UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BEACH TV PROPERTIES, INC., et al. , : : Plaintiffs, : Civil Action No.: 15-1823 (RC) : v. : Re Document No.: 71, 74 : HENRY R. SOLOMON, et al. , : : Defendants. : MEMORANDUM OPINION D ENYING P LAINTIFF ’ S M OTION FOR P ARTIAL S UMMARY J UDGMENT ; D ENYING D EFENDANT ’ S M OTION FOR S UMMARY J UDGMENT
I. INTRODUCTION With the inclusion of a few ch eck marks on a form submitted in 1999, this litigation might have been avoided. In Decem ber of 1999, Defendant Henry S olomon, an attorney for Plaintiff Atlanta Channel, I nc. (“ACI”), submitted a form on AC I’s behalf to the Federal Communications Commission (“FCC”) without realizing that severa l key questions on the form remained unanswered. Because the form was incomplete, the FCC d ismissed it, thereby blocking ACI’s ability to obtain a special license that would have givenit preference on the airwaves. Mr. Solomon filed a motion with the F CC asking it to reverse its di smissal of the form, but for twelve years the FCC sat on that moti on. In the intervening years, Mr. Solomon retired from the practice of law. After several failed app eals of the FCC’s dismissal, AC I filed suit in this Court alleging that Mr. Solomon was negligent wh en he filed the incomplete form, and now moves for summary judgment as to Mr. Solom on’s liability. In his cross-mo tion for summary judgment, Mr. Solomon argues that ACI ca nnot recover because its malpract ice claim is barred by the statute of limitations, because ACI was contributorily negligen t by failing to complete the form2 itself, and because the far-reaching damage ACI now alleges it suffered was not proximately caused by the submission of the incomplete form. For the reason s set forth below, the Court finds that neither party has met its burd en for a finding of summary judgment in its favor, and therefore denies both motions.

II. FACTUAL AND PROCED URAL BACKGROUND ACI is a broadcast television bus iness that owns and operates alow power television (“LPTV”) station with the call si gn WTHC-LD in Atlanta, Georgia . Pl.’s Statement of Material Facts Not in Dispute (“Pl.’s SM F”) ¶ 18, Pl.’s Mot. Partial Summ. J. (“Pl.’s Mot.”), ECF No. 71- 1; Def.’s Statement of Material Facts Not in Ge nuine Dispute (“ Def.’s SMF”) ¶ 1, Def.’s Mot. Summ. J. (“Def.’s Mot.”), ECF No. 76-1. Through this license gr anted by the FCC, ACI broadcasts “visitor informati on to hotels in the Atlanta area.” Pl.’s SMF ¶¶ 19–20; Def.’s Brief Supp. Mot. Summ. J. (“Def.’s Brief”) at 4, ECF No. 76. From 199 3 to 2009 and from 2016 to present, ACI has held the FCC li cense for this channel; from 20 09 to 2016, the license was assigned to Beach TV Properties, Inc. (“Beach TV”). Pl.’s SMF ¶ ¶ 20–21. Both ACI and Beach TV are owned and operated by Jud Colley and Toni Davis. Id. ¶¶ 2–3. In 1999, Congress enacted the Commun ity Broadcasters ProtectionAct (“CBPA”), 47 U.S.C. § 336(f), which directed t he FCC to award qualified LPTV licensees Class A licenses granting them the same protec tion and status as full power broa dcast television stations in the event of displacement from their assigned broadcast frequency. Pl.’s SMF ¶¶ 23–24; Def.’s SMF ¶ 4. ACI claims that its LPTV sta tion met the qua lification cri teria for a Class A license, as provided by 47 U.S.C. § 336(f)(2)(A ). Pl.’s SMF ¶¶ 25–26. There fore, in December 1999, Mr. Colley worked with his attorney H enry Solomon, who at the time was employed by the Virginia3 law firm Haley Bader & Potts, t o obtain a Class A license for W THC-LD, along with several LPTV stations owned by Beach TV. Id. ¶¶ 7–8, 29–44. In order to obtain a Class A li cense for an LPTV station, appli cants must have completed and filed Statements of Eligibil ity with the FCC by January 28, 2000. See 47 U.S.C. §336(f)(1)(B). The CBPA provided that “[a]bsent a material defi ciency, the [FCC would] grant certification of eligibility t o apply for class A status.” Id. Therefore, in December 1999, Mr. Colley “partially filled out and signed Statements of Eligibili ty for five (5) LPTV licenses owned by Beach TV and sent them to Mr. Solomon for review and filing with the FCC.” Pl.’s SMF ¶ 31. Questions 3(a), 3(b), 3(c), and 4 remained incomplete on ea ch form. Id. ¶ 32; Solomon Dep. 20:12–21:7, 21:16–21:20, Pl.’s Mot., ECF No. 72-4. Mr. Colley c laims that he sent the forms to Mr. Solomon partially filled out because he “did not know how t o provide the appropriate answers to the Qualification Q uestions on any of the Beach TV S tatements.” Pl.’s SMF ¶ 32; see also Colley Dep. 99:13–103:3, 106:21–107: 5, Pl.’s Mot., ECF No. 72- 2. Therefore, he “relied on Mr. Solomon to provide the approp riate answers” to the question s he left blank. Pl.’s SMF ¶ 32. A paralegal at the Haley firm filled in the relevant parts of the forms, at which point Mr. Solomon reviewed the forms and submitted them to the FCC on Dec ember 28, 1999. Pl.’s SMF ¶¶ 33–34. Around that time, Mr. Colle y sent Mr. Solomon a simil arly partially filled out and signed form for ACI’s LPTV channel, and similarly relied on Mr. Solomon to complete the form. Id. ¶¶ 35–36. However, Mr. Solomo n submitted this form to the FCC with the boxes for Questions 3(a), 3(b), 3(c), and 4 left blank. Id. ¶¶ 37–39; see also Ex. A, Pl.’s SMF, ECF No. 71- 3. The form also contained the i ncorrect call sign for the LPTV station. Solomon Dep. 24:18– 25:17, ECF No. 72-4. On March 6, 2000, Mr. Solomon switched emp loyers from the Haley firm to the D.C. firm Garvey, Schubert & Barer. See Def.’s SMF ¶ 8.4 On June 2, 2000, the FCC’s Mass Media Bureau (“MMB”) accepted B each TV’s Statements of Eligibility, and soon after granted Beach TV’s st ations Class A licenses. Pl.’s SMF ¶ 42. However, on June 9, 2000, the MMB dismissed ACI’s Stateme nt because it was incomplete. Id. ¶ 43. Mr. Solomon informed Mr. C olley of the dismissal soon th ereafter. See Colley Dep. 93:14–97:14, Def.’s Mo t., ECF No. 76-3. Mr. Colley told Mr. Solomon that they would “need to do everything possibl e to get [the] Class A stat us” for the ACI station. Pl.’s SMF ¶ 45. Therefore, on June 22, 2000, Mr. Solomon filed a Petitionfor Reconsideration of the Dismissal with the Bureau, whic h included a correctly filled ou t, amended Statement of Eligibility. Id. ¶ 47. However, on November 20, 2000, the MMB denied the Petiti on for Reconsideration because ACI’s or iginal Statement of Eligibilityhad been “paten tly defective.” Id. ¶ 49. A few weeks later, on December 13, 2000, Mr. Solomon emailed Mr . Colley about seeking further review of the di smissal with the FCC, and expla ined that in the meantime, “it d[id] not appear that the stat ion [wa]s likely to suffer any ha rm as a result of” the dismissal. Id. ¶¶ 50–51. Mr. Colley agreed that for the time being, the statio n was not at risk of displacement, but worried that at some point in the future it could be. Id. ¶ 53. Therefore, on December 20, 2000, Mr. Solomon filed an Applica tion for Review by the full F CC of the MMB’s denial of ACI’s Petition for Reconsideration. Id. ¶ 56. The Application languished for twelve long years. It was ultimately denied on November 8, 2012. Id. ¶ 57. During the first few years fo llowing the submission of the Appl ication, Mr. Solomon communicated with ACI regardi ng its status, and in 2004 drafted a letter in support of the Application from U.S. Representative John Lewis of Georgia to b e submitted to the FCC. Id. ¶¶5 58–60. The last time Mr. Solomon c ommunicated directly with Mr. Colley regarding the Application was in 2008. Id. ¶ 60. Also in 2008, Mr. Solomon began the process of winding down his practice at the Garvey firm due to his advanced age. See Ex. 25, Solomon Dep., Pl.’s Mot., ECF No. 72-5. The details regarding how he characterized this change to Mr. Colley remainmurky. Mr. Colley summarizes Mr. Solomon’s 2009 communications w ith him regarding this “tran sition” as follows: that Mr. Solomon told Mr. Colley that he would turn over responsibility for ACI and Beach TV matters to Melodie Virtue, another partner at the firm; that she would bec ome the “front person” for ACI and Beach TV’s dealings with the F CC; that Mr. Solomon would ac t “in the background” as a “consultant”; that Mr. Solomon would remain in Washington, D.C. and would maintain an office at the Garvey firm; that he w ould continue to perform a limited amount of work for the firm; and that he would continue to work on pro bono matters. Pl.’s SMF ¶64. In his deposition, Mr. Solomon said that he could not recall speaking with Mr. Colley or Ms. Davis about his retirement, see Solomon Dep. 108:2–17, 140:8–22, ECF N o. 72-4, but now claims that he never told Mr. Colley that he “woul d be the back person regarding leg al representation of ACI or any of the other businesses ow ned by Colley.” 2d Solomon Decl. ¶ 8, Def.’s Opp’n, ECF No. 78-6. On December 11, 2009, Mr. Solomon forwarded an email to Mr. Col ley that contained an image of a “biker bar in Florida.” See Ex. C, Pl.’s Mot., ECF No. 71-5. The image depicted three motorized scooters parked outside of a convenience store. In th e email, Mr. Solomon told Mr. Colley, while referring to the phot o: “Not me. Staying in DC fo rever. Transition will be smooth and I will be around to consult, etc.” Id. In response, Mr. Colley joke d, “Don’t look close, they may have our names on them.” Id. The parties have provided no ot her documentation regarding how Mr. Solomon informed Mr. Co lley of his impending retirement . Mr. Colley claims that the6 email “was the only written c ommunication by Mr. Solomon to Mr. Colley regarding his ‘transition’ at the Garvey Firm.” Pl.’s SMF ¶ 69. Between 2008 and 2011, Mr. Solomon took s everal steps to wind d own his practice. On July 1, 2010, his employment at the Garvey firm was officially terminated. See Ex. 25, Solomon Dep. Mr. Solomon relinquished hi s Virginia bar license in 2009 and his D.C. license in 2011. Def.’s SMF ¶ 19. However, Mr. S olomon did not completely sever his relationship with the Garvey firm upon his termination a nd the relinquishment of his bar licenses. He continued to work from his office at the fir m several days a week, and maint ained a pro bono practice. Pl.’s SMF ¶¶ 70, 73. Additionally, at least in ACI’s case, he continu ed to advise his former partners on their work before the FCC. See, e.g. , Ex. 41, Virtue Dep., Pl.’s Mot., ECF No. 72-7. In February 2012, Congress passed the Spectrum Act, which Mr. C olley worried might affect ACI’s LPTV spectrum usag e rights. As such, he contacted Ms. Virtue, whom he believed he had been told would be the “fr ont person” for all of ACI’s d ealings with the FCC, inquiring as to the status of AC I’s December 2000 Applicat ion for Review. Pl .’s SMF ¶¶ 85–87. Up until Mr. Colley’s email, Ms. Virtue had b een unaware that ACI had an App lication for Review pending before the FCC. Id. ¶¶ 88–89. The next morning Ms. Virtue emailed Mr. Solomon ask ing if he knew whether the FCC had ever is sued a decision regarding the Application for Review (which she referred to as a petition for reconsideration), and after h e answered that it had not issued a decision, she confirmed that it was still a “live” Application. See Ex. E, Pl.’s SMF., ECF No. 71- 7. Upon further inquiry, Ms . Virtue learned that the Garvey firm d id not have a complete record of the Application, and the FCC had “no records in its P ublic File regarding the Application for Review.” Pl. ’s SMF ¶¶ 90–91. Therefore, Ms. Virtue reconstructed the record for7 the Application for Review us ing documents provided by Mr. Coll ey and forwarded the reconstructed record to the FCC. S he informed Mr. Colley that s he was “in communication with Mr. Solomon about the App lication for Review.” Id. ¶ 94. While Ms. Virtue had “notified the FCC in writing [that] she wo uld be the contact person for other matters handled by Mr. S olomon for Beach TV,” which a t that point was the licensee for the relevant LPTV station, she did not notify the FCC in wr iting that she would be the contact person for the Application for R eview, nor did she substitute a s counsel of record. Id. ¶¶ 95–100. However, she immediately bega n strategizing, with the help of M r. Solomon, on how to obtain a favorable decision on the Application for Review for Beach TV. On March 23, 2012, Mr. Solomon emailed Ms. Virtue from his personal email account to b rainstorm, writing “Do you think that a Supplement to the Application for Review might be worthwhile-including Cong. Letter and more facts? One reason is that now that the staff ha s the file, it might act quickly. Also, arrange meeting with Barbara and bring Jud?” Ex. F, Pl.’s Mot., ECF No. 71-8. Ms. Virtue responded that “Jud’s already try ing to get another congression al letter and I’ve recommended Jud come back up for FCC meetings with the Commissioners. A sup plement might be a good idea.” Id. In response, Mr. Solomon explai ned, “I’m just trying to head of f a quick decision before we exhaust all other options. Based on my experience with Honig, I think meetings with commissioner[]s as a first resortisn’t advisable. I’d set some thing up with Barbara and Joyce first—with Jud.” Id. Ms. Virtue believes that after that exchange she likely commun icated to Mr. Colley that “Henry [Solomon] was giving [her] some ideas on how to get the FCC to act on that pending application for review, a nd to bring it full circle with the staff, based on the fact that it had been pending for 12 years.” Virtue Dep. 94:14–95:12, Pl.’s Mot., ECF No. 72-6.8 Mr. Colley went on to lobby the FCC for an adjudication in his favor, using lobbyists not employed by the Garvey firm. P l.’s SMF ¶ 108–09. One of those l obbyists was Benjamin Perez, an engineer who is also a lic ensed attorney. Colley Dep. 147:8– 15, ECF No. 76-3; see also Ex. 10, Def.’s Mot., ECF No. 76-12. Dur ing that time, the FCC conta cted Mr. Solomon requesting a copy of ACI’s Statement of Eligibility. Pl.’s SMF ¶ 112. Mr. So lomon forwarded the request to Ms. Virtue, who supplied the FCC with a copy of the statement. Id

