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 

DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION 

With the inclusion of a few check marks on a form submitted in 1999, this litigation 

might have been avoided. In December of 1999, Defendant Henry Solomon, an attorney for 

Plaintiff Atlanta Channel, Inc. (“ACI”), submitted a form on ACI’s behalf to the Federal 

Communications Commission (“FCC”) without realizing that several key questions on the form 

remained unanswered. Because the form was incomplete, the FCC dismissed it, thereby blocking 

ACI’s ability to obtain a special license that would have given it preference on the airwaves. Mr. 

Solomon filed a motion with the FCC asking it to reverse its dismissal of the form, but for twelve 

years the FCC sat on that motion. In the intervening years, Mr. Solomon retired from the practice 

of law. After several failed appeals of the FCC’s dismissal, ACI filed suit in this Court alleging 

that Mr. Solomon was negligent when he filed the incomplete form, and now moves for 

summary judgment as to Mr. Solomon’s liability. In his cross-motion for summary judgment, 

Mr. Solomon argues that ACI cannot recover because its malpractice claim is barred by the 

statute of limitations, because ACI was contributorily negligent by failing to complete the form 
2 

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 reasons set forth below, the Court finds 

that neither party has met its burden for a finding of summary judgment in its favor, and 

therefore denies both motions. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

ACI is a broadcast television business that owns and operates a low power television 

(“LPTV”) station with the call sign WTHC-LD in Atlanta, Georgia. Pl.’s Statement of Material 

Facts Not in Dispute (“Pl.’s SMF”) ¶ 18, Pl.’s Mot. Partial Summ. J. (“Pl.’s Mot.”), ECF No. 71-

1; Def.’s Statement of Material Facts Not in Genuine Dispute (“Def.’s SMF”) ¶ 1, Def.’s Mot. 

Summ. J. (“Def.’s Mot.”), ECF No. 76-1. Through this license granted by the FCC, ACI 

broadcasts “visitor information 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 1993 to 2009 and from 2016 to 

present, ACI has held the FCC license for this channel; from 2009 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 Community Broadcasters Protection Act (“CBPA”), 47 

U.S.C. § 336(f), which directed the FCC to award qualified LPTV licensees Class A licenses 

granting them the same protection and status as full power broadcast 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 station met the qualification criteria for a Class A license, as 

provided by 47 U.S.C. § 336(f)(2)(A). Pl.’s SMF ¶¶ 25–26. Therefore, in December 1999, Mr. 

Colley worked with his attorney Henry Solomon, who at the time was employed by the Virginia 
3 

law firm Haley Bader & Potts, to obtain a Class A license for WTHC-LD, along with several 

LPTV stations owned by Beach TV. Id. ¶¶ 7–8, 29–44. 

In order to obtain a Class A license for an LPTV station, applicants must have completed 

and filed Statements of Eligibility with the FCC by January 28, 2000. See 47 U.S.C. 

§336(f)(1)(B). The CBPA provided that “[a]bsent a material deficiency, the [FCC would] grant 

certification of eligibility to apply for class A status.” Id. Therefore, in December 1999, Mr. 

Colley “partially filled out and signed Statements of Eligibility 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 each form. Id. ¶ 32; Solomon Dep. 

20:12–21:7, 21:16–21:20, Pl.’s Mot., ECF No. 72-4. Mr. Colley claims that he sent the forms to 

Mr. Solomon partially filled out because he “did not know how to provide the appropriate 

answers to the Qualification Questions on any of the Beach TV Statements.” 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 appropriate answers” to the questions 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 December 28, 1999. Pl.’s SMF 

¶¶ 33–34. Around that time, Mr. Colley sent Mr. Solomon a similarly 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. Solomon 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 incorrect call sign for the LPTV station. Solomon Dep. 24:18–

25:17, ECF No. 72-4. On March 6, 2000, Mr. Solomon switched employers 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 Beach TV’s 

Statements of Eligibility, and soon after granted Beach TV’s stations Class A licenses. Pl.’s SMF 

¶ 42. However, on June 9, 2000, the MMB dismissed ACI’s Statement because it was 

incomplete. Id. ¶ 43. Mr. Solomon informed Mr. Colley of the dismissal soon thereafter. See 

Colley Dep. 93:14–97:14, Def.’s Mot., ECF No. 76-3. Mr. Colley told Mr. Solomon that they 

would “need to do everything possible to get [the] Class A status” for the ACI station. Pl.’s SMF 

¶ 45. Therefore, on June 22, 2000, Mr. Solomon filed a Petition for Reconsideration of the 

Dismissal with the Bureau, which included a correctly filled out, amended Statement of 

Eligibility. Id. ¶ 47. However, on November 20, 2000, the MMB denied the Petition for 

Reconsideration because ACI’s original Statement of Eligibility had been “patently defective.” 

Id. ¶ 49. 

A few weeks later, on December 13, 2000, Mr. Solomon emailed Mr. Colley about 

seeking further review of the dismissal with the FCC, and explained that in the meantime, “it 

d[id] not appear that the station [wa]s likely to suffer any harm as a result of” the dismissal. Id.

¶¶ 50–51. Mr. Colley agreed that for the time being, the station 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 Application for Review by the full FCC 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 following the submission of the Application, Mr. Solomon 

communicated with ACI regarding its status, and in 2004 drafted a letter in support of the 

Application from U.S. Representative John Lewis of Georgia to be submitted to the FCC. Id. ¶¶ 
5 

58–60. The last time Mr. Solomon communicated 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 remain murky. Mr. Colley summarizes 

Mr. Solomon’s 2009 communications with him regarding this “transition” 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 become the “front person” for ACI 

and Beach TV’s dealings with the FCC; that Mr. Solomon would act “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 would 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 No. 72-4, but now claims that he never 

told Mr. Colley that he “would be the back person regarding legal representation of ACI or any 

of the other businesses owned 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. Colley 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 the email, Mr. Solomon told Mr. 

