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800 THIRD AVENUE
NEW YORK, N.Y. 10022
FACSIMILE: (212) 687-1505
May 13, 2014
The Honorable Alison J . Nathan
United States District Court
Southern District of New York
40 Foley Square, Room 2102
New York, New York 10007
Re: Mark et al v Gawker Media LLC et al. • No. 13 Civ. 04347 (AJ N) (SN)
Dear J udge Nathan:
We rep resent Plaintiffs, who resp ectfully op p ose Defendants' request to file a sur-rep ly in
op p osition to Plaintiffs' motion for conditional certification. (Docket No. 47.)
Defendants seek to highlight p ortions of the dep ositions of named Plaintiffs Mark and
Hudson. Id. Such an analysis is inefficient and unwarranted at this first stage, before the
comp letion of discovery and before the entire factual record has been develop ed during the
allowed discovery p eriod.l If the Court grants Defendants' request, Plaintiffs (1) resp ectfully
request p ermission to resp ond to the sur-rep ly, and (2) are comp elled to resp ectfully request that
as the factual record develop s they likewise be p ermitted to file additional briefing when they
deem a develop ment " relevant to matters discussed in Plaintiffs' motion p ap ers and Defendants'
op p osition." Id.
Resp ectfully submitted,
/ s/ Andrea M. Pap arella
Andrea M. Pap arella
cc: Mark W. Batten, Esq. (via ECF)
~ The Second Circuit has a " two-step method" of certification in an FLSA op t-in collective action. See
Myers v. Hertz Corp ., 624 F.3d 537, 554-55 (2d Cir.2010). In the first stage, " the court makes) an initial
determination to send notice to p otential op t-in p laintiffs who may be ` similarly situated' to the named p laintiffs
with resp ect to whether a FLSA violation has occurred." Id. at 555 (internal citations omitted). " The burden imp osed
at the first ` conditional certification' stage is minimal p recisely because the second step allows for a full review of
the factual record develop ed during discovery to determine whether op t-in p laintiffs are actually ` similarly
situated." ' Hernandez v. Merrill Lynch &Co., Inc., No. 11 Civ. 8472 (KBF), 2012 WL 1193836, at *4 (S.D.N.Y.
Ap r. 6, 2012) (quoting Myers, 624 F.3d at 555). At the second step , the court determines on " a fuller record"
whether to de-certify the action by examining " whether the p laintiffs who have op ted in are in fact ` similarly
situated' to the named p laintiffs." Myers, 624 F.3d at 555.
Case 1:13-cv-04347-AJN Document 49 Filed 05/13/14 Page 1 of 1