In re: Coudert Brothers LLP, Debtor. -------------------------------- Development Specialists, Inc., Respondent-Appellant, -------------------------------- K&L Gates LLP et al., Appellants-Respondents, -------------------------------- Akin Gump Strauss Hauer & Feld LLP, et al., Appellants-Respondents.BriefN.Y.June 4, 2014To be Argued by: JOEL M. MILLER (Time Requested: 30 Minutes) CTQ-2013-00010 Court of Appeals of the State of New York IN THE MATTER OF: COUDERT BROTHERS LLP, Debtor. ——————————————————————— DEVELOPMENT SPECIALISTS, INC., Respondent-Appellant. ——————————————————————— GEOFFROY DE FOESTRAETS, JINGZHOU TAO, Defendants, – and – K&L GATES LLP, MORRISON & FOERSTER LLP, Appellants-Respondents. ——————————————————————— JONES DAY, ARENT FOX LLP, DLA PIPER LLP, DORSEY & WHITNEY LLP, DECHERT LLP, SHEPPARD MULLIN RICHTER & HAMPTON, LLP, SCOTT JONES, DUANE MORRIS LLP, AKIN GUMP STRAUSS HAUER & FELD LLP, Appellants-Respondents. ——————————————— On Questions Certified by the United States Court of Appeals for the Second Circuit (USCOA Docket No. 12-4916-bk) JOINT OPPOSITION AND REPLY BRIEF FOR APPELLANTS-RESPONDENTS Of Counsel: JOEL M. MILLER S. CHRISTOPHER PROVENZANO NICHOLAS CUTAIA MILLER & WRUBEL P.C. Attorneys for Appellant-Respondent Dechert LLP 570 Lexington Avenue, 25th Floor New York, New York 10022 Tel.: (212) 336-3500 Fax: (212) 336-3555 (For Further Appearances See Reverse Side of Cover) Date Completed: May 5, 2014 K&L GATES LLP 599 Lexington Avenue New York, New York 10022 Tel.: (212) 536-4891 Fax: (212) 536-3901 Attorneys for Appellants- Respondents Pro Se ARENT FOX LLP 1675 Broadway New York, New York 10019 Tel.: (212) 484-3915 Fax: (212) 484-3990 Appellant-Respondent Pro Se MEISTER SEELIG & FEIN LLP 140 East 45th Street, 19th Floor New York, New York 10017 Tel.: (212) 655-3500 Fax: (212) 655-3535 – and – KRAMON & GRAHAM, P.A. 1 South Street, Suite 2600 Baltimore, Maryland 21202 Tel.: (410) 752-6030 Fax: (410) 539-1269 Attorneys for Appellant-Respondent DLA Piper LLP DORSEY & WHITNEY LLP 51 West 52nd Street, 10th Floor New York, New York 10019 Tel.: (212) 415-9243 Fax: (212) 953-7201 Appellant-Respondent Pro Se SHEPPARD MULLIN RICHTER & HAMPTON LLP 30 Rockefeller Plaza, 39th Floor New York, New York 10112 Tel.: (212) 653-8700 Fax: (212) 653-8701 Appellant-Respondent Pro Se DUANE MORRIS LLP 1540 Broadway New York, New York 10036 Tel.: (212) 979-1514 Fax: (212) 692-1020 Appellant-Respondent Pro Se QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel.: (212) 849-7200 Fax: (212) 849-7100 Attorneys for Appellant-Respondent Akin Gump Strauss Hauer & Feld LLP Table of Contents Page Summary of Argument............................................................................................... 2 Argument.................................................................................................................... 6 I. THE NEW YORK PARTNERSHIP LAW DOES NOT PROVIDE THAT CLIENT MATTERS ARE THE PROPERTY OF LAW FIRMS ............................................................................................. 6 A. The Existence of Fiduciary Duties Does Not Create a Property Interest in Client Matters ....................................................... 7 B. No Other Aspect of Partnership Law Creates a Property Interest in Client Matters ..................................................................... 10 II. DISSOLVED LAW FIRMS DO NOT HAVE A PROPERTY INTEREST IN CLIENT MATTERS ............................................................ 12 A. DSI Misunderstands Stem v. Warren .................................................. 13 B. DSI Misstates the Rule Expressed in the New York Contingent Fee Cases .......................................................................... 18 C. The Coudert Partners Did Not Agree to Treat Client Matters as Property of the Firm ........................................................................ 21 III. OPINIONS FROM OTHER JURISDICTIONS DO NOT RESOLVE THE QUESTION OF WHETHER A CLIENT MATTER IS LAW FIRM PROPERTY ........................................................ 22 IV. NEW YORK LAW AND POLICY ARGUE AGAINST RECOGNIZING A PROPERTY INTEREST IN CLIENT MATTERS ...... 24 V. DSI OFFERS NO MEANINGFUL ANSWER TO THE SECOND CERTIFIED QUESTION .............................................................................. 28 ii Conclusion ............................................................................................................... 33 iii Table of Authorities Cases Bader v Cox, 701 SW2d 677 (Tex. App. Dist. 5 1985) ............................................................ 26 Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655 (1993) ......................................................................................... 21 Cohen v. Lord, Day & Lord, 75 N.Y.2d 95 (1989) ........................................................................................... 28 Dawson v. White & Case, 88 N.Y.2d 666 (1996) ......................................................................................... 30 Denburg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375 (1993) ......................................................................................... 29 Denver v. Roane, 99 U.S. 355 (1879) ....................................................................................... 12, 13 Dev. Specialists, Inc. v. Akin Gump Strauss Hauer & Feld LLP, 480 B.R. 145 (S.D.N.Y. 2012) ........................................................................... 24 Geron v. Robinson & Cole LLP, 476 B.R. 732 (S.D.N.Y. 2012) .............................................................. 21, 22, 24 Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112 (1995) ........................................................................................... 8 Heller Ehrman LLP v. Jones Day (In re Heller Ehrman LLP), 2014 Bankr. LEXIS 382 (Bankr. N.D. Cal. Jan. 28, 2014) ................... 35, 36, 37 Hughes v. Aycock, 598 S.W.2d 370 (Tex. Civ. App. Houston 14th Dist. 1980) .............................. 26 In re Brown, 242 N.Y. 1 (1926) ........................................................................ 11, 12 In re Cooperman, 83 N.Y.2d 465 (1994) ......................................................................................... 11 Kenford Co. v. County of Erie, 67 N.Y.2d 257 (1986) ......................................................................................... 37 iv Kirsch v. Leventhal, 181 A.D.2d 222 (3d Dep’t 1992) ................................................................. 26, 38 Meinhard v. Salmon, 249 N.Y. 458 (1928) .................................................................................. 7, 9, 19 Morris v. Crawford, 304 A.D.2d 1018 (3d Dep’t 2003) ...................................................................... 10 Raphael v. Shapiro, 154 Misc. 2d 920 (Sup. Ct. N.Y. Cnty. 1992) .................................................... 30 Santalucia v. Sebright Transp., Inc., 232 F.3d 293 (2d Cir. 2000) ............................................................................... 22 Sheresky v. Sheresky Aronson Mayefsky & Sloan, LLP, 35 Misc. 3d 1201A, 2011 N.Y. Misc. LEXIS 6588 (Sup. Ct. N.Y. Cnty. 2011) ......................................................................................................... 