p?n JENNIFER SCHWARTZ, ESQ. (SBN 135932) MENAKA FERNANDO, ESQ. (SBN 271380) OUTTEN GOLDEN LLP One California Street, 12th Floor San Francisco, CA 9411 1 Telephone: (415) 638?8800 Facsimile: (415) 638-8810 Email: Attorneys for Plaintiff DAVID W. FERMINO ENDORSED San Francisco County Supe?orOourt JAN 0 92020 CLERK OF THE COURT av NGE Damask IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION DAVID W. FERMINO, an individual, PLAINTIFF, v. KASOWITZ BENSON TORRES and DOES 1 through 20, inclusive, DEFENDANTS. 1. 2. 3. 8. 9. 10. 11. CaseNo. COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL BREACH OF CONTRACT BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING FAILURE TO TIMELY PAY WAGES DUE UPON SEPARATION OF EMPLOYMENT (CAL. LAB. CODE, 201, subd. (3) 203 subd. FAILURE TO TIMELY PAY WAGES DUE DURING EMPLOYMENT (CAL. LAB. CODE, 204, subd. DISCRIMINATION BASED UPON RACE IN VIOLATION OF FEHA (CAL. GOV. CODE, 12940, subd. DISCRIMINATION BASED UPON SEXUAL ORIENTATION IN VIOLATION OF FEHA (CAL. GOV. CODE, 12940, subd. FAILURE TO TAKE REASONABLE STEPS TO PREVENT OR CORRECT DISCRIMINATION AND HARASSMENT IN VIOLATION OF EHA (CAL. GOV. CODE, 12940, subd. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY DEFAMATION UNLIMITED JURISDICTION Amount in Controversy Exceeds $25,000 f?n? Inf anm? A Fn1?11'?'l ?r?lfp?h' 1 David Fermino (“Plaintiff”) alleges the following: 2 3 NATURE OF THE ACTION 1. This is an individual breach of contract and civil rights action brought by Plaintiff 4 David Fermino against his former employer, Kasowitz Benson Torres LLP (“Defendant,” 5 “Kasowitz,” or “the Firm,” and together with Does 1 through 20, “Defendants”). 6 2. Plaintiff is an experienced, talented, successful and widely-respected 58-year-old 7 openly gay, African American attorney, who has over twenty-five years of experience representing 8 individuals and corporate clients in white-collar and other types of criminal and regulatory matters. 9 3. In or around late fall of 2016, Plaintiff began negotiating with Defendant to leave his 10 then current firm to join Kasowitz’s San Francisco office. Ultimately, the parties agreed that 11 Plaintiff would join Kasowitz as a non-equity partner and be paid a pre-set salary of $400,000 per 12 year, prorated for the time he worked in 2017 and 2018. The parties memorialized this agreement in 13 an offer of employment (“Offer Letter”), dated May 5, 2017, which clearly stated that Plaintiff 14 would join the Firm as a “Partner” and would be paid a base annual salary of $400,000 for the 15 remainder of the 2017 and the 2018 calendar years. The Offer Letter also stated that, in January 16 2019, Plaintiff would, for the first time, be expected to make a capital contribution in the amount of 17 $50,000. 18 4. The Kasowitz partnership agreement (“Partnership Agreement”) provides for two 19 levels of partnership, the first being an equity partner with an “interest” or equity stake in the Firm 20 and the second being a “Special Partner.” The Partnership Agreement provides that the terms of a 21 Special Partner’s employment shall be documented in a separate agreement between the Special 22 Partner and the Firm and that the Special Partner’s “partnership” shall not be subject to the terms and 23 conditions of the Partnership Agreement. Pursuant to the Partnership Agreement, Special Partners 24 have no equity interest in the Firm, no voting rights, no rights to distributions of Firm income 25 beyond the compensation set forth in a separate agreement, and no responsibility for Firm debt. 26 5. In short, Kasowitz Special Partners, despite their title as “Partner,” have no equity 27 interest in the Firm, no points under the Firm’s point system (used to allocate funds to partners), and 28 -2- COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 no voting rights. As a Special Partner, Plaintiff’s employment was subject to the terms of the Offer 2 Letter, including the salary amount and term. 3 6. Plaintiff began his employment with Kasowitz on June 5, 2017 and almost 4 immediately realized that he – the only African American and openly gay partner in the San 5 Francisco office – was treated differently than other white and straight partners. Kasowitz blatantly 6 failed to provide Plaintiff with the same business opportunities, professional support and 7 professional courtesies and benefits that it provided to similarly-situated white and straight partners. 8 Plaintiff also overheard racist comments about African Americans on a number of occasions 9 throughout his employment. 10 7. During the course of 2018, the Firm reneged on numerous promises to assist Plaintiff 11 in developing business and to supply him with billable legal work. Worse, less than a year into 12 Plaintiff’s employment, Kasowitz, without notice, began reducing the monthly wages it paid to 13 Plaintiff, telling him that he would be “trued up” later in his employment. In mid-2018, without 14 “truing up” or otherwise making up for the diminished compensation, Kasowitz terminated 15 Plaintiff’s employment without any notice, let alone a prior conversation about his work, clients, 16 billable hours or his performance, again denying Plaintiff the opportunity, professional respect and 17 courtesy common in the profession that Kasowitz afforded straight and white partners. At the time 18 Kasowitz terminated Plaintiff’s employment, it had not made up its deficient salary payments to 19 Plaintiff and refused to pay him more than $190,000 in unpaid salary owed to him for 2017 and 20 2018. 21 8. When Plaintiff asked to be paid the salary amounts due and owing pursuant to the 22 Offer Letter, Kasowitz began making false and defamatory statements both internally and externally 23 about Plaintiff’s performance in an effort to intimidate him and silence his efforts to obtain funds 24 that were contractually due him. 25 9. Plaintiff now alleges breach of contract, breach of the covenant of good faith and fair 26 dealing, and violations of Labor Code sections 201, 203, and 204. Plaintiff also alleges violations of 27 the Fair Employment and Housing Act (“FEHA”) based upon race and sexual orientation 28 -3- COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 discrimination, failure to prevent discrimination from occurring, wrongful termination in violation of 2 public policy, defamation, and intentional and negligent infliction of emotional distress. 3 4 PARTIES 10. Plaintiff is an individual and at all times relevant to this litigation was a resident of 5 the County of San Francisco, California. At all times relevant to this Complaint, Plaintiff was an 6 employee within the meaning of California Government Code sections 12940 and 12945. 7 11. Plaintiff is informed and believes and thereon alleges that Defendant KASOWITZ 8 BENSON TORRES LLP is a New York-based limited liability partnership licensed to do business in 9 California, with an office in the County of San Francisco, California, where Plaintiff performed his 10 duties. Defendant Kasowitz hired Plaintiff, retained the right to and did fire him, supervised 11 Plaintiff’s work, required Plaintiff to report to more tenured partners in the San Francisco office, and 12 paid him a set salary. Plaintiff’s employment and compensation was subject to the terms of an Offer 13 Letter establishing a set annual compensation. Because Plaintiff did not share in the profits, losses 14 and/or liabilities of the Kasowitz partnership, Kasowitz was Plaintiff’s employer within the meaning 15 of California Government Code sections 12926, 12940, and 12945. 16 12. Plaintiff is ignorant of the true names or capacities of the Defendants sued here under 17 the fictitious names DOES 1 through 20, inclusive. Plaintiff is informed and believes and thereon 18 alleges that each of the Doe Defendants was responsible in some manner for the occurrences and 19 injuries alleged in this Complaint. 20 13. Plaintiff is informed and believes and thereon alleges that at all times mentioned 21 herein, Defendants were acting on their own behalf and as agents or employees of each of the other 22 Defendants. The acts described herein were done in the course and scope of such agency or 23 employment with the consent, permission, and authorization of each of the other Defendants, as well 24 as on Defendants’ own behalf. 25 26 JURISDICTION AND VENUE 14. The unlawful and discriminatory employment practices complained of herein 27 occurred in San Francisco County, California. 28 -4- COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 2 EXHAUSTION OF ADMINISTRATIVE REMEDIES 15. On August 28, 2019, within one year of the date of the discrimination committed by 3 Defendants, and each of them, Plaintiff filed a charge of discrimination with the California 4 Department of Fair Employment and Housing (“DFEH”), alleging that he was discriminated against 5 upon the basis of his race and sexual orientation in violation of the FEHA and wrongfully terminated 6 in violation of public policy. Plaintiff requested from DFEH an immediate authorization to file a 7 lawsuit. 8 16. On August 28, 2019, the DFEH issued to Plaintiff a notice of right to bring a civil 9 action against Defendants based upon the charges described herein. A copy of Plaintiff’s notice of 10 his Right To Sue is attached hereto as Exhibit A and incorporated by reference as though fully set 11 forth herein. In addition, Plaintiff complied in a timely manner with the requirements of California 12 Government Code section 12962 by serving Defendants with the DFEH Charges and Right To Sue 13 Letter by certified mail with return receipt requested, upon the person, employer, labor organization, 14 or employment agency alleged to have committed the unlawful practice. 