Opinion
Index No. 651921/2021
01-20-2022
Charlie WALK, Plaintiff, v. KASOWITZ BENSON TORRES LLP, Marc Kasowitz, Defendant.
Plaintiff by Schlam, Stone & Dolan, 26 Broadway, Suite 19, New York, NY 10004 Defendants by Kasowitz, Benson, Torres LLP, 1633 Broadway, New York, NY 10019
Plaintiff by Schlam, Stone & Dolan, 26 Broadway, Suite 19, New York, NY 10004
Defendants by Kasowitz, Benson, Torres LLP, 1633 Broadway, New York, NY 10019
Andrew Borrok, J.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85 were read on this motion to/for DISMISS.
Upon the foregoing documents and for the reasons set forth on the record (1.18.22), the motion to dismiss pursuant to CPLR 3211(a)(1) and (7) must be granted. The gravamen of the complaint against Kasowitz Benson Torres LLP and Marc E. Kasowitz (collectively, hereinafter, the Defendants ) is that Charlie Walk alleges that he entered into a certain Settlement Agreement (hereinafter defined) without being fully informed by counsel as to the meaning of the Settlement Agreement and his alternatives for not settling such that if he had been fully informed he would have restored his reputation and would have gone on to earn approximately $60 million over the course of the next few years. At its core, Mr. Walk complains that the Defendants did not make certain arguments to Universal Music Group (UMG ), his former employer, when they were investigating serious public sexual harassment and assault claims made against him and otherwise advised him to accept the Settlement Agreement which he now thinks was inadequate. The arguments fail. Dismissal is required because the entire premise of this lawsuit is based on a false narrative. The substantial documentary evidence in the record consisting of emails sent by Mr. Walk or letters sent by the Defendants on his behalf is such that the facts are simply not as Mr. Walk alleges.
To wit, the documentary evidence ( CPLR 3211[a][1] ) unequivocally establishes (i) that the Defendants did in fact make the very arguments that Mr. Walk asserts were not made to UMG, (ii) that the Defendants were not the only lawyers providing advice to him when he entered the Settlement Agreement, and (iii) that he has failed to state a claim ( CPLR 3211[a][7] ) because, among other things, his interpretation of his rights under his Employment Agreement (hereinafter defined) is wrong. He was not entitled to his 2017 bonus in the event of a for cause firing by UMG. Additionally, the emails and letters in the record firmly establishes that Mr. Walk was well aware of the very issues that he now feigns a lack of knowledge of and that these very issues were discussed with the Defendants and his other lawyers. Mr. Walk also fails to allege facts which would suggest that he could prove his case within a case and achieve a better result than the Settlement Agreement ( Katz v Essner , 136 AD3d 575, 576 [1st Dept 2016] ).
Although Mr. Walk may allege today that he wishes that he pursued a different legal strategy, and further contested the many detailed sexual harassment and assault claims made against him, this is not actionable ( Brook Plaza Ophthalmology Assoc., P. C. v Fink, Weinberger, Fredman, Berman & Lowell, P. C. , 173 AD2d 170, 171 [1st Dept 1991] ). His decision can not be said to have been uninformed or based on faulty advice. The fact that he resigned from his employment from the television program The Four: Battle for Stardom prior to hiring the Defendants and in the wake of these detailed allegations against him highlights the speculative failure of his claim against these Defendants. Finally, Mr. Walk's envious allegation that others accused of misconduct have received more money in their settlements with their employers is simply not a fact leveled against these Defendants that they gave him bad advice to settle based on the specific allegations made against him and the shroud of predatory conduct with which he was cloaked.
THE RELEVANT FACTS AND CIRCUMSTANCES
Reference is made to (i) an Employment Agreement, dated January 22, 2013, as amended on April 15, 2013, as further amended on December 16, 2015, each by and between UMG and Mr. Walk (hereinafter, collectively, the Employment Agreement ; NYSCEF Doc. No. 60), (ii) Universal Music Group Policy Against Discrimination And Harassment (the UMG Discrimination Policy ; NYSCEF Doc. No. 61), (iii) Letter for Settlement Purposes Only (the February 16 Letter ; NYSCEF Doc. No. 62), dated February 16, 2018, from Mr. Kasowitz, on behalf of Mr. Walk to Jeffery Harleston, who represented UMG, (iv) Letter for Settlement Purposes Only (the February 26 Letter ; NYSCEF Doc. No. 62), dated February 26, 2018, from Mr. Kasowitz on behalf of Mr. Walk to Mr. Harleston, who represented UMG, and (v) Confidential Settlement Agreement And General Release Of All Claims (the Settlement Agreement ; NYSCEF Doc. No. 64), dated March 27, 2018, by and between Mr. Walk and Mr. Harleston, as attorney representing UMG. Capitalized terms used not otherwise defined herein shall have the meaning ascribed thereto in the Employment Agreement.
