Case 1:13-cv-04347-AJN Document 44

Filed 03/27/14 Page 1 of 2

Proskauer Rose LLP One International Place Boston, MA 02110-2600

March 27, 2014 VIA ECF Hon. Alison J. Nathan United States District Judge United States District Court Southern District of New York 40 Foley Square, Room 2102 New York, New York 10007 Re:

Mark W. Batten Member of the Firm d 617.526.9850 f 617.526.9899 mbatten@proskauer.com www.proskauer.com

Mark, et al. v. Gawker Media LLC, et al., No. 13 Civ. 04347 (AJN) (SN)

Dear Judge Nathan: This firm is counsel to the defendants, Gawker Media LLC and Nick Denton (collectively, “Gawker”), in the above-captioned matter. I write on behalf of the defendants in response to the Court’s Order of March 25, 2014, concerning named plaintiff David Matthews’ request to dismiss his claims in this action with prejudice. The Court’s Order suggests that the parties have failed to communicate clearly the intent behind the proposed stipulation of dismissal filed on March 24, 2014. Gawker is acutely aware of the risks associated with the dismissal of claims under the Fair Labor Standards Act without judicial approval, and does not intend to take those risks. Gawker is willing to assent to Mr. Matthews’ dismissal only with the considered approval of the Court, precisely for the reasons that the Court noted in its March 25 order by reference to Picerni v. Bilingual Seit & Preschool, Inc., 925 F. Supp. 2d 368 (E.D.N.Y. 2013): that judicial approval of the discontinuance of an FLSA claim frequently is considered essential to ensure that the claim cannot be reasserted in the future. That is why Gawker insisted that the stipulation be approved by the Court, rather than simply filed, as Fed. R. Civ. P. 41 permits. Further, there is no settlement: Gawker has not agreed to pay Mr. Matthews anything, and denies liability to Mr. Matthews, having provided him with a valuable and lawful internship experience. Nor was the stipulation the product of any settlement discussions between counsel; Mr. Matthews simply has decided, for his own reasons and without any promise or coercion from Gawker, to dismiss his claims. Plaintiffs’ counsel approached Gawker’s counsel unsolicited to ask that Gawker assent to that dismissal, and Gawker agreed to that request on the condition that the dismissal was approved by the Court, as required by D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946) and Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945) (both of which were cited in the stipulation). Several considerations support judicial approval of the dismissal with prejudice of Mr. Matthews’ claims without any payment. First, and most importantly, Mr. Matthews does not currently assert any claims under the FLSA, and likely cannot do so. The Amended Complaint alleges that the FLSA claim (Count I) is brought by Plaintiffs Mark and Lu; Matthews is listed
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Case 1:13-cv-04347-AJN Document 44

Filed 03/27/14 Page 2 of 2

Hon. Alison J. Nathan March 27, 2014 Page 2 only as a proposed class representative on the state law claim in Count II. See Amended Complaint ¶¶16, 17. Further, the Amended Complaint alleges that Mr. Matthews was a Gawker intern “between November 2009 and February 2010.” This action was filed in June 2013, and Mr. Matthews did not join it as a plaintiff until the filing of the Amended Complaint in August 2013. The FLSA normally carries a two-year statute of limitations, which is extended to three years upon a finding of a willful violation, see 29 U.S.C. §255(a); even if plaintiffs could prove a willful violation, which Gawker denies, any claim by Mr. Matthews under the FLSA should be time-barred. Gawker sought judicial approval of the dismissal solely as a protective measure in the event that Mr. Matthews should try to assert an FLSA claim later in this action or through an independent action. Second, the dismissal will not affect the rights of any other individual. This case will continue, and while Gawker maintains that this action is not suitable for class or collective certification, dismissal of Mr. Matthews’ claims should have no bearing on the pending certification questions, nor diminish the claims that may be asserted either individually or collectively by any other former Gawker intern. Third, there is a “bona fide dispute” in this case of the sort that the Picerni Court referred to in holding that “if an FLSA release is going to be upheld, it must be where there is a bona fide dispute” as to factual rather than legal matters. 925 F. Supp. 2d at 371. Here, there unquestionably is a fundamental legal dispute, as to the standard that should govern in cases challenging the classification of individuals as interns rather than as employees, but there are also factual disputes – highly individualized, intern-by-intern factual disputes – about what activities each intern engaged in, whether the balance of the benefits of a particular internship favored the intern or Gawker, the number of hours “worked,” and more. For all of the foregoing reasons, Gawker respectfully requests that the Court approve the dismissal of Mr. Matthews’ claims as described in the stipulation. Very truly yours,

Mark W. Batten

cc:

Andrea Paparella, Esq.

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