By Thomas Hauser
Lou DiBella has won a $610,000 libel judgment against Bernard Hopkins in a jury trial in the United States District Court for the Southern District of New York. DiBella's lawsuit was filed in December 2001, shortly after Hopkins accused him of soliciting and accepting a $50,000 bribe while DiBella was still a senior vice president at HBO Sports.
The jury's verdict was a significant victory and marked the end of a long and winding road for DiBella. For Hopkins, one of the great fighters in ring history, there is damaged credibility and a large chunk of money won in the ring has been lost.
DiBella and Hopkins joined forces as advisor and fighter on a handshake agreement in early 2000, two months after "The Executioner" received $100,000 for defending his IBF middleweight title against Antwun Echols. With DiBella's support, Hopkins made $525,000 for a May 2000 defense against Syd Vanderpool and $650,000 for a December 2000 rematch against Echols. Then, in 2001, DiBella engineered Hopkins's entry into Don King's middleweight championship tournament. For that bit of business, Hopkins received $1,000,000 for fighting Keith Holmes, $2,750,000 for fighting Felix Trinidad, $50,000 in expenses for each fight, and a $200,000 signing bonus. In sum, before DiBella, Hopkins was an extremely talented fighter with limited name recognition who rarely made big money. With DiBella in his camp, he became a star.
DiBella believed in Hopkins. Sitting in Madison Square Garden moments before Bernard was to enter the ring for his historic bout against Trinidad, DiBella declared, "Tonight is important to my company financially, but it's hugely important to me personally because Bernard will always be hugely important to me. I cherish the relationship I have with Bernard."
But once Hopkins beat Trinidad, he figured he didn't need DiBella anymore. So he dumped him. If Hopkins had simply said, "Lou did a good job, but I don't want to work with him in the future," DiBella would have been hurt and angry, but there wouldn't have been a lawsuit. However, Hopkins went further. In late December 2001, stung by media criticism that he was an ingrate, he gave an interview to internet writer Steve Kim in which he accused DiBella of demanding and receiving a $50,000 bribe to put him on HBO at a time when DiBella was still employed by HBO.
Mike Trainer, who handled Sugar Ray Leonard's business affairs during the fighter's ring career, once said, "To survive in boxing, you take on the characteristics of those you abhor. You become like them."
Throughout his years in boxing, DiBella has defied that trend. He's one of the honorable people in the sport. And his passion for fairness didn't end when he left HBO and the checkbook he was balancing became his own.
When the Association of Boxing Commissions set up a fighters relief fund, DiBella donated $5,000. No other donor, corporate or individual, contributed more than $1,000. In November 2001, DiBella took a $70,000 loss to turn one of his fight cards into a fundraiser for the Twin Towers Fund. Earlier this year, he paid travel and hotel expenses for Gerald McClellan and McClellan's sister to attend a dinner in New York where Teddy Blackburn was honored for his work with the disabled fighter.
As of late, DiBella, like many others in boxing, has been struggling. "I knew the impediments I'd face when I set up my own business," he said recently. "I understood that the entrenched powers would line up against me. What I didn't count on, and maybe I was naive, was that the fighters -- and I won't even say the fighters; I'll limit myself to one particular fighter -- would react the way they did. The only reason I'm not where I want to be today is Bernard Hopkins. Bernard has poisoned the well for me with a lot of fighters. And Bernard should have fought two major fights this year instead of one minor one. If he had, I could have made $800,000 instead of paying $200,000 in legal fees. That's a swing of one million dollars."
In truth, DiBella's lawsuit almost didn't proceed to trial. On October 24th, Hopkins's lawyers drafted and forwarded a proposed settlement agreement to Judd Burstein (DiBella's attorney). The document, if signed, would have required Hopkins to pay DiBella $170,000 in three payments spread over the next fourteen months and release the following statement to the media: "Lou DiBella and Bernard Hopkins have settled Mr. DiBella's lawsuit against Mr. Hopkins on confidential terms. Mr. Hopkins states, 'At no time did Lou DiBella request or receive a bribe or under the table payment from me or do anything wrong.'"
But there were problems with the proposal. Hopkins refused to put teeth in the payment provision, and DiBella envisioned spending additional money on attorneys fees to collect. And perhaps more important, the proposed settlement contained the following provision: "Except for the statement set forth above, the parties shall not make any statement about this settlement, the transactions and occurrences giving rise to the action, or the action to anyone and shall keep the terms of this agreement absolutely confidential."
That was the deal-breaker. DiBella's case was primarily about damage to his reputation. Laying aside the irony of Bernard Hopkins requesting a gag order, DiBella wanted to be able to speak freely once the case was over. He didn't want Hopkins to "spin" the settlement with comments like "I signed it to save money on lawyers and get rid of the case and I'm not allowed to say anything more; but people in boxing know what this was all about." DiBella was opposed to a gag order of any kind. His view was that Hopkins is good at dishing it out when it comes to someone else's reputation and Bernard should be able to take it as well. So rather than accept a settlement that he viewed as equivalent to a draw, DiBella went for the knockout.
