The Estate vs HBO

myosotis

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From fans on Twitter:

Following on from the HBO Anti-SLAPP motion in the last hearing, HBO have filed their motion to strike (remove) the Estate's arbitration claim.

Reasons are: (Page 18/ Line 13)
Estate needs to establish that there is a reasonable probability that they will win their breach of contract claim (HBO provides previous relevant case law on this point) and this will not be possible for the Estate because :
i) The Estate claim unlawfully targets HBO's free speech rights in violation of the 1st Amendment and
2) The 1992 HBO-MJJ companies agreement is terminated and does not relate to 'Leaving Neverland'.

We now await the Estate's response to HBO, which will of course say that HBO is wrong on both points, and that their claim should not be removed. Estate response is expected on/ around 29th August.

Both sides' arguments will then be considered at the 19 September court hearing, and we should hear the court decision on the Anti-SLAPP motion before the end of September.
(The next step after that, if the case goes forward, should be arbitration- if the judge agrees to it).

https://www.scribd.com/document/422131473/MJ-Estate-v-HBO-August-15-2019-Filing-Motion-To-Strike
 

elusive moonwalker

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Thanks to respect

Punchy is a lawyer and this is his take on the latest:


andjustice4some
@andjustice4some
· 10h
Michael Jackson Estate v HBO, August 15, 2019, Motion to Strike secondary filing by HBO attorney. First Amendment and anti SLAPP motion. @Hammertonhal @TruthAndLaw8 https://www.scribd.com/document/422...n-Estate-v-HBO-Motion-to-Strike-Second-filing


Michael Jackson Estate v HBO Motion to Strike, Second filing
Michael Jackson Estate v HBO Motion to Strike, Second Filing by HBO attorney

scribd.com

Punchy
@TruthAndLaw8
If you read transcript of last hearing, Judge Wu and Estate attorney had detailed discussion about whether antiSLAPP would even apply here. Judge seemed to agree with Estate but wanted HBO to explain why Estate was wrong. 1/2

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Punchy
@TruthAndLaw8
· 9h
Replying to @andjustice4some @Hammertonhal
If you read transcript of last hearing, Judge Wu and Estate attorney had detailed discussion about whether antiSLAPP would even apply here. Judge seemed to agree with Estate but wanted HBO to explain why Estate was wrong. 1/2


Punchy
@TruthAndLaw8
I just read HBO motion and they just ignored that issue and proceed on assumption that antiSLAPP applies here. I can only assume HBO has no argument. They have really good lawyers so if there was even a decent argument that Estate was wrong, they would argue. They didn’t. QED 2/2

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Punchy
@TruthAndLaw8
See this argument. HBO ignores it in its motion. Very bizarre given that Estate attorney argued issue to Judge Wu ... that’s why I flagged it. Can only assume HBO has no response https://twitter.com/truthandlaw8/status/1151996452479967232 …

Punchy
@TruthAndLaw8
Replying to @andjustice4some @Hammertonhal
It all makes a lot of sense and went exactly how I thought ... until the last page. Not sure what antiSLAPP has to do with this. As Judge says, once he finds arbitration is required he must order it. That’s federal law. AntiSLAPP is state law. When conflict, federal wins 1
 

myosotis

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Article shared with thanks to Alh21:

https://deadline.com/2019/08/michae...l-hbo-sex-abuse-documentary-emmys-1202670029/

This article adds the following MJ Estate comments about the HBO 'motion to strike':

The Michael Jackson estate rejected all that in a statement to Deadline today.

“A contract doesn’t expire just because you wish it so as HBO does here,” a spokesperson for the estate said Friday. “There is no expiration term in the contract, nor does it terminate as a matter of law. Likewise, the First Amendment does not protect HBO from willfully and blatantly violating its contractual obligations, as it did here. The Estate of Michael Jackson is confident that HBO’s latest attempt to avoid its contractual obligations will fail.”

This Deadline article also repeats the fiction that the Estate wants the case arbitrated 'behind closed doors'. The Estate specifically asked for the case to be arbitrated in publicly-open court.

