BDO USA, P.C., Plаintiff, v. ANKURA CONSULTING GROUP, LLC, et al., Defendants.
Case No. 3:24-cv-179-HEH
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division
May 9, 2025
Henry E. Hudson, Senior United States District Judge
(Resolving Motions to Dismiss and Discovery Dispute)
THIS MATTER is before the Court on a Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 61) filed by Defendant Kevin Lavin (“Lavin“) on September 13, 2024, a Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 63), filed by Defendant/Counterclaim Plaintiff Ankura Consulting Group, LLC (“Ankura“) on September 16, 2024, and a Partial Motion to Dismiss Phuoc Vin Phan‘s Promissory Estoppel Counterclaim (ECF No. 68) filed by Plaintiff BDO USA, P.C. (“BDO“) on October 16, 2024.1 The parties filed memoranda in support of their respective positions, and the Court held a hearing on March 14, 2025. The parties then filed a Joint Statement Regarding Discovery Dispute (ECF No. 106) pertaining to matters discussed during the Motions hearing. The Court resolves the motions and the discovery dispute as follows.
A. Factual Background
BDO is a Virginiа professional corporation that provides assurance, tax, and financial advisory services to clients of various industries nationwide. (Am. Compl. at 3-55.) BDO is incorporated in the Commonwealth of Virginia and its principal place of business is in Illinois. (Id.) Defendant Phan worked for BDO in its Nashville, Tennessee office as the National Practice Leader for BDO‘s Healthcare Transaction Advisory Services (“TAS“) practice between May 13, 2019, and January 12, 2024. (Id. at 3-6). Phan was responsible for the management and oversight of BDO‘s Healthcare TAS practice and its employees. (Id.)
When Phan initially joined BDO in the spring of 2019, he entered as a Fixed Share Partner (“FSP“) of BDO USA, LLP—BDO‘s predecessor. (Am. Compl. at 6.) At that time, Phan entered into an Amended and Restated Partnership Agreement with BDO USA, LLP. (Counterclaim at 44, ECF No. 65.) When he was first brought on, agents of BDO USA, LLP promised Phan that he would be converted from an FSP to a Variable Share Partner (“VSP“) within three (3) years of his start date, and assured Phan that converting him from FSP to VSP would be a mere formality. (Id. at 44-45.) Although starting as an FSP, Phan received substantial compensation, benefits, access to BDO‘s confidential information and trade secrets, and access to BDO‘s clients’ confidential information. (Am. Compl. at 7.)
Early in 2022, agents of BDO USA, LLP informed Phan that he would be converted to a VSP by October 1, 2022, because he was performing well. (Countercl. at
Several months later, in 2023, Phan had lunch in Nashville with Steven Shill, Global Healthcare Leader and a BDO Board Member. (Id. at 49.) Shill informed Phan that the decision to keep Phan an FSP was made to protect him and other FSPs from any downside risk. (Id.) Shill also assured Phan that “something good is about to happen, so hang tight.” (Id.)
On July 1, 2023, BDO USA, LLP converted to a Delaware professional corporation, which became BDO. (Am. Compl. at 7.) Phan entered into a Partner/Principal Employment Agreement with BDO that became effective that same day, July 1, 2023 (“Employment Agreement,” ECF No. 55-1). Just under two (2) months later, on August 30, 2023, BDO transferred its jurisdiction of formation from Delaware to Virginia. (Am. Compl. at 7.)
Both BDO‘s partners and employees have access to company trade secrets and confidential information in order to provide services and maintain client relationships. To protect this confidential information, BDO required senior employees, such as
On August 22, 2023, Phan entered into another agreement with BDO titled the First Amendment. (Am. Compl. at 9.) This agreement modified the governing law, venue, and jurisdiction provisions in the Employment Agreement as follows:
This Agreement will be governed by the laws of the State of Virginia, irrespective of the residence of the parties. Employee agrees to and hereby does submit to venue and jurisdiction solely before any state or federal court in Virginia, and Employee hereby waives any right to raise the questions of jurisdiction and venue in any action that [BDO] may bring. Employee agrees to accept process in any such action. Note: this paragraph shall not apply to any employee residing in California.
(The “First Amendment,” ECF No. 55-1.) The First Amendment effectively set the forum state of Phan‘s Emрloyment Agreement as Virginia.
