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Mark v. Gawker Media LLC

United States District Court, S.D. New York

August 15, 2014

AULISTAR MARK and ANDREW HUDSON, Individually and on behalf of All Others Similarly Situated, Plaintiffs,
v.
GAWKER MEDIA LLC and NICK DENTON, Defendants.

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge.

Before the Court is Plaintiffs' motion for conditional certification and court-authorized notice pursuant to § 216(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219. Dkt. No. 15. For the following reasons, the motion is granted.

I. Background

This action was originally filed on June 21, 2013 by Aulistar Mark, Hanchen Lu, and Andrew Hudson, who worked in 2008 and 2010 as unpaid interns for blogs operated by Defendants Gawker Media LLC and its founder and controlling owner Nick Denton (collectively, "Gawker"). Dkt. No. 1. The complaint was later amended to add a fourth Plaintiff, David Matthews, who also worked for Gawker as an unpaid intern. Dkt. No. 4.

Gawker is a media company based in New York City that publishes a number of popular blogs. Am. Compl. ¶ 13. In their amended complaint, Plaintiffs allege that Gawker hired unpaid and underpaid interns to perform work that was "central to Gawker's business model as an internet publisher" - specifically, "writing, researching, editing, lodging stories and multimedia content, promoting content on social sites, moderating the comments forum and managing the community of Gawker users." Id. ¶ 5. Plaintiffs allege that Gawker's failure to pay its interns the minimum wage for such work violated the FLSA and state labor laws. Id. ¶¶ 46-62.

Pursuant to § 216(b) of the FLSA, the amended complaint asserts minimum wage and record-keeping claims on behalf of the named Plaintiffs and:

all similarly situated persons who were designated as "interns" by Gawker who were not paid the legal minimum for their work on the Gawker Weblogs and who performed duties relating to the creation, promotion and/or management of content on behalf of Gawker, including but not limited to writing, researching, editing, lodging stories and multimedia content, promoting content on social sites, moderating the comments forum and managing the community of Gawker users, during the period between three years prior to the filing of this Complaint and until the date of final adjudication of this action.

Am. Compl. ¶¶ 16, 46-52. Plaintiffs also assert similar claims under the New York Labor Law on behalf of two classes of Gawker interns who performed the work described above: ones who worked for Gawker in New York and ones who worked remotely from different locations within the United States. Id. ¶¶ 17-18, 53-57. Plaintiffs also bring claims for violations of "applicable State labor law" on behalf of the latter class of interns. Id. ¶¶ 58-62.

Plaintiffs filed the instant motion for conditional certification and court-authorized notice on December 10, 2013, and it was fully submitted on January 18, 2014. With the Court's permission, Gawker filed a surreply on May 21, 2014, to which Plaintiffs responded on May 27, 2014. Since Plaintiffs' motion was filed, Matthews and Lu have signed stipulations dismissing their claims with prejudice. Dkt. Nos. 45, 65. Nonetheless, the Court will sometimes refer to Lu and Matthews along with Mark and Hudson as "Plaintiffs" for simplicity's sake.

II. Legal Standard

The FLSA authorizes workers to sue on behalf of both themselves and "other employees similarly situated." 29 U.S.C. § 216(b). District courts have discretion to facilitate this collective action mechanism by authorizing that notice be sent to potential plaintiffs informing them of "the pendency of the action and of their opportunity to opt-in as represented plaintiffs." Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010). In this Circuit, district courts follow a two-step approach in exercising their discretion. First, the court will make "an initial determination to send notice to potential opt-in plaintiffs who may be similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred." Id. at 555. Second, after additional plaintiffs have opted in, "the district court will, on a fuller record, determine whether a so-called collective action' may go forward by determining whether the plaintiffs who have opted in are in fact similarly situated' to the named plaintiffs." Id. If they are not, then the action may be "de-certified." Id.

Plaintiffs' motion involves the initial determination of whether to send notice to a group of potential opt-in plaintiffs.[1] To demonstrate that there are other "similarly situated" individuals, Plaintiffs need only make a "modest factual showing' that they and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law.'" Myers, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.)). Plaintiffs can meet this burden by presenting evidence that there are other individuals with similar positions, job requirements, pay provisions, and the like; there must be an "identifiable factual nexus which binds [the named plaintiffs] and potential class members together as victims of a particular practice." Ouedraogo v. A-I Int'l Courier Serv., Inc., No. 12-cv-5651(AJN), 2013 WL 3466810, at *2 (S.D.N.Y. July 8, 2013) (quoting Ali v. N.Y.C. Health & Hasps. Corp., No. 11-cv-6393 (PAC), 2013 WL 1245543, at *3 (S.D.N.Y. Mar. 27, 2013)) (internal quotation mark omitted).

Plaintiffs' burden at this stage is low, but "it is not non-existent, " and they cannot rely only upon "unsupported assertions." Id. (quoting Ali, 2013 WL 1245543, at *2). "Plaintiffs may satisfy their minimal' burden by relying on their own pleadings and affidavits, or the affidavits of potential members of the collective action." Grant v. Warner Music Grp. Corp., No. 13-cv-4449 (PGG), 2014 WL 1918602, at *3 (S.D.N.Y. May 13, 2014). At this early stage, "the court does not resolve factual disputes, decide substantive issues going ...


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