15 16 FACTS COMMON TO ALL CAUSES OF ACTION 17. Plaintiff David Fermino is a 58-year-old openly gay, African American attorney, who 17 has over twenty-five years of experience representing individuals and corporate clients in white18 collar and other types of criminal regulatory matters. Plaintiff is highly regarded within the 19 California legal community and has served as the Chair and Vice-Chair of the California Judicial 20 Nominee Evaluation Commission for the State Bar of California. Plaintiff has argued before the 21 United States Supreme Court, the Court of Appeals for the Ninth Circuit (en banc) as well as 22 numerous three judge panels, the California Supreme Court and the California Courts of Appeal, 23 resulting in many significant published opinions. Throughout his multidecade career, Plaintiff has 24 worked in the public sector and in private practice and has served as appointed counsel in both trial 25 and appellate matters pursuant to the Criminal Justice Act. In 2019, Mr. Fermino was honored with 26 the prestigious California Association of Black Lawyers’ Loren D. Miller Lawyer of the Year 27 Award. 28 -5- COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 18. In addition, Mr. Fermino has served as a member of the Board of Directors of the 2 ACLU of Northern California, the Board of Governors of the California Attorneys for Criminal 3 Justice, and as a member of the Board of Directors of California Poets in Schools – a non-profit that 4 trains and coordinates a multicultural network of published poets, who bring their passion and craft 5 to public and private schools, juvenile halls, hospitals, libraries and other community settings. 6 19. Mr. Fermino has written articles for Law 360, The Daily Journal, the Recorder, and 7 the Marijuana Industry News on cutting edge criminal law issues, including the intersection of 8 encryption technology and the Fifth Amendment and developments in the emergent cannabis 9 industry. He is a yearly contributing author to the CEB book “Scientific Evidence and Expert 10 Testimony in California” for which he co-authors a chapter on “Digital Forensics in Corporate 11 Environments.” 12 20. In or around late fall of 2016, Plaintiff began negotiating with Kasowitz to leave his 13 then-firm where he was a respected partner, to join Kasowitz’s white-collar practice in the San 14 Francisco office. During the negotiations, Kasowitz represented that, in addition to the work 15 Plaintiff told Kasowitz he would bring to the Firm, Plaintiff would be provided work on other 16 matters that the Firm would assign him. Ultimately the parties decided that Plaintiff would join 17 Kasowitz as a non-equity partner and be paid a set salary of $400,000 per year for the remainder of 18 the 2017 and 2018 calendar years. Plaintiff was told that, in January of 2019, he would be required 19 to make a capital contribution in order to enjoy the benefits of equity partnership. 20 21. On May 5, 2017, Kasowitz presented Plaintiff with an Offer Letter attached hereto as 21 Exhibit B and incorporated by reference as though fully set forth herein. The Offer Letter specified 22 that Plaintiff would: 23 . . . join [Kasowitz] as a Partner with full rights and responsibilities under the 24 Partnership Agreement, and its resolutions and procedures except as modified herein. 25 Your annualized base compensation of $400,000 will be prorated for the balance of the 26 2017 calendar year, and remain at $400,000 for the 2018 calendar year. In January 27 28 -6- COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 2019, you will be expected to make a capital contribution in the amount of $50,000. 2 (Emphasis added.) 3 22. At Kasowitz’s suggestion, shortly after he received the Offer Letter, Plaintiff attended 4 a telephone conference with Firm management, including Executive Director Alan Capilupi, to 5 discuss the Offer Letter and address any questions that Plaintiff had. On that call, Mr. Capilupi told 6 Plaintiff, in sum and substance, “this is the standard agreement” and “everyone signs it.” Also on 7 that call, Mr. Capilupi told Plaintiff, in response to his question about funds to make the $50,000 8 capital contribution in January 2019, that other Kasowitz partners had successfully obtained 9 financing for the payment from Citibank. 10 23. Plaintiff also discussed with Lyn Agre – a primary agent involved the hiring 11 negotiations with Plaintiff – the terms of the Offer Letter. Ms. Agre reiterated that the compensation 12 structure in Plaintiff’s Offer Letter, i.e., serving as a non-equity partner for a period of time, being 13 paid a set salary during that time, and thereafter transitioning to become an equity partner required to 14 make capital contributions, was “standard” for new Kasowitz partners. She explained that only new 15 partners who were bringing to the Firm a substantial book of business were offered a different 16 arrangement. 17 24. Based on these assurances, Plaintiff executed the Offer Letter on May 9, 2017. 18 25. The compensation structure set forth in the Offer Letter purposefully protected both 19 parties against downside risks, to wit, the Firm would not have to share profits with Plaintiff and 20 Plaintiff would not be entitled to profits, but also would be guaranteed a salary. 21 26. Plaintiff was presented with the Partnership Agreement for the first time on his first 22 day of employment. No representative or agent of Kasowitz discussed with Plaintiff the terms of the 23 Partnership Agreement. Plaintiff was asked to immediately execute the agreement, which he did on 24 June 5, 2017. 25 27. Although the Offer Letter states that Plaintiff was to join Kasowitz as a Partner with 26 full rights and responsibilities under the Partnership Agreement, this simply was not true. In fact, 27 Plaintiff was afforded none of the significant rights under the Partnership Agreement. Plaintiff was 28 -7- COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 not paid a partnership draw pursuant to the partnership “points” formula set forth in the Partnership 2 Agreement, but instead was to be paid the salary set forth in the Offer Letter. He was not given any 3 voting rights. When Plaintiff’s employment was terminated, he was not provided notice of 4 involuntary removal from the Kasowitz partnership as required by the Partnership Agreement. 5 28. While the Offer Letter did not use the term “Special Partner,” Plaintiff’s employment 6 was clearly dictated by that provision of the Partnership Agreement, which states: 7 Upon the determination of the Managing Partner and the concurrence of the Executive 8 Committee, an individual may be admitted to the Partnership as a non-equity partner 9 (“Special Partner”) subject to the terms and conditions of a separate agreement between the 10 Partnership and such individual. The status of an existing equity Partner may likewise be 11 changed to that of a non-equity partner by the Managing Partner and the Executive 12 Committee subject to the terms and conditions of a separate agreement between the 13 Partnership and such individual without a vote of the Partnership. The rights of Partners set 14 for by this Partnership Agreement do not relate to Special Partners. The relationship 15 between Special Partners and the Partnership (and the individual Partners thereof) shall be 16 governed and controlled by the separate agreements entered into between Special Partners 17 and the partnership. (Emphasis added.) 18 29. Neither the Offer Letter nor the simultaneous negotiations leading up to it made 19 Plaintiff’s salary contingent on his or the Firm’s performance or any other metrics such as realization 20 rate, profits, revenues, associate leverage, or billable hours. 21 30. Plaintiff was the only African American and openly gay partner in the San Francisco 22 office. When Mr. Fermino joined the Firm, he was one of only two African American partners out 23 of over 100 partners firmwide. At the time of his dismissal, Kasowitz had only four African 24 American partners; the percentage of African American partners was less than half that race’s 25 representation in the American population overall. Plaintiff is informed and believes that, 26 throughout his employment, the Firm had fewer than five openly gay partners. 27 28 -8- COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 31. Kasowitz treated Plaintiff differently than other straight and white partners. Kasowitz 2 failed to provide Plaintiff with the same business development opportunities that it provided to other 3 white and straight partners. For example, during the negotiation process, Plaintiff was promised that 4 after he was hired, the Firm would hold a marketing event in San Francisco to showcase and 5 publicize his practice area. However, Kasowitz never planned the marketing event. Only after 6 Plaintiff approached Ms. Agre, the Managing Partner of the San Francisco office, did the Firm 7 suggest that Plaintiff’s marketing event be combined with a previously scheduled marketing event 8 for Daniel Saunders, a white, straight partner in Los Angeles who was hired around the same time as 9 Plaintiff. By combining the marketing event with an event planned for another partner and holding 10 it in Los Angeles where Mr. Saunders was based, the event offered far less professional value than 11 Plaintiff would have realized had the event been held solely for him in San Francisco, where his 12 client base was centered. 