Lannan Found. v. Gingold (300 F. Supp. 3d 1, 2017)

Citations

300 F. Supp. 3d 1

Full opinion text

Thomas F. Hogan, Senior United States District Judge

MOTION TO DISMISS [ECF No. 20]

AND

MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT [ECF No. 29]

INTRODUCTION ...8

ALLEGATIONS AND PROCEDURAL POSTURE ...8

STANDARDS OF REVIEW ...12

I. Legal Standard to Supplement a Pleading Pursuant to Rule 15(d) ...12

II. Standard of Review for Motion to Dismiss Under Rule 12(b)(1) ...12

III. Standard of Review for Motion to Dismiss Under Rule 12(b)(6) ...13

ANALYSIS ...13

I. Standing and The Court's Jurisdiction Over The Claims ...14

A. Prudential Standing ...15

B. Article III Standing ...16

1. Injury in Fact ...16

a. The Plain Language of the Assignment ...19

2. Causation ...20 3. Redressability ...20

II. Timeliness of The Foundation's Claims ...21

III. Rule 12(b)(6) Challenges ...23

A. Failure to State a Claim: Counts II and III-Breach of Contract ...23

1. Contract Interpretation and Formation ...23

2. Conditions Precedent ...27

B. Failure to State a Claim: Count IV-Tortious Interference With Contractual Relations ...28

C. Failure to State a Claim: Count VI-Aiding and Abetting Breach of Fiduciary Duty ...29

D. Failure to State a Claim: Count VII-Unjust Enrichment ...30

IV. Declaratory Judgment ...31

V. The Foundation's Motion to Supplement and the Assignability of Breach of Fiduciary Duty Claims in the District of Columbia ...31

CONCLUSION ...34

INTRODUCTION

Pending before the Court are two motions. One is defendant, Dennis M. Gingold's, Motion to Dismiss [ECF No. 20], and the second is plaintiff, Lannan Foundation's ("the Foundation"), Motion for Leave to File Supplemental Complaint [ECF No. 29]. Gingold's Motion to Dismiss seeks dismissal of the Foundation's Complaint with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) for, inter alia , failure to state a claim and lack of standing. The Foundation's Motion for Leave to File Supplemental Complaint seeks leave to file a supplemental complaint under Fed. R. Civ. P. 15(d) to "account for events that have occurred since it filed its Complaint." Mot. for Leave 1 [ECF No. 29]. Upon full consideration of the parties' submissions, oral argument held on September 10, 2014, the record in this case, and the applicable law, the Court will deny in part and grant in part Gingold's Motion to Dismiss and grant the Foundation's Motion for Leave to File Supplemental Complaint.

ALLEGATIONS AND PROCEDURAL POSTURE

In 1996, the beneficiaries of Individual Indian Money ("IIM") trust accounts filed a class-action lawsuit against the Secretaries of the Interior and Treasury Departments and other federal government officials to obtain a judicial declaration confirming the scope of the government's trust obligations and an injunction compelling the performance of those obligations. See Cobell v. Norton , 240 F.3d 1081, 1092-93 (D.C. Cir. 2001). On February 4, 1997, the Honorable Royce C. Lamberth certified a class comprising all present and future IIM account beneficiaries. Order Certifying Class Action 2, Cobell, et al v. Salazar, et al. , 1:96-cv-01285 (D.D.C. Feb. 4, 1997) [ECF No. 27]. Judge Lamberth also noted that the class had "retained counsel to prosecute this lawsuit on behalf of the class." Id. Defendant Gingold was one such counsel.

Recognizing the monumental task before her in litigating a century of alleged financial mismanagement, Class Representative Elouise Cobell reached out to the Lannan Foundation in the fall of 1997 with a letter requesting financial support. Compl. ¶¶ 29-30 [ECF No. 1]. After the Foundation resolved to assist the Class, Ms. Cobell created the Blackfeet Reservation Development Fund ("BRDF"), a nonprofit organization domiciled on the Blackfeet Reservation in Browning, Montana, to seek and receive grants from non-profit organizations. Id. ¶¶ 3, 29-32.

A few months after Ms. Cobell's initial request, the Foundation made its first refundable grant to the BRDF in the amount of $2 million to pay for the services of Price Waterhouse LLP (now Pricewaterhouse Coopers LLP or PwC). Compl. ¶ 32. The Grant Agreement states in relevant part:

This Agreement ("Agreement") is made between the Lannan Foundation (hereinafter the "Foundation") and Blackfeet Reservation Development Fund, Inc. (hereinafter the "Grantee").

...

C. Grant Conditions

...

4. Reversion of grant funds:

...

If, pursuant to judgment or settlement, Plaintiffs in the litigation or their attorneys recover from the United States (including any agency or department thereof) any attorney's fees and/or costs and/or expenses of the Litigation, the grantee shall take all appropriate action to ensure prompt payment to the Foundation of one-half of all such amounts recovered until the grant is repaid in full. In the event that one or more other non-profit entities contributed or have contributed funds toward the Litigation, the Grantee will share the one-half of the amounts recovered, pro rata, in proportion to amounts advanced by the other non-profit entities.

By his signature, Dennis M. Gingold, [Plaintiffs'] lead counsel, acknowledges that one-half of any attorney's fees and/or costs and/or expenses of the Litigation recovered from the United States, by judgment or settlement, shall be paid to the Grantee, until the grant is repaid in full.

By separate assignments to the Blackfeet Reservation Development Fund, Elouise Pepion Cobell, Earl Old Person, Thomas Maulson, and James Louis Larose, beneficiaries of this Agreement, have agreed to pay to the Blackfeet Reservation Development Fund all amounts that any or all of them recover from the United States (including any agency or department thereof) related to attorney's fees and/or costs and/or expenses of the Litigation.

Id. Ex. A. 4 [ECF No. 1-2]. Ms. Cobell and Gingold both signed the agreement under the heading "Grantee." Id. at 5. Ms. Cobell signed on behalf of the BRDF, and defendant Gingold signed as "Plaintiff's Counsel."

Within a month of the first Grant Agreement, named plaintiffs Elouise Pepion Cobell, Earl Old Person, James Louis Larose, and Thomas Maulson executed their contemplated assignment to the BRDF.

Ex. B to Compl. 2-4 [ECF No. 1-3]. The simple assignment states in whole:

This assignment is made between the Blackfeet Reservation Development Fund ("Fund") and Elouise Pepion Cobell, Earl Old Person, Thomas Maulson, and James Louis Larose.

