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MICHELE POMMIER MODELS, INC. v. MEN WOMEN NY MODEL

July 8, 1998

MICHELE POMMIER MODELS, INC., Plaintiff, against MEN WOMEN NY MODEL MANAGEMENT, INC., Defendant. MEN WOMEN NY MODEL MANAGEMENT, INC., Third Party Plaintiff, -against- ELSA BENITEZ YANEZ and SAMUEL BURSTYN, Third Party Defendants.


The opinion of the court was delivered by: SCHEINDLIN

OPINION AND ORDER

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiff Michele Pommier Models, Inc. ("Pommier"), a Florida-based modeling agency, filed this action alleging that defendant Men Women NY Model Management, Inc. ("WMM") interfered with Pommier's exclusive model representation contract with Elsa Benitez Yanez ("Elsa"), an internationally known fashion model. Pommier asserts claims for (1) tortious interference with contract, (2) unfair competition, and (3) unjust enrichment, and seeks to recover exemplary and punitive damages. This Court previously denied WMM's 12(b)(6) motion, Michele Pommier Models, Inc. v. Men Women NY Model Management, Inc., 1997 U.S. Dist. LEXIS 18294, 97 Civ. 6837, 1997 WL 724575 (S.D.N.Y. Nov. 18, 1997), and denied Pommier's motion for a preliminary injunction. See Transcript of Proceedings of September 25, 1997. Defendant now moves for summary judgment on the Amended Complaint, pursuant to Fed. R. Civ. P. 56. Defendant's motion is granted with respect to all three of Pommier's claims.

 I. Summary of Facts

 This action arises out of two model management services contracts: a 1996 agency agreement between Pommier and Elsa (the "Florida contract") and a 1997 settlement agreement of an action between Pommier, Elsa, and Elite Model Management, Inc. ("Elite"), a New York modeling agency (the "New York contract").

 A. The Florida Contract

 On May 8, 1996, Pommier signed Elsa to a five-year exclusive agency contract, which provided that Pommier would act as Elsa's exclusive representative in the modeling industry and would receive a 25 percent commission on Elsa's gross earnings as a model. See Affidavit of Gerald E. Singleton ("Singleton Aff. 1"), attorney for WMM, dated April 22, 1998, Exh. 1 at PP 7, 10 (Pommier-Elsa contract). In addition, the contract included a restrictive covenant, which prohibited Elsa from employing any other representatives, managers, or agents without prior written consent from Pommier, and from accepting any modeling engagements except those booked by Pommier. Id. at PP 5(a), 5(b). On May 31, 1996, the contract was amended, reducing Pommier's commission to the industry standard of 20 percent. Id. at P 7 addendum; Affidavit of Joseph Hunter, President of International Model Managers Association, dated August 27, 1997, at P 4(c). While represented by Pommier, Elsa quickly became an extraordinarily successful model. As a result, she decided that she should be managed by a larger agency in New York City, the center of the U.S. modeling industry. See Third Party Complaint (filed by WMM against Elsa Benitez, seeking attorney's fees), Exh. 2 (letter from Elsa to Michele Pommier, President of Pommier Models).

 B. The New York Contract

 On April 4, 1997, Elsa informed Pommier that she had agreed to be represented by Elite in New York, and that Elite was willing to enter into a commission-sharing agreement with Pommier. Id. In response, Pommier filed an action in this Court against Elite, and obtained a temporary restraining order prohibiting Elite from representing Elsa. On May 16, 1997, Pommier, Elite, and Elsa entered into an oral settlement agreement which provided that Elite would pay Pommier a fixed percentage on the bookings it arranged for Elsa over a six year period. Furthermore, the agreement stated that if Elsa left Elite, any future modeling agency would be bound to compensate Pommier under the terms of the settlement agreement. Amended Complaint, Exh. 2 (transcript of court proceedings, May 16, 1997). Less than three weeks later, on June 6, 1997, Elite and Elsa notified the Court that they would not abide by the terms of the oral agreement. See Singleton Aff. 1, Exh. C (transcript of court proceedings, June 10, 1997).

 C. Action for Nullification of the Florida Contract

 After repudiating the New York contract, Elsa filed an action on June 10, 1997 in Dade County, Florida, in which she sought to nullify her 1996 exclusive agency contract with Pommier. At about that time, Elsa began to refuse Pommier's bookings. See Affidavit of Gerald E. Singleton ("Singleton Aff. 2"), dated May 8, 1998, Exh. I. In a letter dated July 1, 1997, Elsa notified Pommier that she was terminating the Florida contract. Affidavit of Puaolo Buofonte, Pommier's booking agent, dated May 1, 1998, Exh. 1. Three weeks later, the Dade County court granted an order enjoining Pommier from representing Elsa and from holding itself out as Elsa's agent. Singleton Aff. 1, Exh. D (order of Dade County court). The court, however, reserved decision on whether the restrictive covenant, which prevented Elsa from hiring another agent, was enforceable. *fn1" In late November 1997, Pommier, Elite, and Elsa entered into a written settlement agreement releasing the parties from all contracts, as well as all claims each had or could have asserted against the others. See Defendant's Memorandum in Support of Motion for Summary Judgment ("Def.'s Mem.") at 5.

 D. WMM's Representation of Elsa

 In June or early July 1997, Elsa's attorney, Samuel Burstyn ("Burstyn"), called Paul Rowland ("Rowland"), president of WMM, to ask whether WMM would be interested in representing Elsa. Affidavit of Stuart Abrams ("Abrams Aff."), Pommier's attorney, dated May 1, 1998, Exh. 7 at 30, 47 (Deposition of Paul Rowland); Affidavit of Paul Rowland ("Rowland Aff."), dated September 19, 1997, at PP 5, 6. Rowland responded that WMM would be interested. Abrams Aff., Exh. 7 at 35-38. This was the full extent of their conversation. Id. On July 8, 1997, Rowland and Burstyn reached an oral agreement that WMM would represent Elsa at a commission of 12 percent; the agreement was confirmed by fax later that day. Id. at Exh. 8. Less than a week later, on July 14, Elsa performed an editorial photo shoot for American Vogue Magazine, which was booked by WMM. Id. at Exh. 10. Shortly thereafter, WMM stopped accepting bookings for Elsa, because it became concerned that Pommier would sue. On September 2, after Elsa agreed to pay one-half of the legal fees and expenses arising from any litigation initiated by Pommier, WMM resumed booking Elsa. Rowland Aff. at P 7; Singleton Aff. 1, Exh. 4; Abrams Aff., Exh. 15.

 E. The Wesley Jessen Contact Lens Contract

 On June 26, 1997, one week before Elsa gave Pommier written notice that she was terminating the Florida contract, will Steere of Ruder Finn, an advertising agency, called Pommier to inquire about Elsa's availability for an upcoming international contact lens campaign for Wesley Jessen products. That same day, Steere faxed Pommier an outline of the services needed, the anticipated extent of the ad campaign, and a request for a fee quote. See Affidavit of William Steere III ("Steere Aff."), Executive Vice President of Ruder Finn, dated April 22, 1998 at P 3 and Exh. A (fax from Steere to Buofonte). When Steere later called Pommier to schedule an interview between Elsa and Wesley Jessen, he received no response. Steere then learned that WMM was representing Elsa, and on July 25, 1997, he faxed WMM a similar proposal for the Wesley Jessen campaign with a request for fee quotes. Id. at ...


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