United States District Court, S.D. New York
TARRUS L. RICHARDSON, Plaintiff, -
TYSON PRATCHER and RAUDLINE ETIENNE, Defendants
Decided September 27, 2014
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[Copyrighted Material Omitted]
For Tarrus L. Richardson, Plaintiff: Richard L. Brodsky, LEAD ATTORNEY, Richard Brodsky, Esq., White Plains, NY; John Siegal, Samir Kher Ranade, Baker & Hostetler LLP (NYC), New York City, NY; Stuart Evan Kahan, Oxman Tulis Kirkpatrick Whyatt & Geiger, LLP, White Plains, NY.
For Tyson Pratcher, Raudline Etienne, Defendants: Ira Martin Feinberg, LEAD ATTORNEY, Hogan Lovells U.S. LLP (nyc), New York, NY; Theresa M. House, Hogan Lovells U.S. LLP (nyc), New York, NY.
OPINION AND ORDER
John G. Koeltl, United States District Judge.
Tarrus Richardson brings this action against defendants Tyson Pratcher and Raudline Etienne for alleged violations of 42 U.S.C. § 1983, the New York State Constitution, and New York common law. Richardson alleges that Pratcher and Etienne, employees of the Office of the New York State Comptroller (the " OSC" ), retaliated against him because he promoted legislation contrary to the OSC's interests, and thereby violated his rights under the First Amendment of the United States Constitution and article I, sections 8 and 9 of the New York State Constitution. Richardson also claims that the defendants tortiously interfered with his partnership contracts and tortiously interfered with various prospective business relations.
The defendants moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on all causes of action. This Court has jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a). For the reasons explained below, the defendants' motion is granted in part and denied in part.
The standard for granting summary judgment is well established. " The court shall grant summary judgment 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). " [T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution."
Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of " informing the district court of the basis for its motion" and identifying the matter that " it believes demonstrate[s] the absence of a genuine issue of material fact."
Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material, and " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and " may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Indian Harbor Ins. Co. v. City of San Diego, 972 F.Supp.2d 634, 637 (S.D.N.Y. 2013).
The parties do not dispute the following facts unless otherwise noted.
Richardson co-founded ICV Capital Partners, LLC (" ICV" ), a New York based private equity firm, with Willie Woods. During the relevant time, Richardson was a managing director of ICV and had an ownership interest in ICV and its operating entities. Woods is a co-founder, a managing director, and the managing member of ICV. American Securities is a partial owner of ICV, and Michael Fisch is the President and CEO of American Securities.
During the relevant time period, Etienne served as the Deputy Comptroller for Pension Investment and Cash Management and as the Chief Investment Officer (" CIO" ) of the New York State Common
Retirement Fund (the " CRF" ). The CRF is the pension fund for New York State employees and participating local governments and private employees. As CIO, Etienne managed the CRF, which required her to approve any investment partners. Pratcher--operating under Etienne's supervision--was the Director of the Emerging Managers Program. The Emerging Managers Program identifies CRF investment opportunities for relatively small and new asset managers. As Director, Pratcher evaluated and monitored prospective and existing Emerging Managers Program investments.
The CRF invests in private equity funds directly and indirectly through " funds-of-funds" managers, who then invest in CRF-approved funds. When Richardson worked at ICV, the CRF indirectly invested in two ICV funds: ICV Partners I, L.P. (" ICV Fund I" ) and ICV Partners II, L.P. (" ICV Fund II" ). In 2009, ICV commenced fundraising for a new fund, ICV Growth Fund (" ICV Growth" ).
The Council of Urban Professionals (" CUP" ) is an organization that advocates for minority and women professionals, and Richardson served as the chair of its board from 2007 to 2010. In the fall of 2009, CUP hired Seth Bryant, who was also a founding member of CUP, to draft legislation promoting CRF investment in minority and women-owned business enterprises (" MWBEs" ). Also in 2009, CUP hired two lobbyists, Jacqueline Williams and Larry Scherer, to promote the same legislation.
