Preview
FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022
EXHIBIT 1
(REDACTED)
FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022
156 E. Market St.
Suite 1200
Indianapolis, IN 46204
www.MacGillLaw.com
Robert D. MacGill
317-961-5085
Robert.MacGill@MacGillLaw.com
Via Email
April 20, 2022
William P. Harrington, Esq.
Bleakley Platt & Schmidt, LLP
One North Lexington Avenue
White Plains, NY 10601
RE: Goldstein et al. v. Houlihan Lawrence, Inc. No. 60767/2018 (N.Y. Sup. Ct.,
Westchester Cty.)
Dear Bill:
We write in response to your April 5 email requesting a letter identifying the issues
Houlihan Lawrence would like to address during our April 22 conference.
TRANSACTION FILE SCANNING, ARBITRATION MOTION, EXTENSION OF TIME,
AND PROPOSED FIFTEENTH REPORT AND RECOMMENDATION
Houlihan Lawrence’s physical paper transaction files are essential to an appropriate
resolution of the issues pending in this case for at least three independent and compelling
reasons. First, for “the years 2011 to 2018, there is no organized or comprehensive source of
Houlihan executed arbitration agreements with consumers except for the paper transaction
files.”1 Second, the physical transaction files contain many of the executed 443 Forms and other
disclosure forms which contained agency disclosures. Third, Plaintiffs have requested the
“complete transaction file for the homebuyer and seller in every Dual Agent Transaction from
January 1, 2022 to July 14, 2018,” along with several other document requests which request
information present in the physical transaction files.2
On February 10, 2022, Houlihan Lawrence provided its plan to obtain the physical
transaction files at issue in this case, scan them, review them, and produce them to Plaintiffs.
Houlihan Lawrence explained that the “19,575 physical, paper transaction files” at issue are
“‘kept in various storage locations’ and are currently ‘stored as they are in the ordinary course of
business—intermingled with other irrelevant transaction files.’”
1
Jones Aff. of Feb. 9, 2022, ¶ 6, submitted to the Referee on Feb. 10 as Ex. 4.
2
Exhibit A, Plaintiffs’ RFPs, at Requests 4-11.
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Houlihan Lawrence estimated at that time that sifting, scanning, reviewing, and
producing these files would take 16 to 22 weeks once Houlihan Lawrence was authorized to
proceed.
After the Fourteenth Report and Recommendation was published in March, Houlihan
Lawrence began its retrieval process—working with ESI expert firm Consilio, the largest ESI
expert provider in the world.
Consilio’s Vice President and Shareholder, Brett Crist, has provided an update on their
progress, attached as Exhibit B. Mr. Crist reports:
There are approximately 700 boxes at issue. The 700 boxes
contain both irrelevant transaction files (those not on the Class
Member List) and the Relevant Paper Transaction Files (those on
the Class Member List). The Relevant Paper Transaction Files are
interlineated with the irrelevant files throughout the 700 boxes.
Therefore, someone must sift through the 700 boxes and manually
locate the Relevant Paper Transaction Files. After this point,
Consilio’s scanning and document review functions can
proceed….
In March, Consilio procured all 700 boxes and moved them
to its secure facilities in New York and Washington, D.C….
Since that time, twenty-five (25) Consilio personnel have
been working seven (7) days per week to manually locate the
Relevant Paper Transaction files throughout the 700 boxes. Other
Consilio Relativity experts and document imaging professionals
have been working to scan[3] files as they are located and to
process them into the appropriate litigation format. Once a
sufficient number of images have been posted to Relativity, a
separate team of Consilio document review experts will review the
scanned files. The responsive/relevant files can then be Bates
3
Mr. Crist previously reported that “[s]canning a paper file into the proper litigation format takes
several steps: (A) the paper file must be physically retrieved, and any binding or other foreign
materials must be removed from the physical file; (B) the paper file must be scanned using a
scanner; (C) the digital file must be assigned a file name with a unique identifier; (D) the digital
file must be loaded into an electronic database; (E) the digital file must be converted into the
correct format (for example, a TIFF format); (F) the digital file must be subjected to optical
character recognition (OCR); (G) finally, the digital files must be indexed….Once each of these
steps is completed, the digital files are ready for a review of their contents.” Crist Aff. of Feb. 10,
2022, ¶¶ 6-7, submitted to the Referee on Feb. 10 as Ex. 5.
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April 20, 2022
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Stamped and prepared in a document production for use in the
litigation.
Exhibit B ¶¶ 6, 8–10. Mr. Crist provided several photographs of some of the boxes to
provide additional context. Exhibit B pages 5 to 9.
Mr. Crist has now estimated that Consilio’s (A) sifting, (B) scanning, (C) processing, (D)
document review, and (E) document production will be complete on August 12, 2022. Id. ¶ 11.
“Consilio has assigned dozens of personnel to this project,” and, in Mr. Crist’s “professional
opinion, [he] do[es] not believe that faster results can be reasonably achieved.” Id. ¶ 13.
Based on these facts, Houlihan Lawrence requests that you issue an interim Fifteenth
Report and Recommendation with the following milestones:
Proposed Fifteenth R&R
Task Fourteenth R&R Date
Date
Potential Class Member 20 days following
Complete
Identification confirmation
Document Production April 20, 2022 August 12, 20224
90 days after Referee certifies
Deposition Discovery Not Set substantial completion of
document production
In accordance with Rule 13
Expert Discovery In accordance with Rule 13
(no change)
HL’s Motion to Modify the
May 3, 2022 May 3, 2022 (no change)
Class
April 29, 2022 – HL to August 12, 2022 – HL to
HL’s Motion to Compel produce arbitration produce arbitration
Arbitration agreements; May 6, 2022 - agreements; August 19, 2022
HL to file motion – HL to file motion
Plaintiffs’ Motion to
May 6, 2022 August 19, 2022
Authorize Class Notice
Houlihan Lawrence has provided a proposed Fifteenth Report and Recommendation as Exhibit
C.
This proposal comports with Houlihan Lawrence’s original twenty-two week estimate.
Consilio has assigned dozens of personnel to this project. Faster results cannot be reasonably
achieved. Thousands of people agreed to arbitrate this dispute, and Houlihan Lawrence must be
afforded a reasonable opportunity to move to compel those individuals to the arbitral forum.