In consideration of payment by the Fund of certain fees and expenses incurred in relation to Civil Action 96-01285 in the United States District Court for the District of Columbia ("the Litigation"), an action in which each of the undersigned is a plaintiff, each of the undersigned assigns to the Fund all rights to any attorney's fees and/or costs and/or expenses of the Litigation, recovered from the United States, whether pursuant to judgment or to settlement, that the undersigned recovers as a result of the Litigation.

Id. at 2.

Over the next seven years, the Foundation made six additional refundable grants to the BRDF: (1) February 2000 Grant Agreement in the amount of $2,100,000 to fund services performed by Price Waterhouse LLP in support of the Litigation; (2) November 2002 Grant Agreement in the amount of $1,500,000 to fund services performed by expert witnesses named in a referenced grant proposal; (3) November 2003 Grant Agreement in the amount of $50,000 to fund services performed by Northwest Strategies in support of a public education campaign; (4) April 2004 Grant Agreement in the amount of $275,000 to fund services performed by THE PR CONSULTING GROUP in support of a public education campaign; (5) November 2004 Grant Agreement in the amount of $200,000 to fund services performed by THE PR CONSULTING GROUP in support of a public education campaign; and (6) March 2005 Grant Agreement in the amount of $300,000 to fund services in support of a public education campaign. See generally Ex. A. to Compl. In total, the BRDF received $6,425,000 in refundable grants from the Foundation. Compl. ¶¶ 3, 4, 32-36. Each of these six grant agreements contained the same reversionary language as the 1998 Grant Agreement. Ex. A. to Compl. Ms. Cobell signed on behalf of the BRDF and defendant Gingold signed as "Plaintiff's Counsel" under the column heading "Grantee" for all Grant Agreements.

As the litigation continued through 2006, Judge Lamberth granted the Class Representatives' petition for an interim fee award pursuant to the Equal Access to Justice Act, awarding the plaintiffs $7,066,471.05 for attorneys' fees and expenses. Compl. ¶¶ 40-42. Upon receipt of the interim fee award, Gingold disputed whether any of the funds were subject to the provisions of the BRDF's refundable grants, arguing that the award was based on "interim" fees and expenses. Id. ¶¶ 42-44. Ultimately, Gingold and the Foundation resolved the dispute without judicial intervention and the Foundation received $1,884,392.28 as a "pro rata" share of the fee and expense award based only on its initial $2 million grant. Id. ¶ 45. The Foundation agreed to defer the remaining outstanding balance of $4,540,607.72. Id. ¶¶ 45-46.

After approximately 13 years of litigation, the parties in Cobell entered into a settlement agreement to resolve the case. See Joint Mot. for Preliminary Approval of Settlement 1, Cobell , 1:96-cv-1285 (D.D.C. Dec. 10, 2010) [ECF No. 3660]. The Cobell parties also executed a separate Agreement on Attorneys' Fees, Expenses, and Costs that provided for the payment of up to $99,000,000 for reasonable attorneys' fees and costs. Compl. ¶ 48. Those fees, expenses, and costs were paid from an "Accounting/Trust Administration Fund" established by the Settlement Agreement and funded by $1.412 billion "that Defendants [paid] into a Settlement Account held in the trust department of" a federally-insured depository institution. Id. ¶ 48. On December 8, 2010, President Barack Obama signed the Claims Resolution Act of 2010, Pub. L. No. 111-291, approving and authorizing the Cobell settlement. Id. ¶ 49.

On June 20, 2011, the Court conducted a Fairness Hearing and announced that it was approving the Cobell Settlement Agreement. Compl. ¶¶ 51-52. The Court also granted in part the Class Representatives' motion for incentive awards but denied a request for over $10,000,000 in expenses-which included the outstanding balance on the seven refundable grants. Id. ¶¶ 53-54. On July 27, 2011, the Court issued an order granting final approval of the settlement and allocated $85.4 million of the $99 million in attorneys' fees to Gingold and his co-counsel. Id. ¶ 57. Gingold and his co-counsel received their fees between November 7, 2012 and December 4, 2012. Id. ¶ 58.

The day after the Court allocated attorneys' fees, Howard McCue, counsel for the Foundation, contacted Mr. Gingold to determine when and how the Foundation would receive payment on the balance of the refundable grants. Id. ¶ 61. After exchanging a number of emails over the next month, Gingold "refused to recognize any obligation on his part to facilitate reimbursement of the grant from the $99 million attorneys' fees award, and instead contended that the Foundation had no legal right to repayment from the $99 million attorneys' fees award." Id. ¶¶ 61-62.

In the spring of 2013, the BRDF executed an Assignment Agreement with the Foundation, assigning its rights to pursue the outstanding balance on the refundable grants through the claims asserted here. Id. Ex. C, Assignment Agreement 2 [ECF No. 1-4]. On July 16, 2013, the Foundation filed suit against Dennis M. Gingold and Kilpatrick Townsend & Stockton, LLP. See generally Compl. [ECF No. 1]. In its Complaint, the Foundation pled one count of declaratory relief and six counts of monetary relief through claims for (II) breach of contract; (III) breach of contract (as assignee of the BRDF's interests); (IV) intentional interference with contractual relations; (V) breach of fiduciary duty; (VI) aiding and abetting breach of fiduciary duty; and (VII) unjust enrichment. Id.

Gingold and Kilpatrick Townsend & Stockton, LLP then filed separate motions to dismiss the suit. [ECF Nos. 20, 21]. In late May 2014, the Foundation and the BRDF entered into an Amendment to Assignment Agreements to change their choice of law from New Mexico to the District of Columbia. Amendment to Assignment Agreements [ECF No. 29-5]. Thereafter, while the motions to dismiss were pending, the Foundation moved to supplement its Complaint to include the Amendment to Assignment Agreements. Mot. for Leave [ECF No. 29]. The attached Supplemental Complaint included a single additional paragraph,

On May 27, 2014, the BRDF executed another assignment, acknowledging that, having previously assigned to the Foundation "all rights, title and interest the Fund has or may have under the laws of the State of New Mexico in any fees, costs, expenses or moneys paid by or paid to counsel for the Plaintiff class," the BRDF amends its prior assignments "to assign and transfer to the Foundation any and all rights, title and interests the Fund has or may have with respect to the subject matter of" its earlier assignments "under the laws of the District of Columbia." A copy of this assignment is attached to this Complaint as Exhibit D.

Supplemental Complaint ¶ 71 [ECF No. 29-1]. Finally, on June 11, 2014, the Foundation dismissed Kilpatrick Townsend & Stockton, LLP as a defendant, leaving Gingold as the sole remaining defendant. Stip. of Dismissal [ECF No. 30].

