Nicholas DeSimone, et al. v. TIAA Bank, FSB, f/k/a Everbank Financial Corp.
United States District Court for the Southern District of New York
Docket No: 1:20-cv-06492
Counsel: Justin Swidler, Robert Soloff (of Robert D. Soloff, P.A. in Plantation, Florida), Marc Silverman (of Frank Weinberg & Black, P.L. in Plantation, Florida), Carley Meredith (of Meredith Malatino, LLC in Hackensack, NJ)
On August 14, 2020, Nicholas DeSimone and 3 other mortgage loan officers of TIAA filed a putative class and collective action asserting that TIAA violated the Fair Labor Standards Act (“FLSA”) and several different state laws, by failing to pay all overtime and minimum wage due under the law. You can read the Complaint, which provides the full allegation made by the loan officers, below. The RLOs assert that TIAA denied them and all other Retail Loan Officers (“RLOs”) wages, including overtime, as a result of paying RLOs only commissions, which failed to provide overtime pay.
Specifically, the RLOs assert they were misclassified by TIAA as exempt outside sales persons despite spending the majority of working hours at fixed locations, including their home, a bank office, or at realtor office. The RLOs contend they spent very little, if any, time at the customers’ location. Further, the RLOs contend that they were required to spent significant time assisting customers in their loan applications, which was generally performed at RLOs’ homes or other fixed locations.
The lawsuit was filed shortly after 54 RLOs of TIAA reached a proposed settlement in Lesser et al. v. TIAA Bank, FSB, f/k/a Everbank Financial Corp. (1:19-cv-01707-AJN) (SDNY) (“Lesser“). The RLOs in Lesser are represented by the same team of lawyers that are prosecuting the DeSimone action. Their allegations against TIAA are similar to the allegations made in this action.
The settlement in Lesser, which has been approved by the Court, requires TIAA to pay a total of $3.5 million, which includes settlement payments to the 54 RLOs who were parties, Service Awards to the 4 Named Plaintiffs, litigation costs and attorneys’ fees. To review the specific amounts to be paid to each RLO under the settlement agreement, and the formulas utilized to determine the amounts due under the settlement, you may review pages 7-10 of the settlement agreement (provided below). The names of each individual RLO have been redacted for their privacy.
The settlement reached in Lesser, as well as the Complaint filed in Lesser, are available for your review below. However, because the Lesser case is settled, you may no longer join the Lesser case.
If you wish to assert overtime violations under the FLSA against TIAA in the DeSimone case, you may do so by submitting the Consent Form provided below. If you wish to assert FLSA violations against TIAA but do not wish to file a consent form in this case, you may file a new lawsuit and hire your own independent attorney to bring such claims separately.
To join the DeSimone case, you must have worked for EverBank and/or TIAA Bank as an RLO or similar position during the last three years. Please call one of our employment attorneys today for more information. The case is still in its earliest phases, and there have been no determinations regarding the merits of the case or whether the case will be certified as a collective action. However, the statute of limitations (i.e. the amount of time that may pass prior to you being unable to sue TIAA/Everbank because too much time has passed) will continue to run until you file a Consent Form. Hence if you have worked for TIAA/Everbank in the last three years and wish to protect your rights pending decisions on certification, you can sign the Consent Form below, and the Form will be filed.
The attorneys have taken this case on a contingency fee. They may be entitled to receive attorneys’ fees and costs from TIAA/Everbank should there be a recovery or judgment in favor of the Plaintiffs. If there is a recovery, Swartz Swidler, LLC will receive a part of any settlement obtained or money judgment entered in favor of all members of the class or their fees will be paid separately by TIAA/Everbank. If there is no recovery or judgment in Plaintiffs’ favor, the attorneys will not seek any attorney’s fees or costs from any of the Plaintiffs.