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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
----------------------------------AULISTAR MARK, et al., etc.,

X
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Plaintiffs,
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v.
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GAWKER MEDIA LLC and NICK DENTON, :
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Defendants.
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----------------------------------- X

Case No.: 13-CV-04347 (AJN)


ECF Case

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION FOR


SUMMARY JUDGMENT
INTRODUCTION
Although the Second Circuits July 2, 2015 decision in Glatt v. Fox Searchlight Pictures, Inc.
makes clear that Plaintiffs here cannot succeed on the merits of their claims, most of those claims
stumble before even reaching the merits. The Fair Labor Standards Act claims of the opt-in
plaintiffs are all time-barred, and named plaintiff Aulistar Mark not only brings his claims too
late but signed a written release and waiver during his internship, releasing any claims arising
from the internship and waiving any right to participate as a class member or representative in
any collective or class action.
On the merits, the undisputed facts demonstrate that both of the remaining named
plaintiffs, Mark and Andrew Hudson, had precisely the sort of hands-on, educational internships
that the Second Circuit endorsed in Glatt. Both were in school at the time; Mark received
academic credit, and Hudson had it available to him. Both were pursuing journalism degrees,
both interned in the summer between school years, and both received practical experience that
complemented but did not displace the work of any paid employee. The undisputed facts

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taken almost entirely from their own deposition testimony confirm that these plaintiffs had
enormously beneficial educational experiences that far outweighed any benefit Gawker Media
LLC (Gawker) received from their minimal work product. Gawker is entitled to summary
judgment on the merits of their claims.
ARGUMENT
A.

The Opt-In Plaintiffs Claims Are Barred By The Statute Of


Limitations.

The FLSA requires that individuals file a consent to join a collective action within two
years after their cause of action arose. 29 U.S.C. 255(a), 256(a), (b). The statute extends that
period by an additional year if the claim aris[es] out of a willful violation. 29 U.S.C. 255(a).
All but one of the individuals who have opted in to this case filed their consents more than three
years after their internships ended, and so their claims are barred in either case, as shown in Part
A.1. below. The sole remaining plaintiff on the FLSA claim, named plaintiff Aulistar Mark, filed
his consent more than two years after his claim accrued, and because there is no basis for a
reasonable jury to find a willful violation in this case, his claim is barred as well, as shown in Part
A.2.
1.

All But One of the Plaintiffs Are Barred Even By The ThreeYear Limitations Period.

The two- or three-year statute of limitations runs until an individual files a written
consent to commence or join a collective action. See, e.g., Whitehorn v. Wolfgang's Steakhouse, Inc.,
767 F. Supp. 2d 445, 449 (S.D.N.Y. 2011); Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 260
(S.D.N.Y. 1997) (Sotomayor, J.). Signed consents do not relate back to the original filing date of
the complaint. Lee v. ABC Carpet & Home, 236 F.R.D. 193, 199 (S.D.N.Y.2006) (citing 29 U.S.C.
255, 256); Sbarro, 982 F. Supp. at 260 ([O]nly by opting in will the statute of limitations on
potential plaintiffs' claims be tolled.).
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Here, every purported plaintiff, apart from named Plaintiff Aulistar Mark, completed his
or her internship more than three years before filing a written consent to join this action. 1
Gawker accordingly is entitled to summary judgment on their claims under the FLSA even if the
longer limitations period were to apply (which it does not, as explained in the following section).
As to nearly all the opt-ins, the calculations are straightforward: they interned in 2009,
2010, or 2011, and did not opt in until April 2015, well more than three years after their
internships ended. See Defendants Statement of Materials Facts 1-19 and documents cited.
Hudson interned in 2008, and did not opt in until June, 2013. Id. 10. Opt-in Zachary
Cianflone comes closer, but still too late: the record shows that his internship had ended by
December 7, 2011, when he sent an email to his supervisor acknowledging the end of the
internship; he opted in on December 15, 2014. Id. 6. Similarly, opt-ins Michael Kennelly and
Lily Newman had internships that extended to January and February 2012, respectively, but
neither consented to join until April 2015.
Two of the opt-ins require a more nuanced look at the record, because they continued in
a paid relationship with Gawker after the end of their unpaid internships, and they do not
distinguish unpaid internships from paid relationships in their LinkedIn profiles. Tim Barribeau
began as an io9 intern in January 2010, and lists January 2010-December 2012 on his
LinkedIn profile, but he became a paid contributor in January 2012, and so his April 11, 2015
consent form is untimely. Id. 2. Patrick Frawley, similarly, interned in the last quarter of 2011
and became a paid contributor in January 2012. Id. 9.
Finally, even if one or more of these interns were able to show that a consent was filed
within three years of the end of his or her internship, Gawker would still be entitled to summary
Indeed, many of these individuals completed their internships more than three years before this
litigation even was filed, though that is not the relevant test.
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judgment because the applicable statute of limitations is two years absent proof of willfulness
and none of these plaintiffs can prove willfulness under the FLSA, as explained in the following
section.
2.

