Preview
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
Exhibit A
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
2 - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators
3 of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf
of themselves and all others similarly situated,
4
Plaintiffs,
5 - v. - Index No. 60767/2018
6 HOULIHAN/LAWRENCE, INC.,
7 Defendant.
- -x
8 December 20, 2022
9 111 Dr. Martin Luther King Jr. Blvd
White Plains, New York 10601
10
HONORABLE LINDA S. JAMIESON,
11 Justice
12 A P P E A R A N C E S :
13 Attorney for the Plaintiffs:
14 JEREMY VEST, ESQ.
WILLIAMS. OHLEMEYER, ESQ.
15
Attorneys for the Defendant:
16
ALFRED E. DONNELLAN, ESQ.
17 LARA NELIDA, ESQ.
ROBERT D. MACGILL, ESQ.
18
Court-appointed Discovery Referee:
19
WILLIAM P. HARRINGTON, ESQ.
20
ALSO PRESENT:
21
Elizabeth Nunan, CEO, Houlihan/Lawrence
22 Stephen Jones, General Counsel, Houlihan/Lawrence
23
ERIC M. SANDERS, SENIOR COURT REPORTER
24 Westchester County Courthouse
(914) 824-5763
25 hereisyourtranscript@gmail.com/ By hand: Room 1431
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
2
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 MR. VEST: Jeremy Vest, Mintz, Levin, on behalf of
2 plaintiffs.
3 MR. OHLEMEYER: William S. Ohlemeyer,
4 Boies Schiller Flexner, for the plaintiffs.
5 MR. DONNELLAN: Alfred Donnellan,
6 De1Bello Donnellan Weingarten Wise & Wiederkehr, attorneys
7 for defendant.
8 MR. MACGILL: Good morning, Your Honor.
9 Rob MacGill of MacGill, P.C., along with my
10 partner, Matthew Ciulla.
11 MS. NELIDA: And Nelida Lara from
12 De1Bello Donnellan, for the defendant.
13 THE COURT: Good afternoon.
14 MR. DONNELLAN: Your Honor, I want to also
15 introduce, we have in the courtroom as well, Liz Nunan,
16 CEO of our client, Houlihan/Lawrence
17 THE COURT: Okay.
18 MR. DONNELLAN: and Stephen Jones, general
19 counsel.
20 THE COURT: Thank you.
21 Okay. Mr. Vest, I know you want to say something;
22 right?
23 MR. VEST: Yes, Your Honor, if I could, I'll begin
24 by just updating the Court on the status of discovery.
25 The class notice approved by the Court set an
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
3
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 expectation that the case would proceed to trial in 2023.
2 Pleased to report that we remain on schedule to do
3 just that.
4 With -- as the Court knows, the plaintiffs' motion
5 to confirm the 20th and 21st reports are pending before the
6 Court.
7 With the Court's confirmation of those reports,
8 plaintiffs will receive within 15 days a custodial
9 production from some of those most knowledgable about
10 Houlihan/Lawrence's dual-agency policies and practices; so
11 six of its leading sales agents, the managers of three of
12 its leading offices, and its former owner and chief
13 executive officer, Christopher Miles.
14 That discovery won't complete document discovery.
15 The 22nd report filed last evening by
16 Mr. Harrington directs Houlihan/Lawrence to make additional
17 document production.
18 But what's important for scheduling purposes is
19 the custodial production that I mentioned a moment ago,
20 which is due within 15 days of the Court's confirmation of
21 the 20th and 21st reports, will allow the parties
22 THE COURT: Which I just uploaded.
23 MR. VEST: Excellent, Your Honor.
24 THE COURT: Okay. So -- and I think I gave you
25 till January 9th.
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
4
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 MR. VEST: For Houlihan/Lawrence
2 THE COURT: We moved it out --
3 MR. VEST: Okay.
4 THE COURT: -- because of the holidays.
5 MR. VEST: Thank you, Your Honor.
6 So with that, once we receive that production,
7 Your Honor, obviously we'll need a little bit of time to
8 review those documents. But we anticipate being in a
9 position to almost immediately commence depositions.
