On July 14, 2018 a
Letter,Correspondence
was filed
involving a dispute between
Ellyn Berk,
Pamela Goldstein,
Paul Benjamin,
Tony Berk,
and
Houlihan Lawrence Inc.,
for Commercial Division
in the District Court of Westchester County.
Preview
Jeremy C. Vest Chrysler Center
212 692 6718 919 Third Avenue
jvest@mintz.com New York, NY 10022
212 935 3000
mintz.com
February 8, 2023
Via NYSCEF
Hon. Linda S. Jamieson
Supreme Court of the State of New York
Westchester County
111 Dr. Martin Luther King, Jr. Blvd.
White Plains, NY 106010
Re: Goldstein et al. v. Houlihan/Lawrence Inc.,
No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.)
Dear Justice Jamieson:
I write in further support of Class Plaintiffs’ request for leave to move for
sanctions against Houlihan Lawrence for its willful violation of the Order confirming
the 22nd R&R (Dkt. 1518).
Houlihan Lawrence does not dispute that the Court ordered it to produce a
spreadsheet identifying the recipient and amount of every In-House Bonus (“Bonus”)
payment made during the Class Period, nor that it failed to do so (Dkt. 1520). That
alone confirms Houlihan Lawrence’s defiance of the Court’s authority.
Houlihan Lawrence says that it produced “more than what was contemplated
or required” by the 22nd R&R without acknowledging the only relevant fact—its
“structured data” does not permit Class Plaintiffs to identify its Bonus payments.
The Court can look at a fair sample of that unintelligible data (Ex. 1) to see that it
does not meet the Court’s expectation that “[t]he HLI agents who actually received
in-House Bonuses during the class period will be identified” (Dkt. 1496 at 4).
Houlihan Lawrence does not need affidavits to knock down the strawman that
it did not maintain a single ordinary-course business record of its Bonus payments.
That has not been in dispute since class certification when Polly Parrott, Houlihan
Lawrence’s Commissions Processor, described the manual process necessary to
identify Houlihan Lawrence’s Bonus payments (Dkt. 963 at § I.B.1). Class Plaintiffs
took no issue with that part of Ms. Parrott’s affidavit, arguing instead only that
Houlihan Lawrence’s poor recordkeeping could not defeat class certification because
the parties could complete that process during merits discovery (Dkt. 1037 at § 2.2).
BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
MINTZ
Hon. Linda S. Jamieson
February 8, 2023
Page 2
In the briefing that led to the 22nd R&R, Houlihan Lawrence (disingenuously)
accused Class Plaintiffs of presupposing that “there is a button tha[t] can be pushed
to automatically generate a list” of transactions in which it paid a Bonus (Ex. 2 at 5).
Class Plaintiffs, however, acknowledged again in reply that Houlihan Lawrence
would need to follow Ms. Parrott’s process to identify Bonus payments (Ex. 3 at 2-4).
The 22nd R&R did not assume that Houlihan Lawrence had push-button
capability, either. To the contrary, the 22nd R&R recognized that Houlihan
Lawrence would need to “cull” information about its Bonus payments from various
forms of ESI “via a manual review” (Dkt. 1496 at 3). The 22nd R&R directed
Houlihan Lawrence to identify its Bonus payments because it conceded they were
identifiable “via the ESI analysis” described by Ms. Parrott (Id.) (emphasis added).
The only real question since the start of merits discovery has been who would
conduct this “ESI analysis.” Class Plaintiffs intended to do it when they sought
Transaction Detail Sheets for every dual-agent transaction and Houlihan Lawrence’s
Bonus-eligibility rosters—the ordinary-course business records that Ms. Parrott said
she would need to consult to identify Houlihan Lawrence’s Bonus payments (Ex. 3 at
3-4). However, after Houlihan Lawrence defied the 16th R&R, by refusing to produce
the Court-ordered Bonus-eligibility rosters, Class Plaintiffs sought to shift the burden
to Houlihan Lawrence (where it belonged all along), by seeking its production instead
of an Excel spreadsheet identifying the recipient and amount of every Bonus
payment. Houlihan Lawrence, in turn, tried then to make it a matter for the experts.
The 22nd R&R resolved the issue in Class Plaintiffs’ favor by directing
Houlihan Lawrence to conduct the “ESI analysis” necessary to identify its Bonus
payments. Its brazen attempt to escape accountability for defying the Court, by re-
litigating whether it is “obligated to create documentation that does not exist in the
ordinary course of business” (Dkt. 1519), further shows why sanctions are “clearly
warranted.” Santini v. Alexander Grant & Co., 245 A.D.2d 30, 31 (1st Dep’t 1997).
Accordingly, the Court should refer Class Plaintiffs’ leave request to Mr.
Harrington for determination today in the 24th R&R. Houlihan Lawrence can try
again to justify its misconduct but in opposition to Class Plaintiffs’ sanctions motion.
