Development Specialists, Inc. v. Dechert LLP

532 B.R. 473, 2015 U.S. Dist. LEXIS 61469, 2015 WL 2180269
CourtDistrict Court, S.D. New York
DecidedMay 7, 2015
DocketNo. 11 Civ 5984(CM)
StatusPublished
Cited by2 cases

This text of 532 B.R. 473 (Development Specialists, Inc. v. Dechert LLP) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Development Specialists, Inc. v. Dechert LLP, 532 B.R. 473, 2015 U.S. Dist. LEXIS 61469, 2015 WL 2180269 (S.D.N.Y. 2015).

Opinion

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO PRECLUDE, FOR A PROTECTIVE ORDER, AND TO DISMISS

McMAHON, District Judge.

Plaintiff Development Specialists, Inc., in its capacity as Plan Administrator for Coudert Brothers LLP, brings this action against Defendant Dechert LLP for avoidance and recovery of fraudulent transfers, turnover of profits, unjust enrichment, and an accounting. Before the court is Docket # 155, Defendant Dechert’s motion, which requests the following relief: (1) an order pursuant to Rule 15(a) precluding Plaintiff from pursuing an accounting claim based on the theory that certain former Coudert Brothers partners delayed recording and billing work in progress performed while at Coudert Brothers until after they joined Dechert; (2) a protective order pursuant to Rule 26(c) prohibiting Plaintiff from taking discovery regarding Dechert’s billing of work in progress for August and September 2005 and regarding negotiations between the departing partners and Dec-hert; and (3) an order dismissing counts 2, 4, 6, 7, and 8 of the amended complaint.

For the reasons stated below, the motion is GRANTED IN PART AND DENIED IN PART.

BACKGROUND

I. The Fall of Coudert Brothers

This action arises out of the bankruptcy of Coudert Brothers LLP (“CB” or “Debt- or”), a New York law firm partnership first organized in 1853. (ComplV 7.) CB’s affairs are governed by a detailed partnership agreement dated December 30, 2004. (Id.)

CB operated in France as Coudert Freres (“CF”), also a New York partnership. (Id. ¶ 8.) CF and CB were “Related Partnership [s]” under Article 4(b) of the CB partnership agreement, and they operated as a worldwide partnership, sharing profits and losses and reporting financial statements on a consolidated basis. (Id. ¶¶ 9-10.) Partners of CF were also partners of CB and partners of CB were also partners.of CF. (Id. ¶ 9.)

In or about 2004, CB experienced declining profits per partner and began considering “potential strategic alternatives.” (Id. ¶ 12.) At some point in 2005, CB’s Executive Board directed that an orderly dissolution analysis be prepared. (Id. ¶ 13.) The Board received that analysis on or about June 9, 2005. (Id.) The analysis projected a deficit of $30.4 million. At that time, CB owed approximately $24.5 million to secured creditors (Citibank and JP Morgan) and approximately $3 million in unsecured bank loans. (Id. ¶ 14.) CB was, in other words, insolvent.1 (Id.)

On August 16, 2005 (“Dissolution Date”), the equity partners of CB voted to wind down the business of the firm and sell the [476]*476firm’s assets to realize their maximum value. (Id. ¶ 15.) The dissolution triggered the “wind down” phase of the Debtor, but it did not terminate the partnership; CB remains in existence today. {Id.)

According to the complaint, Defendant Dechert entered an asset purchase agreement with Coudert2 (the “Paris Transaction”) on October 3, 2005, or two months after dissolution. {Id. ¶ 16.) The sum and substance of the transaction was that CB transferred cash, receivables, Paris office space, and its Paris law library to Defendant, in return for which Dechert offered employment to all associates employed by CF in Paris, paid CB some $248,024 for use of the Paris facilities and 50,000 for the contents of CB’s law library, and assumed CB’s obligations for remuneration and employee benefits accruing to employees of the Paris office after October 5, 2005. {Id. ¶¶ 17, 23.) In connection with the Paris Transaction, several CF partners withdrew from that firm and joined Dechert. {Id. ¶ 18.)

CB did not sell or transfer any of its rights to recover fees or profits generated from its client matters that remained pending on the Dissolution Date as part of the Paris Transaction. {Id. ¶ 19.) The asset purchase agreement governing the Paris Transaction did, however, include a release clause that reads:

Coudert, on behalf of itself and its partners, waives and releases any claim it may have against Dechert or its partners arising from, or relating in any way to, [ ] the withdrawal of the Paris Partners or other Paris legal and non-legal staff from Coudert and or their admission as partners of. Dechert or otherwise becoming employed by Dechert (provided, however, that the foregoing shall not apply to any obligations of Dechert under this Agreement).... {Id. ¶ 21.)

CB also maintained offices in Belgium. The Paris Transaction and the agreement governing it do not relate to the Belgium offices. Nonetheless, after the Dissolution Date, five partners left CB’s Brussels office and joined Dechert as partners. {Id. ¶ 24.) Four of these partners — René Gonne, Pierre-Manuel Louis, Harold Min-jauw, and Fabrice Mourlon — withdrew from CB on September 2, 2005. {Id.) A fifth partner, Eric Deltour, withdrew on September 30, 2005. (Id. ¶ 24.)3

When those partners left CB there were many client matters pending in the Brussels office. {Id. ¶25.) After the former CB partners from the Brussels office joined Dechert, Defendant was retained to conclude some of them. {Id.)

II. The Current Lawsuit

A. Plaintiffs Original Theory and the Appellate Process

Development Specialists (“Plaintiff’), as administrator of CB’s estate, sought to maximize the value of that estate by, inter alia, fifing this adversary proceeding against Dechert and other law firms, to recover alleged property of the estate wrongly transferred to other parties. This court has withdrawn the reference to the Bankruptcy Court in this matter. (Docket # 13). The Administrator’s principal theory of recovery — asserted in Counts 6-8 of its complaint — was that the unfinished “billable hours” business of CB and CF on the Dissolution Date was “property” of the firm within the meaning of Article 40 of [477]*477the New York Partnership Law, for which CB’s former partners — and, ultimately, the law firms where they landed — were accountable to the estate. That contention— which had been accepted by this court in this action, Dev. Specialists, Inc. v. Akin Gump Strauss Hauer & Feld LLP, 477 B.R. 318, 322 (S.D.N.Y.) opinion amended and superseded, 480 B.R. 145 (S.D.N.Y. 2012) rev’d in part, vacated in part sub nom. In re Coudert Bros. LLP, 574 Fed. Appx. 15 (2d Cir.2014), but rejected by my colleague Judge Pauley in another law firm bankruptcy matter, Geron v. Robinson & Cole LLP, 476 B.R. 732, 735 (S.D.N.Y.2012) aff'd sub nom. In re Thelen LLP, 762 F.3d 157 (2d Cir.2014) — was rejected by the New York Court of Appeals, ruling on a certified question from the United States Court of Appeals for the Second Circuit. Specifically, the New York Court of Appeals “h[e]ld that pending hourly fee matters are not partnership ‘property’ or ‘unfinished business’ within the meaning of New York’s Partnership Law.” In re Thelen LLP, 24 N.Y.3d 16, 22, 995 N.Y.S.2d 534, 20 N.E.3d 264 (2014).

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532 B.R. 473, 2015 U.S. Dist. LEXIS 61469, 2015 WL 2180269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/development-specialists-inc-v-dechert-llp-nysd-2015.