UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA JANE … · case no. 1:17-cv-00901-abj...

UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

JANE DOE,

PLAINTIFF,

v.

PROSKAUER ROSE LLP,

DEFENDANT.

Case No. 1:17-cv-00901-ABJ

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES

IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

AND MOTION TO DISMISS

Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 1 of 53

i

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF ARGUMENT ..............................................................1

PROCEDURAL HISTORY.............................................................................................................2

FACTUAL BACKGROUND…………………………………………………………..................3

ARGUMENT ……………………………………………………………………………………..7

I. THE COURT SHOULD DENY PROSKAUER’S SUMMARY JUDGMENT MOTION

UNDER RULE 56(D) AND ALLOW DISCOVERY TO PROCEED…………………..7

A. Fed. R. Civ. P. 56 Expressly Contemplates Appropriate Discovery Before Summary

Judgment Proceedings………………………………………………………………..7

B. Defendant’s Summary Judgment Motion Is Premature ……………………………..8

C. Discovery Will Show that Proskauer Partners, Such as Plaintiff, Are Employees

Under Applicable Law……………………………………………………………...11

D. The Court Should Allow Plaintiff to Take Discovery Before Opposing Summary

Judgment on the Merits……………………………………………………………..15

1. Discovery Will Show the Executive Committee Controls Hiring and Firing ….15

2. Discovery Will Show the Executive Committee Regulates Partners Work ……17

3. Discovery Will Show Partners Report to and Are Supervised by the Executive

Committee and Its Designees ………………………….....................................18

4. Discovery Will Show that Plaintiff has Little Influence Over the Firm’s Affairs

………………………………………………………………………………….19

5. Discovery Will Establish the Intent to Treat Plaintiff as an Employee for

Purposes of Anti-Discrimination and Anti-Retaliation Protections …………...21

6. Discovery Will Show That Plaintiff Does Not Share in the Firm’s Profits,

Losses, and Liabilities …………………………………………………………22

E. Full Discovery Should Proceed Immediately; The Court Should Promptly Hold a

Management Conference and Enter a Scheduling Order …………………………..23


ii

II. THE COURT SHOULD DENY PROSKAUER’S MOTION TO DISMISS

PLAINITIFF’S MARYLAND EQUAL PAY FOR EQUAL WORK ACT CLAIMS ...25

III. THE COURT SHOULD DENY PROSKAUER’S MOTION TO DISMISS

PLAINTIFF’S COMMON LAW CLAIMS .…………………………………………...28

A. Proskauer Faces a Significant Burden on a Motion to Dismiss ……………………28

B. Proskauer’s Attempt to Frame Plaintiff’s Claims as a Mere “Compensation Dispute”

for Which No Remedy Exists Cannot Bear Fruit …………………………………..29

C. Plaintiff States Valid Claims of Breach of Contract, Including a Claim Premised on

Breach of the Implied Covenant of Good Faith and Fair Dealing …………………32

D. Plaintiff States a Valid Claim for Breach of Fiduciary Duty ………………………37

E. Plaintiff States a Valid Claim for Unjust Enrichment ……………………………...40

F. Plaintiff States a Valid Claim for Fraudulent Misrepresentation …………………..42

CONCLUSION ………………………………………………………………………………….44


iii

TABLE OF AUTHORITIES

Cases

1-10 Indus. Assocs., LLC v. Trim Corp. of Am., 747 N.Y.S.2d 29 (2002) ................................... 37

* 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144 (N.Y. 2002).................... 32

* A. Resnick Textile Co. v. The Daisy Grp., Ltd., 726 N.Y.S.2d 82 (2001).................................. 44

Abacus Fed. Savings Bank v. ADT Sec. Servs., Inc., 18 N.Y.3d 675 (N.Y. 2012) ......................... 2

ABN AMRO Bank, N.V. v MBIA Inc., 17 N.Y.3d 208 (N.Y. 2011) .............................................. 32

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ......................................................................... 7

Adler v. Abramson, 728 A.2d 86 (D.C.1999) ............................................................................... 34

Alan B. Greenfield, M.D., P.C. v. Long Beach Imaging Holdings, LLC, 981 N.Y.S.2d 135 (2014)

................................................................................................................................................... 40

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................... 7, 8

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 28

B. Lewis Prods. Inc. v. Maya Angelou Hallmark Cards, Inc., No. 01Civ.530, 2005 WL 1138474

(S.D.N.Y. May 12, 2005) .......................................................................................................... 33

Bancorp Servs, LLC v. Am. General Life Ins. Co., No. 14-cv-9687, 2016 WL 4916969 (S.D.N.Y.

Feb. 11, 2016)............................................................................................................................ 29

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... 28

* Bullmore v. Ernst & Young Cayman Islands, 846 N.Y.S.2d 145 (2007) .................................. 39

* Campbell v. Chadbourne & Parke LLP, No. 1:16-cv-8632, 2017 WL 2589389 (S.D.N.Y. June

14, 2017)............................................................................................................................. passim

Carey v. Foley & Lardner LLP, 577 Fed. Appx. 573 (6th Cir. 2014) ............................................ 8

Caruso v. Peat, Marwick, Mitchell & Co., 779 F. Supp. 332 (S.D.N.Y. 1991) ..................... 13, 22

Carvel Corp. v. Diversified Mgmt. Grp., Inc., 930 F.2d 228 (2d Cir. 1991) ................................ 33

Celotext Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................. 7

* Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003) ....................... passim

Claridge v. N. Am. Power & Gas, LLC, 2015 U.S. Dist. LEXIS 117693 (S.D.N.Y. Sept. 2, 2015)

................................................................................................................................................... 33

Cohen v. Lord, Day & Lord, 75 N.Y.2d 95 (N.Y. 1989) ........................................................ 13, 32

Computerized Radiological Servs. v. Syntex Corp., 786 F.2d 72 (2d Cir. 1986)………………..42

* Convertino v. U.S. Dept. of Justice, 684 F.3d 93 (D.C. Cir. 2012) ............................................. 8

* Cunningham v. Feinberg, 441 Md. 310 (2015) ..................................................................... 1, 27

* Dalton v. Educ. Testing Serv., 87 N.Y.2d 38 (N.Y. 1995) ........................................................ 32

Dean v. Am. Fed’n of Gov. Employees, Local 476, 549 F.Supp.2d 115 (D.D.C. 2008) .............. 11

* Deerfield Communications Corp. v. Cheesebrough-Ponds, Inc., 68 N.Y.2d 954 (N.Y. 1986). 42

* Denburg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375 (N.Y. 1993) .............................. 31

Dinkel v. Medstar Health, Inc., 286 F.R.D. 28 (D.D.C. 2012) ....................................................... 8

Dorset Indus., Inc. v. Unified Grocers, Inc., 893 F. Supp. 2d 395 (E.D.N.Y. 2012) ................... 33

* E.E.O.C. v. Sidley Austin Brown & Wood, 315 F.3d 696 (7th Cir. 2002) ................................. 13


iv

Eaves v. Designs for Fin., Inc., 785 F. Supp. 2d 229 (S.D.N.Y. 2011) ........................................ 42

Eric Solstein Prods., Inc. v. Rabanne, 653 N.Y.S.2d 325 (1997) ................................................. 44

* Fishoff v. Coty Inc., 634 F.3d 647 (2d Cir. 2011) .......................................................... 32, 33, 37

* Foresta v. Centerlight Capital Mgmt., LLC, 379 Fed. Appx. 44 (2d Cir. 2010) ....................... 10

Fuentes-Fernandez & Co., PSC v. The Corvus Grp., Inc., 174 F. Supp. 3d 378 (D.D.C. 2016) . 32

Ghori-Ahmad v. U.S. Comm. on Internat’l Religious Freedom, 969 F.Supp.2d 1 (D.D.C. 2013) . 8

Gray v. LaHood, 917 F.Supp.2d 120 (D.D.C. 2013) .................................................................... 10

Green v. Leibowitz, 500 N.Y.S.2d 146 (1986).............................................................................. 44

Gross v. Sweet, 49 N.Y.2d 102 (N.Y. 1979) ................................................................................. 31

Hausfeld v. Love Funding Corp., 131 F. Supp. 3d 443 (D. Md. 2015) ........................................ 26

Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94 (2d Cir. 2000) ....................................... 8

* Henry v. Daytop Vill., Inc., 42 F.3d 89 (2d Cir.1994) ............................................................... 29

Herb v. Van Dyke Seed Co., Inc., No. 3:12-cv-1070, 2012 WL 4210613 (D. Or. Sept. 19, 2012)

................................................................................................................................................... 29

* Himes Assocs. Ltd. v. Anderson, 178 Md. App. 504 (2008) ............................................ 1, 26, 27

Ihebereme v. Capital One, N.A., 730 F. Supp. 2d 40 (D.D.C. 2010)............................................ 34

In re Fluidmaster, Inc., 149 F. Supp. 3d 940 (N.D. Ill. 2016) ...................................................... 29

In re Johnson, 313 B.R. 119 (Bankr. E.D.N.Y. 2004) .................................................................. 42

In re Rail Freight Fuel Surcharge Antitrust Litig., 258 F.R.D. 167 (D.D.C. 2009) ............... 24, 25

Indep. Asset Mgmt. LLC v. Zanger, 538 F. Supp. 2d 704 (S.D.N.Y. 2008) ................................. 37

Jade Trading, LLC v. U.S., 60 Fed. Cl. 558 (Fed. Cl. 2004) ........................................................ 25

Jefferies v. D.C., 917 F. Supp. 2d 10 (D.D.C. 2013) .................................................................... 29

* Kalisch-Jarcho, Inc., v. City of New York, 58 N.Y. 2d 377 (N.Y. 1983) .................................. 30

Kirleis v. Dickie, No. 06cv1495, 2009 U.S. Dist. LEXIS 100326 (W.D. Pa. Oct. 28, 2009)....... 22

Konah v. D.C., 815 F.Supp.2d 61 (D.D.C. 2011) ........................................................................... 9

* Lass v. Bank of Am., N.A., 695 F.3d 129 (1st Cir. 2012) .......................................................... 41

Lifetree Trading PTE., LTD. v. Washakie Renewable Energy, LLC, No. 14 Civ. 9075, 2015 WL

3948097 (S.D.N.Y. June 29, 2015) ............................................................................................. 8

LoFrisco v. Winston & Strawn LLP, 839 N.Y.S.2d 481 (2007) ................................................... 34

Madeira v. United Talmudical Acad., 351 F. Supp. 2d 162 (S.D.N.Y. 2004) ................................ 7

Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173 (2011) ...................................................... 40

* Mandelblatt v Devon Stores, 521 N.Y.S.2d 672 (N.Y. 1987) ................................................... 39

Mann v. Estate of Meyers, 61 F. Supp. 3d 508 (D.N.J. 2014) .................................................. 9, 22

* Mawakana v. Bd. of Trustees of Univ. of D.C., 113 F. Supp. 3d 340 (D.D.C. 2015) ………………28

Mendez v. Avis Budget Group, 2012 U.S. Dist. LEXIS 50775 (D.N.J. Apr. 10, 2012) ....................... 41

Morales v. M. Alfonso Painting Corp., No. 11 Civ. 1263, 2013 U.S. Dist. LEXIS 134219

(S.D.N.Y. Sept. 19, 2013) ........................................................................................................... 9

New Vision Photography Program, Inc. v. D.C., 54 F. Supp.3d 12 (D.D.C. 2014) ................. 9, 10

News World Commc’ns, Inc. v. Thompsen, 878 A.2d 1218 (D.C. 2005) ..................................... 40

O’Donnell v. Barry, 148 F.3d 1126 (D.C. Cir. 1998) ................................................................... 29


v

Opan Realty Corp. v. Pedrone, 36 N.Y.2d 943 (1975) ................................................................ 34

* Panepucci v. Honigman Miller Schwartz and Cohn, LLP, 408 F. Supp. 2d 374 (E.D. Mich.

2005).................................................................................................................................... 14, 15

Phansalkar v. Andersen Weinroth & Co., L.P., No. 00 CIV. 7872, 2002 WL 1402297 (S.D.N.Y.

June 26, 2002) ........................................................................................................................... 34

Puckett v. McPhillips Shinbaum, No. 2:06-CV-1148, 2010 U.S. Dist. LEXIS 41729 (M.D. Ala.