Colley, while referring to the photo: “Not me. Staying in DC forever. Transition will be smooth 

and I will be around to consult, etc.” Id. In response, Mr. Colley joked, “Don’t look close, they 

may have our names on them.” Id. The parties have provided no other documentation regarding 

how Mr. Solomon informed Mr. Colley of his impending retirement. Mr. Colley claims that the 
6 

email “was the only written communication by Mr. Solomon to Mr. Colley regarding his 

‘transition’ at the Garvey Firm.” Pl.’s SMF ¶ 69.

Between 2008 and 2011, Mr. Solomon took several steps to wind down his practice. On 

July 1, 2010, his employment at the Garvey firm was officially terminated. See Ex. 25, Solomon 

Dep. Mr. Solomon relinquished his Virginia bar license in 2009 and his D.C. license in 2011. 

Def.’s SMF ¶ 19. However, Mr. Solomon did not completely sever his relationship with the 

Garvey firm upon his termination and the relinquishment of his bar licenses. He continued to 

work from his office at the firm several days a week, and maintained a pro bono practice. Pl.’s 

SMF ¶¶ 70, 73. Additionally, at least in ACI’s case, he continued 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. Colley worried might 

affect ACI’s LPTV spectrum usage rights. As such, he contacted Ms. Virtue, whom he believed 

he had been told would be the “front person” for all of ACI’s dealings with the FCC, inquiring as 

to the status of ACI’s December 2000 Application for Review. Pl.’s SMF ¶¶ 85–87. Up until Mr. 

Colley’s email, Ms. Virtue had been unaware that ACI had an Application for Review pending 

before the FCC. Id. ¶¶ 88–89. The next morning Ms. Virtue emailed Mr. Solomon asking if he 

knew whether the FCC had ever issued a decision regarding the Application for Review (which 

she referred to as a petition for reconsideration), and after he 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 did not have a complete 

record of the Application, and the FCC had “no records in its Public File regarding the 

Application for Review.” Pl.’s SMF ¶¶ 90–91. Therefore, Ms. Virtue reconstructed the record for 
7 

the Application for Review using documents provided by Mr. Colley and forwarded the 

reconstructed record to the FCC. She informed Mr. Colley that she was “in communication with 

Mr. Solomon about the Application for Review.” Id. ¶ 94. 

While Ms. Virtue had “notified the FCC in writing [that] she would be the contact person 

for other matters handled by Mr. Solomon for Beach TV,” which at that point was the licensee 

for the relevant LPTV station, she did not notify the FCC in writing that she would be the contact 

person for the Application for Review, nor did she substitute as counsel of record. Id. ¶¶ 95–100. 

However, she immediately began strategizing, with the help of Mr. 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 brainstorm, 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 has 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 trying to get another congressional letter and I’ve recommended 

Jud come back up for FCC meetings with the Commissioners. A supplement might be a good 

idea.” Id. In response, Mr. Solomon explained, “I’m just trying to head off a quick decision 

before we exhaust all other options. Based on my experience with Honig, I think meetings with 

commissioner[]s as a first resort isn’t advisable. I’d set something up with Barbara and Joyce 

first—with Jud.” Id. Ms. Virtue believes that after that exchange she likely communicated 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, and 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. Pl.’s SMF ¶ 108–09. One of those lobbyists was Benjamin Perez, 

an engineer who is also a licensed attorney. Colley Dep. 147:8–15, ECF No. 76-3; see also Ex. 

10, Def.’s Mot., ECF No. 76-12. During that time, the FCC contacted Mr. Solomon requesting a 

copy of ACI’s Statement of Eligibility. Pl.’s SMF ¶ 112. Mr. Solomon 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” because it did not include answers to 

key questions. See Ex. G, Pl.’s SMF, ECF No. 71-9. The next day, Ms. Virtue sent a copy of the 

denial to Mr. Solomon for his review, and told him that she planned 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 Reconsideration. 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 also used the phrase “we” when describing 

strategy for the case. See Ex. H, Pl.’s SMF, ECF No. 71-10. 

On November 21, 2012, Ms. Virtue emailed Mr. Colley and Ms. Davis discussing her 

recommendations for the Petition for Reconsideration. See Ex. 43, Virtue Dep., Pl.’s Mot., ECF 

No. 72-7. In the email, she also responded to a previous email from Ms. Davis in which Ms. 

Davis expressed her belief that this whole situation had arisen because of a clerical error by the 

Haley firm. Id. Ms. Virtue explained that it would behoove Beach TV to consider engaging 

independent counsel to consider whether Beach TV and the Garvey firm had a conflict of interest 
9 

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 Garvey Schubert Barer file 

the Petition for Reconsideration, [it] could transfer this matter to independent counsel, or [it] 

could engage another firm with expertise in administrative litigation to serve as co-counsel with 

Garvey Schubert Barer and complement [Ms. Virtue’s] background in communications 

regulation.” Id. Beach TV and ACI retained the law firm Balch & Bingham to determine 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 Petition, Ms. Virtue sent a copy to Mr. Colley and Ms. 

Davis, and also left a copy on Mr. Solomon’s chair in his Garvey 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 that 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 treatment. See 

Melody Music, Inc. v. FCC (a couple of cases followed and relied 

on MM doctrine. Similarly-situated parties can’t be treated 

differently. Granted network stations though anti-trust 

violations/deception, but denied AM renewal where also deceptive 

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 was 

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 later, he sent another email, which read: “Also see fn. 13 White 

Mtn. Beg. Co, Inc. v. FCC 598 F.2d 274 (1998). Did not follow MM, 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 recalls Ms. Virtue informing him at the time that she was consulting 

with Mr. Solomon as she prepared the Petition for Review. Colley Dep. 177:21–178:8, ECF No. 

