Case 1:17-cv-00901-ABJ Document 24 Filed 07/31/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA JANE DOE, PLAINTIFF, v. Case No. 1:17-cv-00901-ABJ PROSKAUER ROSE LLP, DEFENDANT. PLAINTIFF’S SUBMISSIONS IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS, FIILED WITH REDACTIONS IN ACCORDANCE WITH THE COURT’S MINUTE ORDER DATED JULY 28, 2017 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 1 of 53 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA JANE DOE, PLAINTIFF, v. Case No. 1:17-cv-00901-ABJ PROSKAUER ROSE LLP, DEFENDANT. 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 2 of 53 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 i Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 3 of 53 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 ii Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 4 of 53 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 iii Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 5 of 53 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 iv Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 6 of 53 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 v Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 7 of 53 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 vi Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 8 of 53 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. 1:16cv-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, “factintensive” 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 1 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 9 of 53 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 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. 1 2 Case Document 24-1 Filed 07/31/17 Page 10 of 53 issue here. (Dkt. No. 17.) In part, Defendant asserts that Plaintiff statutory claims fail under Clackamas because she was a partner, and not an employee, of the Firm. Although Clackamas requires a comprehensive examination of the parties? relationship, Defendant?s Motion relies on nothing more than a declaration from Proskauer?s Chairman Joseph Leccese (who is accused of wrongdoing in this action), the Firm?s Partnership Agreement, the Firm?s side agreement with Plaintiff, and a small nlunber of memoranda disseminated by Proskauer?s Executive Committee. Plaintiff requests an opportunity to take full discovery on the relevant issues and claims so that the Court may conduct the proper analysis with all of the pertinent facts at its disposal. FACTUAL BACKGROUND Proskauer began recruiting Plaintiff to join the Firm as a lateral partner in 2012. (Plaintiff Decl. 11 1.) Dining the recruiting process, Plaintiff was informed that all decisions regarding her hire would be made by the Executive Committee of the Firm and that once the Committee decided to hire her, her employment with the Firm was effectively a done deal. It was made clear to Plaintiff that any subsequent partnership vote would be a mere formality. (Id) Plaintiffs experience con?rmed these representations: Proskauer?s Executive Committee hired Plaintiff 1milaterally without any notice to, input from, or vote of the general partnership. (Id. 1} 2.) Proskauer?s Chairman Joseph Leccese extended a written offer of partnership to Plaintiff, which stated that she would become a Proskauer partner merely by signing the offer and which contained no language making Plaintiff hire subject to a partnership vote. (Id; Leccese Decl. Ex. 10.)2 It was only after Plaintiff executed and returned her binding agreement with Proskauer 2 Chairman Leccese?s offer memorandum pruports to set forth the ?terms pursuant to which you will join oru? Firm? and further states, ?You will become a Proskauer partner on a, 2013, or on such date as may be mutually agreed upon, by executing the attached? without any reference to or requirement of a partnership vote. (Leccese Decl. Ex. 10.) (emphasis added). Case Document 24-1 Filed 07/31/17 Page 11 of 53 that the Executive Committee held a vote of the full partnership. (Plaintiff Decl. 11 2.) As Plaintiff had been informed, the favorable partnership vote was a proforma exercise that merely con?rmed the Executive Committee?s decision to hire her. Since joining the Firm, Plaintiff has observed that the Executive Committee closely controls hiring decisions and provides the full partnership with extremely limited information about and access to lateral partner hires. (Id. 11 22.) Contrary to Defendant?s representation that the Firm?s Partnership Agreement governs the relationship among partners, Proskauer?s Executive Committee has entered into side agreements with many, if not most, partners. (Id. 11 23.) Through these agreements, the Executive Committee imposes terms that pruport to modify the Firm?s Partnership Agreement. In its Motion papers, the Firm has taken the position that its side agreement with Plaintiff authorizes Proskauer to rurilaterally terminate her without any vote of the partnership. (Leccese Decl. 11 47.) When Plaintiff was hired by Proskauer, Plaintiff was informed that the Executive Committee includes this provision in all lateral partner contracts. (Plaintiff Decl. 1] 4.) As Plaintiff has experienced dru'ing her time at the inn, Proskauer partners do not enjoy pro?t sharing the way true business owners in partnerships do. (Id. 1 39.) Proskauer itself concedes that the Firm?s partners have no ?xed ownership stake in the Firm. (Leccese Decl. 1[ 25.) Rather than distributing pro?ts in accordance with set shares in the Firm (as a true partnership would), Proskauer?s Executive Committee determines partner pay on an annual basis without regard to any ownership interests. It directs partners to submit detailed performance memoranda (subject to strict page limits and deadlines) evaluating their own work and the work of other partners. (Plaintiff Decl. 1] 40.) Further, the Executive Committee also requires Department Chairs and of?ce heads whom the Committee hand picks to i partners? performance and to provide their evaluations to the Committee. (Id. 1 41.) Based on this Case Document 24-1 Filed 07/31/17 Page 12 of 53 performance data, Proskauer?s Executive Committee then assigns and adjusts partner pay from year to year at its discretion pruportedly after the completion of this performance review process. (Id. 11 40.) The Executive onmrittee engages in a process of setting partner pay that is akin to the process the onmrittee uses to assign pay and performance bonuses to other employees of the Firm, including senior staff, senior counsel, and non-equity partners. As a Proskauer partner, Plaintiff has been subject to extensive regulation and oversight by the Executive onrrnittee and its designees. The establishes comprehensive policies applicable to partners and has dictated that all partners are responsible for? ?l (Plaintiff Decl. 1] 26; Leccese Decl. Ex. 5 at 3) (emphasis added). The Committee requires partners to comply with the same Attorney Manual as the Finn?s associates, with additional regulations in a Partner Manual, and other policies. Through these employee policies, the Committee dictates picayrme details of partner work, including the content of letters and how documents must be saved. (Plaintiff Decl. 1T 27.) Additionally, Proskauer regulates the substance of partner work, including: dictating that certain partner work must follow speci?c templates developed by the Firm and limiting the types of clients whom partners can represent and the positions and claims partners can assert on behalf of those clients. 11 28.) Proskauer also dictates the how's that partners must work. Partners who work fewer thani hours per year are directed to i to the onmrittee. (Id. 11 29; Leccese Decl. Exs. 7, 8, and 9.) Proskauer also supplies and controls the and tools that partners are required to use to perform their work, providing partners with computers, cell phones, software programs, and other tools. (Plaintiff Decl. 11 31.) Proskauer partners are supervised by, and required to report to, the Executive Committee and its designees. Proskauer partners are required to submit daily time records re?ecting their Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 13 of 53 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. 6 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 14 of 53 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. 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.”). 3 7 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 15 of 53 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. 8 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 16 of 53 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 factintensive 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 9 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 17 of 53 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.” 10 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 18 of 53 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. 11 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 19 of 53 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 nonmanagerial 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 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.”). 8 12 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 20 of 53 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 highlyconsolidated 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 13 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 21 of 53 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’ 14 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 22 of 53 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. 15 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 23 of 53 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’ 16 Case Document 24-1 Filed 07/31/17 Page 24 of 53 employment, such as by extending offers of partnership and deciding on partner tenninations without notice to, input from, or a vote of the full paitnership.10 (See generally Sanford Decl.) (2) Discovery Will Show that the Executive Committee Regulates Partners? Work ontraly to its representations, Proskauer sets comprehensive rules and regulations for partners? work (Plaintiff Decl. 11 26), directs partners to (Leccese Decl. Ex. 5 at 3), and threatens to withhold pay from paitners who do not comply (Plaintiff Dec]. 11 33). The Executive Committee requires paltners to comply with the Finn?s Attomey Manual, additional regulations set forth in a Partner Manual, and other Finn policies; through these employee manuals and policies, the Committee dictates picayune details of partner work. (Id. 11 27.) Proskauer also dictates the how?s that partners must work. Paitners who work fewer thani hom's per year must? to the Committee. (Id. 11 29; Leccese Decl. Exs. 7, 8, and 9.) Proskauer also supplies and controls the tools that panners are required to use to perfonn their work, providing partners with computers, cell phones, software programs, and other tools, and restricting and controlling partners? ability to access the Finn?s networks on personal devices (Plaintiff Decl. 11 31.) In fact, after Plaintiff brought her complaint of discrimination, the Film severely compromised her ability to work by lmilaterally restricting her access to Proskauer?s docmnent management system and database search tools. (Id. 11 38.) Additionally, Proskauer regulates the substance of partner work. (Id. 11 28.) Partners must follow speci?c templates developed by the Firm. For instance, Plaintiff has a binder containing 1? Discoveiy relating to Proskauer partners generally, and the Fiim?s overall operations, is needed. Defendant?s Statement of Matelial Facts repeatedly refers to the Executive Committee?s conduct vis-a-Vis paitners generally and the status and conduct of those partners. Fluther, the authority that the Committee has asserted over other paitners is relevant in disceming the scope of authority it can wield over Plaintiff. See Simpson v. Ernst Young, 100 F.3d 436, 441 (6th Cir. 1996) (?In considering the issue of [plaintiff 3] status of ?partner? or ?employee,?? the trial court looked at evidence of how plaintiff and ?other personnel similarly situated? were treated). 17 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 25 of 53 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 18 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 26 of 53 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 19 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 27 of 53 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 20 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 28 of 53 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 21 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 29 of 53 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). 22 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 30 of 53 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 sevenmonth standstill in the case while the premature (and ultimately futile) summary judgment motion 23 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 31 of 53 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 maledominated 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 24 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 32 of 53 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. 25 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 33 of 53 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. 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). 12 26 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 34 of 53 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 § 3101(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 13 Anti-discrimination protections generally govern where the plaintiff works, and extraterritoriality bars must be considered in that regard. As here, an employee’s work may carry into multiple jurisdictions. 27 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 35 of 53 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 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). 14 28 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 36 of 53 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 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). 15 29 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 37 of 53 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 30 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 38 of 53 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 decisionmaking, 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. 31 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 39 of 53 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 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. 17 32 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 40 of 53 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 33 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 41 of 53 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 intrapartnership…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. 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. 20 34 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 42 of 53 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 35 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 43 of 53 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). 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 antiharassment statutes and case law may guide application of paragraph (g).” Comment 3 to Rule 8.4 22 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 36 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 44 of 53 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)). 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 24 37 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 45 of 53 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). 38 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 46 of 53 & 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 39 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 47 of 53 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. 40 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 48 of 53 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 41 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 49 of 53 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. CheesebroughPonds, 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). 42 Case Document 24-1 Filed 07/31/17 Page 50 of 53 with false, collateral promises of speci?c compensation.28 Through its promises, Defendant sought to induce Plaintiff to work at the Firm and to bring in business from which the Firm derived millions of dollars in revenue. Proskauer repeatedly made similar ??audulent promises to Plaintiff regarding increased compensation dru?ing her years with the Firm, inducing her to continue in the partnership and to bring in vast pro?ts for the Firm. (See, Compl. 1] 33.) Further, contrary to Defendant?s assertions, Plaintiff has been suf?ciently speci?c in her claim, identifying former Proskauer Chairman Allan Fagin as the speaker who assru'ed her that she would be paid more than per year if she generated 39: in revenue. (Id. 11 31.) Plaintiff relied on these promises with no possible knowledge of their falsity.29 As a result of Proskauer?s representations, she joined the Firm and has remained there for years, working extremely long horn on the Firm?s behalf and bringing in new business and clients. In her reliance on Defendant?s false promises, Plaintiff has been signi?cantly injru'ed by foregoing other employment opportrmities, being deprived of millions of dollars of compensation she is owed, and, now, fmding her career and employment prospects threatened by Proskauer. Defendant argues, incorrectly, that Plaintiff does not claim misrepresentation of an existing fact. Plaintiff does not merely claim that Proskauer failed to honor its contract, but that it falsely represented the existing state of facts: its intent at the time of the making of the promise. The facts, as Plaintiff alleges, are that Defendant never intended to increase her compensation to Si 28 Fruther, Plaintiff should be permitted to amend her complaint to plead a claim, at least in the alternative, for breach of an oral contract to pay her these amormts. 29 Proskauer asserts that Plaintiff could not have reasonably relied on its oral promises because they were contradicted the written contract, which stated that Plaintiff would be aid - for bringing in . This is misleading and cannot hold. On its face, the amount applied only to Plaintiffs fn?st year of employment at Proskauer, 2013. (See Leccese Dec. Ex. 10.) Proskauer?s collateral oral promises to raise her pay to if she continued to generate revenue at that level pertained to subsequent years. 43 Case Document 24-1 Filed 07/31/17 Page 51 of 53 and repeatedly told her it would. (Compl. 1} 31, 33.) A fraud claim attaches Where a party misrepresents its intent to do something. See, e. A. Resnick ertile Co. v. The Daisy Grp., Ltd, 726 82, 82-83 (App. Div. Dept. 2001) (fmding an allegation that a party to a contract ?never [had] any intention of paying? to be suf?cient for a fraudulent inducement claim); Eric Solstein Prods, Inc. v. Rabanne, 653 325, 326 (App. Div. 1st Dept. 1997) (?nding a valid fraud claim where plaintiff alleged he was induced to complete work by defendant?s promise to pay that was made with a ?preconceived and undisclosed intention of not performing?). Proskauer also argues that Plaintiff?s fraud claim is duplicative of her breach of contract claim because, it suggests, the fraud is just about an intent to breach in the future. This again misunderstands the natru?e of the claim. Defendant committed fraud the moment it knowingly misrepresented its intention to pay Plaintiff This false promise was not a term of her contract with Pr?oskauer, but a statement designed to induce Plaintiff into the contract. Proskauer cannot avoid the fact that it committed fraud in the inducement in addition to violating its duties under the resulting contract. Further, Plaintiff can seek separate damages on each claim.30 CONCLUSION Defendant?s Motion for Summary Judgment on Plaintist statutory discrimination and retaliation claims should be denied. On these claims, the Court will be required to undertake a wide-ranging, fact-intensive inquiry into Plaintiff?s status as an ?employee? of Proskauer. Srunmary judgment is wholly inappropriate here where essential factual issues are in dispute; in 30 In addition to reliance damages, including lost compensation, Plaintiff may seek punitive damages for intentional misrepresentation. See Rat/an v. Katya], 766 A.2d 998, 1013 (DC. 2001) (upholding award of punitive damages in fraudulent misrepresentation case); Green v. Leibowitz, 500 146, 149 (App. Div. 2d Dept. 1986) (holding that in a ?aud case, ?a jury may consider whether the defendant?s degree of moral culpability warrants the assessment of prmitive damages?). Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 52 of 53 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 dsanford@sanfordheisler.com Andrew Melzer* Alexandra Harwin, D.C. Bar No. 1003018 SANFORD HEISLER SHARP, LLP 1350 Avenue of the Americas, 31st Floor New York, New York 10019 45 Case 1:17-cv-00901-ABJ Document 24-1 Filed 07/31/17 Page 53 of 53 Telephone: (646) 402-5655 Facsimile: (646) 402-5651 jheisler@sanfordheisler.com aharwin@sanfordheisler.com Kevin Sharp* SANFORD HEISLER SHARP, LLP 611 Commerce Street, Suite 3100 Nashville, TN 37203 Telephone: (615) 434-7000 Facsimile: (615) 434-7020 ksharp@sanfordheisler.com *pro hac vice application forthcoming 46 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 1 of 35 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA JANE DOE, PLAINTIFF, v. Case No. 1:17-cv-00901-ABJ PROSKAUER ROSE LLP, DEFENDANT. PLAINTIFF’S RESPONSE TO DEFENDANT’S STATEMENT OF MATERIAL FACTS Plaintiff objects to Defendant’s Statement of Material Facts as premature at this early juncture of this litigation. Federal Rule of Civil Procedure 56 and Local Civil Rule 7(h) both contemplate the completion of adequate discovery prior to summary judgment proceedings. No discovery has been conducted in this case, however, and Plaintiff does not presently possess sufficient information to fully confirm or deny Defendant’s contentions, as well as their potential implications. Plaintiff will be in a position to fully respond to Defendant’s statements of fact after the completion of discovery. Plaintiff reserves the right to supplement or revise any or all of the responses below after the completion of discovery. Further, Plaintiff objects to statements within Defendant’s Statement of Material Facts that do not pertain to Defendant’s summary judgment motion on the question of whether Plaintiff is an “employee” of Proskauer under relevant statutes but instead relate to other issues such as Defendant’s motion to dismiss or the merits of Plaintiff’s claims that she was discriminated and retaliated against by the Firm. In any event, the intermingling of such statements into Defendant’s Statement of Material Facts suggests that the issues in this matter are intertwined and that full discovery should proceed on all aspects of the case. Subject to and without waiver of the foregoing objections, Plaintiff responds as follows: 1 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 2 of 35 1. Proskauer is an intemationallaw film of approximately 740 lawyers in 13 offices ru·ound the world. (Declru·ation of Joseph M. Leccese, Esq., dated June 13, 2017 ("Leccese Decl.") ~ 3.) RESPONSE: Undisputed that Proskauer is an intemational law fitm with h1mdreds of lawyers in numerous offices ru·mmd the world. However, Plaintiff is not a member of Proskauer's Executive Committee- which manages all Film operations- and therefore lacks real-time inf01mation as to the present operational status of all of the Firm's offices. (Plail1tiffDecl. ~50.) 2. Plail1tiff Doe practices in the Proskauer is pruticularly well known. (!d.) for which RESPONSE: Undisputed. 3. Proskauer is a New York limited liability patinership. (!d.~ 6.) RESPONSE: Undisputed that Proskauer is registered with New York's Division of Corporations as a domestic registered litnited liability patinership. 4. The relationships among its partners are govemed by the Film's Restated Partnership Agreement dated October 12, 2011, as amended (the "Pruinership Agreement"). (!d.) RESPONSE: Disputed. Proskauer's Executive Committee enters into separate side agreements with individual partners that modify the tenns of the Prutnership Agreement. (Plail1tiff Decl. ~ 4, 23.) Fmther, Proskauer pattners ru·e also subject to an array of additional policies and directives dictated by Proskauer's Executive Committee. (!d. ~~ 26-38, 40.) 5. The Pru·tnership Agreement is govemed by New York law. (!d.~ 7; Ex. 1 § 23.) RESPONSE: Undisputed that Proskauer's Patinership Agreement states that it "shall be govemed by the laws of the State of New York applicable to contracts made and to be perf01med wholly within that State." (Leccese Decl. Ex. 1, § 23.) However, Proskauer's Executive Committee enters into separate side agreements with individual pattners that modify the tenns of the Prutnership Agreement that may not be subject to New York law. (Plail1tiffDecl. ~ 23.) 6. The Film' s principal office is located in New York, and the Film maintaillS twelve other offices, including an office in Washington, D.C. (Leccese Decl. ~ 7; Ex. 1 § 4.) RESPONSE: Undisputed that Proskauer' s principal office is located in New York and that the Film maintains an office in Washington, D.C. However, Plaintiff is not a member of Proskauer's Executive Committee- which manages all Film operations- and therefore lacks real-time inf01mation as to the present operational status of the Film's other offices. (PlaintiffDecl. ~50.) 7. The Film does not maintain an office in Marylm1d. (Leccese Decl. ~ 7.) 2 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 3 of 35 RESPONSE: Plaintiff disputes that this paragraph is relevant to Defendant’s summary judgment motion on the issue of whether Plaintiff’s status as a partner of the Firm precludes her from coverage as an “employee” under applicable statutes. Accordingly, this paragraph should be stricken from Defendant’s Statement of Material Facts. With regard to Defendant’s motion to dismiss Plaintiff’s Maryland Equal Pay for Equal Work Law claim on “extraterritoriality” grounds, Plaintiff properly alleges in her Complaint that Proskauer employed her in Maryland within the meaning of that statute. (Compl. ¶ 10, 99, 111.) ¶ 8.) 8. The Firm has two types of active partners: equity partners and income partners. (Id. RESPONSE: Disputed. In addition to using the terms “income partners” and “equity partners” to refer to certain active partners, Proskauer also characterizes its active partners as “regular partners” or “contract partners.” (Leccese Decl. Ex. 1 § 3.) Plaintiff seeks discovery regarding the types of active partners at the Firm. (Sanford Decl. ¶ 9.) 9. Doe is an equity partner. (Id.) RESPONSE: Undisputed that the Firm has used the title “equity partner” to refer to Plaintiff. Notwithstanding this title, the Executive Committee exercises complete control over the terms and conditions of her employment, including controlling her hiring, controlling her compensation, and, according to the position taken in the Firm’s submissions to this Court, claiming the right to unilaterally terminate her employment (Plaintiff Decl. ¶ 14.) Plaintiff seeks discovery to confirm the Executive Committee’s control over the terms and conditions of Plaintiff’s employment. (See generally Declaration of David Sanford (“Sanford Decl.”).)1 (Id.) 10. The term “regular partner” in the Partnership Agreement means an equity partner. RESPONSE: Disputed. This characterization is inconsistent with the language of the Partnership Agreement. The Partnership Agreement does not define a “regular partner” as an equity partner; instead, the Partnership Agreement defines a “regular partner” as “partners actively engaged in the practice of law whose relationship to the Partnership is governed solely by [the Partnership] Agreement.” (Leccese Decl. Ex. 1 § 3.) 11. The term “contract partner” in the Partnership Agreement includes both equity partners whose relationship with the Firm is governed in part by a separate agreement with the Firm and income partners whose rights are different than equity partners. (Id.; Ex. 1 § 3.) RESPONSE: Disputed. This characterization is inconsistent with the language of the Partnership Agreement. The Partnership Agreement does not specify that the term “contract partner” includes “equity partners” and “income partners”; instead, the Partnership Agreement defines a “contract partner” as “partners actively engaged in the practice of law whose relationship to the Firm is governed wholly or partly by the terms 1 The Rule 56(d) discovery sought by Plaintiff is not limited to the discovery specifically identified herein and is further detailed in the Declaration of David Sanford. 3 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 4 of 35 and provisions of a separate contract between each such partner and the Fitm." (Leccese Decl. Ex. 1 § 3.) 12. Each equity partner ofthe Fitm, including Doe, has agreed to the Fum's Partnership Agreement. (Leccese Decl. ~ 9.) RESPONSE: Disputed. Proskauer' s Executive Cormnittee has requit·ed numerous patiners, including Plaintiff, to enter into separate side agreements with the Fitm that pmpori to modify the tenns of the Firm's Pruinership Agreement and even fmther augment the ah·eady expansive power of the Executive Connnittee. (Plaintiff Dec!. mJ 3, 4, 23.) In fact, the Fitm never asked Plait1tiffto sign the Patinership Agreement. (!d.~ 3.) 13. The rights and obligations of all equity prutners ru·e govemed by the Partnership Agreement, except to the extent specifically modified by an individual agreement between the pariner and the Firm. (Id.; Ex. 1 § 3.) RESPONSE: Disputed. Proskauer partners are also subject to an anay of policies and directives dictated by Proskauer's Executive Committee that pmport to create additional obligations beyond those set forth in the Prutnership Agreement and the sepru·ate side agreements that the Executive Connnittee requires certain partners to execute. (Plaintiff Decl. ~~ 26-38, 40.) 14. The Partnership Agreement provides for a ''weighted vote" system in which each equity patiner has three votes and, on matters on which they are entitled to vote, each income paliner has one vote. (Leccese Decl. ~ 10; Ex. 1 § 6(e).) RESPONSE: Disputed. Where a "weighted vote" is to be taken, the Partnership three votes to each "equity Agreement grants three votes to each partner") and I (not one vote to each "income · further partner"). authorizes (!d.) Plaintiff seeks discovery conceming the votit1g rights that Proskauer actually grants to equity pattners who have side agreements with the Fitm. (Sanford DecI. ~ 9.) 15. Under Section 6 of the Pattnership Agreement, a 75% vote of the partners is requit·ed in order to: (i) admit new partners to the Firm; (ii) amend the Prutnership Agreement; (iii) change the name of the Fitm; (iv) establish additional Fitm offices; or (v) vote on any other matter submitted to a vote of the pruiners by the Executive Committee or by 25% of the Fitm's patiners (unless a lesser vote has been specified in the Patinership Agreement). (Leccese Decl. ~ 11; Ex. 1 §§ 6(a)(i)-(vi), 9.) RESPONSE: Disputed. This characterization is inconsistent with the language of the Prutnership Agreement. Pmsuant to Paragraph 6 of the Partnership Agreement, these actions involve a ''weighted" vote and requit·e the 75% "weighted" vote of only those eligible pattners who actually vote on the matter. (Leccese Decl. Ex. 1 § 6(a).) Plaintiff seeks discovery conceming the voting rights that Proskauer actually grants to equity pattners who have side agreements with the Fitm. (Sanford Decl. ~ 9.) Fmther, Plaintiff disputes that partner voting rights are a meaningful check on the Executive Committee: 4 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 5 of 35 even with respect to the limited issues that the Partnership Agreement pmp01tedly requires be decided through a vote of the full partnership, the Executive Committee acts 1milaterally, including hiring and firing partners. (PlaintiffDecl., 20.) 16. The Finn' s principal office can be relocated upon a two-thirds vote of all equity partners in which each equity partner is entitled to one vote. (Leccese Decl., 11; Ex. 1 § 4.) RESPONSE: Disputed. This characterization is inconsistent with the language of the Partnership Agreement. The Partnership Agreement provides that "all partners" (not just ...,rnl1·1·u to vote on relocation of the Film's · · office, subject to (Leccese Decl. Ex. 1 § 4.) Plaintiff seeks discovety conceming the voting rights that Proskauer actually grants to equity partners who have side agreements with the Film. (Sanford Decl. , 9.) 17. The Partnership Agreement requires that partners vote to approve all decisions to (i) expel a partner from the Fitm upon the recommendation of the Executive Committee; (ii) merge with another law finn; or (iii) tetminate the partnership, with a 75% weighted vote of all partners entitled to vote requil·ed to approve such actions. (Leccese Decl., 12; Ex. 1 §§ 6(a)(x)-(z).) RESPONSE: Undisputed that Par·agraph 6(a) of the Pattnership Agreement contains this provision. However, this tetm is misleading and contradicted by the Fitm's regulaT practices, as the Executive Committee tetminates, or asserts the power to tetminate, pattners without notice to, il1put from, or a vote of the pattnership. (Plail1tiff Decl. ,, 4, 24.) In its submissions to this Court, the Film appears to have taken the position that the side agreement it entered into with Plaintiff at the time of her hire authorizes the Fitm to unilaterally tetminate Plaintiff without any vote of the partnership. (Leccese Decl. , 47.) Fmther, Plaintiff is awar·e of the Executive Committee dil·ecting partners to leave the Film without any notice to, input from, or vote of the full partnership. (Plaintiff Decl. , 24.) Plaintiff seeks discovery to show that the Executive Committee can ar1d does unilaterally tenninate partners without engaging in the voting process set forth in the Partnership Agreement. (Sanford Decl., 5.) 18. The Pattnership Agreement provides for meetings of the partners at least monthly to discuss or decide matters that requil·e a decision by the partners and at which decisions made by the Executive Committee ar·e rep01ted to the partners. (Leccese Decl., 13; Ex. 1 § 5(e).) RESPONSE: Undisputed that 5(e) of the Pattnership Agreement contains this provision. In practice, however, the Film's pattnership meetings are perfunct01y and do not involve substantive discussions or deliberations by non-Executive Committ.ee pattners regar·ding plans or strategies for the Fim1's fmances, operations, management, personnel, and administration. (Plaintiff Decl. , 19.) The Executive Committee leads and directs discussions at partner meetings, and its rep01ts to pattners are not detailed and do not provide partners with insight into many aspects of the Film' s fmances, operations, management, personnel, and administration. (Id.) The rep01ts that the Executive Committee provides at monthly meetings are typically limited to brief, smnmar·y information regar·ding Fitm fmancial results, pending client representations, and lateral partners approved by the Executive Committee. (Id.) The Executive Committee does not 5 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 6 of 35 encourage partners to engage in substantive discussions or deliberations at partnership meetings, and partners are reluctant to question or challenge decisions made by the Executive Committee. (Id.) Plaintiff seeks discovery to establish that the Executive Committee does not provide complete information to Firm partners concerning its decisions. (Sanford Decl. ¶ 9.) 19. Any partner may request that a matter be placed on the agenda of the partners’ meeting for discussion among the partners. (Id.) RESPONSE: Undisputed that partners “may” make a “request.” In practice, however, this almost never occurs. Plaintiff recalls only one instance during her time at the Firm when a partner may have requested that an item be added to the agenda of a partners’ meeting. (Plaintiff Decl. ¶ 19.) Further, Plaintiff disputes that merely “requesting” that an agenda item be added provides a meaningful check on the authority of the Executive Committee. The Executive Committee does not encourage partners to engage in substantive discussions or deliberations at partnership meetings, and partners are reluctant to question or challenge decisions made by the Executive Committee. (Id. ¶ 19.) See also Response to No. 18. 20. Pursuant to the Partnership Agreement, the Firm’s partners have conferred on the Executive Committee responsibility for “matters of management, policy and operations.” (Leccese Decl. ¶ 14; Ex. 1 § 5(c).) RESPONSE: Undisputed that the Firm’s Partnership Agreement provides that “[a]ll matters of management, policy and operations shall be determined by the Executive Committee.” (Leccese Decl. Ex. 1 § 5(c).) Further, Proskauer’s Executive Committee does, in fact, exercise complete control over the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 14.) Plaintiff, however, disputes the misleading suggestion that the Firm’s partners played any role in “conferring” this authority upon the Executive Committee. Proskauer partners, including Plaintiff, have no alternative but to submit to the oversight and control of the Executive Committee. (Id.) 21. The Partnership Agreement provides that the Executive Committee’s authority to manage the operations of the Firm “derives from and is delegated by the partners.” (Leccese Decl. ¶ 14; Ex. 1 § 5(a).) RESPONSE: Undisputed that this is an excerpt from Paragraph 5(a) of the Firm’s Partnership Agreement. Plaintiff, however, disputes the misleading suggestion that the Firm’s partners played any role in “delegat[ing]” authority to the Executive Committee. Proskauer partners, including Plaintiff, have no alternative but to submit to the oversight and control of the Executive Committee. (Plaintiff Decl. ¶ 14.) 22. The Partnership Agreement provides that any and “[a]ll authority not delegated [to the Executive Committee under the Partnership Agreement] is retained by the partners.” (Id.) RESPONSE: Undisputed that this is an excerpt from Paragraph 5(a) of the Firm’s Partnership Agreement. However, this misleading excerpt is contradicted by Paragraph 5(c) of the Partnership Agreement, which grants Proskauer’s Executive Committee authority over “[a]ll other matters as to which no other or inconsistent provision has been 6 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 7 of 35 made in this Agreement.” (Leccese Decl. ¶ Ex. 1 § 5(c).) Indeed, the Partnership Agreement expressly provides that “[a]ll matters of management, policy and operations shall be determined by the Executive Committee.” (Id.) Proskauer’s Executive Committee does, in fact, exercise complete control over the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 14.) Plaintiff seeks discovery to establish that Firm is managed by the Executive Committee (including the Chairman), and not by the partnership generally. (Sanford Decl. ¶ 9.) 23. The Partnership Agreement states that “if by the express terms of [the Partnership] Agreement any matter is to be determined by the Executive Committee or by decision of the partners . . . it shall be so determined or decided, and every such determination or decision shall be final and binding for purposes of this Agreement and not subject to review or modification in any arbitration or judicial proceeding.” (Leccese Decl. ¶ 15; Ex. 1 § 22.) RESPONSE: Undisputed that this is a quote from Paragraph 22 of the Firm’s Partnership Agreement. Plaintiff, however, disputes that this language, which purports to exempt the Executive Committee’s decisions from judicial or arbitral review or modification, is valid or enforceable. Moreover, this statement has no bearing on Defendant’s summary judgment motion and should be stricken from Defendant’s Statement of Material Facts as irrelevant and improper. 24. As set forth in the Partnership Agreement, the Executive Committee’s responsibilities include the: (i) determination of fees, profits, expenses, and accounting practices, (ii) allocation of profits among and distribution of profits to the partners, (iii) authorization of banking and safe deposit accounts and signatures, (iv) incurring of capital expenditures, (v) investing funds of the Partnership, (vi) borrowing on behalf of the Partnership, (vii) hiring and discharging of employees, (viii) determinations regarding acceptance of client representation and resolution of conflicts arising in the course of such representation, (ix) determination of all matters relating to the Firm’s insurance and its pension, group life and other plans, (x) equipment and other purchases, (xi) negotiation and execution on behalf of the Partnership of all leases and contracts, (xii) interpretation of this Agreement and (xiii) all other matters as to which no other or inconsistent provision has been made in this Agreement. RESPONSE: Undisputed that this is an excerpt from Paragraph 5(c) of the Firm’s Partnership Agreement. Paragraph 5(c) of the Partnership Agreement further provides that that “[a]ll matters of management, policy and operations shall be determined by the Executive Committee.” (Leccese Decl. Ex. 1 § 5(c).) Proskauer’s Executive Committee does, in fact, exercise complete control over the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 14.) The Executive Committee exercises complete control over the terms and conditions of partner employment, and Plaintiff expects discovery to confirm this (Plaintiff Decl. ¶ 14, 53.) 