Free Declaration - District Court of Federal Claims - federal

Case 1:01-cv-00495-EGB

Document 275

Filed 02/13/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) ) Plaintiffs ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ) ) ) ) ____________________________________ )

KENT CHRISTOFFERSON, et al.,

Case No. 01-495C Senior Judge Eric G. Bruggink DECLARATION OF JOHN OTA IN SUPPORT OF PLAINTIFFS' MOTION FOR LEAVE TO FILE PROPOSED SECOND AMENDED COMPLAINT

Pursuant to the Rules of the U.S. Court of Federal Claims, I, John Ota, declare as follows: 1. I am an attorney associated with the law firm, Minami Tamaki LLP, attorneys for

plaintiffs in the above-captioned civil action, and I submit this declaration in that capacity. As such I have personal knowledge of the following facts and can testify regarding these facts if called upon to do so. 2. Approximately 14 out of the 42 Concord plaintiffs, or less than 27 percent ­ had

straight time claims, and those who did mostly had claims involving a small number of straight time hours. Until the Court's ruling February 28, 2005 that plaintiffs were not entitled to overtime pay for work in excess of eight hours per day unless they also worked more than 40 hours during that week, many of the Concord straight time claims were thought to be overtime claims because they involved hours worked in excess of eight hours per day. 3. During negotiations on the Concord plaintiffs' claims, plaintiffs' counsel

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attempted to obtain payment for the incidental straight time claims. It was not until October 2006 that defendant made it clear that it would not agree to compensate plaintiffs for any claim that they were denied payment of straight time hours. Up until that point, plaintiffs and defendant had been negotiating settlement of both plaintiffs' straight time and overtime claims. 4. After extensive review by counsel for both plaintiffs and defendant, and also

review by the Court, claim forms were mailed to the non-Concord plaintiffs in about September 2006 and plaintiffs's counsel began contacting responding plaintiffs and processing the 2,768 forms that were returned, a process that is continuing, but near completion. An estimated 56 percent (1069 out of 1885) of all plaintiffs other than the Concord plaintiffs, whose claims have been input into the database, have straight time claims. At the time of this writing, about 89 percent of the 2,768 non-Concord plaintiffs who had submitted claim forms, had been entered into plaintiffs' database. The average claim of unpaid straight time is for about 25 hours. 5. Having learned in October 2006 that defendant would not agree to pay plaintiffs'

claims for unpaid straight time hours, I asked defense counsel Steven Gillingham by email on December 21, 2006 if defendant would stipulate to amending the Complaint to add a cause of action for straight time claims. Mr. Gillingham did not agree to such a stipulation and, as recently as January 17, 2007, cited legal authority and arguments against such an amendment. Before a motion to amend could be made, plaintiffs' counsel needed to research the legal grounds for such an amendment, and also collect declarations from plaintiffs with claims for unpaid straight time wages. 6. Attached hereto as Exhibit 1 is a true and correct copy of Plaintiffs' Proposed

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7.

Attached hereto as Exhibit 2 are true and correct copies of Declarations from the following plaintiffs who state that they were denied pay for straight or regular time hours (40 or fewer per week) when they worked on the 2000 Census: Jacqueline Cage Linda Chan Henry Compton Shalamar Jones Ethel Lockhart Maria Lopez-Kallis Shannon McCowan Marsha Mitchell Alvin Monroe Henry Myrthil, Jr. Myra Romero Frank Santiago Adam Schlachter Joseph Sciacca William Sevilla Julia Shoffner Teri Walker Angelita Watahomigie Philip Waters James Wright Anidia Zabala

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Attached as Exhibit 3 is a true and correct copy of the February 17-18, 2005

Memorandum of Understanding for Settlement between counsel for the parties in this action. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration was executed on this 13th day of February 2007 in San Francisco, California. s/ John Ota

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