72-2. Ms. Virtue does not recall telling Mr. Colley that Mr. Solomon was involved, but she 

“assumes” that she did. Virtue 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 the Petition for Reconsideration because “[t]he 

Atlanta Channel’s initial Statement of Eligibility lacked any information supporting eligibility, 

and its corrected statement was untimely.” Ex. 53, Virtue Dep., ECF No. 72-7. In response to 

this denial, Ms. Virtue emailed Mr. Colley and Ms. Davis explaining 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 at that juncture to again consult with outside counsel regarding 

whether Beach TV and the Garvey firm had a conflict of interest that could affect the appeal. Id. 

Beach TV ultimately decided to file an appeal with the D.C. Circuit 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). One month later, on October 26, 2015, Beach TV and 

ACI filed this suit against Mr. Solomon, the Haley firm, and the 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 interest 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 granted the Garvey and Haley firms’ 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 dismissed claims 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 its complaint a second time, 

which the Court granted in part and denied in part. See Beach TV Props., Inc. v. Solomon, 254 F. 

Supp. 3d 118 (D.D.C. 2017). Following the Court’s order, the case now contains two surviving 

claims of legal malpractice: one against Mr. Solomon for preparing and filing the incomplete 

Statement of Eligibility, and one against Ms. Virtue for failing to advise ACI about, among other 

things, potential conflicts and claims 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. Their motions are now ripe for 

review. 

III. LEGAL STANDARD 

A court may grant a motion for summary 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 those capable of affecting the substantive outcome of the litigation, 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute regarding those facts is 

“genuine” if there is enough evidence on the record for a reasonable jury to find for the nonmovant, Scott v. Harris, 550 U.S. 372, 380 (2007). 

On summary judgment, the movant bears the initial burden of identifying portions of the 

record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 

56(c)(1); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-movant must 

point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Fed. 

R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 324. The purported dispute may not be based on mere 
12 

allegations—rather, the non-movant must present affirmative evidence 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 in 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 statute 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 moved for a ruling in their favor regarding Mr. 

Solomon’s liability for the submission of the incomplete Statement of Eligibility. See Pl.’s Mot.; 

Def.’s Mot. ACI argues that the Court should grant it summary judgment because it has 

demonstrated that Mr. Solomon committed malpractice when he submitted the incomplete form 

and because it filed suit within the statute of limitations period. 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 alternative, Mr. Solomon argues that ACI was contributorily 

negligent when it forwarded the incomplete Statement of Eligibility to him for his review, and 

that ACI cannot show, as a matter of law, that it was Mr. Solomon’s actions that led to the full 

extent of the loss ACI alleges it suffered in its Second Amended Complaint. For the reasons set 

forth below, the Court finds that questions of fact remain as to whether Mr. Solomon committed 

legal malpractice when he submitted the incomplete form, whether ACI’s claim against Mr. 

Solomon is time-barred, and whether Mr. Solomon’s actions proximately caused the full extent 

of ACI’s injuries, and therefore denies both parties’ motions for summary judgment. 
13 

A. Statute of Limitations1

The parties dispute whether ACI’s claim of legal malpractice against Mr. Solomon is 

time-barred. Legal malpractice claims in the District of Columbia “may not be brought” more 

than three years “from the time the right to maintain the action accrues.” D.C. Code § 12-301(8). 

Despite bringing this suit almost sixteen years after Mr. Solomon’s error, ACI promotes several 

arguments as to why its suit is not time-barred. First, ACI argues that its claim did not accrue at 

the time of Mr. Solomon’s error, or upon its discovery of that error, because ACI did not suffer 

an actual injury as a result of Mr. Solomon’s alleged malpractice until November 10, 2014, when 

it began to pay its new lawyers for its appeal of the FCC’s decision to the D.C. Circuit. See Pl.’s 

Mem. Law Supp. Mot. Summ. J. (“Pl.’s Mem.”) at 13–14, ECF No. 73. Second, it claims that 

even if it did suffer an injury earlier, its suit is not time-barred because its claim was tolled 

during the lengthy time period during which Mr. Solomon continued to represent the company in 

its attempt to obtain a Class A license for its LPTV station and because it brought suit within 

three years of the end of the tolling period. See id. at 16–17. Third, ACI argues that even if Mr. 

Solomon did not in fact represent it after October 26, 2012 (three years before this suit was 

filed), his actions surrounding his retirement were so unclear that he lulled ACI into inaction. See 

 1

 “A federal court sitting in diversity 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 that they treat statutes of limitations as procedural, and therefore 

almost always mandate application 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 apply D.C. law in its 

analysis of the statute of limitations. However, “[u]nder proper conflict of laws principles, the 

Court is to conduct the choice of law analysis for each distinct 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 choice of law decision does not apply to any other issues in this case. 
14 

id. at 19. Fourth, ACI accuses Mr. Solomon of fraudulently concealing 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 the lulling 

doctrine is inapplicable, and his actions did not amount to fraudulent concealment. See id. at 18, 

21. For the reasons set forth below, the Court concludes that ACI’s injury as a result of Mr. 

Solomon’s alleged negligence occurred when its Statement of Eligibility was dismissed in June 

2000, that Mr. Solomon did not lull ACI into inaction, and that Mr. Solomon did not fraudulently 

conceal from ACI its cause of action against him. However, the Court also finds that questions of 

fact remain as to whether ACI’s claim against Mr. Solomon was tolled past October 26, 2012 

due to the continuing representation doctrine. As such, the Court cannot find at this time that the 

statute of limitations has run on ACI’s malpractice claim against Mr. Solomon. 

1. Date of Injury 

When determining whether the statute 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 this rule, a claim for legal malpractice 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” of 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 even though its application for a 

Class A license was denied on June 9, 2000, it has not yet suffered displacement from Channel 

42. It explains that “ACI therefore 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 spectrum in Atlanta because ACI held a low power television 

license. Mr. Solomon’s mistake 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 for its appeal to the D.C. Circuit. ACI 

makes no attempt to reconcile this argument with its allegation in its Second Amended 

Complaint that it is owed over $25,000,000 in damages due to the diminished value of its LPTV 

station. See 2d Am. Compl. ¶¶ 70–72. 

