L&E/contractual issues with BigLaw associate paycuts? Forum

[ksm6969]

I've worked with laterals who have been fired within a month of their start date in biglaw, after not gelling with one or two partners. Terrible to see it, given that he had turned down other offers to come to this particular biglaw firm. If you take legal advice from this thread, you'd think he could cite some AT&T case and retire early on his zillions. Absurd.

"I once worked with someone who was fired, so I definitely know what I am talking about."

[objctnyrhnr]

I've worked with laterals who have been fired within a month of their start date in biglaw, after not gelling with one or two partners. Terrible to see it, given that he had turned down other offers to come to this particular biglaw firm. If you take legal advice from this thread, you'd think he could cite some AT&T case and retire early on his zillions. Absurd.

"I once worked with someone who was fired, so I definitely know what I am talking about."

+1

[giggaman1228]

You seem weirdly defensive about this. The post you're responding to said "in practice" and "When plaintiffs win these cases, the contracts are much different or the employer did something exceptionally stupid. It would be a massive waste of time and resources to sue." None of those things are countered by you finding a few cases where it did work. The "inane" part of the thought experiment was applying it to biglaw offers, which you've done since this started. Your snipes about people's professionalism in responding to these arguments are strange and off-putting (no one here is or thinks they are responding to partners, professors, and clients?).

The saddest part about this thread is it’s clearly some effort by people to assure themselves they have recourse if their firms cut them or never hire them.

Y’all you have no recourse. You’re entirely at the mercy of the firm

Most posts on this forum in general are transparent efforts to obtain some relief from an ongoing neurotic anxiety.

I've worked with laterals who have been fired within a month of their start date in biglaw, after not gelling with one or two partners. Terrible to see it, given that he had turned down other offers to come to this particular biglaw firm. If you take legal advice from this thread, you'd think he could cite some AT&T case and retire early on his zillions. Absurd.

1. That is absolutely not the hypo that’s being discussed. Originally it was a pay slash without a corresponding hours redux, and now it’s a rescinded offer. What you describe even this theory’s biggest defender (me) wouldn’t push back on.

2. Getting “zillions” is absurd, I agree. That’s correct, but it’s also not at all what anybody on this thread suggested would occur. In the offer-rescind hypo, in my view specific performance would be what I’d be shooting for personally if I were the recent grad.

3. For the fifteenth time this is a thought experiment similar to something a contracts professor would pose in class. This is NOT legal advice.

4. Your dismissal of the idea of “citing cases” somewhat on point to have a shot at a favorable outcome on a MTD on an issue of first impression as “absurd,” together with your conflation of the situation you described and the situation being discussed, suggest to me that you’re not qualified to really comment on this. Maybe that’s off-base, but it feels like you aren’t really understanding the whole litigation thing as a concept.

Wait, are you implying this would be an "issue of first impression"? A biglaw firm rescinding an offer for economic reasons? Good lord.

This whole thread is full of very neurotic law students hoping they have some control over this situation, and now they are getting snarky and nasty about it. It's a tough situation and I wish you all well (as a former neurotic law student myself), but daydreaming about suing your firm is not going to help bring you any level of calm, as this exchange indicates.

[objctnyrhnr]

You seem weirdly defensive about this. The post you're responding to said "in practice" and "When plaintiffs win these cases, the contracts are much different or the employer did something exceptionally stupid. It would be a massive waste of time and resources to sue." None of those things are countered by you finding a few cases where it did work. The "inane" part of the thought experiment was applying it to biglaw offers, which you've done since this started. Your snipes about people's professionalism in responding to these arguments are strange and off-putting (no one here is or thinks they are responding to partners, professors, and clients?).

The saddest part about this thread is it’s clearly some effort by people to assure themselves they have recourse if their firms cut them or never hire them.

Y’all you have no recourse. You’re entirely at the mercy of the firm

Most posts on this forum in general are transparent efforts to obtain some relief from an ongoing neurotic anxiety.

I've worked with laterals who have been fired within a month of their start date in biglaw, after not gelling with one or two partners. Terrible to see it, given that he had turned down other offers to come to this particular biglaw firm. If you take legal advice from this thread, you'd think he could cite some AT&T case and retire early on his zillions. Absurd.