STANDARDS OF REVIEW

I. Legal Standard to Supplement a Pleading Pursuant to Rule 15(d)

In general, a supplemental complaint may be used

to set forth new facts that update the original pleading or provide the basis for additional relief; to put forward new claims or defenses based on events that took place after the original complaint or answer was filed; [and] to include new parties where subsequent events have made it necessary to do so.

BEG Invs., LLC v. Alberti , 85 F.Supp.3d 13, 24 (D.D.C. 2015) (citations omitted). However, before filing a supplemental complaint, a plaintiff must request permission from the Court. Fed. R. Civ. P. 15(d).

Federal Rule of Civil Procedure 15(d) states that "[o]n motion and reasonable notice, the court may, on just terms, permit a party" to supplement its pleading based on transactions that have occurred after the date of the pleading to be supplemented. Thus, the decision to grant leave to supplement a pleading under Rule 15(d) is discretionary and may be granted where it serves the interests of judicial economy and convenience. Banks v. York, 448 F.Supp.2d 213, 214 (D.D.C. 2006) ; Jones v. Bernanke , 685 F.Supp.2d 31, 35 (D.D.C. 2010). Such leave should be freely given. Hall v. CIA, 437 F.3d 94, 100 (D.C. Cir. 2006) ; Wildearth Guardians v. Kempthorne , 592 F.Supp.2d 18, 23 (D.D.C. 2008) (citing Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996) ).

Even though leave to supplement should be freely granted, leave should be denied when there is good reason to the contrary. Willoughby, 100 F.3d at 1003. Futility is one such example. Id. "A proposed supplement to a complaint is futile if it would not survive a motion to dismiss." Buaiz v. United States , 1:06-cv-1312, 2007 WL 666468, at *1 (D.D.C. Mar. 5, 2007) (citing Howard v. Evans, 193 F.Supp.2d 221, 226 n.2 (D.D.C. 2002) ). Thus, "in deciding whether to grant or deny a motion to supplement, the Court may consider the merits of the proposed new pleading." Burka v. Aetna Life Ins. Co., 945 F.Supp. 313, 317 (D.D.C. 1996). It is the opposing party's burden to demonstrate why leave should not be granted. LaPrade v. Abramson , 1:97-cv-10, 2006 WL 3469532, at *3 (D.D.C. Nov. 29, 2006) (citing 3 James Wm. Moore et al., Moore's Fed. Prac. § 15.15[3] (3d ed.1999))

II. Standard of Review for Motion to Dismiss Under Rule 12(b)(1)

Lack of Article III standing is a defect in subject matter jurisdiction. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541-42, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ; O'Shea v. Littleton, 414 U.S. 488, 493-95, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). "A motion to dismiss under Rule 12(b)(1) challenges the court's power to hear a case." Badgett v. District of Columbia , 925 F.Supp.2d 23, 28 (D.D.C. 2013). A Rule 12(b)(1) motion "may raise either a 'facial' or a 'factual' challenge to the non-moving party's claim of subject matter jurisdiction." Erby v. United States , 424 F.Supp.2d 180, 182 (D.D.C. 2006). When a defendant lodges a "facial" challenge to the legal adequacy of the plaintiff's jurisdictional allegations, the "court must credit the plaintiff's well-pleaded factual allegations (usually taken from the complaint, but sometimes augmented by an explanatory affidavit or other repository of uncontested facts), draw all reasonable inferences from them in [its] favor, and dispose of the challenge accordingly." Valentin v. Hosp. Bella Vista , 254 F.3d 358, 363 (1st Cir. 2001). "When challenged on the issue, the party asserting subject-matter jurisdiction bears the burden of establishing that the court does in fact have subject-matter jurisdiction over the dispute." Badgett , 925 F.Supp.2d at 28.

III. Standard of Review for Motion to Dismiss Under Rule 12(b)(6)

Rule 8 of the Federal Rules of Civil Procedure mandates that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). When a party invokes Rule 12(b)(6) to challenge a complaint for failing to state a claim for relief pursuant to Rule 8, the Court must assess the complaint to determine whether it contains sufficient facts that, when accepted as true, evidence a claim that is "plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; accord Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' " Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice." Stewart v. Nat'l Educ. Ass'n , 471 F.3d 169, 173 (D.C. Cir. 2006).

ANALYSIS

Gingold raises a plethora of arguments as to why the Foundation's various claims should be dismissed: 1) the Court lacks prudential and Article III jurisdiction; 2) the claims are time-barred; 3) the Foundation's declaratory relief count is duplicative of its breach of contract claims; 4) the Foundation fails to state a claim for breach of contract; 5) the Foundation fails to state a claim for tortious interference with contract; 6) the Foundation fails to state a claim for breach of fiduciary duty; 7) the Foundation fails to state a claim for aiding and abetting a breach of fiduciary duty; and 8) the Foundation fails to state a claim for unjust enrichment.

Concurrently, the Foundation seeks leave to supplement its complaint to reflect the Amendment to Assignment Agreements executed between the Foundation and the BRDF, changing their prior choice of law provision from New Mexico to the District of Columbia. See generally Mot. for Leave [ECF No. 29]. The Foundation asserts that such a change will serve to "simplify[ ] the resolution of the parties' litigation." Id. at 3. Gingold opposes the motion and contends that the Court should deny the plaintiff's request for a number of reasons: 1) the 2014 Assignment is "facially invalid;" 2) the District of Columbia does not recognize the "wholesale assignment of fiduciary rights"; 3) claims asserting breach of fiduciary duty are not transferrable between parties with conflicting interests; and 4) the proposed supplemental complaint fails to consider the Stipulation of Dismissal with Prejudice of Claims against Defendant Kilpatrick Townsend & Stockton LLP. See generally Gingold Opp'n [ECF No. 32]. Ultimately, Gingold's arguments amount to a multi-part "futility" objection on the basis that the proposed supplemental complaint would not survive a motion to dismiss.

As the Court is permitted to consider the merits of the proposed pleading and Gingold has already filed a motion to dismiss, which at times presents overlapping arguments, the Court will address both motions concurrently, first resolving the threshold issues of prudential and Article III standing, then moving to Gingold's Rule 12(b)(6) arguments, and finally ending with any remaining futility assertions in its analysis of the Foundation's Motion for Leave to File Supplemental Complaint. See Raytheon Co. v. Ashborn Agencies, Ltd. , 372 F.3d 451, 453 (D.C. Cir. 2004) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 96-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (Article III standing must be resolved as threshold matter)); also Cmty. First Bank v. Nat'l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994) (prudential standing is a "qualifying hurdle that plaintiffs must satisfy.").

