Sellick v. Consolidated Edison Company of New York, Inc.

Filing 74

OPINION & ORDER re: 52 AMENDED MOTION for Attorney Fees (to assert Charging Lien Pursuant to N.Y. Judiciary Law Section 475) filed by Legal Momentum, 55 AMENDED MOTION to Seal Document filed by Legal Momentum, [6 5] MOTION to Seal Document filed by Sharron Sellick. For the reasons set forth above, IT IS HEREBY ORDERED that LM's motion for a charging lien pursuant to Section 475 (Doc. No. 52) is GRANTED, and that LM is entitled to r ecover a 15% pro rata share of the attorney's fees collected out of any settlement. IT IS FURTHER ORDERED that Plaintiff's motion to redact is GRANTED, and LM's motion to redact exhibit 7 of its opening declaration is also GRANTED. (Doc. Nos. 55, 65.) IT IS FURTHER ORDERED that LM shall file a letter brief and declaration no later than March 29, 2017 explaining why its July 26, 2016 reply declaration and Exhibits 1 and 7 of its July 28, 2016 reply declaration s hould remain under seal. (Doc. Nos. 71, 73-1, 73-7.) The Clerk is respectfully directed to terminate the motions pending at docket numbers 52, 55, and 65. In light of the parties' representation that they have reached a settlement in principl e, IT IS FURTHER ORDERED that this case is dismissed with prejudice but without costs. However, within thirty days of the date of this Order, any party may send a letter requesting to restore this action to the docket with an explanation for the request. The Clerk is respectfully directed to close this case. (As further set forth in this Opinion & Order.) (Signed by Judge Richard J. Sullivan on 3/23/2017) (mro) Modified on 3/24/2017 (mro).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

SHARRON SELLICK,
Plaintiff,
-v-

No. I 5-cv-9082 (RJS)
OPINION & ORDER

CONSOLIDATED EDISON COMPANY OF
NEW YORK, rNC.,
Defendant.

RICHARD J. SULLIVAN, District Judge:
The Court is in receipt of motions by: (I) non-party Legal Momentum ("LM") to assert a
charging lien pursuant to N.Y. Judicial Law § 475 (Doc. No. 52) and to permanently redact
exhibit seven of its supporting declaration (Doc. No. 55; see also Doc. No. 54-7), and (2)
Plaintiff Sharon Sellick to permanently redact certain references in her opposition brief that detail
the terms of her contemplated confidential settlement with Defendant (Doc. No. 65). For the
reasons set forth below, LM ' s charging lien motion is granted as to a fifteen (15) percent pro rata
share of the attorney's fees collected out of Plaintiffs settlement. The parties' motions to redact
are also granted.
I. BACKGROUND

Plaintiff began working for Defendant Consolidated Edison Company of New York, Inc.
("Con Ed" or "Defendant") in 2000. (Doc. No. 63 ("Sellick Deel.")

ii

3.) On July 18, 2007,

Plaintiff retained LM to serve as counsel in connection with her complaints of unlawful sex
discrimination by Defendant. (Doc. No. 54-1.) Under the terms of Plaintiffs retainer agreement
with LM, LM agreed to represent Plaintiff in proceedings before the Equal Employment
Opportunity Commission ("EEOC"). (Id.

ii 3.)

Plaintiff also promised to assign a court award of

attorney" s fees to LM and to not accept a settlement for her claims "unless it makes some
provision for [LM's] costs and attorney' s fees. " (Id.

iii! 7- 8.)

Plaintiff acknowledges that LM " spent considerable time interviewing witnesses and
researching the possibility of pursuing a broader, systemic case against Con Ed." (Doc. No. 62
("Pl. Opp' n") at 6.) In September 2007, LM filed Plaintiffs EEOC charge, which was amended
in November 2007. (Sellick Deel.

iJ 19.) Although LM represented Sellick in connection with

the EEOC proceedings that followed (Doc. Nos. 54 iJ 5, 54-4), Plaintiff also retained the services
of Mariann Wang ('·Ms. Wang") to represent her in August 2009 (Sellick Deel. iJ 22). 1 Since that
time, "Ms. Wang has taken the lead in representing" Plaintiff, although " a revolving door" of
various attorneys at LM remained involved in Plaintiffs representation for the next six years.
(Id. iMJ 25- 26; see also Doc. Nos. 54-3, 54-4.) In November 2011, the EEOC issued a probable

cause finding concerning the discrimination claims brought by Plaintiff and eight other women.
(Sellick Deel.

iJ 27.)

Thereafter, Plaintiff engaged in a "years-long conciliation process before

the EEOC," along with a private mediation, and Plaintiff cooperated with an investigation
brought by the New York Attorney General's Office into employment discrimination by
Defendant. (Id.

iii! 27-29.)

On August 21 , 2015, the EEOC issued its "Notice of Right to Sue" letter. (Id.

iJ 32.)

