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WEBB v. ROBERT LEWIS ROSEN ASSOCIATES

June 29, 2004.

WILLIAM WEBB, Plaintiff,
v.
ROBERT LEWIS ROSEN ASSOCIATES, LTD. Defendant.



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

OPINION & ORDER

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.

I. FINDINGS OF FACT

  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, ...

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