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No. 19-56222
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
OPTIMUM PRODUCTIONS, a California corporation, et al.,
Plaintiffs and Appellees,

v.
HOME BOX OFFICE, a Division of Time Warner Entertainment L.P. a Delaware

Limited Partnership, et al.,
Defendant,
and
HOME BOX OFFICE, INC., a Delaware corporation,
Defendant and Appellant.
On Appeal from the United States District Court

for the Central District of California (Hon. George H. Wu)
No. 2:19-cv-01862
EXCERPTS OF RECORD: VOLUME I OF II
THEODORE J. BOUTROUS JR. DANIEL M. PETROCELLI

NATHANIEL L. BACH PATRICK S. MCNALLY
ALISHA MAHALINGAM O’MELVENY & MYERS LLP
GIBSON, DUNN & CRUTCHER LLP 1999 Avenue of the Stars
333 South Grand Avenue Los Angeles, CA 90067-6035
Los Angeles, CA 90071-3197 Telephone: 310.553.6700
Telephone: 213.229.7000
Attorneys for Defendant and Appellant Home Box Office, Inc.

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TABLE OF CONTENTS
DATE DOCKET NO. DESCRIPTION ER PAGE
Volume I of II
09/20/19 55, 54 Order Granting Motion to Compel Arbitration ER1
07/15/19 40 Civil Minutes re Motion to Compel Arbitration ER19
Volume II of II
11/07/19 Reporter’s Transcript of Proceedings – Motion ER29

for Stay of Order Compelling Arbitration
Pending Appeal
11/07/19 75 Order Granting Motion to Stay Order ER56
Compelling Arbitration Pending Appeal
10/21/19 64 Defendant Home Box Office, Inc.’s Notice Of ER61
Appeal and Representation Statement
06/04/19 30 Defendant Home Box Office, Inc.’s ER78
Supplemental Memorandum Of Points And
Authorities In Opposition To Plaintiffs’ Motion
To Compel Arbitration
05/23/19 28 Order Denying Plaintiffs’ Motion to Remand ER87
and Motion to Compel Arbitration
05/23/19 27 Court’s Tentative Ruling re Plaintiffs’ Motion ER88

to Remand and Motion to Compel Arbitration
05/02/19 22 Home Box Office, Inc.’s Memorandum Of ER102

Points And Authorities In Opposition To
Plaintiffs’ Motion To Compel Arbitration
05/02/19 22-1 Declaration of Stephanie S. Abrutyn in Support ER130

of Home Box Office, Inc.’s Memorandum Of
ii
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05/02/19 22-2 Declaration of Nathaniel L. Bach in Support of ER136

Home Box Office, Inc.’s Memorandum Of
03/13/19 1-1 Petition to Compel Public Arbitration ER167
N/A District Court Docket Sheet, Optimum ER221

Productions et al v. Home Box Office, et al.
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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

Case No. CV 19-1862-GW(PJWx) Date September 20, 2019
Title Optimum Productions et al v. Home Box Office, et al.
Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez None Present
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
None Present None Present
PROCEEDINGS: IN CHAMBERS - CONSOLIDATED FINAL RULINGS ON:
PLAINTIFFS' MOTION TO COMPEL ARBITRATION [18]
HOME BOX OFFICE, INC.'S MOTION TO STRIKE PLAINTIFFS'

PETITION (CAL. CODE CIV. PROC. § 425.16) [46]
Attached hereto is the Court’s Final Ruling. The Court sets a status conference for October 3, 2019 at
8:30 a.m. Counsel may appear telephonically provided advanced notice is given to the clerk.
:
Initials of Preparer JG
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 1
ER001
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Optimum Productions et al v. Home Box Office et al.; Case No. 2:19-cv-01862-GW-(PJWx)

Consolidated Final Rulings
The Court has issued three tentative rulings in this matter. First, on May 23, 2019, the
Court issued a tentative ruling on Plaintiffs’ Motion to Remand and Motion to Compel
Arbitration. See Docket No. 27. Later that same day, the Court made its tentative ruling final in
a separate minute order, but therein qualified the Court’s ruling. See Docket No. 28. The Court
denied the Motion to Remand and denied the Motion to Compel Arbitration “insofar as it
contend[ed] that the gateway issue of arbitrability is to be decided by the arbitrator rather than
the Court pursuant to clear and unmistakable evidence.” Id.
Thereafter, on July 15, 2019, the Court issued a second tentative ruling on the Motion to
Compel Arbitration. See Docket No. 40. The Court indicated that it was inclined to find the
claims arbitrable, but had outstanding questions on the First Amendment issue. Id. The Court
thereby postponed its decision on the Motion to Compel Arbitration pending Defendants’ filing
an anti-SLAPP Motion. Id.
On September 19, 2019, the Court heard argument on the anti-SLAPP Motion and
tentatively ruled that it would deny the motion.
The Court now consolidates its previous rulings and finalizes its decision on the
remaining issues. The Court would rule as follows:
 The Court would DENY Plaintiffs’ Motion to Remand for the reasons expressed
on May 23, 2019. See Docket No. 27.
 The Court would DENY Plaintiffs’ Motion to Compel Arbitration to the extent it
argued that the arbitrability question was for the arbitrator in the first instance.
See Docket Nos. 27-28.
 The Court would GRANT Plaintiffs’ Motion to Compel Arbitration for the
reasons explained on July 15, 2019. See Docket No. 40.
 The Court would DENY Defendants’ anti-SLAPP Motion for the reasons
described on September 19, 2019.
If either side wishes to seek an interlocutory appeal, any motion should be filed within
thirty days of this ruling. The Court sets a status conference for October 3, 2019, wherein the
parties may appear telephonically with advanced arrangement with the clerk. The parties are to
submit a joint status conference report regarding any future dates to be scheduled in this matter.
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Javier Gonzalez Terri A. Hourigan
Bryan J. Freedman Daniel M. Petrocelli
Jonathan P. Steinsapir Drew E. Breuder
Howard Weitzman Patrick McNally
Zachary T. Elsea
PROCEEDINGS: HOME BOX OFFICE, INC.'S MOTION TO STRIKE PLAINTIFFS'
The Court’s Tentative Ruling is circulated and attached hereto. Court hears oral argument. For reasons
stated on the record, Defendant’s Motion is TAKEN UNDER SUBMISSION. Court to issue ruling.
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Optimum Productions et al v. Home Box Office et al; Case No. 2:19-cv-01862-GW-(PJWx)

Tentative Ruling on Motion to Strike Plaintiffs’ Petition
I. Background
Plaintiffs Optimum Productions and the Estate filed a petition to compel arbitration against
HBO1 in Los Angeles County Superior Court. See generally Petition, Docket No. 1-1. The
Petition seeks to arbitrate claims for breach of contract (disparagement clause) and breach of the
covenant of good faith and fair dealing. See generally id. HBO removed the action claiming
diversity jurisdiction. See Notice of Removal, Docket No. 1, ¶ 4. Plaintiffs then moved this Court
to remand the action to the Superior Court or, alternatively, to compel arbitration. See Motion to
Remand, Docket No. 17; Arbitration Motion, Docket No. 18.
On May 23, 2019, the Court denied Plaintiffs’ Motion to Remand and denied in part
Plaintiffs’ Arbitration Motion. See Minutes in Chambers – Ruling on Plaintiffs’ Motion to
Remand, Docket No. 28; Minutes of Plaintiffs’ Motion to Remand (“Partial Ruling”), Docket No.
27. Specifically, the Court denied Plaintiffs’ Arbitration Motion to the extent it argued that the
Agreement delegated the arbitrability question to the arbitrator. See Partial Ruling at 12; Minutes
in Chambers – Ruling on Plaintiffs’ Motion to Remand, Docket No. 28 (making the Partial Ruling
final and emphasizing that the Court would decide arbitrability). The Court reserved judgment on
whether Plaintiffs’ claims were arbitrable and ordered supplemental briefing from the parties on
the matter. See Minutes in Chambers – Ruling on Plaintiffs’ Motion to Remand, Docket No. 28.
After considering the supplemental briefing on the Motion to Compel, the Court issued a tentative
ruling. See Minutes of Plaintiffs’ Motion to Compel (“Tentative Ruling”), Docket No. 40. In the
Tentative Ruling, the Court generally indicated that Plaintiffs’ claims were arbitrable, but that the
Court still had questions relating to Defendants’ First Amendment challenge. See generally id. At
the hearing, the parties and the Court discussed the matter and Defendants stated that they would
file an anti-SLAPP motion.2 Defendants so filed. See Motion to Strike Plaintiffs’ Petition
(“Motion”), Docket No. 46. Plaintiffs opposed. See Opposition to Motion (“Opp’n”), Docket No.
1
Unless otherwise noted, the defined terms herein have the same meaning as those in the Court’s Partial and Tentative
Rulings.
2
The Court will not repeat the factual background here. The parties should refer to the description in the Partial
Ruling. To the extent different facts are relevant, the Court includes those in the body of this ruling.
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48. And Defendants filed a reply. See Reply in Support of Motion (“Reply”), Docket No. 49.3
II. Legal Standard
California’s anti-SLAPP procedure – which applies, at least in part, in federal court – is
designed to prevent “cause[s] of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech.” Cal. Code Civ. Proc. § 425.16(b)(1).
In a motion to strike under section 425.16, the court engages in a two-part analysis: (1) the court
decides whether the moving party has made a threshold showing that the challenged causes of
action arise from a protected activity; and (2) if such a showing has been made, the burden then
shifts to the opposing party to demonstrate a probability of prevailing on the merits of their claims.
See Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 67 (2002).
As the foregoing suggests, the moving party bears the initial burden of establishing a prima
facie showing that the opposing party’s cause of action arises from the defendant’s free speech or
petition activity. See Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013); Zamani v.
Carnes, 491 F.3d 990, 994 (9th Cir. 2007). “A defendant meets [its burden under section
425.16(b)(1)] by demonstrating that the act underlying the plaintiff’s cause fits one of the
categories spelled out in section 425.16, subdivision (e)….” City of Cotati v. Cashman, 29 Cal.4th
69, 78 (2002) (quotation marks omitted). The statute includes four categories of protected conduct:
(1) any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
authorized by law;
(2) any written or oral statement or writing made in connection with an

issue under consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law;
(3) any written or oral statement or writing made in a place open to the
public or a public forum in connection with an issue of public interest; or
3
After Defendants’ Reply, Plaintiffs filed an Ex Parte Application for Leave to file a Sur-Reply in Opposition to the
Motion (“Application”). See Docket No. 50. They argue that there is good cause to allow the sur-reply because
Defendants stated at the hearing on the Tentative Ruling that they would respond to Plaintiffs’ preemption argument
in an anti-SLAPP motion, but then Defendants failed to raise the issue in their Motion. Id. at 2. Thus, Defendants
only stated their position on preemption in Reply, meaning that Plaintiffs had no opportunity to respond. Id. at 2-3.
Defendants opposed the Application, stating that the issue of federal preemption was raised in Plaintiff’s Opposition
as a defense to the Motion. See id. Ex. 1; Opposition re: Application, Docket No. 51. The Court granted the
Application and also permitted Defendants to file a response. See Order Granting the Application, Docket No. 52.
Thus, the Court accepted Plaintiffs’ “Sur-Reply,” see Docket No. 50-2, and Defendants’ “Response,” see Docket No.
53.
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(4) any other conduct in furtherance of the exercise of the constitutional

right of petition or the constitutional right of free speech in connection with
a public issue or an issue of public interest.
Cal. Code Civ. Proc. § 425.16(e).

The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action
but, rather, the defendant’s activity that gives rise to its asserted liability – and whether that activity
constitutes protected speech or petitioning.” Navellier v. Sletten, 29 Cal.4th 82, 92 (2002). Thus,
the critical question is whether the plaintiff’s claim is based on an act or acts in furtherance of the
right of petition or free speech. See City of Cotati, 29 Cal.4th at 78. Whether the anti-SLAPP
statute applies is determined by the “principal thrust or gravamen” of the plaintiff’s claim. See
Martinez v. Metabolife Int’l, Inc., 113 Cal.App.4th 181, 188 (2003); Weil & Brown, Calif. Prac.
Guide: Civ. Proc. Before Trial (“Weil & Brown”) (The Rutter Group 2019), § 7:876, at 7(II)-36.
Where the moving party satisfies its prima facie burden at the first step, “[t]he burden then
shifts to the plaintiff . . . to establish a reasonable probability that it will prevail on its claim in
order for that claim to survive dismissal.” Makaeff, 715 F.3d at 261. At the second step of the
anti-SLAPP process, a plaintiff must demonstrate that the complaint is “both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.” Hilton v. Hallmark Cards, 599 F.3d 894, 902 (9th
Cir. 2009); see also Makaeff, 715 F.3d at 261. The required probability of prevailing “need not be
high.” Hilton, 599 F.3d at 908. However, “a defendant’s anti-SLAPP motion should be granted
when a plaintiff presents an insufficient legal basis for the claims or ‘when no evidence of
sufficient substantiality exists to support a judgment for the plaintiff.’” Metabolife Int’l, Inc. v.
Wornick, 264 F.3d 832, 840 (9th Cir. 2001).
III. Discussion
The parties frame the relevant issues in this Motion quite differently. Assuming that the
anti-SLAPP law applies to petitions to compel arbitration, Defendants jump headlong into the anti-
SLAPP two-part process and argue that the Court must analyze the claims underlying the
Plaintiffs’ Motion to Compel; i.e., the claims for breach of contract (disparagement clause) and
breach of the covenant of good faith and fair dealing. See Motion at 8-10. Plaintiffs meanwhile
assert that the anti-SLAPP law cannot apply to the Petition because the Petition is governed by the
Federal Arbitration Act (“FAA”), the FAA preempts the anti-SLAPP law, or California courts
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have held under California law that the anti-SLAPP law does not apply to petitions to compel
arbitration. See Opp’n at 3-10. Alternatively, Plaintiffs argue that the Petition survives the two-
step process because the Court should analyze the Petition itself – and Defendants’ refusal to
submit to arbitration – rather than the underlying breach claims as the challenged conduct. See
Opp’n at 12-19.4
A. Is the Anti-SLAPP Law Applicable?
1. Claims Based on Federal Law?
Federal courts in the Ninth Circuit apply California’s anti-SLAPP statute to state-law but
not to federal-law claims. See, e.g., Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)
(“[A] federal court can only entertain anti-SLAPP special motions to strike in connection with
state law claims.”).5 Recognizing this distinction, Plaintiffs first argue that their Petition sounds
in federal law because the only question it raises to the Court is whether the underlying claims are
arbitrable pursuant to the FAA. See Opp’n at 3-6. Defendants contend that the underlying claims
in the Petition are simple state law causes of action, Motion at 8-10, that Plaintiffs initially asserted
their action under the California Arbitration Act, and that the FAA does not create a private right
of action or provide an independent basis for federal question jurisdiction, see Reply at 2-3.
First of all, there is no question that the FAA governs whether the Petition’s claims are
arbitrable.6 Section 2 of the FAA provides that “[a] written provision in. . . a contract evidencing
a transaction involving commerce to settle by arbitration a controversy thereafter arising out of
such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such
4
Complicating matters, as Plaintiffs point out, Plaintiffs’ breach claims are not causes of action per se. In other words,
Plaintiffs are not asking this Court to consider whether there was a breach of the Agreement or a breach of the covenant
of good faith and fair dealing; rather, they assert “cause[s] of action to be arbitrated.” See Petition at 21 (Docket 1-1
at 22 of 54); see also Opp’n at 13 n.5. As the Plaintiffs put it “the only relief sought in this Court is an order compelling
arbitration.” Id. at 1.
5
Some Ninth Circuit judges disagree with the court’s precedent regarding the applicability of anti-SLAPP laws in
federal court. See Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1183-86 (9th Cir. 2016) (Kozinski, J.,
concurring) (arguing that anti-SLAPP provisions conflict with the Federal Rules of Civil Procedure); id. at 1186
(Gould, J., concurring); Makaeff v. Trump University, LLC, 736 F.3d 1180, 1188 (9th Cir. 2013) (Watford, J.,
dissenting from denial of rehearing en banc); see also Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1356
(11th Cir. 2018) (discussing circuit split on issue and holding that anti-SLAPP statutes do not apply in federal court);
Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (holding that anti-SLAPP law does not
apply in federal court). For what it is worth, the Court would agree with those Ninth Circuit judges that have objected
to the application of anti-SLAPP motions in federal courts. Nevertheless, this Court must and will apply the
established law of the circuit unless and until such time that it is overruled.
6
On the other hand, whether a valid arbitration agreement exists is made by reference to ordinary state law contract
principles. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
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grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “The effect
of the section is to create a body of federal substantive law of arbitrability, applicable to any
arbitration agreement within the coverage of the Act.” Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983); see also Mitsubishi Motors Corp. v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 626 (1985). Neither party suggests that the Agreement is not a
“contract evidencing a transaction involving commerce,” and thus it falls within the FAA’s
purview. Further, while parties may bargain for the application of non-federal arbitrability law,
see Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489
U.S. 468, 479 (1989), the parties did not clearly and unmistakably provide for non-federal
arbitration law in the Agreement, see Cape Flattery Ltd. v. Titan Maritime, 647 F.3d 914, 921 (9th
Cir. 2011) (holding that a general choice of law provision does not override presumption of federal
arbitrability law under FAA). That Plaintiffs initially sought to compel arbitration pursuant to the
California Arbitration Act seems irrelevant as to whether the FAA would in fact apply.
While it is true that the FAA does not create jurisdiction or establish a private cause of
action, see Southland Corp. v. Keating, 465 U.S. 1, 15 n.9 (1984), there is no doubt that federal
arbitrability law dictates the answer to the primary question Plaintiffs raised to the Court: whether
to compel Defendants to arbitrate. In short, the Court agrees that the only question before the
Court right now – whether it must grant the Petition – sounds under the FAA. And,
By its terms, the Act leaves no place for the exercise of discretion
by a district court, but instead mandates that district
courts shall direct the parties to proceed to arbitration on issues as
to which an arbitration agreement has been signed. §§ 3, 4. Thus,
insofar as the language of the Act guides our disposition of this case,
we would conclude that agreements to arbitrate must be enforced,
absent a ground for revocation of the contractual agreement.
Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985).
Thus, the arbitrability inquiry is a federal one, but it does not follow that a petition to
compel arbitration is necessarily a federal claim like those discussed in Ninth Circuit cases
applying anti-SLAPP to the state causes of action. In short, the Court is not entirely satisfied that
the federal nature of the inquiry ends the anti-SLAPP analysis. As such, the Court will address
Plaintiffs’ preemption argument.
2. Does the FAA Preempt the Anti-SLAPP Law?
Plaintiffs next argue that the FAA preempts the anti-SLAPP law in cases seeking to compel
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arbitration under the FAA because it acts as an obstacle to enforcing arbitration agreements
governed by the FAA. See Opp’n at 6-9. Defendants assert that the anti-SLAPP law is compatible
with the FAA, that state laws are only preempted if they specifically target arbitration agreements,
and that a California Court of Appeal has rejected Plaintiffs’ preemption argument. See Reply at
3-6.
As the Supreme Court has explained,
The FAA contains no express pre-emptive provision, nor does it
reflect a congressional intent to occupy the entire field of arbitration.
See Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100
L.Ed. 199 (1956) (upholding application of state arbitration law to
arbitration provision in contract not covered by the FAA). But even
when Congress has not completely displaced state regulation in an
area, state law may nonetheless be pre-empted to the extent that it
actually conflicts with federal law—that is, to the extent that
it “stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.” Hines v. Davidowitz, 312
U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).
Volt, 489 U.S. at 477.
The Supreme Court further discussed FAA preemption at length in AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 339-46 (2010). In setting forth its preemption analysis, the Supreme
Court stated that “[w]hen state law prohibits outright the arbitration of a particular type of claim,
the analysis is straightforward: The conflicting rule is displaced by the FAA.” Id. at 341 (citing
Preston v. Ferrer, 552 U.S. 346, 353 (2008)). It further noted that “the inquiry becomes more
complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant
here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration.” Id.
Finally, the Supreme Court explained that FAA “§ 2’s saving clause preserves generally
applicable contract defenses, nothing in it suggests an intent to preserve state-law rules that stand
as an obstacle to the accomplishment of the FAA’s objectives.” Id. at 343.7 Of course, “[t]he
7
Defendants citation to the quote, “defenses that apply only to arbitration or that derive their meaning from the fact
that an agreement to arbitrate is at issue” for the premise that such defenses are preempted is somewhat imprecise.
See Reply at 4-5 (quoting Concepcion, 563 U.S. at 339). The full quote from Concepcion is: “The final phrase of §
2, however, permits arbitration agreements to be declared unenforceable ‘upon such grounds as exist at law or in
equity for the revocation of any contract.’ This saving clause permits agreements to arbitrate to be invalidated by
‘generally applicable contract defenses, such as fraud, duress, or unconscionability,’ but not by defenses that apply
only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Concepcion,
563 U.S. at 339 (quoting Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996)). Thus, the Supreme Court
was discussing when arbitration agreements could be invalidated; not what types of laws § 2 preempts.
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‘principal purpose’ of the FAA is to ‘ensur[e] that private arbitration agreements are enforced
according to their terms.’ ” Id. at 344 (quoting Volt, 489 U.S. at 478).
An argument can be made that applying California’s anti-SLAPP law to Plaintiffs’ Petition
“stands as an obstacle” to “Congress’ principal purpose of ensuring that private arbitration
agreements are enforced according to their terms.” Volt, 489 U.S. at 478. Allowing anti-SLAPP
motions against petitions to compel arbitration would add a preliminary step to the federal court’s
analysis regarding the gateway issues of arbitrability. Such a step counteracts the FAA’s intent to
enforce arbitration agreements by their terms and provide the parties the efficiencies that
arbitration allows. In this regard, the Court would briefly provide an overview of the relevant
Supreme Court law on FAA preemption, and a description of the California Court of Appeal case
that addressed the issue in the anti-SLAPP context.
In Volt, the Supreme Court held that the FAA did not preempt a California statute that
allowed a court to stay an arbitration pending resolution of related litigation between a party to the
arbitration agreement and third parties not bound by the agreement. Volt, 489 U.S. at 470. In
reaching that conclusion, the Supreme Court assumed that the parties had incorporated California
arbitration rules into their agreement. See id. at 476. The Court then reasoned that it would be
“inimical to the FAA’s primary purpose” for the Court to disregard the parties’ selection of
California arbitration procedure. Id. at 479. Thus, the Court concluded that there was no conflict
between the California statute the parties’ incorporated and the FAA. Id.
Conversely, the Supreme Court has held that state laws that require judicial resolution of
certain issues must fall in light of the FAA. See Perry v. Thomas, 482 U.S. 483, 490-92 (1987);
Southland Corp., 465 U.S. at 11-12. In essence, the Supreme Court has stated the obvious in
concluding that States’ attempts to require a judicial forum for certain disputes conflicts with the
federal policy of enforcing private arbitration agreements. Perry, 482 U.S. at 490-91.
Likewise, in Preston the Supreme Court extended the reasoning in Perry and Southland to
proceedings in front of a state administrative body. Specifically, the Supreme Court held that the
FAA preempted a California law providing that the Labor Commissioner must first exercise
“exclusive jurisdiction” to determine whether a contract was invalid under the California Talent
Agencies Act (“TAA”), Cal. Lab. Code §§ 1700, et seq., before a claim arising under such a
contract could be arbitrated. Preston, 552 U.S. at 354-56. The Court explained:
Procedural prescriptions of the TAA thus conflict with the FAA’s
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dispute resolution regime in two basic respects: First, the TAA, in §

1700.44(a), grants the Labor Commissioner exclusive jurisdiction to
decide an issue that the parties agreed to arbitrate, see Buckeye, 546
U.S., at 446, 126 S.Ct. 1204; second, the TAA, in § 1700.45,
imposes prerequisites to enforcement of an arbitration agreement
that are not applicable to contracts generally, see Doctor’s
Associates, Inc., 517 U.S., at 687, 116 S.Ct. 1652.
Id. at 356.8 Therefore, the Supreme Court concluded that applying the TAA to arbitration
agreements conflicted with the FAA’s mandate by thwarting the will of the parties and
extinguishing the efficiencies of bargained-for arbitration. Id. at 357-59.
In Concepcion, the Supreme Court held that the FAA preempted California’s “Discover
Bank” rule, which provided that class action waivers in arbitration agreements in consumer
contracts of adhesion were unconscionable and, therefore, unenforceable. Id. at 340 (citing
Discover Bank v. Superior Court, 36 Cal.4th 148, 162-63 (2005)). The Court reasoned that even
though the Discover Bank rule relied on unconscionability – a ground that exists in law or equity
to revoke a contract – it in effect allowed “any party to a consumer contract to demand [classwide
arbitration] ex post.” Concepcion 563 U.S. at 346. In reaching its decision the Supreme Court
examined the purposes of the FAA and considered whether requiring the availability of classwide
arbitration frustrated those goals. See id. at 344-52. Delineating the purposes of the FAA, the
Court explained “that the FAA was designed to promote arbitration,” id. at 346, and recognized
the “two goals” of enforcing private arbitration agreements by their terms and “allow[ing] for
efficient, streamlined procedures,” id. at 344. Then, examining the nature of classwide arbitration,
the Supreme Court articulated that classwide arbitration increased the formality of arbitration
proceedings and that “[a]rbitration is poorly suited to the higher stakes of class litigation.” In sum,
the Supreme Court concluded that “[r]equiring the availability of classwide arbitration interferes
with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”
Id. at 344.9
As should be obvious from the previous discussion, the Supreme Court – and, to the Court’s
and the parties’ knowledge, no federal court – has ever considered whether an anti-SLAPP motion
8
Section 1700.45 of the TAA provided that notwithstanding the Labor Commissioner’s exclusive jurisdiction,
arbitration agreements were valid if, among other conditions, the Labor Commissioner had the right to attend all
arbitration hearings. See Cal. Labor Code § 1700.45(d).
9
That is not to say that parties are precluded from bargaining for the availability of classwide arbitration. See id. at
351.
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may be brought against a petition to compel arbitration governed by the FAA. Although not
decided in federal court, the closest case is Moss Bros. Toy, Inc. v. Ruiz, in which the California
Court of appeal granted an anti-SLAPP motion against Plaintiff’s first amended complaint and, in
an unpublished portion of the opinion, concluded that the FAA does not preempt California’s anti-
SLAPP law. See Moss Bros., No. E067240, at *22 (Cal. Ct. App. Sept. 20, 2018) available at
https://www.courts.ca.gov/opinions/archive/E067240.PDF. Moss Bros. has a long and convoluted
procedural history that the Court describes in some detail to provide context. Ruiz (the defendant
in Moss Bros.) had previously sued Moss Bros.’ agent, MBAG, for employment-related claims.
See id. at *2. In the first suit, MBAG twice sought to compel Ruiz to arbitrate his individual
claims. Id. at *3-*6. After MBAG filed its second motion to compel arbitration, Moss Bros. filed
an application to intervene in the action. Id. at *6. The court denied the application to intervene
and MBAG’s second motion to compel arbitration. Id. at *6-*7. Thereafter, Moss Bros. filed a
new lawsuit asserting that Ruiz breached the arbitration agreements. Id. at *7. Moss Bros. also
filed a motion to compel arbitration. Id. *8. The court sustained a demurrer as to the initial
complaint and denied the motion to compel. Id. After the demurrer, Moss Bros. filed its first
amended complaint, which asserted the breach causes of action and sought specific performance
of the arbitration agreements. Id. at *8-*9. In response, Ruiz moved pursuant to California’s anti-
SLAPP law to strike the entire first amended complaint. Id. at *9. The trial court granted the
motion, id., and the Court of Appeal affirmed, id. at *22.
In an unpublished section of its opinion, the Court of Appeal rejected Moss Bros.’
argument that the FAA preempted the anti-SLAPP law to the extent the California statute could
“be applied to an action to compel performance of an arbitration agreement.” Id. The Court of
Appeal relied on the same quote from Concepcion that this Court finds somewhat imprecise. Id.
(“Section 2 of the FAA preempts ‘defenses that apply only to arbitration or that derive their
meaning from the fact that an agreement to arbitrate is at issue.’ ” (quoting Concepcion, 563 U.S.
at 339)); see also supra at 6-7 n.7. The Court of Appeal then reasoned that “Code of Civil
Procedure section 425.16 does not provide a defense to arbitration, and does not derive its meaning
from the fact an arbitration agreement may be in issue. Rather, the anti-SLAPP statute applies to
all claims that are based on acts in furtherance of protected rights of petition and free speech.” Id.
Further, the Court commented that the anti-SLAPP statute did not prevent Moss Bros. from
seeking to enforce the arbitration agreements because “the statute does not bar a plaintiff from
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litigating an action that arises out of the defendant’s free speech” as long as the suit “possess[es]
minimal merit.” Id. at *23 (internal quotation marks and citations omitted).
This Court would decline to rely on Moss Bros. for several reasons. First, the opinion is
unpublished and thus only valuable to the extent it is persuasive. See Employers Ins. of Wausau
v. Granite State Ins. Co., 330 F.3d 1214, 1220 (9th Cir. 2003). Next, the opinion fails to confront
the intricacies of the matter and lacks a thorough examination of the issue. In other words, its
reasoning is bare and conclusory. Third, as alluded to above, Moss Bros. takes the quote from
Concepcion out of context. Relying solely on that quote does not support the weight of the
conclusion. In Concepcion, the Supreme Court was merely noting that generally applicable
contract defenses could invalidate an arbitration, while arbitration-specific contract defenses could
not. Concepcion, 563 U.S. at 339. Lastly, Moss Bros.’ final justification for finding preemption
contradicts Supreme Court precedent on the matter. The Moss Bros. court reasoned that Moss
Bros. could still attempt to enforce arbitration if it survived an anti-SLAPP motion. Moss Bros.,
No. E067240, at *23. However, in Preston the Supreme Court rejected a similar argument.
Preston, 552 U.S. at 357-59. There, the party arguing against preemption asserted that the TAA
merely postponed arbitration and was therefore compatible with the FAA. Id. at 357. The Court
concluded that even if arbitration were still eventually available, any delay would frustrate one of
the primary goals of arbitration – “to achieve streamlined proceedings and expeditious results.”
Id. (internal quotation marks and citations omitted). Thus, the Supreme Court held that the FAA
preempted the TAA as applied to contracts with arbitration agreements. Id. at 359. This Court
would reject Moss Bros.’ justification for the same reason.
Therefore, in the absence of persuasive direct precedent, the Court must read the Supreme
Court’s tea leaves to render a decision. The Court is inclined to conclude that the FAA preempts
California’s anti-SLAPP law as applied to Plaintiffs’ Petition. Concepcion and Preston, while
factually distinguishable, are instructive and convince this Court that the anti-SLAPP law cannot
stand in the way of parties’ agreements to arbitrate disputes. Allowing an anti-SLAPP inquiry to
proceed before the court engages in the arbitrability analysis adds an extra step to the process that
Congress, in enacting the FAA, did not envision. That analysis would frustrate the FAA’s dual
goals of enforcing arbitration agreements by their terms and allowing for streamlined dispute
resolution. And, as the Concepcion opinion remarks, “States cannot require a procedure that is
inconsistent with the FAA, even if it is desirable for unrelated reasons.” Concepcion, 563 U.S. at
10
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351. The Court recognizes that a preemption analysis may not be a perfect fit for the issues
presented in this novel motion, but would find that it is the most analogous framework to capture
the concerns between respecting California’s anti-SLAPP law and the FAA.
Moreover, while Concepcion addressed a state rule that specifically targeted arbitration,
Defendants’ argument that the FAA only preempts such rules is unconvincing. See Reply at 4-6.
In short, the Court does not believe that the Supreme Court has ever articulated such a hard and
fast rule. While laws that specifically target arbitration are suspect and may be susceptible to a
preemption challenge, generally applicable laws can raise concerns as well. In fact, Concepcion
and Volt framed the preemption rule in broader terms, noting that nothing in the FAA “suggests
an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s
objectives.” Concepcion, 563 U.S. at 343; see also Volt, 489 U.S. at 477 (employing the “obstacle”
language). By using language about laws being an “obstacle” to the goals of the FAA, the Supreme
Court suggested that state law hindrances must bow before the federal law on arbitrability.
Concepcion itself seemed to recognize that the FAA may preempt generally applicable laws when
applied in a way that hinders the FAA. Concepcion, 563 U.S. at 341 (“[T]he [preemption] inquiry
becomes more complex when a doctrine normally thought to be generally applicable, such as
duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that
disfavors arbitration.”). Further, the TAA – addressed in Preston – only partially targeted
arbitration. Preston, 552 U.S. at 355-56. Section 1700.44(a) of the TAA set forth that parties to
a controversy under that law must refer the dispute to the Labor Commissioner. Id. at 355. In
Preston the issue involved an arbitration agreement, but presumably, that provision from the TAA
would also have affected the parties’ right to litigate a dispute. Thus, granting the Labor
Commissioner exclusive jurisdiction was not solely an attack on arbitration, and was more
generally applicable. Still, because of the TAA’s effect on arbitration agreements, the Supreme
Court held that the FAA overruled the state law in those situations. Id. at 356.
Here, it is unquestionable that California’s anti-SLAPP law is generally applicable and
does not target arbitration. But, as evidenced by the instant dispute, it may affect and frustrate the
goals of the FAA. To demonstrate the Court’s point, it imagines a cleaner scenario where two
contracting parties entered into an agreement with a broad arbitration provision requiring the
arbitration of any dispute between the parties. The imaginary parties do not really challenge
existence of the contract or the applicability of the arbitration provision. Assuming those facts,
11
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say a dispute arises and plaintiff files a claim to compel arbitration. Believing that plaintiff’s claim
is frivolous and affects its speech, defendant files an anti-SLAPP motion. Clearly, a court’s
consideration of that motion would frustrate the agreed-upon intent of the parties and delay any
reference to arbitration. Thus, the anti-SLAPP law would act as a state procedural barrier to what
would otherwise be a straightforward motion to compel arbitration.10
Unlike the Court’s hypothetical, the issues here are messy. Defendants vigorously dispute
the applicability of the Agreement, whether the Agreement has expired, and whether the
Agreement as a whole is void based on First Amendment concerns. But the Court has addressed
the first two issues in its Tentative Ruling, and Defendants may argue the third in front of the
arbitrator. If the Court were also to analyze whether the Petition runs afoul of the anti-SLAPP
law, it believes it would be contravening the intent of congress as set forth in the FAA and shaped
by the federal courts. And, considering that no federal court has ever applied an anti-SLAPP law
to a petition to compel arbitration, the Court would decline to do so here. Therefore, the Court
would deny Defendants’ Motion.
3. Under California Law, Does the Anti-SLAPP Statute Apply to Petitions to Compel
Arbitration?
Because the Court is inclined to conclude that the FAA preempts the anti-SLAPP law as
applied to the Petition, it need not discuss in too much depth the parties’ arguments about Century
21 Chamberlain & Assocs. v. Haberman, 173 Cal. App. 4th 1 (2009), Sheppard v. Lightpost
Museum Fund, 146 Cal. App. 4th 315 (2006), and Sahlolbei v. Montgomery, No. E047099, 2010
WL 197298 (Cal. Ct. App. Jan. 21, 2010). Nonetheless, the Court will describe the cases in order
to be comprehensive. Suffice it to say, the Court would not find any of the state cases
determinative on the precise issue here.
Sheppard held that the anti-SLAPP law did “not authorize a superior court to grant a motion
to strike an arbitration claim filed only in an agreed arbitral forum and not asserted by the claimant
in any complaint, cross-complaint or petition filed in court.” 146 Cal. App. 4th at 318. As the
arbitration demand was only filed in the arbitral forum, the California Court of Appeal reasoned
that the demand was not within the anti-SLAPP law’s purview. Id. at 324. Sheppard is
distinguishable from the instant case, however, because Plaintiffs filed the Petition in court rather
10
The Court recognizes that its hypothetical is not exact, so the parties should not quibble about it too much at the
hearing.
12
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than in an arbitral forum.11

In Century 21, defendant demanded the plaintiff arbitrate a dispute, but had not filed a
petition to compel arbitration in court. Plaintiff responded by filing a cause of action seeking
declaratory relief that no arbitration agreement existed between the parties. Century 21, 173 Cal.
App. 4th at 5. Once in court, defendant filed an anti-SLAPP motion and a motion to compel
arbitration. Id. at 6. The trial court denied the anti-SLAPP motion and the Court of Appeal
affirmed. Id. at 6-8. The Court of Appeal concluded that defendant’s demand for arbitration did
not fall within one of the anti-SLAPP law’s categories, meaning that defendant’s motion failed on
the first step of the anti-SLAPP analysis. Id. at 7-9. Specifically, the court reasoned that arbitration
is not a judicial proceeding or any other official proceeding authorized by law because arbitration
is a private and contractual proceeding. Id. at 8-9. Further, the court held that defendant’s “alleged
demand to arbitrate a negligence claim against plaintiffs is neither a public issue nor an issue of
public interest.” Id. at 9.
Unlike the situation in this Court, the party seeking arbitration in Century 21 was the one
that filed the anti-SLAPP motion. Thus, the situation in Century 21 was a “mirror image” of the
instant case. The parties dispute whether that distinction matters. Plaintiffs contend that the
Century 21 holding that a demand for arbitration cannot support an anti-SLAPP motion applies
regardless of which party is seeking arbitration. See Opp’n at 10-11. Defendants respond that
because Plaintiffs first filed its Petition in Court rather than in an arbitral forum, the Petition is
subject to an anti-SLAPP motion. See Reply at 6-7. The Court notes that it does not find Century
21 particularly supportive of either sides’ argument. To a certain extent it is noteworthy that the
demand for arbitration was not a protected activity under the anti-SLAPP law, but it is also
interesting that the Court of Appeal would ask whether the underlying negligence that defendant
wanted to arbitrate was a matter of public interest. Century 21, 173 Cal. App. 4th at 9. As such,
11
The focus on whether a demand for arbitration is initially filed with the arbitrator or with a court seems like
something of a red herring to the Court. Here, it is clear from the record of the parties’ communications that HBO
would have resisted arbitration even if Plaintiffs had gone straight to an arbitrator. Defendants could then have filed
an action in court trying to avoid arbitration, and Plaintiffs could have responded with a motion to compel. Could
Defendants then file an anti-SLAPP motion against the motion to compel? It would be anomalous if Defendants could
drag Plaintiffs to Court to determine arbitrability and then assert an anti-SLAPP motion. Conversely, if Defendants
could not file an anti-SLAPP motion, the Court’s inquiry would be limited to the arbitrability threshold questions.
This would suggest to the Court that the actual conduct being challenged is merely the filing of the Petition in Court.
But, as described below, the seeking of arbitration does not necessarily fall within one of the four anti-SLAPP
categories.
13
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Century 21 could cut both ways, or be distinguished on a number of different facts.

In Sahlolbei, Montgomery was an elected board member for the Palo Verde Healthcare
District and Sahlolbei was a surgeon at Palo Verde Hospital. Id. at * 1. Sahlolbei and Montgomery
had previously entered into a settlement agreement that included non-disparagement and
arbitration clauses. Sahlolbei, 2010 WL 197298, at *1-*2. Years after the settlement, “Sahlolbei
filed a combined complaint for breach of contract and petition to compel arbitration against
Montgomery,” alleging that Montgomery breached the non-disparagement clause of the settlement
agreement. Id. at * 1. Montgomery allegedly told a reporter that Sahlolbei was verbally abusive
toward nurses and other staff at the hospital and that his departure would do much to solve the
hospital’s problems. Id. The California Court of Appeal affirmed the denial of the anti-SLAPP
motion against the petition to compel arbitration primarily because “Sahlolbei’s cause of action is
the demand for arbitration,” and a “demand for commencing private, contractual arbitration does
not fit any of the four anti-SLAPP categories.” Id. at *4 (internal quotation marks, citations, and
alterations omitted).12 Thus, Montgomery’s anti-SLAPP motion failed the first step of the anti-
SLAPP inquiry. See id. at *4-*6.
However, it bears mentioning that Sahlolbei also concluded that petitions to compel
arbitration may be subject to an anti-SLAPP motion if the movant demonstrates how the demand
for arbitration affects her right of free speech. Id. at *5. The California Court of Appeal,
nonetheless, found that Montgomery failed to explain how the arbitration would affect his free
speech rights. Id. The court’s reasoning on that issue is strange considering that the underlying
conduct in Sahlolbei – making allegedly disparaging remarks to a reporter – obviously related to
free speech. Id. Perhaps the court was trying to say that the arbitration demand itself must be an
attempt to restrict speech, rather than the underlying breach claim, but it is unclear from the
decision. Nevertheless, the confusion about which conduct to address demonstrates one of the
issues with considering an anti-SLAPP motion against a petition to compel arbitration.13
12
It bears mentioning that Sahlholbei also concludes that petitions to compel arbitration may be subject to an anti-
SLAPP motion if the movant demonstrates how the demand for arbitration affects her right of free speech. Id. at *5.
The California Court of Appeal, nonetheless, concluded that Montgomery failed to explain how the arbitration would
affect his free speech rights. Id. The court’s reasoning on that issue is strange considering that the underlying conduct
in Sahlolbei – making allegedly disparaging remarks to a reporter – obviously relates to free speech. Perhaps the court
was trying to say that the arbitration demand itself must be an attempt to restrict speech, rather than the underlying
breach claim, but it is unclear from the decision. Nevertheless, the confusion about which conduct to address
demonstrates one of the issues with considering an anti-SLAPP motion as against a petition to compel arbitration.
13
For example, as discussed above in footnote 12, if the underlying conduct is the seeking of arbitration, it is not a
14
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Like Century 21, therefore, Sahlolbei could be read to support either sides’ position. To
some extent, Sahlolbei is both factually and procedurally analogous to the situation in front of this
Court. There, as here, the party resisting arbitration utilized the anti-SLAPP law to challenge a
petition to compel arbitration. Id. at *1-*2. And, like here, the alleged underlying breach was the
making of disparaging remarks about a matter of arguable public interest. But, even though
Sahlolbei denied Montgomery’s anti-SLAPP motion, the court’s comment about granting such a
motion when the petition to compel arbitration affected speech renders the court’s decision
somewhat narrow.
As such, even if the Court were to apply California law, it would not find any of the
foregoing cases determinative.
B. Anti-SLAPP Two-Step Process
Because the Court is inclined to conclude that the FAA preempts the anti-SLAPP law as
applied to the Petition, the Court will not engage in the two-step analysis.
IV. Conclusion
Therefore, for the foregoing reasons, the Court would DENY Defendants’ anti-SLAPP
Motion.14 In addition, the Court would GRANT Plaintiffs’ Petition for the reasons set forth in the
Tentative Ruling at Docket Entry No. 40.15
foregone conclusion that that conduct would constitute a matter of public interest. Though the documentary that
kicked off this fight is inarguably a matter of public interest, the parties’ disputing interpretations of the Agreement
may not be.
14
To echo the sentiment that the Court has expressed throughout its consideration of the Petition, the Court repeats
that Defendants may raise First Amendment and contract validity questions to the arbitrator. Nothing in any of the
Court’s rulings is meant to foreclose or suggest different veins of argumentation for the parties before the arbitrator.
15
The Court takes no position on whether the arbitration must be “public.” As Plaintiffs concede, that is a question
for the arbitrator. Opp’n at 17.
15
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Case No. CV 19-1862-GW(PJWx) Date July 15, 2019