On

November 18, 2015, LM's representation of Plaintiff was terminated. (Doc. No. 54-8.) That
same day, Plaintiff filed suit in this Court alleging unlawful discrimination and retaliation by
Defendant in violation of Title VII, 42 U.S.C. § 2000e, et seq. and the New York City Human
Rights Law, N.Y.C. Admin. Code § 8-107, et seq. (Doc. No. 1.) Since that date, only two

1

Although Ms. Wang was affiliated with the law finn of Emery Celli Brinckerhoff & Abady LLP when she began
representing Plaintiff in August 2009, she has since joined the law finn of Cuti Heckler Wang LLP ("CHW"). (Doc.
No. 64 ~ 8.)

2

attorneys have entered notices of appearance on Plaintiff's behalf - Ms. Wang and her associate,
Alice G. Reiter, of the law finn Cuti Heckler Wang LLP. (Id. at 22; see also Doc. Nos. 2, 5.)
After several months of discovery, the Court granted the parties' May 11 , 2016 request to
stay all discovery deadlines in order to faci litate settlement negotiations. (Doc. Nos. 32, 33.) On
May 23, 2016, the parties submitted a joint letter indicating that they were "close to a settlement"
and requesting that the discovery stay continue.

(Doc. No. 34.)

However, Plaintiff and

Defendant also indicated that "at least one important issue remains to be resolved invo lving"
Plaintiff's " fonner counsel , [LM]." (Id. at 1- 2; see also Doc. No. 54-8.) On May 26, 2016, LM
appeared in this action as an interested party and submitted a letter regarding its contemplated
motion to impose a charging lien upon any settlement in Plaintiff's favor. (Doc. No. 36.) On
June 6, 2016, the Court held a pre-motion conference with the parties and LM concerning LM ' s
contemplated motion for a charging lien. (Doc. No. 50.)
The Court ordered a deadline of June 20, 2016 for LM' s charging lien motion. (Id. at
54:6- 8.) Although LM initially filed its motion and accompanying submissions on June 20,
2016 (Doc. Nos. 44, 45, 46), LM submitted an amended charging lien motion, amended
declaration, and amended motion to seal exhibit seven of its declaration on June 22, 2016
without seeking leave of the Court (Doc. Nos. 52, 53 ("Mem."), 54, 55, 56). Thereafter, Plaintiff
filed a brief opposing the charging lien motion (Doc. No. 62), along with an ancillary motion to
pem1anently redact a handful of references in her opposition brief to the terms of her
contemplated confidential settlement with Defendant (Doc. Nos. 65, 66, 67). On July 22, 2016,
Defendant filed a brief opposing the charging lien motion.

(Doc. No. 68 ("Def. Opp' n").)

Although the Court ordered LM to file a single reply brief by July 26, 2016 addressing " both
Plaintiff's and Defendant's responses" (Doc. No. 61 at 2), LM filed a declaration and brief
responding to Plaintiff's opposition on July 26, 20 17 (Doc. Nos. 70, 71), a brief responding to

3

Defendant's opposition a day later, on July 27, 2017, and a declaration in further support of the
motion on July 28, 2017 (Doc. Nos. 72, 73). Notwithstanding LM 's repeated failures to comply
with the Court' s scheduling orders, the Court has considered LM's late submi ssions on this
motion.
II. CHARGING LI EN

The Court first turns to LM ' s motion to impose a charging lien on the proceeds of any
settlement in this case.

New York Judiciary Law Section 475 ("Section 475") "governs

attorneys' charging liens in federal cou11s sitting in New York." !tar-Tass Russ. News Agency v.

Russ. Kurier, Inc., 140 F.3d 442, 448 (2d Cir. 1998). 2 " A charging lien is a security interest in
the favorable result of litigation, giving the attorney [an] equitable ownership interest in the
client' s cause of action and ensuring that the attorney can collect his fee from the fund he has
created for that purpose on behalf of the client." Charnow v. Charnow, 134 A.D.3d 875, 876 (2d
Dep' t 2015) (citation omitted). The charging lien exists " [t]rom the commencement of an action,
special or other proceeding in any court or before any state, municipal or federal department,
except a department of labor,.. N.Y. Judiciary Law § 475, but it "only attaches when proceeds
from an identifiable fund are created by an attorney's own efforts in the action or proceeding," In

re Air Crash at Belle Harbor, No. 02-cv-4758 (RWS), 2006 WL 3247675, at *2 (S.D.N.Y. Nov.
9, 2006).
As the Second Circuit and other courts applying New York law have made clear, a
charging lien ·'is for the benefit of an 'attorney of record' only." !tar- Tass, 140 F.3d at 450
(collecting cases). Thus, "before an attorney can be granted a lien pursuant to [Section 475], he

2

The pa rties do not dispute that this Court may exerc ise supplemental jurisdiction over LM 's motion under Section
475. Indeed, the law is c lear that " [f]ederal courts may exercise supplementa l jurisdiction ' to hear fee disputes
between litigants and their attorneys when the dispute relates to the main action,"' Alderman v. Pan Am World
Ainmys, 169 F.3d 99, 101 - 02 (2d Cir. 1999) (c itation omitted), and the Second Circuit has found that the exerc ise
of supplemental jurisdiction over charging lien disputes is generally appropriate, see !tar- Tass, 140 F.3d at 448.