Pursuant to Mr. Walk's Employment Agreement, the parties agreed that Mr. Walk would be paid a base salary of $1,500,000 increased each year by a formula equal to the greater of 2.5% or a percentage equal to the percentage increase of a specified index over the prior year (NYSCEF Doc. No. 60, § 3[a]). UMG and Mr. Walk agreed that UMG could terminate Mr. Walk's employment either for cause or not for cause. More specifically, the Employment Agreement provides that Mr. Walk's employment could be terminated for cause if he materially failed to comply with the UMG Discrimination Policy (id. , § 4[b][ii]).
In the event of a for cause termination, UMG and Mr. Walk would be eligible to receive
payments of (1) any accrued but unpaid Base Salary due you through termination, (2) any unreimbursed expenses approved in accordance with Company policy and due you through termination, (3) any accrued but unpaid vacation to the extent required by law at the end of the Term, and (4) other unpaid amounts then due you under Company benefits plans or programs subject to the terms and conditions of each benefit plan (the "Accrued Amounts")
(id. , § 4).
In other words, significantly, and as discussed extensively on the record, the definition of Accrued Amounts does not include bonuses and the parties did not agree pursuant to his Employment Agreement that Mr. Walk would be entitled to receive his bonus if he was fired for cause.
For the avoidance of doubt, benefits plans are defined in Section 3(e) of the Employment Agreement and they do not include bonuses:
(e) Benefits. You will be entitled to participate in the benefit plans generally available to comparable employees of Universal so long as the Company provides such plans and programs and subject to their terms and conditions, except that you will not participate in any severance plan of Universal.
Separately, bonuses are defined in Section 3(d) of the Employment Agreement and the agreement provides that bonuses are not guaranteed compensation:
(d) Bonus Compensation. You will be eligible to participate at a level appropriate to your position in Universal's Annual Incentive Plan ("AIP") for Republic Records or any plan adopted in replacement thereof as determined by the Board of Directors of Universal and in accordance with the plan's terms and conditions. Commencing January 1, 2016, your target AIP bonus for each fiscal year will be fifty percent (50%) of your Base Salary with a maximum bonus potential of one hundred percent (100%) of your Base Salary. Your target bonus is not a guaranteed bonus or any other form of guaranteed compensation and shall be paid at the same time as other executives are paid their annual bonus during the calendar year following the fiscal year to which the bonus relates. Your actual bonus, if any, will be based upon a measurement of performance against objectives in accordance with the terms and conditions of the AIP, as the same may be amended from time to time. Furthermore, notwithstanding the effective date of this Second Amendment, effective January 1, 2015, in the event that Island Records meets its fiscal year objectives (i.e., 100% of plan), as internally defined by the Company, you will receive an additional incentive compensation of One Hundred Seventy-Five Thousand and 00/100 Dollars ($175,000.00) ("Island Bonus"). For every percentage point up to one hundred fifty percent (150%) of plan met, your Island Bonus will be proportioned linearly up to Two Hundred Twenty-Five Thousand and 00/100 Dollars ($225,000.00). For instance, in the event that Island Records meets one hundred twenty-five percent (125%) of plan, your Island Bonus shall be Two Hundred Thousand and 00/100 Dollars ($200,000.00). For every percentage point from one hundred fifty percent (150%) up to two hundred percent (200%) of plan met, your Island Bonus will be proportioned linearly from Two Hundred Twenty-Five Thousand and 00/100 Dollars ($225,000.00) up to Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00). Notwithstanding anything to the contrary in this paragraph, for any applicable full fiscal year during the Term that Island Records does not meet its fiscal year objectives (i.e. 100% of plan or more), for such full fiscal year of the Term, your Island Bonus shall be One Hundred Thousand and 00/100 Dollars ($100,000.00) in lieu of the Island Bonus calculation set forth above. In the event that your employment terminates, other than for Cause, in the year 2019 on or before the expiration of the Term, you will be eligible for the 2018 fiscal year AIP Bonus, if any, and Island Bonus regardless of whether you are employed at the time of the payment of such bonus. Any bonuses payable pursuant to this paragraph 3(d) shall be paid to you at the same time bonuses are paid to other executives of the Company during the calendar year following the fiscal year to which the bonus relates. (id. , § 3[d]; [Emphasis Added]).
