Case 1:13-cv-04347-AJN Document 152 Filed 08/14/15 Page 1 of 7

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

DEFENDANTS STATEMENT OF MATERIAL FACTS NOT IN DISPUTE

Pursuant to Local Rule 56.1, Defendants Gawker Media LLC and Nick Denton set forth
the following material facts that are not in dispute:
A.

Opt-In Plaintiffs Internship Dates

1.

Opt-in Plaintiff Rachel Atwood interned at a Gawker weblog from February 1,

2011 through June 30, 2011. Declaration of Morgan Peterson (Peterson Decl.) Ex. 2. Her
consent to join this action was filed on April 14, 2015. Docket No. 129.
2.

Opt-in Plaintiff Tim Barribeau interned at a Gawker weblog from January 2010

through December 2011, and became a paid contributor in January 2012. Peterson Decl. Exs.
3-4; Declaration of Scott Kidder (Kidder Decl.) Ex. 1. His consent to join this action was filed
on April 11, 2015. Docket No. 121.
3.

Opt-in Plaintiff Alyssa Bereznak interned at a Gawker weblog from May through

September, 2011. Peterson Decl. Ex. 5. Her consent to join this action was filed on April 14,
2015. Docket No. 131.

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4.

Opt-in Plaintiff Katherine Castellana interned at a Gawker weblog from

September 2010 through January 2011. Peterson Decl. Ex. 6. Her consent to join this action
was filed on April 1, 2015. Docket No. 111.
5.

Opt-in Plaintiff Kristin Chan interned at a Gawker weblog from August through

October 2011. Peterson Decl. Ex. 7. Her consent to join this action was filed on April 12, 2015.
Docket No. 124.
6.

Opt-in Plaintiff Zachary Cianflone interned at a Gawker weblog from October 25

through December 7, 2011. Peterson Decl. Exs. 10-11. His consent to join this action was filed
on December 15, 2014. Docket No. 83.
7.

Opt-in Plaintiff Brian Colgan interned at a Gawker weblog from August 2008

through June 2009. Peterson Decl. Ex. 10. His consent to join this action was filed on April 14,
2015. Docket No. 127.
8.

Opt-in Plaintiff Benjamin Dorson interned at a Gawker weblog from sometime in

2009 until sometime in 2010. Peterson Decl. Ex. 11. His consent to join this action was filed on
April 14, 2015. Docket No. 128.
9.

Opt-in Plaintiff Patrick Frawley interned at a Gawker weblog from September

through December 2011, and was a paid contributor between January and May, 2012. Peterson
Decl. Ex. 12; Kidder Decl. Ex. 2. His consent to join this action was filed on April 12, 2015.
Docket No. 122.
10.

Named Plaintiff Andrew Hudson interned at a Gawker weblog from June 10

through August 14, 2008. Amended Complaint 33. His consent to join this action was filed on
June 21, 2013. Docket No. 1.

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11.

Opt-in Plaintiff Samuel Julian interned at a Gawker weblog from September

through October 2010. Peterson Decl. Ex. 14. His consent to join this action was filed on April
13, 2015. Docket No. 126.
12.

Opt-in Plaintiff Michael Kennelly interned at a Gawker weblog from August 2011

through January 2012. Peterson Decl. Ex. 15. His consent to join this action was filed on April
14, 2015. Docket No. 130.
13.

Opt-in Plaintiff Chelsea Lo Pinto interned at a Gawker weblog from September

2010 through February 2011. Peterson Decl. Ex. 16. Her consent to join this action was filed on
April 3, 2015. Docket No. 114.
14.

Opt-in Plaintiff Lindsay Maharry interned at a Gawker weblog from September

17, 2010 through May 13, 2011. Peterson Decl. Exs. 17-18. Her consent to join this action was
filed on April 1, 2015. Docket No. 110.
15.

Named Plaintiff Aulistar Mark interned at a Gawker weblog from May 24

through August 20, 2010. Amended Complaint 31. His consent to join this action was filed on
June 21, 2013. Docket No. 1.
16.

Opt-in Plaintiff Elizabeth Nadybal interned at a Gawker weblog from July 1

through October 2, 2010. Peterson Decl. Exs. 20-21. Her consent to join this action was filed on
April 3, 2015. Docket No. 113.
17.

Opt-in Plaintiff Lily Newman interned at a Gawker weblog from June 2, 2011

through February 2012, after which she moved to a paid position. Peterson Decl. Ex. 22; Kidder
Decl. Exs. 4, 6. Her consent to join this action was filed on April 14, 2015. Docket No. 132.