Javier Gonzalez Katie E. Thibodeaux
Bryan J. Freedman Theodore J. Boutrous, Jr.
Jonathan P. Steinsapir Daniel M. Petrocelli
Howard Weitzman Drew E. Breuder
Stephanie S. Abrutyn
PROCEEDINGS: PLAINTIFFS' MOTION TO COMPEL ARBITRATION [18]
The Court’s Further Consideration of Motion to Compel following Supplemental Briefing is circulated
and attached hereto. Court hears further argument. For reasons stated on the record, the Court will
postpone the determination of this motion pending Defendant’s filing of its proposed anti-Slapp motion.
Motion is to be filed by August 15, 2019, Opposition to be filed by August 29, 2019, and Reply due on
or before September 5, 2019. Hearing on the motion is set for September 16, 2019 at 8:30 a.m.
: 35
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Further Consideration of Motion to Compel Arbitration following Supplemental Briefing
I. Background
the matter. See Minutes in Chambers – Ruling on Plaintiffs’ Motion to Remand, Docket Nos. 28.
The parties submitted the briefing accordingly.2 See Defendant’s Supplemental Memorandum in
Opposition to Plaintiffs’ Arbitration Motion (“Def.’s Supp.”), Docket No. 30; Plaintiffs’
Supplemental Brief in Support of Arbitration Motion (Pls.’ Supp.”), Docket No. 36.3
II. Legal Standard
The Federal Arbitration Act (“FAA”) reflects a “liberal federal policy favoring arbitration.”
AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2010) (citation omitted). “By its terms,
1
Unless otherwise noted, the defined terms herein have the same meaning as those in the Court’s Partial Ruling (see
Docket No. 27).
2
Ruling.
3
For the purposes of this tentative ruling, the Court considered the parties’ original briefing filed ahead of the Partial
Ruling, as well as the supplemental briefs filed afterwards.
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the [FAA] leaves no room for the exercise of discretion by a district court, but instead mandates
that district courts shall direct the parties to proceed to arbitration on issues as to which an
arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 213
(1985) (emphasis in original); see also 9 U.S.C. § 4. “The court’s role under the Act is therefore
limited to determining: (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether
the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then
the Act requires the court to enforce the arbitration agreement in accordance with its terms.”
Daugherty v. Experian Info. Solutions, Inc., 847 F. Supp. 2d 1189, 1193 (N.D. Cal. 2012) (quoting
Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). “While the
Court may not review the merits of the underlying case ‘[i]n deciding a motion to compel
arbitration, [it] may consider the pleadings, documents of uncontested validity, and affidavits
submitted by either party.’” Macias v. Excel Bldg. Servs. LLC, 767 F. Supp. 2d 1002, 1007 (N.D.
Cal. 2011) (quoting Ostroff v. Alterra Healthcare Corp., 433 F. Supp. 2d 538, 540 (E.D. Pa.
2006)).
III. Discussion
As set forth in the Partial Ruling, the Agreement included the Arbitration Provision:
Any dispute arising out of, in connection with or relating to this
Agreement shall be submitted for binding and final arbitration
before a retired judge of the Superior Court of the State of California
for the County of Los Angeles who shall be mutually selected by the
parties. In the event that the parties cannot agree on the selection of
such a retired judge within 30 days after one of the parties notifies
the other in writing that there is any such dispute to be resolved, each
party shall select such a retired judge, and the two retired judges so
selected shall then select a third retired judge who shall serve as the
sole judge in connection with such dispute. If the two party-
appointed judges are unable to select a third judge within 30 days
after their appointment, the sole retired judge in connection with
such dispute shall be selected by the Superior Court of the State of
California for the County of Los Angeles. The retired judge so
selected shall conduct the arbitration in conformity with the rules of,
and as if it were conducted by, the American Arbitration
Association.
Agreement at p. 45 of 54. The Agreement also incorporated “confidentiality provisions,” which
were set forth in an attached “Exhibit 1.” Id. (“It is understood that HBO shall comply with the
confidentiality provisions set forth in Exhibit I attached hereto and incorporated herein by this
reference.”); Petition ¶ 31. The confidentiality provisions state “HBO shall not make any
2
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disparaging remarks concerning Performer or any of his representatives, agents, or business

practices or do any act that may harm or disparage or cause to lower in esteem the reputation or
public image of Performer.” Petition ¶ 33; Agreement at p. 51 of 54 (“Disparagement Clause”).
They also state that “HBO shall not in any manner nor at any time (either during or after HBO’s
contact of HBO’s relationship with Licensor and/or Performer), use or disclose, directly or
indirectly . . . . any . . . ‘Confidential Information.’ ” Agreement at p. 50 of 54. The confidentiality
provisions also include the clause that:
In the event that either party to this agreement brings an action to
enforce the 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 award of costs of litigation . . . in such
amount as may be determined by the court having jurisdiction in
such action.
Id. at p. 52 of 54.
A. Whether a Valid Arbitration Provision Exists Herein
Defendant first argues that no valid arbitration agreement exists because the confidentiality
provisions state that the prevailing party in an action to enforce the provisions is entitled to an
award of the costs of litigation as may be determined by the court having jurisdiction in such
action. See Def.’s Supp. at 1. Based on this clause, Defendant insists that the more-specific
language in the confidentiality provisions overrides the Agreement’s Arbitration Provision, and
that therefore, a court must resolve any dispute. Id. at 1-2. Further, anticipating Plaintiffs’
arguments, Defendant contends: (1) that there is no indication that the reference to the court in the
confidentiality provisions was intended for actions seeking injunctive relief; and (2) that even
accepting that the confidentiality provisions were incorporated into the body of the Agreement, if
the Court were to hold that the Arbitration Provision trumps the reference to the court, that would
render the reference to the court superfluous. See id. at 2-3.
Plaintiffs first respond that Defendant conflates who has the burden of establishing
arbitrability. See Pls.’ Supp, at 1. Plaintiffs clarify that establishing the existence of an arbitration
clause is their burden, but that the existence of the Arbitration Provision is undisputed. See id.
Instead, Plaintiffs assert that Defendant is challenging the scope of the Arbitration Provision. Id.
The Court would agree with Plaintiffs’ framing of the burden question. See Henry Schein,
Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524, 530 (2019) (“[B]efore referring a dispute to
an arbitrator, the court determines whether a valid arbitration agreement exists.”) (emphasis
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added); Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014) (“Sirius XM, as the
party seeking to compel arbitration, has the burden of proving the existence of an agreement to
arbitrate by a preponderance of the evidence.”); Comer v. Micor, Inc., 436 F.3d 1098, 1104 n.11
(9th Cir. 2006) (“[T]he Federal Arbitration Act reflects ‘a liberal federal policy favoring arbitration
agreements,’ that policy is best understood as concerning ‘the scope of arbitrable issues.’
” (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25, 103 S.Ct.
927, 74 L.Ed.2d 765 (1983)). Whether a particular dispute falls within an arbitration agreement,
however, is subject to the presumption in favor of arbitration. See Moses H. Cone Mem’l Hosp.,
460 U.S. at 24-25 (“The Arbitration Act establishes that, as a matter of federal law, any doubts
concerning the scope of arbitrable issues should be resolved in favor of arbitration.”).
Defendant cannot not seriously dispute the existence of the Arbitration Provision in the
body of the Agreement. Instead, the thrust of Defendant’s position is that the Arbitration Provision
does not apply to disputes that arise under the Disparagement Clause in the confidentiality
provisions. See Def. Supp. at 1 (“Plaintiffs cannot satisfy their burden of proving that a valid
agreement to arbitrate exists because the very provision on which their Motion rests makes clear
that any disputes must be resolved by “the court,” not an arbitrator . . . . While the body of the
1992 Agreement contains an arbitration provision, the document that contains the non-
disparagement sentence contains a different, more specific clause requiring judicial resolution of
disputes.”). Because the Agreement incorporated the confidentiality provisions, it does not make
sense to treat the provisions as a separate document or contract. Thus, the confidentiality
provisions are part of a contract that contains the Arbitration Provision. As such, the Court would
conclude that an arbitration agreement exists, and will address below whether this dispute is within
the scope of the agreement.
B. Whether the Arbitration Provision Encompasses the Present Dispute
1. Reference to a Court in the Confidentiality Provisions
First of all, the plain language of the clause containing the reference to a court in the
confidentiality provisions does not make it clear that any dispute under the provisions must be
litigated in court, as Defendant argues. The clause begins, “in the event that either party to this
agreement brings an action to enforce the terms of these confidentiality provisions . . . .”
Agreement at p. 52 of 54 (emphasis added). The conditional nature of the opening sentence
suggests that the clause only applies if a party brings an action to enforce the terms. It says nothing
ER023
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about where such an action may be brought. And, as Plaintiffs point out, even if the Arbitration
Provision requires arbitration, there are reasons that the parties could be in court. Pls.’ Supp. at 4.
Most obviously, one of the parties could resist arbitration, forcing the other party to seek court
intervention. A party could also seek injunctive relief or confirmation of an arbitration award in
court.
Moreover, the reference to the “the court having jurisdiction,” could very well include an
arbitrator as well as a court of law. Reading the “court having jurisdiction” language to include
an arbitrator would negate any concern that the clause was inconsistent with or superfluous to the
Arbitration Provision. See Harris v. Sandro, 96 Cal. App. 4th 1310, 1312 (2002). In Harris, the
plaintiff obtained an option agreement that provided: “Any dispute or claim in law or equity
arising out of this contract or any resulting transaction shall be decided by neutral binding
arbitration in accordance with the rules of the American Arbitration Association.” Id. The
agreement also included a fee-shifting provision: “Should any litigation be commenced between
the parties . . . the party, Seller or Buyer, prevailing in such litigation shall be entitled to, in addition
to such other relief as may be granted, a reasonable sum for attorneys’ fees to be determined by
the court in such litigation or in a separate action brought for that purpose.” Id. A dispute arose
between the parties, they engaged in arbitration, and the arbitrator awarded attorneys’ fees to the
defendant. Id. The California Court of Appeal thereafter rejected plaintiff’s argument that the
arbitrator exceeded his authority by awarding fees. Id. at 1314. The plaintiff had seemingly argued
that the agreement required that a court make the fee award. Id. However, the California Court
of Appeal held:
The option agreement does not require that a “court” or judge, rather
than an arbitrator, make the fee award. All of the parties’ disputes
are to be submitted to arbitration. Where, as here, a contract both
compels arbitration and awards attorney’s fees to the prevailing
party in “litigation” arising out of the contract, the attorneys’ fee
provision applies to the arbitration. (Severtson v. Williams
Construction Co. (1985) 173 Cal.App.3d 86, 95 [220 Cal.Rptr.
400]; Taranow v. Brokstein, supra, 135 Cal.App.3d at pp. 667-
668.). Any other result would render the fee provision meaningless,
a result we must avoid where possible. (Civ. Code, § 1641; Tate v.
Saratoga Savings & Loan Assn (1989) 216 Cal.App.3d 843,
857 [265 Cal.Rptr. 440].) By the same reasoning, a contract that
both compels arbitration and requires a “court” to determine the
amount of the fee award must contemplate that an arbitrator will
make the fee award. Otherwise, fees could never be awarded
ER024
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because no “court” may decide a dispute under the contract; all such
disputes must be decided by an arbitrator.
Id. at 1314-15.
The Court finds the reasoning in Harris convincing. There, as here, the agreement included
a broad and mandatory arbitration clause, and a conditional (and somewhat ambiguous) reference
to a court in the context of attorneys’ fees or costs. As such, the Court would come to the same
conclusion as Harris and reconcile the possibly-inconsistent clauses by reading the reference to “a
court” in the confidentiality provisions to also encompass an arbitrator.
Throughout its supplemental brief, Defendant repeats that the reference to a court in the
confidentiality provisions is more specific than the Arbitration Provision, but does not explain
exactly why it is more specific.4 The Court disagrees. As stated above, the clause does not use
mandatory language to designate a particular forum for dispute resolution. It only says that the
court having jurisdiction can award the prevailing party costs. If anything, the Arbitration
Provision is clearer and more specific. The Arbitration Provision states in mandatory terms that
“[a]ny dispute arising out of, in connection with or relating to this Agreement shall be” arbitrated.
Agreement at p. 45 of 54. And because the confidentiality provisions were incorporated into the
Agreement, the plainest reading is that any dispute about those provisions would be governed by
the broad Arbitration Provision. Further, neither the Arbitration Provision nor the confidentiality
provisions include any “notwithstanding” language referring to the other to indicate that the
confidentiality provisions are exempt from the Arbitration Provision. Thus, for the foregoing
reasons, the Court would conclude that the language in the confidentiality provisions does not
mandate that only a court may hear disputes under that provision.
Lastly, the Court does not believe that the reference to “the court having jurisdiction” in
the confidentiality provisions renders the arbitrability of disputes under that clause ambiguous.
But, even if the Court did think that the clause created ambiguity, it would still be forced to find
the claims arbitrable because of the federal presumption of arbitrability. See Comedy Club, Inc. v.
Improv West Associates, 553 F.3d 1277, 1286 (9th Cir. 2009).
2. Relation to Leaving Neverland
4
Defendant’s citations to articulations of the general rule that the particular controls the general are unavailing because
Defendant does not explain how the confidentiality provisions are more specific that the Arbitration Clause, and
because Defendant fails to direct the Court to any case holding that a reference to a court is more specific than a broad
arbitration clause. See Def.’s Supp. at 3.
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Page
Defendant next argues that the Arbitration Provision does not encompass the dispute
because the subject of the Agreement was a live concert performance by Michael Jackson in
Bucharest, Romania, on October 1, 1992 and Leaving Neverland has nothing to do with that
concert. See Def.’s Supp. at 3-4. Specifically, Defendant notes that Leaving Neverland does not
mention the concert in Bucharest, contains no concert footage from the performance, and does not
contain any “confidential information” that may have been disclosed to HBO in connection with
the Bucharest telecast. Id. at 4.
In response, Plaintiffs dispute Defendant’s characterization of the relationship between the
film and the Petition. See Pls.’ Supp. at 6. In the Petition, Plaintiffs alleged that Leaving Neverland
accused Jackson of abusing children during the tour that included the Bucharest concert. Petition
¶ 40. Regardless of the relation, Plaintiffs contend that Defendant’s argument goes to the merits
of the dispute rather than its arbitrability. See Pls.’ Supp. at 5-6. The Court tends to agree.
Plaintiffs’ petition is largely based on Defendant’s alleged breach of the Disparagement
Clause of the Agreement. See Petition ¶¶ 36-40. The Disparagement Clause reads:
HBO shall not make any disparaging remarks concerning Performer
or any of his representatives, agents, or business practices or do any
act that may harm or disparage or cause to lower in esteem the
reputation or public image of Performer or any person, firm or
corporation related to or doing business with Performer.
Agreement at p. 51 of 54. The language of the provision does not limit its effect to only disparaging
remarks related to the Bucharest concert, the tour, or any other topic. Read with the presumption
of arbitrability in mind, the Court thinks that the Arbitration Provision clearly encompasses the
current dispute. The Arbitration Provision requires that any dispute arising under the Agreement
must be arbitrated; the Disparagement Clause was incorporated into the Agreement; nothing on
the face of the Disparagement Clause limits its effect to certain types of disparaging statements;
and, in Leaving Neverland, HBO broadcast accusations that Jackson sexually abused children.
Whether the Disparagement Clause prohibits HBO from making those types of allegations
is a question of breach that an arbitrator must decide.
3. Expiration of the Agreement
Next, Defendant argues that the Arbitration provision does not encompass the instant
dispute because the Agreement has been fully performed and is expired. Def.’s Supp. at 5-6. The
Court previously noted that any challenge to the validity of the Agreement as a whole is a question
for the arbitrator. See Partial Ruling at 9-10 n.7. Moreover, even if the Agreement has expired,
7
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the Supreme Court has held that arbitration agreements may outlive the contract of which they are
a part. See Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers Union, AFL-CIO, 430
U.S. 243, 252 (1977) (holding that the parties must arbitrate a dispute over severance pay even
though the agreement providing for severance pay and arbitration had expired and the claim for
the severance pay arose after the expiration); see also Litton Fin. Printing Div. v. N.L.R.B., 501
U.S. 190, 204 (1991) (reiterating “a presumption in favor of postexpiration arbitration of matters
unless negated expressly or by clear implication.’ ”) (quoting Nolde Bros,, 430 U.S. at 255));
Wamar Int’l, LLC v. Thales Avionics, Inc., 2019 WL 1877615, at *10 n.3 (C.D. Cal. Mar. 20,
2019) (“Even where an agreement has been terminated, the well settled jurisprudence that holds
arbitration agreements to a life and validity separate and apart from the agreement in which they
are embedded dictates that parties’ duties under an arbitration clause survive contract termination
when the dispute is over an obligation arguably created by the expired contract.” (internal
quotation marks and citation omitted); Brachfeld v. Hopkins, 2017 WL 10436075, at *5 (C.D.
Cal. Dec. 11, 2017) (“Absent an express agreement to the contrary, however, arbitration
agreements ‘survive[ ] contract termination when the dispute [is] over an obligation arguably
created by the expired agreement.’ ” (quoting Nolde Bros., 430 U.S. at 252) (alterations in
original)).
The rule in Nolde Brothers is not limitless, however, and only applies to disputes that
arguably arise under the contract at issue. See Nolde Bros., 430 U.S. at 252-53. But because
Plaintiffs’ claims allegedly arise under the Disparagement Clause of the Agreement, and because
there is no express clause terminating the Arbitration Provision at the expiration of the Agreement,
the Court would apply the Nolde Brothers presumption.5
C. First Amendment
Finally, Defendant argues that the Court should deny the Arbitration Motion because the
Arbitration Provision, “as applied here, is unenforceable as a matter of the First Amendment, due
process, and California public policy.” Def. Supp. at 7. HBO contends that it “is squarely
attacking the enforceability of arbitration provision itself, not arguing the merits as Plaintiffs have
wrongly claimed.” Id. Specifically, Defendant asserts that the Arbitration Provision itself is
5
Defendant’s cite to Just Film, Inc. v. Merch. Servs., Inc., 2011 WL 2433044 (N.D. Cal. 2011) is inapposite. See
Arbitration Opp’n at 11-12. The court there did not hold that arbitration provisions expire along with their contracts.
To the contrary, the court recognized the Nolde Brothers line of precedent but held that the claims did not arise under
the agreement. Just Film, Inc., 2011 WL 2433044, at *5.
ER027
(31 of 239)
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suspect under the First Amendment because it allows Plaintiffs “a perpetual forum for them to
police what are clearly defamation-after-death claims in disguise,” and that the Court would
“enmesh[]” itself in the controversy by enforcing the Arbitration Provision. Id.6
Plaintiffs respond that Defendant’s arguments are “frivolous” because “[i]t is well
established that judicially enforcing arbitration agreements does not constitute state action.” Pls.’s
Supp. at 7 (quoting Roberts v. AT&T Mobility LLC, 877 F.3d 833, 838 n. 1 (9th Cir. 2017)
(emphasis added)). While the Court agrees that attempting to enforce an arbitration agreement in
a contract that includes a non-disparagement clause through the filing of a lawsuit does not initially
suggest the presence of state action, the initiation of the litigation itself can trigger First
Amendment concerns. See, e.g., California Code Civil Procedure § 425.16(a) (“The Legislature
finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill
the valid exercise of the constitutional rights of freedom of speech and petition for the redress of
grievances.”). It cannot be doubted that Plaintiffs’ arbitration action is seeking to recover damages
based upon Defendants’ broadcasting a documentary.7 Whether that fact should have some effect
on the Arbitration Motion should be discussed more thoroughly at the hearing.
IV. Conclusion
The Court has not at this time reached a final decision on the Arbitration Motion but will
decide the matter after hearing arguments of counsel.
6
The Court notes that Defendant’s Opposition attacked the Disparagement Clause rather than the Arbitration
Provision. See Opp’n at 16-22; id. at 16 (“The 1992 Agreement’s Non-Disparagement Sentence is Unenforceable.”);
id. at 17 (“Petitioners’ Interpretation of Non-Disparagement Sentence Violates HBO’s First Amendment and Due
Process Rights”); id. at 19 (“application of the vague and overbroad non-disparagement and Confidentiality Provisions
implicates and violates HBO’s due process and First Amendment rights.”). The Court will not consider any challenges
to portions of the Agreement aside from the Arbitration Provision. See Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 445-46 (2006) (“First, as a matter of substantive federal arbitration law, an arbitration provision is
severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue
of the contract’s validity is considered by the arbitrator in the first instance.”).
7
Although Plaintiffs refer to Leaving Neverland as a documentary in quotes and characterize it as “one-sided” (see
Complaint at 2:9-12), they do not deny that it is in fact a documentary and subject to First Amendment protections.
ER028
(32 of 239)
CERTIFICATE OF SERVICE
I hereby certify that on February 28, 2020, I filed the foregoing Appellant’s
Excerpts of Record with the Clerk of Court for the United States Court of Appeals
for the Ninth Circuit using the Court’s CM/ECF system. Participants in the case
who are registered CM/ECF users will be served by the appellate CM/ECF system.
s/ Theodore J. Boutrous, Jr.

(33 of 239)
No. 19-56222
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
OPTIMUM PRODUCTIONS, a California corporation, et al.,
Plaintiffs and Appellees,

v.
HOME BOX OFFICE, a Division of Time Warner Entertainment L.P. a Delaware

Limited Partnership, et al.,
Defendant,
and
HOME BOX OFFICE, INC., a Delaware corporation,
Defendant and Appellant.
On Appeal from the United States District Court

for the Central District of California (Hon. George H. Wu)
No. 2:19-cv-01862
EXCERPTS OF RECORD: VOLUME II OF II
THEODORE J. BOUTROUS JR. DANIEL M. PETROCELLI

NATHANIEL L. BACH PATRICK S. MCNALLY
ALISHA MAHALINGAM O’MELVENY & MYERS LLP
GIBSON, DUNN & CRUTCHER LLP 1999 Avenue of the Stars
333 South Grand Avenue Los Angeles, CA 90067-6035
Los Angeles, CA 90071-3197 Telephone: 310.553.6700
Telephone: 213.229.7000
Attorneys for Defendant and Appellant Home Box Office, Inc.

(34 of 239)
TABLE OF CONTENTS
Volume I of II
09/20/19 55, 54 Order Granting Motion to Compel Arbitration ER1
07/15/19 40 Civil Minutes re Motion to Compel Arbitration ER19
Volume II of II
11/07/19 Reporter’s Transcript of Proceedings – Motion ER29

for Stay of Order Compelling Arbitration
Pending Appeal
11/07/19 75 Order Granting Motion to Stay Order ER56
Compelling Arbitration Pending Appeal
10/21/19 64 Defendant Home Box Office, Inc.’s Notice Of ER61
Appeal and Representation Statement
06/04/19 30 Defendant Home Box Office, Inc.’s ER78
Supplemental Memorandum Of Points And
Authorities In Opposition To Plaintiffs’ Motion
To Compel Arbitration
05/23/19 28 Order Denying Plaintiffs’ Motion to Remand ER87
and Motion to Compel Arbitration
05/23/19 27 Court’s Tentative Ruling re Plaintiffs’ Motion ER88

to Remand and Motion to Compel Arbitration
05/02/19 22 Home Box Office, Inc.’s Memorandum Of ER102

05/02/19 22-1 Declaration of Stephanie S. Abrutyn in Support ER130

of Home Box Office, Inc.’s Memorandum Of
ii
(35 of 239)
05/02/19 22-2 Declaration of Nathaniel L. Bach in Support of ER136

Home Box Office, Inc.’s Memorandum Of
03/13/19 1-1 Petition to Compel Public Arbitration ER167
N/A District Court Docket Sheet, Optimum ER221

Productions et al v. Home Box Office, et al.
iii
(36 of 239)
1
1 UNITED STATES DISTRICT COURT
2 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
3 HONORABLE GEORGE H. WU, U.S. DISTRICT JUDGE
5 OPTIMUM PRODUCTIONS,
6 Plaintiff,
7 vs. Case No. CV 19-1862-GW
8 HOME BOX OFFICE, et al,
9 Defendants.
_______________________________________/
10
11
12
REPORTER'S TRANSCRIPT OF
13 MOTION TO STAY ORDER COMPELLING ARBITRATION
THURSDAY, NOVEMBER 7, 2019
14 8:30 A.M.
LOS ANGELES, CALIFORNIA
15
16
17
18
19
20
21
________________________________________________________
22
TERRI A. HOURIGAN, CSR NO. 3838, CRR, RPR
23 FEDERAL OFFICIAL COURT REPORTER
350 WEST FIRST STREET, ROOM 4311
24 LOS ANGELES, CALIFORNIA 90012
(213) 894-2849
25

ER029
(37 of 239)
2
1 APPEARANCES OF COUNSEL:
3 FOR THE PLAINTIFF:
4 KINSELLA WEITZMAN ISER KUMP and ALDISERT

BY: HOWARD WEITZMAN
5 ZACHARY TRUMAN ELSEA
JONATHAN P. STEINSAPIR
6 Attorneys at Law
808 Wilshire Boulevard, 3rd Floor
7 Santa Monica, California 90401
jsteinsapir@kwikalaw.com
8
9 FREEDMAN and TAITELMAN LLP

BY: BRYAN J. FREEDMAN
10 Attorney at Law
1901 Avenue of the Stars, Suite 500
11 Los Angeles, California 90067
bfreedman@ftllp.com
12
13 FOR THE DEFENDANT:
14 O MELVENY AND MYERS LLP

BY: Daniel M. Petrocelli
15 Patrick McNally
Attorneys at Law
16 1999 Avenue of the Stars, 8th Floor
Los Angeles, California 90067
17 dpetrocelli@omm.com
pmcnally@oom.com
18
19
20
21
22
23
24
25

ER030
(38 of 239)
3
1 LOS ANGELES, CALIFORNIA; THURSDAY, NOVEMBER 7, 2019
2 8:30 A.M.
3 --oOo--
09:39AM 5
6 THE COURT: Let me call the matter of Optimum
7 Productions versus Home Box Office.
8 Let me have appearances.
9 MR. PETROCELLI: Good morning, Your Honor. Daniel
09:39AM 10 Petrocelli and Patrick McNally for HBO.
11 MR. WEITZMAN: Good morning, Your Honor. Howard
12 Weitzman, Bryan Freedman, Jonathan Steinsapir, Zach Elsea on
13 behalf of Optimum.
14 THE COURT: All right. We're here on the motion for
09:39AM 15 stay.
16 I issued a tentative on this. I presume both sides have
17 seen it?
18 MR. WEITZMAN: Well, I was certainly prepared to do
19 the same thing I did last time, which was submit on your
09:39AM 20 tentative, but I don't agree with your tentative.
21 THE COURT: It doesn't make any difference one way
22 or the other. I'm always happy to hear from you, whether you
23 agree with me or not.
24 MR. WEITZMAN: Well okay, I will accept that as
09:40AM 25 truth.

ER031
(39 of 239)
4
1 I'm going to let the lawyers talk about this.
2 THE COURT: You are not a lawyer?
3 MR. WEITZMAN: Well, kind of.
4 THE COURT: You used to be a lawyer, but now you are
09:40AM 5 above good lawyering?
6 MR. WEITZMAN: You have a good memory.
7 In my opinion, you have taken a typical breach of contract
8 case, no matter how old it is, and you have already indicated
9 the contract didn't expire, and I think with all due respect,
09:40AM 10 you have turned it into something that it doesn't have to be.
11 Just briefly, you mentioned irreparable harm to HBO, who
12 is currently continuing to broadcast the program, so, I have no
13 idea what the irreparable harm would be -- what injury you
14 foresee. I don't think it exists.
09:40AM 15 THE COURT: He will explain it to you in a moment,
16 it is just my suspicion --
17 MR. WEITZMAN: He won't have to.
18 THE COURT: -- but he will do the same thing.
19 MR. WEITZMAN: If I was Mr. Petrocelli, I would
09:41AM 20 submit it on your tentative.
21 THE COURT: He doesn't say much. He always comes in
22 and just kind of glowers. That's why I kind of like you
23 better.
24 MR. PETROCELLI: I won't take it personally.
09:41AM 25 MR. WEITZMAN: By the way, you are not a glowerer.

ER032
(40 of 239)
5
1 THE COURT: He's a gloweree?
2 MR. WEITZMAN: I know Jonathan Steinsapir and
3 Mr. Freedman have something to say. I would just put this
4 question to the Court, and you don't have to answer it,
09:41AM 5 obviously, because you are the Judge.
6 I don't understand how he got from the contract existed
7 and is enforceable, because clearly if HBO chose to
8 rebroadcast --
9 THE COURT: Let me stop you. You are kind of like
09:41AM 10 arguing the merits, and I have already ruled on the merits.
11 The question is not the merits, the question is whether or
12 not I stay pending my ruling on the merits, while they appeal,
13 so, that is the issue.
14 And, you know, looking at the standard normal four-factor
09:41AM 15 element considerations, you know, this is the way I have come
16 down on it.
17 Again, this case is, to my mind, quite unique. I have
18 never seen anything quite like it before, and, of course, that
19 makes for bad law.
09:42AM 20 MR. WEITZMAN: Don't create any more.
21 THE COURT: What?
22 MR. WEITZMAN: Don't create any more bad law.
23 THE COURT: I like to leave a trail of interesting
24 en bancs for the Circuit to consider.
09:42AM 25 MR. WEITZMAN: Let me do this: Let me ask

ER033
(41 of 239)
6
1 Mr. Steinsapir to reply first. I don't think we're going to
2 change your mind.
3 THE COURT: Who knows, anything is possible.
4 MR. WEITZMAN: Well --
09:42AM 5 MR. STEINSAPIR: Your Honor, briefly, I don't think
6 there is really -- as Mr. Weitzman said, what we're going to
7 say, but I think, look, the idea that arbitration is
8 irreparable harm has been rejected by every court to look at
9 that, and it just -- the idea that AT&T -- I just want to state
09:42AM 10 here: This is AT&T, this is a party that has forced thousands
11 of consumers into arbitration every day, okay, now they are --
12 THE COURT: Stop. I thought it was HBO.
13 MR. STEINSAPIR: They're owned by AT&T.
14 THE COURT: I understand that, but I don't attribute
09:43AM 15 actions of --
16 MR. STEINSAPIR: Your Honor, the message I see from
17 this is if AT&T doesn't want to arbitrate, it can delay for
18 years.
19 But when they want to force consumers to arbitrate, they
09:43AM 20 just do it, and, you know, I mean, if you look at the cases,
21 the cases are clear that arbitration is not irreparable injury.
22 All of this hand waving about the First Amendment, they
23 give you no law that says that arbitration will be irreparable
24 injury -- none.
09:43AM 25 As for the likelihood of success on the merits, Your Honor

ER034
(42 of 239)
7
1 has already ruled and the law cannot be more clear from the
2 Supreme Court.
3 Once you find the valid arbitration clause, the only job
4 of a Federal Court is to send it to arbitration.
09:43AM 5 They have no likelihood of success on the merits of this
6 appeal, and with that, I will submit.
7 THE COURT: Well, but the problem is is that their
8 argument is that the arbitration itself adversely affects their
9 First Amendment interests.
09:44AM 10 MR. STEINSAPIR: Where is the evidence, Your Honor?
11 It's their burden.
12 THE COURT: The evidence is clear. In other words,
13 is that they are being forced to go into an arbitration
14 procedure when their supposed fault was broadcasting a
09:44AM 15 documentary. And the documentary -- the provision that is
16 called for in arbitration, is a 27-year-old contract that
17 doesn't have anything to do with anything that is in regards to
18 the documentary in and of itself.
19 And it has to do with an anti-disparagement provision in a
09:44AM 20 contract which involved HBO's broadcasting of a concert by the
21 now deceased, Michael Jackson.
22 MR. STEINSAPIR: And they used footage from that
23 concert in the documentary. They used the same footage, the
24 same music videos that were used in that concert in their
09:45AM 25 documentary.

ER035
(43 of 239)
8
1 And frankly, the idea that this does not relate to the
2 contract is Your Honor prejudging the merits of the
3 arbitration, which is for the arbitrator.
4 And really, the only question is whether this goes to
09:45AM 5 arbitration.
6 THE COURT: Stop. You are saying that -- I mean, I
7 have made my ruling, the ruling was in your favor, but whether
8 or not -- I have doubts as to whether or not I was correct in
9 making that ruling. When I have doubts of that sort, I kind of
09:45AM 10 like to get the Circuit involved so they can let me know if I'm
11 right or wrong.
12 MR. STEINSAPIR: Well, I think, again, irreparable
13 harm, the cases are quite clear, it's their burden to show.
14 What we have heard is a bunch of hand waving from
09:45AM 15 attorneys.
16 We have not seen a single piece of evidence that anyone
17 has been chilled in their speech. No one has been chilled in
18 speech about Michael Jackson. He's still the most reported-on
19 person in the world. He has been dead for ten years.
09:45AM 20 THE COURT: Trump has superseded him in that regard.
21 MR. STEINSAPIR: He might have. He might have.
22 Other than that, where is the evidence of this irreparable
23 harm?
24 THE COURT: He is about to say it.
09:46AM 25 MR. STEINSAPIR: He can say it. But as I understand

ER036
(44 of 239)
9
1 it, attorney argument is not evidence. They gave you no
2 evidence, not a single declaration, nothing.
3 There is not -- you cannot get an injunction or a stay
4 without evidence.
09:46AM 5 And I guess if you just accept this chilled speech, what
6 else can I do?
7 THE COURT: Let me put it this way: Litigation
8 involving what somebody has said raises First Amendment issues,
9 and First Amendment issues are taken very seriously.
09:46AM 10 And if there is an impingement on it because of the fact
11 that now you are going to be sued for what you somewhat said,
12 you know, there is some correlation between those concepts.
13 MR. STEINSAPIR: When there is no dispute that they
14 agreed to arbitrate, the only question for you is whether they
09:46AM 15 agreed to arbitrate.
16 You have held that they have.
17 There is no irreparable harm with just arbitrating and
18 holding them to their agreement.
19 Secondly, as far as litigation itself is a threat to
09:47AM 20 speech, their own cases make very clear that speedy resolution
21 is necessary, so they should want speedy resolution, and if
22 their First Amendment defenses have any merit, they should want
23 them resolved.
24 THE COURT: But the substance of it is not the
09:47AM 25 issue. The issue is the application under the forced

ER037
(45 of 239)
10
1 arbitration in this particular type of context.
2 Your parties sued to compel arbitration. If I do not stay
3 the arbitration, then you have won. There is no appeal of that
4 underlying issue.
09:47AM 5 MR. STEINSAPIR: Can I disagree with you on that
6 one?
7 First of all, as Your Honor recognized last time we were
8 here, these arbitrations take a while. Just picking an
9 arbitrator here --
09:47AM 10 THE COURT: Going into it in and of itself, that is
11 an issue --
12 MR. STEINSAPIR: They're never going to agree to an
13 arbitrator. They are going to make us go back to Superior
14 Court, that is going to take three months right there.
09:48AM 15 THE COURT: I presume both sides are going to act in
16 good faith like I presume all litigants and their attorneys act
17 in good faith.
18 MR. STEINSAPIR: Fair enough, Your Honor.
19 As Mr. Weitzman said, we're not going to convince you, so
09:48AM 20 I will submit.
21 THE COURT: You might have been able to, but you
22 just haven't given me anything that is all that persuasive.
23 MR. FREEDMAN: Your Honor, if I may try for a
24 moment?
09:48AM 25 THE COURT: Sure.

ER038
(46 of 239)
11
1 MR. FREEDMAN: I understand that you are unsure
2 about the underlying issue, and you would like the Ninth
3 Circuit to give you some direction.
4 But, you can't disregard the standards for irreparable
09:48AM 5 harm, and that is what has been done here.
6 In your tentative, you really provide no reasoning at all
7 why HBO would suffer irreparable harm if this arbitration was
8 to move forward.
9 In fact, you know --
09:48AM 10 THE COURT: Let me put it this way: You cited to me
11 to a Ninth Circuit case that indicates that in a typical
12 situation of arbitration, you are right, there is not a
13 presumption of any harm that can come.
14 This is not a typical arbitration situation. This is not
09:49AM 15 a situation where there is some sort of commercial enterprise
16 or something of that sort which doesn't relate to any other
17 more fundamental constitutional rights than some sort of
18 business exchange or something of that sort.
19 This is a little bit unusual, not only because it impacts
09:49AM 20 First Amendment rights, but the way in which this is being
21 sought and arises, is somewhat unique as well.
22 So it's not to my mind a typical arbitration situation.
23 It's a very unusual arbitration situation.
24 MR. FREEDMAN: But how it arises and the substance
09:49AM 25 of whether a 27-year-old contract is enforceable or not, is not

ER039
(47 of 239)
12
1 for Your Honor to decide, and what you are doing --
2 THE COURT: Let me stop you. I'm not saying that
3 it's not enforceable. It's contrary.
4 MR. FREEDMAN: You are using it to determine that
09:49AM 5 there is irreparable harm.
6 THE COURT: No, because the problem is that you guys
7 cited me to a Ninth Circuit case which states in the typical
8 situation you cannot presume that it would create any harm, and
9 I agree with that.
09:50AM 10 I'm just pointing out, this is not a typical situation.
11 MR. FREEDMAN: Right. Except that we think it's a
12 typical situation, because in 1992, Michael Jackson was the
13 biggest star in the world. There was a bargain for contract.
14 That was bargained for -- HBO are big boys, they know what
09:50AM 15 they are doing. They enter into an agreement. They want to
16 air a concert, and in exchange for it, they agreed to terms
17 which include not disparaging -- it's a simple breach of
18 contract case.
19 So for the Court to say, it's atypical doesn't make any
09:50AM 20 sense.
21 THE COURT: I understand your argument. You are
22 saying the same thing that he said and the same thing you said
23 in your papers.
24 MR. FREEDMAN: Can I add one other thing, Your
09:50AM 25 Honor?

ER040
(48 of 239)
13
1 THE COURT: Sure.
2 MR. FREEDMAN: If today, HBO came into court and
3 wanted to argue about the copyright or about other issues
4 relating to the 27-year-old agreement, is that a typical case
09:50AM 5 then, Your Honor?
6 THE COURT: For copyright, because copyright has a
7 certain designated period of time -- yes, I think it would be a
8 situation where that would not necessarily be unique in terms
9 of the copyright situation.
09:51AM 10 But, conversely, however, there are aspects of copyright
11 law that do give rise to sort of very unusual situations; for
12 example, when there were certain extensions that weren't in
13 existence at the time that contracts were entered into and
14 there were certain actions that are taken, those do give rise
09:51AM 15 to certain uncertainties with regards to what happens in that
16 situation.
17 But no, if you are talking about the standard of
18 copyright, no, the standard of copyright has certain set
19 periods in terms of its validity, so to argue that would not
09:51AM 20 make it unusual.
21 However --
22 MR. FREEDMAN: Except if we breached it today, if we
23 breached part of that contract today, they could come into
24 court and say you have breached the contract. And
09:52AM 25 notwithstanding the fact it's 27 years old, or 2700 years old,

ER041
(49 of 239)
14
1 or two years old, wouldn't make it irreparable harm, Your
2 Honor, it wouldn't make it atypical, and thus fall into your
3 category of irreparable harm.
4 And that is the point is that we have given you a case
09:52AM 5 basically showing that just going to arbitration does not
6 amount to irreparable harm.
7 THE COURT: I agree that just going to arbitration
8 and then a typical situation does not give rise to an argument
9 of irreparable harm, I agree with you on that.
09:52AM 10 But this is not the same situation, it's not the typical
11 situation.
12 MR. FREEDMAN: I will close with this, so it took us
13 nine and a half months to get here.
14 THE COURT: That's why it's a little unusual.
09:52AM 15 MR. FREEDMAN: Well, it's only unusual, Your Honor,
16 because you have made suggestions for them to take.
17 They did not file a SLAP motion. Your Honor suggested
18 that they file a SLAP motion. Your Honor had to come back a
19 few times on that.
09:52AM 20 Your Honor found in our favor because the law was in our
21 favor. And now, they want to take it to the Court of Appeal
22 and they want to challenge that.
23 But what Your Honor -- what is irreparable harm is the
24 harm to us in not being able to put forth our case in front of
09:53AM 25 an arbitrator who should be the one that decides the merits of

ER042
(50 of 239)
15
1 the dispute.
2 And what is going to happen, Your Honor, is you are going
3 to make us delay for over 30 months before we even get a
4 selection of an arbitrator, and the Courts have unequivocally
09:53AM 5 held that arbitration is supposed to be a process that is
6 speedy. It's supposed to be a process that gives you your
7 rights and lets you adjudicate them in a timely manner.
8 I submit to you that 30 months is not even remotely close
9 to a timely manner, and that's what finding irreparable harm in
09:53AM 10 a typical case finds us in.
11 THE COURT: But ultimately, you are looking for
12 money, which is not irreparable harm when it is delayed.
13 MR. FREEDMAN: If it's not irreparable harm, then
14 they have shown no irreparable harm to support the motion.
09:54AM 15 THE COURT: No, there is a little bit of a
16 difference in terms of what it's for.
17 Let me hear from the defense counsel. So where is your
18 irreparable harm?
19 MR. PETROCELLI: Your Honor, the irreparable harm
09:54AM 20 exists as a matter of law because the First Amendment interests
21 are threatened, Your Honor. They are threatened in multiple
22 ways.
23 First of all, being subjected to the penalty by exercising
24 our First Amendment speech rights of $100 million arbitration
09:54AM 25 proceeding is one thing.

ER043
(51 of 239)
16
1 But, bear in mind, Your Honor, that the exercise of HBO's
2 First Amendment rights are being chilled every minute when
3 anybody gains to get on HBO and make any comment critical of
4 Michael Jackson, to this day.
09:54AM 5 Under their view of the world they can go in and commence
6 an arbitration.
7 And the Ninth Circuit made clear in the Klein case, and
8 Your Honor cited it, that the loss of First Amendment freedoms
9 for even minimal periods of time unquestionably constitute
10 irreparable injury.
11 This was a case in which there is no indication in the
12 record that the party seeking the stay had put in evidence of
13 irreparable injury.
14 Irreparable injury exists as a matter of law in this case,
09:55AM 15 Your Honor.
16 Secondly, Your Honor, what is -- they are radically
17 overstating the Ninth Circuit's decision in Camping
18 Construction which dealt uniquely with the Norris-LaGuardia Act
19 and its severe restrictions on a Court's ability to issue
20 injunctions in labor disputes.
21 The Court goes out of his way in that case to explain
22 unique features of labor law and the role arbitrations play in
23 labor law, and none of those apply here. There was no First
24 Amendment issue there.
09:55AM 25 So there is no sweeping rule announcing Camping

ER044
(52 of 239)
17
1 Construction that would apply to every case.
2 This is a First Amendment case, and clearly the rule of
3 client applies.
4 In addition, Your Honor, I will say something else that is
09:56AM 5 unique about this case. In most cases when there is a request
6 for a stay pending appeal of an order compelling arbitration,
7 the ultimate question to be decided by the Ninth Circuit will
8 decide whether the matter proceeds in arbitration or in court.
9 We have a different situation here because principal
09:56AM 10 issues that will be litigated the appeal, if the Ninth Circuit
11 were to agree with our position, the case would not go forward
12 at all.
13 It's not just the matter that it won't go forward in
14 arbitration, it might not go forward at all.
09:56AM 15 That is potential outcome here, because if the Court
16 agrees with our analysis that you can't just look at the
17 arbitration provision alone from the whole context of the
18 agreement, and if the Court agrees, as we cited the case from
19 the Northern District of California with that analysis, that
09:57AM 20 when a contract is over, and it's been over, not for four days,
21 or six months, but for 27 years, it's over, and you can't
22 invoke an arbitration provision in that contract.
23 So this is a situation where it's not like we're going to
24 be back fighting in court or in arbitration.
09:57AM 25 Depending on the outcome of this appeal, the case may be

ER045
(53 of 239)
18
1 over once and for all.
2 Now, granted there are potential outcomes, but that is
3 certainly a very clear path.
4 So, I will close by saying, I do agree with Mr. Weitzman
09:57AM 5 that I would submit on the tentative.
6 And my apologies for being perceived as glowering, no
7 intention.
8 THE COURT: Yes.
9 MR. FREEDMAN: One final point, Your Honor.
09:57AM 10 THE COURT: Let me ask -- point out one little
11 thing. The Ninth Circuit might not grant the appeal, in which
12 case, you know, okay, then it's over in front of me.
13 But it could, and if it does, you know, what do you think
14 it's going to do?
09:58AM 15 MR. WEITZMAN: It's not going to rule that the
16 contract expired, that I can tell you.
17 THE COURT: Who knows what it's going to do. I have
18 long since given up predicting what the Circuit will do on any
19 particular issue.
09:58AM 20 MR. FREEDMAN: Let's be clear about one point, I
21 want to correct what Mr. Petrocelli said.
22 The contract is not over. The contract is not over.
23 The contract exists and because a contract is dated
24 27 years ago, does not terminate the contract.
09:58AM 25 The contract continues to this day and the contract is

ER046
(54 of 239)
19
1 still in force to this day.
2 This is not -- we're not talking about an old contract
3 that doesn't exist anymore.
4 We're talking about a contract that still exists. If we
09:58AM 5 were to take away those rights --
6 THE COURT: Let me stop you. You guys are arguing
7 the merits. I'm not concerned with the merits at this point in
8 time.
9 I'm concerned with the issue in regards to what I'm
09:59AM 10 supposed to consider if I decide to issue or not issue a stay.
11 So I understand his argument, it was sort of an
12 interesting argument, I didn't interrupt, but I will say to you
13 what I probably should have said to him, that is nice but I'm
14 not the Circuit Court at this point in time.
09:59AM 15 I'm just considering whether or not there is a basis to
16 grant the motion for a stay.
17 MR. FREEDMAN: If that is the case, I would ask you
18 not to take that into consideration when you are looking at
19 this again on irreparable harm.
09:59AM 20 THE COURT: No. Again, he's trying to argue
21 something, but the concern that his fundamental argument which
22 is the one I do agree with him, is that the interplay or the
23 interjection of a serious First Amendment issue, you know, puts
24 it in a potential irreparable harm situation, because the
09:59AM 25 violation of First Amendment rights automatically gives rise to

ER047
(55 of 239)
20
1 irreparable harm if it's found.
2 MR. STEINSAPIR: Could I just say one thing?
3 But why is the First Amendment more important than the
4 Seventh Amendment?
10:00AM 5 Every single arbitration involves -- hold on -- every
6 single arbitration involves the denial of a right to a jury
7 trial under the Seventh Amendment.
8 So, I mean why isn't that just as important, and the Klein
9 case --
10:00AM 10 THE COURT: Let me stop you. I can tell you the
11 obvious reason, the obvious reason is that when the parties
12 waive their right to a jury trial to arbitration, you haven't
13 impinged upon their constitutional right.
14 MR. STEINSAPIR: Well, therein lies the answer.
10:00AM 15 They waived their right to a court forum.
16 The law was crystal clear that the arbitration clause is
17 severable from the remainder of the contract, your only job was
18 to enforce the arbitration clause, and you did.
19 They have not shown a single question on the merits that
10:00AM 20 you are wrong.
21 They say nothing, and the reason why we keep talking about
22 the expiration is because that was their only argument.
23 THE COURT: Let me stop you, counsel. Let me stop
24 you.
10:00AM 25 Again, I'm not here just to enforce contracts, I'm here to

ER048
(56 of 239)
21
1 do justice and to follow the law, as I see it.
2 I followed the law insofar as I agreed with you in terms
3 of the arbitration.
4 However, in terms of whether or not to grant the motion
10:01AM 5 for a stay, I'm also following the law, as I view it.
6 So, I think we have all said enough, and I don't want to
7 bore you guys anymore with repeating myself.
8 I will make my tentative my final.
9 Thank you very much, gentlemen, for an interesting
10:01AM 10 argument, I can depend upon you for that always.
11 MR. PETROCELLI: Thank you, Your Honor.
12 MR. WEITZMAN: Thank you, Your Honor.
13 (The proceedings concluded at 10:01 a.m.)
14 * * *
15
16
17
18
19
20
21
22
23
24
25

ER049
(57 of 239)
22
1 CERTIFICATE OF OFFICIAL REPORTER
3 COUNTY OF LOS ANGELES )

)
4 STATE OF CALIFORNIA )
6 I, TERRI A. HOURIGAN, Federal Official Realtime
7 Court Reporter, in and for the United States District Court for
8 the Central District of California, do hereby certify that
9 pursuant to Section 753, Title 28, United States Code that the
10 foregoing is a true and correct transcript of the
11 stenographically reported proceedings held in the
12 above-entitled matter and that the transcript page format is in
13 conformance with the regulations of the judicial conference of
14 the United States.
15
16 Date: November 10, 2019
17
18
19 /s/ TERRI A. HOURIGAN
20 TERRI A. HOURIGAN, CSR NO. 3838, CCRR

Federal Official Court Reporter
21
22
23
24
25

ER050
(58 of 239)
1
$ A APPEARANCES [1] - bancs [1] - 5:24 Central [1] - 22:8

2:1 bargain [1] - 12:14 certain [5] - 13:8,
$100 [1] - 15:25 a.m [1] - 21:14 appearances [1] - bargained [1] - 12:15 13:13, 13:15, 13:16,
A.M [2] - 1:14, 3:2 3:8 basis [1] - 19:16 13:19
/ ability [1] - 16:20 application [1] - 10:1 bear [1] - 16:2 certainly [2] - 3:18,
able [2] - 10:22, applies [1] - 17:4 behalf [1] - 3:13 18:4
/s [1] - 22:19 14:25 apply [2] - 16:24, better [1] - 4:23 CERTIFICATE [1] -
above-entitled [1] - 17:2 between [1] - 9:13 22:1
1 22:12 arbitrate [4] - 6:18, bfreedman@ftllp. certify [1] - 22:8
accept [2] - 3:24, 9:6 6:20, 9:15, 9:16 com [1] - 2:11 challenge [1] - 14:23
10 [1] - 22:16 act [2] - 10:16, 10:17 arbitrating [1] - 9:18 big [1] - 12:15 change [1] - 6:2
10:01 [1] - 21:14 Act [1] - 16:19 ARBITRATION [1] - biggest [1] - 12:14 chilled [4] - 8:18,
19-1862-GW [1] - 1:7 actions [2] - 6:16, 1:13 bit [2] - 11:20, 15:16 9:6, 16:3
1901 [1] - 2:10 13:15 arbitration [36] - 6:7, bore [1] - 21:8 chose [1] - 5:7
1992 [1] - 12:13 add [1] - 12:25 6:12, 6:22, 6:24, 7:4, Boulevard [1] - 2:6 Circuit [10] - 8:11,
1999 [1] - 2:16 addition [1] - 17:5 7:5, 7:9, 7:14, 7:17, BOX [1] - 1:8 11:4, 11:12, 12:8,
adjudicate [1] - 15:8 8:4, 8:6, 10:2, 10:3, Box [1] - 3:7 16:8, 17:8, 17:11,
2 adversely [1] - 7:9 10:4, 11:8, 11:13, boys [1] - 12:15 18:12, 18:19, 19:15
affects [1] - 7:9 11:15, 11:23, 11:24, breach [2] - 4:7, circuit [1] - 5:24
2019 [3] - 1:13, 3:1, 14:6, 14:8, 15:6, Circuit's [1] - 16:18
ago [1] - 18:25 12:18
22:16 15:25, 16:7, 17:7, cited [4] - 11:11,
agree [9] - 3:20, breached [3] - 13:23,
213 [1] - 1:24 17:9, 17:15, 17:18, 12:8, 16:9, 17:19
3:23, 10:13, 12:10, 13:24, 13:25
27 [3] - 14:1, 17:22, 17:23, 17:25, 20:6, clause [3] - 7:4,
14:8, 14:10, 17:12, briefly [2] - 4:11, 6:5
18:25 20:7, 20:13, 20:17, 20:17, 20:19
18:5, 19:23 broadcast [1] - 4:12
27-year-old [3] - 20:19, 21:4 clear [9] - 6:22, 7:2,
agreed [4] - 9:15, broadcasting [2] -
7:17, 12:1, 13:5 arbitrations [2] - 7:13, 8:14, 9:21, 16:8,
9:16, 12:17, 21:3 7:15, 7:21
2700 [1] - 14:1 10:9, 16:23 18:4, 18:21, 20:17
agreement [4] - 9:19, Bryan [1] - 3:12
28 [1] - 22:9 arbitrator [5] - 8:4, clearly [2] - 5:7, 17:3
12:16, 13:5, 17:19 BRYAN [1] - 2:9
agrees [2] - 17:17, 10:10, 10:14, 15:1, client [1] - 17:4
bunch [1] - 8:15
3 17:19 15:5
burden [2] - 7:12, close [3] - 14:13,
air [1] - 12:17 argue [3] - 13:4, 15:9, 18:5
30 [2] - 15:4, 15:9 8:14
al [1] - 1:8 13:20, 19:21 Code [1] - 22:9
350 [1] - 1:23 business [1] - 11:19
ALDISERT [1] - 2:4 arguing [2] - 5:10, commence [1] - 16:6
3838 [2] - 1:22, 22:20 BY [3] - 2:4, 2:9, 2:14
alone [1] - 17:18 19:7 comment [1] - 16:4
3rd [1] - 2:6 argument [9] - 7:9,
Amendment [17] - commercial [1] -
9:2, 12:22, 14:9, C
6:23, 7:10, 9:9, 9:10, 11:16
4 9:23, 11:21, 15:21, 19:12, 19:13, 19:22, CALIFORNIA [5] - compel [1] - 10:3
15:25, 16:3, 16:9, 20:23, 21:11 1:2, 1:14, 1:24, 3:1, compelling [1] - 17:7
4311 [1] - 1:23 arises [2] - 11:22,
16:25, 17:3, 19:24, 22:4 COMPELLING [1] -
20:1, 20:4, 20:5, 20:8 11:25 California [5] - 2:7, 1:13
5 amount [1] - 14:7 aspects [1] - 13:11 2:11, 2:16, 17:20, concepts [1] - 9:13
analysis [2] - 17:17, AT&T [4] - 6:9, 6:11, 22:8 concern [1] - 19:22
500 [1] - 2:10
17:20 6:14, 6:18 Camp [2] - 16:18, concerned [2] - 19:8,
AND [1] - 2:14 attorney [1] - 9:2 17:1 19:10
7 Attorney [1] - 2:10 cannot [3] - 7:2, 9:4, concert [4] - 7:21,
ANGELES [4] - 1:14,
1:24, 3:1, 22:3 attorneys [2] - 8:16, 12:9 7:24, 7:25, 12:17
7 [2] - 1:13, 3:1
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753 [1] - 22:9
2:16 Attorneys [2] - 2:6, 11:12, 12:8, 12:19, 21:14
announcing [1] - 2:15 13:5, 14:5, 14:25, conference [1] -
8 attribute [1] - 6:15
17:1 15:11, 16:8, 16:12, 22:13
808 [1] - 2:6 answer [2] - 5:4, atypical [2] - 12:20, 16:15, 16:22, 17:2, conformance [1] -
894-2849 [1] - 1:24 20:15 14:3 17:3, 17:6, 17:12, 22:13
8:30 [2] - 1:14, 3:2 anti [1] - 7:20 automatically [1] - 17:19, 18:1, 18:13, consider [2] - 5:24,
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[1] - 7:20
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2:16 cases [5] - 6:21, 19:19
9 apologies [1] - 18:7
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90012 [1] - 1:24 appeal [7] - 5:12, B category [1] - 14:4 5:15
90067 [2] - 2:11, 2:16 7:7, 10:4, 17:7, 17:11, CCRR [1] - 22:20 considering [1] -
bad [2] - 5:19, 5:22 CENTRAL [1] - 1:2
90401 [1] - 2:7 18:1, 18:12 19:16