Aulistar Marks FLSA Claim Is Time-Barred Because He


Cannot Prove A Willful Violation of the Statute.

Named Plaintiff Aulistar Marks claims are barred by his signed release and by the facts of
his internship, as shown in Parts B and C, below. His claim is also time-barred. Because he
interned at Gawker between May and August 2010, see Amended Complaint 31, and did not
consent in writing to join this action until June 18, 2013, see consent form attached to Docket No.
1, his claim under the FLSA strictly speaking, only part of his claim, since his internship began
more than three years before his consent is timely only if he can prove a willful violation of the
statute. Similarly, to the extent that any other opt-in plaintiff should present evidence that his or
her internship actually lasted into a three-year limitations period, they too cannot succeed unless
they can prove a willful violation. As a matter of law and undisputed fact, plaintiffs cannot do so.
The FLSA permits a finding of a willful violation only where the employer knew that its
conduct violated the statute, or acted with reckless disregard for whether its actions were in
compliance. There is no uncertainty about that standard; it has been the rule since the Supreme
Court specifically established it more than 25 years ago in McLaughlin v. Richland Shoe Co., 486
U.S. 128 (1988). The Supreme Court in McLaughlin rejected more lenient standards and
specifically held that it was not sufficient to prove that the employer was negligent, or even that
the employer acted without a reasonable basis for believing that it was complying with the
statute. 486 U.S. at 134. Actual knowledge or recklessness is required. Id. at 133. Courts since
have regularly rejected claims of willfulness that relied on mere negligence, or an employers lack
of a reasonable basis for its actions, even where the employer had substantial reasons to believe
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that its policies might be unlawful. 2 Similarly, courts have rejected the notion that the failure of
an employer to take any steps to determine the lawfulness of its conduct constitutes evidence of
willful violations. Copantitla v. Fiskardio Estiatorio, Inc., 788 F. Supp. 2d 253, 318 n.28 (S.D.N.Y.
2011); see also Saunders v. City of New York, 594 F. Supp. 2d 346, 364 (S.D.N.Y. 2008) (denying
summary judgment where plaintiffs presented no evidence of conscious disregard apart from
the contested existence of the violations themselves).
Discovery is now complete, and Plaintiffs have no evidence on which a reasonable jury
could base a determination that Gawker knew its internships were illegal or that it acted
recklessly in proceeding with them particularly at the time those internships occurred, years
ago. At that time, the most closely analogous case law held that legality turns on an ad hoc
consideration of the totality of the circumstances. See, e.g., Velez v. Sanchez, 693 F.3d 308, 326, 330
(2d Cir. 2012) (whether an employer-employee relationship exists does not depend on isolated
factors but rather upon the circumstances of the whole activity) (citing Rutherford Food Corp. v.
McComb, 331 U.S. 722, 730 (1947)). 3 Last month, as explained further in Parts C and D below,

