United States District Court, S.D. New York
OPINION AND ORDER
ABRAMS, United States District Judge.
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.
Grewal's Employment Agreement
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.
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.
Grewal's Work at CGL
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.
In re Air Cargo
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.
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.
In re Automotive Parts Antitrust Litigation
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.
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.
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.”).
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.
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.
Mortgage Modification Cases
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. 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.
Sony Optical Disk Drive Case
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.
Servicemembers Class Action
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).
Shaw Laminate Case
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 ¶¶
Hip Replacement Cases
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.
Overdraft Fee Cases
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.
Statements Regarding Grewal's National Origin
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.
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.
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.
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 ...