Indeed, for the avoidance of doubt, Section 4(h) provides that:
(h) Additional Obligations. Without duplicating any benefits set forth in Paragraph 4, upon termination of the Term, you will be entitled to receive any benefits vested, and to make all elections and receive all rights under all employee benefit, pension, profit sharing, insurance, and other plans in which you participated in accordance with the terms of the plans concerned; provided, however , that the payment of any monies accrued under any benefit plans shall be subject to the terms of the applicable plan and any elections you have made. (id. , § 4[h]).
On the other hand, in the event that UMG terminated Mr. Walk's employment without cause, Mr. Walk would be entitled to his Accrued Amounts and Annual Incentive Plan Bonus for Republic Records for the fiscal year and for his "Island Bonus." In other words, one of the primary differences between UMG terminating Mr. Walk's employment for cause and without cause was the amount of compensation to which Mr. Walk was entitled. This distinction reflects appropriate corporate policy of not awarding bonuses or incentive compensation for conduct that warrants dismissal.
UMG and Mr. Walk further agreed that Mr. Walk could terminate for "Good Reason" if an occurrence without his consent, is not remedied within 30 days of receiving his written notice of said occurrence, which materially diminishes his duties or responsibilities (id. , § 4[g]).
Pursuant to the Employment Agreement, Mr. Walk agreed to abide by all of UMG's employment policies including UMG's Discrimination Policy (id. , §§ 4[b][ii] and 5[h]).
UMG Discrimination Policy provides that UMG is an equal opportunity employer which seeks to have a workplace free of discrimination and harassment (NYSCEF Doc. No. 61). The UMG Discrimination Policy provides:
Sexual harassment includes unwanted sexual advances, requests for sexual favors or visuals, verbal or physical conduct of a sexual nature when:
Submission to such conduct is made, either explicitly or implicitly, a term or condition of employment; or
Submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual; or
Such conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile or offensive working environment.
Sexual harassment includes various forms of offensive behavior. The following is a partial list:
Offering employment benefits, such as favorable assignments, reviews, promotions or the like, in exchange for sexual favors;
Threatening or carrying out any reprisal after a negative response to sexual advances;
Making unwelcome sexual advances, propositions, or flirtations;
Verbal conduct, such as using sexual, gender-based or other discriminatory and derogatory language to describe an individual or making sexual, gender-based or other discriminatory and derogatory comments, slurs, taunts, jokes, or epithets;
Verbal abuse of a sexual nature, graphic verbal commentary about an individual's body or dress, sexually degrading words to describe an individual, suggestive or obscene letters, emails, gifts, notes, or invitations;
Physical conduct, such as whistling at, touching, pinching, brushing the body, assaulting, impeding or blocking the movements of an individual;
Visual conduct, such as leering, making sexual or obscene gestures, or displaying sexually suggestive objects or pictures, posters, cartoons, websites, emails or text messages; or
Retaliating against an employee for refusing to participate in such behavior, or for complaining about, threatening to report, or reporting harassment.
This policy also protects employees from harassment by vendors or clients. If harassment occurs on the job by someone not employed by [UMG], the procedures in this policy should be followed. This policy applies to males who sexually harass females or other males, and for females who sexually harass males or other females. (NYSCEF Doc. No. 61, at 3-4).
As one would expect, and to provide a safe environment for people to come forward alleging sexual harassment, UMG agreed that it would " endeavor to protect the privacy and confidentiality of all parties involved to the extent possible, and as considered by [UMG] to be practicable and appropriate in order to meet the purposes of investigating, responding to claims, complaints and charges, and achieving the other objectives of this policy" (id. , at 4; [Emphasis Added]).
