Michael v. Bloomberg, L.P.

Filing 489

MEMORANDUM OPINION AND ORDER......Bloombergs request for a curative jury instruction is denied. (Signed by Judge Denise L. Cote on 4/13/2018) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
ERIC MICHAEL ROSEMAN, ALEXANDER LEE,
:
and WILLIAM VAN VLEET, individually
:
and on behalf of others similarly
:
situated,
:
:
Plaintiffs,
:
:
-v:
:
BLOOMBERG L.P.,
:
:
Defendant.
:
:
-------------------------------------- X

14cv2657 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
At a conference on March 28, 2018, the Court ruled on
motions in limine filed by the parties, including the
plaintiffs’ motion to exclude Bloomberg’s evidence or argument
that Analytics Representatives have a primary job duty other
than that identified by the Court in its motion certifying the
New York class in this action.

Roseman v. Bloomberg L.P.,

14cv2657 (DLC), 2017 WL 4217150, at *7 (S.D.N.Y. Sept. 21, 2017)
(“The evidence presented by both plaintiffs and the defendant
converge on one, basic point: Analytics Representatives answer
client questions about the Bloomberg Terminal.
primary duty.”).

This is their

In opposition to the motion, Bloomberg argued

that the primary duty of each Analytics Representative was
“responding to client questions about the Bloomberg Terminal.”

ECF No. 449, at 5.

Because it believed that Analytics

Representatives had additional duties that were “exempt duties,”
Bloomberg took the position as well that it was entitled to
present evidence that the primary duty could be deemed to be
something more general -- “consulting with customers” -- and
that the jury should be free to make this finding as well.

Id.

at 5-6.
At the conference, the Court denied the plaintiffs’ motion
in limine and held that Bloomberg was not required to define the
primary duty in a way that was consistent with the analysis in
the class certification decision.

The plaintiffs asked, as a

matter of fairness, that Bloomberg be required to identify the
position they would be taking at trial as to what the primary
duty was.

When directed to “define now for the record what is

the primary duty,” Bloomberg identified the primary duty of its
Analytics Representatives as “consulting with customers about
how to use the technology of the [Bloomberg] terminal to satisfy
their business objectives.”1

This description mirrors Bloomberg’s description of plaintiffs’
overarching job responsibilities, which it described in its
opposition to class certification: “Representatives consult with
clients on how they can most effectively use the Terminal to
accomplish their business objectives.” ECF No. 206, at 10. At
that stage, this description was used to argue that plaintiffs
performed varying duties within that general charge and, as
such, there was no primary duty that linked them. Now,
Bloomberg uses this description to describe the primary duty.
1

2

In a letter of April 11, Bloomberg requested that the Court
instruct the jury that the Court directed Bloomberg to “select
just one primary duty for which it could present evidence at
trial and have not allowed Bloomberg to put on evidence or make
alternative arguments for other potential primary duties.”

This

request is denied.
Most significantly, this request misstates the record.

The

Court has not limited the evidence that the parties may present
at trial about the tasks performed and work done by Analytics
Representatives.

A jury may decide based on that evidence to

take a position different from that advocated by any of the
parties on what the primary duty of an Analytics Representative
actually was.

Indeed, the jury will be appropriately instructed

that it is the sole and exclusive finder of fact.
Moreover, it is Bloomberg that has chosen to assert an
affirmative defense, specifically, that Analytics
Representatives are exempt employees.

To prevail on that

defense, it must demonstrate a primary duty for Analytics
Representatives and show that that primary duty qualifies those
employees as exempt.

At the March 28 conference, the Court

required Bloomberg to finally give the plaintiffs notice of the
definition of primary duty on which it would rely at trial.
Bloomberg did not suggest at the conference that it could not
yet do so.
3

To the extent that Bloomberg is arguing in its April 11
letter that different Analytics Representatives had different
primary duties, that argument was made in opposition to the
motion for class certification and rejected then.

See Roseman,

2017 WL 4217150, at *7 (“The evidence of differences among the
daily routines of the proposed class members or the differences
in their auxiliary duties do not overcome the plaintiffs'
evidence that the primary duty of the class members can be
determined through generalized proof because that primary duty
is consistent across the class”) (emphasis added).
decertify has already been denied.

A motion to

Roseman v. Bloomberg L.P.,

14cv2657 (DLC), 2018 WL 1470587 (S.D.N.Y. Mar. 23, 2018).

This

trial will proceed as a representative action, and there has
been no demonstrated unfairness in so proceeding.

These motions

in limine have demonstrated again and repeatedly that Bloomberg
historically treated the Analytics Representative position as a
single job for purposes of determining whether the exemption to
the overtime law applies.
Finally, this most recent application appears driven by
Bloomberg’s concern that the plaintiffs will be offering
evidence that, up until this trial, Bloomberg had not identified
a primary duty for Analytics Representatives but nonetheless
treated them as exempt from payment of overtime pay.

The

inferences to be drawn from that omission will be for the jury
4

to draw.

But, to the extent that Bloomberg seeks to rely on an

affirmative defense at trial, then, in fairness to the
plaintiffs, it had to identify to them before trial what
Bloomberg would argue to the jury was the primary duty for the
exempt position.2

CONCLUSION
Bloomberg’s request for a curative jury instruction is
denied.
Dated:

New York, New York
April 13, 2018
__________________________________
DENISE COTE
United States District Judge

At the same conference, the Court directed the plaintiffs to
“identify the precise number” of off-site hours the plaintiffs
are going to argue the plaintiffs worked, because “defendant
needs to know and has a right to know exactly what you are going
to argue.” The same principles of fairness apply here.
2

5