4
For document requests requiring litigation by either party, either August 12, 2022 or 45 days
after the dispute is resolved, whichever is later.
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For these reasons, Houlihan Lawrence respectfully requests that you enter the attached
proposed Fifteenth Report and Recommendation, granting Consilio the time it needs to locate
and produce all the relevant transaction files (and the arbitration agreements within). This
timeframe will provide ample time for the anticipated discovery disputes to be resolved.
CLASS NOTICE PLAN
I. Objections to Plaintiffs’ Proposed Class Notice Method.
a. Plaintiffs’ Proposed Class Notice Method Does Not Comport with Due Process
Requirements and Is Calculated to Harass and Abuse Houlihan Lawrence Instead
of Informing Class Members of the Pendency of This Suit.
Plaintiffs propose to appropriate Houlihan Lawrence’s website and online presence by
placing “digital banner advertisements for 30 days on Houlihan Lawrence’s website . . . ,
Houlihan Lawrence’s social media pages, and through Google Display Networks and on
Facebook and Instagram.” Plaintiffs also propose “publication of the short-form notice once a
week for two consecutive weeks in the New York Times, Wall Street Journal, The Journal News,
Poughkeepsie Journal, The Putnam County News and Recorder, and The Putnam County
Courier,” in addition to emailing the class members. Vest to MacGill, April 5, 2022, attached as
Exhibit N.
Plaintiffs’ proposed notice plan is not reasonably calculated to reach the largest number
of class members, attempts to minimize costs at the expense of class members’ due process
rights, and is a thinly-veiled effort to abuse and harass Houlihan Lawrence by continuing to
improperly utilize judicial process to impair Houlihan Lawrence’s goodwill and interfere with its
current and prospective business relationships.
The law has long recognized that “[a]n elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950); see also Drizin v. Sprint Corp, No. 101707/02, 2005 N.Y. Misc. LEXIS
868, at *2 (N.Y. County Feb. 25, 2005) (“The law requires that the parties provide the best notice
practicable under the circumstances to class members.”) (citation omitted).
CPLR § 904 provides further guidance and states that “reasonable notice of the
commencement of a class action shall be given to the class in such a manner as the court
directs.” CPLR § 904(b). “In determining the method by which notice is to be given, the court
shall consider: (1) the cost of giving notice by each method considered; (2) the resources of the
parties; and (3) the stake of each represented member of the class, and the likelihood that
significant numbers of represented members would desire to exclude themselves from the class
or to appear individually.” Id. at § 904(c). The fundamental requirements of due process, the
considerations outlined by CPLR § 904, and guidance from the Federal Judicial Center weigh in
favor of individual notice to class members via first-class mail.
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April 20, 2022
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i. Notice via First-Class Mail Fulfills the Fundamental Requirements of Due
Process.
The Class Member List produced by Houlihan Lawrence to Plaintiffs includes
approximately 97.9% of the class members’ last known mailing addresses, and Plaintiffs have
agreed—and have been ordered by the Court—to update the last known addresses included on
the Class Member List. See Fourteenth R&R ¶ 1(e); NYSCEF 1088 (adopting same). In contrast,
only 30% of the class members’ email addresses were located following a thorough examination
of Houlihan Lawrence’s Profit Power and Client Connect databases.
Given the parties’ combined efforts to locate the class members’ current mailing
addresses, providing notice to class members via first-class mail is the method, under the
circumstances, that would apprise the largest number of interested parties of the pendency of the
action and afford them an opportunity to present their objections. Cf. Mullane, 339 U.S. at 314.
ii. The Four CPLR § 904 Factors Weigh in Favor of Notice via First-Class
Mail.
The factors enumerated in CPLR § 904 also support providing notice by first-class mail.
The cost of mailed notices is routinely authorized as appropriate by New York courts, including
notices generated and managed by Plaintiffs’ proposed class action administrative service, JND
Legal Administration Company. See Akai Taxi NYC LLC v. City of New York, No. 708602/2017,
2020 N.Y. Misc. LEXIS 3130, at *4 (N.Y. County May 12, 2020) (approving notice by mail
administrated by JND Legal Administration Company).5 Plaintiffs’ counsel has ample resources
to provide such notice. See NYSCEF 1072, Decision and Order on Class Certification, at 15
(“[Plaintiffs] have . . . . demonstrated that counsel has the financial resources to prosecute this
action and will continue to pay for all costs associated with the litigation.”) (citing Vest Aff. at ¶¶
9-15; Ohlemeyer Aff. at ¶¶ 10-15). And, because the individual class members’ commission
payments at issue in this action are substantial,6 see e.g., Houlihan Lawrence’s Memorandum in
Opposition to Class Certification at 24 (explaining that the seller-class-representatives, the
Berks, paid $23,950 to Houlihan Lawrence in connection with their transaction), each individual
class member has a large stake in the suit and it is likely that a significant number of the
represented members will “desire to exclude themselves from the class or to appear
individually.” Cf. CPLR § 904(c). Because first-class mail is not unduly costly, Plaintiffs have
5
See also Andryeyeva v. New York Health Care Inc., No. 14309/2011, 2020 N.Y. Misc. LEXIS
2072, at *20 (Kings County May 15, 2020) (“Notice of the action to the putative class by first
class mail is authorized pursuant to CPLR 904.”); Peck et al. v. AT&T Corp., No. 601587/2000,
2002 N.Y. Misc. LEXIS 2026, at *11 (describing notice of class settlement, noting “932,981
notices” sent to “Class members’ current billing address or last known address.”); Drizin v.
Sprint Corp, No. 101707/02, 2005 N.Y. Misc. LEXIS 868, at *6 (N.Y. County Feb. 25, 2005)
(notice by mail does “not exhaust the resources of the parties and the costs associated with such
notice are not unreasonable.”).
6
Although Plaintiffs have routinely refused to provide any substantive form of damage estimate
or calculation method, Houlihan Lawrence presently understands Plaintiffs to claim that each
class member is entitled to a full refund of any commission paid to Houlihan Lawrence.
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the resources to provide mailed notice, and mailed notice will give class members the best
opportunity to exclude themselves or appear individually, notice by first-class mail is the best
method for providing notice to class members pursuant to each of the CPLR § 904 factors.
iii. The Federal Judicial Center Recommends Providing Notice to Class
Members via First-Class Mail.