. On November 8, 2012, the FCC denied the Application for Review, explaining that ACI’s Statement of Eligibility had a “material deficiency” beca use it did not include answers to key questions. See Ex. G, Pl.’s SMF, ECF No. 71-9. T he next day, Ms. Virtue sent a copy of the denial to Mr. Solomon for his re view, and told him that she pla nned to file a Petition for Reconsideration with the FCC . Pl.’s SMF ¶¶ 118–19. Mr. Solomon offered to provide her with “input” and “wisdom” as she drafted the petition. Id. ¶ 120. On November 16, 2012, Mr. Solomon emailed Ms. Virtue with his “preliminary thoughts” on the denial and the types of arguments that could be made in the Petition for Reconsideratio n. In his email, he included a phrase (“the law favors repose”) that Ms. Virtue liked so much that she included it in the final petition. Id. ¶¶ 121–123, 126. In his email, he als o used the phrase “we” wh en describing strategy for the case. See Ex. H, Pl.’s SMF, ECF No. 71-10. On November 21, 2012, Ms. Virtue em ailed Mr. Colley and Ms. Dav is discussing her recommendations for the Pet ition for Reconsideration. See Ex. 43, Virtue Dep., Pl.’s Mot., ECF No. 72-7. In the email, she also r esponded to a previous email from Ms. Davis in which Ms. Davis expressed her belief that this whole situation had arisenbecause of a clerical error by the Haley firm. Id. Ms. Virtue explained that it would behoove Beach TV to conside r engaging independent counsel to consider whether Beach TV and the Garveyfirm had a conflict of interest9 regarding the Petition for Reconsideration. Id. She explained that Beach TV had several options as it assessed whether a conflict existed. Id. It “could decide to have Gar vey Schubert Barer file the Petition for Reconsiderati on, [it] could transfer this matt er to independent counsel, or [it] could engage another firm with expe rtise in administrative liti gation to serve as co-counsel with Garvey Schubert Barer and compl ement [Ms. Virtue’s] background in communications regulation.” Id. Beach TV and ACI retained the l aw firm Balch & Bingham to dete rmine whether there was a conflict, but ultimately chose to proceed with the Garvey firm as counsel for the Petition. See Ex. 54, Virtue Dep., Pl.’s Mot., ECF No. 72-7. Upon finishing a draft of the Pet ition, Ms. Virtue sent a copy to Mr. Colley and Ms. Davis, and also left a copy on Mr. S olomon’s chair in his Garve y firm office for him to review. See Ex. J, Pl.’s SMF, ECF No. 71-12; Ex. K, Pl.’s SMF, ECF No. 71- 13. It appears that Mr. Solomon was in the office tha t day, because an hour and a half later, he responded to Ms. Virtue with comments. In those comments, he suggested Maybe a short para. saying that what the FCC did to us vs. its flexibility vis-a-vis other filers, borders on disparate treatm ent. See Melody Music, Inc. v. FCC (a couple of cases followed and relie d on MM doctrine. Similarly-situat ed parties can’t be treated differently. Granted networ k stations though anti-trust violations/deception, but denied AM renewal where also deceptiv e practices.) Melody Music v. FCC, 345 F.2d 730 (DC Cir. 1965). I haven’t re-read the McElroy Electronics case, but I think MM wa s cited. 990 F.2d 1351 (DC Cir. 1993). In any event, MM has been cited in a number of subsequent cases that you can easily find. Jud’s Declaration excellent. Ex. K, Pl.’s SMF. Seven minutes l ater, he sent another email, w hich read: “Also see fn. 13 White Mtn. Beg. Co, Inc. v. FCC 598 F.2d 274 (1998). Did not follow M M, but distinguished. I think maybe we’re closer to MM than was appellant in WMtn. I will be re-reading Pet. For Recon.” Id. Ms. Virtue incorporated an analysis of the Melody Music case into the final Petition for Review.10 Pl.’s SMF ¶ 130. Mr. Colley reca lls Ms. Virtue informing him at the time that she was consulting with Mr. Solomon as she prepare d the Petition for Review. Colle y Dep. 177:21–178:8, ECF No. 72-2. Ms. Virtue does not recall telling Mr. Colley that Mr. So lomon was involved, but she “assumes” that she did. Virt ue Dep. 166:18–167:2, ECF No. 72-6. Ms. Virtue submitted the Petition on December 7, 2012. Pl.’s SMF ¶ 133. On October 7, 2014, the MMB denied t he Petition for Reconsideration because “[t]he Atlanta Channel’s initial Statement of Eligibility lacked any i nformation supporting eligibility, and its corrected statement w as untimely.” Ex. 53, Virtue Dep., ECF No. 72-7. In response to this denial, Ms. Virtue emaile d Mr. Colley and Ms. Davis explai ning the process for filing an appeal of the decision to the D.C. Circuit. See Ex. 54, Virtue Dep., ECF No. 72-7. She also explained that it would be wise a t that juncture to again consu lt with outside counsel regarding whether Beach TV and the Garvey f irm had a conflict of interest that could affect the appeal. Id. Beach TV ultimately decided to fil e an appeal with the D.C. Cir cuit using a different law firm, but continued to retain the Garvey firm for other matters . The D.C. Circuit affirmed the FCC denial of the Petition for Review on September 23, 2015. See Beach TV Props., Inc. v. FCC , 617 Fed. App’x 10 (D.C. Cir. 2015). O ne month later, on Octob er 26, 2015, Beach TV and ACI filed this suit against Mr . Solomon, the Haley firm, and th e Garvey firm. See generally Compl., ECF No. 1. At that point, Ms . Virtue advised Mr. Colley that the Garvey firm could no longer represent ACI and Beach TV due to the conflict of intere st posed by the lawsuit. Pl.’s SMF ¶ 151. All three defendants moved to dismiss ACI and Beach TV’s First Amended Complaint. See ECF Nos. 24, 25, 27. The Court grante d the Garvey and Haley fi rms’ motions, and granted in part and denied in part Mr. Solomon’s. See Beach TV Props., Inc. v. Solomon , No. 15-cv-11 1823, 2016 WL 6068806 (D.D.C. Oct. 14, 2016) . It also dismissedclaims by Beach TV for lack of standing. Id. With only one active claim remaining (ACI’s claim against Mr. Solomon for his submission of the defective form ) ACI filed a motion to amend i ts complaint a second time, which the Court granted i n part and denied in part. See Beach TV Props., Inc. v. Solomon , 254 F. Supp. 3d 118 (D.D.C. 2017). Following t he Court’s order, the ca se now contains two surviving claims of legal malpractice: on e against Mr. Solomon for prepar ing and filing the incomplete Statement of Eligibility, and one against Ms. Virtue for failin g to advise ACI about, among other things, potential conflicts and c laims arising from Mr. Solomon ’s alleged malpractice. See 2d Am. Compl., ECF No. 69. ACI and Mr . Solomon subsequently filed cross-motions for summary judgment on Mr. Solomon’s liability to ACI for malpractice. The ir motions are now ripe for review.