I. Standing and The Court's Jurisdiction Over The Claims

Gingold argues that the Foundation's lawsuit is not viable because the Foundation lacks both prudential and Article III standing. Reply at 2-21 [ECF No. 31]. The Supreme Court recently addressed prudential considerations as a "branch of standing,"

not derived from Article III and "not exhaustively defined" but encompassing (we have said) at least three broad principles: "the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked."

Lexmark Intern., Inc. v. Static Control Components, Inc. , --- U.S. ----, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014) (quoting Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) ). Article III standing, on the other hand, refers to those matters that meet the "Cases" and "Controversies" requirements established in Article III, Section 2, Clause 1 of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While the Court must find Article III standing before considering the merits of any given case, "it is entirely proper to consider whether there is prudential standing while leaving the question of constitutional standing in doubt, as there is no mandated sequencing of jurisdictional issues." Grocery Mfrs. Ass'n v. E.P.A. , 693 F.3d 169, 179 (D.C. Cir. 2012) (citation and internal quotation omitted).

A. Prudential Standing

Gingold asserts that the Cobell Representatives repudiated their assignment to the BRDF when they assented to the Cobell Settlement Agreement. Reply at 7. It follows then, he argues, that the BRDF did not have any rights to ultimately assign to the Foundation and therefore the Foundation lacks prudential standing to bring any claims regarding the fee award. Id.

To repudiate a contract, a party must communicate "by word or conduct, unequivocally and positively its intention not to perform." Eastbanc, Inc. v. Georgetown Park Assocs. II, L.P. , 940 A.2d 996, 1005 (D.C. 2008). Gingold frames his argument as one based on "facial[ ] invalid[ity]," Gingold Opp'n at 2-3 [ECF No. 32], and points to Section M of the Cobell Settlement Agreement, which states:

1. No Assignment. Class Representatives represent and warrant that they have not assigned or transferred, or purported to assign or transfer, to any person or entity, any claim or any portion thereof or interest therein, including, but not limited to, any interest in the Litigation or any related action.

Settlement Agreement § M(1), Cobell , 1:96-cv-1285 (Dec. 10, 2010) [ECF No. 3660-2]. Gingold then asserts that "[b]y consenting to the terms and conditions of the Settlement Agreement, the Cobell Representatives communicated, by word or conduct, unequivocally and positively its [sic] intention not to honor the 1998 Assignment." Reply at 7 [ECF No. 31] (internal quotation marks omitted).

Section M(1), however, is limited to the assignment of "claim[s]" and does not implicate or expressly disavow the assignment of rights to legal fees. Settlement Agreement at 52, Cobell , 1:96-cv-1285 (Dec. 10, 2010) [ECF No. 3660-2]. This is further supported by the existence of a separate settlement contract that explicitly addressed legal fees. Id. Agreement on Attorneys' Fees, Expenses and Costs ("Fee Agreement") [ECF No. 3660-16]. Moreover, the Fee Agreement did not incorporate the "No Assignment" clause of the Settlement Agreement. Instead, it expressly incorporated only the "defined terms," id. at 2, and conclusively states that "[n]othing in this Fee Agreement shall affect the right of any non-party to this Fee Agreement," id. at 3.

Additionally, the Settlement Agreement includes Section M(2), establishing that "[t]he Parties understand and agree that neither this Agreement, nor the negotiations that preceded it, shall be used as evidence with respect to the claims asserted in the Litigation, the propriety of a class action, or in any other proceeding or dispute except to enforce the terms of this Agreement." Settlement Agreement at 52, Cobell , 1:96-cv-1285 (Dec. 10, 2010) ECF No. 3660-2 (emphasis supplied). Thus, Section M(2) prohibits Gingold from using any portion of the Settlement Agreement as evidence in this separate matter.

The Foundation has alleged that "[t]o facilitate repayment to the Foundation, the four named plaintiffs, including Ms. Cobell, assigned to the BRDF 'all rights to any attorney's fees and/or costs and/or expenses of the [Indian Trust Fund] Litigation ... recovered from the United States, whether pursuant to judgment or to settlement.' "

Compl. ¶ 33. The Court credits the Foundation's allegations and draws all reasonable inferences therefrom. Valentin , 254 F.3d at 363. As a result, the Court concludes that the Foundation's allegations satisfy the Court's prudential concerns and the Foundation, on the face of its allegations, is not improperly violating the "general prohibition on a litigant's raising another person's legal rights" as it may bring claims that were assigned by the Class Representatives to the BRDF and from the BRDF to the Foundation. Lexmark Intern., Inc. , 134 S.Ct. at 1386 (2014). The defendant's Motion to Dismiss is denied in this respect.

B. Article III Standing

To meet the Constitution's "Cases" and "Controversies" requirement and attain Article III standing, the Foundation needs to "demonstrate that [it] has suffered injury in fact, that the injury is fairly traceable to the actions of [the defendant], and that the injury will likely be redressed by a favorable decision." BP Energy Co. v. Fed. Energy Regulatory Comm'n , 828 F.3d 959, 963 (D.C. Cir. 2016) (citations omitted). Gingold argues that the Foundation does not have Article III standing for three reasons: 1) the allegations asserted against Gingold do not constitute "an invasion of a legally protected interest"; 2) any injury asserted by the Foundation cannot be attributed to any acts or omissions by Gingold; and 3) the Foundation's claims are not redressable by the Court. Reply at 9, 11 [ECF No. 31].

1. Injury in Fact

Gingold asserts that the Foundation's claims against him are of "no legal significance," and therefore the Foundation does not have a "legally protected interest," because the Foundation's claims are unenforceable due to Gingold's ethical obligation not to share fees with non-lawyers. Id. at 9-10.

In support of his argument, Gingold cites Boyd v. Farrin , 958 F.Supp.2d 232 (D.D.C. 2013) wherein Judge Lamberth dismissed certain claims when he held that the plaintiffs lacked standing because they did not have a "legally protected interest" in compensation from an underlying class action settlement. Boyd , however, is simply inapposite to the situation at bar. The Boyd plaintiffs were the National Black Farmers Association and its president, John Boyd. Id. at 235 Their claims, based on their dedication and hard work toward resolution of the underlying suit, "revolve[d] around the assertion, express or implicit, that defendants injured them by failing to request compensation for them from the [underlying class action] Court." Id. at 238. The court first noted that neither plaintiff qualified for compensation as a plaintiff in the underlying class action. Id. It then determined that the plaintiffs were also excluded from the settlement's attorneys' fees pool because fees awarded under fee-shifting statutes were not available to non-lawyers. Id. Without a legitimate claim for fees or damages, the court held that the plaintiffs could not show injury-in-fact and therefore lacked standing to bring claims for failure to request compensation from the underlying class action court. Id.

