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Case 2:19-cv-01862-GW-PJW Document 36 Filed 06/17/19 Page 1 of 12 Page ID #:612

1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP


Howard Weitzman (SBN 38723)
2 hweitzman@kwikalaw.com
Jonathan P. Steinsapir (SBN 226281)
3 jsteinsapir@kwikalaw.com
Zachary T. Elsea (SBN 279252)
4 zelsea@kwikalaw.com rd
808 Wilshire Boulevard, 3 Floor
5 Santa Monica, California 90401
Telephone: 310.566.9800
6 Facsimile: 310.566.9850
7 FREEDMAN + TAITELMAN LLP
Bryan J. Freedman (SBN 151990)
8 bfreedman@ftllp.com
1901 Avenue of the Stars, Suite 500
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9 Los Angeles, California 90067


Telephone: 310.201.0005
KINSELLA WEITZMAN ISER KUMP & ALDISERT

10 Facsimile: 310.201.0045
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11 Attorneys for Optimum Productions and


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John Branca and John McClain as Co-


12 Executors of the Estate of Michael J.
Jackson
13
UNITED STATES DISTRICT COURT
14
CENTRAL DISTRICT OF CALIFORNIA
15
16 OPTIMUM PRODUCTIONS, a Case No. 2:19-cv-01862 GW(PJWx)
California corporation; and JOHN
17 BRANCA and JOHN MCCLAIN, in Hon. George H. Wu
their respective capacities as CO-
18 EXECUTORS OF THE ESTATE OF PLAINTIFFS’ SUPPLEMENTAL
MICHAEL J. JACKSON, BRIEF RE ARBITRABILITY AND
19 IN SUPPORT OF MOTION TO
Plaintiffs, COMPEL ARBITRATION
20
vs. Date: July 15, 2019
21 Time: 8:30 a.m.
HOME BOX OFFICE, a Division of Ctrm: 9D
22 TIME WARNER ENTERTAINMENT,
L.P., a Delaware Limited Partnership,
23 and HOME BOX OFFICE, INC., a
Delaware corporation, and DOES 1
24 through 5, business entities unknown,
and DOES 6 through 10, individuals
25 unknown,
26 Defendants.
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Case 2:19-cv-01862-GW-PJW Document 36 Filed 06/17/19 Page 2 of 12 Page ID #:613

1 TABLE OF CONTENTS
2 Page
3 1.  The Dispute Here Is Clearly Arbitrable ............................................................ 1 
4 2.  HBO’s Attempt To Avoid The Presumption Of Arbitrability Is
Meritless ............................................................................................................ 1 
5
3.  The Confidentiality Provisions’ Reference To A “Court” Does Not
6 Exclude Claims For Their Breach From The Obligation to Arbitrate .............. 2 
7 4.  HBO’s Arguments That It Did Not Breach Are For The Arbitrator................. 5 
8 5.  As This Court Already Held, HBO’s Argument That “The 1992
Agreement Has Expired” Is For the Arbitrator ................................................. 6 
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6.  HBO’s First Amendment And Public Policy Arguments Are Frivolous .......... 7 
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1 TABLE OF AUTHORITIES
2 Page
3
CASES 
4
AbbVie Inc. v. Novartis Vaccines & Diagnostics, Inc.
5 2017 WL 3835340 (N.D. Cal. 2017) ................................................................. 5
6 AT&T Mobility LLC v. Concepcion
563 U.S. 333 (2011) .......................................................................................... 7
7
AT&T Techs., Inc. v. Commc’ns Workers of Am.
8 475 U.S. 643 (1986) .......................................................................................... 1
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9 Buckeye Check Cashing, Inc. v. Cardegna


546 U.S. 440 (2006) ......................................................................................... 7
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Comedy Club, Inc. v. Improv West Associates
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11 553 F.3d 1277 (9th Cir. 2009) ....................................................................... 4, 5


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12 Comer v. Micor, Inc.


