Charles Thomson shares what happened at the hearing yesterday. It’s a very long thread, so I’m only embedding the first Tweet here, if you want to head over to Twitter and read there, and I’m posting the entire thread in text form below.
<blockquote class="twitter-tweet"><p lang="en" dir="ltr">THREAD: Happened to be in town, so popped into the courthouse in downtown Los Angeles this morning, to sit in on the latest hearing in the Michael Jackson Estate's lawsuit against HBO over Leaving Neverland. This is a broad rundown of the latest. <a href="https://t.co/OYrjWquRJF">pic.twitter.com/OYrjWquRJF</a></p>— Charles Thomson (@CEThomson) <a href="https://twitter.com/CEThomson/status/1192634317937106944?ref_src=twsrc%5Etfw">November 8, 2019</a></blockquote> <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>
THREAD: Happened to be in town, so popped into the courthouse in downtown Los Angeles this morning, to sit in on the latest hearing in the Michael Jackson Estate's lawsuit against HBO over Leaving Neverland. This is a broad rundown of the latest.
Jackson Estate is suing HBO over Leaving Neverland. Inadequate defamation laws typically leave the deceased & their reps with no recourse against unproven allegations, but the Estate says in this case HBO breached a non-disparagement clause in a contract over an old concert film.
HBO says the documentary is journalism and thus protected speech. Jackson Estate says it is not journalism and is in fact a deliberately deceptive piece of non-journalism.
Jackson Estate is fighting for public arbitration over the integrity of the show in order to prove this.
Judge George H Wu has dismissed HBO's claims that the contract is old and void, and has ruled in favour of the Estate's request for arbitration. HBO is appealing that ruling and requested a stay, pending that appeal.
Today's hearing was for a ruling on the stay.
This morning Wu handed down a tentative judgement granting HBO a stay, pending their appeal. The judgement suggested failure to do so posed a reasonable threat of 'irreparable harm' to HBO's first amendment right to freedom of speech.
Both sides then argued their positions.
Howard Weitzman, for the Estate, said: "In my opinion, you've taken a typical breach of contract case... [and] you're turning it into something it's not."
He questioned how HBO could reasonably claim 'irreparable harm' when it has continued airing the show after the ruling.
Judge Wu said he had already ruled on 'the merits' of the case when he agreed to send it for arbitration. Today, he said, "the question is whether I stay, pending an appeal... Your party sued to compel arbitration. I'm staying the arbitration that you have won."
Wu: "This case is, to my mind, quite unique. I've never seen anything quite like it before and of course, that makes for bad law."
Weitzman: "Well don't make any more bad law!"
Wu: "I like to create a trail of interesting bon mots for the Court of Appeal to consider."
Jonathan Steinsapir, for the Estate, said: "The idea that arbitration is irreparable harm has been rejected by every court to look at that."
He continued: "They gave you no law that says arbitration will be irreparable injury. Once you find a valid arbitration clause, the only job of a federal court is to send it to arbitration... Where is the evidence? It's their burden."
Judge Wu responded that the arbitration clause was in 'a 27-year-old contract that has nothing to do with the documentary itself'.
But Steinsapir argued the age of the contract was irrelevant, as Wu had already ruled.
He said: "They used footage from that concert in the documentary... The idea that this does not relate to the contract is prejudging the merits of the arbitration."
Wu to Steinsapir: "I've made my ruling and the ruling is in your favour. But I have doubts about whether I was correct in making that ruling. I would kind of like the circuit to get involved."
Steinsapir told Wu he should not acquiesce to HBO's 'hand-waving' about the first amendment: "You've not seen a single piece of evidence that anybody has been chilled in their speech."
He continued: "Where is the evidence of this irreparable harm? Attorney argument is not evidence. They gave you no evidence. Not a single declaration. Nothing. You can't get an injunction or a stay without evidence."
He said the stay would significantly extend the litigation, arguing: "Their own cases make clear that speedy resolution is necessary. If their first amendment defences have any merit, they should want them resolved."
Bryan Freedman - who previously defended Eddie Cascio & James Porte in Vera Serova's class action lawsuit over allegedly fake songs on a posthumous Michael Jackson album - also appeared today on behalf of the Jackson Estate.
He said: "I understand you're unsure about the underlying issue & would like the 9th Circuit to give you some direction, but you can't disregard the standards for irreparable harm & that's what's been done here. You provide no reason at all why HBO would suffer irreparable harm."
Wu said he didn't apply typical standards because it was 'not a typical arbitration situation'.
Freedman replied: "But how it arises and the substance of whether a 27yo contract is enforceable or not is not for Your Honour to decide."
Freedman: "We think it is a typical situation... [HBO] are big boys. They know what they are doing. They agree to terms. It's a simple breach of contract case. For the court to say it's untypical doesn't make any sense."
Freedman argued there was no legal reason why the non-disparagement clause should hold more or less weight than any other clause, saying that if HBO today breached the copyright terms of the same document, it would be an open and shut matter.
Freedman suggested Wu was aiding the defence and delaying the case.
He said: "It's only unusual because you've made suggestions for them to take. They did not file a SLAPP motion. Your Honour suggested they file a SLAPP. Now they want to take it to the Court of Appeal."
He continued: "What's irreparable harm is the harm to us in not being able to put forth our case to an arbitrator. You're going to make us delay over 30 months before we even get a selection of an arbitrator. Arbitration is supposed to be a process that's speedy."
Wu replied: "But ultimately, you are looking for money, which is not irreparable harm when it has been delayed."
Wu then invited Daniel Petrocelli to speak for HBO. He argued the 'irreparable harm' was that 'first amendment interests are threatened in multiple ways'.
Petrocelli said the appeal was unusually significant as in most similar cases, 'the ultimate question to be decided by the 9th Circuit [is] whether it proceeds in arbitration or in court'. But in this case, a successful appeal would end the whole lawsuit.
He said: "Pending the outcome of this appeal, the case may be over once and for all."
He then argued the contract was void: "When a contract is over and it's been over for 27 years, you can't invoke the arbitration provision in that contract."
Freedman replied: "The contract is not over. It exists. Because a contract is dated 27 years ago, does not terminate the contract. The contract continues to this day."
Wu said although he'd let Petrocelli voice that argument, he was 'not concerned with the merits' at this stage.
Wu: "I'm just considering whether or not there's a basis to grant the motion for a stay... A serious first amendment issue puts it into a potential irreparable harm situation."
Wu concluded: "I'm not here to enforce contracts. I'm here to do justice and follow the law as I see it. In terms of whether or not to grant the motion for a stay, I'm following the law as I see it... I will make my tentative judgement my final judgement."
Thus concluded the hearing.
I was sat quite far back in the courtroom and straining to hear at times, so some quotes may be inexact. I'm sure some helpful person will make an official transcript available soon enough.
Bit of a busman's holiday, but nice to be back in court.
opcorn: