Antitrust Law Daily Wrap Up, ANTITRUST—N.Y. Sup.: Fashion model’s legal malpractice suit against Boies, Schiller & Flexner dismissed, (Aug 1, 2014)

By Linda O’Brien, J.D., LL.M.

In an legal malpractice action by a fashion model against a law firm for their representation in her price-fixing class action claims against major modeling agencies, the model presented no evidence that she would have received more compensation in the settlement of those claims without the firm’s representation, the New York Supreme Court, County of New York has ruled. Thus, the law firm’s motion for summary judgment was granted and the model’s motion for summary judgment was denied (Fletcher v. Boies, Schiller, & Flexner LLP, July 30, 2014, Bransten, E.).

Background. In 2003, fashion model Mary Anne Fletcher contacted law firm of Boies, Schiller & Flexner (BSF) to represent her in pursuing claims against Macy’s department store for the unauthorized use of her image in a newspaper advertisement and against two modeling agencies, IMG and Elite. At the time, BSF was representing a class of models against Elite and the Wilhemina Model Agency in two actions alleging a conspiracy to fix prices. After retaining BSF, Fletcher joined the two class actions as a class member. Fletcher settled her individual claims against Macy’s, IMG, and Elite as well as her claims in the two class actions. For each settlement, Fletcher was represented by counsel other than BSF.

In 2007, Fletcher filed suit against BSF and Andrew Hayes, a former BSF partner, for legal malpractice, asserting that she would have been more highly compensated for each claim but for the alleged malpractice. BSF and Fletcher filed cross-motions for summary judgment.

Individual claims. In granting, BSF’s motion for summary judgment, the court determined that Fletcher failed to show a likelihood of success on her claim against Macy’s. A right to privacy claim under the state Civil Rights Law has a one-year statute of limitations. It was undisputed that Fletcher did not retain BSF until November 2003, over one year after the alleged unauthorized usage by Macy’s. Since her claim would have been dismissed, Fletcher could not demonstrate negligence or proximate cause to support her malpractice claim against BSF.

Additionally, Fletcher failed to show that her settlements with IMG and Elite were caused by malpractice, according to the court. She voluntarily settled the claims with the assistance of other counsel and failed to substantiate that she was compelled to settle these claims.

Class action claims. Fletcher argued that BSF committed malpractice by representing her on her individual claims and as a class plaintiff. The court noted that, even if a conflict of interest existed, an assertion of a violation of ethical conduct did not itself establish a malpractice claim. Fletcher failed to make the requisite showing as to proximate cause and an assertion of ethical rules did not cure the deficiencies of her underlying claim.

Finally, Fletcher’s claim that the firm made a late filing of her proof of claim in Elite’s bankruptcy proceeding, resulting in a less than full recovery, was rejected. The court noted that Fletcher’s claim was nonetheless accepted by the bankruptcy court and she did not demonstrate that the value of her underlying claim was in excess of the settlement amount.

The case is No. 114698/2007.

Attorneys: Douglas Capuder (Capuder Fazio Giacoia LLP) for Mary Anne Fletcher. Andrew W. Hayes, pro se. Robert J. Dwyer (Boies, Schiller & Flexner LLP) for Boies Schiller & Flexner LLP.

Companies: Boies Schiller & Flexner LLP

Cases: Antitrust NewYorkNews