436 F.3d 1098 (9th Cir. 2006) ................................................................... 1, 2, 4
13
Harris v. Sandro
14 96 Cal. App. 4th 1310 (2002) ............................................................................ 3
15 Henry Schein, Inc. v. Archer & White Sales, Inc.
139 S. Ct. 524 (2019) ........................................................................................ 6
16
ISTA Pharm., Inc. v. Senju Pharm. Co.
17 2010 WL 11601183 (C.D. Cal. 2010) ............................................................... 2
18 Katz v. Feinberg
290 F.3d 95 (2d Cir. 2002) ................................................................................ 5
19
Knutson v. Sirius XM Radio Inc.
20 771 F.3d 559 (9th Cir. 2014) ............................................................................. 2
21 Lamps Plus, Inc. v. Varela
139 S. Ct. 1407 (2019) ...................................................................................... 5
22
McKinney v. Emery Air Freight Corp.
23 954 F.2d 590 (9th Cir. 1992) ............................................................................. 6
24 Nolde Bros. v. Local 358
430 U.S. 243 (1977) .......................................................................................... 6
25
Republic Bank v. Marine Nat. Bank
26 45 Cal. App. 4th 919 (1996) .............................................................................. 2
27 Roberts v. AT&T Mobility LLC
2016 WL 1660049 (N.D. Cal. 2016) ................................................................. 7
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1 Roberts v. AT&T Mobility LLC


877 F.3d 833 (9th Cir. 2017) ............................................................................. 7
2
Simula, Inc. v. Autoliv, Inc.
3 175 F.3d 716 (9th Cir. 1999) ............................................................................. 1
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1 1. The Dispute Here Is Clearly Arbitrable


2 The Agreement requires “binding and final arbitration” of “[a]ny dispute
3 arising out of, in connection with or relating to this Agreement.” Doc. 18 at 33. The
4 “language ‘arising in connection with’ reaches every dispute between the parties
5 having a significant relationship to the contract and all disputes having their origin
6 or genesis in the contract.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir.
7 1999). The Jackson Estate alleges that HBO violated the express terms of the
8 contract. HBO vehemently disagrees that it has violated the contract. Accordingly,
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9 there is a dispute that has its “origin or genesis in the contract,” ibid., and that
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10 dispute must be arbitrated. That is the beginning and end of the analysis here.
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11 HBO’s efforts to escape the result of this simple analysis fail.


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12 2. HBO’s Attempt To Avoid The Presumption Of Arbitrability Is Meritless


13 It is well-settled that “where the contract contains an arbitration clause, there
14 is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the
15 particular grievance should not be denied unless it may be said with positive
16 assurance that the arbitration clause is not susceptible of an interpretation that covers
17 the asserted dispute. Doubts should be resolved in favor of coverage.’” AT&T
18 Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986).
19 HBO cannot rebut the presumption of arbitrability, so it argues that the
20 presumption does not apply because Plaintiffs must first “demonstrate the existence
21 of a valid agreement to arbitrate disputes regarding the Confidentiality Provisions.”
22 Doc. 30 at 3:14-15 (emphasis added); see also id. at 1-3. That argument clearly
23 conflates two separate issues: (1) the existence of an arbitration clause (our burden
24 but undisputed); and (2) the scope of the arbitration clause (HBO’s burden to show
25 that “arbitration clause is not susceptible of an interpretation that covers” dispute).
26 The authorities on which HBO relies to argue that it is Plaintiffs’ burden to
27 show arbitrability are all irrelevant because they address the existence of an
28 arbitration agreement, and not its scope. In Comer v. Micor, Inc., 436 F.3d 1098 (9th
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1 Cir. 2006), the Court affirmed the denial of a motion to compel arbitration because
2 the plaintiff was not a signatory to the arbitration agreement and therefore no
3 arbitration agreement existed between the litigants. Id. at 1103–04. In Knutson v.
4 Sirius XM Radio Inc., 771 F.3d 559 (9th Cir. 2014), the Court held that “no valid
5 agreement to arbitrate exists between Knutson and Sirius XM because Knutson
6 never assented to the Customer Agreement” with the arbitration clause. Id. at 565-
7 66. See also ISTA Pharm., Inc. v. Senju Pharm. Co., 2010 WL 11601183, *7 (C.D.
8 Cal. 2010) (addressing whether plaintiff was party to arbitration agreement).
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9 HBO does not dispute the arbitration clause’s existence. It does not challenge
KINSELLA WEITZMAN ISER KUMP & ALDISERT

