14-2949 Boies, Schiller & Flexner LLP v. Host Hotels & Resorts, Inc.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN**
**ELECTRONIC DATABASE (**  **WITH THE NOTATION “**  **SUMMARY ORDER ”).**  **A PARTY CITING A SUMMARY ORDER MUST** 
**SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 11 th** **day of March, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **RAYMOND J. LOHIER, JR.,** 7 **Circuit Judges ,**  8 **PAMELA K. CHEN,** 9 **District Judge**

**.** ***** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **BOIES, SCHILLER & FLEXNER LLP,** 13 **Appellant ,**  14 15 **-v.- 14-2949** 16 17 **HOST HOTELS & RESORTS, INC.,** 18 **Appellee**

**.** ****** 19 - - - - - - - - - - - - - - - - - - - -X 20 21

* The Honorable Pamela K. Chen, United States District Judge for the Eastern District of New York, sitting by designation.

** The Clerk of Court is respectfully directed to amend the official caption as set forth above.**FOR APPELLANT:** DAVID A. BARRETT (withDonald L. 1 Flexner, Boies, Schiller & 2 Flexner LLP, Michael S. Ross, 3 Law Offices of Michael S. Ross, 4 on the brief ), Boies, Schiller & 5 Flexner LLP, New York, New York. 6 7 **FOR APPELLEE:** KEVIN J. PERRA (withRichard M. 8 Goldstein, Jordan B. Leader, and 9 Boris Zeldin, on the brief ), 10 Proskauer Rose LLP, New York, 11 New York. 12 13 Appeal from a judgment of the United States District 14 Court for the Southern District of New York (McMahon, J. ). 15 16 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 17 **AND DECREED**that the judgment of the district court be 18
**AFFIRMED**

. 19 20 Boies, Schiller & Flexner LLP (“BSF”) appeals from the 21 judgment of the United States District Court for the 22 Southern District of New York (McMahon, J. ), imposing 23 sanctions against it upon the motion of its former client, 24 Host Hotels & Resorts, Inc . (“Host”). We assume the 25 parties’ familiarity with the underlying facts, the 26 procedural history, and the issues presented for review. 27 28 Host moved for sanctions on the grounds that BSF’s 29 representation of Madison 92nd Street Associates, LLC 30 (“Madison”) presented a clear conflict of interest in light 31 of BSF’s earlier, substantially related representation of 32 Host, and that BSF unreasonably refused to withdraw from its 33 representation of Host until faced with a motion to 34 disqualify. The district court agreed, concluding that “[a] 35 clearer conflict of interest cannot be imagined” and that 36 Host was entitled to fees and costs incurred in preparing 37 the motion to disqualify BSF. 38 39 Based on Host’s assertion of attorney-client privilege, 40 the specifics of the advice implicated by this appeal were 41 placed under seal in the district court and remain so here. 42 If it is arguable that Host waived its privilege by bringing 43 its motion for sanctions, BSF has not pressed that argument. 44 Upon review for abuse of discretion, Star Mark Mgmt., Inc. 45 v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd. , 682 F.3d 46 170, 175 (2d Cir. 2012) (per curiam)--and without endorsing 47

2all of the tonalities of the district court’s opinion--we 1 affirm for substantially the reasons stated therein. 2 3 The district court’s findings and review of the record 4 support its conclusion that BSF acted “without a colorable 5 basis” for maintaining it had no conflict of interest until 6 it was faced with the motion to disqualify. Enmon v. 7 Prospect Capital Corp. , 675 F.3d 138, 143 (2d Cir. 2011). 8 The court’s finding that BSF provided to its outside ethics 9 counsel an unreasonably narrow description of its work for 10 Host is itself sufficiently indicative of bad faith. And 11 the court made other factual findings, including that: BSF 12 accepted the Madison engagement without reviewing its 13 billing records or files pertaining to its prior 14 representation of Host; represented to Host and its outside 15 counsel that it had no conflict before completing its review 16 of its files; filed the Madison complaint before completing 17 its internal document review and production of documents to 18 Host; and, willfully refused to recognize the obvious 19 conflict. See Gollomp v. Spitzer , 568 F.3d 355, 368-74 (2d 20 Cir. 2009) (concluding district court’s findings and review 21 of the record supported its conclusion that plaintiff’s 22 conduct was “akin to bad faith”). 23 24 In sum, contrary to BSF’s argument, the court concluded 25 BSF’s conduct was “far, far worse” than mere negligence. 26 See DLC Mgmt. Corp. v. Town of Hyde Park , 163 F.3d 124, 136 27 (2d Cir. 1998) (“[T]hese findings [are] sufficiently concise 28 and based on clear evidence so as to amount to the bad faith 29 required to impose sanctions.”). 30 31 For the foregoing reasons, and finding no merit in 32 BSF’s other arguments, we hereby **AFFIRM** the judgment of the 33 district court. 34 35 FOR THE COURT: 36 CATHERINE O’HAGAN WOLFE, CLERK 37 38

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