7 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 8 of 35 25. Under the Partnership Agreement, the Executive Committee may appoint other committees to assist in carrying out its functions, and it also appoints chairpersons to head each of the Firm’s departments after giving due consideration to the views of the partners in each department. (Leccese Decl. ¶ 17; Ex. 1 § 5(b), (f).) RESPONSE: Undisputed that the Executive Committee appoints committees and appoints chairpersons to head each of the Firm’s departments. Plaintiff, however, disputes that the Executive Committee gives due consideration to the views of partners in each department when selecting chairpersons to head the Firm’s departments. When Plaintiff sought more of a leadership role in her office and department, Chairman Leccese rebuffed her – even though previously he had given glowing assessments of her performance, practice, contributions to the Firm, and leadership skills. (Plaintiff Decl. ¶ 16.) Moreover, when Plaintiff asserted legitimate objections to the selection of a recent Department Co-Chair, her objection was ignored. (Id.) Plaintiff seeks discovery concerning the Executive Committee’s selection of department chairs without considering the input of department members. (Sanford Decl. ¶ 9.) 26. Although the Executive Committee has the authority to manage the Firm’s affairs under the Partnership Agreement, the Executive Committee is also required to submit to the partners any matter that three Executive Committee members “deem of sufficient importance to merit discussion or decision by the partners.” (Leccese Decl. ¶ 18; Ex. 1 § 5(c).) RESPONSE: Undisputed that the Executive Committee manages the Firm’s affairs and that this paragraph quotes from Paragraph 5(c) of the Partnership Agreement. Plaintiff, however, disputes any misleading suggestion that this clause – which merely permits partners to discuss or decide issues that the Executive Committee itself decides to present to partners – provides a meaningful check on the authority of the Executive Committee. Plaintiff is not aware of the Executive Committee permitting partners to vote on a matter over which the Executive Committee has unilateral authority. (Plaintiff Decl. ¶ 20.) 27. The Executive Committee can—and, at times does—ask the partners to vote on matters that the Executive Committee would otherwise have the authority to decide on its own. (Leccese Decl. ¶ 18.) RESPONSE: Undisputed that the Partnership Agreement provides that the Executive Committee “can” ask partners to vote, but disputed that the Executive Committee actually does ask partners to vote on matters over which the Executive Committee has authority. Further, Plaintiff disputes that the Executive Committee permitting partners to vote on issues that the Executive Committee itself selects provides a meaningful check on the authority of the Executive Committee. Plaintiff is not aware of the Executive Committee permitting partners to vote on a matter over which the Executive Committee has unilateral authority. (Plaintiff Decl. ¶ 20.) Even with respect to the limited issues that the Partnership Agreement purportedly requires be decided through a vote of the full partnership, the Executive Committee acts unilaterally, including hiring and firing partners. (Id.) 8 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 9 of 35 28. Under the Partnership Agreement the Executive Committee must report to the partners—as it does in monthly meetings—on decisions made by the Executive Committee on behalf of the Firm. (Leccese Decl. ¶ 18; Ex. 1 § 5(e).) RESPONSE: Undisputed that 5(e) of the Partnership Agreement provides for the Executive Committee to report to partners at partnership meetings. In practice, however, the Firm’s partnership meetings are perfunctory and do not involve substantive discussions or deliberations by non-Executive Committee partners regarding plans or strategies for the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 19.) The Executive Committee leads and directs discussions at partner meetings. Its reports to partners are not detailed and do not provide partners with insight into many aspects of the Firm’s finances, operations, management, personnel, and administration. (Id.) The reports that the Executive Committee provides at monthly meetings are typically limited to brief, summary information regarding Firm financial results, pending client representations, and lateral partners approved by the Executive Committee. (Id.) The Executive Committee does not encourage partners to engage in substantive discussions or deliberations at partnership meetings, and partners are reluctant to question or challenge decisions made by the Executive Committee. (Id.) Plaintiff seeks discovery to establish that the Executive Committee does not provide complete information to Firm partners concerning its decisions. (Sanford Decl. ¶ 9.) 29. The Executive Committee consists of seven members, including the Firm’s Chair. (Leccese Decl. ¶ 19; Ex. 1 § 7(a)(1).) RESPONSE: Undisputed. Proskauer’s compact Executive Committee is all male. Proskauer’s Chairman is, and always has been, male. (Plaintiff Decl. ¶ 10.) 30. The Firm’s partners elect the Executive Committee members and the Chair through the weighted voting procedure described above. (Leccese Decl. ¶ 19; Ex. 1 § 6(c).) RESPONSE: Disputed. This characterization is inconsistent with the language of the Partnership Agreement. According to the Partnership Agreement, the Executive Committee members and the Chair are elected by a mere majority of the weighted votes of the partners who actually vote. (Leccese Decl. Ex. 1 § 6(c).) 31. Elections are conducted by secret ballot and partners may vote in person or by proxy. (Leccese Decl. ¶ 19; Ex. 1 § 6(g), Exhibit A.) RESPONSE: Disputed. These votes are typically performed electronically. Plaintiff does not know whether electronic votes are anonymous. (Plaintiff Dec. ¶ 50.) 32. A candidate who receives a majority of the votes cast is elected to the position. (Leccese Decl. ¶ 19; Ex. 1 § 6(c).) RESPONSE: Plaintiff is not a member of Proskauer’s Executive Committee – which manages all Firm operations and oversees votes – and therefore lacks information as to how votes have actually been tallied in practice. (Plaintiff Decl. ¶ 50.) 9 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 10 of 35 33. All equity partners, including Doe, are eligible to run for Chair or a seat on the Executive Committee. (Leccese Decl. ¶ 20; Ex. 1 § 5(b), 7(c).) RESPONSE: Disputed. The Partnership Agreement provides that only “regular partners” – not all “equity partners” – are eligible to serve as the Firm’s Chair or on the Firm’s Executive Committee and thus purportedly excludes Firm partners who have separate agreements with Proskauer. (Leccese Decl. Ex. 1 § 7(c).) Plaintiff entered into a separate agreement with Proskauer when she joined the Firm. (Plaintiff Decl. ¶ 3.) Plaintiff seeks discovery concerning the eligibility of equity partners who have side agreements with the Firm to serve as the Firm’s Chair or on the Executive Committee. (Sanford Decl. ¶ 9.) 34. Decl. ¶ 20.) There is no nominating committee that controls who runs for a position. (Leccese RESPONSE: Undisputed that Proskauer does not have a formal “nominating committee.” However, the Executive Committee effectively controls who is eligible to serve on the Executive Committee by unilaterally deciding whether, and when, to make partners “contract partners” versus “regular partners.” (Plaintiff Decl. ¶ 15.) Plaintiff seeks discovery concerning the Executive Committee’s decisions as to whether, and when, to make partners “contract partners” versus “regular partners.” (Sanford Decl. ¶ 5.) 35. Each equity partner is simply asked whether s/he wishes to have her/his name included on the ballot for election to the position. (Leccese Decl. ¶ 20; Ex. 1 Exhibit A, ¶ 2.) RESPONSE: Disputed. The Partnership Agreement provides that only “regular partners” – not all equity partners – are eligible to serve as the Firm’s Chair or on the Firm’s Executive Committee and thus purportedly excludes Firm partners who have separate agreements with Proskauer. (Leccese Decl. Ex. 1 § 7(c).) Plaintiff entered into a separate agreement with Proskauer when she joined the Firm. (Plaintiff Decl. ¶ 3.) Plaintiff seeks discovery concerning the eligibility of equity partners who have side agreements with the Firm to serve as the Firm’s Chair or on the Executive Committee. (Sanford Decl. ¶ 9.) 36. If s/he wants to be included, then her/his name will be shown on the ballot. (Leccese Decl. ¶ 20; Ex. 1 Exhibit A, ¶¶ 4, 5.) RESPONSE: Disputed. The Partnership Agreement provides that only “regular partners” – not all equity partners – are eligible to serve as the Firm’s Chair or on the Firm’s Executive Committee and thus purportedly excludes Firm partners who have separate agreements with Proskauer. (Leccese Decl. Ex. 1 § 7(c).) Plaintiff entered into a separate agreement with Proskauer when she joined the Firm. (Plaintiff Decl. ¶ 3.) Plaintiff seeks discovery concerning the eligibility of equity partners who have side agreements with the Firm to serve as the Firm’s Chair or on the Executive Committee. (Sanford Decl. ¶ 9.) 37. The Chair presides at partner meetings and Executive Committee meetings, and serves a three-year term. (Leccese Decl. ¶ 21; Ex. 1 §§ 5(d), 7(a)(2).) 10 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 11 of 35 RESPONSE: Undisputed that the Chainnan presides at partner meetings and Executive Committee meetings. However, the Chainnan has served consecutive three-year tetms. (PlaintiffDecl. ~ 12.) 38. Executive Committee members also serve three-year tetms, which are staggered so that two of the six members' tetms expire each year. (Leccese Decl. ~ 21 ; Ex. 1 § 7(a)(2)-(3).) RESPONSE: Undisputed. However, Executive Committee members can and do serve multiple non-consecutive three-year tenns. (PlaintiffDecl. ~ 12.) 39. Executive Committee members, other than the Chair, may not setve consecutive tetms. (Leccese Decl. ~ 22; Ex. 1 § 7(a)(3).) RESPONSE: Undisputed. The Chailman has setved consecutive three-year tenns, and Executive Committee members can and do setve multiple non-consecutive three-yea1· tetms. (PlaintiffDecl. ~ 12.) 40. With lllnited exceptions, no more than two partners on the Executive Committee can be from any one depmiment, and none of the Fim1' s offices may have more than six members on the Executive Committee, includll1g the Chail·. (Leccese Decl. ~ 22; Ex. 1 § 7(a)(5).) RESPONSE: Undisputed that the Partnership Agreement and office limitations. Executive Committee IS patiners m New York, ......~_...,,,•.., out of the Finn's Washington, D.C. office. (PlaintiffDecl. ~ 13.) In 2014 and 2015, two of the seven Executive Committee members were women. 41. (Leccese Decl. ~ 22.) RESPONSE: Undisputed. This paltry level of female representation on Proskauer's Executive Committee did not confer any meaningful protection on Plaintiff as a female partner. (PlaintiffDecl. ~ 11.) In addition, Proskauer's Executive Committee is now allmale. (Id. ~ 10.) 42. In 2016, one ofthe seven Executive Committee members was a woman. (Id.) RESPONSE: Undisputed. This paltry level of female representation on Proskauer's Executive Committee did not confer any meaningful protection on Plaintiff as a female paliner. (PlaintiffDed. ~ 11.) Indeed, the sole female member of the Executive Committee in 2016 had to be recused from the Executive Committee's deliberations concerning her pay. (Id.) In addition, Proskauer's Executive Committee is now all-male. (Id. ~ 10.) 43. The Film's equity patiners, including Doe, shm·e in the profits and losses of the Film. (Leccese Decl. ~ 23; Ex. 1 § 11.) RESPONSE: Disputed. Proskauer partners do not enjoy true profit shm·ing. (Id. ~ 39.) Proskauer patiners do not have any fixed ownership stake in the Film or any fixed share of 11 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 12 of 35 the Firm’s profits or losses. (Id.) Instead, the Executive Committee wields complete discretion and control over the pay assigned to Proskauer partners and any losses charged to them. (Id.) The Executive Committee unilaterally sets and exclusively controls partner pay. (Id.) The Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id. ¶ 40.) Proskauer’s Executive Committee changes partner pay from year to year at its discretion – purportedly after the completion of a performance review process. (Id.) Plaintiff seeks discovery to confirm that Proskauer partners do not “share” profits or losses and instead the Executive Committee unilaterally establishes partner pay from year to year, purportedly in connection with annual performance reviews. (Sanford Decl. ¶ 11.) 44. The Firm’s equity partners also contribute capital to the Firm annually in an amount equal to 7% of their share of the Firm’s profits for the year, subject to certain limitations. (Leccese Decl. ¶ 23; Ex. 1 § 12(a).) RESPONSE: Disputed. The Executive Committee dictates the capital contribution for equity partners who join the Firm as “contract partners.” (Plaintiff Decl. ¶ 46.) Plaintiff seeks discovery concerning individual arrangements that the Executive Committee has entered into with partners concerning capital contribution levels. (Sanford Decl. ¶ 11.) 45. Equity partners are entitled to a return on their capital at a rate fixed by the Executive Committee. (Leccese Decl. ¶ 23; Ex. 1 § 12(b).) RESPONSE: Undisputed that partners are entitled to a return on their capital at a rate or amount fixed by the Executive Committee. The Executive Committee exercises complete control over the rate of return on partner capital accounts. (Plaintiff Decl. ¶ 46.) 46. Employees of the Firm do not make capital contributions and are not charged with any portion of the Firm’s losses. (Leccese Decl. ¶ 23.) RESPONSE: Disputed. Partner employees make capital contributions, as directed by the Executive Committee or as set forth in the Partnership Agreement. (Plaintiff Decl. ¶ 46; Leccese Decl. Ex. 1 § 12.) Under the Partnership Agreement, the Executive Committee wields control over any losses charged to partner employees. (Leccese Decl. Ex. 1 § 11.) 47. The Partnership Agreement requires that “[t]he profits of the Firm each year shall be allocated among the partners by the Executive Committee,” and that “[i]f the Firm shall incur net losses, such net losses shall be chargeable to the partners in such a manner as is determined by the Executive Committee....” (Leccese Decl. ¶ 24; Ex. 1 § 11.) RESPONSE: Undisputed that, under the Partnership Agreement, the Executive Committee exercises complete control over the pay assigned to Proskauer partners and any losses charged to them. (Leccese Decl. Ex. 1 § 11.) Proskauer partners do not enjoy true profit sharing. Proskauer partners do not have any fixed ownership stake in the Firm or any fixed share of the Firm’s profits or losses. (Plaintiff Decl. ¶ 39.) The Executive Committee unilaterally sets and exclusively controls partner pay. (Id.) The Executive Committee engages in a process of setting partner pay that is akin to the process the 12 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 13 of 35 Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id. ¶ 40.) Proskauer’s Executive Committee changes partner pay from year to year at its discretion – purportedly after the completion of a performance review process. (Id.) Plaintiff seeks discovery to confirm that Proskauer partners do not “share” profits or losses and instead the Executive Committee unilaterally establishes partner pay from year to year, purportedly in connection with annual performance reviews. (Sanford Decl. ¶ 11.) 48. Proskauer does not have “points” or “shares” or any metrics that “entitle” a partner to any particular level of allocation in a given year. (Leccese Decl. ¶ 25.) RESPONSE: Undisputed. Proskauer partners do not have any fixed ownership stake in the Firm or any fixed share of the Firm’s profits or losses. (Plaintiff Decl. ¶ 39.) See also Response to No. 43. Instead of the partners enjoying true profit sharing, the Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id. ¶¶ 39, 40.) Plaintiff seeks discovery to confirm that Proskauer partners do not “share” profits or losses and instead the Executive Committee unilaterally establishes partner pay from year to year, purportedly in connection with annual performance reviews. (Sanford Decl. ¶ 11.) 49. Rather, the Executive Committee annually undertakes a year-end review of each partner’s performance on a host of quantitative and qualitative factors related to both short- term and long-term contributions. (Id.) RESPONSE: Disputed, except undisputed that Proskauer’s Executive Committee purportedly evaluates partner performance in setting partner pay and does not base its compensation decisions on any ownership interests in the Firm. When setting Plaintiff’s pay, however, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) 50. In conducting its annual allocation process, the Executive Committee takes into account the myriad ways in which partners contribute to the Firm’s success. (Leccese Decl. ¶ 26.) RESPONSE: Disputed, except undisputed that Proskauer’s Executive Committee sets partner pay purportedly in connection with an evaluation of partner performance rather than based on any ownership interests in the Firm. When setting Plaintiff’s pay, however, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.) 13 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 14 of 35 Plaintiff seeks discove1y to establish the actual basis for the Executive Committee's compensation decisions. (Sanford Decl. ~ 11.) 51. The Executive Committee sends an annual memorandum to all equity partners addressing the allocation of profits for the preceding fiscal year. (Leccese Decl. ~ 27; Ex. 2, Ex. 3, Ex. 4, Ex. 5.) RESPONSE: Undisputed that the Executive Committee sends an annual memorandum to equity prutners purp01tedly addressing the allocation of profits for the preceding fiscal yeru·. The memoranda, however, do not provide a complete or accurate explanation of the Executive Committee's compensation decisions. (Plaintiff Decl. ~ 43.) Further, the Executive Committee does not provide paliners with an explanation for their specific compensation levels; each prutner simply receives a one-sentence memorandum "announc[ing]" the compensation set by the Executive Committee for the prior fiscal year. (Id. ~ 42.) Plaintiff seeks discove1y to establish the actual basis for the Executive Committee's compensation decisions. (Sanford Decl. ~ 11.) 52. Each year Doe was a partner, the Executive Committee emphasized in its annual memorandum (which was sent to Doe and all other equity pa1tners) that in detennining allocations it "did not make any decisions- up or down- based on a single year' s perf01mance" (Ex. 2 at 2, Ex. 3 at 4) and that it did not base allocations on "the vagaries of a single yeru·" (Ex. 4 at 9, Ex. 5 at 7). (Leccese Decl. ~ 28.) RESPONSE: Undisputed that this is a pa1tial quote from the Executive Committee's annual memoranda to · . The Executive Committee's memoranda further state . Decl. Ex. 4 at 9, Ex. 5 at 7.) The Executive Committee's memoranda, however, do not provide a complete or accurate explanation of the Executive Committee's compensation decisions . (Plaintiff Decl. ~ 43 .) Plaintiff seeks discovery to establish the actual basis for the Executive Committee' s compensation decisions. (Sanford Decl. ~ 11.) 