10 its authenticity. It does not contend, for example, that the Agreement is a forgery,
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11 that HBO is not bound by it, etc. It is therefore HBO’s burden to rebut the
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12 presumption that the arbitration clause requires arbitration of the claim that HBO
13 breached the Agreement.
14 3. The Confidentiality Provisions’ Reference To A “Court” Does Not
15 Exclude Claims For Their Breach From The Obligation to Arbitrate
16 The dispute here is whether HBO breached non-disparagement and other
17 provisions in Exhibit I of the Agreement. The exhibit, entitled “Confidentiality
18 Provisions” is specifically incorporated by reference into the Agreement: “It is
19 understood that HBO shall comply with the confidentiality provisions set forth in
20 Exhibit I attached hereto and incorporated herein by this reference.” Doc. 18-1 at 33
21 § (ii). “The phrase ‘incorporation by reference’ is almost universally understood,
22 both by lawyers and nonlawyers, to mean the inclusion, within a body of a
23 document, of text which, although physically separate from the document, becomes
24 as much a part of the document as if it had been typed in directly.” Republic Bank v.
25 Marine Nat. Bank, 45 Cal. App. 4th 919, 922 (1996) (emphasis in original). The
26 arbitration clause therefore applies to breaches of obligations in Exhibit I in
27 precisely the same way that it applies to every other part of the Agreement.
28 Nevertheless, HBO argues that a bare reference to a “court” in Exhibit I
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1 somehow excludes breaches of those provisions from the scope of the broad
2 arbitration clause here. HBO contends that the supposedly “specific” reference to a
3 court in Exhibit I trumps the allegedly more “general” reference to arbitration in the
4 Agreement. This argument fails at the outset for the simple reason that the
5 arbitration clause is much more specific than the reference to a “court” in Exhibit I.
6 The arbitration clause requires that “[a]ny dispute arising out of, in connection with
7 or relating to this Agreement shall be submitted for binding and final arbitration.”
8 Doc. 18 at 33 (emphasis added). It then specifies who the arbitrator will be (a retired
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9 judge of the Superior Court); how the arbitrator will be chosen; and what procedures
KINSELLA WEITZMAN ISER KUMP & ALDISERT

10 govern the arbitration (the AAA Rules).


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11 Contrary to HBO’s contention that the paragraph in Exhibit I “makes clear


