Preview
FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023
EXHIBIT 5
FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023
Jeremy C. Vest Chrysler Center
212 692 6718 919 Third Avenue
jvest@mintz.com New York, NY 10022
212 935 3000
mintz.com
January 20, 2023
Via E-Mail
Mr. William P. Harrington
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 Mr. Harrington:
Class Plaintiffs do not seek “some kind of emergency” ruling on their January
6, 2022 letter. Class Plaintiffs simply recognize that, while the December 31, 2022
discovery cutoff has passed, there will not be any “substantial relief” from that
deadline.1 Accordingly, in seeking prompt resolution of the foregoing disputes, Class
Plaintiffs proceed only as directed by the Discovery Referee—and by the Court who
recently warned that this case cannot keep “dragging” and “going on and on.”2
1. Class action website
Houlihan Lawrence does not cite a case from any court in the country directing
class counsel to take affirmative steps to suppress a class action website from
appearing in Google search results or on internet archive websites, and Class
Plaintiffs’ exhaustive search did not turn one up either.
Houlihan Lawrence asserts that the Court took this apparently unprecedented
action when it denied Class Plaintiffs’ request to place “digital banner
advertisements” on various websites.3 Of course, if Houlihan Lawrence believed
116th R&R, June 10, 2022 (Dkt. 1356) at 6 (“[T]he parties should proceed with the
expectation that there will not be any extraordinary delay of this litigation or
substantial relief from existing discovery deadlines.”)
2 Id. at 21:19-21 (The Court: “[T]his keeps dragging and we keep going on and on.”)
3See Pls. Mot. for Class Notice Plan Approval, May 26, 2022 (“Class Notice Motion”)
(Dkt. 1354) at § 2.2.1. (seeking approval of digital banner advertisements); see also
BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
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that, when Class Plaintiffs asked the Court to rule on this issue at the December 20,
2022 status conference, Houlihan Lawrence would not have rushed to argue that the
Court had referred it to the Discovery Referee.4 A cursory review of the briefing on
Class Plaintiffs’ notice plan confirms that the parties asked the Court to consider only
“digital banner advertisements”5 and not the extraordinary relief now sought by
Houlihan Lawrence.
Houlihan Lawrence strains to cast Class Plaintiffs as seeking to “list” the class
action website on Google or the Internet Archive, as if Class Plaintiffs intend to do
something more than simply put it up on the internet. Houlihan Lawrence’s August
19, 2022 letter shows, however, that it is the party seeking to alter the status quo.
Specifically, Houlihan Lawrence insists that Class Plaintiffs “code” the class action
website to “block” Google from “indexing” it.6 Website indexation is the automated
process by which Google adds all new internet content to its search engine.7
Houlihan Lawrence is thus asking the Discovery Referee to require Class Plaintiffs
to thwart Google’s ordinary operation, and it does so without submitting evidence
that this suppression effort is technologically feasible and economically viable.
The default appearance of the class action website in a list of Google search
results and on the Internet Archive does not implicate the Court’s concerns with
“digital banner advertisements.” The “digital banner advertisements” would have
been conspicuous (because they would have appeared prominently at the top of the
websites), interruptive (because the user would not have had to request them), and
resonant (because they would have been identified as a “legal notice,” carrying the
Decl. of Jeremy Vest, May 26, 2022 (Dkt. 1333) at Ex. 3 (copy of the “digital banner
advertisement” proposed by Class Plaintiffs)
4See Ex. 1, Hon. L. Jamieson Hr’g Tr., Dec. 20, 2022 at 19:23-20:1 (“[T]hat was
expressly delegated by this court to the discovery referee”)
5See Class Notice Mot. (Dkt. 1374); Opp. to Class Notice Mot., June 16, 2022 (Dkt.
1363); Reply in Supp. of Class Notice Mot., June 30, 2022 (Dkt. 1388)
6 Ex. 2, Letter from R. MacGill to J. Vest, Aug. 19, 2022
7 See “In-Depth Guide to How Google Search Works,” available at
https://developers.google.com/search/docs/fundamentals/how-search-works (“Google
Search is a fully-automated search engine that uses software known as web
crawlers that explore the web regularly to find pages to add to our index. In fact,
the vast majority of pages listed in our results aren’t manually submitted for
inclusion, but are found and added automatically when our web crawlers explore
the web.”)
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Court’s imprimatur). In contrast, Google users will see the link to the class action
website only if they enter a keyword search that returns it among the search results;
scroll through the many results until the link appears; and then make the deliberate
decision to click on the link. In short, there is no risk that non-Class members will
inadvertently see the Class notice remotely comparable to the one posed by “digital
banner advertisements.”
Consider still further that the $2.7 billion settlement of the Blue Cross Blue
Shield antitrust class action has been highly publicized8 (a factor in Google search
result prioritization), yet the website for that suit, www.bcbssettlement.com, remains
the twentieth result for a Google search for either “Blue Cross Blue Shield”9 or “Blue
Cross.”10 There is no reason to expect the class action website in this case to appear
any more prominently in Google search results for “Houlihan Lawrence”.
Shadow banning the class action website would on the other hand undermine
the transparency essential to an independent judiciary by preventing even those who
search Google for “Houlihan Lawrence class action” from locating it on the internet.
Houlihan Lawrence deserves protection from gratuitous and vexatious interference
with its business, but that does not allow it to compel Class Plaintiffs to take
unprecedented measures to keep the public in the dark about this important case.