 “At the earliest, [a cause of] action accrues ‘when the plaintiff has sustained some injury, 

even if the injury occurs prior to the time at which the precise 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’ encompasses 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 necessary that all or even the greater 

part of the damages have to occur before the cause of action arises.” 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 dismissed ACI’s Statement of 

Eligibility, thereby precluding it from applying for a Class A license. ACI explains, “[t]he sole 
16 

reason for filing the ACI Statement in 1999 was to get Class A status for the WTHC-LD License 

and thus protect it from the possibility of displacement due to the FCC’s promotion of new 

technology.” Pl.’s Opp’n at 19, ECF No. 79. Therefore, the dismissal of the Statement of 

Eligibility, which precluded ACI from obtaining a Class A license for its LPTV station, was the 

first actual harm ACI suffered as a result of Mr. Solomon’s alleged negligence. At that point, its 

station lost its chance to obtain the same protection from displacement as a full power television 

station has, and also possibly its opportunity to increase in value as a result of obtaining that 

license. See 2d Colley Decl. ¶ 23, ECF No. 79-3. Even though the full extent of the damages 

caused by the dismissal of the Statement of Eligibility may not have been apparent in 2000, the 

dismissal of the Statement was a real, concrete injury, and would have provided a basis for a 

malpractice suit in 2000 if ACI had chosen to sue Mr. Solomon then. See Pl.’s Opp’n at 22 

(“ACI’s damages are measured by the difference between ACI having a Class A license and not 

having a Class A license.”) 

Because ACI suffered an actual injury as the result of Mr. Solomon’s alleged malpractice 

in 2000 but did not bring this suit until 2015well beyond the three years 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. ACI claims that there are three: 

the continuous representation doctrine, lulling, and fraudulent concealment. The Court addresses 

each in turn. 

1. Continuous Representation 

 ACI has invoked the continuous representation doctrine to argue that the statute of 

limitations has not run on its malpractice claim against Mr. Solomon. ACI claims that, because 

Mr. Solomon continued to represent the company in its attempt to secure a Class A license 
17 

through at least October 26, 2012, the continuous representation doctrine tolled the statute of 

limitations during that time period, thereby making the suit that it brought only three years later 

timely. Pl.’s Mem. at 16. Mr. Solomon counters that the continuous representation doctrine does 

not make ACI’s claim timely, because his representation of ACI ended upon his retirement in 

2010 and ACI did not bring suit within three years of that date. The parties dispute whether Mr. 

Solomon ever clearly told ACI that he was retiring from the practice of law in 2010. The Court 

finds that because a material question of fact remains as to whether Mr. Colley and Ms. Davis 

reasonably believed that Mr. Solomon was still representing them in their pursuit of a Class A 

license, it is precluded from granting summary judgment on this issue to either party. 

The continuous representation doctrine “tolls the statute of limitations for a legal 

malpractice claim during the time the attorney continues to represent 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 bringing 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)). Under the doctrine, “when the injury to the 

client may have occurred during the period the attorney was retained, the malpractice cause of 

action does not accrue until the attorney’s representation concerning 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 either. At the least, the rule applies when the same attorneys 

continue to represent a client in connection with the same matter.” Id. (citing De May v. Moore 

& Bruce, LLP, 584 F. Supp. 2d 170, 183 (D.D.C. 2008)). This doctrine applies even when the 
18 

client is aware that a malpractice claim may exist. Bleck v. Power, 955 A.2d 712, 715 (D.C. 

2008). When the attorney-client relationship ends, and therefore when the statute of limitation 

begins to run, is a question of fact, Winston, 700 A.2d at 768, and there are “no bright-line 

rule[s]” for that determination. Mallen, Legal Malpractice § 23:47. “On summary judgment, if 

the defendant has raised a statute of limitations defense, the plaintiff must show that a genuine 

issue of fact exists as to whether the discovery rule or equitable tolling applies.” Abate v. District 

of Columbia, 659 F. Supp. 2d 156, 160 (D.D.C. 2009). 

District of Columbia courts provide scant guidance of how a Court should determine 

when an attorney-client relationship ended when the client believes that an attorney continued to 

represent him after the attorney believes that the representation has ended. D.C. courts have, 

however, determined that formal withdrawal of an appearance before a tribunal is not required to 

end the representation; rather, the representation ends when the parties agree that 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, 2012) 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 explained that when the attorney and client do not have an 

understanding regarding the nature of their relationship, “a client’s perception of an attorney as 

his counsel is a consideration [for the court] in determining whether 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 uncertain or ambiguous, the 

job of the federal courts is carefully to predict how the highest court of the forum state would 

resolve the uncertainty or ambiguity.’” Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249, 255 
19 

(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 District of Columbia is likely to adopt in the future.”) (citing 19 C. 

Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4507, 103 (1982)). The two 

jurisdictions to have produced the most continuous representation jurisprudence are New York 

(at the state supreme court level) and California (at the intermediate appellate level). Both states 

trend in the direction of examining the client’s perception of the attorney-client relationship, and 

allowing the trier of fact to determine if that perception was reasonable. 

The New York Court of Appeals has held that the statute of limitations stops tolling when 

the client discovers or should have discovered that the attorney 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 calls, three years after they had retained 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 tolling, a demonstration of ongoing communication between the attorney 

and the client, i.e. “clear indicia of an ongoing, continuous, developing and dependent 

relationship between the client and 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 have since 

transitioned to the Shumsky rule, such as in Cordero v. Koval Retjig & Dean PLLC, when a New 

York court found that when an attorney who had worked on a matter left the firm that was 

representing the plaintiff, and provided “no evidence that plaintiff was ever informed of, or had 

objective notice of, [his] departure,” a triable issue of fact remained as to whether the statute of 
20 

limitations was tolled under the continuous representation doctrine. 57 N.Y.S.3d 145 (N.Y. App. 

Div. 2017). 

California courts originally varied in their approach as well. See Gonzalez v. Kalu, 43 

Cal. Rptr. 3d 866, 871 (Cal. Ct. App. 2006) (rejecting, as other California courts had, the New 

York rule, but observing that “[s]ome California courts have endorsed 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 her in a sexual harassment action, but then did not discover for 

three years that he had never actually filed the lawsuit, the court held that, “in the event of an 

attorney’s unilateral withdrawal or abandonment of the client, the representation ends when the 

client actually has or reasonably should have no expectation that the attorney will provide further 

legal services. That may occur upon the attorney’s express notification to the client that the 

attorney will perform no further 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 legal services, [] the client is no 

longer hindered by a potential disruption of the attorney-client relationship and no longer relies 

on the attorney’s continuing representation, so the tolling should end.” Id. The court explained 

that “[w]hether the client actually and reasonably believed that the attorney would provide 

further legal services regarding a specific subject matter is predominantly a question of fact for 

the trier of fact, but can be decided as a question of law if the undisputed facts can support only 

one conclusion.” Id. at 873. A Washington State appellate court has also adopted the 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 in continuity of the relationship does not protect an injured client 
21 

where the attorney abandons representation. The Gonzalez rule, which accounts for the client’s 

reasonable expectations, is an appropriate standard to apply because it furthers the stated 

objective of preventing an attorney from being able to wait out an alleged malpractice claim.”) 

 Given this trend among state appellate courts, and the D.C. Court of Appeals’s prior 

holding that “a client’s perception of an attorney as his counsel is a consideration [for the court] 

in determining whether a[n attorney-client] relationship exists,” Matter of Lieber, 442 A.2d 153, 

156 (D.C. 1982), it is likely that the D.C. Court of Appeals would also adopt this reasonable 

perception rule. As such, the Court will analyze the facts relevant to this case under this rule. 

Based on the parties’ declarations and depositions, there was clearly no meeting of the 

minds as to when Mr. Solomon’s representation of ACI ended. Therefore, the Court must 

determine whether ACI’s assumption that Mr. Solomon continued to represent it past October 

26, 2012 was reasonable. Mr. Solomon highlights the following events as demonstrating that Mr. 

Colley and Ms. Davis understood, or at the very least should have understood, that Mr. Solomon 

was retiring from the practice of law, and therefore could no longer represent them. First, in late 

2009, Mr. Solomon informed Mr. Colley that there would be a “transition” due to Mr. Solomon’s 

age which would include Mr. Solomon 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 demonstrated that he understood Mr. Solomon to be retiring from the 

practice of law when he responded to Mr. Solomon’s “Biker Bar” email by joking that the 

motorized scooters may have had Mr. Solomon and Mr. Colley’s names on them. See Def.’s 

Opp’n at 15–16. And third, following Mr. Solomon’s retirement in July 2010, Ms. Virtue began 

acting as ACI’s replacement counsel by traveling to Florida to meet with Mr. Colley and Ms. 

Davis, and began serving as ACI’s email point of contact, as demonstrated when Mr. Colley 
22 

inquired in March 2012 as to the status of the Application for Review. Id. at 14. Indeed, 

following the biker bar email, Mr. Colley never emailed or spoke with Mr. Solomon again, 

Solomon Decl. ¶¶ 3–4, ECF No. 76-29, though perhaps that was because he did not believe he 

had any means of reaching him. See Ex. 8, Colley Dep., ECF No. 72-3 (email from Mr. Colley to 

Ms. Virtue on August 13, 2010 asking for Mr. Solomon’s “email address and other contact 

info”). 

ACI argues that although Mr. Colley had been informed of the transition at some point in 

2009, he was under the impression that Mr. Solomon had not terminated his representation of 

ACI and Beach TV, but rather was taking a step back from the work because of his age. See Pl.’s 

Mem. at 19. It explains that Mr. Colley and Ms. Davis were within reason in believing that Mr. 

Solomon was not disassociating himself from ACI’s case entirely because Mr. Solomon had, 

when describing the transition, referred to Ms. Virtue as the future “front person” for ACI’s 

dealings with the FCCand to himself as a consultant acting “in the background”2

; had stated that 

he would be remaining in Washington, D.C.; and had mentioned that he would maintain an 

 2

 Counsel for ACI asked Mr. Solomon twice if he recalled speaking with Mr. Colley or 

Ms. Davis about his retirement and both times Mr. Solomon answered 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 that he “never told Colley in 2009 or any time thereafter, that 

after [he] retired Melodie Virtue would be the front person and that [he] would be the back 

person regarding legal representation of ACI or any of the other businesses owned by Colley[, 

n]or did [he] ever suggest that after [he] retired [he] would maintain an attorney-client 

relationship with ACI or any of the Colley interests.” 2d Solomon Decl. ¶ 8. Technically, these 

statements do not contradict each other, and are therefore, not subject to the sham affidavit rule, 

as ACI argues. Mr. Solomon did not say that he does not recall whether he had any conversations 

with Mr. Colley about his retirement; he said that he did not recall 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 that Mr. Solomon does not recall ever telling Mr. Colley that he 

would. Therefore, there remains a question of fact as to whether Mr. Solomon and Mr. Colley 

ever discussed Mr. Solomon’s retirement, and if such a conversation occurred, what was said 

during it. However, there is no dispute 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 bono work.3 Colley Dep. at 17:4–

14; 45:14–46:17; 54:17–55:21, ECF No. 72-2. ACI also argues that Mr. Solomon never informed 

Mr. Colley that he was relinquishing his bar licenses, and indeed, there is no evidence in the 

record that Mr. Colley was aware that Mr. Solomon had relinquished both of his bar licenses by 

2011. Pl.’s Mem. at 5. Last, ACI points to the assistance Mr. Solomon gave Ms. Virtue, which 

included strategy pointers and case citations, as she attempted to encourage the FCC to rule on 

the long-pending Application for Review and as she drafted a Petition 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 consistent 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 questions of fact to preclude 

the Court from granting ACI or Mr. Solomon summary judgment on the statute of limitations 

question. First, there is a dispute among the parties as to what Mr. Solomon said to Mr. Colley 

when he retired. Second, there is a dispute as to whether Mr. Colley understood Mr. Solomon to 

be scaling back his practice, as opposed to retiring. Third, there is a dispute as to whether Mr. 