Phan was dissatisfied with BDO‘s decision to convert from a partnership to a professional corporation and he did not receive as many stock options in the new professional corporation as he wanted and believed he deserved. (Am. Compl. at 10.) By Phan‘s calculations, BDO‘s failure to convert him to a VSP before BDO converted
Around August 2023, Phan began speaking with senior executives at Ankura about an opportunity to lead a TAS practice at that firm. (Am. Compl. at 10.) Ankura is a direct competitor of BDO, providing Healthcare TAS solutions similar to those offered by BDO. (Id. at 1-3, 6, 14.) Ankura is a limited liability company organized under the laws of Delaware with its principal place of business in New York. (Id. at 3.) The Chief Executive Officer (“CEO“) of Ankura is Kevin Lavin, an individual domiciled in New York and one of the defendants in this case. (Id.)
According to the Amended Complaint, Ankura executives, including Lavin, began planning with Phan on how to steal BDO‘s Healthcare TAS practice, which held a value of $60 million. (Am. Compl. at 2.) Specifically, Lavin and other Ankura executives spoke with Phan about recruiting employees to leave BDO for Ankura. (Id.)
Phan planned to resign from BDO in early January 2024. In the months leading up to his rеsignation, Phan worked with Lavin to covertly solicit the departure of BDO‘s senior Healthcare TAS employees, allegedly in violation of Phan‘s non-solicitation and confidentiality provisions in his agreements with BDO. (Id.) Lavin personally communicated with BDO employees on telephone calls and via text and email messaging to induce them to leave BDO for Ankura despite knowledge of Phan‘s and other employees’ agreements with BDO. (Id. at 14-15.) Lavin also personally extended an
In August 2023, Phan spoke on the phone with Byron Nickens (“Nickens“), an employee in BDO‘s TAS practice who reported directly to Phan. (Byron Nickens Aff., ECF No. 46-1 ¶¶ 1-4.) Phan told Nickens that Lavin “was interested in hiring the entire existing BDO Healthcare TAS group” and asked whether Nickens wanted to join Ankura as well. (Id. ¶ 4.) Nickens decided to pursue a position with a different firm, Embark, ultimately accepting an offer to join that firm on December 20, 2023. (Id. ¶ 7.) However, Phan and Nickens kept in contact.
On December 22, 2023, Phan called Nickens and shared that although Phan was still working at BDO, he planned to resign to take a job at Ankura and that he had worked out an agreement to bring the entire BDO Healthcare TAS group with him. (Id. ¶ 9.) Phan asked Nickens if he would join them and come to work at Ankura. (Id.) Nickens told Phan he “was concerned about how [he] would be able to comply with [his] post-employment obligations to BDO if the entire BDO Healthcare TAS practice group was working together at Ankura.” (Id. ¶ 10.) Phan replied that Ankura viewed any legal costs from the hiring of the group to be like those from funding an acquisition, and that Nickens should call Lavin the next day to talk it over. (Id. ¶¶ 10-11.)
Nickens exchanged text messages back and forth with Lavin and the two scheduled a time to speak over the phone on December 23, 2023. (Nickens Aff. ¶¶ 14-15.) That day, Lavin called Nickens and they spoke about Ankura‘s growth strategy and the potential hiring of BDO‘s Healthcare TAS group. (Id. ¶ 15.) Nickens told Lavin that
About three (3) days later, on December 26 and 27, 2023, Nickens expressed his concerns to Phan about joining Ankura, again expressing his distress that employment at Ankura may violate his contractual obligations to BDO. (Nickens Aff. ¶¶ 20-21.) Because Nickens was noncommittal about joining Ankura, Phan rescinded Nickens’ job offer. (Id.) On Deсember 31, 2023, Lavin sent Nickens an email formally rescinding Ankura‘s offer. (Id.; Ex. 4, ECF No. 46-1 at 12.)
On December 29, 2023, Angela Cinefro, President of Ankura, sent Phan a “Good Leaver” checklist (the “Checklist,” ECF No. 70-2). The Checklist advised Phan not to do anything unusual before he resigned, to use methods of voice communication rather than written communication, and to take notes about conversations with staff at BDO for Ankura to use “should we get into litigation.” (Id. at 3.) The Checklist also advised Phan that he should not solicit employees to follow him to Ankura, that he should not reach out to any clients, and that he should not attempt to take any records or information from his
On January 9, 2024, Phan resigned and informed BDO that he had taken a position at Ankura. (Am. Compl. at 10.) At the beginning of 2024, BDO‘s Healthcare TAS practice consisted of eleven (11) employees who reported directly to Phan. (Id.) Seven (7) of these employees resigned between January 5 and January 12, 2024. Most of the resigning employees were managers and had signed confidentiality and non-solicitation agreements with BDO. The departure of Phan and the seven (7) other employees was detrimental to BDO‘s ongoing work and its clients. (Am. Compl. at 11-15.) By mid-February 2024, Ankura hired all of the outgoing employees for its own TAS practice now led by Phan. (Id. at 13.)
