Seyfarth Synopsis: The U.S. District Court
for the Southern District of New York recently announced that cases
filed under the FLSA and assigned to Judges Abrams, Briccetti,
Carter, Daniels, Ramos, Seibel, and Woods will be ordered directly
to mediation, before the initial Rule 16 conference, with limited
pre-mediation disclosures. If successful, other Districts may
implement similar procedures.
In an attempt to stem its ever-increasing caseload of FLSA
cases, the U.S. District Court for the Southern District of New
recently announced that, beginning October 3, 2016, cases filed
under the FLSA and assigned to Judges Abrams, Briccetti, Carter,
Daniels, Ramos, Seibel, and Woods will be ordered directly to
mediation, before the initial Rule 16 conference, with limited
The mediation must take place within 60 days of the referral to
mediation. The limited information exchange includes the
Any existing documents that describe
the Plaintiff's duties and responsibilities.
Records of wages paid to and hours
worked by the Plaintiff (e.g., payroll records, time sheets, work
schedules, wage statements and wage notices).
The Plaintiff must produce a
spreadsheet of alleged underpayments and other damages.
The Defendant(s) must produce any
existing documents describing compensation policies or
If the Defendants intend to assert an
inability to pay, then they must produce proof of financial
condition, including tax records, business records, or other
documents demonstrating their financial status.
If the parties reach a settlement at the mediation, "they
shall prepare a joint statement explaining the basis for the
proposed settlement, including any provision for attorney fees, and
why it should be approved as fair and reasonable," in
accordance with Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199
(2d Cir. 2015).
The SDNY's announcement comes on the heels of the effort by
its sister court,
the Eastern District of New York, to expand its mediation
program for FLSA cases by "seeking mediators with substantial
knowledge of the Fair Labor Standards Act (FLSA) to join the EDNY
We fully expect the non-participating Judges within the SDNY,
and other courts across the country, will be monitoring the
effectiveness of the pilot program as well as the EDNY's
efforts to foster early mediation in FLSA cases. If the program is
successful, and the pace of new case filings remains high, other
Districts may implement similar procedures.
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