13 32. On another occasion, Kasowitz inexplicably, but apparently intentionally, excluded 14 Plaintiff from attending a black-tie event in San Francisco celebrating African American in-house 15 attorneys and partners, for which Kasowitz had purchased a table. Excluding Plaintiff not only 16 embarrassed and humiliated him, it denied him important business development opportunities within 17 the African American legal community. 18 33. Throughout his employment, Plaintiff repeatedly overheard racist comments. For 19 example, one of the leaders in the San Francisco office commented to Plaintiff that it was “obvious” 20 that an African American associate in the Silicon Valley office who was recently promoted to 21 partner was “only promoted because he’s black.” 22 34. Plaintiff was paid his wages through the partner “draw” system and Kasowitz 23 supplied Plaintiff with an IRS Form K-1, which is used to report each partner’s distributive share of 24 total partnership income. 25 35. Between Plaintiff’s start date and December 2017, Kasowitz paid Plaintiff a salary of 26 $20,000 per month, or $240,000 on an annualized basis, substantially less than his agreed upon 27 compensation. 28 -9- COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 36. In December 2017, Plaintiff received an email addressed to all partners from 2 Executive Director Mr. Capilupi stating that the Firm was experiencing cash flow problems and that 3 partners could expect to be “trued up” (for amounts unpaid for 2017) on or before January 31, 2018. 4 37. Following this email, Plaintiff approached Mr. Capilupi to discuss his concerns. 5 Plaintiff reminded Mr. Capilupi that, pursuant to the Offer Letter, he was entitled to his full pro-rated 6 salary for 2017. Mr. Capilupi stated that he needed to discuss the issue with Managing Partner Marc 7 Kasowitz. 8 38. In early January 2018, Plaintiff emailed Mr. Capilupi regarding the deficient salary 9 payments. For clarity, Plaintiff attached the Offer Letter to his email. Mr. Capilupi responded via e10 mail that he had conferred with Mr. Kasowitz, who he said agreed with Plaintiff’s reading of the 11 Offer Letter as requiring payment of Plaintiff’s guaranteed salary, but that the Firm would not remit 12 payment until on or before January 31, 2018. Mr. Capilupi also stated that Plaintiff’s Offer Letter 13 was poorly drafted. 14 39. After January 31, 2018, Kasowitz paid Plaintiff for a portion of the deficiency in his 15 2017 salary. However, without notice or Plaintiff’s agreement, Kasowitz deducted a significant sum 16 from Plaintiff’s pay and deposited that amount in a profit sharing program. Even after Plaintiff’s 17 ultimate termination, he did not receive any payment from the profit sharing program and the 18 amounts withheld by Kasowitz for contribution to the program, purportedly for Plaintiff’s benefit, 19 continue to be withheld. Including amounts withheld for the profit sharing program, Kasowitz paid 20 Plaintiff over $40,000 less than he was guaranteed in the Offer Letter for 2017. 21 40. In April of 2018, Kasowitz unilaterally and without notice, reduced Plaintiff’s 22 monthly salary payment to approximately $10,000, less than one-third of the amount he should have 23 been paid. 24 41. Plaintiff was told by another Firm partner that Managing Partner Kasowitz (who 25 retained almost complete control over the partnership, the Firm and its Executive Committee) had 26 directed the reduction in Plaintiff’s monthly salary payment. Around the same time, another partner 27 28 - 10 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 told Plaintiff that Mr. Kasowitz frequently made such unilateral decisions, but that Plaintiff would 2 eventually be made whole. In light of the Offer Letter’s guarantee, Plaintiff did not press the issue. 3 42. When the Firm reduced further Plaintiff’s monthly payment to approximately $9,000, 4 Plaintiff again reached out to Mr. Capilupi. As before, Mr. Capilupi stated that he needed to discuss 5 the issue with Mr. Kasowitz. 6 43. During a subsequent discussion with Ms. Agre, Plaintiff asked whether she had 7 received a draw. Ms. Agre confirmed that she had, and expressly instructed Plaintiff not to raise 8 with Mr. Kasowitz any issues about the Firm’s failure to pay him. Instead, Ms. Agre assured 9 Plaintiff that she would raise on Plaintiff’s behalf the issue with Mr. Kasowitz the next time she was 10 in New York. 11 44. During the course of 2018, most of the litigation work Plaintiff brought with him 12 from his prior firm disappeared because the client and opposing parties decided to handle the 13 relevant matters without resorting to litigation. Ms. Agre, who effectively acted as Plaintiff’s 14 supervising partner in the San Francisco office, told him that there was plenty of other Firm work to 15 keep him busy, but without explanation, she (and others) thereafter intentionally blocked Plaintiff’s 16 efforts to identify, obtain and take on other work. The Firm’s refusal to supply Plaintiff with 17 additional litigation work – work that it continued to assert was available – constitutes a breach of 18 the promises made during the hiring negotiations to assist Mr. Fermino in developing business and 19 supplying him with legal work. 20 45. To make matters worse, Kasowitz began making false and defamatory statements 21 about Plaintiff, apparently in an attempt to justify his firing and with the intent to impugn his 22 professional integrity. 23 46. Plaintiff is informed and believes and thereon alleges that Defendant, its partners, 24 agents, and employees, including, Ms. Agre, made false and defamatory statements to members of 25 the legal community, both inside and outside the Firm, concerning Plaintiff’s job performance and 26 the circumstances of Plaintiff’s dismissal, including, inter alia, express and implied accusations that 27 Plaintiff reneged on his agreement with Kasowitz, exhibited unprofessional conduct, was unable to 28 - 11 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 bring in business to the Firm and performed poorly. These and similar false statements published by 2 Defendant expressly and impliedly asserted that Plaintiff is and/or was unprofessional and 3 unsuccessful as an attorney and employee. These false and defamatory statements were unsolicited 4 and made with malice and the intent to cause reputational harm, and indeed did cause Plaintiff such 5 harm. 6 47. On August 28, 2018, Kasowitz, without any formal or informal notice, terminated 7 Mr. Fermino’s employment. At the time, the Firm owed Plaintiff over $190,000 in unpaid wages. 8 48. In terminating Plaintiff’s employment, Kasowitz failed to abide by any of the 9 Partnership Agreement’s provisions concerning withdrawal from the partnership, demonstrating that 10 Plaintiff was a Special Partner whose terms of employment were governed exclusively by the Offer 11 Letter. Specifically, although Section 9.2 of the Partnership Agreement provides that a partner may 12 only be exited from the partnership “by the affirmative vote of the members of the Executive 13 Committee holding more than one-half (50%) of the total number of Points then held by all 14 Executive Committee members” “upon the delivery of written notice,” no vote was taken regarding 15 Plaintiff’s withdrawal and no monies were paid to Plaintiff upon his termination. 16 49. Shortly thereafter, Kasowitz terminated Plaintiff’s health benefits without providing 17 him a COBRA notice or notice regarding entitlement to the funds he had contributed to the profit 18 sharing program. 19 50. Although the Firm justified the termination by asserting that Plaintiff had billed too 20 few hours and generated inadequate revenue, these issues were never raised or discussed with 21 Plaintiff and to the contrary, the Firm failed to provide Plaintiff with the promised opportunity to 22 service existing clients and to join in presentations for potential new clients. The Firm also never 23 warned Plaintiff of a potential termination in the context of future revenue projection. In short, 24 Plaintiff was not afforded any of the basic partnership courtesies and discussion that were afforded 25 straight, white partners when the Firm had issues with their performance, revenue generation, 26 profitability or other partnership issues. 27 28 51. A number of Plaintiff’s Kasowitz colleagues expressed shock at the manner in which - 12 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 Plaintiff’s termination was handled and told Plaintiff that similarly-situated white and straight 2 partners were never terminated in a such a disrespectful and professionally damaging manner. As 3 just one example, Plaintiff was informed that a white, straight male partner with a contract similar to 4 Plaintiff’s and who experienced similar revenue generation issues was able to remain employed at 5 the Firm and allowed to work toward rectifying his revenue generation and performance. Indeed, 6 this individual was ultimately promoted to Managing Partner of the Firm’s Silicon Valley office. 7 Plaintiff was not, however, provided the same latitude. 