Mar. 30, 2010) ........................................................................................................................... 14

Queen v. Schultz, 747 F.3d 87 (D.C. Cir. 2014) ........................................................................... 11

Railan v. Katyal, 766 A.2d 998 (D.C. 2001) ................................................................................ 44

Rather v. CBS Corp., 886 N.Y.S.2d 121 (App. Div. 1st Dept. 2009)........................................... 38

Rosenblatt v. Bivona & Cohen, P.C., 969 F. Supp. 207 (S.D.N.Y. 1997) .................................... 13

* Sagar v. Lew, 309 F.R.D. 18 (D.D.C. 2015) .......................................................................... 8, 24

* Samide v. Roman Catholic Diocese of Brooklyn, 754 N.Y.S.2d 164 (Sup. Ct. 2003)............... 35

* Scowcroft Group, Inc. v. Toreador Resources Corp., 666 F. Supp. 2d 39 (D.D.C. 2009) ........ 41

* Sergeants Benev. Ass’n Annuity Fund v. Renck, 796 N.Y.S.2d 77 (App. Div. 1st Dept.

2005)……………………………………………………………………………………….39, 40

Sigala v. ABR of VA, Inc., No. GJH-15-779, 2016 WL 1643759 (D. Md. Apr. 21, 2016) ............. 9

Simms v. Center for Correctional Health and Policy Studies, 794 F.Supp.2d 173 (D.D.C. 2011)

............................................................................................................................................. 10, 19

Simpson v. Ernst & Young, 100 F.3d 436 (6th Cir. 1996) ............................................................ 13

* Smith v. Brown & Jones, 633 N.Y.S.2d 436 (Sup. Ct. 1995) ........................................ 35, 38, 39

Smith v. Castaways Family Diner, 453 F.3d 971 (7th Cir. 2006)................................................. 19

Sommer v. Fed. Signal Corp., 79 N.Y.2d 540 (1992)................................................................... 40

Sparrow v. United Air Lines, Inc., 216 F.3d 1111 (D.C. Cir. 2000) ............................................. 28

* Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979) ......................................................... 10, 18

St. John’s Univ., N.Y. v. Bolton, 757 F. Supp.2d 144 (E.D.N.Y. 2010) ....................................... 41

Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859 (9th Cir. 1996) ...................................... 11

Sundberg v. TTR Realty, LLC, 109 A.3d 1123 (D.C. 2015)………….…….……………………42

Thompson v. Advanced Armament Corp., LLC, 614 Fed. Appx. 523 (2d Cir. 2015) ................... 33

* Transcience Corp. v. Big Time Toys, LLC, 2014 U.S. Dist. LEXIS 134245 (S.D.N.Y. Sept. 23,

2014).......................................................................................................................................... 41

Travellers Int’l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570 (2d Cir.1994) ........................ 33

U.S. v. Philip Morris USA Inc., 566 F.3d 1095 (D.C. Cir. 2009) ................................................. 37

Wall v. CSX Transp., Inc., 471 F.3d 410 (2d Cir. 2006) ............................................................... 42

* Wieder v. Skala, 80 N.Y.2d 628 (N.Y. 1992) ............................................................ 2, 32, 34, 35

Wilf v. Halpern, 599 N.Y.S.2d 57 (N.Y. 1993) ............................................................................ 38

Wood v. Lucy, Lady Duff Gordon, 222 N.Y. 88 (N.Y. 1919) ....................................................... 33


vi

Statutes

42 U.S.C. § 2000e(f) ..................................................................................................................... 28

FLSA ......................................................................................................................................... 9, 10

Maryland Equal Pay for Equal Work Act ........................................................................... 1, 25, 45

Md. Code Ann., Lab. & Empl. § 3-101(c). ............................................................................. 25, 28

Md. Code Lab. & Empl. § 3-101 .................................................................................................. 25

Md. Code Lab. & Empl. § 3-301 .................................................................................................. 26

Title VII ........................................................................................................................................ 28

Other Authorities

Banks, New York Contract Law § 21:66 (2d ed. 2017) ................................................................ 39

Farnsworth, The Law of the Contract § 7.16 (1982) .................................................................... 32

Restatement [Second] of Torts § 874............................................................................................ 40

Scalia & Garner, Reading Law: Interpretation of Legal Texts (2012) ......................................... 37

Wright, Miller & Kane, 5A Federal Practice & Procedure § 1357 (1990) ................................... 29

Rules

ABA Model Rule 8.4 .................................................................................................................... 36

DC RPC 9.1 .................................................................................................................................. 36

Fed. R. Civ. P. 26 ...................................................................................................................... 2, 11

Fed. R. Civ. P. 56 .................................................................................................................. 1, 7, 45

Fed. R. Civ. P. 8 ...................................................................................................................... 39, 41

Local Rule 16.3 ............................................................................................................................... 2

NY RPC 8.4(g).............................................................................................................................. 36

Fed. R. Civ. 12 .............................................................................................................................. 28


1

INTRODUCTION AND SUMMARY OF ARGUMENT

With its summary judgment motion, Defendant Proskauer Rose LLP (representing itself)

attempts an extreme maneuver: It seeks summary judgment on disputed claims before discovery

has even commenced. This gambit was recently rejected in an analogous case in which Proskauer

serves as defense counsel – also involving statutory claims brought by female partners against a

law firm – and should be rejected here too. See Campbell v. Chadbourne & Parke LLP, No. 1:16-

cv-8632, 2017 WL 2589389, at *2-3 (S.D.N.Y. June 14, 2017).

Proskauer asserts that, as a law partner, Plaintiff is not an “employee” covered by the

applicable statutes. As the Supreme Court has held, however, whether a partner is an “employee”

“depends on all of the incidents of the relationship with no one factor being decisive.” Clackamas

Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 451 (2003). This open-ended, “fact-

intensive” inquiry is inappropriate for resolution in advance of any discovery. See, e.g., Campbell,

2017 WL 2589389, at *2-3. The “facts” offered in Defendant’s Motion are disputed and fail to

establish that Plaintiff is not a covered “employee.” Pursuant to Fed. R. Civ. P 56(d), the Court

should permit full discovery to proceed and should adjudicate the claims in the proper course.

Proskauer’s motion to dismiss Plaintiff’s Maryland Equal Pay for Equal Work Act claims

likewise fails. Proskauer claims that Plaintiff is not covered by the law because she does not reside

in Maryland and Proskauer does not have an office there. But, as a Maryland lawyer engaged by

Proskauer to perform legal services in Maryland on behalf of Maryland clients, Plaintiff qualifies

for the protection of the statute. See, e.g., Cunningham v. Feinberg, 441 Md. 310, 333-35, 349

(2015); Himes Assocs. Ltd. v. Anderson, 178 Md. App. 504, 532-36 (2008).

Proskauer’s motion to dismiss Plaintiff’s common law claims is also misplaced. Defendant

asserts that its Executive Committee retains unfettered, unreviewable authority to set partner pay


2

and even to discriminate and retaliate against partners. However, it is an inherent part of a law

partnership that a law firm will abide by fundamental ethical precepts, including refraining from

discrimination and retaliation. Cf., e.g., Wieder v. Skala, 80 N.Y.2d 628 (N.Y. 1992) (seminal case

holding that attorney who was fired in retaliation for complaints of ethical misconduct had a valid

claim for breach of contract).1 Moreover, the term of Proskauer’s Partnership Agreement

purporting to exempt the Executive Committee’s decisions from review should be construed

narrowly to avoid an unlawful exculpatory effect; otherwise it is void. Cf., e.g., Abacus Fed.

Savings Bank v. ADT Sec. Servs., Inc., 18 N.Y.3d 675, 683 (N.Y. 2012) (as a matter of New York

public policy, parties cannot contractually insulate themselves from damages for gross negligence

or reckless or intentional conduct). Based on her well-pled allegations of discrimination and

retaliation, Plaintiff states valid claims of breach of contract/breach of the covenant of fair dealing,

breach of fiduciary duty, fraudulent misrepresentation, and unjust enrichment.

PROCEDURAL HISTORY

This litigation is in its infancy. Plaintiff filed her complaint on May 12, 2017, and

Defendant still has not filed an answer. Discovery has not commenced, and the parties have not

yet conducted their Local Rule 16.3 and Fed. R. Civ. P. 26(f) conference. (Sanford Decl. ¶ 2.)

The Court has not set a discovery schedule or convened an initial case management conference.

Yet, on June 13, 2016 – before an answer was even filed and before any discovery took

place – Defendant filed the Motion for Summary Judgment and Motion to Dismiss (“Motion”) at

1 As Wieder stated: “We agree with plaintiff that in any hiring of an attorney . . . to practice law

with a firm there is implied an understanding so fundamental to the relationship and essential to

its purpose as to require no expression: that both the associate and the firm in conducting the

practice will do so in accordance with the ethical standards of the profession. Erecting or

countenancing disincentives to compliance with the applicable rules of professional conduct,

plaintiff contends, would subvert the central professional purpose of his relationship with the

firm—the lawful and ethical practice of law.” 80 N.Y.2d at 635-36.





6

work, as well as detailed records concerning their billings and collections. (Id. ¶ 33.) These records

are monitored and scrutinized by the Firm’s Executive Committee and Department Chairs selected

by the Committee. (Id.) Plaintiff is also required to provide monthly reports to her Department

Co-Chairs – orally and/or in writing – detailing the status of her and her team’s cases. (Id. ¶ 34.)

Further, the Committee directs all Proskauer partners to complete annual written performance

evaluations detailing their work. (Id. ¶ 40.) Finally, it is a common for Proskauer partners to be

supervised by, and report to, other partners on cases. In a recent matter, for example, Plaintiff’s

work (and the work of numerous other equity partners) was dictated, directed, and supervised by

several other partners. (Id. ¶ 36.)

Since Plaintiff brought her complaints about discrimination to the Firm’s attention, she has

felt the full weight of the Firm’s control over her. Plaintiff was informed – by an attorney

representing Proskauer, in the presence of General Counsel – that the Firm would terminate her

based on her complaints. (Id. ¶ 25.) Proskauer could only issue this proclamation because it

believed it had the authority to carry it out. Further, Proskauer restricted Plaintiff’s activities at

the Firm. Among other adverse employment actions, the Firm restricted her access to the Firm’s

document management system and database search features (essential tools to perform her legal

work). (Plaintiff Decl. ¶ 38.) Further, Proskauer has excluded Plaintiff from working with Firm

clients, diverted her work to other (male) partners with less experience and expertise, removed her

from cases and from Firm committees, and excluded her from the Firm’s recruiting efforts. (Id.)

It has also disrupted her relationships with clients and colleagues. (Id.)

Where the Firm’s executive management possesses dominion over Plaintiff’s employment

to unilaterally discriminate and retaliate against her, it should be held accountable for its conduct.


7

ARGUMENT

I. THE COURT SHOULD DENY PROSKAUER’S SUMMARY JUDGMENT

MOTION UNDER RULE 56(d) AND ALLOW FULL DISCOVERY TO PROCEED

A. Fed. R. Civ. P. 56 Expressly Contemplates Appropriate Discovery Before

Summary Judgment Proceedings

Summary judgment is proper only “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The movant bears the burden of showing the absence of any genuine issue of material fact.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). To meet its burden, the movant must

“[identify] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine

issue of material fact.” Celotext Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Fed. R. Civ.

P. 56(c). The burden then shifts to the non-movant to show a genuine issue of fact. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The “evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in [its] favor.” Id. at 255.3

The non-moving party’s obligation is “qualified by Rule 56(f)’s [now 56(d)] provision that

summary judgment be refused where the nonmoving party has not had the opportunity to discover

information that is essential to [its] opposition.” Anderson, 477 U.S. at 250 n.5. Because Rule

56(d) is an important safeguard against improvident or premature motions for summary judgment,

“district courts should construe motions that invoke the rule generously, holding parties to the

rule’s spirit rather than its letter.” Convertino v. U.S. Dept. of Justice, 684 F.3d 93, 99 (D.C. Cir.

3 Summary judgment is not warranted based solely on a “self-serving affidavit,” particularly before

discovery is closed. See, e.g., Madeira v. United Talmudical Acad., 351 F. Supp. 2d 162, 167

(S.D.N.Y. 2004) (the court “could not grant summary judgment” based solely on “the self-serving

affidavit of an officer of [defendant]” who “has never been deposed.”).


8

2012) (citation omitted). “A Rule 56(f) [now Rule 56(d)] motion requesting time for additional

discovery should be granted almost as a matter of course unless the non-moving party has not

diligently pursued discovery of the evidence.” Id. (emphasis added).