ER051
(59 of 239)
2
constitute [1] - 16:10 create [3] - 5:20, E file [2] - 14:18, 14:19 guess [1] - 9:6
constitutional [2] - 5:22, 12:9 final [2] - 18:10, 21:9 guys [3] - 12:7, 19:7,
11:18, 20:14 critical [1] - 16:4 element [1] - 5:15 First [15] - 6:23, 21:8
Construction [2] - CRR [1] - 1:22 ELSEA [1] - 2:5 7:10, 9:9, 9:10, 9:23,
16:19, 17:2 crystal [1] - 20:17 Elsea [1] - 3:12 11:21, 15:21, 15:25, H
consumers [2] - CSR [2] - 1:22, 22:20 en [1] - 5:24 16:3, 16:9, 16:24,
6:12, 6:20 CV [1] - 1:7 enforce [2] - 20:19, 17:3, 19:24, 20:1, half [1] - 14:14
context [2] - 10:2, 21:1 20:4 hand [2] - 6:23, 8:15
17:18 D enforceable [3] - 5:7, first [3] - 6:1, 10:8, happy [1] - 3:22
continues [1] - 19:1 12:1, 12:4 15:24 harm [26] - 4:11,
continuing [1] - 4:12 Daniel [2] - 2:14, 3:9 enter [1] - 12:16 FIRST [1] - 1:23 4:13, 6:8, 8:14, 8:24,
contract [24] - 4:7, Date [1] - 22:16 entered [1] - 13:14 Floor [2] - 2:6, 2:16 9:18, 11:6, 11:8,
4:9, 5:6, 7:17, 7:21, dated [1] - 18:24 enterprise [1] - follow [1] - 21:2 11:14, 12:6, 12:9,
8:3, 12:1, 12:14, days [1] - 17:21 11:16 followed [1] - 21:3 14:2, 14:4, 14:7,
12:19, 13:24, 13:25, dead [1] - 8:20 entitled [1] - 22:12 following [1] - 21:6 14:10, 14:24, 14:25,
17:21, 17:23, 18:17, dealt [1] - 16:19 et [1] - 1:8 footage [2] - 7:23, 15:10, 15:13, 15:14,
18:23, 18:24, 18:25, deceased [1] - 7:22 evidence [8] - 7:11, 7:24 15:15, 15:19, 15:20,
19:1, 19:3, 19:5, decide [3] - 12:2, 7:13, 8:17, 8:23, 9:2, FOR [2] - 2:3, 2:13 19:20, 19:25, 20:2
20:18 17:9, 19:11 9:3, 9:5, 16:13 force [2] - 6:20, 19:2 HBO [8] - 3:10, 4:11,
contracts [2] - 13:14, decided [1] - 17:8 example [1] - 13:13 forced [3] - 6:11, 5:7, 6:13, 11:8, 12:15,
21:1 decides [1] - 15:1 except [2] - 12:12, 7:14, 10:1 13:3, 16:4
contrary [1] - 12:4 decision [1] - 16:18 13:23 foregoing [1] - 22:10 HBO's [2] - 7:21,
conversely [1] - declaration [1] - 9:3 exchange [2] - foresee [1] - 4:14 16:2
13:11 DEFENDANT [1] - 11:19, 12:17 format [1] - 22:12 hear [2] - 3:22, 15:18
convince [1] - 10:20 2:13 exercise [1] - 16:2 forth [1] - 14:25 heard [1] - 8:15
copyright [7] - 13:4, Defendants [1] - 1:9 exercising [1] - forum [1] - 20:16 held [3] - 9:17, 15:6,
13:7, 13:10, 13:11, defense [1] - 15:18 15:24 forward [4] - 11:9, 22:11
13:19 defenses [1] - 9:23 exist [1] - 19:4 17:12, 17:14, 17:15 hereby [1] - 22:8
correct [3] - 8:9, delay [2] - 6:18, 15:4 existed [1] - 5:6 four [2] - 5:14, 17:21 hold [1] - 20:6
18:22, 22:10 delayed [1] - 15:13 existence [1] - 13:14 four-factor [1] - 5:14 holding [1] - 9:19
correlation [1] - 9:13 denial [1] - 20:7 exists [5] - 4:14, frankly [1] - 8:2 Home [1] - 3:7
counsel [2] - 15:18, designated [1] - 13:8 15:21, 16:15, 18:24, Freedman [2] - 3:12, HOME [1] - 1:8
20:24 determine [1] - 12:5 19:5 5:3 Honor [30] - 3:9,
COUNSEL [1] - 2:1 difference [2] - 3:21, expiration [1] - 20:23 FREEDMAN [16] - 3:11, 6:5, 6:17, 7:1,
COUNTY [1] - 22:3 15:16 expire [1] - 4:9 2:9, 2:9, 10:24, 11:2, 7:11, 8:3, 10:8, 10:19,
course [1] - 5:18 different [1] - 17:10 expired [1] - 18:17 11:25, 12:5, 12:12, 10:24, 12:2, 13:1,
COURT [45] - 1:1, direction [1] - 11:4 12:25, 13:3, 13:23, 13:6, 14:3, 14:16,
explain [2] - 4:15,
1:23, 3:6, 3:14, 3:21, 14:13, 14:16, 15:14, 14:18, 14:19, 14:21,
disagree [1] - 10:6 16:22
4:2, 4:4, 4:15, 4:18, 18:10, 18:21, 19:18 14:24, 15:3, 15:20,
disparagement [1] - extensions [1] -
4:21, 5:1, 5:9, 5:21, freedoms [1] - 16:9 15:22, 16:2, 16:9,
7:20 13:13
5:23, 6:3, 6:13, 6:15, front [2] - 14:25, 16:16, 16:17, 17:5,
disparaging [1] -
7:8, 7:13, 8:7, 8:21, 18:13 18:10, 21:12, 21:13
8:25, 9:8, 9:25, 10:11,
12:18 F HONORABLE [1] -
dispute [2] - 9:14, fundamental [2] -
10:16, 10:22, 11:1, fact [3] - 9:11, 11:10, 11:18, 19:22 1:3
15:2
11:11, 12:3, 12:7, 14:1 HOURIGAN [4] -
disputes [1] - 16:21
12:22, 13:2, 13:7, 1:22, 22:6, 22:19,
disregard [1] - 11:5 factor [1] - 5:14 G 22:20
14:8, 14:15, 15:12, District [3] - 17:20, fair [1] - 10:19
15:16, 18:9, 18:11, faith [2] - 10:17, gains [1] - 16:4 HOWARD [1] - 2:4
22:7, 22:8
18:18, 19:7, 19:21, 10:18 gentlemen [1] - Howard [1] - 3:11
DISTRICT [3] - 1:1,
20:11, 20:24 fall [1] - 14:3 21:10
1:2, 1:3
Court [13] - 5:4, 7:3,
DIVISION [1] - 1:2 far [1] - 9:20 GEORGE [1] - 1:3 I
7:5, 10:15, 12:20, fault [1] - 7:15 given [3] - 10:23,
documentary [5] -
14:22, 16:22, 17:16, 14:5, 18:19 idea [4] - 4:13, 6:7,
7:16, 7:19, 7:24, 8:1 favor [3] - 8:8, 14:21,
17:19, 19:15, 22:7, gloweree [1] - 5:1 6:9, 8:2
done [1] - 11:6 14:22
22:20 glowerer [1] - 4:25 impacts [1] - 11:20
doubts [2] - 8:9, 8:10 features [1] - 16:23
court [6] - 6:8, 13:3, glowering [1] - 18:7 impinged [1] - 20:14
down [1] - 5:16 FEDERAL [1] - 1:23
13:25, 17:9, 17:25, glowers [1] - 4:22 impingement [1] -
dpetrocelli@omm. Federal [3] - 7:5,
20:16 9:11
com [1] - 2:17 22:6, 22:20 grant [3] - 18:12,
Court's [1] - 16:20 important [2] - 20:4,
due [1] - 4:9 few [1] - 14:20 19:17, 21:5
Courts [1] - 15:5 20:9
fighting [1] - 17:25 granted [1] - 18:3

ER052
(60 of 239)
3
include [1] - 12:18 Judge [1] - 5:5 mean [3] - 6:21, 8:7, nine [1] - 14:14 18:20
indicated [1] - 4:8 judicial [1] - 22:13 20:9 Ninth [8] - 11:3, parties [2] - 10:3,
indicates [1] - 11:12 jury [2] - 20:7, 20:13 MELVENY [1] - 2:14 11:12, 12:8, 16:8, 20:12
indication [1] - 16:12 justice [1] - 21:2 memory [1] - 4:6 16:18, 17:8, 17:11, party [2] - 6:11,
injunction [1] - 9:4 mentioned [1] - 4:11 18:12 16:13
injunctions [1] - K merit [1] - 9:23 NO [2] - 1:22, 22:20 path [1] - 18:4
16:21 merits [11] - 5:10, none [2] - 6:25, Patrick [2] - 2:15,
injury [6] - 4:13, keep [1] - 20:22 5:11, 5:12, 7:1, 7:6, 16:24 3:10
6:22, 6:25, 16:11, kind [5] - 4:3, 4:22, 8:3, 15:1, 19:8, 20:20 normal [1] - 5:14 penalty [1] - 15:24
16:14, 16:15 5:9, 8:10 message [1] - 6:17 Norris [1] - 16:19 pending [2] - 5:12,
insofar [1] - 21:3 KINSELLA [1] - 2:4 Michael [4] - 7:22, Northern [1] - 17:20 17:7
intention [1] - 18:8 Kline [2] - 16:8, 8:19, 12:13, 16:5 nothing [2] - 9:3, perceived [1] - 18:7
interesting [3] - 20:10 might [5] - 8:22, 20:22 period [1] - 13:8
5:23, 19:13, 21:10 knows [2] - 6:3, 10:22, 17:15, 18:12 notwithstanding [1] periods [2] - 13:20,
interests [2] - 7:10, 18:18 million [1] - 15:25 - 14:1 16:10
15:21 KUMP [1] - 2:4 mind [4] - 5:17, 6:2, November [1] - person [1] - 8:20
interjection [1] - 11:23, 16:2 22:16 personally [1] - 4:24
19:24 L minimal [1] - 16:10 NOVEMBER [2] - persuasive [1] -
interplay [1] - 19:23 minute [1] - 16:3 1:13, 3:1 10:23
interrupt [1] - 19:13 labor [3] - 16:21, moment [2] - 4:15, Petrocelli [4] - 2:14,
16:23, 16:24
invoke [1] - 17:23 10:25 O 3:10, 4:19, 18:22
involved [2] - 7:21, Laguardia [1] - 16:19 money [1] - 15:13 PETROCELLI [4] -
8:11 last [2] - 3:19, 10:8 Monica [1] - 2:7 obvious [2] - 20:12 3:9, 4:24, 15:20,
involves [2] - 20:6, law [14] - 5:19, 5:22, months [5] - 10:15, obviously [1] - 5:5 21:12
20:7 6:24, 7:2, 13:12, 14:14, 15:4, 15:9, OF [6] - 1:2, 1:12, picking [1] - 10:9
involving [1] - 9:9 14:21, 15:21, 16:15, 17:22 2:1, 22:1, 22:3, 22:4 piece [1] - 8:17
irreparable [28] - 16:23, 16:24, 20:17, morning [2] - 3:9, Office [1] - 3:7 Plaintiff [1] - 1:6
4:11, 4:13, 6:8, 6:22, 21:2, 21:3, 21:6 3:11 OFFICE [1] - 1:8 PLAINTIFF [1] - 2:3
6:24, 8:13, 8:23, 9:18, Law [3] - 2:6, 2:10, most [2] - 8:19, 17:6 Official [2] - 22:6, play [1] - 16:23
11:5, 11:8, 12:6, 14:2, 2:15 motion [6] - 3:14, 22:20 pmcnally@oom.
14:4, 14:7, 14:10, lawyer [2] - 4:2, 4:4 14:18, 14:19, 15:15, OFFICIAL [2] - 1:23, com [1] - 2:17
14:24, 15:10, 15:13, lawyering [1] - 4:5 19:17, 21:5 22:1 point [6] - 14:5,
15:14, 15:15, 15:19, lawyers [1] - 4:1 MOTION [1] - 1:13 old [5] - 4:8, 14:1, 18:10, 18:11, 18:21,
15:20, 16:11, 16:14, leave [1] - 5:23 move [1] - 11:9 14:2, 19:3 19:8, 19:15
16:15, 19:20, 19:25, lies [1] - 20:15 MR [46] - 3:11, 3:18, once [2] - 7:4, 18:2 pointing [1] - 12:11
20:2 likelihood [2] - 7:1, 3:24, 4:3, 4:6, 4:17, one [11] - 3:21, 8:18, position [1] - 17:12
ISER [1] - 2:4 7:6 4:19, 4:24, 4:25, 5:2, 10:7, 12:25, 15:1, possible [1] - 6:3
issue [13] - 5:13, litigants [1] - 10:17 5:20, 5:22, 5:25, 6:4, 16:1, 18:10, 18:11, potential [3] - 17:16,
10:1, 10:5, 10:12, litigated [1] - 17:11 6:5, 6:14, 6:17, 7:11, 18:21, 19:23, 20:3 18:3, 19:25
11:3, 16:20, 16:25, litigation [2] - 9:8, 7:23, 8:13, 8:22, 9:1, oOo [1] - 3:3 predicting [1] -
18:20, 19:10, 19:11, 9:20 9:14, 10:6, 10:13, opinion [1] - 4:7 18:19
19:24 LLP [2] - 2:9, 2:14 10:19, 10:24, 11:2, OPTIMUM [1] - 1:5 prejudging [1] - 8:3
issued [1] - 3:16 look [4] - 6:7, 6:8, 11:25, 12:5, 12:12, Optimum [2] - 3:6, prepared [1] - 3:18
issues [4] - 9:9, 9:10, 6:21, 17:17 12:25, 13:3, 13:23, 3:13 presume [4] - 3:16,
13:4, 17:11 looking [3] - 5:14, 14:13, 14:16, 15:14, order [1] - 17:7 10:16, 10:17, 12:9
itself [4] - 7:9, 7:19, 15:12, 19:19 15:20, 18:10, 18:16, ORDER [1] - 1:13 presumption [1] -
9:20, 10:11 LOS [4] - 1:14, 1:24, 18:21, 19:18, 20:3, outcome [2] - 17:16, 11:14
3:1, 22:3 20:15, 21:12, 21:13 18:1 principal [1] - 17:10
J Los [2] - 2:11, 2:16 multiple [1] - 15:22 outcomes [1] - 18:3 problem [2] - 7:8,
loss [1] - 16:9 music [1] - 7:25 overstating [1] - 12:7
Jackson [4] - 7:22, MYERS [1] - 2:14 16:18 procedure [1] - 7:15
8:19, 12:13, 16:5 M own [1] - 9:21 proceeding [1] -
job [2] - 7:4, 20:18 N owned [1] - 6:14 16:1
JONATHAN [1] - 2:5 manner [2] - 15:8,
proceedings [2] -
Jonathan [2] - 3:12, 15:10 necessarily [1] - P 21:14, 22:11
5:2 matter [7] - 3:6, 4:8, 13:9 proceeds [1] - 17:9
jsteinsapir@ 15:21, 16:15, 17:9, necessary [1] - 9:22 page [1] - 22:12 process [2] - 15:6,
kwikalaw.com [1] - 17:14, 22:12 never [2] - 5:18, papers [1] - 12:24 15:7
2:7 McNally [2] - 2:15, 10:13 part [1] - 13:24 Productions [1] - 3:7
JUDGE [1] - 1:3 3:10 nice [1] - 19:14 particular [2] - 10:2, PRODUCTIONS [1] -

ER053
(61 of 239)
4
1:5 16:3, 19:6, 20:1 standard [3] - 5:14, terminate [1] - 18:25 ultimately [1] - 15:12
program [1] - 4:12 rise [4] - 13:12, 13:18, 13:19 terms [6] - 12:17, uncertainties [1] -
provide [1] - 11:7 13:15, 14:9, 20:1 standards [1] - 11:5 13:9, 13:20, 15:17, 13:16
provision [4] - 7:16, role [1] - 16:23 star [1] - 12:14 21:3, 21:5 under [3] - 10:1,
7:20, 17:18, 17:23 ROOM [1] - 1:23 Stars [2] - 2:10, 2:16 TERRI [4] - 1:22, 16:6, 20:8
pursuant [1] - 22:9 RPR [1] - 1:22 STATE [1] - 22:4 22:6, 22:19, 22:20 underlying [2] -
put [5] - 5:3, 9:8, rule [3] - 17:1, 17:3, state [1] - 6:9 THE [45] - 2:3, 2:13, 10:5, 11:3
11:11, 14:25, 16:13 18:16 states [1] - 12:8 3:6, 3:14, 3:21, 4:2, unequivocally [1] -
puts [1] - 19:24 ruled [2] - 5:10, 7:2 STATES [1] - 1:1 4:4, 4:15, 4:18, 4:21, 15:5
ruling [4] - 5:12, 8:8, States [3] - 22:7, 5:1, 5:9, 5:21, 5:23, unique [5] - 5:17,
Q 8:10 22:9, 22:14 6:3, 6:13, 6:15, 7:8, 11:22, 13:9, 16:23,
stay [9] - 3:15, 5:12, 7:13, 8:7, 8:21, 8:25, 17:6
quite [3] - 5:17, 5:18, S 9:4, 10:3, 16:13, 17:7, 9:8, 9:25, 10:11, uniquely [1] - 16:19
8:14 19:11, 19:17, 21:6 10:16, 10:22, 11:1, United [3] - 22:7,
Santa [1] - 2:7 STAY [1] - 1:13 11:11, 12:3, 12:7, 22:9, 22:14
R secondly [2] - 9:20, STEINSAPIR [15] - 12:22, 13:2, 13:7, UNITED [1] - 1:1
16:17 2:5, 6:5, 6:14, 6:17, 14:8, 14:15, 15:12, unquestionably [1] -
radically [1] - 16:17 Section [1] - 22:9 7:11, 7:23, 8:13, 8:22, 15:16, 18:9, 18:11, 16:10
raises [1] - 9:9 see [2] - 6:17, 21:2 9:1, 9:14, 10:6, 10:13, 18:18, 19:7, 19:21, unsure [1] - 11:2
really [3] - 6:6, 8:5, seeking [1] - 16:13 10:19, 20:3, 20:15 20:11, 20:24 unusual [6] - 11:20,
11:7 selection [1] - 15:5 Steinsapir [3] - 3:12, therein [1] - 20:15 11:24, 13:12, 13:21,
Realtime [1] - 22:6 send [1] - 7:5 5:2, 6:1 thousands [1] - 6:11 14:15, 14:16
reason [3] - 20:12, sense [1] - 12:21 stenographically [1] threat [1] - 9:20 up [1] - 18:19
20:22 serious [1] - 19:24 - 22:11 threatened [2] -
reasoning [1] - 11:7 15:22
seriously [1] - 9:10 still [3] - 8:19, 19:2, V
rebroadcast [1] - 5:8 set [1] - 13:19 19:5 three [1] - 10:15
recognized [1] - 10:8 Seventh [2] - 20:5, stop [7] - 5:9, 6:13, THURSDAY [2] - valid [1] - 7:4
record [1] - 16:13 20:8 8:7, 12:3, 19:7, 20:24 1:13, 3:1 validity [1] - 13:20
regard [1] - 8:21 severable [1] - 20:18 STREET [1] - 1:23 timely [2] - 15:8, versus [1] - 3:7
regards [3] - 7:18, severe [1] - 16:20 subjected [1] - 15:24 15:10 videos [1] - 7:25
13:16, 19:10 show [1] - 8:14 submit [6] - 3:19, Title [1] - 22:9 view [2] - 16:6, 21:6
regulations [1] - showing [1] - 14:6 4:20, 7:7, 10:21, 15:9, TO [1] - 1:13 violation [1] - 20:1
22:13 shown [2] - 15:15, 18:6 today [3] - 13:3, vs [1] - 1:7
rejected [1] - 6:8 20:20 substance [2] - 9:25, 13:23, 13:24
relate [2] - 8:2, 11:17 sides [2] - 3:16, 11:25 took [1] - 14:13 W
relating [1] - 13:5 10:16 success [2] - 7:1, 7:6 trail [1] - 5:23
remainder [1] - simple [1] - 12:18 sued [2] - 9:12, 10:3 TRANSCRIPT [1] - waive [1] - 20:13
20:18 single [5] - 8:17, 9:3, suffer [1] - 11:8 1:12 waived [1] - 20:16
remotely [1] - 15:9 20:6, 20:7, 20:20 suggested [1] - transcript [2] - waving [2] - 6:23,
repeating [1] - 21:8 situation [17] - 14:18 22:10, 22:12 8:15
reply [1] - 6:1 11:13, 11:15, 11:16, suggestions [1] - trial [2] - 20:8, 20:13 ways [1] - 15:23
reported [2] - 8:19, 11:23, 11:24, 12:9, 14:17 true [1] - 22:10 WEITZMAN [17] -
22:11 12:11, 12:13, 13:9, Suite [1] - 2:10 TRUMAN [1] - 2:5 2:4, 2:4, 3:11, 3:18,
reported-on [1] - 13:10, 13:17, 14:9, Superior [1] - 10:14 trump [1] - 8:21 3:24, 4:3, 4:6, 4:17,
8:19 14:11, 14:12, 17:10, superseded [1] - truth [1] - 3:25 4:19, 4:25, 5:2, 5:20,
Reporter [2] - 22:7, 17:24, 19:25 8:21 try [1] - 10:24 5:22, 5:25, 6:4, 18:16,
22:20 situations [1] - 13:12 support [1] - 15:15 trying [1] - 19:21 21:13
REPORTER [2] - six [1] - 17:22 supposed [4] - 7:15, turned [1] - 4:10 Weitzman [4] - 3:12,
1:23, 22:1 SLAP [2] - 14:18, 15:6, 15:7, 19:11 two [1] - 14:2 6:6, 10:20, 18:5
REPORTER'S [1] - 14:19 Supreme [1] - 7:3 type [1] - 10:2 WEST [1] - 1:23
1:12 somewhat [2] - 9:12, suspicion [1] - 4:16 typical [11] - 4:7, WESTERN [1] - 1:2
request [1] - 17:6 11:22 sweeping [1] - 17:1 11:12, 11:15, 11:23, whole [1] - 17:18
resolution [2] - 9:21, sort [7] - 8:10, 11:16, 12:8, 12:11, 12:13, Wilshire [1] - 2:6
9:22 11:17, 11:18, 11:19, 13:5, 14:9, 14:11, won [1] - 10:4
T words [1] - 7:13
resolved [1] - 9:24 13:12, 19:12 15:11
respect [1] - 4:9 sought [1] - 11:22 TAITELMAN [1] - 2:9 world [3] - 8:20,
restrictions [1] - speech [5] - 8:18, ten [1] - 8:20 U 12:14, 16:6
16:20 8:19, 9:6, 9:21, 15:25 tentative [7] - 3:16, WU [1] - 1:3
rights [7] - 11:18, speedy [3] - 9:21, 3:20, 4:20, 11:7, 18:6, U.S [1] - 1:3
11:21, 15:8, 15:25, 9:22, 15:7 21:9 ultimate [1] - 17:8

ER054
(62 of 239)
5
Y
years [7] - 6:19, 8:20,
14:1, 14:2, 17:22,
18:25
Z
Zach [1] - 3:12
ZACHARY [1] - 2:5

ER055
(63 of 239)
Case: 19-56222, 02/28/2020,
Case 2:19-cv-01862-GW-PJW ID: 11613681,
Document DktEntry: Page
75 Filed 11/07/19 9-2, Page
1 of 531 Page
of 207ID #:1104


Case No. CV 19-1862-GW(PJWx) Date November 7, 2019

Bryan J. Freedman Daniel M. Petrocelli
Jonathan P. Steinsapir Patrick McNally
Zachary T. Elsea
Howard Weitzman
PROCEEDINGS: DEFENDANT HOME BOX OFFICE, INC.'S MOTION TO STAY
ORDER COMPELLING ARBITRATION PENDING RESOLUTION OF
APPEAL [71]
Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Court’s Final
Ruling. The Court would GRANT HBO’s Motion for a stay of arbitration pending appeal.
: 22
ER056
(64 of 239)
Case: 19-56222, 02/28/2020,
Case 2:19-cv-01862-GW-PJW ID: 11613681,
75 Filed 11/07/19 9-2, Page
2 of 532 Page
of 207ID #:1105

Tentative Ruling on Motion to Stay
I. Background1
Defendant HBO2 in Los Angeles County Superior Court. See generally Petition, Docket No. 1-1.
The Petition sought to arbitrate claims for breach of contract (disparagement clause) and breach of
the covenant of good faith and fair dealing. See generally id. HBO removed the action, claiming
Remand, Docket No. 17; Arbitration Motion, Docket No. 18. After a series of hearings, the Court
ultimately granted Plaintiffs’ Motion to Compel Arbitration and Denied the Motion to Remand.
See Consolidated Final Rulings, Docket No. 55. Defendant appealed. See Notice of Appeal,
Docket No. 64. HBO now moves to stay the Court’s order compelling arbitration until the appeal
is resolved. See Notice of Motion to Stay (“Motion”), Docket No. 71. Plaintiffs oppose, see
Opposition to Motion to Stay (“Opp’n”), Docket No. 72; and HBO replies, see Reply in Support
of Motion to Stay (“Reply”), Docket No. 73.
II. Legal Standard
District courts deciding a motion to stay consider four factors: “(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and (4) where the public interest
lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken v. Holder, 556 U.S. 418,
434 (2009)). “This standard for evaluating the desirability of a stay pending appeal is quite similar
to that which the Court employ[s] in deciding to grant [a] preliminary injunction.” Miller v.
Carlson, 768 F.Supp. 1341, 1342 (C.D.Cal.1991).
1
The Court will not repeat the factual background here. The parties should refer to the description in the Court’s
Partial Ruling (see Docket No. 27). To the extent different facts are relevant, the Court includes those in the body of
this ruling.
2
Unless otherwise noted, the defined terms herein have the same meaning as those in the Partial Ruling.
ER057
(65 of 239)
Case: 19-56222, 02/28/2020,
Case 2:19-cv-01862-GW-PJW ID: 11613681,
75 Filed 11/07/19 9-2, Page
3 of 533 Page
of 207ID #:1106
III. Discussion
A. Irreparable Harm
The first factor in the analysis is whether HBO will suffer irreparable harm in the absence
of a stay. HBO argues that compelling arbitration will infringe on its First Amendment rights and
have a chilling effect on free speech, and the Ninth Circuit has recognized that “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.” Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (discussing irreparable
injury in context of injunctive relief) (alteration in original) (quoting Elrod v. Burns, 427 U.S. 347,
373 (1976)). Plaintiffs counter that HBO has not alleged injury other than being forced to arbitrate,
and that Ninth Circuit precedent dictates that “the short time and slight expense involved in the
typical arbitration [] would scarcely qualify as irreparable injury.” Camping Constr. Co. v. Dist.
Council of Iron Workers, 915 F.2d 1333, 1349 (9th Cir. 1990). Moreover, according to Plaintiffs,
the first factor in the stay analysis is necessary but not sufficient for the stay to be granted. See
Opp’n at 4-5 (quoting Leiva-Perez v. Holder, 640 F.3d 962, 968 (9th Cir. 2011).
The Court is inclined to agree with HBO that it is likely to suffer irreparable harm in the
absence of a stay. While Camping stated that being forced to engage in arbitration does not qualify
as irreparable injury in the “typical arbitration,” this is not a typical case. Camping, 915 F.2d at
1349. Indeed, it is a totally atypical case. As the Court has previously recognized, this lasuit raises
significant concerns as to the effects of arbitration on HBO’s First Amendment rights. See, e.g.,
Minutes of Plaintiffs’ Motion to Compel (“Tentative Ruling”), Docket No. 40, at 8-9. At the core
of this lawsuit is HBO’s exercise of its First Amendment rights in airing a documentary alleging
that Michael Jackson sexually abused two young boys. And “[t]he threat of being put to the
defense of a lawsuit . . . may be as chilling to the exercise of First Amendment freedoms as fear of
the outcome of the lawsuit itself.” Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 545 (1980)
(quoting Wash. Post Co. v. Keogh, 125 U.S. App. D.C. 32, 365 F.2d 965, 968 (1966)). The Court
finds that because this case, unlike the “typical arbitration” discussed in Camping, raises important
First Amendment implications, HBO has sufficiently demonstrated irreparable harm in the absence
of a stay.
Additionally, the situation in which arbitration has been raised is extremely unusual. Here,
the arbitration provision is contained in a contract which was entered into about 27 years ago. That
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contract covered HBO’s airing Michael Jackson’s first-ever televised concert – a performance in
Bucharest, Romania from the Dangerous world tour. Plaintiffs here are attempting to utilize a
general anti-disparagement provision from that contract against HBO for the latter’s broadcast in
2019 of a totally unrelated documentary regarding Jackson.
B. Likelihood of Success on the Merits
Next, the parties dispute whether HBO is likely to succeed on the merits of its appeal. HBO
argues first, that this factor should not be rigidly applied, and second, that its appeal is likely to
succeed on the merits. See Motion at 6-8. Plaintiffs argue that this case does not present any novel
issues requiring this factor to be relaxed, and that the state anti-SLAPP law does not apply to this
arbitration dispute under federal law. See Opp’n at 10-15.
The success on the merits factor is not “rigidly applied,” because to do so would require
the district court “to conclude that it was probably incorrect in its determination of the merits.”
Himebaugh v. Smith, 476 F. Supp. 502, 510 (C.D. Cal. 1978). Instead, “tribunals may properly
stay their own orders when they have ruled on an admittedly difficult legal question and when the
equities of the case suggest that the status quo should be maintained.” Id. (quoting Washington
Metropolitan Area, etc. v. Holiday Tours, 559 F.2d 841, 844 (D.C.Cir.1977)). The Court finds
this factor satisfied. That the case presents difficult questions is reflected in the three separate
hearings the Court held and tentatives it issued on Plaintiffs’ motion to compel arbitration, as well
as the supplemental briefing and the anti-SLAPP motion. See generally Docket. And the equities
here suggest that the status quo should be maintained: if the Court does not grant the stay and the
parties proceed to arbitration, then Plaintiffs will have attained the entire relief that they asked for
in this case. Therefore, the Court would find that this factor weighs in favor of granting the stay.
C. Substantial Injury to the Other Parties
The next factor requires the Court to determine whether Plaintiffs will suffer substantial
injury from a stay. Plaintiffs seek arbitration in order to obtain money damages from HBO’s
alleged breach of the non-disparagement clause of a 1992 contract. See Petition to Compel Public
Arbitration, Docket No. 1-1, p. 23. The Court agrees with HBO that because the underlying
dispute involves damages for HBO’s alleged breach of the non-disparagement clause of a 1992
contract, rather than “individual or constitutional rights,” Defendants will not be substantially
injured by a delay in arbitration pending resolution of HBO’s appeal by the Ninth Circuit. Orange
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Belt Dist. Council of Painters No. 48 v. Standard Drywall, Inc., 1979 WL 1943, at *1 (S.D. Cal.
Oct. 16, 1979).3
D. Public Interest
The final factor requires the Court to ask whether a stay would help or harm the public
interest. As the Court discussed above, the Ninth Circuit has “consistently recognized the
‘significant public interest’ in upholding free speech principles.” Klein, 584 F.3d at 1208 (quoting
Sammartano v. First Judicial District Court, 303 F.3d 959, 974 (9th Cir. 2002)). The risk of a
chilling effect on the exercise of First Amendment rights and the significant public interest in the
subject matter of this documentary both indicate that the public interest lies in favor of granting a
stay.
IV. Conclusion
For the foregoing reasons, the Court would GRANT HBO’s Motion for a stay of
arbitration pending appeal.
3
Somewhat strangely, Plaintiffs argue in their section regarding irreparable harm to HBO that HBO improperly “relied
largely” on Orange Belt to support its case. Opp’n at 5. However, HBO relies on Orange Belt only in its discussion
of whether Plaintiffs would be substantially injured by a stay (the third factor), not in its discussion of whether HBO
would suffer irreparable harm in the absence of a stay (the first factor). See Motion at 9.
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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
Telephone: (213) 229-7804
10 Facsimile: (213) 229-6804
11 Attorneys for Home Box Office, Inc.
12
13
14
OPTIMUM PRODUCTIONS, a Case No. 2:19-cv-01862-GW-PJW
15 California corporation; and JOHN
BRANCA and JOHN MCCLAIN, in Hon. George H. Wu
16 the respective capacities as CO-
EXECUTORS OF THE ESTATE OF DEFENDANT HOME BOX
17 MICHAEL J. JACKSON, OFFICE, INC.’S NOTICE OF
APPEAL TO THE UNITED
18 STATES COURT OF APPEALS
Plaintiffs, FOR THE NINTH CIRCUIT
19 NOTICE OF APPEAL
v.
20
HOME BOX OFFICE, a Division of
21 TIME WARNER ENTERTAINMENT,
L.P., a Delaware Limited Partnership;
22 HOME BOX OFFICE, INC., a
Delaware corporation; DOES 1 through
23 5, business entities unknown; and
DOES 6 through 10, individuals
24 unknown,
25 Defendants.
26
27
28
HBO’S NOTICE OF APPEAL
CASE NO. 2:19-CV-01862-GW-PJW
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1 Please take notice that Defendant Home Box Office, Inc. hereby appeals to
2 the United States Court of Appeals for the Ninth Circuit from this Court’s order
3 granting Plaintiffs’ Motion to Compel Arbitration (the “Order”), entered in this
4 action on September 20, 2019 (Dkt. 55), and attached hereto as Exhibit A; the
5 Court’s reasoning for its Order is set forth in its July 15, 2019 civil minutes (Dkt.
6 40), and attached hereto as Exhibit B.
7 The Order is an appealable final decision under 9 U.S.C. § 16(a)(3). See
8 Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1302 (9th Cir. 1994) (“[I]f the
9 motion to compel arbitration in a given case is the only claim before the district
10 court, a decision to compel arbitration is deemed to dispose of the entire case, and
11 permit appellate review under 9 U.S.C. § 16(a)(3)[.]”). This Notice is timely
12 pursuant to Federal Rule of Appellate Procedure 4 and Federal Rule of Appellate
13 Procedure 26(a)(1)(C).
14
15 Dated: October 21, 2019 O’MELVENY & MYERS LLP
GIBSON, DUNN & CRUTCHER LLP
16
By: /s/ Daniel M. Petrocelli
17 Daniel M. Petrocelli
18 By: /s/ Theodore J. Boutrous Jr.
Theodore J. Boutrous Jr.
19
21
22
23
24
25
26
27
28

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1 REPRESENTATION STATEMENT
Ninth Circuit Rule 3-2(b)
2
3 Attorneys for Defendant Home Box Office, Inc.:
dpetrocelli@omm.com
dbreuder@omm.com
Telephone: (310) 553-6700
8 Facsimile: (310) 246-6779
Telephone: (213) 229-7804
13 Facsimile: (213) 229-6804
14
15 Attorneys for Plaintiffs Optimum Productions and for the Co-Executors of the
Estate of Michael J. Jackson:
16
KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP
17 Howard Weitzman (SBN 38723)
hweitzman@kwikalaw.com
18 Jonathan P. Steinsapir (SBN 226281)
jsteinsapir@kwikalaw.com
19 Zachary T. Elsea (SBN 279252)
zelsea@kwikalaw.com
20 808 Wilshire Boulevard, 3rd Floor
Santa Monica, California 90401
21 Telephone: 310.566.9800
Facsimile: 310.566.9850
22
FREEDMAN + TAITELMAN LLP
23 Bryan J. Freedman (SBN 151990)
bfreedman@ftllp.com
24 1901 Avenue of the Stars, Suite 500
25 Telephone: 310.201.0005
Facsimile: 310.201.0045
26
27
28

2 CASE NO. 2:19-CV-01862-GW-PJW
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Exhibit A
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Page ID#:932
#:983



PROCEEDINGS: IN CHAMBERS - CONSOLIDATED FINAL RULINGS ON:
HOME BOX OFFICE, INC.'S MOTION TO STRIKE PLAINTIFFS'

Attached hereto is the Court’s Final Ruling. The Court sets a status conference for October 3, 2019 at
8:30 a.m. Counsel may appear telephonically provided advanced notice is given to the clerk.
:
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Optimum Productions et al v. Home Box Office et al.; Case No. 2:19-cv-01862-GW-(PJWx)

Consolidated Final Rulings
The Court has issued three tentative rulings in this matter. First, on May 23, 2019, the
Court issued a tentative ruling on Plaintiffs’ Motion to Remand and Motion to Compel
Arbitration. See Docket No. 27. Later that same day, the Court made its tentative ruling final in
a separate minute order, but therein qualified the Court’s ruling. See Docket No. 28. The Court
denied the Motion to Remand and denied the Motion to Compel Arbitration “insofar as it
contend[ed] that the gateway issue of arbitrability is to be decided by the arbitrator rather than
the Court pursuant to clear and unmistakable evidence.” Id.
Thereafter, on July 15, 2019, the Court issued a second tentative ruling on the Motion to
Compel Arbitration. See Docket No. 40. The Court indicated that it was inclined to find the
claims arbitrable, but had outstanding questions on the First Amendment issue. Id. The Court
thereby postponed its decision on the Motion to Compel Arbitration pending Defendants’ filing
an anti-SLAPP Motion. Id.
On September 19, 2019, the Court heard argument on the anti-SLAPP Motion and
tentatively ruled that it would deny the motion.
The Court now consolidates its previous rulings and finalizes its decision on the
remaining issues. The Court would rule as follows:
 The Court would DENY Plaintiffs’ Motion to Remand for the reasons expressed
on May 23, 2019. See Docket No. 27.
 The Court would DENY Plaintiffs’ Motion to Compel Arbitration to the extent it
argued that the arbitrability question was for the arbitrator in the first instance.
See Docket Nos. 27-28.
 The Court would GRANT Plaintiffs’ Motion to Compel Arbitration for the
reasons explained on July 15, 2019. See Docket No. 40.
 The Court would DENY Defendants’ anti-SLAPP Motion for the reasons
described on September 19, 2019.
If either side wishes to seek an interlocutory appeal, any motion should be filed within
thirty days of this ruling. The Court sets a status conference for October 3, 2019, wherein the
parties may appear telephonically with advanced arrangement with the clerk. The parties are to
submit a joint status conference report regarding any future dates to be scheduled in this matter.
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Exhibit B
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Case No. CV 19-1862-GW(PJWx) Date July 15, 2019

Javier Gonzalez Katie E. Thibodeaux
Howard Weitzman Drew E. Breuder
Stephanie S. Abrutyn
PROCEEDINGS: PLAINTIFFS' MOTION TO COMPEL ARBITRATION [18]
The Court’s Further Consideration of Motion to Compel following Supplemental Briefing is circulated
and attached hereto. Court hears further argument. For reasons stated on the record, the Court will
postpone the determination of this motion pending Defendant’s filing of its proposed anti-Slapp motion.
Motion is to be filed by August 15, 2019, Opposition to be filed by August 29, 2019, and Reply due on
or before September 5, 2019. Hearing on the motion is set for September 16, 2019 at 8:30 a.m.
: 35
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Further Consideration of Motion to Compel Arbitration following Supplemental Briefing
I. Background
the matter. See Minutes in Chambers – Ruling on Plaintiffs’ Motion to Remand, Docket Nos. 28.
The parties submitted the briefing accordingly.2 See Defendant’s Supplemental Memorandum in
Opposition to Plaintiffs’ Arbitration Motion (“Def.’s Supp.”), Docket No. 30; Plaintiffs’
Supplemental Brief in Support of Arbitration Motion (Pls.’ Supp.”), Docket No. 36.3
II. Legal Standard
The Federal Arbitration Act (“FAA”) reflects a “liberal federal policy favoring arbitration.”
AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2010) (citation omitted). “By its terms,
1
Unless otherwise noted, the defined terms herein have the same meaning as those in the Court’s Partial Ruling (see
Docket No. 27).
2
Ruling.
3
For the purposes of this tentative ruling, the Court considered the parties’ original briefing filed ahead of the Partial
Ruling, as well as the supplemental briefs filed afterwards.
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the [FAA] leaves no room for the exercise of discretion by a district court, but instead mandates
that district courts shall direct the parties to proceed to arbitration on issues as to which an
arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 213
(1985) (emphasis in original); see also 9 U.S.C. § 4. “The court’s role under the Act is therefore
limited to determining: (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether
the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then
the Act requires the court to enforce the arbitration agreement in accordance with its terms.”
Daugherty v. Experian Info. Solutions, Inc., 847 F. Supp. 2d 1189, 1193 (N.D. Cal. 2012) (quoting
Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). “While the
Court may not review the merits of the underlying case ‘[i]n deciding a motion to compel
arbitration, [it] may consider the pleadings, documents of uncontested validity, and affidavits
submitted by either party.’” Macias v. Excel Bldg. Servs. LLC, 767 F. Supp. 2d 1002, 1007 (N.D.
Cal. 2011) (quoting Ostroff v. Alterra Healthcare Corp., 433 F. Supp. 2d 538, 540 (E.D. Pa.
2006)).
III. Discussion
As set forth in the Partial Ruling, the Agreement included the Arbitration Provision:
Association.
were set forth in an attached “Exhibit 1.” Id. (“It is understood that HBO shall comply with the
confidentiality provisions set forth in Exhibit I attached hereto and incorporated herein by this
reference.”); Petition ¶ 31. The confidentiality provisions state “HBO shall not make any
2
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disparaging remarks concerning Performer or any of his representatives, agents, or business