23 Stem v. Warren, 185 A.D. 823 (1st Dep’t 1919) .................................................................... 17, 18 Stem v. Warren, 227 N.Y. 538 (1920) ................................................................................... passim Stem v. Warren, 96 Misc. 362 (Sup. Ct. N.Y. Cnty. 1916) .................................................... 16, 18 Statutes N.Y. Judiciary Law § 475 ................................................................................. 12, 32 New York Partnership Law, Section 40(6) ............................................................1, 8 New York Partnership Law, Section 43(11) .............................................................. 1 New York Partnership Law, Section 66 ................................................................1, 8 New York Partnership Law, Section 71 .................................................................... 1 New York Partnership Law, Section 73 ........................................................... 26, 34 New York Rules of Professional Conduct, § 1.17(c)(1) ......................................................................................................... 31 New York Rules of Professional Conduct, 22 N.Y.C.R.R. § 1200.0 ...................................................................................... 11 v New York Rules of Professional Conduct, § 1.16(e) .............................................................................................................. 15 New York Rules of Professional Conduct, § 1.17(c)(3) ......................................................................................................... 31 New York Rules of Professional Conduct, § 1.17, Comment 4 .............................................................................................. 30 New York Rules of Professional Conduct, § 1.17, Comment 6 .............................................................................................. 31 New York Rules of Professional Conduct, § 5.6, Comment 1 ................................................................................................ 28 New York Rules of Professional Conduct, 22 N.Y.C.R.R. § 1.17 .......................................................................................... 30 New York Rules of Professional Conduct, 22 N.Y.C.R.R. § 1215.2(2) ................................................................................. 33 The Law Firms1 respectfully submit this brief in opposition to the Brief for Respondent-Appellant DSI (“DSI Brief”), and in further support of the Law Firms’ appeal. New York has never recognized that a lawyer or law firm has a property interest in a client matter, as opposed to a right to payment for services rendered. DSI relies on the Partnership Law’s fiduciary duties to create law firm property from client matters. DSI principally points to the requirements that, upon dissolution, partners “can bind” the partnership by completing “transactions unfinished at dissolution” (§ 66), and that “no partner is entitled to remuneration for acting in the partnership business” (§ 40(6)). DSI also cites the duty to account to the partnership for “profits” from any use of partnership property (§ 43(11)), and to the fact that partnership property remains partnership property after dissolution (§ 71). The fundamental flaw in DSI’s argument is that these duties do not create any property interest; they only describe how partners must deal with partnership property, and with each other. Here, there are no “transactions unfinished at dissolution” for the dissolved firm’s partners to finish and bind the 1 This brief adopts the same defined terms as used in the Brief of Appellants- Respondents (“Law Firms’ Brief”). 2 partnership. The clients have retained other firms to service these matters. Thus, there is no property for which to account and no transaction to complete. DSI’s claim is contrary not only to the nature of the attorney-client relationship, but to longstanding principles of attorney responsibility and a client’s right to choice of counsel. This Court should conclude, consistent with the holdings of the Appellate Division in the contingent fee context, that a firm has a property interest only in being compensated for the services it has provided. Summary of Argument 1. The New York Partnership Law does not answer the first question this Court has been asked to address: whether, as a matter of New York law, a client matter entrusted to a law firm can constitute the property of that firm. The Second Circuit has asked for this Court’s guidance as to whether “a client matter that is billed on an hourly basis [is] the property of a law firm”; if not, there is no property for which the Former Coudert Partners could be required to account. DSI offers a lengthy discourse on the New York Partnership Law, New York’s adoption of the Uniform Partnership Act, the DSI-created “No Compensation Rule” and “Duty to Account,” and fiduciary duties generally. See DSI Brief at 15 – 20. Those fiduciary duties cannot create property. See Point I(A), infra. 3 No other aspect of the Partnership Law supports DSI’s claims. Coudert had no rights in Former Client Matters that it could have transferred to the Law Firms. See Point I(B), infra. 2. New York common law does not support treating client matters as law firm property. Since the Partnership Law does not define property, DSI next looks to New York’s common law. DSI relies heavily on Stem v. Warren, 227 N.Y. 538 (1920). This reliance is misplaced. In Stem, a dissolved architectural partnership and its client expressly agreed that their contract would survive dissolution. After the death of one partner caused dissolution, two of his former partners encouraged the client to terminate the agreement in breach of their fiduciary duty toward another partner. None of Coudert’s clients is alleged to have agreed that its retention of Coudert would survive Coudert’s dissolution, and such an agreement could not be binding. Nor have any of the Former Coudert Partners breached any duty to Coudert. See Point II(A), infra. To support a claim that is without basis in New York law, DSI also relies on the New York cases dealing with the treatment of contingent fee cases. DSI, however, draws the wrong conclusion. In those cases, a contingent fee is treated as an asset of a law firm only to the extent of the portion of the fee attributable to the firm’s actual efforts, skill and diligence. DSI incorrectly argues 4 that payments were due to the former firm because the contingent fee matter was that firm’s property. To the contrary, the cases make clear that any payments owed were due because the dissolved or predecessor firm had not been paid for the services it had actually performed, not because the successor firm acquired a property interest in the matter itself. See Point II(B), infra. DSI’s contention that the partners of Coudert agreed to treat their client matters as property of the firm is false. See Point II(C), infra. 