08-4604-cv IN THE

Untteb states Court of

FOR THE SECOND CIRCUIT

**-«<

MICHAEL PSENICSKA,

Plaintiff-Appellant,

TWENTIETH CENTURY FOX FILM CORPORATION, ONE AMERICA PRODUCTIONS, INC.,

TODD LEWIS, SACHA BARON COHEN,

Defendants-Appellees.

On Appeal from the United States District Court

for the Southern District of New York

BRIEF FOR PLAINTIFF-APPELLANT

MICHAEL PSENICSKA

PETER MICHAEL LEVINE, ESQ.

Attorney for Plaintiff-Appellant
Michael Psenicska
420 Lexington Avenue, Suite 2620
New York, New York 10170
212-599-0009
 TABLE OF CONTENTS

TABLE OF AUTHORITIES i-v

STATEMENT OF JURISDICTION 1

ISSUES PRESENTED 2

STATEMENT OF THE CASE 3

STATEMENT OF FACTS 5

THE BORAT MOTION PICTURE 5

PSENICSKA 'S ROLE IN THE BORAT MOTION PICTURE 10

THE CONSENT AGREEMENT 14

SUMMARY OF ARGUMENT 16

STANDARD OF REVIEW 18

ARGUMENT 19

I. THE DISTRICT COURT IMPROPERLY

MADE FINDINGS OF FACT ABOUT THE
BORAT MOTION PICTURE 19

II. THE DISTRICT COURT IMPROPERLY

CONCLUDED THAT THE CONSENT AGREEMENT
COVERS A WORK OF FICTION SUCH AS
THE BORAT MOTION PICTURE 21
III. THE DISTRICT COURT IMPROPERLY CONCLUDED
THAT THE PHRASE "DOCUMENTARY-STYLE FILM"
WAS UNAMBIGUOUS 27

IV. PSENICSKA MAY MAINTAIN A CLAIM FOR

FRAUDULENT INDUCEMENT 30

V. PSENICSKA DID NOT DISCLAIM RELIANCE ON THE

ORAL MISREPRESENTATION 34

CONCLUSION 36

CERTIFICATE OF COMPLIANCE
 TABLE OF AUTHORITIES

CASES

Apfel v. Prestia,
41 A.D.3d 520, 838 N.Y.S.2d 605 (2d Dep't 2007) 16

Arar v. Ashcroft,
532 F.3d 157 (2d Cir. 2008) 18

Bank of America Nat. Trust & Sav. Ass 'n v. Gillaizeau,

766 F.2d 709 (2d Cir. 1985) 16

Banque Arabe et Internationale D'Investissement v. Maryland Nat. Bank,

57 F.3d 146 (2d Cir.1995) 31

Bauersfeldv. Board of Educ. of Morrisville-Eaton Cent. School Dist.,

46 A.D.3d 1003, 846 N.Y.S.2d 809 (3d Dep't 2007) 24

Blogv. Sports Car Club of America, Inc.,

254 A.D.2d 65, 678 N.Y.S.2d 609 (1st Dep't 1998) 22

Bloss v. Va'adHarabonim ofRiverdale,

203 A.D.2d 36, 610 N.Y.S.2d 197 (1st Dep't 1994) 33

Brass v. American Film Technologies, Inc.,

987 F.2d 142 (2d Cir.1993) 31

Breed v. Ins. Co. of North America,

46 N.Y.2d 351, 413 N.Y.S.2d 352 (1978) 29

Cahill v. Regan,
5 N.Y.2d 292, 184 N.Y.S.2d 348 (1959) 21

Collins v. Harrison-Bode,
303 F.3d 429 (2d Cir. 2002) 18

Demaria v. Brenhouse,
277 A.D.2d 344, 716 N.Y.S.2d 99 (2d Dep't 2000) 21
Dickson v. City of New York,
43 A.D.3d 809, 842 N.Y.S.2d 27 (1st Dep't 2007) 30

Farber v. Breslin,
47 A.D.3d 873, 850 N.Y.S.2d 604 (2d Dep't 2008) 30, 31

Fitzgerald v. Fahnestoch & Co.,

850 N.Y.S.2d 452 (1st Dep't 2008) 22

Fleming v. Ponziani,
24 N.Y.2d 105, 299 N.Y.S.2d 134 (1969) 33

Global Minerals and Metals Corp. v. Holme,

35 A.D.3d 93, 824 N.Y.S.2d 210 (1st Dep't 2006) 30

Goldman v. Belden,
754 F.2d 1059 (2d Cir.1985) (on Rule 12(b)(6) 20

Greenfield v. Philles Records, Inc.,

23 A.D.3d 214, 803 N.Y.S.2d 548 (1st Dep't 2005) 29

Gross v. Sweet,
49 N.Y.2d 102, 424 N.Y.S.2d 365 (1979) 27

Guardian Life Ins. Co. of America, Inc. v. Schaefer,

70 N.Y.2d 888, 524 N.Y.S.2d 377 (1987) 29

In re Holocaust Victim Assets Litigation,

282F.3dlO3, 108 (2d Cir. 2002) 18

Innophos, Inc. v. Rhodia, S.A.,

38 A.D.3d 368, 832 N.Y.S.2d 197 (1st Dep't 2007) 24

JPMorgan Chase Bank v. Liberty Mutual Ins. Co.,

189 F. Supp. 2d 24 (S.D.N.Y. 2002) 35

Joint Venture Asset Acquisition v. Zellner,

808 F. Supp. 289 (S.D.N.Y. 1992) 17

n
Kaminskyv. Gamache,
298 A.D.2d 361, 751 N.Y.S.2d 254 (2d Dep't 2002) 22

Kass v. Kass,
91 N.Y.2d 554, 673 N.Y.S.2d 350 (1998) 28

Kittay v. Kornstein,
230 F.3d 531 (2d Cir. 2000) (Rule 12(b)(6) 21

Krumme v. WestPoint Stevens, Inc.,

238 F.3d 133 (2d Cir.2000) 28

Lanni v. Smith,
89 A.D.2d 782, 453 N.Y.S.2d 497 (4th Dep't 1982) 22

Lifson v. INA Life Ins. Co. of New York,

333 F.3d 349 (2d Cir. 2003) 29

Liftman v. Magee,
54 A.D.3d 14, 860 N.Y.S.2d 24 (1st Dep't 2008) 17

Mangini v. McClurg,
24 N.Y.2d 556, 301 N.Y.S.2d 508 (1969) 30

Manufacturers Hanover Trust Co. v. Yanakas,

7 F.3d 310 (2d Cir. 1993) 17, 34

Morales v. Solomon Management Co.,

38 A.D.3d 381, 832 N.Y.S.2d 195 (1st Dep't 2007) 21

Nowak v. Ironworkers Local 6 Pension Fund,

81 F.3d 1182 (2d Cir.1996) 29

Pete's Corner, Inc. v. E-Miljud, Inc.,

84 A.D.2d 761, 443 N.Y.S.2d 772 (2d Dep't 1981) 17

Phillips v. Audio Active Ltd.,

494 F.3d 378 (2d Cir. 2007) 18

Roth v. Jennings,
489 F.3d 499 (2d Cir. 2007) 16, 18
iii
Sayers v. Rochester Tel. Corp.,
7F.3d 1091 (2dCir.l993) 28