8 52. Kasowitz’s unlawful conduct was engaged in and/or ratified by managing agents of 9 Defendants, in whom Plaintiff placed his justified and good faith trust. Kasowitz acted in a 10 deliberate, malicious, cold, callous, deceptive, oppressive, and intentional manner in order to injure 11 and damage Plaintiff and/or with callous disregard for Plaintiff’s rights to be free from 12 discrimination in the workplace. 13 53. Kasowitz’s termination of Plaintiff’s employment and outrageous and discriminatory 14 conduct towards him has irreparably disrupted Plaintiff’s life and career. As a result of Kasowitz’s 15 unlawful conduct, Plaintiff has and continues to suffer significant emotional distress. FIRST CAUSE OF ACTION BREACH OF CONTRACT (Against All Defendants) 16 17 18 19 54. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 55. On or about May 9, 2017, Plaintiff and Defendants executed an Offer Letter 20 herein. 21 22 governing the terms and conditions of Plaintiff’s employment. Under the terms of the Offer Letter, 23 Plaintiff was to “join [Kasowitz] as a Partner” and be paid an “annualized base compensation of 24 $400,000 [] prorated for the balance of the 2017 calendar year, and remain at $400,000 for the 2018 25 calendar year.” Furthermore, the Offer Letter provided that “[i]n January 2019, [Plaintiff] will be 26 expected to make a capital contribution in the amount of $50,000.” 27 28 - 13 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 56. The Offer Letter constitutes a binding contract under California law as an offer by 2 Defendants of terms of employment that were accepted by Plaintiff. 3 57. The Offer Letter makes clear that Plaintiff was entitled to a guaranteed salary of 4 $400,000 per year prorated for the 2017 calendar year and through the 2018 calendar year. 5 Plaintiff’s guaranteed salary was not contingent on performance or any other metrics. 6 58. Kasowitz’s Executive Director affirmed the promises made in the Offer Letter in 7 December of 2017 when, after Plaintiff’s monthly salary was decreased, he assured Plaintiff that he 8 would be paid his “guaranteed salary” for 2017 on or before January 31, 2018. 9 59. Although Plaintiff executed the Kasowitz Partnership Agreement as he was requested 10 to do, nothing in that agreement permitted Kasowitz to reduce Plaintiff’s pay while employed or 11 refuse to pay wages due and owing. 12 60. At all relevant times, Plaintiff was employed by Defendants and performed all 13 conditions, covenants, and promises according to the applicable terms and conditions of the Offer 14 Letter. 15 61. Kasowitz failed to pay Plaintiff the salary it was legally bound to pay in 2017. 16 62. Kasowitz failed to pay Plaintiff the salary it was legally obligated to pay in 2018. 17 63. On August 28, 2017, Defendants terminated Plaintiff’s employment. At the time 18 Defendants terminated Plaintiff’s employment, Defendants still owed Plaintiff unpaid wages 19 pursuant to the Offer Letter. 20 64. Defendants materially breached the Offer Letter by terminating Plaintiff’s 21 employment and refusing to pay wages due and owed. 22 65. As a result of Defendants’ breach of contract, Plaintiff has suffered damages in a 23 nature and amount to be proven at trial. 24 // 25 // 26 // 27 // 28 - 14 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 SECOND CAUSE OF ACTION BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING (Against All Defendants) 2 3 4 66. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 67. The Offer Letter is an enforceable contract and under California law. A covenant of 5 herein. 6 7 good faith and fair dealing is implied in that contract. 8 68. The covenant of good faith and fair dealing required Defendants to fairly, honestly, 9 and reasonably perform the terms and conditions of the Offer Letter. 10 69. Defendants breached the covenant of good faith and fair dealing with Plaintiff in 11 several ways, including: (1) by refusing to pay Plaintiff wages owed under the Offer Letter; (2) by 12 failing to discuss with Plaintiff their purported dissatisfaction with his revenue production and 13 billings prior to terminating him, thus impeding Plaintiff’s ability to remedy any perceived problems; 14 (3) refusing to conductany reasonable investigation concerning its obligations pursuant to the Offer 15 Letter and repudiating its obligations under this contract, despite full knowledge of the applicable 16 law; all without good or sufficient cause, for reasons extraneous to the contract, and for the purpose 17 of frustrating Plaintiff’s enjoyment of the contract. 18 70. As a proximate result of Defendants’ breach of the covenant of good faith and fair 19 dealing, Plaintiff has been damaged, in that Plaintiff has suffered and continues to sustain substantial 20 losses in earnings and other employment benefits in an amount according to proof at trial. 21 22 23 THIRD CAUSE OF ACTION FAILURE TO TIMELY PAY WAGES DUE UPON SEPARATION OF EMPLOYMENT (CAL. LAB. CODE, §§ 201, subd. (a) and 203, subd. (a)) (Against All Defendants) 24 71. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 72. California Labor Code section 201, subdivision (a) provides that “[i]f an employer 25 herein. 26 27 discharges as employee, the wages earned and unpaid at the time of discharge are due and payable 28 - 15 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 immediately.” 2 73. California Labor Code section 203, subdivision (a) provides that if an employer 3 willfully fails to pay wages owed under California Labor Code section 201, the employer is liable 4 for waiting time penalties in the form of continued compensation to the employee at the same rate 5 for up to 30 work days. 6 74. At all times alleged herein, California Labor Code sections 201 and 203 were in full 7 effect and binding on all Defendants. 8 75. On August 28, 2018, Defendants terminated Plaintiff’s employment. At the time of 9 termination, Defendants owed Plaintiff wages he had earned but failed to pay those wages 10 immediately upon Plaintiff’s termination. 11 76. More than thirty days have passed since Defendants terminated Plaintiff’s 12 employment. 13 77. To date, Defendants have willfully failed to pay accrued wages and other 14 compensation to Plaintiff in violation of California Labor Code section 201, subdivision (a). 15 78. As a consequence of Defendants’ willful conduct in failing to pay compensation 16 owed to Plaintiff, he is entitled to thirty days’ wages under Labor Code section 203, together with 17 interest thereon and attorneys’ fees and costs. 18 FOURTH CAUSE OF ACTION FAILURE TO TIMELY PAY WAGES DUE DURING EMPLOYMENT (CAL. LAB. CODE, § 204, subd. (a)) (Against All Defendants) 19 20 21 79. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 80. California Labor Code section 204, subdivision (a) states in pertinent part: “All wages 22 herein. 23 24 . . . earned by any person in any employment are due and payable twice during each calendar month, 25 on days designated in advance by the employer as the regular paydays.” 26 81. California Labor Code section 210 states in pertinent part: “(a) In addition to, and 27 entirely independent from, any other penalty provided in this article, every person who fails to pay 28 - 16 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 the wages of each employee as provided in Section[] . . . 204 . . . shall be subject to a civil penalty as 2 follows: (1) For any initial violation, one hundred dollars ($100) for each failure to pay employee. 3 (2) For each subsequent violation, or any willful or intentional violation, two hundred dollars ($200) 4 for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld.” 5 82. At all times alleged herein, California Labor Code sections 204 and 210 were in full 6 effect and binding on all Defendants. 7 83. Throughout Plaintiff’s employment, instead of properly paying Plaintiff wages due on 8 a monthly basis, Defendants, for multiple pay periods, paid him less than the monthly wages due. 9 84. The unlawful conduct of Defendants as alleged above, directly and proximately 10 caused Plaintiff to suffer, and continue to suffer, special damages, including, but not limited to, past 11 and future loss of income, benefits, and other damages to be proven at the time of trial, including lost 12 interest on such moneys. As alleged above, Defendants ratified the unlawful conduct of its 13 employees, and is therefore liable for their conduct. 14 85. As a result of the conduct of Defendants and each of them, Plaintiff was forced to 15 retain an attorney in order to protect his rights. Accordingly, Plaintiff seeks the reasonable 16 attorneys’ fees and costs incurred in this litigation in an amount according to proof at trial pursuant 17 to California Labor Code section 218.5, subdivision (a). 18 FIFTH CAUSE OF ACTION DISCRIMINATION BASED UPON RACE IN VIOLATION OF FEHA (CAL. GOV. CODE, § 12940, subd. (a)) (Against All Defendants) 19 20 21 86. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 87. Plaintiff is informed and believes and thereon alleges that Defendants are employers 22 herein. 23 24 subject to suit under California Government Code section 12900 et seq., the Fair Employment and 25 Housing Act, in that Defendants are business organizations with five or more employees doing 26 business in the State of California. 27 28 88. At all times relevant herein, Plaintiff was an African American employee of - 17 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 Defendants. Pursuant to California Government Code section 12940, subdivision (a), Plaintiff had a 2 legal right to be free from discrimination based upon race in the workplace. 