Korenblum v. Citigroup, Inc.
195 F. Supp. 3d 475
S.D.N.Y.2016Background
- Plaintiffs (three named and multiple opt‑ins) are current or former IT vendor workers who provided services to Citigroup under “Professional Day/Week” billing plans that designated certain hours as “nonbillable.”
- Plaintiffs allege that some vendors treated nonbillable hours as uncompensated, depriving workers of overtime pay in violation of the FLSA and NYLL, and seek conditional certification of a nationwide collective (~7,500 workers across 40 vendors).
- Discovery limited to preliminarily certification issues was conducted; plaintiffs submitted declarations (primarily from employees of one vendor, Judge), a 2012 deposition of Judge’s COO, and some Citi Rule 30(b)(6) testimony; plaintiffs did not submit Citi–vendor agreements produced in discovery.
- Defendants submitted evidence that some vendors paid for nonbillable time and pointed to inconsistencies between plaintiffs’ declarations and deposition testimony (notably that Judge began paying for nonbillable hours by late 2013).
- The court applied a ‘‘modest plus’’ standard (a tightened version of Myers stage‑one) because conditional‑certification discovery had been completed and considered evidence from both sides.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditional certification of a nationwide FLSA collective is warranted | Plaintiffs: common Citi Professional Plan and similar treatment of nonbillable hours across vendors created common unlawful policy; opt‑ins are similarly situated | Citi: common billing does not show vendors treated nonbillable hours as uncompensated; no evidence Citi controlled vendors’ compensation; plaintiffs’ evidence is limited and inconsistent | Denied — plaintiffs failed to meet even the modest‑plus showing of a common unlawful policy across vendors |
| Whether evidence supports certification as to non‑Judge vendors | Plaintiffs: onboarding/time‑entry uniformity suggests commonality | Citi: plaintiffs offered no vendor agreements or evidence that those vendors left nonbillable hours unpaid; some vendors showed they paid such time | Denied — plaintiffs offered no minimal evidence that the other 38 vendors uniformly left nonbillable hours unpaid |
| Whether certification as to Axelon (one non‑Judge vendor) is appropriate | Plaintiffs: Gomez’s contract and declaration show Axelon paid only billable hours | Citi: no evidence about other Axelon employees; Gomez’s statements do not establish a vendor‑wide practice | Denied — isolated evidence as to one worker insufficient to show a common unlawful policy at Axelon |
| Whether certification as to Judge (primary vendor for most opt‑ins) is appropriate | Plaintiffs: COO deposition and multiple declarations show Judge did not pay nonbillable hours; Citi acted as joint employer | Citi: plaintiffs’ declarations contradict their depositions; Judge changed practice and paid nonbillable hours since at least Dec 2013; Citi is not shown to be joint employer for all workers | Denied — declarations contradicted by deposition testimony; no showing Citi was joint employer for all Judge workers; certification would be inefficient given prior litigation and limited damages window |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir.) (two‑step collective‑action framework and modest factual showing for stage one)
- Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir.) (multi‑factor joint‑employer test)
- Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir.) (denying nationwide conditional certification where common proof did not address all relevant factors)
- Hoffmann‑La Roche Inc. v. Sperling, 493 U.S. 165 (U.S.) (district court discretion to facilitate notice in collective actions)
- Reilly v. Natwest Mkts. Grp., 181 F.3d 253 (2d Cir.) (district court discretion to sanction discovery abuses)
- Mack v. United States, 814 F.2d 120 (2d Cir.) (affidavits contradicting prior deposition testimony may be disregarded)