HBO Opposition To Compel Arbitration Long Version

Case 2:19-cv-01862-GW-PJW Document 22 Filed 05/02/19 Page 1 of 28 Page ID #:405
1 DANIEL M. PETROCELLI (S.B. #97802)

dpetrocelli@omm.com
2 DREW E. BREUDER (S.B. #198466)
dbreuder@omm.com
3 O’MELVENY & MYERS LLP
1999 Avenue of the Stars, 8th Floor
4 Los Angeles, CA 90067-6035
Telephone: (310) 553-6700
5 Facsimile: (310) 246-6779
6 THEODORE J. BOUTROUS JR. (S.B. #132099)
tboutrous@gibsondunn.com
7 NATHANIEL L. BACH (S.B. #246518)
nbach@gibsondunn.com
8 GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
9 Los Angeles, CA 90071-3197
Telephone: (213) 229-7804
10 Facsimile: (213) 229-6804
11 Attorneys for Home Box Office, Inc.
12 UNITED STATES DISTRICT COURT
13 CENTRAL DISTRICT OF CALIFORNIA
14 OPTIMUM PRODUCTIONS, a Case No. 2:19-cv-01862-GW-PJW
California corporation; and JOHN
15 BRANCA and JOHN MCCLAIN, in Hon. George H. Wu
the respective capacities as CO-
16 EXECUTORS OF THE ESTATE OF HOME BOX OFFICE, INC.’S
MICHAEL J. JACKSON, MEMORANDUM OF POINTS AND
17 AUTHORITIES IN OPPOSITION
TO PLAINTIFFS’ MOTION TO
18 Plaintiffs, COMPEL ARBITRATION
19 v. Hearing Date: May 23, 2019
Hearing Time: 8:30 a.m.
20 HOME BOX OFFICE, a Division of
TIME WARNER ENTERTAINMENT,
21 L.P., a Delaware Limited Partnership;
HOME BOX OFFICE, INC., a
22 Delaware corporation; DOES 1 through
5, business entities unknown; and
23 DOES 6 through 10, individuals
unknown,
24
Defendants.
25
26
27
28
OPP. TO MOT. TO COMPEL ARBITRATION
CASE NO. 2:19-CV-01862-GW-PJW
1
TABLE OF CONTENTS
2
Page
3 I. INTRODUCTION .................................................................................................. 1
4 II. RELEVANT FACTUAL BACKGROUND......................................................... 1
5 III. ARGUMENT ....................................................................................................... 5
6 A. The Court Determines the Gateway Issues of Validity and
Arbitrability. .......................................................................................... 6
7
B. The 1992 Agreement Is Terminated and No Valid Agreement
8 Exists Upon Which to Arbitrate Petitioners’ Claims. ......................... 10
9 1. The 1992 Agreement Was Fully Performed and Has
Therefore Terminated. .............................................................. 10
10
2. The Arbitration Provision and Non-Disparagement
11 Sentence Did Not Survive Termination of the 1992
Agreement................................................................................. 12
12 C. Even If the 1992 Agreement Remained In Force, It Does Not
Pertain to Leaving Neverland.............................................................. 15
13
D. The 1992 Agreement’s Non-Disparagement Sentence is
14 Unenforceable. .................................................................................... 16
15 1.
Petitioners’ Interpretation of the Non-Disparagement
Sentence Violates HBO’s First Amendment and Due
16 Process Rights. .......................................................................... 17
17 2. The Non-Disparagement Sentence Is Unenforceable
Because It Violates Numerous Public Policies. ....................... 19
18 IV. CONCLUSION ................................................................................................. 23
19
20
21
22
23
24
25
26
27
28

i CASE NO. 2:19-CV-01862-GW-PJW
1
TABLE OF AUTHORITIES
2
Page(s)
3 Cases
4 Allan Block Corp. v. Cty. Materials Corp.,
634 F. Supp. 2d 979 (D. Minn. 2008) ................................................................. 12
5
Alpha Beta Food Markets v. Retail Clerks Union Local 770,
6 45 Cal. 2d 764 (1955) ............................................................................................ 8
7 Am. Family Mut. Ins. Co. v. Roth,
485 F.3d 930 (7th Cir. 2007) ............................................................................... 12
8
AT&T Techs., Inc. v. Commc’ns Workers of Am.,
9 475 U.S. 643 (1986) ...................................................................................... 6, 7, 8
10 Chiron Corp. v. Ortho Diagnostic Sys., Inc.,
207 F.3d 1126 (9th Cir. 2000) ......................................................................... 5, 15
11
Cooper Cos. v. Transcon. Ins. Co.,
12 31 Cal. App. 4th 1094 (1995) .............................................................................. 13
13 Davies v. Grossmont Union High Sch. Dist.,
930 F.2d 1390 (9th Cir. 1991) ............................................................................. 19
14
De Havilland v. FX Networks, LLC.,
15 21 Cal. App. 5th 845, 849–50 (2018), review denied (Cal. Jul 11,
2018), cert. denied 139 S. Ct. 800 (2019) ........................................................... 21
16
F.C.C. v. Fox Television Stations, Inc.,
17 567 U.S. 239 (2012) ...................................................................................... 17, 19
18 First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938 (1995) .............................................................................................. 9
19
Giles v. Horn,
20 100 Cal. App. 4th 206 (2002) .............................................................................. 11
21 Green Tree Fin. Corp. v. Bazzle,
539 U.S. 444 (2003) .............................................................................................. 9
22
Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
23 896 F.2d 1542 (9th Cir. 1989) ............................................................................... 8
24 Henry Schein, Inc. v. Archer & White Sales, Inc.,
139 S. Ct. 524 (2019) ........................................................................ 1, 6, 7, 10, 16
25
Hidden Harbor v. Am. Fed’n of Musicians,
26 134 Cal. App. 2d 399 (1955) ............................................................................... 11
27 Hurvitz v. Hoefflin,
84 Cal. App. 4th 1232 (2000) .............................................................................. 21
28

ii CASE NO. 2:19-CV-01862-GW-PJW
1
2
Page(s)
3 Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) .............................................................................................. 20
4
Ingle v. Circuit City Stores, Inc.,
5 328 F.3d 1165 (9th Cir. 2003) ............................................................................. 16
6 Just Film, Inc. v. Merchant Servs., Inc.,
No. C 10-1993 CW, 2011 WL 2433044 (N.D. Cal. June 13, 2011) ............. 11, 12
7
Kelly v. Johnson Publ’g Co.,
8 160 Cal. App. 2d 718 (1958) ............................................................................... 19
9 Lamps Plus, Inc. v. Varela,
No. 17-988, 2019 WL 1780275 (U.S. Apr. 24, 2019) ................................ 7, 9, 12
10
Leonard v. Clark,
11 12 F.3d 885 (9th Cir. 1993) ................................................................................. 19
12 Litton Fin. Printing Div. v. NLRB,
501 U.S. 190 (1991) ............................................................................................ 12
13
M&G Polymers USA, LLC v. Tackett,
14 135 S. Ct. 926 (2015) .......................................................................................... 11
15 N.Y. Times v. Sullivan,
376 U.S. 254 (1964) ............................................................................................ 18
16
NAACP v. Claiborne Hardware Co.,
17 458 U.S. 886 (1982) ............................................................................................ 18
18 Nissen v. Stovall-Wilcoxson Co.,
120 Cal. App. 2d 316 (1953) ............................................................................... 13
19
Oracle Am., Inc. v. Myriad Grp. A.G.,
20 724 F.3d 1069 (9th Cir. 2013) ............................................................................... 7
21 Reader’s Digest Ass’n, Inc. v. Superior Court,
37 Cal. 3d 244 (1984) .......................................................................................... 20
22
Reno v. ACLU,
23 521 U.S. 844 (1997) ...................................................................................... 18, 19
24 Rent-A-Center, W., Inc. v. Jackson,
561 U.S. 63 (2010) ................................................................................................ 6
25
Sanford v. MemberWorks, Inc.,
26 483 F.3d 956 (9th Cir. 2007) ............................................................................... 10
27 Sarver v. Chartier,
813 F.3d 891 (9th Cir. 2016) ............................................................................... 21
28