3 89. Plaintiff is informed and believes and thereon alleges that Defendants willfully and/or 4 with reckless indifference violated California Government Code section 12900 et seq., as set forth 5 herein, and discriminated against Plaintiff as outlined above, based upon his race. Such 6 discrimination has resulted in damage and injury to Plaintiff as alleged herein. 7 90. The unlawful conduct of Defendants as alleged above, directly and proximately 8 caused Plaintiff to suffer, and continue to suffer, special damages, including, but not limited to, past 9 and future loss of income, benefits, and other damages to be proven at the time of trial. As alleged 10 above, Defendants ratified the unlawful conduct of its employees, and is therefore liable for their 11 conduct. 12 91. The unlawful conduct of Defendants as alleged above, directly and proximately 13 caused Plaintiff to suffer, and continue to suffer, general damages, including, but not limited to, 14 shock, embarrassment, humiliation, emotional distress, stress, depression, anxiety, fear, uncertainty, 15 loss of confidence, and other damages to be proven at the time of trial. As alleged above, 16 Defendants ratified the unlawful conduct of its employees, and is therefore liable for their conduct. 17 92. Defendants committed the acts herein alleged maliciously, fraudulently, and 18 oppressively in conscious disregard for Plaintiff’s rights, and Plaintiff is entitled to recover punitive 19 damages from Defendants in an amount according to proof. The unlawful conduct alleged above 20 was engaged in and/or ratified by the officers, directors, supervisors, and/or managing agents of 21 Defendants and each of them, who were acting at all times relevant to this Complaint within the 22 scope and course of their employment. Pursuant to California Civil Code section 3294, Defendants 23 are liable for punitive damages. 24 93. As a result of the conduct of Defendants and each of them, Plaintiff was forced to 25 retain an attorney in order to protect his rights. Accordingly, Plaintiff seeks the reasonable 26 attorneys’ fees and costs incurred in this litigation in an amount according to proof at trial pursuant 27 to California Government Code section 12965, subdivision (b). 28 - 18 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 2 3 SIXTH CAUSE OF ACTION DISCRIMINATION BASED UPON SEXUAL ORIENTATION IN VIOLATION OF FEHA (CAL. GOV. CODE, § 12940, subd. (a)) (Against All Defendants) 4 94. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 95. Plaintiff is informed and believes and thereon alleges that Defendants are employers 5 herein. 6 7 subject to suit under California Government Code section 12900 et seq., the Fair Employment and 8 Housing Act, in that Defendants are business organizations with five or more employees doing 9 business in the State of California. 10 96. At all times relevant herein, Plaintiff was an openly gay employee of Defendants. 11 Pursuant to California Government Code section 12940, subdivision (a), Plaintiff had a legal right to 12 be free from discrimination based upon sexual orientation in the workplace. 13 97. Plaintiff is informed and believes and thereon alleges that that Defendants willfully 14 and/or with reckless indifference violation California Government Code section 12900 et seq., as set 15 forth herein, and discriminated against Plaintiff as outlined above, based upon his sexual orientation. 16 Such discrimination has resulted in damage and injury to Plaintiff as alleged herein. 17 98. The unlawful conduct of Defendants as alleged above, directly and proximately 18 caused Plaintiff to suffer, and continue to suffer, special damages, including, but not limited to, past 19 and future loss of income, benefits, and other damages to be proven at the time of trial. As alleged 20 above, Defendants ratified the unlawful conduct of its employees, and is therefore liable for their 21 conduct. 22 99. The unlawful conduct of Defendants as alleged above, directly and proximately 23 caused Plaintiff to suffer, and continue to suffer, general damages, including, but not limited to, 24 shock, embarrassment, humiliation, emotional distress, stress, depression, anxiety, fear, uncertainty, 25 loss of confidence, and other damages to be proven at the time of trial. As alleged above, 26 Defendants ratified the unlawful conduct of its employees, and is therefore liable for their conduct. 27 28 100. Defendants committed the acts herein alleged maliciously, fraudulently, and - 19 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 oppressively in conscious disregard for Plaintiff’s rights, and Plaintiff is entitled to recover punitive 2 damages from Defendants in an amount according to proof. The unlawful conduct alleged above 3 was engaged in and/or ratified by the officers, directors, supervisors, and/or managing agents of 4 Defendants and each of them, who were acting at all times relevant to this Complaint within the 5 scope and course of their employment. Pursuant to California Civil Code section 3294, Defendants 6 are liable for punitive damages. 7 101. As a result of the conduct of Defendants and each of them, Plaintiff was forced to 8 retain an attorney in order to protect his rights. Accordingly, Plaintiff seeks the reasonable 9 attorneys’ fees and costs incurred in this litigation in an amount according to proof at trial pursuant 10 to California Government Code section 12965, subdivision (b). SEVENTH CAUSE OF ACTION FAILURE TO PREVENT DISCRIMINATION (CAL. GOV. CODE, § 12940, subd. (k)) (Against All Defendants) 11 12 13 14 102. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 103. At all times alleged herein, California Government Code section 12940, subdivision 15 herein. 16 17 (k) was in full effect and binding on all Defendants and required Defendants to take reasonable steps 18 to prevent harassment and discrimination in the workplace. 19 104. Defendants failed to take all reasonable steps necessary to prevent discrimination 20 against Plaintiff. 21 105. As a direct and proximate result of the wrongful conduct of Defendants, and each of 22 them, Plaintiff has suffered and continues to sustain substantial losses in earnings and other 23 employment and retirement benefits, in an amount according to proof at trial. 24 106. As a direct and proximate result of the wrongful conduct of Defendants, and each of 25 them, Plaintiff has suffered humiliation, emotional and physical distress, and mental pain and 26 anguish in an amount according to proof at trial. 27 28 107. Defendants committed the acts herein alleged maliciously, fraudulently, and - 20 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 oppressively in conscious disregard for Plaintiff’s rights, and Plaintiff is entitled to recover punitive 2 damages from Defendants in an amount according to proof. The unlawful conduct alleged above 3 was engaged in and/or ratified by the officers, directors, supervisors and/or managing agents of 4 Defendants and each of them, who were acting at all times relevant to this Complaint within the 5 scope and course of their employment. Pursuant to California Civil Code section 3294, Defendants 6 are liable for punitive damages. 7 108. As a result of the conduct of Defendants and each of them, Plaintiff was forced to 8 retain an attorney in order to protect his rights. Accordingly, Plaintiff seeks the reasonable 9 attorneys’ fees and costs incurred in this litigation in an amount according to proof at trial pursuant 10 to California Government Code section 12965, subdivision (b). EIGHTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (Against All Defendants) 11 12 13 14 109. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 110. The conduct complained of above and incorporated herein was outside the conduct 15 herein. 16 17 expected to exist in the workplace, was intentional and malicious and done for the purpose of 18 causing Plaintiff to suffer humiliation, mental anguish, and emotional and physical distress. 19 Defendants, and each of their conduct, in confirming and ratifying the complained of conduct, was 20 done with the knowledge that Plaintiff’s emotional and physical distress would thereby increase, and 21 was done with a wanton and reckless disregard of the consequences to Plaintiff. 22 111. As a direct and proximate result of Defendants’, and each of their, intentional 23 infliction of emotional distress as hereinabove alleged, Plaintiff has been harmed in that Plaintiff has 24 suffered humiliation, mental anguish, and emotional and physical distress, and has been injured in 25 mind and health. As a result of said distress and consequent harm, Plaintiff has suffered such 26 damages in an amount in accordance with proof at time of trial. 27 28 112. Defendants, and each of them, engaging in the conduct as hereinabove alleged, acted - 21 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 fraudulently, maliciously, oppressively, and with reckless disregard of Plaintiff’s rights and safety, 2 thereby entitling Plaintiff to an award of punitive damages. Defendants, and each of them, 3 authorized, ratified, and knew of the wrongful conduct complained of herein, but failed to take 4 immediate and appropriate corrective action to remedy the situation and thereby acted fraudulently, 5 maliciously, oppressively, and with reckless disregard of Plaintiff’s rights and safety, thereby 6 entitling Plaintiff to an award of punitive damages. NINTH CAUSE OF ACTION NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (Against All Defendants) 7 8 9 113. