Rigopoulos v. Kervan, No. 68.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtL. HAND, SWAN, and FRANK, Circuit
Citation140 F.2d 506,151 ALR 1126
PartiesRIGOPOULOS et al. v. KERVAN.
Docket NumberNo. 68.
Decision Date15 November 1943

151 ALR 1126, 140 F.2d 506 (1943)

RIGOPOULOS et al.
v.
KERVAN.

No. 68.

Circuit Court of Appeals, Second Circuit.

November 15, 1943.


Alger, Peck, Andrew & Rohlfs, of New York City (Frederick H. Rohlfs and Lewis F. X. Cotignola, both of New York City, of counsel), for appellant.

Charles R. Katz, of New York City, for appellees.

140 F.2d 507

McLanahan, Merritt & Ingraham, of New York City (Robert R. Bruce and John J. Boyle, both of New Yok City, of counsel), for Realty Advisory Board on Labor Relations, Inc., amicus curiae.

Before L. HAND, SWAN, and FRANK, Circuit Judges.

SWAN, Circuit Judge.

This is an action under section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b), brought against the defendant, who does interstate business under the name and style of The Kervan Company, by ten of his employees. Each plaintiff has recovered judgment in a specified amount, and they have jointly been awarded costs and disbursements which include a fee of $200 for their attorney. Section 16(b), upon which the action is predicated, declares that an employer who violates the provisions of section 6 or section 7 (that is, who fails to pay the minimum wage rates prescribed by the former or the overtime compensation prescribed by the latter) "shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." It also directs the court to allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

With respect to eight of the plaintiffs, Dounetas and Vangelakos being excepted, the main question presented by the defendant's appeal is whether the statute entitles an employee within its coverage to obtain a judgment for the liquidated damages and attorney's fee after accepting from his employer, and before starting his action, payment in full of overtime compensation long overdue. Judge Conger decided this question in favor of the plaintiffs in striking from the defendant's answer affirmative defenses which alleged acceptance of such payments. Rigopoulos v. Kervan, D.C., 47 F.Supp. 576.

With respect to these eight plaintiffs the facts established upon the trial are not in dispute. The amounts of unpaid overtime compensation to which they were entitled for services performed during the period mentioned in the complaint, October 24, 1938, to January 1, 1941, were stipulated. These amounts were paid them in six monthly instalments beginning in June 1941; and at least six1 of these eight plaintiffs signed a receipt acknowledging that the amount stated therein "represents unpaid wages computed or approved by the Wage and Hour Division under the provisions of the Fair Labor Standards Act of 1938 and covering the period or periods of employment" between specified dates. Thus the overtime compensation was paid long after it was due. Section 7 of the Act, 29 U.S.C.A. § 207, plainly contemplates that overtime compensation shall be paid in the course of employment and not accumulated beyond the regular pay day. See Seneca Coal & Coke Co. v. Lofton, 10 Cir., 136 F. 2d 359, 363, certiorari denied October 18, 1943, 64 S.Ct. 77, 88 L.Ed. ___. Hence the failure to pay it, when due, was a violation of section 7, which rendered the employer "liable," as declared in section 16(b), not only for the unpaid overtime compensation but also for liquidated damages in an additional equal amount. This is a single and entire...

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45 practice notes
  • Devine v. Joshua Hendy Corporation, No. 6176.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 30, 1948
    ...62 S.Ct. 1216, 86 L.Ed. 1682; Seneca Coal & Coke Co., v. Lofton, 1943, 10 Cir., 136 F.2d 359, 363; Rigopoulos v. Kervan, 1943, 2 Cir., 140 F.2d 506, 508, 151 A.L.R. 1126; Brooklyn Sav. Bank v. O'Neil, 1945, 324 U.S. 697, 706-713, 65 S. Ct. 895, 89 L.Ed. 54 29 U.S.C.A. § 260. 55 Although......
  • Reich v. Tiller Helicopter Services, Inc., No. 92,7368
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 10, 1993
    ...subject to suits brought by their employees for liquidated damages and attorneys' fees under § 216(b). See, e.g., Rigopoulos v. Kervan, 140 F.2d 506 (2d Cir.1943). Recognizing that employee suits were rare, voluntary settlements unlikely, and complete relief desirable, some courts issued in......
  • Brooklyn Sav Bank v. Neil Dize v. Maddrix Arsenal Bldg Corporation v. Greenberg 8212 1945, Nos. 445
    • United States
    • United States Supreme Court
    • April 9, 1945
    ...to coverage or amount.12 Moreover, the decision by the New York Appellate Division was based on Rigopoulos Page 704 v. Kervan, 2 Cir., 140 F.2d 506, 151 A.L.R. 1126, which involved waiver of right to liquidated damages in the absence of a bona fide dispute and which expressly reserved decis......
  • Belizaire v. Rav Investigative & Sec. Servs. Ltd., No. 12–CV–8268 JPO.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 21, 2014
    ...set forth a requirement of prompt payment, such a requirement is clearly established by the authorities....”); Rigopoulos v. Kervan, 140 F.2d 506, 507 (2d Cir.1943) (“[The FLSA overtime provision] plainly contemplates that overtime compensation shall be paid in the course of employment and ......
  • Request a trial to view additional results
45 cases
  • Devine v. Joshua Hendy Corporation, No. 6176.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 30, 1948
    ...62 S.Ct. 1216, 86 L.Ed. 1682; Seneca Coal & Coke Co., v. Lofton, 1943, 10 Cir., 136 F.2d 359, 363; Rigopoulos v. Kervan, 1943, 2 Cir., 140 F.2d 506, 508, 151 A.L.R. 1126; Brooklyn Sav. Bank v. O'Neil, 1945, 324 U.S. 697, 706-713, 65 S. Ct. 895, 89 L.Ed. 54 29 U.S.C.A. § 260. 55 Although Jud......
  • Reich v. Tiller Helicopter Services, Inc., No. 92,7368
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 10, 1993
    ...subject to suits brought by their employees for liquidated damages and attorneys' fees under § 216(b). See, e.g., Rigopoulos v. Kervan, 140 F.2d 506 (2d Cir.1943). Recognizing that employee suits were rare, voluntary settlements unlikely, and complete relief desirable, some courts issued in......
  • Brooklyn Sav Bank v. Neil Dize v. Maddrix Arsenal Bldg Corporation v. Greenberg 8212 1945, Nos. 445
    • United States
    • United States Supreme Court
    • April 9, 1945
    ...to coverage or amount.12 Moreover, the decision by the New York Appellate Division was based on Rigopoulos Page 704 v. Kervan, 2 Cir., 140 F.2d 506, 151 A.L.R. 1126, which involved waiver of right to liquidated damages in the absence of a bona fide dispute and which expressly reserved decis......
  • Belizaire v. Rav Investigative & Sec. Servs. Ltd., No. 12–CV–8268 JPO.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 21, 2014
    ...set forth a requirement of prompt payment, such a requirement is clearly established by the authorities....”); Rigopoulos v. Kervan, 140 F.2d 506, 507 (2d Cir.1943) (“[The FLSA overtime provision] plainly contemplates that overtime compensation shall be paid in the course of employment and ......
  • Request a trial to view additional results

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