Scheuer v. Rhodes,
416 U.S. 232 (1974) 20

Seiden Assoc. Inc. v. ANC Holdings, Inc.,

959 F.2d 425 (2d Cir.1992) 28

Skluth v. United Merchants & Mfrs., Inc.,

163 A.D.2d 104, 559 N.Y.S.2d 280 (1st Dep'tl990) 30

Turkish v. Kasenetz,
27 F.3d 23 (2d Cir.1994) 35

Vietnam Ass'nfor Victims of Agent Orange v. Dow Chemical Co.,

517 F.3d 104 (2d Cir. 2008) 18

Villager Pond, Inc. v. Town ofDarien,

56 F.3d 375 (2d Cir.1995) 20

Vines v. Gen. Outdoor Adver. Co.,

171 F.2d 487 (2d Cir.1948) 22

Walk-In Medical Centers, Inc. v. Brewer Capital Corp.,

818 F.2d 260 (2d Cir. 1987) 29

STATUTES AND RULES

28U.S.C. § 1291 1

28U.S.C. § 1332 1

Rule 4, Fed. R. App. P 1

OTHER AUTHORITY

New Oxford American Dictionary (Erin McLean, ed., 2d ed., 2005) 23

iv
 DOCUMENTARIES AND MOTION PICTURES

Borat: Cultural Learnings of America for Make Benefit Glorious

Nation of Kazakhstan (2006, directed by Larry David) passim

The Civil War (1990, directed by Ken Burns) 25

Easy Rider (1969, directed by Dennis Hopper) 19-20

Gimme Shelter (1970, directed by Albert and David Maysles) 26

Grey Gardens (1975, directed Albert and David Maysles) 25

Harvest of Shame (1960, directed by Fred W. Friendly) 25

Jazz On a Summer's Day (1960, directed by Aram Avakian and Bert Stein) . 26

The Last Waltz (1978, directed by Martin Scorsese) 26

Let It Be (1970, directed by Michael Lindsay-Hogg) 26

Midnight Cowboy (1969, directed by John Schlesinger) 19

Salesman (1968, directed Albert and David Maysles) 25

The Sorrow and the Pity (1972, directed by Marcel Ophiils) 24

Super Size Me (2004, directed by Morgan Spurlock) 26

The Thin Blue Line (1988, directed by Errol Morris) 24

Woodstock (1970, directed by Michael Wadleigh) 26

v
 STATEMENT OF JURISDICTION

Plaintiff-Appellant Michael Psenicska, a citizen of the State of

Maryland, appeals from a judgment entered in the United States District Court for the

Southern District of New York based on a Memorandum and Order, dated September

3, 2008, of Hon. Loretta A. Presa. A-36 [2008 WL 4185752 (S.D.N.Y. 2008)].

The district court exercised subject matter jurisdiction pursuant to 28

U.S. C. § 1332. This action is between citizens of different States or between citizens

of different States and a citizen or subject of a foreign state is an additional party. The

amount in controversy exceeds $75,000 exclusive of interest and costs. A-19.

This court exercises subject matter jurisdiction pursuant to 28 U.S.C. §

1291. Final judgment disposing of all claims was docketed on September 24, 2008.

A-57. Psenicska filed his Notice of Appeal from the Memorandum and Order on

September 18,2004. A-56. The Notice of Appeal was timely filed in accordance with

Rule 4, Fed. R. App. P.

 ISSUES PRESENTED

1. Did the district court improperly make findings of fact and

improperly draw inferences in favor of the moving parties on a motion to dismiss

under Rule 12(b)?

2. Did the district court err by ruling as a matter of law that a release,

which by its terms is limited to a "documentary-style film," extended to blatantly

contrived works of fiction?

3. When the parties advanced differing interpretations of a phrase

within a release, did the district court err by ruling as a matter of law that the disputed

phrase was unambiguous?

4. Did the district court err by ruling that a plaintiff who had properly

pleaded each element of a claim for fraudulent concealment could not possibly prove

the facts in support of his claim?

5. Did the district court err by ruling that a release obtained under

false pretenses contained a both a sufficiently specific disclaimer of its own validity

and a sufficiently specific disclaimer of reliance, and therefore precluded a claim of

fraudulent inducement?
 STATEMENT OF THE CASE

This action arises from defendants' deceit while producing the motion

picture Borat: Cultural Learnings of America for Make Benefit Glorious Nation of

Kazakhstan, a ribald satire of awe-inspiring crudity. Sacha Baron Cohen, who in the

persona of Borat Sagdiyev - a joyously anti-Semitic, bigoted, sex-obsessed,

English-mangling TV newsman from Kazakhstan - roams America, having

encounters with real people who have no idea they're victims of an elaborate put-on.

Michael Psenicska was one such victim. Led to believe he would appear

in a bona fide documentary about assimilation, Psenicska agreed to be filmed while

giving a driving lesson. Just as the filming was to begin, he was handed a Consent

Agreement, in which he gave his permission " to be filmed and audiotaped ... for a

documentary-style film." He signed the Consent Agreement and immediately found

himself set up as a straight man in an improvisational skit.

Psenicska commenced this action on December 3, 2007, seeking

rescission of the Consent Agreement, actual and punitive damages based on

defendants' fraud, and reasonable compensation for his services.

Defendants moved pursuant to Rule 12(b)(6), Fed. R. Civ. P., to dismiss

the Complaint, contending the phrase "documentary-style film" encompassed a work

of such obvious fiction as the Borat motion picture and contending that the disclaimer

clause in the Consent Agreement precluded a claim of fraudulent inducement.

Psenicska contended that the phrase "documentary-style film" encompassed only

works of non-fiction presented in a documentary format, what any reasonable person

would understand, what any dictionary will confirm. He also contended that the

disclaimer clause was not sufficiently specific to preclude his reliance on the

misrepresentations that led to his appearance in the motion picture.

The district court adopted the defendants' interpretation of the phrase

and granted the motion. The district court ruled that the Consent Agreement was

unambiguous and fully enforceable; applied to any type of film, even a work of

fiction, that displayed what might be considered documentary elements; and

contained merger and disclaimer clauses sufficiently broad and specific to preclude

the claims asserted in the Complaint.

 STATEMENT OF FACTS

THE BORA T MOTION PICTURE

Borat gives Cohen the opportunity to present the outrageous Borat

Sagdiyev, one of three characters he created HBO's Da AH G Show, to the big screen

in a feature-length motion picture. A-15 [DVD of the motion picture].

Borat depends entirely on Cohen's powerful comic presence, his skills

as a physical comedian, and his talents for precise timing and improvisational

response. Fearlessly playing the game to the very end, Cohen keeps a straight face

(even as he's handing a bag of his own excrement to a hostess) and never breaks

character, never revealing the intelligent man underneath the mask of a mustachioed

moron. Like Mike Myers as Austin Powers, Cohen - drawing all the possibilities

from eyebrow gymnastics, sustained slapstick, and vulgar malapropisms - gives a

comic performance so outre that the plot, such as it is, recedes to mere decoration. A-

15. It should come as no surprise that Borat producer Jay Roach directed the Austin

Powers features and that director Larry Charles created the situation comedies Curb

Your Enthusiasm and Seinfeld.