The trial began on Monday, November 4th, before Judge Denny Chin, a former assistant United States Attorney who has been on the bench for seven years. That morning, the jury was chosen; four men and four women including one African-American. For the next two days, Burstein lay the groundwork for DiBella's case. His first three witnesses were Kery Davis (senior vice president of programming for HBO Sports), Peter Mozarsky (vice president and senior counsel for sports and original programming at HBO), and Dave Itskowitch (vice president of DiBella Entertainment). Through their testimony, the following timeline was pieced together.
In late 1999, DiBella decided to leave HBO and began negotiating his termination agreement with the cable company. Then, in January 2000, Roy Jones decided to make a May 2000 defense of his light-heavyweight title against Richard Hall. HBO was contractually bound to televise the fight. And by contract, the undercard fight had to be approved by Square Ring (Jones's promotional company) and Murad Muhammad (Jones's promoter). DiBella and Kery Davis wanted to put Hopkins on the undercard, and it was agreed by all concerned that Bernard would fight Brian Barbosa (one of Murad Muhammad's fighters).
Meanwhile, in February and March 2000, DiBella was meeting at HBO with Hopkins and two of Bernard's attorneys (Arnold Joseph and Scott Magargee), and an agreement for a future working relationship between DiBella and Hopkins was reached. As part of that agreement, Hopkins was to pay DiBella $50,000.
The focus of the lawsuit was on that $50,000 payment. Hopkins said it was a bribe to get on HBO; that DiBella performed no services for him prior to his entry into the 2001 middleweight championship tournament (for which DiBella was paid by Don King); and that, in any event, it would have been unethical for DiBella to enter into a business arrangement with a fighter while he was still in a position of authority at HBO. DiBella said the payment was for services to be rendered after he left HBO and that he'd disclosed his relationship with Hopkins to Seth Abraham (president of Time Warner Sports), Kery Davis, and Peter Mozarsky.
In mid-March 2000, in anticipation of the Barbosa fight, DiBella lent Hopkins $30,000 for training expenses. Then, on March 26, 2000, Barbosa was cut in a tune-up bout and a replacement opponent had to be found. The nod went to Syd Vanderpool, who was also promoted by Murad Muhammad.
On May 12, 2000, DiBella signed his termination agreement and left HBO. The key to the agreement was a clause that gave him fifteen dates on which he was to provide fights to be televised by the cable network.
The night after DiBella left HBO, Hopkins won a twelve-round decision over Vanderpool. On December 1st, in a rematch against Antwun Echols, he stopped his opponent in the tenth-round. Then, at DiBella's urging, he entered Don King's middleweight championship tournament and, on April 14, 2001, decisioned Keith Holmes. The Echols and Holmes fights were televised by HBO on dates that "belonged" to DiBella.
Three weeks after defeating Holmes, Hopkins voiced his feelings about DiBella to internet writer Paul Upham. "It was a great choice that I made working with Lou DiBella," Hopkins said. "He showed me what kind of man he was. He not only invested in me as a person and a human being; he didn't let any advice that might of come through his ears in the last seven or eight years influence his thinking on treating [me] as a person. Lou DiBella has been snow on Easter Day to me. He's been Santa Claus for kids waiting for December because he delivered what he said he would. That's big fights, more belts, and better promotion from when I never had it with the people I was with formerly who didn't care. Lou DiBella played a good part, and I will never forget him for that."
On September 29, 2001, Hopkins reached the pinnacle of his career when he knocked out Felix Trinidad in the twelfth round. When Larry Merchant stuck a microphone in front of him immediately after the bout, the first person Bernard thanked was DiBella.
During the first two days of trial, the jurors saw Hopkins and DiBella but, except for a brief tape excerpt, did not hear them. What they saw worked in Bernard's favor. Each day, he entered the courtroom impeccably dressed in a conservative suit. With his regal profile and calm exterior that revealed little of his emotions, he looked like Denzel Washington on Wall Street. DiBella, by contrast, squirmed constantly in his seat and resembled a bit player on The Sopranos.
All that changed on Wednesday, November 6th. Late in the morning, Judd Burstein gave each of the jurors a transcript of the interview between Hopkins and Steve Kim. Then he played a tape of the interview [excerpts of which follow] and the ugliness in Bernard's character became clear.
"I want you to write it," Hopkins told Kim. "Now don't bullshit. Ain't nothing off the record. Me and you talk. You know how to fix it up in there. You got the tape recorder and you can't be held accountable for nothing because you're protected by the Constitution of America and you understand that Bernard said this. Every time I fought, Lou DiBella got paid, even when he was with HBO, which is fucking wrong. What I'm saying is, Steve, is that the bottom line is, Syd Vanderpool fight; now you tell me; do an HBO employee accept fifty thousand dollars while he's still working for HBO? So the thing is, everybody is trying to make Lou out as this fucking angel and that Bernard Hopkins is a fucking devil and they trying to make me look like the bad guy. So if they want to let the fucking cat out of the bag; then let's come on, let the fucking cat out of the bag. Ask HBO why an employee of their company asked me to give him fifty thousand. And I paid him too. I gave him fifty thousand dollars. Now I'm asking Steve Kim; is that ethically right for HBO? You think Time Warner want to hear about that?"