See, e.g., Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1515 (1st Cir. 1991) (rejecting
willfulness claim even though plaintiffs had complained to the employer about FLSA violations); Mills v.
Maine, 853 F. Supp. 551, 555 (D. Me. 1994) (no willfulness even though the employer entertained
significant questions as a result of emerging caselaw and relevant DOL opinions); Brock v. Claridge Hotel
and Casino, 846 F. 2d 180, 188 n.9 (3rd Cir. 1988) (no willfulness even though the DOL had declared the
employers practices unlawful, because private parties must retain a right to disagree with the Secretary's
interpretation of the regulations, especially here where the question is a close one).
2

See also Solis v. Laurelbrook Sanitarium & School, Inc., 642 F.3d 518, 524 (6th Cir. 2011) (requiring
real consideration of the economic realities of the relationship and noting settled jurisprudence calling
for consideration of the totality of the circumstances of each case); Blair v. Wills, 420 F.3d 823, 829 (8th
Cir. 2005) (court considered the totality of the economic circumstances to determine that student
enrolled in residential school was not entitled under FLSA to minimum wage for performing chores);
McLaughlin v. Ensley, 877 F.2d 1207, 1209 (4th Cir. 1989) (this court has concluded that the general test
. . . is whether the employee or the employer is the primary beneficiary); Reich v. Parker Fire Protection Dist.,
992 F. 2d 1023, 1026-27 (10th Cir. 1993) (applying a totality of the circumstances test to trainees);
Donovan v. American Airlines, Inc., 686 F.2d 267, 272 (5th Cir. 1982) (approving the district courts analysis of
the relative benefits flowing to trainee and company during the training period).
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the Second Circuit held that the ad hoc, multi-factor, totality-of-the-circumstances test is indeed
a correct statement of the law. Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376, 383 (2d Cir.
2015). The Court began by acknowledging that the dispute over the standards to be applied in
evaluating whether interns must be paid presented a question of first impression in the Second
Circuit. Id. In resolving that question, the Court rejected standards proposed by the DOL that
were issued in April 2010, just before Marks internship began, and substituted a new set of
factors never before discussed. The law only now is gaining some clarity, and even now only to
the extent that the legality of any unpaid internship must be evaluated on an intern-by-intern,
highly individualized basis. Id. at 386. Gawker could not possibly have acted with actual
knowledge of illegality, or reckless disregard as to that question, several years ago. There is not a
single fact suggesting the requisite intent.
Plaintiff Mark signed a release and waiver of claims at the outset of his internship, as
described in more detail in Part B, below. Gawkers caution in requiring such a waiver, however,
cannot suffice as evidence that Gawker knew that, or was reckless as to whether, Marks unpaid
internship was unlawful. Employers routinely obtain releases of employment claims in
separation agreements, for example without any specific knowledge that an employee has a
claim to assert, let alone a valid claim; the release helps ensure that the employer will not face the
expense and inconvenience of litigation, whether the employee has a basis for such claims or not.
Similarly here, the mere requirement that Mark sign a release and waiver cannot be taken as
proof that Gawker knew the internship would be unlawful. Even if hypothetically, as there is
no evidence on this point Gawker required Mark to sign the waiver because of concern arising
from the DOLs issuance of Fact Sheet 71 in April 2010, that hedge against the possibility of an

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eventual challenge to Marks internship does not begin to rise to the level of a knowing or reckless
violation under the standards of proof established by McLaughlin and subsequent cases.
There is accordingly no basis on which a reasonable jury could find that Gawker willfully
violated the FLSA in agreeing to provide an unpaid internship to Aulistar Mark, or to any other
opt-in plaintiff. A two-year statute of limitations applies, and all of the FLSA claims are timebarred.
B.

Plaintiff Mark Has Waived His Right To Participate In This Action


and Released His Claims.