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18.

Opt-in Plaintiff Kwame Opam interned at a Gawker weblog from November

2010 through May 2011. Peterson Decl. Ex. 23. He became an employee in January 2013.
Kidder Decl. Ex. 5. His consent to join this action was filed on April 14, 2015. Docket No. 133.
19.

Opt-in Plaintiff Elizabeth Weinbloom interned at a Gawker weblog from October

2009 through February 2010. Peterson Decl. Ex. 24. Her consent to join this action was filed on
April 12, 2015. Docket No. 123.
B.

Facts Concerning Aulistar Marks Internship

20.

Plaintiff Mark signed an agreement dated May 26, 2010, attached to the

Declaration of Scott Kidder as Exhibit 3.

21.

Mark knew before beginning his internship with Gawkers Kotaku weblog that the

internship would be unpaid. Deposition of Aulistar Mark (Mark Dep.) at 51-52.

22.

At the time of his internship, Mark was enrolled at The New School, Eugene

Lang College, studying toward a degree in journalism. Mark Dep. at 10. He had worked at
student newspapers at The New School and earlier at the University of Hartford. Id. at 17.
23.

Mark received college credit for his internship. Id. at 48.

24.

The New School required that Mark intern for at least 220 hours; that he fill out

and submit weekly time sheets signed by his Kotaku supervisor, Stephen Totilo; that he prepare
and submit a learning agreement on a form prescribed by the school; and that he take an
internship class during the internship. Id. at 55, 63, 81, 83. He also was required to write several
papers about the internship, and The New School required Mr. Totilo to submit evaluations of
Marks work. Id. at 64.
25.

Mark believes that through his internship he achieved the educational goals that

he had set out in his learning agreement with The New School. Id. at 85-86, 91-92, 95-96. He

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also believes that the internship helped him gain confidence in his own abilities and to learn
deeply about himself. Id. at 93, 96.
26.

In an evaluation form that Mark filled out for The New School after the

internship, he wrote that he would recommend the internship and that Kotaku had provided a
supportive environment that will help you grow. Declaration of Mark W. Batten Ex. 8. Mark
agrees that he learned a lot, and considers his Kotaku internship supervisor to be a mentor.
Mark Dep. at 113.
27.

During his internship Mark worked for several weeks on a single article that was

published on the Kotaku website, whereas employees of Kotaku are expected to post multiple
articles per day, and even larger reporting pieces are expected to be completed in a day or two.
Deposition of Stephen Totilo at 31.
28.

Kotaku interns were asked to do copy editing, which employees were not asked to

do; if interns had not been available to do the copy editing work, it would not have been done.
Id. at 77-78, 80. 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.
C.

Facts Concerning Andrew Hudsons Internship

29.

At the time of his internship at Gawker weblog io9, plaintiff Andrew Hudson was

attending Fordham College. Deposition of Andrew Hudson (Hudson Dep.) at 8. He majored

in political science, with a minor in creative writing, which he developed as a journalism minor
rather than writing poetry or fiction. Id. at 9. He worked on the school newspaper, and studied
magazine writing and online journalism. Id.

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30.

After his junior year, Hudson elected to intern at io9. One of the io9 editors told

Hudson that he would be gathering information for articles that Meredith Woerner, an io9 news
reporter, was writing, and promoting her stories to other sites and networks. Id. at 65. That
description was appealing to him, and he did do those tasks during the internship, as promised.
Id.
31.

Hudson knew before starting that the internship was unpaid, id. at 59, 61, and

that there was no promise of a paid job at the conclusion of the internship, id. at 63.
32.

Hudson went on to complete his degree, and since graduation, has worked as a

journalist, editor, consultant, writer, communications consultant. Id. at 12.

33.

Academic credit was available for Hudsons internship, but he chose not to pursue

it, because he didnt need any more credits and there were too many hoops you had to jump
through to get credit for an internship. Id. at 62-63.
34.

Hudsons internship began with research for one of Woerners articles in early

June, 2008. He published a bylined article on the io9 weblog six weeks later, on July 20, and
published another bylined article near the end of the internship, on August 10. 1
35.

Hudson thus published two articles over the course of his nine-week internship,

while io9 was publishing, on average, a dozen or several dozen posts every day. Hudson Dep.
at 56. Most of his work was assisting writers with research for their articles, or help[ing]
Meredith with her job as a reporter finding stories to write about. Id. at 84.

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).
1

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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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