In contrast, here, the Foundation alleges that it advanced funds to support the Cobell litigation pursuant to a contract through which it was to be paid back from any award of costs, expenses, or fees. The Foundation does not base its claims on an assertion that the defendant should have requested attorney's fees to be paid directly to the Foundation through the Court in Cobell due to the Foundation's hard work and dedication to the cause. Rather, it asserts that 50% of any fees, costs, or expenses collected by the defendants were to be used to repay the Foundation's investment either through its contract with Gingold or in equity. Of course, the Foundation has not only brought its contract claims directly against Gingold as a party to the Grant Agreements, but also as an assignee of the Cobell Representatives.

Additionally, the District of Columbia has opined in a similar situation that even if a contract or arrangement violated the District's ethical rules against fee-splitting with nonlawyers, the court would not "bestow a windfall" on lawyers trying to void such obligations. Landise v. Mauro , 725 A.2d 445, 451-52 (D.C. 1998) ; see also Emmons v. State Bar of California , 6 Cal.App.3d 565, 86 Cal.Rptr. 367 (1970) (cited with approval by D.C. Bar Op. 329, finding that fee splitting with bar referral service was permissible because the "association seeks not individual profit but the fulfillment of public and professional objectives. It has a legitimate, nonprofit interest in making legal services more readily available to the public."). Likewise, the Court will not "bestow a windfall" on Gingold here.

The prohibition against fee-sharing is intended "to protect the lawyer's professional independence of judgment." Comment [1] to D.C. Rule 5.4. Recognizing that not all financial arrangements giving the appearance of fee-sharing compromise an attorney's judgment, District of Columbia Rule of Professional Conduct 5.4 provides several exceptions to the broad rule that "a lawyer or law firm shall not share legal fees with a nonlawyer." One of those exceptions is particularly relevant here:

(5) A lawyer may share legal fees, whether awarded by a tribunal or received in settlement of a matter, with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter and that qualifies under Section 501(c)(3) of the Internal Revenue Code.

Rule 5.4(a)(5). The D.C. Bar Committee addressed its rationale for exception (5) in its comments to the Rule:

Subparagraph (a)(5) permits a lawyer to share legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter. A lawyer may decide to contribute all or part of legal fees recovered from the opposing party to a nonprofit organization. Such a contribution may or may not involve fee-splitting, but when it does, the prospect that the organization will obtain all or part of the lawyer's fees does not inherently compromise the lawyer's professional independence, whether the lawyer is employed by the organization or was only retained or recommended by it. A lawyer who has agreed to share legal fees with such an organization remains obligated to exercise professional judgment solely in the client's best interests. Moreover, fee-splitting in these circumstances may promote the financial viability of such nonprofit organizations and facilitate their public interest mission.

Rule 5.4, Cmnt. [11]. Because neither the Foundation nor the BRDF employed, retained, or recommend Gingold, Rule 5.4(a)(5) and Comment 11 are not dispositive.

However, the Rule and its comments reflect a clear stance by the Committee that the public policy and professional independence concerns of Rule 5.4(a) are not implicated when fees are shared with a non-profit, and more explicitly, a 501(c)(3) organization.

In Ethics Opinion 329, from which exception (5) sprouted, the D.C. Bar Committee evaluated and sanctioned a similar arrangement to those of the Grant Agreements here. D.C. Bar Legal Ethics Op. 329 (2005). There, a nonprofit organization paid an attorney an annual retainer of $10,000 in exchange for a promise from the attorney that the $10,000 would be repaid from the first $10,000 the attorney received in contingent fees. Id. The Committee made clear that when the fee arrangement with the non-profit is limited to the recouping of out-of-pocket costs, and not otherwise tied to the amount of fees collected by the attorney in the representation of a particular client, the sharing of fees is ethical. Id.

On February 1, 2007, the District of Columbia Court of Appeals amended the D.C. Rules of Professional Conduct to formally incorporate the principles of Opinion 329. In doing so, the court elected to go one step further and expand upon the exception described in Opinion 329-to allow an attorney to share an unlimited amount of fees with a non-profit, un-anchored to the nonprofit's out-of-pocket expenses. Such further broadening of the fee-sharing exception suggests to the Court that while the situation at bar has not been directly addressed by the District of Columbia Court of Appeals, that court would either find the Grant Agreements at issue here to be consistent with "promot[ing] the financial viability of [ ] nonprofit organizations and facilitat[ing] their public interest mission making legal services more readily available to the public," or as discussed below, determine that the Grant Agreements are not fee-sharing agreements at all. Rule 5.4, Cmnt. [11].

Here, if the plaintiff's allegations are credited, which they must be, the Grant Agreements establish that Gingold agreed to pay the BRDF one half of any attorney's fees and/or costs and/or expenses of the Litigation until the grant is repaid in full. Compl. ¶ 65. While the Foundation did not employ, retain, or recommend Gingold, the Grant Agreements here likely did not interfere with Gingold's professional judgment in the Cobell litigation. As attorneys' fees are generally collected from the class pool, the Grant Agreements are consistent with a class action plaintiffs' attorney's incentive to maximize the value of the class claim. The larger the pool, the better result for all.

Finally, the Court will not refuse to recognize the Grant Agreements because the Agreements are akin to a lender making a loan to a law firm under an arrangement to secure that loan with part of the lawyer's contingency fees. Such arrangements have been enforced in courts around the country and indeed are often not even considered fee-sharing agreements. See, e.g., Hamilton Capital VII, LLC, I v. Khorrami, LLP , No. 650791/2015, 48 Misc.3d 1223(A), 2015 WL 4920281 (N.Y. Sup. Ct. Aug. 17, 2015) (Holding that NY Rule 5.4 does not prohibit the sharing of legal fees with a lender who has a security interest in contingency fee agreement(s)) . The Hamilton court stated:

Courts have expressly permitted law firms to fund themselves in this manner. Providing law firms access to investment capital where the investors are effectively betting on the success of the firm promotes the sound public policy of making justice accessible to all, regardless of wealth. Modern litigation is expensive, and deep pocketed wrongdoers can deter lawsuits from being filed if a plaintiff has no means of financing her or his case. Permitting investors to fund firms by lending money secured by the firm's accounts receivable helps provide victims their day in court. This laudable goal would be undermined if the Credit Agreement were held to be unenforceable. The court will not do so.

