In an attempt to dismiss a lawsuit filed against it last month in New York state court by a recruiter who claims he played a role in placing a Hong Kong litigator at the firm, Davis Polk Wardwell argues that the recruiter did nothing to aid the hire and does not deserve a $1.4 million commission.
The recruiter, New York-based Alan Metz, claims in his suit that six months after Davis Polk’s Hong Kong office head, William Barron, rebuffed his call suggesting that he speak to “the head of the largest and highest quality litigation practice in Hong Kong,” the lawyer about whom Metz was calling, Martin Rogers, moved to Davis Polk from Clifford Chance along with 17 other lawyers. Metz concedes that even though he never named Rogers in either his initial phone call or a subsequent email to Barron, “it was obvious” who he had in mind because of what he refers to as Hong Kong’s “close-knit” legal community.
In a 21-page motion to dismiss Metz’s complaint, filed Friday, Davis Polk argues that “offering a benefit is not the same thing as providing that benefit,” and that making one cold call and sending one unsolicited email that received no reply do not qualify Metz for a referral fee. The firm does not contest that Metz made contact with Barron, whom both sides say told Metz in June 2012 that the firm was not interested in hiring at the time. Six months later, Davis Polk announced that it hired Rogers, noting in a press release touting the litigator’s arrival that the firm had recently worked alongside him in its representation of Hong Kong financial institutions.
“Metz’s claim that he is entitled to a $1.4 million fee when the firm did not request or induce any action by him, much less accept his offer of recruiting services that he never provided, fails both as a matter of law and common sense,” Davis Polk writes in its motion, which seeks to dismiss Metz’s claims of quantum merit and unjust enrichment and argues that the case should be filed in Hong Kong rather than New York. (The firm cites a similar case filed against Akin Gump Strauss Hauer Feld in New York state court in 2008. In that case, the court found the plaintiff’s claims failed because Akin did not accept the alleged services performed.)
In an affidavit also filed Friday, Rogers said he came into contact with Davis Polk in the spring of 2012, when he began working on a matter with Davis Polk partner Bonnie Chan. Later that year, Chan and Barron “raised the possibility of my joining Davis Polk’s Hong Kong office,” and subsequent conversations led to his joining the firm.
Davis Polk’s attorney, Epstein Becker Green partner William Gyves, had no additional comment Tuesday.
Paul Wexler, a Kornstein Veisz Wexler Pollard partner who represents Metz, says he and his client disagree with the firm’s analysis and plan to file a rebuttal with the court.
“We think we’ve sufficiently stated a claim,” Wexler says. “Strangely enough, Metz informs Davis Polk of the Rogers team, the lights go out, then all of a sudden he’s there.” Wexler also says he and Metz will fight to keep the case in New York. Moving it abroad, he says, would make it “extraordinary difficult, maybe even impossible,” to litigate.
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