iii CASE NO. 2:19-CV-01862-GW-PJW
1
2
Page(s)
3 Selman v. FCB Worldwide, Inc.,
No. B168315, 2004 WL 2729656 (Cal. Ct. App. Dec. 1, 2004)......................... 12
4
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,
5 559 U.S. 662 (2010) .............................................................................................. 9
6 Street v. New York,
394 U.S. 576 (1969) ............................................................................................ 18
7
Yahoo! Inc. v. Iversen,
8 836 F. Supp. 2d 1007 (N.D. Cal. 2011)................................................................. 7
9 Statutes
10 9 U.S.C. § 2......................................................................................................... 16, 17
11 9 U.S.C. § 4............................................................................................................. 5, 6
12 Cal. Civ. Code § 1473............................................................................................... 10
13 Cal. Civ. Code §§ 1643............................................................................................. 13
14 Cal. Civ. Code § 1648......................................................................................... 14, 16
15 Cal. Civ. Code § 1650............................................................................................... 15
16 Cal. Civ. Code § 1654............................................................................................... 14
17 Cal. Code Civ. Proc. § 1002(a)(3) ............................................................................ 22
18 Cal. Penal Code §§ 11164 et seq. ............................................................................. 22
19 Federal Arbitration Act, 9 U.S.C. § 1, et seq.............................................................. 1
20 Other Authorities
21 Hearing on A.B. 1682 Before the Assembly Comm. on Judiciary, 2015-
2016 Leg., Reg. Sess. (Cal. 2016) ....................................................................... 22
22
23
24
25
26
27
28

iv CASE NO. 2:19-CV-01862-GW-PJW
1 I. INTRODUCTION
2 Optimum Productions and John Branca and John McClain, in their capacities
3 as co-executors of the Estate of Michael Jackson, (collectively, “Petitioners”) ask
4 this Court to order arbitration of a poorly disguised and legally barred posthumous
5 defamation claim against Home Box Office, Inc. (“HBO”) that arises from HBO’s
6 exercise of its First Amendment rights to exhibit an expressive work on an issue of
7 public concern—the documentary Leaving Neverland. Petitioners’ purported basis
8 for their claims is a single non-disparagement sentence buried in a confidentiality
9 rider to a more than 26-year-old expired and entirely unrelated contract.
10 Petitioners’ effort to “publicly” arbitrate these issues appears to be part of a
11 transparent effort to bolster their publicity campaign against the documentary, but
12 that undertaking is as poorly conceived as the claims themselves.
13 Petitioners’ Motion to Compel Arbitration (“Motion”) fails for three separate
14 and independent reasons: (1) there are no remaining rights to enforce under the
15 expired 1992 Agreement, (2) even if any enforceable rights still exist in that
16 Agreement, the claims Petitioners attempt to make here are not arbitrable, and (3)
17 enforcing the Agreement as Petitioners seek to do in this situation would violate
18 HBO’s constitutional rights and numerous public policies. The Federal Arbitration
19 Act, 9 U.S.C. § 1, et seq. (“FAA”), confirms that these are issues to be decided by
20 this Court, not an arbitrator, and this Court should deny Petitioners’ Motion. See
21 Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530 (2019)
22 (“[B]efore referring a dispute to an arbitrator, the court determines whether a valid
23 arbitration agreement exists.”).
24 II. RELEVANT FACTUAL BACKGROUND
25 HBO owns and operates the HBO premium pay television service, which
26 today contains over 3,000 hours of curated content, including among other things
27 original series, films, documentaries, and concert specials. HBO offers some of the
28 most innovative, honored, and critically respected programming on television. In

1 CASE NO. 2:19-CV-01862-GW-PJW
1 1992, that included the one-time exhibition of a concert special presenting Michael
2 Jackson’s performance during the Bucharest stop on his Dangerous world tour.
3 More than 26 years later (and nearly a decade after Mr. Jackson’s death),
4 Leaving Neverland premiered on HBO. Leaving Neverland tells the personal
5 stories of two individuals who allege that as young boys they were sexually abused
6 by Mr. Jackson for years. Leaving Neverland premiered on HBO on March 3,
7 2019, in the midst of a nationwide cultural debate about sexual abuse and
8 harassment, and whether such misconduct had for too long been tolerated or
9 suppressed in favor of protecting the wealthy, famous, and powerful.
10 Petitioners and those who profit from Mr. Jackson’s legacy have vociferously
11 criticized Leaving Neverland, as is their right under the First Amendment (just as it
12 is HBO’s right to exhibit this newsworthy documentary). As part of Petitioners’
13 public relations campaign against Leaving Neverland and its subjects, they have
14 demanded that HBO shelve the documentary because, among other things, the
15 filmmakers allegedly did not seek to tell Mr. Jackson’s side of the story (which of
16 course they had no obligation to do). Petitioners also, through their Motion, are
17 attempting to revive a long-expired July 22, 1992, agreement between Home Box
18 Office, a division of Time Warner Entertainment Company, L.P. (“TWE,” which is
19 not the same entity as Defendant HBO) and TTC Touring Corporation (“TTC,”
20 which is not the same entity as Petitioner Optimum Productions) (the “1992
21 Agreement”) in an effort to bring an otherwise barred posthumous defamation
22 claim against HBO. 1
23 On July 22, 1992, TWE and TTC (alleged predecessors to HBO and
24 Optimum Productions, respectively) entered into a contract relating to the
25 production and exhibition of a program featuring Mr. Jackson’s 1992 live concert
26 performance in Bucharest, Romania. See Dkt. 18, Ex. B. TTC granted TWE a
27 1
Petitioners allege that the parties to this action are the successors to the original
28 contracting parties. For purposes of this motion only, HBO does not contest that
Petitioner Optimum Productions is the successor to TTC.
1 license to exhibit the program “one time only” on October 10, 1992, “and at no
2 other time.” Id. at 2. In consideration for these rights, TWE paid TTC a license
3 fee, the last portion of which was to be delivered within five days after the delivery
4 of the program to TWE (with delivery no later than October 8, 1992). Id. at 1–2.
5 The longest any performable rights or obligations lasted under the 1992 Agreement
6 was through the “Holdback Period”—defined as the 12-month period immediately
7 following the October 10, 1992, exhibition date. Id. at 2, 5–6. Therefore, after the
8 conclusion of the Holdback Period on October 10, 1993, the Agreement was fully
9 performed, and HBO is unaware of any specific acts performed by TWE, HBO,
10 TTC, or Mr. Jackson under the 1992 Agreement at any time since the expiration of
11 the Holdback Period. See Declaration of Stephanie Abrutyn (“Abrutyn Decl.”) ¶ 2.
12 As is customary when “backstage” access to a “top tier” musical artist is
13 provided in connection with producing a concert special, the 1992 Agreement
14 incorporated a confidentiality rider as an addendum to the main contract (the
15 “Confidentiality Provisions”). The non-disparagement sentence that is the linchpin
16 of Petitioners’ underlying claims is part of the Confidentiality Provisions.
17 Leaving Neverland screened at the Sundance Film Festival in January 2019.
18 It then premiered on HBO on March 3 and 4, 2019 (as a two-part documentary).
19 The documentary was developed and is owned by Amos Pictures, Ltd., which is not
20 a party to this lawsuit, and was licensed to HBO for distribution in the United
21 States, Canada, and Bermuda. Abrutyn Decl. ¶ 3. The film presents the stories of
22 two men, Wade Robson and James Safechuck, who allege Mr. Jackson sexually
23 abused them as children, and tells their accounts from the survivors’ point of view,
24 including the lasting impact of the abuse on their lives. The documentary has
25 ignited important conversations and reckonings in the public and media regarding
26 Mr. Jackson and survivors of child abuse.
27 Petitioners have waged a very public campaign against Mr. Robson, Mr.
28 Safechuck, and the film. For example, they released their own film to respond to