practices or do any act that may harm or disparage or cause to lower in esteem the reputation or
public image of Performer.” Petition ¶ 33; Agreement at p. 51 of 54 (“Disparagement Clause”).
They also state that “HBO shall not in any manner nor at any time (either during or after HBO’s
contact of HBO’s relationship with Licensor and/or Performer), use or disclose, directly or
indirectly . . . . any . . . ‘Confidential Information.’ ” Agreement at p. 50 of 54. The confidentiality
provisions also include the clause that:
action shall be entitled to an award of costs of litigation . . . in such
amount as may be determined by the court having jurisdiction in
such action.
Id. at p. 52 of 54.
A. Whether a Valid Arbitration Provision Exists Herein
Defendant first argues that no valid arbitration agreement exists because the confidentiality
provisions state that the prevailing party in an action to enforce the provisions is entitled to an
award of the costs of litigation as may be determined by the court having jurisdiction in such
action. See Def.’s Supp. at 1. Based on this clause, Defendant insists that the more-specific
language in the confidentiality provisions overrides the Agreement’s Arbitration Provision, and
that therefore, a court must resolve any dispute. Id. at 1-2. Further, anticipating Plaintiffs’
arguments, Defendant contends: (1) that there is no indication that the reference to the court in the
confidentiality provisions was intended for actions seeking injunctive relief; and (2) that even
accepting that the confidentiality provisions were incorporated into the body of the Agreement, if
the Court were to hold that the Arbitration Provision trumps the reference to the court, that would
render the reference to the court superfluous. See id. at 2-3.
Plaintiffs first respond that Defendant conflates who has the burden of establishing
arbitrability. See Pls.’ Supp, at 1. Plaintiffs clarify that establishing the existence of an arbitration
clause is their burden, but that the existence of the Arbitration Provision is undisputed. See id.
Instead, Plaintiffs assert that Defendant is challenging the scope of the Arbitration Provision. Id.
The Court would agree with Plaintiffs’ framing of the burden question. See Henry Schein,
Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524, 530 (2019) (“[B]efore referring a dispute to
an arbitrator, the court determines whether a valid arbitration agreement exists.”) (emphasis
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added); Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014) (“Sirius XM, as the
party seeking to compel arbitration, has the burden of proving the existence of an agreement to
arbitrate by a preponderance of the evidence.”); Comer v. Micor, Inc., 436 F.3d 1098, 1104 n.11
(9th Cir. 2006) (“[T]he Federal Arbitration Act reflects ‘a liberal federal policy favoring arbitration
agreements,’ that policy is best understood as concerning ‘the scope of arbitrable issues.’
” (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25, 103 S.Ct.
927, 74 L.Ed.2d 765 (1983)). Whether a particular dispute falls within an arbitration agreement,
however, is subject to the presumption in favor of arbitration. See Moses H. Cone Mem’l Hosp.,
460 U.S. at 24-25 (“The Arbitration Act establishes that, as a matter of federal law, any doubts
concerning the scope of arbitrable issues should be resolved in favor of arbitration.”).
Defendant cannot not seriously dispute the existence of the Arbitration Provision in the
body of the Agreement. Instead, the thrust of Defendant’s position is that the Arbitration Provision
does not apply to disputes that arise under the Disparagement Clause in the confidentiality
provisions. See Def. Supp. at 1 (“Plaintiffs cannot satisfy their burden of proving that a valid
agreement to arbitrate exists because the very provision on which their Motion rests makes clear
that any disputes must be resolved by “the court,” not an arbitrator . . . . While the body of the
1992 Agreement contains an arbitration provision, the document that contains the non-
disparagement sentence contains a different, more specific clause requiring judicial resolution of
disputes.”). Because the Agreement incorporated the confidentiality provisions, it does not make
sense to treat the provisions as a separate document or contract. Thus, the confidentiality
provisions are part of a contract that contains the Arbitration Provision. As such, the Court would
conclude that an arbitration agreement exists, and will address below whether this dispute is within
the scope of the agreement.
B. Whether the Arbitration Provision Encompasses the Present Dispute
1. Reference to a Court in the Confidentiality Provisions
First of all, the plain language of the clause containing the reference to a court in the
confidentiality provisions does not make it clear that any dispute under the provisions must be
litigated in court, as Defendant argues. The clause begins, “in the event that either party to this
agreement brings an action to enforce the terms of these confidentiality provisions . . . .”
Agreement at p. 52 of 54 (emphasis added). The conditional nature of the opening sentence
suggests that the clause only applies if a party brings an action to enforce the terms. It says nothing
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about where such an action may be brought. And, as Plaintiffs point out, even if the Arbitration
Provision requires arbitration, there are reasons that the parties could be in court. Pls.’ Supp. at 4.
Most obviously, one of the parties could resist arbitration, forcing the other party to seek court
intervention. A party could also seek injunctive relief or confirmation of an arbitration award in
court.
Moreover, the reference to the “the court having jurisdiction,” could very well include an
arbitrator as well as a court of law. Reading the “court having jurisdiction” language to include
an arbitrator would negate any concern that the clause was inconsistent with or superfluous to the
Arbitration Provision. See Harris v. Sandro, 96 Cal. App. 4th 1310, 1312 (2002). In Harris, the
plaintiff obtained an option agreement that provided: “Any dispute or claim in law or equity
arising out of this contract or any resulting transaction shall be decided by neutral binding
arbitration in accordance with the rules of the American Arbitration Association.” Id. The
agreement also included a fee-shifting provision: “Should any litigation be commenced between
the parties . . . the party, Seller or Buyer, prevailing in such litigation shall be entitled to, in addition
to such other relief as may be granted, a reasonable sum for attorneys’ fees to be determined by
the court in such litigation or in a separate action brought for that purpose.” Id. A dispute arose
between the parties, they engaged in arbitration, and the arbitrator awarded attorneys’ fees to the
defendant. Id. The California Court of Appeal thereafter rejected plaintiff’s argument that the
arbitrator exceeded his authority by awarding fees. Id. at 1314. The plaintiff had seemingly argued
that the agreement required that a court make the fee award. Id. However, the California Court
of Appeal held:
The option agreement does not require that a “court” or judge, rather
than an arbitrator, make the fee award. All of the parties’ disputes
are to be submitted to arbitration. Where, as here, a contract both
compels arbitration and awards attorney’s fees to the prevailing
party in “litigation” arising out of the contract, the attorneys’ fee
provision applies to the arbitration. (Severtson v. Williams
Construction Co. (1985) 173 Cal.App.3d 86, 95 [220 Cal.Rptr.
400]; Taranow v. Brokstein, supra, 135 Cal.App.3d at pp. 667-
668.). Any other result would render the fee provision meaningless,
a result we must avoid where possible. (Civ. Code, § 1641; Tate v.
Saratoga Savings & Loan Assn (1989) 216 Cal.App.3d 843,
857 [265 Cal.Rptr. 440].) By the same reasoning, a contract that
both compels arbitration and requires a “court” to determine the
amount of the fee award must contemplate that an arbitrator will
make the fee award. Otherwise, fees could never be awarded
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because no “court” may decide a dispute under the contract; all such
disputes must be decided by an arbitrator.
Id. at 1314-15.
The Court finds the reasoning in Harris convincing. There, as here, the agreement included
a broad and mandatory arbitration clause, and a conditional (and somewhat ambiguous) reference
to a court in the context of attorneys’ fees or costs. As such, the Court would come to the same
conclusion as Harris and reconcile the possibly-inconsistent clauses by reading the reference to “a
court” in the confidentiality provisions to also encompass an arbitrator.
Throughout its supplemental brief, Defendant repeats that the reference to a court in the
confidentiality provisions is more specific than the Arbitration Provision, but does not explain
exactly why it is more specific.4 The Court disagrees. As stated above, the clause does not use
mandatory language to designate a particular forum for dispute resolution. It only says that the
court having jurisdiction can award the prevailing party costs. If anything, the Arbitration
Provision is clearer and more specific. The Arbitration Provision states in mandatory terms that
“[a]ny dispute arising out of, in connection with or relating to this Agreement shall be” arbitrated.
Agreement at p. 45 of 54. And because the confidentiality provisions were incorporated into the
Agreement, the plainest reading is that any dispute about those provisions would be governed by
the broad Arbitration Provision. Further, neither the Arbitration Provision nor the confidentiality
provisions include any “notwithstanding” language referring to the other to indicate that the
confidentiality provisions are exempt from the Arbitration Provision. Thus, for the foregoing
reasons, the Court would conclude that the language in the confidentiality provisions does not
mandate that only a court may hear disputes under that provision.
Lastly, the Court does not believe that the reference to “the court having jurisdiction” in
the confidentiality provisions renders the arbitrability of disputes under that clause ambiguous.
But, even if the Court did think that the clause created ambiguity, it would still be forced to find
the claims arbitrable because of the federal presumption of arbitrability. See Comedy Club, Inc. v.
Improv West Associates, 553 F.3d 1277, 1286 (9th Cir. 2009).
2. Relation to Leaving Neverland
4
Defendant’s citations to articulations of the general rule that the particular controls the general are unavailing because
Defendant does not explain how the confidentiality provisions are more specific that the Arbitration Clause, and
because Defendant fails to direct the Court to any case holding that a reference to a court is more specific than a broad
arbitration clause. See Def.’s Supp. at 3.
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Defendant next argues that the Arbitration Provision does not encompass the dispute
because the subject of the Agreement was a live concert performance by Michael Jackson in
Bucharest, Romania, on October 1, 1992 and Leaving Neverland has nothing to do with that
concert. See Def.’s Supp. at 3-4. Specifically, Defendant notes that Leaving Neverland does not
mention the concert in Bucharest, contains no concert footage from the performance, and does not
contain any “confidential information” that may have been disclosed to HBO in connection with
the Bucharest telecast. Id. at 4.
In response, Plaintiffs dispute Defendant’s characterization of the relationship between the
film and the Petition. See Pls.’ Supp. at 6. In the Petition, Plaintiffs alleged that Leaving Neverland
accused Jackson of abusing children during the tour that included the Bucharest concert. Petition
¶ 40. Regardless of the relation, Plaintiffs contend that Defendant’s argument goes to the merits
of the dispute rather than its arbitrability. See Pls.’ Supp. at 5-6. The Court tends to agree.
Plaintiffs’ petition is largely based on Defendant’s alleged breach of the Disparagement
Clause of the Agreement. See Petition ¶¶ 36-40. The Disparagement Clause reads:
HBO shall not make any disparaging remarks concerning Performer
or any of his representatives, agents, or business practices or do any
act that may harm or disparage or cause to lower in esteem the
reputation or public image of Performer or any person, firm or
corporation related to or doing business with Performer.
Agreement at p. 51 of 54. The language of the provision does not limit its effect to only disparaging
remarks related to the Bucharest concert, the tour, or any other topic. Read with the presumption
of arbitrability in mind, the Court thinks that the Arbitration Provision clearly encompasses the
current dispute. The Arbitration Provision requires that any dispute arising under the Agreement
must be arbitrated; the Disparagement Clause was incorporated into the Agreement; nothing on
the face of the Disparagement Clause limits its effect to certain types of disparaging statements;
and, in Leaving Neverland, HBO broadcast accusations that Jackson sexually abused children.
Whether the Disparagement Clause prohibits HBO from making those types of allegations
is a question of breach that an arbitrator must decide.
3. Expiration of the Agreement
Next, Defendant argues that the Arbitration provision does not encompass the instant
dispute because the Agreement has been fully performed and is expired. Def.’s Supp. at 5-6. The
Court previously noted that any challenge to the validity of the Agreement as a whole is a question
for the arbitrator. See Partial Ruling at 9-10 n.7. Moreover, even if the Agreement has expired,
7
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the Supreme Court has held that arbitration agreements may outlive the contract of which they are
a part. See Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers Union, AFL-CIO, 430
U.S. 243, 252 (1977) (holding that the parties must arbitrate a dispute over severance pay even
though the agreement providing for severance pay and arbitration had expired and the claim for
the severance pay arose after the expiration); see also Litton Fin. Printing Div. v. N.L.R.B., 501
U.S. 190, 204 (1991) (reiterating “a presumption in favor of postexpiration arbitration of matters
unless negated expressly or by clear implication.’ ”) (quoting Nolde Bros,, 430 U.S. at 255));
Wamar Int’l, LLC v. Thales Avionics, Inc., 2019 WL 1877615, at *10 n.3 (C.D. Cal. Mar. 20,
2019) (“Even where an agreement has been terminated, the well settled jurisprudence that holds
arbitration agreements to a life and validity separate and apart from the agreement in which they
are embedded dictates that parties’ duties under an arbitration clause survive contract termination
when the dispute is over an obligation arguably created by the expired contract.” (internal
quotation marks and citation omitted); Brachfeld v. Hopkins, 2017 WL 10436075, at *5 (C.D.
Cal. Dec. 11, 2017) (“Absent an express agreement to the contrary, however, arbitration
agreements ‘survive[ ] contract termination when the dispute [is] over an obligation arguably
created by the expired agreement.’ ” (quoting Nolde Bros., 430 U.S. at 252) (alterations in
original)).
The rule in Nolde Brothers is not limitless, however, and only applies to disputes that
arguably arise under the contract at issue. See Nolde Bros., 430 U.S. at 252-53. But because
Plaintiffs’ claims allegedly arise under the Disparagement Clause of the Agreement, and because
there is no express clause terminating the Arbitration Provision at the expiration of the Agreement,
the Court would apply the Nolde Brothers presumption.5
C. First Amendment
Finally, Defendant argues that the Court should deny the Arbitration Motion because the
Arbitration Provision, “as applied here, is unenforceable as a matter of the First Amendment, due
process, and California public policy.” Def. Supp. at 7. HBO contends that it “is squarely
attacking the enforceability of arbitration provision itself, not arguing the merits as Plaintiffs have
wrongly claimed.” Id. Specifically, Defendant asserts that the Arbitration Provision itself is
5
Defendant’s cite to Just Film, Inc. v. Merch. Servs., Inc., 2011 WL 2433044 (N.D. Cal. 2011) is inapposite. See
Arbitration Opp’n at 11-12. The court there did not hold that arbitration provisions expire along with their contracts.
To the contrary, the court recognized the Nolde Brothers line of precedent but held that the claims did not arise under
the agreement. Just Film, Inc., 2011 WL 2433044, at *5.
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suspect under the First Amendment because it allows Plaintiffs “a perpetual forum for them to
police what are clearly defamation-after-death claims in disguise,” and that the Court would
“enmesh[]” itself in the controversy by enforcing the Arbitration Provision. Id.6
Plaintiffs respond that Defendant’s arguments are “frivolous” because “[i]t is well
established that judicially enforcing arbitration agreements does not constitute state action.” Pls.’s
Supp. at 7 (quoting Roberts v. AT&T Mobility LLC, 877 F.3d 833, 838 n. 1 (9th Cir. 2017)
(emphasis added)). While the Court agrees that attempting to enforce an arbitration agreement in
a contract that includes a non-disparagement clause through the filing of a lawsuit does not initially
suggest the presence of state action, the initiation of the litigation itself can trigger First
Amendment concerns. See, e.g., California Code Civil Procedure § 425.16(a) (“The Legislature
finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill
the valid exercise of the constitutional rights of freedom of speech and petition for the redress of
grievances.”). It cannot be doubted that Plaintiffs’ arbitration action is seeking to recover damages
based upon Defendants’ broadcasting a documentary.7 Whether that fact should have some effect
on the Arbitration Motion should be discussed more thoroughly at the hearing.
IV. Conclusion
The Court has not at this time reached a final decision on the Arbitration Motion but will
decide the matter after hearing arguments of counsel.
6
The Court notes that Defendant’s Opposition attacked the Disparagement Clause rather than the Arbitration
Provision. See Opp’n at 16-22; id. at 16 (“The 1992 Agreement’s Non-Disparagement Sentence is Unenforceable.”);
id. at 17 (“Petitioners’ Interpretation of Non-Disparagement Sentence Violates HBO’s First Amendment and Due
Process Rights”); id. at 19 (“application of the vague and overbroad non-disparagement and Confidentiality Provisions
implicates and violates HBO’s due process and First Amendment rights.”). The Court will not consider any challenges
to portions of the Agreement aside from the Arbitration Provision. See Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 445-46 (2006) (“First, as a matter of substantive federal arbitration law, an arbitration provision is
severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue
of the contract’s validity is considered by the arbitrator in the first instance.”).
7
Although Plaintiffs refer to Leaving Neverland as a documentary in quotes and characterize it as “one-sided” (see
Complaint at 2:9-12), they do not deny that it is in fact a documentary and subject to First Amendment protections.
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dpetrocelli@omm.com
dbreuder@omm.com
Telephone: (310) 553-6700
5 Facsimile: (310) 246-6779
Telephone: (213) 229-7804
10 Facsimile: (213) 229-6804
11 Attorneys for Defendant Home Box Office, Inc.
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 DEFENDANT HOME BOX
MICHAEL J. JACKSON, OFFICE, INC.’S SUPPLEMENTAL
17 MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION
18 Plaintiffs, TO PLAINTIFFS’ MOTION TO
COMPEL ARBITRATION
19 v.
[Declaration of Drew E. Breuder and
20 HOME BOX OFFICE, a Division of Notice of Lodging filed concurrently
TIME WARNER ENTERTAINMENT, herewith]
21 L.P., a Delaware Limited Partnership;
HOME BOX OFFICE, INC., a Hearing Date: June 24, 2019
22 Delaware corporation; DOES 1 through Hearing Time: 8:30 a.m.
5, business entities unknown; and
23 DOES 6 through 10, individuals
unknown,
24
Defendants.
25
26
27
28
HBO’S SUPP. BRIEFING RE: MOT. TO COMPEL

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1 Pursuant to the Court’s May 24, 2019 order, Home Box Office, Inc. (“HBO”)
2 hereby submits this supplemental memorandum of points and authorities in
3 opposition to Plaintiffs’ motion to compel arbitration (the “Motion,” Dkt. 18).
4 I. THE COURT SHOULD DENY PLAINTIFFS’ MOTION TO COMPEL
BECAUSE THERE IS NO VALID AGREEMENT TO ARBITRATE
5 THE CONFIDENTIALITY PROVISIONS.
6 To compel arbitration, Plaintiffs must first demonstrate that “a valid
7 agreement to arbitrate exists.” Cox v. Ocean View Hotel Corp., 533 F.3d 1114,
8 1119 (9th Cir. 2008); Henry Schein v. Archer and White Sales, Inc., 139 S. Ct. 524,
9 530 (2019) (“before referring a dispute to an arbitrator, the court determines
10 whether a valid arbitration agreement exists”). “As the party moving to compel
11 arbitration,” Plaintiffs bear the burden of “proving by a preponderance of the
12 evidence the existence of a valid arbitration agreement.” See Christensen v. CLP
13 Res., Inc., 2015 WL 13762936, at *3 (C.D. Cal. June 22, 2015) (Wu, J.). To
14 determine whether a valid arbitration agreement exists, the Court “resort[s] to state
15 contract law.” ISTA Pharm., Inc. v. Senju Pharm. Co., 2010 WL 11601183, at *3
16 (C.D. Cal. Aug. 26, 2010) (Wu, J.). Contrary to Plaintiffs’ assertion, there is no
17 federal policy “favoring” arbitration on the issue of validity (Dkt. 18 at 6-7), as that
18 policy is “inapposite” to determining “whether … a valid agreement to arbitrate”
19 exists. Comer v. Micor, Inc., 436 F.3d 1098, 1104 n.11 (9th Cir. 2006).
20 In this case, Plaintiffs cannot satisfy their burden of proving that a valid
21 agreement to arbitrate exists because the very provision on which their Motion rests
22 makes clear that any disputes must be resolved by “the court,” not an arbitrator.
23 Plaintiffs allege that HBO’s 2019 exhibition of Leaving Neverland violates a non-
24 disparagement sentence in an exhibit to an agreement (the “1992 Agreement”)
25 concerning the 1992 concert special Michael Jackson: Live in Bucharest (“Live in
26 Bucharest”). Dkt. 18 at 5. While the body of the 1992 Agreement contains an
27 arbitration provision, the document that contains the non-disparagement sentence
28 contains a different, more specific clause requiring judicial resolution of disputes:
1 HBO’S SUPP. BRIEFING RE: MOT. TO COMPEL

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1 In the event that either party to this agreement brings an action to

enforce the terms of these confidentiality provisions or to declare rights
2 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
3 be determined by the court having jurisdiction in such action.
4 Id., Ex. B at 40 (emphases added). As this provision makes clear, where, as here,
5 Plaintiffs seek to “enforce” the Confidentiality Provisions, including the non-
6 disparagement sentence, the “court”—not an arbitrator—resolves the dispute.
7 At the May 23, 2019 hearing, Plaintiffs asserted this provision is limited to
8 instances in which injunctive relief is sought. See Declaration of Drew E. Breuder
9 (“Breuder Decl.”) Ex. C (5/23/19 Tr.) at 20:11-21:5 (J. Steinsapir: the
10 Confidentiality Provisions “allow[] for injunctive relief … in [which] case you
11 would need to go to a Court, not an arbitrator, most likely.”). That interpretation is
12 mere fantasy. Plaintiffs’ position is not supported by anything in the 1992
13 Agreement itself and contradicts the plain language. There is no mention anywhere
14 of injunctive relief in the relevant sentence, and no language requiring different fora
15 for actions for injunctive or monetary relief. Established case law also
16 demonstrates that Plaintiffs’ position—that an action to “enforce” the agreement is
17 limited to injunctive relief—is just plain wrong. See, e.g., Chee v. Amanda Goldt
18 Prop. Mgmt., 143 Cal. App. 4th 1360, 1381 (2006) (“An action for damages arising
19 out of a breach of contract is an action to ‘enforce’ the contract.”); Heidt v. Heating
20 & Air Conditioning Co., 271 Cal. App. 2d 135, 136-38 (1969) (holding that
21 plaintiff’s action for monetary damages was “a suit to enforce the contract”).
22 Plaintiffs also claim that because the Confidentiality Provisions were
23 “incorporated” into the body of the 1992 Agreement, the arbitration provision
24 trumps the “court” provision in the confidentiality exhibit. Breuder Decl., Ex. C at
25 20:17-23. Not so. Plaintiffs’ construction renders the dispute-resolution clause in
26 the Confidentiality Provisions superfluous and violates fundamental principles of
27 contract interpretation—including that more specific provisions govern over
28 general provisions, Cal. Code Civ. Proc. § 1859, and requiring that courts interpret

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1 agreements “so as to give effect to every part,” Cal. Civ. Code § 1641. See also
2 MacDonald & Kruse, Inc. v. San Jose Steel Co., 29 Cal. App. 3d 413, 421 (1972)
3 (acknowledging “well recognized rule … that where a general and a particular
4 provision … are inconsistent, the particular controls the general”); United Farmers
5 Agents Assn., Inc. v. Farmers Grp., Inc., 32 Cal. App. 5th 478, 495 (2019) (courts
6 must “give effect to all of a contract’s terms, and to avoid interpretations that render
7 any portion superfluous, void or inexplicable”); Katz v. Feinberg, 290 F.3d 95, 97–
8 98 (2d Cir. 2002) (“[U]nder normal circumstances, when an agreement includes
9 two dispute resolution provisions, one specific … and one general … the specific
10 provision will govern those claims that fall within it.”); Cf. Lamps Plus, Inc. v.
11 Varela, 139 S. Ct. 1407, 1415 (2019) (refusing to order class arbitration where
12 arbitration agreement was ambiguous because “arbitration is a matter of consent,
13 not coercion”) (internal quotations omitted).
14 Plaintiffs’ failure to demonstrate the existence of a valid agreement to
15 arbitrate disputes regarding the Confidentiality Provisions dooms their Motion. See
16 Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 564 (9th Cir. 2014) (denying
17 motion to compel arbitration where “no valid agreement to arbitrate exist[ed]”).
18 II. THE COURT SHOULD DENY PLAINTIFFS’ MOTION TO COMPEL
BECAUSE THE ARBITRATION PROVISION DOES NOT
19 ENCOMPASS THIS DISPUTE.
20 Plaintiffs’ Motion must be denied for a second, independent reason: even
21 assuming the 1992 Agreement’s arbitration provision controls (and it does not), that
22 provision does not “encompass[] the dispute at issue.” Cox, 533 F.3d at 1119.
23 A. The Arbitration Provision Does Not Encompass This Dispute
Because Leaving Neverland Has Nothing to Do with Live in
24 Bucharest.
25 The subject of the 1992 Agreement was a live concert performance by
26 Michael Jackson in Bucharest, Romania, on October 1, 1992, as part of the
27 worldwide tour for Mr. Jackson’s 1991 Dangerous album. See Dkt. 22-1 (Abrutyn
28

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1 Decl.) ¶¶ 2, 5; Breuder Decl. ¶¶ 4-5.1 Under the 1992 Agreement, TTC (on behalf
2 of Mr. Jackson) granted a one-time license to HBO to exhibit Live in Bucharest on
3 October 10, 1992. Dkt. 22-1 (Abrutyn Decl.) ¶ 5; Dkt. 18, Ex. B at 26. The 2019
4 Leaving Neverland documentary—the subject of Plaintiffs’ complaints—simply
5 has nothing whatsoever to do with Live in Bucharest—the subject of the 1992
6 Agreement. For example, Leaving Neverland:
7 • does not mention or discuss Live In Bucharest, the Bucharest concert
8 itself, or HBO’s exhibition of the Live in Bucharest concert special;
9 • contains no concert footage or other content from Live in Bucharest;
10 • contains no “confidential information” (as that term is defined in the
11 Confidentiality Provisions (Dkt. 18, Ex. B at 38)) that may have been
12 disclosed to HBO in connection with Live in Bucharest; and
13 • neither mentions nor discusses the 1992 Agreement.
14 Breuder Decl. ¶¶ 4-5; see also HBO’s Notice of Lodging, Exs. A-B (copies of Live
15 in Bucharest and Leaving Neverland, respectively).
16 In fact, the only connection Plaintiffs identify between the 1992 Agreement
17 and Live in Bucharest, on the one hand, and Leaving Neverland, on the other hand,
18 is their assertion that Leaving Neverland “alleges that Jackson was abusing children
19 in connection with and on the Dangerous World Tour.” Dkt. 1-1 at 13, ¶ 40
20 (emphasis in original); see also Dkt. 17 at 6. But the Bucharest concert was only
21 one of nearly 70 concerts that took place between June 1992 and November 1993
22 on the Dangerous tour. Breuder Decl. ¶ 4. And the Dangerous tour is only
23 mentioned once in Leaving Neverland, in the following excerpt:
24 Joy Robson: “During that Dangerous tour when Michael [Jackson]
25 took Brett Barnes on the tour with him, Wade [Robson] had asked to
go on the tour. And Michael had told him no, he couldn’t go because
26
he wasn’t allowed to take children on this tour. And then he saw Brett
27 1
In deciding a motion to compel arbitration, the Court “may consider the pleadings,
28 documents of uncontested validity, and affidavits submitted by either party.” QED
Hold., LLC v. Block, 2015 WL 12659935, at *3 (C.D. Cal. June 11, 2015) (Wu, J.).
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1 Barnes with him on television.”

2 Breuder Decl. ¶ 6; Notice of Lodging, Ex. B (Leaving Neverland, Part I) at
3 1:58:38–1:58:59 (showing photograph and video of Mr. Jackson with Brett Barnes).
4 Plaintiffs’ Motion identifies no basis for this Court to stretch the 1992 Agreement’s
5 arbitration provision to compel arbitration of claims involving an unrelated
6 documentary produced more than 25 years later by an independent third party and
7 licensed to HBO. See Dkt. 22-1 (Abrutyn Decl.) ¶ 3 (Leaving Neverland “was
8 developed and is owned by Amos Pictures Ltd., and was licensed to HBO for
9 distribution in the United States and Canada (as well as Bermuda).”).
10 Plaintiffs also assert that this dispute is encompassed by the 1992
11 Agreement’s arbitration provision because Leaving Neverland shows a clip from
12 one of the same music videos—of Mr. Jackson’s Black or White—that appears in
13 Live in Bucharest. See Dkt. 17 at 6; id. at 18, ¶ 7. But the Black or White music
14 video was independently created months before the Bucharest concert, and is
15 available for anyone to purchase today. Breuder Decl. ¶¶ 7-9. That both Mr.
16 Jackson and the producers of Leaving Neverland chose to show a clip from part of
17 the same music video to their viewers is not a sufficient basis to compel arbitration.
18 B. The Arbitration Provision Does Not Encompass This Dispute
Because the 1992 Agreement Has Expired.
19
20 The arbitration clause also does not “encompass” this dispute, even if it could
21 be read to apply to an unrelated documentary, because the 1992 Agreement has
22 been fully performed and is expired. Under California law, where, as here, a
23 contract has been fully performed by both parties, it is deemed to be expired. Cal.
24 Civ. Code § 1473 (“Full performance of an obligation, by the party whose duty it is
25 to perform it . . . extinguishes it.”); Giles v. Horn, 100 Cal. App. 4th 206, 228
26 (2002) (holding plaintiffs’ claim that county breached contracts was moot because
27 “the contracts [had] been fully performed and [had] expired”). The parties to the
28 1992 Agreement (who are not the same parties to this action), fully performed their

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1 obligations more than 25 years ago, after the conclusion of the Holdback Period
2 ended, on or about October 10, 1993 (one year after exhibition of the concert
3 special). See Dkt. 22 at 3; Dkt. 18, Ex. B at 26, 29-30; Dkt. 22-1 ¶ 5. HBO
4 exhibited the concert special just one time, on October 10, 1992, and paid TTC a
5 license fee. See Dkt. 18, Ex. B at 26; Dkt. 22-1 ¶ 5. The parties’ obligations have
6 thus long been fulfilled, and the 1992 Agreement is expired.
7 The law is clear that where the complained-of conduct occurs after the
8 expiration of the contract containing an arbitration clause, the dispute is not
9 encompassed by that arbitration clause unless the right has vested or survived
10 expiration. See Just Film, Inc. v. Merchant Servs., Inc., 2011 WL 2433044, at *4
11 (N.D. Cal. June 13, 2011), quoting Operating Eng’rs Local Union No. 3 v.
12 Newmont Mining Corp., 476 F.3d 690, 693-94 (9th Cir. 2007) (holding that an
13 arbitration clause encompasses a dispute when the “facts and occurrences”
14 underlying the dispute “arose before expiration”). A contrary rule would allow
15 “[t]he dead hand of a long-expired arbitration clause [to] govern forever.” Id., 2011
16 WL 2433044, at *4; see also Litton Fin. Printing Div. v. N.L.R.B., 501 U.S. 190,
17 209 (1991) (courts must “refuse” to apply any presumption in favor of arbitration to
18 an expired … agreement, for to do so would make limitless the contractual duty to
19 arbitrate”). Here, the complained-of conduct—HBO’s exhibition of Leaving
20 Neverland—occurred more than 25 years after the termination of the 1992
21 Agreement and long past any reasonable period of time thereafter. Dkt. 22 at 3;
22 Dkt. 18, Ex. B at 26, 29-30; Dkt. 22-1 ¶ 5. Plaintiffs’ claims are thus not
23 encompassed by the 1992 Agreement’s arbitration clause. See Just Film, 2011 WL
24 2433044, at *5 (denying a motion to compel arbitration because the claims “do not
25 arise under [defendant’s] lease agreement, which has expired”).
26 III. THE FIRST AMENDMENT AND CALIFORNIA PUBLIC POLICY
MANDATE DENIAL OF THE MOTION TO COMPEL.
27
28 As HBO explains in its Opposition, the Motion also should be denied

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1 because the arbitration provision, as applied here, is unenforceable as a matter of

2 the First Amendment, due process, and California public policy. Dkt. 22 at 16–22.
3 Plaintiffs argue that the arbitration provision lasts forever and sweeps in any
4 supposedly “disparaging” content about Mr. Jackson exhibited by HBO until the
5 end of time, including speech that is unquestionably of public concern, like the
6 statements made in Leaving Neverland. In so doing, Plaintiffs claim that the
7 arbitration provision provides a perpetual forum for them to police what are clearly
8 defamation-after-death claims in disguise, in violation of the First Amendment and
9 California law and public policy. Kelly v. Johnson Publishing Co., 160 Cal. App.
10 2d 718, 723 (1958) (“Defamation of a deceased person does not give rise to a civil
11 right of action[.]”). Avoiding these constitutional issues is all more reason to reject
12 Plaintiffs’ broad interpretation of the arbitration clause and deny the motion to
13 compel. Elonis v. U.S., 135 S. Ct. 2001, 2012 (2015); Center for Bio-Ethical Ref.,
14 Inc. v. Los Angeles Cnty. Sheriff Dept., 533 F.3d 780, 790-92 (9th Cir. 2008).
15 In making this argument, HBO is squarely attacking the enforceability of
16 arbitration provision itself, not arguing the merits as Plaintiffs have wrongly
17 claimed. By filing an action in court and asking this Court to use its judicial power
18 to enforce the arbitration agreement, Plaintiffs are enmeshing this Court in the kind
19 of “state action” that can violate the First Amendment, due process, and California
20 law and policy. See N.Y. Times v. Sullivan, 376 U.S. 254, 278 (1964) (civil libel
21 actions and judgments for damages can violate the First Amendment, because of the
22 chilling effect they can have on freedom of speech). HBO did not institute these
23 court proceedings; Plaintiffs did. Plaintiffs are asking this Court to use its power to
24 force HBO into arbitration over a film about a matter of public concern by citing to
25 an unrelated, 26-year-old provision. This is a classic attempt to chill and punish
26 speech, and the arbitration agreement is unenforceable under these circumstances.
27 IV. CONCLUSION
28 For the foregoing reasons, the Court should deny Plaintiffs’ Motion.

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1 Dated: June 4, 2019 O’MELVENY & MYERS LLP

GIBSON, DUNN & CRUTCHER LLP
2
3 By: /s/ Daniel M. Petrocelli

Daniel M. Petrocelli
4

Theodore J. Boutrous Jr.
6
7 Attorneys for Defendant Home Box

Office, Inc.
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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Case No. CV 19-1862-GW(PJWx) Date May 24, 2019

PROCEEDINGS: IN CHAMBERS - RULING ON:
PLAINTIFFS' MOTION TO REMAND TO THE LOS ANGELES

SUPERIOR COURT [17];
The Court adopts its Tentative Ruling (provided to the parties at the start of the hearing on the
Motion to Remand and Motion to Compel Arbitration) as its final decision on said motions except as
qualified herein. For the reasons stated in the Tentative and as further discussed at the hearing: (1) the
Motion to Remand is denied; and (2) the Motion to Compel Arbitration is denied insofar as it contends that
the gateway issue of arbitrability is to be decided by the arbitrator rather than the Court pursuant to clear
and unmistakable evidence. As to the arbitrability issue itself, the Court will allow supplemental briefing
as follows: Defendants will be permitted to file a supplemental brief of not more than seven pages by June
4, 2019, and Plaintiffs will file a responsive brief of not more than seven pages by June 17, 2019. The
matter will be heard on June 24, 2019 at 8:30 a.m.
:
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Case 2:19-cv-01862-GW-PJW Document 27 Filed 05/23/19 Page 1 of 14 Page ID #:508


Case No. CV 19-1862-GW(PJWx) Date May 23, 2019

Zachary T. Elsea
Howard Weitzman
PROCEEDINGS: PLAINTIFFS' MOTION TO REMAND TO THE LOS ANGELES
SUPERIOR COURT [17];
The Court’s Tentative Ruling is circulated and attached hereto. Court hears oral argument. For reasons
stated on the record, the Motions are TAKEN UNDER SUBMISSION. Court to issue ruling.
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Tentative Rulings on: (1) Motion to Remand, and (2) Motion to Compel Arbitration
I. Background
On or about February 21, 2019, Plaintiffs/Petitioners1 Optimum Productions and John
Branca and John McClain, in their respective capacities as Co-Executors of the Estate of Michael
J. Jackson (collectively, the “Estate”) filed a “Petition to Compel Public Arbitration” against Time
Warner Entertainment, L.P. and Home Box Office, Inc. (“HBO”) in the Superior Court of
California, County of Los Angeles (“Los Angeles County Superior Court”). See generally Petition
to Compel Public Arbitration (the “Petition”), Docket No. 1-1. The Petition seeks to arbitrate
claims for breach of contract (disparagement clause) and breach of the covenant of good faith and
fair dealing. See generally id. HBO removed the action claiming diversity jurisdiction.2 See
Notice of Removal, Docket No. 1, ¶ 4. Plaintiffs now move this Court to remand the action to the
Superior Court or, alternatively, to compel arbitration. See Motion to Remand, Docket No. 17;
Motion to Compel Arbitration (“Arbitration Motion”), Docket No. 18. HBO opposes both
motions. See Memorandum in Opposition to Motion to Remand (“Remand Opp’n”), Docket No.
21; Memorandum in Opposition to Arbitration Motion (“Arbitration Opp’n”), Docket No. 22.
This dispute stems from HBO’s exhibition of the documentary film Leaving Neverland,
which details sexual abuse allegations against the late entertainer. In essence, the Estate asserts
that the film is not a documentary at all because HBO willfully ignored evidence that disputes the
accusers’ allegations. See Petition ¶¶ 37, 61-68. However, because there is no civil liability for
defamation of the deceased, the Estate asserts contract causes of action against HBO instead. See
id. at 2-4; ¶ 66.
The contract on which the Estate relies was signed in 1992. See Ex. B to the Petition (the
“Agreement”), Docket No. 1-1, at p. 37-46 of 54. It is a licensing agreement between Jackson and
Optimum’s predecessor entity on the one hand, and HBO on the other, to grant HBO the exclusive
right to air Jackson’s first-ever televised concert – a performance in Bucharest, Romania from the
Dangerous world tour. Id. at p. 37 of 54; Petition ¶ 28. The Agreement included the following
1
To simplify the discussion, the Court will refer to the parties respectively as “Plaintiffs” and “Defendants” rather
than “Petitioners” and “Respondents.” The parties use the terms interchangeably in their briefing.
2
Plaintiffs seemingly have not served Time Warner Entertainment, L.P., and, as such, HBO need not have obtained
its consent to remove the action. See 28 U.S.C. § 1446(b)(2)(A).
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provision, under the heading “Arbitration” (the “Arbitration Provision”):

Association.
were set forth in an attached “Exhibit 1.” Id.; Petition ¶ 31. The confidentiality provisions state
“HBO shall not make any disparaging remarks concerning Performer or any of his representatives,
agents, or business practices or do any act that may harm or disparage or cause to lower in esteem
the reputation or public image of Performer.” Petition ¶ 33; Agreement at p. 51 of 54
(“Disparagement Clause”). They also provide that “HBO shall not in any manner nor at any time
(either during or after HBO’s contact of HBO’s relationship with Licensor and/or Performer), use
or disclose, directly or indirectly . . . . any . . . ‘Confidential Information.’” Id. at p. 50 of 54.
HBO aired the concert special on October 10, 1992. Petition ¶ 30. The Estate further
alleges that Leaving Neverland suggests that Jackson was abusing children during the Dangerous
world tour. Petition ¶¶ 40-41.
II. Legal Standard
A. Motion to Remand
“Federal courts are courts of limited jurisdiction,” and have subject matter jurisdiction only
to the extent “authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994) (citing Willy v. Coastal Corp., 503 U.S. 131, 136-137 (1992); Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). “It is to be presumed that a cause lies
outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party
asserting jurisdiction.” Id. (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11 (1799); McNutt
2
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v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936)).

28 U.S.C. § 1441 permits defendants to remove certain civil actions brought in a state court
to federal district courts. The removal statute is strictly construed against removal jurisdiction,
however, and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal
in the first instance.” See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v.
Lewis, 863 F.2d 662, 663 (9th Cir. 1988); Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d
815, 818 (9th Cir. 1985); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).
“Generally, [a] defendant has the right to invoke federal removal jurisdiction if the case could have
been filed originally in federal court (i.e. on diversity or federal question grounds).” O’Connell &
Stevenson, Rutter Group Prac. Guide: Fed. Civ. Proc. Before Trial (“Federal Practice Guide”)
§ 2:2192 (2017) (emphasis in original); see also Snow v. Ford Motor Co., 561 F.2d 787, 789 (9th
Cir. 1977).
While Section 4 of the Federal Arbitration Act (“FAA”) authorizes a United States district
court to entertain a petition to compel arbitration, the district court can only do so if it would
otherwise have subject matter jurisdiction over the “suit arising out of the controversy between the
parties” “save for [the arbitration] agreement.” See 9 U.S.C. § 4; Vaden v. Discover Bank, 556
U.S. 49, 52-53, 70 (2009). In other words, the FAA does not create an independent ground for
federal subject matter jurisdiction. See Southland Corp. v. Keating, 465 U.S. 1, 16 n.9 (1984).
In order for a court to have jurisdiction under 28 U.S.C. § 1332 (which was the sole basis
for the removal here), the parties must be completely diverse. See Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 553 (2005) (“[T]he presence . . . of a single plaintiff from the same
[s]tate as a single defendant deprives the district court of original diversity jurisdiction.”). The
matter in controversy must also “exceed[] the sum “or value of $75,000, exclusive of interest and
costs.” 28 U.S.C. § 1332(a).
However, “[t]he enforcement of a forum selection clause is a proper basis for remanding a
removed case to state court.” Comerica Bank v. Whitehall Specialties, Inc., 352 F. Supp. 2d 1077,
1080 (C.D. Cal. 2004) (citing Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d
273, 275, 280 (9th Cir. 1984)).
B. Arbitration Motion
The FAA reflects a “liberal federal policy favoring arbitration.” AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 339 (2010) (citation omitted). “By its terms, the [FAA] leaves no room
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for the exercise of discretion by a district court, but instead mandates that district courts shall direct
the parties to proceed to arbitration on issues as to which an arbitration agreement has been
signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 213 (1985) (emphasis in original); see
also 9 U.S.C. § 4. “The court’s role under the Act is therefore limited to determining: (1) whether
a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the
dispute at issue. If the response is affirmative on both counts, then the Act requires the court to
enforce the arbitration agreement in accordance with its terms.” Daugherty v. Experian Info.
Solutions, Inc., 847 F. Supp. 2d 1189, 1193 (N.D. Cal. 2012) (quoting Chiron Corp. v. Ortho
Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). “While the Court may not review the
merits of the underlying case ‘[i]n deciding a motion to compel arbitration, [it] may consider the
pleadings, documents of uncontested validity, and affidavits submitted by either party.’” Macias
v. Excel Bldg. Servs. LLC, 767 F. Supp. 2d 1002, 1007 (N.D. Cal. 2011) (quoting Ostroff v. Alterra
Healthcare Corp., 433 F. Supp. 2d 538, 540 (E.D. Pa. 2006)).
III. Discussion
A. Motion to Remand
Plaintiffs do not dispute the existence of diversity jurisdiction. See generally Motion to
Remand; Reply ISO Motion to Remand, Docket No. 24. Rather, they claim that this Court should
remand the Petition because the Agreement contains a “mandatory” forum-selection clause that
establishes the Los Angeles County Superior Court as the “exclusive” forum for any dispute. See
Motion at 7-8. Defendants respond that the Agreement does not contain “a forum selection clause
– much less a mandatory and exclusive one – and establishes no basis to remand this case.”
Remand Opp’n at 5.
Federal courts apply federal law to interpret forum selection clauses. See Doe 1 v. AOL
LLC, 552 F.3d 1077, 1081 (9th Cir. 2009). Under federal law, “[c]ontract terms are to be given
their ordinary meaning, and when the terms of a contract are clear, the intent of the parties must
be ascertained from the contract itself. Whenever possible, the plain language of the contract
should be considered first.” Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206,
1210 (9th Cir.1999). District courts will only remand based on forum selection clauses if the
clause is “exclusive and mandatory.” Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75,
77 (9th Cir. 1987). “To be mandatory, a clause must contain language that clearly designates a
forum as the exclusive one.” N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co.,
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69 F.3d 1034, 1036 (9th Cir. 1995).

Plaintiffs argue that the Arbitration Provision itself includes the forum selection clause that
requires this Court to remand. See Motion at 8-9. First, Plaintiffs contend that the Arbitration
Provision’s use of the verb “shall” demonstrates that the clause is mandatory rather than
permissive. Motion at 9. Next, Plaintiffs argue that because the Arbitration Provision designates
the Los Angeles Superior Court as the ultimate decider (after the parties try to work out any dispute
amongst themselves) of which retired judge would be the arbitrator, the arbitration clauses evinces
a clear intent that the Superior Court should have exclusive jurisdiction over any disputes. See id.;
Agreement at p. 45 of 54 (“If the two party-appointed judges are unable to select a third judge
within 30 days after their appointment, the sole retired judge in connection with such dispute shall
be selected by the Superior Court of the State of California for the County of Los Angeles.”). Or,
in Plaintiffs’ words:
The manifest intent of the parties as expressed in the arbitration
clause is that if a dispute arises and the parties fail to select a
mutually-agreeable arbitrator, then the arbitrator will be selected by
[the] Los Angeles Superior Court. Necessarily inherent in and
ancillary to the Los Angeles Superior Court’s exclusive jurisdiction
to ultimately select an arbitrator is the exclusive power to compel
and specifically enforce the other antecedent procedures in the
arbitration clause.
Motion at 9. Further, Plaintiffs contend that if this Court does not interpret the clause as a
mandatory and exclusive forum selection clause, HBO would be rewarded for refusing to engage
with Plaintiff in trying to pick an arbitrator because HBO will now have the Estate’s Arbitration
Motion heard here, rather than by an arbitrator or the Superior Court. Id. at 10.
The problem with Plaintiffs’ arguments is that the plain language of the Arbitration
Provision only explicitly grants the Los Angeles County Superior Court a limited role – i.e.
selecting a retired judge who will preside over the arbitration when the parties cannot first agree
and when two retired judges (one chosen by each side to make the selection) thereafter cannot
agree. Moreover, the Provision initially delineates that the arbitration “shall be submitted [to] . . .
a retired judge of the Superior Court of the State of California for the County of Los Angeles . . .
.” There is no requirement that the chosen retired Los Angeles County Superior Court Judge reside
in Los Angeles County3 or conduct the arbitration there. Nowhere does the Arbitration Provision
3
This Court would take judicial notice of the fact that not all retired Los Angeles Superior Court judges have continued
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use the words “forum,” “venue,” “exclusive,” “mandatory,” or “jurisdiction.” And while it is true
that “there are no magic words that render a forum selection clause mandatory and exclusive,”
A.O. Smith Corp. v. Transpac Container Sys. Ltd., No. CV 09-00304 RGK (JTLx), 2009 WL
3001503, at *3 (C.D. Cal. May 8, 2009), the Court does not think that the cited language in the
Arbitration Provision “clearly designates” the Los Angeles County Superior Court as the
mandatory and exclusive forum for all disputes.
In Hunt Wesson Foods, for example, the Ninth Circuit found the following language to be
merely “permissive” and therefore unenforceable:
Buyer and Seller expressly agree that the laws of the State of
California shall govern the validity, construction, interpretation and
effect of this contract. The courts of California, County of Orange,
shall have jurisdiction over the parties in any action at law relating
to the subject matter or the interpretation of this contract.
Id., 817 F.2d at 76 (emphasis added). The Ninth Circuit reasoned that the clause only meant that
Orange County had jurisdiction but not that it was exclusive. The Circuit contrasted the “shall
have jurisdiction language” at issue with the clause in Pelleport, which read “this Agreement shall
be litigated only in the Superior Court for Los Angeles (and in no other ). [Emphasis added.]” Id.
(quoting Pelleport, 741 F.2d at 275). Moreover, the use of the word “shall” is not alone sufficient
to establish mandatory and exclusive jurisdiction. See Hunt Wesson Foods, 817 F.2d at 77
(“Although the word “shall” is a mandatory term, here it mandates nothing more than that the
Orange County courts have jurisdiction.”). The supposed forum selection clause in Hunt Wesson
Foods is much clearer and broader than the clause at issue here and, yet, the Ninth Circuit still
rejected the argument that it was mandatory and exclusive.
Plaintiffs’ cases are not contrary. In Calisher & Associates., Inc. v. RGCMC, LLC, 2008
WL 4949041, at *3 (C.D. Cal. Nov. 17, 2008), the forum selection clause read “[i]f any party
initiates litigation . . . . such litigation shall be subject to the laws and Rules of Evidence of the
state of California with the venue being Los Angeles County Superior Court.” The Calisher &
Associates clause specifically listed the venue as the Superior Court for any litigation. Here, the
purported forum selection clause only states that the Los Angeles Superior Court shall resolve a
dispute over the choice of arbitrator if the parties and their chosen representatives cannot agree. It
to reside in Los Angeles County. There are some retired Los Angeles Superior Court Judges who have gone on to
work in the legal field but outside of the Los Angeles area and even some other retired state judges who have gone on
to sit on the federal bench.
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does not state that the Superior Court must resolve any and all disputes; it merely covers one
specific and very limited dispute. Plaintiffs do not direct the Court to any case where a court held
that a clause which granted authority to a court to decide a single discrete issue constituted an
exclusive and mandatory forum selection clause.
The Confidentiality Provisions also negate a finding that the Arbitration Provision contains
a mandatory and exclusive forum selection clause. The Confidentiality Provisions state:
actions shall be entitled to an award of costs of litigation, including
attorneys’ fees and related costs . . . in such amount as may be
determined by the court having jurisdiction in such action.
See Agreement at p. 52 of 54 (emphasis added). By not naming the Los Angeles Superior Court,
the Confidentiality Provisions seemingly envision that an action to enforce those rights could be
brought in various forums.
While the Agreement may establish the Los Angeles County Superior Court as the only
venue that has the authority to resolve a dispute about which arbitrator to select when there is a
continued conflict between the parties and their surrogates on that point, the plain language of the
Arbitration Provision does not support a finding that the parties intended that court to be the only
forum for other disputes. The parties’ instant disagreement is not about who should serve as the
arbitrator, but rather whether arbitration should be compelled in the first instance.4 Therefore, the
Court would deny Plaintiff’s Motion to Remand.
B. Arbitration Motion
As an alternative to the Motion to Remand, Plaintiffs request that the Court compel
arbitration of its claims against HBO pursuant to the Arbitration Provision in the Agreement.
4
The Court does not think that its interpretation leads to the “absurd” results Plaintiffs envision. See Remand Reply
at 5-6. In the Court’s mind, there is no assurance that the parties will ever need to be in front of the Los Angeles
Superior Court in regards to that issue. Should a determination eventually be made that the present controversy is
subject to arbitration, the parties at that stage could possibly agree on an arbitrator from the outset. Moreover, even if
the parties were to be recalcitrant themselves, the next step is for the selection by each side of a retired judge and for
those two judges to make the choice of a third judge who will preside over the arbitration. Only upon a continued
impasse thereafter would the Los Angeles Superior Court be called upon to resolve the deadlock. It does seem in any
way absurd for this Court to decide the proper forum for the initial decision as to arbitrability even if it were to
ultimately conclude that the parties have clearly agreed to have that matter determined by an arbitrator and, thereafter,
a dispute as to the selection of the arbitrator arose which would have to be decided by the Los Angeles County Superior
Court.
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Arbitration Motion at 1. Anticipating Defendants’ opposition, Plaintiffs further argue that the
Agreement dictates that the arbitrator must decide questions of arbitrability. Id. at 4-5. Defendants
oppose, arguing first that this Court – as opposed to the arbitrator – must determine the gateway
issues of validity of the Agreement and arbitrability of the Petition’s claims. See Arbitration Opp’n
6-9. Defendants, unsurprisingly, argue that the Agreement is terminated, including the Arbitration
provision, and therefore no longer valid. See id. at 10-15. Defendants continue that, even if it
remains in force, the Agreement has nothing to do with Leaving Neverland, and thus the
Arbitration Provision would not even apply to the current dispute. Id. at 15-16. Finally,
Defendants assert that the Disparagement Clause is unenforceable because it violates HBO’s
constitutional rights and various public policies.5 Id. at 17-22.
1. Who Decides Arbitrability?
The first question for the Court is therefore whether it or the arbitrator will decide the
gateway issues of validity and arbitrability. Courts are “normally tasked with two gateway issues
when deciding whether to compel arbitration under the FAA: ‘(1) whether a valid agreement to
arbitrate exists, and if it does, (2) whether the agreement encompasses the dispute at issue.’ ”
Morgan v. Glob. Payments Check Servs., Inc., No. 2:17-CV-01771-JAM-CMK, 2018 WL 934579,
at *2 (E.D. Cal. Feb. 15, 2018) (quoting Chiron Corp., 207 F.3d at 1130). “But the parties can
agree to expressly delegate these gateway issues to an arbitrator, in which case an arbitrator, rather
than a court, must decide the issues.” Id. A court must determine whether the underlying
agreement “clearly and unmistakably” delegated the questions of arbitrability to the arbitrator.
Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015) (internal quotation marks and citations
omitted). Recently, the Supreme Court reiterated these points. See Henry Schein, Inc. v. Archer
& White Sales, Inc., 139 S. Ct. 524, 529 (2019) (explaining that the “parties may agree to have an
arbitrator decide not only the merits of a particular dispute but also ‘gateway’ questions of
‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement
covers a particular controversy.”). The Supreme Court has emphasized that “[w]hen the parties’
contract delegates the arbitrability question to an arbitrator, a court may not override the contract
. . . even if the court thinks that the argument that the arbitration agreement applies to a particular
dispute is wholly groundless.” See id.
5
The Defendants have not raised the specter of the California anti-SLAPP law, California Code of Civil Procedure
§425.16. See e.g. Vivian v. Labrucherie, 214 Cal. App. 4th 267, 274 (2013).
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Plaintiffs’ primary argument (for the proposition that the Arbitration Provision delegates
arbitrability questions to the arbitrator) is that the Provision calls for arbitration according to the
Rules of the American Arbitration Association (“AAA”). See Arbitration Motion at 5; Reply ISO
Arbitration Motion (“Arbitration Reply”), Docket No. 25, at 4-5; Agreement at p. 45 of 54. The
current version of the AAA Rules provide that “[t]he arbitrator shall have the power to rule on his
or her own jurisdiction, including any objections with respect to the existence, scope, or validity
of the arbitration agreement or to the arbitrability of any claim or counterclaim.” See AAA,
Commercial Arbitration Rules and Mediation Procedures, R-7(a) (2013) available at
https://www.adr.org/sites/default/ files/Commercial%20Rules.pdf. And the Ninth Circuit “hold[s]
that incorporation of the AAA Rules constitutes clear and unmistakable evidence that contracting
parties agreed to arbitrate arbitrability.” Brennan, 796 F.3d at 1130.6 Thus, the issue would be
simple enough if the Agreement incorporated the current AAA Rules. However, Defendants argue
that the proper rule for the Court to consider is the AAA rule that existed at the time the parties
entered in to the Agreement, and that the 1992 AAA Rules are silent on the topic of the arbitrator’s
deciding its own jurisdiction. See Arbitration Opp’n at 7-8. Plaintiffs respond that Rule 1 of the
1992 AAA Rules provided that the “rules and any amendment of them shall apply in the form
obtaining at the time the demand for arbitration” is made. Arbitration Reply at 4 (citing
Declaration Nathaniel L. Bach ISO Arbitration Opp’n (“Bach Decl.”), Docket No. 22-2, Ex. A at
p. 8 of 31). In other words, Plaintiffs contend that the Agreement would change along with changes
to the AAA Rules. According to Plaintiffs, most federal courts that have considered the issue have
decided that Rule 1 means that agreements signed before the provision granting arbitrators the
jurisdiction to rule on arbitrability still incorporate the new rule. See Arbitration Reply at 4-5.
The Ninth Circuit has not weighed in on whether agreements signed before the adoption of
the AAA Rule providing that arbitrators could rule on their jurisdiction nonetheless incorporate
that rule based on AAA Rule 1.7 Plaintiffs are correct, however, that numerous courts that have
6
Brennan limited its holding to the facts of that case where both parties were sophisticated, but expressly kept open
the possibility that the same would be true for unsophisticated parties. Id. at 1130-31 (“Thus, our holding does not
foreclose the possibility that this rule could also apply to unsophisticated parties or to consumer contracts. Indeed, the
vast majority of the circuits that hold that incorporation of the AAA rules constitutes clear and unmistakable evidence
of the parties' intent do so without explicitly limiting that holding to sophisticated parties or to commercial contracts.”).
7
To the extent Defendants are arguing that this Court must determine the continued validity of the Agreement as a
whole before analyzing whether the Arbitration Provision commits the question of arbitrability to the arbitrator, they
are misguided. Here, Defendants are not challenging the Arbitration Provision itself as invalid, instead they argue
that the Agreement as a whole has expired. The continued validity of the Agreement as a whole is a question for the
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considered the issue have determined that the earlier-signed agreement incorporated the later-
added rule delineating arbitrability questions to the arbitrator; and that the incorporation of the
later-added rule is a clear and unmistakable delegation of arbitrability. See e.g. Marriott
Ownership Resorts, Inc. v. Flynn, 2014 WL 7076827, at * 14 (D. Haw. 2014) (“Thus, even under
Marriott’s theory that the relevant time was the recording of the Timeshare Agreements (in 1999
and 2001), Marriott agreed at that time to be bound by the AAA rules, as amended, ‘in the form
obtaining at the time the demand for arbitration . . . is received.’ That is, it agreed to be bound by
the rules in existence in 2014.”); JSC Surgutneftegaz v. President & Fellows of Harvard College,
167 Fed. Appx. 266, 268 (2d Cir. 2006) (“Surgut’s argument that the 1996 version of the AAA’s
Commercial Rules does not contain such a clause [committing the question of arbitrability to the
arbitrator] is inapposite because Rule 1 of that version provides that the ‘rules and any amendment
of them shall apply in the form obtaining at the time the demand for arbitration or submission
agreement is received by the AAA.’”); Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d
1263, 1273 (7th Cir. 1976) (“This amendment [to the AAA rules] . . . was in effect at the time
Edison initiated arbitration and thus is binding on the parties according to the terms of the
contract.”); Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc.,
203 F.R.D. 677, 684-85 (S.D. Fla. 2001) (“MedPartners’ only response is to argue that the 1999
version of Rule 8 does not apply here because the Agreement was forged in 1996 and not 1999.
This argument is without merit. As quoted above, Rule 1 of the AAA, which was operative in
1996 at the time of the Agreement, states ‘[t]hese rules and any amendment of them shall apply in
the form obtaining at the time the demand for arbitration or submission agreement is received by
the AAA’ (emphasis added). If MedPartners had wanted to carve out this provision so that it would
not operate to validate any subsequent amendments to the AAA’s rules, it could have done so
rather easily using everyday contract language.”). As is clear from the quoted language in the
parentheticals, many courts reason that the parties to agreements that incorporate the AAA Rules
arbitrator. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006) (“First, as a matter of
substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second,
unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator
in the first instance. Third, this arbitration law applies in state as well as federal courts.”); Bridge Fund Cap. Corp. v.
Fastbucks Franchise Corp., 622 F.3d 996, 1000-01 (9th Cir. 2010) (“[W]hen a plaintiff’s legal challenge is that a
contract as a whole is unenforceable, the arbitrator decides the validity of the contract, including derivatively the
validity of its constituent provisions (such as the arbitration clause) . . . . However, when a plaintiff argues that an
arbitration clause, standing alone, is unenforceable – for reasons independent of any reasons the remainder of the
contract might be invalid – that is a question to be decided by the court.” (citations omitted)).
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are on notice that those rules may change in unexpected ways, and that if the parties intended to
adopt specific rules, they could have contracted around Rule 1. See Arbitration Reply at 4-5
(collecting additional cases that apply the AAA Rules in effect at the time of the arbitration demand
rather than those rules in effect at the time of the agreement).
Defendants only cite Yahoo! Inc. v. Iversen, 836 F. Supp. 2d 1007 (N.D. Cal. 2011), for
the premise that courts consider the AAA Rules in effect at the time of the agreement, rather than
those in effect at the time one party is attempting to compel arbitration. See Arbitration Opp’n at
7-8. Yahoo! did not address the exact issue here though because the AAA Rules in place at the
time the agreement was made seem to have been functionally the same as those in effect when
arbitration was demanded. See Yahoo!, 836 F. Supp. 2d at 1010-12 (noting that as of October 8,
2003 the AAA rules include the AAA Supplementary Rules for Class Arbitration). In other words,
the Yahoo! court did not have to consider what effect a change in the AAA Rules would have on
the delegation clause at issue. Unsurprisingly, therefore, Yahoo! does not discuss the impact of
Rule 1 on the analysis.
The Court did find a few cases that hold that the AAA Rules at the time of the agreement,
rather than at the time of the arbitration demand, are applicable. In Gilbert Street Developers, LLC
v. La Quinta Homes, LLC, 174 Cal. App. 4th 1185 (2009), the California Court of Appeal rejected
the argument that the arbitrator should decide its own jurisdiction where the parties agreed to the
earlier AAA Rules. The court held that to “allow for the incorporation of a rule that might not
even come into existence in the future . . . contravenes the clear and unmistakable rule.” Id. at
1193. While there is not a significant discussion of Rule 1, the court does note its existence, yet
nonetheless rejects its importance. Id. at 1189 n.5. However, Gilbert relies on “California
common law,” instead of the federal arbitrability law,8 and was decided prior to Brennan. See id.
at 1190. In Hasbro, Inc. v. Amron, 419 F. Supp. 2d 678 (E.D. Pa. 2006), district court similarly
declined to apply the post-agreement AAA Rules change allowing the arbitrator to decide
arbitrability because “those rules were not in effect at the time the Settlement Agreement was
executed.” Id. at 685-86. Hasbro, however, did not analyze Rule 1’s language about the applicable
8
Neither party argues that California arbitration law as opposed to federal arbitrability law applies. See Brennan, 796
F.3d at 1129 (“[F]ederal law governs the arbitrability question by default because the Agreement is covered by the
FAA, Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444
(1985), and the parties have not clearly and unmistakably designated that nonfederal arbitrability law applies, see
Cape Flattery Ltd. v. Titan Maritime, 647 F.3d 914, 921 (9th Cir. 2011).”)
11
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rules being those at the time of the arbitration demand. Id.