"Who did you have to give fifty thousand to?" Kim queried.
"Lou DiBella. Listen man. Listen to what I'm saying. What I'm telling you right now, Steve, is some serious serious allegations. Wouldn't you agree?"
"Oh, yeah! I'd call them very serious."
"Now listen to this," Hopkins continued. "I'm telling you right now that these motherfuckers -- and you use my words -- trying to make it seem like and trying to dance around and shit that I'm the bad guy; and you know Lou is whispering stuff probably around to people too; he just ain't saying nothing open. So why not let the fucking cat out of the bag now? What's on your mind, Bernard? What's on my mind is, if anybody influence behind the scenes about Bernard Hopkins crossing Lou DiBella, they gotta understand that it was money taken out of my career before I even fought Trinidad to pay to get on the card. So yes, there. Was the money wired or the check sent prior to that day he left? Yeah; [there] was a way of doing it to not be discovered. It wasn't a gift. I don't know him that well to give DiBella fifty thousand dollars way before he even start establishing his relationship with me as an advisor. You follow me? What I'm saying is, every time Lou DiBella did something for Bernard Hopkins or played a role for Bernard Hopkins, even when he was with HBO -- that's what you put in there -- even when he was with HBO, he got paid. That's how you do it, Steve, and you're gonna get calls. Listen to what I just said. This is how you do it. I became real good at this. Bernard claims or Bernard said or however you put it; everything Lou DiBella have done for me, he have gotten paid for it; even when he worked as an employee for HBO."
"That's saying he's taking money under the table," Kim responded.
"Okay," Hopkins answered. And then the tirade continued. "I can tell you right now that I can back up every goddamn thing I'm saying, and this here is going to make the motherfuckers, whoever it is, run under the fucking covers and wish I never said it. Because the bottom line is, other people is gonna ask questions. Ohhhh! Did he really do that? And then they're gonna start digging. You see, Steve. Let me tell you something, Steve. I got a lot of information. I just don't spill everything to you. I know a lot of shit that was going on even before I dealt with Lou DiBella, but I didn't say nothing long as I didn't get fucked. But let's be clear -- and I'm going to keep repeating myself till you say, 'Bernard, okay; I got it.' Every time Lou DiBella have done something for me, including lobby for me to get me on the Roy Jones undercard starting from Syd Vanderpool -- it ain't that many; you can count 'em up yourself; it ain't that many -- he got paid even when he worked for HBO. I can prove it. So what I'm saying to you, Steve; you gonna slay the fucking bastard."
At 12:07 p.m., immediately after the tape was played, Burstein called DiBella to the witness stand. DiBella was a nervous wreck. He's a passionate man, and Bernard's betrayal had hurt him deeply. The court proceedings had become the emotional equivalent of a criminal trial for him. Even though he was the plaintiff in the case, he felt like the defendant because it was his reputation that was on trial. Now, his complexion was almost as green as his shirt. But because of his nerves, DiBella came across as aggrieved (which he was) and soft-spoken (which he normally isn't). It was a marked contrast to the stream of obscenity-laced vindictiveness that the jurors had just heard on tape from Hopkins.
What was the $50,000 payment for?
DiBella explained to the jurors that he knew the business of boxing and could offer sound advice to Hopkins. He had also been able to guarantee to Bernard that, once he left HBO, Hopkins would be showcased on the network through dates to be included in his termination contract. And he would spend to publicize and market the fighter.
DiBella confirmed Mozarsky's testimony that he had properly disclosed to HBO that he had entered into a business relationship with Hopkins. He confirmed Kery Davis's testimony that the Hopkins-Echols rematch was the first card to use an HBO date granted to him under his termination contract. In fact, Davis had testified that Hopkins-Echols II was preconditioned on DiBella using one of his dates, and the same precondition was true of Hopkins-Holmes. Moreover, Davis had testified that, during the Hopkins Echols II negotiations, he had thought of Team Hopkins as being Hopkins, DiBella, and Arnold Joseph.
Burstein asked DiBella if he had demanded $50,000 as a precondition to Hopkins appearing on HBO.
"Absolutely not," DiBella answered. "It's against everything I am and everything I stand for. I would never do anything like that."
Then came a moment of high drama. Burstein asked DiBella about the impact that Hopkins's charges and the Kim article had on him.
"It was devastating to me," DiBella responded. "It was one of the hardest things . . ." His voice faltered and then he broke down. "It killed me," he said, his words mingling with sobs. "I was ripped apart. I'm still ripped apart. I have to answer this allegation constantly. I've been lucky to have a pristine reputation in a filthy business. And to be portrayed as a television executive who sold dates to a fighter was devastating to me. It was a horrible lie."
