Judge's ruling expected this week

Testimony in the legal battle between ICM and ex-agent Richard Abate wrapped up Monday, but a judge declined to issue an immediate ruling on whether Abate should be prevented from starting a lit division for Endeavor while he’s under contract to ICM through year’s end.

The day’s testimony before U.S. District Court Judge Peter K. Leisure in Manhattan was marked by contentious recollections of Abate’s final days at ICM and punctuated by a heated exchange between Abate and former mentor Esther Newberg during a recess.

ICM is seeking a temporary restraining order to prevent Abate from establishing a lit division at rival percentery Endeavor, while Abate’s lawyers asked that a breach of contract suit be dismissed in its entirety.

While it’s doubtful a lit agent will become a recurring character on “Entourage,” Abate and Newberg dispelled the notion that Gotham book agents are sedate and dull compared with their Hollywood counterparts.

After Newberg’s testimony — a radically different version from Abate’s depiction of his last day at ICM — Newberg sat in the spectator seats and tried to speak during a recess to Abate’s wife, Melissa Moore. Seeing this, Abate snarled, “Go away, don’t speak to my wife.” The tension was palpable.

The night and day difference between Abate and Newberg’s versions of events marks the crux of the case: Was Abate fired upon telling his bosses Feb. 9 that he would not sign a new contract because he wanted to start a lit division for Endeavor? Or did he simply leave and breach a contract that had 11 months to go?

Even Judge Leisure expressed frustration with the uncertainty of some of the testimony, telling Abate at one point, “Your lack of memory over details over the past 30-60 days ago disturbs me. You have to be candid. You’re wasting my time. You’re hurting your own position.”

Abate testified first, describing how, after being steadily pressured to accept a deal that would have almost doubled his $260,000 salary, he finally told Newberg he couldn’t sign the deal because he wanted to end his 10-year ICM run so he could leave for Endeavor. According to Abate, he and Newberg cried and hugged.

“She said it was a great opportunity, and that I should take it,” he testified.

The two shared a passion for baseball, and he said Newberg gave him a ball that had sentimental value. Abate said Newberg was gracious, as was Sloan Harris, recently named to co-head with Newberg ICM’s publishing operation. Abate said Harris even congratulated him when a Variety story revealed that he was to head Endeavor’s new book business.

But Abate said on the stand that both Newberg and Sloan made it clear that he should collect his belongings and vacate the premises before their Hollywood counterparts got wind of his plan to work for a rival.

“Esther and Sloan came to my office and told me to pack my things up, because when L.A. wakes up, they are going to be very mad at you,” Abate said.

When Abate’s attorney, Brian S. Kaplan of Kasowitz, Benson, Torres & Friedman, asked when Abate believed he’d been terminated, Abate said, “It was the combination of them telling me to leave, a group meeting where they told all my colleagues I’d left, and when Esther and Sloan began calling individual clients to tell them I was leaving the agency.”

Abate admitted under oath that he’d spoken several times to Nancy Josephson, a longtime ICM fixture until she was fired immediately after ICM acquired TV boutique BWCS. Hired by Endeavor shortly after her exit from ICM, she has been regarded as a catalyst for several ICM defections.

While Abate said they had conversations and Josephson made it clear that Endeavor was interested in brokering book deals, Abate said their conversations focused on how happy she and agents like Robert Newman were since ankling ICM. Abate said when he announced his intention to leave to his ICM colleague, not only did he not have a deal with Endeavor, he did not even know what he might be paid for starting their division.

ICM’s attorney, Michael Weber, of Littler Mendelson, hammered the question of Abate’s plans repeatedly. He questioned whether a man with a mortgage and two young children would turn down a sizable raise without knowing the alternative.

Weber charged that Abate absconded with confidential internal documents, including a box of contracts, and that he was soliciting clients and engaging in behavior that blatantly breached his contract. That prompted ICM to demand that Abate not be permitted to join Endeavor until his contract expires, and that ICM not be required to continue his salary, which the agency stopped paying on March 2.

Abate refuted claims that he’d carted off ICM secrets. Contact lists of publishers and editors were easily available, he said, and the box of contracts got sent to his house for safekeeping months ago when ICM moved its Gotham headquarters.

“Every agent who left ICM took their Rolodexes with them,” Abate said. “I once helped an agent pack her files and Rolodex. Her new agency sent two mailroom trainees to pick up the files, make photocopies and bring them back to be refiled.”

Abate ended his testimony with a statement that Newberg told him that when her contract expired in three years, she wanted to leave with him and form a Newberg Abate Agency.

Upon taking the stand, Newberg, a 31-year ICM vet, told a decidedly different story of Abate’s exit.

Newberg called her suggestion to form an agency with him “a joke,” and said while she may have hugged Abate before he left, she was upset with him for disregarding a valid contract. She also denied firing him and said she was convinced the exit came because Abate felt slighted that Harris and not he had been elevated to co-head of publications.

“I felt betrayed,” she said. “He’d told me it didn’t bother him that Sloan had been elevated.”

But, Newberg said, “He was jealous that a man only four years older than him but with a stunning client list was being elevated. Richard didn’t have the judgment.”

Asked point blank whether she had terminated Abate, Newberg said, “Personally, no.”

Judge Leisure adjourned with a promise that he would try to render a quick decision. It is expected that the matter could be decided by later this week.

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