1. That is absolutely not the hypo that’s being discussed. Originally it was a pay slash without a corresponding hours redux, and now it’s a rescinded offer. What you describe even this theory’s biggest defender (me) wouldn’t push back on.

2. Getting “zillions” is absurd, I agree. That’s correct, but it’s also not at all what anybody on this thread suggested would occur. In the offer-rescind hypo, in my view specific performance would be what I’d be shooting for personally if I were the recent grad.

3. For the fifteenth time this is a thought experiment similar to something a contracts professor would pose in class. This is NOT legal advice.

4. Your dismissal of the idea of “citing cases” somewhat on point to have a shot at a favorable outcome on a MTD on an issue of first impression as “absurd,” together with your conflation of the situation you described and the situation being discussed, suggest to me that you’re not qualified to really comment on this. Maybe that’s off-base, but it feels like you aren’t really understanding the whole litigation thing as a concept.

Wait, are you implying this would be an "issue of first impression"? A biglaw firm rescinding an offer for economic reasons? Good lord.

This whole thread is full of very neurotic law students hoping they have some control over this situation, and now they are getting snarky and nasty about it. It's a tough situation and I wish you all well (as a former neurotic law student myself), but daydreaming about suing your firm is not going to help bring you any level of calm, as this exchange indicates.

Feels like you haven’t really read the thread.

And I’m a midlevel lit associate at one of the no-cut firms, but appreciate your concern. I suppose my frustration stems from people (like you, it seems) dismissing the idea as preposterous without really understanding it and/or without really being qualified to do so.

I explained a page back why I think I’m feeling so invested in this hypo but it’s definitely not cause I’m a law student, nor is it because I am concerned about any skin I personally might have in the game.

So to recap for you (cause it feels like you didn’t get it the first time): the issue of first impression would be whether a grad can sue a law firm that makes an offer, which then causes the grad to (reasonably) rely on the offer in the affirmative decision not to apply to any other jobs for a year, then law firm rescinds offer before the grad starts work but after graduation and leaves the grad high and dry/screwed, particularly in this economic climate.

Google search reveals that some jurisdictions have weighed in on whether the notion of at will employment in the private sector can combat legitimate promissory estoppel claims. So, for the jurisdictions that have not weighed in on this broader point, the whole idea could be a question of first impression more broadly.

not sure why you think your experience as a recruiter or whatever makes you an expert in national promissory estoppel appellate law such that you feel comfortable outright dismissing the idea and calling posters in here who disagree with you neurotic/nasty, but your failure to really even understand the issue (as I described above) does not inspire confidence.

[giggaman1228]

Godspeed, snarky midlevel, in converting offer letters to binding contracts. We are all counting on you. It certainly would be an argument of "first impression" in some jurisdictions to claim that it's reasonable to construe an offer letter as an offer of employment regardless of changed economic circumstances, though maybe that doesn't cut the way you think it does.

[objctnyrhnr]

Godspeed, snarky midlevel, in converting offer letters to binding contracts. We are all counting on you. It certainly would be an argument of "first impression" in some jurisdictions to claim that it's reasonable to construe an offer letter as an offer of employment regardless of changed economic circumstances, though maybe that doesn't cut the way you think it does.

Well again the idea is that it’s not a binding contract in a breach-of-contract sense, but rather a promise upon which it’s reasonable to rely. And the objective reasonableness of the reliance is clear because you see hundreds and hundreds of rising 3Ls rely on those offers and decide not to apply to anything else for an entire year as a result—based on the expectation of that employment.

If the offer at the end of the 2L year isn’t a promise which can be relied upon for the following year, what’s the point of doing the whole SA thing to begin with?

And I’m not saying your changed-circumstances argument isn’t legitimate. It certainly could be. It is likely what the firm would say in response, but on the flip side that wouldn’t make the reliance any less reasonable or the grad any less screwed by relying on it to his detriment.