Plaintiffs’ assert their e-mail notice proposal will reach 70% of class members. Exhibit N
at 2. This is impossible, because only 30% of the class members have a known email address at
this time.
Given that Houlihan Lawrence has provided Plaintiffs with last-known mailing addresses
for 97.9% of class members (a list which Plaintiffs have agreed to update pursuant to the Court’s
Order), notice via first-class mail would reach significantly more class members and provide
them an opportunity to opt out, lodge objections, enter appearances, or contact class counsel with
questions or concerns. These considerations alone support sending notice to class members via
first-class mail.
Notice via e-mail is less effective than first-class mail. As the Federal Judicial Center,
which provides guidance to the federal judiciary regarding class notice issues, explains:
If available, the parties should use postal mailing addresses, which are
generally more effective than e-mail in reaching class members: mail-forwarding
services reach movers, and the influx of “SPAM” e-mail messages can cause
valid e-mails to go unread. If e-mail will be used—e.g., to active e-mail
addresses the defendant currently uses to communicate with class members—be
careful to require sophisticated design of the subject line, the sender, and the body
of the message, to overcome SPAM filters and ensure readership.
Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide, Exhibit L
at 3-4 (emphasis added). Internet banner ads and social media pages present similar issues:
Inflated audience data via Internet ads is common . . . . Watch for suggestions that
Internet ads and social network usage can replace all other methods. Reach,
awareness, and claims will likely be very low when such a[n Internet-based]
program is complete.
Id. at 4 (emphasis added).
In reality, Plaintiffs’ proposed plan seeks to further two goals, neither of which is
to provide class members with the best practicable notice. First, Plaintiffs seek to reduce
the cost New York law requires them to bear7 in providing the class with notice by
providing a less effective e-mail notice to fewer class members. Second, Plaintiffs’
proposal to appropriate Houlihan Lawrence’s website and social media to post
information about this lawsuit is an unlawful approach that would impair Houlihan
7
“Unless the court orders otherwise, the plaintiff shall bear the expense of notification.”
CPLR § 904(d).
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Lawrence’s good will and interfere with its current and prospective business
relationships. Because first-class mail is reasonable, effective, and affords class members
notice sufficient to fulfill due process requirements, class members should receive notice
of this lawsuit via first-class mail.
b. Plaintiffs’ Proposed Publication Notices Are Unnecessary in Light of Houlihan
Lawrence’s Comprehensive and Thorough Class Member List.
Mailing notices to class members’ mailing addresses (which have been provided by HL
and which will be updated by Plaintiffs pursuant to Court Order) provides the “best notice
practicable under the circumstances to class members.” Drizin, No. 101707/02, 2005 N.Y. Misc.
LEXIS 868, at *2. Plaintiffs’ proposed publication notices are unnecessary and abusive.
c. Houlihan Lawrence Should Be Given the Opportunity to Collaboratively Build
Plaintiffs’ Proposed Litigation-Specific Website.
Houlihan Lawrence does not object to Plaintiffs’ proposal to publish a litigation-specific
website, which will be entirely separate from Houlihan Lawrence’s official website. Houlihan
Lawrence does object, however, to Plaintiffs unilaterally drafting, constructing, and populating
the website with no opportunity for Houlihan Lawrence to participate. Understanding that
Plaintiffs’ notice proposal is preliminary,8 in order to facilitate discussion at our upcoming April
22 conference, Houlihan Lawrence has identified the following concerns regarding Plaintiffs’
proposed website:
• Plaintiffs’ proposed case-specific notice website URL,
“www.HoulihanLawrenceLitigation.com,” is substantially similar to Houlihan
Lawrence’s own official website URL, “www.HoulihanLawrence.com,” and presents a
high likelihood of confusion in the marketplace, reputational damage, and injury to
Houlihan Lawrence’s goodwill. Houlihan Lawrence requests Plaintiffs propose an
alternative URL.
• Houlihan Lawrence requests the “Important Documents” page include:
o NYSCEF 370 (Order on Motion to Dismiss);9
o NYSCEF 557 (Third Amended Complaint);
8
See Exhibit N at 3 (“Plaintiffs’ proposed class notice plan is subject to further development and
revision and is presented in preliminary form in accordance with the Fourteenth Report and
Recommendation solely to facilitate the parties’ efforts to reach an agreement.”).
9
“[I]t is reasonable to post the following documents at a neutral administrator’s website
dedicated to the case: the plaintiffs’ complaint, the defendants’ answer, your class-certification
decision (in the event of a class certified for trial) . . . . Other orders, such as your rulings on
motions to dismiss or for summary judgment, should ordinarily be made available as well.”
Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide, Exhibit L
at 4.
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April 20, 2022
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o NYSCEF 559 (Answer to Third Amended Complaint);
o NYSCEF 1072 (Order on Class Certification);
o NYSCEF 1076 (Houlihan Lawrence’s Notice of Appeal);
o Houlihan Lawrence’s forthcoming Appellant’s Brief in the Second Department;
o Houlihan Lawrence’s forthcoming Motion to Compel Arbitration and Motion to
Modify the Class;
o and
o Any forthcoming orders on summary judgment, compelling arbitration, and class
modification or decertification.
Houlihan Lawrence requests an opportunity to review and edit all aspects of the website before it
is made “live.”
d. Plaintiffs’ Proposed Opt-Out Procedure is Unduly Burdensome.
The Federal Judicial Center advises that “[t]here should be no unnecessary hurdles that
make it difficult for class members to exercise their rights to opt out, object, submit a claim, or
make an appearance.” Exhibit L at 1. Under Plaintiffs’ current proposal, to opt-out, class
members must
send a letter to the Notice Administrator requesting exclusion from Goldstein et
al. v. Houlihan/Lawrence, Inc. class action, with [their] name, address, telephone
number, email address and signature. [They] must also identify the property
address for the transaction in which Houlihan Lawrence acted as [their] real estate
agent. [Their] exclusion request must be postmarked no later than [30 Days After
the End of the 30-Day Notice Period].
See Plaintiffs’ Proposed Long-Form Notice at 6, attached as Exhibit M. This procedure is
an “unnecessary hurdle” that would “make it difficult for class members to exercise their
rights to opt out, object, submit a claim, or make an appearance.”
Instead, Plaintiffs should simply include a prepaid return postcard in each mailed
notice, listing the class member’s name and address, on which class members may
indicate their desire to opt-out of the litigation. The postcard should be prepaid with First
Class postage and should be preaddressed to the class notice administrator for prompt
opting out.