53. Rather, the Executive Committee made cleru· that it "rigorously examined threeyeru· (and longer) averages and the totality of each prutner's long te1m contributions" (Ex. 2 at 2, Ex. 3 at 4) and that it made allocation decisions "based on the totality ofthat pattner's contribution over a period ofyeru·s" (Ex. 4. at 9, Ex. 5 at 7). (Leccese Decl. ~ 28.) RESPONSE: Undisputed that this is a pattial quote from the Executive Committee's annual memoranda to pru·tners. The memoranda, however, do not provide a complete or accurate explanation of the Executive Committee's compensation decisions. (Plaintiff Decl. ~ 43.) When setting Plaintiffs pay, the Executive Committee did not engage in an objective evaluation of pa1tner perf01mance or weigh the entirety of pru·tner contributions; rather, the Executive Committee wielded its authority in a discriminatmy and retaliatory matmer. (Id. ~ 45.) Proskauer has paid numerous male prutners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Fum matched or exceeded then·s. (Id.) Plaintiff seeks discovery to establish the actual 14 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 15 of 35 basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) See also Response to No. 54. 54. In other words, partner allocations are not tied to one year’s financial performance, but take into account the totality of the partner’s contributions over several years. (Id.) RESPONSE: Disputed. When setting Plaintiff’s pay, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.) Furthermore, the Executive Committee tied Plaintiff’s initial compensation to her billings during her first (partial) year at the Firm. (Leccese Decl. Ex. 10.) Plaintiff seeks discovery regarding the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) 55. Similarly, the Executive Committee has advised the Firm’s equity partners that “no metric should be viewed as dispositive,” and “each has its limitations.” (Leccese Decl. ¶ 29; Ex. 2 at 4, Ex. 3 at 5.) RESPONSE: Undisputed that this is a partial quote from the Executive Committee’s annual memoranda to “equity partners.” The Executive Committee memoranda, however, do not provide a complete or accurate explanation of the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 43.) In discussions with Executive Committee members, Office Heads, and Department Chairs, Plaintiff was informed that the Executive Committee gives predominant weight to partners’ client originations when determining partner pay. (Id.) Indeed, for her first year at the firm, Plaintiff was compensated based on that metric. (Leccese Decl. Ex. 10.) See also Response to No. 53. Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) 56. It is the Executive Committee’s role to “carefully assess all metric and non-metric information.” (Leccese Decl. ¶ 29; Ex. 2 at 4.) RESPONSE: Undisputed that this contains language quoted from one of the Executive Committee’s memoranda, but disputed that this accurately reflects how the Executive Committee sets partner pay. When setting Plaintiff’s pay, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) 57. In explaining to partners the review it undertakes each year, the Committee has stressed “the laborious and nuanced process we go through in attempting to understand more fully 15 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 16 of 35 the entirety of each partner's contributions to our collective well-being, the fairness of relative placement and the importance of all the factors not reflected on [the allocation] schedule, including the non-metric factors set forth in the statement of Our Fundamental Partnership Values.” (Leccese Decl. ¶ 30; Ex. 2 at 5, Ex. 3 at 6, Ex. 4 at 11, Ex. 5 at 9.) RESPONSE: Undisputed that this language is a quote from memoranda that the Executive Committee distributes. Plaintiff disputes, however, that the quoted language provides a complete or accurate explanation of the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 43.) In discussions with Executive Committee members, Office Heads, and Department Chairs, Plaintiff was informed that the Executive Committee gives predominant weight to partners’ client originations when determining partner pay. (Id.) When setting Plaintiff’s pay, however, the Executive Committee did not engage in an objective evaluation of partner performance or weigh the entirety of partner contributions; rather, the Executive Committee wielded its authority in a discriminatory and retaliatory manner. (Plaintiff Decl. ¶ 45.) Proskauer has paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions and track record at the Firm matched or exceeded theirs. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) 58. Those values include, among other things, acting as a business owner and fiduciary, practicing at the highest level of quality and integrity, abiding by ethical and legal standards, operating as a consummate team player, adhering to sound practice management, sharing credit with others and ensuring that the Firm prospers for future generations. (Leccese Decl. ¶ 31.) RESPONSE: Undisputed that memoranda that the Executive Committee sends partners discuss these purported values. Plaintiff disputes, however, that the Executive Committee consistently considers or weighs these factors when deciding on partner pay. (Plaintiff Decl. ¶ 44.) Based on Plaintiff’s observations, most of the Firm’s most highly compensated males do not embrace or exemplify many of these purported values. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) 59. The Firm’s Fundamental Partnership Values are communicated to the Firm’s equity partners each year in a pre-allocation memorandum. (Leccese Decl. ¶ 31; Ex. 6.) RESPONSE: Undisputed that the Executive Committee disseminates a memorandum called “Our Fundamental Partnership Values.” However, Plaintiff disputes that the memorandum accurately captures the Executive Committee’s actual values or the standards it uses in setting partner pay. (Plaintiff Decl. ¶ 44.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) 60. As the Executive Committee emphatically repeated each year Doe was a partner: If metrics were all that counted we could simply ask a member of the finance staff to multiply one or more of the metric columns by a percentage. The allocation process would 16 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 17 of 35 take only hours but would invariably lead to a ruinous focus on limited, and often inadequate, measures of contribution…. [I]t is a disservice to the process, when partners . . . form adverse judgments about the allocations made to others solely by comparing the metrics. (Leccese Decl. ¶ 32; Ex. 2 at 5, Ex. 3 at 6-7, Ex. 4 at 11, Ex. 5 at 9.) RESPONSE: Undisputed that this language is a quote from memoranda that the Executive Committee distributed. The memoranda, however, do not provide a complete or accurate explanation of the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 43.) In discussions with Executive Committee members, Office Heads, and Department Chairs, Plaintiff was informed that the Executive Committee gives predominant weight to partners’ client originations when determining partner pay. (Id.) Plaintiff seeks discovery to establish the actual basis for the Executive Committee’s compensation decisions. (Sanford Decl. ¶ 11.) 61. The annual allocation process begins each year with the distribution of the preallocation memorandum to all partners in early to mid-October. (Leccese Decl. ¶ 33, Ex. 7, Ex. 8, Ex. 9.) RESPONSE: Disputed. Plaintiff has never been a member of the Executive Committee and lacks information about when the Committee begins its process of setting partner pay. (Plaintiff Decl. ¶ 50.) Plaintiff seeks discovery to establish the Executive Committee’s process for setting partner pay. (Sanford Decl. ¶ 11.) 62. The Firm’s fiscal year runs from November 1 to October 31. (Leccese Decl. ¶ 33, n.1; Ex. 1 § 10.) RESPONSE: Undisputed. 63. In the pre-allocation memorandum, the Executive Committee invites partners to submit memoranda outlining their contributions to the Firm and the contributions made by their colleagues. (Leccese Decl. ¶ 33.) RESPONSE: Disputed as to the characterization that the Executive Committee “invites” partners to submit self-evaluation memoranda. The Executive Committee directs partners to submit year-end memoranda and sets strict page limits and deadlines for their submission. (Plaintiff Decl. ¶ 40.) The Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id.) Plaintiff’s experience indicates that partner submissions do not meaningfully influence the Executive Committee’s compensation decisions. (Id.) 64. As the Executive Committee has explained, partner memos “provide valuable information [to the Committee] on a variety of economic and non-economic matters that cannot be measured solely by the year-end metrics available to us.” (Leccese Decl. ¶ 34; Ex. 7 at 1, Ex. 8 at 1, Ex. 9 at 1.) 17 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 18 of 35 RESPONSE: Undisputed that this is a quote from memoranda that the Executive Committee disseminates, but disputed that the Executive Committee values or is meaningfully influenced by partners’ self-evaluation memoranda. Plaintiff’s experience indicates that partner submissions do not meaningfully influence the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 40.) 65. The annual memoranda prepared by partners are sent not only to the Executive Committee, but also to the partner’s Department Chairs and office heads for review and discussion. (Leccese Decl. ¶ 35.) RESPONSE: Undisputed. The Executive Committee also requires Department Chairs and office heads – whom the Executive Committee hand picks – to partners’ performance and to provide their evaluations of partners’ performance to the Executive Committee in connection with the Executive Committee’s setting of partner pay. (Plaintiff Decl. ¶ 41.) Plaintiff seeks discovery to establish the influence of Department Chairs and office heads over partner pay. (Sanford Decl. ¶ 11.) 66. Although the Department Chairs and office heads do not set allocations for the Firm’s partners, they are available to meet with each partner to review his/her memorandum and discuss any questions, issues, concerns or other information that the partner may wish to raise in advance of the Firm’s annual allocation decisions, and Department chairs and office heads provide input to the Executive Committee for its consideration with respect to those decisions. (Id.) RESPONSE: Undisputed that Department Chairs meet with partners about their memoranda and provide input to the Executive Committee, but Plaintiff disputes the misleading implication that partners have the opportunity to influence the Executive Committee’s compensation decisions. The Executive Committee also requires Department Chairs and office heads – whom the Executive Committee hand picks – to partners’ performance and to provide their evaluations of partners’ performance to the Executive Committee in connection with the Executive Committee’s setting of partner pay. (Plaintiff Decl. ¶ 41.) Plaintiff’s experience indicates that these meetings do not meaningfully influence the Executive Committee’s compensation decisions. (Id. ¶ 40.) Plaintiff seeks discovery to establish the influence of Department Chairs and office heads over partner pay. (Sanford Decl. ¶ 11.) 67. After partner memos are submitted to the Executive Committee for consideration, members of the Executive Committee make themselves available to meet with any partner who wishes to discuss his/her contributions, as well as the contributions of other partners. (Leccese Decl. ¶ 36.) RESPONSE: Undisputed that Executive Committee members are available to meet with partners, but Plaintiff disputes the misleading implication that partners have the opportunity to influence the Executive Committee’s compensation decisions. Plaintiff’s experience indicates that these meetings do not meaningfully influence the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 40.) The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partners’ performance it receives from Department Chairs or Office Heads. (Id. ¶ 42.) 18 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 19 of 35 68. Following these meetings between members of the Executive Committee and any partner who wishes to discuss his/her contributions, as well as the contributions of other partners, and after the Executive Committee has considered each partner’s contributions to the Firm, the Committee makes final allocation decisions and communicates those decisions to the partners in December of each year. (Id.) RESPONSE: Undisputed that the Executive Committee makes final decisions on partner pay and communicates those decisions, after the Executive Committee has made them, to partners each December. Plaintiff, however, disputes the misleading implication that partners have the opportunity to influence the Executive Committee’s compensation decisions or that the Executive Committee engages in an objective evaluation of partner contributions. Based on Plaintiff’s experience, partner submissions and subsequent meetings that partners may hold with the Executive Committee do not meaningfully influence the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 40.) See also Response to No. 53. 69. In accordance with Section 22 of the Partnership Agreement, such allocation decisions – which are entrusted to the Executive Committee by the partners – are “final and binding for purposes of [the Partnership] Agreement and not subject to review or modification in any arbitration or judicial proceeding.” (Leccese Decl. ¶ 37; Ex. 1 § 22.) RESPONSE: Undisputed that this is a partial quote from Paragraph 22 of the Firm’s Partnership Agreement. Plaintiff, however, disputes that this language, which purports to exempt the Executive Committee’s decisions from judicial or arbitral review or modification, is valid or enforceable. Plaintiff further disputes that the partners “entrust” compensation decisions to the Executive Committee. Proskauer partners, including Plaintiff, have no alternative but to submit to the Executive Committee’s compensation decisions. (Plaintiff Decl. ¶ 14.) Moreover, this statement has no bearing on Defendant’s summary judgment and should be stricken from Defendant’s Statement of Material Facts as irrelevant and improper. 70. Each of the Firm’s equity partners receives a report each December specifying the allocation paid to each partner and reflecting various metrics applicable to each partner – including cash collected per hour worked by the partner, revenue from clients originated by the partner, revenue from clients for which the partner had relationship responsibility, revenue from client matters for which the partner had responsibility, revenues from matters on which the partner worked, the realization rates associated with such revenue, and hours billed. (Leccese Decl. ¶ 38.) RESPONSE: Undisputed that equity partners receive a summary sheet after the close of the fiscal year that includes limited categories of compensation and performance information about other equity partners. Notably, this information is provided only after the Executive Committee has made its final partner pay decisions. (Plaintiff Decl. ¶ 42.) Proskauer does not afford partners any opportunity for internal appeal of the Executive Committee’s final compensation decisions after partners are provided with access to this information. (Id.) Indeed, Proskauer has taken the position that its pay decisions are final, binding, and unreviewable. (See Leccese Decl. ¶ 37.) However, Plaintiff disputes any implication that Proskauer partners have insight into the basis for the Executive 19 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 20 of 35 Committee’s pay decisions. The Executive Committee does not provide an explanation for the specific compensation levels assigned to partners. (Plaintiff Decl. ¶ 42.) The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partners’ performance it receives from Department Chairs or Office Heads. (Id.) 71. The report provides data for each of those metrics for the immediately preceding year and as an average for the three preceding years. (Id.) RESPONSE: Undisputed that equity partners receive a summary sheet that contains certain one-year and three-year metrics after the Executive Committee has made final compensation decisions. Notably, this information is provided only after the Executive Committee has made its final partner pay decisions. (Plaintiff Decl. ¶ 42.) Proskauer does not afford partners any opportunity for internal appeal of the Executive Committee’s final compensation decisions after partners are provided with access to this information. (Id.) Indeed, Proskauer has taken the position that its pay decisions are final, binding, and unreviewable. (See Leccese Decl. ¶ 37.) 72. In addition, the individual partner memoranda prepared by each partner are available for review by all partners after the allocation process is complete. (Id.) RESPONSE: Disputed. The Executive Committee places numerous limitations on the availability of individual partner memoranda, including requiring in-person review and barring copying or electronic distribution. (Leccese Decl. Ex. 2 at 7; Leccese Decl. Ex. 3 at 8.) Further, Plaintiff disputes any implication that Proskauer partners have insight into the basis for the Executive Committee’s pay decisions. The Executive Committee does not provide an explanation for the specific compensation levels assigned to partners. (Id.) The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partners’ performance it receives from Department Chairs or Office Heads. (Id.) 73. Realization, as measured at Proskauer, includes two different metrics – one that approximates the fees collected as a percentage of the fees accrued at specified rates on client matters, and a second that reflects a “hypothetical” realization that approximates the fees collected as a percentage of the fees that would have accrued at rates attorneys should reasonably charge for their services based on their years of experience. (Id. ¶ 39.) RESPONSE: Disputed. Plaintiff was informed that the “hypothetical” realization rate is an experimental variable that is not factored into partner pay. (Plaintiff Decl. ¶ 42 n.4.) 74. Equity partners are responsible for paying their own individual taxes on allocated Firm income. (Id. ¶ 40.) RESPONSE: Disputed. For certain jurisdictions, the Firm files composite returns and pays applicable taxes for electing partners, and the amounts paid by the Firm on behalf of the electing partners are deducted from the partners’ pay. (Plaintiff Decl. ¶ 48.) 20 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 21 of 35 75. The allocations paid to equity partners are reported on a Schedule K-1, which is the IRS Schedule used to report profits and losses of self-employed business owners of a partnership. (Id.) RESPONSE: Undisputed that the Firm issued Plaintiff a Form K-1 reflecting compensation paid to her. Plaintiff has not been a member of the Executive Committee and lacks control over the Firm’s tax reporting of partner pay. (Plaintiff Decl. ¶ 48.) Further, Plaintiff lacks information regarding the tax reporting of all compensation paid to all partners, as discovery has not taken place yet. (Id. ¶ 50.) 76. Among other things, the Firm’s partners have broad latitude in bringing business into the Firm, subject to the Firm’s conflicts procedures, billing and collection guidelines, risk management and similar policies, all of which are set by the Executive Committee pursuant to the express grant of authority in the Partnership Agreement. (Id.) RESPONSE: Disputed. Proskauer tightly controls the ability of partners to pitch business on behalf of the Firm, and the Firm has restricted Plaintiff’s ability to pitch and develop business. (Plaintiff Decl. ¶ 37.) Proskauer’s Chairman rebuffed Plaintiff’s various marketing and business development initiatives, stating that the areas Plaintiff’s planned to develop were already “owned” by other (almost exclusively male) partners. (Id.) Proskauer’s Chairman also threatened to “fire” one of the clients Plaintiff represented. (Id. ¶ 35.) The Executive Committee and its designated Department Chairs select predominantly male partners to manage and participate in the work of Firm clients, and to participate in the Firm’s pitches, marketing activities, and business development initiatives. (Id. ¶ 37.) Plaintiff seeks discovery regarding the full scope of policies and directives that the Executive Committee imposes on partners. (Sanford Decl. ¶ 6.) 