3. DSI mischaracterizes the Law Firm’s argument with respect to the law in other jurisdictions. DSI characterizes the Law Firms’ discussion of cases from other jurisdictions as “obviously incorrect” (DSI Brief at 44) and even “utterly facetious” because, supposedly, the Law Firms argue that the so-called No Compensation Rule is not applied by those courts. DSI Brief at 45. DSI attacks a straw man. The Law Firm’s argument has nothing to do with the so-called No Compensation Rule. The Law Firms’ point is that the consensus to which DSI alludes is largely illusory. The cases from outside New York (which deal primarily with contingent fee matters) differ meaningfully from each other in their reasoning and in how they discuss the unfinished business of a law firm. As the Law Firms explained: “[f]ar from representing a consensus, the state cases interpreting Jewel and the unfinished 5 business doctrine adopt different reasoning and reach different conclusions.” Law Firms’ Brief at 37 (emphasis added). DSI points to many cases that loosely discuss an unfinished contingent fee matter as a firm asset. See DSI Brief at 42. But so too do the New York cases which nonetheless allocate a recovered contingent fee between predecessor and successor firms in proportion to their efforts. If the contingent fee matter were the property of the predecessor firm, that firm would be entitled to the full recovery and the successor firm would not be entitled to any recovery. See Point III, infra. 4. New York law and policy strongly disfavor recognizing a property interest in client matters. Neither the New York Partnership Law nor any other statute defines partnership property, but our ethical rules mandate against treating client matters as firm property. DSI’s argument that the New York Rules of Professional Conduct cannot trump a statute is therefore irrelevant. DSI Brief at 58 – 59. This Court has been asked by the Second Circuit to resolve an unsettled question of New York’s common law of property that implicates the professional responsibilities of lawyers and the special relationship between lawyers and clients. The Rules of Professional Conduct provide important guidance as to whether this Court should 6 recognize a property interest in client matters at all, and, if necessary, the limits of that property interest. See Point IV, infra. 5. DSI offers no meaningful answer to the second certified question. Assuming, arguendo, that client matters, such as the Former Client Matters at issue here, constitute law firm property, this Court has been asked to provide guidance on what constitutes a client matter and what part of the associated revenue a successor firm can retain. A “client matter” is an inherently amorphous concept not amenable to a clear, principled definition, and, not surprisingly, DSI cannot provide one. DSI makes no attempt to grapple with the appropriate calculation of “profits.” See Point V, infra. Argument I. THE NEW YORK PARTNERSHIP LAW DOES NOT PROVIDE THAT CLIENT MATTERS ARE THE PROPERTY OF LAW FIRMS The New York Partnership Law does not speak to whether a client matter entrusted to a law firm is the law firm’s property. Whether such a property interest exists at all is the first question the Second Circuit certified, and Point I of the DSI Brief largely ignores that question. 7 The Law Firms do not dispute that partners owe fiduciary duties inter se. Nor do the Law Firms dispute that partners may not appropriate partnership property to themselves or obtain individual remuneration for acting in the partnership business. But these familiar principles of partnership law do not address the first certified question. The duties specified in the Partnership Law do not make unfinished business “presumptively” partnership property. See DSI Brief at 15. A. The Existence of Fiduciary Duties Does Not Create a Property Interest in Client Matters DSI invokes Meinhard v. Salmon, 249 N.Y. 458 (1928) to illustrate the degree of duty owed by partners. See DSI Brief, passim. While the Law Firms do not dispute these duties, such duties do not create property; rather, they govern how partners are to deal with one another in the conduct of partnership business. DSI attempts to transform client matters into firm property on the ground that the Partnership Law (and the UPA) refer to “partnership business,” and “transactions uncompleted at dissolution.” (Sec. 40(6) and 66) Partnership business and transactions are things for which a partnership may obtain compensation, and a partner may not appropriate that business or those transactions for her own use in breach of her fiduciary duty. That does not make all partnership business or all transactions uncompleted at dissolution the 8 partnership’s property. Rather, to the extent the business remains to be completed by the partnership, the partners must complete it. Here, the clients took the business elsewhere leaving nothing for the dissolved firm’s partners to complete. Among law firms, a typical example of a breach of fiduciary duty is not a partner’s ripping a painting from the wall of the firm’s lobby, but the improper soliciting of clients of the firm prior to withdrawal or dissolution. See, e.g., Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112 (1995). No case suggests that such improper solicitation constitutes the conversion of partnership property for the benefit of the individual partner. Rather, as in Meinhard, it is the appropriation by one partner of a potential business opportunity of the firm that constitutes the breach of fiduciary duty. See Meinhard, 249 N.Y. at 465. (“The trouble about his conduct is that he excluded his coadventurer from any chance to compete, from any chance to enjoy the opportunity for benefit that had come to him alone.”). DSI fails to accept that a partner can violate her fiduciary duty towards her copartners without taking any property of the firm, and that the existence of a fiduciary duty implies no corresponding property interest. The Former Coudert Partners took no property of the firm. They also breached no fiduciary duty. The Former Coudert Partners followed a directive of the firm’s partnership, expressed in a Special Authorization made when Coudert dissolved. The partners of Coudert were instructed to: 9 wind down the business of the Firm with a view to continuing the provision of legal services to clients and the orderly transition of client matters to other firms or service providers, in order to maximize the value of the Firm’s assets and business to the extent practicable . . . .2 Appendix for Respondent-Appellant at 76. When the Former Coudert Partners withdrew and joined new firms, certain clients elected to retain those firms. At most, the partners solicited clients of the dissolved firm, but, as a matter of law, partners in a dissolving law firm are completely free to solicit firm clients after dissolution, and violate no fiduciary duty thereby. See, e.g., Morris v. Crawford, 304 A.D.2d 1018, 1021 (3d Dep’t 2003) (“[w]hile it is clear that partners are bound by a fiduciary duty requiring the punctilio of an honor the most sensitive it is equally clear that the fiduciary relationship between partners terminates upon notice of dissolution”) (citations, quotations omitted)). Not only is there no property for which the Former Coudert Partners must account, but there has been no violation of any fiduciary duty. 2 The reference to “firm