(These journalists just twist anything and everything. They wouldn't recognise the truth if they fell over it).
 
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NatureCriminal7896

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HBO Files Motion to Dismiss Jackson Family’s $100 Million ‘Leaving Neverland’ Lawsuit on First Amendment Grounds

HBO filed a motion Friday to dismiss the Jackson Estate’s $100 million lawsuit against its “Leaving Neverland” documentary, citing the First Amendment as protection.

The documentary, released in March, alleges that late pop singer Michael Jackson sexually abused Wade Robson and James Safechuck at his Neverland Ranch when they were minors.

The Jackson estate has angrily opposed the documentary, calling it “the kind of tabloid character assassination Michael Jackson endured in life, and now in death.” Jackson died in 2009.

“HBO’s distribution of this documentary–which recounts the personal stories of two individuals who describe in detail how, as young boys, they were sexually abused for years by Michael Jackson, arguably one of the world’s most famous public figures–constitutes protected activity under the First Amendment and California Code of Civil Procedure section 425.16,” states the motion to strike, filed by HBO’s attorneys Theodore Boutrous Jr. and Daniel Petrocelli.

HBO did not immediately respond to TheWrap’s request for comment Friday.

The Jackson estate filed the lawsuit against HBO back in February on the grounds that the “Leaving Neverland” documentary had violated the terms of a non-disparagement clause that was part of an agreement the two sides had dating back to 1992, which granted HBO the right to air Jackson’s Dangerous World Tour live.

The estate reiterated that argument in a statement provided to TheWrap. “A contract doesn’t expire just because you wish it so as HBO does here. There is no expiration term in the contract, nor does it terminate as a matter of law. Likewise, the First Amendment does not protect HBO from willfully and blatantly violating its contractual obligations, as it did here. The Estate of Michael Jackson is confident that HBO’s latest attempt to avoid its contractual obligations will fail,” the estate said through its attorneys.

In Friday’s filing, HBO said that “Plaintiffs cannot demonstrate a reasonable probability of prevailing because enforcement of their contract claims would violate HBO’s First Amendment and due process rights, and violate California public policies,” and adds that “the 1992 agreement on which Plaintiffs base their claims is inapplicable to Leaving Neverland and is expired.”

A hearing date has been set for September 19, just 3 days before the Primetime Emmy Awards will air, in which “Leaving Neverland” is nominated for five awards including Outstanding Documentary or Nonfiction Special.

https://www.yahoo.com/entertainment/hbo-files-motion-dismiss-jackson-010444711.html
 

SmoothCriminal1995

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Even though two of my sister are lawyers, I'm not clued up about all this. So how likely is this to be thrown out of court by the judge?
 

NatureCriminal7896

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HBO made waves back in March with Leaving Neverland, the tale of two individuals who allege suffering child sex abuse at the hands of Michael Jackson, and as the documentary competes for Emmy Awards at a ceremony on Sept. 22, a legal dispute has taken on a life of its own with important issues now before a California federal judge.

The first thing to recognize about the lawsuit filed on Feb. 21 by the Michael Jackson Estate is that it was quite atypical from the get-go and has only grown more curious in the months since. But the case also could represent a harbinger of what's to come given the rise of #metoo, the prevalence of arbitration in corporate America and the way in which federal courts are sometimes wrestling with procedure in First Amendment disputes.

Those who run the late pop star's business affairs believe Leaving Neverland unfairly tarnished Michael Jackson's legacy, and to litigate the issue they are seizing upon a 1992 contract that provided the pay network with rights to air a televised concert following the release of Jackson's album Dangerous. That more than quarter-century-old agreement also included a non-disparagement clause as well as an arbitration provision, which to borrow the assessment of HBO's lawyer, has the potential to become "a perpetual platform to police HBO's speech."

When it comes to figuring out whether or not arbitration agreements govern a dispute, and whether a judge or arbitrator gets to decide jurisdiction, the Michael Jackson Estate and HBO are certainly not the first to battle over such a topic. Rather, what makes this situation particularly unique is the manner in which the Leaving Neverland case has journeyed, beginning from the way that the Michael Jackson Estate attempted to compel arbitration.