While the Court recognizes the weight of cases holding that an agreement to incorporate
the AAA Rules is a clear and unmistakable delegation of the arbitrability question, even when the
agreement was signed prior to the incorporation of the new rules on delegation, the Court is not
entirely convinced by the logic underlying those cases. How can it be that the parties clearly and
unmistakably intended for an arbitrator to decide arbitrability when they didn’t even know that the
AAA would years later come up with such a rule?9 To accept that view, it must be assumed that
− no matter what the AAA subsequently adopted pursuant to its Rule 1− the parties clearly and
unmistakably agreed to anything that the AAA might devise. Therefore, if the AAA drafted a new
rule that abolished all pre-trial discovery and any requirement that the arbitrator give reasons for
his or her decision, the courts would have to hold that the parties unmistakably agreed to such
procedures and thus would be bound by those amendments based on the language of Rule 1.10
The Supreme Court has repeatedly and recently reminded courts that they “should not
assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable
evidence that they did so.” See e.g. Henry Schein, Inc., 139 S. Ct. at 531 (quoting First Options
of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). And because the Ninth Circuit has not
weighed in on the precise question here, the Court is not bound to follow the out-of-circuit or
otherwise non-precedential decisions Plaintiffs cite. Further, it bears noting that the Supreme
Court has not even held that incorporation of the AAA Rules (even without the further wrinkle of
the later-added amended rules) constitutes clear and unmistakable evidence of intent to arbitrate
arbitrability. See Henry Schein, Inc., 139 S. Ct. at 528, 531 (remanding for Court of Appeals to
decide whether the contract in fact delegated arbitrability where the contract incorporated the AAA
Rules which placed the arbitrability determination with the arbitrator rather than the court).
In sum, the Court recognizes and understands the cases Plaintiffs cite for their argument
that Rule 1 incorporates the current AAA Rules’ delegation rule. However, the Court is not yet
9
While this Court recognizes that the decision in Gilbert Street Developers is not binding upon it, it does find the
reasoning therein to be persuasive (at least initially). 174 Cal. App. 4th at 192-94.
10
This Court recognizes that there may be certain types of amendments made to the AAA rules which are not of such
great import that the applicable law would not require that the parties’ agreement to such provision would have to be
shown by clear and unmistakable evidence. For example, amendments to AAA Rules which are strictly procedural
in nature (such as providing for preliminary hearings before an arbitrator to discuss the future conduct of the case and
the pre-hearing exchange of documents and witness identifications) could be deemed to fall within the ambit of Rule
1’s adoption by incorporation.
12
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ready to say whether or not it will follow those cases. The parties should discuss this point during
the hearing.
Because the Court has not yet decided whether it or the arbitrator will decide arbitrability,
it will hold off from addressing the arguments in regards to the arbitrability issue.
IV. Conclusion
Based on the foregoing discussion, the Court would deny the motion to remand and hear
further argument before deciding whether the Arbitration Provision clearly and unmistakably
delegates arbitrability questions to the arbitrator.
13
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dpetrocelli@omm.com
dbreuder@omm.com
Telephone: (310) 553-6700
5 Facsimile: (310) 246-6779
Telephone: (213) 229-7804
10 Facsimile: (213) 229-6804
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,
HOME BOX OFFICE, INC., a
22 Delaware corporation; DOES 1 through
unknown,
24
Defendants.
25
26
27
28
OPP. TO MOT. TO COMPEL ARBITRATION
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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

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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

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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

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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

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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

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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.
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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

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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.
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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.

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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

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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

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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

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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

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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.
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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)

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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

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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
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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)).
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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.
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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.

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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

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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

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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

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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

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Case 2:19-cv-01862-GW-PJW ID: 11613681,
22 Filed 05/02/19 9-2, Page
26 of102
28 ofPage
207 ID #:430
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)

ER127
(135 of 239)
Case: 19-56222, 02/28/2020,
Case 2:19-cv-01862-GW-PJW ID: 11613681,
22 Filed 05/02/19 9-2, Page
27 of103
28 ofPage
207 ID #:431
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

ER128
(136 of 239)
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Case 2:19-cv-01862-GW-PJW ID: 11613681,
22 Filed 05/02/19 9-2, Page
28 of104
28 ofPage
207 ID #:432
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
9 By: /s/ Daniel M. Petrocelli

10 Daniel M. Petrocelli

12 Theodore J. Boutrous Jr.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ER129
(137 of 239)
Case 2:19-cv-01862-GW-PJW Document 22-1 Filed 05/02/19 Page 1 of 6 Page ID #:433

dpetrocelli(@,omm.com
2 DREW E. B~UDER (S.B. #198466)
dbreuder(@,omm.com
3 O'MELVENY & MYERS LLP
Telephone: (310) 553-6700
5 Facsimile: (310) 246-6779
tboutrous(@,gibsondunn.com
7 NATHAN1EL L. BACH (S.B. #246518)
nbach(@,gibsondunn.com
Telephone: (213) 229-7804
10 Facsimile: (213) 229-6804
the respective c~acities as CO-
16 EXECUTORS OF THE ESTATE OF DECLARATION OF STEPHANIE
MICHAEL J. JACKSON, S. ABRUTYN IN SUPPORT OF
17 HOME BOX OFFICE, INC.'S
MEMORANDUM OF POINTS AND
18 Plaintiffs, AUTHORITIES IN OPPOSITION
TO PLAINTIFFS' MOTION TO
19 v. COMPEL ARBITRATION
20 HOME BOX OFFICE, a Division of Hearing Date: May 23, 2019
TIME WARNER ENTERTAINMENT, Hearing Time: 8:30 a.m.
HOME BOX OFFICE, INC. a
unknown,
24
Defendants.
25
26
27
28
DECLARATION OF S. ABRUTYN
CASE NO. 2: 19-CV-01862-GW-PJW
ER130
(138 of 239)
1 DECLARATION OF STEPHANIE S. ABRUTYN

2 I, Stephanie S. Abrutyn, declare as follows:
3 1. I am Senior Vice President and Chief Counsel, Litigation, for Home
4 Box Office, Inc. I make this declaration in support of Home Box Office, Inc.' s
5 ("HBO") Memorandum of Points and Authorities in Opposition to Plaintiffs'
6 Motion to Compel Arbitration. This declaration is made based on my personal
7 knowledge of the matters set forth herein and records kept in the ordinary course of
8 business.
9 2. HBO (or its alleged predecessor in interest, Home Box Office, a
10 division of Time Warner Entertainment Company, L.P. ("TWE")) has not
11 performed any specific acts under or pursuant to the July 22, 1992, agreement
12 ("1992 Agreement") since at least as far back as the expiration of the "Holdback
13 Period," on October 10, 1993. Similarly, neither TTC Touring Corporation
14 ("TTC") nor Michael Jackson have performed any acts under or pursuant to the
15 1992 Agreement since the expiration of the Holdback Period.
16 3. The documentary Leaving Never/and was developed and is owned by
17 Amos Pictures Ltd., and was licensed to HBO for distribution in the United States
18 and Canada (as well as Bermuda).
19 4. Attached as Exhibit A is a true and correct copy of Petitioners'
20 counsel's March 5, 2019, letter to HBO, which was received in the ordinary course
21 of business, asking whether HBO would agree to arbitrate Petitioners' claims
22 regarding Leaving Never/and.
23 5. HBO exhibited "Michael Jackson in Concert in Bucharest: The
24 Dangerous Tour" (the "Special") one time, on October 10, 1992. HBO has not
25 exhibited the Special since October 10, 1992. The Special is not currently available
26 on any HBO platform, nor has it been available since the original, one-time
27 exhibition more than 25 years ago.
28
CASE NO . 2:19-CV-01862-GW-PJW
ER131
(139 of 239)
1 6. The confidentiality rider that was incorporated as an addendum to the

2 1992 Agreement was provided by TTC Touring Corporation and/or Mr. Jackson's
3 representatives. It was not drafted by HBO.
4 7. HBO did not receive any notice(s) from TTC or Mr. Jackson's
5 representatives stating that Optimum Productions is assuming any of TTC's alleged
6 ongoing rights or obligations under the 1992 Agreement, or that Optimum
7 Productions is otherwise the successor to TIC with respect to the 1992 Agreement.
8 Nor did HBO receive any notice(s) in connection with the 1992 Agreement
9 providing updated contact information for TTC, MJJ Productions, Inc., or Mr.
10 Jackson (save for Petitioners' counsel's 2019 letters to HBO regarding Leaving
11 Never/and).
12
13 I declare under penalty of perjury under the laws of the United States that the
14 foregoing is true and correct, and that I executed this declaration on May 2, 2019, in
15 New York, New York.
16
17
18
19
20
21
22
23
24
25
26
27
28
2 CASE NO. 2:19-CV-0 1862-GW-PJW
ER132
(140 of 239)
EXHIBIT A
ER133
(141 of 239)
, TT KINSELLA
WEITZMAN Howard Weitzman
!SER Direct Dial: (310) 566-9811
) 'j KUMP& Direct Fax: (310) 566-987 1
E-Mail: hweitzman@kwikalaw.c om
~ .1. ALDISERT tlf'
March 5, 2019
VIA ELECTRONIC MAIL AND FEDERAL EXPRESS
Ms. Eve Konstan

Home Box Office, Inc.
1100 Avenue of the Americas - 15th Floor
New York, NY 10036
(212)512-1171
E-Mail: eve.konstan@hbo.com
Re: Optimum Productions. et al. v. Home Box Office, et al.. LASC Case No. 19
SM CP 00075
Dear Ms Konstan:
We are counsel to the Co-Executors of the Estate of Michael J. Jackson, along with
various wholly-owned entities which own intellectual property and other intangible rights
associated with the late star, including but not limited to Optimum Productions, the successor-
by-merger to the rights of TTC Touring Corp. (collectively the "Estate" or the "Jackson
Estate").
On February 21, 2019, the Jackson Estate filed a Petition to Compel Arbitration
against respondents, the Home Box Office Division of Time Warner Entertainment, LP., and
Home Box Office, Inc. (the latter as apparent successor-in-interest to the former). We
understand that both respondents were served last week through their designated agents for
service of process (collectively both respondents are referred to as "HBO"). Nevertheless, a
conformed copy of the Petition is enclosed with this letter as a courtesy.
There can be no legitimate dispute about the arbitrability of the claims asserted in the
Petition. We therefore write to request that HBO agree to commence the arbitration process
now, pursuant to the mandatory arbitration provisions contained at pages 9 and 10 of the July
22, 1992, agreement between TTC Touring Corp. and HBO, a copy of which is attached as
Exhibit B to the enclosed Petition. As you will see, that provision requires the parties to meet
and confer on choosing a retired judge to act as arbitrator. If the parties cannot agree on a
retired judge, they shall each choose their own retired judge. The two party-appointed retired
judges will then attempt to agree on a third retired judge to serve as sole arbitrator in
connection with the dispute. If the two party-appointed retired judges cannot agree, the
agreement requires that the arbitrator "shall be selected by the Superior Court of the State of
808 Wilshire Boulevard. 3'" Floor. Santa Monica. California 90401 I TelephOne: 310.566.9800 I Fox: 310.566.9850 I Website: www.kWikolaw.com
ER134
(142 of 239)
Ms. Eve Konstan

March 5, 2019
Page 2
California for the County of Los Angeles." Although we are cautiously optimistic that it will
be unnecessary to require the Superior Court to choose the arbitrator, if that becomes
necessary, the Superior Court Judge presiding over our Petition shall make the selection. 1
There should be no need for us to burden the Superior Court with a noticed
motion/petition to compel HBO to arbitrate given its clear and unambiguous agreement to
arbitrate. Accordingly, please let us know by the close of business on Friday March 9, 2018,
whether HBO will agree to arbitrate (rendering any further motion to compel arbitration
unnecessary), and commence the process for choosing an arbitrator. Ifwe do not hear from
you by that date, we will have no choice but to seek an expedited hearing date on our motion
to compel arbitration.
Nothing stated in this letter should be construed as a waiver of any of the Jackson
Estate' s rights and remedies, all of which are expressly reserved.
Very truly yours,
~V)~·
Howard Weitzman
Enclosure: Petition to Compel Arbitration (Conformed Copy)
cc: Mr. Glenn Whitehead, HBO (by email only to glenn.whitehead@hbo.com)

Mr. Jonathan Steinsapir
Mr. Bryan Freedman
Mr. Dale F. Kinsella
I0386.00347/628205
1 Byusing mandatory language- Le., the arbitrator "shall be selected by the Superior
Court of the State of California for the County of Los Angeles"-the arbitration agreement
unambiguously provides that a state court must make this decision. See generally Docksider.
ltd. v. Sea Tech. , ltd., 875 F.2d 762, 764 (9th Cir. 1989) (affirming dismissal to enforce state
court forum selection clause); Calisher & Assocs., Inc. v. RGCM, LLC, 373 Fed. App'x 697
(9th Cir. 2010) (affirming remand to Los Angeles Superior Court to affirm state court forum
selection clause).
ER135
(143 of 239)

dp_~trocelli@01nm.com
dbreuder@omm.com ·
.3 O'MELVENY & MYERS LLP
1999 Avenue.of the Stars, 8th Floor
Telephone: (310) 553-6700
5 Facsimile: (310) 246-6779
tboutrous@gibsondunn.com ·
8 GIBSON,,-DUNN & CRUTCHER LLP
333 Soutn Grand Avenue
Telephone: (213) 229-7804
10 Facsimile: (213) 229-6804
11 Attorneys for Home Box Office, Inc;
.California corporation; and JOHN
the respective C<!mlcities as CO-
16 EXECUTORS OF THE ESTATE OF DECLARATION OF NATHANIEL
MICHAEL J. JACKSON, L. BACH IN SUPPORT OF HOME
17 BOX OFFICE INC.'S .
MEMORANDUM OF POINTS AND
18 Plaintiffs, AUTHORITIES IN OPPOSITION
TO PLAINTIFFS' MOTION TO
19 v. COMPEL ARBITRATION
20 HOME BOX OFFICE, a Division of Heartng D.ate: May 23, 2019
TIME WARNER ENTERTAINMENT, Hearing Time: 8:30 a.m.
HOME BOX OFFICE, INC. a
unknown,
24
Defendants.
25
26
27
28
DECLARATION OF N. BACH IN SUPPORT OF
ER136
(144 of 239)
1 DECLARATION OF NATHANIEL L. BACH

2 · I, Nathaniel L. Bach, declare as follows:
3 1. I am an attorney admitted to practice law in the State of California and
4 an associate at Gibson, Dunn & Crutcher LLP, counsel of record for Home Box
5 Office, Inc. ("HBO") in the aforementioned action. I make this declaration in
6 support of HBO's Memorandum of Points and Authorities in Opposition to
7 Plaintiffs' Motion to Compel Arbitration. This declaration is based on my personal
8 knowledge of the matters set forth herein and records accessed or obtained by
9 HBO's counsel.
10 2. Attached hereto as Exhibit A is a true and correct copy of the ·
11 American Arbitration Association's Commercial Arbitration Rules applicable on
12 and after May 1, 1992.
13 3. Attached hereto as Exhibit B is a true and correct copy of the
14 Certificate of Amendment of Articles of Incorporation renaming Breslauer,
15 Jacobson, Rutman & Sherman, Inc. to Breslauer, Jacobson, Rutman & Chapman,
16 Inc., filed on May 5, 1993, and obtained from the Secretary 9f State of the State of
17 California's website.
18 4. Attached hereto as Exhibit C is a true and correct copy of the
19 Certificate of Amendment of Articles of Incorporation renaming Breslauer,
20 Jacobson, Rutman & Chapman, Inc. to Breslauer, Jacobson & Rutman, Inc., filed
21 on June 28, 1994, and obtained from the Secretary of State of the State of
22 California's website.
23 5. Attached hereto as Exhibit D is a true and correct copy of the
24 Certificate of Dissolution for Breslauer, Jacobson, Rutman, Inc., filed on June 4,
25 2007, and obtained from the Secretary of State of the State of California's website.
(
26 6. Attached hereto as Exhibit Eis a true and correct copy of the

27 Assembly Committee on Judiciary analysis of AB 1682 titled "Confidential
28 Settlement Agreements: Sexual Offenses," dated March 8, 2016.
ER137
(145 of 239)
1 I declare under penalty of perjury of the laws of the United States that the
2 foregoing is true and correct. This declaration is executed on this 2nd day of May,
3 _2019, at Los Angeles~ California.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2 OPP. TO MOT. TO COMPEL ARBITRATION
ER138
(146 of 239)
EXHIBIT A
ER139
(147 of 239)

AZ Phoenix (85012-2365) • Debor,ih Ki:ell-S,hindler
333 East Osborn Road, Snite 310 • (602) 23<!-09501230-2151 (Fax)
CA Irvine (92714-6220) • Lari S. Markowi,:z
2601 Main Street, Suite 240 • (714) 474-5090/474-5087 (Fax)
Los Angeles (90020-0994) • Jerrold L. Murase
443 Shatto Place • (213) 383-65161386-2251 (Fax)
San Diego (92101-5278) • Dennis Sharp
525 C Street, Suite 400 • (619) 239-3051/239-3807 (Fax)
Sau Francisco (94104-1113) • Charles A. Cooper
417 Montgomery Street• (415) 981-3901/781-8426 (fox)
CO Denver (80264-2101) • Mark Appel
1660 Lincoln Street, Suite 2150 • (303) 831-0823/832-3626 (Fax)
CT East flartford (06108-3240) • Karen M. Jalkut
Ul Founders Plaza, Floor 17 • (203) 289-39931282-0459 (Fax)
DC Washington (20036-4104) • Garylee Cox
1150 Conne,;:tlcut Avenue, NW, Floot 6 • (202) 296-85101872-9574 (Fax)
FL Miami (33131-2S01) • Rene Grafals
99 SE Fifth Street, Suite 200 • (305) 358-77771358-4931 (Fax)
Orlando (32801-2742) • Mark Sholander
201 East Pine Street, Suite 800 • (407) 648-1185/649 ..8668 (Fax)
GA Atlanta (30309-3214) • India Johnson
1360 Peachtree Street, NE, Suite 270 • (401) 872-3022/881-1134 (Fax)
Hl Honolulu (96813-4714) • Keith W. Hunter
810 Richards Street, Suite 641 • (8D8) 531-0541/533-·2306 (Fax)
In Guam, (671) 477--18451477-3178 (Fax)
XL Chicago (60601-7601) • David Scott Carfello
American
225 North ~'lichigan Avenue, Suite 2527 • (312) 616-6560/819··0404 (Fax)
LA New Orleans (70130-6101) • Deann Gladwell
650 Poydras Street, Suite 1535 • (504) 522-8781/561--8041 (Fax)
Arbitration
MA lloston (02110-1703) • Richard M, Reilly
133 Federal Street • (617) 451-6600/4S1-0763 (Fax)
Ml Southfield (48034-7405) • Mary A. Bedikian
Ten Oak Hollow Sh·eet, Suite 170 • (313) 352-5500/352-3147 (Fax)
Association
MN Minneapolis (55402-1092) • James R. Deye
514 Nicollet Mall, Suite 670 • (612) 332-6545/342--2334 (Fax)
COMMERCIAL
MO Kansas City (64106-2110) • Lori A. Madden
1101 Walnut Street, Suite 903 • (816) 221-6401/471-5264 (Fax)
St. Louis (63101-1614) • Neil Moldenhauer
One Mercantile Center, Suite 2512 • (314) 621-7175/621-3730 (Fax)
NJ Somerset (08873-4120) • Richard Naimark
ARBITRATION
265 Davidson Avenue, Suite 140 • (908) 560-9560/560-8850 (Fax)
NY Garden City (11530-2004) • Mark A. Resnick
666 Old Country Road, Suite 603 • (516) 222-1660/'745-6447 (Fax).
New York (10020-1203) • Cawlyn M. Penna -
140 West 51st Street • (212) 484-<!000/307-4387 (Fax)
RULES
Syracuse (13202--1376) • Deborah A. Brown
205 South Salina Street • (315) 472-54831472-0966 (Fax)
White Plaills (10601-'1465) • Marion J. Zinman
34 South Broadway • (914) 946~1119/946-2661 (fox)
NC Charlotte (28202-2431) • Neil Carmichael
428 East Fourth Street, Suite 300 • (704) 347-02001347-2804 (Fax)
OH Cincinnati (45202-2809) • Philip S. Thompson
441 Vine Street, Suite 3308 • (513) 241-8434/241-8437 (Fax)
Middleburg Heights (44130-3490) • Audrey Mendenhall
17900 Jefferson Road, Suite 101 • (216) 891-47411891-4740 (Fax) REVISED RULES AND FEES
PA Philadelphia (19102-4106) • Kcmmth Egger FOR CASES FILED
230 South fJroad Street, Floor 6 • (215) 732-52601732-5002 (Fax)
Pittsburgh (15222-1207) • John F. Schano ON OR AFTER MAY 1, 1992
Four Gateway Center, Room ,n9 • (412) 261-36171261-6055 (Fax)
Rl Providence (02903-1082) • Mark Bayliss
115 Cedar Street • (401) 453-3250/453-6194 (Fax)
TN Nashville (37219-2111) • Sheila R. llarton
221 Fourth Avenue North • (615) 256-5857/244-8570 (Fax)
TX Dallas (75240-6620) • Helmut O, Wolff
Two Galleria Tower, Suite 1440 • (214) 702-82221490-9008 (Fax)
Houston i77002-6707) • fherese Tilley ·
1001 Fannin Street, Suite 1005 • (713) 739-13021739-1702 (Fax)
UT Salt Lake City (84111-3834) • Kimberly L. Curtis
M5 South 200 East, SuiW 203 • (801) 531-97481531-0660 (Fax)
WA Seattle (98101-2511) • Neal M. Blacker
1325 Fourth Avenue, Suite 1414 • (206) 622-64351343-5679 (Fax)
AAA5-40M-4/92
ER140
(148 of 239)

Introduction
Each year, many millions of business trans-
actions take place. Occasionally, disagree-
ments develop over these business trans-
actions. Many of these disputes are resolved
by arbitration, the voluntary submission
of a dispute to a disinterested person or
persons for final and binding determina-
tion. Arbitration has proven to be an
effective way to resolve these disputes
privately, promptly, and economically.
The American Arbitration Association

(AAA) is a public-service, not-for-profit
organization offering a broad range of
dispute resolution services to business
executives, attorneys, individuals, trade
associations unions, management, con-
1
sumers, families, communities, and all

levels of government. Services are avail-
able through AAA headquarters in New
York City and through offices located in
major cities throughout the United States.
Hearings may be held at locations conve-
nient for the parties and are not limited
to cities with AAA offices. In addition,
the AAA serves as a center for education
and training, issues specialized publica-
tions, and conducts research on all forms
of out-of-court dispute settlement.
The parties can provide for arbitration of

future disputes by inserting the following
clause into their contracts:
Standard Arbitration Clause

Any controversy or claim arising out of or relat-
ing to this contract, or the breach thereof, shall
be settled by arbitration in accordance with the
Conunercial Arbitration Rules of the American
Arbitration Association, and judgment upon the
award rendered by the arbitrator(s) may be en-
tered in any court having jurisdiction, thereof.
@ 1992, all rights are reserved by the American Arbitration 3

Association.
ER141
(149 of 239)

Arbitration of existing disputes may be Mediation
::iccomplished by use of the following: The parties may wish to submit their
dispute to mediation prior to arbitration.
We, the undersigned parties, hereby agree In mediation, the neutral mediator assists
to submit to arbitration under the Commercial the parties in reaching a settlement, but
Arbitration Rules of the American Arbitration does not have the authority to make a
Association the following controversy: (cite
briefly). We further agree that the above contro-
binding decision or award. Mediation is
versy be submitted to (one)(three) arbitrator(s). administered by the AAA in accordance
We further agree that we will faithfully observe with its Commercial Mediation Rules.
this agreement and the rules, and that we will There is no additional administrative fee
abide by and perform any award rendered by where parties to a pending arbitration
the arbitrator(s) and that a judgment of the
attempt to mediate their dispute under
comt having jurisdiction may be entered upon
the award. the AAA's auspices.
If the parties want to adopt 1nediation

as a part of their contractual dispute
The services of the AAA are generally settlement procedure, they can insert the
concluded with the transmittal of the following mediation clause into their con-
award. Although there is voluntary com- tract in conjunction with a standard arbi-
pliance with the majority of awards, judg- tration provision:
ment on the award can be entered in a
court having appropriate jurisdiction if
If a dispute arises out of or relates to this con-
necessary. tract, or the breach thereof, and if said dispute
cannot be settled through negotiation, the par-
ties agree first to try in good faith to settle the
Administrative Fees dispute by mediation under the Commercial
The AAA' s administrative fees are based Mediation Rules of the American Arbitration
Association, before resorting to arbitration,
on service charges. There is a filing fee litigation, or some other dispute resolution
based on the amount of the claim or procedure.
counterclaim ranging from $300 on
1 i
!..---"-·-·-····~~·-··- - - - - ~
claims below $25,000 to a maximum of
$4,000 for claims in excess of $5 million. If the pa1ties want to use a mediator
In addition, there are service charges for to resolve an existing dispute, they can
hearings held and postponements and a enter into the following submission:
processing fee for prolonged cases. This
fee information, which is contained on
The parties hereby submit the following dispute
pages 21 and 22 of this pamphlet, allows to mediation under the Commercial Mediation
the parties to exercise control over their Rules of the American Arbitration Association.
administrative fees. The fees cover AAA (The clause may also provide for the qualifica-
administrative services; they do not cover tions of the mediator(s), method of payment,
arbitrator compensation or expenses, locale of meetings, and any other item of con-
cern to the parties.)
if any, reporting services, or any post-
award charges incurred by the parties in
enforcing the award.
4 5
ER142
(150 of 239)

Commercial involved, if any, the remedy sought, and the hear-
ing locale requested, and
Arbitration Rules
(b) shall file at any regional office of the AAA
1. Agreement of Parties three copies of the notice and three copies of the
The parties shall be deemed to have made these arbitration provisions of the contract, together with
rules a part of their arbitration agreement whenever the appropriate filing fee as provided in the sched-
they have provided for arbitration by the American ule on page 21.
Arbitration Association (hereinafter AAA) or under
its Commercial Arbitration Rules. These rules and The AAA shall give notice of such filing to the
any amendment of them shall apply in the form respondent or respondents. A respondent may file
obtaining at the time the demand for arbitration or an answering statement in duplicate with the AAA
submission agreement is received by the AAA. The within ten days after notice from the AAA, in
parties, by written agreement, may vary the proce- which event the respondent shall at the same time
dures set forth in these rules. send a copy of the answering statement to the
claimant. If a counterclaim is asserted, it shall
2. Name of Tribunal contain a statement setting forth the nature of the
Any tribunal constituted by the parties for the set- counterclaim, the amount involved, if any, and the
tlement of their dispute under these rules shall be remedy sought. If a counterclaim is made, the ap-
called the Commercial Arbitration Tribunal. propriate fee provided in the schedule on page 21
shall be forwarded to the AAA with the answering
3. Administrator and Delegation of Duties statement. If no answering statement is filed with-
When parties agree to arbitrate under these rules, in the stated time, it will be treated as a denial of
or when they provide for arbitration by the AAA the claim. Failure to file an answering statement
and an arbitration is initiated under these rules, shall not operate to delay the arbitration.
they thereby authorize the AAA to administer the
arbitration. The authority and duties of the AAA 7. Initiation under a Submission
are prescribed in the agreement of the parties and Parties to any existing dispute may commence
in these rules, and may be carried out through such an arbitration under these rules by filing at any
of the AAA's representatives as it may direct. regional office of the AAA three copies of a written
submission to arbitrate under these rules, signed
4. National Panel of Arbitrators by the parties. It shall contain a statement of the
The AAA shall establish and maintain a National matter in dispute, the amount involved, if any, the
Panel of Commercial Arbitrators and shall appoint remedy sought, and the hearing locale requested,
arbitrators as provided in these rules. together with the appropriate filing fee as provided
in the schedule on page 21.
5. Regional Offices
The AAA may, in its discretion, assign the 8. Changes of Claim
administration of an arbitration to any of its After filing of a claim, if either party desires to
regional offices. make any new or different claim or counterclaim,
it shall be made in writing and filed with the
6. Initiation under an Arbitration AAA, and a copy shall be mailed to the other
Provision in a Contract party, who shall have a period of ten days from
Arbitration under an arbitration provision in a con- the date of such mailing within which to file an
tract shall be initiated in the following manner: answer with the AAA. After the arbitrator is ap-
pointed, however, no new or different claim ma)'
(a) The initiating party (hereinafter claimant) shall, be submitted except with the arbitrator's consent.
within the time period, if any, specified in the
contract(s), give written notice to the other party 9. Applicable Procedures
(hereinafter respondent) of its intention to arbitrate Unless the AAA in its discretion determines other-
(demand), which notice shall contain a statement wise, the Expedited Procedures shall be applied in any
setting forth the nature of the dispute, the amount case where no disclosed claim or counterclaim exceeds
6 7
ER143
(151 of 239)

$50,000, exclusive of interest and arbitration costs. requested. If a party objects to the locale requested
Parties may also agree to using the Expedited Proce- by the other party, the AAA shall have the power
dures in cases involving claims in excess of $50,000. to determine the locale and its decision shall be
The Expedited Procedures shall be applied as final and binding.
described in Sections 53 through 57 of these rules,
in addition to any other portion of these rules that 12. Qualifications of an Arbitrator
is not in conflict with the Expedited Procedures. Any neutral arbitrator appointed pursuant to
Section 13, 14, 15, or 54, or selected by mutual
All other cases shall be administered in accordance choice of the parties or their appointees, shall be
with Sections 1 through 52 of these rules. subject to disqualification for the reasons specified
in SectiOn 19. If the parties specifically so agree
10. Administrative Conference, Preliminary in writing, the arbitrator shall not be subject to
Hearing, and Mediation Conference disqualification for those reasons.
At the request of any party or at the discretion of
the AAA, an administrative conference with the Unless the parties agree otherwise, an arbitrator
AAA and the parties and/or their representatives selected unilaterally by one party is a party-
will be scheduled in appropriate cases to expedite appointed arbitrator and is not subject to dis-
the arbitration proceedings. There is no administra- qualification pursuant to Section 19.
tive fee for this service.
The term "arbitrator" in these rules refers to the
In large or complex cases, at the request of any arbitration panel, whether composed of one or
party or at the discretion of the arbitrator or the more arbitrators and whether the arbitrators are
AAA, a preliminary hearing with the parties and/ neutral or party appointed.
or their representatives and the arbitrator may be
scheduled by the arbitrator to specify the issues to 13. Appointment from Panel
be resolved, to stipulate to uncontested facts, and If the parties have not appointed an arbitrator and
to consider any other matters that will expedite the have not provided any other method of appoint-
arbitration proceedings. Consistent with the expe- ment, the arbitrator shall be appointed in the fol-
dited nature of arbitration, the arbitrator may, at lowing manner: immediately after the filing of
the preliminary hearing, establish (i) the extent of the demand or submission, the AAA shall send
and schedule for the production of relevant docu- simultaneously to each party to the dispute an
ments and other information, (ii) the identification identical list of names of persons chosen from
of any witnesses to be called, and (iii) a schedule the panel.
for further hearings to resolve the dispute. There is
no adminish·ative fee for the first preliminary hearing. Each party to the dispute shall have ten days from
the transmittal date in which to strike any names
With the consent of the parties, the AAA at any objected to, number the remaining names in order
stage of the proceeding may arrange a mediation of preference, and return the list to the AAA. If
conference under the Commercial Mediation Rules, a party does not return the list within the time
in order to facilitate settlement. The mediator shall specified, all persons named therein shall be
not be an arbitrator appointed to the case. Where deemed acceptable. From among the persons who
the parties to a pending arbitration agree to mediate have been approved on both lists, and in accord··
under the AAA' s rules, no additional administra- ance with the designated order of mutual prefer-
tive fee is required to initiate the mediation. ence, the AAA shall invite the acceptance of
an arbitrator to serve. If the parties fail to agree
11. Fixing of Locale on any of the persons named, or if acceptable
The parties may mutually agree on the locale arbitrators are unable to act, or if for any other
where the arbitration is to be held. If any party reason the appointment cannot be made from
requests that the hearing be held in a specific the submitted lists, the AAA shall have the power
locale and the other party files no objection thereto _to make the appointment from among other mem-
within ten days after notice of the request has been bers of the panel without the submission of addi-
sent to it by the AAA, the locale shall be the one tional lists.
8 9
ER144
(152 of 239)

14. Direct Appointment by a Party 16. Nationality of Arbitrator
If the agreement of the parties names an arbitrator in International Arbitration
or specifies a method of appointing an arbitrator, Where the parties are nationals or residents of dif-
that designation or method shall be followed. ferent countries, any neutral arbitrator shall, upon
The notice of appointment, with the name and the request of either party, be appointed from
address of the arbitrator, shall be filed with the among the nationals of a country other than that of
AAA by the appointing party. Upon the request any of the parties. The request must be made prior
of any appointing party, the AAA shall submit to the time set for the appointment of the arbitra-
a list of members of the panel from which tor as agreed by the parties or set by these rules.
the party may, if it so desires, make the
appointment. 17. Number of Arbitrators
If the arbitration agreement does not specily the
If the agreement specifies a period of time number of arbitrators, the dispute shall be heard
within which an arbitrator shall be appointed and determined by one arbitrator, unless the AAA,
and any party fails to make the appointment in its discretion, directs that a greater number of
within that period, the AAA shall make the arbitrators be appointed.
appointment.
18. Notice to Arbitrator of Appointment
If no period of time is specified in the agreement, Notice of the appointment of the neutral arbih·ator,
the AAA shall notify the party to make the ap- whether appointed mutually by the parties or
pointment. If within ten days thereafter an arbi- by the AAA, shall be sent to the arbitrator by
trator has not been appointed by a party, the AAA the AAA, together with a copy of these rules,
shall make the appointment. and the signed acceptance of the arbitrator shall
be filed with the AAA prior to the opening of
15. Appointment of Neutral Arbitrator the first hearing.
by Party-Appointed Arbitrators
or Parties 19. Disclosure and Challenge Procedure
If the parties have selected party-appointed arbi- Any person appointed as neutral arbitrator shall
trators, or if such arbitrators have been appointed disclose to the AAA any circumstance likely to
as provided in Section 14, and the parties have affect impartiality, including any bias or any finan-
authorized them to appoint a neutral arbitrator cial or personal interest in the result of the arbitra-
within a specified time and no appointment is tion or any past or present relationship with the
made within that time or any agreed extension, parties or their representatives. Upon receipt of
the AAA may appoint a neutral arbitrator, who such information from the arbitrator or another
shall act as chairperson. source, the AAA shall communicate the informa-
tion to the parties and, if it deems it appropriate to
If no period of time is specified for appointment do so, to the arbitrator and others. Upon objection
of the neutral arbitrator and the party-appointed of a party to the continued service of a neutral
arbitrators or the parties do not make the appoint- arbitrator, the AAA shall determine whether
ment within ten days from the date of the appoint- the arbitrator should be disqualified and shall
ment of the last party-appointed arbitrator, the inform the parties of its decision, which shall
AAA may appoint the neutral arbitrator, who shall be conclusive.
act as chairperson.
20. Vacancies
If the parties have agreed that their party- If for any reason an arbitrator is unable to perform
appointed arbitrators shall appoint the neutral the duties of the office, the AAA may, on proof
arbitrator from the panel, the AAA shall furnish satisfactory to it, declare the office vacant. Vacancies
to the party-appointed arbitrators, in the manner shall be filled in accordance with the applicable
provided in Section 13, a list selected from provisions of these rules.
the panel, and the appointment of the neutral
arbitrator shall be made as provided in that In the event of a vacancy in a panel of neutral
section. arbitrators after the hearings have commenced,
10 11
ER145
(153 of 239)

the remaining arbitrator or arbitrators may 26. Postponements
continue with the hearing and determination The arbitrator for good cause shovV11 may postpone
of the controversy, unless the parties agree any hearing upon the request of a party or
otherwise. upon the arbitrator's own initiative, and shall
also grant such postponement when all of the
21. Date, Time, and Place of Hearing parties agree.
The arbitrator shall set the date, time, and place
for each hearing. The AAA shall send a notice of 27. Oaths
hearing to the parties at least ten days in advance Before proceeding with the first hearing, each
of the hearing date, unless otherwise agreed by arbitrator may take an oath of office and, if re-
the parties. quired by law, shall do so. The arbitrator may
require witnesses to testify under oath adminis-
22. Representation tered by any duly qualified person and, if it
Any party may be represented by counsel or other is required by law or requested by any party,
authorized representative. A party intending to be shall do so.
so represented shall notify the other party and the
AAA of the name and address of the representa- 28. Majority Decision
tive at least three days prior to the date set for All decisions of the arbitrators must be by
the hearing at which that person is first to appear. a majority. The award must also be made by
When such a representative initiates an arbitration a majority unless the concurrence of all is ex-
or responds for a party, notice is deemed to have pressly required by the arbitration agreement
been given. or by law.
23. Stenographic Record 29. Order of Proceedings

Any party desiring a stenographic record shall and Communication with Arbitrator
make arrangements directly with a stenographer A hearing shall be opened by the filing of the oath
and shall notify the other parties of these arrange- of the arbitrator, where required; by the recording
ments in advance of the hearing. The requesting of the date, time, and place of the hearing, and
party or parties shall pay the cost of the record. the presence of the arbitrator, the parties, and their
If the transcript is agreed by the parties to be, representatives, if any; and by the receipt by the
or determined by the arbitrator to be, the official arbitrator of the statement of the claim and the
record of the proceeding, it must be made available answering statement, if any.
to the arbitrator and to the other parties for inspec-
tion, at a date, time, and place determined by The arbitrator may, at the beginning of the hear-
the arbitrator. ing, ask for statements clarifying the issues in-·
valved. In some cases, part or all of the above
24. Interpreters will have been accomplished at the preliminary
Any party wishing an interpreter shall make all hearing conducted by the arbitrator pursuant to
arrangements directly with the interpreter and shall Section 10.
assume the costs of the service.
The complaining party shall then present evidence
25. Attendance at Hearings to support its claim. The defending party shall
The arbitrator shall maintain the privacy of the then present evidence supporting its defense.
hearings unless the law provides to the contrary. Witnesses for each party shall submit to questions
Any person having a direct interest in the arbitra- or other examination. The arbitrator has the dis-
tion is entitled to attend hearings. The arbitrator cretion to vary this procedure but shall afford
shall otherwise have the power to require the ex- a full and equal opportunity to all parties for
clusion of any witness, other than a party or other the presentation of any material and relevant
essential person, during the testimony of any other evidence.
witness. It shall be discretionary with the arbitrator
to determine the propriety of the attendance of any Exhibits, when offered by either party, may be
other person. received in evidence by the arbitrator.
12 13
ER146
(154 of 239)