III. LEGAL STANDARD A court may grant a motion for s ummary judgment when there is “ no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Material” facts are thos e capable of affecting the subs tantive outcome of the litigation, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986), and a disput e regarding those facts is “genuine” if there is enough evi dence on the record for a reaso nable jury to find for the nonmovant, Scott v. Harris , 550 U.S. 372, 380 (2007). On summary judgment, the movant b ears the initia l burden of ide ntifying portions of the record that demonstrate the absence of any genuine issue of mat erial fact. See Fed. R. Civ. P. 56(c)(1); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). In respons e, the non-movant must point to specific facts in the r ecord that reveal a genuine iss ue that is suitable for trial. See Fed. R. Civ. P. 56(c)(1); Celotex , 477 U.S. at 324. The purported di spute may not be based on me re12 allegations—rather, the non-movant must present affirmative evi dence demonstrating that there is indeed a genuine dispute. Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). However, all underlying facts and inferences must be analyzed i n the light most favorable to the

non-movant. See Liberty Lobby , 477 U.S. at 255. When the statute of limitations is at issue, “[t]he burden of proof rests with the defendants because the st atute of limitations is an affirmative defense.” Seed Company Limited v. Westerman , 832 F.3d 325 (D.C. Cir. 2016) (citing Brin v. S.E.W. Inv’rs , 902 A.2d 784, 800–01 (D.C. 2006)).

IV. ANALYSIS ACI and Mr. Solomon have each move d for a ruling in their favo r regarding Mr. Solomon’s liability for the subm ission of the incomplete Statem ent of Eligibility. See Pl.’s Mot.; Def.’s Mot. ACI argues that the Court should grant it summary j udgment because it has demonstrated that Mr. Solomon committed malpractice when he sub mitted the incomplete form and because it filed suit within the statute of limitations per iod. Mr. Solomon argues that the Court should rule in his favor because he has demonstrated that ACI’s suit is barred by the statute of limitations. In the al ternative, Mr. Solomon argues that ACI was contributorily negligent when it forwarded the i ncomplete Statement of Eligibi lity to him for his review, and that ACI cannot show, as a matter of law, that it was Mr. Solom on’s actions that led to the full extent of the loss ACI alleges it suffered in its Second Amende d Complaint. For the reasons set forth below, the Court finds tha t questions of fact remain as t o whether Mr. Solomon committed legal malpractice when he submitted the incomplete form, whethe r ACI’s claim against Mr. Solomon is time-barred, and whether Mr. Solomon’s actions proxi mately caused the full extent of ACI’s injuries, a nd therefore denies both parties’ motions f or summary judgment.13 A. Statute of Limitations 1 The parties dispute whether AC I’s claim of legal malpractice ag ainst Mr. Solomon is time-barred. Legal malpractice cl aims in the District of Columb ia “may not be brought” more than three years “from the time the right to maintain the actio n accrues.” D.C. Code § 12-301(8). Despite bringing this suit almos t sixteen years after Mr. Solom on’s error, ACI promotes several arguments as to why its suit is not time-barred. First, ACI arg ues that its claim did not accrue at the time of Mr. Solomon’s err or, or upon its discovery of that error, because ACI did not suffer an actual injury as a result of Mr. Solomon’s alleged malpracti ce until November 10, 2014, when it began to pay its new lawyers for its appeal of the FCC’s dec ision to the D.C. Circuit. See Pl.’s Mem. Law Supp. Mot. Summ. J. (“Pl.’s Mem.”) at 13–14, ECF No. 7 3. Second, it claims that even if it did suffer an injury earlier, its suit is not time-b arred because its claim was tolled during the lengthy time period during which Mr. Solomon continu ed to represent the company in its attempt to obtain a Class A li cense for its LPTV station an d because it brought suit within three years of the end of the tolling period. See id. at 16–17. Third, ACI argue s that even if Mr. Solomon did not in fact represe nt it after October 26, 2012 (th ree years before this suit was filed), his actions su rrounding his retirement were so unclear that he lulled ACI into inaction. See