DiBella's direct testimony ended with the introduction of a pair of boxing gloves. On October 1, 2001, two days after he defeated Trinidad, Bernard had invited Lou to his room at the St. Regis Hotel and, as a show of appreciation, given him what he said at the time were the gloves he'd used to knock out Trinidad.
Then Robert W. Hayes (Hopkins's attorney) began his cross-examination of DiBella, but it didn't lead to much. The salient facts that unfolded were as follows.
Once Hopkins (on DiBella's advice) signed a promotional agreement with Don King and entered the middleweight championship tournament, Bernard was no longer obligated to pay DiBella out of his purses. Rather, DiBella was to collect his fee from King out of net revenue from each fight. DiBella was paid $390,000 by King out of revenue from Hopkins-Holmes and $300,000 by King out of revenue from Hopkins-Trinidad. Neither number was unreasonable given the amount of money generated by each bout, the fact that Hopkins-Holmes had been televised on one of DiBella's HBO dates, and the fact that DiBella had been receiving a base salary of $600,000 with a guaranteed bonus of at least $300,000 annually when he left HBO.
After Hopkins-Trinidad, King had been slow to negotiate a contract to pay DiBella out of revenue on future fights. According to the defense, DiBella then asked Bernard to pay him out of his own purse. And when Bernard refused, Lou broke their agreement by pressuring Hopkins to breach his contractual obligations to King and manipulating the media to preclude King and Hopkins from entering into a longterm contract for Bernard's services with HBO. That caused Bernard to begin asking questions and view his entire relationship with DiBella in a different light.
But it didn't stick. DiBella testified that he had asked Hopkins to support him in his negotiations with King; nothing more. And Bernard had possessed the leverage to do that successfully if he'd chosen to exercise it. In fact, on December 20, 2001 (the day after the Kim interview), Hopkins had renegotiated his own contract with King to increase the minimum purses to which he would be entitled for certain fights by roughly $1,000,000 per fight and gotten King to give him a $225,000 Bentley as part of the bargain.
By the end of the day, DiBella had begun to calm down; like a fighter who entered a fight doubting his ability to survive and has gone back to his corner saying to himself, "Hey; I'm winning this fight." The following morning, his cross-examination ended. Then, shortly after noon on Thursday, Burstein called Hopkins to the stand.
It was a shrewd decision. Conventional courtroom procedure would have been to wait for Hayes to call Hopkins as a defense witness. But that would have allowed Hopkins to tell his story in his way. Now the facts would come out the way Burstein wanted them to.
Bernard is a great fighter. He's also exceedingly verbal and smart, but his credentials as a businessman are suspect.
Since dumping DiBella, Hopkins has had only one fight (against Carl Daniels on February 2nd of this year). His next bout is tentatively scheduled for January 11th against Morrade Hakker at the First Union Center in Philadelphia. Don King won the right to promote the bout with a purse bid of $1,501,000. Hopkins's announced share of that total will be $1,125,750, although there are rumors that he made a side-deal with King to ensure DKP winning the purse bid that will reduce his take to $750,000. There are also persistent rumors that the fight won't take place at all. Both HBO and Showtime have declined to televise it, and King might be reluctant to promote a pay-per-view bout on the same night as a free National Football League playoff game.
Meanwhile, Hopkins has turned down an offer of $6,000,000 plus a percentage of profits to fight Roy Jones on HBO Pay-Per-View and a three fight multimillion-dollar package from Showtime for bouts against Hakkar, Joe Calzaghe, and Harry Simon. That led King to declare recently, "Bernard Hopkins is like a man who won the lottery and then waited to cash his ticket until after it expired."
On the witness stand, Hopkins didn't have control over his environment. And as Burstein's questioning progressed, the loss of control appeared to bother the fighter. His confident exterior melted away and he seemed to physically shrink, pulling his shoulders protectively inward. This wasn't something that could be settled with fists.
Hopkins denied to the jury that he had a business relationship with DiBella when the $50,000 payment was agreed upon in early 2000. "I was told that $50,000 would be the fee to get on the [Vanderpool] card," he said. That, of course, ignored the fact that Hopkins was locked into the card when the earlier deal was made for him to fight Brian Barbosa
"I don't know if it was criminal or not that he took the $50,000," Hopkins continued. "At the time I said good things about Lou DiBella, I honestly believed he was the person I said he was . . . I'm a goldfish in a river with sharks."
It had been previously suggested to Burstein that he hand Hopkins the gloves that Bernard had given to DiBella at the St. Regis Hotel (the ones from the Trinidad fight) and ask him to try them on to see if they fit. The attorney had emphatically rejected the suggestion. But he did ask Bernard about the gift.
"They're not the gloves I fought in," Hopkins responded.
In reality, the gloves were a back-up pair that had been held by the state athletic commission for emergency use in case the gloves actually worn split during the fight. At day's end as the parties walked out of the courtroom, DiBella turned to a friend, lifted his right index finger, and ran it across his neck, emulating Hopkins's trademark slash of an executioner.
The trial resumed on Tuesday, November 12th, after a four-day holiday weekend. The day started with what Hopkins regarded as a good omen. He was sitting in the courtroom with his mother, waiting for the session to begin, when a Hispanic maintenance worker approached and asked for his autograph.