On May 26, 2010, plaintiff Aulistar Mark signed an internship agreement with Gawker.
Declaration of Scott Kidder (Kidder Decl.), Ex. 3. In it he acknowledged that he would not
receive compensation as an intern, and that he was not entitled to employment at the conclusion
of the internship. He also released Gawker (and its officers and directors, among others) from
any claim arising out of or relations [sic] to all losses, damages, or injuries of any kind sustained
or incurred by me during my internship with Gawker Media. Id. Further, Mark agreed as
follows:
To the fullest extent permitted by law, by agreeing to the terms of this Internship Policy, I
waive any right to commence, be a party to, or be an actual or putative class member of
any class or collective action arising out of or relating to my internship with Gawker
Media LLC or its affiliated companies.
Id. This agreement is fully enforceable, prohibits Mark from serving as a representative of any
class or collective in this case, and requires dismissal of his state-law claims.
As the Second Circuit has held, every Court of Appeals to have considered th[e] issue
has concluded that the FLSA does not preclude the waiver of collective action claims. 4 The

Sutherland v. Ernst & Young LLP, 726 F.3d 290, 296 (2d Cir. 2013) (per curiam) (citing Owen v.
Bristol Care, Inc., 702 F.3d 1050, 1055 (8th Cir. 2013); Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294,
298 (5th Cir. 2004); Adkins v. Labor Ready, Inc., 303 F.3d 496, 503 (4th Cir. 2002)). The Court went on to
note that [a]ll but one district court in this Circuit has reached the same conclusion. Id. at 296 n.5
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Court reasoned primarily that the FLSAs text does not suggest any intent to preclude waiver of
collective participation, and indeed the opt-in requirement indicates a contrary intent: if an
employee must affirmatively opt in to any such class action, surely the employee has the power to
waive participation in a class action as well. Id. at 297 (quoting Owen, 702 F.3d at 1052-53).
Subsequently, in Raniere v. Citigroup Inc., 533 Fed. Appx. 11 (2d Cir. 2013) (summary order), the
Court rejected plaintiffs argument that the right to collective action is an integral and
fundamentally substantive element of the FLSA that cannot be subject to waiver as directly
foreclosed by Sutherland. The same rule applies under New York law.5
Although these cases all involved waiver clauses in arbitration agreements, and therefore
also implicate the Congressional policy favoring arbitration expressed in the Federal Arbitration
Act, 9 U.S.C. 1, et seq., the rationale for sustaining the collective action waivers did not depend
on the deference owed to arbitration agreements. The Eighth Circuit in Owen, as noted above,
found that the opt-in mechanism indicates an intent not to preclude collective action waivers,
and Carter similarly held that there is nothing in the FLSAs text or legislative history supporting
th[e] assertion that the statute precludes a waiver. 362 F.3d at 297. In other words, the
situation is not that a rule or even a presumption against waiver of collective action rights is
overcome by the FAAs endorsement of arbitration; it is that the FLSA does not preclude such a
waiver, whether in favor of an arbitral forum or otherwise.
(collecting cases). The one dissenting district court opinion that the Sutherland Court acknowledged, Raniere
v. Citigroup Inc., 827 F. Supp. 2d 294, 311 (S.D.N.Y. 2011), was subsequently reversed, 533 Fed. Appx. 11
(2d Cir. 2013).
Under New York law, a contractual proscription against class actions . . . is neither
unconscionable nor violative of public policy. Ranieri v Bell Atl. Mobile, 759 N.Y.S.2d 448 (App. Div. 1st
Dept 2003), lv. denied, 775 N.Y.S.2d 240 (2003) (enforcing arbitration agreement that waived right to class
action claims); accord Frankel v. Citicorp Ins. Services, Inc., No. 15516-08, 2008 NY Slip Op. 32722(U), 5,
(Sup. Ct. Sept. 26, 2008) (same); Tsadilas v. Providian Nat'l Bank, 786 N.Y.S.2d 478, 480 (App. Div. 2004)
(an arbitration provision is enforceable even though it waives [a] plaintiffs right to bring a class action).
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Indeed, if anything, a collective action waiver outside the arbitration context which
preserves the ability to pursue an individual FLSA claim in court poses fewer concerns than
those raised and rejected in the arbitration cases. In Carter, for example, the plaintiff complained
that enforcement of the arbitration agreement would be unconscionable not only because of the
loss of the collective action opportunity, but also because discovery would be more limited, the
selected forum would be inconvenient, and the like. Id. at 298-301. The court rejected those
concerns, and they are not even present here; the waiver at issue does not deprive Mark of a
judicial forum. Further, any argument that enforcement of the waiver should be denied because
his claim is too expensive to pursue on its own is belied by the FLSAs provisions for attorneys
fees and, in any event, is precluded by Sutherland, 726 F.3d at 298, and the Supreme Courts
decision in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2310-11 (2013). See id.
at 2311 (the fact that it is not worth the expense involved in proving a statutory remedy does not
constitute the elimination of the right to pursue that remedy) (original emphasis). Mark has waived
his federal collective and state-law class claims, and cannot participate in this action. Gawker
accordingly is entitled to summary judgment on all of Marks claims.
C.