77. The partnership has vested in the Executive Committee the authority to “determin[e] the fees, profits, expenses, and accounting practices of the Firm”, as well as the authority to make “determinations regarding acceptance of client representations and resolution of conflicts arising in the course of such representations.” (Leccese Decl. ¶ 41, n.2; Ex. 1 § 5(c).) RESPONSE: Undisputed that the quoted language is excerpted from Paragraph 5(c) of the Firm’s Partnership Agreement. Plaintiff, however, disputes the misleading suggestion that the Firm’s partners played any role in “vest[ing]” authority to the Executive Committee. Proskauer partners, including Plaintiff, have no alternative but to submit to the oversight and control of the Executive Committee. (Plaintiff Decl. ¶ 14.) 78. Subject to the Executive Committee’s policy determinations, the Firm’s equity partners, including Doe, have discretion over the manner in which they provide services to the Firm’s clients and manage their work, and they are not subject to oversight or supervision by the Executive Committee. (Leccese Decl. ¶ 42.) RESPONSE: Disputed, except that Plaintiff admits that Proskauer partners are “subject to the Executive Committee’s policy determinations.” Proskauer partners are supervised by, and required to report to, the Executive Committee and the Department Chairs selected by the Executive Committee. (Plaintiff Decl. ¶ 33.) The Executive Committee insists that 21 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 22 of 35 (Leccese Decl. Ex. 5 at 3.) Policies Execut1ve Cormmttee Proskauer partners service clients and manage cases. (PlaintiffDecl. ~ 28.) The Executive Committee requires partners to comply with the same Attomey Manual as the Finn's associates, with additional regulations set forth in a Pmtner Manual, and with other Fum policies; through these employee manuals and policies, the Executive Committee dictates picaytme details of pm1ner work, includll1g the content of letters and how documents must be saved. (Id. ~ 27.) Proskauer partners are required to submit daily time records reflecting then· work and detailed records conceming then· billings and collections; these records are monitored and scmtinized by the Finn's Executive Committee and Depmtment Chau·s. (!d. ~ 33.) Further, Proskauer regulates the substance of partner work. (!d. ~ 28.) Pmtners have been told that any work they perf01m on cei1ain subject matters must follow specific templates developed by the Fum. (!d.) Proskauer also lllnits the types of clients whom pminers are able to represent, lllnits the positions partners can asse11 on behalf of clients, and has dictated that cet1ain claims or positions cannot be asserted behalf of clients. (!d.) The Executive Cormnittee has interjected itself into pminer management of client matters by making unilateral decisions regm·ding billings and collections. (!d.~ 35.) On one occasion, Proskauer's Chaitman actually threatened to "fire" one of Plaintiffs clients. (Jd.) Fmiher, Department Co-Chau·s (whom the Executive Committee hand selects) have insetted themselves into and interfered with Plaintiffs work and management of client matters. (!d.) For instance, Plaintiff was told by her Depa11ment Co-Chan· to provide specific advice to a client (which she disagreed with) regarding a complex legal issue. (!d.) Plaintiff seeks discovety regarding the full scope of the Executive Committee's supervision ofpminers. (Sanford Decl. ~~ 7, 8.) In the case of litigators like Doe, for example, patiners routinely advise clients on 79. litigation avoidance, confer with clients on litigation strategy and file com1 documents, all without any oversight by the Executive Committee. (Id.) RESPONSE: Disputed. Proskauer pminers are supervised by, and required to rep011 to, the Executive Committee and its designees, the Depm1ment Chairs whom the Executive Committee hand selects. (Plaintiff Decl. ~ 33.) Proskauer partners m·e required to submit daily time records reflecting then· work and detailed records conceming then· billi11gs and collections; these records are monitored and scmtinized by the Fum's Executive Committee and Depmiment Chau·s. (!d.) Plaintiff is requu·ed to provide monthly rep01is - both written and oral - to her Depru1ment Co-Chairs detailing the status of her and her team's cases. (!d. ~ 34.) For instance, Plaintiff was told by her Depmiment Co-Chair to provide specific advice to a client (which she disagreed with) regarding a complex legal issue. (!d. ~ 35.) See also Response to No. 78. Plaintiff seeks discovety regardll1g the full scope of the Executive Committee' s supe1vision of partners. (Sanford Decl. ~~ 7, 8.) 80. The Fum's associates or other Fum employees are subject to supetvision by the Fum, includll1g by the pminers (such as Doe) who oversee client matters. (Leccese Decl. ~ 43.) RESPONSE: Undisputed. Pruiners such as Plaintiff are subject to extensive supe1vision by the Executive Committee, then· Depmiment Chau·s, and other partners. (PlaintiffDecl. ~~ 33-36.) See also Responses to Nos. 78 and 79. 22 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 23 of 35 81. The Firm’s partners also have wide-ranging access to the Firm’s financial information. (Leccese Decl. ¶ 44.) RESPONSE: Disputed. Partners who are not on the Executive Committee lack access to much of the Firm’s financial information. (Plaintiff Decl. ¶¶ 19, 49.) The Executive Committee provides partners with only limited disclosures regarding the Firm’s finances comprised of brief, summary information regarding Firm financial results. (Id. ¶¶ 19, 49.) Plaintiff seeks discovery concerning partners’ lack of access to complete information regarding the Firm’s finances. (Sanford Decl. ¶ 9.) 82. Pursuant to Section 5(e) of the Partnership Agreement, partners are entitled to financial information and other materials to be discussed at monthly partner meetings (Ex. 1 § 5(e)); and detailed financial data – including revenue, billings, collections, hours and other metrics – is presented to all partners during monthly partnership meetings. (Leccese Decl. ¶ 44.) RESPONSE: Disputed. The Executive Committee provides partners with only limited disclosures regarding the Firm’s finances, comprised of brief, summary information regarding Firm financial results. (Id. ¶¶ 19, 49.) The Executive Committee’s reports to partners are not detailed and do not provide partners with insight into many aspects of the Firm’s finances, operations, management, personnel, and administration. (Id. ¶ 19.) Plaintiff seeks discovery concerning partners’ lack of access to complete information regarding the Firm’s finances. (Sanford Decl. ¶ 9.) 83. Access to Firm financial data is available to equity partners through the Partner Portal on the Firm’s intranet. (Id.) RESPONSE: Disputed. Through the Partner Portal, Plaintiff is not provided with comprehensive Firm financial information; beyond her own performance information, she can access only the limited, summary information shared at partnership meetings. (Plaintiff Decl. ¶ 42 n.5.) See also Response to No. 82. Plaintiff seeks discovery concerning partners’ lack of access to complete information regarding the Firm’s finances. (Sanford Decl. ¶ 9.) 84. All equity partners receive, at the time of profit allocations, annual and 3-year average data on partner allocations, cash collected per hour worked, four categories of revenue credit, and realization rates for each partner of the Firm. (Leccese Decl. ¶ 45.) RESPONSE: Disputed. It is after the distribution of pay memoranda that the Executive Committee provides partners with a summary sheet that includes these limited categories of compensation and performance information about other partners. (Plaintiff Decl. ¶ 42.) The summary sheets do not include information for non-equity partners. (Id.) Further, Plaintiff disputes any implication that Proskauer partners have insight into the basis for the Executive Committee’s pay decisions. The Executive Committee does not provide an explanation for the specific compensation levels assigned to partners. (Plaintiff Decl. ¶ 42.) The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partners’ performance it receives from Department Chairs or Office Heads. (Id.) 23 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 24 of 35 85. In addition to having the right to cast three votes in patinership votes, equity pa1iners also have extensive access to individual allocations and other fmancial metrics on their fellow patiners. (!d.) RESPONSE: Disputed. See Response to No. 14. Further, the infmmation that Proskauer partners receive is not "extensive" and is provided only after-the-fact, not in real time. Specifically, the Executive Committee merely provides patiners with a summary sheet after the close of the fiscal yeru· that includes limited categories of compensation and perfmmance infmmation about other equity pminers. (Plaintiff Decl. ~ 42.) Moreover, this infmmation is provided only after the Executive Committee has made its final partner pay decisions. (!d.) Fmther, the Executive Committee does not afford pmtners any oppmtunity for intemal appeal of the Executive Committee' s final compensation decisions after pminers ru·e provided with access to this infmmation. (!d.) 86. Income pminers and other employees of the Fi1m ru·e not given access to this financial infmmation about equity pa1iners. (!d.) RESPONSE: Disputed. There are non-pminer employees of the Fum who have access to financial infmmation conceming equity pminers. (Plaintiff Dec!.~ 42 n.4.) 87. Doe joined Proskauer as an equity pminer in the 2013, and has been a partner for the past fom years m .I..JY'~'"''"'"' Decl. ~ 46.) RESPONSE: Undisputed. Notwithstandii1g her title as "equity partner," the Executive Committee has exercised complete control over the te1ms and conditions of Plaintiff's employment, including controlling her hiring, controlling her compensation, and, according to the position taken in the Fum's submissions to this Comt, claiming the right to unilaterally te1minate her employment (Plaintiff Decl. ~ 14.) Plaintiff seeks discove1y to confnm the Executive Committee's contr ol over the tenus and conditions of Plaintiff's employment. (See generally Sanford Decl.) 88. Doe caine to the Fum after as a patiner (!d.) a paitner at- and RESPONSE: Undisputed. 89. Like all prospective pminers, Doe's admission to the pminership was subject to approval by a vote of the pmtners. (!d.) RESPONSE: Disputed. Proskauer's Chairman extended to Plaintiff a written offer of pa1inership, which provided that she would become a Proskauer paiiner merely by signing the offer. (Plaintiff Dec!.~ 2; Leccese Decl. Ex. 10.) It was only after Plaintiff executed and retmned her binding agreement with Proskauer that the Executive Committee held a vote of the full partnership. (Plaintiff Decl. ~ 2.) It was made clear to Plaintiff that any subsequent pa1inership vote would be a mere fmmality. (!d. ~ 1.) Indeed, the favorable partnership vote was a pro forma exercise that merely confmned the Executive Committee 's decision to hll·e her. (!d. ~ 2 .) 24 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 25 of 35 90. After a presentation to the equity partners at a partnership meeting, the equity partners voted to admit Doe as an equity partner. (Id.) RESPONSE: Undisputed that Plaintiff was presented to the equity partners at a partnership meeting and received a favorable vote. However, it was only after Plaintiff executed and returned her binding agreement with Proskauer that the Executive Committee held a vote of the full partnership. (Plaintiff Decl. ¶ 2.) The favorable partnership vote was a pro forma exercise that merely confirmed the Executive Committee’s decision to hire her. (Id.) 91. Upon joining the Firm, Doe agreed to the Partnership Agreement. (Id.) RESPONSE: Disputed. Proskauer’s Executive Committee only had Plaintiff sign a side agreement with the Firm and never asked Plaintiff to sign the Partnership Agreement. (Plaintiff Decl. ¶ 3.) In its submission to the Court, the Firm now apparently claims this separate agreement authorizes it to unilaterally terminate Plaintiff without any vote of the full partnership (in contravention of the Partnership Agreement). (Leccese Decl. ¶ 47.) 92. When Doe joined the Firm, in addition to agreeing to the Partnership Agreement, she and the Firm agreed that while she would be a regular equity partner for all other purposes, her allocation would be guaranteed for 2013 and, subject to certain terms and conditions, her membership in the Firm could be terminated by the Executive Committee either for cause or not for cause. (Leccese Decl. ¶ 47; Ex. 10.) RESPONSE: Disputed, except that Plaintiff acknowledges that Plaintiff signed a separate side agreement with the Firm. Plaintiff, however, disputes the Executive Committee’s characterization of its rights under the side agreement. (See Leccese Decl. Ex. 10.) 93. Since joining the Firm, Doe has received annual allocations from the Firm’s profits. (Leccese Decl. ¶ 48.) RESPONSE: Undisputed that Plaintiff has received annual compensation. Plaintiff, however, disputes the misleading implication that Plaintiff shared in profits. Proskauer partners do not enjoy true profit sharing. (Id. ¶ 39.) Proskauer partners do not have any fixed ownership stake in the Firm or any fixed share of the Firm’s profits or losses. (Id.) Instead, the Executive Committee wields complete discretion and control over the compensation assigned to Proskauer partners. (Id.) The Executive Committee unilaterally sets and exclusively controls partner pay. (Id.) The Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. (Id. ¶ 40.) Proskauer’s Executive Committee changes partner pay from year to year at its discretion – purportedly after the completion of a performance review process. (Id.) Plaintiff seeks discovery to confirm that Proskauer partners do not “share” profits or losses and instead the Executive Committee unilaterally establishes partner pay from year to year, purportedly in connection with annual performance reviews. (Sanford Decl. ¶ 11.) 94. For the balance of the Firm’s 2013 fiscal year (i.e., through October 31), Doe’s allocation was in accordance with the individual agreement she entered into with the Firm. (Id.) 25 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 26 of 35 Specifically, Doe received a pro rata p011ion of _ . which was comprised of pro rata p01tious of ~ and a ~ signing bonus. (Id.) RESPONSE: Undisputed. 95. For 2014, Doe 's profit allocation of the allocation she received for 2013. (Leccese Decl. ~ 49.) 1 represented a l!iYo increase over RESPONSE: Disputed. Plaintiff's assigned compensation for 2014 constituted just a io1o increase over the prorated pay she received for fiscal year 2013. (Plaintiff Decl. ~ 45.) Moreover, Defendant's various statements about Plaintiff's actual compensation, including in relation to other pat1ners, pettain to the merits of her claim that she was discriminated and retaliated against, not whether she was an employee. Thus, they should be stricken from Defendant's Statement of Material Facts as immaterial and improper. 96. The average increase for full-year equity partners for 2014 was approximately only RESPONSE: Plaintiff lacks inf01mation about the average increase in pay for full-time equity partners in 2014, as Plaintiff is not a member of Proskauer 's Executive Committee and discovety has not yet commenced. (Plaintiff Decl. ~ 50.) The Executive Committee does not disclose to the general partnership the annualized pay rates it assigns to pru1ners hired mid-year, and therefore Plaintiff cannot compute the rates of increase for these individuals when they became full-yeru· pat1ners. (Jd.) Fmther, Defendant's emphasis on the "average" increases for other prutners is misleading because Plaintiff's perf01mance far exceeded that of the "average" full-year equity pru1ner. (!d. ~ 45.) 97. For 2015, Doe' s allocation o f - represented a i%increase over 2014. (!d.) RESPONSE: Disputed. Plaintiff's assigned compensation for 2015 constituted less than al% increase over her assigned compensation for 2014. (PlaintiffDecl. ~ 45.) Fmther, Proskauer paid numerous male pat1ners substantially more than Plaintiff even though her quantitative and qualitative contributions at the Film matched or exceeded theirs. (!d.) i%. 98. (Id.) The average increase for full-yeru· equity pat1ners for 2015 was approximately only RESPONSE: Plaintiff lacks iufonnation about the average increase in pay for full-time equity pru1ners in 2015 , as Plaintiff is not a member of Proskauer' s Executive Committee and discovery has not yet commenced. (Plaintiff Decl. ~ 50.) The Executive Committee does not disclose to the general pat1nership the annualized pay rates it assigns to pat1ners hired mid-yeru·, and therefore Plaintiff cannot compute the rates of increase for these individuals when they became full-yeru· prutners. (Jd.) Fmther, Defendant's emphasis on the "average" increases for other pat1ners is misleading because Plaintiff's perf01mance fru· exceeded that of the "average" full-year equity pat1ner. (Id. ~ 45.) 26 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 27 of 35 99. Doe was one of the six highest paid patiners in the Depattment for 2015 , of whom three are male and three are female. (Id.) RESPONSE: Undisputed. Plaintiff, however, disputes any misleading implication that she was appropriately compensated. Proskauer paid numerous male prutners substantially more than Plaintiff even though her quantitative and qualitative contributions at the Film matched or exceeded theirs. (PlaintiffDecl. ~ 45.) Further, the Executive Committee does not claim that it considers patiners' respective depatiments when setting pay. (See generally Leccese Decl.) 100. For 2016, Doe' s allocation was il1creased to~' ani% il1crease over 2015. (Leccese Decl. ~50.) RESPONSE: Undisputed that Plaintiff's assigned compensation for 2016 constituted an 1%increase over her assigned compensation for 2015. However, Proskauer paid numerous male pattners substantially more than Plaintiff even though her quantitative and qualitative contributions at the Film matched or exceeded theirs. (PlaintiffDecl. ~ 45.) 101. The average increase for full-year equity pattners for 2016 was approxitnatelyi%. (Id.) RESPONSE: Plaintiff lacks infotmation about the average increase in pay for full-time equity pattners in 2016, as Plaintiff is not a member of Proskauer ' s Executive Committee and discovety has not yet commenced. (PlaintiffDecl. ~50.) The Executive Committee does not disclose to the general pattnership the annualized pay rates it assigns to pattners hired mid-year, and therefore Plaintiff cannot compute the rates of increase for these individuals when they became full-yeru· patiners. (Jd.) Further, Defendant' s emphasis on the "average" increases for other pruiners is misleading because Plaintiffs perfmmance fru· exceeded that of the "average" full-yeru· equity pattner. (Jd. ~ 45.) 102. 2016. (Id.) Doe was the fifth highest paid partner in the Depatiment for RESPONSE: Undisputed. Plaintiff, however, disputes any misleading implication that she was appropriately compensated. Proskauer paid numerous male partners substantially more than Plaintiff even though her quantitative and qualitative contributions at the Film matched or exceeded theirs. (PlaintiffDecl. ~ 45.) Fmther, the Executive Committee does not claim that it considers patiners ' respective deprutments when setting pay. (Leccese Decl. Exs. 2-5.) 103. Doe routinely files comi documents and advises clients both pre- and during litigation without oversight by the Executive Committee or any of her other co-owners. (Leccese Decl. ~51.) RESPONSE: Disputed. Proskauer prutners are supervised by, and requil·ed to repmi to, the Executive Committee and its designees, the Department Chail·s whom the Executive Committee hand selects. (PlaintiffDecl. ~ 33.) Proskauer pattners are required to submit daily time records reflecting theil· work and detailed records conceming their billings and 27 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 28 of 35 collections; these records are monitored and scm tinized by the Fi1m's Executive Collllllittee and Depruiment Chairs. (!d.) Plaintiff is required to provide monthly rep01ts - both written and oral - to her Depruiment Co-Chairs detailing the status of her and her team 's cases. (!d.~ 34.) Further, Depruiment Co-Chairs have inserted themselves into and interfered with Plaintiff's work and man agement of client matters. (!d. ~ 35.) For instance, Plaintiff was told by her Deprutment Co-Chair to provide specific advice to a client (which she disagreed with) regarding a complex legal issue. (!d.) Fmther, in a recent matter, Plaintiffs work (ru1d the work of several other equity prutners) was dictated, directed, reviewed, an d supervised by other Fi1m pruiners. (!d. ~ 36.) Among other things, she was required to submit drafts of memoranda and other com1mmications for other prutners' review and revisions. (/d.) fu one instance, she was directed to provide legal advice with which she disagreed. (/d.) See also Response to No. 78. 