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United States District Court, S.D. New York

June 29, 2004.

WILLIAM WEBB, Plaintiff,

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


William Webb ("Webb") brought suit against defendants Robert Lewis Rosen Associates, Ltd. ("RLR"), and Robert Rosen ("Rosen"), RLR's president and sole owner, raising those counterclaims found to be non-arbitrable by Arbitrator Howard C. Edelman ("Edelman"). This Court dismissed the majority of Webb's claims on summary judgment, including all claims against Rosen, in an Opinion and Order dated December 22, 2003, leaving only Webb's equitable*fn1 claims for unjust enrichment and breach of the faithless servant doctrine, stemming from RLR's alleged disloyalty in negotiating the 1996 FOX and 1997 Madison Square Garden ("MSG") contracts. Webb seeks $281,600.50 plus pre-judgment interest, dating from September 1, 1998, to account for the alleged disloyalty he suffered at the hands of RLR. The lawsuit was sub judice following summation on April 14, 2004, and the receipt of post-trial memoranda on May 11, 2004. For the following reasons, Webb's Claims for breach of the faithless servant doctrine and unjust enrichment are denied.


  Webb is a well-known director of televised sporting events, who began in the industry in the 1970s. (Transcript ("Tr.") at 34:10-17.) Until 1986, Webb had never utilized the services of an agent. (Id. at 39:5-6.) Webb decided to hire RLR, and in particular Robert Rosen because "he had a good name in the industry, he was a good agent." (Id. at 39:2-4.) On October 7, 1986, Webb signed a letter agreement ("Agreement") with RLR, which enabled RLR to serve as Webb's "sole and exclusive personal manager, representative and advisor for the purpose of supervising and guiding your professional career in the `Entertainment Field' . . ." (Pl. Exh. 1.) While the Agreement prohibits Webb from "engag[ing] any other individual or entity as [his] personal manager," it permits him to "engage theatrical agents and employment agencies for the purpose of obtaining employment" after "consult[ation] with us with respect to any such agents or agencies . . ." (Id.) In the Agreement, Webb "acknowledge[s] that [RLR is] not engaged hereunder for the purpose of soliciting or providing employment . . ." (Id.) The Agreement expressly states that RLR's "services to [Webb] are not exclusive to [him] and [RLR] shall have the right to perform the same or similar services for others . . ." (Id.) Rosen concedes, however, that this language did not grant RLR the right to represent two individuals seeking the same position. (Tr. at 317:14-22.) Further, the Agreement mandates that Webb remit ten percent of all gross earnings to RLR, for any contracts, agreements, or engagements entered into during the term of the Agreement. (Id.)

  After the Agreement terminated in 1990, during an interim period from October 1990 through June 1997, despite the absence of a further written agreement, RLR continued to provide the same services to Webb as it had provided under the original Agreement. (Tr. at 305:23-306:13.) During this interim period, RLR collected ten percent of Webb's earnings on contracts that RLR negotiated on Webb's behalf. (Id. at 304:4-11.) When this oral period terminated in 1997, Webb signed a renewal contract with RLR, under the same terms as the original Agreement, formally extending the relationship until October 12, 2001. (Def. Exh. B).

  A. Alleged Disloyalty With Regard to 1996 FOX Contract

  According to Webb, in mid July 1995, while Webb was working at ABC, John Filippelli ("Filippelli"), the individual who was sure to be named the coordinating producer of FOX baseball, directly under Ed Goren ("Goren"), the executive producer, should FOX receive the rights to Major League Baseball ("MLB"), approached Webb and "asked me if I wanted to do the A game*fn2 with him." (Tr. at 46:16-20.) Filippelli made clear, however, that at this point, his interest in Webb "was [] hypothetical . . . there were no rights, no rights awarded yet." (Tr. at 188:7-9.) Webb had worked with Filippelli at NBC in 1979, and had worked on Super Bowl XIII with him as well, but had not been in contact with him in the recent years. (Id. at 46:22-25.)*fn3 FOX received the rights to MLB in October 1995. (Id. at 51:16-17.)

