Houston trial lawyer David Berg does not owe his former associate $32,000 in back wages, a Harris County jury unanimously determined Monday after about an hour of deliberations that included lunch.
The jury of 12 determined no employment contract agreement existed between former Berg & Androphy associate Justin Pfeiffer and the law firm, and therefore the panel did not reach questions asking whether Berg & Androphy breached the agreement and how much compensation Pfeiffer was entitled to.
The basic dispute laid out for the jury over three days of testimony in Harris County District Judge Cory Sepolio’s courtroom involved whether Pfeiffer was owed compensation by the firm for work performed between Sept. 20, 2018 — when he was asked to resign — and Nov. 27, 2018 — when he was removed as counsel of record for firm clients Bela and Martha Karolyi in a California lawsuit.
The firm was representing the former U.S. gymnastics coaches in litigation brought by victims of Larry Nassar, the imprisoned former doctor for the U.S. women’s gymnastics team.
Pfeiffer, now a partner at Lewis Brisbois Bisgaard & Smith, and his co-counsel, Louis Benowitz of West Hollywood, California, had contended Pfeiffer wasn’t terminated from the firm until the California judge signed off on his removal.
Berg and his trial counsel, Paul Turkevich of Ahmad, Zavitsanos & Mensing, argued that was “absurd” and that Pfeiffer had conflated making a court appearance with having an employment contract.
Benowitz issued a statement to The Lawbook calling the jury’s decision “a miscarriage of justice.”
“It is axiomatic that all employment in Texas is necessarily contractual because involuntary servitude violates the 13th Amendment and because all wages result from voluntary agreements (which are usually oral),” the statement reads. “Judge Sepolio erred in not giving an instruction on oral contracts as we requested, and we are confident that a higher court will get this right. You cannot stop paying a worker in America without relieving them of their job duties first.”
Berg told The Lawbook he was “grateful” to the jury.
“I have fought this for years,” he said. “And it has caused great pain for me and my family and for [firm co-founder] Joel [Androphy] as he was dying.”
Androphy died Sept. 24 of ALS, also known as Lou Gehrig’s disease. He was 70.
During closing arguments Monday, Benowitz invoked a quote Kobe Bryant gave reporters who inquired why he didn’t seem happy when his Los Angeles Lakers were leading 2-0 against the Orlando Magic in the 2009 NBA Finals.
“Job’s not finished,” Bryant said at the time.
That’s the same situation at issue here in this case, Benowitz said.
“Answer one simple question: When was the job finished?” he said. “For your boss to fire you, you have to be relieved of your duties.”
But Pfeiffer, who was the only Berg & Androphy attorney licensed to practice in California in 2018, had a duty to remain on the case until a judge relieved him of those duties, Benowitz said.
Having Pfeiffer clean out his office and return his equipment and keys and even changing the locks on the firm’s doors “did not bring his employment to an end,” Benowitz told jurors — his job wasn’t finished until the Karolyis removed him and the California court signs off on that removal.
Berg testified he demanded Pfeiffer resign in September 2018 because he was not pleased with the quality of his work and found Pfeiffer to be “not trustworthy and an embarrassment.”
Had Berg hired another attorney licensed to practice in California to take over the duties back in September 2018, jurors would not have had to sit through a week of trial, Benowitz told them.
“This was a business decision by Mr. Berg,” he said, noting that the firm had billed the Karolyis $80,000 for work Pfeiffer had done on the case in August 2018.
“They could have gotten rid of him at any time as long as they relived him of his duties,” Benowitz said of Pfeiffer’s at-will employment with Berg & Androphy. “Firing someone means fully relieving them of their duties. … We’re just asking for Mr. Pfeiffer to be paid for the time he spent employed.”
Turkevich tackled that argument head-on in closing arguments, accusing Pfeiffer of “trying to bastardize” an administrative filing — an attorney appearance form — and make it out to be an employment contract.
“A court appearance does not make an employment contract,” he said.
Should jurors agree with Pfeiffer’s argument, Turkevich told them, they would make history as the first jury in the country to find that filing a court document establishes an employment contract with a law firm.
“He may have a high IQ,” Turkevich said of Pfeiffer. “But he has some of the worst judgment.”
He asked the jury to follow Pfeiffer’s argument to its end and posed a question: What if a judge failed to sign off on an attorney’s request to be removed from a case for six months or more?
“He gets a windfall,” Turkevich said. “What is crazy is that that is what Mr. Pfeiffer thinks we agreed to.”
The dispute between the parties was heated during trial and has been acrimonious since before the lawsuit was filed in September 2022. Berg referred to his former employee in court filings as “unhinged” and a “vexatious litigant” who “harasses all whom he claims have wronged him.”
Pfeiffer had unsuccessfully pursued labor commission actions in California and Texas over the allegedly owed wages prior to filing suit and also accused Berg in complaints he lodged with the state bar organizations in both states of being senile and said he was practicing law without proper authorization.
Those complaints were also dismissed.
Berg is also represented by John Zavitsanos and Alexander Dvorscak of AZA.
The case number is 2022-60439.
Editor’s note: Bruce Tomaso contributed to this report.
Update: This story has been updated with comment from Benowitz.