Berry v. Kasowitz Benson: The Empire Strikes Back
Kasowitz Benson comes to bury Berry, not to praise him. The firm has moved to dismiss the $77 million lawsuit filed against it by Gregory S. Berry, the former first-year associate at Kasowitz who claimed that the firm wrongfully terminated his employment due to its inability to handle his "superior legal mind." The firm's brief is fairly straightforward, advancing the arguments you'd expect it to make. Let's have a look, shall we?
Kasowitz Benson comes to bury Berry, not to praise him. The firm has moved to dismiss the $77 million lawsuit filed against it by Gregory S. Berry, the former first-year associate at Kasowitz who claimed that the firm wrongfully terminated his employment due to its inability to handle his “superior legal mind.” Berry also alleged fraud, breach of contract, and a host of other claims.
On Wednesday, Kasowitz Benson filed its motion to dismiss Gregory Berry’s complaint, accompanied by a 22-page memorandum of law. The firm’s brief is fairly straightforward, advancing the arguments you’d expect it to make.
But there are a few fun tidbits here and there. Let’s have a look, shall we?
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You can access the Kasowitz brief here. Note that the firm is representing itself in this action; the brief was filed by KBTF partner Joseph Piesco, an employment litigator.
Going pro se suggests that Kasowitz isn’t exactly quaking in its boots before Greg Berry and his superior legal mind. Back in 2009, when Kasowitz got tangled up in messy litigation with former partner Jeremy Pitcock, it brought in the heavy artillery: a team from Sullivan & Cromwell, led by the fearsome Gandolfo “Vince” DiBlasi.
Kasowitz’s central argument against Greg Berry is made in the first paragraph of the preliminary statement: “[A]ll of Plaintiff’s claims are barred by a general release he signed in May 2011 when he accepted and received a severance package which included, among other things, a payment to him equal to two months’ salary.”
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This defense was suggested by the firm’s public comments on the case when it was first filed. Kasowitz managing partner Mitchell R. Schrage told the media that Berry “received a substantial severance payment and signed a release and . . . subsequently threatened the firm with a lawsuit unless the firm paid him even more.”
Most of the Kasowitz brief just hammers on the release that Berry entered into as part of the Separation Agreement. The firm points out the following:
- when he considered and executed the agreement, Berry “was represented by experienced employment counsel” (Ethan Brecher, a partner at Liddle & Robinson);
- Berry was given ample time to review and deliberate over the agreement, with the help of his counsel; and
- Berry could have chosen to reject the agreement and pursue his claims against Kasowitz, but he did not, instead choosing to sign the agreement and take the firm’s money (two months’ salary, or $26,666.67).
The firm doesn’t comment much on the facts — which is understandable given where the litigation is procedurally, but makes for a less entertaining motion. Here is what we noticed:
- The motion doesn’t go into much detail concerning Berry’s behavior at the firm; it simply states that he “failed to exercise proper judgment with respect to his communications and interactions with other attorneys at the Firm” (citing the infamous emails mentioned in Berry’s complaint).
- In defending itself against Berry’s claim that Kasowitz breached the agreement by terminating his email access prematurely, the firm claims that after he was fired, Berry “misappropriated approximately 190 electronic documents and files containing confidential and sensitive client information from the Firm’s computer systems” — and that he admitted this when confronted about it. As a result, the firm had no choice but to cut off his access.
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The Kasowitz motion is also short on snark. There are very few catty comments; kudos to Joseph Piesco and his colleagues for exercising this much restraint (especially given all the fodder that Greg Berry’s complaint provided). Here are the highlights (from footnotes, of course):
- Footnote 7 refutes Berry’s claim that he entered into the Separation Agreement under duress, due to a precarious financial situation, by citing the boasts in his complaint that he “founded… an internet company” and “conquer[ed] Silicon Valley” prior to going to law school. (Practice pointer: when drafting a pleading, consider how the other side might be able to turn things around on you.)
- Footnote 8 shoots down Berry’s claim that the Separation Agreement was procedurally unconscionable by noting his “self-proclamation that he has ‘a superior legal mind.'” In any event, even if one questions the precise superiority of Berry’s legal mind, he is certainly “a far cry from the prototypical ‘uneducated’ and ‘needy’ individual for whom the unconscionability doctrine was fashioned” (citation omitted).
In fairness to Greg Berry — who has his defenders, such as the ATL tipster who described him as “a nice, smart dude, and a go-getter” — I did chuckle at one part of Kasowitz’s brief. As you may recall, Greg Berry alleged that Kasowitz committed fraud against him, by claiming that it allowed talented associates to take on early responsibility and “to grow as quickly as they could.” Again in Berry’s defense — we present both sides of the story around here — another ATL source, also a former Kasowitz associate, concurred: “I got fired for almost the same thing [as Berry] — too ambitious, overstepping my bounds.”
So how did Kasowitz respond to these claims in its motion to dismiss?
Even assuming that these alleged statements were made, each statement is, on its face, at most a statement of opinion. Therefore, they are not actionable.
This is a perfectly appropriate defense by Kasowitz, but I did chuckle at it — in a “it’s funny ’cause it’s true” sort of way.” To law students going through fall recruiting right now, or to lateral associates or partners being wooed by other firms, remember: when the firm trying to hire you tells you how fabulous it is, how it’s different from and better than all the other firms, “each statement is, on its face, at most a statement of opinion.”
Caveat venditor. Beware the perils of puffery.
Berry v. Kasowitz Benson: Motion to Dismiss [Supreme Court of New York]
