NYC, NYPD and the Pension Fund, set forth in paragraphs 10-16 and 31-41, violated Section 4318 of USERRA, with respect to Plaintiff Doherty. Robert D. Black
43. Black joined the United States Coast Guard Reserves in 1990. 44. In 1984, Black began work at the NYPD. On October 27, 2000, Black was promoted to Sergeant, and was assigned to the NYPD’s Forensic Unit in Jamaica, Queens. Black retired from the NYPD on or about December 12, 2004. 45. Since 1990, Black has performed his U.S. Coast Guard Reserve duties and has been called to active duty. For example, from March 10, 2003 to August 12, 2003, Black was mobilized in support of Operation Enduring Freedom. 46. Throughout the time of his employment with NYPD, Black worked overtime hours, for which he was compensated. The NYPD compensated Black for most of his overtime work by cash payments. The amount of compensation Black earned for working overtime hours depended upon, among other things, the time of day Black worked overtime hours. 47. During the periods of Black’s active military service, including but not limited to the 12 months immediately preceding each of his periods of active military service, NYPD employees had the opportunity to work, and did work, overtime hours. Had Black not been
10

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performing active military service, he would have been working overtime hours for NYPD. 48. Black is a member of the Pension Fund. Since his retirement from the NYPD on
December 12, 2004, Black is entitled to receive, and has been receiving, an annual pension paid in equal monthly installments.
49. The Pension Fund must compute Black’s compensation during his periods of active service in order to determine Black’s pensionable earnings, which serves as the basis for Black’s annual pension benefit.
50. In performing the computations described in paragraph 49 of this Complaint, the Pension Fund did not rely upon Black’s average rate of compensation, including overtime hours and night shift differential pay, during the 12 months immediately preceding each of his periods of military service (or, if shorter, the period of employment immediately preceding such period). Nor did the Pension Fund otherwise rely upon the overtime and/or night shift differential pay Black would have earned but for his military service.
51. The NYPD was responsible for making pension contributions on Black’s behalf based on his pensionable earnings, including during the periods of Black’s active military service. NYPD’s contributions with respect to Black’s periods of active military service were not based upon Black’s average rate of compensation, including overtime hours and night shift differential pay, during the 12 months immediately preceding each of his periods of military service (or, if shorter, the period of employment immediately preceding such period). Nor were they otherwise based upon the overtime and/or night shift differential pay Black would have earned but for his military service.
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52. NYC was and is responsible for making pension contributions on Black's behalf based on his pensionable earnings, including during the periods of Black's active military service. NYC’s contributions with respect to Black’s periods of active military service were not based upon Black’s average rate of compensation, including overtime hours and night shift differential pay, during the 12 months immediately preceding each of his periods of military service (or, if shorter, the period of employment immediately preceding such period). Nor were they otherwise based upon the overtime and/or night shift differential pay Black would have earned but for his military service.
53. The acts and practices of the NYC, NYPD and the Pension Fund, set forth in paragraphs 10-16 and 43-52, violated Section 4318 of USERRA, with respect to Plaintiff Black.
53. The acts and practices of the NYC, NYPD and the Pension Fund, set forth in paragraphs 10-16, 25-29, 37-41, and 48-52, violated Section 4318 of USERRA, with respect to named Plaintiffs Goodman, Doherty, and Black, and a class of similarly situated current and retired NYPD officers who were called to active military duty during the time of their employment with the NYPD. Defendants violated USERRA, among other ways, by failing to calculate Pension Fund members’ compensation for pension purposes during periods of military service in accordance with the statutory commands.
54. Defendants’ violations are ongoing. As a result of the ongoing statutory violations committed by NYC, NYPD and the Pension Fund, Goodman, Doherty, Black, and a class of similarly situated current and retired NYPD officers who were called to active military duty during the time of their employment with the NYPD, suffered or will suffer the loss of pension benefits in an amount to be determined at trial.
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CLASS ACTION ALLEGATIONS 55. Plaintiffs bring this action pursuant to Rule 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure. For purposes of Rule 23(b)(2), Plaintiffs bring this action on behalf of all current and retired NYPD officers who performed or will serve on active military service since September 11, 2001, during the time of their employment with the NYPD. For purposes of Rule 23(b)(3), Plaintiffs bring this action on behalf of a sub-class of all retired NYPD officers who performed active military service since September 11, 2001, during the time of their employment with the NYPD. Plaintiffs are members of the class and sub-class they seek to represent. 56. The members of the class and sub-class are sufficiently numerous that joinder of all members is impracticable. Upon information and belief, the class contains more than 40 current and retired officers. Upon information and belief, the sub-class also contains more than 40 retired officers. 57. There are questions of law and fact common to both the class and sub-class, including, without limitation, whether Defendants, in calculating the pensionable earnings of NYPD officers called to active military service, have failed to account for the overtime and/or night shift differential pay that those officers reasonably could have expected to receive had they not been performing active military duty; and whether Defendants’ failure to do so constitutes a violation of USERRA. 58. The claims alleged by Plaintiffs are typical of the claims of the class and subclass. 59. The named Plaintiffs will fairly and adequately represent and protect the interests
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of the class and sub-class. 60. Undersigned counsel will fairly and adequately represent the interests of the class
and sub-class. 61. Class certification of Plaintiffs’ and class members’ requests for declaratory and
injunctive relief is appropriate pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure because Defendants have acted on grounds generally applicable to the class, making appropriate declaratory and injunctive relief to Plaintiffs and the class as a whole. Plaintiffs and class members are entitled to a declaration that Defendants’ acts and practices are unlawful; a declaration that 38 U.S.C. § 4318 preempts any and all inconsistent NYC, NYPD, and Pension Fund rules, regulations, policies, and practices concerning the calculation of pensionable compensation during periods of military service and the calculation of pension benefits; and an injunction requiring Defendants to perform pension calculations in accordance with USERRA.
62. Class certification of Plaintiffs’ and sub-class members’ requests for an order that the Pension Fund recalculate compensation during periods of military service in accordance with USERRA, 38 U.S.C. § 4318; inform Plaintiffs and sub-class members of pension contributions they may owe as a result of such recalculation; and that Defendants remit to Plaintiffs and subclass members the additional pension benefits owed to them as a result of recalculating compensation during their periods of military service in accordance with USERRA, 38 U.S.C. § 4318, is appropriate pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. Questions of law and fact common to the putative sub-class in this action predominate over individual questions affecting only individual members of the class, and a class action is superior to other available methods for the fair and efficient adjudication of this lawsuit.
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REQUEST FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves and members of the class, respectfully request that the Court enter judgment against NYC, NYPD, the Pension Fund, and their respective officers, agents, employees, successors and all persons in active concert or participation with it, as follows: A. Determine that this action may proceed and be maintained as a class action, designating Plaintiffs as Lead Plaintiffs, certifying Plaintiffs as class and sub-class representatives under Rule 23 of the Federal Rules of Civil Procedure and their counsel as lead counsel, and designating Plaintiffs as representatives of the class and sub-class and their counsel of record as Class Counsel; B. Declare that the Pension Fund’s method of calculating compensation during periods of military service for purposes of determining contributions and liability for pension benefits is in violation of USERRA, 38 U.S.C. § 4318; C. Declare that 38 U.S.C. § 4318 preempts any and all inconsistent NYC, NYPD, and Pension Fund rules, regulations, policies, and practices concerning the calculation of compensation during periods of military service and the calculation of pension benefits; D. Order that the Pension Fund calculate compensation during periods of military service in accordance with USERRA, 38 U.S.C. § 4318; E. Order that the Pension Fund recalculate compensation of sub-class members during periods of military service in accordance with USERRA, 38 U.S.C. § 4318; F. Order that the Pension Fund calculate and inform Plaintiffs and sub-class members of the amount of pension contributions they may owe as a result of recalculating
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 Case 1:10-cv-05236-RJS Document 110 Filed 01/14/14 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DAVID GOODMAN, et al., Plaintiffs,
-v-
CITY OF NEW YORK, et al., Defendants.

USDSSDNY DOCUMENT ELECTRONICALLY FILED DOC#: _____________ DATE FILED: t -I'"+ -ly
No. 10 Civ. 5236 (RJS)
FINAL ORDER APPROVING CLASS SETTLEMENT

RICHARD J. SULLIVAN, District Judge: On December 30, 2013, Plaintiffs filed their Unopposed Motion for Final Approval ofthe
Settlement (the "Motion"), in the above-captioned action, brought pursuant to the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. ("USERRA"). (Doc. No. 105.) All capitalized terms used in this Final Order, and not otherwise defined, shall have the meaning as defined in the Settlement Agreement (the "Agreement"), which is incorporated herein by reference. (Doc. No. 97-1.) In deciding this Motion, the Court has considered the Agreement, Plaintiffs' memorandum of law in support of their motion (Doc. No. I06), the Declaration of Tara M. LaMorte (Doc. No. 107), the Declaration of Juliette E.A. Deen (Doc. No. 108), the Declaration of the Chief Actuary ofthe New York City Retirement Systems, Robert C. North, Jr. (Doc. No. 109), and all exhibits and attachments to the aforementioned documents, as well as the representations made on the record at the fairness hearing held on January 13, 2014 (the "Fairness Hearing"). For the reasons stated on the record at the Fairness Hearing and the reasons stated below, Plaintiffs' Motion is GRANTED.

Case 1:10-cv-05236-RJS Document 110 Filed 01/14/14 Page 2 of 7
RULE23STANDARD 1. Rule 23 of the Federal Rule of Civil Procedure ("Rule 23") provides that the claims of a certified class may be settled with the approval of the Court pursuant to the following procedures: (I) "notice in a reasonable manner to all class members who would be bound by the proposal"; (2) a hearing and finding that the settlement is "fair, reasonable, and adequate"; (3) the parties' filing of a "statement identifying any agreement made in connection with the proposal"; (4) if the Court deems it necessary, affording a new opportunity to class members to opt-out of the class; and (5) permitting any class member to object to the proposed settlement. Fed. R. Civ. P. 23.
DISSEMINATION OF CLASS NOTICE 2. In the Court's Order, dated July 2, 2013 ("Preliminary Order"), the Court approved the content and form of the Class Notice and related documents to be sent to Class Members and the procedure for effectuating notice, including by mailing Class Notice to the address at which Class Members received their pension checks and, when such a mailing is returned with a forwarding address, re-sending Class Notice to that address. Based on the parties' submissions in relation to this Motion and statements on the record pertaining to the process by which notice was carried out and the results, the Court finds that notice was provided in a reasonable manner to all Class Members who would be bound by the proposal, thus satisfying the requirements of Rule 23 and the constitution, including those of due process.
FAIRNESS OF THE SETTLEMENT AGREEMENT 3. As referenced above, a Fairness Hearing was held on January 13, 2014 concerning the fairness of the Agreement. At the hearing, all those objecting to the fairness of the Agreement were invited to speak, and the Court considered the written objections submitted by those individuals who did not appear in person.
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4. Rule 23(e) requires court approval of a class action settlement to ensure that it is

procedurally and substantively fair, reasonable and adequate. Fed. R. Civ. P. 23(e); see Wal-

Mart Stores. Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005). This inquiry entails an

assessment of "both the settlement's terms and the negotiating process leading to settlement."

Wal-Marl, 396 F.3d at 116 (citing D 'Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001)).

5. To determine procedural fairness, courts examine the negotiating process leading

to the settlement. Wal-Mart, 396 F.3d at 117. As stated on the record at the Fairness Hearing,

the Court finds that the procedural fairness requirement for this Agreement is satisfied.

6. To determine substantive fairness, courts examine a series of nine factors set forth

by the Second Circuit in Grinnell. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.

1974) (citations omitted), abrogated on other grounds, Goldberger v. Integrated Resources, Inc.,

209 F.3d 43 (2d Cir. 2000). As stated~~ the'}~cord at the Fairness Hearing, these factors weigh

-

in favor of the fairness of the Agreement and thus the Court finds that the Agreement meets the

requirement of substantive fairness. In particular, the Court deems the Agreement to be fair in

that it adequately addresses the various claims of the Settlement Class Members:

a. The Agreement adequately addresses the claims of Settlement Class Members for

injunctive relief.

b. The Agreement adequately addresses the claims of Settlement Sub-Class A

Members for monetary recovery because it provides for any and all additional pension

benefits owed to members of Sub-Class A as a result of recalculating their pensionable

earnings during periods of Active Military Service that occurred during any time of their

employment with the NYPD on or after September 11, 2001, in accordance with USERRA.

c. The Agreement adequately addresses the claims of Settlement Sub-Class B

Members for monetary recovery because it provides for any and all additional pension 3

Case 1:10-cv-05236-RJS Document 110 Filed 01/14/14 Page 4 of 7
benefits owed to members of Sub~Class B with timely claims as a result of recalculating their pensionable earnings during periods of Active Military Service that occurred during any time of their employment with the NYPD on or after September 11, 2001, in accordance with USERRA.
7. During the Fairness Hearing, the Court considered the small number of objections raised to the Settlement. The Court stated that it would reserve its decision on the objection raised by Robert Kwalwasser and I'homas Lugo (the "Kwalwasser Objection"), but, as stated on the record, found that none of the other objections caused it to question the fairness of the Settlement. Upon further consideration, as explained below, the Court now finds that the Kwalwasser Objection does not undermine the fairness ofthe Agreement.
a. Sub-Class B Members, like Mr. Kwalwasser, are individuals who received their first pension check prior to October 10, 2004. The Agreement only affords relief to those Sub-Class B Members whose USERRA claims, normally subject to a four-year statute of limitations, were otherwise tolled up to or beyond October 10, 2008. (See Agreement
1 § 6.2(a).) The reason for this is that on 0ctober ·10, 2008, Congress passed the Veterans' Benefits Improvement Act of 2008 ("VBIA"), 38 U.S.C. § 4327(b), which eliminated the statute of limitations for USERRA claims. Prior to this action, all courts that considered the issue found that USERRA claims were subject to the four-year statute of limitations set forth in 28 U.S.C. § 1658(a). See, e.g., Baldwin v. City ofGreensboro, 714 F.3d 828, 834-35 (4th Cir. 2013); Middleton v. City qf Chicago, 578 F.3d 655, 661-62 (7th Cir. 2009). As explained more fully in the Court's Order denying Defendants' motion to dismiss in this case (see Doc. No. 19), the Court decided that any person who had a USERRA claim that accrued on or after October 10, 2004 still had a "live" claim because the four~year statute of limitations had not yet run - when the statute of limitations was abolished on October I0,
4

Case 1:10-cv-05236-RJS Document 110 Filed 01/14/14 Page 5 of 7

2008; therefore, such individuals still had a live claim at the time this litigation was

commenced and are eligible for relief as part of the Agreement. However, those persons

whose claims accrued prior to October 10, 2004 do not get any relief under the Agreement

because their time to bring a USERRA claim had already expired by the time Congress

eliminated the statute of limitations on such claims and they were not otherwise revived by

this Congressional action. See Middleton, 578 F.3d at 662-65 (holding that VBIA's

elimination of the statute of!imitations did not apply retroactively).

b. Mr. Kwalwasser, who appeared at the Fairness Hearing, does not contest the idea

that claims accuring prior to October 10, 2004 are ineligible for relief. However, he contests

defining the accrual date as when the first pension check is received, and argues instead that

the appropriate date is "when the NYC Police Pension Fund finalizes [one's] pension ..."

because that is when the pension amounts become certain. (Doc. No. 108 at Ex. E

-

("Kwalwasser Objection").)

c. The Court finds that the Agreement's use of the date on which the first pension

check is received to determine which claims are time-barred is reasonable. Neither the

parties nor Mr. Kwalwasser has identified any case that has considered when a pension claim

under USERRA accrues. As a general matter, however, "[u]nder federal law, ... a claim

accrues once the plaintiff knows or has reason to know of the injury which is the basis of his

action." Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (noting that "the claim accrues

when the alleged conduct has caused the claimant harm and the claimant knows or has reason

to know of the allegedly impermissible conduct and the resulting harm.") The Court finds

that once an individual receives his pension determination, even if labeled an "estimate," and

then receives a check based on that determination, he should know whether or not his

employer failed to calculate his pension benefits in accordance with USERRA. In addition, 5

Case 1:10-cv-05236-RJS Document 110 Filed 01/14/14 Page 6 of 7
the individual's receipt of a pension check, in an amount inconsistent with USERRA is also a real injury to that person. Accordingly, the Court finds that the Agreement's decision to treat USERRA claims as accruing on the date that the first pension check is received is reasonable and fair. The position advocated by Kwalwasser, for which he provides no authority, does not seem supported by the law. Therefore, although the Court is sympathetic to the fact that individuals like Kwalwasser and Lugo will not receive any relief from this Agreement, their objection is overruled, and the Court finds the Agreement to be fair.
OTHER RULE 23 REQUIREMENTS 8. The Court also finds that the other requirements of Rule 23 have been satisfied. 9. The parties have adequately identified the Agreement setting the terms governing the settlement of the Class Members' claims. 10. As the terms of the Agreement did not change from when the Court preliminarily approved it until the Fairness Hearing, there is no need for a new opportunity for Class Members to opt-out ofthe Agreement. 11. The Class Notice adequately described a fair process by which Class Members could submit a written objection to the Agreement as well as appear at the Fairness Hearing to argue their objection. Indeed, eight Class Members filed objections and one appeared at the Fairness Hearing to argue his objection. 12. In sum, the Court finds that the Agreement is fair, reasonable and adequate, and that the requirements of Rule 23 are satisfied. Accordingly, the Agreement is approved in its entirety.
FINAL CERTIFICATION OF CLASS 13. For the reasons stated in the Preliminary Order, the Court provisionally certified the Settlement Class and Settlement Sub-Classes pursuant to Rules 23(a) and 23(b)(3) of the
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Case 1:10-cv-05236-RJS Document 110 Filed 01/14/14 Page 7 of 7

Federal Rules of Civil Procedure. In light of the Court's approval of the Agreement, the Court

hereby finalizes its certification of the Settlement Class and Settlement Sub-Classes.

CONCLUSION

14. The "Effective Date" of the Agreement shall occur upon expiration of sixty days

following the entry of this Final Order, or, if any appeal is filed, when the mandate has issued

following resolution of the appeal.