All I’m saying is that there’s no real basis (or at least there hasn’t been a poster who has yet presented one) for completely dismissing this idea as ludicrous across all jurisdictions. Doesn’t mean it’s the golden ticket if shit hits the fan for offerrees ITE, but I’ll continue to push hard against anybody who calls it insane (or the like) without something more than their own (potentially misguided) intuitions to back it up.

[QContinuum]

And I’m not saying your changed-circumstances argument isn’t legitimate. It certainly could be. It is likely what the firm would say in response, but on the flip side that wouldn’t make the reliance any less reasonable or the grad any less screwed by relying on it to his detriment.

Yep, and the counterargument would be - there's lots a firm can legally do to respond to changed economic circumstances. Hiring freezes, salary/class year freezes, layoffs, early retirements, reduced-hours arrangements, furloughs, even no-offering summers. But once that return offer at the end of 2L summer has been extended, and the rising 3L justifiably relies upon that offer by not seeking other employment (for an entire calendar year!), then the firm can't retroactively transform that offer into an illusory promise. The firm could've told the rising 3L, "we really liked you this summer, and we promise we'll hire you back after graduation if we feel like it next year." That would, obviously, not be an enforceable offer. But the firm intentionally chose not to make an illusory promise, because it knew that if it did so, the rising 3L would hustle for other opportunities and would likely end up accepting another job instead of sitting tight and praying the firm "felt like" bringing him back. The firm chose to make the bargain it did, and it can't be let off the hook just because the firm now thinks it made a bad bargain.

Anyway, again, this is all theoretical spitballing, not legal advice to anyone. But, with that said, totally agree with objct that it's absurd to just say there's no reasonable argument that could be made in a rescinded-offer situation.

(Also, not that it ought to be relevant, but I'll say that, like objct, I'm an associate at a no-cut firm - not some "very neurotic"/"nasty" law student trying to make myself feel better. I mean, I might be "nasty", who knows, but I'm not a law student.)

[giggaman1228]

In response to the above two posts: Keep in mind that employees can choose to find new firms too. There is nothing legally forcing law students to honor their commitments, or forgo looking at other employment for a whole year. Do you think your law firm could sue you if you reneged on your offer and went elsewhere? It could not. Such is the nature of at-will employment -- although sadly, it often works against employees.

I appreciate that everyone is being civil about this, especially the people who are disagreeing. It is a stressful time for everyone.

[QContinuum]

There is nothing legally forcing law students to honor their commitments, or forgo looking at other employment for a whole year. Do you think your law firm could sue you if you reneged on your offer and went elsewhere? It could not.

I would actually take the position that a law firm could sue a 3L who accepts, but then reneges on, their return offer.

In practice, obviously, it's not going to make sense for a firm to sue a 3L who breaches. Courts aren't going to issue an injunction forcing the 3L to go work for the firm. As for damages, the firm would need to mitigate, so would need to look to hire a different 3L to replace the one who breached. Hiring a new 3L isn't likely to be very difficult for a BigLaw firm. The firm might be able to recover maybe a few thousand dollars for its additional recruiting expenses in connection with hiring the new 3L. No firm is going to sue a 3L to recover a few thousand dollars in recruiting expenses. This is putting aside the horrible PR inherent in this Goliath suing David scenario.

So no firm's going to sue a 3L, but it isn't because they'd be wrong on the law, but because I cannot imagine a scenario where suing a 3L would make sense as a practical matter.

[boxie]

But once that return offer at the end of 2L summer has been extended, and the rising 3L justifiably relies upon that offer by not seeking other employment (for an entire calendar year!), then the firm can't retroactively transform that offer into an illusory promise.

What I've taken away from this thread is that it is possible, in some jurisdictions, to make a colorable argument for promissory estoppel based on a withdrawn offer of employment. That's different from saying a firm can't retroactively rescind an offer. It seems clear that in NY, for example, a firm absolutely can rescind an offer with impunity (and would also have no legitimate argument to sue a rescinded acceptance).

Even in states that do have an established theory of promissory estoppel for at-will offers, the cases cited in this thread predominantly deal with plaintiff's who have quit their job or incurred substantial moving fees in reliance on the offer and are able to demonstrate concrete damages. For a law student who simply did not keep looking for other employment when they received an offer, reliance damages seem so speculative that you still may not survive MTD. It would be an interesting case, but I don't think it is as cut and dry as suggested above, even in a sympathetic state.