"I didn't think Spanish people wanted my autograph," Hopkins told his suitor.
"I do. I think you're great."
"What's your name?"
Hopkins smiled and turned to his mother. "That's a good way to start the day," he said. He signed. Then court began. And right away, Burstein was all over him.
Hopkins claimed that there had been no business relationship between him and DiBella other than payment of the alleged $50,000 bribe until after the second Echols fight, which took place on December 1, 2000. He also claimed he didn't learn until autumn 2000 that DiBella had left HBO. And he maintained that two of his attorneys (Arnold Joseph and Scott Magargee) had been party to the conference call in early 2000 during which DiBella demanded the alleged $50,000 bribe but that neither attorney suggested to him until months later that it had been improper for DiBella to ask for the $50,000. His testimony boiled down to the proposition that he didn't know it was wrong for DiBella to demand and receive the $50,000 until he learned in autumn 2001 (after the Trinidad fight) that it was against HBO policy for HBO employees to demand and receive bribes. "I thought that's the way business was normally done," he told the jury.
Burstein ran through a string of contradictions between Hopkins's deposition testimony, an affidavit that Bernard had signed in support of a failed motion for summary judgment, and his trial testimony. For example, at his deposition, Hopkins had stated under oath that his advisory relationship with DiBella began shortly after the Vanderpool fight.
Next, Burstein elicited the admission from Hopkins that DiBella had agreed to loan him $30,000 for training expenses in advance of the Vanderpool fight. Hopkins claimed that the loan had been negotiated in the same conversation that the disputed $50,000 payment was agreed upon. Why had DiBella loaned him the money?
"They needed this fight on HBO," Hopkins answered. "I wasn't going to fight on the card unless Lou loaned me the $30,000 for training expenses."
That, of course, raised the issue, if HBO needed the Hopkins-Vanderpool fight so badly that DiBella had to loan Hopkins $30,000, then why did Bernard feel that he had to pay a $50,000 bribe to get on the card?
As the noose tightened around his neck, Hopkins began to ramble evasively. Again and again, the judge admonished, "Mr. Hopkins; you're not answering the question . . . Mr. Hopkins; just answer the question 'yes' or 'no' . . . Mr. Hopkins; every time there's a question, you go way beyond the question. Just answer the question."
Then Burstein confronted Hopkins with the Steve Kim interview. At his deposition and in an affidavit, Bernard had stated under oath that Kim had taken his words out of context. Now, after an excerpt from the tape was played for the jury, Hopkins became even more evasive and Judge Chin took over the questioning.
"Is the article accurate?" the judge demanded.
"Yes," Hopkins admitted.
"Are you quoted accurately?"
"Is anything taken out of context?"
"Was that an accurate recording of what you said to Mr. Kim?"
On Wednesday, November 13th, Hopkins's testimony was interrupted so Burstein could question Steve Kim, who had flown from Los Angeles to New York. Kim verified the transcript of the tape that Burstein had put into evidence and testified that Bernard made it clear to him during their interview that he wanted his allegations about DiBella to be published. He also testified that, several days after the article went online, Hopkins telephoned Kim and complimented him on the piece being "very very very very accurate."
As for the damage to DiBella's reputation caused by the article, Kim acknowledged, "This one created a few ripples. If you're selling honor and integrity and your personal reputation is questioned, that would have to hurt."
Then Hopkins returned to the stand and it was Hayes's turn to question. First he led his client through a recitation about growing up on the mean streets of Philadelphia (omitting reference to the forty-six months that Bernard spent in prison). After that, Hopkins talked about the sacrifices he had made to become a world champion.
As for the nitty-gritty of the case, Hopkins testified that DiBella told him in March or April of 2000 that he would probably be leaving HBO and was interested in working with Bernard should that happen. But according to Hopkins, "We never talked about prepayment for anything." Then Bernard repeated the allegation that he took part in a speaker-phone conversation with DiBella at one end of the line and Hopkins with two of his attorneys at the other end. During this conversation, DiBella allegedly said that Roy Jones and Murad Muhammad didn't want Bernard on the May undercard but that Lou would get him on if Bernard gave him $50,000 immediately after the fight. According to Hopkins, there was no mention in that conversation of DiBella providing any other services and he had no business relationship with DiBella until after the December 2000 Echols rematch. In fact, according to Hopkins, DiBella didn't do anything for him after the Echols rematch either other than advise him to enter the middleweight championship tournament. Then, once Hopkins defeated Trinidad, the relationship between fighter and advisor fell apart because, in November 2001, Lou asked for fifteen percent of Bernard's gross purses for the remainder of his career.
"He always said he wouldn't take nothing from me," Hopkins testified. "I seen him changing after the Trinidad fight. He continued to keep asking for the fifteen percent. Then he started hollering and screaming and I stopped returning his telephone calls because I knew what he was calling for. I was prepared to work with Lou DiBella, but I wasn't willing to give him fifteen percent."
