On September 15, 2022, Justice Chan of the New York County Commercial Division issued a decision in Ja Kao v. Onyx Renewable Partners L.P., 2022 NY Slip Op. 33117(U), holding that an agreement to pay a party’s legal fees and costs was not an agreement to advance those fees and costs because there was no language showing an intention to advance rather than just indemnify, explaining:
[S]ection 22, which provides in relevant part that “[Onyx] shall pay all costs and expenses of the parties to this Agreement,
including without limitation, all legal fees and expenses of [plaintiff],” cannot be interpreted to require Onyx to pay legal fees and expenses prior to the resolution of the action. In particular, absent from the section 22 is language such as the fees will be paid “in advance” or “as incurred” which would support a finding that Onyx must pay the fees before the end of the litigation. And, contrary to plaintiffs argument, an intent by Onyx to pay plaintiff her attorney’s fees on an ongoing basis cannot be implied from the use of the word “pay” as opposed to “reimburse” or because the payment of plaintiffs attorney’s fees is not conditioned on plaintiff being the prevailing party.As for statements in plaintiffs affidavit that section 22 was intended to create a level playing field given Blackstone’s wealth, such extrinsic evidence cannot be considered as section 22 is not ambiguous as to whether attorneys’ fees must be advanced.
Plaintiff also argues that Onyx is obligated to pay plaintiffs attorneys’ fees during the pendency of this action based on statements in both a May 21, 2021 letter from defendant Bilal Khan, on behalf of Onyx, and in a September 8, 2021 email from Onyx’s counsel agreeing to the pay certain of plaintiffs attorney’s fees and expenses, and Onyx payment of plaintiffs fees in accordance with the email. This argument is unavailing since statements by Onyx agreeing to pay certain of plaintiffs legal fees and Onyx’s payment of certain fees are ineffective to modify or amend the Employment Agreement, which provides that the “Agreement, together with any exhibits attached hereto, constitutes the entire understanding and agreement of the parties hereto regarding the employment of [plaintiff].” Moreover, to the extent plaintiff argues that Onyx’s statements and its payment of fees and expenses constitute a waiver, such argument is also unavailing because the Employment Agreement provides that “[a]ny waiver, alteration, amendment, or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by each of the parties hereto affected by such waiver, alteration, amendment, or modification.” Plaintiff has proffered no such writing.
(Internal quotations and citations omitted).