1 the allegations in the documentary. 2 Petitioners’ campaign against Leaving

2 Neverland appears to have kicked off in earnest shortly after the film premiered at
3 the Sundance Film Festival, when Petitioners’ lawyer sent a ten-page letter to HBO,
4 on February 7, 2019. The letter contained a litany of complaints about Leaving
5 Neverland, attacking its subjects as liars, protesting that the Estate was not given an
6 opportunity to tell its side of the story, calling HBO’s former CEO “naïve,” and
7 ultimately lamenting that HBO’s role in the documentary “is just plain sad.” Dkt.
8 18, Ex. A, at 2–5. Petitioners raised additional non-legal grievances about Leaving
9 Neverland, including that “[t]he usual checks on filmmakers are ethical and
10 normative ones,” and claiming that HBO “no longer cares” about such norms. Id.
11 at 4. Notably, Petitioners’ February 7 letter—signed and presumably written by
12 their counsel in this case—did not once mention the 1992 Agreement, nor did it
13 mention any actual legal claims the Estate believed it had against HBO. Rather, the
14 letter simply requested that HBO reconsider its decision to exhibit the documentary.
15 See id. at 10 (offering “to meet with HBO” and present “further information and
16 witnesses” to counter Mr. Robson’s and Mr. Safechuck’s accounts).
17 While the February 7 letter does not specifically reference any alleged claims
18 under the 1992 Agreement, the letter indirectly acknowledges the Agreement’s
19 existence and the concert special that was its subject. See id. at 9 (“the once great
20 HBO—who had partnered with Michael to immense success” (emphasis added)).
21 Petitioners also did not mention the prospect of arbitration in their February 7 letter.
22 Thereafter, while still conceding they cannot maintain a defamation claim—
23 even though the crux of their claims is that the film allegedly presents a false and
24 defamatory picture of Mr. Jackson—Petitioners seized on a single sentence
25 contained in the 1992 Agreement that they erroneously assert enables them to avoid
26
2
See Michael Saponara, Michael Jackson’s Family Defends Singer in New
27
Documentary ‘Investigating Neverland’, Billboard, Apr. 5, 2019,
28 https://www.billboard.com/articles/columns/hip-hop/8505847/investigating-
neverland-documentary-michael-jackson.
1 the black-letter bar on posthumous defamation claims. However, Petitioners did

2 not follow the usual path for pursuing arbitration. Rather than contacting HBO to
3 initiate arbitration, instead, on February 21, 2019, just prior to the premiere of
4 Leaving Neverland on HBO, Petitioners filed their public Petition to Compel
5 Arbitration in Superior Court for the County of Los Angeles, citing the 1992
6 Agreement’s non-disparagement sentence and seeking a “public arbitration” of their
7 claims. Dkt. 1-1 ¶ 73. Only on March 5, two days after Leaving Neverland
8 premiered on HBO, did Petitioners write to HBO to ask whether it would agree to
9 arbitrate. See Abrutyn Decl. ¶ 4, Ex. A.
10 Moreover, to this day, Petitioners have not alleged—because they cannot—
11 that any information (confidential or otherwise) obtained by HBO during the course
12 of its performance of the 1992 Agreement was used in Leaving Neverland. See
13 Dkt. 18, Ex. B (Ex. I, at 1) (purporting to bar the use of “Confidential Information”
14 obtained “[p]rior to and/or during HBO’s contract or relationship with [TTC]”
15 (emphasis added)).
16 III. ARGUMENT
17 Under the FAA, the Court must make two findings before it may order this
18 dispute to arbitration: first, it must determine whether a valid agreement to arbitrate
19 exists, and, second, if it does, it must determine whether that agreement
20 encompasses the dispute at issue. See Chiron Corp. v. Ortho Diagnostic Sys., Inc.,
21 207 F.3d 1126, 1130 (9th Cir. 2000) (citing 9 U.S.C. § 4). Only if “the response is
22 affirmative on both counts” does the FAA “require[] the court to enforce the
23 arbitration agreement in accordance with its terms.” Id. Here, the 1992 Agreement
24 was fully performed and terminated, and therefore there is no existing enforceable
25 agreement for Petitioners to arbitrate. And, even assuming it were still valid, the
26 1992 Agreement is both inapplicable to the instant dispute and unenforceable
27 against HBO in these circumstances, as HBO’s exhibition of Leaving Neverland is
28 protected by the First Amendment and California public policy.

1 A. The Court Determines the Gateway Issues of Validity and Arbitrability.

2 After filing their Petition in court and seeking this Court’s permission to
3 arbitrate, Petitioners now claim that the Court must refer questions regarding the
4 validity of the 1992 Agreement and the arbitrability of Petitioners’ claims to an
5 arbitrator. See Mot. at 4–5. Petitioners are wrong. Under the FAA, the Court must
6 make these two gateway determinations. First, the Court must determine whether
7 the arbitration agreement being invoked is valid and enforceable. Henry Schein,
8 Inc., 139 S. Ct. at 530 (“[B]efore referring a dispute to an arbitrator, the court
9 determines whether a valid arbitration agreement exists.”) (emphasis added).
10 Second, the Court must determine whether Petitioners’ underlying claims are
11 arbitrable. AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649
12 (1986) (“Unless the parties clearly and unmistakably provide otherwise, the
13 question of whether the parties agreed to arbitrate [a particular dispute] is to be
14 decided by the court. . . .” (emphasis added)). Petitioners’ attempt to avoid
15 consideration of these two threshold questions so that they may avoid judicial
16 scrutiny of their disguised defamation claim must be rejected. See Rent-A-Center,
17 W., Inc. v. Jackson, 561 U.S. 63, 71 (2010) (“To immunize an arbitration agreement
18 from judicial challenge . . . would be to elevate it over other forms of contract.”
19 (internal quotations omitted)).
20 1. The Court Must Determine the Validity of the 1992 Agreement.
21 The Court is tasked with deciding HBO’s challenge to the validity of the
22 underlying agreement to arbitrate, in the first instance. Only if the Court finds the
23 agreement valid and enforceable in the circumstances presented here may the Court
24 permit an arbitration to proceed. See 9 U.S.C. § 4 (“[U]pon being satisfied that the
25 making of the agreement for arbitration or the failure to comply therewith is not in
26 issue, the court shall make an order directing the parties to proceed to
27 arbitration[.]”) (emphasis added); Rent-A-Center, 561 U.S. at 71 (“If a party
28 challenges the validity under § 2 [of the FAA] of the precise agreement to arbitrate