In sum, Rule 56(d) reflects the basic precept that “summary judgment is premature unless

all parties have ‘had a full opportunity to conduct discovery.’” Id. (quoting Anderson, 477 U.S. at

257); see also Dinkel v. Medstar Health, Inc., 286 F.R.D. 28, 33 (D.D.C. 2012) (denying motion

without prejudice where discovery had not begun).4 Indeed, “it would be unfair to require Plaintiff

to oppose Defendant’s summary judgment motion without any opportunity for discovery.” Sagar

v. Lew, 309 F.R.D. 18, 20 (D.D.C. 2015). “Only in the rarest of cases may summary judgment be

granted against a plaintiff who has not been afforded the opportunity to conduct discovery.”

Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000). See also Lifetree

Trading PTE., LTD. v. Washakie Renewable Energy, LLC, No. 14 Civ. 9075, 2015 WL 3948097,

at *6 (S.D.N.Y. June 29, 2015) (pre-discovery motion for summary judgment “should be granted

only in the rarest of cases because the nonmoving party must have had the opportunity to discover

information that is essential to his opposition to the motion for summary judgment.”).

B. Defendant’s Summary Judgment Motion Is Premature

Defendant contends that, as a matter of law, Plaintiff is not an “employee” protected by the

statutes invoked in this action. But, as courts have repeatedly counseled, the determination of

whether an individual is an “employee” involves a “highly fact-intensive inquiry.” Carey v. Foley

& Lardner LLP, 577 Fed. Appx. 573, 578 n.3 (6th Cir. 2014). See also, e.g., Ghori-Ahmad v. U.S.

Comm. on Internat’l Religious Freedom, 969 F.Supp.2d 1, 6 (D.D.C. 2013) (determination of

4 Likewise, the requirement that a party opposing summary judgment submit a statement citing to

the parts of the record relied on to support each genuine issue of material fact, see D.D.C. Local

Civil Rule 7(h), necessarily contemplates the completion of adequate discovery.


9

status as an “employee” is a “relatively open-ended, fact-intensive inquiry”) (citing Konah v. D.C.,

815 F.Supp.2d 61, 70 (D.D.C. 2011)); Mann v. Estate of Meyers, 61 F. Supp. 3d 508, 530-31

(D.N.J. 2014) (denying summary judgment on Clackamas issue and observing that “[p]erhaps any

six-factor test is fertile ground for material issues of fact.”); Morales v. M. Alfonso Painting Corp.,

No. 11 Civ. 1263, 2013 U.S. Dist. LEXIS 134219, at *9, 12 (S.D.N.Y. Sept. 19, 2013) (“the

question of whether an employer-employee relationship exists [under the FLSA/EPA] is a fact-

intensive inquiry,” and thus is “rarely amenable to summary judgment”); Sigala v. ABR of VA,

Inc., No. GJH-15-779, 2016 WL 1643759, at *5 (D. Md. Apr. 21, 2016) (“whether Plaintiffs fall

into the statutory definition of ‘employee’” under FLSA/EPA is a “fact-intensive” determination

“best made alter discovery has been completed.”); Campbell, 2017 WL 2589389, at *2-3.

Whether an individual is a covered “employee” turns on the common law of agency.

Clackamas, 538 U.S. at 444-45; New Vision Photography Program, Inc. v. D.C., 54 F. Supp. 3d

12, 25 (D.D.C. 2014). To determine whether Plaintiff is an “employee,” the Court must examine

the totality of the circumstances related to the parties’ relationship, particularly the Firm’s control

over Plaintiff’s employment. See Clackamas, 538 U.S. at 448. In Clackamas, the Supreme Court

articulated six, non-exhaustive factors that drive this inquiry: (i) whether the organization can hire

or fire the individual or set the rules and regulations of the individual’s work; (ii) the extent to

which the organization supervises an individual’s work; (iii) whether the individual reports to

someone higher in the organization; (iv) the extent to which the individual is able to influence the

organization; (v) whether the parties intended that the individual be an employee; and (vi) whether

the individual shares in the profits, losses, and liabilities of the organization. Id. at 449-50. No

single factor is decisive, id. at 451, and the six factors are not exclusive, id. at 450 n.10 (“The

answer to whether a shareholder-director is an employee or an employer cannot be decided in


10

every case by a shorthand formula or magic phrase.”) (citation omitted).

Further, when determining whether a plaintiff is an “employee,” courts in this jurisdiction

have frequently relied on the eleven factors enumerated in Spirides v. Reinhardt, 613 F.2d 826,

829 (D.C. Cir. 1979), with an emphasis on the defendant’s control over the plaintiff’s work. See

e.g. New Vision Photography Program, 54 F.Supp.3d at 25; Simms v. Center for Correctional

Health and Policy Studies, 794 F.Supp.2d 173, 190 (D.D.C. 2011).5 Ultimately, the overarching

question is whether Proskauer exercised sufficient dominion over Plaintiff’s employment to be

in a position to discriminate and retaliate against her.

Proskauer’s summary judgment motion seeks to leap-frog the discovery essential to its

defense to Plaintiff’s discrimination and retaliation claims. In the absence of discovery concerning

the relevant factors, however, it is error to enter summary judgment while disregarding a party’s

Rule 56(d) request for discovery. Applying this uniform understanding of Rule 56(d), the Second

Circuit has addressed the very question at issue here and held that it is improper to deem workers

non-“employees” without adequate discovery. See Foresta v. Centerlight Capital Mgmt., LLC, 379

Fed. Appx. 44, 46-47 (2d Cir. 2010) (holding that the district court abused its discretion by granting

summary judgment after “only limited discovery” and directing that full discovery was necessary

on the application of the factors as to whether the workers there qualified as “employees.”); see

also Gray v. LaHood, 917 F.Supp.2d 120, 127-28 (D.D.C. 2013) (denying summary judgment

because “[n]o discovery ha[d] yet occurred” and, thus, defendant “failed to establish the absence

of a genuine issue of material fact on the most significant question: the extent of the employer’s

5 There are various sets of factors applied under the FLSA/EPA (and other federal and state

statutes) to determine whether an employment relationship exists. See e.g. Morrison v. Internat’l

Programs Consortium, 253 F.3d 5, 10-11 (D.C. Cir. 2001); Perez v. C.R. Calderon Construction,

Inc., 221 F.Supp.3d 115, 140-41 (D.D.C. 2016); Kerr v. Marshall University Board of Governors,

824 F.3d 62, 83 (4th Cir. 2016). The unifying element is the overall focus on “control.”


11

right to control the means and manner of [plaintiff’s] performance.”); Coles v. Harvey, 471

F.Supp.2d 46 (D.C. Cir. 2007) (holding defendant could raise the issue of whether plaintiff was an

employee “after a more complete factual record ha[d] been developed through discovery.”);

Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859, 868 (9th Cir. 1996) (error to dismiss

discrimination case on basis that plaintiff was a partner when no discovery had been conducted;

noting that “[t]he complaint and the partnership agreement leave many unanswered questions

about how the partnership actually conducts itself”); Campbell, 2017 WL 2589389, at *2-3.6

Compare: Dean v. Am. Fed’n of Gov. Employees, Local 476, 549 F.Supp.2d 115, 122 (D.D.C.

2008) (granting judgment only because “discovery has already been conducted . . . and Plaintiff

has had the opportunity to proffer all relevant evidence regarding the [employment] relationship”).

In this case, no discovery whatsoever has been conducted.7 For this reason alone, the Court

should deny Defendant’s motion as fatally premature and allow discovery to proceed.

C. Discovery Will Show that Proskauer Partners, Such as Plaintiff, Are

Employees Under Applicable Law

Plaintiff’s experiences directly contravene Defendant’s representations about how the Firm

operates. Proskauer’s rank-and-file partners do not operate as business owners. (Plaintiff Decl. ¶

9.) Instead, Proskauer’s Executive Committee wields extensive, unilateral, and – according to

Defendant – unreviewable control over the terms and conditions of partner employment. (Id. ¶

14.) The Executive Committee controls hiring and firing, sets comprehensive rules and regulations

for partner work, requires partners to report to supervisors, and sets partner pay. The control vested

6 Cf. Queen v. Schultz, 747 F.3d 879, 887 (D.C. Cir. 2014) (at summary judgment stage, court

could determine whether plaintiff was an employee or agent rather than a partner).

7 By filing its premature motion, Proskauer has preempted the timeline for Plaintiff to issue

discovery demands. See Fed. R. Civ. P. 26(d). Here, it would be futile for the parties to confer on

Rule 56(d) discovery because Proskauer makes its position clear: no discovery is warranted.


12

in and exercised by the Executive Committee creates a substantial separation between the Firm

and its rank-and-file partners; far from being synonymous with the Firm, Proskauer’s non-

managerial partners are workers (albeit relatively high-ranking ones) carrying out the Firm’s

business on its behalf and potentially subject to its adverse employment actions. It is the Executive

Committee that controls Firm partners, not the other way around.8

Proskauer’s treatment of its partners as “employees” accords with the Firm’s size and

structure. Unlike the small professional partnerships discussed in other cases, in which a handful

of individuals joined together to launch a closely-held business, Proskauer is a multi-national

enterprise that reported over $852 million in gross revenue in 2016. According to Proskauer, the

Firm has approximately 740 attorneys across 13 offices. (Leccese Decl. ¶ 3.) Approximately 40

percent of the Firm’s attorneys, or over 280 individuals, hold the title partner. (Plaintiff Decl. ¶

8.) All managerial and operational control for the Firm’s sprawling operations is vested in a

compact, seven-member Executive Committee. (Id. ¶¶ 10.) This Committee is all-male. (Id.)

The Supreme Court has recognized that partners at a firm like Proskauer may often qualify

as “employees.” As stated in Clackamas: “Today there are partnerships that include hundreds of

members, some of whom may well qualify as ‘employees’ because control is concentrated in a

small number of managing partners.” 538 U.S. at 446. See also id. at 451 n.11 (citing factors

weighing in favor of and against finding that director-shareholder physicians were employees and

8 Defendant’s argument that Plaintiff is not an “employee” because partners purportedly delegated

control to the Committee is of no moment. Every employee, by choosing to work somewhere,

submits to the workplace’s rules and regulations. That an employee has consented to the

employer’s control should only serve to bolster the argument that the parties intended to create an

employer-employee relationship, where the keystone feature is control. See Foresta, 379 Fed.

Appx. at 46 (looking to common-law agency to determine if there is an employment relationship);

Restatement 3d of Agency, § 1.01 (indicating that a relationship is one of agency under the

common law if “the agent consents to act on behalf of the principal, and the principal has the right

throughout the duration of the relationship to control the agent’s acts.”).


13

remanding to lower court to determine physicians’ status). Likewise, in E.E.O.C. v. Sidley Austin

Brown & Wood, 315 F.3d 696 (7th Cir. 2002), the Seventh Circuit recognized that large, modern

law firms are more akin to corporate banks than conventional partnerships. Id. at 707. Thus, Sidley

postulated, ordinary partners would often be “employees” of the firm, with centralized committees

exercising control over the business and acting as the true “employers.” Here, Proskauer’s highly-

consolidated management structure mirrors that in Sidley, and, as in Sidley, adequate discovery on

these matters is needed before the Court can issue a reasoned decision. See id. at 702-03 (among

more than 500 partners, power resided in a 36-person committee).

Contrary to Proskauer’s assertions, numerous courts, relying on common-law principles of

control discussed in Clackamas, have held that partners and shareholders in professional

organizations are “employees” for purposes of employment protections. See, e.g., Simpson v.

Ernst & Young, 100 F.3d 436, 443-44 (6th Cir. 1996) (where discovery had concluded, holding

that partner in accounting firm was an employee for the purposes of ADA and ERISA because

management committee actually ran the firm and because plaintiff had no bona fide ownership

interest, share in the profits, fiduciary position, management control, or meaningful vote in firm

decisions); Rosenblatt v. Bivona & Cohen, P.C., 969 F. Supp. 207, 214-15 (S.D.N.Y. 1997)

(granting plaintiff’s motion for summary judgment; finding non-shareholder law firm partner an

employee based on ability to control and operate the business, compensation practices, and level

of employment security); Caruso v. Peat, Marwick, Mitchell & Co., 779 F. Supp. 332, 333

(S.D.N.Y. 1991) (noting that jury found partner of accounting firm to be employee even though

he received profits because compensation was also based on performance and he had only a

nominal role in firm management); see also Magnotti, 126 F. Supp. 3d at 310-11 (holding that

plaintiff had sufficiently pled his status as an employee despite defendant’s contention that he was


14

an owner-proprietor: plaintiff’s allegations that defendant controlled all aspects of his work

schedule and wages, required him to report to other individuals, and denied him any sort of

influence over the company by vesting all voting power elsewhere, “if true, would warrant finding

plaintiff to be an employee”); Puckett v. McPhillips Shinbaum, No. 2:06-CV-1148, 2010 U.S. Dist.