Even Apart From His Waiver and Release, Marks Claims Fail as a
Matter of Law and Undisputed Fact.

Plaintiff Marks claims fail not only because they are untimely, waived, and released, but
because as a matter of law and undisputed fact, his unpaid internship was lawful. He received a
valuable education in online journalism, for which he received academic credit, and which both
he and his New School professor believe contributed substantially to his chosen field of study and
his own personal growth. He gained much for himself but contributed little to Gawker, writing
one substantial piece over the course of several weeks that a Gawker employee would have
written in a day or two.
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On July 2, 2015, the Second Circuit held in Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d
376, 383 (2d Cir. 2015), that the proper question in determining whether an unpaid internship
is lawful is whether the intern or the employer is the primary beneficiary of the relationship.
The Court held that that rule applies both under the FLSA and New York state law. Id.at 381
(Because the statutes define employee in nearly identical terms, we construe the NYLL
definition as the same in substance as the definition in the FLSA.).
Describing the test as flexible and intended to examine the economic reality as it exists
between the intern and the employer, id., the Court set out a non-exhaustive set of
considerations, while emphasizing that none is dispositive, that they need not all point in the
same direction to permit a conclusion that the internship is lawful, and that the test requires
weighing and balancing all of the circumstances. Id. at 384. Plaintiff Mark indisputably
received more benefit from the internship than did Gawker, and on the undisputed facts
primarily Marks own deposition testimony Gawker is entitled to summary judgment even if
Mark had not waived his claim.
As a threshold matter, Gawker and Mark plainly agreed in advance that the internship
would be unpaid and that the internship was not preliminary to a job offer; Mark understood
those terms before he began. His May 26, 2010 internship agreement expressly makes both
points, Kidder Decl. Ex. 3; the email offering Mark the internship described it as an unpaid for
credit editorial internship, Declaration of Mark W. Batten (Batten Decl.) Ex. 4; and Mark
acknowledged in his deposition that he knew it was unpaid: Q. So you knew before you started
that it was unpaid; correct? A. Correct. Deposition of Aulistar Mark (Mark Dep.) at 52; see

