Case 1:13-cv-04347-AJN Document 155 Filed 08/14/15 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
AULISTAR MARK,HANCHEN LU,
ANDREW HUDSON,and DAVID
MATTHEWS,Individually and on Behalf
of All Others Similarly Situated,l

Case No. 13 Civ. 04347(AJN)(SN)

Plaintiffs,
v.
GAWKER MEDIA LLC,and NICK
DENTON,
Defendants.

PLAINTIFFS'STATEMENT PURSUANT TO LOCAL RULE 56.1 IN SUPPORT OF

THEIR MOTION FOR SUMMARY JUDGMENT

Pursuant to Local Rule 56.1, Plaintiffs William W. Gilman and Edward J. McNerney, Jr.
provide the following Statement pursuant to Local Rule 56.1 in support of their Motion for
Summary Judgment.
I.

The Parties
A.

Defendants

1.

Gawker Media LLC ("Gawker") is a media company, based in New York.

Defendants' Answer, Dkt. No. 8("Defs.' Ans.") 13. Denton Dep. 103:13-17.
2.

Gawker is a Delaware limited liability company. Defs.' Ans. 3.

Hanchen Lu and David Matthews are no longer Plaintiffs in this matter. (Dkt. Nos. 45 and 65.)
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3.

Gawker operates a number of websites containing news and content related to

various subject areas. Denton Dep.2 24:7-12; Defs.' Ans. 13.

4.

The websites were all operated out of Gawker's New York offices and shared a

common software platform. Denton Dep. 20:12-21:15; 103:13-104:5.

5.
Gawker.com;

Gawker did operate or does operate, inter alia, the following ten blogs:
Gawker.TV;

Kotaku.com;

Lifehacker.com;

Deadspin.com;

io9.com;

Valleywag.com; Defamer.com; Gizmodo.com; and Jezebel.com. Defs.' Ans. 13.

6.

Gawker advertises itself as "the definitive news and gossip sheet for followers of

entertainment, media, and business." Defs.' Ans. 13.

7.

Gawker primarily generates its revenue from advertising. Kidder Dep. 76:18-20.

8.

This advertising revenue relies on traffic to the websites. Denton Dep. 206:4-

207:21.
9.

The primary. driver of this revenue is derived from the number of unique Internet

users who visit the websites. Denton Dep. 206:4-207:21.

10.

Gawker has been running a "significant" profit since 2009.3 Denton Dep. 117:25-

118:10.
11.

Gawker's revenues exceed $500,000 pursuant to the FLSA definition of

"Enterprise engages in commerce or in the production of goods for commerce." 29 U.S.C.

203(s)(1)(A)(ii). Dkt. No. 88.

Cites to depositions in this matter shall take the form "[last name] Dep.[page:line]." The
depositions are attached to the Declaration of James Halter submitted in support of Plaintiffs'
Motion for Summary Judgment("Halter Decl.")as exhibits 151 to 162.
3 Also note that Gawker has made a judicial admission that its revenues exceed $500,000
pursuant to the FLSA definition of"Enterprise engages in commerce or in the production of
goods for commerce," 29 U.S.C. 203(s)(1)(A)(ii). Dkt. No. 88.
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12.

Denton is domiciled in New York. Defs.' Ans. 14

13.

Denton was involved in setting Gawker's policies with respect to interns. Defs.'

Ans. 14; Denton Dep. 141:22-142:2.

14.

Gawker management,including Denton,controlled its blogs' ability to hire interns,

and the length of internships and was personally involved in these decisions. Halter Decl., Exs..
165-167.
B.

Plaintiffs
1.

Aulistar Mark

15.

Aulistar Mark is a freelance video editor. Mark Dep. 4:20-23.

16.

Mark has a degree in journalism from the New School for Social Research, and an

associate's degree from the University of Hartford. Mark Dep. 11:19-25, 12:20-24.
17.

Mark worked for Gawker. Mark Decl. ~ 5.

18.

Mark had an interest in video game journalism and worked for Gawker weblog

Kotaku.com,from May 17, 2011 through August 20, 2011. Mark Decl. ~ 5, 29.
19.

Kotaku.com is a Gawker blog devoted to news and other content regarding video

games. Mark Decl. 5.

20.

Mark worked at Gawker's headquarters in New York, New York. Mark Decl. 7.