10 As the Court will recall, we completed pre-class
11 certification depositions within 90 days. We see no reason
12 why we can't do that again during merits discovery.
13 And so with that schedule, that will allow
14 for completion of deposition discovery by the end of
15 the first quarter of 2023.
16 The parties should then be able to complete all
17 expert discovery during the second quarter of 2023.
18 The Court's confirmation of the 16th report
19 already recognized that Commercial Division Rule 13 requires
20 all expert discovery to be completed within four months.
21 And so with that, we expect that we should be in a
22 position to file a note of issue and certificate of
23 readiness with the Court by July 1, 2023.
24 Which raises question, what could slow us down?
25 And obviously the answer is, the, quote, unique
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
5
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 and unfortunate discovery dysfunction, that Mr. Harrington
2 recognized in the 20th report, continues to mar the case.
3 We believe that Houlihan/Lawrence, if left
4 unchecked, will continue to, quote, litigate virtually every
5 conceivable discovery issue in this matter.
6 So we ask two things of the Court:
7 First, we ask that the Court set today a firm
8 deadline of July 1, 2023, for the filing of the note of
9 issue and certificate of readiness.
10 But, second, we also ask the Court to hold
11 bimonthly status conferences between now and then, to allow
12 for the prompt resolution of any disputes between the
13 parties, because I think it's evident in -- if you read
14 the --
15 THE COURT: That's not why we have a discovery
16 referee.
17 MR. VEST: Well, it is, Your Honor. But I think,
18 as is evident from the 20th report, Houlihan/Lawrence
19 continues to use the slow-moving confirmation process to
20 stall the progress of discovery.
21 We think that, by the Court holding bimonthly
22 status conferences, will allow for Mr. Harrington to report
23 either at or shortly before those bimonthly status
24 conferences, and for the Court to confirm or reject
25 Mr. Harrington's rulings in court on the record.
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
6
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 We think that that will not only expedite
2 resolution of disputes, but, in fact, it will reduce the
3 number of disputes, because it will eliminate the incentive
4 that Houlihan/Lawrence has to manufacture disputes, simply
5 because the confirmation process takes six to eight weeks to
6 run its course.
7 So I'll pause there.
8 I think that brings the Court up to date on the
9 status of discovery, and we'll turn it over to the Court or
10 counsel for defendant.
11 THE COURT: Mr. Donnellan?
12 MR. DONNELLAN: Thank you, Your Honor.
13 Your Honor, we also requested today's
14 conference -- or, pre-motion conference on two motions that
15 we wanted to bring.
16 And if I may address those first, and we may be
17 able to eliminate one?
18 We have a -- we had a proposal -- we had a
19 discussion with counsel, earlier this morning, a proposal to
20 compromise on the scheduling for those motions, as well as
21 for the production that -- that we're just speaking about.
22 But -- so what our proposal is, one motion is to
23 amend the class relating to those sellers and buyers who
24 have actually signed two written warnings regarding the dual
25 representation.
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
7
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 When this case was certified for class action, it
2 was principally based upon that the sellers and buyers had
3 received this 435 notice, and the Court determined that
4 wasn't good enough; that they needed another notice, and
5 that could be oral or written.
6 It was contemplated that it may have been oral.
7 And there was even discussion about a script that may have
8 been used, and so forth. And that was the commonality of
9 the class.
10 What happened was, we needed to then go and
11 produce an enormous amount of documents.
12 And during the summer, they went through hundreds
13 and hundreds of thousands of documents that were in boxes in
14 a warehouse, and they actually got the paper files for these
15 sales transactions.
16 And that's the only place where these documents
17 were available. They were not available electronically.
18 It took months to put it together. They needed to
19 be scanned and they needed to be reviewed.
20 But upon that review, we found out that, actually,
21 many thousands of the buyers and sellers actually signed
22 another document.