1 at issue, the federal court must consider the challenge before ordering compliance
2 with that agreement under § 4.”). The Supreme Court confirmed this important role
3 for the court in two opinions rendered this very term. See Henry Schein, Inc., 139
4 S. Ct. at 530; see also Lamps Plus, Inc. v. Varela, No. 17-988, 2019 WL 1780275,
5 at *6 (U.S. Apr. 24, 2019) (“[W]e presume that parties have not authorized
6 arbitrators to resolve certain ‘gateway’ questions, such as ‘whether the parties have
7 a valid arbitration agreement at all[.]’” (citation omitted)).
8 2. The Court Must Then Determine Whether Petitioners’ Claims Are
Arbitrable.
9
10 The Court also must determine if the claims at issue are arbitrable, unless the
11 parties have clearly and unmistakably manifested their intent to have an arbitrator
12 determine his or her own jurisdiction. See AT&T Techs., Inc., 475 U.S. at 649
13 (“Unless the parties clearly and unmistakably provide otherwise, the question of
14 whether the parties agreed to arbitrate is to be decided by the court. . . .” (emphasis
15 added)); Oracle Am., Inc. v. Myriad Grp. A.G., 724 F.3d 1069, 1072 (9th Cir. 2013)
16 (confirming that “there is a presumption that courts will decide which issues are
17 arbitrable”). Because the 1992 Agreement does not “clearly and unmistakably”
18 confirm that HBO and TTC intended to delegate the issue of arbitrability, that
19 determination also rests with this Court. AT&T Techs., Inc., 475 U.S. at 649.
20 Petitioners argue that an arbitrator must decide questions of arbitrability
21 because the 1992 Agreement calls for application of the rules of the American
22 Arbitration Association (“AAA”), which currently state that an “arbitrator shall
23 have the power to rule on his or her own jurisdiction. . . .” Mot. at 5. However, the
24 applicable version of the rules is that which existed at the time of the contract. See,
25 e.g., Yahoo! Inc. v. Iversen, 836 F. Supp. 2d 1007, 1012 (N.D. Cal. 2011) (finding
26 clear and unmistakable agreement to have arbitrator decide arbitrability only when
27 looking at AAA rules “as they existed at the time” the parties “entered into their
28 contract” (emphases added)). Here, the version of the AAA rules in effect in 1992

1 is different from the current rules, and does not contain the provision relied on by
2 Petitioners that an arbitrator can rule on his or her own jurisdiction. In fact, the
3 1992 AAA rules are completely silent on this topic. See Declaration of Nathaniel
4 L. Bach (“Bach Decl.”) ¶ 2, Ex. A. This omission is particularly noteworthy
5 because the Supreme Court announced its rule requiring “clear and unmistakable”
6 evidence of the parties’ intent to delegate arbitrability in 1986 (in AT&T Techs.,
7 Inc., 475 U.S. 643), and the parties were therefore contracting against that backdrop
8 when they executed the agreement in 1992. See Hal Roach Studios, Inc. v. Richard
9 Feiner & Co., Inc., 896 F.2d 1542, 1548 (9th Cir. 1989) (“[P]arties to a contract are
10 ‘presumed to know and to have had in mind’ all laws in effect at the time they enter
11 into that contract[.]” (quoting Alpha Beta Food Markets v. Retail Clerks Union
12 Local 770, 45 Cal. 2d 764, 771 (1955))). Because the 1992 Agreement lacks such
13 clear and unmistakable language, Supreme Court precedent—recent and from the
14 decade around the formation of the 1992 Agreement—dictates that arbitrability
15 issues are to be decided by the Court.
16 Moreover, the language of the 1992 Agreement, which Petitioners ignore,
17 also indicates that the parties contemplated that a court, not an arbitrator, would
18 determine issues relating to the Confidentiality Provisions, including the non-
19 disparagement sentence:
20 In the event that either party to this agreement brings an action to enforce the
21 terms of these confidentiality provisions or to declare rights with respect to
such provisions, the prevailing party in such action shall be entitled to an
22 award of costs of litigation . . . in such amount as may be determined by the
23 court having jurisdiction in such action.
24 Dkt. 18, Ex. B (Ex. I at 3) (emphasis added). In other words, the Confidentiality
25 Provisions expressly contemplate that any disputes will be heard by a court; there is
26 no mention of arbitration at all. This language, by itself, confirms that an arbitrator
27 does not have the authority to enforce the Confidentiality Provisions. When read
28 against the limited arbitration provision of the 1992 Agreement and the version of

1 the AAA Rules in effect in 1992, at a bare minimum this language creates
2 ambiguity as to whether an arbitrator or court would have authority to hear such
3 dispute, and as to who has the authority to determine arbitrability in the first
4 instance. That ambiguity is fatal to Petitioners’ contention that an arbitrator should
5 make that determination.
6 Just last week, on April 24, 2019, the Supreme Court confirmed that it
7 “refus[es] to infer consent when it comes to . . . fundamental arbitration questions.”
8 Lamps Plus, 2019 WL 1780275, at *6. Specifically, the Supreme Court reiterated
9 and endorsed its precedents requiring clear and unmistakable evidence of consent to
10 delegate the issue of arbitrability to an arbitrator instead of a court:
11 [W]e presume that parties have not authorized arbitrators to resolve certain
12 “gateway” questions, such as “whether the parties have a valid arbitration
agreement at all or whether a concededly binding arbitration clause applies to
13 a certain type of controversy.” Although parties are free to authorize arbitra-
14 tors to resolve such questions, we will not conclude that they have done so
based on “silence or ambiguity” in their agreement, because “doing so might
15 too often force unwilling parties to arbitrate a matter they reasonably would
16 have thought a judge, not an arbitrator, would decide.”
17 Id. (quoting Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003); First
18 Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944–45 (1995)). Because the
19 parties to the 1992 Agreement did not clearly and unmistakably manifest their
20 intent for an arbitrator to determine jurisdiction regarding disputes over the
21 Confidentiality Provisions, the Court retains that role. Id. at 7 (“arbitration is a
22 matter of consent, not coercion” (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l
23 Corp., 559 U.S. 662, 681 (2010)) (internal quotation marks omitted)); see also First
24 Options, 514 U.S. at 944–45 (ambiguities as to delegation of arbitrability are
25 resolved in favor of court adjudication). And, indeed, Petitioners here apparently
26 believe so as well, having filed their original Petition to Compel Arbitration in
27
28