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12 that any disputes [relating to the confidentiality provisions] must be resolved by ‘the
13 court,’ not an arbitrator,” (Doc. 30, initial emphasis added), the paragraph is a
14 simple fee-shifting clause. It provides as follows:
15 In the event that either party to this agreement brings an action to
enforce the terms of these confidentiality provisions or to declare rights
16 with respect to such provisions, the prevailing party in such action shall
be entitled to an award of costs of litigation … in such amount as may
17 be determined by the court having jurisdiction in such action.
18 Doc. 18 at 40 (emphasis added). The reference to a “court having jurisdiction” is
19 easily read under these circumstances—where there is a broad arbitration clause—to
20 include an arbitrator. And indeed, this is precisely what the case law holds.
21 In Harris v. Sandro, 96 Cal. App. 4th 1310 (2002), an option agreement
22 included a typically broad arbitration clause like the one here. Id. at 1312. It also
23 contained a fee-shifting clause like the one here, providing: “Should any litigation
24 be commenced between the parties … the prevailing party … may be granted, a
25 reasonable sum for attorneys’ fees to be determined by the court in such litigation
26 …” Ibid. An arbitrator awarded fees to the prevailing party pursuant to this clause,
27 and the other party argued that only a “court” could award fees. The Court rejected
28 the argument, holding that “a contract that both compels arbitration and requires a
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1 ‘court’ to determine the amount of the fee award must contemplate that an arbitrator
2 will make the fee award. Otherwise, fees could never be awarded because no ‘court’
3 may decide a dispute under the contract; all such disputes must be decided by an
4 arbitrator.” Id. at 1315.
5 Even if that precedent were ignored—and the language were read to only
6 include a “public court of record”—this conditional, permissive language is not an
7 exclusion from the broad arbitration clause, or a mandatory forum selection clause
8 for disputes relating to the confidentiality provisions. The provision merely states
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9 that, if the parties are in court, the court is empowered to award fees and costs.
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10 There are many reasons why the parties would be in court, despite the Agreement’s
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11 arbitration clause. The first reason is obvious given the proceedings here: a party
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12 may seek court intervention to compel arbitration. The second, as stated at the May
13 23 hearing is to seek injunctive relief (which is referenced in Exhibit I, see Doc. 18
14 at 39). A third reason is that a court may need to confirm an arbitration award.
15 The very best interpretation for HBO is that there may be an ambiguity as to
16 arbitrability. “However, if a contract is capable of two different reasonable
17 interpretations, the contract is ambiguous, and under the federal presumption in
18 favor of arbitration, an arbitrator would have jurisdiction to arbitrate claims.”
19 Comedy Club, Inc. v. Improv West Associates, 553 F.3d 1277, 1285 (9th Cir. 2009).1
20 The Ninth Circuit’s decision in Comedy Club is on point. Like here, the
21 parties’ agreement included: (1) a broad arbitration clause; (2) a clause referencing
22 the courts’ jurisdiction over certain disputes; and (3) a provision authorizing an
23 award of fees and costs to “the prevailing party in any arbitration or action to
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1
25 HBO argued at the May 23, 2019 hearing that “we have absolute ambiguity
because we have two directly conflicting provisions”—the broad arbitration clause
26 in the Agreement and the reference to a “court” in Exhibit I thereof. See Doc. 30-1
at p. 22 of 37 (Transcript of Proceedings) (emphasis added). That assertion is itself
27 dispositive of this motion in light of the law cited above.
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1 enforce this Agreement.” Id. at 1286. The second clause, which referenced the
2 courts, looks much more like a mandatory exclusion-from-arbitration provision than
3 the clause HBO relies on here. It reads as follows:
4 Notwithstanding this agreement to arbitrate, the parties, in addition to
arbitration, shall be entitled to pursue equitable remedies and agree that
5 the state and federal courts shall have exclusive jurisdiction for such
purpose.
6
Id. at 1285 (emphasis added and modification omitted). The Court nonetheless held
7
that the agreement could be interpreted such that the “second clause did not
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‘supplant the arbitrator’s authority’ to decide all disputes under the Trademark
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Agreement” as provided in the broad arbitration clause. Id. at 1285. The Court held
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that, taken together, “[t]hese [three] phrases can support that the arbitration
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agreement lets the parties pursue equitable remedies in courts in aid of the
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arbitration, and gives those courts exclusive jurisdiction over, and awards costs and
13
attorneys fees to the prevailing party in, those actions.” Id. at 1286. The Court
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therefore held that “because the arbitration agreement is ambiguous, it should be
15
interpreted as granting arbitration coverage over ‘all disputes’ arising from the
16
Trademark Agreement.” Ibid. See also AbbVie Inc. v. Novartis Vaccines &
17
Diagnostics, Inc., 2017 WL 3835340, *5 (N.D. Cal. 2017) (same).2
18
Simply stated, the mere reference to a “court” in Exhibit I is insufficient to
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rebut the presumption in favor of arbitrability.
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4. HBO’s Arguments That It Did Not Breach Are For The Arbitrator
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HBO takes a very narrow view of the Agreement’s non-disparagement clause,
22
2
23 Notably, the sole case that HBO cites on this issue, relating to arbitration, is
irrelevant. It involved competing arbitration provisions. Katz v. Feinberg, 290 F.3d
24 95, 97 (2d Cir. 2002) (“disputes under agreements containing both specific and
general arbitration clauses must be arbitrated under the particularized clauses”)
25 (emphasis added and punctuation omitted). HBO cites Lamps Plus, Inc. v. Varela,
139 S. Ct. 1407 (2019) to suggest that ambiguity regarding arbitrability can imply
26 that there is no consent to arbitrate. Lamps Plus is plainly inapposite. The reasoning
and holding in that case were specific to class arbitration, which the Court explained
27 is “markedly different from the ‘traditional individualized arbitration.’” Id. at 1405.
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1 arguing that it is not implicated because Leaving Neverland supposedly has “nothing
2 to do with Live in Bucharest.” Doc. 30 at 3:23-24. The Jackson Estate disagrees
3 both with the narrow interpretation of the non-disparagement clause (which requires
4 no relationship to the specific concert), and also disagrees that Leaving Neverland
5 had “nothing to do” with the concert. But these disagreements are for another day in
6 another forum. The issue on this motion is not whether the Jackson Estate’s claims
7 have merit, but who decides whether they have merit. In the words of the Supreme
8 Court, “a court may not rule on the potential merits of the underlying claim that is
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9 assigned by contract to an arbitrator, even if it appears to the court to be frivolous. A