On January 10, 2024, the day after Phan resigned, BDO discovered that Phаn had taken over 12.5 gigabytes of data from BDO‘s secure IT system and was attempting to take an additional 1.2 gigabytes of data. (Am. Compl. at 17-18.) While BDO was closed for the holidays between December 23, 2023, and January 2, 2024, Phan used a file exchange software and his personal email address to transfer 1,715 files containing confidential company and client information from his BDO-issued laptop to a personal computer. (Id. at 18-19.) Upon learning about these events, BDO terminated Phan‘s access to the IT system, preventing the loss of the 1.2 gigabytes of additional confidential information that Phan was attempting to transfer, and immediately contacted him to schedule a meeting. (Id.)
B. Procedural Background
On August 19, 2024, BDO filed its Amended Complaint alleging that Ankura, Lavin, and Phan, by stealing a portion of BDO‘s business, violated both federal and state laws. The Amended Complaint brings nine (9) counts against Defendants: Misappropriation of Trade Secrets - Defend Trade Secrets Act (“DTSA“) against Ankura (Count I); Misappropriation of Trade Secrets - Virginia Uniform Trade Secrets Act (“VUTSA“) against Ankura (Count II); Tortious Interference with Phan‘s Employment Agreement against Ankura and Lavin (Count III); In the Alternative, Tortious Interference with Phan‘s Employment Agreement against Ankura and Lavin, pursuant to
On September 16, 2024, Phan filed an Answer and Counterclaim against BDO. (ECF No. 65.) In his Counterclaim, Phan brings claims for Breach of Contract (Count I), Unjust Enrichment (Count II), and Promissory Estoppel (Count III). (Id.)
According to BDO, Ankura is a large organization that employs over 1,700 professionals, maintains over 30 offices across the globe, and engages in business transactions with Virginia residents on a regular basis. (See ECF No. 46-3 at 2.) For example, Ankura has been registered with Virginia‘s State Corporation Commission to perform business within Virginia‘s borders on a continuing basis since June 2, 2020. (ECF No. 33 at 15.) In addition, Ankura also employs at least seven (7) full-time Virginia employees in its senior management—according to information gathered from LinkedIn, a social networking website for professionals. (See Ex. 1, Declaration of Julie H. McConnell, ECF No. 33-1.) Ankura also regularly targets its recruitment efforts within Virginia‘s borders by advertising job openings and attempting to hire new Virginia-based employees to join the company. (Ex. 2, ECF No. 33-2.) Significantly, in 2022, Ankura acquired a Virginia-based analytics firm that had more than 15 employees. (ECF No. 46-3 at 2.) Furthermore, Ankura has been retained as a financial advisor to the Special Committee of Intelsat Connect Finance S.A., a Virginia-based company, and has filed a declaration in connection with this Virginia engagement in the United States Bankruptcy Court for the Eastern District of Virginia. (ECF Nos. 46-3, 46-4, 46-5.)
A motion made pursuant to
III. ANALYSIS
A. Motions to Dismiss for Lack of Personal Jurisdiction
As the United States Court of Appeals for the Fourth Circuit has stated, a federal district court may exercise personal jurisdiction over a foreign party only if: “(1) such jurisdiction is authorized by the long-arm statute of the state in which the district court sits; and (2) application of the relevant long-arm statute is consistent with the Due Process Clause of the Fourteenth Amendment.” Universal Leather, LLC, 773 F.3d at 558
The Supreme Court of the United States has recognized “two kinds of personal jurisdiction: general (sometimes called all-purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction.” Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
General jurisdiction applies only when a defendant is “essentially at home” in the forum state. Id. For example, for an individual, general jurisdiction applies in the state where he is domiciled, and for a corporation, it applies in the corporation‘s place of incorporation and its principal place of business. Id. at 358-359. (citing Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)). Here, general jurisdiction does not apply because
However, as the Supreme Court has held, “Specific jurisdiction is different: It covers defendants less intimately connected with a State, but only as to a narrower class of claims.” Id. at 359. For jurisdiction to be established under this test, the record “must show that the defendant deliberately ‘reached out beyond’ its home—by, for example, ‘exploi[ting] a market’ in the forum State or entering a contractual relationship centered there.” Id. (quoting Walden v. Fiore, 571 U.S. 277, 285 (2014)). Under this scenario, the forum state may exercise jurisdiction over a plaintiff‘s claims that “arise out of or relate to” those contacts the defendant made with the forum state. Id.; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).