Finally, the parties agreed that disagreements relating to termination will be arbitrated (NYSCEF Doc. No. 60, § 9).
While employed by UMG and a host on the Fox TV program titled The Four: Battle for Stardom , Mr. Walk was accused by a number of women of sexual harassment and at least one woman of sexual assault. According to the complaint, the first such claim was made and came to public attention when Tristan Coopersmith posted an open letter, on January 29, 2018, accusing him of misconduct when he was employed by Sony. These allegations were repeated in an internet blog by blogger Bob Lefsetz (Compl. ¶ 27; NYSCEF Doc. Nos. 65 and 66). Other women, some wishing to remain anonymous came forward and described similar experiences with Mr. Walk to a number of publications that also published stories describing these sexual harassment allegations (NYSCEF Doc. Nos. 67 and 68). Other accusers not wishing to remain anonymous also came forward with vivid detailed accounts of Mr. Walk's alleged sexual misconduct and assault including Pam Kaye.
Ms. Kaye reported to Rolling Stone Magazine and that she had endured years of near-constant sexual harassment and inappropriate touching by Mr. Walk including when while driving back to their Midtown Manhattan office with other people in the car after a late morning meeting, "[h]e took his hand and put it down the front of my pants". This was not the only account she disclosed to Rolling Stone. In fact, according to Rolling Stone, Mr. Walk put his tongue in her ear when she was 25 when she was at a listening party years earlier. In 2002, she alleges that Mr. Walk had come up to her from behind and started "rubbing himself against her" and allegedly asked "[d]o you need to change your underwear? .... You're probably wet" (NYSCEF Doc. No. 69). Ms. Kaye recalled multiple occurrences of Mr. Walk pushing her onto an office couch and climbing on top of her to kiss her (id. ). In fact, according to Rolling Stone, Rolling Stone spoke to a number of Ms. Kaye's friends who confirmed that although they did not witness Mr. Walk's assaults directly, they had been told about these incidents contemporaneously with their alleged occurrence.
Additionally, although some of Mr. Walk's other accusers in the Rolling Stone article had their name changed to protect their privacy, Kate Harold too came forward and described in detail her alleged unwanted harassment by Mr. Walk (id. ). In fact, according to Rolling Stone, they spoke with five different women who allege that they had been sexually harassed by Mr. Walk including "making sexual comments, sending unsolicited sexually explicit pictures and videos, exposing his penis and inappropriate touching of them both in private and in crowded meetings" (id. ).
In other words, and for background purposes as it relates to the context in which the Defendants were retained and the advice that they are alleged to have given Mr. Walk, UMG had good cause for concern. Mr. Walk, its then President of Republic Group, was accused of engaging in a pattern of predatory behavior over a substantial period of time involving (as discussed at oral argument 1.18.22) some of UMG's then current employees who were willing to come forward and confront him. Put another way, as much as Mr. Walk would like to cast this as a single accuser from 15 years ago whose credibly he thinks could have been attacked or a few unsubstantiated anonymous accounts on a blog, at the time, and based on the very documents Mr. Walk has put into the record, multiple accusations of serious misconduct were reported in publications where the reporters indicated that the allegations had been corroborated by contemporaneous disclosures to the alleged victims’ confidents.
Under these circumstances, UMG unquestionably had an obligation to its stakeholders and to the other employees of UMG to conduct an investigation and to make a public statement indicating that it was acting properly and in accordance with its obligation and its policy to provide a safe work environment. This is exactly what UMG did. In response to these already public allegations against Mr. Walk, on January 30, 2018, UMG circulated an internal email stating that it was taking the allegations against Mr. Walk seriously, and that it had engaged outside counsel to investigate if any UMG employees had similar experiences (NYSCEF Doc. No. 2, ¶ 38), and on January 31, 2018, UMG issued a public statement that it was investigating the allegations with the assistance of outside counsel and that Mr. Walk had been placed on leave (id. , ¶ 39). The results of the investigation were not provided to Mr. Walk presumably at least in part due to UMG's confidentiality policy discussed above.
For his part and as alleged, on January 31, 2018, Mr. Walk voluntarily, and prior to hiring the Defendants , resigned from his position on Fox's The Four: Battle for Stardom tv show and released his own statement confirming his exit from Fox but denying the allegations (NYSCEF Doc. No. 68).