Id. The Court agrees and holds that the Foundation has properly plead an injury-in-fact and that its claims are not barred by ethical considerations.

a. The Plain Language of the Assignment

In a separate section under the umbrella of standing, Gingold argues that the plain language of the Assignment Agreement between the Cobell Class Representatives and the BRDF does not generate standing for the Foundation. He argues that the Class Representatives did not assign any breach of fiduciary duty claims to the BRDF and therefore the BRDF cannot assign those claims to the Foundation to bring here. Gingold states that the "assignments between those four individuals and [the] BRDF are limited in nature and scope and do not purport to assign even the entirety of their right to attorneys' fees to [the] BRDF." Mot. to Dismiss at 21 [ECF No. 20]. Rather, he argues, the Class Representatives limited their assignments as individuals to the BRDF to certain attorneys' fees that they recovered from the United States as a result of the Cobell Litigation. Id. at 22. Again, the Assignment states in total as follows:

This assignment is made between the Blackfeet Reservation Development Fund ("Fund") and Elouise Pepion Cobell, Earl Old Person, Thomas Maulson, and James Louis Larose.

Assignment [ECF No. 29-3] (emphasis supplied).

Contrary to Gingold's interpretation of this language, the Court finds that the inclusion of the words "all rights" encompasses a breach of fiduciary duty claim. "All rights" broadens the Assignment from only attorneys' fees to all causes of action related to those fees. Gingold's reading of the assignment essentially ignores the inclusion of that phrase, something the Court will not do. GenopsGroup LLC v. Pub. House Inv. LLC , 67 F.Supp.3d 338, 343 (D.D.C. 2014) ("When interpreting a contract, the Court must 'strive to give reasonable effect to all its parts and eschew an interpretation that would render part of it meaningless or incompatible with the contract as a whole.' ") (quoting District of Columbia v. Young , 39 A.3d 36, 40 (D.C. 2012) ). The Court finds that the Foundation has standing to assert its claims and denies the defendant's motion in this respect.

2. Causation

Gingold also asserts that the Foundation fails to plead adequate facts to show that its injuries were "caused by" or "fairly traceable" to his actions. Reply at 11 [ECF No. 31]. Gingold does not cite any case law in support of his two paragraph argument.

The Foundation alleges that Gingold signed the Grant Agreements as "lead counsel" after "extensive negotiations ... to ensure that reimbursement of the Foundation be guaranteed as long as the plaintiffs or their attorneys received a sufficient award of attorney's fees or expenses, or costs." Compl. ¶¶ 34-35. The Foundation also alleges that each of the seven Grant Agreements are valid and binding contracts among the Foundation, the BRDF, and Gingold. Id. ¶ 80. The Foundation goes on to allege that on July 27, 2011, the Court issued an order granting final approval of the Cobell settlement, including allocation of $85.4 million of the $99 million awarded in attorneys' fees, that the $85.4 million was then distributed to class counsel including defendant Gingold, that Gingold refused to recognize any obligation to reimburse the grants from the attorneys' fee award, and finally, that Gingold's refusal to pay any funds to the BRDF or the Foundation, directly or as an assignee of the BRDF, is a breach of the Grant Agreements which has damaged the Foundation. Id. ¶¶ 57-58, 62, 84-85, 88-90. The Court finds that the Foundation has sufficiently alleged injury caused by Gingold.

3. Redressability

Gingold asserts broadly that "for this Court to enforce the underlying action, it would have to invalidate one of the 'material terms' in the Settlement Agreement and concomitantly, undermine the Fee Agreement, the [Claims Resolution Act of 2010], and its own orders rendered during the Fairness Hearing and in the Final Order." Reply at 21 [ECF No. 31]. It follows, Gingold argues, that the Court can therefore not redress the Foundation's alleged injury, or in other words, the Court cannot enforce equitable relief or damages. The Court denies Gingold's motion in this respect for the following reasons.

"Redressability focuses on the requested relief." Nat'l Wildlife Fed'n v. U.S. Army Corps of Engineers , 170 F.Supp.3d 6, 14 (D.D.C. 2016) (citation omitted). The Foundation has requested monetary damages in six counts and declaratory relief in one. Of those six counts requesting monetary damages, Count II, breach of contract, is brought by the Foundation directly as an intended beneficiary of the Grant Agreements. Count III, breach of contract, Count IV, intentional interference with contractual relations, Count V, breach of fiduciary duty, and Count VI, aiding and abetting breach of fiduciary duty, are brought by the Foundation in its capacity as an assignee of the Cobell plaintiffs. The Foundation brings Count VII, unjust enrichment, in equity and in the alternative to Counts II and III.

Gingold does not address Count II, breach of contract, in his argument and the Court is not presented with any reason why a jury would not be able to award monetary relief based on contract. Additionally, as the Court made clear above, the Settlement Agreement's "No Assignment clause," Section M(1), is limited to the assignment of "claims" and does not implicate legal fees which were addressed in a separate Fee Agreement. Settlement Agreement at 52, Cobell , 1:96-cv-1285 (Dec. 10, 2010) [ECF No. 3660-2]; Fee Agreement [ECF No. 3660-16]. Thus, contrary to Gingold's argument, the Court may award damages or equitable relief for the plaintiff without "undermining" or "invalidating" prior orders, agreements, or law with respect to any claims that derive from assignments from the Cobell Representatives.

II. Timeliness of The Foundation's Claims

Gingold also raises a statute of limitations argument by adopting and incorporating prior defendant Kilpatrick Townsend & Stockton, LLP's argument that the Foundation's claims are "time-barred because the three-year statute of limitations began running no later than early 2006, when part payment was made on the disputed debt." Mot. to Dismiss at 2, n.2 [ECF No. 20]. For the reasons that follow the Court denies Gingold's Motion in this respect.

When the Court hears a case under diversity jurisdiction it applies the choice-of-law rules of the forum state, here, the District of Columbia. Seed Co. Ltd. v. Westerman , 832 F.3d 325, 331 (D.C. Cir. 2016) (citing A.I. Trade Fin., Inc. v. Petra Int'l Banking Corp. , 62 F.3d 1454, 1458 (D.C. Cir. 1995) ). The District of Columbia's choice-of-law rules then require the Court to apply the District's own statutes of limitation. Id. ; see also Huang v. D'Albora , 644 A.2d 1, 4 (D.C. 1994) ("A limitation on the time of suit is procedural and is governed by the law of the forum.") (citation omitted). Section 12-301 of the D.C. Code establishes a three-year statute of limitations for contract and tort claims. DC ST § 12-301(7) - (8).