When parties agree to litigate their claims in a particular state, however, the jurisdiction analysis is simple. Indeed, the personal jurisdiction requirement “may be waived by a defendant‘s ‘express or implied consent.‘” Fidrych v. Marriott Int‘l, Inc., 952 F.3d 124, 131 (4th Cir. 2020) (quoting Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701, (1982)). The Supreme Court has explained that parties can consent in advance to submit their controversies for resolution within a particular jurisdiction. See Burger King Corp., 471 U.S. at 473, n.14 (citing Ins. Corp. of Ireland, 456 U.S. at 703). Consequently, “several circuits have held that a valid forum selection clause, alone, is sufficient to confer personal jurisdiction.” ExxonMobil Oil Corp. v. Black Stone Petroleum Inc., 221 F. Supp. 3d 755, 763 (E.D. Va. 2016) (collecting cases); see Consulting Eng‘rs Corp., 561 F.3d at 281, n.11 (“[A] valid forum
Courts in this district have previously held that “non-signatories may be bound by a forum selection clause if they are ‘closely related’ to the dispute such that it is ‘foreseeable’ that they will be bound.” Servicios Latinos, Inc. v. Gomez, No. 2:24-cv-182, 2024 WL 4702816, at *4 (E.D. Va. Nov. 6, 2024); In re McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d 48, 59 (3d Cir. 2018) (“Under traditional principles of contract law, non-signatories may be bound by a forum selection clause . . . if they are closely related parties.“). Indeed, “[i]t is widely accepted that non-signatory third-parties who are closely related to [a] contractual relationship are bound by forum selection clauses contained in the contracts underlying the relevant contractual relationship.” First Fin. Mgmt. Grp., Inc. v. Univ. Painters of Balt., Inc., 11-cv-5821, 2012 WL 1150131, at *3 (E.D. Pa. Apr. 5, 2012) (quoting Donachy v. Intrawest U.S. Holdings, Inc., No. 10-4038, 2011 WL 2973543, at *2 (D.N.J. July 21, 2011)); see Franlink Inc. v. BACE Servs., Inc., 50 F.4th 432, 439 (5th Cir. 2022) (“All other circuit courts to have considered [the closely related doctrine] have recognized it in one way or another.“). When determining if it is foreseeable that a non-signatory will be bound by the forum selection clause in a contract, “pure speculation” of foreseeability is typically insufficient. See In re McGraw-Hill, 909 F.3d at 65.
The court in Meridian Bank then reviewed the forum selection clause language, which provided, according to the court:
“[a]ny litigation relating to this agreement shall be brought in the federal or state courts in or for Montgomery County, Pennsylvania” or “[n]othing . . . shall prohibit Meridian from filing at State or Federal Court in relation to this Agreement . . . venue for any such Court proceeding shall be in that Federal or State Court nearest to Meridian‘s then headquarters and [employee]3 consents to personal jurisdiction at such forums.”
Similarly, in Radian Guar. Inc. v. Bolen, the district court held that a defendant was bound by a forum-selection clause even though it did not sign the contract at issue. 18 F. Supp. 3d 635, 639 (E.D. Pa. 2014). As summarized by that court, “Having sought to employ Bolen while knowing that she was employed by Radian under a contract with a non-competition agreement, Arch MI Services and Arch MI Holdings are sufficiently closely related to Bolen so as to foresee being bound by the forum selection clause in the Stock Grant Agreement.” Id. at 647. In Bolen, the forum selection clause stated:
The Grantee irrevocably and unconditionally (i) agrees that any legal proceeding arising out of this paragraph may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in Philadelphia County, Pennsylvania, (ii) consents to the non-exclusive jurisdiction of such court in any such proceeding, and (iii) waives any objection to the laying of venue of any such proceeding in any such court.
Id. at 640. In finding that the non-signatory defendants were bound by the forum selection clause, the court effectively read those defendants into the agreement in place of “Grantee.” Id. at 640, 647.