2. Class representative depositions
Houlihan Lawrence’s defense of its improper attempt to take duplicative
depositions of the Class Representatives begins with the false assertion that,
“Plaintiffs seek to depose 21 witnesses during merits discovery.” In their May 6, 2022
letter, however, Class Plaintiffs merely complied with the Discovery Referee’s
direction that they provide Houlihan Lawrence with a “non-binding list of potential
8See, e.g., “Judge Approves Blue Cross’s $2.67 Billion Antitrust Settlement,” Wall
Street Journal, available at https://www.wsj.com/articles/judge-approves-blue-
crosss-2-67-billion-antitrust-settlement-11660075648; “Blue Cross Insurers Reach
Tentative Settlement in Antitrust Lawsuit,” The New York Times, available at
https://myaccount.nytimes.com/auth/login?response_type=cookie&client_id=vi&redi
rect_uri=https%3A%2F%2Fwww.nytimes.com%2Fsubscription%2Fmultiproduct%2
Flp8KQUS.html%3FcampaignId%3D7JFJX%26EXIT_URI%3Dhttps%253A%252F
%252Fwww.nytimes.com%252F&asset=masthead
9 See Ex. 3, Google Search Results for “Blue Cross Blue Shield,” January 13, 2023
10 See Ex. 4, Google Search Results for “Blue Cross,” January 13, 2023
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deponents,” and they advised only that “they may seek to depose some” of them.11
Class Plaintiffs recognize (and have never disputed) that Commercial Division Rule
11-d limits them to ten merits depositions, and Class Plaintiffs do not expect even to
take all of those.
Houlihan Lawrence attacks another straw man by next saying that Class
Plaintiffs object to further examination of the Class Representatives simply because
“they have already been deposed before.” To the contrary, Class Plaintiffs seek only
to enforce the Discovery Referee’s prohibition on duplicative merits-based
depositions.12 Houlihan Lawrence fails to identify newly produced evidence or
merits-specific issues that justify a second examination of the Class Representatives.
Houlihan Lawrence asserts, without explanation, that the short form affidavit
each Class Representative submitted in support of Class Plaintiffs’ motion for class
certification support additional examinations. Those affidavits (Dkt. Nos. 689-692),
however, mostly just restate and particularize (in admissible form for purposes of
class certification) the Class Representatives’ core allegation that Houlihan Lawrence
failed to disclose the consequences and implications of dual agency and the In-House
Bonus before acting as a dual agent in their transactions. Houlihan Lawrence cannot
dispute that it already thoroughly examined each Class Representative about that
allegation, nor point to any new material disclosure or change in testimony in that
portion of the affidavits. And the rest of the affidavits merely demonstrate that the
Named Plaintiffs were sufficiently informed about and committed to the litigation to
satisfy the adequacy requirement of CPLR § 901—an issue resolved by the Court’s
grant of class certification and appointment of the Named Plaintiffs as Class
Representatives.
Houlihan Lawrence also tries to justify another deposition of the Class
Representatives by pointing to Class Plaintiffs’ interrogatory responses. At the April
20, 2022 hearing, however, the Discovery Referee denied Houlihan Lawrence’s
motion to compel the Class Representatives to sign and swear the truthfulness and
accuracy of Class Counsel’s responses, so there is nothing for Houlihan Lawrence to
question the Class Representatives about in their individual (as opposed to
representative) capacity. Moreover, the responses concern only Class Plaintiffs’
class-wide damage computations, which are more akin to legal conclusions (as
11 Ex. 5, Letter from J. Vest to W. Harrington, May 6, 2022 at § D
1216th R&R, June 10, 2022 (Dkt. 1356) at 7 (recognizing that a pre-class
certification deposition of a witness “does not preclude that same person from being
the subject of a non-duplicative merits-based deposition.”) (emphasis added)
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Page 5
opposed to disputed evidentiary facts) about which the Class Representatives have
no discoverable information anyway.
Houlihan Lawrence concedes by silence that Class Plaintiffs’ merits production
consists of only two documents relating to two irrelevant transactions brokered on
behalf of Paul Benjamin by non-party brokerage firms, both of which post-date
the home purchase put together for him by Houlihan Lawrence that is the sole subject
of his claims in this case. Houlihan Lawrence does not attempt to show that either
of those two documents warrant a second deposition of Mr. Benjamin.
Finally, Houlihan Lawrence makes the equitable argument that the Discovery
Referee should permit it to re-depose the Class Representatives simply because Class
Plaintiffs have reserved the right to conduct merits depositions of six Houlihan
Lawrence representatives who Class Plaintiffs examined during pre-class
certification discovery. Houlihan Lawrence’s facile “what is good for the goose is good
for the gander” argument fails, however, because whereas Class Plaintiffs have
produced only two documents during merits discovery, Houlihan Lawrence has
produced nearly 10,000 transaction files and another 75,000 custodial documents. In
other words, while the record relating to the Class Representatives’ transactions is
unchanged, the evidence bearing on Houlihan Lawrence’s class-wide misconduct has
grown exponentially and the potential need to examine certain pre-class certification
deponents along with it.
Notwithstanding the foregoing, Class Plaintiffs are sensitive to the Court’s
displeasure that this case keeps “dragging”13 and therefore will endeavor to limit
merits depositions of pre-class certification deponents wherever possible. Of course,
newly produced documents like these may make further examinations necessary:
Bronxville Manager: “We do have a meeting! Let’s talk about
how to do more in-house deals!”14
3. Estate of Winifred Berk
Houlihan Lawrence asserts that it “must be permitted to depose” the Estate of
Winifred Berk “in a Rule 11-f deposition,” but about what exactly it does not say.
Houlihan Lawrence is silent because it surely seeks to explore the same subjects on
which it unsuccessfully sought production of documents at the start of merits
13 Id. at 21:19-21 (The Court: “[T]his keeps dragging and we keep going on and on.”)
14 Ex. 6, C. Landis to Bronxville agents, Feb. 26, 2016 (HL630025)
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discovery, and it cannot explain away the Discovery Referee’s ruling, at the April 20,
2022 discovery conference, that those matters are not proper subjects of discovery.
