FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`INDEX NO. 650777/2024
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`RECEIVED NYSCEF: 03/22/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`ELIZABETH METCALF,
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` Plaintiff,
` -against-
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`SAFIRSTEIN METCALF LLP, PETER SAFIRSTEIN and
`SHEILA FEERICK
`
` Defendants.
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`
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`Index No. 650777/2024
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`ANSWER TO
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`COMPLAINT
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` AND COUNTERCLAIM
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`
` Jury trial demanded
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`Defendant-Counterclaim Plaintiff PETER SAFIRSTEIN (hereafter, (cid:147)Safirstein(cid:148)), by and
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`through his attorneys, Clyde & Co US LLP, states, as and for his Answer to Plaintiffs(cid:146)
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`Complaint and Counterclaim, as follows:
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`ANSWER
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`Safirstein denies the allegations in paragraph 1.
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`Safirstein denies the allegations in paragraph 2, except he admits that Safirstein
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`1.
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`2.
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`Metcalf, LLP (hereafter, (cid:147)SM(cid:148)) (cid:147)does not have a written partnership agreement(cid:148) and that
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`Safirstein, with the agreement of Plaintiff-Counterclaim Defendant Elizabeth Metcalf (hereafter,
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`(cid:147)Metcalf(cid:148)), has (cid:147)sole access(cid:148) to SM(cid:146)s (cid:147)bank accounts(cid:148) and (cid:147)bank records(cid:148) in his agreed role as
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`SM(cid:146)s managing partner.
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`3.
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`Safirstein denies the allegations in paragraph 3, except he admits that, on
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`December 14, 2021, Metcalf sent Safirstein a notice of dissolution (cid:147)effective as of December 31,
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`Safirstein denies the allegations in paragraph 4.
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`Safirstein denies the allegations in paragraph 5.
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`2021.(cid:148)
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`4.
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`5.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`INDEX NO. 650777/2024
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`6.
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`7.
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`8.
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`9.
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`Safirstein denies the allegations in paragraph 6.
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`Safirstein denies the allegations in paragraph 7.
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`Safirstein denies the allegations in paragraph 8.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`the truth of the allegations in paragraph 9.
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`10.
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`Safirstein admits the allegations in paragraph 10.
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`11.
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`Safirstein admits the allegations in paragraph 11.
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`12.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`the truth of the allegations in paragraph 12.
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`13.
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`Safirstein admits the allegations in paragraph 13.
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`14.
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`Safirstein admits the allegation in paragraph 14 that (cid:147)[v]enue(cid:148) in this Court (cid:147)is
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`proper.(cid:148)
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`15.
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`Safirstein denies the allegations in the first sentence in paragraph 15, except he
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`lacks knowledge or information sufficient to form a belief as to the truth of the allegations in the
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`first sentence in paragraph 15 regarding (cid:147)two other attorneys(cid:148) or as to whether Metcalf began
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`working at Milberg LLP (cid:147)in or around 2010.(cid:148) Safirstein lacks knowledge or information
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`sufficient to form a belief as to the truth of any allegations in the second sentence in paragraph
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`15, except he admits that he and Metcalf joined Morgan & Morgan LLP, a Florida based law
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`firm, in or around March 2012. Safirstein denies the allegations in the third sentence in
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`paragraph 15. Safirstein denies the allegations in the fourth sentence in paragraph 15, except he
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`admits that he and another lawyer who formerly worked at Milberg LLP (cid:147)were co-leaders(cid:148) of a
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`class action practice group.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`INDEX NO. 650777/2024
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`16.
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`Safirstein denies the allegations in paragraph 16, except he admits that (cid:147)M&M
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`dissolved the practice group(cid:148) in or around December 2015.
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`17.
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`Safirstein admits the allegations in paragraph 17.
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`18.
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`Safirstein admits the allegations in paragraph 18.
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`19.
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`Safirstein admits the allegations in paragraph 19.
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`20.
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`Safirstein denies the allegations in paragraph 20.
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`21.
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`Safirstein admits the allegations in paragraph 21.
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`22.
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`Safirstein denies the allegations in paragraph 22, except he admits that some
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`decisions regarding SM were jointly made by him and Metcalf.
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`23.
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`Safirstein admits the allegations in paragraph 23.
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`24.
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`Safirstein admits the allegations in paragraph 24.
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`25.