[QContinuum]

But once that return offer at the end of 2L summer has been extended, and the rising 3L justifiably relies upon that offer by not seeking other employment (for an entire calendar year!), then the firm can't retroactively transform that offer into an illusory promise.

What I've taken away from this thread is that it is possible, in some jurisdictions, to make a colorable argument for promissory estoppel based on a withdrawn offer of employment. That's different from saying a firm can't retroactively rescind an offer. It seems clear that in NY, for example, a firm absolutely can rescind an offer with impunity (and would also have no legitimate argument to sue a rescinded acceptance).

My post clearly stated - in the very first sentence! - that I was outlining a potential plaintiff (counter)argument. It's quite misleading to excise a single snippet from my post and claim that I presented that as the "cut and dry" black-letter law.

Also, my entire argument was about the distinction between a binding offer (enforceable) and an illusory promise (not enforceable). The snippet you quoted simply stated that a binding offer cannot retroactively be transformed into an illusory promise. Now, it may be true that in some jurisdictions, there's no such thing as a binding offer in the at-will employment context. In that case there wouldn't be a special power to retroactively turn a binding offer into an illusory promise - rather, there would never have been a binding offer in the first place.

Finally, I maintain that even for NY, I don't think things are quite as "cut and dry" as you make them out to be - "absolutely can rescind with impunity"? "no legitimate argument"? Those are very strong words. I don't think I've ever used such strong language in evaluating the strength of a legal position, particularly where there isn't caselaw directly on point. "Unlikely to prevail," that's one thing. "No legitimate argument"? That's abuse of legal process territory. I really don't get why you, and the other posters on your side of the fence here, are apparently so obsessed with overstating your case.

[objctnyrhnr]

In response to the above two posts: Keep in mind that employees can choose to find new firms too. There is nothing legally forcing law students to honor their commitments, or forgo looking at other employment for a whole year. Do you think your law firm could sue you if you reneged on your offer and went elsewhere? It could not. Such is the nature of at-will employment -- although sadly, it often works against employees.

I appreciate that everyone is being civil about this, especially the people who are disagreeing. It is a stressful time for everyone.

What are you basing this on? Because it doesn’t happen? There are tons of reasons that this wouldn’t happen, other than that it legally “can’t.” They wouldn’t do it for PR reasons and because, unlike the recent law grad, there’d be very little to gain for the firm (and probably a ton to lose).

But if you’re right and if it can’t sue, it would be because there’s be no real “detrimental” reliance. The firm could just pick somebody up pretty easily. It’s a buyer’s market in this respect. This is completely distinguishable from a recent unemployed grad who relied on the offer and is now totally screwed.

[objctnyrhnr]

But once that return offer at the end of 2L summer has been extended, and the rising 3L justifiably relies upon that offer by not seeking other employment (for an entire calendar year!), then the firm can't retroactively transform that offer into an illusory promise.

What I've taken away from this thread is that it is possible, in some jurisdictions, to make a colorable argument for promissory estoppel based on a withdrawn offer of employment. That's different from saying a firm can't retroactively rescind an offer. It seems clear that in NY, for example, a firm absolutely can rescind an offer with impunity (and would also have no legitimate argument to sue a rescinded acceptance).

Even in states that do have an established theory of promissory estoppel for at-will offers, the cases cited in this thread predominantly deal with plaintiff's who have quit their job or incurred substantial moving fees in reliance on the offer and are able to demonstrate concrete damages. For a law student who simply did not keep looking for other employment when they received an offer, reliance damages seem so speculative that you still may not survive MTD. It would be an interesting case, but I don't think it is as cut and dry as suggested above, even in a sympathetic state.

“Plaintiff can’t make out this new theory because the existing caselaw isn’t directly on point,” said every defense attorney ever.

New theories (or old theories on new facts) get through all the time. That’s literally how new law gets made.

[objctnyrhnr]

Did ogltree recently turn it’s offer-promises into more illusory promises?

