Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
[Regarding this Hollywood Reporter story: HBO Taking Michael Jackson ‘Leaving Neverland’ Dispute to Appeals Court]
This is pretty interesting. Michael Jackson’s estate wasn’t happy with HBO’s “Finding Neverland” documentary, so it looked to the boilerplate non-disparagement and arbitration clauses in a wholly unrelated 1992 contract between HBO and Michael Jackson relating to a Jackson concert HBO aired, and sued on that to force arbitration. Judge said fine. So HBO appeals.
This sort of legal creativity sure doesn’t seem like a good thing. There’s probably no end to the potential mischief if entities can resurrect dormant, long-since-performed contracts to police speech. Non-disparagement clauses tend to be drafted in an open-ended, unto eternity manner, so I think lawyers going forward would be smart to more narrowly and definitively identify their scope.
From the story:
There’s some reason to believe this case might be a candidate for the U.S. Supreme Court, particularly since it also addresses the topic of arbitrability, something that has attracted close attention by the high court justices in recent years.
If the case does eventually wind up in arbitration, it could be an odd one. The Michael Jackson Estate says it wants an “open” proceeding, which would be rare for an arbitration forum like JAMS. Additionally, it’s not clear that Leaving Neverland needs to be factually inaccurate for the estate to prevail over HBO. After all, this is not a defamation suit. It’s a dispute based on an agreement not to disparage Jackson. Nevertheless, the estate is eager for the opportunity to show off evidence it has collected in prior legal disputes with the Jackson accusers featured in Leaving Neverland.