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`Safirstein denies the allegations in paragraph 25, except he admits that Defendant
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`Sheila Feerick ((cid:147)Feerick(cid:148)) was an SM employee and not an attorney, and that her title at SM was
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`(cid:147)Director of Shareholder Communications.(cid:148)
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`26.
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`Safirstein denies the allegations in paragraph 26.
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`27.
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`Safirstein denies the allegations in paragraph 27, except he admits that on (cid:147)most
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`business days(cid:148) before March 2020 he, Metcalf and Feerick worked together in person in SM(cid:146)s
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`offices in New York County, including in the Empire State Building.
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`28.
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`Safirstein admits the allegations in paragraph 28.
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`29.
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`Safirstein denies the allegations in paragraph 29.
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`30.
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`Safirstein denies the allegations in paragraph 30.
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`31.
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`Safirstein denies the allegations in paragraph 31.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`32.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`the truth of any allegations in paragraph 32 regarding Metcalf(cid:146)s (cid:147)suspicion(cid:148) and he denies the
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`remainder of the allegations in paragraph 32.
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`33.
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`Safirstein denies the allegations in paragraph 33.
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`34.
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`Safirstein denies the allegations in paragraph 34.
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`35.
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`Safirstein admits the allegations in paragraph 35.
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`36.
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`Safirstein denies the allegations in paragraph 36.
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`37.
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`Safirstein denies the allegations in paragraph 37.
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`38.
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`Safirstein denies the allegations in paragraph 38, except he admits that a
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`corporation(cid:146)s failure to properly report jet (cid:147)usage(cid:148) can form the basis of a shareholder claim.
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`
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`39.
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`Safirstein denies the allegations in paragraph 39.
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`40.
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`Safirstein denies the allegations in paragraph 40.
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`41.
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`Safirstein denies the allegations in paragraph 41.
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`42.
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`Safirstein denies the allegations in paragraph 42.
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`43.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`the truth of any allegations in paragraph 43 regarding Metcalf(cid:146)s purported discovery of
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`information and he denies the remaining allegations in paragraph 43.
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`44.
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`Safirstein denies the allegations in paragraph 44.
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`45.
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`Safirstein denies the allegations in paragraph 45.
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`46.
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`Safirstein denies the allegations in paragraph 46.
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`47.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`the truth of any allegations in paragraph 47 regarding what Metcalf (cid:147)recalls(cid:148) and he denies the
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`remaining allegations in paragraph 47.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
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`48.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`the truth of any allegations in paragraph 48 regarding anything that supposedly (cid:147)upset(cid:148) Metcalf
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`and he denies the remaining allegations in paragraph 48.
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`49.
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`Safirstein admits the allegations in paragraph 49.
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`50.
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`Safirstein denies the allegations in paragraph 50, except he admits that his letter to
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`Metcalf asserted that he had tried without success to schedule a phone call with Metcalf to
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`discuss SM(cid:146)s future.
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`51.
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`Safirstein admits the allegations in paragraph 51, except that he denies that
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`Metcalf sent a draft separation agreement (cid:147)in any event.(cid:148)
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`52.
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`Safirstein admits the allegations in paragraph 52, except he denies that any of the
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`words quoted therein were bolded.
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`53.
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`Safirstein denies the allegations in paragraph 53, except he admits proposing that
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`Metcalf be paid less than him and he denies having knowledge or information sufficient to form
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`a belief as to what Metcalf considered (cid:147)unacceptable(cid:148) when Safirstein made his proposal.
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`54.
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`Safirstein admits the allegations in the first sentence in paragraph 54 and denies
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`having knowledge or information sufficient to form a belief as to the truth of the allegations in
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`the second and third sentences in paragraph 54.
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`55.
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`Safirstein denies the allegations in paragraph 55.
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`56.
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`Safirstein denies the allegations in paragraph 56.
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`57.
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`Safirstein denies the allegations in paragraph 57.
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`58.
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`Safirstein denies the allegations in paragraph 58, except he admits SM was
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`considering participating in litigation (cid:147)regarding the Robinhood Short Squeeze Trading(cid:148) matter
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`in April 2021.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`59.
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`Safirstein denies the allegations in paragraph 59, except he admits that (cid:147)many
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`firms were already involved and sparring over lead plaintiff positions, a multidistrict litigation
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`had formed, and SM LLP(cid:146)s potential client had claims that were actually not against
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`Robinhood.(cid:148)
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`60.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`truth of any allegations in paragraph 60.