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 114. In the alternative, if said conduct of Defendants, and each of them, and of their agents 10 herein. 11 12 and employees was not intentional, it was negligent and Plaintiff is thereby entitled to general 13 damages for the negligent infliction of emotional distress. 14 TENTH CAUSE OF ACTION WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY (Against All Defendants) 15 16 17 115. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 116. At all relevant times herein, California Government Code section 12900 et seq., was 18 herein. 19 20 in full force and effect, and establishes that the public policy of the State of California is, in part, to 21 protect and safeguard the right and opportunity of all persons to seek and hold employment without 22 discrimination, harassment, or abridgement on account of sex, gender, age, national origin, race, 23 ancestry, sexual orientation, and/or without retaliation for opposing and protesting unlawful conduct. 24 117. As set forth above, Plaintiff was employed by Defendants. Plaintiff’s wrongful 25 termination from his employment with Defendants was based upon Defendants’ violation of the 26 public policy of the State of California as put forward in the FEHA, the California Constitution, and 27 other statutes and provisions. 28 - 22 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 118. The unlawful conduct of Defendants, as alleged above, directly and proximately 2 caused Plaintiff to suffer, and continue to suffer, special damages, including, but not limited to, past 3 and future loss of income, benefits and other damages to be proven at the time of trial. As alleged 4 above, Defendants ratified the unlawful conduct of its employees, and are therefore liable for their 5 conduct. 6 119. The unlawful conduct of Defendants, as alleged above, directly and proximately 7 caused Plaintiff to suffer, and continue to suffer, general damages, including, but not limited to, 8 shock, embarrassment, humiliation, emotional distress, stress, depression, anxiety, fear, uncertainty, 9 loss of confidence, and other damages to be proven at trial. As alleged above, Defendants ratified 10 the unlawful conduct of its employees, and is therefore liable for their conduct. 11 120. Defendants committed the acts herein alleged maliciously, fraudulently, and 12 oppressively in conscious disregard for Plaintiff’s rights, and Plaintiff is entitled to recover punitive 13 damages from Defendants in an amount according to proof. The unlawful conduct alleged above 14 was engaged in and/or ratified by the officers, directors, supervisors and/or managing agents of 15 Defendants and each of them, who were acting at all times relevant to this Complaint within the 16 scope and course of their employment. Pursuant to California Civil Code section 3294, Defendants 17 are liable for punitive damages. ELEVENTH CAUSE OF ACTION DEFAMATION (Against All Defendants) 18 19 20 121. Plaintiff incorporates by reference paragraphs 1 through 53 as though fully set forth 122. Plaintiff is informed and believes Defendants by the herein-described acts, conspired 21 herein. 22 23 to, and in fact, did negligently, recklessly, and intentionally cause excessive and unsolicited internal 24 and external publications of defamation, of and concerning Plaintiff, to third persons and to the 25 community. These false and defamatory statements included express and implied accusations that 26 Plaintiff performed poorly, exhibited unprofessional conduct, and was unable to bring in business. 27 28 123. While the precise dates of these publications are not known to Plaintiff, Plaintiff is - 23 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 informed and believes the publications started in or around January of 2018, for the improper 2 purpose of finding a justification for Plaintiff’s wrongful termination. These publications were 3 outrageous, negligent, reckless, intentional, and maliciously published and republished by 4 Defendant. Plaintiff is informed and believes that the negligent, reckless, and intentional 5 publications by Defendant were and continue to be foreseeably published and republished by 6 Defendant, its agents and employees, and recipients in the community. Plaintiff hereby seeks 7 damages for these publications and all foreseeable republications discovered up to the time of trial. 8 124. During the above-described time-frame, Defendant conspired to, and in fact, did 9 negligently, recklessly, and intentionally cause excessive and unsolicited publication of defamation, 10 of and concerning Plaintiff, to third persons, who had no need or desire to know. Those third 11 person(s) to whom Defendant published this defamation are believed to include, but are not limited 12 to, other partners, agents and employees of Defendant and the community, including Plaintiff’s 13 prospective employers after his wrongful termination, all of whom are known to Defendant, but 14 unknown at this time to Plaintiff. 15 125. The defamatory publications consisted of oral and written, knowingly false and 16 unprivileged communications, tending directly to injure Plaintiff and Plaintiff’s personal, business, 17 and professional reputation. These publications included the following false and defamatory 18 statements (in violation of Civil Code §§ 45 and 46(3)(5)) with the meaning and/or substance that 19 Plaintiff: accusations that plaintiff reneged on his agreement with Kasowitz, exhibited 20 unprofessional conduct, was unable to bring in business to the Firm and performed poorly. These 21 and similar statements published by Defendant expressly and impliedly asserted that Plaintiff is an 22 unprofessional, unsuccessful and incompetent attorney and employee. 23 126. Plaintiff is informed, believes and fears that these false and defamatory per se 24 statements will continue to be published by Defendant and will be foreseeably republished by its 25 recipients, all to the ongoing harm and injury to Plaintiff’s business, professional, and personal 26 reputations. Plaintiff also seeks redress in this action for all foreseeable republications, including his 27 own compelled self-publication of these defamatory statements. 28 - 24 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 127. The defamatory meaning of all of the above-described false and defamatory 2 statements, and their reference to Plaintiff, were understood by these above-referenced third person 3 recipients and other members of the community who are known to Defendant, but unknown to 4 Plaintiff at this time. 5 128. None of Defendant’s defamatory publications against Plaintiff referenced above 6 are true. 7 129. The above defamatory statements were understood as assertions of fact, and not 8 as opinion. Plaintiff is informed and believes this defamation will continue to be negligently, 9 recklessly, and intentionally published and foreseeably republished by Defendant, and foreseeably 10 republished by recipients of Defendant’s publications, thereby causing additional injury and 11 damages for which Plaintiff seeks redress by this action. 12 130. Each of these false defamatory per se publications (as set forth above) were 13 negligently, recklessly, and intentionally published in a manner equaling malice and abuse of any 14 alleged conditional privilege (which Plaintiff denies existed), since the publications, and each of 15 them, were made with hatred, ill will, and an intent to vex, harass, annoy, and injure Plaintiff in 16 order to justify the illegal and cruel actions of Defendant, to cause further damage to Plaintiff’s 17 professional and personal reputation, to cause him to be fired, and to justify his firing. 18 131. Each of these publications by Defendant were made with knowledge that no 19 investigation supported the unsubstantiated and obviously false statements. Defendant published 20 these statements knowing them to be false, unsubstantiated by any reasonable investigation, and the 21 product of hostile witnesses. These acts of publication were known by Defendant to be negligent to 22 such a degree as to be reckless. In fact, not only did Defendant have no reasonable basis to believe 23 these statements, but it also had no belief in the truth of these statements, and in fact knew the 24 statements to be false. Defendant excessively, negligently, and recklessly published these statements 25 to individuals with no need to know, and who made no inquiry, and who had a mere general or idle 26 curiosity of this information. 27 28 132. The above complained-of publications by Defendant were made with hatred and ill - 25 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 will towards Plaintiff and the design and intent to injure Plaintiff, Plaintiff’s good name, his 2 reputation, employment and employability. Defendant published these statements, not with an intent 3 to protect any interest intended to be protected by any privilege, but with negligence, recklessness 4 and/or an intent to injure Plaintiff and destroy his reputation. Therefore, no privilege existed to 5 protect any Defendant from liability for any of these aforementioned publications or republications. 