15. Defendants shall comply with the terms of the Agreement no later than one (1)

year after the Effective Date. This deadline may be extended only by a written agreement

between the Settlement Class Counsel and Defendants' counsel and approval ofthe Court.

16. All Settlement Class Members who did not opt out are hereby permanently

enjoined from pursuing and/or seeking to reopen claims released by the Agreement.

17. This Court retains jurisdiction of all matters relating to the modit1cation,

-

interpretation, implementation, effectuation, enforcement, and administration of the Agreement

and this Final Order, which jurisdiction may' be called upon by filing a motion to enforce based

upon an alleged failure to comply with the terms of the Agreement. In addition, the Parties may

make a motion to conduct discovery under the Federal Rules of Civil Procedure for the purpose

of determining compliance with this Agreement or defending against a claim of non-compliance.

SO ORDERED.
Dated: January 14, 2014 New York, New York

RIC UNITED STATES DISTRICT JUDGE
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 Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 1 of 12

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DAVID GOODMAN, et al., Plaintiffs,
-v-
CITY OF NEW YORK, eta!., Defendants.

i

Jlv!ENT

l

I

t i

No. 10 Civ. 5236 (RJS)

ORDER CONDITIONALLY CERTIFYING THE SETTLEMENT CLASS AND SETTLEMENT SUB-CLASSES, PRELIMINARILY APPROVING THE SETTLEMENT
AGREEMENT, APPROVING FORMS OF CLASS NOTICE AND SCHEDULING A FAIRNESS HEARING
On this 2nd day of July, 2013, the Court considered Plaintiffs' Unopposed Motion for Conditional Certification of the Settlement Class and Sub-Classes, Preliminary Approval of the Settlement Agreement, and Approval of the Forms of Class Notice (the "Motion"). All capitalized terms used in this Preliminary Order shall have the meaning as defined in the Settlement Agreement (the "Agreement"), which is incorporated herein by reference. After consideration of the Motion, the Agreement, and the exhibits attached thereto, as well as discussions with counsel held at a conference on June 28, 2013, this Court hereby concludes that the Motion should be GRANTED. IT IS HEREBY ORDERED AND DECREED as follows:
A. Preliminary Approval of the Agreement 1. The Court has reviewed the Agreement, with all exhibits thereto, and preliminarily
finds that the Agreement is reasonable, fair, just, free of collusion to the detriment of the

Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 2 of 12
Settlement Class, and within the range of possible judicial approval, subject to the terms of the Agreement. The Court preliminarily approves the Agreement and specifically finds that: (i) the Agreement resulted from extensive arms-length negotiations by counsel well-versed in the legal and factual issues raised by the Litigation; and (ii) the settlement evidenced by the Agreement is sufficient to warrant Class Notice thereof to all putative Settlement Class Members, as well as a full hearing. The Court makes no finding in this Preliminary Order on the ultimate issues to be determined at the Fairness Hearing. The Court further specifically finds, on a preliminary basis, that:
a. The Agreement adequately addresses the claims of Settlement Class Members for injunctive relief;
b. The Agreement adequately addresses the claims of Settlement Sub-Class A for monetary recovery because it provides for any and all additional pension benefits owed to members of Sub-Class A as a result of recalculating their pensionable earnings during periods of Active Military Service that occurred during any time of their employment with the NYPD on or after September 11, 2001, in accordance with the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq. ("USERRA"); and
c. The Agreement adequately addresses the claims of Settlement Sub-Class B for monetary recovery because it provides for any and all additional pension benefits owed to members of Sub-Class B with timely claims as a result of recalculating their pensionable earnings during periods of Active Military Service that occurred during any time of their employment with the NYPD on or after September 11, 2001, in accordance with USERRA. B. Conditional Certification of the Settlement Class and Settlement Sub-Classes
2. Solely for the purposes of settlement, and pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, the Court provisionally finds as follows:
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a. the Members of the Settlement Class and Members of the Settlement SubClasses are so numerous that joinder of all Members would be impracticable;
b. the Litigation and the Agreement raise questions of law and fact common to the claims ofthe Members of the Settlement Class and Members ofthe Settlement Sub-Classes;
c. the claims and defenses of the Representative Plaintiffs are typical of the claims of the Settlement Class and Settlement Sub-Classes;
d. in prosecuting the Litigation and negotiating and entering into the Agreement, the Representative Plaintiffs and their counsel have fairly and adequately protected the interests of the Settlement Class and Settlement Sub-Classes, and will fairly and adequately represent the interests of the Settlement Class and Settlement Sub-Classes in connection with the Agreement;
e. there is no evidence that the interests of the Representative Plaintiffs and Class Members are at odds, or evidence of any potential or actual conflicts between Settlement Class Counsel and Class Members;
f. the Settlement Class and Settlement Sub-Classes are ascertainable; g. the questions of law and fact common to the claims of the Members of the Settlement Class and Members of the Settlement Sub-Classes predominate over questions affecting only individual Members; and h. class adjudication of this case is superior to other available methods for fairly and efficiently adjudicating this controversy. 3. Accordingly, for purposes of settlement only, the Court conditionally certifies a Settlement Class of: All retired NYPD Uniformed Members of Service who performed Active Military Service on or after September 11, 200 I during their employment with the NYPD, or, if applicable, the beneficiary of a pension of a NYPD Uniformed Member of Service. Further, for purposes of settlement only, the Court conditionally certifies the following Sub-Classes:
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a. Sub-Class A: All retired NYPD Uniformed Members of Service who performed Active Military Service on or after September 11, 2001 during their employment with the
NYPD, and who received their First Pension Check on or after October 10, 2004 and no later
than the Effective Date, or, if applicable, the beneficiary of the pension of such NYPD Uniformed Members of Service;
b. Sub-Class B: All retired NYPD Uniformed Members of Service who performed Active Military Service on or after September 11, 2001 during their employment with the NYPD, and who received their First Pension Check before October 10, 2004, or, if applicable, the beneficiary of a pension of such NYPD Uniformed Members of Service.
4. For settlement purposes only, the Court provisionally designates Plaintiffs David Goodman, Michael Doherty, and Robert Black as representatives of the Settlement Class and finds them fair and adequate representatives of the interests of the Settlement Class with claims typical of the Settlement Class. Further, Plaintiffs Goodman and Black are provisionally designated as representatives of Settlement Sub-Class A and are found to be fair and adequate representatives of Sub-Class A with claims typical of Members of Sub-Class A. Plaintiff Doherty is provisionally designated as representative of Settlement Sub-Class B and is found to be a fair and adequate representative of Sub-Class B with claims typical of Members of SubClass B.
5. For settlement purposes only, the Court appoints Preet Bharara, United States Attorney for the Southern District of New Yark, by Chief of the Civil Rights Unit and Assistant United States Attorneys Tara M. La Marte and Arastu K. Chaudhury, as Settlement Class Counsel because they meet all of the requirements of Rule 23(g) of the Federal Rules of Civil Procedure. The Court finds counsel to be experienced and skilled attorneys capable of fairly and adequately representing the interests of the Settlement Class and Settlement Sub-Classes. The
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Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 5 of 12
work that Representative Plaintiffs' counsel have performed both in litigating and settling this case demonstrates their skill and commitment to representing the Class's interests.
C. Form, Timing, and Dissemination of Settlement Class Notice and Appended Forms 6. The Parties have proposed a plan for giving notice to the Settlement Class Members
by providing, through Defendants, the Representative Plaintiffs and Members of the Settlement Class the Class Notice and the Election to Opt Out of Settlement and Class Action form (attached to the Agreement as Exhibits 1 and 3) by first class mail to the address to which the Police Pension Fund transmits pension checks and sends pension-related correspondence. Members of Sub-Class B will also receive the Claim Certification Form for NYPD Retirees Who Received Their First Pension Check Earlier Than October I0, 2004 (attached to the Agreement as Exhibit 2). Additionally, the Parties have proposed that Settlement Class Counsel establish a specific electronic mail inquiry address, identified in the Class Notice, for the purpose of enabling Settlement Class Members to make inquiries with respect to the Agreement, obtain copies of the Class Notice and/or forms appended thereto, and respond to the Class Notice. Settlement Class Counsel is tasked to respond to inquiries of Settlement Class Members, pursuant to the electronic mail inquiry address or otherwise, as appropriate.
7. The Court approves, as to both form and content, the Class Notice (Agreement Ex. l), the Election to Opt Out of Settlement and Class Action form (Agreement Ex. 3), and the Claim Certification Form for NYPD Retirees Who Received Their First Pension Check Earlier Than October I0, 2004 (Agreement Ex. 2), and finds that each meets the requirements of Rule 23 and due process, and constitutes adequate notice to the Settlement Class and Settlement Sub~Classes of the proposed settlement.
8. Accordingly, Defendants shall mail the Class Notice and the Election to Opt Out of Settlement and Class Action form, in the form annexed hereto as Exhibits 1 and 3, respectively,
5

Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 6 of 12
via first class mail to the Representative Plaintiffs and all persons whom the Parties through their best efforts have been able to determine are Settlement Class Members, using the address to which the Police Pension Fund transmits pension checks and sends pension-related correspondence. Defendants shall complete mailing no later than forty-five (45) days of the date of this Preliminary Order. In addition, no later than forty-five (45) days of the date of this Preliminary Order, Defendants shall also mail the Claim Certification Form For NYPD Retirees Who Received Their First Pension Check Earlier Than October 10, 2004, in the form annexed hereto as Exhibit 2, via first class mail to Representative Plaintiffs Doherty and Black and all persons whom the Parties through their best efforts have been able to determine are Members of Settlement Sub-Class B, using the address to which the Police Pension Fund transmits pension checks and sends pension-related correspondence. Further, Settlement Class Counsel established a specified electronic mail inquiry address, identified in the Class Notice, for the purpose of enabling Settlement Class Members to obtain copies of the Class Notice and forms appended thereto, to respond to the Class Notice, and make inquiries with respect to the Agreement. It shall be the responsibility of Settlement Class Counsel to respond to inquiries of Settlement Class Members, pursuant to the electronic mail inquiry address or otherwise, as appropriate. Settlement Class Counsel shall maintain the electronic mail inquiry address until the Certifications described in section XII of the Agreement are served and filed.
9. In the event that, subsequent to the first mailing of the Class Notice and appended forms, the Class Notice and appended forms are returned to Defendants by the United States Postal Service with a forwarding address for the recipient, Defendants shall promptly re-mail the Class Notice and appended forms to the forwarding address provided, the Class Notice and appended forms shall be deemed mailed as of the date it is mailed for the second time, and Defendants will retain the forwarding address as the updated address.
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Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 7 of 12
10. If the Class Notice and appended forms are returned to Defendants by the United States Postal Service because the address of the recipient is no longer valid, Defendants shall make further attempts to ascertain a valid address for the recipient, using any additional contact information in Defendants' possession, including but not limited to any telephone or e-mail information, or a valid address ascertained by Settlement Class Counsel. If a valid address is ascertained, Defendants shall re-send the Class Notice and appended forms to such address within seven (7) days of receiving such information. If no additional address is ascertained, the Class Notice and appended form(s) shall be sent again to the last known address. In either event, the Class Notice and appended forms shall be deemed mailed as of the date it is mailed for the second time.
11. With respect to a Member of Sub-Class B whose address has not been deemed unknown, and who has not submitted to Defendants some form of written response to the Class Notice and appended forms by the date that is thirty (30) days before the Notice Deadline, Defendants shall send that Class Member a document (a) referencing the name of the Class Action; (b) stating that the Member received a Class Notice and appended forms in this action; (c) providing the address and contact information for Settlement Class Counsel; (d) stating the deadline to respond to the Class Notice and appended forms if the recipient desires to do so; and (e) stating that the Member can contact Defendants to receive an additional copy of the Class Notice and/or the appended forms.
12. Defendants shall send a "Cure Letter" to any Member of Sub-Class B who submits an improperly completed Claim Certification Form for NYPD Retirees Who Received Their First Pension Check Earlier Than October 10, 2004. The Cure Letter shall remind the member that he or she must submit properly completed forms and supporting documentation on a timely basis in order to be eligible for the relief provided by the Agreement for Members of Sub-Class B.
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Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 8 of 12
D. Class Action Settlement Procedure 13. For purposes stated and defined in the Agreement, the Court hereby sets the following
dates and deadlines: a. Deadline for mailing of Class Notice and appended forms: Friday, August 16,
2013; b. Class Members wishing to opt out of the Agreement must submit the Election to
Opt-Out of Settlement and Class Action form (Exhibit 3 hereto) to Defendants: The Opt-Out form must be postmarked no later than ninety (90) days from the date Class Notice is mailed to the Member;
c. Members of Sub-Class B who contend they are entitled to the injunctive and monetary relief set forth in section VI of the Agreement must submit a Claim Certification form for NYPD Retirees Who Received Their First Pension Check Earlier Than October 10, 2004 (Exhibit 2 hereto) and any supporting documents to Defendants. Such documents must be postmarked no later than ninety (90) days from the date Class Notice is mailed to the Member;
d. Members of the Settlement Class wishing to object to the Agreement must submit objections in accordance with paragraph 7.7 of the Agreement to Defendants. Objections and any supporting documents must be postmarked no later than thirty (30) days prior to the Fairness Hearing date.
14. The Court will hold a Fairness Hearing on January 13, 2014 at 4:30p.m. at the United States District Court for the Southern District of New York, 40 Foley Square, New York, New York, Courtroom 905, to determine:
a. whether the Court should finally certify the Settlement Class and Settlement Sub-Classes and whether Representative Plaintiffs and Settlement Class Counsel have fairly and
8

Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 9 of 12
adequately represented the Settlement Class and Settlement Sub-Classes such that the provisional designations of them should be finally approved;
b. whether the notification provided to the Settlement Class and Settlement SubClasses, including the Class Notice and the forms appended thereto, and the establishment of a specified electronic mail inquiry address for the purpose of enabling Settlement Class Members to obtain copies of the Class Notice and/or the forms appended thereto, to respond to the Class Notice, and to make inquiries concerning the Agreement, are in full compliance with the notice requirements under Rule 23 of the Federal Rules of Civil Procedure and due process;
c. whether the terms and conditions provided for in the Agreement should be finally approved by the Court as fair, reasonable, and adequate;
d. whether the Litigation should be dismissed on the merits and with prejudice, save the Court's retention ofjurisdiction to enforce the Agreement; and
e. such other matters as the Court may deem necessary or appropriate. 15. Any Class Member who desires to object to final approval of the Agreement and/or the relief granted therein must file a written objection in accordance with paragraph 7.7 of the Agreement, and may appear at the Fairness Hearing either in person or through counsel and show cause, by the Objection Date (30 days prior to the Fairness Hearing date), why the Agreement should not be approved as fair, reasonable, and adequate, or why a Final Order should not be entered approving the Agreement; provided, however, that absent permission from the Court at the Fairness Hearing, in order to appear at the Fairness Hearing for purposes of arguing an objection, such Class Member must have served Defendants by first-class United States mail, his or her written objection as well as written notice to appear, so as to be postmarked by the Objection Date. Defendants shall be served at Law Department of the City of
9

Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 10 of 12
New York, 100 Church Street, New York, New York 10007, ATTN: Goodman Class Action. A written objection should include the following:
a. a statement of each objection asserted; b. a description of the basis underlying each objection; c. a statement of whether the objector intends to appear and argue at the Fairness Hearing, and if so, how much time the objector anticipates needing to present the objection; d. all exhibits and statements that the objector may offer during the Fairness Hearing; and e. a list of all witnesses that the objector may call to testify live during the Fairness Hearing, and a summary of their anticipated testimony. 16. Unless otherwise ordered by the Court, any Class Member who does not make his or her objection in the manner provided for in this Preliminary Order and by the Objection Date shall be deemed to have waived and be forever foreclosed and barred from asserting such objections. 17. One or both of the Parties shall file with the Clerk of the Court a memorandum in support of final approval of the settlement no later than fourteen (14) days prior to the Fairness Hearing date. 18. If the Court grants final approval of the Agreement, the Court will issue a Final Order and Judgment. 19. The Effective Date shall occur when all ofthe following events have taken place: the Court enters the Preliminary Order, the Court enters the Final Order and Judgment, and the time period for filing a notice of appeal of the Final Order pursuant to the Federal Rules of Appellate Procedure has expired or, if any appeal is filed, the mandate has issued following resolution of the appeal. With respect to performing recalculations of pensionable earnings and pension
10

Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 11 of 12
benefits in accordance with the Agreement, Defendants shall first recalculate the pensionable earnings and pension benefits of the Representative Plaintiffs. E. Miscellaneous Provisions
20. Unless and until the Court declines to enter the Final Order and a Party exhausts reconsideration or appellate review of the decision denying the Final Order, or the Parties fail to renegotiate a settlement and obtain Court approval of the renegotiated settlement, all discovery, motions, pleadings, and other activity in the Litigation affecting the Parties shall be stayed except to the extent necessary to effectuate the Agreement. Pending final determination of whether the Agreement should be finally approved and the Settlement Class and Settlement Sub-Classes finally certified, Members of the Settlement Class and Settlement Sub-Classes are hereby barred and enjoined from commencing or prosecuting any action asserting any Released Claims.
21. Non-substantive changes necessary to correct any inconsistency between the forms approved by the Court and the Agreement may be made by the mutual agreement of Settlement Class Counsel and Defendants' counsel.
22. If logistical problems arise with implementing this Preliminary Order, then the Parties shall bring such problems to the attention of this Court for resolution by subsequent order of this Court.
23. The Court hereby reserves the right: a. to approve the Agreement, with such modifications as may be agreed to by the
Parties thereto, without further notice; and b. to adjourn the Fairness Hearing from time to time, by oral announcement at the
time and date set for the Fairness Hearing, without further written notice to Settlement Class Members.
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Case 1:10-cv-05236-RJS Document 97 Filed 07/02/13 Page 12 of 12

24. The parties shall abide by all terms of the Agreement.

SO ORDERED.
Dated: July 2, 2013
New York, New York

/'"' ,~- ") ..,.,
t<!~.t~'".""/~ _\.)~~· /
RI~HARD J. SULLIVAN
UNITED STATES DISTRICT JUDGE

12

 
 Case 1:10-cv-05236-RJS Document 91 Filed 06/17/13 Page 1 of 29

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------ x DAVID GOODMAN, MICHAEL DOHERTY, and ROBERT D. BLACK, Individually and on behalf of a class of similarly situated persons,
Plaintiffs,
- against -
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, and NEW YORK CITY POLICE PENSION FUND,
Defendants. ------------------------------------------------------------------ x