4

or she must have appeared for the client by 'participating in a legal proceeding on the client's
behalf or by having his [or her] name affixed to the pleadings, motions, records, briefs, or other
papers submitted in the matter. "' Picciolo v. State, 287 A.D .2d 72 1, 722 (2d Dep't 200 I)
(quoting Cataldo v. Budget Rent A Car Corp., 226 A.D.2d 574, 574 (2d Dep' t I 996)). An
attorney of record who has been discharged by her client ··maintains ... her right to enforce the
statutory lien," so long as her '·representation terminates upon mutual consent, and there has been
no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney."
CPMI, Inc. v. Kola}, 137 A.D.3d 953, 955- 56 (2d Dep't 20 16) (citation omitted); accord Klein v.
Eubank, 87 N.Y.2d 459, 464 (1996). Thus, "an attorney need not be counsel of record at the

time the judgment or settlement fund is created in order to be entitled to the lien afforded by
Judiciary Law§ 475." Klein, 87 N.Y.2d at 462.
LM maintains that it is entitled to assert a charging lien in this action because of its work
on Plaintiff's behalf before the EEOC and based on the retainer agreement Plaintiff entered in
connection with that representation in 2007. (Mem. I 0-17.) While the Court agrees that LM is
entitled to a charging lien, it reaches that conclusion for reasons other than those raised by LM in
its principal brief.
LM repeatedly asserts that it is entitled to fees because its fonner client, Ms. Sellick, is a
'·prevailing party" under Title VII. (See, e.g., Mem. 12; id. at I 0 (citing Watson v. E.S. Sutton,
Inc., No. 02-cv-2739 (THK), 2006 WL 6570643, at *1 (S.D.N.Y. Aug. 11 , 2006), report and
recommendation adopted as modified, No. 02-cv-2739 (KMW), 2007 WL 2245432 (S.D.N.Y.

Aug. 3, 2007)).) This argument reflects a fundamental misapprehension of law. Under Title VII,
"the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee
(including expert fees) as part of the costs.'" 42 U.S.C. § 2000e-5(k). However, as the plain
language of the statute makes clear, "the person who is entitled to the award of [attorney' s] fees
5

is the prevailing party rather than the lawyer.'· Valley Disposal Inc. v. Cent. Vt. Solid Waste
Mgmt. Dist., 113 F.3d 357, 361 (2d Cir. 1997) (internal quotation marks omitted); see also
Brown v. Gen. Motors Corp. , Chevrolet Div., 722 F.2d I 009, l 01 1 (2d Cir. 1983) (attorney
lacked standing to move for fees ''in his own name as the real party in interest"); cf Watson,
2006 WL 6570643, at *2 (plaintiff, at close of jury trial in which she prevailed, moved for fees
under Title VII "on behalf of each of the three finns which represented her"). 3 Accordingly,
LM·s argument that it is entitled to fees based on Title VII must be rejected, since it is Ms.
Sellick - and not her former lawyers - who has standing to move under that provision, and she
has not done so.
More importantly, the law is clear that only a " prevailing party.. is entitled to fees under
Title VII. See Buckhannon Bd. & Care Home, inc. v. W Va. Dep '/ of Health & Human Res. , 532
U.S. 598 (2001 ). Thus, "plaintiffs are only eligible for (attorney's] fees if they 'achieve some
material alteration of the legal relationship' between them and their adversaries, and that change
bears a 'judicial imprimatur."' Perez v. Westchester Cty. Dep't of Corr., 587 F.3d 143, 149 (2d
Cir. 2009) (emphasis in original) (quoting Roberson v. Giuliani, 346 F.3d 75, 79-80 (2d Cir.
2003)). Here, there is absolutely no evidence that the parties intended this Court to 'j udicially
sanction[]" their settlement. See id. at 151; see also Sanchez ex rel. Sanchez v. Patterson, 328 F.
App'x 689, 691 (2d Cir. 2009) (plaintiff was not ·'prevailing party" where district judge "did not
enter a judgment on the merits, a consent decree, or an order of dismissal in which it retained
jurisdiction or incorporated the terms of a settlement agreement"). To the contrary, this Court

3 Although Valley Disposal and Brown were decided under 42 U.S.C. § 1988, which is the fee-shifting provision for
suits brought under 42 U.S.C. § 1983, the Second Circuit has instructed courts to construe Section 2000e-5(k) " in the
same fashion" as Section 1988, since both provisions authorize fees for the "prevailing party." Reed v. A. W.
Lawrence & Co., 95 F.3d 1170, 1183 n.16 (2d Cir. 1996) ("[O]pinions regarding fees in cases decided under
sections 1983 and 1988 ... are authoritative in the Title VII context."); see also Baker v. D01ji11an, No. 99-cv-9385
(DLC), 2000 WL 120 1467, at *5 (S.D.N.Y. Aug. 22, 2000) (noting that Brown stands for the general proposition
that "an attorney may not claim attorney's fees in his own name as the real party in interest where, under the
applicable substantive Jaw, it is the party who is entitled to the fees").

