Abate v. ICM, Day Two: Laying Out the Timeline

By Carmen Comment

If there’s one thing yesterday’s proceedings in Judge Peter Leisure‘s courtroom demonstrated, it’s the extreme disconnect between legal relevance and true-blue drama. From a legal standpoint, all the preliminary injunction hearing (which wrapped up by 4 PM yesterday) accomplished was to show whether there was enough standing to hold Richard Abate to the terms of his ICM contract until the last day of 2007, or whether ICM’s contract, forbidding Abate to even discuss options with Endeavor, was anticompetitive according to New York law. That will be decided fairly quickly – likely within the week – as Leisure, testier and more impatient than he’d been on Thursday, remarked once more that he’d “never seen such a delay on proceedings for a preliminary injunction” as well as the scuttled TRO. From a contractual standpoint, either Abate left – thus violating his existing contract – or he was fired in passive-aggressive fashion because turning down a new offer imperiled his future and so he needed backup in case that happened.

But you’re not reading this lengthy account for legal wranglings (even though there were plenty, especially when Abate’s father-in-law, Harold Moore, could only testify in limited fashion thanks to attorney-client privilege, a point vigorously debated between ICM counsel A. Michael Weber and Abate’s lawyer Brian Kaplan.) You want the drama. And boy, was there drama, never more evident than when a steely-eyed Esther Newberg, pursing her lips and visibly unhappy to have spent most of the day cooling her heels in the jury room under sequestering until she was called to the stand around 2:30 PM, testified that she felt “betrayed” by Abate’s surprise exit on February 9, someone whom she characterized as being a close friend – though not anymore. Add Sloan Harris‘s testimony as well as Abate’s completion of his to the mix and the real story of this hearing is not so much about money, but about how seemingly close relationships deteriorated so suddenly, so badly – which might explain why the arbitration demand slapped upon Abate late last week is to the tune of $10 million dollars.

But first, let’s backtrack to the very beginning of the day’s events, when Judge Leisure reminded the court that the hearing ought to have wrapped up in a single day and he felt much of it was a waste of time. “I hope we can make some headway here,” he said, and while the court may not quite have got its wishes, the reporters in attendance – yours truly, the LA TimesJosh Getlin and a late-arriving Michael Fleming from Variety – certainly did.

Abate returned to the stand along with his porous memory for dates and conversations, eliciting a stern warning from Judge Leisure. “Your lack of memory on things transpiring only 30 to 60 days ago surprises me,” Leisure said, “and you’re not making a good impression on the court.” But Abate assured the court he “planned on being candid,” and was helped by a steady stream of documents entered into evidence by Weber. From those documents, Abate’s testimony and later comments from Moore, we learned more details of what happened after Abate received ICM’s contract renewal and his initial talks with Endeavor. After speaking several times with Nancy Josephson – including two conversations on Monday, January 29 – Abate made arrangements to fly out to Los Angeles on the 30th to meet with various Endeavor partners, as well as its president, Ari Emanuel. Once again, Abate talked about Endeavor’s interest in “doing books” and how they thought it “would be nice to have a book department in New York” – but no formal specifics were ever discussed, and it turns out Abate explored his options against his father-in-law’s wishes. “He thought I was taking a major leap of faith.” Understandably so, considering Endeavor never issued a formal employment contract, never talked about medical coverage or even guaranteed him a specific salary. To date, the only money Endeavor has paid Abate is a $17,000 advance check to cover approximately five weeks of service beginning February 26.

Abate turned to his father-in-law for legal advice, but Moore, a finance lawyer with Skadden Arps, made it clear that employment law was beyond his ken – and that whatever limited representation would have to be individual, not under Skadden’s umbrella. So Abate turned to an LA-based lawyer, Patricia Glazer (paying what he deemed was a “rich” hourly rate) whom Moore spoke with several times by phone and who was the only direct contact with Endeavor with regards to working out possible terms.

Leading up to that fateful day on February 9, Abate was asked to identify a series of emails that, depending who was asking the questions, either showed he was protecting himself from certain firing or acting in stealth to better his fortunes. After telling Kate Lee he was exploring the possibility of going to Endeavor (something reiterated to then-colleague and “close friend” Jennifer Joel) Abate implored Lee to erase the emails. Additional correspondence with clients Ian Kerner, Chuck Hogan & Jon Katz as well as editors Reagan Arthur, Cindy Eagan, Marysue Rucci and Emily Bestler demonstrated both that Abate was telling people about his concerns – so much so that he was “tormented about the decision to turn down ICM offer” late on February 8 – and receiving congratulations for his move to Endeavor.

So now we move to Abate’s version of what happened on February 9, which also happened to be the “drop dead date” for Abate to say yes or no to ICM’s offer. After commuting in from his home outside of Montclair, NJ, Abate made the decision to tell ICM that he was turning down their contract renewal. At around 9:45, he went into Newberg’s office, shut the door and gave her the news. “Where are you going?” she asked. He was straightforward. “I hope to go to Endeavor.” She cried, Abate said, and gave him a hug. Newberg said she was proud of him even though she was visibly upset, but recognized this was a “great opportunity” and understood Abate’s decision. She never brought up the contract, Abate said and in fact, gave him a prized baseball belonging to her father upon his exit.

After leaving Newberg’s office, Abate informed Harris, who then brought Abate’s assistant, Nicolette Cassell, into Abate’s office. She burst into tears and did not stop crying for a good 10-15 minutes. Cassell left, and Harris (along with Newberg) informed Abate he would have to leave ICM’s office. “When LA wakes up they will really be mad at you,” was what Abate said he was told. He was happy to stay but further told to “go now” and not speak to anyone. By 10:30, he was out of the building and Harris & Newberg were on the phone to his clients to inform them of the news.

Word travels fast in publishing, and before noon Abate’s departure was reported on Gawker. Abate had a theory as to how this happened: the only other people at ICM who knew he was leaving were Newberg’s assistants, Kari Stewart and Christine Earle (who also acted as Abate’s agent on two YA novels co-written with Jadrien Steele; the first, THE TAKER by “J.M. Steele”, was published by Hyperion in August 2006.) Earle was “very tearful” upon hearing the news, and Abate asserted that “Gawker’s announcement was so incoherent with no strong knowledge of the agency that it had to come from an assistant.”

But before he was gone, Abate said he made sure to retrieve personal belongings, including an Outlook email rolodex of “friends and family” as well as publishing-related contact information which he emailed to his wife’s account. “It’s not a trade secret, every agent leaving ICM has taken their Rolodex with them.” He also stayed in touch with Harris about pending submissions and book proposals. Harris assured Abate he was “all too happy to turn it all over” and was “trying to be helpful and official with obvious crap” and the items were sent Abate’s way – along with emailed congratulations on the Variety announcement of March 5. Abate also asserted that the now-infamous box of contracts that so shocked Richard Levy upon their return to ICM offices was not full of confidential information – how, when copies of agency agreements remained with his clients and deal contracts with publishers?

More wrangling, document introduction and back-and-forth transpired as the morning turned into the afternoon and the audience was left with a picture showing Abate taking a risk in leaving behind a secure, lucrative position with ICM – no small potatoes when needing to pay for a mortgage and support a wife and two young children – for murkier startup waters with Endeavor. He has no office nor an assistant; merely a conference room with no files, a phone without access to voice messages and a client base in name only.

But that’s just one side of the story – the other side is still to come…