HBO ‘Neverland’ Arbitration Row Paused In Anti-SLAPP Effort

July 16, 2019

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A California federal judge on Monday held back on deciding whether the Estate of Michael Jackson’s breach of contract suit over HBO’s “Leaving Neverland” documentary should go to arbitration right away, instead allowing HBO to address First Amendment issues underlying the allegations it disparaged Jackson’s character.

At a hearing in downtown Los Angeles, U.S. District Judge George H. Wu entertained a short oral argument over the estate’s motion to compel arbitration regarding a 1992 agreement between HBO and the estate before deciding he would not rule on the matter without first giving the network a chance to file an anti-SLAPP motion, which is used to guard against lawsuits that are intended to impede free speech.

HBO’s attorney, Theodore J. Boutrous Jr. of Gibson Dunn & Crutcher LLP, told Judge Wu there was “no question” that “Leaving Neverland” is a documentary of public concern.

“It’s clear it’s fully protected speech,” Boutrous said.

But the estate’s attorney, Jonathan P. Steinsapir of Kinsella Weitzman Iser Kump & Aldisert LLP, argued that federal court rules dictate a deadline for filing anti-SLAPP motions and that it doesn’t apply in relation to motions to compel arbitration.

“Giving them a way out at this point is just not fair,” Steinsapir said.

But Judge Wu said there are SLAPP concerns in the allegations and that he would give HBO a chance to file an anti-SLAPP motion.

In the $100 million suit against HBO, filed in February, the late singer’s estate claims HBO broke an agreement permitting it to use footage from Jackson’s Dangerous World Tour in exchange for monetary and nonmonetary considerations, including a promise from HBO not to “disparage” the singer.

The estate alleges the documentary has harmed Jackson’s legacy.

In May, Judge Wu denied the Jackson estate’s bid to compel arbitration or remand the case to state court, finding that the language of the 1992 agreement does not indicate that any disputes should be handled only by state court. He also ruled that he should be the one to make a determination on arbitration.

But Judge Wu did allow for supplemental briefing on arbitration part of the motion ahead of Monday’s hearing.

A hearing for HBO’s anti-SLAPP motion was set for Sept. 16.

“As we said in our papers and at today’s argument, we believe there is no legal basis for the estate’s petition and we look forward to presenting further arguments to the court,” an HBO representative told on Monday.

A representative for Jackson’s estate did not immediately respond to a request for comment.

Michael Jackson’s estate is represented by Howard Weitzman, Jonathan P. Steinsapir and Zachary T. Elsea of Kinsella Weitzman Iser Kump & Aldisert LLP and Bryan J. Freedman of Freedman & Taitelman LLP.

HBO is represented by Daniel M. Petrocelli and Drew E. Breuder of O’Melveny & Myers LLP and Theodore J. Boutrous Jr. and Nathaniel L. Bach of Gibson Dunn & Crutcher LLP.

The case is Optimum Productions et al. v. Home Box Office et al., case number 2:19-cv-01862, in the U.S. District Court for the Central District of California.

Court Transcript:

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SOURCE: Law360