The names and addresses of all witnesses and a evidence shall be filed with the AAA for transmis-
description of the exhibits in the order received sion to the arbitrator. All parties shall be afforded
shall be made a part of the record. an opportunity to examine such documents or
other evidence.
There shall be no direct communication between
the parties and a neutral arbitrator other than at 33. Inspection or Investigation
Ol'al hearing, unless the parties and the arbitrator An arbitrator finding it necessary to make an
agree otherwise. Any other oral or written commu- inspection or investigation in connection with the
nication from the parties to the neutral arbitrator arbih·ation shall direct the AAA to so advise the
shall be directed to the AAA for h·ansmittal to parties. The arbitrator shall set the date and time
the arbitrator. and the AAA shall notify the parties. Any party
who so desires may be present at such an inspec-
30. Arbitration in the Absence of a Party tion or investigation. In the event that one or all
or Representative parties are not present at the inspection or investi-
Unless the law provides to the contrary, the arbi- gation, the arbitrator shall make a verbal or written
tration may proceed in the absence of any party report to the parties and afford them an opportuni-
or representative who, after due notice, fails to ty to comment.
be present or fails to obtain a postponement. An
award shall not be made solely on the default of 34. Interim Measures
a party. The arbitrator shall require the party who The arbih·ator may issue such orders for interim
is present to submit such evidence as the arbitrator relief as may be deemed necessary to safeguard
may require for the making of an award. the property that is the subject matter of the arbi-
tration, without prejudice to the rights of the par-
31. Evidence ties or to the final determination of the dispute.
The parties may offer such evidence as is relevant
and material to the dispute and shall produce such 35. Closing of Hearing
evidence as the arbitrator may deem necessary to The arbitrator shall specifically inquire of all parties
an understanding and determination of the dis- whether they have any further proofs to offer or
pute. An arbitrator or other person authorized by witnesses to be heard. Upon receiving negative
law to subpoena witnesses or documents may do replies or if satisfied that the record is complete,
so upon the request of any party or independently. the arbitrator shall declare the hearing closed.
The arbitrator shall be the judge of the relevance If briefs are to be filed, the hearing shall be de-
and materiality of the evidence offered, and con- clared closed as of the final date set by the arbitra-
formity to legal rules of evidence shall not be nec- tor for the receipt of briefs. If documents are to be
essary. All evidence shall be taken in the presence filed as provided in Section 32 and the date set for
of alf of the arbitrators and all of the parties, ex- their receipt is later than that set for the receipt of
cept where any of the parties is absent in default briefs, the later date shall be the date of closing the
or has waived the right to be present. hearing. The time limit within which the arbitrator
is required to make the award shall commence
32. Evidence by Affidavit and to run, in the absence of other agreements by
Posthearing Filing of Documents the parties, upon the closing of the hearing.
or Other Evidence
The arbitrator may receive and consider the evi- 36. Reopening of Hearing
dence of witnesses by affidavit, but shall give it The hearing may be reopened on the arbitrator's
only such weight as the arbitrator deems it entitled initiative, or upon application of a party, at any
to after consideration of any objection made to its time before the award is made. If reopening the
admission. hearing would prevent the making of the award
within the specific time agreed on by the parties
If the parties agree or the arbitrator directs that in the contract(s) out of which the controversy has
documents or other evidence be submitted to the arisen, the matter may not be reopened unless the
arbitrator after the hearing, the documents or other parties agree on an extension of time. When no
14 15
ER147
(155 of 239)

specific date is fixed in the contract, the arbitrator 42. Form of Award
may reopen the hearing and shall have thirty days The award shall be in writing and shall be signed
from the closing of the reopened hearing within by a majority of the arbitrators. It sha!l be executed
which to make an award. in the manner required by law.
37. Waiver of Oral Hearing 43. Scope of Award

The parties may provide, by written agreement, for The arbitrator may grant any remedy or relief that
the waiver 0f oral hearings in any case. If the par- the arbitrator deems just and equitable and within
ties are unable to agree as to the procedure, the the scope of the agreement of the parties, includ-
AAA shall specify a fair and equitable procedure. ing, but not limited to, specific performance of a
contract. The arbitrator shall, in the award, assess
38. Waiver of Rules arbitration fees, expenses, and compensation as
Any party who proceeds with the arbitration after provided in Sections 48, 49, and 50 in favor of any
knowledge that any provision or requirement of party and, in the event that any administrative fees
these rules has not been complied with and who or expenses are due the AAA, in favor of the AAA.
fails to state an objection in writing shall be deemed
to have waived the right to object. 44. Award upon Settlement
If the parties settle their dispute dming the course
39. Extensions of Time of the arbitration, the arbitrator may set forth the
The parties may modify any period of time by mu- terms of the agreed settlement in an award. Such
tual agreement. The AAA or the arbitrator may for an award is referred to as a consent award.
good cause extend any period of time established
by these rules, except the time for making the award. 45. Delivery of Award to Parties
The AAA shall notify the parties of any extension. Parties shall accept as legal delivery of the award
the placing of the award or a true copy thereof in
40. Serving of Notice the mail addressed to a party or its representative
Each party shall be deemed to have consented that at the last known address, personal service of
any papers, notices, or process necessary or proper the award, or the filing of the award in any other
for the initiation or continuation of an arbitration manner that is permitted by law.
under these rules; for any court action in connec-
tion therewith; or for the entry of judgment on any 46. Release of Documents
award made under these rules may be served on for Judicial Proceedings
a party by mail addressed to the party or its repre- The AAA shall, upon the written request of a par-
sentative at the last known address or by personal ty, furnish to the party, at its expense, certified
service, in or outside the state where the arbitra- copies of any papers in the AAA's possession that
tion is to be held, provided that reasonable oppor- may be required in judicial proceedings relating to
tunity to be heard with regard thereto has been the arbitration.
granted to the party.
47. Applications to Court
The AAA and the parties may also use facsimile and Exclusion of Liability
transmission, telex, teler,>ram, or other written (a) No judicial proceeding by a party relating
forms of electronic communication to give the to the subject matter of the arbitration shall be
notices required by these rules. deemed a waiver of the party's right to arbitrate.
41. Time of Award (b) Neither the AAA nor any arbitrator in a pro-
l11e award shall be made promptly by the arbitra- ceeding under these rules is a necessary party in
tor and, unless otherwise agreed by the parties or judicial proceedings relating to the arbitration.
specified by law, no later than thirty days from
the date of closing the hearing, or, if oral hearings (c) Parties to these rules shall be deemed to have
have been waived, from the date of the AAA's consented that judgment upon the arbitration
transmittal of the final statements and proofs to award may be entered in any federal or state court
the arbitrator. having jurisdiction thereof.
16 17
ER148
(156 of 239)

(d) Neither the AAA nor any arbitrator shall be 51. Deposits
li.:ible to any party for any act or omission in con- The AAA may require the parties to deposit in
nection with any arbitration conducted under advance of any hearings such sums of monev as it
these rules. deems necessary to cover the expense of the" arbi ..
h·ation, including the arbitrator's fee, if any, and
48. Administrative Fees shall render an accounting to the parties and re-
As a not-for-profit organization, the AAA shall turn any unexpended balance at the conclusion
prescribe filing and other administrative fees to of the case.
compensate it for the cost of providing adminish·a-
tive services. The fees in effect when the demand 52. Interpretation and Application of Rules
for arbitration or submission agreement is received The arbitrator shall interpret and apply these rules
shall be applicable. insofar as they relate to the arbitrator's powers
and duties. When there is more than one arbitrator
The filing fee shall be advanced by the initiating and a difference arises among them concerning the
party or parties, subject to final apportionment by meaning or application of these rules, it shall be
the arbitrator in the awm·d. decided by a majority vote. If that is not possible,
either an arbih·ator or a party may refer the ques-
The AAA may, in the event of extreme hardship tion to the AAA for final decision. All other rules
on the part of any party, defer or reduce the shall be interpreted and applied by the AAA.
administrative fees.
49. Expenses Expedited Procedures

The expenses of witnesses for either side shall be
paid by the party producing such witnesses. All 53. Notice by Telephone
other expenses of the arbitration, including required The parties shall accept all notices from the AAA
travel and other expenses of the arbitrator, AAA by telephone. Such notices by the AAA shall sub-
representatives, and any witness and the cost of sequently be confirmed in writing to the parties.
any proof produced at the direct request of the Should there be a failure to confirm in writing any
arbitrator, shall be borne equally by the parties, notice hereunder, the proceeding shall nonetheless
unless they agree otherwise or unless the arbitrator be valid if notice has, in fact, been given
in the award assesses such expenses or any part by telephone.
thereof against any specified party or parties.
54. Appointment and Qualifications
50. Neutral Arbitrator's Compensation of Arbitrator
Unless the parties agree otherwise, members The AAA shall submit simultaneously to each party
of the National Panel of Commercial Arbih·ators an identical list of five proposed arbitrators drawn
appointed as neutrals will serve without compen- from the National Panel of Commercial Arbitrators,
sation tor the first day of service. from which one arbitrator shall be appointed.
Thereafter, compensation shall be based on the Each party may strike two names from the list on a
amount of service involved and the number of peremptory basis. The list is returnable to the AAA
hearings. An appropriate daily rate and other within seven days from the date of the AAA' s
arrangements will be discuss~d by the adminis- mailing to the parties.
trator with the parties and the arbitrator. If the
parties fail to agree to the terms of compensation, If for any reason the appointment of an arbitrator
an appropriate rate shall be established by cannot be made from the list, the AAA may make
the AAA and communicated in writing to the appointment from mnong other members of the
the parties. panel without the submission of additional lists.
Any arrangement for the compensation of a neutral The parties will be given notice by telephone by
arbitrator shall be made through the AAA and not the AAA of the appointment of the arbitrator, who
directly between the parties and the arbitrator. shall be subject to disqualification for the reasons
18 19
ER149
(157 of 239)

specified in Section 19. Within seven days, the Administrative Fees
parties shall notify the AAA, by telephone, of any
objection to the arbitrator appointed. Any objection The AAA's administrative charges are based on
by a party to the arbitrator shall be confirmed in filing and service fees. Arbitrator compensation, if
writing to the AAA with a copy to the other party any, is not included. Unless the parties agree oth-
or parties. erwise, arbitrator compensation and administrative
fees are subject to allocation by the arbitrator in
55. Date, Time, and Place of Hearing the award.
The arbitrator shall set the date, time, and place
of the hearing. The AAA will notify the parties Filing Fees
by telephone, at least seven days in advance of A nonrefundable filing fee is payable in full by a
the hearing date. A formal notice of ]waring will filing party when a claim, counterclaim, or addi-
also be sent by the AAA to the pa1ties. tional claim is filed, as provided below.
56. The Hearing Amount of Claim Filing Fee

Generally, the hearing shall be completed within Up to $25,000 $300
one day, unless the dispute is resolved by submis- Above $25,000 to $50,000 $500
sion of documents under Section 37. The arbitra- Above $50,000 to $250,000 $1,000
tor, for good cause shown, may schedule an addi- Above $250,000 to $500,000 $2,000
tional hearing to be held within seven days. Above $500,000 to $5,000,000 $3,000
Above $5,000,000 $4,000
57. Time of Award
Unless otherwise agreed by the parties, the award When no amount can be stated at the time of fil-
shall be rendered not later than fourteen days from ing, the filing fee is $1,000, subject to adjustment
the date of the closing of the hearing. when the claim or counterclaim is disclosed.
When a claim or counterclaim is not for a mone-

tary amount, an appropriate filing fee will be
determined by the AAA.
Hearing Fees
For each day of hearing held before a single arbi-
trator, an administrative fee of $100 is payable by
each party.
For each day of hearing held before a multiarbitra-

tor panel, an administrative fee of $150 is payable
by each party.
Postponement Fees
A fee of $100 is payable by a party causing a post-
ponement of any hearing scheduled before a single
arbitrator.
A fee of $150 is payable by a party causing a post-

ponement of any hearing scheduled before a multi-
arbitrator panel.
Processing Fees
No processing fee is payable until 180 days after a
case is initiated.
20 21
ER150
(158 of 239)

On single-arbitrator cases, a processing fee of $150 An Index to Section Numbers
per party is payable 180 days after the case is initi-
ated, and every 90 days thereafter, until the case is Administrative Conferences ............................ 10
Administrative Fees ........................... Pages 21-22
withdrawn or settled or the hearings are closed by Arrangements for .................. 48
the arbitrator. Deposits for . . . . . . . . . . . . . . . . . . . . . 51
Suspension of Administration
for Nonpayment of .......... Page 22
On multiarbitrator cases, a processing fee of $200 Agreements, Arbitration ...................... ·_ .. 1
Answers .............................................. 6
per party is payable 180 days after the case is initi· Applications to Court ................................. 47
ated, and every 90 days thereafter, until the case is Applicable Procedures .................................. 9
withdrawn or settled or the hearings are closed by Arbitrators, Appointment of ................ 13, 15
Communication with . . . . . . . . . . . . . . . 29
the arbitrators. Compensation of ................... 50
Deposits for Fees of . . . . . . . . . . . . . . 51
Direct Appointment of . . ........ 14
Suspension for Nonpayment Disclosure by ...................... 19
If arbitrator compensation or administrative charges Disqualification of .................. 19
Notice to .......................... 18
have not been paid in full, the AAA may so in- Number of ........................ 17
form the parties in order that one of them may Party Appointed ................. 14
make the required payment. If such payments are Qualifications of . . . . . . . . . . . . . . . . . 12
Awards, Delivery of . . . . . . . . . . . . . . . . . . 45
not made, the arbitrator may order the suspension Due Dates of . . ........... 41, 57
or termination of the proceedings. If no arbifrator Form of . . . . . . ........ 42
Scope of .. . ........ 43
has yet been appointed, the AAA may suspend Settlement . . ........ 44
the proceedings in such a situation. Changes of Claims . . . . . . . . . . . . . ............ 8
Communication with Arbitrators . . . . 29
Counterclaims ............... - - - ... · , , , - . . . . . . . . . . . 6
Hearing Room Rental Demands for Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6
Rooms for hearings are available on a rental basis. Disclosure by Atbitrators . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Evidence, bv Affidavit . . . . . . . . . . . . . . . . . . . 32
Check with our local office for availability and rates. by Subpoena . . . . . . . . . . . . ........ 31
Posth€aring Filing of ........... 32
Expedited Procedures ................. , .......... 9, 53-57
Expenses . . . . . . . . . . . . . . ......................... 49
Extensions of Time . . . . . . . . . . . . . . . . . . - . - .............. 39
Filing of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Fees for . . . . . . . . . . . . . . . 21
Foreign Arbitrators, Requests for . . . . . . .. . .. .. .. . . 16
Hearing. Absent a Party . . . . . . . . . . . . . . . . . . . . . 30
Additional . . . . . . . . . . . . . . . 56
Attendance at ..................... 25
Closing of ......................... 35
Dates, Times, and Places of ..... 21, 55
Fees for . . . . . . .................... 21
Order of Proceedings of ............ 29
Reopening of . . . . . . . . . . . . . . . . . . . . . . 36
Waiver of Oral .................. 37
Inspection, on-Site . . . . . . . . . . . . . . . . . . . . ..... 33
Interim Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 34
Interpreters ........................................... 24
Judicial Proceedings, Exclusion of Liability from ...... , .. 47
Release of Documents for .......... 46
Locale, Determination of ............... 11
Majority Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Mediation Conferences . . . . . . . . . . . . . .. . . . . . . . . 10
Oaths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 27
Party-Appointed Arbitrntors ............................ 14
Postponements, Conditions for . . . . . . . . . . . 26
Fees for . . . . . . . . . . . . . . . . . . Page 21
Preliminary Hearing . . . . . . . . . . . . . . . . . . . . . . . ....... 10
Processing, Fees for . . . . . . . . . . . . . . . . . . . . . . . .. 21
Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Rules, Interpretation of .............. 1, ,52
Waiver of .. . .. . . . . . .. .. .. .. .. . . 38
Serving of Notice, Electronic ........................ 40
Parameters for .................... 40
Telephone ........................ 53
Stenogr~phic Records : ................................ 23
Subm1ss1ons to Arb1trat10n .............................. 7
Vacancies . . . . . . . . . . . . .......... , . , . - 19
Waiver of Oral Hearing . . . . . . . ..... 37
22 of Rules ... . . .. .. ... . ..... 38
ER151
(159 of 239)
EXHIBIT B
ER152
(160 of 239)
FILED
CERTIFICATE OF AMENDMENT ln thv oftice of 1he SeaelatY !" State
of the State of California
HAY o5 199.3
ARTICLES OF INCORPORATION
i~J~~
MICHAEL RUTMAN AND NANCY GAIL CHAPMAN certify that:
1. They are the president and the secretary, respectively,
of BRESLAUER, JACOBSON, RUTMAN & SHERMAN, INC., a
California corporation.
2. Article I of the articles of incorporation of this
corporation is amended to read as follows:
"The name of this corporation is BRESLAUER, JACOBSON,
RUTMAN & CHAPMAN, INC. 11
3. The foregoing amendment of articles of incorporation

has been duly approved by the board of directors.
4. The foregoing amendment of articles of incorporation
has been duly approved by the required vote of
shareholders in accordance with Section 902 of the
Corporations Code. The total number of outstanding
shares of the corporation is 9,575. The number of
shares voting in favor of the amendment equaled or
exceeded the vote required. The percentage vote
required was more than 50%.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this
certificate are true and correct of our own knowledge.
Date: --'lt'-"-'Pi,__'fl..;;...l_l.._ _3-=i)_, 19 9 3
M I ~ President
CHAPMAN, Secretary
nc\BRBSLAUER\CertAmad.Art
ER153
(161 of 239)
EXHIBIT C
ER154
(162 of 239)
Case 2:19-cv-01862-GW-PJW Document 22-2 Filed 05/02/19 Page 20 of 31 PageFILED

ID #:458 ~;,
In the office of the Secretary of SIOl8
of the State of Cafffomla .
CERTIFICATE OF AMENDMENT JUN 2 8 1994

OF ~
ARTICLES OF INCORPORATION ~~ /£(~
Acting Secretary qf State
Michael Rutman and Joel Jacobson certify that:

1. They are the President and Secretary, respectively, of
Breslauer, Jacobson, Rutman & Chapman, Inc., a California
corporation.
2. Article I of the articles of incorporation of this
corporation is amended to read as follows:
"The name of this corporation is Breslauer,

Jacobson & Rutman, Inc."
3. The foregoing amendment of articles of incorporation has

been duly approved by the board of directors.
4. The foregoing amendment of articles of incorporation has

been duly approved by the required vote of shareholders in
accordance with Section 902 of the corporations Code. The total
number of outstanding shares of this corporation is 6,476. The
number of shares voting in favor of · the amendment equaled or
exceeded the vote required. The percentage vote required was more
than 50%.
The undersigned declare under penalty of perjury under the

laws of the State of California that the matters set forth in the
foregoing Certificate are true.of our own knowledge.
Date: June 20, 1994
4554400002-350590.1
ER155
(163 of 239)
EXHIBIT D
ER156
(164 of 239)
00862485
~
I DISSSTK . FILED
~ State of California m the office of the Secretary of State
of the State of California
Secretary of State
i ?7 L(:;1~
DOMESTIC STOCK CORPORATION JUN - 4 2DDl
CERTIFICATE OF DISSOLUTION
There Is no fee for f!lfng a Certificate of Dissolution.
IMPORTANT-Rend Instructions before completing this fonn. Thia Spece For FIiing Usa Only
CORPORATE NAME \En\er the name 01 lhe domes\lo e\ocll rorporation exactly a11 I\ \11 o1 reco1d wilh the Celllomla Secrc\a ry ol Stale.)
1. Nam~ of eorporallon
Breslauer, Jacobson & Rutman, Inc.

REQUIRED STATEMENTS (The following statement& are required by statute and 1houl(I not bs all•rtd.)
~- a) A flnal franchise tax return, as described by Section 23332 of the Revenue and Taxation Coda, has been or will be med with the Franchise
Tax Board, as required under Part 10.2 (commencing with Section 18401) of Division 2 of the Revenue and Taxe!lonCoda.
b) The corporation has completely wound up.
c) The corporal/on le dissolved.
DEBTS & LIABILITIES (Check lhe eppllcab!e 111lllarnenl. Note: Only ono box may be Checked.)
3 Iii The corporation's known debts and llabllltlaa have been actually paid.
D The corporation's known debte and llabl1111es he11e been paid a9 fer as Its assats permitted.
D The corporation's known debt a and llebllltles liave been adequately provided for by their assumption and the name and addrets of th11
assumer Is
. -····
D Tha corpore!lon's known debts and llabllllles have bean adequately prov!dacl for as far !lfi tts nesets pannltted.
(SpecHy In 11n ettechm11nt to \hi~ cert1nca1.. (lncorp0n;it11d herein by this 111/erence) the pro-1slon made am! lhe addrosa of 11\e oori:;:raUon. parson or
QOvernmental 9gency that hH 015umed or gu11rantud \M payment, or tho name atid address or the depos\ary with v.hlch deposll has een made or olher
inforrn~tlon neCXJoaary to enablo creditor, or otha r, to whom p11vment 1, to be made lo eppaar and claim payment)
D The corporation never Incurred any known dehts or liabilities.
ASSETS (Ct111ek tho ~ppllcablestBtemonl. Note: On!y on!t box mny be chlleked.)
4. Ix] The known ease\a have baen d!slrlbuled to the persons entitled thereto.
D The corporallon never acquired any known assets.
ELECTION (Cneck !ha "YES" or "NO' box, os applicable. Note: If the 'NO" box Is cn!!Cked, a Certlftc:&111 of Election lo \Nlnd Up and Dls~olve purauant to
Cmporal!ons Code section 1901 mu8l be flied prior to or together with this CertJMc:ate of Dlueoluuon.)
5. The election to dlssol119 was made by the vote or all tha outstanding shares. Ix] YES D NO
VERIFICATION & EXECUTION (lhddilion~I ~lgnalura &pac,i 11 n!cauary, the dal.&d slgnature(s) wllh verlftca!ion(s) may ba mact,rnn an attachment lo this
certiflcB1e. Any attactimentato th\sc,,rtrncete are incorporated herein by 1h11 r11rar•rice.)
6. Toa undar61gned conslttute(s) tlie sotedlrector or a majority oflhe direct.ors now In office. I dedera under penalty of Pe~ury undertha laws ol
the Slate of Cal fornla that Iha matters sat forth In this cer1ificate are !rue and correct of my own knowledgi,.
/h!tn
Date
....... ~
- ' ,. Gerald Breslauer
Slgnatur~~-~ II Type or Print Name of Director
/0. o<'\, 'JI.I

,,/\
-
'\ ~
Joe) Jacobson
-:---4 ~rl"~
~gnatur!Ji Type or Print Name of Director
Ll: Michael Rutman

Signature of Director Type or Print Name of Director
APPROVED EIY SECRETARY OF STATE
DISS STK (REV 03120071
ER157
(165 of 239)
EXHIBIT E
ER158
(166 of 239)

AB 1682
Page 1
Date of Hearing: March 8, 2016
ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair
AB 1682 (Mark Stone) – As Amended February 29, 2016
SUBJECT: CONFIDENTIAL SETTLEMENT AGREEMENTS: SEXUAL OFFENSES
KEY ISSUE: SHOULD STATE LAW PROHIBIT THE SECRET SETTLEMENT OF ALL
CHILDHOOD SEXUAL ABUSE AND EXPLOITATION CASES, INCLUDING THOSE
WHICH COULD BE CHARGED AS MISDEMEANORS, IN ORDER TO ENSURE THAT
ALL PERSONS WHO SEXUALLY ABUSE OR EXPLOIT MINORS ARE ACCOUNTABLE
TO THE PUBLIC AND LAW ENFORCEMENT, INCLUDING THOSE WITH THE
FINANCIAL MEANS TO SETTLE CIVIL ACTIONS?
SYNOPSIS
Existing law prohibits the secret settlement of certain civil actions in which the public has a
strong interest. For example, it is the policy of the State of California that confidential
settlement agreements are disfavored in any civil action based on a violation of the Elder Abuse
and Dependent Adult Civil Protection Act (EADACPA). (Code of Civil Procedure, hereafter
“CCP,” Section 2017.310.) Also, CCP Section 1002 prohibits the confidential settlement of a
civil action where the factual basis for the action is “an act that may be prosecuted as a felony
sex offense.” There is arguably a significant loophole, however, in the latter provision. Although
minors cannot legally enter into contracts or settlements and cannot be held to the terms and
conditions of agreements to settle civil actions unless those agreements are signed by their
parents, guardians, or guardians ad litem and approved by a court, current law allows the secret
settlement of a civil action based upon childhood sexual abuse or exploitation as long as the
underlying act can be characterized as an offense other than a felony. This is problematic
because many sexual abuse and exploitation offenses that victimize minors are not felonies, or
can easily be characterized as less serious offenses. This problem is exacerbated by the fact that
many of the offenses are never referred to law enforcement and therefore never reviewed by
prosecutors to determine whether felony charges are appropriate.
AB 1682 closes this apparent loophole and protects the safety of children and the public at large.
It clarifies that the secret settlement of civil actions involving the sexual abuse or exploitation of
minors, whether felonies or misdemeanors, is against public policy. If this bill becomes law, all
confidentiality provisions within settlement agreements made in such cases after this bill goes
into effect would be void as a matter of law. This bill also provides that attorneys who advocate
for, or condition the settlement of civil actions involving sexual abuse and exploitation of
children upon, the confidentiality of the settlement are subject to discipline by the State Bar and
requires the Bar to investigate such attorneys. Supporters point out that secret settlements likely
prevent victims from reporting their abuse to law enforcement. Years later, after they become
adults, victims of childhood sexual abuse may wish to pursue criminal prosecution but may find
that it is too late for criminal prosecution because the statute of limitations on charging the
underlying acts as crimes has expired. This bill is sponsored by the California Coalition Against
Sexual Assault and is supported by Consumer Attorneys of California, numerous law
enforcement agencies and associations, and numerous organizations that provide services to
survivors of sexual assault. It has no known opposition.
ER159
(167 of 239)

AB 1682
Page 2
SUMMARY: Prohibits the secret settlement of childhood sexual abuse and exploitation cases,
as well as felony sex abuse cases, as a matter of public policy. Specifically, this bill:
1) Expands the type of civil actions which cannot be the subject of secret settlements to include
not only acts that may be prosecuted as felony sex offenses, but also the following:
a) An act of childhood sexual abuse, as defined in Penal Code Section 340.1.
b) An act of sexual exploitation of a minor, as defined in Section 11165.1 of the Penal Code,
or conduct prohibited with respect to a minor pursuant to Sections 311.1, 311.5, or 311.6
of the Penal Code.
2) Corrects a cross-referencing error to the definition of “personal identifying information” in

existing law which should refer to Section 530.55, rather than 530.5 of the Penal Code
(hereafter “PC”).
EXISTING LAW:
1) Allows a court, upon petition, to appoint a guardian ad litem to represent the interests of a
minor when a civil action is filed and the plaintiff is a minor. (CCP Section 337 (a).)
2) Prohibits the confidential settlement agreement of any civil action the factual foundation for
which establishes a cause of action for civil damages for an act that may be prosecuted as a
felony sex offense. (CCP Section 1002 (a).)
3) Provides that 1), above, does not preclude an agreement preventing the defendant or any
person acting on his or her behalf from disclosing any medical information or personal
identifying information regarding the victim of the felony sex offense or of any information
revealing the nature of the relationship between the victim and the defendant and does not
limit the right of a crime victim to disclose this information. (CCP Section 1002 (b).)
4) Provides that 1), above, does not apply to or affect the ability of the parties to enter into a
settlement agreement or stipulated agreement that requires the nondisclosure of the amount
of any money paid in a settlement of a claim. (CCP Section 1002 (c).)
5) Provides that notwithstanding any other provision of law, it is the policy of the State of
California that confidential settlement agreements are disfavored in any civil action the
factual foundation for which establishes a cause of action for a violation of the Elder Abuse
and Dependent Adult Civil Protection Act (EADACPA). (CCP Section 2017.310 (a).)
6) Defines as “childhood sexual abuse” any act committed against a plaintiff that occurred when
the plaintiff was under the age of 18 years which is proscribed by certain sections of the
Penal Code, including a number of sexual abuse offenses that can be charged as
misdemeanors, such as the following:
a) Sodomy with a person under 18 years of age (PC Section 286 (b)(1));
b) Oral copulation with a person under 18 years of age (PC Section 288a (b)(1));
c) Sexual penetration of a person who is under 18 years of age by another person who is
under 18 years of age (PC Section 289 (h));
ER160
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AB 1682
Page 3
d) Annoying or molesting any child under 18 years of age (PC Section 647.6; CCP Section
340.1 (e).)
7) Defines “Sexual exploitation” as any of the following:
a) Depicting a minor engaged in obscene acts in violation of PC Section 311.2 [preparing,

selling, or distributing obscene matter] or subdivision (a) of PC Section 311.4
[employment of minor to perform obscene acts]. (PC Section 11165.1 (c)(1).)
b) Promoting, aiding, assisting, employing, using, persuading, inducing, or coercing a

person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or
coerces a child, or a person responsible for a child’s welfare, who knowingly permits or
encourages a child to engage in, or assist others to engage in, prostitution or a live
performance involving obscene sexual conduct. (PC Section 11165.1 (c)(2).)
c) Depicting a child in, or knowingly developing, duplicating, printing, downloading

streaming, accessing through any electronic or digital media, or exchanging, a film,
photograph, videotape, video recording, negative, or slide in which a child is engaged in
an act of obscene sexual conduct. (PC Section 11165.1 (c)(3).)
8) Makes it a felony or a misdemeanor for a person to knowingly do either of the following:
a) Send or cause to be sent into this state for sale or distribution of any obscene matter,
knowing that the matter depicts a person under the age of 18 years personally engaging in
sexual conduct with intent to distribute or to exhibit to, or to exchange with others. (PC
Section 311.1 (a).)
b) Possess, prepare, publish, produce, develop, duplicate, or print any representation of

information, data, or image of obscene matter that depicts a person under the age of 18
years personally engaging in or personally simulating sexual conduct, knowing that the
person is a minor and with the intent to distribute or to exhibit to, or to exchange with,
others. (PC Section 311.1 (a).)
9) Makes it a misdemeanor to do either of the following:
a) Write, create, or solicit the publication or distribution of advertising or other promotional

material, or promote the sale, distribution, or exhibition of matter represented or held out
to be obscene. (PC Section 311.5.)
b) Knowingly engage or participate in, manage, produce, sponsor, present or exhibit

obscene live conduct to or before an assembly or audience consisting of at least one
person or spectator in any public place or in any place exposed to public view, or in any
place open to the public or to a segment thereof. (PC Section 311.6.)
10) Defines “personal identifying information.” (PC Section 530.55 (b).)
11) Defines “felony” as a crime that is punishable with death, by imprisonment in the state
prison, or imprisonment in a county jail and provides that every other crime or public offense
is a misdemeanor, except those offenses that are classified as infractions. (PC Section 17
(a).)
ER161
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AB 1682
Page 4
12) Provides that except in cases where a different punishment is prescribed by any law of this
state, every offense declared to be a misdemeanor is punishable by imprisonment in the
county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000),
or by both. (PC Section 19.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Minors are unable to make binding contracts and therefore can be released from
any contractual obligations they make before they become adults. Civil Code section 35
provides, in relevant part, that “the contract of a minor may be disaffirmed by the minor himself,
either before his majority or within a reasonable time afterwards.” The purpose of Civil Code
section 35 is “to protect the minor from his own improvidence. It is often said, he who
affirmatively deals with a minor, does so at his peril.” (Hohe v. San Diego Unified School Dist.
(1990) 224 “Cal.App.3d 1559, 1565.) For example, in Tracy v. Gaudin (1930) 104 Cal.App.
158, a minor fraudulently obtained a new car from the plaintiff’s dealership by forging his
guardian's name on a withdrawal slip. The minor later died and the dealer attempted to collect
the cost of the vehicle from the minor’s estate. The court found that even though the minor
received and retained the benefits of his contract, the minor’s estate was not required to restore
the consideration or its equivalent to the dealer because the contract was not binding upon the
minor. (Id, at 160-61.)
While a contract signed by a minor without the signature of a parent, guardian, or guardian ad
litem is “voidable” by the minor (i.e. not enforceable against the minor) it is nevertheless
potentially enforceable against the other party to the contract. This harsh consequence is
premised upon the strong public policy against adults contracting with minors. “[T]he former
cannot complain if, as a consequence of their violation of this rule of conduct, they are injured by
the exercise of the right with which the law has purposely invested the latter, nor charge that the
infant in exercising the right is guilty of fraud.” (Flittner v. Equitable Life Assurance Soc.
(1916) 30 Cal.App. 209, 212.)
In order to protect the rights of minors involved in legal disputes and civil actions, California law
provides minors with a number of specific procedural and substantive protections. As a general
rule, minors who are parties to civil actions must appear in court proceedings through guardians,
conservators, or guardians ad litem. (CCP Section 372 (a)(1).) In order to settle a disputed claim
by a minor (prior to a complaint being filed), a parent or guardian must, acting on behalf of a
minor, release a claim or execute a covenant not to sue. (Probate Code Section 3500.)
Furthermore, even if a parent, guardian, guardian ad litem, or conservator signs an agreement to

settle a dispute claim or a pending civil action on behalf of a minor, the agreement is not binding
upon the parties until it is reviewed and approved by the court. “As early as the courts of
chancery, a guardian ad litem lacked the power to bind a minor litigant to a settlement agreement
absent an independent investigation by the court.” (Scruton v. Korean Air Lines Co. (1995) 39
Cal.App.4th 1596, 1605.) “[E]very step in the proceeding [of a minor's lawsuit] occurs under the
aegis of the court” [Citation omitted] . . . Thus, “[i]t is the court's order approving the settlement
that vests the guardian ad litem with the legal power to enforce the agreement. [Citation
omitted].” (Ibid.) Judicial Council form MC-350 is the petition for approving a settlement of
either a disputed claim (Probate Code Section 3500), or a pending action (CCP 372) involving a
minor and is called a “Petition to Compromise a Minor’s Claim.” The form must be signed by
the “petitioner” (the parent, guardian, guardian ad litem, or conservator of the minor) and
ER162
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AB 1682
Page 5
approved by the court. The court may appoint a guardian ad litem to represent the interests of
the minor “in any case when it is deemed by the court . . . expedient to appoint a guardian ad
litem to represent the minor” (CCP Section 372), even when a minor has a parent or guardian to
act as his or her representative in a disputed claim or a lawsuit, and is likely to do so when the
interests of the parent or guardian and the minor diverge or conflict.
Enforceability of properly executed contracts, including confidentiality agreements, against

minors. Assuming that a minor’s right to settle a claim or a civil action is properly executed by a
parent, guardian, guardian ad litem, or conservator and approved by the court, as described
above, the agreement is binding upon the minor. A binding settlement of a minor’s claim or
action could presumably include a confidentiality provision. Unless prohibited by law, as
discussed below (i.e. because the underlying offense is an act that may be prosecuted as a
violation of EADACPA or a felony ex offense), the confidentiality provision would also be
binding upon the minor. In fact, many high profile settlements of civil actions based upon
childhood sexual abuse have reportedly included confidentiality provisions. In a number of
those cases, however, victims have later reported their abuse to law enforcement or the media.
The Committee is unaware of a case in which a victim has been sued for breach of a
confidentiality provision within a settlement agreement made when the victim was a minor, but
such an action is certainly possible.
History of secret settlements being used to settle civil actions, including cases of childhood
sexual abuse. As a general rule, settlement agreements are useful tools in civil litigation. They
have been called the grease that keeps the wheels of the civil justice system moving. Settlements
encourage timely resolution of claims and help the parties avoid the expense of trial.
Confidentiality provisions within settlement agreements help parties avoid the trauma and
embarrassment of participating in a public trial.
However, a strong public policy argument can be made that secret settlements are inappropriate
in some cases, specifically matters of concern to the public because they involve particularly
vulnerable victims, highly dangerous behavior, or especially egregious conduct.
Some legal experts say that the usual rationales and incentives cited in support of secret
settlements do not fit priest abuse cases well. The victims were generally children, who
ought to receive special protection; the abusers were often repeat offenders, who should
have been stopped; and criminal prosecution of the priests was made all but impossible
given the central importance of the victim's testimony in rape and other sexual abuse
cases.
Prof. Stephen Gillers, who teaches legal ethics at New York University Law School, says
that the arguments made against secret settlements in cases involving widespread harm,
called mass torts by lawyers, apply with equal strength in this new setting. “Certain kinds
of harm are so serious,” he says, “whether it's criminal conduct by priests or exploding
kitchen appliances, that we should not let plaintiffs agree to confidentiality. ” (Liptak,
Adam. A Case that Grew in Shadows, The New York Times, March 24, 2002.)
Nevertheless, confidentiality provisions are commonly included in civil settlements. According

to a number of sources, such provisions were standard in dozens, if not hundreds, of settlements
of sexual abuse claims against priests around the country, including in California. According to
Bishopaccountability.org, a group that tracks civil actions and settlement of clergy sex abuse
cases, there have been “settlements involving 5,679 persons who allege sexual abuse by Catholic
ER163
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AB 1682
Page 6
clergy. These survivors are only one-third of the 15,235 allegations that the bishops say they
have received through 2009, and they are only 5% of the 100,000 U.S. victims . . . estimated in a
1993 study. Important as these settlements are, they represent a minority of known cases, and a
tiny fraction of all the abuse perpetrated by Catholic clergy.” (http://www.bishop-
accountability.org/settlements/) According to one California law firm that specializes in clergy
sexual abuse cases, more than 800 complaints have been filed in California against the Catholic
Church since 2003 and the Church has settled a small percentage of those cases for a combined
total of more than $450 million. (http://www.childmolestationvictims.com/california-catholic-
clergy-sexual-abuse- information/) Despite headlines focusing on abusive priests in the Catholic
Church, secret settlements involving childhood sexual abuse are by no means limited to the
Catholic Church. Other recent examples where secret settlements have occurred include
community youth service organizations; foster parents; administrators of homes for the mentally
disabled; professional athletes; youth swim coaches; a college football coach; and pop stars.
Existing law prohibits the secret settlement of certain civil actions in which the public has a
strong interest. Because of strong public policy concerns, existing law makes confidential
settlements either disfavored or prohibited in certain cases. For example, it is the policy of the
State of California that confidential settlement agreements are disfavored in any civil action
based upon a violation of EADACPA. (CCP Section 2017.310 (a).) Likewise, CCP Section
1002 prohibits the confidential settlement of a civil action based on “an act that may be
prosecuted as a felony sex offense.”
According to the author, this latter provision leaves a dangerous loophole in the law.
Specifically, the author observes that many sexual abuse and exploitation offenses that victimize
minors are not felonies, or can easily be characterized as non-felonies. This problem is
exacerbated by the fact that many of the offenses that establish a factual basis for these civil
actions are never referred to law enforcement and never reviewed by prosecutors to determine
whether felony charges are appropriate. Such settlements also perpetuate a two-tiered criminal
justice system in which only those without financial means to pay for the silence of their victims
are prosecuted in the criminal courts. According to the author, all cases of childhood sexual
abuse should be publically handled by the courts.
According to the sponsor, CALCASA, secret settlements endanger other children and other
potential victims of sexual assault or exploitation by shielding sexual predators from public
scrutiny and law enforcement review. According to the National Center for Victims of Crime,
28% of all U.S. youth aged 14 to 17 years are sexually abused over the course of their lifetime.
By shielding cases of sexual abuse and exploitation from the public and law enforcement, secret
settlements unfairly allow sexual offenders, with the financial means, to pay for the silence of
their victims, to escape criminal prosecution and potentially abuse other children.
While confidentiality agreements may help to facilitate settlements of individual claims, they
also put the public at risk by hiding sexual predators from law enforcement and the public at
large. In the case of clergy sex abuse cases, confidentiality provisions largely prevented the
prosecution of pedophile priests as statutes of limitations for filing criminal charges expired.
They allowed the continuing abuse of children as priests were moved from parish to parish
within the U.S., and sometimes to churches outside of the country.
The public arguably has such a strong interest in the prosecution of individuals who commit acts
of childhood sexual abuse and exploitation that the ordinarily useful tool of confidentiality
ER164
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AB 1682
Page 7
provisions in settlement agreements should not be allowed in civil actions based upon those acts.
Like offenses that can be charged as felony sex offenses or violations of EADACPA, secret
settlements of these claims could endanger the public, including other potential victims, and
allow perpetrators to escape criminal prosecution just because they have the financial means to
pay the cost of settlements.
Is it appropriate for the Legislature to require the State Bar to investigate and take appropriate
action against attorneys who violate the provisions of this bill? This bill provides that an
attorney who demands an unlawful confidentiality provision within a settlement agreement as a
condition of settlement or who advises a client to sign an agreement with such a confidentiality
provision is subject to professional discipline by the State Bar. Specifically, it provides that an
attorney who violates the law by demanding a confidentiality provision as a condition of
settlement, or advising a client to sign such an agreement “shall be subject to professional
discipline and the State Bar of California shall investigate and take appropriate action in any
such case brought to its attention.”
It could be argued that this language somehow interferes with the authority of the Judicial
Branch which has oversight responsibility for the disciplinary function of the State Bar.
However, many other statutes that restrict conduct by attorneys also specify that violation of the
statute “shall be subject to discipline by the State Bar.” Also, the additional language in this bill
that requires investigation is not unique. In fact, it is virtually identical to CCP Section 365,
which requires the State Bar to investigate and take appropriate action in a case where an
attorney fails to follow the steps set forth in CCP 364 to provide notice of an action based upon
the health care provider’s professional negligence. CCP Section 365 provides that an attorney’s
failure to comply with CCP Section 364 “shall be grounds for professional discipline and the
State Bar of California shall investigate and take appropriate action in any such cases brought
to its attention.” Ultimately, even under this language, it is the State Bar’s decision whether or
not to take action and what action is appropriate. The only mandate on the Bar is to
“investigate” which, given the public policy in favor of this prohibition, seems like the minimum
that the Bar should do. Given the following findings by the State Auditor last year, a legislative
mandate for the Bar to investigate these cases may be appropriate.
[T]he State Bar has not consistently fulfilled its mission to protect the public from errant
attorneys and lacks accountability related to its expenditures. The State Bar has struggled
historically to promptly resolve all the complaints it receives, potentially delaying the
timely discipline of attorneys who engage in misconduct.
SIMILAR PAST LEGISLATION: AB 634 (Steinberg, Chapter 242, Statutes of 2003) enacted
law disfavoring confidential settlement agreements in actions for a violation of EDACPA.
AB 2875 (Pavley, Chapter 151, Statutes of 2006) prohibited the confidential settlement of a civil
action the factual basis for which is a cause of action for “an act that may be prosecuted as a
felony sex offense.”
AB 1628 (Beall, 2012) prohibited the confidential settlement of a civil action the factual basis for
which is a cause of action for “an act of childhood sexual abuse, as defined in Section 340.1”
(but allowed secret settlement of sexual abuse cases involving adults). It also eliminated the
prohibition on extended the statute of limitations in child sexual abuse cases from 26 to 35 years
and established additional requirements for mandated reporters. The bill was held on Suspense
in Assembly Appropriations.
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REGISTERED SUPPORT / OPPOSITION:
Support
California Coalition Against Sexual Assault (sponsor)

Association for Los Angeles Deputy Sheriffs
Bay Area Women Against Rape
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Narcotic Officers Association
Center Against Sexual Assault of Southwest Riverside County
Center for Community Solutions
Coalition for Family Harmony
Consumer Attorneys of California
Kene Me-Wu Family Healing Center
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Monterey County Rape Crisis Center
North County Rape Crisis and Child Protection Center
One SAFE Place
Project Sister Family Services
Riverside Sheriffs Association
Women's Center - Youth & Family Services
Opposition
None on file
Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334
ER166
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Exhibit A
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Electronically FILED by Superior Court of California, County of Los Angeles on 02/21/2019 10:37 AM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Mariscal,Deputy Clerk
1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

Howard Weitzman (SBN 38723)
2 hweitzman@kwikalaw.com
Dale F. Kinsella (SBN 63370)
3 dkinsella@kwikalaw.com
Jonathan P. Steinsapir (SBN 226281)
4 jsteinsapir@kwikalaw.com
Zachary T. Elsea (SBN 279252)
5 zelsea@kwikalaw.com
808 Wilshire Boulevard, 3rd Floor
6 Santa Monica, California 90401
Telephone: 310.566.9800
7 Facsimile: 310.566.9850
8 FREEDMAN + TAITELMAN LLP

Bryan J. Freedman (SBN 151990)
9 bfreedman@ftllp.com
1901 Avenue of the Stars, Suite 500
10 Los Angeles, California 90067
Telephone: 310.201.0005
11 Facsimile: 310.201.0045
12 Attorneys for Optimum Productions and for John

Branca and John McClain as Executors of the
13 Estate of Michael J. Jackson
14
SUPERIOR COURT OF THE STATE OF CALIFORNIA
15
COUNTY OF LOS ANGELES
16
17
OPTIMUM PRODUCTIONS, a California Case No.
18 corporation; and JOHN BRANCA and JOHN
MCCLAIN, in the respective capacities as PETITION TO COMPEL PUBLIC
19 CO-EXECUTORS OF THE ESTATE OF ARBITRATION OF CLAIMS OF
MICHAEL J. JACKSON,
20 1. BREACH OF CONTRACT (NON-
Plaintiffs, DISPARAGEMENT CLAUSE); AND
21
vs. 2. BREACH OF THE COVENANT OF
22 GOOD FAITH AND FAIR DEALING
HOME BOX OFFICE, a Division of TIME
23 WARNER ENTERTAINMENT, L.P., a AND ALL OTHER RELATED
Delaware Limited Partnership, and HOME ARBITRABLE CLAIMS AND ISSUES
24 BOX OFFICE, INC., a Delaware corporation,
and DOES 1 through 5, business entities Code of Civil Procedure §§ 1281.2, 1290
25 unknown, and DOES 6 through 10, individuals
unknown,
26
Defendants.
27
28
PETITION TO COMPEL ARBITRATION ER168

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1 INTRODUCTION
2 Michael Jackson is innocent. Period. In 2005, Michael Jackson was subjected to a trial—
3 where rules of evidence and law were applied before a neutral judge and jury and where both sides
4 were heard—and he was exonerated by a sophisticated jury. Ten years after his passing, there are
5 still those out to profit from his enormous worldwide success and take advantage of his
6 eccentricities. Michael is an easy target because he is not here to defend himself, and the law does
7 not protect the deceased from defamation, no matter how extreme the lies are. Michael may not
8 have lived his life according to society’s norms, but genius and eccentricity are not crimes.
9 Nothing and no one can rewrite the facts which show that Michael Jackson is indeed innocent of
10 the charges being levied at him by HBO in its “documentary” Leaving Neverland. No one-sided
11 “documentary” can substitute for a real documentary, or for a trial where both sides are heard,
12 competent evidence is presented, and witnesses are cross-examined.
13 Those behind this posthumous character assassination are:
14 HBO: a company, recently acquired by AT&T, so desperate for eyeballs that its growing
15 irrelevance to the cord-cutting generation was crystallized when its chief rival bluntly stated in its
16 January earnings report that it considers a popular online game to be a more serious competitor
17 than HBO. In producing this fictional work, HBO ignored its contractual obligations to Michael
18 and his companies by disparaging both him and the Dangerous World Tour that HBO had
19 previously profited from immensely.
20 Wade Robson and James Safechuck: two admitted perjurers, one of whom is a self-
21 described “master of deception,” whose litigations have played out in the courts as a failed
22 melodrama for more than five years. With more holes in their stories than anyone can count, both
23 view Michael Jackson, the man who they previously swore was an inspiration and did nothing to
24 them, as a lottery ticket through accusations never brought during Michael’s life. They never
25 brought these claims during Michael’s life, because they knew Michael would have held them
26 both legally accountable for their defamation, just as Michael had held the “reporter” Victor
27 Gutierrez—who seems to be the true author of these two men’s fictional tales—liable before a jury
28 for millions of dollars when he falsely made similar claims about Jackson.
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1 Dan Reed: the HBO-deployed “documentarian” and director of Leaving Neverland who
2 violated every rule of responsible journalism and documentary filmmaking. He all but embedded
3 himself with the accusers’ legal team to the point where he refused to devote even one minute of a
4 240-minute film to any of the mountainous evidence showing that Robson and Safechuck are
5 lying. He refused to offer any counter-point to their fabrications, and refused to talk to anyone
6 whose statements might not fit the storyline of the fictional film he was dead-set on making from
7 the outset. Dan Reed made no attempt to review the legal records from Robson’s and Safechuck’s
8 litigations with the Estate, where the judge found that Robson had lied under oath during the
9 litigations on key issues; and where Robson was caught red-handed hiding crucial evidence from
10 the court, from the Jackson Estate, and even from his own lawyers. Reed even ignored the fact that
11 these men are still pursuing claims against the Jackson Estate for hundreds of millions of dollars
12 so they have hundreds of millions of reasons to lie.
13 While the conduct of the above participants speaks for itself, special emphasis must be
14 placed on HBO. HBO refused to even meet with representatives of the Jackson Estate—the
15 primary beneficiaries of which are Michael’s three children—who made no threats but just asked
16 for a meeting to discuss problems with the “documentary.” HBO is not in search of the truth—
17 only in search of “content” and “engagement” as its bosses at AT&T have publicly ordered.
18 The real victims here are the primary beneficiaries of the Estate, Michael’s three children,
19 who are forced to endure this attack on their father, ten years after they buried him, and when he
20 has no chance to respond.
21 Michael Jackson can never be silenced. His music and artistry live, as does his innocence.
22 They will long outlast false claims, gossip, and allegations spread by those who seek to make
23 money off him. In the end, this “documentary” will say much more about HBO than it ever could
24 about Michael Jackson.
25
26
27
28
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1 GENERAL ALLEGATIONS REGARDING HBO’S BREACH OF ONGOING
2 CONTRACTUAL OBLIGATIONS TO THE JACKSON ESTATE
3 The just and proper jealousy with which the law protects the reputation of a living
man forms a curious contrast to its impotence when the good name of a dead man
4 is attacked. … The dead cannot raise a libel action, and it is possible to bring
grave charges against their memory without being called upon to justify these
5
charges in a court of law or to risk penalties for slander and defamation. The
6 possibilities of injustice are obvious. – “Libeling the Dead,” Glasgow Herald (July
27, 1926), as quoted in Don Herzog, Defaming the Dead (Yale Univ. Press 2017)
7
8 A. Michael Jackson Was Proven Innocent