Also, according to Hopkins, he learned for the first time on December 19, 2001 (when Arnold Joseph reported to him about a conversation with Kery Davis) that DiBella had violated HBO policy by demanding the $50,000 bribe. "I got betrayed; I got lied to," said Hopkins. So when Bernard talked with Steve Kim that same day, "I lost it a little bit," he acknowledged. "I was angry." But, said Hopkins, "My intention wasn't to hurt Lou. I was looking for answers."
However, the Hopkins-Kim interview tape spoke for itself. In truth, Hopkins was making accusations; not looking for answers.
On the morning of Thursday, November 14th, Burstein got a chance to re-examine Hopkins and he exposed myriad contradictions between the fighter's trial testimony, his deposition testimony, and his affidavit in support of an earlier motion for summary judgment.
[Here, I should note that, after Hopkins's testimony was complete, I was called to the witness stand. Bernard had denied telling DiBella that the gloves he gave him on October 1, 2001, were the gloves he'd worn in the Trinidad fight. I was there when the gift-giving occurred, and Burstein made a last-minute decision to put what I saw on the record. My testimony was brief. I stated that, when Bernard gave the gift, he told DiBella, "These are the gloves I knocked out Trinidad with. Everything good that happened to me this year, I owe to you." The thrust of my testimony was not that the gloves were genuine, but rather what Hopkins told DiBella.]
Then the defense called its first witness; Scott Magargee.
Hopkins's entire legal team worked at Cozen O'Connor; a Philadelphia law firm with approximately 440 attorneys, sixteen offices in the United States, and an office in London. Magargee was a senior associate at the firm. His background was primarily in criminal defense, although he also did some civil litigation.
Under questioning by Hayes, Magargee stated that he was in a conference room at Cozen O'Connor with Hopkins and Arnold Joseph on April 11, 2000, and overheard a conference call between them and DiBella. He then claimed he overheard DiBella saying that the May 13th Roy Jones card was one of his dates and that he could convince HBO to put Bernard on the undercard but that his fee for doing so would be $50,000. According to Magargee, he gave no thought to the propriety of DiBella's request and heard no further discussion about it until he learned much later that the $50,000 had been paid.
To call Burstein's cross-examination of the witness a 10-7 round would be charitable to Magargee. Among the points made were:
(1) Although Magargee had been admitted to practice in Pennsylvania and New Jersey, he had subsequently been declared "administratively unauthorized" to practice law by the Supreme Court of New Jersey.
(2) Robert Hayes and Arnold Joseph will be among those voting in the future to determine whether or not Magargee is elevated to partner status at Cozen O'Connor.
(3) At Margargee's deposition, he had been unable to recall whether the supposed bribe conversation took place in March or April 2000.
(4) Also at his deposition, Magargee stated it was Arnold Joseph (not DiBella) who had told him that the Roy Jones card would be on one of DiBella's dates.
(5) Magargee couldn't remember the specific words used by DiBella when he'd demanded the alleged $50,000 bribe and couldn't remember whether or not Hopkins agreed to pay it in the same conversation.
(6) There was nothing in Magargee's billing printout for April 11, 2000, that indicated he had attended a meeting with Hopkins.
Here, Hayes objected, stating that portions of the billing printout had been redacted -- i.e. whited out. That angered the judge, who noted that it was Hopkins's own legal team that had whited out a portion of the billing printout on grounds that the redacted material was confidential and had nothing to do with the DiBella-Hopkins litigation. The judge then called Hayes's objection "unfair" and "misleading" and told the jury, "Mr. Burstein's point is that, if Mr. Magargee had met Mr. Hopkins, he would have written down that he met with Mr. Hopkins."
(7) Magargee claimed that he had been privy to a conversation that amounted to commercial bribery (which is a criminal offense). Magargee's background is primarily in criminal law. Yet he claimed that, at the time of the conversation, he didn't know that DiBella was doing anything illegal, unethical, or otherwise inappropriate.
On Thursday afternoon, portions of Don King's taped deposition testimony were played for the jury. Then Hayes called Arnold Joseph as a witness. Joseph repeated the story of the April 11, 2000, conference call in which DiBella allegedly demanded the $50,000 bribe. He also claimed that, despite having spent three years as an assistant district attorney in Manhattan prior to going to work at Cozen O'Connor, he didn't know at the time that there was anything improper about DiBella's demand because he thought that May 13th was one of DiBella's dates. Here, it's worth noting that, in his deposition, Joseph never said that Magargee was present during the alleged "bribe" conversation.
Then there was the matter of when Hopkins actually paid DiBella. Everyone agreed that, on May 19, 2000, Hopkins repaid the previously-mentioned $30,000 dollar loan. However, the $50,000 payment was not made until January 2001. Hopkins had testified that, on May 13th, minutes after the Vanderpool fight, he offered DiBella checks for $30,000 and $50,000 and that DiBella refused them, telling him that he was still working for HBO. [In truth, DiBella had already finalized his termination agreement and had left HBO.] Then, according to Hopkins, DiBella went to Philadelphia on May 19th and picked up the $30,000 check but told Bernard that he was still working out the details of his termination contract and thus wanted to further defer the $50,000 payment. Joseph offered similar testimony, although his recitation of events immediately after the Vanderpool fight differed in significant respects from Hopkins's purported recollection.