On February 8, 2018, Mr. Walk then hired the Defendants to represent him (NYSCEF Doc. No. 42, ¶ 2) and the Defendants went to work representing him. However, and to be clear, the Defendants were not the only lawyers that Mr. Walk engaged and sought legal advice regarding his employment with UMG and the Separation Agreement. Mr. Walk also discussed the Settlement Agreement and his separation from UMG with his other lawyers, Kenneth Meiselas, Esq. and Eric Sacks, Esq. (NYSCEF Doc. Nos. 84 and 85) and they provided legal advice to him (NYSCEF Doc. No. 85).
The Defendants in this case, among other things, wrote the February 16 Letter challenging UMG's public statements, arguing that Mr. Walk suffered reputational harm, noted that any incident involving Ms. Coopersmith occurred outside the scope of Mr. Walk's employment at UMG, and argued that UMG's investigation did not reveal anything (NYSCEF Doc. No. 62) Mr. Kasowitz subsequently wrote the February 26 Letter challenging UMG's alleged failure to provide the findings of its investigation, alleged that UMG's actions led to a defamatory article in Rolling Stone and argued that UMG could not fire Mr. Walk for cause (NYSCEF Doc. No. 63). In other words, the Defendants made the very arguments that Mr. Walk now falsely claims that the Defendants did not prosecute.
Ultimately, UMG offered him two possibilities — for cause firing or the ability to resign and accept the Settlement Agreement (NYSCEF Doc. No. 2, ¶ 49). After consultation with the Defendants, Mr. Walk voluntarily elected to accept the Settlement Agreement:
Consultation with Counsel. Walk represents and agrees that Walk has had the opportunity to discuss all aspects of this Settlement Agreement with Walk's attorney, to the extent he wished to do so, that he has carefully read and fully understands all of the provisions of this Settlement Agreement, and that he is voluntarily entering into this Settlement Agreement. (NYSCEF Doc. No. 64, ¶ 19).
Pursuant to the Settlement Agreement, UMG and Mr. Walk agreed that Mr. Walk will be paid his base salary due through March 27, 2018. The parties also agreed that Mr. Walk would be paid his 2017 bonus payment in the amount of $1,728,700 (i.e. , as if he had been terminated without cause) and that UMG will pay for nine months of COBRA coverage, ending December 31, 2018 (NYSCEF Doc. No. 64, § 3 [B] and [C]). In exchange, Mr. Walk released UMG of any claims or rights he may have had under any contract, tort, law, or regulation (id. , § 5 [a]). The Settlement Agreement contained a confidentiality/non-disparagement provision prohibiting either side from disclosing claims, allegations and discussions that gave rise to the Settlement Agreement (id. , § 8).
In the course of negotiating the Settlement Agreement, Mr. Walk discussed with the Defendants resigning for Good Reason pursuant to Section 4(g) of the Employment Agreement because of the greater money due him if he could resign for Good Cause (NYSCEF Doc. No. 83). Additionally, Mr. Walk and his other lawyers were sent the specific language of the confidentiality and non-disparagement provision for his approval:
From: Kenneth Meiselas
Sent: Thursday, March 08, 2018 11:39 AM
To: Charlie Walk; Jessica T. Rosenberg
CC: Marc E. Kasowitz; Eric Sacks
Subject: RE: Confidentiality/ Disparagement Provisions
Adding my partner Eric Sacks
From: Charlie Walk
Sent: Thursday, March 08, 2018 11:38 AM
To: Jessica T. Rosenberg
CC: Marc E. Kasowitz; Kenneth Meiselas
Subject: Re: Confidentiality/ Disparagement Provisions
Confidential
+ Kenny (my transactional lawyer) who can help with this and separation. His team did contract FYI.
On March 8, 2018, at 11:02 AM, Jessica T. Rosenberg < JRosenberg@kasowitz.com> wrote:
Charlie — See the draft provisions below.
Confidentiality. The Parties agree to keep the scope and terms of this Separation Agreement and any and call claims and allegations giving rise to the Separation Agreement, strictly confidential and not to disclose such information to anyone. This confidentiality clause shall not prohibit disclosures which are solely made to the Parties’ respective attorneys and accountants, any governmental taxing authority or as required by law or legal process, including by subpoena. In the event that UMG is served with a subpoena or other demand seeking information covered by this confidentiality clause, UMG will provide notice to Mr. Walk within forty-eight (48) hours.