Here, consistent with Fourth Circuit precedent, the Court considers the complaint, affidavits, exhibits, and other similar items of the record to assure itself of personal jurisdiction. UMG Recordings, Inc., 963 F.3d at 350. At this stage in the case, the record shows thаt Lavin and Ankura are so “closely related” to the dispute between BDO and Phan such that it was “foreseeable” that they would be bound by the forum selection
The record shows that Lavin, on behalf of Ankura, was the architect and prime mover of the plan to take away BDO‘s Healthcare TAS practice by recruiting Phan and other senior BDO employees to join Ankura in violation of their respective agreements with BDO. (Am. Compl. at 2, 10, 14-16; Nickens Aff. ¶¶ 4-21.) By August 22, 2023, Phan had agreed to the First Amendment, setting the forum state for his Employment Agreement with BDO as Virginia. (Am. Compl. at 9.) During that same time, the Amended Complaint alleges, “Ankura, with Lavin‘s full participation and knowledge, began plotting in the summer of 2023 to steal BDO‘s Healthcare TAS practice, including to hire and use Phan to recruit other BDO employees to leave BDO and work for Ankura, notwithstanding Phan‘s fiduciary [and contract] obligations to BDO.” (Id. at 10.) “Lavin and Ankura correctly knew and understood” the restrictive covenants in Phan‘s Employment Agreement, and were aware that Phan‘s Employment Agreement contained a forum selection clause. (Id. at 14.)
Despite knowledge of Phan‘s contractual obligations to BDO, Lavin worked with Phan to covertly “solicit[] at least seven of the 11 full-time employees in the Healthcare TAS practice . . . [to] join Ankura.” (Id. at 2, 13.) According to the record, “Lavin personally communicated with then-BDO employees on telephone calls and via text and e-mail messaging to induce them to leave BDO for Ankura.” (Id. at 14; Nickens Aff. ¶¶ 14-21.) In addition, Lavin “personally extended an offer of employment to at least two
Overall, at this point in the cаse the record shows that Lavin, Ankura, and Phan acted in concert to take away BDO‘s Healthcare TAS practice in deliberate violation of Phan‘s Employment Agreement. Lavin and Ankura‘s conduct is intertwined with Phan‘s alleged contract violations, rendering it reasonably foreseeable that they would become defendants alongside Phan in future litigation springing from the Employment Agreement. Lavin and Ankura knew that Phan‘s Employment Agreement contained a forum selection clause and it was foreseeable that they would be bound by that clause. Although Lavin states in an affidavit that he was not aware that Phan‘s Employment Agreement set the forum state as Virginia, the contract amendment setting Virginia as the forum state was signed by Phan and was effective before Lavin finished recruiting Phan, and had been in place for about four (4) months before Phan officially followed through on Lavin‘s overtures and joined Ankura. During that span of time, Lavin was actively recruiting Phan and other employees of BDO—a Virginia corporation—in blatant disregard of future litigation risks. Under these circumstances, the Court finds that the
The forum selection clause in the Employment Agreement, as provided in the First Amendment, states in relevant part, “Employee agrees to and hereby does submit to venue аnd jurisdiction solely before any state or federal court in Virginia, and Employee hereby waives any right to raise the questions of jurisdiction and venue in any action that [BDO] may bring.” (ECF No. 55-1.) Because Lavin and Ankura are read into the contract in place of “Employee,” Lavin and Ankura have effectively agreed to submit to jurisdiction before any federal court in Virginia and have also waived any right to question that court‘s jurisdiction in this case. See Bolen, 18 F. Supp. 3d at 647; Meridian Bank, 2023 WL 8258769, at *7. Consequently, the Court finds that BDO has established a prima facie case that this Court has personal jurisdiction over both Ankura and Lavin for the matters raised by BDO‘s Amended Complaint. See Kurbanov, 963 F.3d at 350. For all these reasons, the Court will deny the Motions to Dismiss for Lack of Personal Jurisdiction (ECF Nos. 61, 63).
B. Joint Statement Regarding Discovery Dispute
On April 3, 2025, the parties filed a Joint Statement Regarding Discovery Dispute (the “Statement,” ECF No. 106). During the Motion Hearing, it appeared to the Court that, if their motions to dismiss were denied, Defendants would cooperate in jurisdictional discovery to develop the record, and it appeared that they might later move for an evidentiary hearing on personal jurisdiction. See Sneha Media & Ent., LLC v. Associated Broad. Co. P Ltd., 911 F.3d 192, 197 (4th Cir. 2018) (“[P]laintiff[s] must
Primarily, BDO asks that Ankura and Lavin should be ordered to engage in full discovery as to the merits of BDO‘s case against Phan. Defendants’ position appears to be that any merits discovery from Ankura or Lavin is premature until the Court is assured that it has jurisdiction over Ankura and Lavin as defendants.