  Apparently, in late October 1995, in the first conversation that Filippelli had with Goren concerning hiring for the A game director position, when Filippelli "brought up Bill Webb," Goren "brought up Bill Fishman." (Tr. at 106:22-24; 193:20-22; 246:12-20; 248:17-19; 249:3-6.) In response to Filippelli's interest in Webb, Goren explained that, "I don't see it." (Id. at 274:10-11.) Webb testified that it was Filippelli's understanding through conversations with Goren that "we have a chance of getting Robert Fishman." (Id. at 107:19-22; 194:5-6.) Goren's interest in Fishman "stunned [Filippelli], because [he] didn't expect it and . . . for as much as [he] respect[ed] Fishman, [he] didn't see him as the guy in the package." (Id. at 194:21-23.) Further, there were serious questions about Fishman's availability as he was then under contract with CBS, making significantly more than FOX was willing to pay, and could not likely work for a competing network. (Id. at 332:21-338:10; 339:12-340:25; 366:11-12.)*fn4 Goren testified*fn5 that he never truly pursued Fishman (Ed Goren Deposition ("Goren Dep.") at 15:2) because he "never believed that [Fishman] was available,*fn6 but as a courtesy to Bob [Fishman], who is also a friend, [he] certainly had discussions with him." (Id. at 14:10-12.)

  Goren testified that he discussed Fishman's unavailability with Rosen. (Goren Dep. at 53:23-54:3.) Rosen confirmed that when he spoke to Goren about the A game position, Rosen explained that "Fishman was unavailable and under contract to CBS." (Tr. at 357:21-22.) In November 1995, although Goren was well aware that Fishman was likely unavailable, he still hesitated to consider Webb. (Id. at 275:12-16.) According to Rosen, Goren told him that "Webb will certainly have a place here, but I don't know whether he is going to have the A position or the B position," (Id. at 427:6-8.) Filippelli "did relay to Bill [Webb] that there was a certain, there was uncertainty on the part of Mr. Goren as to if Bill [Webb] would even be in the package . . ." (Id. at 251:9-12.) Filippelli, who had already "personally committed to Mr. Webb" "felt that [he] was caught between a rock and a hard place." (Id. at 252:7-8.)

  The above testimony to the contrary, Filippelli recalled that in the middle of November 1995, Rosen called him to see "how [he] would [] like to have Bob Fishman." (Tr. at 195:5-8.) Filippelli remembered two other conversations with Rosen in which Rosen promoted Fishman. (Id. at 207:14-208:6.) In each conversation, Filippelli recalled that Rosen conveyed that "Billy Webb is a terrific talent, good guy, great director, and he should be in the package." (Id. at 208:4-6.) While Rosen did not reference clients' names with regard to specific positions, and "[t]here was no mention of the B package" (id. at 252:24), Filippelli interpreted Rosen to be suggesting that Webb "should be one of the directors, but not the A game director." (Id. at 208:16-21.)*fn7 However, Filippelli admitted that Rosen never compared the talents of Webb and Fishman and "was complimentary of Bill [Webb], Bill's talent . . ." (Id. at 211:3-11.)*fn8 On the other hand, Rosen denied ever speaking to Filippelli in 1995 about Webb. (Id. at 360:11-12.) Rather, Rosen explained that before FOX received the rights to MLB, he positioned Webb, and only Webb, for the A director position with all of the major networks.*fn9 "He was the only candidate that we represented for the position." (Id. at 349:23-24.) Rosen also explained that "had such situation arisen where there were two directors of equal talent, which is highly unlikely in the world of televised [] baseball, hypothetically had that been the case, I would have discussed the situation with each one of them, and told them, apprised them of that. But the fact of the matter is there was nobody in my opinion that was anywhere near the equal of Bill Webb to be qualified for that position; something that I repeated over and over and over again . . ." (Id. at 367:14-22.) Similarly, Goren did not recall RLR ever pushing him to select Fishman over Webb. (Goren Dep. at 20:5-7.)

  In order to position Webb for the A director position at FOX, before FOX even received the rights, Rosen wrote a letter, dated October 17, 1995, to Ed Goren, presenting several clients "that I wish you would consider for [various positions in] baseball." (Pl. Exh. 13.) In the letter, Rosen discussed, among others, both Webb and Fishman. However, in the bare paragraph describing Fishman, which was totally devoid of any accolades, Rosen explicitly noted that "I rather doubt CBS would let him escape" (id.), whereby underscoring Fishman's unavailability. On the other hand, in the paragraph describing Webb, the longest of any in the letter, Rosen explained that "[o]ur contract with ABC gives him an out if ABC loses baseball," and described Webb as "the finest baseball director in America today." (Id.) Rosen only included Fishman in order to "show . . . my experience in baseball broadcasts and telecasts" (Tr. at 420:3-4). In both Rosen's and Goren's opinion, the letter only presented one viable candidate for the A position — Webb. (Id. at 417:19-21; Goren Dep. at 36:21-22.) In order to further promote Webb, Rosen "had numerous conversations with Ed Goren," spoke to a client named Tim McCarver ("McCarver"), who had a "strong relationship" with Goren, and also called Mike Pearl ("Pearl"), another client who had worked at CBS with Goren and "was a good friend of Goren's." (Tr. at 422:3-17.)