The heart of the matter, according to Burstein, was that, in the year 2000, DiBella had given deposition testimony for use by Hopkins in a lawsuit in Denver between Hopkins and America Presents. Prior to the actual trial, the attorney for America Presents raised the question of whether DiBella had a business relationship with Hopkins that the court should be aware of, since that might have a bearing on how Lou's credibility would be weighed by the Denver jury. On August 18, 2000 (three months after the Vanderpool bout), Arnold Joseph (with Magargee at his side) denied to the judge in Denver that Hopkins and DiBella had any relationship. According to DiBella, it was Arnold Joseph who had requested that payment of the $50,000 be deferred. And according to Burstein, Joseph requested the deferral so he could lie to the judge in Denver about the existence of the DiBella-Hopkins relationship.
Joseph admitted on cross-examination that he had "in the back of my mind a slight concern" that the $50,000 might become an issue in the America Presents litigation. But under cross-examination, he continued to maintain that there was no business relationship between DiBella and Hopkins at that time. He also stated that he never questioned the propriety of DiBella's actions until December 2001 when DiBella allegedly asked for fifteen percent of Hopkins's future purses and Kery Davis expressed surprise when Joseph told him the Cozen O'Connor version of the DiBella-Hopkins relationship. That, according to Joseph, caused him to re-evaluate DiBella's conduct. Burstein then ran through a litany of inconsistencies between Joseph's trial testimony and his earlier deposition, and the day's session came to an end.
The defense rested on Friday morning after calling Bernard's wife and mother-in-law on minor bookkeeping matters. If anything, their testimony helped DiBella, since Hopkins had denied that he brought his wife to DiBella's 2000 Christmas party, and Jeanette Hopkins admitted that she had been there with her husband.
At 11:30 a.m. on Friday, Robert Hayes began his summation to the jury. Using Hopkins as a prop, he stood behind the fighter, occasionally putting his hands on Bernard's shoulders. Then he moved to the lectern directly in front of the jury and pounded away at the theme of his case -- that Hopkins, Arnold Joseph, and Scott Magargee had all been privy to an April 11, 2000, conference call in which DiBella demanded a $50,000 bribe.
At 1:30 p.m., it was Burstein's turn. But five minutes into Burstein's summation, the judge, who had been perusing some documents, halted the proceedings and asked counsel to come with him to the robing room. Minutes later, they returned to the courtroom and the judge addressed the jury. His remarks were stunning.
The judge had been given an unredacted copy of Scott Magargee's billing printout for April 11, 2000; the day that Magargee, Hopkins, and Arnold Joseph all claimed to have been present at Cozen O'Connor for the conference call during which DiBella purportedly demanded a $50,000 bribe. But contrary to the representation that Hayes had made in court the previous day, the redacted material did relate to DiBella v. Hopkins; it was not confidential; and it indicated that, while there had been telephone calls between Hopkins and Magargee that day, THERE HAD BEEN NO FACE-TO-FACE MEETING BETWEEN THEM. In other words, the testimony that Hopkins, Magargee and Joseph had been together in a conference room listening to Lou DiBella demand a bribe on a speaker-phone was fiction. Moreover, it appeared as though someone at Cozen O'Connor had deliberately whited out portions of the billing printout with the intent of fraudulently supporting the defense contention that the meeting in question actually occurred.
Burstein knew a prime opportunity when he saw it. Holding the billing printout aloft, he walked over to Hopkins, pointed directly at him and, with all the indignation he could muster, declared, "This man is a liar. Bernard Hopkins makes it up as he goes along. He's a great athlete, but he's a terrible person. That kind of rampant dishonesty needs to be checked. Bernard Hopkins has told you all that, when it suits his purposes, he'll lie under oath."
Then, Burstein flashed chart after chart on a video screen. The first few charts each bore the legend "Arnold Joseph's Lies" above excerpts from Joseph's testimony. Next, came charts entitled "Scott Magargee's Lies". After that, Burstein read a statement by Judge Kane, who had presided over the America Presents litigation in Denver. On September 4th of this year, referring to Joseph's conduct, Judge Kane declared, "Now I find myself faced with serious allegations that there was never a fair presentation of facts in this case and that I may have been misled by factual omissions and possibly even outright misrepresentations."
By the time Burstein finished his summation, labeling Hopkins "a vicious petty man," the question wasn't whether the jury would find in favor of DiBella; it was "how much?"
During a brief interlude that followed, Hayes sought to explain his handling of the billing printout. But the judge responded, "I don't accept what you tell me. It's appalling. I am appalled." Then Judge Chin read his charge to the jury (an explanation of the law to be followed during deliberations) and court adjourned for the weekend.
Jury deliberations began shortly after 9:00 a.m. on Monday, November 18th. At 9:25, the jurors sent a note to the judge asking for a flip chart, easel, masking tape, markers, pens, post-its, highlighters, coffee, and water.