Colley truly believed that Mr. Solomon was his lawyer on the Class A license matter. And 

 3

 The parties dispute whether Mr. Solomon told Mr. Colley that he would be maintaining 

an office at the Garvey firm and would work on pro bono projects there. Mr. Solomon explains 

that he “did not tell Colley . . . at any time, that [he] was going 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 preparing 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 welcomed. As noted, the pro bono opportunity arose after 2009—[his] 

final communication with Colley–and after [he] had any contact with Colley or anyone else in 

his organization. Nor did [he] ever tell Colley about the Garvey firm’s offer to allow [him] to 

share office space after [he] retired.” 2d Solomon Decl. ¶ 9. 
24 

fourth, there is a dispute as to whether, if Mr. Colley did believe that Mr. Solomon continued to 

represent ACI, that belief was reasonable under the circumstances. As such, the Court cannot 

grant summary judgment on the continuous representation doctrine question, and must leave the 

determination of when Mr. Colley should have reasonably understood that Mr. Solomon was no 

longer his lawyer to the trier of fact. 

ACI has invoked two other common law doctrines to argue that the statute of limitations 

was tolled past October 26, 2012: lulling and fraudulent concealment. The Court will next 

determine whether it can determine on a motion for summary judgment 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, its claim is not time barred 

because Mr. Solomon lulled ACI into thinking that he still represented 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 take any affirmative steps to trick 

ACI into believing that he still represented it after his retirement. See Def.’s Opp’n at 18–26. Mr. 

Solomon is correct. 

Tolling “is frequently applied where the conduct of a fiduciary is alleged to have lulled 

the plaintiff into failure to protect his interests within the statutory limitations period.” Ray v. 

Queen, 747 A.2d 1137 (D.C. 2000). “District of Columbia courts recognize a restricted equitable 

tolling doctrine,” which “allows a plaintiff to initiate an action beyond the statute of limitations . 

. . [if the] defendant’s fraudulent concealment or misconduct lulled 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 something that amounted to an affirmative 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 limitations . . . [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 misrepresentations.” 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 complaint, because the “statute of limitations is an affirmative defense 

that defendant must prove: A plaintiff’s obligation to plead fraudulent 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 apply, the “party injured by another’s fraudulent conduct” 

must “remain[] in ignorance . . . without 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 fraudulent concealment does not come 

into play, whatever the lengths to which a defendant has gone to 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 Intelligence & Coordination 
26 

Unit, 507 U.S. 163 (1993). In Hobson, the D.C. Circuit listed two factors for courts to consider: 

first, “the plaintiff must know facts giving notice of the particular cause of action at issue, not 

just any cause of action”; and second, the “plaintiff’s knowledge 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 has pointed to no cases in which a court has found that 

fraudulent concealment applied when a defendant concealed not a cause of action or underlying 

injury, of which the plaintiff was well aware, but rather an ancillary fact such as when the statute 

of limitations began to run. Rather, courts in this district have 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 fraudulent concealment did not 

apply to a case in which the defendant law firm had told plaintiff that there was nothing more it 

could do for him in his workers’ compensation case because he was 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 FCC since June 2000. Therefore, the 

fact that it believes that Mr. Solomon misrepresented the nature of his retirement to it cannot toll 

the statute of limitations on fraudulent concealment grounds. 

Even assuming that fraudulent concealment could apply to ancillary matters such as when 

the statute of limitations on a claim 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 demonstrate that he fraudulently concealed that the statute of 

limitations on their claim had begun to run, or lulled them into 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 understood that he was retiring, rather 
27 

than simply taking a step back from his practice. See supra, Section IV.A.1. However, Mr. 

Solomon’s alleged lack of clarity does not amount to an “affirmative 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 purposefully unclear when he 

told ACI about his “transition” and the transfer of his work for ACI and Beach TV to Ms. Virtue, 

following his biker bar email to Mr. Colley in December 2009, Mr. Solomon took no further 

steps to lead Mr. Colley or Ms. Davis to believe that he was still ACI’s lawyer. The record 

reflects that Mr. Colley began to email Ms. Virtue, whom he believed to be the “front person” for 

all Beach TV and ACI business before the FCC, after Mr. Solomon retired, and never emailed 

Mr. Solomon again after December 11, 2009. Although Ms. Virtue began communicating with 

Mr. Solomon about how to encourage the FCC to finally review ACI’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. Colley that he was giving her advice. Similarly, when Mr. Solomon 

assisted Ms. Virtue as she drafted the Petition for Reconsideration, there is no evidence that Mr. 

Solomon asked Ms. Virtue to inform ACI that he was involved. Because the record is devoid of 

evidence that Mr. Solomon took affirmative steps after late 2009 to maintain the appearance that 

he was still representing ACI, his actions do not amount to lulling 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 material fact, apart from 

timing, as to Mr. Solomon’s liability to ACI for legal malpractice. ACI argues that it has 

presented sufficient undisputed evidence for the Court to determine that Mr. Solomon is liable to 

ACI for malpractice due to the submission of the incomplete Statement of Eligibility, and 
28 

therefore should be granted summary judgment on liability. Mr. Solomon has in turn moved for a 

finding that he is not liable for 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 judgment 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). Neither party 

briefed which state’s laws the Court should use when evaluating this legal malpractice claim. 