II. Specific Objections to Language Contained in Plaintiffs’ Proposed Long- and Short-Form
Notices.
“[A] fundamental requirement of any [class] notice is that it present a balanced statement
of the potential class member’s rights and liabilities.” Vickers v. Home Federal Sav. & Loan
Assoc., 390 N.Y.S.2d 747, 749 (4th Dept. 1977). Plaintiffs’ proposed short- and long-form
notices do not present a balanced description of this lawsuit, the rights and liabilities of class
members, or Houlihan Lawrence’s position. See Exhibit M; Plaintiffs’ Proposed Short-Form
Notice, attached as Exhibit O. For ease of reference, Houlihan Lawrence submits the following
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April 20, 2022
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tables summarizing its specific objections and counter proposals to the language contained in
Plaintiffs’ proposed long- and short-form notices.
SHORT-FORM NOTICE
Plaintiffs’ Proposed Language Houlihan Lawrence’s Objection/Counter
Proposal
“The Court has made not decided who is right “The Court has not decided who is right or
or wrong.” wrong.”
“The Court has appointed Mintz, Levin, “The Court has appointed Mintz, Levin,
Cohn, Ferris, Glovsky, and Popeo, P.C. and Cohn, Ferris, Glovsky, and Popeo, P.C. and
Boise Schiller Flexner LLP as Co-Class Boise Schiller Flexner LLP as Class Counsel
Counsel. If you stay in the Class, you do not to represent the interests of the Class.
need to hire your own lawyer to pursue the
claims against Houlihan Lawrence. Class It is important for you to know that Class
Counsel is working on behalf of the Class. Counsel represents both the buyer and the
However, if you want to be represented by seller in your home transaction for the
your own lawyer, you may hire one at your purposes of this lawsuit.
own expense and cost.” If you wish to be represented by your own
lawyer, you may hire one at your own
expense and cost. If you wish to stay in the
Class and be represented by Class Counsel,
however, you are not required to hire your
own lawyer and Class Counsel will continue
to work on your behalf, and on the behalf of
your transactional counterpart in the subject
transaction.”
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SHORT-FORM NOTICE
Plaintiffs’ Proposed Language Houlihan Lawrence’s Objection/Counter
Proposal
“The Court has not yet scheduled the trial in “The Court has not yet scheduled the trial in
this case, but it is expected that the trial will this case.”
occur in 2023.”
LONG-FORM NOTICE
Page Plaintiffs’ Proposed Language Houlihan Lawrence’s Counter Proposal
“This lawsuit seeks to recover the “This lawsuit seeks to recover the sales
sales commissions that Plaintiffs commissions Houlihan Lawrence obtained
allege Houlihan Lawrence wrongfully in connection with certain residential real
1
obtained in connection with the estate transactions in which Houlihan
residential real estate transactions that Lawrence acted as the agent for both the
are affected by this lawsuit.” buyer and seller.”
“The date for the trial has not yet been
“The date for the trial has not yet been
1 set, but the trial is currently expected
set.”
to occur in 2023.”
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LONG-FORM NOTICE
Page Plaintiffs’ Proposed Language Houlihan Lawrence’s Counter Proposal
Houlihan Lawrence objects to Plaintiffs
unilaterally drafting and disseminating a
statement of Houlihan Lawrence’s
“Houlihan Lawrence denies Plaintiffs’ defenses to class members. Houlihan
claims and asserts multiple defenses, Lawrence’s evaluation of its defenses is
including that Houlihan Lawrence’s ongoing, and Houlihan Lawrence requests
4
challenged actions were disclosed, it be given an opportunity to draft and
consensual, and have not harmed submit to Plaintiffs its own statement
Plaintiffs or caused any damages.” regarding its position. The Discovery
Referee can resolve any remaining
disputes following the parties’
communication on this point.
“On January 24, 2022, the Supreme Court
of the State of New York, Westchester
“On January 24, 2022, the Supreme County granted Plaintiff’s motion for class
Court of the State of New York, certification for breach of fiduciary duty
Westchester County granted and violation of General Business Law §
Plaintiff’s motion for class 349 against Houlihan Lawrence. Houlihan
4
certification for breach of fiduciary Lawrence has appealed this ruling.
duty and violation of General Houlihan Lawrence’s appeal is pending,
Business Law § 349 against Houlihan and the Supreme Court of the State of
Lawrence.” New York, Westchester County’s January
24, 2022 ruling may be reversed or
modified in the future.”
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LONG-FORM NOTICE
Page Plaintiffs’ Proposed Language Houlihan Lawrence’s Counter Proposal
“Excluded from the Class are
“Excluded from the Class are Houlihan
Houlihan Lawrence and its parent
5 Lawrence, its parent company, and their
company, HomeServices of America,
employees . . . .”
Inc., and their employees . . . .”
“To exclude yourself, you must send a
letter to the Notice Administrator
requesting exclusion from Goldstein
“To exclude yourself, fill out and send to
et al. v. Houlihan/Lawrence, Inc. class
the Notice Administrator the prepaid
action, with your name, address,
return postcard included in the notice you
telephone number, email address and
received in the mail. If you have not
6 signature. You must also identify the
received a notice of this lawsuit in the mail
property address for the transaction in
or have otherwise misplaced your prepaid
which Houlihan Lawrence acted as
return postcard, please contact the Notice
your real estate agent. Your exclusion
Administrator at . . . .”
request must be postmarked no later
than [30 Days After the End of the
30-Day Notice Period].”
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LONG-FORM NOTICE
Page Plaintiffs’ Proposed Language Houlihan Lawrence’s Counter Proposal
It is important for you to know that Class
Counsel represents both the buyer and the
seller in your home transaction for the
If you stay in the Class, you do not purposes of this lawsuit.
need to hire your own lawyer to
If you wish to be represented by your own
pursue the claims against Houlihan
lawyer, you may hire one at your own
Lawrence because Class Counsel is
expense and cost. If you wish to stay in the
7 working on behalf of the Class.
Class and be represented by Class
However, if you want to be
Counsel, however, you are not required to
represented by your own lawyer, you
hire your own lawyer and Class Counsel
may hire one at your own expense and
will continue to work on your behalf, and
cost.
on the behalf of your transactional
counterpart in the subject transaction.