"Too bad they didn't ask for a rope and noose," Burstein told DiBella.
The supplies were provided. Then, at 10:40 a.m., the judge called called counsel back into the courtroom to address the issue of Scott Magargee's billing printout.
"I was extremely troubled by events relating to the time-sheet," Judge Chin told the attorneys. "I have some questions. Whose decision was it to make the redaction? Who made the redaction?"
"I did, your honor," Hayes acknowledged.
"What was the basis for your decision? It seems to me that, on their face, the [redacted] words are relevant."
Hayes launched into a rambling response and, after a while, the judge interrupted.
"I don't see how you can make that argument with a straight face. It's ludicrous. It's all very very troubling." Then, regarding the issue of sanctions against Hayes and possibly others at Cozen O'Connor, Chin said, "I'm reluctant to go down this road; but frankly, I don't think I have much choice. On the face of it, it appears to me that you withheld evidence that might be helpful to Mr. DiBella and that you tried to mislead the jury. It is the critical conversation in the case. It is during this conversation that Mr. DiBella supposedly [demanded] a bribe. It is extremely extremely troubling. There are different ways to address the issue. But frankly, you should treat it as a serious matter."
Then came the waiting.
DiBella and his company (DiBella Entertainment, Inc) were both plaintiffs in the lawsuit and had raised two causes of action.
The first claim was for libel. Here, DiBella had to prove by a preponderance of the evidence (that it was more likely true than not) that (1) the statements complained of were defamatory; (2) the statements complained of referred to DiBella and/or DiBella Entertainment; and (3) Hopkins made the statements. In addition, he had to prove by clear and convincing evidence (evidence establishing a high degree of probability) that (4) the statements complained of were false; and (5) Hopkins made them knowing that they were false or with reckless disregard as to truth.
DiBella's second claim had been made pursuant to a theory known as "quantum meruit" which requires the payment of fair value for services rendered in the absence of an express contract. Here, it was necessary to prove to the jury by a preponderance of the evidence that (1) DiBella and/or DiBella Entertainment performed services in good faith; (2) Hopkins accepted these services and was enriched by them; (3) DiBella had expected reasonable compensation for his services; (4) Hopkins did not pay reasonable value for the services; and (5) equity and conscience required further payment.
A unanimous verdict was required on each cause of action.
Shortly before 3:00 p.m. on Monday afternoon, the jury asked to hear the tape of an interview that Hopkins had given to Rich Marate of ESPN Radio in February 2002. The Marate interview and statements that Hopkins had made to Ron Borges of the Boston Globe and Bernard Fernandez of the Philadelphia Daily News were also at issue in the trial. Then, at 5:30 p.m., deliberations were halted for the night.
The jury reconvened on Tuesday morning, and the feel of a verdict was in the air. At 1:12 p.m., shortly after lunch, the judge received a note stating that a verdict had been reached. At 1:30 p.m., the jury entered the courtroom and the verdict was read.
DiBella was awarded $110,000 in compensatory damages and an additional $500,000 in punitive damages in conjunction with the interview that Hopkins gave to Steve Kim. The other libel claims were dismissed, in part because the jurors felt that they were duplicative of the first. The quantum meruit claim was also denied because the jurors felt that DiBella had been adequately compensated for the work he'd performed on Hopkins's behalf. "The numbers were a bit intimidating," one of the jurors said afterward. "None of us get millions of dollars for advising someone or signing a contract." Another juror added, "All this talk about dates and Echols I and Echols II; it was a bit confusing."
There will be post-trial motions and, perhaps, appeals. Also, requests for sanctions against Hopkins's counsel and possible disciplinary proceedings lie ahead. As far as DiBella is concerned, a criminal prosecution would also be appropriate.
"The most shocking thing to me about this experience," DiBella said after the verdict had been reached, "has been the moral bankruptcy of Bernard's lawyers. I'm repulsed by their conduct. They went far beyond the boundaries of acceptable advocacy. All they did was sit down with their client and piece together a pack of lies. If they aren't punished, there's no point in the legal system having rules to govern the conduct of lawyers. "
Then DiBella turned pensive. "I'm sorry it came to this," he said. "But Bernard did what he did, and I did what I had to do in response to keep my reputation in tact. There hasn't been a day since the Kim article came out that I haven't thought about it. Every day, Bernard's accusations have been a dark cloud hanging over my life. His betrayal will always hurt; but at least now, I can put it behind me. I'm at peace with the fact that my side of the story has been told and the truth has won out."
Then DiBella reached into his pocket and pulled out a totem he'd been carrying around for months; the metal top from a small glass jar. The underside of the top was inscribed with a quotation from Mark Twain: "If you tell the truth, you don't have to remember anything."
That's what DiBella v. Hopkins was all about. Bernard Hopkins, for all his talents, couldn't turn an ugly lie into the truth.
Copyright by Thomas Hauser and Secondsout.com
Thomas Hauser can be reached reached by E-mail at thauserthauserrcn.com.