The firm successfully defeated an attempt by Morgan Stanley Smith Barney to enjoin two departing brokers from soliciting their clients to follow them to their new brokerage firm. After a hearing before New York Supreme Court Justice Barbara Jaffe, the firm succeeded in vacating an ex parte Temporary Restraining Order Morgan Stanley Smith Barney had obtained without effective notice to the brokers. The Court’s decision also rejected Morgan Stanley Smith Barney’s efforts to obtain a preliminary injunction that would have prevented the brokers from soliciting their former clients in advance of a pending FINRA arbitration – thus liberating our clients to pursue their new business venture.

The HNRK team included Laura Hoguet, John Kenney, Julia Peck, Kathleen Lowden, Jules Cattie, Natalie Plümacher and Lee Heyer.

In an international arbitration award dated November 9, 2010, a three-member Tribunal unanimously awarded 3.5 million euro to a European hedge fund against an asset management subsidiary of a large international bank holding company.

Under a Project Agreement concluded in May 2008, the asset management company was to have invested 30 million euro in the hedge fund for a period of two years, starting from the date that it made the investment. However, the contract did not provide any specific date for the asset management company to make the investment. The asset management company only invested a fraction of the 30 million euro, and, after the collapse of Lehman Brothers in September 2008, the company withdrew its investment.

At the arbitration, the asset management company contended that because it had never invested the full 30 million euro, it had no obligation to lock up any amount for two years, and, in any event, the financial crisis nullified the Project Agreement under its material adverse change clauses. However, Hoguet Newman persuaded the Tribunal that the partial investment was sufficient to trigger all the obligations under the Project Agreement, and the financial crisis did not relieve the asset management company of its obligations.

The Tribunal awarded the hedge fund the full amount of profits it would have made on 30 million euro over two years, the cost of the arbitration, and 90% of attorneys' fees and expenses.

The Hoguet Newman team was comprised of Tai-Heng Cheng, Sheryl Galler, Kathleen Lowden, Lisa Weitz, Aleksandr Gelerman, Nora Regis and Lee Heyer.

The firm won an arbitration award of $671,000 for its client against Banc of America Securities Inc. which then sought to vacate the award on several grounds including that the arbitration panel manifestly disregarded applicable law. We argued that was not an acceptable basis in New York for overturning an arbitration award, and prevailed. Banc of America Securities v. Knight, 4 Misc. 3d 756 (Sup. Ct., NY Cnty, 2004). The U.S. Supreme Court later ruled similarly in Hall Street Assoc. LLC v. Mattel, Inc., 552 U.S. 576 (2008). In the current issue of Siegel's New York State Law Digest, the lead article is "Arbitrating Arbitrability" and it refers to our victory as a "major New York" decision. It has been cited 50 times.

HNRK won a solid victory in the US Court of Appeals for the District of Columbia on April 9, 2010 in the case of Gaujacq v. EDF, Inc., affirming a District Court decision that granted summary judgment in favor of our clients Electricite de France, S.A. (EDF) and EDF, Inc. The case arose from the assignment by EDF, a major French utility company, of a nuclear engineer, Mme. Gaujacq, to head its Washington office. When her tour was ending, Mme. Gaujacq sought to remain in Washington; EDF at first accommodated her but then recalled her to France when she was unwilling to work with the new office head. She threatened to sue EDF for "discrimination" unless they let her stay in the US and structure a job for her as she wished. EDF wanted Gaujacq back in France and appointed her to a very important and prominent position there, managing the development of a new series of nuclear reactors. But she refused to return to France and refused to report for the job and was ultimately fired. The District Court dismissed Mme. Gaujacq’s claims under the Equal Pay Act as well as her sex discrimination and retaliation claims under Title VII and the DC Human Rights Act.

The DC Circuit's opinion affirming the summary judgment is notable on the law for its treatment of the retaliation claim, in which it applied the instruction of the US Supreme Court's recent decision in Burlington Northern & Santa Fe Ry. v. White (2006) that "[c]ontext matters" in analyzing whether an employer statement is a threat of retaliation, and held that, in the context of this case, a statement that might literally be read as words of threat could not be considered a threat of retaliation. The opinion by Senior Circuit Judge Harry Edwards is memorable for the Court’s incisive rejection of plaintiff's claim that summary judgment should be denied and the case should be tried to a jury on the claim of retaliation because of an alleged statement to her by the COO of EDF that “Your career is dead in EDF if you file a claim.”

Judge Edwards wrote: "A threatening verbal statement, standing alone, might well constitute a materially adverse action. However, in assessing such a claim, Burlington emphasizes that “[c]ontext matters” and that “the significance of any given act of retaliation will often depend on the particular circumstances.” [citation omitted] Therefore, a statement that literally appears to be threatening is not necessarily a materially adverse action.”

Judge Edwards went on to find: “In the context of this case, a reasonable worker in Gaujacq’s position would not have taken Creuzet’s brief, fleeting, and unadorned verbal statement as an act or threat of retaliation. Both before and after Creuzet’s statement, top EDF officials went out of their way to accommodate Gaujacq’s desire to stay in the United States, despite her increasing insubordination and refusal to consider any future employment decision that did not meet her precise demands.”

Courts frequently dismiss discrimination claims but uphold a plaintiff’s right to maintain a claim for retaliatory firing. This case shows that the retaliation claims will not always survive.

For three years running, both Laura Hoguet and John Kenney have been named as Superlawyers in the New York Metro area.  Laura Hoguet has been recognized in two areas, Business Litigation and Employment & Labor.  John Kenney has been recognized in three, Business Litigation, Criminal Defense: White Collar, and Corporate Governance & Compliance.  The Superlawyer ranking is based upon peer nominations and evaluations, and independent third party research.  The firm does not solicit or pay for the designation.