United States District Court, S.D. New York
OPINION & ORDER
RICHARD J. SULLIVAN. District Judge
Court is in receipt of motions by: (1) non-party Legal
Momentum ("LM") to assert a charging lien pursuant
to N.Y. Judicial Law § 475 (Doc. No. 52) and to
permanently redact exhibit seven of its supporting
declaration (Doc. No. 55; see also Doc. No. 54-7),
and (2) Plaintiff Sharon Sellick to permanently redact
certain references in her opposition brief that detail the
terms of her contemplated confidential settlement with
Defendant (Doc. No. 65). For the reasons set forth below,
LM's charging lien motion is granted as to a fifteen (15)
percent pro rata share of the attorney's fees collected
out of Plaintiff s settlement. The parties" motions to
redact are also granted.
began working for Defendant Consolidated Edison Company of
New York, Inc. ("Con Ed" or “Defendant")
in 2000. (Doc. No. 63 ("Sellick Dec].") %
3.) On July 18, 2007, Plaintiff retained LM to serve as
counsel in connection with her complaints of unlawful sex
discrimination by Defendant. (Doc. No. 54-1.) Under the terms
of Plaintiff s retainer agreement with LM, LM agreed to
represent Plaintiff in proceedings before the Equal
Employment Opportunity Commission ("EEOC").
(Id. ¶ 3.) Plaintiff also promised to assign a
court award of attorney's fees to LM and to not accept a
settlement for her claims "unless it makes some
provision for [LM's] costs and attorney's
fees.'" (Id. ¶ 7-8.)
acknowledges that LM "spent considerable time
interviewing witnesses and researching the possibility of
pursuing a broader, systemic case against Con Ed." (Doc.
No. 62 ("Pl. Opp'n") at 6.) In September 2007,
LM filed Plaintiffs EEOC charge, which was amended in
November 2007. (Sellick Decl. ¶ 19.) Although LM
represented Sellick in connection with the EEOC proceedings
that followed (Doc. Nos. 54 ¶ 5. 54-4). Plaintiff also
retained the services of Mariann Wang ("Ms. Wang")
to represent her in August 2009 (Sellick Deck ¶
Since that time, "Ms. Wang has taken the lead in
representing" Plaintiff, although a revolving door"
of various attorneys at LM remained involved in Plaintiffs
representation for the next six years. (Id. 1fl[
25-26; see also Doc. Nos. 54-3, 54-4.) In November
2011, the EEOC issued a probable cause finding concerning the
discrimination claims brought by Plaintiff and eight other
women. (Sellick Deck If 27.) Thereafter, Plaintiff engaged in
a "years-long conciliation process before the
EEOC." along with a private mediation, and Plaintiff
cooperated with an investigation brought by the New York
Attorney General's Office into employment discrimination
by Defendant. (Id. ¶ 27-29.)
August 21, 2015, the EEOC issued its "Notice of Right to
Sue" letter. (Id. J 32.) On November 18, 2015,
LM's representation of Plaintiff was terminated. (Doc.
No. 54-8.) That same day, Plaintiff filed suit in this Court
alleging unlawful discrimination and retaliation by Defendant
in violation of Title VII, 42 U.S.C. § 2000e, et
seq. and the New York City Human Rights Law, N.Y.C.
Admin. Code § 8-107, et seq. (Doc. No. 1.)
Since that date, only two attorneys have entered notices of
appearance on Plaintiffs behalf- Ms. Wang and her associate,
Alice G. Reiter, of the law firm Cuti Heckler Wang LLP.
(Id. at 22; see also Doc. Nos. 2, 5.)
several months of discovery, the Court granted the
parties' May 11, 2016 request to stay all discovery
deadlines in order to facilitate settlement negotiations.
(Doc. Nos. 32, 33.) On May 23, 2016, the parties submitted a
joint letter indicating that they were "close to a
settlement" and requesting that the discovery stay
continue. (Doc. No. 34.) However, Plaintiff and Defendant
also indicated that "at least one important issue
remains to be resolved involving" Plaintiffs
"former counsel, [LM]." (Id. at 1-2;
see also Doc. No. 54-8.) On May 26, 2016, LM
appeared in this action as an interested party and submitted
a letter regarding its contemplated motion to impose a
charging lien upon any settlement in Plaintiffs favor. (Doc.
No. 36.) On June 6, 2016, the Court held a pre-motion
conference with the parties and LM concerning LM*s
contemplated motion for a charging lien. (Doc. No. 50.)