assets and business” is not a reference to unfinished client matters. Nothing in the resolution or the record even remotely suggests Coudert had in mind any right to recover profits earned by the Former Coudert Partners at other firms, or to sell or otherwise transfer client matters as though they were property. Rather, the Special Authorization sought to abide by Coudert’s ethical obligation to protect its clients’ interests, and maximize its revenue by, inter alia, transferring offices and practices to other firms as Coudert wound down. 10 B. No Other Aspect of Partnership Law Creates a Property Interest in Client Matters DSI identifies “good will” as an example of a potential property interest of a law partnership subject to the duty to account. See DSI Brief at 14, citing In re Brown, 242 N.Y. 1, 4 (1926) (Cardozo, J.). This is a poor example for DSI to choose. In In re Brown, this Court was asked whether the good will of a partnership was an asset to be accounted for. Id. at 4. To answer this question, the Court considered “what rights would have passed to a buyer of the good will if the surviving partners had sold it in the course of liquidation.” Id. at 7 (emphasis added). This suggests the essential question DSI never answers in its brief: what rights in the Former Client Matters did the Former Coudert Partners allegedly take from Coudert and give to the Law Firms? The answer is: none. A client always retains an unfettered right to discharge counsel for any reason, or no reason. See, e.g., In re Cooperman, 83 N.Y.2d 465, 472 – 73 (1994). DSI does not dispute this point. Further, the only property-like right that the New York Rules of Professional Conduct (22 N.Y.C.R.R. § 1200.0) (the “Rules”) or New York law allow in connection with a client engagement is a lien 11 on the proceeds of litigation attributable to the lawyer’s actual work on that litigation. See, e.g., Rule 1.8(a)(1); N.Y. Jud. L. § 475. The greatest “right” that could have “passed” to one of the Law Firms as a result of the actions of a Former Coudert Partner was therefore the hope that the affected client would continue the attorney-client relationship. In re Brown highlights the fact that there was no right in property that the Former Coudert Partners took with them when Coudert dissolved. The cases on which DSI relies for the antiquity of its so-called No Compensation Rule (see DSI Brief at 18 – 20) are similarly irrelevant; Coudert has no continuing property interest in the Former Client Matters, and the Former Coudert Partners are not deriving profits from business for which they can be required to account. As discussed supra, Coudert abandoned this business and, consistent with the ethical obligations of lawyers, asked its partners to protect the interests of Coudert’s former clients at their new firms. The Former Coudert Partners are not being compensated for continuing the business of Coudert, but for the services they now perform at the request of their clients. As explained in the Law Firms’ Brief, an attorney-client relationship cannot survive the dissolution of the firm with which it was made. DSI’s discussion of the most relevant case, Denver v. Roane, 99 U.S. 355, 357 (1879), involving the dissolution of a law firm, is disingenuous. In 12 Denver, “the agreement of dissolution stipulated that, as to the business then in hand, the members of the firm should continue partners, and should close it up.” DSI neglects to mention that in that case “the parties made arrangements for the work and results of work after the death of any of their number.” Id. at 359. Here, as discussed supra, Coudert instructed its partners to make provision for Coudert’s clients by helping transition their matters. Having no good ground for its argument that client matters are law firm property, DSI makes a distinction between “property” and “partnership property” that it utterly unsupported. DSI asserts that something can be “partnership property” even though it is not “property.” See DSI Brief at 36. Apparently, “partnership property” defines the “rights and obligations between partners,” while “property” is something between the “dissolved firm and third parties.” According to DSI, a contract with a third party is not property as to the third party, but is property among the partners. There is no basis in law for such a convenient, but erroneous, distinction. II. DISSOLVED LAW FIRMS DO NOT HAVE A PROPERTY INTEREST IN CLIENT MATTERS DSI fails to engage meaningfully with the arguments raised by the Law Firms on the first certified question. Since it cannot state how the Partnership 13 Law’s fiduciary duties can create property, DSI next erroneously relies on Stem v. Warren, the Appellate Division contingency fee cases and a false argument about the Coudert Partnership Agreement. A. DSI Misunderstands Stem v. Warren DSI’s reliance on Stem v. Warren, 227 N.Y. 538 (1920), flows from its misunderstanding of the opinion. At the risk of exaggerating Stem’s significance, it is worth examining Stem and DSI’s treatment of it closely. DSI quotes this passage: The most valuable asset of such partnership was the contract between it and the railroad company. By the terms of such contract and the agreement between the associated architects the intention of the parties is manifest that the contract was to be performed notwithstanding the death of Mr. Reed if such event should occur. Upon the death of Mr. Reed it was the duty of the survivors of the firms to take possession of the firm's assets, perform the contract, extinguish the firm's liabilities, and close its business for the interest of all parties concerned, and the representatives of Reed were entitled to share in the profits of all unfinished business though subsequently completed. (DSI Brief at 24) Stem, 227 N.Y. at 546 – 547. DSI italicized in its brief every word of this quotation except the ones that matter: “By the terms of such contract and the agreement between the associated architects the intention of the parties is manifest that the contract was to be performed notwithstanding the death of Mr. Reed [dissolving the partnership] if 14 such event should occur.” Id. (emphasis added). As a factual matter, the partnership at issue in Stem—and its client—expressly agreed that this personal services contract would be performed notwithstanding the dissolution of the partnership. Here, the affected clients could not—as a matter of law—have been bound to hire the Former Coudert Partners after dissolution. See Law Firms’ Brief at 28 – 33.3 Further, a closer inspection of Stem and the cases below shows that the Court’s holding was motivated as much by the wrongful conduct of Warren & Wetmore as by any duty to complete this contract. The decision in Supreme Court presents a fuller view of the facts. Stem involved a joint venture between two architecture partnerships, Reed & Stem, and Warren & Wetmore, together called Associated Architects, to do work on Grand Central Terminal. Reed died, dissolving Reed & Stem, and hence dissolving Associated Architects. The day after Reed was buried, 3 The cases and bar association opinions on which DSI relies (see DSI Brief at 35) stand only for the principle that a lawyer cannot unilaterally withdraw, but must make appropriate provision for a client’s protection. This obligation, which flows from an attorney’s ethical duties, does not support characterizing a client matter as property. See, e.g., Rule 1.16(e) (requiring, inter alia, that a withdrawing lawyer “take steps to avoid foreseeable prejudice to the rights of the client” including “promptly refunding any part of a fee paid in advance that has not been earned.”). 