18-2982
Meltzer Lippe Goldstein & Breitstone LLP v. Malfetti

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of September, two thousand nineteen.

Present:          ROSEMARY S. POOLER,
                  BARRINGTON D. PARKER,
                  REENA RAGGI,
                           Circuit Judges.

_____________________________________________________

MELTZER LIPPE GOLDSTEIN & BREITSTONE LLP,

                                    Plaintiff-Counter-Defendant-Appellant,

                           v.                                                 18-2982-cv

JAMES MALFETTI, DBA Management Recruiters of Union County, NJ,

                        Defendant-Counter-Claimant-Appellee.
_____________________________________________________

Appearing for Appellant:            Robert M. Calica, Rosenberg Calica & Birney LLP, Garden City,
                                    NY

Appearing for Appellee:             Randall L. Rasey, Barton LLP (Roger E. Barton on the brief) New
                                    York, NY
Appeal from the United States District Court for the Eastern District of New York (Hurley, J.)

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

       Meltzer Lippe Goldstein & Breitstone, LLP (“Meltzer” or “Meltzer Lippe”) appeals from

a judgment of the district court holding that Meltzer had breached a fee agreement with James

Malfetti, d/b/a Management Recruiters of Union County, NJ (“MR”), a search and recruiting

company engaged by Meltzer to place attorneys at its firm. The district court, following a trial to

the bench, found that the breach occurred when Meltzer refused to pay MR after Meltzer partner

David Heymann purchased Kern Augustine Conroy & Schoppmann, PC, a health care law firm

introduced to Meltzer at its request by MR. We assume familiarity with the underlying facts and

procedural history of the case. We review the district court’s findings of fact for clear error and

its legal conclusions de novo. Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 

,

51-52 (2d Cir. 2011).

       The district court found that the fee agreement was an enforceable contract between

Meltzer and MR for the placement of attorneys with Meltzer. Meltzer, Lippe, Goldstein &

Breitstone, LLP v. Malfetti, 

, at *10 (E.D.N.Y. Sept. 27, 2018). The district

court noted that Dawn Laffin, CFO and COO of Meltzer, had solicited Joshua Ben-Asher, a

recruiter at MR, to place attorneys with Meltzer. 

Ben-Asher discussed and

finalized a fee agreement, a section of which addressed “Placement Fee for Group Placements,”

where “a Group is defined as two or more attorneys from the same law firm” placed with

Meltzer in the course of a single transaction. 

The district court also found that the fee

agreement contained a provision stating that if Meltzer engaged attorneys introduced by MR

through an “affiliate,” rather than hiring them directly, the fee agreement would still apply. Id at

*2, *11. The district court reasoned that Heymann, as a Meltzer partner, fell “comfortably within



                                                  2
the plain meaning of the word ‘affiliate.’” 

The district court also found that

subsequent to the Kern transaction, Meltzer “managed, controlled,” “exploited,” and “assumed

operational management” of Kern. 

press release publicized the Kern transaction

“as the formation of an ‘alliance’ between Kern Augustine and Meltzer Lippe.” 

*11.

These findings led the district court to conclude that the fee agreement obligated Meltzer to pay

MR a placement fee for the Kern attorneys. 

We identify no error in these findings or

conclusions.

       On appeal, Meltzer argues that the fee agreement did not apply to the Kern transaction

because it was the sale of a business, not the placement of attorneys. We are not persuaded. The

fee agreement encompassed the Kern transaction regardless of how the transaction is

categorized. As the district court correctly noted, the fee agreement contains a group placement

provision, which applied if Meltzer acquired two or more attorneys from the same law firm, as

was the case in the Kern transaction. Specifically, the contract provides that MR’s fee “is

payable should [Meltzer] or [its] affiliate engage [the] candidate for any position within one year

after our most recent communication relating to such candidate.” App. at 447. As we have

already noted, the district court did not err when it found that Heymann was an “affiliate” of

Meltzer.

       Meltzer argues that because Heymann purchased Kern as a “personal investment,” the

transaction was not covered by the agreement. However, as noted by the district court, Ben-

Asher introduced Kern, not to Heymann but to Laffin, after the latter had requested that MR

search for a “[h]ealth care boutique firm or dept” to add to the Meltzer firm. Meltzer, Lippe,

Goldstein & Breitstone, LLP, 

, at *3. Indeed, Laffin and Meltzer’s chairman

were actively involved in the negotiations for Kern. But only after Meltzer determined that for




                                                  3
legal reasons it could not purchase Kern directly did it arrange for Heymann to purchase the

practice. In fact, the Kern transaction was announced to the public via press release as an alliance

and partnership with Meltzer. 

Kern and Meltzer attorneys subsequently worked in the

same offices, and at least one Kern attorney performed cross-firm work even after being

transferred to Meltzer. The fact that after MR introduced Kern to Meltzer the latter restructured

its purchase of Kern as a stock purchase by a Meltzer partner does not alter the fact that MR

performed exactly the services for which it had been retained by Meltzer, thereby obligating

Meltzer to pay under the agreement. We see no error in the district court’s finding that the fee

agreement applies to the Kern transaction regardless of whether it can be characterized as the

sale of a business rather than an “attorney placement.”

       Meltzer’s further argues that the fee agreement with MR had expired before the Kern

transaction. “[I]t is a well-established general rule that an appellate court will not consider an

issue raised for the first time on appeal.” Bogle-Assegai v. Connecticut, 

, 504 (2d

Cir. 2006) (internal quotation marks omitted). Meltzer did not raise this argument before the

district court. Instead, the party argued below “that it did not enter into a binding agreement with

Management Recruiters” and that even if it did, “the agreement is not enforceable under the

statute of frauds.” Meltzer, Lippe, Goldstein & Breitstone, LLP, 

, at *9. But

even setting aside this issue, the argument is meritless. Significantly, during the Kern

negotiations Meltzer gave no indication to MR that it believed that the agreement had expired.

To the contrary, Laffin testified that when she asked MR to find a health care practice group, she

believed that the request would fall under the fee agreement. Moreover, Laffin paid MR for a

placement based on the same fee agreement while the Kern negotiations were ongoing. In short,




                                                  4
the record evidence defeats Meltzer’s argument that the fee agreement had expired. Thus, we see

no error in the district court’s findings or conclusions.

       Accordingly, the judgment of the district court is AFFIRMED.



                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




                                                  5