Cohen justifiably won the Golden Globe® Award for Best Actor in a

Motion Picture - Musical or Comedy and was justifiable name Best Actor by the Los

Angeles Film Critics Association. A-15. Borat was justifiably named Best Comedy

Movie by the Broadcast Film Critics Association. Id. Peter Travers of Rolling Stone
magazine accurately proclaimed Borat as "a mind-blowing comedy classic." Id.

Boratbegins in its hero's dilapidated hometown of Kuczek, Kazakhstan

(actually shot in Romania), where the local rapist is regarded as a colorful eccentric.

Borat introduces his celebrated sister, a blond he kisses full on the lips, as the "No.

4 prostitute in all of Kazakhstan!" He invites us to witness one of the town's most

revered customs, the Running of the Jew, in which local kids chase an enormous

paper-mache Hebrew through the streets and kick a giant egg to stop "the Jew chick"

from being hatched. A-15.

The script (by Cohen and three other writers) then sends Borat and his

producer, Azamat (played by Ken Davitian, also a paid actor), to "the U, S, and A"

on an ostensible mission to report on the customs and mores of the American people

for Kazakhstan television. What follows is less a narrative than a series of vignettes

within a loose framework involving Borat's quest to marry the actress Pamela

Anderson. (Borat does wind up married but to a call girl, Luenell, played by Luenell

Campbell, a professional actress.) Each vignette has its own mixture of characters and

staged comedic set pieces, each intended to be more outrageous and offensive than

the last. A-15.

Borat triumphantly embarks on his journey in a tiny car drawn by a

horse. Upon his arrival in New York, Borat struggles with the airport escalator,

mistakes the hotel elevator for his room, and washes his face in a toilet bowl. While
out and about, he defecates in front of a Trump tower and masturbates in front of a

Victoria's Secret store. In between, he takes instruction from a humor coach (who's

stunned to near-speechlessness by a "funny" tale about Borat's sister sexually

taunting their mentally retarded brother), meets with feminists ("I could not

concentrate on what this old man was saying"), and tries to plant kisses on startled

strangers. At the end of his first full day, while lounging in his form-fitting pajamas,

he sees a rerun of Baywatch and falls in love with Pamela Anderson. As fate would

have it, he receives a telegram informing him that his wife has been killed by a bear,

so it's off to California to pursue the woman of his tumescent dreams. A-15.

He decides to drive rather than fly, fearful that the Jews will repeat their

attack of 9/11. He and Azamat buy a junked ice cream truck and sputter off into the

American heartland. Along the way, he buys a bear (to protect himself from the Jews)

and has various misadventures. A-15.

• He stops in Washington, where he meets with former Georgia

congressman Bob Barr, offering him a gift of cheese made with milk from his wife's

tit, and with African-American politician Alan Keyes, assuring his viewers that the

man is a "genuine chocolate face — no make up!"

• He sings the Kazakh national anthem at a Virginia rodeo, where

tells the crowd, "We support your war of terror. May George Bush drink the blood

of every man, woman and child in Iraq."

-7-
 • He and Azamat stumble into a bed-and-breakfast run by an elderly

Jewish couple, and in the middle of the night become convinced their hosts have

turned themselves into roaches, try to mollify them with dollar bills, then, terrified,

sprint down the stairs and out of the house.

• Assuring Azamat they will not continue unprotected, he walks into

a Texas gun shop, asks "What's the best gun to defend from a Jew?" then goes into

a "Dirty Harold" routine: "Go ahead, Jew, make my day."

• He consults with an etiquette instructor before committing a

cavalcade of offenses against common decency at a formal dinner party, where the

hostess instructs him to use the toilet instead of bringing a clear plastic bag of his

poop to the table. (This is likely the first film ever with a "Feces provided by" credit.)

• He attempts to abduct Pamela Anderson from a book-signing

appearance by stuffing her into a traditional Kazakh "wedding sack."

Without doubt, the highlight of the motion picture is a

beyond-homoerotic, no-holds-barred, nude brawl between Borat and the hirsute

Azamat, a gelatinous walrus of a man, that starts in a hotel room, spills into the

hallway and lobby, and ends in the ballroom amidst a convention of mortgage

brokers. This seven-minute, carefully-edited set piece is the product of two

uninhibited performances shot from many angles over many takes. The two actors,

working under the tutelage of a "Naked Fight Coordinator," are carefully posed, often

-8-
in bizarre positions, and their movements are carefully choreographed. With each

attack and counter-attack the actors give priceless facial expressions. The scene opens

with Borat in the bathtub, his head and shoulders shown in a close-up; then the

camera pulls back to show his full body in a bubble bath. There is a cut to a one-shot

of Borat, a towel around his waist, entering the bedroom from the left. The camera

follows Borat into the room then cuts to a one-shot of a nude Azamat on the bed

masturbating to a magazine photograph of Pamela Anderson. Two quick cuts follow:

a close-up one-shot of Borat and a reverse two-shot as Borat sees Azamat. Borat

attacks Azamat while screaming, and the camera zooms onto the bed as Borat grabs

the magazine. The fight begins. Borat loses his towel, and the two nude men heave

each other about the room over a series of at least 60 cuts. The scene shifts to the hall,

as Azamat flees the room with Borat in pursuit, both still nude. They enter an elevator

and stand quietly as they allow other passengers to exit. They run nude through the

lobby, enter the ballroom screaming, and continue their tussle on the stage. Of course,

the cameras, lights, and sound equipment had to be set up at various locations to

record all of the action. A-15.

-9-
PSENICSKA'S ROLE IN THE BORA T MOTION PICTURE

For the past 33 years, Michael Psenicska, a high school mathematics

teacher, has owned a driving school in Perry Hall, Maryland, near Baltimore.

Psenicska has given driving lessons to hundreds of students, many of them foreign

nationals who have immigrated to the United States. A-20.

In May 2005, Psenicska received a phone call from defendant Todd

Lewis Shulman, who falsely gave his name as Todd Lewis and said that his

production company, defendant One America Productions, Inc., was producing a

"documentary about the integration of foreign people into the American way of life."

Being in the business of teaching foreign nationals to drive and understanding the

importance of learning to drive, Psenicska was very interested in participating in the

documentary. A-20.

Psenicska spoke with Shulman by phone on several occasions after this

initial phone call. They discussed Psenicska's background and his particular interest

in educating foreign nationals. Psenicska met with Shulman at his driving school on

Thursday, June 9, 2005. During their meeting, Shulman videotaped Psenicska,

explaining that he needed to show a sample of Psenicska's appearance to the other

producers of the documentary. Psenicska informed Shulman that he was available for

the actual taping during the next few days, except Monday, June 13, which was not

convenient for Psenicska, because he had to teach a class at 6:00 p.m. A-20-21.