Usually when someone wants arbitration, they privately submit a demand before an alternative dispute resolution forum like JAMS or the American Arbitration Association. Resistance from the other side may mean going to court to force compliance with an arbitration agreement.
In this instance, the Michael Jackson Estate wanted to make as much noise as possible as HBO prepared to broadcast Leaving Neverland. So days before the documentary aired, a petition in public court was filed that aimed to get HBO into arbitration. But notably, the court filing became a PR weapon against the documentary. Although the Michael Jackson Estate needn't have gone so far, the petition included substantial detail about the claims that would be brought once the two sides were engaged in arbitration. In many ways, the petition resembled the kind of complaint one sees at the beginning of a lawsuit in open court. But again, the Michael Jackson Estate really was just asking a judge to compel arbitration, not resolve whether HBO had breached the 1992 contract. To make this situation even odder, a lawyer for the Michael Jackson Estate was telling the press they wanted an arbitration "open to the public for all to see," a wild departure from the usual hush-hush nature of what happens at JAMS.

For months, the parties explored the gateway issue of arbitrability.

Then, U.S. District Court Judge George H. Wu made his own weird move. Specifically, the judge invited briefing on the issue of whether compelling arbitration over Leaving Neverland would infringe HBO's constitutional rights. The judge nudged HBO to file a motion to strike the Michael Jackson Estate's petition under California's SLAPP statute. At a July 15 hearing, Wu wondered out loud why HBO hadn't taken his earlier wink-wink. "I was too subtle last time," he said, "and they just didn't appreciate the gem that was in their mine. They had the stone and they just threw it back and went on forward and kept digging."
So taking the judge's cue, HBO indeed moved forward with an anti-SLAPP motion.

Here's why it matters — and has the potential of going places and becoming quite significant even beyond this dispute over Leaving Neverland.

SLAPP stands for "Strategic Lawsuit Against Public Participation." Several dozen states throughout the country have enacted SLAPP statutes to deter people from using the courts to chill constitutionally protected speech and petitioning. After all, the sheer prospect of having to defend a lawsuit — even a frivolous one — has the potential of causing folks to censor themselves. The way in which these SLAPP statutes operate is that if a defendant can show that a claim arises from First Amendment activity on matters of public concern, then a plaintiff must demonstrate a prima facie showing of merit in the claim. If a likelihood of success can't be established, the lawsuit hits a wall, and the defendant is entitled to recovery of legal fees.

Over the years, the use of SLAPP statutes in federal courts (as opposed to state courts) has grown more controversial because of a feeling that it alters typical federal procedure by putting the onus on plaintiffs to show a likelihood of victory at the initial stage instead of merely stating a plausible claim. As such, while some appellate circuits are now allowing SLAPP analysis in federal courts with the view that judges should apply state substantive law in diversity cases (that being, ones where plaintiffs and defendants don't share state citizenship), other appellate circuits are coming to the conclusion that SLAPP analysis is not allowed.

Legal observers believe that this circuit split over whether SLAPP motions should be heard in federal court is destined for the Supreme Court.

Back to the Leaving Neverland case where a federal judge is not only entertaining a SLAPP motion, but seemingly invited one. And not just over any issue but one where a defendant — HBO — is aiming to stop an arbitration. If there's anything the Supreme Court has shown in recent years, it's the sanctity and reach of the Federal Arbitration Act. Then again, in light of the #metoo movement, many states are leery about having tales of sexual abuse hushed up and are enacting new laws to stop certain arbitrations.
Within this context comes HBO's argument within its SLAPP motion and the opposition filed on Thursday night by the Michael Jackson Estate.

In its brief, HBO points to the "extraordinary" origins of the case — the way the Michael Jackson Estate made a "public shot across the bow, threatening to pursue and punish HBO in a 'public' arbitration seeking over $100 million, even before Leaving Neverland debuted on HBO."

HBO contends this use of the court — or "speech-chilling conduct" — flouts First Amendment principles, California public policy and its due process rights. Further, HBO argues that the Michael Jackson Estate cannot establish a reasonable probability of prevailing because the 1992 agreement doesn't pertain to Leaving Neverland, and is expired.