LEXIS 41729, at *17-18 (M.D. Ala. Mar. 30, 2010) (denying summary judgment; applying

Clackamas to find that law firm’s partners could be employees under the ADEA), adopted at 2010

U.S. Dist. LEXIS 41728, at *1 (M.D. Ala. Apr. 28, 2010).

In Panepucci v. Honigman Miller Schwartz and Cohn, LLP, 408 F. Supp. 2d 374 (E.D.

Mich. 2005), for instance, the court held that “the question of whether plaintiff [a female law

partner alleging discrimination] is an employee [under Clackamas] is not appropriately determined

on [a] motion to dismiss.” Id. at 376. At the early juncture present in Panepucci, the court – like

the Court here – was “faced only with the pleadings, the competing [affidavits of the parties], the

Partnership Agreement, and [defendant’s] Attorney Manual.” Id. at 377. This limited evidence

weighed in both directions, leaving the court “convinced that the answer to [the Clackamas]

question” – namely, whether plaintiff was an “employee” on the one hand or “had the real ability

to exercise control over the organization on the other” – “would become clear only after further

discovery clarifies [plaintiff’s] role with the firm.” Id. The court noted that many of the defendant’s

cited cases “were decided on a motion for summary judgment, after the benefit of discovery.” Id.

Likewise, in Campbell, the court heeded “the Supreme Court’s directive to consider

the Clackamas factors in light of the facts on the ground” and rejected a pre-discovery motion for

summary judgment that Proskauer, as defense counsel, had filed. 2017 WL 2589389, at *3

(emphasis added). Notably, the court identified a need for discovery on a range of issues that are

likewise disputed in this case – including control over hiring and firing and individual partners’


15

autonomy and access to profits. Id. (“Plaintiffs contest Defendants' representation that

Chadbourne’s hiring, firing, and status-change of partners is determined by the partners generally;

rather, Plaintiffs argue, discovery would show that a sub-committee of partners (the Management

Committee) exercises unilateral control over these decisions. . . Plaintiffs also contest any

individual partner's degree of control, autonomy, and access to profits, and they further suggest

that discovery would reveal that the Management Committee alone wields such authority.”)

D. The Court Should Allow Plaintiff to Take Discovery Before Opposing

Summary Judgment on the Merits9

While Plaintiff has personal knowledge of her employment relationship with Proskauer,

she has never been a part of the Firm’s male-dominated Executive Committee and therefore lacks

access to the full scope of documentation and testimony that will fully refute Proskauer’s skewed

picture of how the Firm operates. (Plaintiff Decl. ¶ 50.) Because discovery has not yet commenced

in this case, Plaintiff is unable to present substantial evidence beyond her own affidavit. Plaintiff

is entitled to obtain information to elucidate the true nature of her relationship to the Firm and

show that, consistent with her own experiences and observations, it constitutes an employment

relationship under applicable law. See, e.g., Foresta, 379 Fed. Appx. at 47; Panepucci, 408 F.

Supp. 2d 374. Discovery will establish that rank-and-file partners like Plaintiff do not “manage”

the Firm and are not “employers” – Proskauer’s Executive Committee retains complete managerial

control over the Firm and its partners, and Plaintiff is the Firm’s employee.

(1) Discovery Will Show the Executive Committee Controls Hiring and Firing

Contrary to Defendant’s representations, Proskauer’s Executive Committee controls all

hiring and firing decisions at the Firm. (Plaintiff Decl. ¶ 21.) The Committee closely controls

9 By filing this opposition seeking Rule 56(d) discovery, Plaintiff does not waive the right to

oppose summary judgment on any other grounds after the completion of relevant discovery.


16

hiring of partners. When the Committee decides to hire a partner, it provides the full partnership

with extremely limited information about and access to him or her. (Id. ¶ 22-23.) Further, the

Committee asserts the prerogative to unilaterally fire partners. (Id. ¶ 24.) Plaintiff is aware of the

Committee directing partners to leave the Firm without any notice, input, or vote of the full

partnership. (Id.) Further, the Committee represented to Plaintiff that it inserts provisions in all

lateral partner contracts purportedly authorizing it to unilaterally terminate them. (Id. ¶ 4.)

Plaintiff’s own experiences make clear that Proskauer’s Executive Committee unilaterally

hires and fires partners. Proskauer’s Chairman extended her a formal offer to before presenting her

to the full partnership. Moreover, Plaintiff’s individual agreement was signed before – and not

made contingent on – any partnership vote. (Plaintiff Decl. ¶ 2.) Further, Proskauer has taken

the position that its side agreement with Plaintiff authorizes the Firm to unilaterally terminate

Plaintiff without any vote of the partnership. (Leccese ¶ 47.) Indeed, Proskauer notified Plaintiff

that she would be terminated based on her complaints of discrimination. (Plaintiff Decl. ¶ 25.)

The cases cited by Proskauer in support of its position that the Firm does not actually “fire”

partners are inapposite because, in each of those cases, the plaintiff could only be terminated by a

vote of the majority of the governing board. (Motion at pp. 21-22.) Here, however, Proskauer has

taken the position that its side agreement with Plaintiff authorizes the Firm to unilaterally terminate

Plaintiff without any vote of the partnership. The Executive Committee’s assertion that it has the

prerogative to unilaterally terminate Plaintiff (and the fact that it unilaterally hired her) is consistent

with an employer-employee relationship.

Discovery is needed to test the parties’ competing assertions regarding the hiring and

termination of partners. Through discovery, Plaintiff intends to develop proof that the Executive

Committee, and not the broader partnership, exercises overarching control over partners’



18

various Firm templates for drafting certain types of policies and agreements. (Id.) Proskauer also

limits the types of clients whom partners are able to represent and limits the positions and claims

partners can assert on behalf of clients. (Id.) Given that Proskauer has not provided Plaintiff with

autonomy with regard to how she completed her work, the cases cited by Defendant are inapposite.

See e.g. Spirides v. Reinhardt, 613 F.2d 826, 831 (D.D.C. 1979) (if the employer has “the right to

control and direct the work of an individual, not only as to the result to be achieved, but also as to

the details by which that result is achieved, an employer/employee relationship is likely to exist.”)

Discovery is needed to test the parties’ competing assertions regarding Plaintiffs’ and

other partners’ workplace autonomy and influence (or lack thereof). Discovery will establish

the full scope of rules and regulations placed on partners, how policies binding upon partners are

set by the Firm, and how these policies are enforced upon partners. (Sanford Decl. ¶ 6.)

(3) Discovery Will Show that Partners Report to and Are Supervised by the

Executive Committee and Its Designees

Proskauer partners are supervised by, and required to report to, the Executive Committee

and Department Chairs unilaterally selected by the Committee. (Plaintiff Decl. ¶ 33.) Proskauer

partners are required to submit daily time records reflecting their work and detailed records

concerning billings and collections. These records are monitored and scrutinized by the Firm’s

Executive Committee and its designated Department Chairs. (Id.) Plaintiff is also required to

provide monthly reports to her Department Co-Chairs – orally and in writing – detailing the status

of her and her team’s cases. (Id. ¶ 34.) Further, the Executive Committee directs all partners to

complete annual written performance evaluations detailing their work. (Id. ¶ 40.)

Additionally, unlike the cases cited by Defendant where the plaintiffs operated with no

direct supervision, Proskauer partners are frequently supervised by other partners on cases. In a

recent matter, for example, Plaintiff’s work (and the work of numerous other equity partners) was


19

dictated, directed, and supervised by several other Firm partners. (Id. ¶ 36.) Among other things,

she was required to submit drafts of memoranda and other communications for other partners’

review and revisions. (Id.) In at least one instance, Plaintiff was directed to provide legal advice

with which she disagreed. (Id.) It is Plaintiff’s understanding that it is common for Proskauer

partners to perform work under this type of oversight. (Id.)

Although Proskauer partners may not always report to Firm management in precisely the

same way that associates do, this is not the relevant test: An organization may contain multiple

levels of employees with different reporting relationships. See, e.g., Simms v. Cntr. For Corr.

Health & Policy Studies, 794 F. Supp. 2d 173, 190 (D.D.C. 2011) (requirement that plaintiff

“report[] to the Health Administrator regarding the status of her department” was a factor in

determining that plaintiff qualified as an employee). In addition, the fact that a partner supervises

other subordinates does not preclude “employee” status. See, e.g., Smith v. Castaways Family

Diner, 453 F.3d 971, 980 (7th Cir. 2006) (holding that supervisor qualified as an “employee”):

In practice, [a managerial employee] may be given virtually unbounded day-to-day

discretion and authority in operating the business. Nonetheless, he exercises that discretion

and authority at the pleasure of the business owner; he has no inherent right, as the owner

does, to control the business. In that respect, his position is no different from that of any

other worker: he could be overruled (and, depending on the terms of his employment

contract, fired) just as summarily as the lowest ranked employee.

Discovery is needed to test the parties’ competing assertions regarding the level of

supervision and oversight Firm management exercises over Proskauer partners. Through

discovery, Plaintiff will seek facts related to partners’ reporting arrangements and the Firm’s

supervision and control over partner work, not just in theory but in regular practice. To develop

these facts, Plaintiff will seek documents and testimony regarding the extent of involvement and

control exercised by the Executive Committee and its designees. (Sanford Decl. ¶¶ 7, 8.)

(4) Discovery Will Show that Plaintiff has Little Influence Over the Firm’s Affairs


20

All real authority at Proskauer lies with the Executive Committee, and rank-and-file

partners like Plaintiff have no meaningful ability to influence the Firm. (Plaintiff Decl. ¶ 15) The

Committee initiates, implements, and controls important Firm decisions without notice to, input

from, or votes of the full partnership. (Id. ¶ 18.) Partners are provided limited information about

the Firm’s operations. The financial reports that they receive are perfunctory. (Id. ¶¶ 19, 49.) The

Committee maintains private electronic files to which Plaintiff lacks access. (Id. ¶ 49.)

Partners like Plaintiff have no influence over Firm policies. (Id. ¶ 32.) The Partnership

Agreement entitles partners to vote on only a limited subset of actions (such as ones that the

Executive Committee itself determines should be voted on). (Lecesse Decl. Ex. 1 §. 6(a).) Even

with respect to the limited issues that the Partnership Agreement purportedly allocates to a vote of

the full partnership, the Committee acts unilaterally, including hiring and firing partners. (Plaintiff

Decl. ¶ 20.) While Proskauer asserts that the Committee considers the input of Firm partners when

appointing Department Chairs, Plaintiff experienced otherwise. When Plaintiff asserted legitimate

objections to the appointment of a recent Co-Chair, she was ignored. (Id. ¶ 16.)

Further, Plaintiff’s purported voting rights as a rank-and-file partner afford her minimal

influence over the Firm. Proskauer itself appears to concede that partners can only “check” the

Executive Committee’s actions by voting on its composition (without retaining any right to remove

members of the Committee). It is the Committee, however, which determines the voting power of

“contract partners.” (Id. ¶ 15.) Further, contrary to Proskauer’s representations, many partners

may be ineligible to serve on the Executive Committee because the Partnership Agreement appears

to authorize only partners who do not have side agreements with the Firm to serve in this capacity.

(Id.; Leccese Decl. Ex. 1 § 7(c).) In fact, when Plaintiff sought more of a leadership role at the

Firm, Chairman Leccese rebuffed her – even though he had previously given glowing assessments


21

of her performance, contributions to the Firm, and leadership skills. (Plaintiff Decl. ¶ 16.)

In any event, merely voting on the membership of the Executive Committee is insufficient

to establish as a matter of law that Plaintiff has influence over the Firm. See Mann, 61 F. Supp. at

530 (finding issues of fact on influence factor, where plaintiff “was unable to stop the dealership

from taking actions that [he] opposed,” including moving a franchise, keeping an employee that

plaintiff wanted to fire, and terminating plaintiff).

Discovery is needed to test the parties’ assertions regarding Proskauer partners’

influence (or lack thereof) in matters of Firm governance. Through discovery, Plaintiff intends

to develop information reflecting the wide-ranging powers of the Executive Committee and the

Department Co-Chairs it hand-selects; deliberations, actions, or decisions made by the Committee

without disclosure to, input from, or votes of the partnership; and the Committee’s refusal to

consider partner feedback, complaints, or objections regarding its actions. (Sanford Decl. ¶ 9.)