4. Third-party depositions of Sharleen Fleming and Muslim Lika
In support of its intention to depose Ms. Fleming, Houlihan Lawrence provides
the kind of “detailed showing” that is conspicuously absent when asserting its
purported “vital” need to re-depose the Class Representatives. Houlihan Lawrence’s
specific and supported defense of the requested Fleming deposition shows that it
simply lacks the facts to justify the Class Representative depositions.
Class Plaintiffs dispute the relevance of the testimony sought from Ms.
Fleming, but it is related enough to the central issues raised by Ms. Goldstein’s claims
that Class Plaintiffs will withdraw their objection to a deposition of Ms. Fleming that
is limited to topics (1)-(4).
Topic (5), however, which seeks speculative testimony from Ms. Fleming about
Ms. Goldstein’s “state of mind,” is a backdoor attempt to get into the partition action
between Mr. Lika and Ms. Goldstein that spawned a bevy of bitter disputes, including
several involving Ms. Fleming, none of which bear on this matter.
Houlihan Lawrence will hear from Ms. Fleming about any disclosure she made
to Ms. Goldstein, so it does not need Mr. Lika’s second-hand testimony, and there is
no reason to expect that he has any to give anyway since Ms. Goldstein communicated
with Ms. Fleming on her own and with Mr. Lika through his lawyers—at Collier
Halpern.
5. Absent class member depositions
New York law permits absent class member discovery only in “the rarest of
cases.” Pludeman v. Northern Leasing Sys., Inc., 2013 N.Y. Misc. LEXIS 4309 at *5-
6 (N.Y. Cnty. Sept. 26, 2013) (quoting McPhail v. First Command Fin. Planning, Inc.,
251 F.R.D. 514, 520 (S.D. Cal. 2008)). Houlihan Lawrence fails to carry its “heavy
burden” to show the most exceptional of circumstances warranting the radical
departure sought in its January 13, 2023 letter from the rule that absent class
member discovery is almost always impermissible.
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5.1. “Statistically representative sample”
When granting Houlihan Lawrence’s May 2022 request to defer consideration
of this issue, the Discovery Referee warned Houlihan Lawrence that, to carry its
“heavy burden to establish the need for 200 absent class member depositions,” it must
show that “200 depositions represent a fair statistical representation of the class.”15
Houlihan Lawrence did not object to that finding or otherwise oppose confirmation of
the 15th R&R,16 but it now squanders its second chance by failing even to attempt to
prove that 200 depositions represent a statistically valid sample of the Class.
Houlihan Lawrence instead tries to eliminate the issue by excising references
to a “statistically representative sample” from its cut-and-paste from its previous
submissions.17 But if 200 depositions are no longer sought so that Houlihan
Lawrence can make statistically-valid extrapolations of the testimonial evidence
across the Class, then the Discovery Referee has no basis whatsoever to evaluate that
eye-popping number. Why cannot Houlihan Lawrence get the evidence it purportedly
needs with fewer than 200 depositions? What can Houlihan Lawrence prove with
200 depositions that it cannot with 100 or even 10 depositions? Houlihan Lawrence
gives the Discovery Referee no way to answer essential questions like these.
Houlihan Lawrence invites the Discovery Referee to ask instead only whether
200 depositions is “reasonable.”18 Houlihan Lawrence’s own authority shows that it
must in fact demonstrate that each of its requested depositions is “necessary,” see
Indergit v. Rite Aid Corp., 2015 U.S. Dist. LEXIS 160355, at *4-5 (S.D.N.Y. Nov. 30,
2015), but in any event the Discovery Referee can no more assess “reasonableness”
than “necessity” without knowing what is supposedly special about 200 depositions.
15 15th R&R, May 20, 2022 (Dkt. 1307) at 7 (emphasis added); see also id. at 7-8
(“That number appears excessive and bears no explained statistical representation
of the class…. I will review de novo any application by HLI for absent class member
depositions. However, when and if renewed, HLI should address these issues in the
motion.”)
16Decision and Order, Hon. L. Jamieson, July 19, 2022 (Dkt. No. 1424) at 3
(granting Class Plaintiffs’ “unopposed motion” to confirm the 15th R&R)
17Compare Ex. 7, Letter from R. MacGill to W. Harrington, Apr. 20, 2022 at 14-18;
Ex. 8, Letter from R. MacGill to W. Harrington, May 2, 2022 at 5-9
18Ex. 9, Letter from R. MacGill to W. Harrington, Jan. 13, 2023 at 6 (asserting that
“Houlihan Lawrence’s proposed absent class member deposition protocol is
reasonable in light of the class size and composition”) (emphasis added)
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The Discovery Referee granted Houlihan Lawrence a stay based on its loud
and unequivocal representation that removal of arbitration signatories from the
Class would “significantly,” “materially and substantially” reduce the number of
needed absent class member depositions.19 Yet, despite Class Plaintiffs’ agreement
to exclude more than 2,000 arbitration signatories,20 Houlihan Lawrence still seeks
the same 200 depositions as before, further confirming that it plucked that number
from air and stayed adjudication of this issue just to set up another round of time-
consuming litigation.