6

has not had any involvement in Plaintiff's and Defendant's resolution of the Title VII
discrimination claim. In fact, Defendant represents, and Plaintiff does not appear to dispute, that
the parties '·intend to enter into an ordinary private settlement without the Court ' s approval or
involvement in the settlement' s terms." (Def. Opp'n 16); see also United States v. 115-98 Park

Lane S , No. 10-cv-3748 (BMC), 2012 WL 3861221, at *5 (E.D.N.Y. Sept. 5, 2012) (plaintiff
was not a prevailing party where court was not involved in parties ' settlement discussions and
did not '"make any changes to the terms of their settlement"), aff'd sub nom. United States v.

Capital Stack Fund, LLC, 543 F. App' x 17 (2d Cir. 20 13); cf Perez, 587 F.3d at 148-49 (private
settlement bore judicial imprimatur where district judge " played an integral role in the resolution
of the suit." oversaw settlement conferences, "advised the parties on how they should expect the
law to come out," and "reviewed and revised the settlement agreement with the parties," among
other things). Thus, even assuming that LM somehow had standing to move for fees under Title
Vil, the application would almost certainly fail because Plaintiff is not a "prevailing party."
LM also relies heavily on a retainer agreement executed in connection with its
representation of Plaintiff before the EEOC. (Mem. 8- 9, 12; Doc. No. 70 at 6- 7.) It is true that
Plaintiff signed a retainer agreement with LM in 2007 that includes a provision "assign[ing] any
award of attorney['s] fees to [LM]" and an agreement by Plaintiff ·'not to accept a settlement" for
her claims ·'unless it makes some provision for costs and [attorney's] fees. '" (Doc. No. 54-1

ifil

7- 8.) But the law is well settled that the existence of a retainer agreement between an attorney
and client "is insufficient to create a charging lien. " Louima v. City of New York, No. 98-cv5083 (SJ), 2004 WL 2359943, at *58 (E.D.N.Y. Oct. 5, 2004), aff'd sub nom. Roper-Simpson v.

Scheck, 163 F. App ' x 70 (2d Cir. 2006) (quoting Ebert v. N. Y. City Health & Hasps. C01p., 210
A.D.2d 292, 292 (2d Dep' t 1994)); see also Rodriguez v. City ofNew York, 66 N.Y.2d 825, 82728 (I 985) (attorney who had retainer agreement with client was not entitled to charging lien,
7

since attorney's ·'name never appeared on any of the pleadings, motion papers, affidavits, briefs
or record in plaintiffs action''). Accordingly, LM is not entitled to a charging lien on this basis
either.
Notwithstanding the sloppiness of LM ' s submissions, the Court still concludes that LM is
entitled to assert a charging lien on the proceeds of any settlement in this action. As set forth
earlier, the plain language of Section 475 provides that " [f]rom the commencement of an
action ... the attorney who appears for a party has a lien upon his or her client's cause of action,

claim or counterclaim, which attaches to a verdict, report, detennination, decision, award,
settlement, judgment or final order in hi s or her client's favor ... ." Section 475 (emphasis
added). The New York Court of Appeats·s opinion in Cohen v. Grainger, Tesoriero & Bell, 81
N.Y.2d 655 (1993) - a case that was overlooked by LM in its opening brief and first reply brief
on this issue - provides a particularly instructive interpretation of Section 475. In that case,
Cohen's client, a personal injury plaintiff, discharged him while his state-court suit was pending.
The client's successor attorney thereafter filed a separate action on the same claim in federal
court, where the client obtained a recovery. The New York Court of Appeals granted Cohen's
motion for a charging lien under Section 475, concluding that a charging lien "is imposed on the

cause of the action" and that "the proceeds, wherever found, are subject to it . .. even if recovery
is obtained in an action different from the one in which the services were rendered." Cohen, 81
N.Y.2d at 658. In reaching this determination, the Court of Appeals relied on an older Second
Depaitment decision, which concluded that "[t]he attorney' s lien attaches to the client's cause of
action, and any recovery thereon, albeit the recovery is effected in an action other than the action
in which the services were rendered ... especially ... where the recovery is in an action which is
a logical sequence of a prior action in connection with which the services were rendered."

Neimark v. Martin, 7 A.D.2d 934, 934 (2d Dept. 1959). Following Neimark, Judge Castel

8

reached a similar conclusion last year. See Mason v. City of New York, No. 12-cv-5885 (PKC),
2016 WL 2766652, at *3 (S.D.N.Y. May 12, 2016) (concluding that attorney who appeared as
counsel of record "on a different action" may enforce "a charging lien against the proceeds of the
settlement in this case," since the other action involved the same claims and the cases were " in
' logical sequence'").
Here, there is no dispute that LM appeared on Plaintiffs behalf before the EEOC, where
Plaintiff initially litigated her employment discrimination claim. In addition, the EEOC action
was a "proceeding in . .. [a] federal department" to which a lien may attach under Section 475.