15 without having consulted the plaintiff in this case and without his knowledge or consent, Wetmore wrote to the railroad company suggesting that a new contract was necessary because, as he claimed, the old contract was terminated. He enclosed a proposed contract which he said was intended to follow the form of the old one with the Associated Architects in all particulars, except that Warren & Wetmore were to be the architects. . . . Stem claimed that he never knew of its existence until after bringing this action, and it is clear that no word was ever given to Stem or to the Reed estate prior to December 19, 1911, that Wetmore was seeking a contract with the railroad company for the individual benefit of his immediate firm. Stem v. Warren, 96 Misc. 362, 368 (Sup. Ct. N.Y. Cnty. 1916). On appeal, the Appellate Division held that if one copartner brings about or induces the termination of the employment under which they are operating, and thereby obtains for himself the profits and benefits that would otherwise flow to the copartnership, he can be held liable in equity to account to his copartner. Stem v. Warren, 185 A.D. 823, 831 – 832 (1st Dep’t 1919) (emphasis added). As a factual matter, the Appellate Division further noted that the cancellation by the railroad company of the contract of February 8, 1904, between the railroad company and the associated architects and the execution of the new contract of December 19, 1911, between said railroad company and the firm of Warren & Wetmore were brought about by the secret actions and solicitation and procurement of the defendants Whitney Warren and Charles D. Wetmore with the purpose and intent of excluding the plaintiff and the estate of Charles A. Reed from any profits and emoluments which would accrue. 16 Id. at 832 (emphasis added). Associated Architects also had done some preliminary architectural work for the Hotel Biltmore when Reed died, and expected to do more. Stem, 96 Misc. at 372 – 373. Supreme Court determined that future hotel work should be included in the accounting, id., but the Appellate Division disagreed, holding that although the associated architects had a reasonable expectation of being employed to supervise the construction of the hotel, there was no assurance that they would be so employed. Supervision requires the personal attention and skill of the supervisor. The railroad companies were not bound to employ the architect who prepared the plans and specifications to supervise the construction; to my mind this should be treated as in the nature of new work undertaken, not on behalf of the former partnership, nor in which the assets of that partnership were employed. It is further to be noted that the plaintiff did not offer to contribute of his time and skill in this work nor demand any participation therein, and, in my opinion, is not entitled to share in the compensation therefor. Stem, 185 A.D. at 835 (emphasis added). The Court of Appeals agreed, holding that “[a] ‘reasonable expectation’ of securing a contract therefor was not an asset of the associated architects.” Stem, 227 N.Y. at 550. The Court of Appeals therefore allowed an 17 accounting only for fees due in respect of work actually performed prior to dissolution. Id. This fuller picture of Stem therefore reveals two important points. First, the conduct at issue was (as Meinhard puts it) subject to the “infection of secrecy and silence.” Meinhard, 249 N.Y. at 466. If Warren & Wetmore had disclosed to the surviving partner that they intended to seek completion of the contract on their own account, and he had acquiesced, there is little doubt that the result would have been different. Though the contract in Stem was terminable at will (a point which DSI highlights), Warren & Wetmore wrongfully induced the partnership’s client to terminate the agreement with the partnership that otherwise would have survived dissolution. Here, there is not even the faintest suggestion that any Coudert partner was not fully transparent with her copartners in all aspects of the dissolution process. Indeed, all Coudert partners were encouraged by the partnership to transition client matters to other firms as the firm wound down operations. See Appendix for Respondent-Appellant at A76. Nothing suggests that any partner of Coudert breached any fiduciary duty towards her copartners. Second, the Stem Appellate Division opinion and the opinion in this Court both recognized that no accounting is due for a “reasonable expectation” of 18 future work—only fees earned in respect of work actually performed prior to dissolution and subject to a contract then in force are subject to a duty to account. Here, as discussed supra and in the Law Firms’ Brief at 28 – 30, the Former Coudert Partners could have had at most an expectation that their former clients would continue to retain them, and had no recourse against those that chose not to. Even where partnerships other than law firms are involved, no accounting is due for such an expectation. These principles are entirely consistent with the New York cases dealing with contingent fees in dissolution, discussed infra. B. DSI Misstates the Rule Expressed in the New York Contingent Fee Cases The New York cases dealing with the treatment of contingent fee cases stand for the proposition that a dissolved law firm is entitled to be paid only for the work that it has done, and not for the work that others have done. It is the consistent rule that a law firm should receive only that portion of a fee attributable to the firm’s actual efforts, skill and diligence. A firm that dissolves while handling a contingent fee case has not yet received payment for the services it has provided. It is therefore entitled to receive a recovery in proportion to its efforts should the case ultimately result in an award. It is not entitled to receive the entire fee, because the client matter itself is not the 19 property of the dissolved law firm—the firm’s asset is only that portion of the ultimate fee earned in respect of its own efforts. See Law Firms’ Brief at 18 – 22. In the hourly fee context, the dissolved firm already has either received payment for the predissolution services it has provided, or, if there are outstanding receivables, has earned a right to payment in respect of those services. DSI contends that such a firm is entitled to be doubly compensated: first for the predissolution work it has performed, and again for any work done subsequently on the same (ill-defined) client matter by another firm. Nothing in New York law countenances this result. Rather than address the Law Firms’ position directly, DSI attacks a straw man, suggesting that the Law Firms argue for a quantum meruit recovery, contrary to the holding of certain contingent fee cases. See DSI Brief at 28 – 33. The Law Firms make no such