-10-
 The next day, Friday, June 10, Shulman called Psenicska and said that

Monday, June 13, was the only convenient day for his crew and that the taping had

to be somewhere closer to Washington, D.C., where Shulman's crew was supposedly

based. Psenicska suggested Columbia, Maryland. Shulman agreed. Psenicska

arranged to meet Shulman and his crew at the Snowden Square Shopping Center on

Monday, June 13, 2005, at 1:00 p.m. The taping was scheduled to end by 5:00 p.m.

Psenicska told Shulman that he had to leave by 5:00 p.m. in order to arrive in Perry

Hall for his 6:00 p.m. class. A-21.

Psenicska punctually arrived at the agreed-upon location. Shulman and

the production crew arrived 90 minutes later than agreed, at 2:30 p.m. By that time,

Psenicska was almost ready to leave. A-21.

As soon as Shulman arrived, he got into Psenicska's car and gave

Psenicska $500 in cash and a few pieces of paper with a pen. Shulman said that the

papers were standard and needed by the producers for the documentary. Rushed for

time, Psenicska took the cash and signed the papers where Shulman indicated without

reading or even more than looking where to sign and put his information. Shulman

had not told Psenicska that he would be presented with any papers to sign, so

Psenicska did not have his reading glasses with him. Relying on his previous

conversations with Shulman, Psenicska believed that the papers were materials

usually associated with a bona fide documentary. A-21.

-11-
 Soon after Psenicska signed the papers, Shulman showed Psenicska the

driver-education car that the film crew had brought. As requested by Psenicska, the

car was properly equipped with the required dual brakes, sideview mirrors, and signs.

The car also had cameras mounted inside to videotape the driver and student. A

member of the production crew attached a microphone to Psenicska's body, and

Psenicska was told to follow a production van that would have its rear doors open and

be equipped with cameras. A-22.

Psenicska led the crew to the driver-education course, where a white

stretch limousine appeared, and Cohen, dressed as Borat, got out and approached

Psenicska. As Psenicska went over to meet his "student," Borat did a "kissie huggie"

routine and then tried to get into the back of the car. Once he was corrected to get into

the front, he attempted to engage the seatbelt on by wrapping it between his legs,

twisting it all different ways, and struggling like a child. Psenicska offered to help,

but Borat finally managed to buckle the belt even though it was still twisted.

Psenicska instructed Borat to drive with the seatbelt as it was since the car had

already started. (The seat-belt routine did not appear in the theatrical version of the

motion picture but was broadcast on the YouTube internet site extensively.) A-22.

What followed can only be described as surreal. Borat held the steering

wheel in a strange position. Psenicska instructed him to put both hands on the wheel.

Borat made a comment about how using two hands made him look funny. Psenicska

-12-
said that he didn't care what it looked like and to hold the wheel the proper way.

When Borat started driving, he was stabbing the brake and driving on the wrong side

of the road with another car approaching. Psenicska grabbed the wheel to bring it to

the correct side. Psenicska tried to explain the basic rules. Rather than take

instruction, Borat started bashing Jews, stating, among other slurs, that they were

cheap. Psenicska said that he would not tolerate such remarks. Borat then started

bashing women, stating, among other inanities, that they had small brains. Psenicska

again admonished Borat against such remarks. Borat rolled down the window and

offered a female pedestrian $10 for "sexy time." Psenicska used his power window

controls to roll up Borat's window and told Borat that women in this country can

choose with whom they want to have sex. Borat was incredulous. Then Borat saw an

African American man and started to scream "Chocolate Man!!" Psenicska told him

Borat to stop this as well. The car was moving the entire time, and Psenicska was very

concerned for the safety of everyone in the car's proximity. At different points, Borat

turned completely around to look out the back of the window, made a screeching U

turn, made a left turn across a busy road, drank "alcohol," discussed two men going

into the woods and doing "banga banga," and also drove very fast on quiet residential

streets with children on the sidewalk, requiring Psenicska to grab the wheel or use his

emergency brakes. A-23.

When the taping ended, Psenicska knew he would be late for the class

-13-
at his driving school, but he went up to a group of men he thought were the producers

of the film and said, "Did you hear what he was saying in the car? Did you see what

he was doing in the car?" Nobody responded. Psenicska persisted: "You set me up,

and what you set me up for I don't know." Again, nobody responded. Without time

to gain anyone's attention, Psenicska left to teach his class. Psenicska tried calling

Shulman for the next few days, but Shulman never returned any of Psenicska's phone

calls. Psenicska finally gave up and forgot about the incident until the release of the

Borat motion picture, which was distributed by defendant Twentieth Century Fox

Film Corporation. A-23-24.

Psenicska's name and, image have been extensively used not only in both

the theatrical and DVD versions of the Borat motion picture but also for the

advertising and promotion. Psenicska's name and image have been broadcast on

network talk shows, in advertisements appearing on HBO and CNN, and in videos

posted on YouTube. A-24.

THE CONSENT AGREEMENT

One document given to Psenicska by Shulman was entitled "Standard

Consent Agreement," which provided (at f 1): "The Participant agrees to be filmed

and audiotaped by the Producer for a documentary-style film (the "Film")." These

words were consistent with how Shulman described the film to Psenicska. The cover

letter for the Consent Agreement was also consistent with Shulman's description:

-14-
"Thanks very much for your interest in appearing in our Film. We're glad that you

want to appear in the Film to share your views or insights with the public." (The letter

did not define word "Film.") A-12-13, 21-22.

The Consent Agreement provided (at *[f 4):

[Psenicska] specifically, but without limitation, waives and agrees

not to bring any time in the future, any claims against the
Producer, or against any of its assignees or licensees or anyone
associated with the Film, that include assertions of (a)
infringement of rights of publicity or misappropriation (such as
any allegedly improper or unauthorized use of the Participant's
name or likeness of image), ... (n) fraud (such as any alleged
deception or surprise about the Film or this consent agreement).

A-13. The Consent Agreement also provided (at | 5):

This is the entire agreement between the Participant and the

Producer or anyone else in relation to the Film, and the
Participant acknowledges that in entering into it, the Participant
is not relying upon any promises or statement made by anyone
about the nature of the Film or the identity of any other
Participants or person involved in the Film.
Id.

Shulman also signed the Consent Agreement but with an illegible

signature. A-14. Neither Lewis nor anyone other member of the production crew

provided Psenicska with a copy of the Consent Agreement. Psenicska did not receive

a copy until a formal request was made through counsel over a year and one half later,

after the Borat motion picture was released and in the theaters. A-22.

-15-
 SUMMARY OF ARGUMENT

By interpreting the Borat motion picture as a style of documentary, the

district court improperly resolved a sharp factual dispute between the parties. See

Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) ("A ruling on a motion for

dismissal pursuant to Rule 12(b)(6) is not an occasion for the court to make findings

of fact").

Limited to a "documentary-style film," the Consent Agreement pertains

only to a work presenting political, social, or historical subject matter without the

insertion of fictional material, and by its very terms does not extend to contrived

works of fiction. SeeApfelv. Prestia, 41 A.D.3d 520,521,838 N.Y.S.2d 605,606 (2d

Dep't 2007) (stipulation discontinuing the defendants' housing court proceeding and

settling all claims "between the parties to date" not intended to preclude the plaintiffs

personal injury action, which was pending at the time).