5.2. “No-call agreement”
Houlihan Lawrence also again fails to explain why absent class member
depositions are “necessary” given Class Plaintiffs’ agreement “(a) not to call absent
class members in their case-in-chief; and (b) in rebuttal only in the unlikely event any
of the 100 or more sales agents who HL said it intends to call in its defense purport
to recall individual conversations.”21 That is fatal because the Discovery Referee has
already recognized that Class Plaintiffs’ agreement raised a “legitimate issue as to
the relevance and/or evidentiary need for HLI to secure the requested proof from the
absent class members” and directed Houlihan Lawrence to address it when renewing
its discovery request.22
When this issue first arose, Houlihan Lawrence proposed to forego absent class
member depositions in exchange for Class Plaintiffs’ agreement not to call absent
class members at trial.23 Class Plaintiffs agreed but reasonably reserved the limited
right to call absent class members in rebuttal only so that sales agents could not
19Compare Discovery Referee Motion No. 15-001, May 19, 2022 at 3 (“Houlihan
Lawrence’s pending and forthcoming motions will significantly reduce the size of
the class. Once the class size is reduced, fewer unnamed class member depositions
will need to occur for the number of depositions to bear statistical significance to the
remaining class as a whole.”) (emphasis added); id. at 4 (“These motions, when
granted, will materially and substantially reduce the size of the class, and,
accordingly, the number of absent class member depositions required to achieve a
statistically representative sample.”) (emphasis added).
20 See Ex. 10, Letter from J. Vest to R. MacGill, Nov. 11, 2022 at Ex. 1
21 Compare Ex. 5, Letter from J. Vest to W. Harrington, May 6, 2022 at § C
22 15th R&R, May 20, 2022 (Dkt. 1356) at 7-8
23 Ex. 11, Letter from R. MacGill to J. Vest, Apr. 7, 2022 at 2
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purport to recall years-old individual conversations without fear of contradiction by
their former clients. Nevertheless, in a further effort to resolve this issue
expeditiously, Class Plaintiffs expressly withdraw even that minor condition, which
means that Class Plaintiffs have now agreed in full to the “no-call agreement” that
Houlihan Lawrence previously acknowledged would eliminate any need for absent
class member depositions.24 Any continued refusal by Houlihan Lawrence to take
“yes” for an answer betrays an improper intent to use absent class member
depositions to burden the Class and delay the advancement of this case to trial. See
Lemus v. Denny’s Inc., 2014 U.S. Dist. LEXIS 201609, at *13 (refusing to permit
absent class member depositions where the plaintiffs “expressly asserted” in
opposition to the defendant’s motion that “it has not submitted any class member
declarations or identified any class members as potential trial witnesses”).
5.3. Reliance
Houlihan Lawrence still predicates its purported need for absent class member
depositions on the bald assertion that Class Plaintiffs’ claims require proof of
reliance, ignoring yet again Class Plaintiffs’ prior demonstration that “New York law
is clear and unequivocal to the contrary.”25 Houlihan Lawrence must try to put Class
Plaintiffs’ reliance at issue because it can obtain any other information about any
disclosure it may have made to the absent class members from its own sales agents,
and therefore cannot satisfy the “necessity” requirement.
An experienced class action litigator like Houlihan Lawrence’s counsel knows
that, as a leading class action commentator confirms, courts frequently find that
reliance is an individualized issue precluding class certification. See 2 William B.
Rubenstein, Newberg on Class Action § 4:58 at 221 (5th ed. 2012) (“[C]ourts often
deny Rule 23(b)(3) class certification basic fraud cases (and other reliance-related
cases) on the grounds that the individualized nature of the reliance inquiry means
the predominance test cannot be met.”); see also id. at § 4:45 at 204-205 (identifying
reliance as one of the “biggest hurdles to finding that common questions
predominate.”). Houlihan Lawrence’s failure to mention reliance in opposition to
class certification is thus an implicit acknowledgement that Class Plaintiffs can hold
See Ex. 12, Letter from R. MacGill to J. Vest, Apr. 6, 2022 at 2 (memorializing
24
Houlihan Lawrence’s proposed “no-call agreement”)
25See Ex. 5, Letter from J. Vest to W. Harrington, May 6, 2022 at § C.1.1. (citing
authority)
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Houlihan Lawrence liable for its inadequate agency disclosures without showing that
they relied on them to their detriment.26
Even if, for the sake of argument, non-reliance is a defense to Class Plaintiffs’
claims, Houlihan Lawrence is still not entitled to depose absent class members at this
time because “[n]umerous other courts have recognized that individual issues of
reliance are most efficiently determined after class-wide issues have been
determined.” McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514, 520
(S.D. Cal. 2008); see also Murray v. Allied-Signal, Inc., 177 A.D.2d 984, 985 (4th Dep’t
Nov. 15, 1991) (recognizing that “discovery of the issue of individual damages should
be deferred until the determination of the issues central to the class action”).
5.4. “Practical effect”
Finally, as explained in greater detail in Class Plaintiffs’ prior submission on
this issue,27 even if, contrary to the evidence, Houlihan Lawrence seeks the absent
class member depositions for a proper purpose, the “practical effect” of an
investigation of each Class member’s reliance on Houlihan Lawrence’s omissions and
misrepresentations would be to reduce the size of the Class. Courts routinely reject
absent class member discovery that would have the “practical effect” of whittling
down the class. See, e.g., McPhail, 251 F.R.D. at 518 (“Defendants’ stated purpose in
seeking this discovery is to find evidence to establish their defense. The practical
effect, however, would be to reduce the size of the class by ferreting out and
eliminating individual claims.”); Lemus, 2014 U.S. Dist. LEXIS 201608, at *9
(recognizing that “the motive and practical implications of a particular discovery
request merits assiduous analysis.”).