1 “A federal court sitting in di versity must apply the choice-of -law rules of the forum state—here, the District of Columbia.” In re APA Assessment Fee Litig. , 766 F.3d 39, 51 (D.C. Cir. 2014); Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496 (1941). “Looking to the D.C. choice-of-law rules, we see thatthey treat statutes of limitat ions as procedural, and therefore almost always mandate applicati on of the District’s own statute of limitations.” A.I. Trade Fin., Inc. v. Petra Intern. Banking Corp. , 62 F.3d 1454, 1458 (D.C. Cir. 1995) (citing Namerdy v. Generalcar , 217 A.2d 109, 113 (D.C. 1966)). Therefore, the Court will app ly D.C. law in its analysis of the statute of limita tions. However, “[u]nder prope r conflict of laws principles, the Court is to conduct the choice of law analysis for each distinc t issue being adjudicated.” Long v. Sears Roebuck & Co. , 877 F. Supp. 8, 11 (D.D.C. 1995) (citing In re Air Crash Disaster at Washington, D.C. , 559 F. Supp. 333, 341 (D.D.C. 1983)); see also Logan v. Providence Hosp., Inc. , 778 A.2d 275, 280 (D.C. 2001) (“[D]ifferent law may apply to different issues in a lawsuit.”) Therefore, this choi ce of law decision does not appl y to any other issues in this case.14 id. at 19. Fourth, ACI accuses Mr . Solomon of fraudulently conceal ing his retirement from ACI, thereby tolling the statute of limitations until it discovered his fraud. See id. at 21–22. In response, Mr. Solomon claims that his representation of ACI ended upon his retirement in 2010. See Def.’s Opp’n at 13, ECF No. 78. In addition, he argues that th e lulling doctrine is inapplicable, and his actions did not amount to fraudulent concealment. See id. at 18, 21. For the reasons set forth belo w, the Court concludes that A CI’s injury as a result of Mr. Solomon’s alleged negligence o ccurred when its Statement of Eli gibility was dismissed in June 2000, that Mr. Solomon did not lull ACI into inaction, and thatMr. Solomon did not fraudulently conceal from ACI its cause of ac tion against him. However, the Court also finds that questions of fact remain as to whether ACI’s claim against Mr. Solomon was t olled past October 26, 2012 due to the continuing representa tion doctrine. As such, the Court cannot find at this time that the statute of limitations has run on A CI’s malpractice claim again st Mr. Solomon. 1. Date of Injury When determining whether the s tatute of limitations on a claim has run, a court must first determine when the relevant cause of action accrued. See Williams v. Mordofsky , 901 F.2d 158, 162 (D.C. Cir. 1990) (citing Byers v. Burleson , 713 F.2d 856, 859–60 (D.C. Cir. 1983)). One method of determining when a legal malpractice claim accrues in the District of Columbia is the so-called “injury” rule. “Under th is rule, a claim for legal ma lpractice accrues when the plaintiffclient suffers actual injury, not when the act causing the injury occurs.” Byers , 713 F.2d at 859– 60. ACI claims that it did not suffer an injury as a result of Mr. Solomon’s alleged negligence until November 10, 2014, when it suffered the “actual injury” o f incurring legal fees and expenses by taking an appeal of the FCC’s decision to the D.C. Circuit. See Pl.’s Mem. at 14.15 ACI claims that this was the first injury it suffered because e ven though its application for a Class A license was denied on June 9, 2000, it has not yet suff ered displacement from Channel 42. It explains that “ACI therefo re did not lo[]se any existing right, remedy or interest when Mr. Solomon filed the incomplete ACI Statement in 1999. ACI had and retained the right to use Channel 42 of the broadcast spec trum in Atlanta because ACI hel d a low power television license. Mr. Solomon’s mistak e did not affect that right.” Id. Even after the passage of the Spectrum Act in 2012, ACI’s LPTV station was not displaced, and it remains unclear whether the Act makes the station more likely to be displaced. Id. As such, ACI claims that the only actual injury it has suffered are the legal fees it incurred fo r its appeal to the D.C. Circuit. ACI makes no attempt to reconcile thi s argument with its allegationin its Second Amended Complaint that it is owed over $25,000,000 in damages due to th e diminished value of its LPTV station. See 2d Am. Compl. ¶¶ 70–72. “At the earliest, [a cause o f] action accrues ‘when the plaint iff has sustained some injury, even if the injury occurs prior to the time at which the precis e amount of damages can be ascertained.’” Bleck v. Power , 955 A.2d 712, 715 (D.C. 2008) (quoting Ideal Elec. Sec. Co., Inc.
v. Brown , 817 A.2d 806, 811 (D.C. 2003)). “The term ‘injury’ encompass es any ‘loss or impairment of a right, remedy or interest, or the imposition of a liability.’” Id. (quoting 3 Mallen & Smith, Legal Malpractice, § 23: 11 (2008 ed.)). “It is not nec essary that all or even the greater part of the damages have to occur before the cause of action ar ises.” Knight v. Furlow , 553 A.2d 1232, 1235 (D.C. 1989) (citing United States v. Gutterman , 701 F.2d 104, 106 (9th Cir. 1983)). Despite its arguments to the contrary, ACI suffered actual injury as a result of Mr. Solomon’s alleged negligence on June 9, 2000, when the FCC dism issed ACI’s Statement of Eligibility, thereby precluding it from applying for a Class A license. ACI explains, “[t]he sole16 reason for filing the ACI Sta tement in 1999 was to get Class A status for the WTHC-LD License and thus protect it from the possi bility of displacement due to the FCC’s promotion of new technology.” Pl.’s Opp’n at 19, E CF No. 79. Therefore, the dism issal of the Statement of Eligibility, which prec luded ACI from obtaining a Class A licen se for its LPTV station, was the first actual harm ACI suffered a s a result of Mr. Solomon’s all eged negligence. At that point, its station lost its chance to obtai n the same protection from disp lacement as a full power television station has, and also possibly its opportunity to increase in v alue as a result of obtaining that license. See 2d Colley Decl. ¶ 23, ECF No. 79-3 . Even though the full exten t of the damages caused by the dismissal of the S tatement of Eligibility may not have been apparent in 2000, the dismissal of the Statement was a real, concrete injury, and wou ld have provided a basis for a malpractice suit in 20 00 if ACI had chosen to sue Mr. Solomon t hen. See Pl.’s Opp’n at 22 (“ACI’s damages are measured by the difference between ACI havi ng a Class A license and not having a Class A license.”) Because ACI suffered an actual in jury as the result of Mr. Solo mon’s alleged malpractice in 2000 but did not bring this suit until 2015