In an action for breach of contract, a cause of action accrues and the statute of limitations begins to run at the time of the breach. Medhin v. Hailu , 26 A.3d 307, 310 (D.C. 2011). A contract is breached when a party, who otherwise has no excuse, fails to perform all or any part of what it promised. Id. Gingold argues that the limitations period began running at the latest when he last made partial payment to the Foundation in 2005 or, alternatively after each fee award. Mot. to Dismiss at 2, n.2 [ECF No. 20]; Reply at 22-23 [ECF No. 31].

On December 19, 2005, Judge Lamberth granted the Cobell Class' petition for interim attorneys' fees and expenses. Cobell v. Norton, 407 F.Supp.2d 140, 177 (D.D.C. 2005). The Court awarded the Cobell Class $7,066,471.05, with $4,534,275.97 representing attorneys' fees and $2,532,195.08 in expenses. Id. The Foundation alleges that after some back and forth between Gingold and the Foundation, Gingold agreed that "the 'broad language' of the grant agreements entitled the Foundation to repayment of its pro rata share of up to one-half of the entire $7,066,471.05 interim award, including the sum allocated to attorneys' fees." Compl. ¶¶ 42-44. Ultimately, after additional negotiation, Gingold repaid the Foundation $1,884,392.28, representing the Foundation's pro rata share of the interim award, but only for the initial $2 million grant. Id. ¶ 45. This left the current outstanding balance of $4,540,607.72. Id. ¶ 46. The Complaint does not include the date upon which this agreement was reached or when payment was made.

Nonetheless, the Foundation counters and argues that while it did receive partial payment from the interim award discussed above, each time Gingold failed to repay the Foundation, a "fresh breach of the grant agreements and a fresh injury to the Foundation occurs, giving rise to a new claim by the Foundation, and causing the limitations period to begin anew." Opp'n at 8-9 [ECF No. 28]. The Foundation is correct.

It is settled law in the District of Columbia that where a contract requires payment in distinct intervals or installments, any wrongful act or breach of that intermittent duty gives rise to a separate cause of action and therefore a separate limitations period. Klayman v. Barmak , 634 F.Supp.2d 56, 64 (D.D.C. 2009) ; Union Labor Life Ins. Co. v. Sheet Metal Workers Nat. Health Plan , 1991 WL 212232, at *5 (D.D.C. Sept. 30, 1991) ; Bembery v. District of Columbia , 758 A.2d 518, 520 (D.C. 2000) ; Keefe Co. v. Americable Int'l, Inc. , 755 A.2d 469, 472 (D.C. 2000). A contract need not be labeled or otherwise designated as an "installment" contract for the principle to apply. The court looks to the "nature of the obligation." Keefe Co. , 755 A.2d at 474 ("applying installment obligation rule to contract which created 'no fixed amount to be paid out over time ... but rather a continuing obligation to pay a portion of the profits and royalties on [the song the plaintiffs sold thirty years prior] as the recording gets used over time' "), as amended on denial of reh'g and reh'g en banc (June 15, 1998) cert. denied, 525 U.S. 983 (1998)) (citation omitted). Here, the Grant Agreements each state "one-half of any attorney's fees and/or costs and/or expenses of the Litigation ... shall be paid to the Grantee, until the grant is repaid in full ." Compl. ¶¶ 4, 34, Ex.'s A, B (emphasis supplied). Thus, any time the Court awarded fees, costs, or expenses, half of that value was to be repaid to the Foundation until the grants were repaid. While these payments are not fixed in amount or regularity, the duty to make payment nonetheless arises each time funds are received and is not discharged until all funds supplied are repaid.

On July 27, 2011, the Court issued an order granting final approval of the Cobell Settlement, allocating $85.4 million of the $99 million in attorneys' fees to the defendant and his co-counsel. Compl. ¶ 57. The Foundation alleges that Gingold and his co-counsel received their fees between November 7, 2012 and December 4, 2012. Id. ¶ 58. After correspondence between the Foundation and Gingold, Gingold refused to recognize any obligation on his part to pay any of the attorneys' fees award to the Foundation. Id. ¶ 62. The Foundation then brought this suit on July 16, 2013, less than two years after the Court's final approval of the fee award and within nine months of defendant's receipt of attorneys' fees. See generally Id.

Of course, the defendant's reliance on the statute of limitations is an affirmative defense. Smith v. Washington Post Co. , 962 F.Supp.2d 79, 86 (D.D.C. 2013). In light of that, courts in this Circuit have held numerous times that dismissal on statute of limitations grounds based only on the face of the complaint is disfavored. Id. Dismissal is proper only if the allegations in the complaint conclusively time-bar the suit. Id.

Here, the allegations in the Complaint do not conclusively time-bar the suit. While the Foundation agreed to accept less than what it arguably was entitled to after the $7,066,471.05 interim award-more than three years before it filed suit-it also alleges that Gingold failed to pay the remainder of the outstanding balance on the grants after the Court approved Gingold's fee award in 2011 or actual payment of that award in 2012. See Compl. ¶¶ 40-63. That award and its payment both occurred within three years of the date the Foundation filed this suit. Construing all reasonable inferences in favor of the plaintiff, the Foundation has alleged that the defendant breached the terms of the Grant Agreements and wrongfully failed to repay the grants on at least one distinct occasion in the three years preceding the Complaint. The defendant's motion is denied in this respect.

III. Rule 12(b)(6) Challenges

The Court now turns to Gingold's assertions that the Foundation has failed to properly state its various claims.

A. Failure to State a Claim: Counts II and III-Breach of Contract

Gingold contends that the Foundation failed to state its breach of contract claims because: 1) he is not a party to the Grant Agreements; 2) the Foundation provided no consideration for his acknowledgments; 3) an "acknowledgment" does not equate to a guarantee; and 4) even if contracts were created that bound him, conditions precedent have not been satisfied. Mot. to Dismiss at 9-19 [ECF No. 20]. "To state a claim for breach of contract so as to survive a Rule 12(b)(6) motion to dismiss, it is enough for the plaintiff to describe the terms of the alleged contract and the nature of the defendant's breach." Francis v. Rehman , 110 A.3d 615, 620 (D.C. 2015) (citing Nattah v. Bush, 605 F.3d 1052, 1058 (D.C. Cir. 2010) ). "A valid and enforceable contract requires: 1) the express intention of the parties to be bound; 2) agreement to all material terms, and 3) the assumption of mutual obligations." Millennium Square Residential Ass'n v. 2200 M St. LLC , 952 F.Supp.2d 234, 247 (D.D.C. 2013).

Because Gingold's first three challenges to the Foundation's contract claims focus on whether a valid contract has been formed, the Court will address these together.

