Berry Law Pllc v. Kraft Foods Group , Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided January 30, 2015
No. 14-7001
BERRY LAW PLLC,
APPELLANT
v.
KRAFT FOODS GROUP , I NC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00475)
R. Stephen Berry was on the briefs for appellant.
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 for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Berry Law PLLC
appeals from the district court’s dismissal of its implied-in-

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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

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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 can tell you that
presuming we move forward, you will be our counsel
on this matter. That requires no further approvals.
(Emphasis added in the complaint.)
Berry Law claims that it persisted, “ask[ing] that it be
able to carry its evaluation time and bill it later if the matter
‘moved forward,’” but does not claim that Kraft reconsidered
its earlier denial. Rather, the complaint alleges that, in
January or February of 2012, Kraft “‘moved forward’ with
pre-Complaint discussion or negotiation” with News Corp.
According to Berry, on February 19, 2012, Kraft “terminated
Berry Law’s representation, cryptically indicating that it did
not believe that some of its purchases from News were
overcharged and stating that its damages were uncertain.”
Berry Law then sent Kraft a “quantum meruit fee
statement” and other correspondence seeking $191,528.70 in
legal fees and expenses that it believed it was owed. Kraft did
not respond to Berry’s communications. Berry then filed this
action seeking that amount—i.e., “the value of services which
enabled and facilitated Kraft’s discussion or negotiation with
News and its possible compensation by News”—based on an
implied-in-fact contract or a quasi-contract theory. The
district court dismissed the complaint.
* * *
To state a claim for breach of an implied-in-fact contract,
Berry Law must plausibly allege that it rendered Kraft
valuable services; that Kraft accepted, used, and enjoyed those

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services; and that the circumstances “reasonably notified”
Kraft that Berry “expected to be paid” by Kraft. Jordan Keys
& Jessamy, LLP v. St. Paul Fire & Marine Ins. Co., 870 A.2d
58, 62 (D.C. 2005). Notice to the recipient that the provider
expects to be paid is commonly the critical issue. See
Bloomgarden v. Coyer, 479 F.2d 201, 209 (D.C. Cir. 1973).
In applying these principles we will assume arguendo that the
alleged discussions or negotiations with News Corp. could
qualify as “moving forward” as the term appeared in the
context of the email exchange.
Berry Law’s implied-in-fact contract claim fails because
the complaint does not plausibly allege that Kraft was
“reasonably notified” that Berry expected to be paid for any
work completed before that point. The complaint alleges that
Kraft told Berry that it had “never paid” “fees for work to
create the proposal to share with management,” and “viewed
it as part of what we expect counsel to do in bringing to us a
proposal to use their firm.” Any expectation that Berry might
have had that Kraft would pay for such work was thus
unreasonable. See Jordan Keys & Jessamy, 870 A.2d at 62.
Cherry’s statement that “presuming we move forward,
you will be our counsel on this matter” might be read to
support an implied-in-fact contract as to any work that Berry
Law might complete after “moving forward.” Indeed,
Cherry’s email language, “I can tell you that presuming we
move forward, you will be our counsel on this matter,” recited
and emphasized in the complaint, suggests just that. But the
complaint seeks something completely different:
compensation for work performed before Kraft’s “moving
forward”—that is, “the value of services which enabled and
facilitated Kraft’s discussion or negotiation with News and its
possible compensation by News.” Indeed the complaint
explicitly claims not to be “seeking contingent compensation
from any value received by Kraft from News.” There is thus a

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mismatch between Berry’s claim and the character of the
relief he seeks (and thus, implicitly, the character of the injury
inflicted).
Berry Law’s quasi-contract claim fares no better. To
state such a claim, otherwise known as an unjust enrichment
claim, Berry must plausibly allege that he conferred a benefit
on Kraft, that Kraft retained the benefit, and that Kraft’s
retention of the benefit is unjust under the circumstances.
Peart v. D.C. Hous. Auth., 972 A.2d 810, 813 (D.C. 2009).
Kraft told Berry that it would not compensate him for
work completed prior to management approval. No
compensation is due where the “plaintiff did not contemplate
a personal fee, or the defendant could not reasonably have
supposed that he did.” Bloomgarden, 479 F.2d at 212.
Rather, in view of Kraft’s unequivocally expressed position
on preliminary work, Berry cannot reasonably have
contemplated a fee for work completed before Kraft moved
forward, nor could Kraft reasonably have known Berry
contemplated any such payment. Instead, Berry completed
the memorandum and other legal work in the hope that Kraft
would retain him as counsel in the event that Kraft “moved
forward.” Because Berry Law’s “services were rendered
simply in order to gain a business advantage,” its quasi-
contract claim fails. Id. at 211.
* * *
The judgment of the district court is
Affirmed.

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