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Berry Law PLLC v. Kraft Foods Group, Inc.

United States Court of Appeals, District of Columbia Circuit

January 30, 2015

BERRY LAW PLLC, APPELLANT
v.
KRAFT FOODS GROUP, INC., APPELLEE

Page 506

Appeal from the United States District Court for the District of Columbia. (No. 1:13-cv-00475).

For R. Stephen Berry was on the briefs for appellant.

For Daniel S. Blynn, Darrell J. Graham, and John E. Bucheit were on the brief for appellee.

Before: GRIFFITH and PILLARD, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

OPINION

Page 507

WILLIAMS, Senior Circuit Judge:

Berry Law PLLC appeals from the district court's dismissal of its implied-in2 fact contract and quasi-contract claims against Kraft Foods Group, Inc. We affirm.

* * *

In August 2010, Stephen R. Berry of Berry Law advised Kraft that it might have an antitrust claim worth tens of millions of dollars against News Corporation, News America Marketing FSI LLC, and News America Marketing In-Store LLC (collectively " News Corp." or " News" ). (All referenced facts come from the complaint.) The claim related to possible monopolization and tying in the " sale of in-store promotion services and free-standing-insert coupons placed in newspapers." Kraft's chief litigation counsel, Douglas Cherry, asked Berry for further legal analysis of the possible claim.

Berry Law then prepared a 42-page evaluation memorandum for Kraft's top management analyzing liability and damages issues. Berry alleges that he completed that memo by November 10, 2010. At about the same time, Cherry noted that the matter was " moving pretty fast" and that he wished to brief Kraft's general counsel about the matter. The complaint says that " upon information and belief, [the evaluation memorandum] was forwarded at the very least to Kraft's General Counsel in early 2011." It was presumably Cherry who did the forwarding.

Meanwhile, on October 28, 2010, Berry sent a " retention email" to Cherry. Cherry replied,

[Y]ou have asked about fees for work to create the proposal to share with management. FWIW [For what it's worth], we have never paid for that work as far as I know for any outside counsel. We've viewed it as part of what we expect counsel to do in bringing to us a proposal to use their firm. I don't think this will be a big issue for you in view of the size of the ultimate payout should this matter proceed favorably, but if it helps you to get comfortable proceeding as I suggest, I ...

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