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`61.
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`Safirstein denies the allegations in paragraph 61.
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`62.
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`Safirstein denies the allegations in paragraph 62.
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`63.
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`Safirstein admits the allegations in paragraph 63 that substantial time was
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`expended in the litigation and that four amended complaints were filed and he denies the
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`remaining allegations in paragraph 63.
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`64.
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`Safirstein denies the allegations in paragraph 64, except he admits that he sought
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`(cid:147)lead counsel(cid:148) position in the Robinhood Short Squeeze Trading matter.
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`65.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`the truth of any allegations in paragraph 65, except he admits orally addressing the Florida court
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`on May 17, 2021.
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`66.
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`Safirstein denies the allegations in paragraph 66, except he admits that he did not
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`discuss the Short Squeeze Litigation with Metcalf after April 2021 and did not respond to an
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`email from Metcalf on September 3, 2021.
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`67.
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`Safirstein denies the allegations in paragraph 67.
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`68.
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`Safirstein admits the allegations in the first and second sentences in paragraph 68
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`as well as the allegation in the fifth sentence in paragraph 68 that (cid:147)Safirstein submitted a letter to
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`the judge arguing that the requirements for the claim had already been met by the plaintiff and no
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`further information was needed(cid:148) and he denies the remaining allegations in paragraph 68.
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`69.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`the truth of the allegation in paragraph 69 that (cid:147)Metcalf downloaded FOIA FAA logs(cid:148) and he
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`denies the remaining allegations in paragraph 69.
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`70.
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`Safirstein denies the allegations in paragraph 70.
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`71.
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`Safirstein admits the allegations in paragraph 71.
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`72.
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`Safirstein admits the allegations in paragraph 72.
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`73.
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`Safirstein admits the allegations in paragraph 73.
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`74.
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`Safirstein denies the allegations in paragraph 74.
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`75.
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`Safirstein admits the allegations in the first sentence in paragraph 75 and denies
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`the allegations in the second sentence in paragraph 75.
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`76.
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`Safirstein admits the allegations in paragraph 76.
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`77.
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`Safirstein denies the allegations in paragraph 77, except he admits that his
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`communication to Metcalf contains the quoted language therein.
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`78.
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`Safirstein denies the allegations in paragraph 78, except he admits that Metcalf
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`sent him a communication on or about December 13, 2021 containing the quoted language
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`therein.
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`79.
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`Safirstein denies the allegations in paragraph 79.
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`80.
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`Safirstein denies the allegations in paragraph 80, except he admits that (cid:147)Metcalf
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`decided to dissolve SM LLP.(cid:148)
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`81.
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`Safirstein admits the allegations in paragraph 81.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
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`82.
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`Safirstein denies the allegations in paragraph 82 (including its subparts) and
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`asserts that Metcalf(cid:146)s (cid:147)communication(cid:148) speaks for itself.
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`83.
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`Safirstein admits the allegations in paragraph 83 that Metcalf made demands of
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`Safirstein corresponding to the subject matter in all subparts and asserts that Metcalf(cid:146)s
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`(cid:147)communication(cid:148) speaks for itself.
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`84.
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`Safirstein denies the allegations in paragraph 84 and asserts that Metcalf(cid:146)s
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`(cid:147)communication(cid:148) speaks for itself.
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`85.
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`Safirstein denies the allegations in paragraph 85, except he admits that Safirstein
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`sent letters to SM(cid:146)s clients advising of SM(cid:146)s dissolution and that SM would not be practicing law
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`in the future.
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`86.
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`Safirstein denies the allegations in paragraph 86.
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`87.
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`Safirstein denies the allegations in paragraph 87 (including its subparts), except he
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`admits that all SM clients who were sent letters (cid:147)signed the forms attached to the letters
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`transferring their matters to Safirstein Law.(cid:148)
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`88.
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`Safirstein denies having knowledge or information sufficient to form a belief as to
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`the truth of the allegations in paragraph 88 that Metcalf (cid:147)view[ed] these letters(cid:148) and he admits
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`the remaining allegations in paragraph 88 that (cid:147)Metcalf demanded that Safirstein retract them
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`immediately, but Safirstein did not.(cid:148)
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`89.
