Nager v. New York City Teachers' Retirement System: A 21st Century Jarndyce v. Jarndyce
Nager was a class action suit that was filed in New York County Supreme Court in 2002 on behalf of 14,000 retired New York City public school teachers who alleged that their pensions did not reflect time that they worked "per session." Teachers who taught during summer months or after regular school hours worked per session. The case got its name from Arnold Nager, a retired New York City teacher who was the lead plaintiff in the action.
A Notice of Proposed Settlement dated March 12, 2007, was mailed to plaintiff class members shortly after that date. According to www.persessionpaycase.com, the case's official Web site, the settlement agreement was approved by the court on July 19, 2007. Notification of final settlement was originally scheduled to be mailed to class members in late fall 2008, according to the site.
As of this writing, the site's "Status of Pension Review" Section has not been updated since December 11, 2008. According to its last entry, payment has been delayed due to a previously undiscovered error in the formula used for calculating settlement amounts. Approximately one year after settlement, investigators found that the "modified FAS (final average salary)" formula did not take into account teacher earnings received during the first three months in the year before retirement.
The period in question is slight given that a typical New York City teacher's pension is based on over 20 years of service. Current teachers must have 25 years on the job before they are eligible for retirement benefits. But a small error has produced a big delay that shows no signs of ending. And the FAS is so complex that few retirees have any idea of how much they are owed.
"Some class members would do better if the actual FAS rather than the modified FAS required by the settlement agreement was used," said plaintiff attorney David Preminger in a July 8, 2009 email. "The [New York City] actuary had to get involved. Getting the necessary information took forever. We finally got it a few weeks ago, and counterproposals have been going back and forth."
According to www.persessionpaycase.com, the actuarial review was expected to be completed by January 2009.
Another reason for the delay involves the procedure to be followed if a retiree contests his or her benefit amount. "We sent a proposal to corporation counsel months ago," Preminger said. "They may have been absorbed with the FAS issue, but we are not sure what the holdup is."
This protracted non-litigation litigation is reminiscent of Jarndyce v. Jarndyce, an endless, convoluted estate matter described in the 1852 Charles Dickens novel Bleak House. Jarndyce had been bottled up in the Court of Chancery for so long that nobody, including the lawyers involved, understood it.
Politics may be adding to the complexity. New York City Comptroller Bill Thomson, a Democratic mayoral candidate, is named as a Nager defendant. It has been widely reported that New York pension funds have come under serious financial pressure in recent years. City employees have often been portrayed as recipients of lavish benefits. And given the current economic climate, a slowdown in city services, including actuarial review, would not be surprising.
According to estimates recently reported in The New York Post, the average annual city pension for 2006 retirees was over $42,000. But the Nager plaintiffs retired before November 24, 1998. Among them was my late father, who retired in 1988. His last full year's pension, for 2003, was only $22,000. Many others have not---or will not---live to see increased benefits.
In a June 10, 2009 letter, Judy Blumenberg, an official at the Bureau of Consumer Frauds and Protection of the New York State Attorney General's Office, said "we cannot intervene in this matter because the dispute is or has been in litigation."
"The key question is, why is this still in the courts?" opined Steve Gappelberg, an assistant to then-outgoing UFT President Randi Weingarten, during a July 1, 2009 telephone interview.
According to Mr. Preminger, the Nager case, which was ostensibly settled in 2007, is no longer before a judge. But it could be once again. "Until these issues are resolved, no notices will be sent. If we cannot resolve them with the defendants, the court will have to decide."
Published by Mark Stuart ELLISON
I have worked as a lawyer, reporter, and freelance writer. My award-winning first novel, Dear Mom, Dad & Ethel: World War II through the Eyes of a Radio Man, was published in 2004 and reissued in 2006. Pleas... View profile
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- The Nager case was supposedly settled in 2007, but its 14,000 plaintiffs haven't received a dime.
- Nager is like Jarndyce v. Jarndyce, the endless litigation in Charles Dickens' "Bleak House."
- Nager has been out of the courts for years but may soon be heading back there.