“You will not be personally
“You will not be personally responsible
responsible for Plaintiffs’ attorneys’
for paying Plaintiffs’ attorneys’ fees and
fees and costs, except to the extent
costs, but Plaintiffs’ attorneys’ fees and
7 that the Court may approve or award
costs may be deducted proportionally from
any such fees and costs to Class
any recovery you may receive in this
Counsel which would be paid out of
action.”
the recovery in this action, if any.”
“The Court has not yet scheduled the
“The Court has not yet sch
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FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 EXHIBIT 1 (REDACTED) FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 156 E. Market St. Suite 1200 Indianapolis, IN 46204 www.MacGillLaw.com Robert D. MacGill 317-961-5085 Robert.MacGill@MacGillLaw.com Via Email April 20, 2022 William P. Harrington, Esq. Bleakley Platt & Schmidt, LLP One North Lexington Avenue White Plains, NY 10601 RE: Goldstein et al. v. Houlihan Lawrence, Inc. No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.) Dear Bill: We write in response to your April 5 email requesting a letter identifying the issues Houlihan Lawrence would like to address during our April 22 conference. TRANSACTION FILE SCANNING, ARBITRATION MOTION, EXTENSION OF TIME, AND PROPOSED FIFTEENTH REPORT AND RECOMMENDATION Houlihan Lawrence’s physical paper transaction files are essential to an appropriate resolution of the issues pending in this case for at least three independent and compelling reasons. First, for “the years 2011 to 2018, there is no organized or comprehensive source of Houlihan executed arbitration agreements with consumers except for the paper transaction files.”1 Second, the physical transaction files contain many of the executed 443 Forms and other disclosure forms which contained agency disclosures. Third, Plaintiffs have requested the “complete transaction file for the homebuyer and seller in every Dual Agent Transaction from January 1, 2022 to July 14, 2018,” along with several other document requests which request information present in the physical transaction files.2 On February 10, 2022, Houlihan Lawrence provided its plan to obtain the physical transaction files at issue in this case, scan them, review them, and produce them to Plaintiffs. Houlihan Lawrence explained that the “19,575 physical, paper transaction files” at issue are “‘kept in various storage locations’ and are currently ‘stored as they are in the ordinary course of business—intermingled with other irrelevant transaction files.’” 1 Jones Aff. of Feb. 9, 2022, ¶ 6, submitted to the Referee on Feb. 10 as Ex. 4. 2 Exhibit A, Plaintiffs’ RFPs, at Requests 4-11. FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 2 Houlihan Lawrence estimated at that time that sifting, scanning, reviewing, and producing these files would take 16 to 22 weeks once Houlihan Lawrence was authorized to proceed. After the Fourteenth Report and Recommendation was published in March, Houlihan Lawrence began its retrieval process—working with ESI expert firm Consilio, the largest ESI expert provider in the world. Consilio’s Vice President and Shareholder, Brett Crist, has provided an update on their progress, attached as Exhibit B. Mr. Crist reports: There are approximately 700 boxes at issue. The 700 boxes contain both irrelevant transaction files (those not on the Class Member List) and the Relevant Paper Transaction Files (those on the Class Member List). The Relevant Paper Transaction Files are interlineated with the irrelevant files throughout the 700 boxes. Therefore, someone must sift through the 700 boxes and manually locate the Relevant Paper Transaction Files. After this point, Consilio’s scanning and document review functions can proceed…. In March, Consilio procured all 700 boxes and moved them to its secure facilities in New York and Washington, D.C…. Since that time, twenty-five (25) Consilio personnel have been working seven (7) days per week to manually locate the Relevant Paper Transaction files throughout the 700 boxes. Other Consilio Relativity experts and document imaging professionals have been working to scan[3] files as they are located and to process them into the appropriate litigation format. Once a sufficient number of images have been posted to Relativity, a separate team of Consilio document review experts will review the scanned files. The responsive/relevant files can then be Bates 3 Mr. Crist previously reported that “[s]canning a paper file into the proper litigation format takes several steps: (A) the paper file must be physically retrieved, and any binding or other foreign materials must be removed from the physical file; (B) the paper file must be scanned using a scanner; (C) the digital file must be assigned a file name with a unique identifier; (D) the digital file must be loaded into an electronic database; (E) the digital file must be converted into the correct format (for example, a TIFF format); (F) the digital file must be subjected to optical character recognition (OCR); (G) finally, the digital files must be indexed….Once each of these steps is completed, the digital files are ready for a review of their contents.” Crist Aff. of Feb. 10, 2022, ¶¶ 6-7, submitted to the Referee on Feb. 10 as Ex. 5. FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 3 Stamped and prepared in a document production for use in the litigation. Exhibit B ¶¶ 6, 8–10. Mr. Crist provided several photographs of some of the boxes to provide additional context. Exhibit B pages 5 to 9. Mr. Crist has now estimated that Consilio’s (A) sifting, (B) scanning, (C) processing, (D) document review, and (E) document production will be complete on August 12, 2022. Id. ¶ 11. “Consilio has assigned dozens of personnel to this project,” and, in Mr. Crist’s “professional opinion, [he] do[es] not believe that faster results can be reasonably achieved.” Id. ¶ 13. Based on these facts, Houlihan Lawrence requests that you issue an interim Fifteenth Report and Recommendation with the following milestones: Proposed Fifteenth R&R Task Fourteenth R&R Date Date Potential Class Member 20 days following Complete Identification confirmation Document Production April 20, 2022 August 12, 20224 90 days after Referee certifies Deposition Discovery Not Set substantial completion of document production In accordance with Rule 13 Expert Discovery In accordance with Rule 13 (no change) HL’s Motion to Modify the May 3, 2022 May 3, 2022 (no change) Class April 29, 2022 – HL to August 12, 2022 – HL to HL’s Motion to Compel produce arbitration produce arbitration Arbitration agreements; May 6, 2022 - agreements; August 19, 2022 HL to file motion – HL to file motion Plaintiffs’ Motion to May 6, 2022 August 19, 2022 Authorize Class Notice Houlihan Lawrence has provided a proposed Fifteenth Report and Recommendation as Exhibit C. This proposal comports with Houlihan Lawrence’s original twenty-two week estimate. Consilio has assigned dozens of personnel to this project. Faster results cannot be reasonably achieved. Thousands of people agreed to arbitrate this dispute, and Houlihan Lawrence must be afforded a reasonable opportunity to move to compel those individuals to the arbitral forum. 