10 Civ. 5236 (RJS)

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR CONDITIONAL CERTIFICATION OF THE SETTLEMENT CLASS, PRELIMINARY APPROVAL OF THE SETTLEMENT AGREEMENT, AND APPROVAL OF THE FORMS OF CLASS NOTICE

TARA M. La MORTE ARASTU K. CHAUDHURY Assistant United States Attorneys
– Of Counsel –

PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Street New York, New York 10007 Telephone: 212.637.2746 Fax: 212.637.2702 E-mail: tara.lamorte2@usdoj.gov

Case 1:10-cv-05236-RJS Document 91 Filed 06/17/13 Page 2 of 29
Table of Contents Preliminary Statement........................................................................................................................i Background ........................................................................................................................................2 Summary of The Settlement Agreement............................................................................................5 The Proposed Settlement Class Meets The Requirements For Certification Under Rule 23...............................................................................................................8
A. Numerosity ................................................................................................................10 B. Commonality..............................................................................................................11 C. Typicality ...................................................................................................................11 D. Adequacy of Representation ......................................................................................12 E. Implied Requirement of Ascertainability...................................................................13 F. Certification Pursuant to Rule 23(b)(3) .....................................................................13
1. Predominance.................................................................................................14 2. Superiority......................................................................................................16 The Agreement Satisfies The Requirements For Preliminary Approval ...........................................16 A. Procedural Fairness ....................................................................................................18 B. Substantive Fairness...................................................................................................19 1. The Complexity, Expense, and Likely Duration of Trial ..............................19 2. The Reaction of the Class to Settlement ........................................................20 3. The Stage of the Proceedings and the Amount of
Discovery Completed.....................................................................................20 4. The Risks of Establishing Liability and Damages, and the Risks of
Maintaining the Class Action Through Trial .................................................21 5. Defendants’ Ability to Withstand a Greater Judgment..................................22

Case 1:10-cv-05236-RJS Document 91 Filed 06/17/13 Page 3 of 29 6. The Proposed Agreement Is Within the Range of Reasonableness
Given the Litigation Risks and the Best Possible Recovery.....................................22 The Agreement’s Notice Procedures Satisfy Rule 23(e) and Due Process .......................................24 Conclusion .........................................................................................................................................25
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Case 1:10-cv-05236-RJS Document 91 Filed 06/17/13 Page 4 of 29
PRELIMINARY STATEMENT
This class action, brought by three retired New York City Police Department (“NYPD”) officers who collectively performed multiple tours of active military service in the aftermath of September 11 while employed by the NYPD, involves claims that the City of New York (“City”), the NYPD, and the New York City Police Pension Fund (“Police Pension Fund”) wrongly calculated their pensionable earnings in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. (“USERRA”).
After three years of litigation involving motion practice, extensive discovery, a productive mediation session, and months of arms-length negotiations between counsel, the parties have reached an agreement to settle this case. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this unopposed motion respectfully requests that the Court:
(1) Conditionally certify, for settlement purposes only, the Settlement Class and Settlement Sub-Classes pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure;
(2) Provisionally designate Plaintiffs David Goodman, Michael Doherty, and Robert Black as representatives of the Settlement Class;
(3) Provisionally designate Plaintiffs Goodman and Black as representatives of Sub-Class A;
(4) Provisionally designate Plaintiff Doherty as a representative of Sub-Class B; (5) Provisionally designate Tara M. La Morte and Arastu Chaudhury of the United States
Attorney’s Office for the Southern District of New York as counsel for the Settlement Class; (6) Preliminarily approve the Settlement Agreement; (7) Approve the Class Notice and forms appended thereto and order the mailing and publication to Settlement Class Members in accordance with the Settlement Agreement;
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(8) Direct Settlement Class Counsel to establish a specific electronic address for the purpose of enabling Settlement Class Members to communicate with Settlement Class Counsel; and
(9) Schedule a Fairness Hearing for purposes of determining whether, among other things, to finally certify the Settlement Class and Settlement Sub-Classes and finally approve the Settlement Agreement.
BACKGROUND On July 9, 2010, retired NYPD detective and Army reservist David Goodman filed a complaint alleging that Defendants the City of New York, the NYPD, and the Police Pension Fund violated his USERRA rights by failing to take into account all pensionable earnings, including overtime pay and night shift differential pay, he reasonably could have expected to receive during his multiple tours of active military service abroad. (See Dkt. No. 1). This, in turn, caused Goodman to suffer a loss of pension benefits. (Compl. ¶ 23). Goodman sought, inter alia, to enjoin Defendants to calculate pensionable earnings during periods of active military service in accordance with USERRA, to recalculate his pensionable earnings during his periods of active military service in accordance with USERRA, to remit to him any pension benefits owed as a result of recalculating his pensionable earnings, and to inform him of any pension contributions he may owe as a result of recalculating his pensionable earnings. (Id. Prayer for Relief). On May 19, 2011, retired NYPD officers and Coast Guard reservists Michael Doherty and Robert Black filed substantially similar complaints. See Doherty v. City of New York, No. 11 Civ. 3432 (RJS); Black v. City of New York, No. 11 Civ. 3433 (PGG). Defendants moved to dismiss the servicemembers’ individual complaints, arguing, among other things, that USERRA’s pension calculation provision, see 38 U.S.C. § 4318, did not encompass non-seniority benefits such as overtime and night shift differential earnings, and that Doherty’s and Black’s respective claims were untimely. (See Dkt. No. 11; Doherty, No. 11 Civ.
2