9 1. Michael Jackson passed away almost ten years ago on June 25, 2009, as a result of
10 a criminal homicide by his “doctor.” Almost exactly four years earlier, on June 14, 2005, Jackson
11 was exonerated by a unanimous jury of twelve men and women in Santa Maria, California, on
12 discredited charges that he had committed unspeakable acts.
13 2. Michael Jackson’s acquittal was not the result of some technical “reasonable
14 doubt” argument. The phrase “reasonable doubt” appeared only once in Jackson attorney Tom
15 Mesereau’s opening statement (at the very end of it). Rather, much to the media’s legal experts’
16 ridicule at the time, Mesereau affirmatively assumed the burden of proving Jackson innocent in
17 the case. Among his first words to the jury in his opening statement were: “I say to you right now,
18 I am going to make some promises in this case, I am going to fulfill them, and I want you to judge
19 me accordingly at the end. These charges are fake, silly, ridiculous.” Mesereau left no doubt
20 about what he was promising to prove: “We will prove [that child molestation] never, ever
21 happened.” Three-and-a-half months later, the jury found that Mesereau had kept his promises.
22 The jury found that Michael Jackson was no child molester. The jury found that Mesereau was
23 right: the charges against Jackson were “fake, silly, and ridiculous.”
24 3. The jury that cleared Michael was a diverse mix of American citizens, including
25 several highly educated persons and persons with particular expertise in the subject matter—e.g.,
26 the head of the local Social Services Agency, a former high school principal with a Master’s
27 Degree in Counseling, a math teacher with a Master’s Degree in mathematics, a civil engineer, and
28 residents of a neighboring military base. And these jurors have confirmed in recent interviews that
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1 they would reach the same decision today.
2 4. Jackson’s 2005 acquittal ended a 12 year crusade by Thomas Sneddon, the former
3 district attorney for Santa Barbara County. Sneddon looked under every rock and pebble for
4 supposed “victims” of Jackson. At taxpayer expense, he literally sent investigators all over the
5 United States and all over the world to follow “leads” about supposed “victims.” Sneddon’s
6 investigators went to the Philippines, to Australia, to England, etc. Sneddon orchestrated multiple
7 raids of Jackson’s homes at Neverland Ranch and in Los Angeles over the course of a decade.
8 They found nothing. As Rolling Stone’s Matt Taibbi—no fan of Jackson as his other writings
9 confirm—explained in an article shortly after the verdict: “Virtually every piece of [Sneddon’s]
10 case imploded in open court, and the chief drama of the trial quickly turned into a race to see if the
11 DA could manage to put all of his witnesses on the stand without getting any of them removed
12 from the courthouse in manacles.”
13 5. Given Sneddon’s unsupported allegations in the years he chased Jackson, the FBI
14 also investigated Michael Jackson extensively. The FBI’s 300-page file on Jackson, made
15 available through the Freedom of Information Act, makes clear that the FBI never found anything
16 to show that Jackson was a child molester (because he was not).
17 6. The legal analyst and author, Jeffrey Toobin, explained after the verdict that “you
18 don’t need a law degree to understand this verdict. It is an absolute and complete victory for
19 Michael Jackson, utter humiliation and defeat for Thomas Sneddon, the district attorney who has
20 been pursuing Michael Jackson for more than a decade, who brought a case that was not one that
21 this jury bought at all. This one’s over.”
22 7. Sneddon’s crusade against Michael may have been “over” in Toobin’s words, but
23 the damage it caused to Michael was not.
24 B. Michael Jackson’s Legacy and Humanitarian Efforts
25 8. Michael Jackson had long been a champion for the rights of children, giving
26 hundreds of millions of dollars to children’s charities during his lifetime, along with a substantial
27 bequest of tens of millions of dollars to children’s charities in his Will. In light of his commitment
28 to improving the lives of children around the world, the fact that Michael was chased for twelve
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1 years on frivolous molestation charges devastated him. As one writer wrote, he was “an emaciated
2 mess” at the end of the trial.
3 9. Michael Jackson had no childhood of his own. From the age of 10, he was the
4 primary breadwinner for his very large family, and never enjoyed a normal childhood. As he
5 explained in the only medium (songwriting) where he could explain himself: “It’s been my fate to
6 compensate, for the childhood I've never known ... Before you judge me, try hard to love me,
7 Look within your heart then ask, Have you seen my Childhood?” He was arguably the most
8 famous person on the planet but possibly also one of the loneliest.
9 10. Almost immediately after his acquittal, Michael Jackson left the country and
10 largely disappeared from public life for several years. In early 2009, he reemerged ready to
11 embark on a comeback with a series of resident shows at London’s O2 Arena to be called “This Is
12 It.” Despite his ordeals and absence from public life, Michael’s magic had not left him. As we all
13 saw in the posthumously released film, Michael Jackson’s This Is It, documenting his rehearsals
14 for the O2 shows in London, Michael Jackson could still dance, sing, and enchant an audience in a
15 way that no one else ever has and no one else ever will again.
16 11. On June 25, 2009, Michael Jackson passed away. In the wake of Michael’s death,
17 the public outpouring and mourning throughout the world was unprecedented. AOL called it a
18 “seminal moment in internet history.” Approximately 15% of Twitter posts (5,000 tweets per
19 minute) mentioned Jackson after the news broke. To this day, most still vividly recall where they
20 were when they heard the news that Michael Jackson had died.
21 12. In Michael Jackson’s death, there was hope that he finally was at peace, and that
22 his name could no longer be smeared by a media who had spent decades obsessing over him and
23 selling any story about him, no matter how outrageous. As a then 27-year-old dancer and protégé
24 of Michael Jackson named Wade Robson summed up the mood of so many in a statement on June
25 26, 2009, the day after Michael’s death. Michael Jackson is “one of the main reasons I believe in
26 the pure goodness of human kind … I will miss him immeasurably.”
27 C. HBO, Netflix and the Changing “Pay Television” Business
28 13. Meanwhile, about a year before Michael’s death, a company called Netflix began to
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1 slowly move away from its highly-successful DVD rent-by-mail business towards an internet
2 streaming business. To say that its move was successful would be among the greater
3 understatements of the last decade. In the last several years, Netflix and those following a similar
4 model like Amazon Prime and Hulu have completely disrupted the Pay Television business.
5 14. Netflix and other streamers are now at the forefront of original content and
6 documentaries, and have even contracted directly with major movie studios for “first-run” motion
7 picture content, which was once the entire lifeblood of Pay Television networks like HBO. In
8 short, Netflix threatens the very survival of Pay Television. None are more threatened than the
9 longtime pay industry leader, HBO.
10 15. As an entire generation of “cable cutters” has opted for “over the top” services,
11 HBO has been struggling to play catch up. Nothing crystallized HBO’s growing irrelevance more
12 than a Netflix earnings report in January stating that Netflix considers the popular online game
13 Fortnite a more serious competitor than HBO.
14 D. HBO’s Mandate from AT&T
15 16. In June 2018, HBO’s parent, Time Warner, was acquired by AT&T.
16 17. AT&T’s CEO for its new “WarnerMedia” division (including Warner Brothers and
17 HBO), John Stankey directed HBO to win the “streaming wars” and obtain substantially more
18 content in an obvious recognition of the success of Netflix, Amazon and others. Stankey ordered
19 HBO’s CEO Richard Plepler: “We need hours a day,” referring to the time he wanted viewers
20 engaging with HBO content. “It’s not hours a week, and it’s not hours a month. We need hours a
21 day.” Moreover, according to Vanity Fair, Stankey “made clear that in the current era of mega
22 scale, HBO on its own is not enough.”
23 18. As the New York Times reported, in a July 2018 meeting with Plepler, “Stankey
24 described a future in which HBO would substantially increase its subscriber base and the number
25 of hours that viewers spend watching its shows. To pull it off, the network will have to come up
26 with more content, transforming itself from a boutique operation, with a focus on its signature
27 Sunday night lineup, into something bigger and broader.”
28 19. Content has been a real problem during Richard Plepler’s tenure as CEO of HBO.
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1 With the one exception of Game of Thrones, all of the cutting-edge, and now classic, original
2 content that is associated with HBO—The Sopranos, The Wire, Deadwood, Six Feet Under,
3 Entourage, Sex and the City, Curb Your Enthusiasm, etc.—was from the era when Chris Albrecht
4 ran HBO. With Albrecht’s departure in 2007, Richard Plepler took over. And Plepler has almost
5 entirely failed where Albrecht succeeded: original content. With Netflix and others in the industry
6 now, HBO picked the wrong time to fail in original content.
7 20. The only HBO show left that can truly drive significant subscribers is Game of
8 Thrones. And its final season, with just six episodes, will end in May 2019. After that, HBO will
9 no longer carry any “must have” content. In short, HBO is facing existential problems.
10 21. Although recognizing that the programming budget of Netflix and Amazon dwarfs
11 that of HBO’s, Stankey has refused to commit to substantially increasing HBO’s programming
12 budget. Without a substantially increased budget, HBO will have to turn to a less expensive way
13 to create buzz and content.
14 22. And so Richard Plepler needs content for HBO that will draw streamers, and he
15 needs to obtain that content inexpensively. In that desperation, Plepler has been willing to violate
16 just about all of his companies’ internal policies and procedures. As relevant here, Plepler decided
17 to willfully violate HBO’s obligations to Michael Jackson, obligations that Plepler no doubt knew
18 about given that he arrived at HBO in early 1992 as Senior VP of Communications and advisor to
19 the CEO. That was the same year that HBO partnered with Jackson to broadcast a concert from the
20 Dangerous World Tour, which was by far HBO’s biggest event in the early years of Plepler’s
21 employment.
22 23. Like so many before him, Richard Plepler decided to turn on Michael Jackson for
23 the money. In so doing, he and HBO teamed up with a documentarian that they had worked with
24 for years, Dan Reed. And they decided to tell the “stories” of two serial perjurers—Wade Robson
25 and James Safechuck. Those two men’s stories had already been completely discredited in public
26 lawsuits where they sought hundreds of millions of dollars from the Jackson Estate—lawsuits that
27 these two men are still pursuing today, despite HBO’s patently false protests that the two are not
28 telling their stories for money. And the good news for HBO was that the script for the
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1 documentary had already been written by Robson’s and Safechuck’s shared lawyers. The same
2 lawyer drafted detailed declarations for both men. The salacious and false details of those
3 declarations, written by the same lawyer for both men, are then used as the script for the
4 “documentary.”
5 E. HBO Covenants to a Broad Non-Disparagement Clause With Jackson
6 In Exchange for a Historic Right to Air Jackson’s Live Concert
7 24. HBO, on the one hand, and Michael Jackson and his entities, including Plaintiff
8 Optimum Productions’ predecessor entity, TTC Touring Corporation, on the other, have a
9 longstanding contractual relationship. Under that relationship, HBO’s production and airing of
10 Leaving Neverland (“the Film”) is not only reckless and irresponsible, it is also a violation of the
11 express terms of HBO’s and Optimum’s contract.
12 25. Following the release of his fourth studio album as an adult, Dangerous, Jackson
13 appeared at a packed press conference at Radio City Music Hall to announce that he was
14 embarking on the Dangerous World Tour in order to benefit Jackson’s Heal the World Foundation
15 and other charity groups.
16 26. Jackson planned live performances on five continents. The tour was ultimately a
17 huge success, reaching approximately 3.5 million fans through 69 live performances. The tour,
18 however, did not include any performances in the United States.

19 27. Jackson had never previously allowed any complete concerts to be aired or
20 broadcast on television in the United States. For the Dangerous World Tour, however, Jackson
21 decided to allow a full two-hour performance to be filmed and aired on television for his tens of
22 millions of fans in the United States.
23 28. The exclusive right to air the first-ever televised concert performance of the biggest
24 star in the world was a huge prize for any network. Ultimately, in what was reported by the New
25 York Times to be potentially the “largest financial deal for a concert performance on television,”
26 HBO secured the exclusive right to air Jackson’s Bucharest concert. The terms of the license that
27 Jackson and Optimum’s predecessor entity granted to HBO were memorialized in a written
28 contract (the “Agreement”), a copy of which is attached as Exhibit B (only the financial terms
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1 have been redacted).
2 29. HBO’s Chairman and CEO at the time, Michael Fuchs, touted the television event,
3 explaining to the New York Times that, “With no U.S. tour planned in the near future, this special
4 HBO event could be the only chance that American audiences will have to see Michael Jackson in
5 full concert for years.”
6 30. HBO aired its two-hour television event, Michael Jackson in Concert in Bucharest:
7 The Dangerous Tour, at 8 p.m. on Saturday, October 10, 1992. As Variety reported at the time, the
8 airing of this concert from the Dangerous Tour was the network’s highest-rated special ever, with
9 approximately 3.7 million U.S. households tuning in to HBO to watch Jackson’s performance.
10 31. In addition to monetary consideration, HBO and its team of sophisticated lawyers
11 agreed to certain covenants in the Agreement to air Jackson’s first-ever televised live performance.
12 Specifically, as “a material inducement to Licensor [TTC Touring Corporation] in granting the
13 license to HBO” to air Jackson’s Bucharest performance, HBO agreed to certain non-
14 disparagement provisions detailed in an “Exhibit I” to the Agreement.
15 32. By 1992, Michael Jackson was the most popular and most recognizable entertainer
16 in the world. He had also long been the subject of outrageous tabloid reporting: he slept in a
17 hyperbaric chamber, he beat his pet chimpanzee, he bought “the elephant man’s” bones, etc.
18 Because of that, it was important to him that the people he did business with not disparage him
19 and feed these tabloids. There were plenty of other media outlets doing that, and Jackson had no
20 need for outlets he worked with doing the same.
21 33. In those non-disparagement provisions, HBO promised that “HBO shall not make
22 any disparaging remarks concerning Performer or any of his representatives, agents, or business
23 practices or do any act that may harm or disparage or cause to lower in esteem the reputation or
24 public image of Performer.” Other provisions in the Agreement require HBO to notify and consult
25 with Jackson and Optimum Productions if it wishes to air additional programming about Jackson.
26 34. HBO agreed that the covenants by which HBO promised to be bound would run
27 both during and “after HBO’s contact or HBO’s relationship with Licensor and/or Performer.”
28 35. Richard Plepler began work at HBO in early 1992 as Senior VP of
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1 Communications and advisor to the CEO. Plepler must have known, or should have known, about
2 HBO’s contract with Jackson, as Michael Jackson in Concert in Bucharest: The Dangerous Tour
3 was the biggest event for HBO that year. Yet in his desperation, Plepler willfully ignored HBO’s
4 obligations to Michael Jackson.
5 F. HBO Violates the Agreement’s Non-Disparagement Covenant and Suggests,
6 Among Many Other Things, That Jackson Was Abusing Children In
7 Connection With the Dangerous World Tour
8 36. On January 25, 2018, at the Sundance film festival, the HBO produced
9 “documentary” called Leaving Neverland (the “Film”) premiered. The Film rehashes long
10 discredited allegations that Jackson sexually assaulted children several decades ago.
11 37. But the Film is no “documentary” at all. As HBO and the Film’s director, Dan
12 Reed, have conceded, they disregarded every norm of documentary filmmaking and journalistic
13 integrity in producing this film. Despite the Film’s four hour length—ample time for an
14 exhaustive examination of the facts—HBO and Reed made no effort to investigate the veracity of
15 Robson’s and Safechuck’s claims, nor to scrutinize them in the Film itself. Nor do HBO and Reed
16 explore the men’s motivations for making their allegations: they are currently pressing claims in
17 the California courts against the Jackson Estate for hundreds of millions of dollars. HBO and Reed
18 also do not bother to point out that these men were caught lying under oath repeatedly in their
19 litigations with the Jackson Estate (set aside the fact that they also had previously testified for
20 Jackson in criminal proceedings and explained that no inappropriate conduct between them and
21 Jackson occurred). The trial judge found one of Robson’s lies so incredible that the trial judge
22 disregarded Robson’s sworn declaration and found that no rational trier of fact could possibly
23 believe Robson’s sworn statements. Specifically, Robson falsely swore under oath that he did not
24 know about the Jackson Estate until March 2013, despite having met with John Branca, the Co-
25 Executor of the Jackson Estate in 2011 trying unsuccessfully to pitch himself to direct a Jackson-
26 themed Cirque du Soleil show. When Robson learned about the existence of the Jackson Estate
27 was the key issue on his attempt to get around the statute of limitations. Yet in his efforts to try to
28 sue the Estate for hundreds of millions of dollars, Robson had no problem lying under oath about
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1 the key issue, as the trial judge found. HBO and Reed interviewed no other witnesses, despite the
2 fact that several witnesses have contradicted Robson’s and Safechuck’s claims.
3 38. Indeed, HBO and Reed failed to contact two named persons who are identified in
4 the film as supposed victims of Jackson’s abuse. Yet since the Film was announced, both of these
5 other men have publicly and prominently stated that the Film’s allegations that they were abused
6 are utterly false. In fact, one person mentioned repeatedly by name in the Film as a supposed
7 “victim” of Jackson’s who “replaced” Robson has called the Film “a work of fiction.” That person
8 was never contacted by HBO or Reed to respond to what the Film says about him.
9 39. HBO’s Film violates the plain words of Agreement with Jackson and Optimum:
10 The Film makes false and “disparaging remarks concerning [Michael Jackson] [and] disparage[s]
11 or cause[s] to lower in esteem the reputation or public image of [Michael Jackson].”
12 40. Worse still is HBO’s duplicity with respect to the very tour from which it profited.
13 The Film expressly alleges that Jackson was abusing children in connection with and on the
14 Dangerous World Tour. For example, during one scene of the Film, Wade Robson’s mother, Joy
15 “Joey” Robson, explains that she got very upset with Michael when he told her that he would not
16 be taking Wade on the Dangerous World Tour. Mrs. Robson continues that she was especially
17 upset because Michael had taken another boy and his family on the tour. Footage of the boy and
18 Jackson on the Dangerous World Tour is then shown. Wade Robson then says that that is when he
19 realized he had been “replaced” by that boy, i.e., any reasonable viewer would interpret that to
20 mean that Michael Jackson was sexually abusing the boy on the Dangerous World Tour. That
21 young man, mentioned by name repeatedly in the Film, has publicly stated that the Film is “a
22 work of fiction,” and has stated repeatedly and eloquently that Michael Jackson never did anything
23 inappropriate with him on the Dangerous World Tour, or at any other time. The Film effectively
24 ignores that.
25 41. To summarize, HBO profited off the Dangerous World Tour by airing a concert
26 from the tour and promoting Michael Jackson’s talents. Now, HBO is profiting off the Dangerous
27 World Tour by airing a “documentary” that falsely claims Michael Jackson was abusing children
28 on the same tour. It is hard to imagine a more direct violation of the non-disparagement clause.
12
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1 42. HBO decided to willfully violate its commitments and covenants to Jackson and his
2 entities. In violation of both basic norms of documentary journalism and the explicit terms of the
3 Agreement, HBO has disparaged Jackson’s legacy by airing a one-sided hit piece against Jackson
4 based exclusively on the false accounts of two proven, serial perjurers.
5 43. The fact that HBO’s CEO, Richard Plepler was fully aware of HBO’s contractual
6 relationship with Jackson and Optimum and yet willfully ignored them is inexcusable. HBO’s
7 airing of the film, including its double-faced depiction of the Dangerous World Tour, constitutes a
8 malicious and willful breach of the anti-disparagement covenants in the Agreement.
9 44. As Richard Plepler himself once said, “A lie goes halfway around the world before
10 the truth puts its boots on, and we bear some responsibility for that.” Indeed.
11 G. Wade Robson and James Safechuck
12 45. HBO’s and Plepler’s willful violation of their non-disparagement obligations to
13 Jackson and Optimum are made the worse given that the Film relies solely on the word of two
14 serial perjurers.
15 46. Wade Robson and James Safechuck are admitted perjurers. They previously
16 testified that Jackson never touched them inappropriately in any manner whatsoever. By 2013 and
17 2014, they were in financial dire straits. Safechuck was in serious need of money, the failed
18 dreams of a successful acting and music career having long since passed him by. For his part,
19 Robson was at the end of his choreography career. He had burned so many bridges that the only
20 thing he had left was his connection with Michael Jackson. But in 2011, the Jackson Estate had
21 turned him down for the lead choreography job in a Cirque du Soleil show, a job that he told
22 Cirque he “wanted badly.” By 2012, Robson’s wife was threatening to divorce him because of his
23 inability to work.
24 47. So, in 2013 and 2014, Robson and Safechuck changed their stories. No doubt
25 reading reports from Forbes and others, and seeing programs like 60 Minutes that reported on the
26 unprecedented success of the Jackson Estate—stories that all ran in the year before these men
27 changed their stories—Robson and Safechuck filed suits against the Jackson Estate.
28 48. Having claimed to have perjured themselves repeatedly prior to filing their suits
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1 against the Jackson Estate—and claiming to want to now “speak only the truth”—Robson and
2 Safechuck still could not keep their stories straight after filing suit. Robson, in particular, was
3 caught committing perjury repeatedly in 2013 through 2017, in his litigations against the Estate.
4 For just a few examples among many that the Estate discovered:
5 a. The trial judge in Robson’s initial case against the Estate found one of
6 Robson’s lies—on the key issue in that case, i.e., when he learned about the Estate for
7 statute of limitations purposes—so clear that the judge took the extraordinary step of
8 disregarding Robson’s sworn statements on a summary judgment motion. The judge found
9 that no rational fact-finder could possibly believe Robson’s sworn statement (i.e., his lie
10 under oath) given the unequivocal evidence to the contrary and issued judgment in the
11 Estate’s favor as a result.
12 b. In another of the many, many lies in which Robson was caught during his
13 litigations with the Jackson Estate, he swore under oath in 2016 that he had but one written
14 communication with anyone about his abuse allegations from May 2012 until the date of
15 his sworn statement. Another Wade Robson fabrication. Through third party discovery—
16 largely from Robson’s mother, Joey, and his sister Chantal—it was revealed that Robson
17 had thousands of such communications, talking to anyone and everyone about his evolving
18 story of “abuse” (many of the communications were inquiries to his mother where he told
19 her he was asking her to help him reconstruct “my story with Michael”). In fact, Robson
20 had even written a book about his supposed abuse by Jackson in the year before filing his
21 lawsuit—which he hid from the Jackson Estate and hid from his own attorneys. When
22 shopping his book in late 2012 and early 2013, Robson communicated with numerous
23 publishers about his supposed abuse (contrary to his lie under oath that he had had only
24 one written communication about his “abuse”). Robson first met with his lawyers about
25 filing a lawsuit against the Jackson Estate in March 2013, just a few weeks after being told
26 by his book agent that no one was interested in publishing Robson’s ludicrous story.
27 49. More precisely, no one was interested in publishing Robson’s fabricated and
28 internally inconsistent tale until HBO, Channel 4 (UK), and Dan Reed came along.
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1 50. In all, owing to HBO’s and Reed’s willful blindness, the Film neglects to subject
2 the accusations against Jackson to any scrutiny whatsoever, and it ignores the countless facts and
3 circumstances evincing that these stories have been trumped up by Robson, Safechuck, and their
4 shared litigation attorneys as part of an ongoing campaign of lawsuits where they are attempting to
5 recover hundreds of millions of dollars in damages against the Jackson Estate and affiliated
6 companies for the supposed abuse they suffered.
7 51. A critical consideration by HBO of Robson and his accusations against Jackson
8 would have revealed the absurdity of these claims. When Jackson faced criminal prosecution in
9 2005 for a now-discredited accusation of abuse as to which he was fully exonerated, an adult
10 Robson testified under oath that Jackson had not molested him or engaged in any other
11 inappropriate behavior. Robson never wavered in the face of withering cross-examination from
12 one of our State’s finest prosecutors (a senior deputy to Sneddon).
13 52. Many other times in the past, Robson similarly spoke out to defend Jackson and
14 deny that he was abused. Robson maintained his support of Jackson even after the singer’s death.
15 Consistent with his belief in Michael’s innocence, for years after Jackson’s death, Robson
16 solicited work relating to Jackson—for a Jackson tribute on So You Think You can Dance; from
17 Kenny Ortega asking whether he could help on the film Michael Jackson’s This Is It; on an MTV
18 tribute produced by Janet Jackson; and from the Jackson Estate itself in 2011 on a Jackson-themed
19 Cirque du Soleil show, all so that he could further honor his friend and mentor, and make money
20 doing it. Had he actually been horrifically abused as he now claims, why would he want to spend
21 at least a year of his life dedicated to creating a show centered around his abuser’s life and art?
22 53. Wade Robson has proudly declared himself in writing to be a “master of
23 deception.” At her deposition, his own mother said that she agreed, explaining that Wade should
24 “have had an Oscar” because of his ability to stare people in the face and spin lies. Mrs. Robson is
25 right of course: Wade Robson should win an Oscar for his acting in Leaving Neverland.
26 54. Although Robson and Safechuck now claim to want to speak the truth publicly to
27 help out other “victims,” their prior actions show otherwise. Robson first filed his lawsuit “under
28 seal” in the hope that the Estate would quickly pay him off before it could be unsealed and made
15
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1 public. The Estate had no interest in being extorted, and the suit was then unsealed.
2 55. Safechuck followed the same dubious playbook. He had also testified under oath
3 years before that Jackson did not molest him. Not until decades later, when Safechuck saw
4 Robson on the Today Show in May 2013 discussing his multi-million dollar lawsuit against the
5 Jackson Estate, did Safechuck suddenly discover that he had been abused as a child. Hoping to
6 cash in as well, Safechuck hired the same attorneys who represent Robson and filed copycat
7 claims for abuse, again seeking hundreds of millions of dollars in damages. 1
8 H. Dan Reed and His Idea to Make a Documentary About Michael Jackson
9 56. A real documentarian would have explored the above, including the many lies in
10 which Robson and Safechuck were caught even after they supposedly discovered their “truth” in
11 2013 and 2014 respectively. A real “documentarian” would have explored the financial
12 motivations of these two men, including the fact that they continue to seek hundreds of millions of
13 dollars from the Jackson Estate and only brought their claims when they were in serious financial
14 trouble (in Robson’s case because the Estate refused to hire him as lead choreographer for a
15 Cirque show). Yet the “documentarian” hired by HBO had no interest in the truth.
16 57. Dan Reed is a self-described “documentarian” who has a history of making
17 documentaries about salacious sexual topics, such as like Babies: Britain’s Super Sperm Donors
18 and Celebrity Sexploitation. Reed became especially well known for producing a film glorifying a
19 vigilante “pedophile hunter” who once entrapped a man online who had been suffering from
20 severe depression due to the breakup of his marriage, financial strains, and the separation from his
21 son. After the subject of Reed’s film orchestrated the man’s arrest, the suspect committed suicide.
22 58. According to an interview, Dan Reed was looking for subjects for a documentary
23 when a friend asked him, “What are the big, unresolved stories that everyone’s heard of?”
24
25 1
The sheer frivolousness of Safechuck’s lawsuits led them to be thrown out so early that
he had fewer chances to lie under oath. He successfully avoided having his deposition taken or
26 producing any documents. Nevertheless, his sworn declaration in support of his lawsuit contained
numerous proven lies. One need only check Wikipedia and the record of Jackson’s 2005 trial in
27 Santa Maria to see that Safechuck was lying about several issues.
28
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1 According to Reed, the friend then said, “What about Michael Jackson? That’s a big story and no
2 one really knows what happened.” Of course, as explained above, we do know what happened.
3 The FBI investigated Michael Jackson and found nothing. A district attorney in Santa Barbara
4 County prosecuted Jackson, and it was a total failure. The jury completely exonerated Jackson.
5 59. But Reed and HBO ignored the facts of the prior allegations. Rather, they turned
6 their focus to two men alone—Wade Robson and James Safechuck, who as discussed above, have
7 lied repeatedly under oath (both before and after filing their lawsuits) and whose motivation for
8 making allegations is seeking hundreds of millions against the Jackson Estate (claims that they are
9 continuing to press today).
10 60. And Reed and HBO knew exactly what graphic story they could tell. Robson and
11 Safechuck had laid out their accusations in writing against Jackson in vivid detail, i.e., all the lurid
12 “shocking” details of their abuse were in public declarations written by their shared lawyers. The
13 fact that stories are told in lurid and salacious detail does not make them true, as some in the media
14 apparently believe. This is especially the case when the stories were first written out by lawyers
15 whose very job it is to litigate child sexual abuse cases.
16 I. HBO Turns a Blind Eye to Facts Made Available To Them
17 61. HBO and Reed willfully disregarded mountains of other evidence eviscerating
18 Robson’s and Safechuck’s credibility, all of which the Jackson Estate would have provided if the
19 filmmakers had sought a comment on these claims, which they did not.
20 62. HBO and Reed never approached the Estate, Jackson’s family, Jackson’s friends or
21 children, or anyone else, to scrutinize Robson’s and Safechuck’s claims. The two inter-related
22 reasons they kept their hit piece secret are rather obvious: (1) They knew that Robson’s and
23 Safechuck’s stories would collapse on scrutiny; and (2) They knew that if the Jackson Estate had
24 known such a documentary was coming, they could have had time to prepare for it with a piece of
25 their own. This is also why neither was identified in the announcement of the Film; and it was the
26 Estate in its initial public statement that “outed” the subjects of the Film.
27 63. In a perhaps naïve hope that HBO would do the right thing, the Jackson Estate
28 wrote Richard Plepler a detailed, ten-page letter explaining many (but far from all) of the problems
17
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1 with the Film and the two men at the center of it. The Jackson Estate did not make threats; it just
2 asked to sit down with HBO so that it could be heard before the documentary aired on HBO. 2
3 64. HBO never even had the decency to respond to the letter. The day after sending the
4 letter, however, HBO’s programming President Casey Bloys arrogantly told the press that:
5 “There are no plans to take a meeting [with the Jackson Estate]. We are airing the
6 ‘documentary’ and the letter is not going to change that.”
7 65. Casey Bloys explained that he and HBO had decided not to even explore potential
8 credibility problems with the Film because “it’s a very powerful documentary.” Any halfway
9 decent filmmaker can make a “powerful documentary” about anything if the filmmaker admittedly
10 refuses to consider the credibility of the persons in the documentary. A “documentary” that
11 willfully ignores any evidence contrary to its thesis can of course still be a “powerful
12 documentary.” But at the same time, any such “powerful documentary” would have more in
13 common with tabloid sensationalism than with bona fide journalism. We challenge HBO and the
14 public to name a reputable documentarian and a reputable network that would willfully refuse to
15 discuss such serious accusations with no one other than the accusers. Name one.
16 66. Other than ethics and journalistic norms, the main check on making a “powerful
17 documentary” with false accusations, without talking to anyone other than the accusers and their
18 families, is the law of defamation. And that is the heart of the issue. As noted at the beginning of
19 this pleading, it has long been the rule in Anglo-American law that there is no civil liability for
20 defamation of the deceased. HBO and Dan Reed are using that very unfortunate rule of law to
21 ignore all norms of journalism, and to justify their abject refusal to talk to anyone who might
22 discredit Robson and Safechuck’s made-up stories.
23 67. Casey Bloys bragged to a publication that the Film had been vetted by HBO’s
24 “many lawyers.” We assume HBO’s “many lawyers” did two minutes of legal research to discover
25 that HBO had nothing to worry about—you can literally say anything about a dead person and
26
2
That letter is attached as Exhibit A to this Petition. Notably, every single assertion in it
27 can be backed up by source documents for anyone interested in actually learning the truth.
28
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1 you face no civil liability whatsoever. You do not need Westlaw to understand that; Google will
2 suffice. The fact that HBO’s lawyers figured that out is nothing for Casey Bloys to brag about.
3 68. But HBO’s “many lawyers” missed their non-disparagement obligations to Jackson
4 and Optimum. And HBO cannot just “blame the lawyers” for this mistake. Its CEO, Richard
5 Plepler was almost certainly aware of why the Film violated obligations HBO had to Michael
6 Jackson, yet Plepler appears to have willfully ignored those obligations. Sadly, Plepler’s mandate
7 from AT&T, and his need to find content no matter what, seems to have led him to ignore the
8 company’s obligations and basic ethics and decency.
9 J. HBO Refuses to Communicate with Petitioners
10 69. The Agreement includes a mandatory arbitration clause. It reads as follows:
11 (iv) Arbitration. Any dispute arising out of, in connection with or

relating to this Agreement shall be submitted for binding and final
12 arbitration before a retired judge of the Superior Court of the state of
California for the County of Los Angeles who shall be mutually
13 selected by the parties. In the event that the parties cannot agree on
the selection of such a retired judge within 30 days after one of the
14 parties notifies the other in writing that there is any such dispute to
be resolved, each party shall select such a retired judge, and the two
15 retired judges so selected shall then select a third retired judge who
shall serve as the sole judge in connection with such dispute. If the
16 two party-appointed judges are unable to select a third judge within
30 days after their appointment, the sole retire judge in connection
17 with such dispute shall be selected by the Superior Court of the State
of California for the County of Los Angeles. The retired judge so
18 selected shall conduct the arbitration in conformity with the rules of,
19 Association.
20 70. On February 7, 2019, through their counsel, the Co-Executors of the Estate of
21 Michael Jackson and Optimum Productions sent a letter to HBO’s Chief Executive Officer
22 regarding Leaving Neverland. Though HBO was surely already aware of them, the letter
23 catalogued the many glaring deficiencies with and recklessness of the Film, as well as the
24 mountain of evidence disproving the false story peddled by Robson and Safechuck.
25 71. In the letter, counsel for the Co-Executors of the Jackson Estate and Optimum
26 Productions requested a meeting with HBO to discuss a solution. HBO has never responded.
27 Rather, HBO stated publicly and in no uncertain terms that it will not communicate with the
28 Jackson Estate or its related entities with respect to any issues relating to the Film. As noted
19
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1 above, HBO’s Casey Bloys made it unequivocally clear that HBO has no interest in the truth or in
2 discussing the film with Petitioners.
3 72. HBO has therefore completely shut down Petitioners’ attempt to reach out to HBO
4 and request arbitration of this dispute.
5 73. HBO’s spin machine may argue that the Jackson Estate is only demanding
6 arbitration in order to shroud proceedings in secret. False. The Jackson Estate is demanding
7 arbitration because that is what its contract with HBO requires. Unlike HBO, Michael Jackson, his
8 successors, and affiliated companies keep their promises. They agreed to arbitrate and that is what
9 they will do. However, in order to alleviate the predictable nonsense that will come from HBO’s
10 spin machine that the Jackson Estate only wants an arbitration so that proceedings are shrouded in
11 secrecy, the Jackson Estate expressly requests that HBO agree to a public arbitration. Indeed, the
12 Robson and Safechuck litigations were carried out in the public courts, and all of the false,
13 graphic and detailed statements about how Jackson supposedly abused Robson and Safechuck—
14 which have caused such a stir in the press—were all available in the public records. Had HBO
15 actually looked at the public records of the lawsuits, it would have discovered that, along with the
16 fact that the credibility of Robson and Safechuck were absolutely devastated in the trial court.
17 Unfortunately, however, it is obvious HBO did no diligence at all.
18 PARTIES, JURISDICTION AND VENUE

19 74. Jurisdiction is proper in the Superior Court of the State of California for the County
20 of Los Angeles pursuant to section 410.10 of the Code of Civil Procedure. Venue is proper in Los
21 Angeles County, California, pursuant to section 1292 of the Code of Civil Procedure because the
22 agreement was made in Los Angeles County, the arbitration clause calls for performance in Los
23 Angeles County, and all parties do substantial business in Los Angeles County.
24 75. Petitioner Optimum Productions (“Optimum”) is a California corporation.
25 Optimum is the successor in interest to TTC Touring Corporation (“TTC”), a California
26 corporation. TTC and Optimum merged in or around December 2010, with Optimum as the
27 successor corporation. A true and correct copy of the “Agreement of Merger” on file with the
28 California Secretary of State is attached hereto as Exhibit C. Petitioners John Branca and John
20
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1 McClain are the duly-appointed and currently-serving Co-Executors of the Estate of Michael
2 Jackson, and are parties in that capacity.
3 76. Respondent Time Warner Entertainment, L.P., is a Delaware limited partnership.
4 As of 1992, “Home Box Office” was a Division of Time Warner Entertainment, L.P. Respondent
5 Home Box Office, Inc., is a Delaware corporation. On information and belief, it is the successor-
6 in-interest to the “Home Box Office” Division of Time Warner Entertainment, L.P.
7 77. Respondent Does 1 through 5 are business entities whose identities or roles are
8 unknown who induced the two named Respondents to breach their contractual obligations to
9 Petitioners and intentionally or negligently interfered with those obligations.
10 78. Respondent Does 6 through 10 are individuals whose identities or roles are
11 unknown who induced the two named Respondents to breach their contractual obligations to
12 Petitioners and intentionally or negligently interfered with those obligations.
13 FIRST CAUSE OF ACTION TO BE ARBITRATED: BREACH OF CONTRACT
14 (Against all Defendants)
15 79. Petitioners incorporate by reference all prior allegations of this pleading.
16 80. Petitioner Optimum’s predecessor entity, TTC, entered into a valid and enforceable
17 contract with “Home Box Office” a Division of Respondent Time Warner Entertainment, L.P. A
18 true and correct copy of the Agreement is attached hereto as Exhibit B. Michael Jackson was an
19 intended third party beneficiary of the Agreement.
20 81. Petitioners John Branca and John McClain are the duly-appointed and currently-
21 serving Co-Executors of the Estate of Michael Jackson, and have therefore succeeded to Michael
22 Jackson’s rights under the Agreement.
23 82. On information and belief, Respondent Home Box Office, Inc., is the successor-in-
24 interest to the “Home Box Office” Division of Respondent Time Warner Entertainment, L.P., and
25 has therefore succeeded to the obligations of the “Home Box Office” Division of Respondent
26 Time Warner Entertainment, L.P.
27 83. Respondents have breached their obligations to Petitioners under the Agreement for
28 the reasons set out above, including but not limited to by disparaging Michael Jackson and
21
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1 disparaging the Dangerous World Tour.
2 84. Petitioners have performed all their material obligations under the Agreement,
3 which may be dependent upon the breached obligations, except as may have been excused or
4 waived.
5 85. Respondents’ breaches of the Agreement have caused damages to Petitioners in an
6 amount to be prove in an arbitration, with such damages potentially exceeding $100 million
7 should Respondents’ succeed in the damage they are intending to cause to the legacy of Michael
8 Jackson and the businesses associated with the Jackson Estate.
9 SECOND CAUSE OF ACTION TO BE ARBITRATED:
10 BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING
11 (Against all Defendants)
12 86. Petitioners incorporate by reference all prior allegations of this pleading.
13 87. In the Agreement, as in every contract or agreement, there is an implied promise of
14 good faith and fair dealing such that each party will not do anything to unfairly interfere with the
15 right of any other party to receive the benefits of the contract.
16 88. Respondents have breached the duty of good faith and fair dealing by unfairly
17 interfering with Petitioners’ right to receive the benefits of the Agreement.
18 89. Petitioners have performed all their material obligations under the Agreement,
19 which may be dependent upon the breached duty of good faith and fair dealing, except as may
20 have been excused or waived.
21 90. Respondents’ breaches of the duty of good faith and fair dealing have caused
22 damages to Petitioners in an amount to be prove in an arbitration, with such damages potentially
23 exceeding $100 million should Respondents’ succeed in the damage they are intending to cause to
24 the legacy of Michael Jackson and the businesses associated with the Jackson Estate.
25 PRAYER FOR RELIEF
26 WHEREFORE, Petitioners pray for relief against Respondent as follows:
27 1. That the Court compel HBO to participate in a non-confidential arbitration
28 consistent with the terms of the Agreement to arbitrate claims for breach of the non-disparagement
22
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1 clause in the Agreement and breach of the covenant of good faith and fair dealing therein. In that
2 arbitration, the Jackson Estate will seek all damages proximately caused by HBO’s reprehensible
3 disparagement of Michael Jackson, which could exceed $100 million should HBO succeed in the
4 damage it is intending to cause to the legacy of Michael Jackson. Petitioners further pray that the
5 arbitrator award punitive damages in the maximum amount permissible if and when Petitioners
6 show their entitlement to such damages.
7 DATED: February 21, 2019 KINSELLA WEITZMAN ISER

KUMP & ALDISERT LLP
8
10 By: /s/Howard Weitzman

Howard Weitzman
11 Attorneys for Optimum Productions and John
Branca and John McClain as Executors of the
12 Estate of Michael J. Jackson
13
14
15
10386.00347/623076
16
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19
20
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EXHIBIT A
ER191
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Howard Weitzman
Direct Dial: (310) 566-9811
Direct Fax: (310) 566-9871
E-Mail: hweitzman@kwikalaw.com
February 7, 2019
VIA E-MAIL AND OVERNIGHT DELIVERY
Richard Plepler
Chief Executive Officer
Home Box Office, Inc.
1100 Avenue of the Americas - 15th Floor
New York, NY 10036
(212) 512-1960
E-Mail: richard.plepler@hbo.com
Re: Michael Jackson
Dear Mr. Plepler:
We are counsel to the Co-Executors of the Estate of Michael J. Jackson, as well as

various wholly-owned entities which own intellectual property and other intangible rights
associated with the late Michael Jackson (collectively the “Estate” or the “Jackson Estate”).
We write regarding Leaving Neverland, an admittedly one-sided, sensationalist

program—referred to as a “documentary” by HBO and others—that HBO apparently funded
and intends to air this Spring. The Estate first learned about this program in early January
when its premiere at Sundance was announced in the press. As you must know, contrary to all
norms of documentary filmmaking, the Estate was never contacted by the supposed
“documentarian,” Dan Reed (or anyone else associated with the program) to provide the
Estate’s views on, and responses to, the absolutely false claims that are the subject matter of
the program. Likewise, no one else who might offer evidence to contradict the program’s
premise was consulted either, as Dan Reed has publicly admitted.
When the program was first announced, HBO and its producing partners did not
disclose the identities of the two subjects of the documentary, but referred to them only as
“two men.” However, from even the brief descriptions of the “two men” in the announcement,
the Estate knew exactly who they were: Wade Robson and James Safechuck. The Estate knew
this not because it had any inside “sources” about the documentary—it had none—but
because these two men have been peddling their false “story” for years now, most notably in a
series of failed legal actions against the Estate. The Estate did not hesitate to advise the media
of their identity. The Estate was one-hundred percent confident that there were no other
purported “victims” who this documentary could be about (because, contrary to Robson’s and
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Safechuck’s lawyers’ predictions when they first filed their lawsuits for hundreds of millions
of dollars in 2013, no “flood” of further identifiable “victims” ever came forward beyond
these two). HBO and its producing partners were then forced to acknowledge that the Estate
had “guessed right” and that the two subjects of the film were indeed those two admitted
perjurers who had filed lawsuits against the Estate, all of which have now been dismissed
with prejudice (but as noted below are pending on appeal).
The Estate spent years litigating with Robson and Safechuck, and had four different
lawsuits by these two men dismissed with prejudice. (Today, Robson owes the Estate almost
seventy thousand dollars in court costs, and Safechuck owes the Estate several thousand
dollars as well.) In those litigations, the Estate discovered troves of information about Robson
and Safechuck that made it unequivocally clear that they had no credibility whatsoever. We
discuss some of that information below, but the information discussed in this letter is just the
tip of the iceberg on these two. Had HBO actually complied with the most basic of
journalistic ethics—rather than just accept their salacious allegations at face value—it would
have discovered so much more long before it ever got involved in this disgraceful project.
Obviously, that is the reason that Dan Reed and HBO’s producing partners initially tried to
hide the identities of Robson and Safechuck. This ambush was carried out because Dan Reed
knew that Michael Jackson’s family and friends, his Estate, and his millions of fans who are
deeply knowledgeable about the case would have discredited Robson and Safechuck before
filming began.
HBO Is Being Used As Part of Robson’s and Safechuck’s Litigation Strategy
Robson and Safechuck are pursuing appeals of the judgments against them, appeals
that will probably be heard this year. As many other press outlets noted when their lawsuits
were still pending in the trial court, Robson, Safechuck, and their shared attorneys have long
engaged in a deliberate campaign to try their case in the media, most often through leaks of
false information to some of the most salacious online tabloids. Had HBO done any research
into this, it would have easily discovered that every year or so while the litigation was
pending, before a major issue was to be decided, the tabloids would suddenly be full of false
claims being peddled by Robson’s and Safechuck’s attorneys about Michael Jackson. The
trial court never let this avalanche of false claims affect it, and we have no doubt that the
Court of Appeal will not be affected by it either. That said, Robson’s and Safechuck’s lawyers
will continue attempting to try their cases in the media.
As noted, Robson and Safechuck are now appealing the dismissal of their multi-
million dollar lawsuits. Not coincidentally, their appeals are likely to be heard later this year.
HBO’s “documentary” is simply just another tool in their litigation playbook, which they are
obviously using in a (very misguided) effort to somehow affect their appeals. Sadly, it appears
that HBO—a once great and respected network—has now been reduced to the pay television
version of Hard Copy (with a little mix of The Jerry Springer Show). Most pathetically, HBO
has been reduced to a pawn in part of Robson’s and Safechuck’s attorneys’ litigation strategy.
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HBO and Dan Reed Intentionally Chose Not to Interview Anyone Who Would
Detract From Their Story
Leaving Neverland rehashes accusations against the late Michael Jackson of