See Bonnaig v. Walton, 115 A.D.3d 595, 595 (1st Dep' t 2014) (attorney' s filing of EEOC charge
on client' s behalf "constituted the 'commencement of a proceeding' before a ' federal
department' within the meaning of former section 475"). There also is no allegation by any of
the parties that LM was terminated because of "misconduct," "for just cause," or due to
"unjustified abandonment."

See CPMI, Inc., 137 A.D.3d at 956.

And although LM never

appeared on Plaintiffs behalf in this Court, it must be acknowledged that Plaintiff's federal suit
was of "a logical sequence" from the EEOC proceeding, see Nelmark, 7 A.D.2d at 934, since a
Title VII plaintiff "must first exhaust [her] administrative remedies by 'filing a timely charge
with the EEOC or with a [s]tate or local agency with authority to grant or seek relief from such
practice,"' Roth v. Farmingdale Pub. Sch. Dist., No. 14-cv-6668 (JFB) (ARL), 2017 WL 395211 ,
at *9 (E.D.N.Y. Jan. 30, 2017) (quoting Holtz v. Rockefeller & Co. , 258 F.3d 62, 82- 83 (2d Cir.
2001)). Accordingly, the Court concludes that LM's lien attached to Plaintiffs " cause of action"
- her claim for employment discrimination - and that LM is entitled to assert a charging lien on
Plaintiffs recovery in this proceeding.
Defendant, relying on different cases, argues that LM is not entitled to a charging lien,
since it never appeared in this Court and " [s]imply representing a client in a matter related to a

9

proceeding where a settlement is procured ... is not enough" to obtain a charging lien under
Section 475. (Def. Opp' n 10.) Several decisions applying New York law ostensibly support
Defendant's position. For instance, Judge Kaplan concluded that a court may ''grant[] a charging
lien to an attorney only when there has been an appearance by that attorney in [the] action which
creates or is the source of the funds against which the lien is asserted."

Chevron Co1p. v.

Donziger, No. 11 -cv-0691 (LAK), 2011 WL 2 150450, at *3 (S.D.N.Y. May 31 , 20 11) (quoting
Weg & Myers, P. C. v. Banesto Banking Co1p., 175 A.D.2d 65, 66 (1st Dep 't 1991 )). Magistrate
Judge Tomlinson, in a report and recommendation adopted by Judge Kuntz in the Eastern
District of New York, likewise concluded that "[a]n attorney' s representation of a client in one
proceeding does not entitle the attorney to a charging lien over proceeds in a separate case or
proceeding where the attorney did not appear as counsel." Galvez v. Aspen Co1p., 967 F. Supp.
2d 615, 625 (E.D.N.Y. 20 13); see also Max E. Greenberg, Cantor & Reiss v. State, 128 A.D.2d
939, 940 (3d Dep' t 1987) (attorney who appeared on client' s behalf in state proceeding but was
not counsel of record in related federal action "which produced the settlement" was not entitled
to charging lien over settlement proceeds from federal action), leave to appeal denied, 70 N.Y.2d
605 (1987).
Even so, the Third Department's decision in Max E. Greenberg and the First
Department' s decision in Weg & Myers on which Chevron relied predated Cohen, and Chevron
omits any mention of Cohen in its analysis. And while Galvez attempts to distinguish Cohen, the
Court finds Galvez' s gloss on Cohen to be unpersuasive. Specifically, Judge Tomlinson read

Cohen to represent an "exception[] to the rule that the attorney must appear in the action which
creates the source of funds against which a lien is sought" that applies only to cases where the
"client and his or her new attorney could file a new action in order to destroy the first attorney's
rights." Galvez, 967 F. Supp. 2d at 625- 26. The Court respectfully disagrees with Galvez's
10

suggestion that Cohen is limited to situations of collusion between a client and his new lawyer,
rather than being a rule applicable to all charging lien motions under New York law. According
to Cohen, the ·'rule" in New York is that a lien under Section 475 " is imposed on the cause of the
action[,] and . . . the proceeds, wherever found, are subject to it ... even if recovery is obtained
in an action different from the one in which the services were rendered.'. Cohen, 8 1 N.Y.2d at
658.

Thus, the New York Court of Appeals "[held] that Cohen 's rights attached when he

commenced the state action and he [was] entitled to a statutory lien against the proceeds of the
Federal action."

Id.