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id. at 51-52. 6 The expectation of compensation is an important factor, as it is closely tied to the
economic reality of the situation, which is one of the two salient features of the primary
beneficiary analysis. As the Second Circuit held, the lack of any expectation of wages suggests
that Mark was not an employee. 791 F.3d at 384.
Turning to substance, Marks internship was exactly the sort of educational experience
that the Second Circuit held to be lawfully unpaid, one that is intended to integrate classroom
learning with practical skill development in a real-world setting. Id. at 385. At the time of his
internship at Gawkers video-game weblog, Kotaku, Mark was studying toward a degree in
journalism at The New School, Eugene Lang College, as part of the writing program, so writing
journalism. Mark Dep. at 10. He also worked essentially as [a] reporter at student
newspapers at both The New School and the University of Hartford, which he had attended
before The New School. Id. at 17. He took the Kotaku internship, he testified, because I did
believe that just by working there I could gain on-the-job training. I would basically write and I
would gain, I would come out a better writer by writing for them. Id. at 44. Similarly, in
applying for the internship, Mark wrote that he hoped to gain college credit, additional real
world experience and a foot into the door of the world of video game journalism. Id. at 47.
The New School endorsed the internship in a variety of ways. Most importantly, Mark
received college credit for the internship. Mark Dep. at 48. Further, The New School imposed
several requirements designed to integrate the internship with his educational program. First, the
school required that Mark intern for at least 220 hours, and that he fill out weekly time sheets,
signed by his Kotaku supervisor, Stephen Totilo. Id. at 55, 81. He was required to prepare and
submit a learning agreement, on a form prescribed by The New School, which also required a
Deposition excerpts are attached as exhibits to the Batten Declaration: Marks deposition
testimony is attached at Tab 1, Totilo at Tab 2, and Hudson at Tab 3.
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signature from Mr. Totilo. Batten Decl. Ex. 6; see Mark Dep. at 83. He was also required to take
an internship class, which took place at the same time as his internship. Mark Dep. at 62, 81.
In the class, he learned about employment training and resume writing, and the students
shared their internship experiences with each other. Id. at 62-63. He was required to write
several papers about his internship and the things he was learning, and The New School also
required Mr. Totilo to write and submit evaluations of Marks work. Id. at 64.
Mark himself compared the internship to his academic experience. Asked in deposition
whether he found comments on his written work from Mr. Totilo to be helpful in tightening
your writing, he responded:
Yes, he was about as helpful, as a like my editor at The New School on this would also
go through everything I wrote, give comments. I would then go back and tighten up
based on my editor's comments. So I did feel that we, me and Stephen had a similar
relationship . . . .
Id. at 76-77.
Mark further testified in deposition that he achieved the learning goal/objectives that
he had set out in his Learning Agreement with The New School. His first objective, as expressed
in writing to the school, was Learn to write/investigate in a fast-paced environment. Batten
Decl. Ex. 6; Mark Dep. at 85. He agreed that he achieved that goal:
I built on my previous experience and I actually had the opportunity to work in a fastpaced news environment or a faster pace news environment like Gawker under tight
deadlines and with working with other editorial staff. So, in that case, yes, I gained
experience. I did learn some things.
Mark Dep. at 86. The other Learning Goal that he had listed in his Learning Agreement was
Fine tune my writing style to the progressive world of blogging. Id. Q. . . . Would you say
you achieved that? A. Yes, Id say I achieved that. Id. In a progress report written for the
intern class teacher about a month after he started the internship, he wrote, [i]ts been a slow

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and gradual start, but I feel I can say Ive been learning more about my craft, as well as what Im
capable of than Ive ever learned in a classroom. Batten Decl. Ex. 5; Mark Dep. at 91-92.
Reacting to the paper, his seminar instructor wrote in the margin, It sounds as though you are
learning to work within the ebbs and flows of the media industry and its inconsistent schedules.
Batten Decl. Ex. 7 at 2. Mark agreed. Mark Dep. at 95. The instructor also wrote, You are
gaining very valuable experience and increasing your skill set. Batten Decl. Ex. 7. Q. . . . Do
you agree with that? A. I believe I did. . . . I did get to try some things that [I] might not have
tried if I hadnt had to like essentially prove myself at Kotaku. Mark Dep. at 96.
He also received less tangible benefits from the internship, gaining confidence in his own
abilities: 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. Mark Dep. at 93; see also id. at 96 (Q.
. . . [the seminar instructor] writes, It sounds as though you are building confidence and learning
deeply about yourself. Do you think she was right about that? A. Yes, I think she is right.).
After the internship, in a site evaluation of the experience required by The New
School, Mark reviewed the internship very positively. See Batten Decl. Ex. 8. Asked on the form
whether he would recommend a Kotaku internship to other students, Mark wrote, Yes, because
it is a supportive environment that will help you grow as a writer, IT tech or marketing guru.
Id. He wrote, and agreed in his deposition, that he had a positive and open relationship with
his supervisor, Mr. Totilo, where I can really ask them anything. Id.; Mark Dep. at 105. I sat
directly across or at the side of my supervisor every day at the office. We would talk throughout
the day, both casually and regarding assignment. Batten Decl. Ex. 8. Later, in 2011, asking
Mr. Totilo for a recommendation in an email, Mark wrote: Once again, thank you for giving

