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Grewal v. Cuneo Gilbert & Laduca LLP

United States District Court, S.D. New York

March 31, 2017



          RONNIE ABRAMS, United States District Judge.

         Plaintiff Preetpal Grewal brings this action against her former employer, Cuneo Gilbert & LaDuca LLP (“CGL”), asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and hostile work environment on the basis of her national origin. Before the Court are the parties' cross-motions for summary judgment and CGL's motion to strike Grewal's reply briefs and other reply submissions. For the reasons set forth below, Grewal's motion for summary judgment is denied, CGL's motion for summary judgment is granted in part and denied in part, and CGL's motion to strike is denied.


         A. Grewal's Employment Agreement

         Preetpal Grewal, who was born in India, is an attorney licensed to practice law in India and New York. See Pl. 56.1 ¶ 2. CGL is a law firm based in Washington, D.C. Def. 56.1 ¶ 1.

         On June 17, 2008, Jonathan W. Cuneo, a partner at CGL, e-mailed Grewal to offer her a position at CGL. See Pl. 56.1 ¶ 10; Def. 56.1 ¶ 1; Pl. MSJ Ex. 6. Grewal responded that evening, expressing enthusiasm and seeking further information about her potential role at the firm. See Pl. 56.1 ¶¶ 10-11; Pl. MSJ Ex. 6. Cuneo responded the next day, clarifying several terms of the offer. See Pl. 56.1 ¶¶ 12-14; Pl. MSJ Ex. 6. Among other things, Cuneo's response explained that “[a]ll our employees are legally employees at will.” Pl. MSJ Ex. 6; see also Def. 56.1 ¶ 44. In response to Grewal's question as to whether she would receive “a bonus based on the number of hours worked, ” Cuneo stated, “The ‘bonus' is an entitlement (so not really a bonus) based on your relative value of contribution to a case (based on lodestar) when and if, and only if, we get paid.” Pl. MSJ Ex. 6.In response to Grewal's questions regarding whether she would “be permitted/expected to develop clients for the firm” and the extent to which “client development activities” would be compensated, Cuneo responded:

You would be compensated for this activity hourly, plus 10 percent of the work you originate plus twelve percent of your lodestar contribution. For example, on immigration you brought in and did exclusively you would get 22 percent, plus $60 per hour.

Pl. MSJ Ex. 6; see Pl. 56.1 ¶ 13. On June 18, 2008, Grewal accepted Cuneo's offer. See Pl. 56.1 ¶ 15; Pl. MSJ Ex. 6.

         B. Grewal's Work at CGL

         On June 30, 2008, Grewal joined CGL. Pl. 56.1 ¶ 17. As discussed below, Grewal claims that she was denied lodestar or origination compensation for her work on several matters during her time at the firm.

         1. In re Air Cargo

         Soon after joining CGL, Grewal began working on In re Air Cargo Shipping Services Litigation, a global antitrust action brought against approximately thirty airlines for allegedly fixing the prices of fuel and other surcharges. Grewal claims that she attempted to identify international clients as potential claimants in this dispute. See Pl. 56.1 ¶ 23; Pl. MSJ Ex. 16 (“Cuneo Dep. Tr.”) at 20:8-18; Cuneo Decl. ¶ 7. To that end, Grewal made at least three trips to India, where she signed retainer agreements with approximately forty businesses. See Pl. 56.1 ¶¶ 26, 28-29; Pl. MSJ Exs. 9, 17. According to Cuneo, however, CGL decided not to pursue claims on behalf of these businesses because “Grewal had asked to avoid further trips to India” and, as a result, “CGL could not effectively handle the claims.” Cuneo Decl. ¶ 10(d). Cuneo claims that “CGL has not received any fees in connection with cases related to clients located in [India].” Cuneo Decl. ¶ 22; see also Def. Resp. to Pl. 56.1 ¶¶ 23, 28-29.