argument. That a firm handling a contingent fee matter should only be paid in proportion to its pre-dissolution services is not a quantum meruit recovery. The only relevance of quantum meruit is that an attorney discharged without cause while handling a contingent fee matter may elect either a quantum meruit payment immediately, or may choose to wait and collect a contingent fee in proportion to his efforts. See, e.g., Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658 (1993). This rule is entirely consistent with the Law Firms’ 20 discussion of the Appellate Division cases, and with the fact that the successor attorney has not received any property interest from her predecessor. It also is inconsistent with DSI’s position that a client matter itself is an article of property. But the Law Firms do not contend, and never have contended, that the New York cases provide for a quantum meruit recovery in all contingent fee cases. This is, in part, why DSI misstates the holding in Santalucia v. Sebright Transp., Inc., 232 F.3d 293 (2d Cir. 2000). There, the Second Circuit correctly recognized that when a firm is discharged without cause it has the choice between a quantum meruit recovery or “a contingent percentage fee based on his or her proportionate share of the work performed on the whole case.” Id. at 297 n.2. In Santalucia, which was not a wrongful discharge case, the Second Circuit, applying New York law, concluded that a dissolved firm would only be entitled to receive a portion of the contingent fee proportionate to its predissolution services. Id. This is a correct statement of New York law, and wholly consistent with the principle that a law firm has no property interest in a client matter itself, but only in receiving payment for the work it actually has performed. In hourly fee cases, achieving a proportionate distribution of fees is a simple matter—each firm keeps the fees paid for the services it performed. That is the proper result here. 21 It is also the result reached in Sheresky v. Sheresky Aronson Mayefsky & Sloan, LLP, 35 Misc. 3d 1201A, 2011 N.Y. Misc. LEXIS 6588 (Sup. Ct. N.Y. Cnty. 2011), the most relevant decision in Supreme Court. DSI dismisses this decision out of hand, despite the fact that it was decided with the benefit of the Bankruptcy Court’s erroneous reasoning. Sheresky properly rejected that reasoning, and concluded that it would not “recognize a cause of action for unfinished business for hourly fee cases which has, hitherto, not been recognized by the New York Courts.” Id. at **15. Notably, Judge Pauley correctly recognized that the Sheresky decision was consistent with New York authority, see Geron v. Robinson & Cole LLP, 476 B.R. 732, 740 (S.D.N.Y. 2012), Appdx. A146, while Judge McMahon did not address Sheresky at all. C. The Coudert Partners Did Not Agree to Treat Client Matters as Property of the Firm At pages 2, 6 and 39 of the DSI Brief, DSI contends that “Coudert did treat its Client Matters as partnership property, as Judge McMahon determined.” DSI Brief at 39. This suggests—falsely—that there was a factual finding to this effect. Coudert did no such thing, and Judge McMahon made no such determination. In her decision, Judge McMahon observed that, consistent with the Partnership Law, the Coudert partnership agreement treated partnership property as 22 property of the firm, rather than of any individual partners. The agreement did not refer to client matters in this context, or define them as firm property. Applying her erroneous conclusion that New York law presumptively treats client matters as law firm property, she stated that the Coudert partnership agreement “does not specify that the Client Matters are not property of Coudert, so under Stem and Shandell [v. Katz, 217 A.D.2d 472 (1st Dep’t 1995)], they are property of the firm.” Dev. Specialists, Inc. v. Akin Gump Strauss Hauer & Feld LLP, 480 B.R. 145, 173 (S.D.N.Y. 2012). Judge McMahon’s opinion therefore made no factual finding. Nor does it interpret the Coudert partnership agreement beyond concluding that the Coudert partners did not state an intention contrary to the Partnership Law. DSI’s suggestion to the contrary is false. Cf. Geron, 476 B.R. 732 (declining to recognize any presumption that client matters are firm property). III. OPINIONS FROM OTHER JURISDICTIONS DO NOT RESOLVE THE QUESTION OF WHETHER A CLIENT MATTER IS LAW FIRM PROPERTY DSI relies heavily on the supposed uniformity of decisions in other jurisdictions, characterizing the Law Firms’ position as “obviously incorrect” (DSI Brief at 44) and “utterly facetious.” DSI Brief at 45. More accurately, the position that DSI is characterizing is another straw man it has set up to attack. The Law 23 Firms’ position, expressed in the Law Firms’ Brief at 33 – 37, is that cases from outside New York often differ as to whether there is a property interest in client matters, the nature of that interest, and how to account for it. The key point—which DSI does not address—is that even if a client matter is considered partnership property, under New York law any fees resulting from the “postdissolution efforts, skill and diligence” of a former partner are not “‘attributable to the use of [a] right in the property of the dissolved partnership.’” Kirsch v. Leventhal, 181 A.D.2d 222, 226 (3d Dep’t 1992) (quoting Bader v Cox, 701 SW2d 677, 681(Tex. App. Dist. 5 1985)). Courts in other jurisdictions have agreed with Kirsch’s reasoning, and concluded that even if a client matter is a law firm’s property in some sense, revenues generated as a result of post-dissolution work on that matter are not “attributable to the use of . . . property of the dissolved partnership.” N.Y. Partnership L. § 73. See, e.g., Hughes v. Aycock, 598 S.W.2d 370, 376 – 377 (Tex. Civ. App. Houston 14th Dist. 1980). See generally Law Firms’ Brief at 33 – 37, 43 – 44. DSI also makes much of the supposed legislative command to interpret the Partnership Act consistently with other Uniform Partnership Act jurisdictions. See DSI Brief at 40. Whether the jurisdictions in question are Revised Uniform Partnership Act jurisdictions or otherwise is, however, irrelevant. 24 Those statutes do not define property, and if there is no property interest there is nothing to account for under the Partnership Law. IV. NEW YORK LAW AND POLICY ARGUE AGAINST RECOGNIZING A PROPERTY INTEREST IN CLIENT MATTERS The law and public policy governing attorney-client relationships powerfully argue against this Court holding that law firms have any property interest in client matters. DSI’s response, once again, misses the point. DSI contends that any public policy issue has been resolved by the legislature in enacting the New York Partnership Law, which supersedes the Rules. See DSI Brief at 58 – 34. DSI ignores that this Court has not been asked to resolve a question of the Partnership Law, but whether there exists any property interest to which the Partnership Law may be applied. As Geron correctly notes, while the Rules lack the force of law, “New York courts interpret other laws to harmonize with them where possible.” Geron, 476 B.R. at 740. This Court should not interpret the nature of a client matter in a way that requires lawyers to violate the Rules in the