23 So in addition to the 435, some, maybe not all,
24 you know, signed another document that clearly says that
25 there is -- there's dual agency, and they're waiving their
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
8
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 rights with respect to that, and they signed that document.
2 So we don't believe that they are part of the
3 class, that actually -- the ones that we refer to as
4 "double written warning." And that's we would like to
5 make a motion to amend the class to not include those
6 parties that signed the double written warning documents.
7 And we propose to make that move, we can make that
8 motion this week and file it on Friday, make it returnable
9 as soon as the Court will permit, and whatever the best
10 schedule is.
11 And our goal would be to try and get that resolved
12 as soon as possible so that the class notice can go out.
13_ That's important because, if the class notice can
14 go out quick~y, the other motion that we propose to make,
15 which is the one-way intervention, would not be necessary,
16 because that's only necessary until the class notice goes
17 out.
18 So if we can resolve the -- who the class is, the
19 class notice goes out say February 1st, beginning of
20 February or whatever, it won't be necessary to make the
21 other motion, because it would essentially be moot.
22 On the document issues, our clients have attempted
23 to go through the search terms, and they're producing
24 enormous amounts of hits.
25 And that's why we're proposing -- we proposed a
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
9
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 compromise: Still use the same search terms, but allow us
2 to use TAR to reduce the number of hits.
3 Using the same search terms, get a production out
4 in early February, with that methodology. And Mr. Vest
5 could reserve his rights and object then.
6 We have motion practices to deal with. We would
7 still be getting an enormous production out in early
8 February, an enormous production. That's going to take down
9 the time to review.
10 And if there's and if there's a time that he
11 has objections, then we can deal with it then.
12 But the problem is, is getting 20,000 hits on one
13 search term, 10,000 hits on another search term, it simply
14 is not practical for us to review those documents at all in
~5 a matter of a few weeks, in order to just produce them. We
16 would, literally, be required to produce documents without
17 seeing them --
18 (Clarification requested by the court reporter.)
19 MR. DONNELLAN: -- without seeing them ourselves.
20 Using technology-assisted review, we would be able
21 to reduce the number of those hits and responsive documents,
22 and get them out. We think that would be the most efficient
23 way to do it.
24 So that's our proposal. I know Mr. Vest objects
25 to that.
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
10
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 And as far as we know, we have not been slow
2 playing this at all.
3 We have certain documentation that we could show,
4 about the 8,700 hours that was spent on producing the
5 documents that we have produced, mostly the papers files;
6 spending hundreds of thousands of dollars, reviewing those
7 documents, and we produced 441,000 pages; and
8 9,477 structured data records.
9 It's been an enormous task, and costing hundreds
10 of thousands of dollars.
11 We're not complaining about it. We're just saying
12 that we are doing it; we're not sitting back, doing nothing.
13 We actually are doing substantial amounts of work.
14 THE COURT: Mr. Vest?
15 MR. VEST: Yes, Your Honor.
16 I think the document issues raised by
17 Mr. Donnellan are moot, in light of the Court's combination
18 of the 20th and 21st, so I won't revisit that.
19 Let me address for a moment the motion to amend
20 the class definition.
21 Houlihan/Lawrence's request manages to do the rare
22 feat of being both belated and premature.
23 It is, in effect, just another motion to
24 reconsider the Court's class-certification determination.
25 Mr. Donnellan suggests that they could have only
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
11
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 discovered this additional disclosure form that they used by
2 reviewing the transaction files.
3 That's something that's simply not true.
4 You can look at page 10 of Houlihan/Lawrence's
5 opposition to the class certification motion. They cite to
6 this same disclosure form that indicates that their
7 there's -- the client will receive undivided loyalty unless
8 in dual agency.
9 See, I looked this morning at their training
10 manual. This is a mandatory form that they require to be in
11 every transaction file.
12 So they both knew about this form, brought it to
13 the Court's attention at class certification, and the Court
14 found that it was insufficient to warrant denial of class
15 certification.