At most, the phrase "documentary-style film" is ambiguous, and a

dismissal pursuant to Rule 12(b) cannot be predicated on an ambiguous document.

See Bank of America Nat. Trust & Sav. Ass 'n v. Gillaizeau, 766 F.2d 709, 713 (2d

Cir. 1985) (A release will not be given effect unless it contains an "explicit,

unequivocal statement of a present promise to release [a party] from liability").

Psenicska has properly pleaded the elements of fraudulent concealment,

and on that basis may seek to avoid any release contained in the Consent Agreement:

-16-
(1) defendants misrepresented or concealed material facts about the Borat motion

picture; (2) the misrepresentations were false and known to be false when made, or

the concealment was intentional; (3) the misrepresentations were made, or the

concealment was done, with the intent of inducing reliance; (4) without the means to

ascertain the truth, Psenicska reasonably relied on the misrepresentations. See Joint

Venture Asset Acquisition v. Zellner, 808 F.Supp. 289,302 (S.D.N.Y. 1992); Littman

v. Magee, 54 A.D.3d 14, 17,860 N.Y.S.2d 24,26-27 (1st Dep't 2008) ("a release may

be set aside on the traditional bases of fraudulent inducement, fraudulent

concealment, misrepresentation, mutual mistake or duress").

The Consent Agreement contains neither a specific disclaimer of its own

validity nor a specific disclaimer about a fictional work, and therefore does not

preclude Psenicska from maintaining a fraud claim. See Manufacturers Hanover

Trust Co. v. Yanakas, 7 F.3d 310, 317 (2d Cir. 1993) (merger clause in guarantee

ineffective to preclude parol evidence of fraudulent inducement when the "Guarantee

contains no disclaimer as to the validity, regularity, or enforceability of the Guarantee

itself); Pete's Corner, Inc. v. E-Miljud, Inc., 84 A.D.2d 761, 443 N.Y.S.2d 772 (2d

Dep't 1981) (contractual provision specifying that buyer takes items "as is" does not

bar action for fraudulent misrepresentation when alleged misrepresentation concerns

value rather than quality or quantity).

-17-
 STANDARD OF REVIEW

A decision that a complaint fails to state a claim on which relief can be

granted is a ruling of law, and such a decision is reviewed de novo. Arar v. Ashcroft,

532 F.3d 157,168 (2d Cir. 2008); Vietnam Ass'nfor Victims of Agent Orange v. Dow

Chemical Co., 517 F.3d 104,115 (2d Cir. 2008). In such a review, this court, like the

district court, "must accept as true all of the factual allegations set out in plaintiffs

complaint, draw inferences from those allegations in the light most favorable to

plaintiff, and construe the complaint liberally." Roth v. Jennings, 489 F.3d at 510.

The interpretation of the terms of a contract is a question of law and is

reviewed de novo. Phillips v. Audio Active Ltd., 494 F.3d 378,384 (2d Cir. 2007); In

re Holocaust Victim Assets Litigation, 282 F.3d 103, 108 (2d Cir. 2002).

The district court's determination of whether a contract is ambiguous is

a question of law and is reviewed de novo. Collins v. Harrison-Bode, 303 F.3d 429,

433 (2d Cir. 2002).

-18-
 ARGUMENT

I. THE DISTRICT COURT IMPROPERLY MADE FINDINGS OF FACT

ABOUT THE BORAT MOTION PICTURE

According to the district court, the Borat motion picture could be

considered a "documentary-style film," because

Borat is a film "displaying the characteristics of a film that

provides a factual record or report." The Movie comprises
interviews with real people and depictions of real events that are
intended to provide a "factual record or report" albeit of a
fictional character's journey across America.

A-50. That may be one way to interpret the motion picture, but this interpretation

constituted a factual finding more appropriate to a resolution of the matter on its

merits by the trier of fact than to a ruling on a Rule 12(b)(6) motion.

The district court's interpretation overlooked the many fictional and

staged elements in the motion picture and overlooked the fact that the motion picture

actually contained relatively few candid moments. The Borat character is created in

several scripted scenes and by the fictional dialogue Borat delivers directly to the

camera. All scenes with Azamat are scripted and staged, notably the rides in the ice

cream truck, the "escape" from the bed-and-breakfast, the nude wrestling, and a

rapprochement in Los Angles, where Borat espies Azamat dressed as Oliver Hardy.

(This is not the only cinematic reference; shots in New York evoke Midnight Cowboy

[1969, directed by John Schlesinger], and shots in the heartland evoke Easy Rider

-19-
[1969, directed by Dennis Hopper]). All one-on-one scenes between Borat and

Luenell are scripted and staged. Borat's attack on Pamela Anderson is transparently

staged. There is even some subtle humor: The bear brought for protection against the

Jews disappears without credible explanation, and its head is later seen on a platter

in a refrigerator. Throughout, the film makers ask the audience for a significant

suspension of disbelief.

A reasonable trier of fact could very well conclude, after watching the

Borat motion picture, that such a work of fiction cannot be considered a

"documentary-style film." See Goldman v. Belden, 754F.2d 1059,1067 (2dCir. 1985)

(on Rule 12(b)(6) motion, court does not weigh the evidence that might be presented

at a trial; instead, court merely determines whether the claims are legally sufficient).

Under such circumstances, the trier of fact could conclude that, notwithstanding the

Consent Agreement, defendants fraudulently induced Psenicska to appear in the Borat

motion picture. See Villager Pond, Inc. v. Town ofDarien, 56 F.3d 375, 378 (2d

Cir.1995) (issue before the court on Rule 12(b)(6) motion "is not whether a plaintiff

will ultimately prevail, but whether the claimant is entitled to offer evidence to

support the claims") (quoting Scheuer v. Rhodes, 416 U.S. 232,235-36 (1974)), cert,

denied, 519 U.S. 808 (1996).

Based on a disputable interpretation of the Borat motion picture, the

district court erroneously concluded that Psenicska could not, under any

-20-
circumstances, prove his claims. See Kittay v. Kornstein, 230 F.3d 531, 537 (2d Cir.

2000) (Rule 12(b)(6) motion may be granted only when it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim).

II. THE DISTRICT COURT IMPROPERLY CONCLUDED THAT THE

CONSENT AGREEMENT COVERS A WORK OF FICTION SUCH AS
THE BORAT MOTION PICTURE

Applying only to a "documentary-style film" and making no reference

to a work of fiction, the Consent Agreement by its terms does not apply to the Borat

motion picture. See Cahill v. Regan, 5 N.Y.2d 292, 184 N.Y.S.2d 348 (1959) (a

release may not be read to cover matters which the parties did not intend to cover);

Demaria v. Brenhouse, 277 A.D.2d 344,345, 716 N.Y.S.2d 99, 100 (2d Dep't 2000)

(same). The release in Paragraph 4 - in which Psenicska purported to waive "any

claims against the Producer... or anyone associated with the Film" — is limited by the

definition of the "Film" in Paragraph 1. See Morales v. Solomon Management Co.,

38 A.D.3d 381, 382, 832 N.Y.S.2d 195, 196-97 (1st Dep't 2007) (when "a release

contains a recital of a particular claim, obligation or controversy and there is nothing

on the face of the instrument other than general words of release to show that

anything more than the matters particularly specified was intended to be discharged,

the general words of release are deemed to be limited thereby") (citations omitted);

Kaminsky v. Gamache, 298 A.D.2d 361, 361-362, 751 N.Y.S.2d 254, 256 (2d Dep't

2002) ("if from the recitals therein or otherwise, it appears that the release is to be

-21-
limited to only particular claims, demands or obligations, the instrument will be

operative as to those matters alone"); Vines v. Gen. Outdoor Adver. Co., 171 F.2d

487,492 (2d Cir. 1948) (Hand, J.) ("[I]n arelease[,] words of general import, followed

or preceded by words relating to specific claims, are, ceteris paribus, limited to the

specific claims").