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3432, Dkt. Nos. 9, 11). However, by Decision and Order dated September 26, 2011, this Court denied the Defendants’ motions, holding that (1) “the most natural reading of [38 U.S.C. § 4318(b)(3)] is that it includes all aspects of ‘the employee’s compensation’ that would have been received ‘but for’ his deployment, regardless of whether some or all of such compensation has in fact been paid”; (2) “the Court cannot find, as a matter of law, that Congress intended USERRA to exclude from pension calculations overtime and night shift pay that Plaintiffs would have earned ‘but for’ the service member’s deployment”; and (3) Doherty’s USERRA claim was not time-barred because the Veterans’ Benefits Improvement Act of 2008 (“VBIA”), 38 U.S.C. § 4327(b), eliminated statutes of limitations for USERRA claims that were “live” as of the passage of the statute on October 10, 2008, and Doherty’s claim was “live” as of that date, see Memorandum and Order dated Sept. 26, 2011.1 (See Dkt. No. 19). Defendants unsuccessfully sought interlocutory appeal of the Court’s decision and order. See Order dated July 30, 2012 (Dkt. No. 71).
Following a period of discovery, Goodman sought to amend his individual complaint to bring claims on behalf of a class of similarly situated individuals and name himself, Doherty, and Black as class representatives (collectively, the “Plaintiffs” or “Class Representatives”). (See Dkt. No. 57). Defendants opposed, arguing that Plaintiffs could not meet the standards for class certification, and thus that the class action amendment was futile. (See Dkt. No. 61). The Court disagreed with Defendants, and permitted the amendment. See Order dated July 30, 2012 (Dkt. No. 71). Accordingly, on August 2, 2012, Plaintiffs filed an amended class action complaint (the “Class Action Complaint”) alleging that the Defendants violated their USERRA rights as well as the USERRA rights of a class of similarly situated current and retired NYPD officers who were
1 At this time, Black’s suit was pending before another judge in this district. That judge did not rule on Defendants’ motion to dismiss Black’s complaint.
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called to active military duty during their employment with the NYPD on or after September 11, 2001 by failing to impute the pensionable earnings the members of service could reasonably have expected to earn during periods of active military service in a manner consistent with USERRA. (See generally Class Action Compl. (Dkt. No. 72)).
The parties engaged in a significant amount of discovery both prior to and after Plaintiffs filed their Class Action Complaint. Thousands of pages of documents were exchanged, including, among other things, Defendants’ pension policies, overtime policies, and night shift differential policies; Defendants’ payroll records, timesheets, and overtime and night shift differential records for the Class Representatives and other similarly situated officers in their respective units; the Class Representatives’ military service records; Defendants’ budgetary documents; and documents reflecting the numbers of NYPD officers called to active military service on or after September 11, 2001. Nine depositions were taken in total, including several depositions pursuant to Rule 30(b)(6). Plaintiffs hired an expert consultant to analyze Defendants’ data and perform calculations, and the parties made expert disclosures pursuant to Rule 26(a)(2).
Commencing in the fall of 2012, the parties engaged in months of settlement negotiations, including with the assistance of a court-appointed private mediator. The Court’s rulings on the various motions described above along with the extensive and thorough discovery exchanged allowed the parties to reliably assess the merits of each other’s positions, culminating in an executed settlement agreement (the “Agreement”), attached hereto as Exhibit A. As described below, the Agreement provides injunctive relief for servicemembers who are currently employed by the NYPD and participants in the Police Pension Fund, and both injunctive and monetary relief for the servicemember-retirees who are the putative Class Members. With respect to other
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specified City retirement systems, the Agreement requires the City to provide legal guidance recommending that those systems apply the principles of the Agreement to their active and retired servicemembers and present resolutions to that effect to the other systems’ boards of trustees, should the other systems not make appropriate changes within a certain period of time. Accordingly, if the Court certifies the class and approves the parties’ settlement, this case will be fully and finally resolved. The Class Representatives fully endorse the approval of the Agreement by this Court as fair, reasonable, and adequate.
SUMMARY OF THE SETTLEMENT AGREEMENT The Agreement provides substantial relief for the following groups of people: (1) current NYPD officers2 who are members of the Police Pension Fund; (2) NYPD servicememberretirees who are receiving pensions from the Police Pension Fund; (3) current City employees belonging to other City retirement systems including the New York City Employees’ Retirement System, the Teachers’ Retirement System, the Board of Education Retirement System, and the New York City Fire Department Pension Fund (the “Other City Retirement Systems”); and (4) City servicemember-retirees belonging to one of the Other City Retirement Systems. (See Agreement ¶¶ 2.16, 4.8).3 As described below, so-called “actives” are entitled to significant injunctive relief, while “retirees” are entitled to both injunctive relief and full monetary relief. See n.3.
2 The Agreement refers to officers by their formal designation, “Uniformed Members of Service.”
3 Current NYPD officers and employees of other City agencies who belong to one of the Other City Retirement Systems are also generally referred to as “actives” or “active servicemembers,” while individuals who performed active military service and thereafter retired from the NYPD or another City agency are also generally referred to as “retirees” or “servicemember-retirees.”
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First, Defendants have agreed to calculate the pensionable earnings of NYPD actives in accordance with USERRA for all periods of active military service which are pending on or occur after the Effective Date of the Agreement. (Id. ¶ 4.1(c); see id. ¶¶ 2.8, 2.17). The calculation must account for any cost of living adjustments or wage increases that take effect during a period of active military service, as well as any other pensionable earnings the active servicemember could reasonably have expected to earn had s/he not been performing military service, including, for example, overtime pay and night shift differential pay. (Id. ¶¶ 4.1(a), (b), 2.17). If an active servicemember wishes to obtain a recalculation of pensionable earnings for any prior periods of active military service, he or she must simply submit a written request to the Police Pension Fund. (Id. ¶ 4.1(c)).
More generally, Defendants have also agreed to publish the Agreement and the revised methodology for calculating pensionable earnings during periods of active military service to its active and retired members via intranet and internet sites (id. ¶¶ 4.4, 4.5), modify any policies or practices in place to conform with the revised methodology for calculating such pensionable earnings (id. ¶ 4.2), and train and educate its employees responsible for performing the relevant calculations (id. ¶ 4.3). The Agreement mandates that Defendants complete these tasks within one year of the Effective Date. (Id. ¶ 4.7).
In addition to the foregoing injunctive relief, additional injunctive and monetary relief will be awarded to NYPD servicemember-retirees. Specifically, after recalculating the retirees’ pensionable earnings for periods of active military duty occurring on or after September 11, 2001 and during the retiree’s employment with the NYPD, Defendants will proceed to recalculate the retirees’ annual pension benefit and remit any and all pension benefits owed to the retirees, offset by any additional contributions that the retiree may have owed as a result of the additional
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imputed compensation, but adding 3% prejudgment simple interest per annum. (Id. ¶¶ 6.1, 6.2). Any back pension monies owed will be disseminated in a lump sum to the retiree by check, and prospective pension benefits will be adjusted accordingly. (Id. ¶¶ 6.1(b), 6.2). Moreover, if the recalculation does not result in an increase to the retiree’s pension benefit, the retiree will continue receiving his or her existing annual pension benefit. (Id.). This process must be completed within a year of the Effective Date (id. ¶¶ 6.1(d), 6.2)), and the Agreement establishes a process by which class members may seek review of their respective computations (id. ¶ 6.4; see also id. ¶ 6.3). Accordingly, for purposes of settlement only, the parties are asking the Court to certify a Settlement Class consisting of all retired NYPD Uniformed Members of Service who performed Active Military Service on or after September 11, 2001 during their employment with the NYPD, or, if applicable, the beneficiary of the pension of such NYPD Uniformed Members of Service. (Id. ¶ 2.23). The parties are also seeking certification of two sub-classes that constitute the Settlement Class: Sub-Class A consists of all retired NYPD Uniformed Members of Service who performed active Military Service on or after September 11, 2001 during their employment with the NYPD, and who received their first pension check on or after October 10, 2004 and no later than the Effective Date, or, if applicable, their beneficiaries (id. ¶ 2.27); SubClass B is defined similarly except that it encompasses retired NYPD Uniformed Members of Service who received their first pension check before October 10, 2004 or, if applicable, their beneficiaries (id. ¶ 2.29). As explained below, sub-classes are necessary to distinguish retirees who may have untimely claims. See infra at 10 n. 4.
Finally, and importantly, the City of New York has agreed to take steps to ensure that all of the principles outlined above will apply to other City of New York employees, both active and retired. Specifically, the City will request that the Other City Retirement Systems implement the
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principles of the Agreement with respect to their members. (Id. ¶ 4.8 & subsections (a), (b)). Absent voluntary compliance, the City will draft and present resolutions to each retirement system’s Board of Trustees requiring compliance with the principles of the Agreement. (Id. ¶ 4.8(c)).
As explained in detail below, class certification of the Settlement Class and Sub-Classes is appropriate under Rules 23(a) and (b)(3). Furthermore, the terms of the Agreement are both fair and reasonable, thereby warranting preliminary approval of the Agreement and the issuance of notice.
THE PROPOSED SETTLEMENT CLASS MEETS THE REQUIREMENTS FOR CERTIFICATION UNDER RULE 23
Plaintiffs respectfully request that the Court conditionally certify the Settlement Class and two Sub-Classes as defined supra at 7, under Federal Rule of Civil Procedure 23(e) for purposes of effectuating the settlement. As discussed below, the Settlement Class and Sub-Classes meet all of the requirements for class certification for settlement purposes, and Defendants do not oppose provisional certification for settlement purposes only. (See Agreement Section V); see also Herbert B. Newberg, Newberg on Class Actions § 11.27 (4th ed. 2002) (“When the court has not yet entered a formal order determining that the action may be maintained as a class action, the parties may stipulate that it be maintained as a class action for the purpose of settlement only.”); County of Suffolk v. Long Island Lighting Co., 710 F. Supp. 1422, 1424 (E.D.N.Y. 1989) (“It is appropriate for the parties to a class action suit to negotiate a proposed settlement of the action prior to certification of the class.”), aff’d in part, rev’d in part on other grounds, 907 F.2d 1295 (2d Cir. 1990).
Provisional settlement class certification and appointment of class counsel have several practical purposes, including avoiding the costs of litigating class status while facilitating a
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global settlement, ensuring notification of all class members of the terms of the proposed Agreement, and setting the date and time of the final approval hearing. See In re Gen. Motors Corp. Pick–Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 790–91 (3d Cir. 1995) (discussing the advantages of certifying classes for settlement purposes); Dorn v. Eddington Sec., Inc., No. 08 Civ. 10271 (LTS), 2011 WL 382200, at *1 (S.D.N.Y. Jan. 21, 2011) (conditionally certifying wage and hour settlement class and granting preliminary approval of settlement).
To certify a class, the proposed class must satisfy the four requirements of Rule 23(a) – numerosity, commonality, typicality, and adequacy of representation – as well as the standards of one of the subdivisions of Rule 23(b). See Jeffries v. Pension Trust Fund of the Pension, Hospitalization and Benefit Plan of the Elec. Indus., No. 99 Civ. 4174 (LMM), 2007 WL 2454111, at *11 (S.D.N.Y. Aug. 20, 2007). Here, Plaintiffs seek certification pursuant to subdivision 23(b)(3), which requires that common questions of law or fact “predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
While a Court must employ a “rigorous analysis” to ensure that the requirements of Rule 23 are satisfied, General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982), the Second Circuit has emphasized that Rule 23 is to be given a “liberal rather than restrictive” construction, Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997). Indeed, district courts in this circuit have observed that “it seems beyond peradventure that the Second Circuit’s general preference is for granting rather than denying class certification.” Espinoza v. 953 Assoc. LLC, 280 F.R.D. 113, 124 (S.D.N.Y. 2011) (quotation marks and citations omitted); Cortigiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194, 203 (E.D.N.Y. 2005) (quoting Leider v. Ralfe, 01 Civ.
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3137 (HB), 2003 WL 22339305, at * 11 (S.D.N.Y. Oct. 10, 2003)). As demonstrated below, the proposed Settlement Class and Sub-Classes satisfies all of the criteria set forth in Rule 23(a) and Rule 23(b)(3).4
A. Numerosity Rule 23(a)(1) states that a class must be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). “[N]umerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). However, precise calculations of the number of class members are not required. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993); Jeffries, 2007 WL 2454111, at *11.
Here, as of December 5, 2012, of the approximately 1,529 NYPD employees called to active military service since September 11, 2001, 287 have retired. See Declaration of Tara M. La Morte (“La Morte Decl.”) dated June 14, 2013.5 Each of these individuals would be a member of the Settlement Class and one of the Settlement Sub-Classes, and thus, the proposed classes meet the numerosity requirement.
4 As noted above, the Class is defined as “all retired NYPD Uniformed Members of Service who performed Active Military Service on or after September 11, 2001 during their employment with the NYPD, or, if applicable, the beneficiary of the pension of a NYPD Uniformed Member of Service.” The Sub-Classes are distinguished only by whether class members received their first pension check before or after October 10, 2004, because those class members who received their first pension check before October 10, 2004, must provide additional information regarding their deployments to establish that they have a timely claim. Accordingly each of the arguments proffered in favor of class certification applies equally to the Settlement Class and the Settlement Sub-Classes. Thus, in advancing these arguments, except where specifically indicated otherwise, Plaintiffs simply refer to the Settlement Class and Settlement Sub-Classes collectively as the “class.”
5 In addition, 126 of the officers called to active military duty since September 11, 2001 have separated from the NYPD, and 5 are deceased. It is not yet clear how many of these individuals (or their beneficiaries) are drawing a pension.
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B. Commonality Rule 23(a)(2) requires that there be questions of law or fact common to the class. As the
Supreme Court recently reaffirmed in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), this requirement is satisfied if the class shares even one common question of law or fact. Id. at 2556. Thus, even if the individual circumstances of class members differ, commonality is met if “their injuries derive from a unitary course of conduct.” Marisol A, 126 F.3d at 377.
That requirement is easily satisfied here. The Class Representatives’ claims and those of the members of the putative class arise from a common wrong: Defendants’ failure to calculate pensionable earnings during periods of active military duty in accordance with USERRA. This allegation is one that is common to all class members, and at the heart of this case. Cf. Morris v. Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 615-16 (S.D.N.Y. 2012) (commonality satisfied where, among other allegations, plaintiffs claimed that defendant had policy of not paying all class members overtime pay); Espinoza, 280 F.R.D. at 127 (commonality satisfied where plaintiffs claimed that employers unlawfully denied them minimum wage and overtime payments); Trinidad v. Breakaway Courier Sys., Inc., 05 Civ. 4116 (RWS), 2007 WL 103073, at *5 (S.D.N.Y. Jan. 12, 2007) (commonality of claims involving minimum wages, overtime compensation, and improper deductions not defeated by questions affecting damages). C. Typicality
Under Rule 23(a)(3), a plaintiff seeking class certification must show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” “Like the commonality requirement, typicality does not require the representative party’s claims to be identical to those of all class members.” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 182 (W.D.N.Y. 2005). Rather, typicality is satisfied “when each class member’s claim arises from
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the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A., 126 F.3d at 376 (internal quotations omitted); see also Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996) (counseling that typicality is evaluated “with reference to the company’s actions, not with respect to particularized defenses it might have against certain class members”). Thus, “minor variations in the fact patterns underlying individual claims,” including differences in damages, do not defeat typicality when the defendants direct “the same unlawful conduct” at the named plaintiff and the class. Robidoux, 987 F.2d at 936-37; see Trinidad, 2007 WL 103073, at *6.
Here, Defendants treated all members of the putative classes identically, including the Class Representatives, with respect to their failure to properly compute members’ pensionable earnings during periods of active military service. Moreover, Defendants have not asserted a defense that would apply to any of the Class Representatives but not the rest of the class. See Gary Plastic Packaging Corp. v. Merrill Lynch, 903 F.2d 176, 180 (2d Cir. 1990). D. Adequacy of Representation
Rule 23(a)(4) provides that a class action may be maintained only if “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This is a two part inquiry: the rule “requires that plaintiffs demonstrate that class counsel is qualified, experienced, and generally able to conduct the litigation. Plaintiffs also must demonstrate that there is no conflict of interest between the named plaintiffs and other members of the plaintiff class.” Marisol A., 126 F.3d at 378 (internal quotation marks omitted); see also Fed. R. Civ. P. 23(g)(1), (4).
Turning first to the conflict of interest inquiry, it “merely requires that plaintiffs not have antagonistic interests, so only a conflict that goes to the very subject matter of the litigation will
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defeat a party’s claim of representative status.” Trinidad, 2007 WL 103073, at *6 (internal quotation marks omitted). In this case, there is no indication of any conflicts between any of the Class Representatives and putative class members, or any reason why the Class Representatives would not be committed to vigorously prosecuting this action.
Second, the United States Attorney’s Office for the Southern District of New York is qualified and experienced in handling a wide-range of complex litigation matters, including substantial civil rights matters. Also, because Class Counsel seeks no remuneration under the terms of settlement, all monetary payments will go to Plaintiffs and settlement class members, there is no conflict with respect to class counsel. Class Counsel is thus able to fairly and adequately conduct this litigation and represent the interests of the class. See also Rule 23(g)(4) (requiring that “class counsel must fairly and adequately represent the interests of the class”). E. Implied Requirement of Ascertainability
“In addition to Rule 23(a)’s four prerequisites, a requirement that there be an identifiable class has been implied by the courts.” Jeffries, 2007 WL 2454111, at *14 (internal quotations and citations omitted). This implied requirement compels class plaintiffs to “demonstrate the existence of an aggrieved class,” which must be “readily identified.” Espinoza, 280 F.R.D. at 125 (internal quotation marks omitted). Here, members of the proposed Settlement Class and Sub-Classes can all be determined based on objective criteria, and membership does not hinge on a resolution of liability. (See Agreement ¶¶ 2.23, 2.27, 2.29). Accordingly, the proposed class is ascertainable. F. Certification Pursuant to Rule 23(b)(3)
Rule 23(b)(3) requires that common questions of law or fact “predominate over any questions affecting only individual members, and that a class action is superior to other available
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methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). Both factors are satisfied here.
1. Predominance “In determining whether common issues will predominate overall, district courts are
required to consider all factual or legal issues, including those conceded by the party opposing class certification or resolved earlier in the litigation.” United States v. City of New York, 276 F.R.D. 22, 30 (E.D.N.Y. 2011) (citing Myers v. Hertz Corp., 624 F.3d 537, 549 (2d Cir. 2010) (“the predominance requirement requires a district court to consider all factual or legal issues, to determine whether the issues subject to generalized proof are more substantial than those subject to individual inquiry.”) (quotation marks and citation omitted)); In re Nassau County Strip Search Cases, 461 F.3d 219, 227-29 (2d Cir. 2006).
Predominance of class wide issues exists “if resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof.” UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 131 (2d Cir. 2010). The focus of the predominance inquiry is on defendants’ liability, not on damages. Accordingly, individualized damages determinations do not, in and of themselves, warrant denying class certification. In re Visa Check Master Money Antitrust Litig., 280 F.3d 124, 139, 141 (2d Cir. 2001) (upholding class certification when individual damages could be determined using a class-wide formula, even though those determinations would need to be made on an individual basis); Smellie v. Mount Sinai Hosp., No. 03 Civ. 0805 (LTS), 2004 WL 2725124, at *6 (S.D.N.Y. Nov. 29, 2004) (“Rule 23(b)(3) is sufficiently flexible to permit the Court and counsel to manage any necessary damages determination proceedings in a manner that
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protects appropriately the individual class members’ interests in pursuing claims tied to their particular factual situations.”).
Indeed, claims concerning an employer’s failure to properly apply wage and labor laws is a classic instance where a Rule 23(b)(3) class is warranted, “[b]ecause liability can be determined on a class-wide basis.” Espinoza, 280 F.R.D. at 129; see also Shahriar v. Smith and Wollensky Restaurant Group, Inc., 659 F.3d 234, 253 (2d Cir. 2011) (holding that class-wide liability issues predominated over individual damages assessments in Rule 23(b)(3) class of workers who were illegally required to share tips with other tip-ineligible workers). “[N]umerous 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.” Ramos v. SimplexGrinnell LP, 796 F. Supp. 2d 346, 359 (E.D.N.Y. 2011) (collecting cases); see also, e.g., Torres v. Gristede’s Corp., No. 04 Civ. 3316 (PAC), 2006 WL 2819730, at *16 (S.D.N.Y. Sept. 29, 2006) (plaintiff “introduced sufficient proof that Defendants engaged in a common practice to deny employees overtime pay,” and “[t]his issue predominates over any individual calculations of overtime wages.”). In short, when the question of whether the defendants had violated the relevant law through their wage and labor policies is the same for the entire class, that question will predominate over the individualized damages determinations that will have to be made. See Ramos, 796 F. Supp. 2d. at 359-60.
The Rule 23(b)(3) class claims here are analytically the same as the wage claims that are regularly certified for class-wide resolution, as the calculation of pensionable earnings is simply a special case of wage calculation. Thus, the question here of whether the Defendants are liable to the class predominates over the damages calculations.
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2. Superiority In determining whether a class action is a superior vehicle for fairly and efficiently
adjudicating the controversy, the Court must first consider what other procedures exist for disposing of the suit. See 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1779 (3d ed. 2010). The Court must then determine whether a class action is sufficiently effective to justify the time and energy necessary to oversee it. See id. § 1779. A class action is superior to individual suits, if such suits would be voluminous and require the same witnesses, exhibits, and issues from trial to trial for days on end. Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 473 (5th Cir. 1986).
Litigating this case as a class action would result in one indisputable formula that would apply to all other class members and ensure compliance with USERRA. This would ultimately save judicial resources because all potential existing claims would be resolved in one action. On the other hand, if each individual member of the Rule 23(b)(3) subclass were required to litigate individually, then each would file a claim, thus necessitating this Court to resolve each case separately. Thus, certifying this action as a class action would promote judicial economy.
THE AGREEMENT SATISFIES THE REQUIREMENTS FOR PRELIMINARY APPROVAL
Rule 23(e) provides that a class action “may be settled . . . or compromised only with the court’s approval.” Fed. R. Civ. P. 23(e). Courts have discretion regarding the approval of a proposed class action settlement, see Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1079-80 (2d Cir. 1995), and courts should exercise this discretion “‘in light of the general judicial policy favoring settlement.’” In re Sumitomo Copper Litig., 189 F.R.D. 274, 280 (S.D.N.Y. 1999) (quoting In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 124 (S.D.N.Y.), aff’d per curiam, 117 F.3d 721 (2d Cir. 1997)). Indeed, as the Second Circuit
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observed, there is a “‘strong judicial policy in favor of settlements, particularly in the class action context.’” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005) (quoting In re PaineWebber Ltd. P’ships Litig., 147 F.3d 132, 138 (2d Cir. 1998)).
In the Second Circuit, a court may approve a class action settlement “if it is fair, adequate, reasonable, and not a product of collusion.” Wal-Mart, 396 F.3d at 116. This inquiry entails an assessment of “both the settlement’s terms and the negotiating process leading to settlement.” Id. (citing D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001)). To determine procedural fairness, courts examine the negotiating process leading to the settlement. Id. at 117. To determine substantive fairness, courts determine whether the settlement’s terms are fair, adequate, and reasonable according to the factors set forth in City of Detroit v. Grinnell Corp., 445 F.2d 448 (2d Cir. 1974).
In light of the strong policy in favor of class action settlements, a “‘presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.’” Id. at 116-17 (quoting Manual for Complex Litigation § 30.42 (3d ed. 1995)). “Absent fraud or collusion, [courts] should be hesitant to substitute [their] judgment for that of the parties who negotiated the settlement.” In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ. 10240 (CM), 2007 WL 2230177, at *4 (S.D.N.Y. July 27, 2007).
Preliminary approval is the first step in the settlement process. Preliminary approval requires only an “initial evaluation” of the fairness of the proposed settlement. Clark v. Ecolab, Inc., Nos. 07 Civ 8623, 04 Civ. 4488, 06 Civ. 5672 (PAC), 2009 WL 6615729, at *3 (S.D.N.Y. Nov. 27, 2009) (citing Newberg on Class Actions § 11.25 (4th ed. 2002). The Court need only find that there is “probable cause to submit the [settlement] proposal to class members and hold a
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full-scale hearing as to its fairness.” In re Traffic Exec. Ass’n, 627 F.2d 631, 634 (2d Cir. 1980) (internal citation omitted). Where, as here, the proposed Agreement “appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class and falls within the range of possible approval, preliminary approval [should be] granted.” In re Nasdaq Market-Makers Antitrust Litig., 176 F.R.D. 99 (S.D.N.Y. 1997).
If the Agreement is preliminarily approved, notice may be issued to the class and class members may object or opt-out of the settlement. After the notice period, the Court will be in a position to finally evaluate the Agreement with the benefit of class members’ input. Clark, 2009 WL 6615729, at *3. As shown below, the proposed Agreement satisfies the applicable criteria. The interests of the class are better served by this settlement than by further litigation. A. Procedural Fairness
The Agreement is entitled to an initial finding of fairness, as it was reached after the parties conducted a thorough investigation and evaluated the claims and defenses, and after extensive and lengthy negotiations. See 4 Newberg on Class Actions § 11:41 (4th ed. 2002).
As noted above, the parties exchanged and reviewed a substantial amount of discovery. Class Counsel examined Defendants’ practices, policies, and procedures concerning, among other things, the calculation of pensionable earnings; overtime work and pay; night shift differential work and pay, and military leaves of absence. Class Counsel also reviewed the payroll records, earnings data, and pension files of the Class Representatives, and earnings data of other officers similarly situated, as well as Defendants’ budgetary documents reflecting amounts budgeted and spent by the NYPD for overtime and night shift differential work. Class Counsel deposed numerous witnesses to explain and interpret these documents, and retained a
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consulting expert to analyze the data and perform damages calculations. Defendants’ counsel deposed Plaintiffs Goodman and Doherty. The parties also exchanged expert reports. On October 15, 2012, Class Counsel provided a draft settlement proposal to Defendants, and on January 28, 2013, the parties attended a productive mediation session facilitated by a courtappointed mediator with expertise in employment discrimination. The parties proceeded to negotiate at arm’s length for over 6 months before reaching an agreement in principle. The wide exchange and examination of information empowered the parties to reliably assess the merits of one another’s positions prior to reaching a settlement.
B. Substantive Fairness The Second Circuit has identified several factors that should guide a court’s determination
of whether a settlement agreement is fair, reasonable, and adequate: 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 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; [and] 9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.
City of Detroit, 495 F.2d at 463 (citations omitted). As explained below, the Agreement satisfies the applicable criteria.
1. The Complexity, Expense, and Likely Duration of Trial Litigation of this case through trial would be lengthy and complex. As an initial matter,
prior to trial, the Court would have to resolve summary judgment and class certification motions. While the liability case is fairly straightforward, the presentation of evidence concerning actual damages calculations is not. At trial, each party would present expert testimony concerning how
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Defendants actually calculated each Plaintiff’s pensionable earnings during periods of active military service, how Plaintiffs contend their pensionable earnings should have been calculated under USERRA, and the effect that revised calculations would have on Plaintiffs’ respective final pensions. Evidence of these calculations is complicated and lengthy. By approving the Agreement, the Court will be limiting the expense and duration of litigation. Accordingly, this factor weighs in favor of granting preliminary approval of the Agreement.
2. The Reaction of the Class to Settlement Since notice of the terms of the Agreement has not yet been approved by the Court and sent
to the class members, it is premature to determine the reaction of the class to the Agreement. At this point in time, this factor neither counsels for or against preliminary approval. However, given that the Agreement’s terms (1) provide virtually full monetary relief (in the form of pension benefits) for any class member who has suffered reduced pension benefits as a result of Defendants’ calculation of his/her pensionable earnings during period(s) of active military service, and (2) allow a class member to continue to receive his/her current annual pension benefit in the event the adjusted recalculation of pensionable earnings would result in a reduction of his/her annual pension benefit, Plaintiffs expect that the class will react positively to the Agreement.
3. The Stage of the Proceedings and the Amount of Discovery Completed The litigation in this case has reached the stage where “the parties certainly have a clear
view of the strengths and weaknesses of their cases.” In re Warner Communs. Secs. Litig., 618 F. Supp. 735, 745 (S.D.N.Y. 1985), aff’d, 798 F.2d 35 (2d Cir. 1986). Here, through motions practice, a voluminous exchange of discovery, in-depth witness examinations, and exchange of expert reports, the parties obtained sufficient knowledge to thoroughly analyze the viability of
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their claims and defenses. The parties’ participation in a mediation session allowed them to further explore the various issues involved. The decision of the parties to enter into the Agreement was made with a thorough understanding of the facts and law, and this factor thus favors preliminary approval of the Agreement.
4. The Risks of Establishing Liability and Damages, and the Risks of Maintaining the Class Action Through Trial
The risks of establishing liability and damages, and maintaining a class action through trial, further weighs in favor of preliminary approval. “Litigation inherently involves risks.” In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. at 126. Indeed, the law favors class action settlements because of the uncertainties of the outcome of litigation, the difficulties of proof, and the general length and expense of litigating class actions.
Although Class Counsel strongly believe that the material facts and relevant law fully support their claims, the Class Representatives recognize the uncertainties inherent in this litigation, including obtaining class certification and maintaining a certified class through trial. Defendants have aggressively and zealously asserted their defenses throughout this case, and as demonstrated in their pre-motion letter opposing Plaintiffs’ request to amend Goodman’s individual complaint to add class allegations, Defendants would continue to do so in the context of class certification briefing. If this litigation proceeded and Court granted class certification, Defendants might seek to file an appeal under Rule 23(f), the resolution of which would require additional time and briefing.
Turning to damages, Defendants are likely to dispute Plaintiffs’ damages calculations, leading to a “battle of the experts” at trial. See, e.g., In re Paine Webber Ltd. P’ships Litig., 171 F.R.D. at 129 (noting unpredictability of battle of damage experts). More specifically, Class Counsel recognize the risk that pursuant to USERRA’s pension calculation provision, 38 U.S.C.
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§ 4318(b)(3), certain class members may owe more to Defendants in pension contributions than Defendants would owe to them in pension benefits.
Settlement eliminates these risks, expenses, and delays. When the terms of the Agreement, which will confer substantial benefits upon class members in an expeditious manner, are considered within a “risk/reward” analytical framework, the Class Representatives believe that the Agreement is demonstrably fair, adequate, and reasonable.
5. Defendants’ Ability to Withstand a Greater Judgment Given Defendants’ status as public entities, it is not clear how, if at all, this factor applies.
This factor is thus neutral. 6. The Proposed Agreement Is Within the Range of Reasonableness Given the Litigation Risks and the Best Possible Recovery The Agreement provides significant injunctive and monetary relief for class members.
First, the Agreement specifies how class members’ pensionable earnings during periods of active military service must be recalculated. Not only must pensionable earnings include any applicable cost of living adjustments or wage increases that became effective during a period of active military service, but they must also include any other forms of compensation that the class member would have earned “but for” his or her active military service. (Agreement ¶¶ 4.1(a), (b)). To the extent it is not “reasonably certain,” that a class member would have earned a certain type of compensation but for active military service, e.g., overtime pay and certain night shift differential pay, the compensation must nonetheless be accounted for by reference to the average amount of such compensation earned in the months preceding the period of active military service. (Id. ¶ 4.1(b)). This manner of calculation fully accords with the requirements of USERRA. 38 U.S.C. § 4318.
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With respect to what constitutes “active military service” for purposes of the Agreement, the parties agreed that brief periods of service amounting to less than 5 days of continuous absence or less than 10 total days’ absence in a single calendar year will not materially affect the computation of a class member’s pension benefit amount. (Agreement ¶ 2.1). The exclusion of such periods of service from the required recalculations is thus fair and reasonable.
Next, in accordance with the calculation method set forth in the Agreement and described immediately above, Defendants have agreed to recalculate the pensionable earnings of each and every member of Sub-Class A, and each and every member of Sub-Class B who demonstrates that s/he has a timely claim, for all periods of active military service performed on or after September 11, 2001 and during the time of his/her employment with the NYPD. (Agreement ¶¶ 6.1, 6.2). Defendants will then use the recalculated pensionable earnings to determine each member’s revised annual pension benefit, adjusted to account for additional employee pension contributions owed by the member. (Id. ¶ 6.1(a)). Significantly, if Defendants’ recalculation of pensionable earnings shows that a member’s existing pension benefit is greater than or equal to the member’s revised pension benefit, Defendants have agreed that the member may continue receiving his/her existing pension benefit. (Id.). On the other hand, if application of the adjustment results in an increased revised pension benefit, Defendants will remit to the class member all back pension monies owed with 3% simple interest per annum, and adjust prospective pension payments accordingly. (Id. ¶ 6.1(b)). The Agreement also provides a mechanism for class members to challenge Defendants’ recalculation of his or her pensionable earnings. (Id. ¶ 6.4).
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These terms afford class members close to the fullest relief possible under the law, and thus the proposed Agreement is within the range of reasonableness and should be preliminarily approved.
THE AGREEMENT’S NOTICE PROCEDURES SATISFY RULE 23(e) AND DUE PROCESS
Rule 23(e)(1) requires the court to “direct notice in a reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). The reasonable notice required under Rule 23 must meet both dissemination and content concerns. See Wal-Mart, 396 F.3d at 113-14. Notice is “adequate if it may be understood by the average class member.” Id. (internal quotation marks and citation omitted).
The notice process proposed in the Agreement satisfies both the dissemination and content requirements for notice. First, the Agreement provides for the mailing of individualized class notice via first-class mail to each class member to the address used by the Police Pension Fund to communicate with the member on pension matters. (See Agreement ¶¶ 7.3(a), (b)). This notice method is “appropriate” and “reasonable” under Rules 23(c)(2)(a) and 23(e)(1). See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974).
Second, the content of the class notice is adequate under Rule 23(c)(2)(A) because it informs class members, in easily understandable language, about (a) the nature of the action, including the claims asserted; (b) the definition of the Settlement Class and Sub-Classes; (c) the terms of the Agreement in summary; (d) the specific benefits being provided to the Settlement Class Members; (e) the nature of the released claims; (f) the process for Sub-Class B members to demonstrate that they have timely claims; (g) the process for making an objection and the ramifications objecting (or not) to the Agreement; (h) the process for opting-out of the Agreement and the consequences of opting-out of the Agreement; and (i) the date, time, and
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location of the Fairness Hearing. Finally, the class notice provides a specific e-mail address to which requests for further information may be directed to Class Counsel. (See Agreement Ex. 1).
The class notice and its proposed dissemination satisfy the requirements of Rule 23 and due process for notifying settlement class members of the conditional certification of the Settlement Class and Sub-Classes and preliminary approval of the agreement. See, e.g., In re BaldwinUnited, 105 F.R.D. 475, 485 (S.D.N.Y. 1984); see also Manual for Complex Litig. §§ 21.31, 21.311 (4th ed. 2004). Accordingly, the Court should approve the class notice and order it disseminated.
CONCLUSION The parties submit that the Agreement is fair, reasonable, and adequate, and was the product of lengthy arms-length negotiations after the parties conducted extensive discovery. Plaintiffs respectfully request that the Court grant Plaintiffs’ Unopposed Motion for Conditional Certification of the Settlement Class, Preliminary Approval of the Settlement Agreement, and Approval of the Form of Class Notice, certify a Settlement Class for injunctive and monetary relief pursuant to Rule 23(b)(3), designate Plaintiffs David Goodman, Michael Doherty, and Robert Black as Class Representatives, designate Plaintiffs Goodman and Black as Representatives for Sub-Class A, designate Plaintiff Doherty as Representative for Sub-Class B, appoint Plaintiffs’ attorneys as counsel for the certified class, preliminarily approve the Agreement, approve the proposed Class Notice and forms appended thereto for final distribution, and set a final fairness hearing, as the Court’s calendar permits. A proposed order is attached as Exhibit B of the Agreement.
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Dated: New York, New York June 17, 2013