21.

Mark was required to abide by the same company policies that applied to regular,

paid employees. Mark Decl. 11.

22.

Mark received internal staff memoranda concerning system updates, procedure

changes, announcements, and requests. Mark Decl. ~ 15.

23.

Mark assisted Kotaku.com's editors and writers. Mark Decl. 17.

24.

Mark created, posted, and promoted content for Gawker. Mark Decl. 18.

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25.

Mark took photos and video and edited images for Kotaku.com. Mark Decl. ~ 19.

26.

Mark conducted research and wrote posts and articles, including a reoccurring

weekly post. Mark Decl. 21.

27.

Mark edited content for Gawker. Mark Decl. 22.

28.

Mark moderated and managed reader comments. Mark Decl. 23. Gawker gave

Mark "moderator" status to manipulate the comment system and content on the Gawker blogs.
Mark. Decl. 13.
29.

Mark conducted interviews for stories published on Gawker. Mark Decl. 29.

30.

Mark worked independently during the E3 expo, a major video game industry

convention, while Totilo was in Los Angeles attending the expo. Mark supported Totilo during
the expo by performing day-to-day tasks. Mark Decl. ~ 24.
31.

Mark was expected to, and did, work largely independently. Mark Decl. 30.

32.

The only training Mark received was "on the job" training. Mark Decl. 34.

33.

During a typical week, Mark worked at least 20 hours. Mark Decl. 37.

34.

Mark job duties remained the same throughout his employment. Mark Decl. 32.

35.

The work assignments Mark received and Gawker's supervision of him were

similar to the work assignments and supervision of other interns. Mark Decl. 8.
36.

Mark received academic credit for his work at Gawker. Mark Dep. 48:4-6.

37.

Mark reported to Deputy Editor of Kotaku.com, Stephen Totilo("Totilo"). Mark

Decl. 7.
38.

Mark received assignments from Totilo as well as other editors. Mark Decl. 9.

39.

Gawker,through its kotaku.com blog, published 34 articles written by and credited

to Mark, including a weekly article titled "iTunes Chart Topper," and articles such as "This Was

Case 1:13-cv-04347-AJN Document 155 Filed 08/14/15 Page 5 of 14

Live-Action Asteroids, And Two Other Games," published on June 8, 2010, and "Chinatown
Arcade, An Unlikely Place For Tolerance". Halter Decl. Exs. 176-180.
40.

Mark's posts and other content were viewed by at least thousands of visitors of

Kotaku.com. Mark Decl. 26.

41.

Gawker did not pay Mark for his work for Gawker. Mark Decl. 39

2.

Andrew Hudson

42.

Andrew Hudson has a degree in Political Science from Fordham College. Hudson

Dep. 8:6-11.
43.

Hudson now works for the Center for Care Innovations, which promotes

innovations in California's health care safety net. Hudson Dep. 13:20-25.

44.

Hudson worked for Gawker. Hudson Decl. 5.

45.

Hudson worked for Gawker weblog io9.com from June 10, 2008 through

August 13, 2008. Hudson Decl. 5,23.

46.

Io9.com is a Gawker blog devoted to science fiction and technology. Hudson Decl.

47.

Hudson was required to abide by company policies that regular employees were

5.

required to follow. Hudson Decl. 11.

48.

Hudson received internal staff memoranda concerning system updates, procedure

changes, announcements, and requests. Hudson Decl. ~ 14.

49.

Hudson assisted io9.com's editors and writers. Hudson Decl. 15

50.

Hudson created and promoted content for Gawker. Hudson Decl. 16; Hudson

Dep. 79:24-81:9.
51.

Hudson conducted research and wrote posts and articles. Hudson Decl. 17.

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52.

Hudson edited content for Gawker. Hudson Decl. 18.

53.

Hudson was expected to, and did, work largely independently. Hudson Decl. 24.

54.

The only training Hudson received was "on the job" training. Hudson Decl. 28;

Hudson Dep. 67:3-68:23, 75:2-17, 90:14-24.

55.

During a typical week, Hudson worked at least 24 hours. Hudson Decl. 31.

56.

Hudson did not receive academic credit for his internship. Hudson Dep. 62:5-63:4.

57.