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`Safirstein denies the allegations in paragraph 89.
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`90.
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`Safirstein denies the allegations in paragraph 90, except he admits telling Metcalf
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`she had no right to attend the mediation.
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`91.
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`Safirstein admits the allegations in paragraph 91.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
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`92.
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`Safirstein denies the allegations in paragraph 92, except he admits that he caused
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`SM bank account statements for 2021 to be sent to Metcalf on or about December 29, 2021.
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`93.
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`Safirstein denies the allegations in paragraph 93, except he admits that Feerick
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`joined Safirstein at Safirstein Law.
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`94.
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`Safirstein admits the allegations in paragraph 94.
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`95.
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`Safirstein denies the allegations in paragraph 95.
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`96.
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`Safirstein denies the allegations in paragraph 96.
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`97.
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`Safirstein denies the allegations in paragraph 97, except he admits advising
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`Metcalf that because of her egregious breaches of fiduciary duties to SM and him, he would not
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`agree that Metcalf should receive the same distribution of profit arising from the Namenda case
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`as him and he admits advising Metcalf that Safirstein Law was to be compensated.
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`98.
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`Safirstein admits the allegations in paragraph 98.
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`99.
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`Safirstein denies the allegations in paragraph 99.
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`100. Safirstein admits the allegations in paragraph 100 to the extent they recite that he
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`received specified amounts of money for fees and expense reimbursements.
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`101. Safirstein admits the allegations in paragraph 101.
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`102. Safirstein admits the allegations in paragraph 102.
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`103. Safirstein denies the allegations in paragraph 103, except he admits that, acting as
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`SM(cid:146)s managing partner, he determined that SM should receive 60% of SM(cid:146)s and his new law
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`firm(cid:146)s combined legal fee in Namenda in view of prevailing decisional authority in New York.
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`104. Safirstein denies the allegations in paragraph 104, except he admits that Metcalf
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`emailed her objection to the fee division shortly after it was provided to her.
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`105. Safirstein denies the allegations in paragraph 105 to the extent Metcalf means to
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`assert that the (cid:147)hours recorded(cid:148) were those recorded by his new firm post-dissolution.
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`106. Safirstein denies the allegations in paragraph 106.
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`107. Safirstein denies the allegations in paragraph 107 and the footnote thereto.
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`108. Safirstein denies the allegations in paragraph 108.
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`109. Safirstein denies the allegations in paragraph 109.
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`110. Safirstein admits the allegations in the first sentence in paragraph 110 and he
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`denies the remaining allegations in paragraph 110.
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`111. Safirstein denies the allegations in paragraph 111, except he admits that Metcalf
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`demanded that (cid:147)the money be put into escrow.(cid:148)
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`112. Safirstein denies the allegations in paragraph 112, except he admits that SM paid
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`the cited amount of money to Feerick in December 2023 pursuant to Feerick(cid:146)s longstanding
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`agreement with Safirstein, Metcalf and SM.
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`113. Safirstein denies the allegations in paragraph 113.
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`114. Safirstein denies the allegations in paragraph 114 and the footnote thereto, except
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`he admits that SM paid the cited funds to Feerick in or about the dates listed pursuant to
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`Feerick(cid:146)s longstanding agreement with Safirstein, Metcalf and SM.
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`115. Safirstein admits the allegations in paragraph 115 relating to the (cid:147)Firm tax
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`payment(cid:148) and he denies the remaining allegations in paragraph 115.
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`116.
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`In response to the allegations in paragraph 116, Safirstein repeats and realleges
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`his responses to paragraphs 1 through 115 as if fully set forth herein.
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`117. Safirstein denies the allegations in paragraph 117, except he admits that SM
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`operated between 2016 and 2021 and that its two partners, Metcalf and him, each held 50% of
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`the interests in SM.
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`118. Safirstein admits the allegations in paragraph 118.
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`119. Safirstein admits the allegations in paragraph 119.
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`120. Safirstein admits the allegations in paragraph 120.
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`121. Safirstein admits the allegations in paragraph 121.
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`122. Safirstein denies the allegations in paragraph 122.
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`123. Safirstein admits the allegations in paragraph 123 that Metcalf is entitled an
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`accounting of SM following dissolution.
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`124. Safirstein denies the allegations in paragraph 124.
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`125. Safirstein denies the allegations in paragraph 125.
