Black Davis Polk Lawyer Says Firm’s $100,000 Fee Bid Inequitable

Paul Weiss Rifkind Wharton & Garrison LLP’s request for nearly $100,000 in attorneys’ fees and costs for discovery abuses by a Black former associate suing Davis Polk & Wardwell LLP for alleged race bias highlights racial and economic inequities and should be denied, the lawyer told a Manhattan judge.

The asymmetries in wealth, power, and resources between the parties are so significant that he and his counsel, who is also Black, “would almost certainly be crippled” were the firms’ fee application granted, Kaloma Cardwell told the U.S. District Court for the Southern District of New York Wednesday.

The firms’ “improper and unjust” request comes as legal scholars are documenting the long history of money being used to punish communities of color, Cardwell said.

It would also deter workers and pro bono attorneys from pursuing plausible claims for job discrimination and other employment abuses “against corporate employers in federal court,” he said.

The firms filed the application Jan. 20 following a Jan. 15 bench ruling by Judge Gregory H. Woods that found Cardwell’s responses to Davis Polk’s document requests and interrogatories didn’t meet the requirements of the Federal Rules of Civil Procedure.

Cardwell sued Davis Polk and eight current or former partners in November 2019, alleging he was subjected to rigged performance review processes and other persistent racial bias during his four years with the firm. He also says he was denied work then fired for complaining to federal and New York state employment rights agencies.

The request comes at a time when he is experiencing financial instability directly related to Davis Polk’s mistreatment and retaliatory firing, Cardwell said.

The firms didn’t bring the application of their own volition but instead were “encouraged” to do so by the court, Cardwell said. That’s a factor Woods should consider in denying the application, he said.

The court should alternatively make an across-the-board 90% cut to the firms’ application or reduce the “exorbitant” hourly rates, which range as high as $1,485 per hour, Cardwell said.

Black lawyers and others “of limited means” shouldn’t be forced to pony up such amounts, particularly in cases in which at least some of the asserted claims are plausible, Cardwell said.

In a separate filing in the case Wednesday, Davis Polk reiterated its position that it is entitled to partial dismissal of Cardwell’s claims.

He has offered no credible reason for restoring his previously dismissed claims and has abandoned others, the firm said. Other claims lack any factual support and impute knowledge of certain events to some partners that they clearly lacked, Davis Polk said.

The court should also rejected Cardwell’s 11th-hour bid to recast his intentional race discrimination claim as a disparate impact or inadvertent bias claim, Davis Polk said. The time to change his pleadings has passed and he never exhausted a disparate impact theory with federal authorities prior to suing as required by Title VII of the 1964 Civil Rights Act, it said.

The court will hold a pre-motion conference Feb. 1 on a separate planned request by Davis Polk for sanctions for what it says are defamatory statements about a former partner that Cardwell and his lawyer allegedly have refused to withdraw from his lawsuit.

David Jeffries of New York represents Cardwell.

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 1:19-cv-10256, opposition to application for fees and costs 1/27/21.