104. Doe generates client relationships and perf01ms legal work for clients in her discretion subject to the general policies concerning conflicts, risk and billing established by the Fum's elected Executive Collllllittee for the collective benefit of the prutners and the Fum. (!d.) RESPONSE: Disputed. The Executive Collllllittee does not just impose "general policies conceming conflicts, risk and billing." fustead, the Executive Committee establishes comprehensive to and has dictated that all '"'""''"'~'"~'"''''"' for (PlaintiffDecl. ~ 26; Leccese Decl. Ex. 5 at 3 (emphasis added).) The Executive Committee requu·es patt ners to comply with the same Attomey Manual as the Fi1m's associates, with additional regulations set f01th in a Pattner Manual, and with other Fum policies; through these employee manuals and policies, the Executive Collllllittee dictates picayune details of prutner work, including the content of letters and how documents must be saved. (!d.~ 27.) Additionally, Proskauer regulates the substance of prutner work, including dictating that ce1tain prutner work must fo llow specific templates developed by the Firm and limiting the types of clients whom prutners can represent and the positions and clauns prutners can asse1t on behalf of clients. (!d. ~ 28.) Proskauer also dictates the homs that who work fewer than homs per year ru·e directed to to the Collllllittee. (!d. ~ 29; Leccese Ded. Exs. 7, 8, and 9.) See also Responses to Nos. 103 and. 105. 105. Doe sets her own priorities and schedule, dete1mining, for exrunple, whether and when she will spend her time pmsuing business from existing clients or prospective clients, and when, and even where, she will perf01m the legal work for which she is retained by those clients. (Leccese Decl. ~52.) RESPONSE: Disputed. Proskauer tightly controls the ability of prutners to pitch business on behalf of the Firm, and the Fi1m has restricted Plaintiffs ability to pitch and develop business. (Plaintiff Dec!.~ 37.) The Executive Committee and its designated Depa1iment Chau·s select predominantly male partners to manage and participate in the work of Fum clients, and to pruticipate in the Fum's pitches, marketing activities, and business development initiatives. (!d.) Proskauer' s Chain nan rebuffed Plaintiffs various mru·keting and business development initiatives, stating that the ru·eas Plaintiffs planned to develop were ah·eady "owned" by other (almost exclusively male) pattners who had ah'eady been 28 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 29 of 35 selected by the Executive Committee or its designees. (!d.) Further, the Film has the dominion to limit and dll·ect Plaintiffs work. For instance, since Plaintiff brought her complaints about discrimination to the Film's attention, she has not been asked to work on Film clients or to participate in Film pitches, she has had work diverted from her to other (male) partners with less experience and expe1iise, she has been removed from cases, she has been removed fi·om Film committees, and her relationships with clients and colleagues have been disrupted by the Firm, and her access to Proskauer' s document management system and database search tools have been restricted. (!d.~ 38.) Additionally, Proskauer's Executive Committee dictates the homs that pa1iners must work who work fewer than hom s per year are directed to to the Executive Committee. (Id. ~ 29; Leccese Decl. Exs. 7, 8, and 9.) iii 106. The Film's associates and other staff are subject to ""T",.-"' who oversees client matters and serves as the head of the Film's Group and co-head of the Film's (Leccese Decl. ~53.) .,,.,.,,y,,.., that Plaintiff serves as the head of the Fi1m' s I Group and co-head of the Film's supervises certain Film associates and However, pa1iners practice group such as Plaintiff are also subject to extensive supervision by the Executive Committee, theil· Deprutment Chail·s, and other pruiners. (PlaintiffDecl. ~~ 33-36.) See also Responses to Nos. 78, 79, 103, 105. 107. Doe has never requested "leave" from the Film. (Leccese Decl. ~54.) RESPONSE: Disputed. On vru·ious occasions, Plaintiff notified the Chailman ofthe Film or her Deprutment Co-Chail· that she needed to take leave because she was ill or because her child needed care, and they authorized her to take leave or to work a reduced schedule. (Plaintiff Dec!. ~ 30 .) For instance, in 2016, Plaintiff requested, and her Co-Chail· approved, a period ofprui-time work due to her medical condition. (Jd.) Time that she took off was recorded as sick leave in the Film' s time-keeping system. (Id.) 108. Like all equity prutners, she may come and go as she sees fit, provided that she meets her professional responsibilities to clients. (Id.) RESPONSE: Disputed. Proskauer's Executive Committee dictates the hom s that pa1tners prutners who work fewer than. . hom s per yeru· are directed to. _ _ must to the Executive Committee. (Plaintiff Decl. ~ 29; Leccese Decl. Exs. 7, 8, and , many equity prutners work under the direction of other pruiners at the Fi1m and have little control over theil· schedules, theil· travel, their substantive work, and theil· work location. (Plaintiff Decl. ~ 29.) See also Response to No. 107. 109. Doe has taken time away from the Fi1m for her health ru1d welfare without seeking permission from anyone. (Id.) RESPONSE: Disputed. On various occasions, Plaintiff notified the Chailman of the Film or her Depa1tment Co-Chail· that she needed to take leave because she was ill or because 29 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 30 of 35 her child needed care, and they authorized her to take leave or to work a reduced schedule. (Plaintiff Decl. ~ 30.) For instance, in 2016, Plaintiff requested, and her Co-Chair approved, a period of part-time work due to her medical condition. (!d.) Time that she took off was recorded as sick leave in the Fum's time-keeping system. (!d.) 110. Throughout her tenure with the Fum, Doe's allocation of partnership profits has been reported on an IRS Schedule K-1 (used to report partner income), not a Fonn W-2 (used to report employee wages). (Leccese Decl. ~55.) RESPONSE: Undisputed that the Fum repmied Plaintiff's compensation on a Fmm K-1. Plau1tiff has not been a member of the Executive Committee and lacks control over the Fum's tax repmting ofpru.iner pay. (PlaintiffDecl. ~ 48.) 111. Doe's K -1 's indicate that her residence is in RESPONSE: Plaintiff disputes that this pru.·agraph is relevant to Defendant's sUIIllnru.y judgment motion. Accordingly, this pru.·agraph should be stricken from Defendant's Statement of Material Facts as immaterial and iinproper. See also Response to No. 75. 112. Doe has complete infmmation about other equity pru.iners' allocations, and access to comprehensive financial infonnation about the Fum's perfmmance and substantial infmmation regarding other equity pmtners' contributions. (!d. ~56.) RESPONSE: Disputed. The Executive Committee did not disclose to pruiners the annualized rates it pays to partners whom it hu·es mid-year. (Plaintiff Dec!. ~50.) Fmther, the Firm's private agreements with incomillg pminers are not full disclosed to the full pru.tnership. (!d. ~ 23.) The Executive Cmmnittee provides pminers with only limited disclosures regarding the Fum's fmances, comprised of brief, smmnmy infmmation regarding Fum fmancial results. (!d. ~~ 19, 49.) The Executive Committee' s repmts to pattners m·e not detailed and do not provide pru.iners with insight into many aspects of the Fum' s fmances, operations, management, personnel, and admillistration. (!d. ~ 19.) Plaintiff seeks discovety conceming pminers' lack of access to complete infmmation regarding the Fum's finances. (Sanford Decl. ~ 9.) See also Response to No. 72, 82, 84, and 85. 113. The Fum' s income pminers and employees do not have access to the infmmation available to equity pminers about evety equity pru.iners' allocations. (!d.) RESPONSE: Disputed. There m·e non-patiner employees of the Fum who have access to information conceming equity patiners' compensation. (PlaintiffDecl. ~ 42 n.4.) 30 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 31 of 35 PLAINTIFF’S STATEMENT OF GENUINE ISSUES OF FACT Pursuant to Local Civil Rule 7(h), Plaintiff hereby submits a list of material facts as to which Plaintiff contends there exists a genuine issue necessary to be litigated in connection with Defendant’s assertion that Plaintiff is not an “employee” under applicable laws. 2 Plaintiff maintains that these facts will be borne out in discovery in this action. 114. The Firm’s Executive Committee exercises complete control over the Firm’s finances, operations, management, personnel, and administration. (Plaintiff Decl. ¶ 14.) 115. The Firm’s Executive Committee exercises complete control over the terms and conditions of partner employment. (Plaintiff Decl. ¶ 14.) 116. The Firm’s Executive Committee has always been predominantly male. (Id. ¶ 10.) 117. The Firm’s Executive Committee is currently all male. (Id.) 118. The Firm’s Chairman has always been male. (Id.) 119. The Firm, through its Executive Committee, determines which individuals are to be made partner without first putting these decisions to a vote of all Firm partners. (Id. ¶¶ 2, 22.) 120. The Firm, through its Executive Committee, has extended offers of partnership without first notifying, consulting with, or obtaining a vote of the full partnership. (Plaintiff Decl. ¶¶ 2, 23.) 121. The Firm, through its Executive Committee, has terminated partners without first notifying, consulting with, or obtaining a vote of the full partnership. (Id. ¶ 24.) 122. The Firm, through its Executive Committee, has entered into side agreements with partners purportedly authorizing the Executive Committee to terminate partners without obtaining a vote of the full partnership. (Id. ¶ 4.) 123. The Firm made the decision to terminate Plaintiff’s employment. (Id. ¶ 25.) 124. The Firm made the decision to terminate Plaintiff because Plaintiff made internal complaints of discrimination and retaliation. (Id.) 125. On March 23, 2017, the Firm, through its counsel, communicated to Plaintiff that the Firm would terminate her. (Id.) 2 Discovery has not yet commenced. Plaintiff reserves the right to identify additional genuine issues after the conclusion of discovery. 31 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 32 of 35 126. The Firm’s Executive Committee did not notify, consult with, or obtain a vote for the full partnership before Plaintiff was told that she would be terminated. (Id.) 127. The Firm, through its Executive Committee, sets comprehensive rules and regulations regarding partners’ work. (Id. ¶ 26-32.) 128. The Firm, through its Executive Committee, has developed and implemented these rules and regulations without prior notice to, substantive input from, or holding a vote of the full partnership. (Id. ¶ 32.) 129. The Firm, through its Executive Committee, sets policies and issues directives applicable to partners regarding, inter alia, case management procedures, the completion of performance evaluations, submission of time records, billings, and collections. (Id. ¶¶ 26-28, 33, 35.) 130. The full partnership is not given the opportunity to discuss or challenge Firm policies developed by the Executive Committee before the policies are implemented. (Id. ¶ 32.) 131. Partners who disagree with or oppose policies developed by the Executive Committee concerning partners or the Firm as a whole are nonetheless bound by those policies. (Id.) 132. The Firm, through its Executive Committee and through the Department Chairs whom the Executive Committee selects, supervises and directs the work of partners. (Id. ¶¶ 3338.) 133. The Executive Committee threatens to withhold compensation from partners who fail to comply with Firm policies. (Id. ¶ 33.) 134. The Firm, through its Executive Committee, supervises the work of partners by, inter alia, directing partners to complete annual self-evaluations detailing their work at and contributions to the Firm. (Id. ¶ 40.) 135. Partners are required to report to, and supervised by, the Executive Committee. (Id. ¶¶ 33, 35, 40.) 136. Partners report to, and are supervised by, the Executive Committee in connection with their performance. (Id. ¶¶ 33, 40.) 137. Partners report to, and are supervised by, the Executive Committee in connection with their billable hours. (Id. ¶ 33.) 138. Partners report to, and are supervised by, the Executive Committee in connection with their billings. (Id.) 139. Partners report to, and are supervised by, the Executive Committee in connection with their collections. (Id.) 32 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 33 of 35 140. The Executive Committee has interjected itself into partners’ management of client matters. (Id. ¶ 35.) 141. Partners are required to report, and supervised by, their Department Chair or CoChairs (“Chairs”). (Id. ¶¶ 33-35, 41.) 142. Partners report to, and are supervised by, their Department Chairs in connection with their performance. (Id. ¶¶ 33, 35, 41.) 143. Partners report to, and are supervised by, their Department Chairs in connection with their billable hours. (Id.) 144. Partners report to, and are supervised by, their Department Chairs in connection with their billings. (Id.) 145. Partners report to, and are supervised by, their Department Chairs in connection with case management issues. (Id. ¶ 34.) 146. Department Chairs have inserted themselves into and interfered with partner work and management of client matters. (Id. ¶ 35.) 147. Partners who are not on the Executive Committee have no influence over or involvement the management of the Firm. (Id. ¶ 17.) 148. Partners who are not on the Executive Committee are effectively shut out of meaningful participation in the Firm’s governance. (Id.) 149. The Executive Committee unilaterally determines the voting rights of contract partners. (Id. ¶ 15; Leccese Decl. Ex. 1 § 6(e).) 150. Not all equity partners may be eligible to serve on Proskauer’s Executive Committee or as the Firm Chair. (Plaintiff Decl. ¶ 15; Leccese Decl. Ex. 1 § 7(c).) 151. The Executive Committee hand picks the Department Chairs. (Plaintiff Decl. ¶ 16.) 152. Partners rarely engage in substantive, interactive discussions at partnership meetings. (Id. ¶ 19.) 153. Partners rarely contribute items to the agenda at partnership meetings. (Id.) 154. Proskauer partners do not enjoy profit sharing the way true business owners in partnerships do. 155. Proskauer partners do not have any fixed ownership stake in the Firm or any fixed share of the Firm’s profits or losses. (Id. ¶ 39; Leccese Decl. ¶ 25.) 156. Decl. ¶ 39.) The Executive Committee exercises complete control over partner pay. (Plaintiff 33 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 34 of 35 157. Proskauer’s Executive Committee changes partner pay from year to year at its discretion – purportedly after the completion of a performance review process. (Id. ¶ 40.) 158. The Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign performance bonuses to other Firm employees, such as senior staff, senior counsel, and non-equity partners. (Id. ¶ 40.) 159. The Executive Committee does not provide partners with explanation as to the basis for the specific compensation levels assigned to them. (Id. ¶ 42.) 160. The Executive Committee does not provide partners with any opportunity for internal appeal of the Executive Committee’s compensation decisions. (Id.) 161. The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of partner’ performance it receives from Department Chairs or Office Heads. (Id.) 162. Partners are denied access to important financial data regarding the Firm. (Id. ¶ 49.) 163. The Executive Committee does not provide partners with performance and compensation information about other partners until after it has made its final partner pay decisions and communicated them to the individual partners. (Id. ¶ 42.) 164. The Executive Committee wields complete discretion and control over the pay assigned to Proskauer partners and any losses charged to them. (Id. ¶ 39.) 165. The Executive Committee sets partners’ monthly draw amounts. (Id. ¶ 47.) 166. The Partnership Agreement contains no provisions exempting partners from the protections of federal, state, or local anti-discrimination laws. (Id. ¶ 5; Leccese Decl. Ex. 1.) 167. Proskauer’s side agreement with Plaintiff contains no provisions exempting Plaintiff from the protections of federal, state, or local anti-discrimination laws. (Plaintiff Decl. ¶ 5; Leccese Decl. Ex. 10.) 168. The protections set forth in Proskauer’s Equal Employment Opportunity and AntiHarassment Policy apply to the Firm’s partners. (Plaintiff Decl. ¶ 6.) 169. Firm leadership, in particular the Executive Committee and the Department Chairs, is in a position to discriminate and take adverse actions against partners without the input or influence of the partnership. (Plaintiff Decl. ¶ 52.) 34 Case 1:17-cv-00901-ABJ Document 24-2 Filed 07/31/17 Page 35 of 35 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 dsanford@sanfordheisler.com Andrew Melzer* Alexandra Harwin, D.C. Bar No. 1003018 SANFORD HEISLER SHARP, LLP 1350 Avenue of the Americas, 31st Floor New York, New York 10019 Telephone: (646) 402-5655 Facsimile: (646) 402-5651 jheisler@sanfordheisler.com aharwin@sanfordheisler.com Kevin Sharp* SANFORD HEISLER SHARP, LLP 611 Commerce Street, Suite 3100 Nashville, TN 37203 Telephone: (615) 434-7000 Facsimile: (615) 434-7020 ksharp@sanfordheisler.com *pro hac vice application forthcoming 35 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA JANE DOE, PLAINTIFF, v. Case No. 1:17-cv-00901-ABJ PROSKAUER ROSE LLP, DEFENDANT. PLAINTIFF’S DECLARATION IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff makes the following declaration pursuant to 28 U.S.C. § 1746:1 My Hire and Agreement with the Firm2 1. Proskauer began recruiting me to join the Firm as a lateral partner in 2012. During the recruiting process, I was informed that all decisions regarding my hire would be made by the Executive Committee of the Firm and that once the Executive Committee decided to hire me, my employment with the Firm was effectively a done deal. It was made clear to me that any subsequent partnership vote would be a mere formality. 2. Chairman Joseph Leccese extended to me a written offer of partnership, which provided that I would become a Proskauer partner merely by signing the offer. I was told that the offer had been approved by the Executive Committee. It was only after I executed and returned 1 The parties have not exchanged any discovery. This affidavit is based on my present knowledge and recollection, based on my experiences and observations at Proskauer. I reserve the right to modify or supplement my statements based upon information obtained in discovery or that I subsequently recall. 2 These headings are provided for convenience only. This declaration should be read as a whole, and the headings in no way limit or qualify the assertions made herein. 1 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 2 of 14 my binding agreement with Proskauer that the Executive Committee held a vote of the full partnership. It is my understanding that the favorable partnership vote was a pro forma exercise that merely confirmed the Executive Committee’s decision to hire me. 3. Proskauer’s Executive Committee only had me sign this separate agreement with the Firm and never asked me to sign the Partnership Agreement. 4. When I was hired, Proskauer insisted on including a provision in my separate, side agreement that the Firm now apparently claims authorizes it to unilaterally terminate me without any vote of the full partnership. In connection with my hire, I was informed that the Executive Committee includes this provision in all of its lateral partner contracts. 5. The Partnership Agreement contains no provisions claiming to exempt partners from the protections of federal, state, or local laws against discrimination and retaliation. Further, I have not signed any separate agreements or contracts with the Firm claiming that I am exempt from the protections of federal, state, or local laws against discrimination and retaliation. I would not have transitioned my practice and my practice group to Proskauer had I known that it was the Firm’s position that partners are not entitled to any protection from federal, state, and local laws prohibiting discrimination and retaliation and that it may discriminate against partners based on protected characteristics such as their gender. 