Regards,
Jeremy Vest
26 See Opp. to Pls. Class Cert. Mot., Dec. 6, 2021 (Dkt. 963)
27 See Ex. 5, Letter from J. Vest to W. Harrington, May 6, 2022 at § C
Preview
FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 EXHIBIT 5 FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 Jeremy C. Vest Chrysler Center 212 692 6718 919 Third Avenue jvest@mintz.com New York, NY 10022 212 935 3000 mintz.com January 20, 2023 Via E-Mail Mr. William P. Harrington 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 Mr. Harrington: Class Plaintiffs do not seek “some kind of emergency” ruling on their January 6, 2022 letter. Class Plaintiffs simply recognize that, while the December 31, 2022 discovery cutoff has passed, there will not be any “substantial relief” from that deadline.1 Accordingly, in seeking prompt resolution of the foregoing disputes, Class Plaintiffs proceed only as directed by the Discovery Referee—and by the Court who recently warned that this case cannot keep “dragging” and “going on and on.”2 1. Class action website Houlihan Lawrence does not cite a case from any court in the country directing class counsel to take affirmative steps to suppress a class action website from appearing in Google search results or on internet archive websites, and Class Plaintiffs’ exhaustive search did not turn one up either. Houlihan Lawrence asserts that the Court took this apparently unprecedented action when it denied Class Plaintiffs’ request to place “digital banner advertisements” on various websites.3 Of course, if Houlihan Lawrence believed 116th R&R, June 10, 2022 (Dkt. 1356) at 6 (“[T]he parties should proceed with the expectation that there will not be any extraordinary delay of this litigation or substantial relief from existing discovery deadlines.”) 2 Id. at 21:19-21 (The Court: “[T]his keeps dragging and we keep going on and on.”) 3See Pls. Mot. for Class Notice Plan Approval, May 26, 2022 (“Class Notice Motion”) (Dkt. 1354) at § 2.2.1. (seeking approval of digital banner advertisements); see also BOSTON LONDON LOS ANGELES NEW YORK SAN DIEGO SAN FRANCISCO WASHINGTON MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 MINTZ Mr. William P. Harrington January 20, 2023 Page 2 that, when Class Plaintiffs asked the Court to rule on this issue at the December 20, 2022 status conference, Houlihan Lawrence would not have rushed to argue that the Court had referred it to the Discovery Referee.4 A cursory review of the briefing on Class Plaintiffs’ notice plan confirms that the parties asked the Court to consider only “digital banner advertisements”5 and not the extraordinary relief now sought by Houlihan Lawrence. Houlihan Lawrence strains to cast Class Plaintiffs as seeking to “list” the class action website on Google or the Internet Archive, as if Class Plaintiffs intend to do something more than simply put it up on the internet. Houlihan Lawrence’s August 19, 2022 letter shows, however, that it is the party seeking to alter the status quo. Specifically, Houlihan Lawrence insists that Class Plaintiffs “code” the class action website to “block” Google from “indexing” it.6 Website indexation is the automated process by which Google adds all new internet content to its search engine.7 Houlihan Lawrence is thus asking the Discovery Referee to require Class Plaintiffs to thwart Google’s ordinary operation, and it does so without submitting evidence that this suppression effort is technologically feasible and economically viable. The default appearance of the class action website in a list of Google search results and on the Internet Archive does not implicate the Court’s concerns with “digital banner advertisements.” The “digital banner advertisements” would have been conspicuous (because they would have appeared prominently at the top of the websites), interruptive (because the user would not have had to request them), and resonant (because they would have been identified as a “legal notice,” carrying the Decl. of Jeremy Vest, May 26, 2022 (Dkt. 1333) at Ex. 3 (copy of the “digital banner advertisement” proposed by Class Plaintiffs) 4See Ex. 1, Hon. L. Jamieson Hr’g Tr., Dec. 20, 2022 at 19:23-20:1 (“[T]hat was expressly delegated by this court to the discovery referee”) 5See Class Notice Mot. (Dkt. 1374); Opp. to Class Notice Mot., June 16, 2022 (Dkt. 1363); Reply in Supp. of Class Notice Mot., June 30, 2022 (Dkt. 1388) 6 Ex. 2, Letter from R. MacGill to J. Vest, Aug. 19, 2022 7 See “In-Depth Guide to How Google Search Works,” available at https://developers.google.com/search/docs/fundamentals/how-search-works (“Google Search is a fully-automated search engine that uses software known as web crawlers that explore the web regularly to find pages to add to our index. In fact, the vast majority of pages listed in our results aren’t manually submitted for inclusion, but are found and added automatically when our web crawlers explore the web.”) FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 MINTZ Mr. William P. Harrington January 20, 2023 Page 3 Court’s imprimatur). In contrast, Google users will see the link to the class action website only if they enter a keyword search that returns it among the search results; scroll through the many results until the link appears; and then make the deliberate decision to click on the link. In short, there is no risk that non-Class members will inadvertently see the Class notice remotely comparable to the one posed by “digital banner advertisements.” Consider still further that the $2.7 billion settlement of the Blue Cross Blue Shield antitrust class action has been highly publicized8 (a factor in Google search result prioritization), yet the website for that suit, www.bcbssettlement.com, remains the twentieth result for a Google search for either “Blue Cross Blue Shield”9 or “Blue Cross.”10 There is no reason to expect the class action website in this case to appear any more prominently in Google search results for “Houlihan Lawrence”. Shadow banning the class action website would on the other hand undermine the transparency essential to an independent judiciary by preventing even those who search Google for “Houlihan Lawrence class action” from locating it on the internet. Houlihan Lawrence deserves protection from gratuitous and vexatious interference with its business, but that does not allow it to compel Class Plaintiffs