Back when Howard Milstein was trying to buy the Washington Redskins, some people complained that the New York real estate developer was a take-no-prisoners businessman who used unusually tough legal tactics to get what he wanted.
It's now becoming clear just how tough Milstein can be, thanks to a document that has surfaced in his legal brawl against the former owner of the Redskins, John Kent Cooke.
Anthony Bergamo, a non-practicing lawyer who works for Milstein, described the litigation tactics in a Nov. 12 deposition. Bergamo said he had secretly taped Cooke in Bermuda last May--wearing a microphone hidden under his shirt--and asked him questions about the Redskins sale. He'd earlier contrived to meet Cooke through his barber in Washington, using a false name and paying lavish tips that the barber's attorney, Bradley G. McDonald, says totaled several hundred dollars.
After Bergamo did his snooping, he met with the attorney representing Milstein in his lawsuit against Cooke: none other than David Boies, the celebrated litigator who represented the Justice Department in its antitrust case against Microsoft. Boies later used some of Bergamo's information in preparing his deposition of Cooke.
Talk about smash-mouth! If the Redskins played this rough, they might be ejected en masse for unsportsmanlike conduct.
The litigation battle began last May, after both Milstein and Cooke had failed in their bids to acquire the Redskins. The owner's box went instead to Daniel Snyder, Milstein's former partner. An angry Milstein filed suit in federal court here, alleging that Cooke had conspired with other NFL owners to scuttle Milstein's $800 million bid for the team.
The tangled tale of Milstein's lawsuit reads like a bad detective novel. But it illustrates the darker side of litigation, where investigators in big cases often use such tactics--politely known in the trade as "pretext interviews."
Bergamo, who manages a hotel owned by Milstein and does other projects for him, started his digging early this year when Milstein was still pushing to buy the team. The New York lawyer said in his deposition that Milstein had told him in late January or early February that "there was a barber in Washington who was telling people that Mr. Cooke had the deal locked up. He always had eight owners in his pocket. . . . He was upset by it. I said to him I'll look into it."
So Bergamo went to see the barber, a man named George Pettinato, who owned Charles Hair Stylist at 1800 K St. Bergamo said he introduced himself as "Anthony Burke" and visited the shop several more times in late February. On March 3, Bergamo even went to look at a building Pettinato owned on the Eastern Shore, claiming he might want to buy it.
Bergamo kept calling the barber to see when Cooke might be coming into the shop, and finally arranged a "chance" encounter with him on April 7. Bergamo testified that he went to the meeting with a concealed microphone clipped to his undershirt, but he didn't record his conversation that day with Cooke. They talked about football, and Bergamo said he might be interested in investing in a restaurant; in a later telephone conversation with Cooke, he mentioned a possible investment of $10 million with Cooke.
Asked in his deposition if he had misrepresented himself to Cooke, Bergamo answered: "I told him what I thought would make him feel comfortable to get the truth from him."
Bergamo next "chanced" to meet Cooke on May 9 in Bermuda, where the Redskins owner had said he was renting a house. Bergamo lay in waiting at the Mid-Ocean Club, where he knew Cooke was a regular visitor. When Cooke came to dinner with his wife that Sunday night, Bergamo tipped the headwaiter for a table next to them, sent over a $98 bottle of wine and was invited to join their table. Again, he was wearing a concealed tape recorder, and this time he turned it on.
Bergamo recalled in his deposition that he told Cooke, falsely, that he was on the board of an insurance company and looking to buy property himself in Bermuda. His real goal was to pump Cooke for information about the Redskins sale and Milstein. He pressed Cooke at one point to agree that Milstein was a "slumlord."
That term was later to prove important. When Milstein's lead attorney, Boies, took Cooke's deposition in September, he asked him whether he had ever referred to Milstein as a "slumlord." Cooke's attorney, Joseph Hassett, protested later that Boies and his litigation team could only have learned of this statement from Bergamo.
Boies confirmed that he interviewed Bergamo in August and learned then, for the first time, about his conversations with the barber and Cooke. The "slumlord" reference initially came from Bergamo's conversations in the barbershop, Boies recalled. The real importance of the Bergamo material, Boies said, is that "it shows Mr. Cooke was not accurate in his deposition when he denied making negative statements about Mr. Milstein."
"If everyone was prepared to tell the truth at a deposition, you wouldn't need investigators," said Boies. "Sometimes the only way to establish the truth is by getting an admission in a usable way--on tape--when the person isn't aware he's making an admission."
Cooke's attorney, Hassett, responded: "Bergamo's tapes show that John Cooke is an honest man who did not interfere with Mr. Milstein's bid to buy the Redskins."
The Milstein suit is an example of what can happen in our litigation-crazy society when people use the courts to settle what seem, at bottom, to be personal grudges. It's also an example of how this kind of scorched-earth litigation can backfire.
Last week, just as the details of Bergamo's deposition were about to be filed in federal court, Milstein's lawyers withdrew their initial suit. They refiled a new version this week in D.C. Superior Court, seeking more than $100 million in damages from Cooke. Cooke had tried to have the federal suit dismissed because he moved to Bermuda in March and is no longer a D.C. resident. But under D.C. law, Cooke's residency isn't an issue.
Perhaps Milstein and his lawyers thought that with the Bermuda peg gone, the amazing Bergamo deposition would never see the light of day. But no such luck. This one should go straight to Hollywood--though it's not clear whether it's a screwball comedy or a horror movie.