Again, under the second prong of the SLAPP statute, a plaintiff must demonstrate a probability of prevailing before getting a green light to move forward, but what does it mean in this situation? The immediate relief being sought by the Michael Jackson Estate is to compel arbitration. HBO seemingly argues that wherever the dispute is adjudicated, the underlying claim of breaching a non-disparagement clause is a meritless one. So will the judge actually turn to interpreting the contract at hand and the content of Leaving Neverland? It's not particularly clear.

In the opposition memorandum, the Michael Jackson Estate stresses that its petition turns exclusively "an issue of federal law under the Federal Arbitration Act" and as such, this court has no business applying California's SLAPP law to whether or not HBO goes to arbitration. Recent Supreme Court rulings how states can't create “procedural or substantive” obstacles to enforcement of arbitration agreements gets attention. And the Michael Jackson Estate reminds the judge of the modest chore before him.

The petition, states plaintiff, "arises out of HBO’s refusal to arbitrate. Breaching an agreement by refusing to arbitrate is not constitutionally protected activity. And even if it were, the Jackson Estate has shown a probability of success on that claim, as the Court explained in detail in its tentative order (where it definitively rejected all of HBO’s arguments against arbitration). If the Jackson Estate’s claims to be arbitrated are as frivolous as HBO would have the Court believe, it should have no reason for concern."

In advance of a hearing on Sept. 19, days before the Emmy Awards, one last thing needs to be noted that is not in either of the briefs.

California's SLAPP law provides an automatic right to an immediate appeal. Meaning, no matter what Wu decides, there's a pretty good chance that the case goes up to the 9th Circuit and maybe eventually the Supreme Court before the two sides would actually settle in for the prospective "open" arbitration.

https://www.hollywoodreporter.com/t...-jackson-doc-wind-up-at-supreme-court-1235576
 

myosotis

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HBO response to Estate's response.

Basically reiterates that 'LN' is 'fully protected speech', so HBO disregards the anti-disparagement clause in their original contract with MJ. (ie Just repeating their original argument).

HBO also claims: MJ Estate case is not federal, FAA (Federal Arbitration Act) cannot/does not preempt anti-SLAPP, and anti SLAPP is applicable in court (ie it can be applied to petitions for arbitration).

https://www.scribd.com/document/424758387/HBO-Reply-in-Support-of-Motion-to-Strike

(Thank you to fans on Twitter).
 
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myosotis

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From fans on Twitter:

RE MJ Estate v HBO. The judge has GRANTED the Estate the right to file a sur-reply to HBO's reply!

It means that the Estate will have the chance to present an argument against HBO's position that anti SLAPP does not apply to this case in writing.

(It also means that we have to wait for the judge to decide).
 

NatureCriminal7896

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Well that's kind of good news. let's hope we are getting somewhere. PLEASE. I"M AM SO READY TO MOVE ON.
 

NatureCriminal7896

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I didn't expect for it to last this long. wow. it's not even that serious but their making it serious then it seems i hope by the end of the year things will be put to rest. someone told me this is just the beginning. i really hope not. i don't wanna see this drag on to next year. if so this is crazy.
 

KOPV

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If it goes to arbitration, which I believe it will.. Things will start picking up speed! but yes, this stuff takes a ridiculous amount of time. fairly annoying!
 

myosotis

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WannaScream

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:billiejean::yes:

<blockquote class="twitter-tweet"><p lang="en" dir="ltr">that the reason the Estate did not have to argue is because the Estate WON. Steinsapir told the fan to tell fans that the Estate IS going to arbitration! <a href="https://twitter.com/karmousaG?ref_src=twsrc%5Etfw">@KarmousaG</a> is the fan and we THANK HER!!! Wooo hoooo <a href="https://twitter.com/hashtag/Arbitration?src=hash&amp;ref_src=twsrc%5Etfw">#Arbitration</a></p>&mdash; andjustice4some (@andjustice4some) <a href="https://twitter.com/andjustice4some/status/1174748745793036288?ref_src=twsrc%5Etfw">September 19, 2019</a></blockquote> <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
 