1. Contract Interpretation and Formation

The parties do not dispute that the interpretation of the Grant Agreements is governed by District of Columbia law, which dictates that both the interpretation of an unambiguous contract and the determination of whether a contract is ambiguous are questions of law. Abdelrhman v. Ackerman , 76 A.3d 883, 887 (D.C. 2013). Likewise, "[t]he determination whether an enforceable contract exists, when based on the contract documents, is a question of law." Hajjar-Nejad v. George Washington Univ. , 37 F.Supp.3d 90, 116 (D.D.C. 2014) (citations omitted). The District of Columbia

has long employed an objective law of contracts, meaning that the written language embodying the terms of an agreement will govern the rights and liabilities of the parties [regardless] of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite undertaking, or unless there is fraud, duress, or mutual mistake.

Abdelrhman , 76 A.3d at 888 (internal quotation marks and citations omitted). Of course, "[a] contract is not rendered ambiguous merely because the parties disagree over its proper interpretation." Parker v. U.S. Trust Co. , 30 A.3d 147, 150 (D.C. 2011) (citation omitted).

Under the District's "objective" theory of contract interpretation, extrinsic evidence may be considered in two scenarios. First, in limited circumstances, extrinsic evidence may be evaluated in "determining whether objectively the meaning of the contract language is not susceptible of a clear and definite undertaking." N.W. v. District of Columbia , 107 F.Supp.3d 141, 147 (D.D.C. 2015) (quoting Abdelrhman , 76 A.3d at 889 (D.C. 2013) ). The District of Columbia Court of Appeals has recognized that it has "not been a model of clarity" when explaining the limits of such an inquiry, so the precise scope of this exception is, as yet, unknown. Abdelrhman , 76 A.3d at 888 (D.C. 2013). The court, however, has noted that a subset of its cases allow consideration of extrinsic evidence illuminating "all the circumstances" before, contemporaneous with, and after the making of an agreement. Id. at 888-89. Those circumstances include, "evidence of the general situation, the relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of trade, and the course of dealing between the parties." Id. at 889. Extrinsic evidence may be a "useful aid[ ] in determining whether objectively the meaning of the contract language 'is not susceptible of a clear and definite undertaking.' " Id. (citations omitted). Of course, "[i]t is sometimes said that extrinsic evidence cannot change the plain meaning of a writing, but meaning can almost never be plain except in a context." Restatement (Second) of Contracts § 212 (1981) cmnt. b. Second, and more traditionally, extrinsic evidence may be used to determine the parties' subjective intent after a document has been deemed ambiguous. N.W. v. District of Columbia , 107 F.Supp.3d at 147.

As explained below, the Court concludes that extrinsic evidence is required to determine whether, objectively, the meaning of the contract language is "susceptible of a clear and definite undertaking." Id. In doing so, the Court denies Gingold's motion to dismiss as it cannot determine as a matter of law that the Foundation would not be entitled to relief under any facts or theories supported by the allegations in the Complaint. Galderma Labs., L.P. v. Dimensional Healthcare, Inc. , 4:06-cv-822-Y, 2007 WL 1703445, at *3 (N.D. Tex. June 13, 2007) ("The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim. Thus, the Court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint.") (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002) ).

The Grant Agreements contain three main headings, the third of which is titled "Grant Conditions." Compl. Ex. A. at 1 [ECF No. 1-2]. Within that heading, the Grant Agreements contain a subheading titled "Reversion of Grant Funds." Id. at 2. The fifth and sixth bullet points under "Reversion of Grant Funds" contain conditions expressly directed to Gingold. Id. at 3. The parties disagree on the meaning of the term "acknowledges" within the sixth condition. The condition states in full:

By his signature, Dennis M. Gingold, their lead counsel, acknowledges that one-half of any attorney's fees and/or costs and/or expenses of the Litigation recovered from the United States, by judgment or settlement, shall be paid to the Grantee, until the grant is repaid in full.

Id. at 3 (emphasis added) ("Acknowledgment Condition").

First, both parties maintain that the provision is unambiguous and point to dueling dictionary definitions of the disputed term. Gingold argues that the term "acknowledge" is not a synonym for "agree" or "promise" or "guarantee," but rather should be read to mean, as the first entry for "acknowledge" in Black's Law Dictionary defines it, "[t]o recognize (something) as being factual or valid." BLACK'S LAW DICTIONARY (10th ed. 2014). The Foundation, on the other hand, argues that the term has an accepted alternative definition, the second entry in Black's Law Dictionary , that defines acknowledge as "[t]o show that one accepts responsibility for." Id. Gingold responds that the latter definition should be limited to the paternity context, as that is the illustration used by Black's Law Dictionary for that definition.

In addition to the definitions given in Black's , the American Heritage Dictionary gives alternative definitions including "[t]o admit the existence or truth of" and "[t]o accept or certify as legally binding." AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2015). The Oxford English Dictionary provides a definition it labels as "legal" which defines acknowledge to mean "[t]o own as genuine, or of legal force or validity; to own, avow, or assent, in legal form, to (an act, document, signature, etc.) so as to give it validity." OXFORD ENGLISH DICTIONARY (3d ed. 2009). Finally, Merriam-Webster's Collegiate Dictionary defines it as "to recognize the rights, authority, or status of," or "to disclose knowledge of or agreement with." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 10 (10th ed. 1998).

All of this to say that while it is helpful for courts to turn to dictionaries to aid in interpreting a disputed term, ultimately the construction of a term will depend on the context in which the term is used "taking into account the contract as a whole." Steele Found., Inc. v. Clark Const. Group, Inc. , 937 A.2d 148, 154 (D.C. 2007) ; see also MCI Telecomm. Corp. v. AT & T Co. , 512 U.S. 218, 226, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994) (noting that the Court does not rely exclusively on dictionary definitions, but also on contextual indications).

The Grant Agreements provide some context clues. As described above, the Acknowledgment Condition falls under the main heading of "Grant Conditions" and under the subheading of "Reversion of Grant Funds." If the Acknowledgment Condition merely meant that Gingold "recognizes the agreement as valid," the paragraph would serve little to no purpose as a "Grant Condition." N.W. v. District of Columbia , 107 F.Supp.3d at 148 (D.D.C. 2015) (to determine what a reasonable person in the position of the parties would have thought the disputed language meant the Court "must consider the agreement as a whole, giving a reasonable, lawful, and effective meaning to all its terms.") (citation and quotations omitted); United States v. Volvo Powertrain Corp. , 758 F.3d 330, 340 (D.C. Cir. 2014), cert. denied, --- U.S. ----, 135 S.Ct. 2833,