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`126. Safirstein denies the allegations in paragraph 126.
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`127.
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`In response to the allegations in paragraph 127, Safirstein repeats and realleges
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`his responses to paragraphs 1 through 126 as if fully set forth herein.
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`128. Safirstein denies the allegations in paragraph 128, except he admits that SM
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`operated between 2016 and 2021 and that its two partners, Metcalf and him, each held 50% of
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`the interests in SM.
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`129. Safirstein denies the allegations in paragraph 129.
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`130. Safirstein admits the allegations in paragraph 130.
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`131. Safirstein admits the allegations in paragraph 131.
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`132. Safirstein denies the allegations in paragraph 132 (including its subparts).
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`133. Safirstein denies the allegations in paragraph 133.
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`134.
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`In response to the allegations in paragraph 134, Safirstein repeats and realleges
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`his responses to paragraphs 1 through 133 as if fully set forth herein.
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`135. Safirstein denies the allegations in paragraph 135 (including its subparts).
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`136. Safirstein denies the allegations in paragraph 136 (including its subparts).
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`137. Safirstein denies the allegations in paragraph 137.
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`138.
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`In response to the allegations in paragraph 138, Safirstein repeats and realleges
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`his responses to paragraphs 1 through 137 as if fully set forth herein.
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`139. Safirstein denies the allegations in paragraph 139.
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`140. Safirstein denies the allegations in paragraph 140.
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`141. Safirstein denies the allegations in paragraph 141.
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`142. Safirstein denies the allegations in paragraph 142.
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`143. Safirstein denies the allegations in the WHEREFORE paragraph in the complaint
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`and all subdivisions thereof.
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`AFFIRMATIVE DEFENSES
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`Metcalf has failed to state a cause of action.
`
`Metcalf is asserting duplicative causes of action.
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`Metcalf(cid:146)s causes of action are barred, in whole or part, under the doctrines of
`
`
`
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`
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`1.
`
`2.
`
`3.
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`waiver and/or estoppel.
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`4.
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`5.
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`6.
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`Metcalf(cid:146)s claims are time-barred.
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`Metcalf(cid:146)s claims are derivative in nature.
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`Upon dissolution, Metcalf received an accounting for SM, which has been
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`updated reasonably following the occurrence of new, relevant events.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`INDEX NO. 650777/2024
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`RECEIVED NYSCEF: 03/22/2024
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`7.
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`Safirstein(cid:146)s conduct in his role as SM managing partner is protected under the
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`business judgment rule.
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`COUNTERCLAIM
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`Preliminary Statement
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`1.
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`From 2016 to March 2020, SM was a profitable law firm with two equity
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`partners, Safirstein (who was SM(cid:146)s managing partner, the source of much of the firm(cid:146)s business,
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`and supervised its litigations) and Metcalf (who assumed responsibility for some of SM(cid:146)s
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`administrative functions and prepared motion papers and handled other litigation tasks under
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`Safirstein(cid:146)s supervision), and one employee, Feerick (who, among other things, managed SM(cid:146)s
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`client relations and performed financial analyses SM needed to support its cases).
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`2.
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`However, after the onset of the COVID-19 pandemic, Metcalf decided she no
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`longer wanted to devote herself to SM(cid:146)s business, but she did not say this to Safirstein. Instead,
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`with all SM personnel working remotely starting in March 2020, Metcalf effectively quit SM by
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`disappearing for lengthy periods of time while failing to complete litigation assignments or by
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`doing substandard work. Early on during the pandemic and not knowing of Metcalf(cid:146)s intentions,
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`Safirstein and Feerick excused Metcalf(cid:146)s lapses and were sympathetic to her assertions that the
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`pandemic was causing her stress and distracting her focus from work.
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`3.
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`As 2020 progressed, Metcalf(cid:146)s unreliability and failures of effort began to damage
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`the firm. Among other consequences, Safirstein was compelled to do work Metcalf would not
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`do (while completing his own tasks) or had to send work Metcalf would not complete to other
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`counsel. Upon information and belief, Metcalf intended, through her nonfeasance, to burden and
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`frustrate Safirstein so he would dissolve SM. Metcalf formulated her plan upon a mistaken
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`belief, amplified in her complaint, that any matter initiated by SM would continue to be
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`INDEX NO. 650777/2024
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`RECEIVED NYSCEF: 03/22/2024
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`prosecuted by SM and that, because she was a 50/50 equity partner in SM, she was legally
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`entitled, whether or not she essentially quit the firm, to 50% of the profits generated in every
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`case where SM had been retained.
