Black Lawyer Knocks Davis Polk’s ‘Tactics’ in Bias Suit Battle

A Black lawyer says the prejudice and futility objections Davis Polk & Wardwell LLP and several partners raised in opposition to his request to amend his race discrimination and retaliation lawsuit are “pure litigation tactics” and should be rejected by a federal judge in Manhattan.

The brief Kaloma Cardwell filed with the U.S. District Court for the Southern District of New York Monday is the latest salvo in his ongoing battle with the firm and eight of its current or former partners over allegations that he was subjected to a discriminatory performance review system and retaliation for complaining about the bias.

Cardwell sought court permission March 17 to file a third amended complaint in the 2019 suit. Information Davis Polk turned over during discovery backs his claims and he should be permitted to bolster his allegations, he said.

Davis Polk and the partners opposed that request March 24 as a bid to further publicize the case. The proposed amendments should be disallowed because the “extensive” changes Cardwell seeks would be prejudicial and futile, they said.

Not so, Cardwell said in his reply brief.

Davis Polk and the partners concede that “nearly 99.5%" of their documents they turned over in discovery were produced after he filed a second amended complaint, which provides “a colorable basis” for his new amendments, he said.

The proposed amendments are extensive because he leveled discrimination and retaliation allegations against nine defendants over the course more than three years, Cardwell said. The firm ignores the reality that discovery can often make employment bias lawsuits “viable at the pleading stage,” he said.

Allowing him to further amend the suit won’t be prejudicial because it won’t trigger the need for further discovery, Cardwell said, addressing Davis Polk’s argument that the discovery phase of the case is almost over and has already been extended by seven months. The defendants just need to comply with “their existing discovery obligations,” he said.

Whether the proposed amendments are futile is a question better left to the court’s ruling on Davis Polk’s already pending motion to dismiss, he said. There’s no need to “waste judicial resources” by separately entertaining that argument on his motion to amend, he said.

The dismissal motion argues his existing allegations are “implausible and irrelevant.” Davis Polk and the partners can’t be allowed to “cry foul” when he seeks to address those criticisms based on evidence he’s since obtained from the firm, he said.

David Jeffries of New York represents Cardwell. Paul, Weiss, Rifkind, Wharton & Garrison LLP represents Davis Polk and the eight partners.

The case is Cardwell v. Davis Polk & Wardwell LLP, S.D.N.Y., No. 1:19-cv-10256, reply memorandum in support of motion for leave to file third amended complaint 3/29/21.