The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Presently pending is the resolution of three issues, described below, remanded to this Court by the Second Circuit Court of Appeals. The parties have briefed the issues and oral argument was heard on March 26, 2009. For the reasons which follow, the Court holds that defendants waived the affirmative defense at issue, that waiver is not excused, and the Second Amended Judgment filed March 28, 2002 (Docket No. 214) is reinstated.
The extended procedural history of these cases*fn1 commenced on January 6, 1997 when an opt-in class of plaintiffs in the first action filed a complaint alleging disparate treatment and disparate impact age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the New York Human Rights Law (HRL), N.Y. Exec. Law § 290 et seq. Compl. (Docket No. 1).*fn2 The actions arose from an involuntary reduction-in-force (IRIF) in 1996 at defendant Knolls Atomic Power Laboratory (KAPL)*fn3 which resulted in the termination of the employment of the twenty-eight plaintiffs. Following a bifurcated trial on liability and damages, the jury returned verdicts for defendants on plaintiffs' disparate treatment claims, for twenty-six plaintiffs on their disparate impact claims under both the ADEA and the HRL, and awarded plaintiffs*fn4 a total of $5,077,285.33 in damages. Docket Nos. 119, 124, 126, 128. On December 11, 2000, judgment was entered on the verdicts. Docket No. 133. Defendants then moved for judgment as a matter of law or a new trial. Docket Nos. 137, 196. The motion was denied on February 13, 2002, but remittitur was granted reducing the total damages awarded (including interest) to $4,172,547.89. Meacham v. Knolls Atomic Power Lab., 185 F. Supp. 2d 193 (N.D.N.Y. 2002). Judgment, including an additional award for attorneys' fees and costs, was entered on March 28, 2002. Second Am. J'ment (Docket No. 214).
Defendants appealed. On August 23, 2004, the Second Circuit affirmed the judgment. Meacham v. Knolls Atomic Power Lab., 381 F.3d 56 (2d Cir. 2004) (Meacham
I). Defendants petitioned the Supreme Court for a writ of certiorari. While that petition was pending, the Supreme Court decided another case addressing issues raised by a disparate impact claim under the ADEA. See Smith v. City of Jackson, 544 U.S. 228 (2005). The Supreme Court then vacated the Second Circuit's decision and remanded the case to the Second Circuit for further consideration in light of City of Jackson. KAPL, Inc. v. Meacham, 125 S.Ct. 1731 (2005). On remand, the Second Circuit vacated the judgment in favor of plaintiffs and, on August 14, 2006, directed that judgment be entered in favor of defendants. Meacham v. Knolls Atomic Power Lab., 461 F.3d 134, 147 (2d Cir. 2006) (Meacham II). Plaintiffs then petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the petition. On June 19, 2008, the Supreme Court vacated Meacham II and remanded for further proceedings. Meacham v. Knolls Atomic Power Lab., 128 S.Ct. 2395, 2406-07 (2008).
On remand, the Second Circuit directed the parties to submit briefs on the three questions set forth below. Following submission of those briefs, the Second Circuit entered a summary order on January 7, 2009 remanding the case to this Court for further proceedings as follows:
[T]he Supreme Court instructed us to determine "whether the outcome [of these cases] should be any different [from Meacham II in light of its holding]." Id. at 2406-07. Because this determination requires a factual inquiry that this Court lacks the institutional capacity to perform, we now remand to the
[d]istrict [c]ourt... for consideration of the following issues:
(1) Did the employer waive the RFOA affirmative defense by its conduct at the district court?
(2) If so, was any such waiver excused as  "the result of conflicting statements in our case law, for which [the employer] should not be penalized"?
(3) If the employer did not waive the defense, or if any such waiver is excused:
(a) Should the employer prevail as a matter of law on the RFOA defense in light of the Supreme Court's decision?
(b) Should this case be resolved on the record created, or is a new trial warranted in light of the change in the relevant law?
Depending on the findings and rulings made in considering these questions, the district court may enter such orders and conduct such further proceedings (including discovery and trial) as the district court deems appropriate.
Meacham v. Knolls Atomic Power Lab., 305 Fed.Appx. 748, 749 (2d Cir. 2009) (Meacham III) (footnote and citation omitted); Docket No. 299.
No party requested discovery concerning any of these issues and all parties stated their view that the questions pending should be resolved on the existing record. Order filed Jan. 15, 2009 (Docket No. 297) at 1. For purposes of this decision, familiarity with the prior decisions of the various courts is assumed.
1. Did the employer waive the RFOA affirmative defense by its conduct at ...