ACI uses D.C. law to demonstrate that the Court has enough evidence before it to rule on Mr. 

Solomon’s liability, but also explains that “District of Columbia law is the same as Virginia law 

on the elements of legal malpractice.” Pl.’s Mem. at 12 n.7 (citing Desetti v. Chester, 290 Va. 50, 

56, 772 S.E.2d 907, 909 (2015)). In his opposition to ACI’s motion for summary judgment, Mr. 

Solomon applies D.C. law in responding to all of ACI’s arguments, see Def.’s Opp’n at 10, but 

in his own motion for summary judgment, uses Virginia law in support of his proximate 

causation arguments, assuming that the Court’s October 14, 2016 analysis deciding that Virginia 

law applied to ACI’s attempt to assign its legal malpractice claim to Beach TV applies to 

determining which state’s laws should be used to decide the merits of ACI’s malpractice claim as 

well. See Def.’s Brief at 28 n.25. ACI has chosen to respond to these arguments with Virginia 

law. Neither party suggests that the laws of Florida or Georgia, where ACI is incorporated and 

has its principle place of business, respectively, applies to any portion of this case. Because the 

parties disagree as to whether District of Columbia or Virginia law applies to the substantive 
29 

legal issues governing ACI’s malpractice claim against Mr. Solomon, the Court must determine 

which law applies. 

“A federal court sitting in diversity 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 analysis which seeks to identify the 

jurisdiction with the most significant relationship to the dispute.’” 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 first “determine whether a true 

conflict exists between the laws of the two jurisdictions—that is, whether more than one 

jurisdiction has a potential interest in having 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” exists, on the other hand, “when either (1) the laws of the interested 

states are the same; (2) when those laws, though different, produce the same result when applied 

to the facts at issue; or (3) when the policies of one state would be advanced by the application of 

its law and the policies of the states whose laws are claimed to be in conflict would not be 

advanced by application 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 purportedly interested jurisdictions, and where one of those 

jurisdictions is the District of Columbia, D.C. courts will “apply 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 cmt. c (Am. Law Inst. 1971)). 
30 

As the parties have suggested through their disagreement, both states have a potential 

interest in this case. Virginia has a potential interest because the events leading to ACI’s injuries 

occurred at a law firm in Virginia. D.C. has an interest because this case involves an attorney 

barred in D.C. (as well as Virginia), domiciled in D.C., who was representing plaintiff-client 

before an agency located in D.C that issues decisions appealable to the D.C. Circuit. 

Because more than one state has an interest in its laws being applied to this case, next the 

Court must determine whether there is a true conflict or a false conflict between the states’ laws. 

Virginia and D.C. maintain very similar standards for proving a claim 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 defendant 

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 dispatch in rendering the services for 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 and 

cannot be the subject of expert testimony if the issue of a breach is 

a matter of law. 

Smith v. McLaughlin, 769 S.E.2d 7, 13 (Va. 2015) (internal quotation marks and citations 

omitted). In D.C., “to succeed on a legal malpractice claim, the plaintiff must show that (1) the 

defendant was employed as the plaintiff’s attorney, (2) the defendant 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 expert testimony establishing the 

standard of care unless the attorney’s lack of care and skill is so obvious that the trier of fact can 

find negligence as a matter of common knowledge,” Flax v. Schertler, 935 A.2d 1091, 1106 
31 

(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 the same rules for when expert testimony is or is not 

required. As explained in Smith, Virginia allows for the finding of liability on a breach of the 

standard of care as a matter of law in some circumstances, negating 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 establish the appropriate professional standard, to establish a 

deviation from that standard, and to establish that such a deviation 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 exceptions to the expert testimony 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 plaintiff whose attorney omitted from 

his will a residuary clause the plaintiff had requested, thereby causing his residual estate to pass 

intestate); O’Neil, 452 A.2d at 342 n.6 (observing in dictum that “[e]xpert testimony has been 

held unnecessary in cases involving other failures to act,” and that “[s]ome courts, moreover, 

have stated that, in cases of obvious negligence, the court may rule, 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 while the “existence of the INS regulation 

governing motions for reconsideration certainly was relevant to ‘the specific standard of 

conduct’ applicable in determining whether [the attorney] was negligent,” there remained a 
32 

question of fact as to whether the attorney would have needed to 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 allow 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 law governing legal malpractice 

claims in the District of Columbia 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 judgment on Mr. Solomon’s liability for 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 Mr. Solomon’s failure to complete ACI’s Statement of 

Eligibility before submitting it “was a breach of Solomon’s duty 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 strikes back by pointing out that Mr. Conk’s “report does not address 

the standard of care of an attorney in the District of Columbia or Virginia and Mr. Conk is not 

qualified to do so,” because “Mr. Conk is not licensed to practice in Virginia or in the District of 

Columbia and does not profess to know the standard of care of attorneys practicing in Virginia, 

the District of Columbia, or before the FCC.” Def.’s Response to Pl.’s SMF ¶ 41, ECF No. 78-1. 

In his rebuttal report, Mr. Solomon’s expert, Thomas B. Mason, Esq., offers three opinions: that 

 4

 The Court also observes that contributory negligence is available as an affirmative 

defense in both D.C. and Virginia, creating another “false conflict.” 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 recognized but not applicable). 
33 

no conflict of interest existed between Mr. Solomon and ACI from December 29, 1999 to June 9, 

2000; that no conflict of interest existed between Mr. Solomon and ACI from June 9, 2000 to 

June 30, 2010; and that Mr. Solomon’s retirement from the Garvey firm on June 30, 2010 

terminated his attorney-client relationship with ACI. See generally Mason Report, ECF No. 76-

26. However, Mr. Mason does not address whether Mr. Solomon’s conduct in submitting the 

partially incomplete Statement of Eligibility amounted to a breach of his duty of care to ACI. 

