Proskauer Wins Summary Judgment on Behalf of Paramount in Breach of Contract, Discrimination Case
The plaintiff was an Australian citizen working as an associate attorney for the law firm of O'Melveny & Myers LLP on a work visa. In October 2009, Paramount extended to her a conditional offer of employment to serve as its Vice President, IT Legal, the offer being contingent upon the completion of a background investigation to Paramount’s satisfaction and the successful transfer of her work visa. The conditional offer indicated that a separate employment agreement would follow. When the plaintiff countersigned the conditional offer letter in late October, she told Paramount, for the first time, that she would not be able to start work until January 2010 because of a previously undisclosed secondment to a client of O'Melveny and because she needed to travel to Australia during the first week of January.
Unbeknownst to Paramount, in November 2009, the plaintiff informed O'Melveny and the firm's client that she would be taking an extended leave of absence through the end of the year to grapple with a "personal emergency" when in fact, the plaintiff was about to embark on a six-week-long series of adventure travel tours through Bolivia, Chile, Argentina and Antarctica. She represented to Paramount that she was "traveling around for work" during this time, which was not the case. Upon learning these and other facts, Paramount withdrew its conditional offer of employment on January 5, 2010.
We moved for summary judgment, contending that the October offer letter constituted merely an "agreement to agree" and was no more than a conditional offer. We further argued that because the plaintiff was unable to meet the conditions precedent placed on the offer (i.e., the completion of a background investigation to the studio’s satisfaction and the successful transfer of her visa), a contract between the parties never existed. In granting summary judgment, the U.S. District Court (Judge Valerie Baker Fairbank) agreed, finding that the letter was not a contract because it lacked all material terms and referenced the execution of a separate employment agreement and because the plaintiff's actions provided Paramount with a good faith basis to find that the necessary preconditions had not been fulfilled. The court likewise dismissed claims based on breach of the implied covenant of good faith and fair dealing, promissory estoppel, fraud and discrimination based on foreign citizenship as not supported by the facts of the case.
Tony Oncidi and David Gross obtained the summary judgment in favor of Paramount. Jeremy Mittman and Natalie Rainforth were also part of the team, preparing for an August trial that will no longer take place thanks to the win. Adam Freed also assisted in preparing the motion for summary judgment.