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me the opportunity to work under you at Kotaku. I learned a lot and have moved forward since
then. Batten Decl. Ex. 9. Q. . . . Is that true? A. Thats true. . . . Q. Do you consider him a
mentor? A. I do. Mark Dep. at 113.
As Mark himself wrote at the time, and confirmed in his deposition, his internship was an
integral part of his education toward a journalism degree. The school monitored his progress,
sought his feedback, and awarded him academic credit, and he confirmed repeatedly that he was
learning and developing as a writer.
On the other side of the primary beneficiary ledger, Mark achieved the substantial
educational benefits described above without displacing paid employees. As his supervisor,
Stephen Totilo, testified, if Mark had not been present to do the research and writing tasks he
performed, [e]ither the task wouldnt be done at all or the task would be done by somebody on
the team. . . . The copy editing, unfortunately, probably just wouldnt have gotten done.
Deposition of Stephen Totilo at 79-80. Interns require a massive investment of effort and time
. . . versus what you get out of them. Id. at 98. They are not treated at all like employees: An
intern, who we all know is an intern on the team, is receiving a, more of a mentorship style of
training, with the assumption that they're learning and they're there to learn. That's not how we
full-time employees treat each other. We work with each other, but we assume a level of skill that
we're not training each other. Id. at 104-105.
While Mark worked for a series of weeks on the one significant article he wrote, that
was much longer than is the typical period of time that a writer would be working on an article
at Kotaku; employees post as many as ten articles per day, and even larger reporting pieces
are expected to be completed in a day or two. Id. at 31. Interns were asked to do copy editing,
but employees never were, id. at 77-78; the copy editing complemented, but did not displace,

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paid employees work because if the interns had not done that work, no one would have. Id.at
80.
Similarly, Kotaku interns were not required to report their arrival to or departure from
the office, id. at 101-102; they were never disciplined, id. at 119-20; and they were not generally
assigned work, but often were left to show the initiative to volunteer to do something, id. at 26.
*

By any measure, Mark was the primary beneficiary of his internship experience. He
learned a great deal, as he repeatedly acknowledged in deposition and as his New School
professor acknowledged in writing at the time, while generating very little useful work product for
Kotaku taking the entire summer to write an article that an employee would have written in a
day or two. He also received academic credit for the experience. The relationship between the
internship and [Marks] formal education and interests reflects a central feature of the modern
internship and one of two salient features of the primary beneficiary test. Glatt, 791 F.3d at
383-85 (citing Portland Terminal, 330 U.S. at 152, as focusing on the trainees interests). The
second salient feature[] the economic reality also suggests Mark had a bona-fide
internship. Id. at 384. Mark knew he was not entitled to a job at the end of the internship, and
he knew he would not be paid for the internship. There is no genuine dispute about these facts,
and Gawker is entitled to summary judgment.
D.

Gawker Is Entitled To Summary Judgment On The Claims Asserted


By Plaintiff Hudson.