30 Comments
Post a CommentUpdate, Nager, Part II: The Character & Fitness Committee has rejected my complaint for the same reason that the UFT and The NYS Attorney General's Office has: because the matter is in litigation. By that standard, the lawyers can sit on their butts until the end of time and nobody but the judge can do a damned thing about it. And the settlement materials explicitly say class members should not contact the court. I think I will anyway because it appears to be the only option left. Unless you want to start another class action suit to compel these idiots to do their jobs or know of a powerful person who can bang heads together. I don't have time for this nonsense right now, but I'll get around to it in a few weeks. Alas, that's probably also a waste of time. I'm rapidly coming to the conclusion that NYS government is totally unresponsive to ordinary folks, a fraud and a sham.
Is anything happening?? Will this case ever be finalized? It has been almost 3 years since we were first notified about settlement.
Mark, Thank you for your good efforts. Frankly without you, and of course Mr. Nager, we'd be nowhere. The UFT retiree chapter is going on its "road show" shortly.--That is visiting/meeting its various groups around the country. The dates/times are posted in the UFT newspaper and it is available on line.
I strongly suggest all members not only attend, but confront our union on this matter once and for all.--After all, thousands of our members are affected and it's clearly time for the UFT to get involved.
Elaine, I've filed a hard-hitting complaint against the lawyers handling this matter with the Departmental Disciplinary Committee in Manhattan. See "Nager v. Teachers' Retirement System: Part II" on Associated Content. The Committee has acknowledged receipt of my complaint, and, hopefully, will take appropriate action shortly. I urge you and any other class member who wants this matter expedited to file your own complaints with the Supreme Court, First Judicial Department, Departmental Disciplinary Committee, 61 Broadway, 2nd Floor, New York, NY 10006. Call 212-401-0800 to get a complaint form.
Does anyone have any updates or new information on the status of our case?
Thank you for your comments, Tom. The UFT rep I spoke to after I wrote then-president Randi Weingarten was not helpful, but I suppose that if you wrote a letter to the current UFT president and got a bunch of other people to do the same, it might help. I also urge you to file a complaint against the lawyers with the Disciplinary Committee of the First Judicial Department of the New York State Supreme Court. I'll be doing that soon. See my comment of November 16, 2009.
I am a 50 year member of the UFT and I am very disappointed that our Union is doing nothing to expedite the payment of money due. Is there anything we can do to get the Union to bring this matter to court to force payment ?
Dear Mr. Nager,
Thank you for being the lead plaintiff in the per session suit against the TRS on our behalf. I appreciate your thoughts on the 5% that our retroactive money is earning (non.compunded) but I would like to get my money and pension increase now while I can enjoy it. At the rate this case is progressing it will be my great great grandkids who get to spend the money.
Attorneys for both sides richly deserve blame here. You don't spend six years litigating, negotiating, doing an actuarial review, and hammering out a court-approved settlement agreement, then sit on it for another year and discover a major mistake that requires more negotiation, actuarial review, and litigation. This irresponsible behavior makes a mockery of our justice system and should not be tolerated. The settlement agreement says that it was designed to avoid precisely the kind of "unconscionable delay" which is occurring now. If this matter is not resolved by mid-December, I urge all plaintiff class members to file a complaint against the plaintiff attorneys with the Supreme Court, First Judicial Department, Departmental Disciplinary Committee, 61 Broadway, 2nd Floor, New York, NY 10006. Call 212-401-0800 to get a complaint form.
Elaine, another more obvious reason not to contact the judge is that the court does not want a deluge of letters from thousands of individual class members. Mr. Nager, a couple of points: 1. The more important question is why is this continuing to be negotiated years after a settlement was approved by the parties and the court? Why wasn't a critical error spotted BEFORE the attorneys agreed to the settlement, and why did it take them over a year AFTER settlement to find it? 2. The five percent interest rate sounds great, but I wonder what risks the settlement fund managers are taking to get it. Have they lost money, and if they have, wouldn't this be cause for further delay?