 well beyond the three ye ars required by the applicable statute of limitations

 the Court must evaluate whether there are any applicable common law doctrines that excuse ACI’s otherwise late filing. A CI claims that there are three: the continuous representati on doctrine, lulli ng, and fraudulent concealment. The Court addresses each in turn. 1. Continuous Representation ACI has invoked the continuous rep resentation doctrine to argu e that the statute of limitations has not run on its malpractice claim against Mr. So lomon. ACI claims that, because Mr. Solomon continued to represe nt the company in its attempt t o secure a Class A license17 through at least October 26, 2012, the continuous representatio n doctrine tolled the statute of limitations during that time pe riod, thereby making the suit th at it brought only three years later timely. Pl.’s Mem. at 16. Mr. Solom on counters that the continu ous representation doctrine does not make ACI’s claim timely, becau se his representation of ACI ended upon his retirement in 2010 and ACI did not bring suit withi n three years of that date . The parties dispute whether Mr. Solomon ever clearly told ACI tha t he was retiring from the pra ctice of law in 2010. The Court finds that because a material que stion of fact remains as to wh ether Mr. Colley and Ms. Davis reasonably believed that Mr. Sol omon was still representing the m in their pursuit of a Class A license, it is precluded from granting summary judgment on this issue to either party. The continuous representation doc trine “tolls the statute of li mitations for a legal malpractice claim during the ti me the attorney continues to rep resent the client in the relevant matter. The rule aims to avoid putting a client in the position of having to choose between (i) disrupting an ongoing lawyer-client relationship to enable brin ging a malpractice claim and (ii) continuing the relationship but relinquishing the claim.” Seed Company Ltd. v. Westerman , 832 F.3d 325, 332 (D.C. Cir. 2016) (citing See Bradley v. Nat’l Ass’n of Sec. Dealers Dispute Resolution , 433 F.3d 846, 850 (D.C. Cir. 2005)). Unde r the doctrine, “whe n the injury to the client may have occurred during t he period the attorney was ret ained, the malpractice cause of action does not accrue until the attorney’s representation conc erning the particular matter in issue is terminated.” Id. (quoting R.D.H. Commc’ns, Ltd. v. Winston , 700 A.2d 766, 768 (D.C. 1997)).” “Although the rule will not always toll the statute of limitations during an appeal, it is not categorically inapplicable e ither. At the least, the rule a pplies when the same attorneys continue to represent a client in connection with the same matt er.” Id. (citing De May v. Moore & Bruce, LLP , 584 F. Supp. 2d 170, 183 (D.D.C. 2008)). This doctrine applie s even when the18 client is aware that a mal practice claim may exist. Bleck v. Power , 955 A.2d 712, 715 (D.C. 2008). When the attorney-client r elationship ends, and therefor e when the statute of limitation begins to run, is a question of fact, Winston , 700 A.2d at 768, and there a re “no bright-line rule[s]” for that determinati on. Mallen, Legal M alpractice § 23 :47. “On summary judgment, if the defendant has raised a statute of limitations defense, the plaintiff must showthat a genuine issue of fact exists as to whether the discovery rule or equita ble tolling applies.” Abate v. District of Columbia , 659 F. Supp. 2d 156, 160 (D.D.C. 2009). District of Columbia courts prov ide scant guidance of how a Court should determine when an attorney-client relations hip ended when the client beli eves that an attorney continued to represent him after th e attorney believes that the representati on has ended. D.C. courts have, however, determined that formal withdrawal of an appearance bef ore a tribunal is not required to end the representation; rather, t he representation ends when th e parties agree th at it has ended. See Rocha v. Brown & Gould , LLP, 101 F. Supp. 3d 52, 73–74 (D.D.C. 2015) (citing CasasCordero v. Salz , No. 11-CV-1713, 2012 WL 2190879, at *4 (S.D. Cal. June 14, 20 12) and Aaron v. Roemer, Wallens & Mineaux, LLP , 707 N.Y.S.2d 711, 714 (N.Y. Sup. Ct. 2000)). As such, the fact that Mr. Solomon never withdrew his appearance before the FCC is of little import. Additionally, D.C. courts have expl ained that when the attorneyand client do not have an understanding regarding the natu re of their relationship, “a cl ient’s perception of an attorney as his counsel is a consideration [for the court] in determining w hether a[n attorney-client] relationship exists,” Matter of Lieber , 442 A.2d 153, 156 (D.C. 1982). “Where, as here, ‘the substantive law of the forum state is unc ertain or ambiguous, the job of the federal courts is car efully to predict how the highe st court of the forum state would resolve the uncertainty or ambiguity.’” Boley v. Atl. Monthly Grp. , 950 F. Supp. 2d 249, 25519 (D.D.C. 2013) (quoting Travelers Ins. Co. v. 633 Third Assocs. , 14 F.3d 114, 119 (2d Cir. 1994)); see also Hull v. Eaton Corp. , 825 F.2d 448, 453 (D.C. Cir. 1987) (“Our task is thus to choose the rule we believe the Di strict of Columbia is likely t o adopt in the future.”) (citing 19 C. Wright, A. Miller & E. Cooper, Fed eral Practice and Procedure § 4507, 103 (1982)). The two jurisdictions to have produced the most continuous representati on jurisprudence are New York (at the state supreme court leve l) and California (at the inter mediate appellate level). Both states trend in the direction of exami ning the client’s perception of the attorney-client relationship, and allowing the trier of fact to dete rmine if that perception was reasonable. The New York Court of Appeals has held that the statute of limi tations stops tolling when the client discovers or should ha ve discovered that the attorne y had abandoned his representation of the client. See Shumsky v. Eisenstein , 96 N.Y.2d 164, 170–71 (2001). In Shumsky , the court found that the plaintiffs were on notice that the defendant had ceased representing them when he failed to return their many cal ls, three years after they had r etained him to file a breach of contract action, and three years after they had last heard from him. Id. at 171. This case was an implicit overruling of what other jurisdictions had called the “New York rule,” which required, in order to be granted tolli ng, a demonstration of ongoing communication between the attorney and the client, i.e. “clear indicia of an ongoing, con tinuous, developing and depend ent relationship between the clientand the attorney, . . . marked with trust and confidence.” Muller v. Sturman 437 N.Y.S.2d 205, 208 (N.Y. App. Div. 1981). New York courts h ave since transitioned to the Shumsky rule, such as in Cordero v. Koval Retjig & Dean PLLC , when a New York court found that when an a ttorney who had worked on a matt er left the firm that was representing the plaintiff, a nd provided “no evidence that plai ntiff was ever informed of, or had objective notice of, [his] departur e,” a triable issue of fact remained as to whether the statute of20 limitations was tolled under the continuous representation doctrine. 57 N.Y.S.3d 145 (N.Y. App. Div. 2017). California courts orig inally varied in thei r approach as well. See Gonzalez v. Kalu , 43 Cal. Rptr. 3d 866, 871 (Cal. Ct . App. 2006) (rejecting, as othe r California courts had, the New York rule, but observing that “[ s]ome California courts have en dorsed the purported ‘New York rule’ [] for purposes of the continuing representation rule”). In Kalu , a case in which a client had hired an attorney to represent he r in a sexual harassment actio n, but then did notdiscover for three years that he had never a ctually filed the lawsuit, the c ourt held that, “i n the event of an attorney’s unilatera l withdrawal or abandonment of the client, the representation ends when the client actually has or reasonably should have no expectation th at the attorney will provide further legal services. That may occur upon the attorney’s express noti fication to the client that the attorney will perform no furthe r services, or, if the attorney remains silent, may be inferred from the circumstances.” Id. at 872 (internal citations omitted). This is because “[a]fter a client has no reasonable expectation that the attorney will provide further l egal services, [] the client is no longer hindered by a potential disruption of the attorney-clien t relationship and no longer relies on the attorney’s continuing rep resentation, so the tolling sho uld end.” Id. The court explained that “[w]hether the client act ually and reasonably believed that the attorney would provide further legal services regardi ng a specific subject matter is p redominantly a question of fact for the trier of fact, but can be deci ded as a question of law if the undisputed facts can support only one conclusion.” Id. at 873. A Washington State appell ate court has also adopted th e Gonzalez approach. See Hipple v. McFadden , 255 P.3d 730, 734 (Wash. App. Div. 2011), review denied , 259 P.3d 1108 (Wash. 2011) (“We adopt the Gonzalez approach. Running the statute of limitations from the first break i n continuity of the relations hip does not protect an injured client21 where the attorney abandons representation. The Gonzalez rule, which accounts for the client’s reasonable expectations, is an a ppropriate standard to apply be cause it furthers the stated objective of preventing an attorne y from being able to wait out an alleged malpractice claim.”) Given this trend among state appe llate courts, and the D.C. Co urt of Appeals’s prior holding that “a client’s percep tion of an attorney as his couns el is a consideration [for the court] in determining whether a[n attorn ey-client] relationship exists ,” Matter of Lieber , 442 A.2d 153, 156 (D.C. 1982), it is likely that the D.C. Court of Appeals wo uld also adopt this reasonable perception rule. As such, the Cour t will analyze the facts rele vant to this case under this rule. Based on the parties’ declarations and depositions, there was c learly no meeting of the minds as to when Mr. Solomon’s re presentation of ACI ended. The refore, the Court must determine whether ACI’s assumption that Mr. Solomon continued t o represent it past October 26, 2012 was reasonable. Mr. Solomon highlights the following e vents as demonstrating that Mr. Colley and Ms. Davis understood, o r at the very least should ha ve understood, that Mr. Solomon was retiring from the practic e of law, and therefore could no l onger represent them. First, in late 2009, Mr. Solomon informed Mr. Colle y that there would be a “tr ansition” due to Mr. Solomon’s age which would include Mr. Sol omon turning over to his partner Ms. Virtue responsibility for all ACI and Beach TV matters. See Colley Decl. ¶ 16, ECF No . 72-1. Second, Mr. Solomon believes that Mr. Colley demons trated that he understood Mr. So lomon to be retiring from the practice of law when he responded t o Mr. Solomon’s “Biker Bar” email by joking that the motorized scooters may have had Mr. Solomon and Mr. Colley’s na mes on them. See Def.’s Opp’n at 15–16. And third, followin g Mr. Solomon’s retirement i n July 2010, Ms. Virtue began acting as ACI’s replacement c ounsel by traveling to Florida to meet with Mr. Colley and Ms. Davis, and began serving as AC I’s email point of contact, as de monstrated when Mr. Colley22 inquired in March 2012 as to the status of the Application for Review. Id. at 14. Indeed, following the biker bar email, M r. Colley never emailed or spok e with Mr. Solomon again, Solomon Decl. ¶¶ 3–4, ECF No. 76-29, though perhaps that was be cause he did not believe he had any means of reaching him. See Ex. 8, Colley Dep., ECF No. 72-3 (em ail from Mr. Colley to Ms. Virtue on August 13, 2010 asking f or Mr. Solomon’s “email a ddress and other contact info”). ACI argues that although Mr. Co lley had been informed of the tr ansition at some point in 2009, he was under the impression that Mr. Solomon had not term inated his representation of ACI and Beach TV, but rather was taking a step back from the wo rk because of his age. See Pl.’s Mem. at 19. It explains that Mr. Colley and Ms. Davis were with in reason in believing that Mr. Solomon was not disassociating hims elf from ACI’s case entirely because Mr. Solomon had, when describing the transition, referred to Ms. Virtue as the f uture “front person” for ACI’s dealings with the FCC and to himself as a consultant acting “in the background” 2 ; had stated that he would be remaining in Washi ngton, D.C.; and had mentioned th at he would maintain an

2 Counsel for ACI asked Mr. Sol omon twice if he recalled speakin g with Mr. Colley or Ms. Davis about his retirement a nd both times Mr. Solomon answe red that he could not recall any such conversation. See Solomon Dep. 108:2–17, 140:8–22, ECF No. 72-4. Mr. Solomon now claims that he remembers tha t he “never told Colley in 2009 or any time thereafter, that after [he] retired Melodie Virt ue would be the front person and that [he] would be the back person regarding legal represent ation of ACI or any of the othe r businesses owned by Colley[, n]or did [he] ever suggest that af ter [he] retired [he] would m aintain an attorney-client relationship with ACI or any of the Colley interests.” 2d Solom on Decl. ¶ 8. Technically, these statements do not contradict eac h other, and are therefore, not subject to the sham affidavit rule, as ACI argues. Mr. Solomon did notsay that he does not recall whether he had any conversations with Mr. Colley about his retire ment; he said that he did not r ecall any such conversation taking place. Assuming he never told Mr. Colley that he would continue to work as ACI and Beach TV’s attorney, it makes sense th at Mr. Solomon does not recall ever telling Mr. Colley that he would. Therefore, there remains a question of fac t as to whethe r Mr. Solomon and Mr. Colley ever discussed Mr. Solomon’s re tirement, and if such a conversa tion occurred, what was said during it. However, there is no di spute that Mr. Solomon wrote to Mr. Colley in 2009 that he would “be around to consult, etc .” following his transition. Ex . C, Pl.’s Mot., ECF No. 71-5.23 office at the Garvey Firm , from which he would be doing pro bon o work. 3 Colley Dep. at 17:4– 14; 45:14–46:17; 54:17–55:21, ECF N o. 72-2. ACI also argues tha t Mr. Solomon never informed Mr. Colley that he was relinquis hing his bar licenses, and inde ed, there is no evidence in the record that Mr. Colley was awar e that Mr. Solomon had relinquis hed both of his bar licenses by 2011. Pl.’s Mem. at 5. Last, ACI poi nts to the assistance Mr. S olomon gave Ms. Virtue, which included strategy pointers and cas e citations, as she attempted to encourage the FCC to rule on the long-pending Application for R eview and as she drafted a Pe tition for Consideration on ACI’s behalf following the denial of its Application for Review , contributions which were conveyed, to some extent, to Mr . Colley, and that appear consis tent with the “background” role ACI claims Mr. Solomon told the company he would perform. Pl.’s Mem. at 8–9; Pl.’s SMF ¶¶ 131–32. These accounts of who knew what and when raise sufficient quest ions of fact to preclude the Court from granting ACI or Mr. Solomon summary judgment on the statute of limitations question. First, there is a dis pute among the parties as to wha t Mr. Solomon said to Mr. Colley when he retired. Second, there is a dispute as to whether Mr. C olley understood Mr. Solomon to be scaling back his practice, a s opposed to retiring. Third, th ere is a dispute as to whether Mr. Colley truly believed that Mr. Solomon was his lawyer on the Cl ass A license matter. And