Like Mark, Hudson received an internship experience typifying the integration of


educational goals with real-world experience that the Second Circuit determined to be the
essence of a lawful unpaid internship. Hudson was studying journalism in college and worked on
the school newspaper. Deposition of Andrew Hudson (Hudson Dep.) at 9. On his summer
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break in 2008, between his junior and senior years, he wanted to intern at io9 Gawkers website
covering science and science fiction. In his part-time, two-month internship, Hudson assisted
reporters with research, promoted stories, and got two bylines of his own. Id. at 65, 84. The
internship was plainly an integration of his school learning with practical skill development in a
real-world setting, i.e., it was a bona-fide internship. Glatt, 791 F.3d at 385. Indeed,
Hudsons internship was closely tied to both his studies and his extracurricular work on the
school newspaper. The relationship between the internship and [Hudsons] formal education
and interests reflects a central feature of the modern internship and one of two salient
features of the primary beneficiary test. Glatt, 791 F.3d at 383-85. 7 The second salient
feature[] the economic reality also suggests Hudson had a bona-fide internship. Id. at
384. Hudson knew he was not entitled to a job at the end of the internship, and he knew he
would not be paid for the internship. Hudson Dep. at 59, 61, 63.
Consistently, the more granular factors that the Glatt Court listed to aid in the
determination support the legality of Hudsons internship. There is no evidence Hudson
displaced any paid employees; he published two articles over the course of his nine-week
internship, whereas io9 was publishing, on average, a dozen or several dozen posts every day.
Id. at 56. The other work he did was primarily providing research for their articles, or help[ing]
Meredith with her job as a reporter finding stories to write about, id.at 84; in other words, just as
Glatt contemplates, he was complement[ing], rather than displac[ing], the work of paid
employees. 791 F.3d at 384. Similarly, the internship complemented both Hudsons studies
and his extracurricular activity, and, although he did not pursue academic credit, it may have
Journalism was not merely a passing fancy; since graduation Hudson has worked as a
journalist, editor, consultant, writer, communications consultant. Hudson Dep. at 12. His internship
thus fit precisely with his course of study and his career goals.
7

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been available for the internship, Hudson Dep. at 62-63, which indicates the internship was
similar to a clinical experience; the internship accommodated the academic calendar because it
took place over the summer; and the internship did not outlast its provision of education to
Hudson because it was a part-time position for only two months, and Hudson published his first
bylined article six weeks into the internship and one other at the end of the internship, which
shows that he was progressing in his education. 8
It would contravene the meaning of Glatt to allow this claim to go to a jury. Hudsons
internship embodied the purpose of unpaid internships to integrate classroom work in the real
world. 791 F.3d at 385. Hudsons lack of expectation of compensation also suggests he was
not an employee. Id. at 384. Further, the salient features of the primary beneficiary test
indicate a bona-fide internship: Hudson chose to intern because he was interested in it, he did
not do it for compensation or a future job, and he did not materially benefit io9. Gawker is
entitled to summary judgment.
CONCLUSION
For all of the foregoing reasons, Defendants motion for summary judgment should be
granted, and judgment should enter for Defendants on all counts of the Amended Complaint.

The Amended Complaint alleges that Hudsons internship ran from June 10 to August 14, 2008.
Amended Complaint 33. Hudsons two bylined posts are available at http://io9.com/5035269/ourfour-color-picks-for-vice-president and http://io9.com/5027077/five-ways-reality-went-sci-fi-so-far-thiscentury (last visited August 3, 2015).
8

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Dated:

August 14, 2015

Respectfully submitted,
GAWKER MEDIA, LLC
NICK DENTON
By their attorneys,
By: /s/ Mark W. Batten
Mark W. Batten
PROSKAUER ROSE LLP
One International Place
Boston, MA 02110
Phone: (617) 526-9850
Fax: (617) 526-9899
mbatten@proskauer.com
Attorneys for Defendants
CERTIFICATE OF SERVICE

I hereby certify that on August 14, 2015, a true copy of the foregoing was filed through
the Courts electronic filing system (ECF) and was served upon all attorneys of record for each
other party to this action through operation of such system. It is available for viewing and
downloading through the ECF system.
/s/ Mark W. Batten
Mark W. Batten

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