On February 22, 2010, New York State Senator Ruth Hassell-Thompson introduced Senate Bill 6888 in the New York Senate, and Assemblywoman Crystal Peoples-Stokes (with others) introduced Assembly Bill 9976 in the New York State Assembly. The bill, collectively referred to here as S.6888, largely tracked language drafted and prepared by CUP members--including Richardson--and its advisors. As introduced, S.6888 contained a provision calling for the OSC to invest at least fifteen percent of externally managed CRF assets with emerging managers (the " fifteen percent provision" ) and another defining emerging managers as MWBEs with a significant presence in New York (the " New York focus provision" ).
Between March 2010 and June 2010, OSC staff participated in a series of meetings with state legislators, CUP representatives, and others regarding S.6888. Internally and in these meetings, OSC staff expressed concern that the fifteen percent provision violated the New York State Constitution and that the New York focus provision risked retaliation by other states. Pratcher and Etienne attended a number of these meetings. (Etienne Dep. Tr. 87, 152-53; Pratcher Dep. Tr. 160-61, 211-14. Richardson did not attend meetings with the OSC, but he discussed the S.6888 negotiations with CUP board members, representatives, and other bill advocates and supported S.6888 through in-person, phone, and e-mail advocacy.
On June 10, 2010, Richardson and Pratcher attended a conference at the Westin New York Hotel in Times Square. During a break in the proceedings, Richardson and Pratcher--who until then had a cordial relationship--ran into each other in a hallway. Although both parties substantially agree that they discussed S.6888,
Pratcher and Richardson provide significantly different accounts of the conversation. (Pratcher Decl. ¶ ¶ 31-34; Richardson Decl. ¶ ¶ 32-36.)
Pratcher claims Richardson stated that he had sufficient votes to pass S.6888 regardless of the Comptroller's opposition, that he would tell the press the Comptroller and Pratcher " did not care about the interests of black people," that he " was responsible for getting [Pratcher] his job," that there would be " retaliation" against the Comptroller for opposing S.6888, that the bill was " bigger" than Pratcher's or the Comptroller's job, and that he did not care what Pratcher " thought, because he had a business to build." (Pratcher Decl. ¶ ¶ 31-33.) Pratcher described Richardson as " agitated," " aggressive," and " hostile" and considered his behavior during the conversation " rude," " unprofessional," " confrontational," and " completely inappropriate." (Pratcher Decl. ¶ ¶ 34, 36.) Pratcher also was surprised that Richardson would display such behavior in a " public setting" with " one of his investors." (Pratcher Decl. ¶ ¶ 34-35.)
Richardson disputes the tone and substance of the conversation. While discussing the bill, Richardson admits he told Pratcher that 2010 " was a unique time for passage of MWBE legislation," that it was " too late for CUP . . . to directly negotiate with him and the OSC," and that the bill was " bigger" than any individual. (Richardson Decl. ¶ ¶ 33-36.) Richardson describes the conversation as " active," but not " loud," " angry," or " argument[ative]." (Richardson Dep. Tr. 236-37.) Richardson maintains that he never referred to S.6888 as " my legislation," that he did not state he would tell the press that the Comptroller and Pratcher did not care about black people, that he did not imply he was responsible for Pratcher's job, and that he did not assert his business was more important than Pratcher's job. (Richardson Decl. ¶ 36.)
Pratcher then returned to the OSC office and informed Joe Dawson and Etienne about his conversation with Richardson. (Etienne Decl. ¶ 28; Pratcher Decl. ¶ 36.) Dawson does not recall the details of his conversation with Pratcher, but remembers that Pratcher " seemed visibly shaken by it." (Dawson Dep. Tr. 148-53.) Dawson later informed Woods, Richardson's employer and partner, that Pratcher and Etienne were upset with Richardson. (Woods Arb. Dep. Tr. 282, 287.)