16 If they wanted to revisit that ruling with the
17 Court, ~they should have done so in a timely fashion by
18 bringing it as a motion for reconsideration.
19 To the extent that they're going to be allowed to
20 bring the motion a second time is plainly a motion for
21 summary judgment. And it is in that sense, premature.
22 You know, I find it -- I think Houlihan/Lawrence
23 does the Court a grave disservice by inviting the Court to
24 reach the merits of this proposed motion now, when, if you
25 look at the last argument made in their cross-motion to
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
12
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 reject the 20th report and the statements made in their
2 November 21st correspondence to the Court, they suggest that
3 the Court is already dangerously close to making merits
4 determinations that would violate their rights by making
5 merits determinations prior to the issuance of class notice.
6 And yet, in the very next breath, they ask the
7 Court to resolve what is, in effect, a de facto motion for
8 summary judgment before class notice is issued.
9 It is also, of course, Your Honor, substantively
10 without merit, for any number of reasons.
11 The most obvious for the Court to appreciate today
12 is that plaintiffs' case does not rest simply on the failure
13 to explain the consequences of the loss of undivided
14 loyalty, but it also includes the failure to disclose the
15 in-house bonus.
16 So even if this additional disclosure were
17 sufficient to discharge their obligation to explain the
18 consequences of the loss of undivided loyalty, it wouldn't
19 do anything to readdress the failure to disclose the
20 in-house bonus.
21 There is no suggestion, that either in this form
22 or any other form, that Houlihan/Lawrence has a policy and
23 practice of disclosing that in-house bonus.
24 So even if they were to bring this motion, even if
25 the Court were to accept this form was sufficient, the
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
13
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 discharge of their obligation to explain the consequences of
2 undivided loyalty, it still does not entitle them to relief
3 because it doesn't address the failure to disclose the
4 in-house bonus.
5 Your Honor, the parties should focus their
6 attention on the completion of discovery.
7 If there is a motion to made, it can be made
8 during the motion for summary judgment phase.
9 Thank you, Your Honor.
10 THE COURT: Thank you.
11 Anything else, Mr. MacGill?
12 MR. MACGILL: Yeah. Good afternoon, Your Honor.
13 Just to clarify a few things:
14 You know, the suggestion is that the company,
15 Houlihan/Lawrence, has not done anything, and we've done
16 nothing but be involved with, I think the phrase was,
17 "discovery dysfunction."
18 The CEO of the company is here for a reason. She
19 would like to understand, you know, better the proceedings.
20 Our company spent 8,783 hours this summer
21 collecting files paper files, scanning those files.
22 Those files that we pulled out, Your Honor, filled up
23 700 bankers boxes. They were all scanned. We produced
24 441,000 pages. And, in addition, we produced
25 9477 structured data records.
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
14
Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc.
1 So in terms of the work that was done this summer,
2 and spring, it was massive.
3 Now the one thing the Court did order, that's not
4 been done at all, you may remember that you certified a
5 class, of course, in January. And one of the things you
6 directed is, "get notice out." That was January 20th.
7 We're 10 -- we're 11 months later, there has been
8 no class notice sent.
9 With respect to whether we leaned on our shovel or
10 not, to be precise, we produced, on April 6th, the
11 structured-class list data. April 6th of this year is when
12 we produced that.
13 April 18th, we produced all the bonus-eligibility
14 data -- pardon me -- bonus-eligibility data, and on
15 August 18th, all of the post-transaction data.
_16 So we have worked for months and months, and,
17 literally, turned our company upside down, to provide
18 information, data, copies of paper files, in connection with
19 the transaction.
20 One of the things that's really important here,
21 with respect to this Court's order, here's what the Court
22 said on April 17, 2019:
23 You determined, Your Honor, that the mere signing
24 of the statutorily required Section 443 agency disclosure
25 form is insufficient.