(5) Discovery Will Establish the Intent to Treat Plaintiff as an Employee

While Proskauer argues that “the Firm’s Partnership Agreement [e]vidences an [i]ntent

that Plaintiff [b]e an [o]wner/[e]mployer, [n]ot an [e]mployee” (Motion at p. 28), “‘the mere

existence of a document styled,’ for example, as an ‘employment agreement,’ or a partnership

agreement, does not necessarily answer the question.” Campbell, 2017 WL 2589389, at *3.

Further, the very terms of Proskauer’s Partnership Agreement, as well as Proskauer’s side

agreement with Plaintiff, purport to vest in Proskauer’s Executive Committee a level of control

that is consistent with an employee-employer relationship.

In fact, the parties had no agreement or understanding that Plaintiff would be exempt from

statutory protections against discrimination and retaliation. To the contrary, Proskauer’s Equal

Employment Opportunity and Anti-Harassment Policy is embedded in the Firm’s Lawyer Manual


22

and extends its protections to all individuals, including all lawyers, at the Firm. (Plaintiff Decl. ¶

6.) Proskauer trains partners on these policies. (Id.) Further, when Plaintiff made an internal

complaint about discrimination and retaliation, Proskauer commenced a purported investigation

into her allegations as contemplated under Firm policies. (Id.) Further, all Proskauer lawyers have

a duty to comply with ethical rules prohibiting discrimination and retaliation. Accordingly, it was

Plaintiff’s intention and understanding that she would be entitled to these protections. (Id. ¶ 5.)

Discovery is needed to test the parties’ assertions regarding the parties’ intent as to

partners’ employment status. In discovery, Plaintiff will seek documents and testimony

evidencing the parties’ intent. (Sanford Decl. ¶ 10.)

(6) Discovery Will Show That Plaintiff Does Not Share in the Firm’s Profits,

Losses, and Liabilities

Contrary to Defendants’ assertion, Plaintiff does not “share” in the Firm’s profits, losses,

or liabilities. (Plaintiff Decl. ¶ 39.) The mere fact that a partner may be paid out of year-end

profits does not mean that she is sharing in profits the way a true owner does. See Mann, 61 F.

Supp. 3d at 530 (determining that the question of profit-sharing was “muddled” and presented an

issue of fact where plaintiff testified that the profits of the shareholders were not distributed in

proportion to percentage ownership, but were instead doled out as year-end bonuses based on

performance); Caruso v. Peat, Marwick, Mitchell & Co., 717 F. Supp. 218, 222 (S.D.N.Y. 1989)

(denying summary judgment where genuine issue of material fact existed as to whether partner

was an employee; even though “[p]artners generally receive a percentage of the firm’s profits

rather than a fixed salary,” plaintiff argued that “compensation was based on performance, much

like that of a traditional employee. . . and subject to change upon favorable or unfavorable review

of plaintiff's work”); cf. Kirleis v. Dickie, No. 06cv1495, 2009 U.S. Dist. LEXIS 100326 at *78

(W.D. Pa. Oct. 28, 2009) (distinguishing profit sharing from “costs” like bonuses and salaries).


23

Proskauer concedes that “[u]nlike many other law firms, Proskauer does not have

‘points’ or ‘shares’ or any metrics that ‘entitle’ a partner to any particular allocation in a given

year.” (Leccese Decl. ¶ 25 (emphasis added).) Rather than distributing profits in accordance with

fixed percentage interests in the Firm (as a true partnership would), Proskauer’s Executive

Committee changes partner pay from year to year at its discretion – purportedly after completion

of a performance review process. (Plaintiff Decl. ¶ 40.) In this way, the process for setting partner

pay is akin to the process for assigning pay and performance bonuses to other employees at the

Firm, including senior staff, senior counsel, and non-equity partners. (Id.) Further, according to

the Firm’s Partnership Agreement, Proskauer’s Executive Committee exercises unilateral control

in assigning partners a part of losses or liabilities incurred by the Firm. (Leccese Ex. 1 § 11.)

Discovery is needed to test the parties’ assertions regarding any purported “sharing” of

profits, losses, and liabilities. In discovery, Plaintiff will seek documents and testimony

concerning Proskauer’s system of determining partner pay to confirm that partners have no “share”

of profits or losses but that the Executive Committee instead unilaterally establishes partner pay

each year in connection with annual performance assessments. (Sanford Decl. ¶ 11.)

E. Full Discovery Should Proceed Immediately; The Court Should Promptly

Hold a Management Conference and Enter a Scheduling Order

The early timing of Defendant’s Motion for Summary Judgment, and the paucity of

evidentiary support for it, strongly suggest that Proskauer filed this Motion not in hopes of success

but rather in an attempt to postpone discovery and improperly limit its scope. In the analogous

Campbell case, Proskauer – on behalf of the law firm defendant in that action – unilaterally refused

to engage in or produce any discovery in response to the plaintiffs’ discovery requests until the

Court decided a similarly premature summary judgment motion. This caused a more than seven-

month standstill in the case while the premature (and ultimately futile) summary judgment motion


24

was briefed and awaited a decision. To avoid unnecessary delays while Proskauer’s abortive

motion is pending, discovery should proceed immediately.

Further, discovery should not be limited to the issues framed in Defendant’s Motion.

Proskauer should not be able to unilaterally restrict the scope of discovery by filing a premature,

abortive Motion for Summary Judgment on one defense to certain of Plaintiff’s claims. See Sagar,

309 F.R.D. at 20 (Rule 56(d) “does not limit the scope of discovery” and given that “Plaintiff’s

claims overlap[] significantly” it would be “inappropriate if the scope of discovery were limited

by the Court to issues potentially raised by Defendant’s motion for summary judgment”).

Rather, full discovery should proceed not only on Plaintiff’s “employee” status but also on

all other merits issues. Such a course is especially appropriate given that discovery on Plaintiff’s

“employee” status will necessarily overlap with merits issues, including Plaintiff’s allegations of

discrimination and retaliation. Indeed, the extent of control exercised by Proskauer’s male-

dominated Executive Committee, including its dominion over partner pay and partner termination,

are central queries in this case. In Defendant’s own Statement of Material Facts, more than a

third of Defendant’s statements relate to Proskauer’s process of setting partner pay and the

setting of Plaintiff’s pay – issues that directly overlap with the merits of Plaintiff’s claims. (See

Nos. 47-73, 84-85, 93-102.) Cf., e.g., In re Rail Freight Fuel Surcharge Antitrust Litig., 258 F.R.D.

167, 173 (D.D.C. 2009) (in class action, denying bifurcation into class and merits discovery where

the merits evidence was “closely intertwined” with the class certification issue).

The most efficient course is to complete all discovery simultaneously and for the Court to

adjudicate all summary judgment motions after discovery concludes. If discovery were bifurcated,

the expenditure of time and money in this case would increase markedly due to multiple rounds of

gathering of documents and retrieving electronically stored information and multiple deposition


25

of the same individuals. Id. at 174 (“the continued need for supervision and the increased number

of disputes [caused by bifurcated discovery] would further delay the case proceedings. Such

prevention of the expeditious resolution of the lawsuit would prejudice plaintiffs.”) (citation

omitted); Jade Trading, LLC v. U.S., 60 Fed. Cl. 558 (Fed. Cl. 2004) (invoking Rule 56(f) because

allowing “truncated discovery solely to [oppose an early summary judgment motion] would be a

wasteful exercise in piecemeal litigation and could engender extraneous disputes as to the scope

of discovery ‘essential’ for [a response to the summary judgment] motions.”).

II. THE COURT SHOULD DENY PROSKAUER’S MOTION TO DISMISS

PLAINITIFF’S MARYLAND EQUAL PAY FOR EQUAL WORK ACT CLAIMS

Defendant argues that Plaintiff should be barred from bringing discriminatory pay and

retaliation claims against Proskauer under the Maryland Equal Pay for Equal Work Act (“MEPA”),

Md. Code Ann., Lab. & Empl. §§ 3-301 et seq., because Plaintiff does not reside in Maryland and

purportedly was not employed by Proskauer in Maryland. Defendant’s arguments fail.

First, the MEPA contains no requirement than an employee reside in Maryland. The statute

protects employees regardless of where they reside. See Md. Code Lab. & Empl. § 3-101 (defining

“employ” without reference to residence).11 Defendant’s interpretation would permit a patchwork

of protected and unprotected employees performing the same work within the same jurisdiction.

Second, Plaintiff falls within the expansive definition of an employee under the MEPA.

The definition of “employ” in the Act “means to engage an individual to work” and expressly

includes “allowing an individual to work” or “instructing an individual to be present at a work

site.” Md. Code Lab. & Empl. § 3-101(c). Clearly, Plaintiff has been “employed” in Maryland

under this definition, as she has been engaged to perform legal work by Proskauer in Maryland.

11 The MEPA is part of the same Title of the Maryland Labor and Employment Code as the wage

and hour and wage payment laws and the same definition of “employ” applies.


26

Plaintiff is barred in the State of Maryland and is subject to its Rules of Professional Conduct.

Proskauer has allowed and/or instructed her to advise and represent Maryland clients in Maryland

courts under Maryland laws. In the course of these representations, Proskauer engaged Plaintiff

to work at sites in Maryland, including client locations and Maryland state and federal courts.

Likewise, Proskauer falls within the broad definition of an “employer” under the MEPA.

Under the statute, the term “employer” includes: “a person engaged in a business, industry,

profession, trade, or other enterprise in the State.” Md. Code Lab. & Empl. § 3-301(b)(1)(i).12

Proskauer is certainly engaged in business in the state of Maryland, as it has engaged, allowed,

and/or instructed Plaintiff (and other firm attorneys) to represent Proskauer clients in the state of

Maryland. Plaintiff has performed extensive legal services for such clients in Maryland –

frequently in Maryland courts – generating substantial revenue for the Firm in Maryland.

Based on the statutory definition of “employ” in § 3-101, Maryland courts have found that

employees directed to work in Maryland may pursue claims under the Labor and Employment

Code. See Hausfeld v. Love Funding Corp., 131 F. Supp. 3d 443, 455 (D. Md. 2015) (“The

threshold for establishing employment in Maryland . . . is relatively low. The employee does not

have to be regularly employed in Maryland.”); Sigala, 2016 WL 1643759, at *6 (under Maryland

law, workers of a Virginia company who were subject to Virginia contractor agreements were

potentially protected by Maryland wage statute as long as they performed some work in

Maryland); Himes Assocs. Ltd. v. Anderson, 178 Md. App. 504, 532-36 (2008). In Himes, an

employee of a Virginia company, who was tasked with attending meetings twice a month at the

client’s office in Baltimore, was able to proceed with a Maryland wage claim against his employer.

12 The term “employer” also includes “a person who acts directly or indirectly in the interest of

another employer with an employee.” Md. Code Ann., Lab. & Empl. § 3-301(b)(2).


27

The Maryland Court of Special Appeals held that the employer was subject to the statute because

the plain language of the definition of “employ” in § 3-101(c) “covers the situation in which a

company outside of Maryland directs its employee to go to a work site in Maryland.” Id. at 535.

Maryland’s highest court has adopted this reasoning and found – in circumstances highly

similar to the present case – that an attorney residing outside of Maryland can bring claims against

an employer also based outside of Maryland, as long as he is “employed” in the state under § 3-

101(c). See Cunningham v. Feinberg, 441 Md. 310 (2015). In Cunningham, an attorney who

resided in the District of Columbia was employed by a Virginia-based firm to handle Maryland

cases, represent Maryland clients, and appear before Maryland courts. The court held that since

the firm directed the attorney to perform at least some work in Maryland, the firm was subject to

suit under Maryland’s wage payment law – despite the existence of a Virginia contract. The court

relied heavily on Himes and the statutory definition of “employ” in § 3-101(c). See id. at 333-35.

Thus, an attorney, like Plaintiff, who represents Maryland clients in Maryland courts, may have

claims against his or her employer under Maryland wage laws, including the MEPA.

Defendant’s argument that MEPA has no extraterritorial effect is inapposite because

Plaintiff performed substantial work in Maryland. Proskauer cites no relevant cases on the

applicable Maryland Labor Code provisions. In the out-of-jurisdiction cases it cites, like Blackman

and Hoffman, the plaintiff performed no work in the relevant state – or, at most, attended a few

meetings a year.13 (Motion at pp. 31-33.) In contrast, Plaintiff sufficiently pleads a cause of action

for discrimination and retaliation under MEPA. She alleges that “[s]he performed substantial work

in Maryland for clients in Maryland or with business in Maryland, including attending client

13Anti-discrimination protections generally govern where the plaintiff works, and extra-

territoriality bars must be considered in that regard. As here, an employee’s work may carry into

multiple jurisdictions.