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10 court has no business weighing the merits of the grievance because the agreement is
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11 to submit all grievances to arbitration, not merely those which the court will deem
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12 meritorious.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529
13 (2019) (internal citation and quotation marks omitted).
14 5. As This Court Already Held, HBO’s Argument That “The 1992
15 Agreement Has Expired” Is For the Arbitrator
16 HBO argues that the arbitration clause “does not encompass this dispute
17 because the 1992 Agreement has expired.” Doc. 30 at 5:18-19 (capitalization and
18 bolding removed). This Court already rejected that argument, explaining that
19 “Defendants are not challenging the Arbitration Provision itself as invalid, instead
20 they argue that the Agreement as a whole has expired. The continued validity of the
21 Agreement as a whole is a question for the arbitrator.” Doc. 27 at 9-10 fn. 7; Doc.
22 28 (adopting tentative, Doc. 27, as final ruling). HBO ignores the Court’s holding in
23 this regard. It also ignores the many cases cited by the Jackson Estate in its reply
24 brief rejecting HBO’s argument. Doc. 25 at 10-13. Regardless, even if the
25 Agreement “expired” in some sense, this would not change the outcome: “where the
26 dispute is over a provision of the expired agreement, the presumptions favoring
27 arbitrability must be negated expressly or by clear implication.” Nolde Bros. v.
28 Local 358, 430 U.S. 243, 255 (1977). See also McKinney v. Emery Air Freight
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1 Corp., 954 F.2d 590, 593 (9th Cir. 1992). Not only can HBO not rebut those
2 presumptions, it cannot even acknowledge them or the many cases invoking them.
3 6. HBO’s First Amendment And Public Policy Arguments Are Frivolous
4 “[A]s a matter of substantive federal arbitration law, an arbitration provision
5 is severable from the remainder of the contract,” and “unless the challenge is to the
6 arbitration clause itself, the issue of the contract’s validity is considered by the
7 arbitrator in the first instance.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.
8 440, 445-46 (2006) (emphasis added). HBO does not genuinely dispute the validity
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9 of the Agreement’s arbitration clause. It does not contend, for example, that the
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10 arbitration clause was procured by fraud or trick, that it was signed under duress,
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11 that it is unconscionable, etc.


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12 HBO counters that it is “attacking the enforceability of [the] arbitration


13 provision itself.” Doc. 30 at 7:15-16 (emphasis omitted). Specifically, it argues that
14 an order compelling arbitration is “the kind of ‘state action’ that can violate the First
15 Amendment, due process, and California law and policy.” Doc. 30 at 7:15-17
16 (emphasis omitted). That argument is just plain frivolous: “It is well established that
17 judicially enforcing arbitration agreements does not constitute state action.” Roberts
18 v. AT&T Mobility LLC, 877 F.3d 833, 838 n. 1 (9th Cir. 2017) (emphasis added)
19 (rejecting First Amendment challenge to order compelling arbitration). See also
20 Roberts v. AT&T Mobility LLC, 2016 WL 1660049, at *3 (N.D. Cal. 2016) (district
21 court’s more fulsome discussion of the issue).
22 To the extent that HBO is arguing that there is some unique California public
23 policy against arbitrating cases involving breaches of contractual confidentiality and
24 non-disparagement clauses, there is no authority whatsoever for that contention.
25 Any such policy would violate the Federal Arbitration Act in any event. “When state
26 law prohibits outright the arbitration of a particular type of claim, the analysis is
27 straightforward: The conflicting rule is displaced by the FAA.” AT&T Mobility LLC
28 v. Concepcion, 563 U.S. 333, 341 (2011).
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1 DATED: June 17, 2019 Respectfully submitted,


2
KINSELLA WEITZMAN ISER
3 KUMP & ALDISERT LLP
4
5 By: /s/Jonathan P. Steinsapir
Jonathan P. Steinsapir
6
Attorneys for Plaintiffs Optimum
7 Productions and the Co-Executors of the
Estate of Michael Jackson
8 10386.00348/650142
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