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023
Preview
FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 Exhibit A FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER 2 - - - - - - - - - - - - - - - - - - - - - - - - - - - -x PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators 3 of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of themselves and all others similarly situated, 4 Plaintiffs, 5 - v. - Index No. 60767/2018 6 HOULIHAN/LAWRENCE, INC., 7 Defendant. - -x 8 December 20, 2022 9 111 Dr. Martin Luther King Jr. Blvd White Plains, New York 10601 10 HONORABLE LINDA S. JAMIESON, 11 Justice 12 A P P E A R A N C E S : 13 Attorney for the Plaintiffs: 14 JEREMY VEST, ESQ. WILLIAMS. OHLEMEYER, ESQ. 15 Attorneys for the Defendant: 16 ALFRED E. DONNELLAN, ESQ. 17 LARA NELIDA, ESQ. ROBERT D. MACGILL, ESQ. 18 Court-appointed Discovery Referee: 19 WILLIAM P. HARRINGTON, ESQ. 20 ALSO PRESENT: 21 Elizabeth Nunan, CEO, Houlihan/Lawrence 22 Stephen Jones, General Counsel, Houlihan/Lawrence 23 ERIC M. SANDERS, SENIOR COURT REPORTER 24 Westchester County Courthouse (914) 824-5763 25 hereisyourtranscript@gmail.com/ By hand: Room 1431 FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 2 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 MR. VEST: Jeremy Vest, Mintz, Levin, on behalf of 2 plaintiffs. 3 MR. OHLEMEYER: William S. Ohlemeyer, 4 Boies Schiller Flexner, for the plaintiffs. 5 MR. DONNELLAN: Alfred Donnellan, 6 De1Bello Donnellan Weingarten Wise & Wiederkehr, attorneys 7 for defendant. 8 MR. MACGILL: Good morning, Your Honor. 9 Rob MacGill of MacGill, P.C., along with my 10 partner, Matthew Ciulla. 11 MS. NELIDA: And Nelida Lara from 12 De1Bello Donnellan, for the defendant. 13 THE COURT: Good afternoon. 14 MR. DONNELLAN: Your Honor, I want to also 15 introduce, we have in the courtroom as well, Liz Nunan, 16 CEO of our client, Houlihan/Lawrence 17 THE COURT: Okay. 18 MR. DONNELLAN: and Stephen Jones, general 19 counsel. 20 THE COURT: Thank you. 21 Okay. Mr. Vest, I know you want to say something; 22 right? 23 MR. VEST: Yes, Your Honor, if I could, I'll begin 24 by just updating the Court on the status of discovery. 25 The class notice approved by the Court set an FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 3 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 expectation that the case would proceed to trial in 2023. 2 Pleased to report that we remain on schedule to do 3 just that. 4 With -- as the Court knows, the plaintiffs' motion 5 to confirm the 20th and 21st reports are pending before the 6 Court. 7 With the Court's confirmation of those reports, 8 plaintiffs will receive within 15 days a custodial 9 production from some of those most knowledgable about 10 Houlihan/Lawrence's dual-agency policies and practices; so 11 six of its leading sales agents, the managers of three of 12 its leading offices, and its former owner and chief 13 executive officer, Christopher Miles. 14 That discovery won't complete document discovery. 15 The 22nd report filed last evening by 16 Mr. Harrington directs Houlihan/Lawrence to make additional 17 document production. 18 But what's important for scheduling purposes is 19 the custodial production that I mentioned a moment ago, 20 which is due within 15 days of the Court's confirmation of 21 the 20th and 21st reports, will allow the parties 22 THE COURT: Which I just uploaded. 23 MR. VEST: Excellent, Your Honor. 24 THE COURT: Okay. So -- and I think I gave you 25 till January 9th. FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 4 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 MR. VEST: For Houlihan/Lawrence 2 THE COURT: We moved it out -- 3 MR. VEST: Okay. 4 THE COURT: -- because of the holidays. 5 MR. VEST: Thank you, Your Honor. 6 So with that, once we receive that production, 7 Your Honor, obviously we'll need a little bit of time to 8 review those documents. But we anticipate being in a 9 position to almost immediately commence depositions. 10 As the Court will recall, we completed pre-class 11 certification depositions within 90 days. We see no reason 12 why we can't do that again during merits discovery. 13 And so with that schedule, that will allow 14 for completion of deposition discovery by the end of 15 the first quarter of 2023. 16 The parties should then be able to complete all 17 expert discovery during the second quarter of 2023. 18 The Court's confirmation of the 16th report 19 already recognized that Commercial Division Rule 13 requires 20 all expert discovery to be completed within four months. 