Respectfully,
Jeremy Vest
Cc: Counsel for Defendant (via NYSCEF)
Document Filed Date
February 08, 2023
Case Filing Date
July 14, 2018
Category
Commercial Division
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Jeremy C. Vest Chrysler Center 212 692 6718 919 Third Avenue jvest@mintz.com New York, NY 10022 212 935 3000 mintz.com February 8, 2023 Via NYSCEF Hon. Linda S. Jamieson Supreme Court of the State of New York Westchester County 111 Dr. Martin Luther King, Jr. Blvd. White Plains, NY 106010 Re: Goldstein et al. v. Houlihan/Lawrence Inc., No. 60767/2018 (N.Y. Sup. Ct., Westchester Cty.) Dear Justice Jamieson: I write in further support of Class Plaintiffs’ request for leave to move for sanctions against Houlihan Lawrence for its willful violation of the Order confirming the 22nd R&R (Dkt. 1518). Houlihan Lawrence does not dispute that the Court ordered it to produce a spreadsheet identifying the recipient and amount of every In-House Bonus (“Bonus”) payment made during the Class Period, nor that it failed to do so (Dkt. 1520). That alone confirms Houlihan Lawrence’s defiance of the Court’s authority. Houlihan Lawrence says that it produced “more than what was contemplated or required” by the 22nd R&R without acknowledging the only relevant fact—its “structured data” does not permit Class Plaintiffs to identify its Bonus payments. The Court can look at a fair sample of that unintelligible data (Ex. 1) to see that it does not meet the Court’s expectation that “[t]he HLI agents who actually received in-House Bonuses during the class period will be identified” (Dkt. 1496 at 4). Houlihan Lawrence does not need affidavits to knock down the strawman that it did not maintain a single ordinary-course business record of its Bonus payments. That has not been in dispute since class certification when Polly Parrott, Houlihan Lawrence’s Commissions Processor, described the manual process necessary to identify Houlihan Lawrence’s Bonus payments (Dkt. 963 at § I.B.1). Class Plaintiffs took no issue with that part of Ms. Parrott’s affidavit, arguing instead only that Houlihan Lawrence’s poor recordkeeping could not defeat class certification because the parties could complete that process during merits discovery (Dkt. 1037 at § 2.2). BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. MINTZ Hon. Linda S. Jamieson February 8, 2023 Page 2 In the briefing that led to the 22nd R&R, Houlihan Lawrence (disingenuously) accused Class Plaintiffs of presupposing that “there is a button tha[t] can be pushed to automatically generate a list” of transactions in which it paid a Bonus (Ex. 2 at 5). Class Plaintiffs, however, acknowledged again in reply that Houlihan Lawrence would need to follow Ms. Parrott’s process to identify Bonus payments (Ex. 3 at 2-4). The 22nd R&R did not assume that Houlihan Lawrence had push-button capability, either. To the contrary, the 22nd R&R recognized that Houlihan Lawrence would need to “cull” information about its Bonus payments from various forms of ESI “via a manual review” (Dkt. 1496 at 3). The 22nd R&R directed Houlihan Lawrence to identify its Bonus payments because it conceded they were identifiable “via the ESI analysis” described by Ms. Parrott (Id.) (emphasis added). The only real question since the start of merits discovery has been who would conduct this “ESI analysis.” Class Plaintiffs intended to do it when they sought Transaction Detail Sheets for every dual-agent transaction and Houlihan Lawrence’s Bonus-eligibility rosters—the ordinary-course business records that Ms. Parrott said she would need to consult to identify Houlihan Lawrence’s Bonus payments (Ex. 3 at 3-4). However, after Houlihan Lawrence defied the 16th R&R, by refusing to produce the Court-ordered Bonus-eligibility rosters, Class Plaintiffs sought to shift the burden to Houlihan Lawrence (where it belonged all along), by seeking its production instead of an Excel spreadsheet identifying the recipient and amount of every Bonus payment. Houlihan Lawrence, in turn, tried then to make it a matter for the experts. The 22nd R&R resolved the issue in Class Plaintiffs’ favor by directing Houlihan Lawrence to conduct the “ESI analysis” necessary to identify its Bonus payments. Its brazen attempt to escape accountability for defying the Court, by re- litigating whether it is “obligated to create documentation that does not exist in the ordinary course of business” (Dkt. 1519), further shows why sanctions are “clearly warranted.” Santini v. Alexander Grant & Co., 245 A.D.2d 30, 31 (1st Dep’t 1997). Accordingly, the Court should refer Class Plaintiffs’ leave request to Mr. Harrington for determination today in the 24th R&R. Houlihan Lawrence can try again to justify its misconduct but in opposition to Class Plaintiffs’ sanctions motion. Respectfully, Jeremy Vest Cc: Counsel for Defendant (via NYSCEF)