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Judge Sides With Michael Jackson Estate in &#8216;Leaving Neverland&#8217; Dispute
By Gene Maddaus

A federal judge is leaning towards granting the Michael Jackson estate&#8217;s move to take HBO to arbitration in its dispute over the documentary &#8220;Leaving Neverland.&#8221;

Judge George Wu issued a tentative ruling on Thursday in which he denied HBO&#8217;s motion to dismiss the estate&#8217;s case. Wu is expected to make the ruling final by the end of September.

The four-hour documentary features allegations of two men, James Safechuck and Wade Robson, who say they were sexually abused by Jackson over the course of several years when they were young children. The Jackson estate argues that by running the documentary, HBO violated a non-disparagement agreement from a 1992 concert film from Jackson&#8217;s &#8220;Dangerous&#8221; tour.

The estate blasted HBO for not including their rebuttal to the allegations in the film, and went to court seeking to compel a public arbitration of the contract dispute. HBO has said that the 26-year-old contract no longer applies.

HBO&#8217;s attorneys, led by Theodore Boutrous, had sought to throw out the case under California&#8217;s anti-SLAPP statute, which discourages frivolous litigation intended to chill speech on issues of public interest.

Wu had earlier suggested that HBO file the anti-SLAPP motion, but in his tentative ruling he concluded that the statute does not apply to requests for arbitration.

In court on Thursday, Boutrous asked the judge to reconsider.

&#8220;It was filed to chill speech,&#8221; he argued. &#8220;It was filed to tell the world, &#8216;Don&#8217;t talk about child sex abuse.&#8217;&#8230; A company like HBO may be able to fight back and move forward. Others might not be able to do that.&#8221;

Wu acknowledged that the legal issues in the case are close calls, and that his ruling will likely be appealed.

&#8220;You&#8217;re a big company, they&#8217;re a wealthy estate,&#8221; he told HBO&#8217;s lawyers. &#8220;It&#8217;s a clash of the titans.&#8221;

Outside court, John Branca, a co-executor of Jackson&#8217;s estate, said that HBO has been trying to avoid a public airing of both sides of the story.

&#8220;I&#8217;ve never seen a media organization fight so hard to keep a secret,&#8221; he said. &#8220;We&#8217;re saying let&#8217;s get all the facts out there, not just two stories from two accusers with a financial interest.&#8221;

A spokesperson for HBO said, &#8220;We are waiting to see the Judge&#8217;s final decision.

Judge Sides With Michael Jackson Estate in &#8216;Leaving Neverland&#8217; Dispute
 

Big Apple NYC

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I'm so happy and feel like crying (tears of joy)!!!

HBO DOES NOT WANT A PUBLIC ARBITRATION, and we all know why.

Looks like some of the behind the scenes fraudulent doings, regarding this mockumentary are about to be revealed. I'd love to be a fly on the wall at the HBO Headquarters right about now. LOL.
 

myosotis

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'Deadbeat' still trying to claim that the Estate wanted a closed arbitration (Everyone on HBO's 'side' lies). :
(I've no idea what the D Chapelle comment is meant to mean).

HBO Fails To Get $100M &#8216;Leaving Neverland&#8217; Suit From Michael Jackson Estate Tossed, For Now

The multi-million-dollar attack on the controversial Leaving Neverland documentary and HBO but Michael Jackson&#8217;s estate will dance on, at least for the time being.

In a tentative ruling in federal court this morning, the always contemplative Judge George Wu said he&#8217;s leaning towards rejecting the premium cabler&#8217;s desire to see the $100 million lawsuit dismissed. However, Judge Wu has been known to change his mind so the true call will have to wait until he issues a final ruling on HBO&#8217;s anti-SLAPP motion later this month.

As for the home of Game of Thrones &#8230;well, they are going to hold their powder. &#8220;We are waiting to see the Judge&#8217;s final decision,&#8221; an HBO spokesperson told Deadline today.