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`4.
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`By the end of 2020, Safirstein told Metcalf that he wanted to adjust their
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`relationship given her lapses of effort. However, Safirstein did not want to dissolve SM because
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`a dissolution could cause SM to lose its position in several cases and diminish its fees.
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`Following several discussions between Safirstein, Metcalf and Feerick on this subject, it was
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`decided, upon Metcalf(cid:146)s promise to work harder, that SM would continue into 2021.
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`5.
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`In 2021, Metcalf reverted back to frequent lapses. Similar to the year before, she
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`continued her failures of communication and effort. As a result, Safirstein, in 2021, gave up on
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`the idea that Metcalf would revert to being a productive lawyer and partner, and he reduced his
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`willingness to look to Metcalf to support SM(cid:146)s litigations. Metcalf came to realize during 2021
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`that Safirstein had concluded that Metcalf would not become a productive partner at SM.
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`6.
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`Upon information and belief, Metcalf moved to the next stage of her plan, which
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`was to attack Safirstein and Feerick with bogus claims of misconduct as a stated rationale for
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`preemptively dissolving SM. Accordingly, in December 2021, she noticed SM(cid:146)s dissolution in
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`writing while frivolously accusing Safirstein (and Feerick) of (cid:147)hiding(cid:148) SM cases from her so
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`Safirstein (and Feerick) could eventually (cid:147)steal(cid:148) the cases for their own benefit.
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`7.
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`On the bases of her false allegations, mistaken understanding of applicable law
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`and attempt to forestall payments to Feerick so as to divert payments from Feerick to Metcalf for
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`Metcalf(cid:146)s personal benefit, Metcalf demanded that Safirstein stop facilitating payments to
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`Feerick pursuant to Feerick(cid:146)s longstanding compensation agreement with SM.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`INDEX NO. 650777/2024
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`RECEIVED NYSCEF: 03/22/2024
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`8.
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`Metcalf also demanded that Safirstein provide her with reams of SM firm and
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`client documents on one day(cid:146)s notice, and, most remarkably, that he continue to handle the SM
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`cases to their conclusion and then pay over to her 90% of any resulting profit. In conjunction
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`with these demands, Metcalf reserved the right to assist on the SM cases herself, but only if she
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`felt like doing so. In actual fact, however, Metcalf envisioned upon information and belief that
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`Safirstein and Feerick would do virtually all of the work on the SM cases post-dissolution while
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`she waited for her windfall payments.
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`9.
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`Lawyers have no right to treat their partners as indentured servants. This is
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`especially so for non-producing partners like Metcalf who pretextually blow up their law firms
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`believing they can grab for themselves 90% of their firm(cid:146)s profits. By dint of their fiduciary
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`responsibilities, lawyers are obligated to make good faith efforts to promote the business of the
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`law firms in which they hold equity interests. Metcalf should be held to account because she
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`intentionally and blatantly disregarded this principle and, in doing so, substantially damaged SM
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`and Safirstein.
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`Parties, Jurisdiction and Venue
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`10.
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`Counterclaim Plaintiff Safirstein is a natural person who resides in Ridgewood,
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`New Jersey.
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`11.
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`Counterclaim Defendant Metcalf is a natural person who, upon information and
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`belief, resides in Queens, New York.
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`12.
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`This Court has personal jurisdiction over these counterclaims because, at all
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`relevant times, the counterclaim parties transacted business in New York County, New York.
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`13.
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`Venue is proper in this Court because a substantial part of the events giving rise to
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`the counterclaims occurred in New York County, New York.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`INDEX NO. 650777/2024
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`RECEIVED NYSCEF: 03/22/2024
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`Facts in Support of the Counterclaim
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`14.
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`Safirstein and Metcalf formed SM in or about 2016.
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`15.
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`At all times relevant to these counterclaims, SM was an operating or dissolved
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`law firm formed in New York with an office in New York County. When it was operating, SM
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`concentrated in representing plaintiffs on a contingency fee basis in shareholder, antitrust and
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`consumer class actions and litigations.
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`16.
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`Safirstein and Metcalf each owned 50% of SM.
