No Implied Contract Requiring Payment of a Placement Fee
The Appellate Division Second Department has ruled that there was not sufficient “assent” to require a law firm to pay a recruiting firm’s fee when the resume was sent to a partner in the firm’s New York office, but the candidate was independently interviewed and hired by the firm’s Washington D.C. office. In Siven-Tobin Assoc., LLC v. Akin Gump Strauss Hauer & Feld LLP, the plaintiff-recruitment firm sent, via e-mail, a resume of a potential employee specializing in Korean practice to a partner in the defendant-law firm’s New York office. The attached term sheet described the anticipated fee for the attorney placement and further provided that “[t]he interviewing of any attorney submitted to the firm will constitute acceptance of these terms and conditions unless [plaintiff] is notified to the contrary in writing prior to the first interview.” The New York partner had no recollection of receiving the e-mail, but in any event, the resume was of no interest to the partner as the New York office did not have a Korean practice group. Nonetheless, nine days later, a partner in the defendant firm’s Washington D.C. office (which has a Korean practice group) received the same candidate’s resume from another recruitment firm. The Washington D.C. partner was unaware of plaintiff’s e-mail to the New York partner and the Washington D.C. partner, after interviewing and hiring the attorney, paid a placement fee to the other recruitment firm.
Plaintiff started its lawsuit alleging that it was entitled to be paid a placement fee. Plaintiff claimed that there was an “implied-in-fact” agreement between the parties.
The Court did not agree – the Court explained that for there to be an implied contract to pay for personal services, plaintiff must prove that services were performed and accepted with the “understanding on both sides that there was a fee obligation.” The Court focused on the facts that the New York partner did not know that the candidate was being interviewed by the Washington office and the Washington D.C. partner did not know before interviewing the candidate that his resume had been sent to the New York partner. Thus, there was not the required “assent” sufficient to establish an implied contract.
The Court also established that an implied contact could not be inferred based upon the parties’ prior conduct as the law firm never hired any of the 10 candidates referred to it over the course of 10 years. Further, the Court found that the “mere fact that defendant interviewed three of those candidates does not permit an inference that defendant had agreed to pay plaintiff a placement fee even in instances where plaintiff’s efforts played no role in defendant’s decision to interview and hire the candidate.”