That same night, Etienne and Richardson attended a gala at the American Museum of Natural History in Manhattan. When Etienne and Richardson left the event, they had a brief conversation about S.6888. Both agree that the conversation was short, that Richardson mentioned he wished the OSC staff had informed him about their concerns earlier, and that they agreed to speak by phone over the weekend. (Etienne Decl. ¶ 29; Richardson Decl. ¶ 39.) However, Etienne and Richardson provide very inconsistent accounts of the tone of the conversation. Etienne claims that she was " taken aback by Richardson's approach and demeanor" and asserts that Richardson followed her after she attempted to end the conversation. (Etienne Decl. ¶ 29.) Richardson recalls the discussion differently. Richardson claims that he first complimented Etienne on her receiving an award at the gala and that the two then had a " quiet conversation" as they left the event. (Richardson Decl. ¶ 39.)
As promised, Richardson called Etienne twice over the June 12-13, 2010, weekend. Both agree that Richardson informed Etienne that the S.6888 bill sponsors had taken responsibility for drafting and amending the bill. (Etienne Decl. ¶ 30; Richardson Decl. ¶ 41.) However, Etienne
also asserts that Richardson stated that it " was too late for the bill to be altered," a statement she believed to be false. (Etienne Decl. ¶ 30; Etienne Dep. Tr. 135-38.) Richardson claims that he only informed Etienne that the bill sponsors had asserted primary responsibility for negotiating with the OSC. (Richardson Decl. ¶ 41.)
At some point after their conversations with Richardson, Etienne and Pratcher separately spoke with Brian Mathis, who was then a CUP board member. Etienne and Pratcher claim that Mathis informed them that the CUP board had agreed to remove the fifteen percent and New York focus provisions. (Etienne Decl. ¶ 31; Pratcher Decl. ¶ 37.) Mathis's recollection of the conversation is hazy. He recalls informing Etienne and Pratcher that he believed CUP members had agreed to remove the two offending provisions, but cannot recall the details of either conversation. (Mathis Dep. Tr. 68-69, 181.) After her conversation with Mathis, Etienne " began to question whether Richardson had been candid with me when he said it was too late to alter the bill." (Etienne Decl. ¶ 31.)
On June 17, Bank of America Merrill Lynch Capital Access Funds (" Bank of America" ) completed its preliminary due diligence review of ICV Growth and recommended that the CRF invest in it. (Siegal Decl. Ex. 23, at OSC030122, OSC030355.) Bank of America also explained that it would embark upon the legal negotiations in the CRF checklist. (Siegal Decl. Ex. 23, at OSC030122, OSC030356.) The same day, Pratcher, on behalf of the OSC, responded to Bank of America by e-mail. He wrote: " Let's discuss tomorrow. We may want to hold off on legal with ICV." (Siegal Decl. Ex. 23, at OSC030122.) In his declaration, Pratcher explained that he decided to put ICV Growth on hold because he had " reservations about the proposed investment" and because " he wanted time to consider Richardson's conduct during our conversation on June 10." (Pratcher Decl. ¶ 39.)
On June 21, 2010, Etienne, Pratcher, the Comptroller, and other OSC staff met with sponsors of S.6888, including Senator Hassell-Thompson. At the meeting, Senator Hassell-Thompson reprimanded the OSC staff for failing to provide--as it had promised--compromise language that the OSC and the S.6888 sponsors could support. (Etienne Decl. ¶ 33; Hassel-Thompson Dep. Tr. 94-95.) Pratcher then stated that he believed the OSC had sent an amended draft of S.6888 to the bill sponsors, but Senator Hassel-Thompson explained that she had not received a draft with compromise language. (Etienne Decl. ¶ 33; Etienne Dep. Tr. 163; Hassel-Thompson Dep. Tr. 94-95.) Etienne assumed that Senator Hassel-Thompson was upset because CUP had promised to, and then failed to, forward the OSC's draft to the bill sponsors. (Etienne Dep. Tr. 160-61; Etienne ¶ 37.) After the meeting, Etienne believed that " Richardson, as head of CUP, was ultimately responsible for whatever failure led to this disconnect between the legislators and OSC." (Etienne Decl. ¶ 37.) Pratcher felt the same. (Pratcher Dep. Tr. 212-17.)