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`17. When SM was formed, Safirstein and Metcalf agreed to devote substantially all of
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`their professional time to SM(cid:146)s business. At the same time, Metcalf promised Safirstein and
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`Safirstein promised Metcalf that each of them would make similar, commercially reasonable
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`efforts in good faith for SM(cid:146)s benefit.
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`18.
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`SM was formed without a written partnership agreement and did not have a
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`written partnership agreement at any time after it was formed.
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`19.
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`At all relevant times, Safirstein was managing partner of SM.
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`20.
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`At all relevant times, in his capacity as SM managing partner, Safirstein
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`controlled SM(cid:146)s bank accounts, including its operating and escrow accounts.
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`21.
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`At no time after SM was formed did Metcalf exercise any control over SM(cid:146)s bank
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`accounts.
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`22.
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`At all relevant times, in his capacity as SM managing partner, Safirstein was
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`responsible for determining whether SM should invite an unaffiliated attorney or law firm to act
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`as co-counsel with SM in a case, although he would typically discuss the issue with Metcalf in
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`advance of making any such determination.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`INDEX NO. 650777/2024
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`RECEIVED NYSCEF: 03/22/2024
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`23.
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`At no time after SM was formed did Metcalf assume responsibility for
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`determining whether SM should invite an unaffiliated attorney or law firm to act as co-counsel
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`with SM in a case where SM was previously retained.
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`24.
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`At all relevant times, in his capacity as SM managing partner, Safirstein was
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`responsible for negotiating and consummating fee split agreements with co-counsel jointly
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`representing clients in SM cases, although he would typically discuss the issue with Metcalf in
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`advance of finalizing any such agreement.
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`25.
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`At no time after SM was formed did Metcalf assume responsibility for negotiating
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`and consummating a fee split agreement with co-counsel jointly representing clients in SM cases.
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`26.
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`At all relevant times after SM was formed, Safirstein was responsible for
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`determining legal strategy in SM(cid:146)s cases, although he would discuss strategy with Metcalf from
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`time to time in advance of making any final determinations. At no time did Metcalf exercise
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`final decision-making authority for strategy in an SM case.
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`27.
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`At no time after SM was formed did Metcalf originate client business for SM.
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`28.
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`At no time after SM was formed did Metcalf take a witness deposition in an SM
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`case.
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`29.
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`At no time after SM was formed did Metcalf question a witness during trial or
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`make an opening or closing statement at trial on behalf of an SM client.
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`30.
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`At no time after SM was formed did Metcalf argue any appeal or motion in a
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`federal or state litigation.
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`31.
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`Aside from administrative responsibilities, Metcalf(cid:146)s role at SM was to prepare
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`pre-suit demands, pleadings and motions. All of Metcalf(cid:146)s work was supervised by Safirstein.
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`FILED: NEW YORK COUNTY CLERK 03/22/2024 01:32 PM
`NYSCEF DOC. NO. 14
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`INDEX NO. 650777/2024
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`RECEIVED NYSCEF: 03/22/2024
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`32.
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`Because SM commonly prosecuted numerous cases simultaneously while also
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`evaluating new potential matters, Metcalf could devote substantially all of her professional time
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`to SM(cid:146)s business by diligently working to prepare written work product in SM(cid:146)s pending and
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`prospective matters.
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`33.
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`From the time it was formed, SM employed Feerick, whose title was Director of
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`Shareholder Communications. Among other tasks, Feerick analyzed securities and other data in
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`support of SM(cid:146)s clients(cid:146) and prospective clients(cid:146) claims.
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`34.
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`At or about the time SM was formed, Safirstein, Metcalf and Feerick agreed that
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`Feerick would be paid monthly compensation at the same level as Safirstein and Metcalf and that
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`Safirstein, Metcalf and Feerick were to be paid approximately one-third of SM(cid:146)s profit annually.
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`35.
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`Each year after SM was formed through 2020, Feerick was paid monthly and then
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`approximately one-third of SM(cid:146)s profit as compensation for her work on behalf of SM.
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`36.
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`At no time before December 2021 did Metcalf assert in writing to Safirstein
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`and/or Feerick that she believed Feerick(cid:146)s compensation was at the discretion of Safirstein or
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`Metcalf.
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`37.
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`At no time before December 2021 did Metcalf assert orally to Safirstein and/or
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`Feerick that she believed Feerick(cid:146)s compen