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Neville L. Johnson, State Bar No. 66329 njohnson( Douglas L. Johnson, State Bar No. 209216 djohnson( Jordana G. Thigpen, State Bar No. 2 Jthigpen( JOHNSON & JOHNSON LLP 439 North Canon Drive, Suite 200 Beverly Hills, California 90210 Tel: 310-975-1080 Fax: 310-975-1095 32642 Paul R. Kiesel, State Bar No. 119854 Kiesel(@kiesel law Jeffrey A. Koncius, State Bar No. 189803 koneius@hkiesel law KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, California 90211-2910 ‘ORMED CORIGINAL superior Court copy LED altornis DEC 06 2018 her Carter, Executive OticerCerk of out! By: Steven Drew, Deputy Clifford H. Pearson, State Bar No. 108523 Daniel L. Warshaw, State Bar No. 185365 Bobby Pouya, State Bar No. 245527 PEARSON, SIMON & WARSHAW LLP Tel: 310-854-4444 15165 Ventura Boulevard, Suite 400 Fax: 310-854-0812 Sherman Oaks, California 91403 Tel: 818-788-8300 Fax: 818-788-8104 SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NEVERSINK PRODUCTIONS: CASE NO. 8 CORPORATION, | 18STCVO7 487 CLASS ACTION ae COMPLAINT FOR: ve 1. BREACH OF CONTRACT; 2. BREACH OF IMPLIED COVENANT; WALT DISNEY PICTURES, a California | 3. MONEY HAD AND RECEIVED; corporation, and DOES 1-100, 4. DECLARATORY JUDGMENT; 5. OPEN BOOK ACCOUNT; and 6. VIOLATION OF CAL. BUS. & PROF. Defendants. | Hi CODE §17200 ET SEQ. a JURY TRIAL DEMANDED CLASS ACTION COMPLAINT ae Plaintiff Neversink Productions (“Plaintiff”), on behalf of itself and all others similarly situated, alleges upon personal knowledge as to itself and its own acts, and upon information and belief as to all other matters, based upon, inter alia, the investigation made by and through its attorneys, as follows: NATURE OF THE ACTION 1. Defendant Walt Disney Pictures (“DISNEY”) is contractually required to pay @ portion of the revenue it receives from the exploitation of motion pictures that are distributed through the home video market to persons and/or entities described as “profit participants.” The standard motion pictures contract entered into between DISNEY or its predecessors-in-interest and the Class members requires the calculation of income to be based on all of the revenue received by DISNEY. Contrary to the unambiguous terms of the standard contract, DISNEY engages in a common and systematic practice of accounting for less revenue than it actually receives, by including only 20% of home video revenue received, when calculating the amount payable to the profit participants. The terms of the contracts between DISNEY and its predecessors-in interest, and profit participants, contains the same, if not identical, language regarding the method of accounting for revenues and paying the profit participants their contingent share of the eamings generated from the exploitation of the motion pictures in the home video market. Moreover, there is nothing in any of the class member contracts that permits DISNEY to calculate home video revenue based on an amount less than all such revenue received. 2. Plaintiff brings this nationwide class action against Defendant DISNEY —a business entity headquartered in Los Angeles County, California, that undertakes significant business activity in this State and Judicial District—for DISNEY’s failure to properly account to Plaintiff and Class members for all revenue and income derived from the home video distribution of motion pictures, which includes, but is not limited to, VHS, DVD, laser dise, Video-On- Demand, digital download, streaming, and all other methods of distribution of motion pictures that is categorized by DISNEY as “home video” for purposes of reporting to profit participants | (collectively, “Home Video”). 2 CLASS ACTION COMPLAINT 10 u 12 13 4 16 W 18 19 20 21 2 23 4 25 26 27 28 3. Plaintiff seeks monetary damages, injunctive, and/or declaratory relief against DISNEY for its willful violation of contracts between itself and profit participants through which DISNEY or its predecessors-in-interest obtained the services of individuals and entities in exchange for profit participation payments to these individuals and entities (Hereinafter, “Contingent Compensation Agreements”). DISNEY has unilaterally breached these contracts by deciding to pay profit participants a fraction of the actual amount owed to them as required by the Contingent Compensation Agreements in connection with the distribution of motion pictures on Home Video. 4. Whether directly or indirectly through its subsidiary or affiliate, DISNEY receives 100% of the revenue derived from Home Video distribution. Rather than include 100% of the moneys eamed from Home Video distribution when accounting to profit participants, DISNEY only includes 20% of the earings and wrongfully retains the balance. The wrongful conduct described herein was committed in and emanated from California, 5. This action seeks the payment to profit participants of their rightful earnings as well as other related relief. 6. Plaintiff seeks damages on behalf of itself and all others similarly situated, as well as an accounting and judgment declaring the proper method of calculating payments of income derived from Home Video distribution. Further, Plaintifi requests that this Court order DISNEY to adhere to the proper methodology for calculating such income in the future. Plaintiff brings claims for breach of contract, breach of the implied covenant of good faith and fair dealing, money had and received, declaratory relief, and statutory violations of California law. IL PARTIES Plaintiff 7. Plaintiff Neversink Productions Corporation, at all relevant times, is a California corporation that transacts business within the County of Los Angeles, California. Plaintiff is the Joan-out company for the services of writer Michael Elias. Plaintiff is a profit participant on the ‘motion picture “Young Doctors in Love” pursuant to a Writer’s Deal Contract dated October 7, 1980 (“Young Doctors Agreement”), A true and correct copy of the Young Doctors Agreement - 3 — CLASS ACTION COMPLAINT