28

meetings, agency meetings, mediations and depositions and appearing in Court.” (Compl. ¶ 10

(emphasis added); see also id. ¶¶ 99, 111.) Plaintiff adequately alleges that Proskauer is a Maryland

employer and that she was treated unequally in connection with work performed in Maryland on

Proskauer’s behalf. Plaintiff’s MEPA claims therefore survive Defendants’ motion to dismiss.14

III. THE COURT SHOULD DENY PROSKAUER’S MOTION TO DISMISS

PLAINTIFF’S COMMON LAW CLAIMS

A. Proskauer Faces a Significant Burden on a Motion to Dismiss

In evaluating a motion to dismiss under Rule 12(b)(6), “the Court must ‘treat the

complaint’s factual allegations as true, and must grant plaintiff the benefit of all inferences that

can be derived from the facts alleged.’” Mawakana v. Bd. of Trustees of Univ. of D.C., 113 F.

Supp. 3d 340, 345 (D.D.C. 2015) (Jackson, J.) (citations omitted) (quoting Sparrow v. United Air

Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (finding that plaintiff sufficiently alleged claims

of breach of implied contract and implied covenant of good faith and fair dealing). A motion to

dismiss fails as long as the complaint contains “sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible when the

pleaded factual content ‘allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Mawakana, 113 F. Supp. 3d at 346 (quoting Iqbal, 556 U.S.

at 678). Here, Plaintiff presents facts that support more than a reasonable inference that Defendant

breached the parties’ contract, including the covenant of good faith and faith dealing; breached its

14 Moreover, the straightforward and expansive definition of the term “employ” means that

Plaintiff’s MEPA claim is not subject to a Clackamas challenge. The Court need not resort to the

common law of agency to discern the meaning of “employ” (applicable to statutes that circularly

defines an “employee” as “an individual employed by an employer”); here, it is clear that

Proskauer engaged and directed Plaintiff to perform legal work in Maryland. See Md. Code Lab.

& Empl. § 3-101(c).


29

fiduciary duty; was unjustly enriched by its conduct; and made fraudulent misrepresentations.

Proskauer’s argument that several of Plaintiff’s claims should be dismissed as

“duplicative” is in tension with the liberal federal pleading Rules, particularly Rule 8(d). See, e.g.,

Henry v. Daytop Vill., Inc., 42 F.3d 89, 95 (2d Cir. 1994) (“[A] plaintiff may plead two or more

statements of a claim, even within the same count, regardless of consistency. The inconsistency

may lie either in the statement of the facts or in the legal theories adopted.”); In re Fluidmaster,

Inc., 149 F. Supp. 3d 940, 963 (N.D. Ill. 2016) (argument that a claim is duplicative or superfluous

is not grounds for dismissal because, under Rule 8(d), plaintiffs may plead multiple claims

alternatively or hypothetically, regardless of consistency); Bancorp Servs, LLC v. Am. General

Life Ins. Co., No. 14-cv-9687, 2016 WL 4916969, at *10 (S.D.N.Y. Feb. 11, 2016) (claims should

not be dismissed as duplicative where they may be pled in the alternative). To the extent the court

views any of Plaintiffs claims as duplicative, it should construe them to be pled in the alternative.

See, e.g., Herb v. Van Dyke Seed Co., Inc., No. 3:12-cv-1070, 2012 WL 4210613, at *4 (D. Or.

Sept. 19, 2012) (although plaintiff could not obtain duplicative recovery, construing two claims as

pled in the alternative and denying motion to dismiss as premature).15

B. Proskauer’s Attempt to Frame Plaintiff’s Claims as a Mere “Compensation

Dispute” for Which No Remedy Exists Cannot Bear Fruit

In its motion to dismiss Plaintiff’s common law claims, Defendant characterizes Plaintiff’s

case as a profit allocation dispute that should be left to the good graces of the Firm’s Executive

15 In the event the Court detects any possible defect in Plaintiff’s pleadings, it should allow her an

opportunity to amend. It is axiomatic that a court “should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a). See Jefferies v. D.C., 917 F. Supp. 2d 10, 24 (D.D.C. 2013)

(“When a court dismisses a claim, typically it does so without prejudice to refile or amend the

complaint.”); O’Donnell v. Barry, 148 F.3d 1126, 1137 n.3 (D.C. Cir. 1998) (“‘[A] dismissal under

Rule 12(b)(6) generally is not final or on the merits and the court normally will give plaintiff leave

to file an amended complaint.’”) (quoting Wright, Miller & Kane, Federal Practice & Procedure).


30

Committee. Proskauer asserts that the Executive Committee’s compensation decisions are entirely

unreviewable and immune from challenge, no matter how egregious, abusive, and discriminatory

they may be. In reality, Plaintiff does not merely contest Proskauer’s pay-setting determinations

but a broad course of pervasive discriminatory and retaliatory conduct.

Plaintiff states valid claims that Proskauer breached its contractual duties, including the

covenant of good faith and fair dealing, and its fiduciary duty by discriminating against her based

on her gender and caregiving responsibilities, retaliating against her, subjecting her to harassment,

and frustrating her ability to practice law and earn her keep. Undercompensating Plaintiff based

on her status as a female is an arbitrary, irrational, and unethical abuse of Proskauer’s pay-setting

discretion for which it is accountable at law and equity. Additionally, Defendant demeaned and

belittled Plaintiff to her peers, interfered with her client relationships, subjected her to sexual

harassment, and threatened her for raising discrimination complaints – among other discriminatory

and retaliatory conduct. Each of these actions interfered with Plaintiff’s ability to work as a

Proskauer attorney and benefit from the fruits of her labor. Defendant’s conduct offends all general

notions of good faith and fair dealing and contravenes its anti-discrimination and anti-retaliation

obligations under applicable Rules of Professional Conduct, as well as the Firm’s own Equal

Employment Opportunity and Anti-Harassment Policy.

Proskauer’s assertion that its Executive Committee operates outside of the reach of

common law flies in the face of all public policy conceptions of equity and fair play. It is a

fundamental building block of a modern, civilized society that a defendant such as Proskauer may

not immunize itself for serious violations of a plaintiff’s rights, such as those alleged here. See

Kalisch-Jarcho, Inc., v. City of New York, 58 N.Y. 2d 377, 384–85 (N.Y. 1983) (citations omitted):

[A]n exculpatory agreement, no matter how flat and unqualified its terms, will not exonerate

a party from liability under all circumstances. Under announced public policy, it will not apply


31

to exemption of willful or grossly negligent acts.

More pointedly, an exculpatory clause is unenforceable when, in contravention of acceptable

notions of morality, the misconduct for which it would grant immunity smacks of intentional

wrongdoing. This can be explicit, as when it is fraudulent, malicious or prompted by the

sinister intention of one acting in bad faith. Or, when, as in gross negligence, it betokens a

reckless indifference to the rights of others, it may be implicit.

In either event, the policy which condemns such conduct is so firm that even when, in the

context of the circumstances surrounding the framing of a particular exculpatory clause, it is

determined … that the conduct sought to be exculpated was within the contemplation of the

parties, it will be unenforceable.

See also, e.g., Gross v. Sweet, 49 N.Y.2d 102, 106 (N.Y. 1979) (provisions purporting to exculpate

willful or grossly negligent acts are “wholly void”).16

Likewise, under the covenant of good faith and fair dealing, the parties’ agreement does

not preclude a remedy for Proskauer’s acts. When a contract contemplates discretionary decision-

making, exercise of that discretion is reviewable for reasonableness and good faith. See infra, §

III(C). While Proskauer’s Partnership Agreement vests discretion in its Executive Committee to

make pay decisions, those decisions cannot be shielded from review simply because it says so.

Contrary to Proskauer’s claim of an unfettered prerogative to discriminate against and harm

Plaintiff, New York courts have often nullified the decisions of firm Executive Committees and

deemed Partnership Agreements unenforceable. See, e.g., Denburg v. Parker Chapin Flattau &

Klimpl, 82 N.Y.2d 375, 380-81 (N.Y. 1993) (finding a partnership agreement’s requirement that a

partner pay to withdraw from the partnership to be unenforceable as against public policy because

it restricted the practice of law in violation of applicable ethics rules); Cohen v. Lord, Day & Lord,

16 Even before this policy rule kicks in, a court must find—applying a strict and exacting

standard—that an exculpatory provision is unmistakable, clear and unequivocal, and

unambiguous, such that the plaintiff can be plainly understood to have intentionally waived

liability for the acts in question. See id. at 107–08. “Broad and sweeping” language agreeing to

release the defendant from liability is insufficient. Id. at 108–09. Here, the court should construe

the parties’ agreement not to bar recourse for alleged discriminatory, retaliatory, and bad faith

conduct. Presumably, the parties would not have intended a legal nullity.


32

75 N.Y.2d 95, 101 (N.Y. 1989) (same). Accordingly, despite facially exculpatory provisions of

Proskauer’s Partnership Agreement, the Court may address Proskauer’s conduct on the merits.17

C. Plaintiff States Valid Claims of Breach of Contract, Including a Claim Premised

on Breach of the Implied Covenant of Good Faith and Fair Dealing

As discussed above, Proskauer’s arguments that the Partnership Agreement creates “non-

reviewable authority” to make compensation decisions do not preclude a contractual claim.

Under New York law, all contracts include an implied covenant of good faith and fair

dealing. E.g., Fishoff v. Coty Inc., 634 F.3d 647, 653 (2d Cir. 2011); ABN AMRO Bank, N.V. v

MBIA Inc., 17 N.Y.3d 208, 228-29 (N.Y. 2011); Dalton v. Educ. Testing Serv., 87 N.Y.2d 384,

389 (N.Y. 1995). The obligation to act in good faith encompasses any promises which a reasonable

person in Plaintiff’s position would be justified in understanding were incorporated, Dalton, 87

N.Y.2d at 389, including “a pledge that neither party shall do anything which will have the effect

of destroying or injuring the right of the other party to receive the fruits of the contract.” 511 W.

232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153 (N.Y. 2002). “The idea is simply

that when A and B agree that B will do something it is understood that A will not prevent B from

doing it. The concept is rooted in notions of common sense and fairness.” Wieder, 80 N.Y.2d at

637 (citing Farnsworth, The Law of the Contract); see also Thompson v. Advanced Armament

17 Relying on the Partnership Agreement’s choice-of-law provision, Defendant incorrectly asserts

that all of Plaintiff’s common law claims are governed by New York law. But, Fuentes-Fernandez

& Co., PSC v. The Corvus Grp., Inc., 174 F. Supp. 3d 378, 393-94 (D.D.C. 2016) does not stand

for the proposition. The court did not choose which law applied to the fraudulent misrepresentation

claim there and considered it under the law of two states. In the present case, the Partnership

Agreement states that the Agreement, “shall be governed by the laws of the State of New York

applicable to contracts made and to be performed wholly within that State.” (Leccese Decl. Ex. 1,

§ 23.) In other words, the contract is governed by New York contract law. This provision does

not extend to the parties’ relationship more broadly. In any case, Proskauer identifies no conflict

between New York and D.C. law requiring the Court to perform a choice-of-law analysis. Plaintiff

reserves the right to address any choice of law issues concerning her non-contractual common law

claims, including fraudulent misrepresentation and unjust enrichment, as her claims proceed.


33

Corp., LLC, 614 Fed. Appx. 523, 525 (2d Cir. 2015) (defendant violated covenant by sabotaging

plaintiff’s ability to benefit under the contract). See further B. Lewis Prods. Inc. v. Maya Angelou

Hallmark Cards, Inc., No. 01Civ.530, 2005 WL 1138474, at *11 (S.D.N.Y. May 12, 2005) (in

interpreting a contract, “we are not to suppose that one party was to be placed at the mercy of

another.”) (citing Wood v. Lucy, Lady Duff Gordon, 222 N.Y. 88, 91 (N.Y. 1919)).