4 For document requests requiring litigation by either party, either August 12, 2022 or 45 days after the dispute is resolved, whichever is later. FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 4 For these reasons, Houlihan Lawrence respectfully requests that you enter the attached proposed Fifteenth Report and Recommendation, granting Consilio the time it needs to locate and produce all the relevant transaction files (and the arbitration agreements within). This timeframe will provide ample time for the anticipated discovery disputes to be resolved. CLASS NOTICE PLAN I. Objections to Plaintiffs’ Proposed Class Notice Method. a. Plaintiffs’ Proposed Class Notice Method Does Not Comport with Due Process Requirements and Is Calculated to Harass and Abuse Houlihan Lawrence Instead of Informing Class Members of the Pendency of This Suit. Plaintiffs propose to appropriate Houlihan Lawrence’s website and online presence by placing “digital banner advertisements for 30 days on Houlihan Lawrence’s website . . . , Houlihan Lawrence’s social media pages, and through Google Display Networks and on Facebook and Instagram.” Plaintiffs also propose “publication of the short-form notice once a week for two consecutive weeks in the New York Times, Wall Street Journal, The Journal News, Poughkeepsie Journal, The Putnam County News and Recorder, and The Putnam County Courier,” in addition to emailing the class members. Vest to MacGill, April 5, 2022, attached as Exhibit N. Plaintiffs’ proposed notice plan is not reasonably calculated to reach the largest number of class members, attempts to minimize costs at the expense of class members’ due process rights, and is a thinly-veiled effort to abuse and harass Houlihan Lawrence by continuing to improperly utilize judicial process to impair Houlihan Lawrence’s goodwill and interfere with its current and prospective business relationships. The law has long recognized that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Drizin v. Sprint Corp, No. 101707/02, 2005 N.Y. Misc. LEXIS 868, at *2 (N.Y. County Feb. 25, 2005) (“The law requires that the parties provide the best notice practicable under the circumstances to class members.”) (citation omitted). CPLR § 904 provides further guidance and states that “reasonable notice of the commencement of a class action shall be given to the class in such a manner as the court directs.” CPLR § 904(b). “In determining the method by which notice is to be given, the court shall consider: (1) the cost of giving notice by each method considered; (2) the resources of the parties; and (3) the stake of each represented member of the class, and the likelihood that significant numbers of represented members would desire to exclude themselves from the class or to appear individually.” Id. at § 904(c). The fundamental requirements of due process, the considerations outlined by CPLR § 904, and guidance from the Federal Judicial Center weigh in favor of individual notice to class members via first-class mail. FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 5 i. Notice via First-Class Mail Fulfills the Fundamental Requirements of Due Process. The Class Member List produced by Houlihan Lawrence to Plaintiffs includes approximately 97.9% of the class members’ last known mailing addresses, and Plaintiffs have agreed—and have been ordered by the Court—to update the last known addresses included on the Class Member List. See Fourteenth R&R ¶ 1(e); NYSCEF 1088 (adopting same). In contrast, only 30% of the class members’ email addresses were located following a thorough examination of Houlihan Lawrence’s Profit Power and Client Connect databases. Given the parties’ combined efforts to locate the class members’ current mailing addresses, providing notice to class members via first-class mail is the method, under the circumstances, that would apprise the largest number of interested parties of the pendency of the action and afford them an opportunity to present their objections. Cf. Mullane, 339 U.S. at 314. ii. The Four CPLR § 904 Factors Weigh in Favor of Notice via First-Class Mail. The factors enumerated in CPLR § 904 also support providing notice by first-class mail. The cost of mailed notices is routinely authorized as appropriate by New York courts, including notices generated and managed by Plaintiffs’ proposed class action administrative service, JND Legal Administration Company. See Akai Taxi NYC LLC v. City of New York, No. 708602/2017, 2020 N.Y. Misc. LEXIS 3130, at *4 (N.Y. County May 12, 2020) (approving notice by mail administrated by JND Legal Administration Company).5 Plaintiffs’ counsel has ample resources to provide such notice. See NYSCEF 1072, Decision and Order on Class Certification, at 15 (“[Plaintiffs] have . . . . demonstrated that counsel has the financial resources to prosecute this action and will continue to pay for all costs associated with the litigation.”) (citing Vest Aff. at ¶¶ 9-15; Ohlemeyer Aff. at ¶¶ 10-15). And, because the individual class members’ commission payments at issue in this action are substantial,6 see e.g., Houlihan Lawrence’s Memorandum in Opposition to Class Certification at 24 (explaining that the seller-class-representatives, the Berks, paid $23,950 to Houlihan Lawrence in connection with their transaction), each individual class member has a large stake in the suit and it is likely that a significant number of the represented members will “desire to exclude themselves from the class or to appear individually.” Cf. CPLR § 904(c). Because first-class mail is not unduly costly, Plaintiffs have 5 See also Andryeyeva v. New York Health Care Inc., No. 14309/2011, 2020 N.Y. Misc. LEXIS 2072, at *20 (Kings County May 15, 2020) (“Notice of the action to the putative class by first class mail is authorized pursuant to CPLR 904.”); Peck et al. v. AT&T Corp., No. 601587/2000, 2002 N.Y. Misc. LEXIS 2026, at *11 (describing notice of class settlement, noting “932,981 notices” sent to “Class members’ current billing address or last known address.”); Drizin v. Sprint Corp, No. 101707/02, 2005 N.Y. Misc. LEXIS 868, at *6 (N.Y. County Feb. 25, 2005) (notice by mail does “not exhaust the resources of the parties and the costs associated with such notice are not unreasonable.”). 