1 court. 3
2 B. The 1992 Agreement Is Terminated and No Valid Agreement Exists
Upon Which to Arbitrate Petitioners’ Claims.
3
4 Petitioners conveniently gloss over the first issue to be decided by the
5 Court—the validity of the 1992 Agreement—wrongly claiming that there is no
6 dispute as to the existence of a contract. See Mot. at 5.4 However, it is not the past
7 existence of a contract that is at issue under the FAA, but rather the current
8 existence of a valid contract and applicable arbitration provision that may be
9 enforced as between the parties to the litigation. See Henry Schein, Inc., 139 S. Ct.
10 at 530. Here, the Court cannot skip past this important step because the fact that the
11 1992 Agreement has been fully performed and is expired is fatal to Petitioners’
12 Motion.
13 1. The 1992 Agreement Was Fully Performed and Has Therefore
Terminated.
14
15 Under California law, a contract that has been fully performed by both
16 3
As this Court undoubtedly is aware from its experience, typically defendants, not
17 plaintiffs, seek to divest the court of jurisdiction by invoking a contractual
arbitration provision and arguing the arbitrator should determine arbitrability. In
18
that scenario, the party seeking arbitration did not control where the action was
19 originally filed. Here, however, Petitioners made the tactical choice to file this
action in court to compel an arbitration, which supports and confirms that the Court
20
holds the gatekeeping role of deciding arbitrability.
21
4
Petitioners cite Sanford v. MemberWorks, Inc., 483 F.3d 956 (9th Cir. 2007), for
22
the proposition that “[i]ssues regarding the validity or enforcement of a putative
23 contract mandating arbitration should be referred to an arbitrator, but challenges to
the existence of a contract as a whole must be determined by the court prior to
24
ordering arbitration.” Id. at 962. Sanford specifically cautioned that “the Supreme
25 Court has not yet spoken on this issue”—however, the Supreme Court just recently
26 confirmed, in January 2019, that “before referring a dispute to an arbitrator, the
court determines whether a valid arbitration agreement exists.” Id. at 962 n.8;
27 Henry Schein, Inc., 139 S. Ct. at 530 (emphases added). Therefore, this Court (not
28 an arbitrator) is to consider not merely the existence of an agreement, but also its
continuing validity.
1 parties, as the 1992 Agreement has been here, is terminated and expired. Cal. Civ.
2 Code § 1473 (“Full performance of an obligation, by the party whose duty it is to
3 perform it . . . extinguishes it.”); Giles v. Horn, 100 Cal. App. 4th 206, 228 (2002)
4 (holding plaintiffs’ claims that county violated charter provisions by entering into
5 contracts with independent contractors was moot because “the contracts [had] been
6 fully performed and [had] expired”); Hidden Harbor v. Am. Fed’n of Musicians,
7 134 Cal. App. 2d 399, 402 (1955) (employment contract deemed expired when
8 “fully performed by both parties” and thus had “no vitality after its termination”
9 (emphasis added)). The Supreme Court also has described this expiration-after-
10 performance rule as a generally applicable principle of contract law. See M&G
11 Polymers USA, LLC v. Tackett, 135 S. Ct. 926, 937 (2015) (describing general rule
12 that “contractual obligations will cease, in the ordinary course, upon termination of
13 the . . . agreement” as a traditional contract principle (internal quotations and
14 citation omitted)).
15 The parties to the 1992 Agreement, who are not the same parties to this
16 action, fully performed their obligations a quarter-century ago, after the conclusion
17 of the Holdback Period ended, on or about October 10, 1993 (one year after
18 exhibition of the concert special). HBO exhibited the concert special one time, and
19 in consideration thereof, paid TTC a license fee. See Dkt. 18, Ex. B at 2; Abrutyn
20 Decl. ¶ 5. HBO has not exhibited the special since October 10, 1992, and it is not
21 currently available on any HBO platform, nor has it been available since the
22 original, one-time exhibition more than 25 years ago. See Abrutyn Decl. ¶ 5. The
23 obligations under the 1992 Agreement have thus long been fulfilled, and the
24 Agreement has terminated along with the arbitration provision therein.
25 Courts, not surprisingly, have specifically held that arbitration provisions
26 expire along with their contracts. See, e.g., Just Film, Inc. v. Merchant Servs., Inc.,
27 No. C 10-1993 CW, 2011 WL 2433044, at *4 (N.D. Cal. June 13, 2011) (“The dead
28 hand of a long-expired arbitration clause cannot govern forever.” (emphasis added)

1 (internal quotations and citation omitted)). “Although there is a general

2 presumption in favor of arbitrability, it does not apply ‘wholesale in the context of
3 an expired . . . agreement for to do so would make limitless the contractual
4 obligation to arbitrate.’” Id. at *5 (emphasis added) (quoting Litton Fin. Printing
5 Div. v. NLRB, 501 U.S. 190, 209 (1991)). If any other rule were to apply, one party
6 to an ancient, long-terminated contract could commence an arbitration on any topic
7 whatsoever, at any time, forcing another party into an arbitration that it could not
8 have reasonably anticipated. That is precisely what Petitioners ask the Court to do
9 here, which would be a radical and unprecedented expansion of the FAA’s
10 arbitrability standards. See Lamps Plus, 2019 WL 1780275, at *6 (rejecting efforts
11 to expand FAA to compel arbitration in ways in which parties did not expressly
12 agree). This Court should reject Petitioners’ request that it take such an extreme
13 step.
14 2. The Arbitration Provision and Non-Disparagement Sentence Did
Not Survive Termination of the 1992 Agreement.
15
16 For a party to assert contractual rights after termination, a contract must
17 specifically provide that such rights survive termination of the agreement. See, e.g.,
18 Selman v. FCB Worldwide, Inc., No. B168315, 2004 WL 2729656, at *1–2 (Cal.
19 Ct. App. Dec. 1, 2004) (holding arbitration provision could survive contract’s
20 termination where provision specifically stated it would “survive termination of
21 th[e] agreement”). This principle is particularly important as applied to non-
22 disparagement and confidentiality clauses, which require specific, agreed-upon
23 survival language to be enforceable after the contract has terminated. See Allan
24 Block Corp. v. Cty. Materials Corp., 634 F. Supp. 2d 979, 1000 (D. Minn. 2008)
25 (dismissing plaintiff’s claim that defendant breached non-disparagement provisions
26 “months after the termination” of underlying agreements because although “a
27 contractual provision may survive the underlying contract’s expiration,” there was
28 “no language” in underlying agreements “indicat[ing] that the non-disparagement