Hudson received assignments from Meredith Woerner("Woerner")and reported to

Charlie Jane Anders("Anders"), an editor at the Gawker's io9.com blog, among.others. Hudson
Decl. 8-10; Anders Dep. 17:21-19:1.
58.

Usually, the assignments Hudson received had extremely short deadlines which

required them to be completed within one to two days. Hudson Dep. 30:6-18.
59.

Hudson worked remotely from St. Louis, Missouri telecommuting to the New York

Office. Hudson Dep. 50:16-51:5.

60.

On July 20, 2008, Gawker, through its blog io9.com, published an article written

by and credited to Andrew Hudson, titled "Five Ways Reality Went Sci-Fi So Far This Century."
Halter Decl., Ex. 181. The article received a lot of traffic, approximately 80,000 views which was
substantial for io9.com at the time. Hudson Dep. 73:22-74:15.
61.

On August 8, 2008, Gawker,through its blog io9.com, published an article written

by and credited to Hudson, titled "Our Four-Color Picks For Vice President." Halter Decl., Ex.
182.
62.

Woerner, Hudson's direct supervisor, testified that "it's a perfectly fine article."

Woerner Dep. 60:24-25.

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63.

Hudson's posts and other content were viewed by at least thousands of visitors of

io9.com. Hudson Decl. 21.

64.

One of the io9.com employees to whom Hudson reported may have mistaken

Hudson for a permanent, paid employee. Hudson Dep. 84:24-85:22.

65.

Gawker did not pay Hudson for his work for Gawker. Hudson Decl. 33.

C.

The Gawker Internship Program.

66.

Gawker had its "internship" program until the end of 2012. Kidder Dep. 52:18-

67.

Gawker's "interns" performed tasks such as writing articles, editing articles,

53:15.

research, administrative tasks, and managing the reader comment threads posted alongside
Gawker's articles, as detailed below. Johnson Dep.18:18-21; Hudson Decl. 17,27; Mark Decl.
~ 21-23, 33; Halter Decl., Exs. 188, 191-194.
68.

Gawker did not provide any formal classroom training for interns; the training was

essentially "on the job." Anders Dep.68:22-70:20; Coen Dep.74:22-25; Hudson Decl. 28. Mark
Decl. 34.
69.

Gawker's decision to have an internship program was made according to Gawker's

"business needs." Darbyshire Dep. 42:23-43:12.

70.

Using interns was essential to Gawker's business strategy. Halter Decl., Ex. 197.

71.

Gawker advertised its internships, and the advertisements referred to the internship

as a "job," and detailed various duties that the interns would undertake. Halter Decl., Ex. 207.
72.

The advertisements set forth a minimum time commitment, such as several days

per week. Halter Decl. Ex. 207 at 10(io9) and 13 (Kotaku).

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73.

Gawker required that its interns sign an Internship Policy and Acknowledgment,

which stated that the intern would not be paid. Halter Decl., Ex. 170. There is no evidence that
Hudson signed such a document.
74.

One Gawker.com advertisement stated upfront that the interns would not be paid

and indicated that Gawker wanted already-trained interns: "Previous internship experience at a
newspaper, magazine, or web site is preferred, as is familiarity with the software tools of our
trade." The Gawker advertisement promoted the internship as "[i]n exchange for stressful labor
under constant deadlines, you'll get~valuable experience at whatever it is we do." The
same advertisement stated the job "will involve research, number-crunching, reporting, design,
and doing things that we'd rather not do." Halter Decl. Ex. 207 at 6.
75.

In December 2012, Scott Kidder("Kidder"), an executive at Gawker, along with

Gawker's CEO,Denton, decided that Gawker would replace its intern program with an "editorial
fellowship" program. Johnson Dep. 65:23-67:2; Newitz Dep. 119:3-120:6; Totilo Dep. 80:18-23;
Halter Decl., Exs. 172-175, 211.
76.

The tasks formerly performed by interns would,from then on, be performed by paid

editorial fellows. Johnson Dep. 65:23-67:2; Newitz Dep. 119:3-120:6; Totilo Dep. 80:18-23;
Halter Decl., Exs. 172-175.
77.

Denton testified that the fellowship program had "some ofthe same characteristics"

as the internship program. Denton Dep. 160-21-161-2.

78.

Editorial fellows were assured at least the minimum wage for their labors. Newitz

Dep. 121:16-121:19; Halter Decl., Ex. 174.

