A Massachusetts judge Wednesday dismissed much of a legal recruiting firm's suit against Freshfields Bruckhaus Deringer that alleged the firm cut it out of a placement fee for partner Ethan Klingsberg's move.

In dismissing four of the five counts against Freshfields, U.S. District Judge Richard Stearns of the District of Massachusetts faulted the lack of a written agreement between Freshfields and the plaintiff, Boston Executive Search Associates, known as ESA. The surviving claim was distinguishable from the others, the judge said.

ESA, in its suit filed last year, claimed it was working with then-Freshfields' U.S. corporate leader, Mitchell Presser, to bulk up the Magic Circle firm's U.S.-based corporate team and helped bring Cleary Gottlieb Steen & Hamilton partner Klingsberg to the firm but was never paid for its efforts. ESA vice president Justin Morimoto connected Klingsberg and Presser in November 2018, the suit said, but Presser later told ESA to "hold off" on working toward the potential move, which ESA took to mean Freshfields was not interested in Klingsberg's candidacy.

Freshfields ultimately hired Klingsberg in October 2019, and Mark Rosen of Mark Bruce International has been credited with brokering the move. (Presser has since moved to Morrison & Foerster.)

In a moving to dismiss ESA's lawsuit, Freshfields said that it was already working with a different recruiter to bring Klingsberg to the firm.

In his decision Wednesday, Stearns cited Massachusetts law that provides that any agreement to pay a broker or finder for services is unenforceable unless the agreement is in writing and signed. Stearns dismissed ESA's claims alleging breach of contract, breach of the implied covenant of good faith and fair dealing, quantum meruit and unjust enrichment.

The only claim Stearns maintained was an alleged violation of the Massachusetts Unfair Business Practices Act. While Freshfields claimed it was derivative of ESA's contract claims, the judge said it was "arguably distinguishable from its failure to exact a written agreement from Freshfields."

Whether the facts alleged by the recruiter are connected or simply coincidental "is impossible to say without a development of the record," said the judge, who set a schedule in which all fact discovery was to be completed by Jan. 25, 2021.

ESA previously sued Simpson Thacher & Bartlett over a partner placement fee, claiming the search firm was wrongfully denied a $900,000 payment. That matter settled in 2018.

ESA's counsel, Douglas Salvesen of Yurko, Salvesen & Remz, declined to comment. Freshfields did not immediately respond to a request for comment.

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