6. To the contrary, the Firm sets an expectation that partners are entitled to protections against discrimination and retaliation. Proskauer’s Equal Employment Opportunity and AntiHarassment Policy is embedded in the Firm’s Lawyer Manual and extends its protections to all individuals, including all lawyers, at the Firm. Proskauer also provides partners with trainings concerning these policies. Further, when I made an internal complaint about discrimination and 2 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 3 of 14 retaliation, Proskauer commenced a pmpotted investigation into my allegations as contemplated tmder Finn policies. Proskauer's Partners and the Executive Committee 7. According to the Finn's website, there are over 280 attorneys holding the title of "patiner" at Proskauer. 8. At the end of the Finn' s last fiscal year, there were approximately i attorneys at the Film whom Proskauer characterizes as "equity pattners." 9. Regardless of whether they are characterized as equity pattners or income pattners, Proskauer's rank-and-file pattners do not operate as busil1ess owners. 10. Proskauer is controlled by a seven-member Executive Committee. To my knowledge, Proskauer's Executive Committee has always been predominantly male, and cunently Proskauer's Executive Committee is all male. Proskauer's Chailman has always been male. 11. When the Executive Committee previously had one or two female members, the paltty level of female representation did not confer meaningful protection on me as a female partner. In fact, the sole female members of the Executive Committee in 2016 had to be recused from the Executive Committee's deliberations concernmg my pay. 12. Proskauer's Chainnan has served consecutive three-year tetms. Further, Executive Committee members can and do serve multiple non-consecutive three-year terms. 13. The Executive Committee is dominated by patiners based in New York. The Executive Committee's Control over the Firm and Partners' Lack of Influence 14. Proskauer's Executive Committee exercises complete control over the Film' s finances, operations, management, personnel, and administration. Proskauer partners, mcluding myself, have no alternative but to submit to the contt·ol and oversight of the Executive Committee. 3 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 4 of 14 Based on my interactions and observations, the Executive Committee has exercised complete control over the terms and conditions of partner employment, including my own. The Executive Committee controlled my hiring, controls my pay, and, according to the position taken in the Firm’s submissions to this Court, claims the right to unilaterally terminate my employment. 15. Partners who are not on the Executive Committee are powerless to meaningfully influence the Executive Committee. It is my understanding that not all equity partners may be eligible to serve on Proskauer’s Executive Committee or as the Firm Chair. Further, it is my understanding that the Executive Committee unilaterally determines the voting rights of what the Partnership Agreement characterizes as “contract partners” and whether, and when, to make partners “contract partners” versus “regular partners.” 16. The Executive Committee hand picks the Firm’s Department Chairs and the Firm’s Office Heads.3 When I sought more of a leadership role in my office and department, Chairman Leccese rebuffed me – even though previously he had given glowing assessments of my performance, practice, contributions to the Firm, and leadership skills. Further, when I asserted legitimate objections to the selection of a recent Department Co-Chair, my objection was ignored. 17. Partners who are not on the Executive Committee have no influence over or involvement in the management of the Firm. Partners who are not on the Executive Committee are effectively shut out of meaningful participation in the Firm’s governance. 18. The Executive Committee routinely operates in secret. The Executive Committee does not disclose to the full partnership its internal deliberations, discussions, actions, and decisions concerning important Firm matters. The Firm’s partners are not privy to many of the The term “Department Chairs” as used herein refers to both Department Chairs and Department Co-Chairs. 3 4 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 5 of 14 decisions and actions of the Executive Committee concerning the Firm’s finances, operations, management, personnel, and administration. Based on my observations and experiences, the Executive Committee initiates, implements, and controls important Firm decisions (including Firm initiatives, strategic plans, and significant expenditures) without prior notice to, full disclosure to, substantive input from, or votes of the full Firm partnership. For example, the Executive Committee announced a major initiative to place Proskauer partners on non-profit boards in key geographies – and then apparently unilaterally discontinued the initiative – all without prior notice to, full disclosure to, substantive input from, or votes of the full Firm partnership or the individual partners participating in the initiative. 19. While the Firm holds some meetings that are open to the general partnership, these meetings are perfunctory and do not involve substantive discussions or deliberations by nonExecutive Committee partners regarding plans or strategies for the Firm’s finances, operations, management, personnel, and administration. The Executive Committee leads and directs discussions at partner meetings. Its reports to partners are not detailed and do not provide partners with insight into many aspects of the Firm’s finances, operations, management, personnel, and administration. The reports that the Executive Committee provides at monthly meetings are typically limited to brief, summary information regarding Firm financial results, pending client representations, and lateral partners approved by the Executive Committee. The Executive Committee does not encourage partners to engage in substantive discussions or deliberations at partnership meetings, and partners are reluctant to question or challenge decisions made by the Executive Committee. I recall only one instance during my time at the Firm when a partner may have requested that an item be added to the agenda of a partner meeting. 5 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 6 of 14 20. I am not aware of the Executive Committee permitting partners to vote on any matter over which the Executive Committee has unilateral authority. Even with respect to the limited issues that the Partnership Agreement purportedly requires be decided through a vote of the full partnership, the Executive Committee acts unilaterally, including hiring and firing partners. The Executive Committee’s Hiring and Firing of Partners 21. I have observed that Proskauer’s Executive Committee controls the hiring and firing of partners of the Firm. It is my understanding that the Executive Committee hires and fires partners without first notifying, consulting with, or obtaining a vote of the full partnership. 22. The Executive Committee closely controls the hiring of lateral partners in the Firm. It is my experience and understanding that lateral partner candidates are vetted primarily by the Executive Committee and individuals selected by the Executive Committee. This process does not include many key partners in the offices or practice areas in which the lateral partners will work. The Executive Committee typically provides the general partnership with only a cursory, one-slide presentation about lateral partners. The role of the full partnership in approving partner hires is minimal and represents a pro forma confirmation of the Executive Committee’s decisions. 23. In many instances, the Executive Committee has not disclosed incoming partners’ private financial or contractual arrangements with the Firm prior to the partnership vote. Based on my experiences at the Firm, it is my understanding that Proskauer’s Executive Committee does not require incoming partners to sign the Partnership Agreement. Instead, it requires incoming partners to enter into separate side agreements with the Firm that purportedly modify the terms of the Partnership Agreement in order to augment the power of the Executive Committee. The Firm’s private agreements with incoming partners are not fully disclosed to the full partnership. 6 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 7 of 14 24. The Executive Committee also asserts the prerogative to unilaterally fire partners. It is my understanding that the Executive Committee has directed partners to leave the Firm without any notice to, input from, or vote of the full partnership. Further, I am not aware of the Executive Committee asking the partnership to vote on the termination or expulsion of any partner. 25. After I brought my complaints about discrimination to the Firm’s attention, on March 23, 2017, I was informed – by an attorney representing Proskauer, in the presence of Proskauer’s General Counsel – that the Firm would terminate me based on my complaint. The Firm’s Executive Committee did not notify, consult with, or obtain a vote for the full partnership before providing notice that I would be terminated. Comprehensive Rules and Regulations Regarding Partner Work 26. The Firm, through its Executive Committee, sets comprehensive rules and regulations regarding partner work. Partners must comply with a wide array of policies and directives from the Firm, regarding, inter alia, case management procedures, the completion of performance evaluations, submission of time records, billings, and collections. 27. The Executive Committee requires partners to comply with the same Attorney Manual as the Firm’s associates, with additional regulations set forth in a Partner Manual, and with other Firm policies. Through these employee manuals and policies, the Committee dictates picayune details of partner work, including the content of letters and how documents must be saved. 28. Policies implemented by the Executive Committee regulate how Proskauer partners service clients and manage cases. Further, Proskauer regulates the substance of partner work. Partners have been told that any work we perform on certain subject matters must follow specific templates developed by the Firm. For instance, I have a large binder in my office containing 7 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 8 of 14 various Finn templates for the drafting of certain types of policies and agreements. Based on my experience, Proskauer also limits the types of clients whom partners are able to represent, limits th e positions partners can asse1t on behalf of clients, and has dictated that ce1tain clailllS or positions cannot be asserted behalf of clients. 29. Proskauer also dictates the hours that pattners must work. Pattners who work fewer hours per year are directed to than - to the Executive Committee. Further, many equity patiners work under the direction of other pa1tners at the Finn and have little control over their schedules, their travel, their substantive work, and their work location. 30. On vm·ious occasions, I notified the Chailman of the Fi1m or my Department Co- Chail· that I needed to take leave because I was ill or because my child needed cm·e, and they authorized me to take leave or to work a reduced schedule. For insta11ce, in 2016, I requested, atld my Co-Chair approved, a period of pali-tilne work due to my medical condition. Tilne that I took off was recorded as sick leave in the Film's time-keeping system. 31. Proskauer also supplies and controls the instnunentalities and tools that pattners are requil·ed to use to perform theil· work. Proskauer provides pattners with computers, cell phones, softwm·e programs (including the docUlllent.management system that they are required to use), and other tools. Proskauer restricts and controls partn ers' ability to access the Film's networks on personal devices. 32. The Executive Committee develops and ilnplements Film policies without prior notice to, substantive il1put from, or votes of the full Fim1 palinership. Partners are rarely, if ever, given the opporttmity to review, discuss, challenge, object to, or vote on Film policies before they have been enacted by the Executive Committee. In most instances, new policies are not even disclosed in monthly partnership meetings. Typically, the first notification that patiners receive 8 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 9 of 14 of significant changes in Firm policy or procedure is an email announcing they are subject to them. Partners have no recourse if they disagree with the Firm policies developed by the Executive Committee. Partners who disagree with or oppose policies developed by the Executive Committee concerning partners or the Firm as a whole are nonetheless bound by those policies. Oversight by and Reporting to Firm Management 33. Proskauer partners are supervised by, and required to report to, the Executive Committee and the Department Chairs selected by the Executive Committee. Proskauer partners are required to submit daily time records reflecting their work. Proskauer partners are also required to submit detailed records concerning their billings and collections. These records are monitored and scrutinized by the Firm’s Executive Committee and Department Chairs. The Executive Committee threatens to withhold pay from partners who do not comply with Firm policies regarding timekeeping and billing. 34. Additionally, I am required to provide monthly reports to my Department Co- Chairs detailing the status of my and my team’s cases. Specifically, I am required to provide written reports in advance of monthly Department meetings (which I am expected to attend) as well as oral reports at these Department meetings. 35. The Executive Committee has interjected itself into partner management of client matters by making unilateral decisions regarding billings and collections. On one occasion, Proskauer’s Chairman actually threatened to “fire” one of the clients I represented. Further, Department Co-Chairs have inserted themselves into and interfered with my work and management of client matters. For instance, I was told by my Department Co-Chair to provide specific advice to a client (which I disagreed with) regarding a complex legal issue. 36. It is common for Proskauer partners to be supervised by, and report to, other 9 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 10 of 14 partners on cases. In a recent matter, for example, my work (and the work of several other equity partners) was dictated, directed, reviewed, and supervised by other Firm partners. Among other things, I was required to submit drafts of memoranda and other communications for other partners’ review and revisions. In one instance, I was directed to provide legal advice with which I disagreed. 37. Proskauer tightly controls the ability of partners to pitch business on behalf of the Firm, and the Firm has restricted my ability to pitch and develop business. I have observed the Executive Committee and its designated Department Chairs select predominantly male partners to manage and participate in the work of Firm clients, and to participate in the Firm’s pitches, marketing activities, and business development initiatives. Proskauer’s Chairman rebuffed my various marketing and business development initiatives, stating that the areas I planned to develop were already “owned” by other (almost exclusively male) partners who had already been selected by the Executive Committee or its designees. 38. Since I brought my complaints about discrimination to the Firm’s attention, Proskauer has restricted my work activities at the Firm. The Firm restricted my access to Proskauer’s document management system and database search tools (essential tools to perform my client work). Further, I have not been asked to work on Firm clients or to participate in Firm pitches, I have had work diverted from me to other (male) partners with less experience and expertise, I have been removed from cases, I have been removed from Firm committees, I have been excluded from the Firm’s recruiting efforts, and my relationships with clients and colleagues have been disrupted by the Firm. Proskauer possesses, and has exercised, the ability to control my work conditions and interfere with my ability to practice law on behalf of Proskauer clients. Setting of Partner Pay and the Absence of Profit Sharing 39. Proskauer partners do not enjoy true profit sharing. Proskauer partners do not have 10 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 11 of 14 any fixed ownership stake in the Firm or any fixed share of the Firm’s profits or losses. Instead, the Executive Committee wields complete discretion and control over the annual compensation given to Proskauer partners and any losses charged to them. The Executive Committee unilaterally sets and exclusively controls partner pay. 40. The Executive Committee engages in a process of setting partner pay that is akin to the process the Executive Committee uses to assign pay and performance bonuses to senior staff, senior counsel, and non-equity partners. Proskauer’s Executive Committee changes partner pay from year to year at its discretion – purportedly after the completion of a performance review process. Proskauer pays partners based on a purported assessment of their performance as attorneys, not in accordance with ownership interests in the Firm. 41. The Executive Committee directs partners to submit detailed performance memoranda evaluating our own work and the work of other partners and sets strict page limits and deadlines for their submission. Based on my experience, these partner submissions and subsequent meetings that partners may hold with the Executive Committee or Department Chairs do not meaningfully influence the Executive Committee’s pay decisions. 42. The Executive Committee also requires Department Chairs and office heads – whom the Executive Committee hand picks – to partners’ performance and to provide their evaluations of partners’ performance to the Executive Committee in connection with the Executive Committee’s setting of partner pay. 43. The Executive Committee does not provide partners with an explanation for their specific pay levels. Each partner simply receives a one-sentence memorandum “announc[ing]” the compensation set by the Executive Committee for the prior fiscal year. The Executive Committee also does not disclose its evaluations of partners’ performance or the evaluations of 11 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 12 of 14 partners’ performance it receives from Department Chairs or Office Heads. The Executive Committee merely provides partners with a summary sheet after the close of the fiscal year (and after the issuance of their pay memoranda) that includes limited categories of compensation and performance information about other equity partners. Moreover, this information is provided only after the Executive Committee has made its final partner pay decisions.4 Proskauer does not afford partners any opportunity for internal appeal of the Executive Committee’s final pay decisions.5 44. Although the Executive Committee distributes annual memoranda purportedly discussing its compensation decisions in general terms, my experience indicates that these memoranda do not provide a complete or accurate explanation of the Executive Committee’s pay decisions. In discussions with Executive Committee members, Office Heads, and Department Chairs, I was informed that the Executive Committee gives predominant weight to partners’ client originations when determining partner pay. 45. Moreover, my experience indicates that the Executive Committee does not consistently consider or weigh the factors set forth in its “Our Fundamental Partnership Values” memorandum when deciding on partner pay. Based on my experience, the memorandum does not accurately capture the Executive Committee’s actual values or the standards it uses in setting partner pay. Indeed, based on my observations, most of the Firm’s most highly compensated males do not embrace or exemplify many of these purported values. I was informed that the “hypothetical” realization rate reflected in the summary sheet is an experimental variable that is not factored into partner pay. Further, contrary to Defendant’s representations, there are non-partner employees of the Firm who also have access to financial information concerning equity partners, including their compensation. 