79.

Io9.com fellows are paid $12.50 per hour. Newitz Dep. 121:6-121:19.

80.

Anders was an editor at the Gawker's io9.com blog. Anders Dep. 17:21-19:1.

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81.

Several interns worked for her, and Gawker did not track their hours because

Anders did not see the point in doing so. Anders Dep. 33s23-34:12, 36:12-13, 38:15-39:1.
82.

The interns worked at io9.com for several months each. Anders Dep. 35:16-36:7,

37:25-38:4, 40:2-8, 41:7-10, 42:25-43:2.

83.

The io9.com interns researched, wrote, pitched articles for themselves and other

writers to write, and moderated reader comments threads as part of their job duties. Anders Dep.
68:22-69:2, 75:4-7, 72:24-25, 76:1-3.
84.

Io9.com's permanent employees performed the same tasks as the interns did.

Anders Dep. 76:4-5, 76:13-24, 77:13-18, 104:15-21.

85.

Newitz also had interns who worked for her at io9.com, some of which lasted as

long as a year, and most of the interns were not paid. Newitz Dep. 17:6-12, 18:5-16; 22:10-16,
50:12-15, 50:22-23, 55:16-17, 59:12-14, 60:2-3, 61:9-17.
86.

Most ofthe io9.com interns worked around ten hours per week. Newitz Dep. 51:3-

5, 65:15-22, 67:4-6, 67:24-68:1.

87.

Both intern and non-intern employees at io9.com performed the same function of

moderating comments on the website. Newitz Dep. 84:13-16, 97:17-98:1.

88.

Interns also researched, assisted in getting sources for articles, and wrote articles.

Newitz Dep. 82:10-84:5, 84:8-12.

89.

Newitz thought that Gawker should pay its interns and expressed anger that they

were not paid. Newitz Dep. 44:22-45:4.

90.

Denton himselftestified that he is personally opposed to not paying interns. Denton

Dep. 140:20-21.

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91.

Meredith Woerner("Woerner") was another Gawker employee at io9.com who

supervised several interns, including Hudson. Woerner Dep. 9:5-7, 13:11-21. Hudson Decl. 8.
92.

The interns she supervised performed tasks such as research, writing, and pitching

stories, and monitoring news cycles. Woerner Dep. 16:6-10.

93.

The interns' stories are available on the io9.com website just like any of its other

writers. Woerner Dep. 46:7-11.

II.

Gawker Primarily Benefited From Plaintiffs' Work

A.

Gawker Provided Plaintiffs Only With The Same "On-The-Job" Training It

Provided Its Permanent Employees.

94.

Gawker provided Plaintiffs with only "on-thejob training." Mark Dep. 44: 15-

45:10, 48:7-9; Johnson Dep. 17:4-6; Hudson Dep. 67:3-68:23; Hudson Decl. 28.
95.

The training was similar,ifnot identical,to how Gawker trained its paid employees.

Coen Dep. 75:18-77:18; Johnson Dep. 17:12-18:6; Totilo Dep. 102:9-15.

96.

Gawker did not expose Plaintiffs to training materials; training seminars, classes or

workshops for training purposes. Totilo Dep. 105:18-106:4.

97.

This on-thejob training was designed to familiarize Plaintiffs with using Gawker's

own internal systems, such as Kinja, Gawker's proprietary software used by all ofits blogs, which
was solely for Gawker's benefit. Denton Dep. 18:18-19:8; 20:12-21:18, Newitz Dep. 85:6-86:14.
98.

Specifically,"[s]ome of it [the training] had to do with getting used to the kinds of

research that we would be asking [the interns] to do. But a lot of it also had to do with helping
write articles on the site and eventually [they] had to pitch articles on the site." Anders Dep. 68:1972:23.

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99.

The benefits Plaintiffs received from this "training," if any, are the same benefits

that Gawker's entry-level paid employees received, which only benefitted Gawker. Newitz Dep.
90:19-91:11.
B.

Gawker Did Not Require Plaintiffs To Receive Academic Credit Or Be

Enrolled In A Formal Education Program.

100.

Gawker did not require Plaintiffs to be enrolled in an academic program or receive

academic credit. Totilo Dep. 99:17-19; Halter Decl., Ex. 183.