         In connection with the Air Cargo litigation, Grewal claims that she performed document review work that resulted in fees to CGL. See Pl. 56.1 ¶¶ 49-50. Grewal claims that she “brought” this work to the firm after she “signed the international retainers” and spoke to Brian Ratner, a partner at Hausfeld LLP, “about getting some work to the firm.” Id. ¶¶ 49-50. On May 3, 2011, CGL submitted a fee application in In re Air Cargo Shipping Services Antitrust Litigation (No. 16-MD-1775), a multidistrict litigation in the United States District Court for the Eastern District of New York, requesting $723, 393.75 in lodestar compensation and $66, 918.21 in unreimbursed expenses. See SAC Ex. 3; Pl. 56.1 ¶ 50. The application indicates that Grewal worked 444 hours on the matter, for a lodestar total of $154, 840. SAC Ex. 3. Grewal claims that she is entitled to origination compensation for this work. See Pl. 56.1 ¶ 50. CGL disagrees, arguing that the firm “obtained that work because Cuneo had a long-standing friendship and professional relationship with Michael Hausfeld . . . and had referred a client to Hausfeld's firm.” Def. Resp. to Pl. 56.1 ¶ 50.

         2. In re Automotive Parts Antitrust Litigation

         Grewal next claims that she originated several cases brought against automotive parts manufacturers. See Pl. 56.1 ¶¶ 41, 47. On or about September 28, 2010, Grewal circulated a memorandum, which relied on news articles of investigations by antitrust authorities in the United States and Europe, discussing possible claims against manufacturers for fixing the prices of automotive electrical distribution systems, sometimes known as “wire harness” products. See Pl. 56.1 ¶ 41; Pl. MSJ Ex. 31. In subsequent e-mails to Cuneo, Grewal proposed several potential plaintiffs, including one business located in India. See Pl. MSJ Ex. 32. According to CGL, however, Grewal “failed to obtain a client to serve as a plaintiff.” Def. Resp. to Pl. 56.1 ¶ 41.

         On October 11, 2011, approximately one year after Grewal circulated the memorandum on potential claims related to the wire harness price-fixing, Grewal e-mailed Cuneo asking him to confirm “that if someone brings an idea for a case to the table, and such a case is filed, one is entitled to 10 percent of the attorneys['] fees.” Pl. MSJ Ex. 31; see Pl. 56.1 ¶ 42. Cuneo immediately forwarded Grewal's e-mail to CGL's other principals, Charles LaDuca and Pamela Gilbert, with the message, “Clearly relates to wire harness.” Pl. MSJ Ex. 31.

         Grewal claims that CGL thereafter brought actions against automotive parts manufacturers “on the very theory” she proposed. Pl. 56.1 ¶ 43. On October 27, 2011, for example, one of Grewal's colleagues e-mailed Cuneo and others indicating that CGL had “just filed a wire harness complaint” on behalf of Martens Cars of Washington in the United States District Court for the District of Columbia. See Pl. MSJ Ex. 32. According to an internal memorandum dated April 6, 2012, CGL hosted an all-day meeting with counsel in “the wire harness case” on April 2, 2012. See Def. MSJ Ex. 4. This memorandum indicates that, in a conversation with Cuneo following the meeting, Grewal became “heated” and “began to cry, ” in part because she “felt that she had been excluded from the Wire Harness case, ” which, in her view, she “had brought” to the firm. Id. The memorandum explains that, in response, Cuneo told Grewal that she “had been awarded 5 percent of the fee.” Id.; see also Id. (“I told her . . . she had gotten a 5% credit on wire harness and she was welcome to work on it.”).

         In addition to the wire harness case, CGL ultimately filed more than thirty separate actions on behalf of franchised auto dealers for fixing the prices of various automotive parts. See Def. 56.1 ¶ 48; Def. Resp. to Pl. 56.1 ¶ 43. At least some of these actions were consolidated as In re Automotive Parts Antitrust Litigation and transferred to the United States District Court for the Eastern District of Michigan. See Pl. MSJ Exs. 33-34. On December 7, 2015, the district court awarded the auto dealers in this action $18, 500, 168 in attorneys' fees, to be paid on a pro rata basis from settlement funds available for each settlement before the court, $1, 661, 945.95 in past litigation expenses, and $2, 947, 395 in future litigation expenses. See Pl. MSJ Ex. 34; Pl. 56.1 ¶ 46.