  Webb testified that in October or November 1995, Filippelli called him, "very, very irate, extremely pissed off" (Tr. at 52:10-18), and asked "[w]hat the fuck is your agent doing? I said: What do you mean? He said: He keeps pushing Fishman on me. Tell him to stop this . . . Talk to your agent and tell him to stop." (Id. at 52:24-53:2.)*fn10 Webb admitted that Filippelli never stated that Rosen had specifically suggested that Webb direct the B game. (Id. at 113:5-6.) Webb then confronted Rosen by telephone, and Rosen denied that he was pushing Fishman. (Id. at 114:22-25.) Webb testified, however, that Rosen said that [t]he way it looks now, you will be lucky to do the B, C, or D game." (Id. at 53:3-9.)*fn11 Although Rosen firmly denies making such a statement. (id. at 426:16-18.), Rosen explained that he knew that FOX was seriously considering someone else for the A position, possibly Jim Lynch ("Lynch"), who was not a client of RLR's. (Id. at 364:3-7; 428:9-12.) Webb testified that he "gave [Rosen] the benefit of the doubt. I had to. He was loyal to me since 1986." (Id. at 54:17-18.) Soon thereafter, Goren instructed Filippelli to hire Webb. (Id. at 201:19-23.) Webb received the A game position a few days later. (Id. at 54:20; 126:14-20.) Webb then utilized Rosen's services to negotiate the FOX contract. (Id. at 115:21-23.)

  Despite having worked side by side with Webb for several years (Tr. at 127:21-25), Filippelli did not mention Rosen's alleged disloyalty until the two drove together from Los Angeles to San Diego in 1998. During the drive, after Webb noted that Rosen claimed responsibility for getting Webb the FOX job, Filippelli said:

let me explain to you what really transpired in 1995. It was myself and Goren and Rosen had input, and [] [], your agent, Mr. Bob Rosen was pushing Fishman at least three or four times to me, wouldn't you much rather work with Bob Fishman rather than Bill Webb? You can put Webb on the B, C, or D game and let Bob Fishman do the A game.
(Id. at 72:16-23.) Filippelli conceded that his comment was "a knee-jerk reaction on my part" (id. at 213:13-18) because while Rosen had worked hard for Webb (id. at 285:1-3), "it was my passion to Ed Goren, that plea to Ed Goren that turned this. I have always believed this and nothing will change my mind on that." (Id. at 284:22-25.) Webb did not then call Rosen to confront him about Filippelli's allegation. (Id. at 131:21-132:1.)

  B. Alleged Disloyalty With Regard to MSG Contract

  RLR represented Webb in his negotiations with MSG, beginning in 1991 (1 year contract), and again with his renewal contracts in 1992 (1 year contract), 1993 (1 year contract), 1994 (3 year contract) and 1997 (4 year contract). (Tr. at 56:13-57:15.) It is undisputed that, prior to the 1997 contract negotiations, Webb "called Bob Rosen and [] said, "I want to you [sic] do this deal, it's important to me. . . . I do not want Gary Rosen [Robert Rosen's son] involved in this contract." (Id. at 57:15-17; 309:3-6.) According to Webb, however, in February 1997, Gary Rosen called him because his father was out of town, and relayed that:

Mike McCarthy at Madison Square Garden wants to do the deal, do the contract, and I said all right, what is it? He said it's a three-year contract with monies, whatever it is for three years, over three years. And I said I'll tell you what, call Michael back, tell him that I would like another year. In case Fox did pick up my option of two years, that both contracts would expire simultaneously, in January of 2001. And he said, fine.
* * * *
He said how about the money? And I said whatever it is, you know, just tell Michael, let me know. And that happened. And he, Gary Rosen, called me back later on that afternoon and he said that it's a four-year deal. Here's the money, are you happy? And I said, fine. It wasn't a contract. It was an extension. The original contract was '91. These were all extensions from that contract.
(Id. at 58:6-20.) Notwithstanding Gary Rosen's minimal involvement, Rosen testified that "no one other than [himself] at RLR ever participated in substantive communications with any of Mr. Webb's employers" or with Webb. (Id. at 310:8-11, 12-24) (emphasis added.) Rosen was "personally responsible for the negotiation of all of his contracts, and the communication, substantive communications with all of his employers throughout that period of time." (Id. at 311:4-7.) Rosen testified that "I negotiated every single Bill Webb agreement by myself." (Id. at 438:8-9.)