PREET BHARARA United States Attorney for the Southern District of New York Attorney for Plaintiffs and the Class
By: ___/s/ Tara M. La Morte________ TARA M. La MORTE ARASTU K. CHAUDHURY Assistant United States Attorneys 86 Chambers Street New York, New York 10007 Tel.: (212) 637-2746 Fax: (212) 637-2702 tara.lamorte2@usdoj.gov

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

DAVID GOODMAN, MICHAEL

:

DOHERTY, and ROBERT D. BLACK, :

Individually and on behalf of a class of :

similarly situated persons,

:

:

Plaintiffs, :

:

- against -

:

:

CITY OF NEW YORK, NEW YORK

:

CITY POLICE DEPARTMENT, and NEW :

YORK CITY POLICE PENSION FUND, :

:

Defendants. :

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

10 Civ. 5236 (RJS) ECF CASE

SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement”) is made and entered into by and among the

following Parties to the above-captioned action (the “Litigation”): Plaintiffs David Goodman,

Michael Doherty, and Robert D. Black (collectively, the “Representative Plaintiffs”), on behalf

of themselves and on behalf of the Settlement Class (as defined below), by and through their

counsel of record in the Litigation, and Defendants City of New York, New York City Police

Department (“NYPD”), and New York City Police Pension Fund (“PPF”) (collectively,

“Defendants”), by and through their counsel of record in the Litigation. It is the intent of the

Parties that this Agreement be a final and binding settlement in full disposition of all claims

raised in this Litigation.

I. RECITALS

WHEREAS, on or about July 9, 2010, Plaintiff David Goodman (“Goodman”)

commenced this action in the United States District Court for the Southern District of New York,

alleging that the Defendants violated the Uniformed Services Employment and Reemployment