21 And so with that, we expect that we should be in a 22 position to file a note of issue and certificate of 23 readiness with the Court by July 1, 2023. 24 Which raises question, what could slow us down? 25 And obviously the answer is, the, quote, unique FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 5 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 and unfortunate discovery dysfunction, that Mr. Harrington 2 recognized in the 20th report, continues to mar the case. 3 We believe that Houlihan/Lawrence, if left 4 unchecked, will continue to, quote, litigate virtually every 5 conceivable discovery issue in this matter. 6 So we ask two things of the Court: 7 First, we ask that the Court set today a firm 8 deadline of July 1, 2023, for the filing of the note of 9 issue and certificate of readiness. 10 But, second, we also ask the Court to hold 11 bimonthly status conferences between now and then, to allow 12 for the prompt resolution of any disputes between the 13 parties, because I think it's evident in -- if you read 14 the -- 15 THE COURT: That's not why we have a discovery 16 referee. 17 MR. VEST: Well, it is, Your Honor. But I think, 18 as is evident from the 20th report, Houlihan/Lawrence 19 continues to use the slow-moving confirmation process to 20 stall the progress of discovery. 21 We think that, by the Court holding bimonthly 22 status conferences, will allow for Mr. Harrington to report 23 either at or shortly before those bimonthly status 24 conferences, and for the Court to confirm or reject 25 Mr. Harrington's rulings in court on the record. FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 6 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 We think that that will not only expedite 2 resolution of disputes, but, in fact, it will reduce the 3 number of disputes, because it will eliminate the incentive 4 that Houlihan/Lawrence has to manufacture disputes, simply 5 because the confirmation process takes six to eight weeks to 6 run its course. 7 So I'll pause there. 8 I think that brings the Court up to date on the 9 status of discovery, and we'll turn it over to the Court or 10 counsel for defendant. 11 THE COURT: Mr. Donnellan? 12 MR. DONNELLAN: Thank you, Your Honor. 13 Your Honor, we also requested today's 14 conference -- or, pre-motion conference on two motions that 15 we wanted to bring. 16 And if I may address those first, and we may be 17 able to eliminate one? 18 We have a -- we had a proposal -- we had a 19 discussion with counsel, earlier this morning, a proposal to 20 compromise on the scheduling for those motions, as well as 21 for the production that -- that we're just speaking about. 22 But -- so what our proposal is, one motion is to 23 amend the class relating to those sellers and buyers who 24 have actually signed two written warnings regarding the dual 25 representation. FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 7 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 When this case was certified for class action, it 2 was principally based upon that the sellers and buyers had 3 received this 435 notice, and the Court determined that 4 wasn't good enough; that they needed another notice, and 5 that could be oral or written. 6 It was contemplated that it may have been oral. 7 And there was even discussion about a script that may have 8 been used, and so forth. And that was the commonality of 9 the class. 10 What happened was, we needed to then go and 11 produce an enormous amount of documents. 12 And during the summer, they went through hundreds 13 and hundreds of thousands of documents that were in boxes in 14 a warehouse, and they actually got the paper files for these 15 sales transactions. 16 And that's the only place where these documents 17 were available. They were not available electronically. 18 It took months to put it together. They needed to 19 be scanned and they needed to be reviewed. 20 But upon that review, we found out that, actually, 21 many thousands of the buyers and sellers actually signed 22 another document. 23 So in addition to the 435, some, maybe not all, 24 you know, signed another document that clearly says that 25 there is -- there's dual agency, and they're waiving their FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 8 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 rights with respect to that, and they signed that document. 2 So we don't believe that they are part of the 3 class, that actually -- the ones that we refer to as 4 "double written warning." And that's we would like to 5 make a motion to amend the class to not include those 6 parties that signed the double written warning documents. 