1 provisions survive termination of the agreements”); see also Am. Family Mut. Ins.
2 Co. v. Roth, 485 F.3d 930, 933 (7th Cir. 2007) (contract forbidding disclosure of
3 confidential information that is not trade secret is “enforceable . . . only if the
4 contractual prohibition is reasonable in time and scope and, specifically, only if its
5 duration is limited” (emphasis added)).
6 The 1992 Agreement says nothing about the survival of either the arbitration
7 provision or the non-disparagement sentence. The parties could have so provided,
8 of course, if that was their intention. But there is simply no language in the 1992
9 Agreement stating that HBO agreed to be bound for all time from doing anything
10 that Mr. Jackson’s posthumous representatives might consider, in their subjective
11 opinion, to be disparaging. Nowhere in the 1992 Agreement can such a perpetual
12 prior restraint on HBO’s speech be found. Nor is there any language suggesting
13 HBO agreed to submit in perpetuity to arbitration over unforeseen and unrelated
14 claims that might be brought decades later. Courts as a matter of policy do not
15 interpret contracts as conferring perpetual rights unless clearly specified in the
16 agreement. Cooper Cos. v. Transcon. Ins. Co., 31 Cal. App. 4th 1094, 1103 (1995)
17 (“[C]onstruing a contract to confer a right in perpetuity is clearly disfavored.”);
18 Nissen v. Stovall-Wilcoxson Co., 120 Cal. App. 2d 316, 319 (1953) (“A
19 [contractual] construction conferring a right in perpetuity will be avoided unless
20 compelled by the unequivocal language of the contract. (17 C.J.S. “Contracts” §
21 398.). A contract will be construed to impose an obligation in perpetuity only when
22 the language of the agreement compels that construction.” (emphases added)
23 (internal quotations and second citation omitted)). HBO has not located a single
24 California case where a non-disparagement clause was enforced posthumously, let
25 alone in perpetuity. If the parties intended to enter into such an unusual agreement,
26 it had to be explicit. Petitioners’ Motion fails on this basis as well.5
27 5
Petitioners’ interpretation also belies common sense. It would mean that in
28 exchange for the right to exhibit one concert, one time, in addition to paying a
license fee, HBO agreed to restrict in perpetuity everyone involved in any future
1 Other reasons confirm why the arbitration provision and the non-
2 disparagement sentence did not survive termination of the 1992 Agreement. For
3 example, HBO could not have reasonably anticipated that successors to Mr.
4 Jackson’s and TTC’s interests would seek to enforce the 1992 Agreement against
5 HBO for distributing a documentary, and certainly not where the film does not
6 contain any confidential, non-public information that HBO learned in the
7 performance of the 1992 Agreement. Cal. Civ. Code § 1648 (“However broad may
8 be the terms of a contract, it extends only to those things concerning which it
9 appears that the parties intended to contract.”). Moreover, the confidentiality rider
10 that Petitioners seek to enforce was drafted by TTC (or Mr. Jackson’s
11 representatives), not HBO, and therefore any ambiguity regarding the survivability
12 of the non-disparagement sentence should be read against Petitioners. See Abrutyn
13 Decl. ¶ 6; Cal. Civ. Code § 1654 (“In cases of uncertainty . . . the language of a
14 contract should be interpreted most strongly against the party who caused the
15 uncertainty to exist.”).
16 In addition, Petitioners’ (or their alleged predecessors’) conduct is
17 inconsistent with their apparent newfound belief that the 1992 Agreement is still
18 viable. Specifically, HBO does not have in its records any notices from TTC or Mr.
19 Jackson’s representatives informing HBO that Optimum Productions was stepping
20 into TTC’s shoes regarding any alleged ongoing rights and obligations of the 1992
21 Agreement, nor any notices providing updated contact information for those parties
22 pursuant to the Notice provision of the Agreement. See Abrutyn Decl. ¶ 7. In the
23 1992 Agreement, that Notice section provides that notice to TTC should be sent to
24
programming to be exhibited by HBO—be it a stand-up comic, late-night talk show
25 host, or documentary filmmaker—from commenting on a controversial public
26 figure. See Cal. Civ. Code §§ 1643 (“contract must receive such an interpretation
as will make it lawful, operative, definite, reasonable, and capable of being carried
27 into effect” (emphases added)); 1638 (“The language of a contract is to govern its
28 interpretation, if the language is clear and explicit, and does not involve an
absurdity.” (emphasis added)).
1 Greenberg, Glusker, Fields, Claman & Machtinger with copies to MJJ Productions,
2 Inc. (“MJJ”), via the business management firm Breslauer, Jacobson, Rutman &
3 Sherman. See Dkt. 18, Ex. B at 8. But neither TTC nor MJJ is a party to this
4 action, and neither Greenberg Glusker nor Breslauer Jacobson apparently represents
5 any of the Petitioners. Indeed, Breslauer Jacobson no longer exists, having ceased
6 using that same name in 1993, and fully dissolving in 2007. See Bach Decl. ¶¶ 3–5,
7 Exs. B, C, D. 6 This omission is further confirmation that, prior to Leaving
8 Neverland, no one, including the alleged successors to TTC and Mr. Jackson,
9 thought the 1992 Agreement had any continuing validity.
10 C. Even If the 1992 Agreement Remained In Force, It Does Not Pertain to
Leaving Neverland.
11
12 Should this Court find the 1992 Agreement (and its arbitration provision and
13 non-disparagement sentence) remains in effect, the arbitration provision of that
14 Agreement still would not encompass this dispute. See Chiron Corp., 207 F.3d at
15 1130 (“court’s role” involves determining “whether the agreement encompasses the
16 dispute at issue”). The Confidentiality Provisions that contain the non-
17 disparagement sentence specifically state that the confidentiality guidelines apply to
18 information “acquired by HBO in the course of HBO’s contact with Licensor and
19 Performer,” but specifically do not address any later-acquired information. Dkt.
20 18, Ex. B (Ex. I, at 1). Petitioners have not alleged that HBO obtained any
21 information from TTC or Mr. Jackson during performance of the 1992 Agreement
22 that was included in Leaving Neverland. To the contrary, the documentary was
23 developed by a third party, Amos Pictures, Ltd., based on the stories of two men
24 who independently and willingly provided information to the third-party
25 filmmakers. See Abrutyn Decl. ¶ 3. Amos Pictures licensed the documentary to
26
6
See also James Bates, Defections, Merger Shake Up Closed World: Hollywood:
27
Breakup of Breslauer, Jacobson, Rutman & Chapman Changes the Status Quo of
28 Managers’ World, Los Angeles Times, Apr. 1, 1994,
https://www.latimes.com/archives/la-xpm-1994-04-01-fi-41138-story.html.
1 HBO for distribution in the United States, Canada, and Bermuda. See id.
2 Petitioners do not, and cannot, allege that any information HBO obtained
3 during the course of performing the 1992 Agreement, let alone any confidential
4 information or trade secrets, was provided to the filmmakers. Thus, by the express
5 language of the contract itself, Leaving Neverland is categorically outside the scope
6 of the Confidentiality Provisions. See Cal. Civ. Code § 1650 (“Particular clauses of
7 a contract are subordinate to its general intent.”); id. § 1648 (“However broad may
8 be the terms of a contract, it extends only to those things concerning which it
9 appears that the parties intended to contract.”). Any complaints Petitioners have
10 about the film, therefore, are outside the scope of the 1992 Agreement and its
11 arbitration provision. Indeed, if such a broad and problematic provision—to the
12 extent it could ever be enforced consistent with due process, see infra Section
13 III(D)—were to be read as a perpetual obligation subject to arbitration, the parties
14 would have to have made it unambiguously clear that the provision was both so
15 broad in scope and survived performance of the Agreement. Because they did not,
16 Petitioners’ Motion fails for this additional reason.
17 There is simply no basis for Petitioners’ attempt to enforce the 1992
18 Agreement more than 26 years later over entirely unrelated events. No agreement
19 constituting a perpetual prior restraint against HBO was ever formed, and there is
20 no valid agreement or arbitration provision for Petitioners to enforce in connection
21 with their complaints about the contents of the documentary. The invalidity of the
22 arbitration provision compels denial of Petitioners’ Motion. See Henry Schein,
23 Inc., 139 S. Ct. at 530.
24 D. The 1992 Agreement’s Non-Disparagement Sentence is Unenforceable.
25 Petitioners’ Motion must be denied for the separate and additional reason that
26 their claims would violate HBO’s constitutional rights and numerous California
27 public policies. Therefore, even if the 1992 Agreement had not terminated and
28 expired on its own, which it has, Petitioners’ Motion still is without merit.