Because Psenicska did not give his consent for the use of his image or

the exploitation of his services in a work of fiction, he may pursue his claims in this

action. See Fitzgerald v. Fahnestock & Co., 850 N.Y.S.2d 452, 453-54 (1st Dep't

2008) ("the settlement agreement and release between petitioner and Fahnestock,

which contained a recital of petitioner's action against Fahnestock and their desire to

settle the action, but no reference to petitioner's employment or his employment

agreement, is not necessarily a general release"); Blogv. Sports Car Club of America,

Inc., 254 A.D.2d 65, 66, 678 N.Y.S.2d 609, 610 (1st Dep't 1998) (release of

negligence claims arising out of go-kart race does not cover claims involving the

design, manufacture, or sale of the go-kart); Lanni v. Smith, 89 A.D.2d 782, 783, 453

N.Y.S.2d 497, 498 (4th Dep't 1982) (release referring to specific claims does not

cover all claims arising from same accident, because "There is no phrase indicating

that the release covers all claims arising from the accident").

The district court ruled that the Consent Agreement can apply to a

fictional work such as the Borat motion picture, because: "The fact that Borat is a

-22-
fictional character, however, does nothing to diminish the fact that his fictional story

is told in the style of a true one." A-50-51 (emphasis in original). The district court

improperly stretched the words of the Consent Agreement beyond their plain and

ordinary meanings.

The word "documentary," as an adjective, means "(of a movie, a

television or radio program, or photography) using pictures or interview with people

involved in real events to provide a factual record or report: he has directed

documentary shorts and feature films; as a noun, the word means "a movie or a

television or radio program that provides a factual record or report." New Oxford

American Dictionary (Erin McLean, ed., 2d ed., New York: Oxford University Press,

Inc. 2005). The word "-style," as a suffix forming adjectives and adverbs, means: "in

a manner characteristic of: family-style I church style." Id. Therefore, the phrase

"documentary-style film" means a work displaying the characteristics of a film that

provides a factual record or report, and the Borat motion picture is not such a work.

A documentary chronicles actual people in actual events and by definition cannot be

a work of fiction. A film made in the style of a documentary is based on facts that can

be documented and corroborated by reliable sources, and such a film does not contain

fictional characters engaging in deliberately outre behavior to comedic effect. This

obvious conclusion may be derived from the application of settled canons of

construction. See Bauersfeld v. Board ofEduc. of Morrisville-Eaton Cent. School

-23-
Dist, 46 A.D.3d 1003, 1005, 846 N.Y.S.2d 809, 811 (3d Dep't 2007) (court "duty-

bound" to "give words and phrases employed their plain meaning"); Innophos, Inc.

v. Rhodia, S.A., 38 A.D.3d 368,374, 832 N.Y.S.2d 197,203 (1st Dep't 2007) (words

in a written contract "should not be unnaturally forced beyond their ordinary

meaning"), aff'd, 10 N.Y.3d 25 (2008).

The phrase "documentary-style film" gave defendants the flexibility to

produce a documentary in the style of any one of a number of sub-genres without

having to answer to Psenicska about the method they chose to cover the topic of

assimilating the foreign born into the American way of life. They could have followed

the classic style of presenting archival footage mixed with interviews, as director

Marcel Ophiils did in The Sorrow and the Pity (1972) (collaboration of France's

Vichy government with Nazi Germany from 1940 to 1944; archival footage mixed

with interviews of collaborators, resistance fighters, and observers). They could have

varied the classic style by including dramatic re-enactments of actual events based on

forensic evidence, as director Errol Morris did in The Thin Blue Line (1988) (arguing

that a man was wrongly convicted for murder by a corrupt justice system in Dallas,

this documentary combined dramatic re-enactments of the crime and the investigation

with contemporaneous newspaper accounts and photographs of the case and with

interviews of the suspects, defense counsel, and trial witnesses). They could have

presented their film in a news format in the style of CBS Reports, e.g., Harvest of

-24-
Shame (1960, directed by Fred W. Friendly) (Edward R. Murrow reports on the plight

of migrant farm workers in America). They could have followed the style of cinema

verite, as directors Albert and David Maysles did in Salesman (1968) (Four relentless

door-to-door salesmen deal with constant rejection, homesickness and burnout as they

go across the country selling very expensive bibles to low-income Catholic families)

and Grey Gardens (1975) (the bizarre and reclusive lives of Edith Bouvier Beale and

her daughter Edie among cats and raccoons in a crumbling mansion in East

Hampton). They could have included in their documentary-style film slow pans

across sepia-toned photographs while professional actors read from news accounts,

letters, or diaries — a technique used to interesting effect by Ken Burns in The Civil

War documentary (1990).

The expression in the Consent Agreement of defendants' "hope[] to

reach a young adult audience by using entertaining content and features" does not

lead to a contrary conclusion or even create a contrary impression. First of all, the

phrase "entertaining content" is not a term of art and is not necessarily understood to

be limited to comedy or puerile satire. Many movie viewers, even young adults,

would find a serious treatment of a topical issue to be entertaining. See, e.g., Super

Size Me (2004, directed by Morgan Spurlock) (a demonstration of the physical and

mental effects of consuming fast food and an examination of the food culture in

America). Secondly, it's easy to list bona fide documentaries that a young adult

-25-
audience would likely find entertaining: Gimme Shelter (1970, directed by Albert and

David Maysles) (chronicle of Rolling Stones' 1969 tour, with much of the focus on

the tragic concert at Altamont, California); Let It Be (1970, directed by Michael

Lindsay-Hogg) (the recording of the Beatles' final album culminating in a

performance by the band on the roof of Apple Records in London); Woodstock (1970,

directed by Michael Wadleigh) (chronicle of legendary 1969 music festival); The Last

Waltz (1978, directed by Martin Scorsese) (final concert of The Band); Jazz On a

Summer's Day (1960, directed by Aram Avakian and Bert Stein) (1958 Newport Jazz

Festival).