The Court disagrees with Ankura and Lavin, and it agrees with BDO. Lavin and Ankura enjoy no protection from discovery related to BDO‘s claims against Phan simply because they challenge their status as defendants. Lavin and Ankura must comply with discovery as to BDO‘s claims against Phan, including matters related to the merits of those claims. In addition, Lavin and Ankura must comply with jurisdictional discovery as defendants in this case. Consequently, the only matters for which the Court has so far limited discovery from Lavin and Ankura are those that pertain exclusively to the merits of BDO‘s claims against Lavin and Ankura—to the extent any material exists that falls solely in this category. To the extent that any item or information is subject to discovery on the merits of BDO‘s claims against (1) both Phan and Ankura, (2) both Phan and Lavin, or (3) all three Defendants, Lavin and Ankura must produce that material.
On October 16, 2024, BDO filed a Partial Motion to Dismiss Phuoc Vin Phan‘s Promissory Estoppel Counterclaim (“Motion to Dismiss Estoppel Claim,” ECF No. 68.) Based on Tennessee law, Phan‘s promissory estoppel claim alleges that a BDO agent promised to promote Phan to a Variable Share Partner within three years of joining BDO and that Phan relied on that promise to his financial detriment. (Countercl. at 57.) BDO argues that Phan‘s claim fails to state a claim because (1) it does not allege fraud, which a promissory estoppel claim requires, and (2) Phan‘s reliance on the alleged promise was unreasonable. (ECF No. 69 at 2-3.) In opposition, Phan argues that his promissory estoppel claim should survive BDO‘s Motion to Dismiss, contending that BDO‘s promise to him was unambiguous and that he suffered substantial harm. (ECF No. 74 at 4-5.)
“A motion to dismiss under
BDO argues that Phan‘s promissory estoppel claim cannot be maintained because BDO and Phan already had an enforceable contract, that the terms of that agreement cannot be changed by promissory estoppel, and Phan‘s allegations do not amount to a claim for fraud. (ECF No. 69 at 6.) BDO points to language in the Amended and Restated Partnership Agreement Phan entered into with BDO USA, LLP. (ECF No. 69-2.) Under Article II, “Board of Directors,” that agreemеnt provides in relevant part:
The Board of Directors, with input from the Chief Executive Officer and other appropriate members of executive management of the Partnership, shall also have responsibility for, and review of, the following matters to the extent not otherwise delegated to the Chief Executive Officer and/or other appropriate members of executive management of the Partnership: . . .
(b) Allocation of income to Partners, and designation of each Partner as a Fixed Share Partner or Variable Share Partner upon such Partner‘s admission and at any time thereafter.
(Id. at 16.) BDO argues that Phan‘s promissory estoppel claim fails as a matter of law because, as the partnership agreement apparently makes clear, the Board of Directors was
Under these circumstances, Phan alleged a prima facie claim for promissory estoppel. According to the allegations in the Counterclaim, BDO, through its agents, made a promise to Phan that if he joined the firm he would be converted from an FSP into a VSP within three years of his start date. (Countercl. at 44-46.) BDO solidified that promise early in 2022, promising that Phan would be converted to a VSP by October 1, 2022. (Id.) Phan first accepted employment and then remained at BDO based on these promises, rejecting more lucrative job opportunities at other firms. (Id. at 44-46, 57.) Phan suffered economic harm by not being converted to a VSP, including his loss of $850,000.00 and his lоss of more lucrative compensation that he would have received had he accepted offers to work for other organizations. (Id.) On the record presently before the Court, the partnership agreement between Phan and BDO USA, LLP is not sufficient for the Court to find that Phan has failed to state a claim for promissory estoppel under Tennessee law. Consequently, the Court will deny BDO‘s Motion to Dismiss Estoppel Claim.
For the aforementioned reasons, the Court will deny the Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 61) filed by Defendant Lavin, the Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 63) filed by Defendant Ankura, and the Partial Motion to Dismiss Phuoc Vin Phan‘s Promissory Estoppel Counterclaim (ECF No. 68) filed by Plaintiff BDO. The Court will resolve the discovery dispute in the Joint Statement (ECF No. 106) as described supra. See Part III.B.
An appropriate Order will accompany this Memorandum Opinion.
Henry E. Hudson
Senior United States District Judge
Date: May 9, 2025
Richmond, Virginia