course of winding up a law practice. Even when the Rules do not expressly prohibit certain conduct, they demonstrate a strong policy commitment to ensuring the absolute autonomy of clients with respect to the matters they entrust to counsel, and extreme wariness of 25 anything that could interfere with either client autonomy or lawyer independence. Cases from other jurisdictions (and, indeed, Judge McMahon’s decision) give these issues only the most cursory examination. DSI sees no difficulty in Rule 5.6 largely because that Rule pertains to agreements not to compete. DSI ignores, however, the policy behind Rule 5.6, which is intended to protect lawyers’ “professional autonomy” and “the freedom of clients to choose a lawyer.” Rule 5.6 Comment [1]. This Court has recognized that financial disincentives to lawyer mobility “in effect, restrict[ ] the choices of the clients to retain and continue the withdrawing member as counsel.” Cohen v. Lord, Day & Lord, 75 N.Y.2d 95, 101 (1989). As this Court explained, restrictions on the practice of law, which include financial disincentives against competition as well as outright prohibitions, are objectionable primarily because they interfere with the client's choice of counsel: a clause that penalizes a competing attorney by requiring forfeiture of income could functionally and realistically discourage a withdrawing partner from serving clients who might wish to be represented by that lawyer. Denburg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375, 380 (1993) (quotations, citation omitted). Thus, while Rule 5.6 only applies by its literal terms to agreements in restriction of practice of law, it reflects an underlying policy not to “discourage a . . . partner from serving clients who might wish to be represented 26 by that lawyer.” DSI cannot plausibly contend that requiring a lawyer to work for free would not be, at a minimum, discouraging. DSI similarly gives no real attention to the prohibition against fee- splitting in Rule 1.5(g). DSI’s argument is that all of the Former Coudert Partners are still “associated in the same firm” within the meaning of that Rule. DSI is not, however, seeking fees from the Former Coudert Partners. It is seeking to recover fees from the Law Firms, each of which has an independent relationship with the affected clients, each of which has earned fees in respect of its own work from those clients, and none of which have or had a fiduciary duty to Coudert.4 However, it is indisputable that in this case DSI is seeking a division of fees between Coudert and each of the Law Firms for work done by the Law Firms. All of the ethical concerns implicated by the Rule apply here. Two other Rules demonstrate the powerful policy arguments against treating client matters as law firm property. The first, Rule 1.17, governs the sale of a law practice. Until a 1996 amendment to the Disciplinary Rules (as they were then known) the sale of a law practice (and any associated good will) was prohibited. See, e.g., Raphael v. 4 If, in fact, a client matter were Coudert’s property, under DSI’s theory any firm that performed work on that matter after dissolution, irrespective of whether a Former Coudert Partner had joined that firm, would potentially be liable to Coudert. 27 Shapiro, 154 Misc. 2d 920, 921 (Sup. Ct. N.Y. Cnty. 1992). That rule was relaxed by the adoption of the rule now embodied in Rule 1.17 of the New York Rules of Professional Conduct. See Dawson v. White & Case, 88 N.Y.2d 666, 672 (1996) (Ciparick, J.), cited in DSI Brief at 14. Rule 1.17 is the only basis upon which a New York law practice can be sold, and it imposes significant conditions upon a sale. A buyer must, for example, purchase an entire law practice. See Rule 1.17 Comments [2], [4], [6]. This is specifically to protect “those clients whose matters are less lucrative and who might find it difficult to secure other counsel.” Rule 1.17 Comment [6]. Detailed written notice must be given to each affected client under Rule 1.17(c), including specific notice of the client’s right to “retain other counsel or take possession of the file.” Rule 1.17(c)(1). The transition of any client matters is expressly made subject to client approval; only when the rule is complied with can a successor lawyer or firm take over an existing client engagement. See Rule 1.17(c)(3). Neither Coudert nor the Former Coudert Partners sold their practices pursuant to Rule 1.17, and they are not alleged to have done so. New York lawyers cannot convey their books of business to other lawyers or firms in the way DSI contends happened here. Instead, the Former Coudert Partners withdrew from the dissolving Coudert and joined other firms. Some of their clients elected to 28 retain those lawyers’ new firms. This implicates no property interest, and therefore no duty to account under the Partnership Law. The second, Rule 1.8(i), states that: A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer’s fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil matter subject to Rule 1.5(d) or other law or court rule. This Rule makes clear that the matter itself always belongs to the client. A lawyer’s property interest in a client matter is limited to a security interest in the fees and expenses actually earned or disbursed (Rule 1.8(i)(1)) or an earned contingent fee (Rule 1.8(i)(2)). See also N.Y. Jud. Law § 475 (creating lien enforceable only against proceeds of litigation). V. DSI OFFERS NO MEANINGFUL ANSWER TO THE SECOND CERTIFIED QUESTION Assuming, arguendo, that client matters are an article of law firm property that must be accounted for on firm dissolution, the Second Circuit has asked for guidance as to the scope of a client matter, and how profits should be 29 determined and allocated. DSI’s answers to these questions are so unhelpful as to provide no guidance at all. As to what constitutes a client matter, DSI answers: “a client matter is any business pending covered by a retainer agreement that is pending but not completed as of the dissolution date regardless of the manner in which the law firm was to be paid.” DSI Brief at 64 – 65. This answer is circular—unfinished business is business that is unfinished—and provides no guidance to a court attempting to sort out the practical difficulties that would be presented by attempting the accounting DSI would require. Not all client engagements are governed by written retainer agreements, and in the case of longstanding clients they frequently are not. See 22 N.Y.C.R.R. § 1215.2(2). Even those engagements subject to a retainer agreement may be of indefinite or ill-defined duration or scope, such as “general advice” matters, which could be deemed completed when a specific question is answered, or could last for the duration of the relationship. Neither a lawyer nor a client knows at the outset of an engagement whether a demand letter will turn into a litigation or arbitration, or whether a hypothetical deal will take place in the form or on the schedule anticipated, or materialize at all. Engagement letters (when they exist), and the unique nature of the attorney-client relationship, reflect this uncertainty. There is often no clear line between complete and incomplete 30 engagements, and DSI offers no