Leaving Neverland details now Dave Chappelle mocked claims by Wade Robson and James Safechuck that they were sexually abused by Jackson when they were children.

&#8220;HBO has tried everything possible to avoid having a trier of fact adjudicate their wrongdoing,&#8221; Freedman & Taitelman&#8217;s Bryan Freedman said on behalf of the estate after today&#8217;s hearing.

&#8220;If HBO believes its actions were proper then there is no reason for them to try and hide behind procedural technicalities to avoid an arbitration or a trial,&#8221; the attorney added of the fight on their part to get the matter surrounding the now Emmy winning Dan Reed directed film pulled into a public sphere. &#8220;Whether in an arbitration, federal court, state court or the court of appeal, the Estate of Michael Jackson will force HBO to be held accountable for its wrongful conduct.&#8221;

Appeal being an operative term here as both sides are expected to take what ever ruling Judge Wu ends up finally handing out to another court in another swing.

The August 15 move to dismiss from HBO&#8217;s Gibson, Dunn & Crutcher LLP and O&#8217;Melveny & Myers LLP legal team came following a ruling in late May by U.S. District Court Judge Wu to deny the Jackson estate&#8217;s desire to have the whole thing shut away behind closed doors and be decided by the American Arbitration Association. The estate also lost out in its aim to have the lawsuit sent back to state court.

Having fumbled in getting HBO to shutter the debut of the disturbing docu earlier this year after its police protected Sundance premiere, lawyers from Kinsella Weitzman Iser Kump & Aldisert LLP and Freedman + Tailtelman LLP launched the mega-bucks suit in Los Angeles Superior Court. Seeking an injunction against the March 3-debuting film, the estate&#8217;s attorneys also cited a portion of a 1992 deal between Jackson and HBO over a concert special as proof of the legal miscarriage by the premium cabler.

That reading of the almost three decade old agreement didn&#8217;t get much movement for the estate, but the case then moved to federal court in early March for jurisdictional reasons. That move came just over a week after Leaving Neverland played to some of the biggest documentary viewerships HBO in the past decade.

The film won best documentary or nonfiction special at the Creative Arts Emmys on September 14.

https://deadline.com/2019/09/michae...l-rejected-hbo-sexual-abuse-emmys-1202738895/
 

PoP

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Wooo Hooo!!!

giphy.gif
 

Big Apple NYC

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Noprah Winfrey is probably some where "Punching The Air," while screaming: "Tell em to keep my name out of that arbitration!!!"

To late Noprah, you should have thought about that, when you first got involved with this travesty!!!!!!!
 

Robbsaber01

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Great step forward. If the estate somehow loses this case I have lost all hope on this planet lol
 

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Praise the Lord. Prayer works. That is why some fans with the "gloom doom" needed to stop and keep your head high. Everything working out in MJ's favor. And the best is yet to come.
 

terrell

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Noprah Winfrey is probably some where "Punching The Air," while screaming: "Tell em to keep my name out of that arbitration!!!"

To late Noprah, you should have thought about that, when you first got involved with this travesty!!!!!!!
We are talking about this now on Oprah. All respect/creditabilty lost in my book.
 

NatureCriminal7896

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Praise the Lord. Prayer works. That is why some fans with the "gloom doom" needed to stop and keep your head high. Everything working out in MJ's favor. And the best is yet to come.

I hope your right. because i'm to the point of giving up.
 

Anna

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It's a good sign, but this isn't set in stone yet.

<samp class="EmbedCode-container"><code class="EmbedCode-code"><blockquote class="twitter-tweet"><p lang="en" dir="ltr">So I&#39;ve gotten a message that wants me to remind fans that the judge&#39;s ruling is tentative. Although I feel this is a win for the Estate, I never want to be accused of reporting anything that isn&#39;t 100%. At this point, the ruling for arbitration is tentative, to be clear.</p>&mdash; andjustice4some (@andjustice4some) <a href="https://twitter.com/andjustice4some/status/1174797726195707905?ref_src=twsrc%5Etfw">September 19, 2019</a></blockquote> <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script> </code></samp>
 
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