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Rights Act of 1994, 38 U.S.C. § 4301, et seq. (“USERRA”), by failing to compute Goodman’s compensation for pension purposes during his periods of Active Military Service (as defined in paragraph 2.1 below) to include all Pensionable Earnings (as defined in paragraph 2.17 below) Goodman would have received but for those periods of Active Military Service in a manner consistent with USERRA;
WHEREAS, USERRA defines the “uniformed services” to mean “the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency,” 38 U.S.C. § 4303(16);
WHEREAS, USERRA defines “service in the uniformed services” to mean “the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, and a period for which a person is absent from employment for the purpose of performing funeral honors duty as authorized by [10 U.S.C. § 12503] or [32 U.S.C. § 115],” 38 U.S.C. § 4303(13);
WHEREAS, on or about March 19, 2011, Plaintiffs Michael Doherty (“Doherty”) and Robert D. Black (“Black”) commenced separate actions in the United States District Court for the Southern District of New York, which raised substantially similar claims as those raised by Goodman;
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WHEREAS, USERRA requires, inter alia, that “[f]or purposes of computing an employer’s [pension] liability under paragraph [38 U.S.C. § 4318(b)](1) or [an] employee’s contributions under paragraph [38 U.S.C. § 4318(b)](2), the employee’s compensation during the period of service [in the uniformed services] shall be computed – (A) at the rate the employee would have received but for the period of [uniformed] service [], or (B) in the case that the determination of such rate is not reasonably certain, on the basis of the employee’s average rate of compensation during the 12-month period immediately preceding such period (or, if shorter, the period of employment immediately preceding such period),” 38 U.S.C. § 4318(b)(3);
WHEREAS, by decision and order dated September 26, 2011, this Court denied the Defendants’ motion to dismiss the complaints of Goodman and Doherty, holding that (1) “the most natural reading of [§ 4318(b)(3)] is that it includes all aspects of ‘the employee’s compensation’ that would have been received ‘but for’ his deployment, regardless of whether some or all of such compensation has in fact been paid”; (2) “the Court cannot find, as a matter of law, that Congress intended USERRA to exclude from pension calculations overtime and night shift pay that Plaintiffs would have earned ‘but for’ the service member’s deployment”; and (3) Doherty’s USERRA claim was not time-barred because the Veterans’ Benefits Improvement Act of 2008 (“VBIA”), 38 U.S.C. § 4327(b), eliminated statutes of limitations for USERRA claims that were “live” as of the passage of the statute on October 10, 2008, and Doherty’s claim was “live” as of that date, see Memorandum and Order dated Sept. 26, 2011;
WHEREAS, on or about August 2, 2012, the Representative Plaintiffs filed an amended class action complaint (the “Class Action Complaint”) alleging that the Defendants violated the USERRA rights of the Representative Plaintiffs and a class of similarly-situated current and retired NYPD Uniformed Members of Service (as defined in paragraph 2.14 below) who were
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called to active military duty during their employment with the NYPD on or after September 11, 2001 by failing to impute and calculate the pensionable earnings the members of service would have earned but for periods of Active Military Service in a manner consistent with USERRA;
WHEREAS, the Representative Plaintiffs to this Litigation seek, among other things, declaratory and injunctive relief on behalf of themselves and similarly-situated active and retired NYPD Uniformed Members of Service who have performed or will perform Active Military Service at some time on or after September 11, 2001, during their employment with the NYPD, as well as monetary relief and prejudgment interest on behalf of themselves and a sub-class of retired NYPD Uniformed Members of Service who performed Active Military Service on or after September 11, 2001, during their employment with the NYPD;
WHEREAS, Defendants timely answered the Class Action Complaint on or about August 27, 2012;
WHEREAS, Defendants admit in Paragraph 16 of their Answer that the City of New York’s pension contributions made on behalf of NYPD Uniformed Members of Service during periods of Active Military Service “were not computed in the manner described” in Paragraph 16 of the Class Action Complaint (see First Amended Complaint, ¶ 16; Defendants’ Answer to First Amended Complaint, ¶ 16);
WHEREAS, under USERRA, the pension calculation for any employee of any City agency, instrumentality, or other entity, who has been absent from employment due to a period of Active Military Service, must be based upon compensation “at the rate the employee would have received but for the period of service,” including all Pensionable Earnings, or, “in the case that the determination of such rate is not reasonably certain, on the basis of the employee’s average rate of compensation during the 12-month period immediately preceding [the
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employee’s period of military service] (or, if shorter, the period of employment immediately preceding such period),” 38 U.S.C. § 4318(b)(3)(A)–(B);
WHEREAS, settlement negotiations with respect to the Litigation have taken place by and among the Representative Plaintiffs, Settlement Class Counsel (as defined below), and Defendants, pursuant to which the Parties have: (i) conducted a thorough investigation and analysis into the factual and legal issues involved in the Litigation; and (ii) reviewed voluminous documents, data, and other materials relevant to the claims contained in the Class Action Complaint;
WHEREAS, as a product of the negotiations, this Agreement embodies the terms and conditions of the settlement reached between the Representative Plaintiffs and the Settlement Class Members, and Defendants, subject to the Court’s approval in a Final Order (as defined below); and
WHEREAS, the Parties and Settlement Class Counsel believe that the settlement set forth in this Agreement contains significant benefits for the Settlement Class, and further, that the settlement set forth herein is lawful, fair, reasonable, adequate, just, and in the best interests of the Settlement Class;
NOW, THEREFORE, for and in consideration of the foregoing recitals of mutual promises and covenants contained herein, it is agreed by and among the undersigned, on behalf of the Representative Plaintiffs, the Settlement Class, and Defendants, that the Litigation be fully and finally settled and compromised, subject to the approval of the Court and the following terms and conditions:
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II. DEFINITIONS As used in the Agreement, the following terms have the meanings specified below: 2.1 “Active Military Service” means “the performance of duty on a voluntary or
involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, and a period for which a person is absent from employment for the purpose of performing funeral honors duty as authorized by [10 U.S.C. § 12503] or [32 U.S.C. § 115].” 38 U.S.C. § 4303(13). While NYPD Uniformed Members of Service who are military reservists are, from time to time, called to participate in training and other drills for the uniformed services, the Parties acknowledge that brief periods of service amounting to less than 5 days of continuous absence or less than 10 total days’ absence in a single calendar year will not materially affect the computation of a Class Member’s pension benefit amount. The Parties also acknowledge that USERRA generally obligates NYPD Uniformed Members of Service to provide the NYPD with advance notice of any Active Military Service that they perform or are scheduled to perform, 38 U.S.C. § 4312(a), and that, absent such notice, the NYPD may not have a record that Active Military Service was the reason for a particular absence.
2.2 “Class Action Complaint” means the First Amended Complaint – Class Action, filed in this Litigation on or about August 2, 2012.
2.3 “Claim Certification Form for NYPD Retirees Who Received Their First Pension Check Earlier Than October 10, 2004” means the form appended to the Class Notice that is submitted to Defendants by a Member of Sub-Class B (as defined below) in order to demonstrate
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his or her entitlement to receive the injunctive and monetary relief described in section VI of this Agreement, substantially in the form attached hereto as Exhibit 2.
2.4 “Class Notice” means the Notice of Proposed Settlement of Class Action and Fairness Hearing, which has been agreed upon by the Parties to be submitted to the Court for approval, substantially in the form attached hereto as Exhibit 1.
2.5 “Court” means the Honorable Richard J. Sullivan, United States District Court Judge for the Southern District of New York.
2.6 “Defendants” means the City of New York, the New York City Police Department (“NYPD”), and the New York City Police Pension Fund (“PPF”).
2.7 “Election to Opt-Out of Settlement and Class Action” means the form appended to the Class Notice that is submitted to Defendants by a putative Class Member (as defined below) who wishes to opt out of the Litigation and this Agreement, substantially in the form attached hereto as Exhibit 3.
2.8 “Effective Date” means the date by which all of the events and conditions specified in section XI of the Agreement have been met and have occurred.
2.9 “Fairness Hearing” means the hearing at which the Court will consider and decide whether to certify the Settlement Class and Settlement Sub-Classes, to approve this Agreement, to enter the Final Order (as defined below), and to make such other final rulings as are contemplated by this Agreement.
2.10 “Fairness Hearing Date” means the date set by the Court for the Fairness Hearing. 2.11 “Final Order” means the Order to be entered by the Court, which, inter alia, (i) certifies the class; (ii) approves the Agreement; (iii) retains jurisdiction to enforce the
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Agreement; and (iv) dismisses the remainder of the Litigation with prejudice without further motion, order, or action of the Court.
2.12 “First Pension Check” means the first disbursement of a retirement allowance, whether in the form of a paper check or electronic direct deposit, from PPF to an NYPD Uniformed Member of Service following his or her date of retirement.
2.13 “Notice Deadline” means the date 90 days after the Class Notice is mailed to the Settlement Class Members by Defendants.
2.14 “NYPD Uniformed Member of Service” means any employee of the NYPD who is eligible to receive a pension through the PPF.
2.15 “Objection Date” means the date, at least 30 days prior to the Fairness Hearing Date, set by the Court for objectors to file objections to the Agreement in accordance with paragraphs 7.2(i) and 7.6 of this Agreement.
2.16 “Other City Retirement Systems” means the New York City Employees’ Retirement System, the Teachers’ Retirement System of the City of New York, the New York City Board of Education Retirement System, and the New York Fire Department Pension Fund.
2.17 “Pensionable Earnings” means base salary, overtime, night shift differential, holiday pay, worked vacation, portal-to-portal, and allowable longevity payments.
2.18 “Preliminary Approval Date” means the date the Court signs the Preliminary Order (as defined below), which, inter alia, conditionally certifies the Settlement Class and Settlement Sub-Classes (as defined below); preliminarily approves this Agreement; approves the Class Notice and forms appended thereto and orders the mailing and publication of the Class Notice and forms appended thereto; and provisionally designates the Representative Plaintiffs as representatives of the Settlement Class and Preet Bharara, United States Attorney for the
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Southern District of New York, as counsel for the Settlement Class, by the Chief of the Civil Rights Unit.
2.19 “Preliminary Approval Hearing” means the hearing the Court may set, in its discretion, to consider, inter alia, whether to preliminarily approve this Agreement and conditionally certify the Settlement Class and Settlement Sub-Classes.
2.20 “Preliminary Order” means the order preliminarily approving the Agreement, conditionally certifying the Settlement Class and Settlement Sub-Classes, approving the forms of class notice, and scheduling a Fairness Hearing, to be entered by the Court.
2.21 “Release” means the release set forth in section IX of this Agreement. 2.22 “Representative Plaintiffs” means Plaintiffs David Goodman, Michael Doherty, and Robert D. Black. 2.23 “Settlement Class” means all retired NYPD Uniformed Members of Service who performed Active Military Service on or after September 11, 2001 during their employment with the NYPD, or, if applicable, the beneficiary of the pension of a NYPD Uniformed Member of Service described in this paragraph 2.23. The Settlement Class shall consist only of Sub-Classes A and B, as defined in paragraphs 2.27 and 2.29, and is not intended to include any other individuals. 2.24 “Settlement Class Counsel” means Preet Bharara, United States Attorney for the Southern District of New York, by the Chief of the Civil Rights Unit and Assistant United States Attorneys Tara M. La Morte and Arastu K. Chaudhury, 86 Chambers Street, 3rd Floor, New York, New York 10007, (212) 637-2746/2633.
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2.25 “Settlement Class Member(s),” “Class Member(s),” or “Member(s) of the Settlement Class” means any individual who falls within the definition of the Settlement Class as set forth in paragraphs 2.23 and 2.25 through 2.30.
2.26 “Settlement Sub-Classes” means Sub-Class A and Sub-Class B. 2.27 “Sub-Class A” means all retired NYPD Uniformed Members of Service who are members of PPF and performed Active Military Service on or after September 11, 2001 during their employment with the NYPD, and who received their First Pension Check on or after October 10, 2004 and no later than the Effective Date, or, if applicable, the beneficiary of the pension of a NYPD Uniformed Member of Service described in this paragraph 2.27. 2.28 “Sub-Class A Member(s)” or “Member(s) of Sub-Class A” means any individual who falls within the definition of the Sub-Class A as set forth herein. 2.29 “Sub-Class B” means all retired NYPD Uniformed Members of Service who are members of PPF and performed Active Military Service on or after September 11, 2001 during their employment with the NYPD, and who received their First Pension Check before October 10, 2004, or, if applicable, the beneficiary of the pension of a NYPD Uniformed Member of Service described in this paragraph 2.29. 2.30 “Sub-Class B Member(s)” or “Member(s) of Sub-Class B” means any individual who falls within the definition of Sub-Class B as set forth herein. 2.31 Membership in PPF “Tier I”; “Tier II”; and/or “Tier 3/Tier 3 Revised Plan (also known as Tier 6).” As set forth in PPF’s Summary Plan Descriptions for each of the foregoing plans: NYPD Uniformed Members of Service appointed on or before June 30, 1973 are Tier I members of PPF; NYPD Uniformed Members of Service appointed from July 1, 1973 through June 30, 2009 are Tier II members of PPF; NYPD Uniformed Members of Service appointed
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from July 1, 2009 to March 31, 2012 are Tier 3 members of PPF; and NYPD Uniformed Members of Service appointed on or after April 1, 2012 are Tier 3 Revised Plan (also known as Tier 6) members of PPF. III. JURISDICTION AND VENUE
3.1 The United States District Court for the Southern District of New York has jurisdiction over the subject matter of this action and over the Parties to this case for the purpose of approving this Agreement and, if necessary, enforcing this Agreement.
3.2 Venue is proper in the United States District Court for the Southern District of New York for purposes of this Agreement and any proceedings related to this Agreement.
3.3 All statutory conditions precedent to the institution of this Litigation on behalf of the Representative Plaintiffs have been fulfilled. IV. GENERAL INJUNCTIVE REQUIREMENTS
4.1 Upon the Effective Date, Defendants will take all reasonable steps necessary to calculate the compensation for pension purposes of all Members of Sub-Classes A and B—and any NYPD Uniformed Member of Service who performs or has performed Active Military Service during any time of his or her employment with the NYPD on or after September 11, 2001, and retires from the NYPD on or after the Effective Date—in accordance with USERRA. These calculations have the limited purpose of assisting in the recalculation of pension benefit amounts, and are not for purposes of back pay compensation, as USERRA does not require civilian employers to pay service members any compensation during periods of Active Military Service. Accordingly, for each Member of Sub-Classes A and B (and active NYPD Uniformed Members of Service in accordance with subparagraph (c) below), compensation for pension purposes during period(s) of Active Military Service must include the following:
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a. Any cost of living adjustments or wage increases that become effective during a period of Active Military Service that the NYPD Uniformed Member of Service would have earned “but for” his or her period(s) of Active Military Service. 38 U.S.C. § 4318(b)(3)(A);
b. All compensation for all Pensionable Earnings that the NYPD Uniformed Member of Service would have earned “but for” his or her period(s) of Active Military Service, 38 U.S.C. § 4318(b)(3)(A). To the extent such compensation is “not reasonably certain,” it shall be determined based upon the average amount of Pensionable Earnings earned by the NYPD Uniformed Member of Service during the 12 months immediately preceding his or her period(s) of Active Military Service (or, if the period of employment was shorter than 12 months, the period of employment immediately preceding the period of Active Military Service), id. § 4318(b)(3)(B); the Parties acknowledge that some NYPD Uniformed Members of Service who earned night shift differential compensation prior to a period of Active Military Service may have, by virtue of certain work scheduling arrangements (sometimes referred to as “rotating night shift differential” or being “charted” for night shift differential), continued to receive that compensation throughout the period of service and that, to the extent such compensation was actually received by NYPD Uniformed Members of Service during periods of Active Military Service, it has already been included in the pensionable earnings figures that PPF uses to compute their pension benefit amounts.
c. With respect to active NYPD Uniformed Members of Service, Defendants must calculate Pensionable Earnings in accordance with USERRA, as described in this paragraph 4.1, for all periods of Active Military Service which are pending on or occur after the Effective Date. With respect to any prior periods of Active Military Service on or after September 11, 2001, from which the active NYPD Uniformed Member of Service returned to
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employment on or before the Effective Date, no such calculation or imputation of additional Pensionable Earnings shall be made unless the Member directs a written request for such calculation to PPF. While this paragraph provides for certain relief to active NYPD Uniformed Members of Service, the Parties agree that they are not members of the Settlement Class or SubClasses A or B, but rather, the relief as described in this subparagraph applies to them pursuant to the General Injunctive Requirements set forth in this section IV.
4.2 Upon the Effective Date, the NYPD and PPF shall modify, consistent with the revised methodology set forth in paragraph 4.1, any agreement, practice, order, rule, regulation, or policy currently in place concerning: (1) the calculation of compensation of NYPD Uniformed Members of Service for pension purposes (i.e., Pensionable Earnings) during their periods of Active Military Service, and (2) the calculation of their pension benefit to ensure consistency with the terms of the Agreement.
4.3 Upon the Effective Date, the NYPD and PPF shall take all reasonable steps necessary to train and educate all employees responsible for performing the calculation of Pensionable Earnings of NYPD Uniformed Members of Service during periods of Active Military Service concerning the revised methodology set forth in paragraph 4.1 of this section.
4.4 Upon the Effective Date, Defendants shall make this Agreement available to all active and retired NYPD Uniformed Members of Service on the NYPD’s Military and Extended Leave Desk intranet site (http://finest/cfml/benefits/finesthealth/html/meld/meld.html); the NYPD retiree website (http://www.nypd2.org/retirement/home.html); and PPF’s website (http://www.nyc.gov/nycppf).
4.5 Upon the Effective Date, Defendants shall publish their revised methodology for calculating compensation of NYPD Uniformed Members of Service for pension purposes during
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periods of Active Military Service on the NYPD’s Military and Extended Leave Desk intranet site (http://finest/cfml/benefits/finesthealth/html/meld/meld.html); the NYPD retiree website (http://www.nypd2.org/retirement/home.html); and PPF’s website (http://www.nyc.gov/nycppf).
4.6 Defendants shall achieve compliance with the foregoing paragraphs of this section within one year of the Effective Date.
4.7 Pursuant to 38 U.S.C. § 4311, Defendants shall not take any action against any person that constitutes retaliation or interference with the exercise of such person’s rights under USERRA because such person gave testimony or assistance or participated in any manner in any investigation, proceeding, or hearing in connection with the Litigation, participated, or participates in any manner in connection with the monitoring or implementation of this Agreement, or sought, seeks and/or receives any monetary and/or non-monetary relief pursuant to this Agreement.
4.8 In addition to the foregoing general injunctive requirements concerning the NYPD and PPF, the City of New York will take all reasonable steps within its legal authority to advise the Other City Retirement Systems of the terms and injunctive relief agreed upon by the Parties in this Agreement; to request that the Other City Retirement Systems make any and all changes to their policies and practices that are necessary to conform them to the requirements of USERRA; and to similarly treat all other City of New York employees (who are active or retired members of the Other City Retirement Systems) who perform or have performed Active Military Service on or after September 11, 2001, during their employment with the City of New York, as set forth in this Agreement. The steps to be taken by the City of New York shall include, but are not limited to:
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a. Notifying the Other City Retirement Systems about this lawsuit, this Agreement, and the requirements of 38 U.S.C. § 4318 of USERRA no later than 10 days after the Effective Date;
b. Issuing written legal guidance, via the Office of the Corporation Counsel, as counsel to the Other City Retirement Systems, within 30 days of the Effective Date, advising and formally recommending that each of the Other City Retirement Systems: (i) review its current policies and practices concerning calculation of the pensions of City employees who are members of the Other City Retirement Systems and perform or have performed Active Military Service, (ii) modify its policies and practices, as necessary, to ensure that they are consistent with USERRA and this Agreement, (iii) identify all existing retirees collecting pensions, who have performed Active Military Service on or after September 11, 2001 (“Other Relevant Pensioners”), (iv) recalculate the pensions of the Other Relevant Pensioners in accordance with paragraphs 4.1, 6.1, and 6.2 of this Agreement, see 20 C.F.R. §§ 1002.262(c), (d); 1002.265(c), (v) provide notice to the Other Relevant Pensioners of the effect of such recalculation, (vi) provide all existing and future pensioners an administrative process by which they may dispute the calculation of their pension benefits, similar to the process provided in this Agreement to the Class Members, and (vii) communicate the foregoing changes, as well as the steps of the administrative process for contesting the computation of pension benefits, to all their members (active or retired) who have performed Active Military Service. Defendants shall apprise Settlement Class Counsel of any and all actions, including no action, taken by the Other City Retirement Systems as a result of or in response to the legal guidance provided by Corporation Counsel within 30 days after such guidance is given.
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c. Drafting and presenting resolutions to each of the Other City Retirement Systems’ Board of Trustees for consideration, in the event that the Other City Retirement Systems have not begun effecting changes to their respective systems that are materially consistent with the terms of this Agreement within 30 days of receiving the guidance from the Corporation Counsel. Any such resolution shall be drafted in consultation with Settlement Class Counsel, and will not be presented to the Board of Trustees of any of the Other City Retirement Systems without authorization from Settlement Class Counsel. Any resolutions drafted and presented in compliance with this section must be presented within 90 days of the Effective Date, or at the next regularly scheduled meeting of each Other City Retirement System’s Board of Trustees, if later, and must require each of the Other City Retirement Systems to take the actions in the Corporation Counsel’s guidance to the Boards of Trustees and enumerated in paragraph 4.8(b), and otherwise apply the principles of this Agreement as to all other City of New York employees (who are active or retired members of the Other City Retirement Systems) who are not Class Members in this action, and recommend to the Boards of Trustees that they pass the resolutions in accordance with each system’s governing statutes, rules, and regulations. Members of the Other Pension City Retirement Systems’ Boards of Trustees who are acting on behalf of the City of New York (including representatives and appointees of the Mayor’s Office and agency commissioners and their representatives, but not including members sitting in their capacity as union representatives rather than their capacity as City employees, or the teachers who are independently elected by Teachers’ Retirement System of the City of New York membership to its Board of Trustees/Retirement Board) shall not take any steps to delay, block, hinder, or prevent the adoption of any resolution, regardless of originating source (including, but not limited to, resolutions presented pursuant to this paragraph), presented to any of the Boards
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of Trustees of the Other City Retirement Systems, to the extent such resolution is consistent with the terms of this Agreement. V. SETTLEMENT CLASS AND SUB-CLASSES
5.1. Certification of Settlement Class. The Parties agree to the certification of the Settlement Class, as defined in paragraph 2.23 of this Agreement.
5.2 Certification of Sub-Class A. The Parties agree to the certification of the Settlement Sub-Class A, as defined in paragraph 2.27 of this Agreement.
5.3 Certification of Sub-Class B. The Parties agree to the certification of the Settlement Sub-Class B, as defined in paragraph 2.29 of this Agreement. VI. ADDITIONAL INJUNCTIVE AND MONETARY RELIEF FOR THE
SETTLEMENT SUB-CLASSES 6.1. Sub-Class A.
a. Following the Effective Date, Defendants shall recalculate the Pensionable Earnings of each and every Member of Sub-Class A for all period(s) of Active Military Service he or she performed on or after September 11, 2001 and during his or her employment with the NYPD and as a member of PPF, in accordance with paragraph 4.1 of this Agreement, then use the recalculated Pensionable Earnings to determine each member’s revised Final Average Salary (as defined in PPF’s Summary Plan Descriptions for each tier) and revised annual pension benefit, adjusted by the actuarial equivalent of any shortage resulting from additional employee pension contributions that the Member of Sub-Class A would have owed as a result of the recalculated Pensionable Earnings, in accordance with applicable federal pension laws and regulations, as well as state and city pension laws, to the extent such state and city laws are not inconsistent with USERRA. If the revised annual pension benefit computed pursuant to this paragraph 6.1(a) minus the existing annual pension benefit (“Net Annual Pension Change”) for a
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Member of Sub-Class A is not greater than zero dollars, no further computations under this paragraph 6.1 shall be made with respect to such Member of Sub-Class A pursuant to the Settlement Agreement, and the Member will continue receiving his or her existing annual pension benefit.
b. If the Net Annual Pension Change for a Member of Sub-Class A is greater than zero dollars, then Defendants shall calculate the Net Annual Pension Change multiplied by the number of years and fraction thereof that the Member of Sub-Class A has been retired (“Pension Owed”) and remit the Pension Owed to the Member of Sub-Class A, plus prejudgment simple interest at the rate of 3% per annum commencing for each part of the Pension Owed on the date such part should have been paid and ending at the end of the month preceding the Effective Date. Defendants shall remit monies owed via check(s) disseminated to members of Sub-Class A. Defendants shall further adjust the amounts to be distributed in Members’ prospective pension checks consistent with the calculation performed pursuant to paragraph 6.1(a) of this Agreement.
c. PPF shall remit any additional pension benefits owed to Members of SubClass A in accordance with the procedures described in section X of this Agreement.
d. Defendants shall achieve compliance with paragraph 6.1 of this section within one year of the Effective Date.
6.2 Sub-Class B a. Following receipt of documentation demonstrating Active Military
Service, as described above and as further described in 38 U.S.C. § 4312(f)(2), which shows that a Member of Sub-Class B performed Active Military Service subsequent to retirement as an NYPD Uniformed Member of Service such that a period of four years or less, exclusive of the
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time(s) the Member performed Active Military Service subsequent to retirement, passed between receipt of his or her First Pension Check and October 10, 2008, Defendants shall apply the terms of paragraph 6.1 to that Member of Sub-Class B in the same manner applied to a Member of Sub-Class A. For such members of Sub-Class B, the entirety of paragraph 6.1 is incorporated into this paragraph 6.2 by reference.
6.3 Review of Calculations. Upon the request of Settlement Class Counsel, Defendants shall provide documents in a form acceptable to Settlement Class Counsel sufficient to show how Defendants performed the calculations done pursuant to this section and how it determined the recalculated amounts of Pensionable Earnings, employee pension contributions, and revised annual pension benefits described herein. Such documents shall be furnished within 20 days of a request, unless a longer period of time is agreed upon by the Parties.