Court ordered a deadline of June 20, 2016 for LM7s charging
lien motion. (Id. at 54:6-8.) Although LM initially
tiled its motion and accompanying submissions on June 20,
2016 (Doc. Nos. 44, 45, 46), LM submitted an amended charging
lien motion, amended declaration, and amended motion to seal
exhibit seven of its declaration on June 22, 2016 without
seeking leave of the Court (Doc. Nos. 52, 53
("Mem."), 54, 55, 56). Thereafter, Plaintiff filed
a brief opposing the charging lien motion (Doc. No. 62),
along with an ancillary motion to permanently redact a
handful of references in her opposition brief to the terms of
her contemplated confidential settlement with Defendant (Doc.
Nos. 65, 66, 67). On July 22, 2016, Defendant filed a brief
opposing the charging lien motion. (Doc. No. 68 ("Def.
Opp'n").) Although the Court ordered LM to file a
single reply brief by July 26, 2016 addressing "both
Plaintiffs and Defendant's responses" (Doc. No. 61
at 2), LM tiled a declaration and brief responding to
Plaintiffs opposition on July 26, 2017 (Doc. Nos. 70, 71), a
brief responding to Defendant's opposition a day later,
on July 27, 2017, and a declaration in further support of the
motion on July 28, 2017 (Doc. Nos. 72, 73). Notwithstanding
LM's repeated failures to comply with the Court's
scheduling orders, the Court has considered LM's late
submissions on this motion.
Court first turns to LM's motion to impose a charging
lien on the proceeds of any settlement in this case. New York
Judiciary Law Section 475 ("Section 475")
"governs attorneys" charging liens in federal
courts sitting in New York." Itar-Tass Russ. News
Agency v. Russ. Kurier, Inc., 140 F.3d 442, 448 (2d Cir.
1998). "A charging lien is a security
interest in the favorable result of litigation, giving the
attorney [an] equitable ownership interest in the
client's cause of action and ensuring that the attorney
can collect his fee from the fund he has created for that
purpose on behalf of the client." Chamow v.
Charnow, 134 A.D.3d 875, 876 (2d Dep't 2015)
(citation omitted). The charging lien exists "[f]rom the
commencement of an action, special or other proceeding in any
court or before any state, municipal or federal department,
except a department of labor." N.Y. Judiciary Law §
475, but it "only attaches when proceeds from an
identifiable fund are created by an attorney's own
efforts in the action or proceeding, " In re Air
Crash at Belle Harbor, No. 02-cv-4758 (RWS), 2006 WL
3247675, at *2 (S.D.N.Y. Nov. 9, 2006).
Second Circuit and other courts applying New York law have
made clear, a charging lien "is for the benefit of an
'attorney of record' only." Itar-Tass,
140 F.3d at 450 (collecting cases). Thus, "before an
attorney can be granted a lien pursuant to [Section 475], he
or she must have appeared for the client by
'participating in a legal proceeding on the client's
behalf or by having his [or her] name affixed to the
pleadings, motions, records, briefs, or other papers
submitted in the matter.'" Picciolo v.
State, 287 A.D.2d 721, 722 (2d Dep't 2001) (quoting
Cataldo v. Budget Rent A Car Corp., 226 A.D.2d 574.
574 (2d Dep't 1996)). An attorney of record who has been
discharged by her client "maintains . . . her right to
enforce the statutory lien, " so long as her
"representation terminates upon mutual consent, and
there has been no misconduct, no discharge for just cause,
and no unjustified abandonment by the attorney."
CPMI, Inc. v. Kolaj, 137 A.D.3d 953, 955-56 (2d
Dep't 2016) (citation omitted); accord Klein v.
Eubank, 87 N.Y.2d 459, 464 (1996). Thus, "an
attorney need not be counsel of record at the time the
judgment or settlement fund is created in order to be
entitled to the lien afforded by Judiciary Law §
475." Klein, 87 N.Y.2d at 462.
maintains that it is entitled to assert a charging lien in
this action because of its work on Plaintiffs behalf before
the EEOC and based on the retainer agreement Plaintiff
entered in connection with that representation in 2007. (Mem.
10-17.) While the Court agrees that LM is entitled to a
charging lien, it reaches that conclusion for reasons other
than those raised by LM in its principal brief.
repeatedly asserts that it is entitled to fees because its
former client, Ms. Sellick, is a "prevailing party"
under Title VII. (See, e.g., Mem. 12; id.
at 10 (citing Watson v. E.S. Sutton, Inc., No.