In D.C., the standard of care of attorneys is “that which a reasonably prudent person 

would have exercised under the same 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 reasonably expected of other medical 

[or legal] professionals with similar skills acting under the same or similar circumstances.” 

Morrison, 407 A.2d at 561. “While the general standard of conduct is an invariable 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 factual circumstances is a question to be answered by the trier of 

fact on a case-by-case basis with the assistance of expert testimony, in most instances, adduced 

at trial.” Waldman, 544 A.2d at 689 (citations omitted). 

ACI has presented no argumentation 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 cases involving [] failures to act,” 

and that “[s]ome courts, moreover, have stated that, in cases of obvious negligence, the court 

may rule, without benefit of expert testimony, that the attorney committed a breach of the duty of 

care as a matter of law). Instead, it presents an expert report, the reliability of which Mr. 
34 

Solomon challenges due to its sparseness and Mr. Conk’s lack of licensure in D.C. or Virginia. 

While Mr. Solomon was correct to point out that Mr. Conk’s expert report should have contained 

more than three sentences regarding the requisite standard of care Mr. Solomon owed to ACI 

when he submitted its Statement of Eligibility, and how he breached that standard of care, it is 

not the case that an expert witness is unqualified as a matter of law to present his expert opinion 

in a legal malpractice case in a state in which he is not licensed to practice law. See e.g., Sloan, 

770 F. Supp. 2d at 237 (holding that the court could not say, at the summary judgment stage, that 

an expert in a malpractice case was “so patently unqualified to opine on the subject of real estate 

settlement practice in Virginia that his proffered testimony must be excluded in its entirety” 

simply because he was not barred in Virginia). As such, the Court will not at this time exclude 

Mr. Conk’s report. However, because questions regarding the report’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 to weigh the worth of Mr. Conk’s expert 

opinion in determining what duty of care Mr. Solomon owed ACI when he submitted its 

Statement of Eligibility, and whether he breached it. With these 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 this issue may simply be delaying the inevitable, the lack of 

argumentation on this point leaves the Court with no alternative. 

3. The Spectrum Act and Proximate Causation5

Mr. Solomon has moved for summary judgment as to damages stemming from the 

passage of the Spectrum Act of 2012 for lack of proximate causation, claiming that the Court 

 5

 Mr. Solomon chose to use Virginia law in his proximate causation analysis, and ACI 

has responded to his arguments using Virginia law as well. However, as explained above, Mr. 

Solomon’s adoption of Virginia law, on the assumption that the Court’s analysis regarding ACI’s 
35 

should find as a matter of law that he did not proximately cause 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 communications industry and to ACI.” Def.’s Brief at 26–27. He also 

claims that the damages ACI alleges in its first and second amended complaints “rest[] on sheer 

conjecture and speculation,” because 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 market, 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 displacement are not yet determined.” Pl.’s 

Opp’n at 18. ACI is correct. 

In Dalo v. Kivitz, the D.C. Court of Appeals provided the proximate causation standard 

for legal malpractice claims: 

As with any tort action, legal malpractice liability is predicated on 

a finding that the injury was proximately caused by the breach of 

duty. Proximate cause exists when there is a “substantial and direct 

causal link” between the attorney’s breach and the injury sustained 

by the client. A defendant “will be held responsible for the 

damages which result despite the entry of another act in the chain 

of causation” if that subsequent act reasonably could have “been 

anticipated and protected against.” 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 foreseeability of the harm ACI now alleges it suffered, 

harm in part precipitated by the passage of the Spectrum Act. Mr. 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 ACI’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 Brief at 27. He points to the fact that during Mr. Colley’s Rule 

30(b)(6) deposition on ACI’s behalf, Mr. Colley admitted that he 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 type of harm it allegedly suffered 

as a result of not obtaining a Class A license (possible displacement due to the FCC’s adoption 

of new technology and loss in the license’s value) in precisely the kind of harm he anticipated 

when he directed Mr. Solomon to submit the Statement of Eligibility for the Class A license. See 

Pl.’s Opp’n at 19; 2d Colley 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 questions of proximate cause pass from the realm of fact to one of 

law.” In re Fort Totten Metrorail Cases Arising 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 extent of 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 negligent, but that his negligence was not the proximate cause of 

the damages to the extent claimed by the plaintiff, then the plaintiff may recover only the portion 

of the damages which resulted proximately from the defendant’s negligence.”). In general, courts 

should not grant summary judgment on damages when a plaintiff has not presented evidence of 

the full extent of his or her damages, 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 plaintiff who . . . has made a sufficient showing with respect to the 
37 

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 amount 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 alleges it suffered (failure 

to procure a Class A license, leading to a risk of displacement and a decrease in the LPTV 

license’s value) were not foreseeable when Mr. Solomon submitted the incomplete Statement of 

Eligibility. Additionally, while the Court has a general idea of 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 Mr. Solomon’s alleged negligence 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 for discovery on liability, but not damages). As such, ACI has not 

been given an opportunity to procure and present expert evidence regarding the extent of 

damages it has suffered, as well as the ascertainability of those damages, in order to rebut Mr. 

Solomon’s assertion that any damage it suffered as a result of the passage of the Spectrum Act 

was unforeseen in 1999 and also incalculable. But as is required 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 will allow the question of the extent of the damage Mr. Solomon’s 

alleged negligence proximately caused to proceed to the trier of fact, and denies his motion for 

summary judgment. 
38 

V. CONCLUSION 

For the foregoing reasons, Plaintiff’s Motion for Partial Summary Judgment (ECF No. 

71) is DENIED, and Defendant’s Motion for Summary Judgment (ECF No. 74) is DENIED. 

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

Dated: March 29, 2018 RUDOLPH CONTRERAS 

 United States District Judge