to take unprecedented measures to keep the public in the dark about this important case. 2. Class representative depositions Houlihan Lawrence’s defense of its improper attempt to take duplicative depositions of the Class Representatives begins with the false assertion that, “Plaintiffs seek to depose 21 witnesses during merits discovery.” In their May 6, 2022 letter, however, Class Plaintiffs merely complied with the Discovery Referee’s direction that they provide Houlihan Lawrence with a “non-binding list of potential 8See, e.g., “Judge Approves Blue Cross’s $2.67 Billion Antitrust Settlement,” Wall Street Journal, available at https://www.wsj.com/articles/judge-approves-blue- crosss-2-67-billion-antitrust-settlement-11660075648; “Blue Cross Insurers Reach Tentative Settlement in Antitrust Lawsuit,” The New York Times, available at https://myaccount.nytimes.com/auth/login?response_type=cookie&client_id=vi&redi rect_uri=https%3A%2F%2Fwww.nytimes.com%2Fsubscription%2Fmultiproduct%2 Flp8KQUS.html%3FcampaignId%3D7JFJX%26EXIT_URI%3Dhttps%253A%252F %252Fwww.nytimes.com%252F&asset=masthead 9 See Ex. 3, Google Search Results for “Blue Cross Blue Shield,” January 13, 2023 10 See Ex. 4, Google Search Results for “Blue Cross,” January 13, 2023 FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 MINTZ Mr. William P. Harrington January 20, 2023 Page 4 deponents,” and they advised only that “they may seek to depose some” of them.11 Class Plaintiffs recognize (and have never disputed) that Commercial Division Rule 11-d limits them to ten merits depositions, and Class Plaintiffs do not expect even to take all of those. Houlihan Lawrence attacks another straw man by next saying that Class Plaintiffs object to further examination of the Class Representatives simply because “they have already been deposed before.” To the contrary, Class Plaintiffs seek only to enforce the Discovery Referee’s prohibition on duplicative merits-based depositions.12 Houlihan Lawrence fails to identify newly produced evidence or merits-specific issues that justify a second examination of the Class Representatives. Houlihan Lawrence asserts, without explanation, that the short form affidavit each Class Representative submitted in support of Class Plaintiffs’ motion for class certification support additional examinations. Those affidavits (Dkt. Nos. 689-692), however, mostly just restate and particularize (in admissible form for purposes of class certification) the Class Representatives’ core allegation that Houlihan Lawrence failed to disclose the consequences and implications of dual agency and the In-House Bonus before acting as a dual agent in their transactions. Houlihan Lawrence cannot dispute that it already thoroughly examined each Class Representative about that allegation, nor point to any new material disclosure or change in testimony in that portion of the affidavits. And the rest of the affidavits merely demonstrate that the Named Plaintiffs were sufficiently informed about and committed to the litigation to satisfy the adequacy requirement of CPLR § 901—an issue resolved by the Court’s grant of class certification and appointment of the Named Plaintiffs as Class Representatives. Houlihan Lawrence also tries to justify another deposition of the Class Representatives by pointing to Class Plaintiffs’ interrogatory responses. At the April 20, 2022 hearing, however, the Discovery Referee denied Houlihan Lawrence’s motion to compel the Class Representatives to sign and swear the truthfulness and accuracy of Class Counsel’s responses, so there is nothing for Houlihan Lawrence to question the Class Representatives about in their individual (as opposed to representative) capacity. Moreover, the responses concern only Class Plaintiffs’ class-wide damage computations, which are more akin to legal conclusions (as 11 Ex. 5, Letter from J. Vest to W. Harrington, May 6, 2022 at § D 1216th R&R, June 10, 2022 (Dkt. 1356) at 7 (recognizing that a pre-class certification deposition of a witness “does not preclude that same person from being the subject of a non-duplicative merits-based deposition.”) (emphasis added) FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 MINTZ Mr. William P. Harrington January 20, 2023 Page 5 opposed to disputed evidentiary facts) about which the Class Representatives have no discoverable information anyway. Houlihan Lawrence concedes by silence that Class Plaintiffs’ merits production consists of only two documents relating to two irrelevant transactions brokered on behalf of Paul Benjamin by non-party brokerage firms, both of which post-date the home purchase put together for him by Houlihan Lawrence that is the sole subject of his claims in this case. Houlihan Lawrence does not attempt to show that either of those two documents warrant a second deposition of Mr. Benjamin. Finally, Houlihan Lawrence makes the equitable argument that the Discovery Referee should permit it to re-depose the Class Representatives simply because Class Plaintiffs have reserved the right to conduct merits depositions of six Houlihan Lawrence representatives who Class Plaintiffs examined during pre-class certification discovery. Houlihan Lawrence’s facile “what is good for the goose is good for the gander” argument fails, however, because whereas Class Plaintiffs have produced only two documents during merits discovery, Houlihan Lawrence has produced nearly 10,000 transaction files and another 75,000 custodial documents. In other words, while the record relating to the Class Representatives’ transactions is unchanged, the evidence bearing on Houlihan Lawrence’s class-wide misconduct has grown exponentially and the potential need to examine certain pre-class certification deponents along with it. Notwithstanding the foregoing, Class Plaintiffs are sensitive to the Court’s displeasure that this case keeps “dragging”13 and therefore will endeavor to limit merits depositions of pre-class certification deponents wherever possible. Of course, newly produced documents like these may make further examinations necessary: Bronxville Manager: “We do have a meeting! Let’s talk about how to do more in-house deals!”14 3. Estate of Winifred Berk Houlihan Lawrence asserts that it “must be permitted to depose” the Estate of Winifred Berk “in a Rule 11-f deposition,” but about what exactly it does not say. Houlihan Lawrence is silent because it surely seeks to explore the same subjects on which it unsuccessfully sought production of documents at the start of merits 13 Id. at 21:19-21 (The Court: “[T]his keeps dragging and we keep going on and on.”) 14 Ex. 6, C. Landis to Bronxville agents, Feb. 26, 2016 (HL630025) FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 MINTZ Mr. William P. Harrington January 20, 2023 Page 6 discovery, and it cannot explain away the Discovery Referee’s ruling, at the April 20, 2022 discovery conference, that those matters are not proper subjects of discovery. 