02-cv-2739 (THK), 2006 WL 6570643, at *1 (S.D.N.Y. Aug. 11,
2006), report and recommendation adopted as
modified, No. 02-cv-2739 (KMW), 2007 WL 2245432
(S.D.N.Y. Aug. 3, 2007)).) This argument reflects a
fundamental misapprehension of law. Under Title VII,
"the court, in its discretion, may allow the
prevailing party... a reasonable attorney's fee
(including expert fees) as part of the costs." 42 U.S.C.
§ 2000e-5(k). However, as the plain language of the
statute makes clear, "the person who is entitled to the
award of [attorney's] fees is the prevailing party rather
than the lawyer." Valley Disposal Inc. v. Cent. Vt.
Solid Waste Mgmt. Dist., 113 F.3d 357, 361 (2d Cir.
1997) (internal quotation marks omitted); see also Brown
v. Gen. Motors Corp., Chevrolet Div., 722 F.2d 1009.
1011 (2d Cir. 1983) (attorney lacked standing to move for
fees "in his own name as the real party in
interest"); cf. Watson, 2006 WL 6570643, at *2
(plaintiff, at close of jury trial in which she prevailed,
moved for fees under Title VII "oh behalf of
each of the three firms which represented
her"). Accordingly, LM"s argument that it is
entitled to fees based on Title VII must be rejected, since
it is Ms. Sellick - and not her former lawyers - who has
standing to move under that provision, and she has not done
importantly, the law is clear that only a "prevailing
party" is entitled to fees under Title VII. See
Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep V
of Health & Human Res.,532 U.S. 598 (2001).
Thus, "plaintiffs are only eligible for [attorney's]
fees if they 'achieve some material alteration of the
legal relationship' between them and their adversaries,
and that change bears a 'judicial
imprimatur.'" Perez v. Westchester Cty. Dep t of
Corr.,587 F.3d 143, 149 (2d Cir. 2009) (emphasis in
original) (quoting Roberson v. Giuliani, 346 F.3d
75, 79-80 (2d Cir. 2003)). Here, there is absolutely no
evidence that the parties intended this Court to
"judicially sanction" their settlement. See
Id. at 151; see also Sanchez ex rel. Sanchez v.
Patterson, 328 F.App'x 689, 691 (2d Cir. 2009)
(plaintiff was not "prevailing party" where
district judge "did not enter a judgment on the merits,
a consent decree, or an order of dismissal in which it
retained jurisdiction or incorporated the terms of a
settlement agreement"). To the contrary, this Court has
not had any involvement in Plaintiffs and
Defendant's resolution of the Title VII discrimination
claim, hi fact, Defendant represents, and Plaintiff does not
appear to dispute, that the parties "intend to enter
into an ordinary private settlement without the Court's
approval or involvement in the settlement's terms."
(Def. Opp'n 16); see also United States v. J15-98
Park Lane S, No. 10-cv-3748 (BMC), 2012 WL 3861221, at
*5 (E.D.N.Y. Sept. 5, 2012) (plaintiff was not a prevailing
party where court was not involved in parties' settlement
discussions and did not "make any changes to the terms
of their settlement"), aff'd sub nam. United
Slates v. Capital Stack Fund, LLC, 543 F.App'x 1 7
(2d Cir. 2013); cf. Perez, 587 F.3d at 148-49
(private settlement bore judicial imprimatur where district
judge "played an integral role in the resolution of the
suit, " oversaw settlement conferences, "advised
the parties on how they should expect the law to come
out." and "reviewed and revised the settlement
agreement with the parties, " among other things). Thus,
even assuming that LM somehow had standing to move for fees
under Title VII, the application would almost certainly fail
because Plaintiff is not a "prevailing party." LM
also relies heavily on a retainer agreement executed in
connection with its representation of Plaintiff before the
EEOC. (Mem. 8-9, 12; Doc. No. 70 at 6-7.) It is true that
Plaintiff signed a retainer agreement with LM in 2007 that
includes a provision "assigning] any award of
attorney[s] fees to [LM]" and an agreement by Plaintiff
"not to accept a settlement" for her claims
"unless it makes some provision for costs and
[attorney's] fees." (Doc. No. 54-1 ff 7-8.) But the
law is well settled that the existence of a retainer
agreement between an attorney and client "is
insufficient to create a charging lien." Louima v.
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