Defendants could have told Psenicska that he was being asked to appear

in a motion picture portraying a fictional account of a staged journey across America

by a fictional character whose raison d'etre was to provoke base reactions from the

unwitting. Defendants could have easily disclosed their intentions in the Consent

Agreement, but they wrote the document to obfuscate, not elucidate - a point

confirmed by Todd Lewis Schulman's signing a phony name. Of course, had they

been forthright, defendants would have risked Psenicska's refusal to participate or

risked the loss of spontaneity. Rather than face such risks, defendants chose to mask

their intentions with outright lies and sleazy business practices. That choice, however,

does not come without a consequence: Defendants cannot now impose their hidden

intent on Psenicska. See Gross v. Sweet, 49 N.Y.2d 102,110,424 N.Y.S.2d 365,369-

-26-
70 (1979) ("In short, instead of specifying to prospective students that they would

have to abide any consequences attributable to the instructor's own carelessness, the

defendant seems to have preferred the use of opaque terminology rather than suffer

the possibility of lower enrollment. But, while ... the law grudgingly accepts the

proposition that men may contract away their liability for negligently caused injuries,

they may do so only on the condition that their intention be expressed clearly and in

unequivocal terms") (quotation omitted).

III. THE DISTRICT COURT IMPROPERLY CONCLUDED THAT THE

PHRASE "DOCUMENTARY-STYLE FILM" WAS UNAMBIGUOUS

The district court ruled that the phrase "documentary-style film" was not

ambiguous, because according to the district court, the parties attributed "only one

meaning" to the phrase. A-49-50. The parties did no such thing, as shown by the very

page from defendants' reply memorandum cited by the district court:

Plaintiff incorrectly contends that, contrary to the description in

the Release, the Film is not a documentary-style film because, he
argues, a documentary connotes non-fiction and the Film is
indisputably fiction.*** [T]he Release does not state and
Defendants do not argue that the Film is a "documentary."
Instead, the Release accurately describes the Film as a "motion
picture" that is in a "documentary-style" that will be aimed at a
"young adult audience by using entertaining content and formats"
and that may involve some "offensive behavior or questioning."

A-33-34 [Def. Reply Mem. 5-6, cited by the district court at A-49]. Psenicska

presented an entirely different interpretation of the phrase. A-30-31 [PI. Mem. 4-5].

-27-
 Rather than proceed from a stipulated meaning, the district court adopted

the broad meaning ascribed to the phrase by defendants and rejected the more narrow

meaning ascribed to the phrase by Psenicska: "the operative word in the phrase

'documentary-style film' is 'style' and not'documentary.'" A-50. No such conclusion

can be drawn from the four corners of the Consent Agreement. See Kass v. Kass, 91

N.Y.2d 554,673 N.Y.S.2d 350 (1998) (presence or absence of ambiguity determined

by looking within four corners of the document, without reference to extrinsic

evidence). A reasonable person could just as easily focus on "documentary" as the

"operative word." Thus, the phrase is ambiguous. See Krumme v. WestPoint Stevens,

Inc., 238 F.3d 133, 138-139 (2d Cir. 2000) (contract language ambiguous "if it is

capable of more than one meaning when viewed objectively by a reasonably

intelligent person who has examined the context of the entire integrated agreement").

Accord Sayers v. Rochester Tel. Corp., 7 F.3d 1091, 1095 (2d Cir. 1993).

The district court erred by construing the ambiguous Consent Agreement

against Psenicska rather than against defendants, both as the moving parties {Seiden

Assoc. Inc. v. ANC Holdings, Inc., 959 F.2d 425, 429 (2d Cir. 1992) (on a motion for

summary judgment, any ambiguity must be construed against the moving party)] and

as the drafters of the Consent Agreement [Lifson v. IN A Life Ins. Co. of New York,

333 F.3d 349, 353 (2d Cir. 2003) ("We construe ambiguities against the drafter");

Guardian Life Ins. Co. of America, Inc. v. Schaefer, 70 N.Y.2d 888, 890, 524

-28-
N.Y.S.2d 377, 378 (1987) (ambiguities in contracts must be construed against the

drafter"); Greenfieldv. PhillesRecords, Inc., 23 A.D.3d214,214-215,803 N.Y.S.2d

548, 549 (1st Dep't 2005) (trial court properly construed ambiguity against drafter)].

The relevant inquiry at this point of the proceedings is whether each

party has advanced a reasonable interpretation of the Consent Agreement, rendering

it ambiguous under ordinary principles of contract interpretation. See Nowak v.

Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1192 (2d Cir.1996) (in a contract

dispute, summary judgment may be granted only when the language of the contract

is unambiguous); Walk-In Medical Centers, Inc. v. Brewer Capital Corp., 818 F.2d

260 (2d Cir. 1987) (motion for summary judgment properly denied because the term

"adverse market conditions" was susceptible of at least two reasonable

interpretations). The district court erred by ruling that the Consent Agreement on its

face is so clear that Psenicska has no chance of presenting a prima facie case. Cf.

Breed v. Ins. Co. of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 355

(1978) (when relevant language has "a definite and precise meaning, unattended by

danger of misconception in the purport of the [contract] itself, and concerning which

there is no reasonable basis for a difference of opinion," no ambiguity exists).

-29-
IV. PSENICSKA MAY MAINTAIN A CLAIM FOR
FRAUDULENT INDUCEMENT

A release may be set aside on the traditional bases of fraudulent

inducement, fraudulent concealment, or misrepresentation. Mangini v. McClurg, 24

N.Y.2d 556, 566, 301 N.Y.S.2d 508, 517 (1969) ("Fraud, however, has long been a

ground for setting aside a release"); Dickson v. City of New York, 43 A.D.3d 809, 842

N.Y.S.2d 27,28 (1 st Dep't 2007) (plaintiffs could seek rescission of release based on

misrepresentation); Skluth v. United Merchants & Mfrs., Inc., 163 A.D.2d 104, 106,

559 N.Y.S.2d 280, 282 (1st Dep'tl990) ("A release may, of course, be attacked for

being the product of fraud").

In order to set aside a release on such grounds, a plaintiff must establish

the basic elements of fraud: a representation of material fact, the falsity of that

representation, knowledge by the party who made the representation that it was false

when made, justifiable reliance by the plaintiff, and resulting injury. Global Minerals

and Metals Corp. v. Holme, 35 A.D.3d 93, 98, 824 N.Y.S.2d 210, 214 (1st Dep't

2006). Each of those elements is properly pleaded in the Complaint (A-20-24), and

Psenicska's factual allegations of fraud in the procurement of the Consent Agreement

were sufficient to defeat defendants' Rule 12(b)(6) motion. SeeFarberv. Breslin, 47

A.D.3d 873, 850 N.Y.S.2d 604, 608 (2d Dep't 2008) ("Here, the allegations of fraud

were sufficient to support a possible finding that the release signed by the plaintiff

-30-
was obtained under circumstances which indicate unfairness").

The district court ruled that Psenicska could not "restyl[e] [his]

allegations of misrepresentation as allegations of omission." A-54. The district court

mis-stated and mis-applied the law.

If a party has a duty to disclose, that party's failure to disclose a material

fact may be as actionable as an affirmative misrepresentation made by the party. See

Banque Arabe et Internationale D'Investissement v. Maryland Nat. Bank, 57 F.3d

146, 153 (2d Cir.1995); Farber v. Breslin, 47 A.D.3d at 876, 850 N.Y.S.2d at 607.