         Grewal claims that she originated the automotive parts cases but received no origination compensation. See Pl. 56.1 ¶¶ 41, 47. CGL responds that Grewal was not entitled to origination credit for any of these cases because she did not obtain a client to serve as a plaintiff. See Def. Resp. to Pl. 56.1 ¶¶ 43-46. According to Cuneo, “Grewal was not responsible for originating those cases because she was never retained by any auto dealer, a prerequisite to qualify for origination pay.” Cuneo Decl. ¶ 20.

         3. Mortgage Modification Cases

         Grewal next claims that she worked on several “mortgage cases, ” which appear to be actions filed against banks for illegally modifying mortgages. See Pl. 56.1 ¶¶ 51-58.[2] As part of her work on these cases, Grewal claims that she also “originated” the “trial payment plan, ” which she describes as a standardized form given to mortgagors to modify their mortgages. Pl. 56.1 ¶ 51; see also Pl. MSJ Exs. 36, 38. With respect to one of the mortgage cases, Grewal claims that a district court awarded CGL attorneys' fees and that she “has not received her percentages.” Pl. 56.1 ¶ 58; see Pl. MSJ Ex. 41. CGL agrees that Grewal “worked on various aspects of the mortgage cases” but denies that Grewal brought these cases to the firm. See Def. Resp. to Pl. 56.1 ¶¶ 53-54. CGL asserts that Grewal is not entitled to any origination compensation for her work because she did not obtain clients to serve as plaintiffs. See Id. ¶¶ 51, 53-54. CGL further claims that the mortgage modification cases “did not generate any fee awards or yielded awards too small to pay compensation to any . . . attorneys who worked on that litigation.” Def. 56.1 ¶ 50; see also Id. ¶ 51.

         4. Sony Optical Disk Drive Case

         Grewal next asserts that she “originated” the “Sony Optical Disk Drive case.” Pl. 56.1 ¶ 48. In support of this claim, Grewal points to a September 8, 2010 e-mail she sent to Barbara Darne, in which Grewal states that “[t]he Sony Optical case has been filed in CA.” Pl. MSJ Ex. 35. CGL denies that “the firm ever filed such a case against Sony.” Def. Resp. to Pl. 56.1 ¶ 48. Cuneo's declaration states that “CGL had little, if any, internal discussion of this case, ” and “Grewal did not draft a complaint and procure a client to serve as a plaintiff.” Cuneo Decl. ¶ 10(e).

         5. Servicemembers Class Action

         Grewal claims that she also drafted a class action complaint on behalf of several servicemembers, alleging violations of the Servicemembers Civil Relief Act. Pl. 56.1 ¶ 61; Pl. MSJ Ex. 45. Grewal claims that she was told that CGL would not pursue this claim. Pl. 56.1 ¶ 62. CGL responds that it did not pursue claims on behalf of servicemembers after determining that these claims were not well-suited for class action litigation. See Def. Resp. to Pl. 56.1 ¶ 62; see also Cuneo Decl. ¶ 10(b).

         6. Shaw Laminate Case

         Grewal next claims that she proposed bringing a products liability case against Shaw Industries, Inc., a manufacturer of laminate flooring. See Pl. 56.1 ¶¶ 63-65; Pl. MSJ Ex. 46. Grewal prepared a memorandum on possible claims that could be asserted against Shaw Industries and drafted a proposed complaint. See Pl. 56.1 ¶ 63; Pl. MSJ Ex. 46. CGL did not pursue this case because, according to Cuneo, the firm “did not believe the case was strong enough on the merits.” Cuneo Decl. ¶ 10(a); see also Def. Resp. to Pl. 56.1 ¶¶ 64-65.

         7. Hip Replacement Cases

         Grewal asserts that she “brought to the firm” product defect cases against various manufacturers of hip replacement systems. Pl. 56.1 ¶ 66; Pl. MSJ Ex. 48. Grewal explains that LaDuca advised her that claims of this type could only be brought as individual actions, rather than as class actions. Pl. 56.1 ¶ 66.