7 And we propose to make that move, we can make that 8 motion this week and file it on Friday, make it returnable 9 as soon as the Court will permit, and whatever the best 10 schedule is. 11 And our goal would be to try and get that resolved 12 as soon as possible so that the class notice can go out. 13_ That's important because, if the class notice can 14 go out quick~y, the other motion that we propose to make, 15 which is the one-way intervention, would not be necessary, 16 because that's only necessary until the class notice goes 17 out. 18 So if we can resolve the -- who the class is, the 19 class notice goes out say February 1st, beginning of 20 February or whatever, it won't be necessary to make the 21 other motion, because it would essentially be moot. 22 On the document issues, our clients have attempted 23 to go through the search terms, and they're producing 24 enormous amounts of hits. 25 And that's why we're proposing -- we proposed a FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 9 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 compromise: Still use the same search terms, but allow us 2 to use TAR to reduce the number of hits. 3 Using the same search terms, get a production out 4 in early February, with that methodology. And Mr. Vest 5 could reserve his rights and object then. 6 We have motion practices to deal with. We would 7 still be getting an enormous production out in early 8 February, an enormous production. That's going to take down 9 the time to review. 10 And if there's and if there's a time that he 11 has objections, then we can deal with it then. 12 But the problem is, is getting 20,000 hits on one 13 search term, 10,000 hits on another search term, it simply 14 is not practical for us to review those documents at all in ~5 a matter of a few weeks, in order to just produce them. We 16 would, literally, be required to produce documents without 17 seeing them -- 18 (Clarification requested by the court reporter.) 19 MR. DONNELLAN: -- without seeing them ourselves. 20 Using technology-assisted review, we would be able 21 to reduce the number of those hits and responsive documents, 22 and get them out. We think that would be the most efficient 23 way to do it. 24 So that's our proposal. I know Mr. Vest objects 25 to that. FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 10 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 And as far as we know, we have not been slow 2 playing this at all. 3 We have certain documentation that we could show, 4 about the 8,700 hours that was spent on producing the 5 documents that we have produced, mostly the papers files; 6 spending hundreds of thousands of dollars, reviewing those 7 documents, and we produced 441,000 pages; and 8 9,477 structured data records. 9 It's been an enormous task, and costing hundreds 10 of thousands of dollars. 11 We're not complaining about it. We're just saying 12 that we are doing it; we're not sitting back, doing nothing. 13 We actually are doing substantial amounts of work. 14 THE COURT: Mr. Vest? 15 MR. VEST: Yes, Your Honor. 16 I think the document issues raised by 17 Mr. Donnellan are moot, in light of the Court's combination 18 of the 20th and 21st, so I won't revisit that. 19 Let me address for a moment the motion to amend 20 the class definition. 21 Houlihan/Lawrence's request manages to do the rare 22 feat of being both belated and premature. 23 It is, in effect, just another motion to 24 reconsider the Court's class-certification determination. 25 Mr. Donnellan suggests that they could have only FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 11 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 discovered this additional disclosure form that they used by 2 reviewing the transaction files. 3 That's something that's simply not true. 4 You can look at page 10 of Houlihan/Lawrence's 5 opposition to the class certification motion. They cite to 6 this same disclosure form that indicates that their 7 there's -- the client will receive undivided loyalty unless 8 in dual agency. 9 See, I looked this morning at their training 10 manual. This is a mandatory form that they require to be in 11 every transaction file. 12 So they both knew about this form, brought it to 13 the Court's attention at class certification, and the Court 14 found that it was insufficient to warrant denial of class 15 certification. 16 If they wanted to revisit that ruling with the 17 Court, ~they should have done so in a timely fashion by 18 bringing it as a motion for reconsideration. 