3 The parties dispute whether Mr . Solomon told Mr. Colley that h e would be maintaining an office at the Garvey firm and would work on pro bono project s there. Mr. Solomon explains that he “did not tell Colley . . . at any time, that [he] was g oing to remain at the Garvey law firm doing pro bono work, representing Garvey’s clients, or starting a law practice of [his] own. In mid-June 2010, as [he] was prepar ing to vacate [his] office by the July 1, 2010 termination date set by the firm, [he] received an offer to affiliate, pro bono, with a nonprofit organization. The offer was unsolicited and we lcomed. As noted, the pro bono oppo rtunity arose after 2009—[his] final communication with Colle y–and after [he] had any contact with Colley or anyone else in his organization. Nor did [he] ever tell Colley about the Garve y firm’s offer to allow [him] to share office space after [he] r etired.” 2d Solomon Decl. ¶ 9.24 fourth, there is a dispute as to whether, if Mr. Colley did bel ieve that Mr. Solo mon continued to represent ACI, that belief was reasonable under the circumstanc es. As such, the Court cannot grant summary judgment on the con tinuous representation doctrin e question, and must leave the determination of when Mr. Co lley should have reasonably underst ood that Mr. Solomon was no longer his lawyer t o the trier of fact. ACI has invoked two other common law doctrines to argue that th e statute of limitations was tolled past October 26, 2012: lulling and fraudulent concea lment. The Court will next determine whether it can determine on a motion for summary judg ment that either of these doctrines render ACI’s suit timely. 2. Lulling and Fraudulent Concealment ACI argues that even if Mr. Solomon had ceased to represent it in its attempt to obtain a Class A license for its LPTV station before October 26, 2012, i ts claim is not time barred because Mr. Solomon lulled ACI i nto thinking that he still repr esented it, and fraudulently concealed that he was no longer representing it. See Pl.’s Mem. at 19–23. Mr. Solomon responds that neither doctrine applies to this case because he did not t ake any affirmative steps to trick ACI into believing that he still represented it after his retir ement. See Def.’s Opp’n at 18–26. Mr. Solomon is correct. Tolling “is frequently applied whe re the conduct of a fiduciaryis alleged to have lulled the plaintiff into failure to prot ect his interests within the statutory limitations period.” Ray v. Queen , 747 A.2d 1137 (D.C. 2000). “District of Columbia courts recog nize a restricted equitable tolling doctrine,” which “allows a plaintiff to initiate an act ion beyond the statute of limitations . . . [if the] defendant’s fraudulent concealment or misconduct l ulled the plaintiff into allowing the filing deadline to pass (often called the ‘lulling doctrine’).” Doe v. Exxon Mobil Corp. , 573 F.25 Supp. 2d 16, 34 (D.D.C. 2008) (internal quotation marks omitted ). The lulling doctrine applies when the defendant “ha[s] done som ething that amounted to an af firmative inducement to plaintiffs to delay bringing action.” Kiwanuka v. Kailana , 844 F. Supp. 2d 107, 119 (D.D.C. 2012) (citing Bailey v. Greenberg , 516 A.2d 934, 937 (D.C.1986)). “[F]raudulent concealment of the existence of a cause of action ” also “tolls the running of a conventional statute of lim itations . . . [a]nd in the legal malpractice field, there is widespread agreement that the statute will not run where the existence of a cause of action for legal malpractice has been fraudulently concealed by affirmative misr epresentations

. ” Weisberg v. Williams, Connolly & Califano , 390 A.2d 992, 995 (D.C. 1978) “Concealment will exist if the attorney has knowingly made false representations; it is only then that his conduct, by way of estoppel or otherwise, will toll the running of the statute.” Id. at 996. Fraudulent concealment need not be pleaded in the compl aint, because the “statute of l imitations is an affirmative defense that defendant must prove: A pl aintiff’s obligation to plead fr audulent concealment therefore arises only when defendant raises the statute of limitations as a defense.” Firestone v. Firestone , 76 F.3d 1205, 1210 (D.C. Cir. 1996) (citing Connors v. Hallmark & Son Coal Co. , 935 F.2d 336, 343 n. 12 (D.C. Cir.1991)). In order for the doctrine to a pply, the “party injured by anoth er’s fraudulent conduct” must “remain[] in ignorance . . . w ithout any fault or want of diligence or care on his part until the fraud is discovered.” Craig v. Lew , 109 F. Supp. 3d 268, 282 (D.D.C. 2015) (internal citations and quotation marks omitted). “The doctrine of fraudu lent concealment does not come into play, whatever the lengths to which a defendant has gone t o conceal the wrongs, if a plaintiff is on notice of a potential claim.” Hobson v. Wilson , 737 F.2d 1, 35 (D.C. Cir. 1984), overruled in part on other grounds by Leatherman v. Tarrant Cnty. Narcotics Intell igence & Coordination26 Unit , 507 U.S. 163 (1993). In Hobson , the D.C. Circuit listed two f actors for courts to consider: first, “the plaintiff must know facts giving notice of the part icular cause of ac tion at issue, not just any cause of action”; and s econd, the “plaintiff’s knowled ge of the grounds for a suit must generally extend to an awareness of the persons responsible for plaintiff’s injury.” Id. at 35–36. As a preliminary matter, ACI ha s pointed to no cases in which acourt has found that fraudulent concealment applied when a defendant concealed not a cause of action or underlying injury, of which the plaintiff wa s well aware, but rather an an cillary fact such as when the statute of limitations began to run. Rather , courts in this district ha ve found that so long as plaintiff was on notice of the alleged malpractice, fraudulent concealment cannot apply. See e.g. , Gallucci v. Schaffer , 507 F. Supp. 2d 85, 90–91 (D.D.C. 2007) (holding that fraudul ent concealment did not apply to a case in which the defe ndant law firm had told plaint iff that there was nothing more it could do for him in his workers’ c ompensation case because he w as already aware of his allegedly insufficient payments for over a year). Here, ACI had been aware that Mr. Solomon had submitted the incomplete Statement of Eligibility to the FC C since June 2000. Therefore, the fact that it believes that Mr. S olomon misrepresented the natur e of his retirement to it cannot toll the statute of limitations on f raudulent concealment grounds. Even assuming that fraudulent concealment could apply to ancill ary matters such as when the statute of limitations on a c laim began to run (or, in this context, stopped being tolled), as opposed to the existence of the actual cause of action, ACI has not alleged sufficient affirmative actions on Mr. Solomon’s part to d emonstrate that he fraudulent ly concealed that the statute of limitations on their claim had begun to run, or lulled them int o inaction. There is indeed a definitive dispute as to whether Mr. Solomon clearly indicated to ACI that he was retiring from the practice of law in 2009 and 2010, and whether ACI understoo d that he was retiring, rather27 than simply taking a step back from his practice. See supra , Section IV.A.1. However, Mr. Solomon’s alleged lack of clar ity does not amount to an “affirm ative inducement to plaintiff[] to delay bringing action.” Bailey , 516 A.2d at 937 (citing Hornblower v. George Washington University , 31 App. D.C. 64 (1908)). Even if Mr . Solomon was purposefullyunclear when he told ACI about his “transition” and the transfer of his work fo r ACI and Beach TV to Ms. Virtue, following his biker bar email to Mr. Colley in December 2009, M r. Solomon took no further steps to lead Mr. Colley or Ms . Davis to believe that he was st ill ACI’s lawyer. The record reflects that Mr. Colley began t o email Ms. Virtue, whom he bel ieved to be the “front person” for all Beach TV and ACI business be fore the FCC, after Mr. Solomonretired, and never emailed Mr. Solomon again after D ecember 11, 2009. Although Ms. Virtue began communicating with Mr. Solomon about how to encourage the FCC to finally review AC I’s Application for Review, and informed Mr. Colley of that fact, there is no indication in the record that Mr. Solomon asked Ms. Virtue to inform Mr. Colle y that he was giving her advice. Similarly, when Mr. Solomon assisted Ms. Virtue as she draf ted the Petition for Reconsideration, there is no evidence that Mr. Solomon asked Ms. Virtue to inf orm ACI that he was involved. Be cause the record is devoid of evidence that Mr. Solomon took affi rmative steps after late 200 9 to maintain the appearance that he was still representing AC I, his actions do not amount to lul ling or fraudulent concealment, and the statute of limitations cannot be tolled on these bases. B. Liability Next the Court must determine whether there is a question of ma terial fact, apart from timing, as to Mr. Solomon’s liability to ACI for legal malpract ice. ACI argues that it has presented sufficient undisputed e vidence for the Court to determine that Mr. Solomon is liable to ACI for malpractice due to the s ubmission of the incomplete Sta tement of Eligibility, and28 therefore should be gr anted summary judgmen t on liability. Mr. Solomon has in turn moved for a finding that he is not liable fo r any damages to ACI caused by the passage of the Spectrum Act of 2012. For the reasons set forth below, the Court finds that neither party has met its burden for a grant of summary judgm ent on these questions. 1. Choice of Law “Because jurisdiction over [ACI’s] legal malpractice claims is founded on diversity of citizenship, the Court must first determine which state law to apply.” Marbury Law Group, PLLC v. Carl , No. 9-1402, 2013 WL 4583558, at *5 (D.D.C. July 21, 2013). Ne ither party briefed which state’s laws the Court should use when evaluating this legal malpractice claim. ACI uses D.C. law to demonstrat e that the Cour t has enough evid ence before it to rule on Mr. Solomon’s liability, but also expla ins that “District of Columb ia law is the same as Virginia law on the elements of legal malpr actice.” Pl.’s Mem. at 12 n.7 (ci ting Desetti v. Chester , 290 Va. 50, 56, 772 S.E.2d 907, 909 (2015)). In his oppos ition to ACI’s mot ion for summary judgment, Mr. Solomon applies D.C. law in res ponding to all of ACI’s argument s, see Def.’s Opp’n at 10, but in his own motion for summary judg ment, uses Virginia law in su pport of his proximate causation arguments, assuming that the Court’s October 14, 2016 analysis deciding that Virginia law applied to ACI’s attempt t o assign its legal malpractice cl aim to Beach TV applies to determining which state’s laws should be used to decide the mer its of ACI’s malpractice claim as well. See Def.’s Brief at 28 n.25. ACI has chosen to respond to these ar guments with Virginia law. Neither party suggests that t he laws of Florida or Georgia , where ACI is incorporated and has its principle place of busin ess, respectively, applies to any portion of this case. Because the parties disagree as to whether Dis trict of Columbia or Virginia law applies to the substantive29 legal issues governing ACI’s mal practice claim against Mr. Solo mon, the Court must determine which law applies. “A federal court sitting in dive rsity must apply the choice-of- law rules of the forum state—here, the District of Columbia.” In re APA Assessment Fee Litig. , 766 F.3d 39, 51 (D.C. Cir. 2014); see also Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496 (1941). The District of Columbia “employ[s] ‘a modified governmental interests analy sis which seeks to identify the jurisdiction with the most sign ificant relations hip to the disp ute.’” Washkoviak v. Student Loan Mktg. Ass’n , 900 A.2d 168, 180 (D.C. 2006) (quoting Moore v. Ronald Hsu Constr. Co. , 576 A.2d 734, 737 (D.C. 1990)). Under this approach, a court must f irst “determine whether a true conflict exists between the laws of the two jurisdictions—that is, whether more than one jurisdiction has a pot ential interest in ha ving its law applied and, if so, whether the law of the competing jurisdictions is different.” In re APA Assessment Fee Litig. , 766 F.3d at 51–52 (internal quotation marks omitted) (quoting GEICO v. Fetisoff , 958 F.2d 1137, 1141 (D.C. Cir. 1992)). A “false conflict” exis ts, on the other hand, “when eit her (1) the laws of the interested states are the same; (2) w hen those laws, though different, pro duce the same result when applied to the facts at issue; or (3) whe n the policies of one state wo uld be advanced by the application of its law and the policies of the sta tes whose laws are claimed t o be in conflict would not be advanced by applicati on of their law.” Long v. Sears Roebuck & Co. , 877 F. Supp. 8, 11 (D.D.C. 1995) (citing Biscoe v. Arlington Cnty. , 738 F.2d 1352, 1360 (D.C. Cir. 1984)). If “there is no ‘true conflict’” among the purporte dly interested jurisdictions , and where one of those jurisdictions is the District of Columbia, D.C. courts will “ap ply the law of the District of Columbia by default.” GEICO , 958 F.2d at 1141 (citing Fowler , 262 A.2d at 348; Restatement (Second) of Conflict of Laws § 186 c mt. c (Am. Law Inst. 1971))