6.4 Disputes Regarding Calculations. If a Class Member disputes the computation of his or her recalculated Pensionable Earnings after the Effective Date (a “Post-Effective Date Calculation Dispute”), that Class Member shall submit the Post-Effective Date Calculation Dispute in writing to Robert Sens-Castet (or his successor), Deputy Executive Director, New York City Police Pension Fund, 233 Broadway, 19th Floor, New York, NY 10279, referencing the caption of this lawsuit, Goodman, et al. v. City of New York, et al., No. 10 Civ. 5236 (RJS) in the letter. Mr. Sens-Castet or his successor in conjunction with the Office of the Actuary shall resolve the Post-Effective Date Calculation Dispute within 45 days of receipt of notice of the dispute. If Mr. Sens-Castet or his successor does not resolve the dispute to the satisfaction of the Class Member, or 45 days transpires without resolution, then the Class Member may provide notice to Settlement Class Counsel, who then shall meet and confer in good faith with Counsel for Defendants regarding the Post-Effective Date Calculation Dispute as to the amount(s) owed
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to the Class Member pursuant to this Agreement. In the event that such disputes cannot be resolved by PPF or among counsel, such Post-Effective Date Calculation Dispute shall be submitted to the Court for resolution, upon 15-day notice to the other Party. Defendants shall provide an explanation of the foregoing process in a manner that is readily available to all Class Members, including but not limited to through the NYPD’s Military and Extended Leave Desk intranet site (http://finest/cfml/benefits/finesthealth/html/meld/meld.html); the NYPD retiree website (http://www.nypd2.org/retirement/home.html); and PPF’s website (http://www.nyc.gov/ nycppf). VII. APPROVAL AND CLASS NOTICE
7.1 Claims Administration. Defendants shall be responsible for mailing the Class Notice and appended forms, as appropriate, to Class Members, collecting these forms, locating Class Members whose forms were returned by the United States Postal Service as undeliverable, and performing such other duties as are specified herein. Defendants shall divide the duties and responsibilities of the claims process as follows:
a. NYPD’s Military and Extended Leave Desk has provided a list of the NYPD Uniformed Members of Service who took leaves of absence because of Active Military Service beginning September 11, 2001 through and including December 6, 2012, and will provide periodic updates to that data as needed;
b. PPF will provide Class Members’ mailing addresses to which PPF currently transmits pension checks and other correspondence;
c. PPF will perform recalculations of Class Members’ pensions based on the method described in paragraphs 4.1, 6.1, and 6.2 above;
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d. PPF will remit any additional pension benefits owed to Class Members following recalculation by adjusting the amounts to be distributed in their prospective pension checks as appropriate and by mailing checks for any back-pension benefits owed under this Agreement in accordance with paragraphs 6.1 and 6.2;
e. PPF and the New York City Law Department will work with the New York City Financial Information Services Agency (“FISA”) to gather Class Member compensation data necessary to PPF’s pension recalculations;
f. The New York City Law Department’s Operations Division will be responsible for mailing the Class Notice and appended forms, as appropriate, to Class Members, collecting these forms from Class Members and transmitting them to the Parties’ counsel, and notifying the Parties when or if there are Class Members whose forms are returned by the United States Postal Service as undeliverable; and
g. Defense Counsel will be responsible for transmitting Class Member forms, objections, or other documents, as required, to the Court. Settlement Class Counsel agrees to cooperate with Defendants and assist them in all reasonable ways possible in administering the claims process.
h. If Defendants allocate the responsibilities related to the Claim Administration process described in this paragraph 7.1 in a manner different from that provided for in paragraph 7.1, then Defendants shall notify Settlement Class Counsel within 2 business days of any such change. Further, such alternative allocation of responsibilities shall not affect the requirement to provide periodic reports set forth in paragraph 12.1.
7.2 Preliminary Order. Promptly after the execution of this Agreement, Representative Plaintiffs shall submit this Agreement to the Court and shall present to the Court,
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following review and approval by Defendants, an unopposed motion for entry of the Preliminary Order, accompanied by a memorandum in support thereof which, among other things, asks the Court to:
a. Conditionally certify the Settlement Class and Settlement Sub-Classes. b. Find that the Representative Plaintiffs fairly and adequately represent the interests of the Settlement Class and Settlement Sub-Classes and have claims typical of members of the Settlement Class and Settlement Sub-Classes and provisionally designate them as representatives for the Settlement Class and Settlement Sub-Classes. c. Find that counsel for Representative Plaintiffs fairly and adequately represent the interests of the Settlement Class and Settlement Sub-Classes, and provisionally designate them as Settlement Class Counsel. d. Order that the Agreement is preliminarily approved. e. Schedule a Fairness Hearing on the Agreement. f. Approve the Class Notice that has been agreed upon by the Parties and forms appended thereto. g. Order Defendants to mail, via first class mail, to all Representative Plaintiffs and Settlement Class Members, in accordance with the procedures set forth in paragraph 7.3 of this section, the approved Class Notice and forms appended thereto, as appropriate, within 45 days of the Court entering the Preliminary Order. h. Direct Settlement Class Counsel to establish a specific electronic mail address, which shall be identified in the Class Notice, for the purpose of enabling Settlement Class Members to obtain copies of the Class Notice and/or forms appended thereto, make inquiries with respect to the Agreement, and respond to the Class Notice. It shall be the
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responsibility of Settlement Class Counsel to respond to inquiries of Settlement Class Members, pursuant to a specific electronic mail inquiry address or otherwise, as appropriate. Settlement Class Counsel shall maintain this specific electronic mail address described in this paragraph until the Certifications described in section XII of this Agreement are served and filed.
i. Provide that objections to the Agreement shall be heard at the Fairness Hearing and that objectors shall serve upon Defendants, by the Objection Date, written notice of their intention to appear and all papers in support of their objections, or else be deemed to have waived and be forever foreclosed and barred from asserting such objections. No later than 20 days prior to the Fairness Hearing, Defendants shall file all objections and supporting papers received pursuant to these instructions in the manner prescribed by the Court.
7.3 Class Notice Process. a. Within 30 days of submission of the Agreement and Preliminary Order for
the Court’s consideration and approval, as described in paragraph 7.2, Defendants shall provide Settlement Class Counsel with a list, in electronic form, of the names, addresses to which PPF sends pension-related correspondence, telephone numbers, and retirement dates of all Settlement Class Members. Neither Plaintiffs nor Settlement Class Counsel shall disseminate Class Members’ addresses, telephone numbers, or retirement dates, or use that information for any purpose other than for the prosecution of this action or the administration of the terms of this Agreement.
b. Within 45 days of the Court’s entry of the Preliminary Order, Defendants shall mail, via First Class United States mail, postage prepaid, the Class Notice and the appended form entitled “Election to Opt Out of Settlement and Class Action” to all Members of the Settlement Class, and, with respect to Members of Sub-Class B, shall also include the form
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entitled “Claim Certification Form For NYPD Retirees Who Received Their First Pension Check Earlier Than October 10, 2004.” The notice period shall be 90 days from the date of the mailing.
c. In the event that, subsequent to the first mailing of the Class Notice and appended form(s), the Class Notice and appended forms are returned to Defendants by the United States Postal Service with a forwarding address for the recipient, Defendants shall promptly re-mail the Class Notice and appended form(s) to the forwarding address provided, the Class Notice and appended form(s) shall be deemed mailed as of that date, and Defendants shall retain the forwarding address as the updated address. In the event that, subsequent to the first mailing of the Class Notice and appended form(s), the Class Notice and appended form(s) are returned to Defendants by the United States Postal Service because the address of the recipient is no longer valid, i.e., the envelope is marked “Return to Sender,” Defendants shall make further attempts to ascertain a valid address for the recipient, e.g., by attempting telephonic or e-mail contact (if such information is available), and using any additional contact information in Defendants’ possession. If a valid address is ascertained by Settlement Class Counsel and provided to Defendants, Defendants will re-send the Class Notice and appended form(s) to such address within 7 days of receiving such information. If no additional address is ascertained, the Class Notice and appended form(s) shall be sent again to the last known address. In either event, the Class Notice and appended form(s) shall be deemed received 5 days after the date it is mailed for the second time.
d. With respect to a Member of Sub-Class B whose address has not been deemed unknown, and who has not submitted to Defendants some form of written response to the Class Notice and appended forms by the date that is 30 days before the Notice Deadline, Defendants shall send that Class Member a document (a) referencing the name of the Class
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Action; (b) stating that the Member received a Class Notice and appended forms in this action; (c) providing the address and contact information for Settlement Class Counsel; (d) stating the deadline to respond to the Class Notice and appended forms if the recipient desires to do so; and (e) stating that the Member can contact Defendants to receive an additional copy of the Class Notice and/or the appended forms. Nothing in this paragraph shall be construed to extend the deadline for responding to the Class Notice or appended forms.
7.4 Class Member Opt-Out. a. Class Members may elect to “opt out” of the Settlement Class and thus
exclude themselves from the Litigation, the Agreement, and the Settlement Class. Class Members who choose to do so must fully complete, properly execute, and timely mail to Defendants the form entitled “Election to Opt Out of Settlement and Class Action” attached to the Class Notice, per the instructions contained therein. Class Members who timely submit fully completed and properly executed Opt-Out Forms shall have no further role in the Litigation, and for all purposes they shall be regarded as if they never were either a party to the Litigation or a Class Member, and thus they shall not be entitled to any benefit as a result of the Litigation or this Agreement, nor will they have released any claims they may have against Defendants.
b. Defendants shall stamp the postmark date on the original of each Opt-Out Form that they receive and shall serve copies of each Opt-Out Form received in a given week on Settlement Class Counsel not later than the Friday (or last business day) of that week, by email. Defendants also shall, within 3 business days of the end of the Notice Deadline, file with the Clerk of Court stamped copies of any Opt-Out Forms. Defendants shall, within 1 business day of the end of the Notice Deadline, send a final list of all Opt-Out Forms to Settlement Class Counsel by email. Defendants shall retain the stamped originals of all Opt-Out Forms and
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originals of all envelopes accompanying Opt-Out Forms in its files, and send duplicate copies of all such forms and envelopes to Settlement Class Counsel for their files.
7.5 Sub-Class B Recovery. a. Class Members who do not Opt Out of the Settlement Class pursuant to
paragraph 7.4(a) and who contend they are entitled to the additional injunctive and monetary relief set forth in section VI of this Agreement as Members of Sub-Class B, must fully and timely complete, execute and mail the form entitled “Claim Certification Form For NYPD Retirees Who Received Their First Pension Check Earlier Than October 10, 2004” (the “Claim Certification Form”) attached to the Class Notice, along with all supporting documentation, to Defendants, per the instructions therein. If a completed and properly executed Claim Certification Form and supporting documentation is not received by Defendants from a SubClass B Member and timely postmarked before the Notice Deadline, then that Sub-Class B Member will be deemed to have forever waived his or her right to receive the relief described in section VI of this Agreement, unless they properly submit an Opt-Out Form. However, any SubClass B Members who submit an improperly-completed Claim Certification Form or incomplete or incorrect supporting documentation shall be sent a “Cure Letter” by Defendants reminding them that they must submit properly-completed forms and supporting documentation on a timely basis if they wish for their pension benefits to be recalculated and any additional monies owed provided to them pursuant to the Agreement.
b. Defendants shall stamp the postmark date on the original of each Claim Certification Form that it receives and shall serve copies of each Form it receives in a given week on Settlement Class Counsel not later than the Friday (or last business day) of that week, by email. Defendants shall, within 1 business day of the end of the Notice Deadline, send a final
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list of all Claim Certification Forms to Settlement Class Counsel by email. Defendants shall retain the stamped originals of all Claim Certification Forms and originals of all envelopes accompanying Claim Certification Forms in its files, and send duplicate copies of all such forms and envelopes to Settlement Class Counsel for their files.
c. Upon receipt from Defendants of a Claim Certification Form and supporting documentation, Settlement Class Counsel and Defendants’ counsel shall meet and confer in good faith to determine whether the Sub-Class B Member is entitled to the injunctive and monetary relief described in section VI of this Agreement. In the event that counsel cannot resolve a dispute on this matter, such dispute shall be submitted to the Court for a final, nonappealable resolution, upon 15 days’ notice to the other Party.
7.6 Unidentified Potential Class Members. If an individual comes forward who claims to be a Class Member who has not been sent the Class Notice, Defendants shall direct that individual to Settlement Class Counsel, who will initially review the claim to determine its validity, and if valid, whether the individual is a Member of Sub-Class A or B. If Settlement Class Counsel determines the claim is valid, Settlement Class Counsel will forward the claim with a certifying letter to Defendants, who shall mail the Class Notice and appended forms to the individual within 7 business days, in accordance with the procedures set forth in paragraph 7.3 of the Agreement. Such individuals shall be considered Class Members within the terms of this Agreement, and shall have the same opportunity as previously-identified Class Members to have their claims resolved under the terms of this Agreement. However, if such a Class Member comes forward after the Notice Deadline, the Parties agree and acknowledge that he or she may be unable to timely file objections with the Court on or before the Objection Date and/or to participate in the Fairness Hearing.
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7.7 Objections to Agreement. a. Class Members who wish to file objections to the proposed settlement
embodied in this Agreement by the Objection Date for consideration at the Fairness Hearing must first do so in writing. To be considered, such statement must be sent to Defendants via First-Class United States mail, postage prepaid, and received by Defendants by the Objection Date. Defendants shall stamp the date received on the original and send copies of each objection to Settlement Class Counsel by email on a weekly basis. Defendants shall also file the datestamped originals of any and all objections with the Clerk of Court within 3 business days after the Objection Date.
b. Written objections should include the following: (1) a statement of each objection asserted; (2) a description of the basis underlying each objection; (3) a statement of whether the objector intends to appear and argue at the Fairness Hearing and, if so, how much time the objector anticipates needing to present the objection; (d) all exhibits and statements that the objector may offer during the Fairness Hearing; and (e) a list of all witnesses that the objector may call to testify live during the Fairness Hearing, and a summary of their anticipated testimony.
c. An objector also has the right to appear at the Fairness Hearing either in person or through counsel hired by the objector. An objector who wishes to appear at the Fairness Hearing must state his or her intention to do so at the time he/she submits his/her written objections. An objector may withdraw his/her objections at any time. No Class Member may appear at the Fairness Hearing unless he or she has filed a timely objection that complies with the procedures provided in this section. Any Class Member who has submitted an Opt-Out Form is not permitted to submit objections to the Agreement.
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d. The Parties may file with the Court written responses to any filed objections before the Fairness Hearing. VIII. FINAL ORDER AND APPROVAL
8.1 Fairness Hearing. The Fairness Hearing shall be scheduled at the Court’s convenience, and notice of the date shall be given pursuant to paragraph 7.2 of this Agreement.
8.2 Final Order. If the Court grants final approval of the settlement embodied in this Agreement, the Parties to this Agreement shall submit to the Court, for entry pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Final Order that will constitute a final and binding decision within the meaning of 28 U.S.C. § 1291, and that will:
a. Determine that the Litigation may be maintained as a class action on behalf of the Settlement Class and for settlement purposes;
b. Approve the Agreement as fair, reasonable, and adequate as to Members of the Settlement Class and Settlement Sub-Classes, and direct the consummation and performance of the terms of this Agreement;
c. Find that Goodman, Doherty, and Black, as representatives of the Settlement Class and Settlement Sub-Classes, fairly and adequately represent the interests of the Settlement Class and Settlement Sub-Classes, find that they have in fact fairly and adequately represented the interests of the Settlement Class and Settlement Sub-Classes, and approve designation of them as Representative Plaintiffs;
d. Find that Settlement Class Counsel is adequate, qualified, experienced and competent to conduct this Litigation and to protect the interests of the Settlement Class and Settlement-Sub-Classes, find that Settlement Class Counsel in fact has fairly and adequately
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represented the interests of the Settlement Class and Settlement Sub-Classes, and approve designation of him as Settlement Class Counsel;
e. Approve the relief set forth in sections IV and VI as lawful, fair, reasonable, and adequate to the Settlement Class and Settlement Sub-Classes;
f. Permanently enjoin all Settlement Class Members who do not opt out from pursuing and/or seeking to reopen claims that have been released by this Agreement;
g. Affirm the approval of the Class Notice and appended forms as satisfying the requirements of due process and other applicable law; and
h. Retain jurisdiction of all matters relating to the modification, interpretation, implementation, effectuation, enforcement, and administration of the Agreement and Final Order, which jurisdiction may be called upon by filing a motion to enforce for alleged failure to comply with the terms of the Agreement, and provide that the Parties may conduct discovery under the Federal Rules of Civil Procedure for the purpose of determining compliance with this Agreement or defending against a claim of non-compliance. IX. THE RELEASE
9.1 Full and Final Release. As of the date of entry of the Final Order, Representative Plaintiffs and all Settlement Class Members, on behalf of themselves, their heirs, executors, personal representatives, administrators, successors, assigns, and attorneys, hereby release and discharge Defendants, their successors or assigns, and all present and former officials, employees, representatives and agents of Defendants (“Released Parties”) from any and all claims, liabilities and/or causes of action which Representative Plaintiffs and all Settlement Class Members have or may have against any of the Released Parties based on any violation of
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USERRA alleged in the Amended Complaint. This release and discharge of claims is subject only to the Defendants’ compliance with the terms of the Agreement and Final Order. X. DISTRIBUTION OF MONETARY BENEFIT
10.1 Distribution of Monetary Benefit to Class Members. Defendants shall distribute all monies owed pursuant to this Agreement to Class Members using the same methods and procedures by which pension payments are disseminated and distributed pursuant to applicable federal, state, and city pension laws, to the extent such state or city laws are not inconsistent with USERRA. XI. CONDITIONS TO THE EFFECTIVE DATE
11.1 Conditions to the Effective Date. The Effective Date of the Agreement shall occur if and when all of the following events take place:
a. The Court has entered the Preliminary Order, as required by paragraphs 2.20 and 7.2 of this Agreement;
b. The Court has entered the Final Order, as required by paragraphs 2.11 and 8.2, above; and
c. The time period for filing a notice of appeal of the Final Order pursuant to the Federal Rules of Appellate Procedure has expired or, if any appeal is filed, the mandate has issued following resolution of the appeal.
11.2 Failure to Achieve Effective Date. In the event the Court fails to enter the Final Order, the Litigation will resume unless (1) a Party seeks reconsideration or appellate review of the decision denying entry of the Final Order, or (2) the Parties attempt to renegotiate a settlement and seek Court approval of the renegotiated settlement. In the event any reconsideration and/or appellate review are denied, or a mutually agreed-upon renegotiated
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settlement is not approved, the Litigation will proceed as if no settlement had been attempted. Notice will be provided to Class Members that the Agreement did not receive final approval and that, as a result, no payments will be made to Class Members under the Agreement. Such notice shall be mailed by Settlement Class Counsel via First Class United States Mail, postage prepaid, to the addresses used in mailing the Class Notice. XII. CERTIFICATIONS AND MONITORING
12.1 Periodic Reports. Defendants shall provide quarterly reports to Settlement Class Counsel as to the progress of the remedial relief to the Representative Plaintiffs and Settlement Class Members under paragraphs 6.1 and 6.2, and the compliance with the other terms of this Agreement. For each quarterly report served on Settlement Class Counsel, Defendants shall simultaneously file a certificate of service with the Court. The quarterly reports shall include, but not be limited to, the following:
a. Providing the names of each individual in Sub-Class A whose pension has been recalculated pursuant to paragraph 6.1, the result of the calculations required under paragraph 6.1 relevant to that individual, the date that calculation was conducted, whether any amount owed has been remitted to that individual, and the amount and date of that remittance.
b. Providing the names of each individual in Sub-Class B whose pension has been recalculated pursuant to paragraph 6.2, the result of the calculations required under paragraph 6.2 relevant to that individual, the date that calculation was conducted, whether any amount owed has been remitted to that individual, and the amount and date of that remittance.
c. Providing the number of calculations pursuant to paragraph 6.1 and 6.2 conducted for each month since the Effective Date.
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d. Providing the names of each individual who has filed a Post-Effective Date Calculation Dispute with the Defendants, the date that Post-Effective Date Calculation Dispute was received by the Defendants, the status of that Post-Effective Date Calculation Dispute, the date resolved if applicable, and the amount in controversy in that Post-Effective Date Calculation Dispute.
e. Providing the names of each individual claiming to be an Unidentified Potential Class Member under paragraph 7.6 and the status of that claim.
f. Providing a list of any agreement, practice, order, rule, regulation, or policy that the Defendants have modified in order to comply with paragraph 4.2, and a copy of any such modified agreement, practice, order, rule, regulation, or policy.
g. Providing a copy of the training materials produced in compliance with paragraph 4.3, the steps taken to train individuals in accordance with paragraph 4.3, and certifications by individuals so trained.
h. Providing a copy of any resolutions presented to any of the Other City Retirement Systems in order to comply with paragraph 4.8, the status of that resolution with respect to adoption by the Board of Trustees of that Other City Retirement System, and the anticipated date of adoption for each.
12.2 Final Certification of Compliance With Respect to Settlement Class. Upon Defendants’ implementation of all the remedial relief to Representative Plaintiffs and Settlement Class Members under paragraphs 6.1 and 6.2, Defendants shall serve Settlement Class Counsel with a final written certification signifying that all remedial relief to Representative Plaintiffs and Settlement Class Members has been implemented. Such final written certification shall set forth and include: the identity, by name and employee identification number, of each Representative
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Plaintiff and Settlement Class Member who received remedial relief under this Agreement, as well as a description of any monetary relief received or that will be received, as well as records and information evidencing implementation of all non-monetary remedial relief set forth in this Agreement. Defendants shall also file a version of this final written certification with the Court that redacts personal identifying information.
12.3 Final Certification of Compliance With Respect to General Injunctive Relief. Upon Defendants’ implementation of all the General Injunctive Relief addressed in section IV above, Defendants shall serve Settlement Class Counsel with a final written certification signifying that the General Injunctive Relief has been implemented. Such final written certification shall set forth and include: identification of the changes made to any agreement, practice, order, rule, regulation, or policy in order to comply with paragraph 4.2, and a copy of any resolutions passed by the Other City Retirement Systems in order to comply with paragraph 4.8, and documents sufficient to describe the implementation of the relief described herein at section IV. Defendants shall also file this final written certification with the Court.
12.4 Time For Compliance With This Agreement. Defendants shall comply with the terms of this Agreement no later than one (1) year after the Effective Date. This deadline may be extended by written agreement between the Settlement Class Counsel and Defendants’ counsel. XIII. MISCELLANEOUS
13.1 Attorney’s Fees and Costs. All Parties shall bear their own costs and expenses of litigation, including attorneys’ fees.
13.2 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter contained herein, and all prior and contemporaneous negotiations and understandings between the Parties shall be deemed merged into this
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Agreement. All of the exhibits and attachments to this Agreement are material and integral parts hereof and fully incorporated herein by reference.
13.3 Headings. Headings in this Agreement are for convenience only and shall not limit, expand, affect, or alter the meaning of any text.
13.4 Construction. The determination of the terms and conditions of this Agreement has been by mutual agreement of the Parties. The terms and conditions of this Agreement are not intended to be, and shall not be, construed against any Party by virtue of draftsmanship.
13.5. Final Judgment. The Final Order constitutes the entry of final judgment within the meaning of Rule 54 of the Federal Rules of Civil Procedure on all claims asserted in this action. The Court retains jurisdiction over this matter, however, for the purpose of entering appropriate orders implementing, effectuating, enforcing, modifying, administering, and interpreting this judgment.
13.6 No Claims Based Upon Distribution. No person shall have any claim against Settlement Class Counsel or Defendants or their counsel based on the distribution of financial benefits made in accordance with this Agreement or further order of the Court.
13.7 Severability. Following the Effective Date, if any provision of this Agreement is held by a court of competent jurisdiction to be unlawful or unenforceable, the remaining portions of this Agreement will remain in full force and effect.
13.8 Amendment. Any modifications or amendments must be mutually agreed upon and memorialized in a writing signed by the Parties.
13.9 Further Action. Settlement Class Counsel, on behalf of the Settlement Class, represent that they have been expressly authorized by the Representative Plaintiffs to take all appropriate action pursuant to the Agreement to effectuate its terms and also are expressly
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authorized to enter into any modifications or amendments to the Agreement on behalf of the Settlement Class which they deem appropriate.
13.10 Representation to Execute. Each counsel or other person executing this Agreement on behalf of any Party hereby warrants that such person has the full authority to do so.
13.11 Execution. This Agreement 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.
13.12 Disputes. The Parties shall attempt in good faith to resolve informally any dispute that may arise under this Agreement. If the Parties are unable to resolve the dispute, any Party may, upon 15 days’ notice to the other Party, move the Court for a resolution of the disputed issue.
13.13 Binding Agreement. The terms of this Agreement are and shall be binding upon the present and future directors, employees, agents, administrators, heirs, successors, representatives, and assigns of the City of New York, the NYPD, and the PPF, and upon the heirs, successors, and assigns of the Representative Plaintiffs and Settlement Class Members.
13.14 Waiver. The Parties shall not appeal any portion of this Agreement or the related orders, including but not limited to, the Preliminary Order and the Final Order, and further knowingly and voluntarily waive their rights to appeal any order by the Court in this case, including but not limited to the Preliminary Order and the Final Order.
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- - - - - - - - - - - - - - - - - - - - - - ___.__,_____, - - - -
Case 1:10-cv-05236-RJS Document 91-1 Filed 06/17/13 Page 37 of 50 II

