Abate case booked for arbitration

Judge: Ex-ICM agent 'scrupulous to avoid interfering'

A federal judge in New York on Wednesday refused to issue an injunction to prevent ICM literary agent Richard Abate from jumping to Endeavor and referred the matter to arbitration.

At the heart of the high-profile lit snit is ICM's attempt to hold Abate to his current contract and prevent the talent agent from helping rival Endeavor launch a New York book division.

Although handing Abate -- and effectively Endeavor -- a win on the injunction request, U.S. District Judge Peter Leisure also rebuked the agent during a court hearing Monday for failing to remember certain details from February 2006, when Abate told ICM of his intent to bolt the agency. But the judge's written opinion pointedly rejected ICM's core argument in seeking injunctive relief.

"ICM broadly and baldly claims that Mr. Abate has misappropriated many sorts of confidential customer information and trade secrets," Leisure wrote. "Yet to the extent there is any evidence in the record pertaining to these contentions, that evidence indicates either that no such information exists or that Mr. Abate had no access to it or awareness of it."

Leisure said the agent "has been scrupulous to avoid interfering" with any ICM client relationships he would need to leave behind. Perhaps most notably, Leisure said there was no likelihood of irreparable harm to ICM because of the project nature of its relationships with book authors.

"ICM's relationships with its literary clients do not take the form of contracts for a fixed term," Leisure wrote. "Rather, these relationships are specific to a particular product. That is, ICM represents a client for a particular book or article only. Unlike ICM's representations of actors, its representation of authors does not extend to future projects (clients) may undertake."

In testimony Monday, Abate told the court he assumed he had been terminated immediately when ICM asked him to pack up his office after he alerted the agency of his intention to leave.

But Esther Newberg, head of ICM's lit division, testified that she took Abate's talk of a "great opportunity" as a joke and insisted she never fired him.

With the injunction request rejected, the flap now goes to arbitration automatically. Like most agent contracts, Abate's work agreement with ICM has an arbitration provision.

An agency spokesman said Abate's contract with ICM runs through December. Arbitration could take six months or more because the parties haven't requested accelerated proceedings.

Meanwhile, the legal tussle between two of Hollywood's top talent agencies has made for something of an industry spectacle. Struggles over talent agents and their clients are common on both coasts, but they are seldom engaged in so publicly.

If ICM succeeds in showing cause for the award of damages in arbitration, Endeavor could be the party shelling out. Abate testified that his intended employers have agreed to indemnify him against ICM and to pay for his legal costs.

An Endeavor spokeswoman declined comment. Abate was represented by Brian Kaplan of Kasowitz Benson Torres & Friedman.

"My client is extremely pleased with the court's decision and looks forward to continuing to work on behalf of his clients," Kaplan said.

Abate's clients at ICM included a pair of Washington Post journalists-turned-book scribes: Michelle Singletary ("Spend Well, Live Rich") and Evan Wright ("Generation Kill").

ICM general counsel Richard Levy said he was disappointed by the judge's decision.

"However, on behalf of our clients, who rely on our efforts to protect their privacy and enforce the integrity of their contracts, (Abate's) blatant misconduct compelled us to act," Levy said. "The final outcome now will be determined by an arbitrator."

Carl DiOrio reported from Los Angeles; Gardner, a senior staff writer for The Hollywood Reporter, Esq., reported from New York.
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