.30 As the parties have suggested through their disagreement, both states have a potential interest in this case. Virginiahas a potential interest becaus e the events leading to ACI’s injuries occurred at a law firm in Virgi nia. D.C. has an interest becaus e this case involves an attorney barred in D.C. (as well as Virgi nia), domicile d in D.C., who wa s representing plaintiff-client before an agency located in D.C that issues decisions appealabl e to the D.C. Circuit. Because more than one state has a n interest in its laws being applied to this case, next the Court must determine whether ther e is a true conflict or a fals e conflict between the states’ laws. Virginia and D.C. maintain ver y similar standards for proving aclaim of legal malpractice. In Virginia a cause of action for legal malpractice requires the existence of an attorney-client relationship which gave rise to a duty, breach of that duty by the defendant attorney, and that the damages claimed by the plaintiff client must have been proximately caused by the defen dant attorney’s breach . . . . To establish an attorney’s breach of duty, a client must show that the attorney failed to exercise a reasonable degree of care, skill, and dispat ch in rendering the services f or which the attorney was employed . . . . This generally is a question of fact to be decided by a fact finder, after considering testimony of expert witnesses, but must be reserved for determination by a court an d cannot be the subject of expert t estimony if the issue of a bre ach is a matter of law. Smith v. McLaughlin , 769 S.E.2d 7, 13 (Va. 2015) (internal quotation marks and cit ations omitted). In D.C., “to succeed on a legal malpractice claim, th e plaintiff must show that (1) the defendant was employed as the pl aintiff’s attorney, (2) the def endant breached a reasonable duty, and (3) that breach resulted in, and was the proximate cause of , the plaintiff’s loss or damages.”
Martin v. Ross , 6 A.3d 860, 862 (D.C. 2010) (citing Niosi v. Aiello , 69 A.2d 57, 60 (D.C. 1949)). “[I]n a legal malpractice action, the plaintiff must present ex pert testimony e stablishing the standard of care unless the atto rney’s lack of care and skill i s so obvious that the trier of fact can find negligence as a matter of common knowledge,” Flax v. Schertler , 935 A.2d 1091, 110631 (D.C. 2007) (quoting O’Neil v. Bergan , 452 A.2d 337, 341 (D.C. 1982)), or as a matter of law, Hamilton v. Needham , 519 A.2d 172, 175 n.6. D.C. and Virginia law contain th e same rules for when expert te stimony is or is not required. As explained in Smith , Virginia allows for the f inding of liability on a breach of the standard of care as a matter of law in some circumstances, nega ting the need for expert testimony. Smith , 769 S.E.2d at 13; see also Heyward & Lee Const. Co., Inc. v. Sands, Anderson, Marks & Miller , 453 S.E.2d 270, 272 (Va. 1995). Additionally, in Virginia “it is well-established that ‘[u]nless a malpractice case turns upon matters within the common knowledge of laymen, expert testimony is required to e stablish the appropriate profe ssional standard, to establish a deviation from that standard, a nd to establish that such a devi ation was the proximate cause of the claimed damages.’” Sloan v. Urban Title Servs ., 770 F. Supp. 2d 227, 234 (D.D.C. 2011) (quoting Seaward Int’l, Inc. v. Price Waterhouse , 239 Va. 585, 391 S.E.2d 283, 287 (1990)). The matter of law and common knowledge e xceptions to the expert tes timony requirement also exist for clear cases in D.C. Hamilton v. Needham , 519 A.2d 172, 175 n.6 (D.C. 1986) (affirming summary judgment, granted without expert testimony, for plainti ff whose attorney omitted from his will a residuary clause the plaintiff had requested, thereb y causing his residual estate to pass intestate); O’Neil , 452 A.2d at 342 n.6 (observing in dictum that “[e]xpert testi mony has been held unnecessary in cases involving other failures to act,” andthat “[s]ome courts, moreover, have stated that, in cases of obvious negligence, the court mayrule, without benefit of expert testimony, that the attorney committed a breach of the duty of care as a matter of law); but see Liu v. Allen , 894 A.2d 453, 459 (D.C. 2006) (finding wh ile the “existence o f the INS regulation governing motions for reconsiderat ion certainly was relevant to ‘the specific standard of conduct’ applicable in determining whether [the attorney] was n egligent,” there remained a32 question of fact as to whether t he attorney would have needed t o file such a motion at all in order to achieve the desired outcome , thereby precluding a finding of negligence as a matter of law). Because both D.C. and Virginia all ow for this sort of departure , in certain limited circumstances, D.C. and Virginia malpractice law are in false conflict in this case. Long , 877 F. Supp. at 11. Because there is no “true conflict” between the substantive lawgoverning legal malpractice claims in the District of Colum bia and Virginia, the Court will apply District of Columbia law to ACI’s claim going forward. 4 GEICO , 958 F.2d at 1141. 2. ACI’s Motion ACI has moved for summary judg ment on Mr. Solomon’s liability f or legal malpractice. See Pl.’s Mem. at 12. To support its motion, it has provided a short expert report by George W. Conk, Esq., which concludes that M r. Solomon’s failure to compl ete ACI’s Statement of Eligibility before submitting it “was a breach of Solomon’s dut y to his client of competence and diligence.” Ex. D at 2, Pl.’s Mot., ECF No. 71-6. The majority of this report, however, focuses on the duties of care and rules of professional responsibility that Mr. Solomon breached upon his retirement. Mr. Solomon str ikes back by pointing out that Mr. C onk’s “report does not address the standard of care of an attorn ey in the District of Columbiaor Virginia and Mr. Conk is not qualified to do so,” because “Mr . Conk is not licensed to pract ice in Virginia or i n the District of Columbia and does not profess to k now the standard of care of a ttorneys practici ng in Virginia, the District of Columbia, or befo re the FCC.” Def.’s Response t o Pl.’s SMF ¶ 41, ECF No. 78-1. In his rebuttal report, Mr. Sol omon’s expert, Thomas B. Mason, Esq., offers three opinions: that