principle upon which to make the distinction. Simply looking at an engagement letter and asking whether the services it contemplates are unfinished is not a useful answer. Further, much of the unfinished business for which DSI seeks to recover fees was performed by partners of a New York partnership in connection with non-U.S. matters involving non-U.S. clients, where the nature of attorney- client relationships may be regulated very differently. DSI’s answer (such as it is) does not account for this. Ultimately, even assuming that client matters can be law firm property, the Partnership Law commands an accounting only to the extent that the Former Coudert Partners have received fees “attributable to the use of . . . property of the dissolved partnership.” N.Y. Partnership L. § 73. DSI suggests no method of determining what portion of any fee recovered is “attributable to the use of” a client matter, which is the essential question. The difficulty in resolving this question is illustrated by Bankruptcy Judge Montali’s recent attempt to create a formula to determine profits to be paid to the dissolved firm. That attempt shows just how hypothetical and uncertain any accounting for unfinished business would be. See Heller Ehrman LLP v. Jones Day (In re Heller Ehrman LLP), 2014 Bankr. LEXIS 382 (Bankr. N.D. Cal. Jan. 28, 2014). Judge Montali does not define client matters and acknowledges 31 that the law remains “unsettled” as to how to perform an accounting. Id. at *5. Judge Montali adopts an approach that piles hypothetical on hypothetical to come up with a figure that would bear little resemblance to anything. In Judge Montali’s opinion (drawn largely from that of the Bankruptcy Court in this action), a court would first have to determine the profit margin of a firm “with Coudert’s characteristics” to determine what profit Coudert would have made, if it had not opted to dissolve. It would then look at each piece of unfinished business, and make a hypothetical determination of the revenue each matter would have generated had Coudert continued in business. Id. at *26 – 27. The hypothetical profit margin of the dissolved firm could then, presumably, be applied to the revenues of the new firm attributable to that part of its services related to the unfinished matter to determine the hypothetical profit. Even if there were a practical way to apply it, this analysis makes no sense. It requires first a determination of what part of the services rendered were related to unfinished business, and what part to new business, and then what a law firm that chose to dissolve because of declining profitability would have earned if had not dissolved and continued to service its clients. Judge Montali’s opinion also offered no clear way to separate “revenue” from “profit.” For this part of his formula, Judge Montali does not look to the expenses of the dissolved firm but rather to those of the firm doing the work. 32 He observed that “former partners working on the unfinished business were entitled to reasonable overhead expenses (excluding partners’ salaries) attributable to the production of the post dissolution income.” Id. at *12–13.5 Judge Montali, however, rejected assigning a pro rata share of general overhead to the unfinished business, see id. at *5 n.6, but instead required that specific expenses should be deducted from gross revenue on a case by case basis. Requiring the Law Firms to pay to the estate of a dissolved firm profits on revenues earned as a result of the Law Firms’ service is neither fair nor workable. Such an accounting procedure would not only be so uncertain as to be arbitrary, but it also would be contrary to New York law, which requires lost profit determinations to be made with reasonable certainty. See Kenford Co. v. County of Erie, 67 N.Y.2d 257, 261 (1986). Kirsch and the other New York cases on which the Law Firms rely provide the correct answer—to the extent that Former Coudert Partners have earned fees as a result of their own “postdissolution efforts, skill and diligence” those fees are not “attributable to the use of” Coudert’s property. Kirsch, 181 5 This formulation, excluding partners’ “salaries” from overhead, demonstrates a curious misunderstanding of law partnerships. In a partnership, equity partners do not receive salaries; instead, they are entitled to a pro rata share of the profits of the partnership. In many firms, some lawyers with the title of partner are “non- equity” partners—that is, salaried employees. A.D.2d at 226. That should be the basis of any accounting, which, in the hourly fee context, is exceedingly simple to perform: the person who expended "efforts, skill and diligence" on behalf of a client gets the fee. Conclusion For the foregoing reasons, and the reasons expressed in the Law Firms' Brief, the Court should answer the first certified question in the negative, and decline to reach the second certified question as academic. Alternatively, the Court should answer the second certified question consistently with Kirsch v. Leventhal, 181 A.D.2d 222,224 (3d Dep't 1992). Dated: New York, New York May 5, 2014 MILLER & WRUBEL P.C. By: h ~ 7.._-=---------===- JoelM.~/ 33 S. Christopher Provenzano Nicholas Cutaia 570 Lexington Avenue New York, New York 10022 Tel: (212) 336-3500 Fax: (212) 336-3555 Attorneys for Appellant-Respondent Dechert LLP MORRISON & FOERSTER LLP By: 71~ fl, ~.Ah~ Brett H. Miller 1290 Avenue of the Americas New York, New York 10104 Tel: (212) 468-8000 Fax: (212) 468-7900 Attorneys for Appellant-Respondent Morrison & Foerster LLP K&L GATES LLP By: ~<""~~ Richard S. Miller Brian D. Koosed 599 Lexington Avenue New York, New York 10022 Tel: (212) 536-3922 Fax: (212) 536-3901 Attorneys for Appellant-Respondent K&L Gates LLP QUINN EMANUEL URQUHART & SULLIVAN LLP 4 By: ~p..L /4.~ <;.~ Eric J. Emanuel ' 1 Susheel Kirpalani Eric M. Kay 51 Madison A venue, 22nd Floor New York, New York 10010 Tel: (212) 849-7000 Fax: (212) 849-7100 Attorneys for Appellant-Respondent Akin Gump Strauss Hauer & Feld LLP DUANE MORRIS LLP A Delaware Limited Liability Partnership By: ~ ··~ '1. ~6¢ Lawrence J. Kotler 1540 Broadway New York, NY 10036-4086 Tel: (212) 692-1000 Fax: (212) 692-1020 Attorneys for Appellant-Respondent Duane Morris LLP DORSEY & WHITNEY LLP By: ~1. 'J . .A~/'-./ Patkk J. McLaughlin 1 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402-1498 Tel: (612) 340-2975 Attorneys for Appellant-Respondent Dorsey & Whitney LLP ARENT FOX LLP By: ~ 6, Ab/_e,y Allen G. Reiter 1675 Broadway New York, New York 10019 Tel: (212) 484-3900 Attorneys for Appellant-Respondent Arent Fox LLP KRAMON & GRAHAM, P.A. By: ([;, (/. ~/zV' James P. Ulwick (admitted pro hac vice) Jean E. Lewis (admitted pro hac vice) One South Street, Suite 2600 Baltimore, Maryland 21202 Tel: (410) 752-6030 -and- MEISTER SEELIG & FEIN LLP Jeffrey Schreiber Howard Davis 140 East 45th Street, 19th Floor New York, New York 10017 Tel: (212) 655-2500 Fax: (212) 655-3535 Attorneys for Appellant-Respondent DLA Piper LLP (US) SHEPPARD MULLIN RICHTER & HAMPTON LLP By: rp_.L (. 'f?-..1~ Daniel L. Brown 30 Rockefeller Plaza New York, New York 10112 Tel: (212) 653-8700 Fax: (212) 653-8701 Attorneys for Appellant-Respondent Sheppard Mullin Richter & Hampton LLP