Here, LM's rights attached when it commenced the EEOC action on

Plaintiff's behalf, and the proceeds of Plaintiffs settlement of her discrimination claim are
"subject to" the lien, even though her recovery was '·obtained in an action different from the one
in which [LM' s] services were rendered." See id.
Plaintiff also argues that LM is ineligible to attach its charging lien to a settlement
obtained in this Court because, under the terms of LM ' s retainer agreement, LM ' s representation
of Plaintiff expired at the close of EEOC proceedings. (Pl. Opp 'n 21 - 25 (citing Shaw v. Mfrs.
Hanover Tr. Co., 68 N.Y.2d 172 (1986).) Although, as discussed earlier, a retainer agreement

between an attorney and client "is insufficient to create a charging lien," louima, 2004 WL
2359943, at *58; Rodriguez, 66 N.Y.2d at 827- 28, New York law suggests that an attorney may
be ineligible for a fee award if a retainer agreement conditions her right to obtain fees on
recovery in a specific proceeding, and the plaintiff does not recover in that specific proceeding.
Thus, in Shaw, the New York Court of Appeals denied a charging lien on the proceeds from a
successful appeal and second trial to an attorney who had withdrawn after the unsuccessful
verdict in the first trial, where the contingent fee retainer agreement limited the attorney's
recovery to the damages obtained at that first trial. 68 N.Y.2d at 177. Consequently, Plaintiffs
attempt to analogize this case to Shaw is unpersuasive, since LM's retainer agreement
11

unambiguous ly provided for an award of attorney's fees to LM in the event that Plaintiff either
settled or prevailed in her district court case after LM's withdrawal. (Doc. No. 54-1

~~

3, 7-9);

see also Doviak v. Lowe's Home Ctrs. , Inc., 134 A.D.3d 1324, 1327-28 (3d Dep·t 20 15)
(similarly distingui shing Shaw and awarding charging lien where retainer .. provided for a
reasonable fee should there be an appeal").
Accordingly, LM is entitled to a statutory lien against the proceeds of the settlement of
Plaintiffs employment di scrimination claim in this case, and as a result, the Court must
determine the value of LM 's charging lien. In that regard , the law is clear that " [a] s against the
client, a discharged attorney may recover the ' fair and reasonable value ' of the services rendered,
determined at the time of discharge and computed on the basis of quantum meruit. " Cohen, 81
N.Y.2d at 658 (internal citations omitted). Where a dispute is between a discharged attorney and
a new attorney, however, the "discharged attorney may elect to receive compensation
immediately based on quantum meruit or on a contingent percentage fee based on his or her
proportionate share of the work perfom1ed on the whole case." Id. ·'[A] contingent percentage
fee is properly detennined at the end of litigation when the amount of the recovery and the
relative contributions of the lawyers to it can be ascertained." Lai Ling Cheng v. Modansky

Leasing Co., 73 N.Y.2d 454, 459 (1989).
Here, LM does not seek fees from Plaintiff on a quantum meruit theory. (Mem. 16.)
Instead, it seeks to recover its "proportionate share" of any award of attorney's fees from
Plaintiffs settlement with Defendant. (Id. (quoting Cohen, 81 N.Y.2d at 658).) The Court must
therefore evaluate "the proportionate contributions" of Plaintiffs attorneys in this matter - LM
and Ms. Wang - based "on the time and labor spent by each, the actual work performed, the
difficulty of the questions involved, the skill required to handle the matter, the attorney's skills
and experience, and the effectiveness of counsel in bringing the matter to resolution." Mason,
12

2016 WL 2766652, at *5 (quoting Buchta v. Union Endicott Cent. Sch. Dist. , 296 A.D.2d 688,
689-90 (3d Dept. 2002)) (brackets omitted). The detem1ination of a '·proportionate share ... is a
matter within the sound discretion of the court." Ficaro v. Alexander, I 42 A.D.3d I 043, I 043
(2d Dep't 2016) (internal citations omitted); see also Foppiano ' " City of New York, No. 00-cv7968 (FM), 2002 WL 31202716, at *5 (S.D.N.Y. Sept. 25, 2002) (" Scientific precision is, of
course, impossible in determining how to allocate a contingency fee."). 4
Upon review of the declarations submitted in connection with this motion and the record
of this case, it is clear that Ms. Wang' s contributions in ·'bringing [this] matter to resolution"
were significantly more substantial than LM's. See Mason, 2016 WL 2766652, at *5. Indeed,
while LM was instrumental in the early investigation of Plaintiffs claims and initiation of the
EEOC action in 2007 (Sellick Deel.

iii! 4-18),

Plaintiff explains that Ms. Wang has "taken the

lead" in representing Plaintiff since 2009 and negotiated a successful settlement for Plaintiff that
"far surpassed any offer obtained" through Plaintiff's pre-litigation efforts at the EEOC and in
mediation (id.

iii! 26, 36); see also Buchta, 296 A.D.2d at 690 (awarding 65% of total counsel fee

to attorney who negotiated the settlement, I 0% to attorney who conducted initial, three-year-long
investigation, and 25% to attorney who initiated suit and represented plaintiff during discovery).

