Hogan Lovells US LLP v. Howrey LLP

531 B.R. 814, 2015 WL 3505518
CourtUnited States Bankruptcy Court, N.D. California
DecidedJune 3, 2015
DocketCase Nos. 14-cv-04882-JD, 14-cv-04883-JD, 14-cv-04884-JD, 14-cv-04885-JD, 14-cv-04886-JD, 14-CV-04887-JD, 14-cv-04888-JD, 14-cv-04889-JD
StatusPublished
Cited by3 cases

This text of 531 B.R. 814 (Hogan Lovells US LLP v. Howrey LLP) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hogan Lovells US LLP v. Howrey LLP, 531 B.R. 814, 2015 WL 3505518 (Cal. 2015).

Opinion

ORDER ON APPEAL

JAMES DONATO, District Judge

Eight law firms that provided legal services to former clients of debtor How-rey LLP appeal the bankruptcy court’s denial of their motions to dismiss. The debtor’s trustee filed complaints in the bankruptcy court seeking to recover profits from the eight firms after they hired former Howrey partners and were engaged by former Howrey clients. Some of the defendants acquired the partners before Howrey dissolved, others both before and after. Interpreting the law of the District of Columbia, where Howrey operated as a limited liability partnership (“LLP”), the bankruptcy court held that the trustee could pursue profits associated with the partners who left post-dissolution under a fraudulent transfer theory, and profits associated with the pre-disso-lution partners through an unjust enrichment claim.

The Court acknowledges the analysis of an esteemed colleague on the bankruptcy court in this district, but comes to different conclusions on these legal issues, which are not specific to bankruptcy law. Whether a bankrupt partnership has a property interest in substantively new representations of its former clients by competing firms has not been directly addressed in District of Columbia case law. The Court finds that the highest court in the District, the District of Columbia Court of Appeals, is likely to join recent state and federal decisions holding that the third-party firms’ representations are new matters and not partnership property, and that the partnership cannot recover profits associated with the post-dissolution partners earned by the new firms. Since the new matters are not the bankrupt partnership’s property, unjust enrichment theories cannot apply to seize profits associated with the pre-disso-lution partners, either. Consequently, the motions to dismiss are granted and the matters are dismissed with prejudice.

FACTUAL BACKGROUND

In 2011, Howrey LLP, a large and well-known national law firm, collapsed. As Howrey’s troubles began to mount, a number of partners left to join new law firms. See Jones Day’s Excerpts of Record (“ER”) 107 at ¶¶ 114-15, Dkt. No.14-1.1 The final curtain fell on March 8, 2011, when Howrey’s bank prohibited it from using its cash collateral without the bank’s express consent. ER 108 at ¶ 118. Six [818]*818days later, Howrey’s remaining partners voted to dissolve the partnership, effective March 15, 2011. ER 110 at ¶ 129.

At the time of the dissolution vote, How-rey’s partners approved a “Jewel waiver,” named after the California Court of Appeal case of Jewel v. Boxer, 156 Cal.App.3d 171, 203 Cal.Rptr. 13 (1984). Jewel, which was issued by an intermediate appellate court and not the California Supreme Court, held that a former partner owes a duty to account to the other ex-partners for profits “derived by the partner in the conduct and winding up” of the firm’s “unfinished business” — that is, client matters pending at the time of the firm’s dissolution. See Jewel, 203 Cal.Rptr. at 19. The Jewel waiver purported to waive all rights of Howrey’s partners and the partnership itself to the partnership’s “unfinished business.” ER 110 at ¶ 128.

The law firms appealing the bankruptcy court’s order took on one or more former Howrey partners, some of whom left before Howrey’s dissolution, and some after-wards.2 The firms were sued by Howrey’s Chapter 11 bankruptcy trustee for the profits associated with hourly fee work they performed on various client matters that the trustee claimed was Howrey’s “unfinished business.” After two rounds of motions to dismiss, the bankruptcy court allowed the trustee to proceed against the firms. See In re Howrey LLP (Howrey I), Ch. 11 Case No. 11-31376-DM; Adv. No. 13-3095-DM, 2014 WL 507511, at *11-13 (Bankr.N.D.Cal. Feb. 7, 2014); In re Howrey (Howrey II), 515 B.R. 624, 628, 630-32 (Bankr.N.D.Cal.2014).

The bankruptcy court sustained the pre- and post-dissolution claims on different grounds. For the post-dissolution claims, the bankruptcy court held that the trustee could pursue a fraudulent transfer theory because the client matters pending at the time of dissolution were Howrey’s partnership property and the Jewel waiver improperly transferred this property to the partners without reasonably equivalent value provided in return. See id. Since Howrey was insolvent at the time of the transfer, the trustee could “avoid” or nullify the transfer under 11 U.S.C. § 548(a)(1)(B). Howrey I, 2014 WL 507511, at *11. The bankruptcy court also found that the Howrey partners transferred “the right to complete the unfinished business without having to account for any profits” to the law firm defendants, making them immediate transferees of the Howrey partners, and hable to the trustee under 11 U.S.C. § 550(a)(2). Id.

For the pre-dissolution claims, the court allowed the trustee to go forward on an unjust enrichment theory. For this* claim, the trustee alleges that partners who left pre-dissolution conferred an unfair benefit on the law firm defendants by transferring to them the right to profits associated with client matters Howrey had been handling, and that allowing the firms to keep profits generated by the ex-partners would be unjust. Howrey II, 515 B.R. at 630-32.

Defendants each filed timely notices of appeal and motions for leave to appeal. The Court granted leave to appeal in each case, see Dkt. No. 9, and has jurisdiction pursuant to 28 U.S.C. § 158(a)(3).3

[819]*819LEGAL BACKGROUND AND STANDARDS

The Court reviews the bankruptcy court’s legal conclusions de novo. Kontrabecki v. Oliner, 318 B.R. 175, 180 (N.D.Cal.2004). The parties agree that, for purposes of this appeal, District of Columbia law applies, and the decisions of the District of Columbia Court of Appeals, the highest court of the District of Columbia, are therefore binding on this Court. See C.I.R. v. Bosch’s Estate, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) (“The state’s highest court is the best authority on its own law.”); Companhia Brasileira Carbureto de Calicio v. Applied Indus. Materials Corp., 640 F.3d 369, 371 (D.C.Cir.2011) (“The D.C. Court of Appeals is of course the controlling authority for interpretation of D.C. law....”); Vernon v. City of Los Angeles, 27 F.3d 1385, 1391 (9th Cir.1994) (“[A] federal court interpreting state law is bound by the decisions of the highest state court.”). The Court must apply District of Columbia law as it has been decided and not how the Court believes it ought to be. Cabrera v. City of Huntington Park, 159 F.3d 374, 378-79 (9th Cir.1998).

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Cite This Page — Counsel Stack

Bluebook (online)
531 B.R. 814, 2015 WL 3505518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hogan-lovells-us-llp-v-howrey-llp-canb-2015.