4. Third-party depositions of Sharleen Fleming and Muslim Lika In support of its intention to depose Ms. Fleming, Houlihan Lawrence provides the kind of “detailed showing” that is conspicuously absent when asserting its purported “vital” need to re-depose the Class Representatives. Houlihan Lawrence’s specific and supported defense of the requested Fleming deposition shows that it simply lacks the facts to justify the Class Representative depositions. Class Plaintiffs dispute the relevance of the testimony sought from Ms. Fleming, but it is related enough to the central issues raised by Ms. Goldstein’s claims that Class Plaintiffs will withdraw their objection to a deposition of Ms. Fleming that is limited to topics (1)-(4). Topic (5), however, which seeks speculative testimony from Ms. Fleming about Ms. Goldstein’s “state of mind,” is a backdoor attempt to get into the partition action between Mr. Lika and Ms. Goldstein that spawned a bevy of bitter disputes, including several involving Ms. Fleming, none of which bear on this matter. Houlihan Lawrence will hear from Ms. Fleming about any disclosure she made to Ms. Goldstein, so it does not need Mr. Lika’s second-hand testimony, and there is no reason to expect that he has any to give anyway since Ms. Goldstein communicated with Ms. Fleming on her own and with Mr. Lika through his lawyers—at Collier Halpern. 5. Absent class member depositions New York law permits absent class member discovery only in “the rarest of cases.” Pludeman v. Northern Leasing Sys., Inc., 2013 N.Y. Misc. LEXIS 4309 at *5- 6 (N.Y. Cnty. Sept. 26, 2013) (quoting McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514, 520 (S.D. Cal. 2008)). Houlihan Lawrence fails to carry its “heavy burden” to show the most exceptional of circumstances warranting the radical departure sought in its January 13, 2023 letter from the rule that absent class member discovery is almost always impermissible. FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 MINTZ Mr. William P. Harrington January 20, 2023 Page 7 5.1. “Statistically representative sample” When granting Houlihan Lawrence’s May 2022 request to defer consideration of this issue, the Discovery Referee warned Houlihan Lawrence that, to carry its “heavy burden to establish the need for 200 absent class member depositions,” it must show that “200 depositions represent a fair statistical representation of the class.”15 Houlihan Lawrence did not object to that finding or otherwise oppose confirmation of the 15th R&R,16 but it now squanders its second chance by failing even to attempt to prove that 200 depositions represent a statistically valid sample of the Class. Houlihan Lawrence instead tries to eliminate the issue by excising references to a “statistically representative sample” from its cut-and-paste from its previous submissions.17 But if 200 depositions are no longer sought so that Houlihan Lawrence can make statistically-valid extrapolations of the testimonial evidence across the Class, then the Discovery Referee has no basis whatsoever to evaluate that eye-popping number. Why cannot Houlihan Lawrence get the evidence it purportedly needs with fewer than 200 depositions? What can Houlihan Lawrence prove with 200 depositions that it cannot with 100 or even 10 depositions? Houlihan Lawrence gives the Discovery Referee no way to answer essential questions like these. Houlihan Lawrence invites the Discovery Referee to ask instead only whether 200 depositions is “reasonable.”18 Houlihan Lawrence’s own authority shows that it must in fact demonstrate that each of its requested depositions is “necessary,” see Indergit v. Rite Aid Corp., 2015 U.S. Dist. LEXIS 160355, at *4-5 (S.D.N.Y. Nov. 30, 2015), but in any event the Discovery Referee can no more assess “reasonableness” than “necessity” without knowing what is supposedly special about 200 depositions. 15 15th R&R, May 20, 2022 (Dkt. 1307) at 7 (emphasis added); see also id. at 7-8 (“That number appears excessive and bears no explained statistical representation of the class…. I will review de novo any application by HLI for absent class member depositions. However, when and if renewed, HLI should address these issues in the motion.”) 16Decision and Order, Hon. L. Jamieson, July 19, 2022 (Dkt. No. 1424) at 3 (granting Class Plaintiffs’ “unopposed motion” to confirm the 15th R&R) 17Compare Ex. 7, Letter from R. MacGill to W. Harrington, Apr. 20, 2022 at 14-18; Ex. 8, Letter from R. MacGill to W. Harrington, May 2, 2022 at 5-9 18Ex. 9, Letter from R. MacGill to W. Harrington, Jan. 13, 2023 at 6 (asserting that “Houlihan Lawrence’s proposed absent class member deposition protocol is reasonable in light of the class size and composition”) (emphasis added) FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 MINTZ Mr. William P. Harrington January 20, 2023 Page 8 The Discovery Referee granted Houlihan Lawrence a stay based on its loud and unequivocal representation that removal of arbitration signatories from the Class would “significantly,” “materially and substantially” reduce the number of needed absent class member depositions.19 Yet, despite Class Plaintiffs’ agreement to exclude more than 2,000 arbitration signatories,20 Houlihan Lawrence still seeks the same 200 depositions as before, further confirming that it plucked that number from air and stayed adjudication of this issue just to set up another round of time- consuming litigation. 