In fact, as LM acknowledges in its reply declaration, it was "nowhere close to settling'' Plaintiffs
case during the course of its representation of her. (Doc. No. 73 iJ 23.)
Furthennore, while both LM and Ms. Wang claim to have spent hundreds of hours in
connection with their representations of Plaintiff (Doc. Nos. 54-3, 54-4, 64 iii! 21, 23), Ms. Wang
has engaged in more challenging work on Plaintiff's behalf. Although both LM and Ms. Wang

4

Although Ms. Wang and her associate did not submit contemporaneous time records in opposing LM's motion, the
Court finds there to be ·'sufficient data" in the lengthy declarations filed by the parties to determine a "reasonable
apportionment of the fees" between LM and Ms. Wang. See Greenberg v. Cross Island Indus., Inc., 522 F. Supp. 2d
463, 469 (E.D.N.Y. 2007).

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represented Plaintiff before the EEOC and in mediation, Ms. Wang has been the lead attorney
since 2009 and has assumed total responsibili ty for Plainti ff's federal court suit. (Sellick Deel. iJ
26.) In so doing, Ms. Wang drafted a complaint that complied with Rule 8 of the Federal Rules
of Civil Procedure (Doc. No. l); appeared on Plaintiff' s behalf at court co nferences; exchanged
and reviewed " tens of thousands of pages of documents"; engaged in motion practice (Doc. Nos.
27, 30, 3 I); and secured a successful settlement in her client' s favor. See Greenberg, 522 F.
Supp. 2d at 469 (Jaw finn that ''did the proper and necessary preliminary work" in personal injury
suit was entitled to five percent of net attorney's fees, while other finn that "responded to
defendants' outstanding discovery demands; amended the complaint; added a party; conducted
further discovery and depositions; retained a medical expert; and secured the settlement" was
entitled to remaining fees).
As between Ms. Wang and the lawyers who have appeared on LM ' s behalf in this Court,
there is also a striking disparity in terms of their skill and the quality of their perfonnance in this
litigation.

Ms. Wang' s submissions have been carefully reasoned and well drafted, and Ms.

Wang and her associate have conducted themselves professionally and respectfully throughout
the proceedings. (Doc. Nos. 1, 21, 31 , 32, 62, 64, 66, 67.) The same cannot be said for LM' s
attorneys. Indeed, since their first appearance before this Court in May 2016 (Doc. Nos. 35, 41),
LM ' s attorneys in this matter have frequently mischaracterized New York law and Title VII in
their briefs and at the parties' pre-motion conference (see Mem. 12- 14; see also Doc. No. 50 at
13:1- 9, 18:1 1- 18). LM also flouted this Court' s orders and its Individual Rules and Practices on
several occasions.

For example, as described earlier, LM submitted an ·'amended motion"

without leave of the Court, two days after the Court' s deadline.

(Doc. Nos. 52, 53, 54.)

Fmthennore, notwithstanding this Court ' s explicit directive to file a single reply by July 26, 2017
(Doc. No. 6 I), LM filed one reply brief on July 26, 2017 (Doc. Nos. 70, 7 I), and, without leave
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of the Court, fil ed a second, separate reply brief a day after the deadline and a declaration
accompanying that reply bri ef two days after the deadline (Doc. Nos. 72, 73). Furthermore,
although Rule 3 of the Comi· s Indi vidual Rules and Practices requires parties to submit a brief
and decl aration in connection with any sealing request, LM filed its first repl y declaration
entirely under seal and filed exhibits one and seven of its second reply declaration under seal
without also filing a brief and declaration supporting their sealing request. (Doc. Nos. 7 1, 73 -1,
73-7.) Taken together and considered as a whole, these facts also weigh in favor of Ms. Wang' s
recovering a greater share of fees. See Gordon v. Site 16117 Dev., LLC, No. l l-cv-0427 (RMB)
(AJP), 2011 WL 3251520, at *6 (S.D.N.Y. July 28, 2011) (finding that the "poor quality of
counsel ' s work justifies an even greater reduction in the fee award'").
Accordingly, having carefully reviewed the entire record and assessed in particular '·the
time and labor spent by" Ms. Wang and LM, "the actual work performed, the difficulty of the
questions invol ved, the skill required to handle the matter, the attorney's skills and experience,
and the effectiveness of counsel in bringing the matter to resolution," see Mason, 2016 WL
2766652, at *5 (brackets omitted), the Court has little difficulty concluding that LM is entitled to
no more than a fifteen ( 15) percent pro rata share of attorney' s fees collected out of the settlement
of this matter, see Borg v. 86th & 3rd Owner, LLC, No. 08-cv-05913 (RJH), 2012 WL 234383, at
*9- 10 (S.D.N.Y. Jan. 24, 2012) (collecting cases where parties who participate in preliminary
stages of case "recover[ ed] between I 0% and 25% of an eventual attorneys' fee").

Ill.