UMG further agrees to instruct its officers, directors, Board members, and other employees, that they are not permitted to make any statements or disclose any facts related to Mr. Walk or his separation from UMG to any third party, including but not limited to a media publication. In the event any UMG employee makes any unauthorized disclosure regarding Mr. Walk, UMG agrees to take appropriate disciplinary action against such employee and take all necessary steps to publicly remedy the harm caused to Mr. Walk by the employee's disclosure. For purposes of this Agreement, "disclosure" includes, but is not limited to, any statement whether on or "off the record," concerning Mr. Walk.
No Disparagement. UMG agrees not to, directly or indirectly make any statements, written or oral that would disparage, be critical of or harm the reputation and/or goodwill of, libel, slander or reflect negatively in a way on, Mr. Walk. UMG further agrees that truth will not be a defense to any claim of disparagement. UMG further agrees to instruct its officers, directors, Board members, and other employees, including employees associated with any investigation related to Mr. Walk, regarding the restrictions imposed by this Paragraph ___. In the event any UMG employee makes any statement regarding Mr. Walk in violation of this Paragraph ___, UMG agrees to take appropriate disciplinary action against such employee and take all necessary steps to publicly remedy the harm caused to Mr. Walk by the employee's statement.
(NYSCEF Doc. No. 85).
Despite Mr. Walk's assertions in the complaint that he did not understand that he could not make public statements about the Settlement Agreement or the circumstances of the termination of his employment with UMG, Mr. Walk's emails to the Defendants when he was reviewing this very provision indicate the exact opposite:
I don't see any upside of me making any statement from my end.
Why not have them say something like "both parties have mutually" agreed to part ways."
(NYSCEF Doc. No. 84).
Three years later, on March 25, 2021, Mr. Walk filed the instant action against the Defendants for legal malpractice. According to Mr. Walk's complaint, he was (i) never advised that he was entitled under the Employment Agreement with UMG to receive both his Annual Incentive Plan Bonus for Republic Records for fiscal year 2017 and his "Island Bonus" for fiscal year 2017, totaling $1,728,700 regardless of whether he was terminated for cause, (ii) UMG breached his Employment Agreement by threatening to fire him for "Cause" for alleged conduct that did not occur while he was a UMG employee and violating UMG's Discrimination Policy and by failing to conduct an adequate investigation of any such allegations, (iii) that by putting him on leave, he could terminate for Good Reason and that a Good Reason termination entitled him to more compensation than a "Cause" termination and (iv) that the confidentiality provisions precluded him from discussing the terms of the settlement and disputing the facts that form the basis from his departure (NYSCEF Doc. 80, ¶¶ 3-5). As discussed, the complaint fails.
DISCUSSION
On a motion to dismiss, the pleadings are to be afforded a liberal construction and the facts as alleged in the complaint are accepted as true ( Leon v Martinez , 84 NY2d 83, 87 [1994] ). Under CPLR § 3211 (a)(1), the court may dismiss a cause of action where the documentary evidence conclusively establishes a defense to the claims as a matter of law ( id. , 88 ). Dismissal under CPLR § 3211 (a)(7) requires the court to assess whether the proponent of the pleading has a cause of action and not whether he has stated one (id. ).
To sustain a claim of legal malpractice, the plaintiff must show that the defendant (i) failed to "exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff" and (ii) that but for defendant's negligence, the plaintiff would have succeeded ( AmBase Corp. v Davis Polk & Wardwell , 8 NY3d 428, 434 [2007] ). Choosing from reasonable alternatives does not constitute legal malpractice ( Brook Plaza Ophthalmology Assoc., P. C., 173 AD2d at 171 ). Speculation about future events is insufficient to establish legal malpractice ( Brooks v Lewin , 21 AD3d 731, 734-35 [1st Dept 2005] ). To sustain an action of legal malpractice, plaintiff must prove a "case within a case" by demonstrating that but for defendant's actions, the plaintiff would have achieved a better result ( Katz , 136 AD3d at 576 ). A person who signs a contract is presumed to know and accept the provisions of the contract ( Level Export Corp. v Wolz, Aiken & Co. , 305 NY 82, 87 [1953] ).