6 Although Plaintiffs have routinely refused to provide any substantive form of damage estimate or calculation method, Houlihan Lawrence presently understands Plaintiffs to claim that each class member is entitled to a full refund of any commission paid to Houlihan Lawrence. FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 6 the resources to provide mailed notice, and mailed notice will give class members the best opportunity to exclude themselves or appear individually, notice by first-class mail is the best method for providing notice to class members pursuant to each of the CPLR § 904 factors. iii. The Federal Judicial Center Recommends Providing Notice to Class Members via First-Class Mail. Plaintiffs’ assert their e-mail notice proposal will reach 70% of class members. Exhibit N at 2. This is impossible, because only 30% of the class members have a known email address at this time. Given that Houlihan Lawrence has provided Plaintiffs with last-known mailing addresses for 97.9% of class members (a list which Plaintiffs have agreed to update pursuant to the Court’s Order), notice via first-class mail would reach significantly more class members and provide them an opportunity to opt out, lodge objections, enter appearances, or contact class counsel with questions or concerns. These considerations alone support sending notice to class members via first-class mail. Notice via e-mail is less effective than first-class mail. As the Federal Judicial Center, which provides guidance to the federal judiciary regarding class notice issues, explains: If available, the parties should use postal mailing addresses, which are generally more effective than e-mail in reaching class members: mail-forwarding services reach movers, and the influx of “SPAM” e-mail messages can cause valid e-mails to go unread. If e-mail will be used—e.g., to active e-mail addresses the defendant currently uses to communicate with class members—be careful to require sophisticated design of the subject line, the sender, and the body of the message, to overcome SPAM filters and ensure readership. Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide, Exhibit L at 3-4 (emphasis added). Internet banner ads and social media pages present similar issues: Inflated audience data via Internet ads is common . . . . Watch for suggestions that Internet ads and social network usage can replace all other methods. Reach, awareness, and claims will likely be very low when such a[n Internet-based] program is complete. Id. at 4 (emphasis added). In reality, Plaintiffs’ proposed plan seeks to further two goals, neither of which is to provide class members with the best practicable notice. First, Plaintiffs seek to reduce the cost New York law requires them to bear7 in providing the class with notice by providing a less effective e-mail notice to fewer class members. Second, Plaintiffs’ proposal to appropriate Houlihan Lawrence’s website and social media to post information about this lawsuit is an unlawful approach that would impair Houlihan 7 “Unless the court orders otherwise, the plaintiff shall bear the expense of notification.” CPLR § 904(d). FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 7 Lawrence’s good will and interfere with its current and prospective business relationships. Because first-class mail is reasonable, effective, and affords class members notice sufficient to fulfill due process requirements, class members should receive notice of this lawsuit via first-class mail. b. Plaintiffs’ Proposed Publication Notices Are Unnecessary in Light of Houlihan Lawrence’s Comprehensive and Thorough Class Member List. Mailing notices to class members’ mailing addresses (which have been provided by HL and which will be updated by Plaintiffs pursuant to Court Order) provides the “best notice practicable under the circumstances to class members.” Drizin, No. 101707/02, 2005 N.Y. Misc. LEXIS 868, at *2. Plaintiffs’ proposed publication notices are unnecessary and abusive. c. Houlihan Lawrence Should Be Given the Opportunity to Collaboratively Build Plaintiffs’ Proposed Litigation-Specific Website. Houlihan Lawrence does not object to Plaintiffs’ proposal to publish a litigation-specific website, which will be entirely separate from Houlihan Lawrence’s official website. Houlihan Lawrence does object, however, to Plaintiffs unilaterally drafting, constructing, and populating the website with no opportunity for Houlihan Lawrence to participate. Understanding that Plaintiffs’ notice proposal is preliminary,8 in order to facilitate discussion at our upcoming April 22 conference, Houlihan Lawrence has identified the following concerns regarding Plaintiffs’ proposed website: • Plaintiffs’ proposed case-specific notice website URL, “www.HoulihanLawrenceLitigation.com,” is substantially similar to Houlihan Lawrence’s own official website URL, “www.HoulihanLawrence.com,” and presents a high likelihood of confusion in the marketplace, reputational damage, and injury to Houlihan Lawrence’s goodwill. Houlihan Lawrence requests Plaintiffs propose an alternative URL. • Houlihan Lawrence requests the “Important Documents” page include: o NYSCEF 370 (Order on Motion to Dismiss);9 o NYSCEF 557 (Third Amended Complaint); 8 See Exhibit N at 3 (“Plaintiffs’ proposed class notice plan is subject to further development and revision and is presented in preliminary form in accordance with the Fourteenth Report and Recommendation solely to facilitate the parties’ efforts to reach an agreement.”). 9 “[I]t is reasonable to post the following documents at a neutral administrator’s website dedicated to the case: the plaintiffs’ complaint, the defendants’ answer, your class-certification decision (in the event of a class certified for trial) . . . . Other orders, such as your rulings on motions to dismiss or for summary judgment, should ordinarily be made available as well.” Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide, Exhibit L at 4. FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 8 o NYSCEF 559 (Answer to Third Amended Complaint); o NYSCEF 1072 (Order on Class Certification); o NYSCEF 1076 (Houlihan Lawrence’s Notice of Appeal); o Houlihan Lawrence’s forthcoming Appellant’s Brief in the Second Department; o Houlihan Lawrence’s forthcoming Motion to Compel Arbitration and Motion to Modify the Class; o and o Any forthcoming orders on summary judgment, compelling arbitration, and class modification or decertification. Houlihan Lawrence requests an opportunity to review and edit all aspects of the website before it is made “live.” d. Plaintiffs’ Proposed Opt-Out Procedure is Unduly Burdensome. The Federal Judicial Center advises that “[t]here should be no unnecessary hurdles that make it difficult for class members to exercise their rights to opt out, object, submit a claim, or make an appearance.” Exhibit L at 1. Under Plaintiffs’ current proposal, to opt-out, class members must send a letter to the Notice Administrator requesting exclusion from Goldstein et al. v. Houlihan/Lawrence, Inc. class action, with [their] name, address, telephone number, email address and signature. [They] must also identify the property address for the transaction in which Houlihan Lawrence acted as [their] real estate agent. [Their] exclusion request must be postmarked no later than [30 Days After the End of the 30-Day Notice Period]. See Plaintiffs’ Proposed Long-Form Notice at 6, attached as Exhibit M. This procedure is an “unnecessary hurdle” that would “make it difficult for class members to exercise their rights to opt out, object, submit a claim, or make an appearance.” Instead, Plaintiffs should simply include a prepaid return postcard in each mailed notice, listing the class member’s name and address, on which class members may indicate their desire to opt-out of the litigation. The postcard should be prepaid with First Class postage and should be preaddressed to the class notice administrator for prompt opting out. II. Specific Objections to Language Contained in Plaintiffs’ Proposed Long- and Short-Form Notices. “[A] fundamental requirement of any [class] notice is that it present a balanced statement of the potential class member’s rights and liabilities.” Vickers v. Home Federal Sav. & Loan Assoc., 390 N.Y.S.2d 747, 749 (4th Dept. 1977). Plaintiffs’ proposed short- and long-form notices do not present a balanced description of this lawsuit, the rights and liabilities of class members, or Houlihan Lawrence’s position. See Exhibit M; Plaintiffs’ Proposed Short-Form Notice, attached as Exhibit O. For ease of reference, Houlihan Lawrence submits the following FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 9 tables summarizing its specific objections and counter proposals to the language contained in Plaintiffs’ proposed long- and short-form notices. SHORT-FORM NOTICE Plaintiffs’ Proposed Language Houlihan Lawrence’s Objection/Counter Proposal “The Court has made not decided who is right “The Court has not decided who is right or or wrong.” wrong.” “The Court has appointed Mintz, Levin, “The Court has appointed Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C. and Cohn, Ferris, Glovsky, and Popeo, P.C. and Boise Schiller Flexner LLP as Co-Class Boise Schiller Flexner LLP as Class Counsel Counsel. If you stay in the Class, you do not to represent the interests of the Class. need to hire your own lawyer to pursue the claims against Houlihan Lawrence. Class It is important for you to know that Class Counsel is working on behalf of the Class. Counsel represents both the buyer and the However, if you want to be represented by seller in your home transaction for the your own lawyer, you may hire one at your purposes of this lawsuit. own expense and cost.” If you wish to be represented by your own lawyer, you may hire one at your own expense and cost. If you wish to stay in the Class and be represented by Class Counsel, however, you are not required to hire your own lawyer and Class Counsel will continue to work on your behalf, and on the behalf of your transactional counterpart in the subject transaction.” FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 10 SHORT-FORM NOTICE Plaintiffs’ Proposed Language Houlihan Lawrence’s Objection/Counter Proposal “The Court has not yet scheduled the trial in “The Court has not yet scheduled the trial in this case, but it is expected that the trial will this case.” occur in 2023.” LONG-FORM NOTICE Page Plaintiffs’ Proposed Language Houlihan Lawrence’s Counter Proposal “This lawsuit seeks to recover the “This lawsuit seeks to recover the sales sales commissions that Plaintiffs commissions Houlihan Lawrence obtained allege Houlihan Lawrence wrongfully in connection with certain residential real 1 obtained in connection with the estate transactions in which Houlihan residential real estate transactions that Lawrence acted as the agent for both the are affected by this lawsuit.” buyer and seller.” “The date for the trial has not yet been “The date for the trial has not yet been 1 set, but the trial is currently expected set.” to occur in 2023.” FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 11 LONG-FORM NOTICE Page Plaintiffs’ Proposed Language Houlihan Lawrence’s Counter Proposal Houlihan Lawrence objects to Plaintiffs unilaterally drafting and disseminating a statement of Houlihan Lawrence’s “Houlihan Lawrence denies Plaintiffs’ defenses to class members. Houlihan claims and asserts multiple defenses, Lawrence’s evaluation of its defenses is including that Houlihan Lawrence’s ongoing, and Houlihan Lawrence requests 4 challenged actions were disclosed, it be given an opportunity to draft and consensual, and have not harmed submit to Plaintiffs its own statement Plaintiffs or caused any damages.” regarding its position. The Discovery Referee can resolve any remaining disputes following the parties’ communication on this point. “On January 24, 2022, the Supreme Court of the State of New York, Westchester “On January 24, 2022, the Supreme County granted Plaintiff’s motion for class Court of the State of New York, certification for breach of fiduciary duty Westchester County granted and violation of General Business Law § Plaintiff’s motion for class 349 against Houlihan Lawrence. Houlihan 4 certification for breach of fiduciary Lawrence has appealed this ruling. duty and violation of General Houlihan Lawrence’s appeal is pending, Business Law § 349 against Houlihan and the Supreme Court of the State of Lawrence.” New York, Westchester County’s January 24, 2022 ruling may be reversed or modified in the future.” FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 12 LONG-FORM NOTICE Page Plaintiffs’ Proposed Language Houlihan Lawrence’s Counter Proposal “Excluded from the Class are “Excluded from the Class are Houlihan Houlihan Lawrence and its parent 5 Lawrence, its parent company, and their company, HomeServices of America, employees . . . .” Inc., and their employees . . . .” “To exclude yourself, you must send a letter to the Notice Administrator requesting exclusion from Goldstein “To exclude yourself, fill out and send to et al. v. Houlihan/Lawrence, Inc. class the Notice Administrator the prepaid action, with your name, address, return postcard included in the notice you telephone number, email address and received in the mail. If you have not 6 signature. You must also identify the received a notice of this lawsuit in the mail property address for the transaction in or have otherwise misplaced your prepaid which Houlihan Lawrence acted as return postcard, please contact the Notice your real estate agent. Your exclusion Administrator at . . . .” request must be postmarked no later than [30 Days After the End of the 30-Day Notice Period].” FILED: WESTCHESTER COUNTY CLERK 06/17/2022 03:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1367 RECEIVED NYSCEF: 06/17/2022 William P. Harrington, Esq. April 20, 2022 Page 13 LONG-FORM NOTICE Page Plaintiffs’ Proposed Language Houlihan Lawrence’s Counter Proposal It is important for you to know that Class Counsel represents both the buyer and the seller in your home transaction for the If you stay in the Class, you do not purposes of this lawsuit. need to hire your own lawyer to If you wish to be represented by your own pursue the claims against Houlihan lawyer, you may hire one at your own Lawrence because Class Counsel is expense and cost. If you wish to stay in the 7 working on behalf of the Class. Class and be represented by Class However, if you want to be Counsel, however, you are not required to represented by your own lawyer, you hire your own lawyer and Class Counsel may hire one at your own expense and will continue to work on your behalf, and cost. on the behalf of your transactional counterpart in the subject transaction. “You will not be personally “You will not be personally responsible responsible for Plaintiffs’ attorneys’ for paying Plaintiffs’ attorneys’ fees and fees and costs, except to the extent costs, but Plaintiffs’ attorneys’ fees and 7 that the Court may approve or award costs may be deducted proportionally from any such fees and costs to Class any recovery you may receive in this Counsel which would be paid out of action.” the recovery in this action, if any.” “The Court has not yet scheduled the “The Court has not yet sch