The Grass Is Not Always Greener Assignment

Prof. Patterson
Law, Business & Society, Spring 2022
Writing Assignment No. 2 – The Grass Is Not Always Greener.
Due Date: Sunday, April 10, by 11:59 p.m., via Turnitin on Brightspace

You are a new associate at a law firm in New York City. One day, a partner at the firm, Tony Bryan, comes to your office to ask for your help. Tony explains that the firm has a new client facing a lawsuit threatened by a former employee that is remarkably like one in which a New York appellate court ruled against the employer on one of the threatened claims.

The client, Alexis Partners (AP), wants your firms advice on how strong a case it has against potential claims of Darla DiNapoli and assistance with negotiating a possible settlement with her. DiNapoli was hired by AP from PW Houlihan (PW-H) and then fired about nine months later. In a letter from her lawyer, DiNapoli threatens to sue AP for fraudulent inducement and promissory estoppel. The letter also invites AP to begin settlement discussions before a lawsuit is filed.

Tony tells you that the relevant facts of the DiNapoli/AP situation are substantially identical to those in Laduzinski v. Alvarez & Marsal Taxand LLC. In that case, defendant Alvarez & Marsal (A&M) lost an appeal after winning a decision in the trial court. Tony used to be at the firm that represented A&M and says that A&M decided to settle rather than take a further appeal.

Tony wants you to prepare a memorandum that he can use to advise AP and prepare for settlement discussions. He gives you two court decisions from the A&M case: Justice Scarpullas opinion in the trial court (called Supreme Court, New York County) and Justice Acostas opinion on appeal (Appellate Court, First Department) overturning Justice Scarpullas decision. He says you can assume that the relevant facts as stated in the opinions are substantially identical to the facts in the new matter.

Laduzinski addressed fraudulent inducement, and the appellate court decision is a slam dunk for DiNapoli. Tony explains, however, that he is looking for anything he can use in settlement discussions to poke holes in the First Department decision and convince DiNapoli and her counsel that AP, unlike A&M, will use those holes to pursue the case up to New Yorks Court of Appeals.

Tony also wants your help on the strengths and weaknesses of DiNapolis promissory estoppel claim, which was not an issue in Laduzinski.

Tony has other associates working on this matter who are looking into other issues, including the ability to assert both fraudulent inducement and promissory estoppel claims; he asks you to answer only the following questions in your memorandum:

In Laduzinski, both courts agreed that the alleged misrepresentation arose from Perezs statements that plaintiff would be managing the sizeable workload of the company rather than bringing in business. Justice Scarpulla characterized those statements as a representation as to future work expectations and responsibilities and essentially assurances that [Laduzinskis] employment would be secure because he would have enough work to do. She concluded that Perezs statements were merely non-actionable future statements about his responsibilities and workload under the employment agreement. Justice Acosta, on the other hand, characterized the statements as a misrepresentation of the nature of the job that they were hiring him to do and thus center[ed] around the precise nature of plaintiffs employment with defendants. What do you think is the correct characterization of Perezs statements and why? You should draw on your own analysis and what the judges said in their opinions, including what they said about the cases they cited. Do not do any further research.

Does DiNapoli have a strong promissory estoppel claim against AP? Make sure to be precise about what the alleged promise is and the other elements of the claim.

What policies or practices would you suggest clients like AP use when they try to hire someone away from another employer? Is there specific language to be used or avoided? Any other ideas to avoid the claims that DiNapoli is threatening?

Tony emphasizes that he needs your honest assessment of DiNapolis claims but also arguments that he can use in the settlement discussions. He also gently reminds you that he is experienced enough to know how to use those arguments so what he needs from you is the analysis, not talking points. Finally, he notes that the idea, of course, is to get DiNapoli to accept a cheap settlement now before she files a lawsuit.

General Instructions:
Your memo should be no more than 5 pages, double spaced, 12 point Times New Roman or similar type, with one inch margins. Submit it in Word via the appropriate link on Brightspace by 11:59 p.m. on Sunday, April 10.

References:
Do not worry about proper citation. If you refer to a case or other authority, just make it clear what youre referring to and be consistent. Do italicize case names.

You should not do any research. You should only use the opinions provided (posted on Brightspace and listed below), cases referred to in those opinions (and you can assume the opinions correctly describe them do not read them) and readings assigned for class, including cases and Prof. Kowals outlines. You can assume that all the legal materials are good law in New York; i.e., that they accurately state New York law.

Your memorandum will be evaluated on the criteria set forth in the Course Syllabus: Structure/Format, Clarity, Legal Reasoning, Argument and Creativity.

Sources:

Laduzinski v. Alvarez & Marsal Tax And LLC, Supreme Court, NY, Index No. 160169/2013

Laduzinski v Alvarez & Marsal Taxand, LLC, Appellate Division, First Department, 2015 NY Slip Op. 06646