101.

Gawker did not require Plaintiffs to receive academic credit. Halter Decl. Halter

Decl., Exs. 183 and 184.

102.

In fact, Gawker welcomed interns who were not even enrolled in school. Halter

Decl., Exs. 184 and 185.

103.

The internship program was not scheduled around the academic calendar because

the interns "work[ed] on a rolling basis, to say the least." Mark Dep. 82:3-14; Halter Decl. Ex. 185

104.

In many cases, Plaintiffs' supervisors were not aware iftheir interns were receiving

school credit, let alone whether they were enrolled in school. Anders Dep. 39:18-20; Johnson Dep.
22:7-16; Totilo Dep. 98:18-99:19.
A. Plaintiffs Displaced The Work Of Paid Employees And Vice Versa.
105.

Had Gawker not used Plaintiffs, it would have had to use paid employees do the

same work. Hudson Dep. 53:6-13; Woerner Dep. 22:20-23, 26:5-8; Mark Decl. 33.
106.

Plaintiffs did the same work that permanent employees did. Hudson Decl. 17;

Mark Decl. 21; Halter Decl., Ex. 191 and 192.

107.

Specifically, Plaintiffs, like other interns, conducted research; wrote articles/blog

posts; scouted for article/blog post topics; monitored the reader comment boards; and performed

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other tasks essential to the operation of the company. Johnson Dep. 18:18-21; Hudson Decl.
17, 27, 30; Mark Decl. 21-23, 33, 36; Halter Decl., Exs. 188, 191-194.
108.

When paid employees were being overworked, Gawker's solution was to have

interns pick up their slack. Halter Decl., Ex. 193, 196-198.

109.

Indeed, when Gawker's revenues were suffering, Gawker's solution was that

Gawker "use the interns" more to generate traffic and the resulting revenue. Halter Decl.,Ex. 199.
110.

Shortly after class actions were filed on behalf of unpaid interns of other media

companies,Gawker changed the name ofits internship program to the editorial fellowship program
and started to pay the new individuals hired into the "fellowship" program the minimum wage.
Halter Decl., Exs. 172-175.
111.

Fellows do the same work as Plaintiffs and the other interns previously did,the only

difference is that they are paid the minimum wage. Johnson Dep. 65:23-67:2 Totilo Dep. 80:1823.
C.

Gawker Used The Internship Program As A Permanent Employee

Recruitment Tool.

112.

Gawker used the internship program as a way to identify individuals it wanted to

hire as paid employees. Anders Dep. 75:11-25; Johnson Dep. 24:4-9; Totilo Dep. 42:21; Woerner
Dep. 37:19-38:2; Halter Decl. Exs. 192 and 200.
113.

At Gawker,"[t]he concept of an intern is to give people experience and use that as

a good way of figuring out whether or not they might be a good employee." Darbyshire Dep.
63:13-16.

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114.

When Gawker found an intern's work not to sufficiently benefit Gawker, i.e., by

not sufficiently "spotting" stories that were appropriate for Gawker or simply not working hard
enough, Gawker terminated that intern's employment. Halter Decl., Exs. 201-205.

Dated: New York, New York

August 14, 2015

Respectfully submitted,
LIDDLE & ROBINSQN,L.L.P.

James W.Halter
Robert L. Adler
800 Third Avenue
New York, New York 10022
Phone:(212)687-8500
Fax:(212)687-1505
Email:jhalter@liddlerobinson.com
Email: radler@liddlerobinson.com
Attorneysfor Plaintiffs

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CERTIFICATE OF SERVICE
The undersigned attorney for Plaintiffs, James W.Halter, certifies that on August 14,2015,
he caused to be served true and correct copies of Plaintiffs' Notice of Motion for Partial Summary
Judgment, Plaintiffs' Memorandum of Law in Support of Motion for Partial Summary Judgment,
Plaintiffs' Statement of Undisputed Material Facts Pursuant to Local Rule 56.1, and the
Declaration of James W. Halter and the exhibits attached thereto upon Defendants' counsel by
mailing a copy ofsame to Defendants' counsel by FedEx overnight delivery, addressed as follows:
Mark W. Batten, Esq.
Proskauer Rose LLP
One International Place
Boston, Massachusetts 021 10-2600

By:
ames W. Halter