Could this hypo actually come to fruition against a biglaw LE firm? Could get interesting.

[ksm6969]

. It seems clear that in NY, for example, a firm absolutely can rescind an offer with impunity (and would also have no legitimate argument to sue a rescinded acceptance).

I'd say this is true, with three caveats:
(1) NY firms recruit from outside of NY, and if the offer was the result of out of state recruiting, then there's a decent chance NY law would not apply even if the firm and employment was in NY.
(2) What you say probably does not apply for summer associate positions, as at-will presumption likely doesnt attach to offer for summer associate position (they still might be at-will given the language of the offer, just that the presumption would not attach). Damages beyond the summer salary would be difficult as you get into speculative territory.
(3) This is a bit more of a stretch, but NY law says you cant use promissory estoppel to sue over a revoked offer. An element of PE is "reasonable reliance on the promise," and it is not considered reasonable by the court to, say, relocate your whole family for a promise of at-will employee. HOWEVER, you would only need to rely on PE if there is no consideration you can point to. NY liberally recognizes detrimental reliance as a form of consideration, if it is part of the exchange. As an example, if the offer required the future employee to take and pass the NY bar exam, then there is an argument that once the employee even registers for the exam and pays fees, they have provided "consideration" to the employer such that the case could be based on breach of contract and not PE. (There are still big problems here with damages, and it would probably be first impression, and would be the worst prospects, but just saying there is some colorable argument ....)

Also, re:giggaman: if you read this thread, I have been extremely bearish on the chances that a fired at-will employee could bring suit, even if they were fired after 1 day. And I have been very cautious in saying there could be situations in which a revoked offer could form the basis for a suit, BUT it almost certainly wouldn't be worth the damages. I really think you just got pissed off cause you (snarkily) said something like "LOL no court would find that an offer for at-will hiring is binding, thats not how it works!!" and I, very moderately, said you should walk that back because courts have in fact found just that.

[giggaman1228]

In response to the above two posts: Keep in mind that employees can choose to find new firms too. There is nothing legally forcing law students to honor their commitments, or forgo looking at other employment for a whole year. Do you think your law firm could sue you if you reneged on your offer and went elsewhere? It could not. Such is the nature of at-will employment -- although sadly, it often works against employees.

I appreciate that everyone is being civil about this, especially the people who are disagreeing. It is a stressful time for everyone.

What are you basing this on? Because it doesn’t happen? There are tons of reasons that this wouldn’t happen, other than that it legally “can’t.” They wouldn’t do it for PR reasons and because, unlike the recent law grad, there’d be very little to gain for the firm (and probably a ton to lose).

But if you’re right and if it can’t sue, it would be because there’s be no real “detrimental” reliance. The firm could just pick somebody up pretty easily. It’s a buyer’s market in this respect. This is completely distinguishable from a recent unemployed grad who relied on the offer and is now totally screwed.

These are all fair points, although I would say that the firm still experienced detrimental reliance (it needs to interview a new associate well past recruiting season), even if its relative costs are smaller the associate's.

Also, re:giggaman: if you read this thread, I have been extremely bearish on the chances that a fired at-will employee could bring suit, even if they were fired after 1 day. And I have been very cautious in saying there could be situations in which a revoked offer could form the basis for a suit, BUT it almost certainly wouldn't be worth the damages. I really think you just got pissed off cause you (snarkily) said something like "LOL no court would find that an offer for at-will hiring is binding, thats not how it works!!" and I, very moderately, said you should walk that back because courts have in fact found just that.

Fair enough! Concerning the cases referenced, this seems most right:

Even in states that do have an established theory of promissory estoppel for at-will offers, the cases cited in this thread predominantly deal with plaintiff's who have quit their job or incurred substantial moving fees in reliance on the offer and are able to demonstrate concrete damages. For a law student who simply did not keep looking for other employment when they received an offer, reliance damages seem so speculative that you still may not survive MTD. It would be an interesting case, but I don't think it is as cut and dry as suggested above, even in a sympathetic state.

With the caveat that I think the 'good faith and fair dealing' claims probably take a hit when there is a global recession.