4 The Court also observes that c ontributory neg ligence is available as an affirmative defense in both D.C. and Virginia , creating another “false conf lict.” See e.g. , Lyle, Siegel, Croshaw & Beale, P.C. v. Tidewater Capital Corp. , 457 S.E.2d 28, 32 (V.A. 1995); Pair v. Queen , 2 A.3d 1063 (D.C. 2010) (defense rec ognized but not applicabl e).33 no conflict of interest existe d between Mr. Solomon and ACI fro m December 29, 1999 to June 9, 2000; that no conflict of interes t existed between Mr. Solomon and ACI from June 9, 2000 to June 30, 2010; and that Mr. Solomon’s retirement from the Garve y firm on June 30, 2010 terminated his attorney-c lient relationship with ACI. See generally Mason Report, ECF No. 76- 26. However, Mr. Mason does not addr ess whether Mr. Solomon’s c onduct in submitting the partially incomplete Statement of Eligibility amounted to a bre ach of his duty of care to ACI. In D.C., the standard of care of a ttorneys is “that which a rea sonably prudent person would have exercised under the sa me or similar circumstances.” Waldman v. Levine , 544 A.2d 683, 688 (D.C. 1988) (citing Morrison v. MacNamara , 407 A.2d 555, 560 (D.C. 1979)). An attorney’s “conduct must comport with that degree of care reaso nably expected of other medical [or legal] professionals with s imilar skills ac ting under the s ame or similar circumstances.”
Morrison , 407 A.2d at 561. “While the general standard of conduct is aninvariable legal rule—it requires an attorney to exercise that degree of reasonable care and skill expected of members of the legal profession under the same or similar circumstances, . . . the specific standard of conduct required under a given set of factua l circumstances is a questi on to be answered by the trier of fact on a case-by-case basis withthe assistance of expert test imony, in most instances, adduced at trial.” Waldman , 544 A.2d at 689 (citations omitted). ACI has presented no argumentatio n that Mr. Solomon’s actions amounted to negligence as a matter of law, though perhaps it could have. See O’Neil , 452 A.2d at 342 n.6 (observing in dictum that “[e]xpert testimony has been held unnecessary in ca ses involving [] failures to act,” and that “[s]ome courts, moreove r, have stated that, in cases o f obvious negligence, the court may rule, without benefit of expe rt testimony, that the attorne y committed a breach of the duty of care as a matter of law). Instea d, it presents an expert report , the reliability of which Mr.34 Solomon challenges due to its spa rseness and Mr. Conk’s lack of licensure in D.C. or Virginia. While Mr. Solomon was correct t o point out that Mr. Conk’s expe rt report should have contained more than three sentences regard ing the requisi te standard of c are Mr. Solomon owed to ACI when he submitted its Statement of Eligibility, and how he brea ched that standard of care, it is not the case that an expert witness is unqua lified as a matter of law to present his expert opinion in a legal malpractice case in a state in which he is not licen sed to practice law. See e.g. , Sloan , 770 F. Supp. 2d at 237 (holding that th e court could not say, a t the summary judgment stage, that an expert in a malpractice cas e was “so patently unqualified to opine on the subject of real estate settlement practice in Virgini a that his proffered testimony mu st be excluded in i ts entirety” simply because he was not barred in Virginia). As such, the Cou rt will not at this time exclude Mr. Conk’s report. However, becaus e questions regarding the rep ort’s reliability have been raised, the Court will not rule on the standard of care that Mr . Solomon owed ACI at this time either. Rather, it will be the trier of fact’s responsibility t o weigh the worth of Mr. Conk’s expert opinion in determining what duty of care Mr. Solomon owed ACI w hen he submitted its Statement of Eligibility, and w hether he breached it. With thes e questions remaining, the Court cannot at this time grant ACI summary judgment on the merits of its malpractice claim against Mr. Solomon. While putting off th is issue may simply be delayin g the inevitable, the lack of argumentation on this point leav es the Court with no alternativ e. 3. The Spectrum Act and Proximate Causation 5 Mr. Solomon has moved for summary judgment as to damages stemmi ng from the passage of the Spectrum Act of 2012 for lack of proximate causa tion, claiming that the Court

5 Mr. Solomon chose to use Virgi nia law in his proximate causati on analysis, and ACI has responded to his arguments us ing Virginia law as well. Howe ver, as explained above, Mr. Solomon’s adoption of Virginia law, on the assumption that the Court’s analysis regarding ACI’s35 should find as a matter of law that he did not proximately caus e any damage to ACI relating to the passage of the Spectrum Act because “[t]he Spectrum Act of 2012 was unprecedented and a complete surprise to the co mmunications industry and to ACI.” D ef.’s Brief at 26–27. He also claims that the damages ACI a lleges in its first and second ame nded complaints “rest[] on sheer conjecture and speculation,” becau se first, ACI’s LPTV station has not yet been displaced, and second, because comparable stations have not yet been auctioned on the market, and therefore, ACI’s value on the reverse auction m arket, had it been eligible , is speculative. Id. at 28–29. ACI responds that “Mr. Solomon’s argument is irrelevant and premature at this stage of the case” because “[t]he full economic consequences for ACI’s displacemen t are not yet determined.” Pl.’s Opp’n at 18. ACI is correct.
In Dalo v. Kivitz , the D.C. Court of Appeals provid ed the proximate causation st andard for legal malpractice claims: As with any tort action, legal mal practice liability is predicated on a finding that the injury was pr oximately caused by the breach of duty. Proximate cause exists whe n there is a “substantial and d irect causal link” between the attorn ey’s breach and the injury susta ined by the client. A defendant “will be held responsible for the damages which result despite the entry of another act in the ch ain of causation” if that subsequentact reasonably could have “bee n anticipated and protected agains t.” By contrast, an intervening act not reasonably foreseeable (sometimes referred to as a “superseding cause”) breaks the chain of causation and relieves the wrongdoer of liability. 596 A.2d 35, 41–42 (D.C. 1991) (internal citations omitted). ACI and Mr. Solomon dispute the fo reseeability of the harm ACI now alleges it suffered, harm in part precipitated by the pa ssage of the Spectrum Act. M r. Solomon claims that “[t]he

assignment of its malpractice claim to Beach TV, was erroneous, since under D.C. choice of law rules, D.C. law applies to A CI’s malpractice claim. See Section IV.B.1, supra . As such, the Court will apply D.C. law to Mr . Solomon’s proximate causation arguments.36 Spectrum Act of 2012 was unprecedented and a complete surprise to the communications industry and to ACI.” Def.’s Br ief at 27. He points to the factthat during Mr. Colley’s Rule 30(b)(6) deposition on ACI’s behalf, Mr. Colley admitted that h e was surprised to learn of the Spectrum Act and the “potential for huge dollars to be paid for TV licenses.” Id. at 30 (citing Colley Dep. 186:10–15, ECF No. 76-3) . ACI responds that the typ e of harm it allegedly suffered as a result of not obtaining a C lass A license (possible displa cement due to the FCC’s adoption of new technology and loss in the l icense’s value) in preciselythe kind of harm he anticipated when he directed Mr. Solomon to sub mit the Statement of Eligibi lity for the Class A license. See Pl.’s Opp’n at 19; 2d Colle y Decl. ¶¶ 11–23, ECF No. 79-3. “[P]roximate causation is ordinarily a question of fact for the jury . . . [and] it is only the exceptional case in which questi ons of proximate cause pass fro m the realm of fact to one of law.” In re Fort Totten Metrorail Cases Ar ising Out of Events of June 22, 2009 , 895 F. Supp. 2d 48, 70 (D.D.C. 2012). Triers of fact determine not only whether a defendant’s negligence proximately caused damage to the plaintiff, but also the extentof the plaintiff’s damage that the defendant proximately caused. See e.g. , Jefferson v. Ourisman Chevrolet Co., Inc ., 615 A.2d 582, 584–585 (D.C. 1992) (upholding verdict resulting from the following jury instruction: “If you find that the defendant was ne gligent, but that his neglige nce was not the proximate cause of the damages to the extent clai med by the plaintiff, then the pl aintiff may recover only the portion of the damages which resulted pr oximately from the defendant’s negligence.”). In general, courts should not grant summary judgment on damages when a plaintiff h as not presented evidence of the full extent of his or her da mages, so long as the fact that some damage has occurred has been established. See e.g. , Cormier v. District of Columbia Water & Sewer Auth. , 959 A.2d 658, 668 (D.C. 2008) (“However, a plain tiff who . . . has made a suffici ent showing with respect to the37 critical issue, i.e., the fact of damages, to foreclose the entry of summary judgment . . . will still have the opportunity, at trial , to present evidence as to the a mount of damages.” (citing Rafferty v. NYNEX Corp. , 744 F. Supp. 324, 331 n.26 (D.D.C. 1990))). The Court cannot find as a matter of law that the damage ACI al leges it suffered (failure to procure a Class A license, l eading to a risk of displacement and a decrease in the LPTV license’s value) were not foreseeable when Mr. Solomon submitte d the incomplete Statement of Eligibility. Additionally, while the Court has a general idea o f the damages ACI will seek should liability be established, see 2d Am. Compl. ¶¶ 70–72, the Court has very little indication at this point of the monetary effects of M r. Solomon’s alleged negligen ce for one very simple reason: damages discovery has not occurred yet. See Pl.’s Opp’n at 3 n.6; see also Scheduling Order, ECF No. 58 (setting schedule fo r discovery on liability, but no t damages). As such, ACI has not been given an opportunity to procur e and present expert evidenc e regarding the extent of damages it has suffered, as well as the ascertainability of tho se damages, in order to rebut Mr. Solomon’s assertion that any dama ge it suffered as a result of the passage of the Spectrum Act was unforeseen in 1999 and also incalculable. But as is require d under Comier , ACI has established that it has suffered some damage: the loss of the opportunity to receive a Class A license. Therefore, the Court wi ll allow the question of the ex tent of the damage Mr. Solomon’s alleged negligence proximately caused to proceed to the trier o f fact, and denies his motion for summary judgment.38 V. CONCLUSION For the foregoing reasons, Plain tiff’s Motion for Partial Summa ry Judgment (ECF No. 71) is DENIED , and Defendant’s Motion for Sum mary Judgment (ECF No. 74) is DENIED

. An order consistent with this Me morandum Opinion is separately and contemporaneously issued.

Dated: March 29, 2018 RUDOLPH CONTRERAS United States District Judge