On July 2, 2010, Pratcher had a phone conversation with JoAnn Price, the co-founder and managing partner of Fairview Capital Partners. (Price Decl. ¶ 5.) Fairview had invested in both ICV Funds I and II, (Price Decl. ¶ ¶ 2-3,) and Pratcher describes Price as a " matriarch of emerging managers." (Pratcher Dep. Tr. 246.) During this conversation, Pratcher told Price that Richardson had acted unprofessionally in the June 10 conversation. (Pratcher Dep. Tr. 248-49; Price Decl. ¶ 6.) Pratcher also told Price that his conversation with Richardson " caused [him] to
question [Richardson's] integrity and his judgment" and that it would be difficult for him to recommend that the CRF invest in funds involving Richardson. (Pratcher Dep. Tr. 252-54.) Price then relayed this information to Woods on July 2, 2010. (Price Decl. ¶ ¶ 8-10; Woods Arb. Dep. Tr. 298-301.)
The S.6888 bills sponsors agreed to remove the fifteen percent and New York focus provisions. The New York Senate enacted the bill, as amended, on June 30, 2010, and the Assembly followed suit the next day. See
N.Y. Bill Jacket, 2010 S.B. 6888, Ch. 171. On July 15, 2010, Richardson and Etienne attended the bill signing for S.6888. Etienne claims that Richardson apologized to her at the event, (Etienne Decl. ¶ 38,) which Richardson disputes. (Richardson Decl. ¶ 44.) Richardson asserts that he did not apologize because he had no reason to do so. (Richardson Decl. ¶ 44.)
At Woods's invitation, Pratcher and Woods met on July 19, 2010; Dawson also attended this meeting. (Pratcher Decl. ¶ 46; Woods Decl. ¶ 6; Woods Arb. Dep. Tr. 343.) Woods and Pratcher agree that they discussed Pratcher's frustration with Richardson. (Pratcher Decl. ¶ ¶ 46-55; Woods Decl. ¶ ¶ 7-8.) According to Woods, Pratcher asked: " How's [Richardson] doing his job and doing all this legislation? How's he effective at the firm?" Pratcher informed Woods about the " series of issues" that the OSC had with Richardson concerning S.6888 and stated that it would be " tough for [the OSC] to do business" with a firm that " has somebody like [Richardson] on his team." (Woods Arb. Dep. Tr. 326, 372; Woods Decl. ¶ 7.) Woods then told Pratcher, to his surprise, that Richardson was an at-will employee at ICV. (Pratcher Decl. ¶ 52.) In their respective declarations, Pratcher and Woods declare that Pratcher never suggested that ICV should fire Richardson or that the Comptroller's office would retaliate against ICV for Richardson's actions. (Pratcher Decl. ¶ 53; Woods Decl. ¶ 7; see also Woods Dep. Tr. 117.) At the end of the meeting, Pratcher agreed to arrange a meeting between Woods and Etienne. (Pratcher Decl. ¶ 55; Woods Decl. ¶ 8.)
Woods and Etienne met on July, 23, 2010. (Etienne Decl. ¶ 40; Woods Decl. ¶ 8.) Etienne reprimanded Woods for being unaware of Richardson's June 10 conversations with Pratcher and Etienne and of Richardson's activities regarding S.6888. (Etienne Decl. ¶ 40; Etienne Dep. Tr. 220-21; Woods Decl. ¶ 9; Woods Dep. Tr. 121.) Woods testified that Etienne expressed annoyance that Richardson had " been involved in all of [these] lobbying efforts and not--and doing this job--and [Woods] didn't do anything about it?" (Woods Arb. Dep. Tr. 332.) And, according to Woods, she questioned how Richardson " [c]ould have been involved in an activity . . . against one of [ICV's] largest investors." (Woods Arb. Dep. Tr. at 332-33.) Both Woods and Etienne nonetheless agree that at no point did Etienne state that Woods ...