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Kasowitz Sought TRO In Fee Dispute... Failed To Get TRO In Fee Dispute

Fortune fails to favor the bold.

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Young Girl in Front of Computer with Brown Bag FrownJust before ringing in the new year, Kasowitz filed a lawsuit against Glenn Agre — a boutique law firm formed by former Kasowitz attorneys. At issue is a “success fee” pledged by a client that engaged the Glenn Agre attorneys while they worked at Kasowitz, and then followed the group to Glenn Agre where the client ultimately achieved “success.” After negotiating a fee split over the course of several weeks, Kasowitz went ahead and sued.

And sought a TRO…

Over money.

Savor that one for a second. This is one of those arguments that litigators dream about opposing but never get to because no one ever seriously tries to make it. So congratulations to whichever Glenn Agre attorneys fulfilled a lifelong dream by writing this paragraph:

This action involves a dispute between Glenn Agre and Kasowitz Benson over their respective shares of a success fee secured by Glenn Agre on behalf of its client (the “Client”), which formerly was represented by Kasowitz Benson. In short, this is a commercial dispute over money. Nothing more. Nevertheless, Kasowitz Benson seeks the extraordinary remedy of a temporary restraining order and preliminary injunction enjoining disbursement of the success fee—even though Glenn Agre has not yet received the money, and even though money damages are, by definition, an adequate remedy at law, which precludes any award of injunctive relief.

Putting aside a few federal judges on a sheer lawlessness kick, parties don’t get preliminary injunctions for entirely calculable damages. The plaintiff can just get paid later! Unless the case deals with a party suspected of playing three card monte with LLCs in an effort to shield assets and weaponize bankruptcy there’s no reason to bring equitable remedies into this.

The judge seems to agree.

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For Kasowitz’s part, the firm lodged some speculative allegations that Glenn Agre may be planning to spend the success fee to cover other obligations. But… so what? The firm can still pay whatever damages on the back end assuming Kasowitz is owed anything, which is still an open question because the client terminated Kasowitz before the conclusion of the matter, making the whole dispute akin to demanding a bonus in December after leaving the firm in February.

Kasowitz claims it billed a lot of time that contributed to that success — the fact that those hours were billed mostly by the current Glenn Agre team notwithstanding — but it’s a success fee not some kind of post hoc bonus on the hourly rate. If the firm didn’t want the risk of missing out on the pot of gold at the end of the rainbow, it could have negotiated to get all the money from billables. Without knowing the details of partnership agreements and all, it seems as though Glenn Agre is being super cool to offer Kasowitz a slice of this fee.

This is just the beginning of this story, but whatever the merits, Kasowitz is off to a rocky start. There’s a school of litigator that believes maximum aggression is the only gear available, but starting a lawsuit with a, shall we say, questionable shot at the end zone doesn’t exactly ingratiate you with the judge.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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