Proskauer argues that Plaintiff cannot sustain a contractual claim because the Partnership

Agreement left her compensation to the Committee and did not prescribe that she would be

allocated a particular amount. Defendant, however, cannot use the Agreement’s lack of specificity

as an excuse to behave in a discriminatory manner. “Where the contract contemplates the exercise

of discretion, [the good faith and fair dealing] pledge includes a promise not to act arbitrarily or

irrationally in exercising that discretion.” Fishoff, 634 F.3d at 653 (quotation omitted); see also

Carvel Corp. v. Diversified Mgmt. Grp., Inc., 930 F.2d 228, 232 (2d Cir. 1991). “Even when a

contract confers decision-making power on a single party, the resulting discretion is nevertheless

subject to an obligation that it be exercised in good faith.” Dorset Indus., Inc. v. Unified Grocers,

Inc., 893 F. Supp. 2d 395, 408 (E.D.N.Y. 2012) (quoting Travellers Int’l, A.G. v. Trans World

Airlines, Inc., 41 F.3d 1570, 1575 (2d Cir. 1994)); see also, e.g., Claridge v. N. Am. Power & Gas,

LLC, 2015 U.S. Dist. LEXIS 117693, at *16 (S.D.N.Y. Sept. 2, 2015) (holding that claim survived

dismissal, where “[a]ccording to the Complaint, [defendant] violated the covenant by exercising

its discretion in bad faith and in a manner inconsistent with customers’ reasonable expectations”);

Legend Autorama Ltd. v. Audi of America Inc., 100 A.D.3d 714, 716 (App. Div. 2d Dept. 2012)

(“[E]ven an explicitly discretionary contract right may not be exercised in bad faith so as to

frustrate the other party's right to the benefit under the agreement.”) (citations omitted).18

18 The same principles and obligations apply under District law. See, e.g., Ihebereme v. Capital


34

In sum, the reciprocal covenant of good faith and fair dealing creates an implied obligation

that a party exercise its discretion reasonably and in good faith – and not arbitrarily or based on an

improper purpose. There is no precedent for entirely “non-reviewable authority” – which would

effectively grant license to commit grossly unreasonable and unlawful acts, such as intentional

discrimination or retaliation – without recourse.19

Here, Plaintiff alleges that she had a reasonable contractual expectation – informed and

bolstered by Proskauer’s anti-discrimination policies20 and the core ethical norms of the legal

profession, see Wieder, 80 N.Y.2d at 636–38 – that as a Proskauer partner she would not be not be

discriminated or retaliated against by the Firm. Defendant’s discrimination and retaliation gives

One, N.A., 730 F. Supp. 2d 40, 49 (D.D.C. 2010) (declining to dismiss claim: “[S]atisfaction of

the implied covenant . . . requires more than a showing that the contract conferred discretion, for

such discretion must be exercised reasonably. Adler v. Abramson, 728 A.2d 86, 90 (D.C.1999) . .

. . The behavior as alleged, however, does not represent an expected or reasonable exercise of a

lender’s contractual discretion, even if that discretion is clearly vested . . . . Plaintiff avers as much,

by calling the behavior ‘arbitrary’ and ‘capricious.’”).

19 Even in the cases cited by Defendant, LoFrisco v. Winston & Strawn LLP, 839 N.Y.S.2d 481,

483 (2007), and Phansalkar v. Andersen Weinroth & Co., L.P., No. 00 CIV. 7872, 2002 WL

1402297, at *12 (S.D.N.Y. June 26, 2002), aff’d in part, vacated in part, 344 F.3d 184 (2d Cir.

2003), the courts evaluated decision-makers’ actions against the good faith and fair dealing

barometer. Further, the trial court’s summary judgment ruling in LoFrisco was overturned on

appeal. See LoFrisco v. Winston & Strawn LLP, 839 N.Y.S.2d 481, 484 (App. Div. 1st Dept. 2007)

(finding ambiguity in the partnership agreement). Further, Proskauer’s citation to Opan Realty

Corp. v. Pedrone, 36 N.Y.2d 943 (1975) is inapposite. Proskauer’s insistence that its Executive

Committee possesses “non-reviewable” authority is incompatible with the premise of Opan,

namely that “the parties [had] established a procedure for resolution of their intra-

partnership…disputes.” Id. at 944. Here, in stark contrast, Defendant posits that there should be

no procedure for resolution of Plaintiff’s claims and no available remedy for its wrongful conduct.

20 Under Proskauer’s Equal Employment Opportunity and Anti-Harassment Policy: “Each

individual has the right to work in a professional atmosphere that promotes equal employment

opportunities and prohibits discriminatory practices, including harassment.” Further: “Proskauer

prohibits retaliation against any individual who reports discrimination or harassment or

participates in an investigation of such reports. Retaliation against an individual for reporting

harassment or discrimination or for participating in an investigation of a claim of harassment or

discrimination is a serious violation of this policy and, like harassment or discrimination itself,

will be subject to disciplinary action.” The Firm’s Fundamental Partnership Values statement

stresses the importance of abiding by legal and ethical duties. See also Compl ¶¶ 2, 21-30.


35

rise to a claim of breach of the covenant. See, e.g., Samide v. Roman Catholic Diocese of Brooklyn,

754 N.Y.S.2d 164, 176 (Sup. Ct. 2003) (finding that plaintiff sufficiently pled breach of the implied

covenant of good faith and fair dealing by alleging the defendant-employer subjected her to sexual

harassment and threatened to terminate her in retaliation for raising a complaint). Here, Plaintiff

has stated facts sufficient to support a claim for breach of the implied covenant. Specifically,

Plaintiff alleges that Proskauer arbitrarily discriminated and retaliated against her, frustrating her

ability to do her job (practicing law), and therefore injuring and destroying her right to receive the

fruits of the Firm’s Partnership Agreement. (Compl. ¶ 128.) Plaintiff further alleges that

Proskauer repeatedly acted in bad faith by demeaning and belittling her to her peers, interfering

with her client relationships, objectifying her with comments based on her gender, diverting work

away from her to male co-workers with far less experience, and threatening to terminate her for

asserting good faith discrimination and retaliation complaints. (Id. ¶ 5,6, 8, 9, 36-51, 58.)

Further, Plaintiff properly alleges that Defendant abused its discretion in making profit

allocation decisions – arbitrarily and irrationally paying her less than she deserved for reasons that

were discriminatory and retaliatory. (Compl. ¶ 128; see also id. ¶ 7, 31-37, 48-50, 56.) See, e.g.,

Smith v. Brown & Jones, 633 N.Y.S.2d 436, 441 (Sup. Ct. 1995) (finding that a law firm breached

the covenant by improperly exercising its discretion by assigning low compensation to a partner).

It is an implied term of the Partnership Agreement that Proskauer will adhere to its

fundamental ethical obligations as a law organization. See Wieder, 80 N.Y.2d at 637-38 (“Intrinsic

to this relationship [between law firm and lawyer], of course, was the unstated but essential

compact that in conducting the firm’s legal practice both plaintiff and the firm would do so in

compliance with the prevailing rules of conduct and ethical standards of the profession.”).21 These

21 In stating a claim that Proskauer breached an implied duty to not discriminate against her and


36

obligations include a duty not to engage in discrimination on the basis of gender. See NY RPC

8.4(g) (“a lawyer or law firm shall not unlawfully discriminate in the practice of law”) (emphasis

added), 8.4(h) (catchall for “any other conduct which adversely reflects on the lawyer’s fitness as

a lawyer”); DC RPC 9.1 (“A lawyer shall not discriminate against any individual in the conditions

of employment because of the individual’s… sex…”) (emphasis added); see also ABA Model

Rule 8.4(g) (prohibiting discrimination and harassment “in conduct related to the practice of law”)

(emphasis added). Such biased conduct is unethical because it undermines the legal profession.22

Plaintiff properly alleges that Defendant breached an implied term of the Partnership

Agreement by directly violating applicable Rules of Professional Conduct. (Compl. ¶¶ 27, 127.)

Plaintiff rightly understood as an inherent part of her compact with the Firm was that Proskauer,

as one of the country’s most prominent legal organizations, existed to advance and not undermine

the integrity and stature of the legal profession as well as (according to its own policies and

website) provide fair opportunity and a level playing field for women. (Compl. ¶ 2, 23-26.) This

professed mission is irreconcilable with the discrimination and retaliation Plaintiff experienced at

Proskauer. See ABA Model Rule 8.4, Comment 3 (cited supra n. 22).23

not to retaliate against her for associated complaints, Plaintiff is not adding or injecting protections

into the contract, as Defendant asserts, but seeks to vindicate her contractual rights as they already

exist. Implicit terms such as non-discrimination and non-retaliation are “so fundamental that [the

parties] did not need to negotiate” over them. See id. at 637 (quoting Corbin on Contracts).

22 As the ABA explains: “Discrimination and harassment by lawyers in violation of paragraph (g)

undermine confidence in the legal profession and the legal system. Such discrimination includes

harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment

includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual

harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome

verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-

harassment statutes and case law may guide application of paragraph (g).” Comment 3 to Rule 8.4

23 Defendant argues that ethical rules against discrimination do not apply because, it says, they

apply solely to employment and Plaintiff is not a Proskauer “employee.” However, Plaintiff alleges

that she is in fact an employee and her status is a disputed factual issue. Moreover, it beggars belief

that the New York or D.C. Bar would countenance blatant sex discrimination by a law Firm. As


37

Proskauer incorrectly asserts that any claim under the implied covenant is impermissibly

duplicative of a breach of contract claim. This misunderstands the nature of Plaintiff’s claim,

which is based on, not duplicative of, Defendant’s failure to abide by its obligation of good faith

and fair dealing. Plaintiff does not dispute that, in New York, a good faith and fair dealing claim

is a species of breach of contract, not a stand-alone claim. In pleading facts supporting a breach

of the duty of good faith and fair dealing, Plaintiff states a claim for breach of the Agreement. See

Fishoff, 634 F.3d at 653 (“A breach of the duty of good faith and fair dealing is considered a breach

of contract.”) (citation omitted); 1-10 Indus. Assocs., LLC v. Trim Corp. of Am., 747 N.Y.S.2d 29,

31 (App. Div. 2d Dept. 2002) (finding it “sufficient to state a cause of action to recover damages

for breach of contract based upon violation of the implied covenant”).

D. Plaintiff States a Valid Claim for Breach of Fiduciary Duty

To state a claim for breach of fiduciary duty Plaintiff need only demonstrate: “(1) that a

fiduciary duty existed between plaintiff and defendant; and (2) that defendant breached that duty.”

Indep. Asset Mgmt. LLC v. Zanger, 538 F. Supp. 2d 704, 709 (S.D.N.Y. 2008). Here, Proskauer

owes a fiduciary duty to Plaintiff based on her position as a partner at the Firm.24 See Leccese

expressed in the ABA Comment (see n. 22, supra), it is not the victim’s technical status as an

“employee” which makes biased conduct incompatible with the ethical practice of law. The New

York rule prohibits discrimination “in the practice of law.” The subsequent term “including” is

properly read to “introduce[] examples, not an exhaustive list.” Scalia & Garner, Reading Law:

Interpretation of Legal Texts, at 132–33 (2012) (Canon #15- Presumption of Nonexclusive

“Include”) (citing U.S. v. Philip Morris USA Inc., 566 F.3d 1095, 1115 (D.C. Cir. 2009)).

24 Defendant argues that Plaintiff’s claim that she is owed a fiduciary duty as a partner conflicts

with her claim that she is an “employee” of the Firm. But, Plaintiff can be both a partner and an

“employee” covered by discrimination statutes. See Clackamas, 538 U.S. at 446:

The question whether a shareholder-director is an employee, however, cannot be answered by

asking whether the shareholder-director appears to be the functional equivalent of a partner.

Today there are partnerships that include hundreds of members, some of whom may well qualify

as “employees” because control is concentrated in a small number of managing partners. Thus,

asking whether shareholder-directors are partners—rather than asking whether they are


38

Decl. Ex. 1 § 5(c) (“The Executive Committee and each member thereof shall have a fiduciary

obligation to the Partnership”); Smith v. Brown & Jones, 633 N.Y.S.2d 436, 442 (Sup. Ct. 1995)

(holding that a law firm owes its partners a fiduciary duty of utmost good faith, fairness, and

loyalty). In joining the Firm, Plaintiff understood that she would be treated with respect, on an

equal level with her male peers, and that Proskauer would conduct itself with good faith, fairness,

and honesty. (Compl. ¶ 29.) Plaintiff had every reason to believe Defendant’s actions would meet

the ethical standard required under the Rules of Professional Conduct and Proskauer’s express

Anti-Harassment Policy. (Compl. ¶¶ 22-27, 30.) Instead, Defendant took advantage of Plaintiff’s

trust and subjected her to harassment, discrimination, and retaliation, withholding her earned

compensation because of her gender, and thus breaching its fiduciary duty to her. New York courts

have often found a breach of fiduciary duty when, as here, partnerships work against the interests

of individual partners. See, e.g., Wilf v. Halpern, 599 N.Y.S.2d 579, 580 (App. Div. 1st Dept.