[RedGiant]

I would only like to add that this thread is why I am so incredibly glad I am not in law school anymore.

The real world is not a hypo. Merely because you _could_ possibly find some theory to bring a claim doesn't mean it's wise or even realistic to do so. This may come as a surprise to some, but law firms have nearly unlimited resources, and a lot of very talented litigators to bury you, if you ever try to sue them.

I believe someone upthread said something about knowing someone who was once fired.

I worked at Latham in 2009. I know A LOT of people who were once fired and A LOT of people who were stealth laid off at no-layoff firms.

As the wise Kenny Rogers once said:

"He said, "If you're gonna play the game, boy
You gotta learn to play it right
You've got to know when to hold 'em
Know when to fold 'em
Know when to walk away
And know when to run"

I genuinely hope things work out for C/O 2020 and C/O 2021, but it's going to be ugly before it's pretty.

[objctnyrhnr]

I would only like to add that this thread is why I am so incredibly glad I am not in law school anymore.

The real world is not a hypo. Merely because you _could_ possibly find some theory to bring a claim doesn't mean it's wise or even realistic to do so. This may come as a surprise to some, but law firms have nearly unlimited resources, and a lot of very talented litigators to bury you, if you ever try to sue them.

I believe someone upthread said something about knowing someone who was once fired.

I worked at Latham in 2009. I know A LOT of people who were once fired and A LOT of people who were stealth laid off at no-layoff firms.

As the wise Kenny Rogers once said:

"He said, "If you're gonna play the game, boy
You gotta learn to play it right
You've got to know when to hold 'em
Know when to fold 'em
Know when to walk away
And know when to run"

I genuinely hope things work out for C/O 2020 and C/O 2021, but it's going to be ugly before it's pretty.

Yeah I mean along the same lines, why should a plaintiff’s shop with 3 attorneys and relatively very limited resources ever sue a Fortune 500 company?* Might as well just quit and give up before you start, right?**

...

*i spend my waking hours defending Fortune 500 companies against plaintiffs’ nonsense. And I/we do throw it all at them. Usually I/we win. Occasionally I recommend settling and cutting losses, though, when confronted with a new theory that I think has enough legs such that taking it all the way would be risky. It does happen, you know.

** remember in this hypo (of my creation, mind you), the no-offered grad is literally going for broke. He has no other options. He doesn’t care about his “rep” because he can’t get a job. This is all he’s got, in addition to another 9 months free unlimited lexis nexis extension.

[QContinuum]

I believe someone upthread said something about knowing someone who was once fired.

I worked at Latham in 2009. I know A LOT of people who were once fired and A LOT of people who were stealth laid off at no-layoff firms.

With respect, no one ITT has advanced any legal theory for suing a firm due to a layoff (whether open or "stealth") or mandatory furlough/sabbatical/reduced-hours arrangement. Regardless of class year, advance notice (or lack thereof) or severance package (or lack thereof). Everyone ITT is on the same page that at-will means any associate can be let go at any time, for any reason (or no reason), except for specifically illegal acts like discrimination etc.

[ghostoftraynor]

This thread is opposite of peak TLS.

[objctnyrhnr]

This thread is opposite of peak TLS.

Yeah debating legal hypos generally relevant to the employment situation ITE is such a strange thing for lawyers to be talking about on an anonymous lawyer forum

[QContinuum]

This thread is opposite of peak TLS.

Yeah debating legal hypos generally relevant to the employment situation ITE is such a strange thing for lawyers to be talking about on an anonymous lawyer forum

No, objct, I always understood "peak TLS" to (ironically) refer to "rock-bottom TLS", like the Johnny/Rose trolling.

[objctnyrhnr]

This thread is opposite of peak TLS.

Yeah debating legal hypos generally relevant to the employment situation ITE is such a strange thing for lawyers to be talking about on an anonymous lawyer forum

No, objct, I always understood "peak TLS" to (ironically) refer to "rock-bottom TLS", like the Johnny/Rose trolling.

Oh! In that case I misunderstood haha

That being said I kind of like the Johnny/rose trolling (although didn’t we determine Rose was for real)