         8. Overdraft Fee Cases

         Finally, Grewal claims that she “originated” cases against financial institutions for charging excessive overdraft fees. Pl. 56.1 ¶¶ 67-69. Grewal supports this claim by noting that she and another CGL attorney, Matthew Weiner, had several phone conversations about the possibility of bringing such claims. See Id. ¶ 67. Grewal claims that, after she left the firm, CGL served as interim co-lead counsel in consolidated litigation against HSBC Bank USA, N.A., which challenged HSBC's overdraft practices and policies. See Pl. 56.1 ¶ 68. CGL denies that Grewal originated any case related to overdraft fees against HSBC. See Def. Resp. to Pl. 56.1 ¶ 67-68. Cuneo's declaration indicates that the firm did not participate in litigation against HSBC until “long after Grewal had left” the firm and did not pursue the legal theory Grewal had proposed. Cuneo Decl. ¶ 18.

         C. Statements Regarding Grewal's National Origin

         Grewal claims that she was “harass[ed]” on the basis of her national origin while working at CGL. See Pl. 56.1 ¶¶ 73, 83. Grewal identifies two instances in which she claims to have experienced such harassment. The first occurred at an internal litigation meeting in the summer of 2011. Pl. 56.1 ¶ 73; Def. 56.1 ¶ 8. At this meeting, Grewal asserts that Cuneo remarked that “we don't take this girl seriously, ” “we just treat her as a foreigner, ” and “we should be ashamed of ourselves.” Pl. 56.1 ¶ 73; see also Grewal Dep. Tr. at 54:7. At his deposition, Cuneo testified that he “remember[ed] saying words that were like that.” Cuneo Dep. Tr. at 63:20-21. Cuneo testified, however, that he made these statements shortly after a meeting with attorneys from other firms, at which Grewal had made a “very good” point that was “not taken seriously enough” by a “group of largely white males.” Cuneo Dep. Tr. at 67:21-68:2; see also Def. 56.1 ¶¶ 7-8. Cuneo explained that he was “appalled” by the conduct of the other attorneys, and related this experience to members of his own firm to explain that “racism, sexism, nativism, are not dead in America, and it's something that even among educated people, we have to combat, period.” Cuneo Dep. Tr. at 68:4-10. Thus, Cuneo testified, “I said those words . . . to identify with [Grewal] and to express solidarity with [her].” Id. at 64:2-4; see also Id. at 64:21-65:8.

         Following Cuneo's comments at the firm meeting, Grewal sent Cuneo an e-mail thanking him “for all the wonderful things [he] said at the meeting today.” Def. MSJ Ex. 19; see also Def. 56.1 ¶ 9. Asked why she thanked Cuneo, Grewal testified at her deposition that she wanted to “acknowledge, you know, that they had done something good for me, ” Grewal Dep. Tr. at 55:25- 56:2, and that “they said something nice in that meeting for me, and it really felt good, ” id. at 56:33-23. Grewal further testified that Cuneo's statement “acknowledged that he should take me seriously, which is a big thing for me, ” and “acknowledged that I have ability.” Id. at 57:5-10.

         Several other CGL employees provided testimony regarding Cuneo's statements at the meeting. Pamela Gilbert, for example, testified that she recalled Cuneo “wanting to use something that occurred with [Grewal] . . . in a meeting with other attorneys as a teachable moment for all of us to sit back and take stock of how professionals, and particularly professional lawyers, can sometimes mistreat people and not take people seriously just based on either their gender or their age or their nationality.” Pl. MSJ Ex. 57 (“Gilbert Dep. Tr.”) at 44:7-16. Gilbert further testified that Cuneo was “outraged” and “livid, ” finding it “shameful” that, even though Grewal had done “a great job” and “brought up very good points in the meeting, ” her arguments “weren't being taken seriously.” Id. at 45:6-17. LaDuca similarly testified that Cuneo, who was “one of [Grewal's] biggest cheerleaders and supporters, ” was “really upset and protecting [Grewal] and supportive of [her].” LaDuca Dep. Tr. at 21:20-22:7.

         The second incident of alleged harassment occurred while Grewal was meeting with Cuneo and Wiener. Grewal testified that she told Cuneo, “sometimes I feel I am treated as a foreigner.” Grewal Dep. Tr. at 68:10-11. Grewal testified that Wiener then “told [Cuneo] not to say anything.” Id. at 68:19-21. Grewal further testified that, during this conversation, Cuneo told her that “we don't understand your ...

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