4 5 Through the Partner Portal, I am not provided with comprehensive Firm financial information; beyond my own performance information, I can access only the limited, summary information shared at meetings. 12 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 13 of 14 46. When setting my pay, the Executive Cmmnittee did not engage in an objective evaluation of patiner performance or weigh the entirety of pattner contributions. Rather, the Executive Committee wielded its authority in a discriminatmy and retaliatmy manner. Throughout my time at the Fum, Proskauer has paid numerous male patiners substantially more than me even though my quantitative and qualitative contributions and track record at the Fi1m matched or exceeded theirs. My perfmmance at the Firm has far exceeded that of "average" equity pattners. I%increase over the prorated pay that I My assigned compensation for 2015 constituted less than a i % My assigned compensation for 2014 constituted just a received for fiscal yem· 2013. increase over the pay that I received for fiscal year 2014. 47. It is my lmderstatlding that the Executive Committee dictates the capital contribution for persons who join the Fi1m as "contract patiners." The Executive Cormnittee also exercises complete control over the rate of reh1m on pattner capital accmmts. 48. The Executive Committee also sets patiners ' monthly draw ammmts. 49. The Executive Committee controls the Fum's tax repmting ofpatiner pay. It is my understanding that for cetiain jmisdictions, the Fum files composite rehuns a11d pays applicable taxes for electing patiners, and the amounts paid by the Fum on behalf of the electing pattners are deducted from the patiners' pay. 50. Like all other patiners who were not on the Executive Committee, I do not have access to all of the Firm's fmancial infmmation. Pattners m·e denied access to impo1tant fmancial information regarding the Fitm. As described above, Executive Cmmnittee provides patiners with only li.tnited disclosmes regarding the Fi1m's finances and operations. The Executive Committee maintains private electronic files to which I lack access. 51. I an1not, and never have been, a member of Proskauer' s Executive Committee and 13 Case 1:17-cv-00901-ABJ Document 24-3 Filed 07/31/17 Page 14 of 14 therefore lack access to the full scope of documentation and testimony that will fully refute Proskauer’s inaccurate description of how the Firm operates. Among other things, I lack access to information relating to most aspects of the Firm’s management and operations, including detailed financial information regarding the performance of the Firm, the present operational status of all of the Firm’s offices, how partner votes are tallied and whether the electronic ballots typically used are anonymous, when and how the Executive Committee begins its process of setting partner pay, the Firm’s tax reporting for other partners, the annualized pay rates paid to partners hired midyear, and the amount of any average annual increases to equity partner compensation. 52. Further, I lack access to information described in the Declaration of David Sanford relating to the Executive Committee’s control over partners of the Firm, including documents reflecting the Executive Committee’s internal deliberations and the Executive Committee’s private communications or arrangements with other partners. 53. Proskauer’s leadership, in particular the Executive Committee and the Firm’s Chairman, is in a position to discriminate and take adverse actions against partners without the input or influence of the full partnership. 54. I expect discovery to confirm the facts described in this Declaration, as well as additional facts demonstrating that the Executive Committee exercises control over the terms and conditions of partner employment with the Firm. I declare under penalty of perjury that the foregoing is true and correct. Executed on July 27, 2017. _ PLAINTIFF JANE DOE 14 _____ Case 1:17-cv-00901-ABJ Document 24-4 Filed 07/31/17 Page 1 of 8 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA JANE DOE, PLAINTIFF, v. Case No. 1:17-cv-00901-ABJ PROSKAUER ROSE LLP, DEFENDANT. DECLARATION OF DAVID SANFORD IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND FOR DISCOVERY PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56(d) David Sanford, Esq. makes the following declaration pursuant to 28 U.S.C. § 1746: 1. I am lead counsel for Plaintiff in the above-captioned action and am fully familiar with the facts concerning this matter. I respectfully submit this declaration in opposition to Defendant’s Motion for Summary Judgment and in support of Plaintiff’s request for discovery pursuant to Federal Rule of Civil Procedure 56(d). 2. This litigation is in its infancy. Plaintiff filed her complaint on May 12, 2017, and Defendant still has not filed an answer. The parties have not exchanged any discovery,1 and the parties have not yet conducted their Local Rule 16.3 and Fed. R. Civ. P. 26(f) conference. The Court has not set a discovery schedule or convened an initial case management conference. 3. On June 13, 2017, Defendant filed its Motion for Summary Judgment and Motion to Dismiss. Because the parties have not exchanged any discovery, Plaintiff has not yet had the opportunity to obtain the testimony, documents, data, and other information necessary to respond 1 The only discovery action undertaken in this case has been the issuance of a third-party subpoena. The subpoena is the subject of motion practice and has not yet resulted in the production of any documents. 1 Case 1:17-cv-00901-ABJ Document 24-4 Filed 07/31/17 Page 2 of 8 to the issues raised in Defendant’s summary judgment motion. 4. Plaintiff seeks discovery pursuant to Rule 56(d) regarding Defendant’s argument that Plaintiff should not be considered an “employee” under the federal Fair Labor Standards Act, as amended by the Equal Pay Act; the federal Family and Medical Leave Act; the Washington D.C. Human Rights Act; and the Washington D.C. Family and Medical Leave Act. Plaintiff contends that she is, in fact, an employee under these laws. As detailed below, the following discovery is essential to determine Plaintiff’s status as an “employee” under these laws. 5. Plaintiff seeks discovery to establish that, contrary to Defendant’s assertions, Proskauer can and does hire and fire partners, including hiring Plaintiff and apparently claiming the authority to unilaterally fire her. Discovery that Plaintiff seeks includes: documents reflecting the Executive Committee’s consideration of lateral candidates; formal or informal offers of partnership that the Executive Committee extended to partnership candidates prior to holding a partnership vote; agreements that the Firm entered into with a partnership candidate prior to holding a partnership vote; records reflecting the information about partner hires that is disclosed to the full partnership; documents reflecting partners’ agreement to the Firm’s Partnership Agreement; side agreements with partners that Defendant claims authorize the Executive Committee to unilaterally terminate partners; documents reflecting votes to terminate or expel a partner; documents relating to the Executive Committee’s decision to direct partners to leave the Firm or otherwise terminate partners; documents reflecting the Executive Committee’s deliberations prior to Proskauer notifying Plaintiff that she would be terminated; documents reflecting the Executive Committee’s decisions to change the status of any “contract partner” to a “regular partner”; and documents regarding a partner’s ability to remain at the Firm after the Executive Committee has directed that the partner leave. 2 Case 1:17-cv-00901-ABJ Document 24-4 Filed 07/31/17 Page 3 of 8 6. Plaintiff seeks discovery to establish that, contrary to Defendant’s assertions, Proskauer sets the rules and regulations for the work of partners, including Plaintiff. Discovery that Plaintiff seeks includes: documents reflecting the Executive Committee’s process for developing and implementing policies and directives that apply to partners, including documents showing the role played by partners not on the Executive Committee in developing such policies and directives; documents reflecting the Executive Committee’s adoption of policies and directives that apply to partners of the Firm (including policies that apply to all Firm personnel or all Firm attorneys regardless of partnership status); communications with partners regarding the development and implementation of Firm policies and directives applicable to partners; records of partnership votes on whether to implement a Firm policy applicable to partners; minutes of partnership meetings in which partners discussed whether to adopt a Firm policy applicable to partners; communications with partners regarding their compliance or non-compliance with Firm policies or directives; and records of warnings, reprimands, or discipline imposed on partners regarding failure to comply with Firm policies or directives (including the threatened or actual withholding of compensation as a result of non-compliance with Firm policies or directives). 7. Plaintiff seeks discovery to establish that, contrary to Defendant’s assertions, Proskauer supervises the work of partners, including Plaintiff. Discovery that Plaintiff seeks includes: records or reports that partners are directed to submit to, or that are reviewed by, the Executive Committee or Department Chairs; records or reports reflecting the Executive Committee’s or Department Chairs’ evaluations of partner work, including the consideration and weighing of partners’ quantitative and qualitative contributions to the Firm; documents concerning directives from the Executive Committee or Department Chairs for partners to use specific templates on client matters, not to assert certain positions or claims on client matters, or not to 3 Case 1:17-cv-00901-ABJ Document 24-4 Filed 07/31/17 Page 4 of 8 represent certain types of clients; documents concerning decisions made or directives issued by the Executive Committee or Department Chair on client matters for which another partner held primary responsibility, including directives concerning the allocation of credits, staffing, billing and/or collections; documents reflecting action taken by the Executive Committee or Department Chairs in response to complaints against partners; documents reflecting other instances in which partners have been investigated, audited, evaluated or supervised by the Executive Committee or Department Chairs; documents reflecting other instances where the work of partners has been controlled, reviewed, monitored, or directed by the Executive Committee, Department Chairs, or other supervising partners; and documents reflecting the Executive Committee’s role in determining which partners will perform work for institutional clients, which partners will inherit the clients of retiring or departing partners, which partners will lead or develop business initiatives, and which partners will participate in Firm pitches and other marketing efforts. 8. Plaintiff seeks discovery to establish that, contrary to Defendant’s assertions, partners are required to report to the Firm’s Executive Committee and their respective Department Chairs. Discovery that Plaintiff seeks includes: communications directing partners to attend meetings convened by, or otherwise report to, members of the Executive Committee or Department Chairs; communications requesting or directing partners to provide reports or self-evaluations to members of the Executive Committee or Department Chairs; documents reflecting the extent to which partners have control over their schedules and their work location, including communications with partners establishing, seeking to establish, or requesting to establish a work schedule, in-office schedule, or out-of-office schedule and communications in which partners have provided notice to or requested approval from the Executive Committee or Department Chairs in connection with leaves or absences from Firm offices; communications by members of the 4 Case 1:17-cv-00901-ABJ Document 24-4 Filed 07/31/17 Page 5 of 8 Executive Committee or Department Chairs requiring partners to take certain actions, including compliance with hours requirements, case management procedures, billing actions, or the completion of performance evaluations; and communications regarding the consequence or penalty for not completing the requested actions. 9. Plaintiff seeks discovery to establish that, contrary to Defendant’s assertions, individual partners like Plaintiff are unable to influence the Firm and, in fact, are denied access to information regarding Firm finances, operations, management, personnel, and administration. Discovery that Plaintiff seeks includes: documents reflecting the scope of the Executive Committee’s control over the Firm’s finances, operations, management, personnel, and administration; documents reflecting deliberations, discussions, actions, and decisions undertaken by the Executive Committee without disclosure to the full partnership, as well as partner comments, complaints, or objections regarding same; documents reflecting the limited information regarding Firm finances and operations that the Executive Committee provides to the full partnership, as well as partner comments, complaints, or objections regarding same; documents reflecting the financial information available to members of the Executive Committee that is not shared with the full partnership; documents reflecting the Executive Committee’s selection of Department Chairs, as well as partner comments, complaints, or objections regarding same; documents reflecting the different types of active partners at the Firm; documents reflecting the procedures and mechanisms used in partnership votes; documents reflecting the voting rights of equity partners who have separate agreements with the Firm; documents reflecting the eligibility of equity partners who have separate agreements with the Firm to serve as the Firm’s Chair or on the Executive Committee; communications regarding the development of agendas of meetings of the general partnership; minutes of partnership meetings; and requests from partners for 5 Case 1:17-cv-00901-ABJ Document 24-4 Filed 07/31/17 Page 6 of 8 information or documents that the Executive Committee has declined or not answered. 10. Plaintiff seeks discovery to establish that, contrary to Defendant’s assertions, the parties intended to treat Plaintiff as an employee for purposes of anti-discrimination and antiretaliation protections. Discovery that Plaintiff seeks includes: documents referring to partners as employees; documents reflecting the applicability of Defendant’s anti-discrimination and antiharassment policies to partners; communications regarding the Firm’s and partners’ intent concerning the scope of statutory coverage; and documents reflecting partners’ assertion, settlement, and/or waiver of statutory discrimination or retaliation claims against the Firm. 11. Plaintiff seeks discovery to establish that, contrary to Defendant’s assertions, partners do not “share” the Firm’s profits or losses and instead their compensation is established each year by the Executive Committee – purportedly in connection with annual performance reviews. Discovery that Plaintiff seeks includes: documents reflecting the Executive Committee’s process and methodology for setting partner pay; documents reflecting the Executive Committee’s true basis for setting partner pay; documents reflecting the Executive Committee’s evaluations of partner performance and the impact of these evaluations on partner pay; documents reflecting the influence of Department Chairs and office heads over partner pay; individual agreements made between partners and the Executive Committee relating to partner pay or capital contributions; explanations that the Executive Committee provides regarding partner pay decisions; documents reflecting circumstances in which the Executive Committee sets compensation based on singleyear financial performance; objections received by the Executive Committee regarding its pay decisions and the resolution of same; and liabilities incurred by the Firm that are paid by partners either directly or through their capital contributions. 6 Case 1:17-cv-00901-ABJ Document 24-4 Filed 07/31/17 Page 7 of 8 12. In addition to the documents described above, Plaintiff will seek to depose certain Executive Committee members and partners in order to discover information responsive to the topics identified herein. 13. Plaintiff’s request for the discovery described above is reasonably calculated to create a dispute of material fact with respect to whether the Firm has controlled Plaintiff’s employment and whether Plaintiff is an employee under applicable law. This information is essential to enable Plaintiff to dispute Defendant’s characterization of the parties’ relationship in its Motion for Summary Judgment, including Defendant’s assertions in its Statement of Material Facts. Plaintiff expects the above discovery to establish the facts described by Plaintiff in her Response to Defendant’s Statement of Material Facts and in Plaintiff’s Statement of Genuine Issues. The discovery identified above reflects areas that, based on Plaintiff’s personal knowledge, deviate from Defendant’s description, namely Proskauer’s ability to hire and fire partners and set the rules and regulations of partners’ work, the extent to which Proskauer supervises partners’ work, partner reporting to the Executive Committee and Department Chairs, the extent to which partners can influence the Firm, the parties’ intent regarding whether to treat Plaintiff as an employee for purposes of anti-discrimination and anti-retaliation protections, and whether partners share in the profits, losses, and liabilities of the Firm and the Executive Committee’s process and basis for setting partner pay. 14. Plaintiff asserts that she is not and has never been a member of the Executive Committee and therefore lacks access to information described herein relating to the Executive Committee’s control over partners of the Firm, including documents reflecting the Executive Committee’s internal deliberations and the Executive Committee’s private communications or arrangements with other partners. 7 Case 1:17-cv-00901-ABJ Document 24-4 Filed 07/31/17 Page 8 of 8 I declare under penalty of perjury that the foregoing is true and correct Executed on July 27, 2017. DAVID SANFORD 8 Case 1:17-cv-00901-ABJ Document 24-5 Filed 07/31/17 Page 1 of 2 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA JANE DOE, PLAINTIFF, v. Case No. 1:17-cv-00901-ABJ PROSKAUER ROSE LLP, DEFENDANT. [PROPOSED] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS Upon consideration of Defendant’s Motion for Summary Judgment and Motion to Dismiss, and Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Motion to Dismiss, it is by this Court, this ______ day of , 2017, hereby ORDERED that Defendant’s Motion for Summary Judgment is DENIED; and it is further ORDERED that Defendant’s Motion to Dismiss is DENIED; and it is further ORDERED that Plaintiff’s request for discovery to proceed pursuant to Fed. R. Civ. P. 56(d) is GRANTED; and it is further ORDERED that the parties shall appear for a case management conference on ______________, 2017 at am/pm. ___________________________ Hon. Amy Berman Jackson United States District Judge Case 1:17-cv-00901-ABJ Document 24-5 Filed 07/31/17 Page 2 of 2 Pursuant to LCvR 7(k), the parties to be notified are: David Sanford Vince McKnight Altomease Kennedy Kate Mueting Sanford Heisler Sharp, LLP 1666 Connecticut Avenue NW, Suite 300 Washington, DC 20009 Counsel for Plaintiff Andrew Melzer Alexandra Harwin Sanford Heisler Sharp, LLP 1350 Avenue of the Americas, 31st Floor New York, New York 10019 Counsel for Plaintiff Kevin Sharp Sanford Heisler Sharp, LLP 611 Commerce Street, Suite 3100 Nashville, TN 37203 Counsel for Plaintiff Colin Kass Proskauer Rose LLP 1001 Pennsylvania Avenue, N.W. Suite 600 South Washington, D.C. 20004 Counsel for Defendant Kathleen M. McKenna Steven E. Obus Evandro C. Gigante Proskauer Rose LLP Eleven Times Square New York, NY 10036 Counsel for Defendant