Dated: June 17, 2013
On behalf of Representative Plaintiffs and Settlement Class Members:
PREET BHARARA United States Attorney for the Southern District ofNew York
By:

On behalf of the Defendants:
MICHAEL A. CARDOZO Corporation Counsel for the City ofNew York

A 1stant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel. No. (212) 637-2746/2633 Fax No. (212) 637-2730 tara.lamorte2@usdoj .gov arastu.chaudhury@usdoj .gov

Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 Tel. No. (212) 356-2469 Fax No. (212) 788-8877 kmcnally@law.nyc.gov

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Exhibit 1

Case 1:10-cv-05236-RJS Document 91-1 Filed 06/17/13 Page 39 of 50

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

DAVID GOODMAN, MICHAEL

:

DOHERTY, and ROBERT D. BLACK, :

Individually and on behalf of a class of :

similarly situated persons,

:

:

Plaintiffs, :

:

- against -

:

:

CITY OF NEW YORK, NEW YORK

:

CITY POLICE DEPARTMENT, and NEW :

YORK CITY POLICE PENSION FUND, :

:

Defendants. :

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

TO: NAME OF CLASS MEMBER

DATED: _______________________, 2013

10 Civ. 5236 (RJS)
NOTICE OF PROPOSED CLASS ACTION SETTLEMENT

PLEASE READ THIS NOTICE CAREFULLY
This Notice relates to a proposed settlement of class action litigation.
The proposed settlement has been authorized by a federal court – the United States District Court for the Southern District of New York. It contains important information as to your right to participate in the settlement and to make a claim for payment or elect not to be included in the class.
Introduction
Retired uniformed members of service with the New York City Police Department (“NYPD”), David Goodman, Michael Doherty, and Robert Black, filed separate law suits alleging that the NYPD improperly calculated their pensionable earnings for the periods of time during which they were deployed to active duty with a uniformed military service, that is, the U.S. Army, Navy, Air Force, Marines, or Coast Guard (“Active Military Service”). The three lawsuits have been consolidated into a single lawsuit that is known as Goodman et al. v. City of New York et al., No. 10 Civ. 5236 (RJS) (SDNY filed July 9, 2010). The Honorable Richard J. Sullivan, United States District Court for the Southern District of New York (the “Court”), is presiding over this case. The individuals who filed the lawsuit are called the “Plaintiffs.” The City of New York, the NYPD, and the Police Pension Fund (“PPF”) are called the “Defendants.”
The group of similarly-situated retired NYPD uniformed members of service that the

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Plaintiffs seek to represent in the case is referred to collectively as the “Class,” and its individual members, including potentially you, are “Class Members.” The Plaintiffs and the Class are represented by Preet Bharara, United States Attorney for the Southern District of New York, and other members of his Office.
Plaintiffs allege in the lawsuit that the NYPD failed to include likely overtime, night shift differential, and worked vacation compensation in the calculation of their pensionable earnings during periods when they were deployed to Active Military Service, which is in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). USERRA requires that pensionable earnings include overtime, night shift differential, and worked vacation compensation that the uniformed member of service would have earned if he or she had not been deployed to Active Military Service.
If the amount of the overtime, worked vacation, or night-shift differential cannot be established with reasonable certainty, then USERRA requires that the likely compensation be calculated based on the average earnings from the 12 months prior to the uniformed member of service’s Active Military Service. Note USERRA does not require the uniformed member of service actually be paid the overtime, night shift differential, or worked vacation compensation that is imputed to their pensionable earnings, nor does the settlement agreement contemplate such payments.
Plaintiffs and Defendants have agreed to settle the lawsuit subject to the approval of the Court. The Defendants have agreed to recalculate the pensionable earnings of all Class Members to determine if they would be entitled to an increase in their pension benefit amount as a result of the proper application of USERRA. The PPF will re-calculate the pensionable earnings of each Class Member and, taking into account the additional pension contributions owed by the Class Member as a result of the increased pensionable earnings, will appropriately adjust future pension benefits and pay the Class Member the past pension benefits owed. If the re-calculation results in no effect or a negative effect to the Class Member’s pension benefit, the PPF will not adjust the Class Member’s current pension benefit.
A copy of the proposed settlement can be found on-line at __________, and is available upon request through the United States Attorney’s Office for the Southern District of New York, contact information for which is provided at the end of this notice.
Your Legal Rights
If you are a retired NYPD uniformed member of service who performed Active Military Service on or after September 11, 2001, you are potentially a Class Member. If you are a Class Member then you have the following options:
- Be a Class Member and potentially receive the benefits of the proposed settlement - Object to the proposed settlement as a Class Member - Opt out of the Class and proposed settlement
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Each of these options as well as other relevant information about the Class and your rights is explained in detail below.
Why Did I Receive This Notice?
You received this notice because NYPD and PPF records reflect that you are a retired NYPD uniformed member of service who was deployed to Active Military Service on or after September 11, 2001.
What Is a Class Action?
A class action is a lawsuit where one or more persons sue not only for themselves, but also for other people who have similar claims. These other people are known as Class Members. In a class action, one court resolves the issues for all Class Members, except for those who optout from the Class.
Why Is There a Proposed Settlement?
The lawyers for the Class – Preet Bharara, United States Attorney for the Southern District of New York, and other members of his Office – have extensively analyzed and evaluated the merits of the claims made against the Defendants in this case. Based on that analysis and evaluation, the lawyers for the Class entered into the proposed settlement. The United States Attorney’s Office is satisfied that the terms and conditions of the proposed settlement are fair, reasonable, and in the best interest of the Plaintiffs and Class Members because the proposed settlement provides each Class Member with the full relief that they are entitled to under USERRA.
What Benefit Does a Class Member Receive As a Result of the Proposed Settlement?
The PPF will re-calculate in accordance with USERRA the amount of your pensionable earnings during periods of time you were deployed to Active Military Service. That is, the PPF will include the overtime, worked vacation, and night shift differential compensation that you would have likely earned if you had not been deployed to Active Military Service by taking the average rate of compensation for the overtime, worked vacation, and night-shift differential you earned in the 12 months prior to your deployment and add that average rate of compensation to your pensionable earnings during periods of deployment to Active Military Service. Then, the PPF will discount the additional pension contributions you would have owed as a result of the increased pensionable earnings from the amount owed to you. If the re-calculation results in an increase over your current pension benefit, the PPF will adjust your future pension benefit accordingly, and pay you for any past pension benefit owed with interest. Otherwise, if there is no increase over your current pension benefit, the PPF will not adjust your current pension benefit, and you will continue receiving your usual payments.
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Do You Want to Be a Class Member and Receive the Benefits of the Settlement?
If you want to receive the benefits of the proposed settlement then you have to be a Class Member. In order to be a Class Member, you must be retired NYPD member of uniformed service who was deployed to active military duty with a uniformed military service, that is, the U.S. Army, Navy, Air Force, Marines, or Coast Guard, on or after September 11, 2001.
If you do not fit the foregoing description, then you are not a Class Member, and you have received this notice in error. If you do fit that description, then you are a Class Member, but whether you are eligible to recover under the proposed settlement depends on when you received your first pension benefit payment as described below.
Did You Receive Your First Pension Benefit Payment on or after October 10, 2004?
If you received your first pension benefit payment on or after October 10, 2004, then you do not have to do anything in order to receive the benefits of the proposed settlement. You will automatically be a Class Member who is eligible to recover unless you opt-out as described above.
Did you Receive Your First Pension Benefit Payment before October 10, 2004?
If you received your first pension benefit payment before October 10, 2004, then you may be ineligible to recover under the proposed settlement because the applicable statute of limitations prevents your recovery as a matter of law, unless you can show that you were deployed with a uniformed military service for a sufficient amount time after you retired from the NYPD.
In order to establish that you are eligible to recover under the proposed settlement you must complete the “Claim Certification Form for NYPD Retirees Who Have Received Their First Pension Check Earlier Than October 10, 2004” that is included with this notice. If you believe that the aforementioned Claim Certification Form has improperly been included with this notice or you have not received the Claim Certification Form but should have, then please contact the United States Attorney’s Office for the Southern District of New York at the contact information provided at the end of this notice.
What Am I Giving Up If I Become a Class Member?
Unless you opt-out of the settlement as described above, you will be a Class Member, and you cannot sue, continue to sue, or be a party to a lawsuit against the Defendants for violating USERRA by improperly calculating your pensionable earnings.
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What If I Do Not Like the Proposed Settlement?
If remain a Class Member and for any reason do not believe the proposed settlement is fair, you will have an opportunity to be heard by the Court during the Fairness Hearing, which will occur on [FAIRNESS HEARING DATE].
In order to ensure that you concerns are addressed, please fill out the attached Objection Form and either email it to usanys.userra@usdoj.gov or mail it to the address below by [OBJECTION DATE].
ATTN: Goodman Class Action Law Department of the City of New York 100 Church Street New York, NY 10007
Include in or with the Objection Form a statement of each objection you have to the proposed settlement agreement and a description of the basis for those objections; a statement of whether you intend to appear at the fairness hearing, and if so, how long you anticipate you will need to present your objections; a copy of any exhibits or statements you wish the Court to consider at the Fairness Hearing; and a list of any witnesses you may call along with a summary of their anticipated testimony.
Do You Want to Opt-Out of the Proposed Settlement?
If you do NOT want to be a Class Member then you may opt-out of the class settlement by filling out and signing the attached “OPT-OUT FORM” and e-mailing it to usanys.userra@usdoj.gov or mailing it to:
ATTN: Goodman Class Action Law Department of the City of New York 100 Church Street New York, NY 10007
Note that if you decide to opt-out you will not receive any proceeds as a result of this settlement, and will have to enforce your own rights through the usual processes available to you.
What is the Difference between Opting-Out and Objecting?
Objecting is simply telling the Court that you do not like something about the proposed settlement. You can only object if you remain a Class Member. Opting-out is telling the Court that you do not want to part of the Class. If you opt-out, you have no basis to object because the proposed settlement no longer affects you.
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Do You Have Questions?
If you have any questions regarding the proposed settlement or your rights please do not hesitate to contact the United States Attorney’s Office for the Southern District of New York by email, telephone or regular mail:
ATTN: Goodman Class Action c/o Juliette Deen United States Attorney’s Office 86 Chambers Street, 3rd Floor New York, New York (212) 637-0840 usanys.userra@usdoj.gov
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Exhibit 2

Case 1:10-cv-05236-RJS Document 91-1 Filed 06/17/13 Page 46 of 50

CLAIM CERTIFICATION FORM FOR NYPD RETIREES WHO HAVE RECEIVED THEIR FIRST PENSION CHECK EARLIER THAN OCTOBER 10, 2004
If you received your first pension check on or after October 10, 2004, you may ignore this form.
If you want to be a Class Member and received your first pension benefit payment before October 10, 2004, then you must have been deployed to active duty after your retirement, and number of days spent on those deployments in total must be greater than or equal to the number of days between the date you received your first pension benefit payment and October 10, 2004.
Please provide documentation of your deployments with a uniformed military service after your retirement from the NYPD. You can provide any documentation that establishes your deployment, including, but not limited to:
(1) DD (Department of Defense) 214 Certificate of Release or Discharge from Active Duty; (2) Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service; (3) Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority; (4) Certificate of completion from military training school; (5) Discharge certificate showing character of service; (6) Copy of extracts from payroll documents showing periods of service; or (7) Letter from National Disaster Medical System (NDMS) Team Leader or Administrative Officer verifying dates and times of NDMS training or Federal activation. Please send documentation of your deployments after your retirement from the NYPD to the following address:
ATTN: Goodman Class Action Law Department of the City of New York 100 Church Street New York, NY 10007
If you have any questions regarding appropriately documenting your deployments, or other issues related to whether you are a Class Member, please contact the United States Attorney’s Office for the Southern District of New York in the manner provided in the notice that came with this form.
Please sign and print your name below to acknowledge that you understand the instructions provided in this form, and return a copy of this form with your documentation.

______________________________ NAME

________________________________ SIGNATURE

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Exhibit 3

Case 1:10-cv-05236-RJS Document 91-1 Filed 06/17/13 Page 48 of 50

OPT-OUT FORM Goodman et al. v. City of New York et al., 10 Civ. 5236 (RJS)

In order to opt-out from the Class described in the Notice of Proposed Class Action Settlement, please fill out the form below, sign, and return it to the following address:

ATTN: Goodman Class Action Law Department of the City of New York 100 Church Street New York, NY 10007

Name:

___________________________________________________________

Address:

____________________________________________ ____________________________________________ ____________________________________________

By signing below, I acknowledge that I have carefully read the Notice of Proposed Class Action Settlement that came with this form, and elect to opt-out from the Class described in that Notice. I further acknowledge that by opting out of that Class, I am not entitled to any of the benefits of the Class Action or bound by the proposed settlement entered into between the Class and the Defendants.

____________________________________ Signature

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Exhibit 4

Case 1:10-cv-05236-RJS Document 91-1 Filed 06/17/13 Page 50 of 50
OBJECTION TO THE PROPOSED CLASS ACTION SETTLEMENT Goodman et al. v. City of New York et al., 10 Civ. 5236 (RJS)
If you wish to object to the proposed settlement described in the Notice of Proposed Class Action Settlement, please fill out the form below, sign, and send it to the following address:
ATTN: Goodman Class Action Law Department of the City of New York 100 Church Street New York, NY 10007 I, _____________________________________, am a Class Member in the above class action lawsuit. I have read the Notice of Proposed Class Action Settlement that came with this form. I have decided not to opt-out from the Class described in that Notice. I will/will not (circle one) appear at the Fairness Hearing, and would like _________ minutes to present my objection(s). I object to the proposed settlement for the following reason(s):
(Note: you may attach additional sheets of paper if necessary to fully describe your objection. You should also attach any exhibits or statements, and identify any potential witnesses that you may call at the Fairness Hearing)
___________________________________ Signature
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