  C. Termination of Webb's Relationship With RLR

  In September and November 2000, Webb discussed with Rosen his intention to terminate his relationship with RLR. Webb testified that he reached this decision because "[i]t's one thing to be disloyal, another thing to lie . . ." (Tr. at 76:11-12.) Webb testified that he delayed telling Rosen of his decision to terminate the relationship because "Bob knows all the people that have, that give me work. I mean, he's close friends with most of them. He's been in the business for a long, long time. The last thing I want to do is go up against Bob Rosen." (Id. at 77:20-23.) II. CONCLUSIONS OF LAW

  A. Faithless Servant Doctrine

  The faithless servant doctrine provides that "an agent is obligated `to be loyal to his employer and is `prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties.'" Phansalkar v. Andersen Weinroth & Co., L.P., et al., 344 F.3d 184, 200 (2d Cir. 2003) (quoting Western Elec. Co. v. Brenner, 41 N.Y.2d 291, 295 (1977) (quoting Lamdin v. Broadway Surface Adver. Corp., 272 N.Y. 133, 138 (1936)). A "principal is entitled to recover from his unfaithful agent any commission paid by the principal." Phansalkar, 344 F.3d at 200 (citing Wechsler v. Bowman, 285 N.Y. 284, 292 (1941)). It is immaterial that "the services were beneficial to the principal, or that the principal suffered no provable damage as a result of the breach of fidelity by the agent." Feiger v. Iral Jewelry, Ltd., 41 N.Y.2d 928 (1977) (citing RESTATEMENT (SECOND) OF AGENCY § 469 (1958)). The doctrine ensures that a disloyal agent is not compensated even when the principle suffers no loss.

  B. Unjust Enrichment

  Unjust enrichment is an equitable claim which has three elements: (1) a benefit conferred upon defendant by plaintiff; (2) an appreciation or knowledge by defendant of the benefit; and (3) the acceptance or retention by defendant of the benefit under such circumstances as to make it inequitable for defendant to retain the benefit without payment of its value. Van Gemert v. Boeing Co., 590 F.2d 433, 444 (2d Cir. 1978) (citing 12 Williston on Contracts, § 1479 at 276 (3d ed. 1970)).

  C. Failure to Establish Unfaithfulness

  Simply stated, the testimony makes clear that Webb has failed to establish that RLR breached its duty of loyalty or acted in a manner that would render it inequitable for it to retain Webb's commission payments under either the FOX or MSG contracts. Webb has failed to establish that (1) RLR breached the faithless servant doctrine or (2) that RLR was unjustly enriched through its receipt of ten percent of Webb's salaries under the 1996 FOX contract or the 1997 MSG renewal.

  1. 1996 FOX Contract

  Although Webb presents evidence to support his claim that Rosen pushed Fishman for the FOX A game director position, both Rosen and Goren contradict Webb's allegation of disloyalty. First, Rosen testified that he believed, and conveyed to FOX, that Webb was the only viable candidate for the A game position, and was "the finest baseball director in America today." (Pl. Exh. 13.) Goren confirmed Rosen's testimony. Second, there were serious questions surrounding Fishman's availability for the FOX position, and the economic benefit to RLR of promoting Fishman over Webb. Third, it is clear that Goren, not Rosen, was the true obstacle to Webb's receipt of the A game position. Fourth, while FOX was seriously considering someone other than Webb for the A game position, that person was not Fishman — a client of RLR's — but rather was likely Lynch — who was not a client of RLR's, and therefore presented no conflict for RLR. Fifth, because Filippelli's testimony makes evident that his ego was challenged by the concept that Webb could believe that Rosen — not he — was responsible for Webb's success at FOX, Filippelli's credibility was, to my way of thinking, called into question. Together, the testimony does not support a finding that Rosen was disloyal to Webb with regard to the 1996 FOX negotiations.

  2. 1997 MSG Renewal

  While it is evident that Gary Rosen played some role in Webb's 1997 MSG renewal contract negotiations, it is clear beyond cavil that this role was exceedingly minimal. In essence, Gary Rosen merely served as a conduit of information from MSG to Webb, on one occasion, while Robert Rosen was out of town. Under no rational theory could such involvement be seen to contradict Webb's instruction that Robert Rosen, not Gary Rosen, negotiate the MSG contract. Further, Webb had the opportunity to tell Gary Rosen not to call MSG back — as he preferred Robert Rosen to make the call. But, instead, Webb affirmatively instructed Gary Rosen to call MSG in order to accept the network's proposed terms. Webb's conduct, stated through his own recollection, hardly evidences resistance to Gary Rosen's mechanical role. Therefore, Gary Rosen's involvement in the 1997 MSG contract negotiations was immaterial, and cannot serve as the basis for Webb's claim under either the faithless servant doctrine or unjust enrichment. III. CONCLUSION

  For the foregoing reasons, judgment is entered in favor of RLR on all of Webb's claims. The Clerk of the Court is directed to close all pending motions and remove this case from my docket.


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