6 133. As a proximate result of the publication and republication of these defamatory 7 statements by Defendant, Plaintiff has suffered injury to his personal, business and professional 8 reputation including suffering embarrassment, humiliation, severe emotional distress, shunning, 9 anguish, fear, loss of employment, and employability, and significant economic loss in the form of 10 lost wages and future earnings, all to Plaintiff’s economic, emotional, and general damage in an 11 amount according to proof. 12 134. Defendant committed the acts alleged herein recklessly, maliciously, fraudulently, 13 and oppressively, with the wrongful intention of injuring Plaintiff, for an improper and evil motive 14 amounting to malice (as described above), and which abused and/or prevented the existence of any 15 conditional privilege, which in fact did not exist, and with a reckless and conscious disregard of 16 Plaintiff’s rights. All actions of Defendant, their agents and employees, herein alleged were known, 17 ratified and approved by the Defendant. Plaintiff thus is entitled to recover punitive and exemplary 18 damages from Defendant for these wanton, obnoxious, and despicable acts in an amount based on 19 the wealth and ability to pay according to proof at time of trial. 20 WHEREFORE, PLAINTIFF DAVID W. FERMINO PRAYS FOR JUDGMENT 21 AGAINST ALL DEFENDANTS, AND EACH OF THEM AS FOLLOWS: 22 1. For damages for breach of contract sufficient to restore to Plaintiff the bargained-for 23 benefits of the contract; 24 2. For waiting time penalties pursuant to California Labor Code section 203, subdivision 3. For an award of penalties incurred under California Labor Code section 210, 25 (a); 26 27 subdivision (a)(1)-(2); 28 - 26 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 4. For compensatory damages including lost wages, earnings, retirement benefits, and 2 other employee benefits; and all other sums of money, together with interest on these amounts at 3 prevailing rates and according to proof; 4 5. Civil penalties for each violation of the Labor Code; 5 6. For general, special, and incidental damages and amounts for emotional and physical 6 distress according to proof; 7 7. For injunctive relief; 8 8. For punitive damages in an amount to be determined at trial sufficient to punish, 9 penalize and/or deter Defendants; 10 9. For prejudgment interest and interest on the sum of damages awarded to the 11 maximum extent permitted by law; 12 10. For reasonable attorneys’ fees and costs of suit herein incurred; and 13 11. For such other and further relief as the Court deems proper. 14 15 DATED: January 9, 2020 Respectfully submitted, 16 17 18 19 JENNIFER SCHWARTZ OUTTEN & GOLDEN LLP Attorneys for Plaintiff DAVID W. FERMINO 20 21 22 JURY TRIAL DEMANDED Plaintiff demands trial of all issues by jury. 23 24 25 26 27 28 - 27 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP 1 DATED: January 9, 2020 Respectfully submitted, 2 3 4 5 6 JENNIFER SCHWARTZ OUTTEN & GOLDEN LLP Attorneys for Plaintiff DAVID W. FERMINO 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 28 - COMPLAINT – FERMINO v. KASOWITZ BENSON TORRES LLP EXHIBIT A s' 'ces and ous'n cv GAVIN NEWSOM. GOVERNOR DEPARTMENT OF- FAIR EMPLOYMENT HOUSING 2218 Kausen Drive. Suite 100 Elk Grove I CA I 95758 (800) 884-1684 (Voice) (800) 700-2320 (TTY) California?s Relay Service at 711 Email: contact.center@dfeh.ca.gov August 28, 2019 RE: Notice of Filing of Discrimination Complaint DFEH Matter Number: 201908-07313423 Right to Sue: Fermino Kasowitz Benson Torres LLP To All Respondent(s): Enclosed is a copy of a complaint of discrimination that has been filed with the Department of Fair Employment and Housing (DFEH) in accordance with Government Code section 12960. This constitutes service of the complaint pursuant to Government Code section 12962. The complainant has requested an authorization to file a lawsuit. This case is not being investigated by DFEH and is being closed immediately. A copy of the Notice of Case Closure and Right to Sue is enclosed for your records. Please refer to the attached complaint for a list of all respondent(s) and their contact information. No response to DFEH is requested or required. Sincerely, Department of Fair Employment and Housing GAVIN NEWSOM GOVERNOR ?t a DEPARTMENT OF FAIR EMPLOYMENT 8. HOUSING . .9 221B Kausen Drive, Suite 100 Elk Grove CAI 95758 - (800) 884-1684 (Voice) (800) 700-2320 (TTY) California's Relay Service at 711 Email: contact.center@dfeh.ca.gov August 28, 2019 David Fermino 148 Lundys Lane San Francisco, California 94110 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 201908-07313423 Right to Sue: Fermino Kasowitz Benson Torres LLP Dear David Fermino, This letter informs you that the above-referenced complaint was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective August 28, 2019 because an immediate Right to Sue notice was requested. DFEH will take no further action on the complaint. This letter is also your Right to Sue notice. According to Government Code section 12965, subdivision a civil action may be brought under the provisions of the Fair Employment and Housing Act against the person, employer, labor organization or employment agency named in the above-referenced complaint. The civil action must be filed within one year from the date of this letter. To obtain a federal Right to Sue notice, you must contact the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier. Sincerely, Department of Fair Employment and Housing COMPLAINT OF EMPLOYMENT DISCRIMINATION BEFORE THE STATE OF CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code, 12900 et seq.) In the Matter of the Complaint of David Fermino DFEH No. 201908-07313423 Complainant, vs. Kasowitz Benson Torres LLP 101 California Street, Suite 3000 San Francisco, California 94111 Respondents 1. Respondent Kasowitz Benson Torres LLP is an employer subject to suit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.). 2. Complainant David Fermino, resides in the City of San Francisco State of California. 3. Complainant alleges that on or about August 28, 2018, respondent took the following adverse actions: Complainant was discriminated against because of complainant's race, sexual orientation and as a result of the discrimination was terminated, denied any employment benefit or privilege, other, denied work opportunities or assignments. Additional Complaint Details: Claimant David Fermino Fermino") is a 58- year-old, openly gay, African American attorney who worked at Kasowitz Benson Torres LLP (?Kasowitz? or ?the Firm") in San Francisco, California from June 10, 2017 until his termination on August 28, 2018. Mr. Fermino has over twenty??ve years of experience representing individuals and corporate clients in white-collar and other types of criminal and regulatory matters. He has a stellar reputation within the California legal community and has served as the Chair of the California Judicial Nominee Evaluation Commission for the State Bar of California. Mr. Fermino was awarded the prestigious California Association of Black Lawyers? 2019 Loren D. Miller Lawyer of the Year Award. -1- Complaint DFEH No. 201908-07313423 Date Filed: August 28, 2019 Mr. Fermino began negotiating with Kasowitz to join the Firm?s San Francisco of?ce in or about the late fall of 2016. Ultimately, the parties agreed that Mr. Fermino would join the Firm as a non-equity partner and be paid a guaranteed salary of $400,000 per year for the time he worked in 2017 and 2018. The parties further agreed that he would not be paid pursuant to the partnership ?points? formula until he made a capital contribution. The offer letter, executed by both parties, reduced this agreement to writing: ?[You will] join [Kasowitz] as a Partner with full rights and responsibilities under the Partnership Agreement, and its resolutions and procedures except as modified herein. Your annualized base compensation of $400,000 will be prorated for the balance of the 2017 calendar year, and remain at $400,000 for the 2018 calendar year. In January 2019, you will be expected to make a capital contribution in the amount of $50,000.? The offer letter contains no other language regarding the guaranteed salary and no reference to the salary being contingent upon performance or any other metrics. Mr. Fermino was the only African American and openly gay partner in the San Francisco office. When Mr. Fermino joined the Firm, he was one of only two African American partners, out of over 100 partners ?rmwide. At the time of his termination, the Firm employed only four African American partners. Mr. Fermino is informed and believes that throughout his employment, the Firm employed less than five openly gay partners. Kasowitz treated Mr. Fermino differently than other white and straight partners. In particular, Kasowitz did not provide Mr. Fermino with the same business development opportunities that it provided to other white and straight partners. For example, during the negotiation process, Mr. Fermino was promised that after he was hired, the Firm would hold a marketing event in San Francisco to showcase and publicize his practice area. However, Kasowitz never planned the marketing event. Only after Mr. Fermino approached the Managing Partner of the San Francisco office, did the Firm suggest that Mr. Fermino?s marketing event be combined with a previously scheduled marketing event for Daniel Saunders, a white, straight partner in Los Angeles who was hired around the same time as Mr. Fermino. By combining the marketing event with an event planned for another partner and holding it in Los Angeles, the event offered far less