5.2. “No-call agreement” Houlihan Lawrence also again fails to explain why absent class member depositions are “necessary” given Class Plaintiffs’ agreement “(a) not to call absent class members in their case-in-chief; and (b) in rebuttal only in the unlikely event any of the 100 or more sales agents who HL said it intends to call in its defense purport to recall individual conversations.”21 That is fatal because the Discovery Referee has already recognized that Class Plaintiffs’ agreement raised a “legitimate issue as to the relevance and/or evidentiary need for HLI to secure the requested proof from the absent class members” and directed Houlihan Lawrence to address it when renewing its discovery request.22 When this issue first arose, Houlihan Lawrence proposed to forego absent class member depositions in exchange for Class Plaintiffs’ agreement not to call absent class members at trial.23 Class Plaintiffs agreed but reasonably reserved the limited right to call absent class members in rebuttal only so that sales agents could not 19Compare Discovery Referee Motion No. 15-001, May 19, 2022 at 3 (“Houlihan Lawrence’s pending and forthcoming motions will significantly reduce the size of the class. Once the class size is reduced, fewer unnamed class member depositions will need to occur for the number of depositions to bear statistical significance to the remaining class as a whole.”) (emphasis added); id. at 4 (“These motions, when granted, will materially and substantially reduce the size of the class, and, accordingly, the number of absent class member depositions required to achieve a statistically representative sample.”) (emphasis added). 20 See Ex. 10, Letter from J. Vest to R. MacGill, Nov. 11, 2022 at Ex. 1 21 Compare Ex. 5, Letter from J. Vest to W. Harrington, May 6, 2022 at § C 22 15th R&R, May 20, 2022 (Dkt. 1356) at 7-8 23 Ex. 11, Letter from R. MacGill to J. Vest, Apr. 7, 2022 at 2 FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 MINTZ Mr. William P. Harrington January 20, 2023 Page 9 purport to recall years-old individual conversations without fear of contradiction by their former clients. Nevertheless, in a further effort to resolve this issue expeditiously, Class Plaintiffs expressly withdraw even that minor condition, which means that Class Plaintiffs have now agreed in full to the “no-call agreement” that Houlihan Lawrence previously acknowledged would eliminate any need for absent class member depositions.24 Any continued refusal by Houlihan Lawrence to take “yes” for an answer betrays an improper intent to use absent class member depositions to burden the Class and delay the advancement of this case to trial. See Lemus v. Denny’s Inc., 2014 U.S. Dist. LEXIS 201609, at *13 (refusing to permit absent class member depositions where the plaintiffs “expressly asserted” in opposition to the defendant’s motion that “it has not submitted any class member declarations or identified any class members as potential trial witnesses”). 5.3. Reliance Houlihan Lawrence still predicates its purported need for absent class member depositions on the bald assertion that Class Plaintiffs’ claims require proof of reliance, ignoring yet again Class Plaintiffs’ prior demonstration that “New York law is clear and unequivocal to the contrary.”25 Houlihan Lawrence must try to put Class Plaintiffs’ reliance at issue because it can obtain any other information about any disclosure it may have made to the absent class members from its own sales agents, and therefore cannot satisfy the “necessity” requirement. An experienced class action litigator like Houlihan Lawrence’s counsel knows that, as a leading class action commentator confirms, courts frequently find that reliance is an individualized issue precluding class certification. See 2 William B. Rubenstein, Newberg on Class Action § 4:58 at 221 (5th ed. 2012) (“[C]ourts often deny Rule 23(b)(3) class certification basic fraud cases (and other reliance-related cases) on the grounds that the individualized nature of the reliance inquiry means the predominance test cannot be met.”); see also id. at § 4:45 at 204-205 (identifying reliance as one of the “biggest hurdles to finding that common questions predominate.”). Houlihan Lawrence’s failure to mention reliance in opposition to class certification is thus an implicit acknowledgement that Class Plaintiffs can hold See Ex. 12, Letter from R. MacGill to J. Vest, Apr. 6, 2022 at 2 (memorializing 24 Houlihan Lawrence’s proposed “no-call agreement”) 25See Ex. 5, Letter from J. Vest to W. Harrington, May 6, 2022 at § C.1.1. (citing authority) FILED: WESTCHESTER COUNTY CLERK 02/09/2023 04:01 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1535 RECEIVED NYSCEF: 02/09/2023 MINTZ Mr. William P. Harrington January 20, 2023 Page 10 Houlihan Lawrence liable for its inadequate agency disclosures without showing that they relied on them to their detriment.26 Even if, for the sake of argument, non-reliance is a defense to Class Plaintiffs’ claims, Houlihan Lawrence is still not entitled to depose absent class members at this time because “[n]umerous other courts have recognized that individual issues of reliance are most efficiently determined after class-wide issues have been determined.” McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514, 520 (S.D. Cal. 2008); see also Murray v. Allied-Signal, Inc., 177 A.D.2d 984, 985 (4th Dep’t Nov. 15, 1991) (recognizing that “discovery of the issue of individual damages should be deferred until the determination of the issues central to the class action”). 5.4. “Practical effect” Finally, as explained in greater detail in Class Plaintiffs’ prior submission on this issue,27 even if, contrary to the evidence, Houlihan Lawrence seeks the absent class member depositions for a proper purpose, the “practical effect” of an investigation of each Class member’s reliance on Houlihan Lawrence’s omissions and misrepresentations would be to reduce the size of the Class. Courts routinely reject absent class member discovery that would have the “practical effect” of whittling down the class. See, e.g., McPhail, 251 F.R.D. at 518 (“Defendants’ stated purpose in seeking this discovery is to find evidence to establish their defense. The practical effect, however, would be to reduce the size of the class by ferreting out and eliminating individual claims.”); Lemus, 2014 U.S. Dist. LEXIS 201608, at *9 (recognizing that “the motive and practical implications of a particular discovery request merits assiduous analysis.”). Regards, Jeremy Vest 26 See Opp. to Pls. Class Cert. Mot., Dec. 6, 2021 (Dkt. 963) 27 See Ex. 5, Letter from J. Vest to W. Harrington, May 6, 2022 at § C