SEALING

Both Plaintiff and LM have moved to permanently redact certain portions of their
submissions. The Second Circuit has articulated a three-step inquiry for determining whether
documents submitted to the Court may be sealed in light of the presumption of open access to
"judicial documents." Lugosch v. Pyramid Co. of Co. a.( Onondaga, 435 F.3d 110, 119 (2d Cir.
15

2006). First, in order for the presumption of open access to attach, the documents at issue must
be ·'judicial documents," which are "item[s] filed [that are] relevant to the performance of the
judicial function and useful in the judicial process.'· Id. at 119. Second, if the documents at
issue are ·'judicial;' the Court must then determine the weight of the presumption of access by
considering the value of the information in the '·exercise of Article III judicial power and the
resultant value of such information to those monitoring the federal courts.'· Id. Finally, the
Court ..must balance competing considerations.. against the presumption of access. Id. at 119-20
(citation and quotation marks omitted). "Such countervailing factors include but are not limited
to the danger of impairing law enforcement or judicial efficiency and the privacy interests of
those resisting disclosure.''

Id. at 120 (internal quotation marks omitted).

"The burden of

demonstrating that a document submitted to a court should be sealed rests on the party seeking
such action .... " DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir. 1997).
Here, Plaintiff has moved to permanently redact a handful of phrases and sentences in her
opposition brief that detail the terms of her confidential settlement with Defendant, including the
dollar amount of Plaintiff's recovery. (Doc. No. 66.) It is clear that Plaintiff's opposition brief is
a 'judicial document," since the CoUJ1 has relied on it in deciding LM's charging lien motion and
that the presumption of open records with respect to her submission is strong given its "resultant
value" to " monitoring'· this Court's dete1mination of this motion. Lugosch, 435 F.3d at 119; see
also Worldwide Home Prod., Inc. v. Bed, Bath & Beyond, Inc., No. 1 l-cv-3633 (LTS) (MHD),
2015 WL 1573325, at *6 (S.D.N.Y. Apr. 9, 20 15) (affording '·the strong presumption of public
access to court documents" filed in connection with attorney' s fee dispute). Even so, the paiiies '
interest in maintaining the confidentiality of their settlement is clearly a countervailing interest
that may overcome the presumption in favor of open records where, as here, ·'the settlement itself
was conditioned on confidentiality" and "the settlement documents were not filed with the court
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and were not the basis for the court's adjudication." Gambale v. Deutsche Bank AG, 377 F.3d
133, 143-44 (2d Cir. 2004) (recognizing that '·honoring the parties' express wish for
confidentiality may facil itate settlement, which comts are bound to encourage"). The Court finds
that Plaintiff's limited redaction requests of details related to her contemplated confidential
settlement are "narrowly tailored to serve" the parties' interest in maintaining the confidentiality
of their settlement. lugosch, 435 F.3d at 120; see also Perez v. Jupada Enterprises, Inc., No. 10cv-311 8 (JMF), 20 12 WL 3042928, at *4 (S .D.N.Y. July 25, 2012) (authorizing limited redaction
of statements in parties' letters that detail plaintiffs' proposed settlement of their "retaliation
claims," since they "are not subject to Court approval").
For similar reasons, LM's motion to pennanently seal Exhibit 7 of its openmg
declaration, which contains a handful of emails exchanged between Plaintiff's attorneys at the
law firm of Cuti Hecker Wang LLP and LM related to settlement negotiations (Doc. No. 54-7), is
also granted. However, with respect to LM's first reply declaration, dated July 26, 2016, and
Exhibits 1 and 7 to LM's second reply declaration, dated July 28, 2016, LM has failed to submit
a brief and affidavit in support of those sealing requests, as required by Rule 3 of the Court's
Individual Rules and Practices. Since LM has not even attempted to meet its burden concerning
these documents, see DiRussa, 121 F.3d at 826, the Court orders LM to file a letter brief and
declaration no later than March 29, 2017 explaining why its July 26, 2016 reply declaration and
Exhibits 1 and 7 of its July 28, 2016 reply declaration should remain under seal.
IV. CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that LM's motion for a
charging lien pursuant to Section 475 (Doc. No . 52) is GRANTED, and that LM is entitled to
recover a 15% pro rata share of the attorney' s fees collected out of any settlement.

IT IS

FURTHER ORDERED that Plaintiff's motion to redact is GRANTED, and LM ' s motion to
17

redact exhibit 7 of its opening declaration is also GRANTED.

(Doc. Nos. 55, 65.)

IT IS

FURTHER ORDERED that LM shall file a letter brief and declaration no later than March 29,
2017 explaining why its July 26, 2016 reply declaration and Exhibits I and 7 of its July 28, 2016
reply declaration should remain under seal. (Doc. Nos. 71 , 73-1 , 73-7.) The Clerk is respectfully
directed to terminate the motions pending at docket numbers 52, 55, and 65.
In light of the parties' representation that they have reached a settlement in principle, IT
IS FURTHER ORDERED that this case is dismissed with prejudice but without costs. However,
within thirty days of the date of this Order, any party may send a letter requesting to restore this
action to the docket with an explanation for the request. The Clerk is respectfully directed to
close this case.
SO ORDERED.
Dated:

RI~

March 23, 2017
New York, New York

UNITED STATES DISTRICT JUDGE

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