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merged_92288_-1-1400794308

merged_92288_-1-1400794308

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merged_92288_-1-1400794308
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Published by: pandoeditorial on May 22, 2014
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08/20/2014

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6880/32851-001 current/43373677v1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X Case No.: 13-CV-04347 (AJN)
ECF Case
AULISTAR MARK, et al., etc., Plaintiffs, v. GAWKER MEDIA LLC and NICK DENTON, Defendants. : : : : : : : : : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X 
DEFENDANTS’ SURREPLY IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE
Since the completion of briefing on plaintiffs’ motion for conditional certification in January, defendant Gawker Media LLC (“Gawker”) has taken the depositions of two of the three named plaintiffs. The depositions affirm the unsuitability of this case for class or collective treatment, in at least two respects. First, the contrast between Aulistar Mark’s and Andrew Hudson’s accounts of their internships illustrates the deeply individual nature of the claims asserted in this case, and the utter inability of a judgment about one individual’s internship to  provide any meaningful basis for a judgment about any other. Second, Mark and Hudson confirm that they know nothing about the experiences of any other Gawker intern, and so are in no position to assist in meeting Plaintiffs’ burden to establish that they are similarly situated to the proposed collective.
A. Mark’s and Hudson’s Contrasting Experiences Demonstrate The Individuality of Plaintiffs’ Claims.
Gawker argued in opposition to Plaintiffs’ motion for conditional certification that under  prevailing law, the legality of each unpaid Gawker internship turns on the individual quality of that internship, and that the evidence of wide variety in the record demonstrates the infeasibility
Case 1:13-cv-04347-AJN Document 51 Filed 05/21/14 Page 1 of 6
 
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6880/32851-001 current/43373677v1
of aggregate treatment here. Mark’s and Hudson’s testimony now provides a stark example of those contrasts.
See generally
 Exhibit A. On one hand, Hudson claims that his internship was entirely worthless. Asked whether he learned anything at all, he responded, “I learned not to take an unpaid internship. That’s maybe the biggest life lesson.” Hudson Dep. at 84:18-20. Hudson, who interned remotely from his home in St. Louis, Missouri, and never set foot in Gawker’s New York offices, testified that he received little feedback on his written work; that he merely used skills he already had, rather than developing new ones; and that he became “frustrated by how unresponsive . . . my editor was and how little sort of actual training and education was involved.”
 Id 
. 92:22-24. Mark, by contrast, interned on-site in New York, and acknowledged repeatedly that the internship taught him valuable skills and contributed to his personal growth. Where Hudson claimed to have had no meaningful feedback, Mark testified that his Gawker supervisor helped him tighten his writing much as his college professor had. Mark Dep. 76:20-77:12. In a paper for his college advisor reporting on the internship, he wrote, “I've been learning more about my craft, as well as what I'm capable of[,] than I've ever learned in a classroom.” He adopted that statement in his deposition.
 Id 
. 91:10-93:22. He went on to describe how much more helpful the Gawker internship was than prior internships, because “I produced stuff and I kind of proven [sic] to myself that I was capable of doing these multiple stories and working at the speed and working in a work environment like Kotaku, and I appreciated the fact that I had that experience, I learned that about myself.”
 Id 
. His college advisor, reacting to the paper, wrote that “You are gaining very valuable experience and increasing your skill set,” and “It sounds as though you are  building confidence and learning deeply about yourself.” Mark agreed.
 Id 
. 95:14-97:3. To this day, he testified, he considers his Gawker supervisor a “mentor.”
 Id 
. 112:25-113:4.
Case 1:13-cv-04347-AJN Document 51 Filed 05/21/14 Page 2 of 6
 
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Taking their testimony at face value – and even ignoring, for example, the factual disputes about the quality of Hudson’s internship that arise from a comparison of Hudson’s testimony with the declaration of his supervisor, Meredith Woerner, which a jury would have to resolve – Mark’s and Hudson’s accounts alone demonstrate the folly of attempting to adjudicate the legality of Gawker’s internships on a representative basis. They are not “similarly situated” even to each other, let alone to the hundreds of other former interns in the proposed collective. Their widely varying experiences speak eloquently to the need for individual resolution of these claims. The differences between Hudson and Mark also show the fallacy of the suggestion that the collective be conditionally certified and the potential differences in experience evaluated later, once the group of opt-ins is known. Exploration of just two internships has already demonstrated the breadth and dramatic inconsistency of potential experiences. Where is the evidence from the Plaintiffs – who, after all, have the burden of proof – that the collective can reasonably be expected to share common facts that would permit resolution on a representative  basis? There is none, and Mark’s and Hudson’s testimony shows a diversity of experience that would only be deepened if the Court were to permit conditional certification. Mark’s and Hudson’s testimony not only reveals the variation in experience from one intern to another, but substantively undermines Plaintiffs’ claims. Mark concedes that his internship was enormously beneficial to him; he both gained specific skills and “learn[ed] deeply about [him]self.” Hudson, so contemptuous of his internship, nevertheless also undermines Plaintiffs’ case. Plaintiffs argue, for example, that if interns had not been available, their work would have been done by employees, and that Gawker therefore received an immediate benefit from the interns. Pl. Opening Br. at 17. Hudson’s testimony contradicts the claim. He himself
Case 1:13-cv-04347-AJN Document 51 Filed 05/21/14 Page 3 of 6

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