1 Arbitration agreements are subject to all defenses to enforcement that apply to

2 contracts generally, and because the 1992 Agreement is unenforceable as applied to
3 Petitioners’ claims, there is nothing to arbitrate. See 9 U.S.C. § 2 (arbitration
4 provisions shall be enforceable “save upon such grounds as exist at law or in equity
5 for the revocation of any contract”); Ingle v. Circuit City Stores, Inc., 328 F.3d
6 1165, 1170 (9th Cir. 2003) (because “arbitration is a matter of contract” arbitration
7 agreements “are subject to all defenses to enforcement that apply to contracts
8 generally” (internal citations omitted) (citing 9 U.S.C. § 2)).
9 1. Petitioners’ Interpretation of the Non-Disparagement Sentence
Violates HBO’s First Amendment and Due Process Rights.
10
11 The TTC-drafted Confidentiality Provisions contained in Exhibit I to the
12 1992 Agreement are unquestionably broad. While the provisions are first tailored
13 to addressing and protecting “Confidential Information” obtained “[p]rior to and/or
14 during HBO’s contact or relationship with” TTC, Exhibit I goes on to purport to
15 restrict HBO from “do[ing] any act that may harm or disparage or cause to lower in
16 esteem the reputation or public image of Performer or any person, firm or
17 corporation related to or doing business with Performer.” Dkt. 18, Ex. B (Ex. I at
18 2) (emphasis added).
19 Petitioners cite this “non-disparagement provision” as evidence of the
20 validity of their claims. Mot. at 2. In reality, the over-breadth of the language as
21 interpreted by Petitioners—purporting to apply to “any act” that might harm
22 Performer, in his or his heirs’ subjective opinion, forever—simply confirms its
23 invalidity. Petitioners’ attempt to persuade this Court to enforce it against HBO
24 more than 26 years later in connection with unrelated, expressive conduct further
25 reinforces that the sentence is void for vagueness and for failure to provide HBO
26 fair notice of the allegedly perpetual rights that TTC, Mr. Jackson, or their
27 successors might assert against it at any time in the future. See F.C.C. v. Fox
28 Television Stations, Inc., 567 U.S. 239, 253 (2012) (finding broadcaster’s due

1 process rights were violated and noting that the “void for vagueness doctrine
2 addresses at least two connected but discrete due process concerns: first, that
3 regulated parties should know what is required of them so they may act
4 accordingly; second, precision and guidance are necessary so that those enforcing
5 the law do not act in an arbitrary or discriminatory way”); id. at 253–54 (“When
6 speech is involved, rigorous adherence to those requirements is necessary to ensure
7 that ambiguity does not chill protected speech.”); see also Reno v. ACLU, 521 U.S.
8 844, 871–72 (1997) (“The vagueness of [a content-based regulation of speech]
9 raises special First Amendment concerns because of its obvious chilling effect on
10 free speech.”). Reading perpetual life into the non-disparagement sentence to
11 enforce it decades after the 1992 Agreement was fully performed to inhibit
12 unrelated speech by alleged successors in interest is precisely the type of overbroad
13 and arbitrary suppression of speech that violates HBO’s due process and First
14 Amendment rights. The violation of HBO’s rights is particularly acute here, where
15 Petitioners are trying to bring a legally and constitutionally barred defamation claim
16 disguised as a contract claim.
17 Separately, by asking this Court to enforce the vague and overbroad
18 Confidentiality Provisions of the 1992 Agreement, Petitioners seek to punish the
19 creation and exhibition of an expressive work, which would unlawfully restrict
20 HBO’s due process and First Amendment rights. See N.Y. Times v. Sullivan, 376
21 U.S. 254, 265 (1964) (finding party’s state law claims “impose[d] invalid
22 restrictions on . . . constitutional freedoms of speech and press”); see also NAACP
23 v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (“Speech does not lose its
24 protected character . . . simply because it may embarrass others. . . .”); Street v. New
25 York, 394 U.S. 576, 592 (1969) (“It is firmly settled that under our Constitution the
26 public expression of ideas may not be prohibited merely because the ideas are
27 themselves offensive to some of their hearers.”). Therefore, the non-disparagement
28 sentence of the Confidentiality Provisions that Petitioners rely on here is at the very

1 least invalid as applied to Leaving Neverland and, as a result, there is nothing to

2 arbitrate.
3 2. The Non-Disparagement Sentence Is Unenforceable Because It
Violates Numerous Public Policies.
4
5 The 1992 Agreement’s non-disparagement sentence also is unenforceable on
6 public policy grounds. While a party can waive its First Amendment rights if there
7 is clear and convincing evidence that the waiver was knowing, voluntary, and
8 intelligent, a waiver will not be enforced “if the interest in its enforcement is
9 outweighed in the circumstances by a public policy harmed by enforcement” of the
10 waiver. Leonard v. Clark, 12 F.3d 885, 889–90 (9th Cir. 1993) (quoting Davies v.
11 Grossmont Union High Sch. Dist., 930 F.2d 1390, 1396 (9th Cir. 1991)). Here,
12 even assuming the non-disparagement sentence could have waived in perpetuity
13 HBO’s First Amendment rights to ever “do any act” that Mr. Jackson or his
14 representatives might subjectively find disparaging, the interest in enforcing it to
15 support Petitioners’ claims is significantly outweighed by numerous public policies
16 harmed by its enforcement.
17 First, application of the vague and overbroad non-disparagement and
18 Confidentiality Provisions implicates and violates HBO’s due process and First
19 Amendment rights. See supra Section III(D)(1). As the Supreme Court has held,
20 “[t]he vagueness of [a content-based regulation of speech] raises special First
21 Amendment concerns because of its obvious chilling effect.” Reno, 521 U.S. at
22 871–72; Fox Television Stations, Inc., 567 U.S. at 253–54 (“When speech is
23 involved, rigorous adherence to [due process notice] requirements is necessary to
24 ensure that ambiguity does not chill protected speech.”).
25 Second, enforcement of the non-disparagement sentence would run afoul of
26 the constitutional and statutory limitations against defamation claims brought on
27 behalf of deceased individuals. See, e.g., Kelly v. Johnson Publ’g Co., 160 Cal.
28 App. 2d 718, 723 (1958) (“Defamation of a deceased person does not give rise to a