In Brass v, American Film Technologies, Inc., this court listed three circumstances

in which a duty to disclose may arise under New York law: "first, where the party has

made a partial or ambiguous statement, on the theory that once a party has undertaken

to mention a relevant fact to the other party, it cannot give only half of the truth;

second, when the parties stand in a fiduciary or confidential relationship with each

other; and third, where one party possesses superior knowledge, not readily available

to the other, and knows that the other is acting on the basis of mistaken knowledge."

987 F.2d 142, 150 (2d Cir.1993) (quotations and citations omitted).

The first circumstance is present here. Defendants engaged in the classic

bait and switch. They told Psenicska that they would be producing one kind of motion

picture - a "documentary about the integration of foreign people into the American

way of life" - while concealing the fact that they were actually producing an entirely

-31-
different kind of motion picture - a work of fiction mocking the idea of tolerance and

understanding among diverse peoples. The district court, relying solely on the "clear

wording" of the Consent Agreement, evidently believed that defendants had made a

full disclosure of their intentions. A-54. The Consent Agreement, however, is not at

all clear on the true nature of the Borat motion picture. By concluding otherwise, the

district court deprived Psenicska of the inferences he is entitled to receive on a Rule

12(b) motion. When all reasonable inferences are drawn in his favor, the conclusion

must be that, at most, defendants made but a partial disclosure of their intentions with

the phrase "documentary-style film."

The third circumstance is also present here. Not wise to the wiles of

Hollywood players, Psenicska could not have ascertained the true nature of the Borat

motion picture, a matter within defendants' exclusive knowledge. He was not shown

a script; he did not meet the director; he was not told there would be paid SAG actors,

nor was he given any reason to suspect there would be any; he was mislead by the

producer, who did not even give his real name. Everything appeared to be as

represented until the cameras started rolling. Defendants made certain that Psenicska

could not have access to all of the facts before they game him the Consent Agreement

to sign. Knowing that Monday, June 13, 2005, was not convenient for Psenicska,

Shulman called Psenicska on Friday, June 10, and said that the taping had to be on

June 13, and at a location miles from his home. A-20-21 . On the day of the taping,

-32-
defendants kept Psenicska waiting for more than 90 minutes, so long that he was

about to leave - another tactic designed to disorient him. A-21. Having made sure

Psenicska was rushed for time, Shulman had Psenicska sign the Consent Agreement,

took it without leaving him with a copy, then got him involved in the "documentary-

style film." A-21-22. Defendants continued to keep Psenicska ignorant of the true

nature of the Borat motion picture even after his ride with Sasha Baron Cohen. No

one from the production crew would acknowledge his questions, and Shulman, on his

way to the next victim, did not return Psenicska's post-taping phone calls. A-23-24.

The district court nowhere explained how Psenicska could have learned

any of the true facts about the Borat motion picture and protected himself from

defendants' fraud. At this stage of the proceedings, the district court was wrong to

permit defendants to profit from their behavior. See Bloss v. Va'ad Harabonim of

Riverdale, 203 A.D.2d 36, 39-40, 610 N.Y.S.2d 197, 200 (1st Dep't 1994) ("it is

inequitable to allow a release to bar a claim where, as here, it is alleged that the

releasor had little time for investigation or deliberation and that it was the result of

overreaching or unfair circumstances").

Defendants have the burden of proving by the preponderance of the

evidence that the Consent Agreement was valid at its inception. Fleming v. Ponziani,

24 N.Y.2d 105, 112-13, 299 N.Y.S.2d 134, 141 (1969). At this stage of the

proceedings, the district court was wrong to rule that defendants had met their burden.

-33-
V. PSENICSKA DID NOT DISCLAIM RELIANCE ON THE ORAL
MISREPRESENTATIONS

The district court ruled that the merger clause in the Consent Agreement

(at ^f 5) precluded Psenicska's claim of fraudulent inducement: "Plaintiff has not

relied 'upon any promises or statements made by anyone about the nature of the Film

or the identity of any other Participants or persons involved in the Film.'" A-53

(quoting Consent Agreement). The district court was wrong, for two reasons.

First, the Consent Agreement does "not purport to waive defenses to its

own validity"; nor does the Consent Agreement contain a "disclaimer as to the

validity, regularity, or enforceability of the [Consent Agreement] itself."

Manufacturers Hanover Trust Co. v. Yanakas, 7 F.3d 310, 317 (2d Cir. 1993). Also,

as in Yanakas, "There [is] no evidence that the scope or character of the [Consent

Agreement] was the product of any negotiations between the parties." Id. Psenicska's

acknowledgment that he was "not relying upon any promises or statement made by

anyone about the nature of the Film" does not preclude his claim that those words -

and the whole Consent Agreement itself- were procured by defendants' fraudulent

concealment of material facts about the nature of the Borat motion picture. See MLP

U.S.A., Inc. v. Motheral, 2006 WL 2389348 at *2 (S.D.N.Y.) (guaranty's waiver of

all defenses "which might constitute a legal or equitable discharge of a surety or

guarantor" and agreement that guarantee "shall be valid and unconditionally binding

-34-
upon Guarantor in any event and under all circumstances" does not "render

immaterial the defense that those words — and the whole Guaranty itself — were

procured by fraudulent concealment...").

Second, at most, Psenicska disclaimed reliance on representations

relating only to a "documentary-style film," not a work of fiction. Defendants'

representations to Psenicska about the ostensible documentary for which they

recruited him were consistent with the terms of the Consent Agreement, which

contains no language even hinting at the true nature of the motion picture defendants

intended to produce. See Turkish v. Kasenetz, 27 F.3d 23, 27-28 (2d Cir.1994) (rule

prohibiting party from claiming reliance on oral representation in face of specific

disclaimer does not apply when party claims reliance "on written representations in

the contract itself). The disclaimer cannot be read to mean that defendants could

produce a film different from what was described in the Consent Agreement. If so,

then the misrepresentation of the motion picture in the Consent Agreement itself

renders the Consent Agreement unenforceable. See JPMorgan Chase Bank v. Liberty

Mutual Ins. Co., 189 F.Supp.2d 24, 27 (S.D.N.Y. 2002) (notwithstanding broad

disclaimer clause, surety bonds that misrepresent nature of transaction subject to "a

defense of fraudulent inducement or concealment premised on fraudulent

misrepresentations in the Bonds themselves").

Dismissal of the Psenicska's claim for fraudulent inducement would be

-35-
inappropriate at this early stage of the proceedings.

CONCLUSION

Entitled at this stage of the proceedings to all reasonable inferences,

Psenicska should be given the opportunity to hold defendants accountable for

misleading him. The judgment of the district court should be reversed.

Dated: New York, New York

February 9, 2009

(PML-7630)
Attorney for Plaintiff-Appellant
420 Lexington Avenue, Suite 2620
New York, New York 10170
212-599-0009

F:\wpwinl2\Psenicska\ctpapers\09-02-09 appellate brief -36-

 CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)

1. This brief complies with the type-volume limitation of Fed. R.

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the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

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brief has been prepared in a proportionally spaced typeface using Word Perfect in

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INE (PML-7630)
Attorney for Plaintiff-Appellant
420 Lexington Avenue, Suite 2620
New York, New York 10170
212-599-0009