19 To the extent that they're going to be allowed to 20 bring the motion a second time is plainly a motion for 21 summary judgment. And it is in that sense, premature. 22 You know, I find it -- I think Houlihan/Lawrence 23 does the Court a grave disservice by inviting the Court to 24 reach the merits of this proposed motion now, when, if you 25 look at the last argument made in their cross-motion to FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 12 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 reject the 20th report and the statements made in their 2 November 21st correspondence to the Court, they suggest that 3 the Court is already dangerously close to making merits 4 determinations that would violate their rights by making 5 merits determinations prior to the issuance of class notice. 6 And yet, in the very next breath, they ask the 7 Court to resolve what is, in effect, a de facto motion for 8 summary judgment before class notice is issued. 9 It is also, of course, Your Honor, substantively 10 without merit, for any number of reasons. 11 The most obvious for the Court to appreciate today 12 is that plaintiffs' case does not rest simply on the failure 13 to explain the consequences of the loss of undivided 14 loyalty, but it also includes the failure to disclose the 15 in-house bonus. 16 So even if this additional disclosure were 17 sufficient to discharge their obligation to explain the 18 consequences of the loss of undivided loyalty, it wouldn't 19 do anything to readdress the failure to disclose the 20 in-house bonus. 21 There is no suggestion, that either in this form 22 or any other form, that Houlihan/Lawrence has a policy and 23 practice of disclosing that in-house bonus. 24 So even if they were to bring this motion, even if 25 the Court were to accept this form was sufficient, the FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 13 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 discharge of their obligation to explain the consequences of 2 undivided loyalty, it still does not entitle them to relief 3 because it doesn't address the failure to disclose the 4 in-house bonus. 5 Your Honor, the parties should focus their 6 attention on the completion of discovery. 7 If there is a motion to made, it can be made 8 during the motion for summary judgment phase. 9 Thank you, Your Honor. 10 THE COURT: Thank you. 11 Anything else, Mr. MacGill? 12 MR. MACGILL: Yeah. Good afternoon, Your Honor. 13 Just to clarify a few things: 14 You know, the suggestion is that the company, 15 Houlihan/Lawrence, has not done anything, and we've done 16 nothing but be involved with, I think the phrase was, 17 "discovery dysfunction." 18 The CEO of the company is here for a reason. She 19 would like to understand, you know, better the proceedings. 20 Our company spent 8,783 hours this summer 21 collecting files paper files, scanning those files. 22 Those files that we pulled out, Your Honor, filled up 23 700 bankers boxes. They were all scanned. We produced 24 441,000 pages. And, in addition, we produced 25 9477 structured data records. FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023 14 Pamela Goldstein, et al., v. Houlihan/Lawrence, Inc. 1 So in terms of the work that was done this summer, 2 and spring, it was massive. 3 Now the one thing the Court did order, that's not 4 been done at all, you may remember that you certified a 5 class, of course, in January. And one of the things you 6 directed is, "get notice out." That was January 20th. 7 We're 10 -- we're 11 months later, there has been 8 no class notice sent. 9 With respect to whether we leaned on our shovel or 10 not, to be precise, we produced, on April 6th, the 11 structured-class list data. April 6th of this year is when 12 we produced that. 13 April 18th, we produced all the bonus-eligibility 14 data -- pardon me -- bonus-eligibility data, and on 15 August 18th, all of the post-transaction data. _16 So we have worked for months and months, and, 17 literally, turned our company upside down, to provide 18 information, data, copies of paper files, in connection with 19 the transaction. 20 One of the things that's really important here, 21 with respect to this Court's order, here's what the Court 22 said on April 17, 2019: 23 You determined, Your Honor, that the mere signing 24 of the statutorily required Section 443 agency disclosure 25 form is insufficient. FILED: WESTCHESTER COUNTY CLERK 01/30/2023 03:36 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1516 RECEIVED NYSCEF: 01/30/2023