1 civil right of action . . . in favor of the surviving spouse, family, or relatives, who
2 are not themselves defamed.”). Despite conceding that they cannot maintain a
3 defamation claim on Mr. Jackson’s behalf, Dkt. 1-1 ¶¶ 66–67, Petitioners seek to do
4 precisely that:
5 Other than ethics and journalistic norms, the main check on making a
6 “powerful documentary” with false accusations . . . is the law of
defamation. And that is the heart of the issue.
7
8 Id. ¶ 66. Although they disguise their claims as sounding in contract, the
9 allegations in the Petition confirm the true nature of the claims as repackaged tort
10 claims for defamation. Petitioners, for instance, seek punitive damages, which are
11 not available for contract claims, but are available for intentional torts (including
12 defamation claims). Id. at 23 (“Petitioners further pray that the arbitrator award
13 punitive damages[.]”).
14 Petitioners also try to characterize HBO’s conduct as an intentional tort. See
15 id. ¶ 85 (alleging HBO is “intending to cause” damage to Mr. Jackson’s legacy
16 (emphasis added)); see also id. at 23 (alleging HBO “is intending to cause” harm to
17 Mr. Jackson’s legacy (emphasis added)). But the U.S. and California Supreme
18 courts have repeatedly refused to allow plaintiffs to perform an end-run around the
19 limitations on defamation claims by assigning a different label to their claim. See,
20 e.g., Reader’s Digest Ass’n, Inc. v. Superior Court, 37 Cal. 3d 244, 265 (1984)
21 (noting that New York Times v. Sullivan “defined a zone of constitutional protection
22 within which one could publish concerning a public figure without fear of liability”
23 that does “not depend on the label given the stated action”); see also Hustler
24 Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988) (holding that public figures “may
25 not recover for [intentional torts] . . . without showing in addition that the
26 publication contains a false statement of fact which was made with ‘actual
27 malice’”).
28 Applying the non-disparagement sentence to HBO’s exhibition of a

1 documentary film regarding a deceased individual would be unprecedented for

2 another reason: it would legitimize the creation of a special category of wealthy,
3 powerful, or famous individuals who could—through a lifetime of contracts with
4 news or media companies—preserve for themselves via contract posthumous
5 control over how they are portrayed and described in a way that ordinary citizens
6 cannot. This would run counter not only to California’s policy barring claims for
7 defamation of deceased individuals, but also California’s policy disfavoring
8 restrictions on public criticism or commentary in the form of prior restraints on
9 speech, particularly where they suppress newsworthy information and unlawful
10 acts. Hurvitz v. Hoefflin, 84 Cal. App. 4th 1232, 1241 (2000) (prior restraints “are
11 disfavored and presumptively invalid”).
12 Third, the vague and overbroad interpretation of the non-disparagement
13 sentence that Petitioners urge this Court to adopt would, if accepted, violate HBO’s
14 First Amendment right to distribute expressive content on an issue of public
15 concern. These core rights of the creative community have been recognized and
16 reaffirmed by the California Court of Appeal and the Ninth Circuit in the recent
17 cases De Havilland v. FX Networks, LLC and Sarver v. Chartier, respectively. The
18 Ninth Circuit reiterated that film “is speech that is fully protected by the First
19 Amendment, which safeguards the storytellers and artists who take the raw
20 materials of life—including the stories of real individuals, ordinary or
21 extraordinary—and transform them into art, be it articles, books, movies, or plays.”
22 Sarver v. Chartier, 813 F.3d 891, 905 (9th Cir. 2016). The California Court of
23 Appeal, expanding on Sarver, confirmed the critical First Amendment rights at
24 issue:
25 Authors write books. Filmmakers make films. Playwrights craft plays.
And television writers, directors, and producers create television
26 shows and put them on the air—or, in these modern times, online. The
First Amendment protects these expressive works and the free speech
27 rights of their creators.
28 De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 849–50 (2018)

1 (emphasis added), review denied (Cal. Jul 11, 2018), cert. denied 139 S. Ct. 800
2 (2019). The court in De Havilland went on to observe:
3 Whether a person portrayed in one of these expressive works is a
world-renowned film star—‘a living legend’—or a person no one
4 knows, she or he does not own history. Nor does she or he have the
legal right to control, dictate, approve, disapprove, or veto the creator’s
5 portrayal of actual people.
6 Id. at 850 (emphasis added). These bedrock First Amendment principles form the
7 important public policy interests that override enforcement of the non-
8 disparagement sentence against HBO in this case.
9 Fourth, enforcing the non-disparagement sentence to prevent publication of
10 allegations of child sex abuse would run afoul of the public policy embodied in
11 numerous California statutes to protect children from sexual abuse. California, for
12 example, prohibits confidentiality provisions in settlements of civil litigation that
13 “prevent[] the disclosure of factual information” for any acts of “childhood sexual
14 abuse” or “sexual exploitation of a minor.” Cal. Code Civ. Proc. § 1002(a)(3); see
15 also Cal. Penal Code §§ 11164 et seq. (imposing a mandatory reporting obligation
16 on certain individuals in cases of known or suspected child abuse or neglect).
17 The legislative history of these statutes makes clear the California
18 legislature’s significant concern with preventing acts of childhood sex abuse. See
19 Bach Decl. ¶ 6, Ex. E (Confidential Settlement Agreements: Sexual Offenses:
20 Hearing on A.B. 1682 Before the Assembly Comm. on Judiciary, 2015-2016 Leg.,
21 Reg. Sess. (Cal. 2016) (the public “has such a strong interest in the prosecution of
22 individuals who commit acts of childhood sexual abuse and exploitation that the
23 ordinarily useful tool of confidentiality provisions in settlement agreements should
24 not be allowed in civil actions based upon those acts” (emphasis added))). Because
25 enforcement of the non-disparagement sentence would violate this important public
26 policy (and those set forth above), the provision is unenforceable and there is
27 nothing for Petitioners to arbitrate.
28

1 IV. CONCLUSION
2 For the reasons set forth herein, this Court should deny Petitioners’ Motion,
3 find the 1992 Agreement does not contain a valid agreement to arbitrate the instant
4 dispute, and confirm that any claim that Petitioners might seek to bring in any
5 forum against HBO over Leaving Neverland based on the 1992 Agreement would
6 not be actionable.
7 Dated: May 2, 2019 O’MELVENY & MYERS LLP
8 GIBSON, DUNN & CRUTCHER LLP
9 By: /s/ Daniel M. Petrocelli

10 Daniel M. Petrocelli
11 By: /s/ Theodore J. Boutrous Jr.

12 Theodore J. Boutrous Jr.
13 Attorneys for Home Box Office, Inc.
14
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Case 2:19-cv-01862-GW-PJW Document 22 Filed 05/02/19 Page 1 of 28 Page ID #:405

1 DANIEL M. PETROCELLI (S.B. #97802)

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

1 the allegations in the documentary. 2 Petitioners’ campaign against Leaving

1 the black-letter bar on posthumous defamation claims. However, Petitioners did

OPP. TO MOT. TO COMPEL ARBITRATION

1 A. The Court Determines the Gateway Issues of Validity and Arbitrability.

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

1 (internal quotations and citation omitted)). “Although there is a general

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

1 Arbitration agreements are subject to all defenses to enforcement that apply to

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

1 least invalid as applied to Leaving Neverland and, as a result, there is nothing to

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

1 documentary film regarding a deceased individual would be unprecedented for

OPP. TO MOT. TO COMPEL ARBITRATION

OPP. TO MOT. TO COMPEL ARBITRATION

9 By: /s/ Daniel M. Petrocelli

11 By: /s/ Theodore J. Boutrous Jr.

OPP. TO MOT. TO COMPEL ARBITRATION

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