Argued: Oct. 7, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Howard P. Magaliff, Rich Michaelson Magaliff Moser, LLP, New York, NY, for Plaintiff-Appellant.
Thomas Feher, Thompson Hine LLP, Cleveland, OH, (M. Ryan Pinkston, Chicago, IL, and Robert W. Dremluk, Seyfarth Shaw LLP, NY, on the brief), for Defendant-Appellee.
Damian Schaible (David A. Lewis, on the brief), The Association of the Bar of the City of New York, New York, New York for Amicus Curiae in support of Defendant-Appellee.
Before: LYNCH, CHIN, and CARNEY, Circuit Judges.
GERARD E. LYNCH, Circuit Judge:
This case requires us to decide whether, for purposes of administering the firm's related bankruptcy, New York law treats a dissolved law firm's pending hourly fee matters as its property. Because we conclude that we cannot definitively answer that question without the guidance of the New York Court of Appeals, we certify controlling questions of law to that court.
On October 28, 2008, the partners of the law firm Thelen LLP (" Thelen" ), a registered limited liability partnership governed by California law, voted to dissolve the firm, which was insolvent. In effectuating the dissolution, Thelen's partners adopted the Fourth Amended and Restated Limited Liability Partnership Agreement (the " Fourth Partnership Agreement" ) and a written Plan of Dissolution. The Fourth Partnership Agreement provided that it was governed by California law.
Unlike Thelen's previous partnership agreements, the Fourth Partnership Agreement contained an " Unfinished Business Waiver,"  which provides:
Neither the Partners nor the Partnership shall have any claim or entitlement
to clients, cases or matters ongoing at the time of the dissolution of the Partnership other than the entitlement for collection of amounts due for work performed by the Partners and other Partnership personnel prior to their departure from the Partnership. The provisions of this [section] are intended to expressly waive, opt out of and be in lieu of any rights any Partner or the Partnership may have to " unfinished business" of the Partnership, as the term is defined in Jewel v. Boxer, 156 Cal.App.3d 171 [203 Cal.Rptr. 13] (Cal.App. 1 Dist.1984), or as otherwise might be provided in the absence of this provision through the interpretation of the [California Uniform Partnership Act of 1994, as amended].
The Partnership adopted the waiver with the
hope that [it would] serve as an inducement to encourage Partners to move their clients to other law firms and to move Associates and Staff with them, the effect of which will be to reduce expenses to the Partnership, and to assure that client matters are attended to in the most efficient and effective manner possible, and to help ensure collection of existing accounts receivable and unbilled time with respect to such clients.
Compl. ¶ 35.
Following Thelen's dissolution, eleven Thelen partners joined Seyfarth Shaw LLP (" Seyfarth" ), ten in its New York office and one in California. The former partners transferred to Seyfarth unfinished matters ...