professional value than Mr. Fermino would have realized had the event been held solely for him in San Francisco, where his client base was centered. On another occasion, Kasowitz excluded Mr. Fermino from attending a black-tie event in San Francisco celebrating African American in-house attorneys and -2- Complaint DFEH No. 20790807313423 Date Filed: August 28, 2019 partners where Kasowitz had purchased a table. Not only was excluding Mr. Fermino nonsensical, but it denied him important business development opportunities. Throughout his employment, Mr. Fermino overheard racially-motivated comments. For example, one of the leaders of the San Francisco office commented to Mr. Fermino that it was ?obvious? that an African American associate in the Silicon Valleyoffice who was recently promoted to partner was only promoted because ?he?s black.? Instead of being properly paid one-twelfth of his set annual wages for services performed on a basis as required by California Labor Code section 204 (and withholding federal taxes and depositing payroll taxes pursuant to IRS Regulations), Mr. Fermino was improperly paid his wages through the partnership ?draw? system. The draw system was intended to compensate partners whose share of partnership proceeds were paid in installments over the course of the year and then "trued up" pursuant to a point system at the end of the year. Instead of providing Mr. Fermino with an IRS Form noting tax withholding on wages earned and payroll taxes deposited by the Firm, Kasowitz supplied Mr. Fermino with an IRS Form K-1, which should only be used for reporting the distributive share of a partnership income. Until March 2018, Kasowitz paid Mr. Fermino a "draw? of $20,000 per month (which, multiplied by 12 would have amounted to $240,000 annually) and was told that he would be ?trued up? to $400,000 at the end of the year. In March 2018, Kasowitz made the unilateral decision to reduce the payment to $10,000 per month, which resulted in the Firm falling far behind its contractual promise to pay Mr. Fermino $400,000 per year. During the course of 2018, the Firm reneged on numerous promises to assist Mr. Fermino in developing business and supplying him with legal work. During this same time, Mr. Fermino lost a piece of business that he had anticipated would generate much of his revenue in 2018 due to circumstances completely beyond his control. On August 28, 2018, Kasowitz terminated Mr. Fermino?s employment without ever talking to him about his revenue generation, options for servicing existing clients, alternative sources of revenue generation, or even the possibility that he would be terminated. At that point, the Firm owed Mr. Fermino over $160,000 in unpaid wages for 2017 and 2018. Instead of paying the balance owed to Mr. Fermino, Kasowitz offered Mr. Fermino a severance package of $10,000 in exchange for a full release of claims against the Firm. Mr. Fermino and other colleagues were shocked at the manner in which his termination was handled, without any discussion, warning, or effort to help him remedy the issues that Kasowitz later claimed it was concerned about. Mr. Fermino is informed and believes that similarly performing white and straight partners were -3- Complaint DFEH No. 201908-07313423 Date Filed: August 28, 2019 never terminated in a similarly disrespectful and professionally damaging manner. For example, Mr. Fermino is informed and believes that a white, straight male partner with a contract similar to Mr. Fermino's and similar revenue generation issues was able to remain employed at the Firm and allowed to work toward rectifying his revenue generation and performance. Indeed, this individual was ultimately promoted to managing partner of the Firm?s Silicon Valley office. In stark contrast, Kasowitz summarily terminated Mr. Fermino without any discussion or opportunity to re?negotiate his employment and Kasowitz refused to pay him amounts owed pursuant to the employment agreement. Mr. Fermino's race and sexual orientation were substantial motivating factors in Kasowitz?s decision to terminate his employment and deny him the bene?ts guaranteed under the employment agreement. Kasowitz?s discriminatory treatment of Mr. Fermino based on his race and sexual orientation violated the Fair Employment and Housing Act and California common law. In addition, Kasowitz?s mischaracterization of Mr. Fermino as an equity partner instead of an employee for purposes of paying him by ?draw" with an IRS Form K-1 and failing to pay him his agreed upon salary in equal installments with an IRS Form W-2 violated the California Labor Code. Kasowitz also failed to timely pay Mr. Fermino for his wages due and owing in violation of California Labor Code section 203. -4- Complaint DFEH No. 201908-07313423 Date Filed: August 28, 2019 VERIFICATION l, Erin M. Pressman, am the Attorney in the above-entitled complaint. I have read the foregoing complaint and know the contents thereof. The matters alleged are based on information and belief, which I believe to be true. On August 28, 2019, I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. San Francisco, CA -5- ?Complaint DFEH No. 201908-W313423 Date Filed: August 28, 2019 PROOF OF SERVICE I, Kimberly Falt, declare: I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is One California, Suite 1250, San Francisco, CA 94111. September 16, 2019, I caused the following documents to be served: 0 Notice of Filing of Discrimination Complaint; Right to Sue Complaint of Employment Discrimination Before the State of California Department of Fair Employment and Housing on the following interested parties in this action: Jessica T. Rosenberg Kasowitz Benson Torres LLP 1633 Broadway New York, New York 10019 BY E-MAIL. I e-mailed the following documents to the above addresses. BY U.S. CERTIFIED MAIL. deposited such envelopes in the mail at San Francisco, California. The envelopes were mailed with postage thereon fully prepaid. I am ?readily familiar? with the ?rm?s practice of collection and processing correspondence for mailing. It is deposited with the U.S. postal service on that same day in the ordinary course of business. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Dated: 9/ 16/2019 JiJ?rc- L- (4 kimberly Falt Legal Secretary Outten Golden, LLP mummy.- nu"Imam?1mm" alifornia Street 12th Floor 1Francisco,CA94?H1 701.6 035D [3001 513% H326 Jessica T. Rosenberg Kasowitz Benson Torres LLP 1633 Broadway New York, New York 10019 EXHIBIT Kn sow 1' 1/ 11%: SON 111-15 3 11.1141?) i633 BROADWAY HOUSTON NLW YORK, NEW YORK L08 ANGEELLEEIES AARON H, MARKS Denier DAL: (E: E2) 5023-1 I (3 I a) b063? i 200 AMAiaascapmsowrrz.com FAX: (a I a) 506? 1800 SAN Stuccm VALLEY DC May 5, 2017 David W. Fennino, Esq. 148 Lundys Lane San Francisco, CA 941 10 Re: Offer of Employment Dear David: This letter will confirm our offer to you to join Kasowitz Benson Torres LLP ("the Firm?) as a Partner (?Partner?) in the San Francisco of?ce, and sets forth the language regarding offers of employment that will apply to you as a Partner of the Firm: 1. Our offer is for you to join us as a Partner with full rights and responsibilities under the Partnership Agreement, and its resolutions and procedures except as modified herein. Your annualized base compensation of $400,000 will be prorated for the balance of the 2017 calendar year, and remain at $400,000 for the 2018 calendar year. Should you accept our offer, we will expect you to start on an agreed upon date, conditioned upon the satisfactory review and clearance of your potential conflicts, background and employment veri?cation. 2. In January 2019, you will be expected to make a capital contribution in the amount of $50,000. A summary of the benefits program for partners is attached. You will receive more detailed information on our health welfare programs under separate cover. Your continued eligibility, participation and bene?ts under any policy, program or plan are governed by the provisions of such policy, program or plan, and the Firm reserves the right to withdraw, modify and administer its policies, programs and plans at its discretion and without limitations. If you should have any questions, please contact me or Lisa A. Finn (212.547.1310), Director of I-iuman Resources. We look forward to a mutually rewarding relationship. Sincerely yours, Aaron l-l. Marks A 0 ?w 711? 0 11.. 111-1) Enclosures Agreed and Accepted: David W. Ferminc, Esq, 2017 KASOWITZ BENSON TORRES LLP PARTNER BENEFITS SUMMARY EFFECTIVE 1/1/17 AVAILABLE INSURANCE Partner Rates for Medical, Dental, and Vision Medica! Drama? Effective date ofhire, Vision. Effective (#1116 mom'hfollowing dale ofhire Partner Only Partner+ Spouse Partner+ Child Partner+ Family .3904 23 . 31 393 37.. .. _.32 737 39 -- -- $159676 3131 50 $1,606 21 $1,338.53 332. 83 Vision (EyeMed) $8.08 $15.35 $16.15 $23.75 For CaH?n-nia Empfoyees Only: Kaiser prenuum calculated upon receipt ofdaze of birth Additional Partner Benefits 401(k) Retirement Savings Plan 2017 Annual IRS Limit: $18,000 Effective ofthe month 2017 Annual catch?up contribution: $6,000 g?er date ofkire (Catch-up contribution appiies to those age 50+) Annual pro?t sharing contribution with vesting program Long Term Disability (LTD) Voluntai Supplemental You may purchase amounts in $10,000 units, to an overall maximum (effective 30 days of the lesser of 5x your annual base salary or $500,000. after date of hire) THIS 18 AS AN OVERVIEW. 013? THIS PLANS ARE IN 'l?l-ilf-I HR