Mr. Walk does not make out a prima facie case for legal malpractice. He fails to demonstrate that Defendants did not exercise the ordinary reasonable skill and knowledge of other attorneys ( AmBase Corp. , 8 NY3d at 434 ). As discussed above, Mr. Walk was not entitled to his bonus regardless of whether he violated UMG's sexual harassment policy and whether he was terminated for cause. This is not what his Employment Agreement provides. Additionally, as discussed above, the Defendants advanced this very argument to UMG and UMG ultimately agreed to pay him his 2017 bonus.
Second, as discussed above, the allegations regarding Mr. Walk's conduct was not limited to an isolated incident that happened involving people who were not employed by UMG some 15 years ago. Putting that aside, as discussed above, the Defendants also made this argument to UMG.
Third, the documentary evidence ( CPLR 3211[a][1] ) unequivocally demonstrates that Mr. Walk understood that a Good Reason termination entitled him to more money, that Mr. Walk did not merely have the Defendants as his lawyers representing him in his voluntary decision to accept the Settlement Agreement (i.e. , that he had other lawyers advising him as well), and that after having these other lawyers weigh in on the Settlement Agreement, Mr. Walk accepted the strategy of accepting the Settlement Agreement, and avoiding arbitration and facing his many accusers.
The court also notes that Mr. Walk alleges that UMG should have contacted a former Sony employee who then worked at UMG as part of their investigation who would discredit these accusations (NYSCEF Doc. No. 2, ¶¶ 28-32). Notably, Mr. Walk does not offer the name of this person or submit an affidavit from this person who he alleges would attest to his "excellent working relationships" with women in the workplace. Nor has Mr. Walk otherwise adequately alleged how he could have fought these many accusations and avoided the reputational harm and its subsequent damage to his career prospects. As discussed above, prior to even retaining the Defendants, Mr. Walk had already resigned from The Four: Battle for Stardom. Finally, UMG did not under the circumstances alleged by Mr. Walk breach the confidentiality provision of his Employment Agreement. The confidentiality provision did not prevent disclosure of sexual harassment claims or its investigations. Rather, the confidentiality provision required UMG to endeavor to protect the privacy and confidentiality of all parties involved to the extent possible, and as considered by [UMG] to be practicable and appropriate in order to meet the purposes of investigating, responding to claims, complaints and charges, and achieving the other objectives of this policy which included ensuring that others felt safe in the workplace at UMG. As discussed above, given the already public accusations against Mr. Walk and his position of power at UMG, this necessarily required a public response from UMG including an appropriate investigation and a public statement from UMG reflecting the same.
Stated differently, the Defendants complaint must be dismissed because (i) Mr. Walk's claims regarding the Defendants are false and are directly contradicted by what the documentary evidence establishes that the Defendants actually did and what Mr. Walk demonstrated he understood (NYSCEF Doc. Nos. 83-85), (ii) are based on an incorrect reading of the Employment Agreement, (iii) is merely otherwise based on his dissatisfaction with the choices that he voluntarily made when presented with different legal strategies as to how to best protect his rights. It is clear from the record that Mr. Walk did not rely exclusively on the advice obtained from the Defendants regarding the Settlement Agreement — other members of his legal team (i.e. , the lawyers who helped him negotiate his Employment Agreement) weighed in as well. Additionally, and significantly, he simply fails to allege facts that he would have been successful in any arbitration or that the advice to enter the Settlement Agreement, as alleged, was based solely on the advice of the Defendants and not based on the advice of his other lawyers as well or was not reasonable under the circumstances ( Brook Plaza Ophthalmology Assoc., P. C. , 173 AD2d at 171 ; Level Export Corp. , 305 NY at 87 ; Katz , 136 AD3d at 576 ). Indeed, the only facts he alleges is that others when faced with allegations of misconduct obtained different and better settlements. Thus, the Defendants’ motion to dismiss Mr. Walk's complaint must be granted.
The court has considered Mr. Walk's remaining arguments and found them unavailing.
Although a much closer call, the court declines to impose sanctions at this time.
Accordingly, it is
ORDERED that Defendants’ motion to dismiss is granted; and it is further
ORDERED that Defendants are directed to order a copy of the transcript and upload it to NYSCEF.