On Monday, a federal appeals court panel ruled that HBO must arbitrate a dispute over the controversial, Emmy-award winning “Leaving Neverland” documentary, handing Michael Jackson’s estate its second big win in the past two months.
The Ninth Circuit Court of Appeals upheld a lower court’s decision, requiring HBO be bound to a 28-year-old arbitration agreement rather than resolving the case through traditional litigation. While such proceedings are usually private, the Jackson estate’s legal team has told media it wants the process “open to the public for all to see.”
The arbitration arrangement was part of a contract HBO signed in 1992 to televise a concert from Jackson’s ‘Dangerous’ World Tour. Attorneys representing the cable network argued that the deal was no longer valid. It contained a clause which, according to Billboard, states that “HBO shall not make any disparaging remarks concerning [Michael Jackson] … or do any act that may harm or disparage or cause to lower in esteem the reputation of [Jackson.]”
Jackson’s estate maintains HBO violated that provision when it broadcasted “Leaving Neverland,” a two-part film accusing the late international pop icon of molesting young boys.
— The Hollywood Reporter (@THR) December 14, 2020
“The parties do not dispute that the 1992 Live in Bucharest contract at issue was a product of mutual consent and included a broad arbitration provision,” the three-judge panel wrote in Monday’s decision. “An arbitration clause can still bind the parties, even if the parties fully performed the contract years ago. … HBO does not dispute the existence of a valid agreement, the included arbitration provision, or the incorporated confidentiality provision, but rather the ‘continuing validity’ of the agreement and the arbitration provision. Thus, a valid arbitration agreement exists.”
Lawyers representing the deceased singer filed a $100 million lawsuit against HBO in February 2019, claiming, “It is hard to imagine a more direct violation of the non-disparagement clause.” HBO’s counsel said the suit should be thrown out, alleging “it was filed to tell the world, ‘Don’t talk about child sex abuse…”
In September 2019, U.S. District Court Judge George H. Wu granted the estate’s motion to take the matter to arbitration and denied HBO’s request to dismiss the case. He said at the time that he expected his ruling to be appealed, speculating it could ultimately end up before the U.S. Supreme Court.
“The contract contained a broad arbitration clause that covers claims that HBO disparaged Jackson in violation of ongoing confidentiality obligations,” Monday’s opinion says. “We may only identify whether the parties agreed to arbitrate such claims; it is for the arbitrator to decide whether those claims are meritorious.”
Ninth Circuit appellate judges: “The contract contained a broad arbitration clause that covers claims that HBO disparaged Jackson in violation of ongoing confidentiality obligations.” BOOM. #MJEstatevHBO pic.twitter.com/Qc6zBLplYX
— andjustice4some (@andjustice4some) December 14, 2020
As Variety reports:
HBO had sought to avoid arbitration, saying that the network had never intended to grant Jackson and his heirs a veto over anything the network might ever want to say about him. The network’s attorney, Theodore Boutrous, also argued that the 1992 contract had effectively expired once each side fulfilled its obligations.
The panel – Circuit Judges Richard Paez and Lawrence VanDyke and District Judge Karin Immergut – rejected that argument. …
The network could appeal the panel’s ruling to the full 9th Circuit, or now make its argument before an arbitrator.
“The trial judge and now the Ninth Circuit Court of Appeals have unanimously rejected HBO’s arguments,” attorneys for the Jackson estate said in a statement. “In the court’s own words, HBO ‘agreed that it would not make any disparaging remarks concerning Jackson.’ It’s time for HBO to answer for its violation of its obligation to Michael Jackson.”
Monday’s ruling was the second significant victory for the Jackson estate in the past two months. In October, a California judge dismissed a lawsuit filed by “Leaving Neverland” accuser James Safechuck. He had claimed Jackson’s corporate entities were established to facilitate the sexual abuse of children, alleging the companies had been negligent by allowing the late King of Pop to violate minors. Safechuck’s lawyer said he would appeal the ruling.
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