1993) (finding that a threat of irreparable harm to plaintiff’s interests contravened the fiduciary

obligation that partners had to one another); Smith, 633 N.Y.S.2d at 442 (finding breach of

fiduciary duty because the partnership failed to distribute to the plaintiff a fair share of its profits).

Proskauer’s arguments do not defeat Plaintiff’s claim.

First, Proskauer asserts that Plaintiff’s claim is impermissibly duplicative of her contract

claim (Motion at 37-38). But the claim is based on a different duty, even if the underlying facts

are similar. Courts regularly sustain such concurrent causes of action. See, e.g., Bullmore v. Ernst

employees—simply begs the question. (citations omitted)

Rather v. CBS Corp., 886 N.Y.S.2d 121 (App. Div. 1st Dept. 2009), cited by Proskauer, is not to

the contrary because partnerships and employment relationships are not mutually exclusive and

Proskauer undertook a fiduciary duty to Plaintiff as a Firm partner. Here, Plaintiff is essentially a

second-tier partner whose employment is controlled by the Firm’s Executive Committee. In any

case, Plaintiff can proceed in the alternative. See Fed. R. Civ. P. 8(d).


39

& Young Cayman Islands, 846 N.Y.S.2d 145, 148 (App. Div. 1st Dept. 2007) (“[C]onduct

amounting to breach of a contractual obligation may also constitute the breach of a duty arising

out of the relationship created by contract which is nonetheless independent of such contract.”);

Mandelblatt v Devon Stores, 521 N.Y.S.2d 672, 676 (App. Div. 1st Dept. 1987) (granting motion

for leave to amend to assert claims of breach of contract and breach of fiduciary duty by same

actor); Smith, 633 N.Y.S.2d at 442 (finding both breach of contract and breach of fiduciary duty

based on the same facts, namely the partnership’s failure to provide the plaintiff his fair share of

profits); 28A Glenn Banks, New York Contract Law § 21:66 (2d ed. 2017) (“When a party to a

contract is also a fiduciary to the other party, it owes a duty outside the scope of the agreement

which can support a claim of negligence arising from the same facts as a breach of contract claim.”)

(citing Sergeants Benev. Ass’n Annuity Fund v. Renck, 796 N.Y.S.2d 77 (App. Div. 1st Dept.

2005)); see also Fed. R. Civ. P. 8(d) (plaintiff may set out claims alternatively or hypothetically).25

Next, Proskauer claims that there can be no breach of fiduciary duty when a defendant can

demonstrate that it acted pursuant to a partnership agreement. This argument fails for the same

basic reasons as the duplication argument. Proskauer’s fiduciary duty to its partners also includes

overarching responsibilities beyond the contract, rooted in general notions of fairness and honesty,

as well as the specific rules set by state codes of professional responsibility and Proskauer’s own

internal policies.26 See, e.g., Bullmore, 846 N.Y.S.2d at 148 (professional duties may give rise to

25 In support of its argument, Defendant cites several cases. (Motion at p. 38.) However, in two

of these cases – Atlantis Info. Tech and Robin Bay Assocs. – the courts noted that no fiduciary duty

existed between the parties. Furthermore, as noted above, courts routinely allow breach of contract

claims to proceed alongside claims for breach of fiduciary duty. In fact, in William Kaufman, also

cited by Defendant, the court acknowledged that “the same conduct which may constitute the

breach of a contractual obligation may also constitute the breach of a duty arising out of the

relationship created by contract but which is independent of the contract itself.” (Id. at 173).

26 Defendant asserts that ethical rules cannot create a private cause of action. But its cases

essentially say that ethical violations do not always constitute per se fiduciary breaches. Here, the


40

obligations apart from contract and supporting fiduciary duty claim); Renck, 796 N.Y.S.2d at 79

(stating that “breach of a fiduciary duty ‘is not dependent solely upon an agreement or contractual

relation between the fiduciary and the beneficiary but results from the relation’” between the

parties) (quoting Restatement [Second] of Torts § 874, Comment b). Moreover, as set forth above,

the Partnership Agreement, especially interpreted in light of the covenant of good faith and fair

dealing, did not authorize or immunize Proskauer’s conduct here.

Accordingly, the Court should sustain Plaintiff’s fiduciary duty claim.

E. Plaintiff States a Valid Claim for Unjust Enrichment

To state a common law claim for unjust enrichment, Plaintiff must demonstrate: (1)

Proskauer was enriched, (2) at her expense, and (3) allowing Proskauer to retain the benefit would

be in contravention of principles of equity and justice. See News World Commc’ns, Inc. v.

Thompsen, 878 A.2d 1218, 1222 (D.C. 2005) (finding unjust enrichment when “the defendant’s

retention of the benefit is unjust”); Alan B. Greenfield, M.D., P.C. v. Long Beach Imaging

Holdings, LLC, 981 N.Y.S.2d 135, 137 (App. Div. 2d Dept. 2014) (“The essential inquiry in any

action for unjust enrichment . . . is whether it is against equity and good conscience to permit the

defendant to retain what is sought to be recovered.”).

Here, Plaintiff validly asserts an unjust enrichment claim that Defendant increased its

profits by inducing her to join the Firm with false promises and withholding her earned

New York and D.C. Rules of Professional Conduct contribute to the expectations of fairness and

honesty that defined Defendant’s relationship with Plaintiff. Defendant’s betrayal of Plaintiff’s

expectations and its concurrent disregard of its ethical requirements serve as a key foundation of

Defendant’s breach of its fiduciary duty to Plaintiff. Sommer v. Fed. Signal Corp., 79 N.Y.2d 540,

551–52 (N.Y. 1992) (finding that parties “may be subject to tort liability for failure to exercise

reasonable care, irrespective of their contractual duties . . . . In these instances, it is policy, not the

parties’ contract, that gives rise to a duty of due care”) (emphasis added). Moreover, contrary to

Proskauer’s argument (see Motion at p. 41 n.20), Plaintiff’s status as an “employee” of the Firm

is disputed and ultimately has little to do with whether it breached its fiduciary duty to her.


41

compensation on arbitrary and improper grounds – for its own enrichment. It would not be just

and in good conscience for the court to permit Defendant to reap millions of dollars in profits

through such discriminatory and retaliatory practices.

Defendant argues that Plaintiff’s unjust enrichment claim is duplicative of the contract

claim, but courts “routinely allow plaintiffs to plead [breach of contract and unjust enrichment] in

the alternative.” Transcience Corp. v. Big Time Toys, LLC, 2014 U.S. Dist. LEXIS 134245, at *20

(S.D.N.Y. Sept. 23, 2014); accord, e.g., Lass v. Bank of Am., N.A., 695 F.3d 129, 140 (1st Cir.

2012) (“[I]t is accepted practice to pursue both theories at the pleading stage.”); Mendez v. Avis

Budget Group, 2012 U.S. Dist. LEXIS 50775, at *23–24 (D.N.J. Apr. 10, 2012) (plaintiff may plead

breach of contract and unjust enrichment in the alternative). See generally Fed. R. Civ. P. 8(d)(2,3)

(parties may plead claims alternatively or hypothetically, regardless of consistency).

This is particularly so where the meaning, scope, existence, or enforceability of the contract

is in dispute. See Scowcroft Group, Inc. v. Toreador Resources Corp., 666 F. Supp. 2d 39, 44

(D.D.C. 2009) (“Such a conclusion is in the interest of justice—to find that a plaintiff may not

plead unjust enrichment where he or she also has alleged a breach of contract could leave that

plaintiff without any remedy should the fact-finder determine at a later stage that there was no

express agreement between the parties.”); Lass, 695 F.3d at 140-41 (determining unjust enrichment

may be plead in the alternative; noting ambiguity as to whether the contract applied to the facts at

issue); St. John’s Univ., N.Y. v. Bolton, 757 F. Supp.2d 144, 183-85 (E.D.N.Y. 2010) (plaintiff

permitted to pursue claims in the alternative under Rule 8(d); finding it premature for court to

determine whether contractual claim will be successful and noting that many cases dismissing

unjust enrichment claims as duplicative are on summary judgment with benefit of full record).

Here, the Court might ultimately conclude that there is no valid contract governing the


42

alleged breaches at hand. Accordingly, Proskauer’s argument is premature and should be rejected.

F. Plaintiff States a Valid Claim for Fraudulent Misrepresentation

To state a claim for fraudulent inducement under common law, Plaintiff alleges: (1) that

Proskauer made a false representation, (2) as to a material fact, (3) known to be false by Proskauer,

and (5) that the representation was made with the intent of inducing her to rely upon it, (6) that she

did so rely, (7) in ignorance of its falsity, (8) to her injury. See Eaves v. Designs for Fin., Inc., 785

F. Supp. 2d 229, 246 (S.D.N.Y. 2011) (citing Computerized Radiological Servs. v. Syntex Corp.,

786 F.2d 72, 76 (2d Cir. 1986)); Sundberg v. TTR Realty, LLC, 109 A.3d 1123, 1130 (D.C. 2015).

Here, Plaintiff states a valid claim because she alleges that Proskauer falsely represented

that it would raise her compensation to specific levels if she brought in a certain amount of revenue.

Proskauer knew this representation was false, Plaintiff alleges, because it intended not to honor it

at the time it was made. (Compl. ¶ 31, 131, 132.) Courts distinguish between “a mere promissory

statement of what will be done in the future” and a “promise made with a preconceived and

undisclosed intention of not performing it;” the latter is a “representation of present fact, not of

future intent,” and thus supports a fraud claim. Deerfield Communications Corp. v. Cheesebrough-

Ponds, Inc., 68 N.Y.2d 954, 956 (N.Y. 1986); see also Wall v. CSX Transp., Inc., 471 F.3d 410,

416 (2d Cir. 2006) (fraudulent inducement claim may be based, as here, on “a promise not

contained in the written agreement made with a preconceived and undisclosed intention of not

performing it”) (citing Deerfield, 68 N.Y.2d at 956).27 This is the sum and substance of Plaintiff’s

claim, and the Court must read the complaint in the light most favorable to her. As Plaintiff alleges,

Proskauer induced Plaintiff to enter the Partnership Agreement and to perform under that contract

27 Cf. In re Johnson, 313 B.R. 119, 128-29 (Bankr. E.D.N.Y. 2004) (party who uses credit card

makes implied representation that he intends to repay the debt, which gives rise to a claim for false

representation under bankruptcy statute if in fact he never intended to pay the charges).




45

fact, discovery has not yet begun. Pursuant to Fed. R. Civ. P 56(d), the Court should permit

discovery to proceed before addressing the Motion on the merits. Proskauer should not be allowed

to subvert and disrupt the ordinary course of litigation with a precipitous summary judgment

motion filed on the heels of the Complaint.

Defendant’s Motion to Dismiss should likewise be denied. Plaintiff has properly pled that

she qualifies for the protections of the Maryland Equal Pay for Equal Work Act, as she performed

work for Proskauer in Maryland. Plaintiff likewise has adequately pled common law claims of

breach of contract, breach of fiduciary duty, fraudulent misrepresentation, and unjust enrichment.

Defendant’s essential positions – that Proskauer may freely engage in gender discrimination and

retaliation against its partners and that the Executive Committee’s decisions are immune from all

forms of review – are contrary to law and public policy and should be rejected. Proskauer’s alleged

conduct gives rise to valid claims for relief.

Dated: July 27, 2017 Respectfully submitted,

David Sanford, D.C. Bar No. 457933

Vince McKnight, D.C. Bar No. 293811

Altomease Kennedy, D.C. Bar No. 229237

Kate Mueting, D.C. Bar No. 988177

SANFORD HEISLER SHARP, LLP

1666 Connecticut Avenue NW, Suite 300

Washington, DC 20009

Telephone: (202) 499-5201

Facsimile: (202) 499-5199

[email protected]

Andrew Melzer*

Alexandra Harwin, D.C. Bar No. 1003018


1350 Avenue of the Americas, 31st Floor

New York, New York 10019


46

Telephone: (646) 402-5655

Facsimile: (646) 402-5651

[email protected]

[email protected]

Kevin Sharp*


611 Commerce Street, Suite 3100

Nashville, TN 37203

Telephone: (615) 434-7000

Facsimile: (615) 434-7020

[email protected]

*pro hac vice application forthcoming


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