committing the most heinous crimes any person can be accused of in modern society. Given
the seriousness of those allegations, one would have expected that HBO and its producing
partners would contact: (1) the Jackson family; (2) persons who worked with Jackson during
the relevant time period; (3) other young men and women who spent time with Jackson as
children (including ones mentioned by name in the “documentary”); (4) friends of Michael
Jackson who knew him for his whole life; (5) the many persons who know Safechuck and
Robson well but do not believe them; (6) Tom Mesereau and his investigator, Scott Ross, who
Robson happily met with for hours in 2005 to tell them about his experiences with Michael,
with Mesereau finding Robson so credible that he made Robson the first witness for the
defense in Jackson’s 2005 trial; and (7) the Estate, who spent years litigating the very claims
discussed in the “documentary” by Safechuck and Robson. Yet, shockingly, HBO and its
producing partners never attempted to contact any of these people. The fact that HBO and its
producing partners did not even deign to reach out to any of these people to explore the
credibility of the false stories Robson and Safechuck told violates all norms and ethics in
documentary filmmaking and journalism. It is a disgrace.
In fact, Dan Reed admitted in the question and answer session at Sundance that he
never even attempted to contact the many, many other young men and women who spent time
with Jackson as children, yet continue to defend him to this very day. And at least two of
these young men are referenced by name in the film with the implications that they “replaced”
Robson and Safechuck as Jackson’s “abuse victims.” Both have gone on record since the
documentary was announced to explain that they were never abused by Jackson. One of them,
who Robson explicitly claimed in the film “replaced” him, has released several “tweets”
denouncing the documentary as a work of fiction. Yet neither of them—among the many
others who spent time with Jackson as children—were ever approached by Dan Reed and
HBO.
In other words, HBO’s “documentary” is based solely on the word of two admitted
perjurers. HBO and its partner, Dan Reed, never even attempted to explore whether these two
men might not be telling the truth. We have read reports that these two men are supposedly
“credible” in the documentary because they tell their story so fluidly. Yet they have been
practicing their stories and rehearsing their lines (which changed throughout the litigation as
discussed below) for years now. Thus, it is no surprise that these two men—who have also
both acted professionally—tell their false story well. The bottom line is that any halfway
skilled filmmaker could make a “documentary” telling any outrageous story about a dead man
if they can just find two people willing to tell that story and then not challenge those two at
all. That is particularly the case when one of the men—Wade Robson—is a self-described
“master of deception”; and his own mother testified under oath that he should “have had an
Oscar” given how good a liar he is (as discussed below).
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In Interviews, Dan Reed Is Using HBO in Order to Bolster the Credibility of the
Program Despite Making Blatantly False Statements in Those Same Interviews
Notably, HBO’s reputation is being used as one of the main reasons that the
“documentary” should be taken seriously. The producer of this program, Dan Reed, is telling
the media that one of the principal reasons the documentary is credible is because of HBO’s
reputation. When asked whether an attorney had vetted the film, he responded, “that’s what
happens on every single film I make or, to my knowledge, that anyone makes, certainly for
HBO.”1 The usual checks on filmmakers are ethical and normative ones, such as fact-
checking (e.g., are their stories consistent? see below), investigating the motivations of people
(e.g., do they have a financial motivation to say what they are saying?), talking to others with
knowledge who may have something different to say, etc. But as is apparent from our
discussion below, HBO apparently no longer cares about these ethical and normative checks
on documentary filmmaking and journalism anymore. If HBO does care about such things,
this documentary will never air on HBO.
In the same interviews where he touts HBO’s involvement as a reason for his
“documentary’s” supposed “credibility,” Mr. Reed has also made blatantly false statements
about Robson and Safechuck in an effort to bolster their credibility. For example, in the same
Huffington Post interview discussed above, Mr. Reed agrees with the interviewer that “one of
the most impactful things in the documentary is the way [Robson’s and Safechuck’s] stories
align … even though they didn’t know each other until now.” In another interview, Reed
“confirms” that “for legal reasons, [Robson and Safechuck] were kept apart, long before you
even approached them about making the movie.” Reed expands on that and says that this was
done so “they couldn’t exchange stories. Sundance was the first time [as adults] that they’d
met. It’s the first time they’ve had any significant time together.”2 This is utterly false. In
Robson’s 2016 deposition, he testified that he had spoken to Safechuck in 2014, the year
Safechuck filed his lawsuit against the Estate. When asked what the two men had spoken
about, Robson refused to answer the question—his attorney instructed him to remain silent
because Robson’s and Safechuck’s common attorneys were involved in the conversations
between the two men in 2014. Accordingly, we can never know what they talked about and
how they aligned their stories with their attorneys’ help. Given that they were both seeking
hundreds of millions of dollars against the Estate, they had hundreds of millions of reasons for
aligning their stories.
1
https://www.huffingtonpost.com/entry/leaving-neverland-michael-jackson-dan-
reed_us_5c500044e4b0d9f9be689ab0
2
https://www.rollingstone.com/movies/movie-features/leaving-neverland-director-
dan-reed-michael-jackson-interview-785817/
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In any event, the idea that two men who are represented by the same attorneys for the
last six years would have stories that “align” is hardly surprising. You really cannot be so
naïve that you would not understand this.
Finally, we must note that we can only assume that the legendary Sheila Nevins had
nothing to do with the decision to go forward with this “documentary.” It is a shame that she
is no longer involved in these types of decisions for HBO. That HBO, the once iconic
network, would fund, produce and distribute this pathetic and untruthful vehicle for these
admitted liars to revisit false allegations made as part of their effort to revive their dismissed
lawsuits is just plain sad.
Robson and Safechuck Were Repeatedly Caught Lying During Their Failed
Lawsuits Against the Jackson Estate
Wade Robson testified in detail as an adult before a jury in 2005 that Michael Jackson
never did anything wrong with or to him. He was then subjected to a withering cross-
examination by Ron Zonen, one of California’s most-seasoned prosecutors. Yet, despite that,
Wade Robson never wavered. Moreover, even after his testimony, there are many videos of
him (readily available online) where he praises Michael Jackson as an inspiration and denies
that Michael ever molested him.
But even setting that aside, Robson was also caught lying repeatedly in the dismissed
litigations with the Estate. For example, in order to try to get around the statute of limitations
for monetary claims against the Estate, Robson testified under oath that “[p]rior to March 4,
[2013,] I did not understand or was even aware that an Estate [of Michael Jackson] had been
opened for administration.” That was a lie. In truth, Robson had personally met with John
Branca, one of the Estate’s executors, at Mr. Branca’s office in 2011 in a (failed) effort to
solicit work with the Estate on a Michael Jackson-themed Cirque du Soleil show. Prior to
meeting with Mr. Branca, Robson’s talent agent told him that he had to contact “John Branca,
the person in charge of MJ’s estate.” Not surprisingly, the trial judge dismissed Robson’s
claims against the Estate, finding that no rational person could believe Robson’s declaration
that he did not know about Michael Jackson’s Estate until March 4, 2013 when he, in fact,
had met with John Branca, the Co-Executor of the Estate. In plain English, the judge found
that Robson had lied in his sworn declaration. (The idea that Robson would want to spend
years of his life creating and directing a Michael Jackson-themed show, when he was in fact a
victim of horrendous abuse by Jackson, is itself hard to take seriously.)
Robson’s meeting with Mr. Branca was hardly the first time that he tried to capitalize
on his relationship with Michael Jackson after Michael’s death when he thought it would help
him make money. In the days after Michael’s death, Robson released a statement praising
Michael as “one of the main reasons I believe in the pure goodness of human kind.” He
then tried to solicit work from Kenny Ortega, the director of Michael Jackson’s This Is It, to
help work on the movie. Robson was able to secure work with Janet Jackson, in her 2009
MTV Video Music Awards tribute to Janet’s late brother Michael. In videos behind the scenes
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of the tribute show (easily found online), Robson is seen praising Michael Jackson in the most
effusive terms.
During the litigation with Jackson’s companies, Robson was also caught trying to hide
evidence before his cases were dismissed. For example, Robson lied under oath and stated
that, other than one brief email in late 2012, he had had “no written communications” with
anyone (other than his attorneys) about his newly-concocted allegations that he was abused by
Jackson. This turned out to be a complete and utter lie. Robson had actually shopped a book
about his allegations in the year prior to filing his lawsuit—a book he tried to hide from the
Estate. That book told a completely different story of how he was first abused by Jackson.
When asked about some of these discrepancies at his deposition, Robson explained that his
memories had “evolved” since writing the draft of the book in late 2012 and early 2013. He
explained that “post disclosing the abuse in 2012 and beginning that healing journey, they've
evolved as far as I remember more details about scenarios. As it goes along, you know, it
evolves, details get added to.”3
Moreover, despite lying under oath in his lawsuit that he had had “no written
communications” with anyone about his supposed abuse, he was eventually ordered by the
trial court to produce all such documents. Robson produced hundreds (if not thousands) of
written communications (emails, texts, etc.) with his family and friends about his false abuse
allegations. He never explained why he lied and said he had no such communications.
Most notably, many of these communications were with his mother where he
admittedly was trying to reconstruct his own “memories” of the time period when he was
supposedly abused—i.e., in his own words, to “add” the “details” that he did not know when
he was drafting his book. In one email, he lists over twenty different questions to his mother
asking her about the specific details of his interactions with Michael Jackson. Some of these
include: “Can you explain all that you remember of that first night at Neverland? What
happened when we drove in what did we do? And that first weekend at Neverland?” Notably,
in the “documentary,” Robson now recounts “his” supposed “memories” of these events in
great detail. But Mr. Reed and Robson never explain that he had to first ask his mother scores
of questions before he could tell his story. Indeed, despite telling the story of his first night at
Neverland in the documentary as if it is his own memory, at his deposition, he admitted that
he “did not know” if his memory of that night “came from [his] own recollection or [if] it was
told to [Robson] by someone else.”
Simply put, Robson is an admitted perjurer who proudly called himself (in his draft
book) a “master of deception.” Robson is such a good liar that his own mother testified under
3
We would be happy to provide you with any source documents, such as depositions,
documents produced in discovery, etc. It is a shame Mr. Reed and your colleagues at HBO
were not interested in such documents when producing their “documentary.”
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oath at her deposition that she could not tell when he was lying; she even volunteered that “he
should have had an Oscar” given how convincing his lies were. It may just be that he
deserves an Oscar for HBO’s “documentary” as well.
Robson’s fabricated story, of course, is that Jackson’s abuse caused him to have two
self-described nervous breakdowns in 2011 and 2012. Those breakdowns, according to
Robson, caused him to realize that he had been abused by Jackson decades before. But there
is a much more simple explanation for Robson’s breakdowns. He has a family history of
suicidal, major depression on his father’s side. Robson’s father committed suicide in 2002.
Robson’s first cousin on his father’s side committed suicide in 2012. Unfortunately, major
depression is a very heritable disease. Thus, it is no surprise that Robson had these
breakdowns. And it is even less surprising that he has continued to have breakdowns given
that when Robson saw a psychiatrist in 2011 he was prescribed anti-depressant medication.
But he refused to ever take that medication. To be clear, we ascribe no “fault” or “weakness”
whatsoever to those who suffer or who have suffered from clinical depression. That said, we
must note Robson’s mental illness, and his abject and stubborn refusal to get appropriate
medical treatment for it, because Robson’s claim is that his “nervous breakdowns” are strong
evidence of his abuse by Jackson. But those breakdowns are much more easily explained by
Robson’s family history of major depression and his own (apparent) diagnosis of depression
for which he stubbornly and irrationally refused to take the medication prescribed to him by a
medical doctor to treat it.
As for Safechuck, by his own admission, he did not “realize” that he had been abused
until after he saw Robson on the Today Show in May 2013 being interviewed by Matt Lauer
about Robson’s newly-concocted story of abuse. All of a sudden, Safechuck realized that he
had been abused. He then contacted Robson’s lawyers and filed copycat lawsuits against the
Estate for millions of dollars. And like Robson, he too had testified under oath that Jackson
never did anything inappropriate with him. His two cases against the Estate were also
dismissed.
Safechuck’s frivolous lawsuits were dismissed so early in the proceedings that

significant discovery was never taken in his case, and he was able to avoid having his
deposition taken and producing documents. But even in his sworn declarations in the
litigations, there are clear signs that he is lying and trying to construct a false story of abuse
from his vague memories of his interactions with Jackson. For example, Safechuck claimed in
his sworn declaration that he was first abused on the Paris leg of the Bad Tour, which he
correctly identifies as taking place in late June 1988 (as a simple Wikipedia search would
reveal). He later says that after the Bad tour ended, Michael flew him out to New York “in
February 1989” where Michael was performing at the Grammy’s. Safechuck states in his
declaration that he was abused on this New York trip for the Grammy’s. However, the
Grammy’s were not in New York in 1989; they were in Los Angeles that year (and in 1990).
And Michael did not perform at the Grammy’s in 1989. However, Michael did perform at the
Grammy’s in New York in February 1988, i.e., before Safechuck claims he was first abused
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in June 1988. Yet he somehow claims that he was abused on a New York trip to the
Grammy’s that occurred before he claims he was first abused. Safechuck’s “error” here is
obviously reflective of an effort to create a story of abuse out of whole cloth. Or in other
words, Safechuck is just making it up as he goes along.
In the “documentary” and in his declaration for the litigation, Safechuck spins a tale
about how he refused to testify for Jackson in 2005, despite threats from Jackson and his legal
team. Setting aside the absurdity of Jackson and his sophisticated legal team trying to
convince an unwilling and unstable witness to testify on such a sensitive issue, Safechuck’s
story is demonstrably false. In particular, Safechuck declares that Michael and his legal team
called him “towards the end of the criminal trial” trying to pressure him to testify. But this
statement cannot be true. Early on in the trial, the Judge precluded the prosecution from
allowing evidence regarding alleged molestation of Safechuck and others because the
“evidence” of such molestation was unreliable. The exceptions were that the Judge did allow
testimony from certain disgruntled workers that they had heard that Michael had molested
Wade Robson, Macaulay Culkin and Brett Barnes. That is why those three specifically
testified, and all of them denied the molestation (including Robson of course), and were
subject to cross-examination by prosecutors but did not waver. And that is why Jackson and
his attorneys would not have ever tried to pressure an unwilling and unstable Safechuck to
testify, particularly “towards the end of the criminal trial” as Safechuck so falsely claims in
the documentary and under oath.
***
Given all of this, which are facts readily available to anyone doing minimal due
diligence, why would HBO produce a documentary based solely on the words of these two
liars and director/producer Dan Reed? Why would HBO produce this documentary without
even seeking comment and response from the Jackson Estate who spent years successfully
litigating these false allegations with Robson and Safechuck? Is there any other artist who
HBO would do this to? Is there any other artist who HBO would not even seek comment from
when making such serious accusations?
Michael Jackson was subjected to a decade-long investigation by an overly-zealous,

ethically-challenged, and ultimately disgraced prosecutor in Santa Barbara County, Tom
Sneddon, who looked anywhere and everywhere for supposed “victims” of Jackson’s. Yet, he
never found those “victims.” Indeed, the 2005 criminal trial of Jackson was a complete farce,
and Michael Jackson was completely exonerated. As anyone who has studied that trial knows,
the jury utterly repudiated the prosecution’s case. In both his opening and closing statements,
Jackson’s attorney, Tom Mesereau, took the unusual step of telling the jury that they should
acquit Jackson because Mesereau and his team had proven Jackson innocent. In other words,
he did not try the case as a “reasonable doubt” case. Mr. Mesereau tried the case with the
purpose and goal of proving Jackson innocent. And he did exactly that. As recently as 2017,
several jurors were re-interviewed about the case in light of Robson’s about-face, and they all
agreed that they would still acquit Jackson today. The jurors have been interviewed many
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times; they are articulate bright people, not the gullible idiots that Dan Reed tries to paint
them as in his “documentary.” Yet HBO is relying on the uncorroborated stories of two
admitted perjurers over the weight of the American justice system.
Of course, the tabloid media’s fascination with Michael Jackson and telling more-and-
more ridiculous stories about him is nothing new. The great American intellectual, James
Baldwin, wrote about “the Michael Jackson cacophony” all the way back in 1985 when the
media first began subjecting him to “the jaws of a carnivorous success.” As Baldwin saw it,
Michael “will not swiftly be forgiven for having turned so many tables, for he damn sure
grabbed the brass ring, and the man who broke the bank at Monte Carlo has nothing on
Michael.” By 1985, when Baldwin wrote those words, Michael Jackson was a 27-year-old
African-American from Gary, Indiana who had “turned the tables” on the entire power
structure in the music business. Leveraging his unprecedented success, Michael insisted that
MTV and mainstream radio play his music and that of other African-American artists like
him. Michael also insisted that his record company assign him ownership of his own master
recordings. In other words, Michael Jackson, the young artist, insisted on controlling his own
art and not leaving it to the whims of big business. And more still—the 27 year-old Michael
did not just own his own music publishing, he had the gall to outbid other more established
players in the industry for one of the crown jewels of music publishing, the ATV catalogue
(which famously included the Beatles catalogue).
We suspect that even James Baldwin could not have imagined that his words would
still ring so true today, over thirty years later. Michael Jackson has yet to “be forgiven for
having turned so many tables” even ten years after he left this world forever. Even the once
great HBO—who had partnered with Michael to immense success—is subjecting the
deceased Michael Jackson to “the jaws of a carnivorous success” in death, devoting four
hours of its programming to the words of two serial perjurers, whose sole agenda has been to
extract money from Jackson’s rightful heirs and chosen beneficiaries.
That HBO has now joined the tabloid media’s “Michael Jackson cacophony”—ten
years after his death—is truly sad. We know that HBO is facing serious competitive pressures
from Netflix, Amazon and other more modern content providers, but to stoop to this level to
regain an audience is disgraceful. We know HBO and its partners on this documentary will
not be successful. We know that this will go down as the most shameful episode in HBO’s
history. We know that Michael’s devoted fans, and all good people in the world, will not
swiftly forgive HBO for its conduct.
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Mr. Plepler, as you yourself said in late 2017: “A lie goes halfway around the world
before the truth puts its boots on.”4 The media coverage alone of this disgraceful
“documentary” has proven you right.
We would be happy to meet with HBO to discuss a solution. We have plenty of further
information and witnesses that would expose these two for who they are. If HBO wants to
maintain its industry position as a valid source of news and fact, it owes an obligation to the
public—not to mention the deceased Michael Jackson with whom HBO had previously
partnered with during his lifetime—to actually investigate these matters.
Barring that, this “documentary” will say a lot more about HBO than it ever could
about Michael Jackson.
Very truly yours,
/s/
Howard Weitzman
HW/JPS
cc: Jonathan P. Steinsapir, Esq.

Bryan Freedman, Esq.
Eve Konstan, Esq. General Counsel, HBO
Glenn Whitehead, Esq., EVP, Business & Legal Affairs, HBO
10386.00347/618197
4
https://deadline.com/2017/10/hbo-richard-plepler-confederate-backlash-vanity-fair-
summit-1202181519/
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HN
MICHAEL JACKSON
Jack792,la
VE073192(2)
As of July 22, 1992
T~C Touring corp.

o/o Greenberg, Glusker, r.telds, Claman & Maohtlnger
1900 Avenue of the Stars
Suite 2000
Los AngolQS, CA 90067
Attention: Sandra A, Dewey, Esq.
RE: MlCHAEL JACKSON !N CONCERT
aentlement
~he following sh~ll confirm the terms and donditions of.the.
aqreement between Home Box Office, a Division cf 'l'ime Warner
gntertainment company, L.P. ("HBO") and TTC 'l'ou;a;-ing Co;z:p,
("Licensor") for. the above-mentioned program.
Performer: Michael Jac~aon.
Frogram: An a.pproximAtely 120 minutee in length in-c::onee:r:t prog~attt
featuring Perrormar (the ''Program"), which Licen25or shall record at
Performer's live concert in Buchareat, ftgmaniA cu~rently echeduled
for October l, 1992 (the "Performance"). The Program shAll
thereafter be aelivered to HBO for exhibition by HBO on October 10,
1992 (or at such later date as set forth in the "Cancellation"
paragraph below). The Program shall contain up to approximately
ten (10) minutes (but in no event more than twelve (12) minutes) of
footage (which shall include, if it is used, the video,
approximately three C3) minutes in lvngth, fee.turing Perform.er
whioh la shown at th~ beglnn1ng of the Fertormance befoxe Performer
appears on etage) other thin in-conc:ei-t footag~ of Performer during .
the Pertormanc;:.; (the "Non-Concert Footage")J provided tl'lat (1} the
entirety of the Non-Concert Footage shall be placed imnaedi•tely at
the beginning of the Program; c.mcl ( 11) the r·emaJ.nd.e~ of the Program
shall consist solely of uninter~upted in-concert footage of
Performer during the Performance.
Delive;ryi The Proqram shall be delivered to HBO no later thl.ln
October 8, 199.2; provided that I.ticensor ,shall use reasonable
efforts to deliver the Program earlier (the "Delivery Date")• The
Program shall be held by HBO tor the sole purpose of preparing for
HBO• s use hereunder such videotapes o;C the Program e.s HBO requireas.
HSO is not granted the right to own the Program. After delivery of
-1-
Home Box Offio0, A Time Warner Entertainment Company

1100 Avenue of the Am1;1ricas, New York, NY 10036·67j7 (212) 51~-1000
ER203
(211 of 239)
Case
R~~
Case: 19-56222,
Glusker et 02/28/2020,
2:19-cv-01862-GW-PJW
BY:Greenberg ID:
Document
7-31-92 11613681,
1-1:HBOFiled
1:31PM DktEntry:
03/13/19
NY 14 FL 9-2,
PagePage 179
38 of 54of5530667;#
207 ID 5#:44
Page
!' ~ '
!
~~c Touring Corp.

As of July l2, 1gg2
tbe Program, HBO may not alter or edit the Program in any way. If
there are technical or legal reasons why the Program requires
alteration or editing, HBO shall immediately notify Licensor of
such problems, and Licensor shall be re$ponsible for the immediate
oorrect1on thereof. Within thirty (30) days after the Exhibition
Date (as hereinGfter defined), HBO shall return to Licensor all
videotapes of the Program in its posses~ion and any promotional or
advertising materials delivered to Hao by Licensor in connection
with thie Agreementi provided that HBO may keep a videotape for
archival purposes only.
Rlghts: Licensor hereby irrevocably licenses to HBO, its
successora and a~signs, the e~clusive rights to exhibit the Program
one time only on each transmission feed (without overlap) on the
HBO programming service without regard to the number of channels
comprising such swrvice by means of Non-Standard Tel&vision in the
Ter~itory on October 10, 1992 (or at suoh later date as set forth
· in the "Cancellation" paragraph below ( the "Exhibition Date")) and
. at no other time.
In consideration for the license granted b Licensor
Licensor
, payable ae
(i) one third (1/3) by wire transfer within five (5) daya
after Licensor's execution and delivery of this Agreement;
(ii) one third (1/3) two weeks prior to the Delivery Date;
and
(iii) onw third (l/3) within five (5) days after the Delivery
Date.
Holdbacks: (A) Neither Performer, nor Licensor, nor any entity or
person owned or controlled by Performer and/or L'icensor shall
cause, authorize, or permit any exhibition, distribution,
promotion, publ1c~ty or advertiaement of the Program, any portion
thereof, or any outtakes from the videotaping of the Performance,
as followss
(i) in the Territory, by means of Non-Standard
~elevision, during the twelvQ (12) month period immediately
following the Exhibition Date (the "Holdback Period'');
(ii) in the ~erritory, by means of Standard ~elevision

. until after tha.Holdback Period;
-2-
ER204
(212 of 239)
7-31-92 1!31PM :HBO NY 14 FL 5530687:# 6
,. ', Ryy,
Case Case: 19-56222,
BY!Greenberg GI usker et 02/28/2020,
2:19-cv-01862-GW-PJW ID: 11613681,
03/13/19 9-2,
PagePage 180
39 of 54of Page
207 ID #:45
TTC Touring Corp.

As of July 22, l992
(iii) .tn the Territory, by means qf Non-Theatrical

Distribution, until after the Holdback Period;
(iv) in the Territory, by meana of Consumer Video Devices
until thirty (lO) days after the Exhibition Date; and
(v) outside the Territory by means of any med!a until one
(l) day after the Exhibition Date; provided that it is understood
and agreed between the parties hereto that Licensor has entered
into an arrangement with R~dio Vi$ion International, Inc. pursuant
to which Radio Vie ion International, Inc. naa been granted the
rJ.ght to·record the Performance and to authorize the broadcast of
such recordation twice in certain territories 1n Europe only (once
"live" and once during the six (6) month period following the live
broadcast).
{B) Notwithstanding anything to the contrary contained in
clause (A), above, P~rformer or Licensor shall have the right to
cause, authorize and permit the exhibition, promotion, publicity or
adve~tiawment of the following:
(1) txcerpts from Performer's 1992/1993 tour for purposes
of advertiainq or promoting. the 1992/1993 tour or the sale of
Performer's records; provided that, no one ekcerpt or clip of such
footage shal 1 exceed two ( 2) songs i·n the aggregate;
(ii) a "making of" documentary of Performer's 1992/1993
tour containing not more than twenty { 20) minutes of concert
footaqe from Performer'~ 1993/1993 tour; provided, tnat such
ctocumentary 8hall not be promoted, advertised or exhibited in the
Territory by any means or media until three (3) months after the
Exhibition Datu:
(iii) any outt~kes from the Program, to be used solely in
connection with Performer's commercial endorsements (except as set
forth in clause (iv) below), not to exceed thirty (30) seconds in
length each1 and
(iv) any outtakes from the Program, to be used solely in
connection. with mini documentaries about Performer (except ag set
forth in clause (iii)a above), provided that such outtakes shall
not exceed (A) thirty (30) seconds in le~gth each and (B) five (5)
minutes in length in the aggregate, for inclusion in each such mini
documentary.
Cance11Mtion: (i) If the Performance is canceled for any reason
withfn·ticensor's or Performer's control, or within the control of
-3-
ER205
(213 of 239)
Case: 19-56222,
Case 2:19-cv-01862-GW-PJW
R9y.sy:ereenberg 7-31-92 ID: 11613681,
1-1:HBO
1:32PM
Document NY DktEntry:
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03/13/19 9-2,
PagePage 181
40 of 54of5530587:#
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Page 7
I''' '
TTC Touring corp.

As of July 22, l992
any employee, agent, representative or designes of aither of tbem,

Li~ensor shall, within ten (10) business dayu after receipt o! an
invoice therefor, reimburse Hao for any portion of the Lieenee Fee
heretofore paid. For purposes of thb Agreement, any strike,
epidemic, act of God, illness, injury or any ot~er condition beyond
Licensor's or Performer's control caµ~ing a cancellation (each, a
"Force Majeure Event") 8hall be deemed an event beyond. Licensor's
and Performer's control. (ii) If the Performance ie canceled as a
result of any Force Majeure Event, neither Licensor·nor HBO shall
have any liability whatsowvsr to the other; provided; that if and
only if the Performance and the videotaping thereof are· not
rescheduled ( a.s sut forth in this paragraph), Licensor shall,
within ten (10) business days after receipt of an invoice,
reimburse HBO ·tor any portion of the Licen8e tee heretofore paid
which has not been expended or irrevocably conunitted by Licensor on
the actual production of the Program by tne date of cancullation of
the Pvrformance. · Licensor shall account to lIBO in writing
simultaneously witll said reimbursenuirnt for any amounts so expended.
Notwithstanding the foregoing, Licensor shall have the right to
reschedule the videotaping of the Program during one of the
performances during Performer's 1992/1993 tour; provided that the
Exhibition Date must be within two (2) weeks following October 10,
1992; and provided further .,that the venue of such rescheduled
performance 8hall be subject to HBO's approval •
. As ueed throughout tbis Agreement:
"Mon-Standard Television•• meana any and all forms ot
television e~h1b1tion, whether now existing or developed in the
future, other than exhibitions hy means of Standard Television,
Consumer Video oevicea, and Non-Theatrical Distribution. -)
Non-Standard Television shall include, without limitation,
exhibition by means of cable, wire or fibre of any material,
"over-the-a'ir pay" or STV in any frequency band, any and all forms
of regul4r or occasional scrambled broadcast for taping, master
I
antenna, satellite master antenna, low power television,
closed-cirouit television, single and multi-channel multi-point
distribution service, and direct to TVRO satellite transmiS$1on,
and radio (only for purposes of simulcast), all on a subscription,
pa.y-par-viewt license, rental, sale or any- other beeiie.
"Standard 'l'elevis.:t.on 11 means television distributed by I:!. UHF
or VHF tele.vis.1.on bi:oaelcaet station, the video and audio portions
of which are intelligibly receivable without cha~ge by means of
standard home roof-top or television set built-in antennas.
-4-
ER206
(214 of 239)
Case: 19-56222, 02/28/2020,
Case 2:19-cv-01862-GW-PJW
R9V,BY:Greenberg Glusker et ID: 11613681,
Document
7-31-92 1-1:HBOFiled
1:s3PM DktEntry:
03/13/19
NY 14 FL 9-2,
PagePage 182
41 of 54of5530687;#
207 ID 6#:47
Page
,•
TTC Touring Corp.

As of July 22; 1992
.'._'.TVR0 11 means a television earth station capable of receiving

satellite transmissions.
11 Consumer Video Devices" means any form o:f video dev-loe, now
existing or hereafter devil!led, including video discs a.nd video
cassettes, fo~ .exhibition by means of a playback device causing a
vfsual image of the Program on the scruliln of a television recei\rer
or any comparable device, whether now existing or hereaftar
developed, located in consumer homes, including, without
limitation, distribution for sale or .rent, on a retail
subscription, club, mail ordor or other direct consum~r basis.
"Non-Theatrical Dii.tribution" means distribution of the
Program by any means or method to educational and/or institutional
organizations, airlines for in flight and trains for in~transit
distribution, ships-at-sea, remote corpo·rate locations and U. S,
milit&ry base&.
"Territory" means the United States of America, its
terr! tories, p·ossessions and commonwealths.
Promotional Activities: For purposes of. advertising, promoting and
publicizing the Program, HBO,.shall have the right to: (1) use and
authorize others to utilize Performer's name, approved likeness;
approved recorded singing voice and approved recorded epeaking
voice, provided, that Performer's recorded singinq and/or speaking
v-otce as contained in the Performance and. in any interviews
conducted by Hao with Performer are hereby deemed approved; and
proYidad further that all other approvals must be obtained :from I
Licensor, and shall be given within fi\Te (S) business days of I
receipt by Licensor of HB0'13 submission for apprqval of such 'I
likeness and recorded singing and/or speaking voice and failura by j
Licensor to reBpond within such five (5) business day p~riod shall I
he deemed approval;· (ii) require Licensor to provide a reasonable
number of photographs of Performer; and (iii) screen and utilize
audio/visual materials as are reasonably available to Licensor or
11vrfor.mer ( as well as elips from the Program} for purposes of
creating and airing commercials and on-air promot!on. In the event
that HBO shall determine that such audio/visual materials a~e not
sufficient, Licensor agrees to videotape additional materials as
requestect by liBO of Performer on stage, subject to Performer's
availabilitr; provided tnat ·UBO shall be responsible for
reimbursing' Licensor fo;r out-of-pocket expenses incurred in
videotaping such addit!onal materials, After the ~xhib1tion o,ta
· and until the expiration of the Holdback Period, for purposes of
advertising, promoting and publicizing the fact that the Program
and Performer have _appeared on the HBO programming service (but not
-s-
ER207
(215 of 239)
553o6e7i# 0
,· . ,• R.C.V·
BY:Greenberg
2:19-cv-01862-GW-PJW 7-31-92
Glusker et 02/28/2020, ID:
Document 1-1;HBO
1:34pM
11613681,NY DktEntry:
Filed 14 FL
03/13/19 9-2,
PagePage 183
42 of 54of Page
207 ID #:48
: ,,
~TC Touring corp.

As ot July 22, 1992
for the purpose of directly soliciting new subscribwrs, 8,g,, in

connection with a specific Rpecial offer or an ''800" or "900"
telephone number), HBO shall have the right to use (i) excerpts
from the Progra~, each e~eerpt not to exce9d ten (10) seconds in
length; provided, however, that Licensor Bhall have the right to
approve (A) such excerpt(s), provided that Licenaor shall supply at
least five (5) minutes in the aggregate ot. such e~oerpts
(cons!at!ng solely of Performer's performance in the Program) on or
before the Exhibition Date and (B) the material which contains any
such excerpt(s) (which approval of such material shall not be
unreasonably withheld); and (ii) Performer's name and/or approved
likeness in printed promotional or advertising material, provided
that Licensor shall have the right to approve the material which
contains any such name and/or likeness. In connection w.ith
Licensor's approval of material created by HBO and containing
excerpts from the Program, the name and/or likeness of Performer,
such approval shall be notified to aao no later than five (.5)
business days· of receipt by Lieensor of HaO' s uubmission for
approval; and provided further that failure by Licensor to respond
within such five (5) business day period shall be deemed approval.
copyr1gh~: Licensor shall be the sol& and e~clusive o~ner of all
right, title and interest in, to and with respect to the Program
including, without limitation, the copyright therein and thereto.
Licensor shall register or cause to be registered the copyright in
the Program in the United States Copyright Office and shall protect
the copyright in the Program throughout the Territory. Licensor
shall deliver to HBO an executed and notarized Memorandum of
Exclusive License, in the form attached hereto. For such purpose
only, HBO is hereby irrevocably appointed the attorney-in-fact ot
ticensor to execute, verify, acknowledge and deliver any and all
such instruments which Licensor shall fail or refuse to execute,
verify, ackno~led9e or deliver within ten (10) business days, HBO
shall deliver to Liceneor copies of any document& or instruments
executed, verified, acknowledged and delivered by HBO as attorney-
!n-fact of Licensor.
Licensor• a Representations and warranties: Licensor represents and
war.rants that:
( .1) lI'he Program, any . · element thereof, or any
advertising, promotional or publicity material supplied by Licensor
hereunder ~ill not contain any language or material which, to the
best of Licensor's knowledge, is lihelou$, slanderous or defamatory
and will not, to the beat of Licensor's knowledge, violate,
infri~ge upon, or give rise to any ~dverse claim with respect to,
any common law or other right whatsoever (including, without
-6-
ER208
(216 of 239)
2:19-cv-01862-GW-PJW
RCV, BY:Greenberg 7-81-92 ID: 11613681,
1:s4PM
Document 1-1 ;HBO NY DktEntry:
Filed 14 FL
03/13/19 9-2,
PagePage 184
43 of 54of 5530667;#10
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Page
~TC Touring Corp.

A& of July 22, 1992
11m1 tation, any oopyr ight, trademark, service mark, l ! terary,

dramatic, comedic, muai~al or photoplay right, right of privacy or
publicity or contract right) of any pergon, firm or corporation; or
v!olat0 any applicable law;
(ii) Licensor has the right to ~nter into this Agreement,
to grant the rlghts herein licensed and to perform fully all of its
obligations hereunder;
(iii) Licensor has acqui~ed all rights necessary to
Licensor's license of rights to HBO hereunder including, without
limitation, music synchronization rights, mus!o master ~ecording
rights, still photo~, film or videotape footage licenses or other
appropriate licenses of all elements of the Program; and
(iv) None of the rights herein licensed to HBO has been
transferred to any third party; to the .best of L!censor'g
knowledge, said rights are free of any liens, claim~ and
encumbrances whatsoever in favor of any other party; and to tha
best of Licensor's knowledge, there are no claims, litigation or
other proceedings pending or threatened which would adversely
affect HBO's righte hereunder.
HBO's Representations and Warrantie~; HBO represents and warrants
that it has the right to enter into this Agreement and perform
fully all of its obligations heraunder.
Indemnifi~ation: (1) Licensor shall indemnify and hold harmless
HBO, its parent, subsidiary and affiliated companies, distributors,
t1uisigns, licensees and the respective shareholderl!l, directors, . ;
otfioers, employees and agente of the foregoing (the "liBO
Indemnified l?arties") from and against any and all claims, actions,
suits, costs, liabilities, judgments, obligations, losses,
penalties, expenses or damages (including, without limitation,
reasonable outside legal fees and expenses) of whatsoever kind and
nature imposed on, incurred by or asserted against any o! the HBO
Indemnified Parties arising out of any breach by Licensor ot any
representation, warranty or covenant maqe, or obligation assumed,
by Licensor pursuant to this Agreement. Tha provisions of this
subsection (1) shall apply, without limitation, to claims brought
by HBO against Licensor.
(ii) HBO shall indemnify and hold harmless Licensor, its
parent, subsidiary anci att111atec.t companies, distributors, assigns,
licensees and the respective shareholders, director!; officers,
employees and agents of the foregoing (the "Licensor Indemnified
Parties") :from and against any and all claims, actions, suits,
-7-
ER209
(217 of 239)
Case: 19-56222, 02/28/2020,
Case 2:19-cv-01862-GW-PJW 7-S1-92 1ID: 11613681,
:35pM
Document 1-1 NY 14DktEntry:
:HBOFiled FL
03/13/19
... Page
9-2,
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44 of 5530687
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Page ID #:50
RCV·BY:Greenberg Glueker et
TTC Touring Corp.

As of ~uly 22, 1992
costs, liabilities, judgments, obligations, losses, penaltie8,

expenses or damage& (inoluding, without limitation, reasonable
outside le.gal fees and. expenses) of whatsoever kind and nature
imposed on, incurred by or asserted against any of the Licenaor
Indemnified Parties arising out of (A) any breaoh by HBO of any
representation, warranty or covenant made, or obligation ~ssumed;
by HBO purauant to this Agreement; (B) any use by HBO of any
advertising or promotional materials not approved by Licensor or
Performer; or (C) the production, exploitation or e~hibition of any
materials created by HBO. the provisions of this subsection (!i)
shall apply, without limitation, to claims brought by Licensor
against HBO,
Miscellaneous:
{i) Notices. All notices and other communications between
the parties hereto shall be in writing and deeruwd received (1) when
delivered in pwrson or by telex or electronic means, or (11) five
(S) days after deposited in the United States mails, postage
· prepaid, certified or registe:ced mail, addressed to the other party
~t the address set forth below (or at such other addrese as such
other party may supply by written not!ce)1
..
Licensor ·c "Licen11or 1
s Address"):
T'l'C Touring Corp.
c/o Greenberg, Glusker, Fields, Claman & Machtinger
1900 Avenue of the stars
Suite 2000
Los Angeles, CA 90067
Attention: Bertram Fields, Esq. and
Sandra A, Dewey, Esq.
with copies tor MJJ Productions, Inc.

10960 ~ilshire Boulevard, Ste. 2206
Attention: Ms. Norma Staikoe
Breslauer, Jacobson, Rutman & Sherman
10345 Olympic Boulevard
Attention: Mr. Richard Sherman
-8-
ER210
(218 of 239)
Case: 19-56222, 5530687:#12
Case
RPV· Glusker et 02/28/2020,
2:19-cv-01862-GW-PJW
BY:Greenberg 7-31-92 ID:
Document 11613681,
1:sePM
1-1:HBOFiled DktEntry:
NY 14 FL
03/13/19 9-2,
PagePage 186
45 of 54of Page
207 ID #:51
TTC ~ouring Corp.

As of July 22, 1992
lfBO:
Hom9 Box Office, a Divisi~n of
Time warner Entertainment Company, L,P,
1100 Avenu8 of the Americas
New·York, ~ew York 10036
Attention: Senior Viee President, Business Affairs
with a separate copy delivered to:
Senior Vice President and General Counsel
(11) Confidential Information. It is understood that HBO
shall comply with the confidentiality provisione set forth in
Exhibit I attached hereto and incorporated herein by this
refer&nce.
(iii) Governing La.w. This Agreement should be governed by,
and construed in aocordanc:e with, the laws of the State of
California, applicable to contracts ente~ed into and to be fully
performed therein,
,,
(iv) Arbitration. Any dispute arising out of, 1n connection
with or relating to this Agreement shall be submitted for binding
and final Arbitration before a retired judge of the Superior Court
ot the state of California for the County of Los Angeles who shall
be mutually selected by the parties, In the event that the parties
cannot agree on the selection of such a retired judge within 30 i
days after one of the parties notifies the other in writing that .I
there is any such dispute to be resolved, each party shall select
such a ~etired judge, and the two retired judges so selected shall
then select a third retired judge who shall serve as the sole judge
i
in connection with such dispute. If the two party-appointed judges
are unable to select a third judge within 30 days after their
appointment, the sole retired judge in connection with such dispute
r.ha.'ll be selected by the Superioi:- Court ot: the State of California
-9-
ER211
(219 of 239)
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Page #28
TTC Touring Corp.

As of July 22 ,. 1992
tor the County of Los Angeles. Tho retir0d judge so aelected shall
conduct the arbitration in conformity with the rules of, and as if
it were conducted by, the 1uiterican Arbitration Association.
Very truly yours,

HOME BOX OFFICE, A division of
Time warner Entertainment Company, L.P.
By: .
ACCEPTEP AND AGREED TO:

TTC TOUR!NG CORP .
. .d-._···"> ~
.,.~~
By;
Federal ID t
---------
-10-
ER212
(220 of 239)
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3.19.51?
MEMORANDUM OF EXCLUSIVE LICENSE
KNOW ALL PERSONS BY THESE PRESENTS;
In consideration of Ten Doll 9 rs, receipt of which is herGby

acknowledged, paid by Home ,Box Office, a Division of Time Warn0r
Entertainment Company, L. P. ("HBO") , and for other good and
valuable consideration, the undersigned ("Licensor") does h8reby
irrevocably license to HBO, its successors and assigns, the
exclu~ive rights to distribute the t.Gl·ev.ision program tentatively.
entitled "MICHA!i:L JACKSON IN ~ONCERT" (the "Program") as follows:
Licensor herGby irrevocably licenses to HBO, its successors
and assigns, the exclusive rights to e.xhibit the Prog:ram one time
only on each transmission feed (without overlap) on the HBO
programming seryice without regard to the number of ahannels
comprising such service by means of Non-Standard Television in the
Territory (the "Exhibition Date"). · -
Licensor shall not cause, authorize, license o~ permit any

exhibition, distribution, promotion, publicity or advertisement of
the Program, or any portion thereof, as follows;
(i) in the Territory, by means of Non-Standard
Television, during the twelve (12) month period immediately
following the Exhibition .Date (the "Holdback li'eriod"), subject to
the terms and provisions of a certain arrangement between Licensor
and Fox/MTV;
(ii) in the Territory, by means of Standard Television,
until after the Holdback Period;
(iii) in· the Territory, by means of Non-,Theatrical
Distribution, until after the Hold.back Period;
(vi) in the Territory, by means of Consumer Video
Devices, until thirty (30) days after the Exhibition Date; and
(v) outside the Territory by means of any media, until
one (1) day after tha tJ1;hibition Date, provided that it is
'understood and agreed between the parties hereto that Licensor has
entered into an arrangement with Radio Vision International, Inc.
pursuant to which Radio VJ.sion International, Inc, has been granted
the right to record the September 29th cQncert and to authorize the
broadcast of such recordation thereof twice in·certain territories
-1-
ER213
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03/13/19 9-2,
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Page
in Europe only (once 11 live" and once during the six month period
foll°"1ing the live broadcast).
"Non-Stanclard Television 11 means any and all forms of
television exhibition, whether now existing or developed in the
future, other than oxhibitions by means of Standard Televisio~,
Consumer Video osvicos and Non-Theatrical Distribution.
Non-Standard Television shall include, without limitation,
exhibition by means of cable, wire or fibre of any material,
"over-the-air pay" or S'l.1V in any frequency band, any and all forms
of regula~ or occasional scrambl8d broadcast for taping, master
antenna, satellite master antanna, low power television,
closed-circuit telsvision·, .tape, cassattG and dis<'.! distribution
(excluding Consumer Video Devices), singlG and multi-channel
multi-point distribution service, and direct to TVRO satell.tte
tran$mission, and radio {only for purposes of simulcast) all on a
subscription, pay-per-view, license, rental, sale or any other
basis,
''Standard Television" mean::J television distributed by a
UHF or VHF television broadcast station, the video and audio
portions of which etre intelligibly receivable without charge by
means of stanaard home roof-top or television· set built-in
' antennas.
"TVRO" means a television earth l!itation capable of
receiving satellite transmissions.
"Consumer Video Devices" means any form of video device,
now existing or hereafter devised, including video discs and video
cassettes for axhibition by means ot a playback device causing,a
visual image of the Program on the screen of a television receiver
or any oomparable device, whether now existing or hereafter
developed, located in consume!' homes, including, without
limitation, distribution for sale or rent, on a retail
subscription, club, mail order or other direct consumer basis.
Non-Thaatrical Distribution" means distribution of the
'
1
Program by any means or mGthod to educational, · institutional

organizations, airlines for in flight and trains for in-transit
distribution, ships-at-sea, remote corporate locations and u.s.
military bases.
''Tet'ritory" means the United States of Ame:dca, it.s
territories, possessions and .commonwealths.
This memorandum of exclursive license is executed in accordance
with and i~ subject to the terms and conditions of the license
-2-
ER214
(222 of 239)
R9¥'.,_BY.!_~REE~'2_ER9LGL_USKER
Case , Case: 19-56222,
2:19-cv-01862-GW-PJW
- . ··-··i 7-29-92
02/28/2020,
''.-- Document i 1:28PM
ID:
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1-1 Filed5587
11613681, DktEntry:
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49 of 54of3.19.5_?_3
207 9ID
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agreement datad as of July 22, 1~92 between the undersigned and HBO
(the "Agreement") relating to the licanse to HBO of the
above-m~ntioned rights in the Program. All capitalized terms used
herein and not definad shall have the meanings set forth in the
Agreement.
IN W1~NESS WHEREOF, the undersignGd ha~ caused the~~ presents
to be signed by its duly authorized officer on the fi\l\il\day of
-·1\,J "'' , 1992. ~
TTC TOURING CORP,
B y ~
STATE OF )
: ss.:
COUNTY OF
) , on t.~e J.Ctr \day of =:.\

l.t \ \j , 1992 before me personally came
[ "' v-\\nnr) 1'.::>\\if\ffl\f\tf,J , to me known, who, bei_na by me duly. r-o;n, did
aepoe1e and say tli t he/,he resides at ·1 t) 64.'.'S O \\1 N'1{t1 ( t 1\1 a; that
he/she is the ,; t::;··C-t~l' CJ'A;\ of TTC touring Corp',, the
corporation desc ibed in ~nd which executed the foregoing
instrument; and that he/she signed his4her name thereto by order of
the board of di~ectors of said corpoition.
I -
11.1·-th 1 l ~\ \ (,!~r\n /1\J\t~'\
-3-
ER215
(223 of 239)
Case: 19-56222, 02/28/2020,
Case 2:19-cv-01862-GW-PJW ID: 11613681,
03/13/19 9-2,
Page-+Page 191
50 of 54of 207
3.1 Page
P.5§.§ 9~ID
8_7J#:56
#3 2
,.
, .
EXHIBIT I
to
A g r ~ t betweet.1 Hct'l'le Box Office
and TIC Touring corp. dated as of
Jul~ .. 2?! 1992
®NF\lU;NTIALIJ'Y,,!Bm6SIPNl1
Prior to and/~t during HBO's conwct or r•latfonshlp with Licensor, HBO (which
ehall be deamsd kl Include HBO•a officera, director,, e1ae11ts and 1mploya1H) may be
given aGoasa to or bacome acquainted with Performer and/or with "(k>nfldentla1
lnformatitmu <a• such wm· 11 daflned below) which IS Qf er•at v,.tue to Uoen1or and ..
Performer. HBO futihflr a~knowluds111,thut malntelrdng the·aanfld,n'IJallty af all ltloh
Confldentlal Information ia criti~ally lmport.nt t~ Lic;eneur 1nd Porformctt, and that
HBO's agreemerlt to thuee confldentlaffty pravlalc,na a.
a materiel Inducement to
LIO(U'ltt,P in snmting the Hcense to HBO which 11 thA 1ubj1ct of tl'l1e 11raemoht.
. HBO .tle~ not; In 1,1ny. manner nor -at any time (elthar during or after HBO's
cantaoi or HBO'• relatlonshlp with Licensor and/ar Performer), use at dlaclose, dlractlv
or Indirectly, even 111- the· cout.H of c1au,1 dlicusalona. to 1nyon1 oihtt than
repreaentatlves of Ucent0r or other peraona daslgnaiad by llcansor any of the
foHQwin; oe,cribtd lnformt1tion Ith, "OOnfldentJal lnfc:,r.maiton 111 h any hdormatJon,
data, documents, or othtl' materlal1 of •nY ktnd or natur4:l In any way tatatad to
Performar from any source br for any nn11ana, lnQluding without 1lmltfltlon, ea acquited ·
by HBO In the cour111 of. HBO'e contact with Llaensor and Performit, Confldanti,1
· Information ahat1 alao lnoluQo, without nm1tat1on, ,ny Information ralallna to Uo1n1or'1
business affair• or operation•, .the busina,s affalra. opatetJona and/ot personal life of
Perfgrmer, 'Che bualnea, eff11lr1, oparatlons and/or private ave, of any and au mambers
of Performer•• famnv, and/or the buarneea affairs or op,,..tlon of anv and all entttles
In which Performer ha• 1 controUlng Interest. which Information Is generaUy not,
known to the publlc. conrac1anti11 li\fCM'mation 1hall 1l10 Include. without llmltatlonf
.. ,nv and an pho_tographa, ftlma., vl~a~,, mualc:.ar othe~ ~~~rc!~a•, lr't~tuding ne91tlves,
prints or aople• thereof, relatins, ufPerfarmer 01 hl1 llktnta1 arany of hrs corporations
and/or othltf entltte,, and/or r:orporaflona or other 1nt1~a, ~olng busfr,111 or In any
wuy related to Performer, artdlor any of hie ~r ·their ,oUvlUtt, All auoh confldentfal
Information shall be deeMad to be private·, aecret end sensitive and sh&U be kept
confldantlil and secret untaa,. llantor otherwise adV11e1 HBO in writing an each.
lnatanae. HBO acknowledges that .Conflda11tf1I Information rnay be eonwltttd In
written materlals, In written or verbal communlcatfona, rand/or In HBO's unwritten
knt1wtedg1. ·
HSO ehaU not photograph, tape, film or othatwiH reqord (0 'the voice or any
Hkane~s or tatlvitlee of Performer, {Ht any concert performance, or atll•r mutlc«I
11vrtorm1nae1 af Perfarmar, at tthiutaal1 th1r1far. or nm
any othar activitfet1 rehatad
to Pt1rforrnar, without Uoanaor"1 written oonaent In each lnatanue, and HBO
ackr1uwled;eu 'th1t any such photo;raphs, tapes, fllm or other recording•, lf approved
ln wrlting, 1hal1 b4, owned by Llcensol' and shall bl da1mad Confidtntlal Information.
ER216
(224 of 239)
Case
. · R91£ Case: 19-56222,
GL_U.§KER ... _02/28/2020,
2:19-cv-01862-GW-PJW
)Y_:_ ~REE~~ER9t. ·'-ID:
Document
.., 7:2_9-~~. 11613681,
1-1 Filed
.1..: ?~P~_i_512 DktEntry:
03/13/19 9-2,
5587 PagePage 192
51 of 54of 2079~8_7J
3.19.5Jg
Page #3 3
ID #:57
·,
l ,. ;
HBO ,hull nQtr without Lloon.eor's prior written conaent in eoah lnata.nce,
publish, dtractly or lndiroc;tfy, or c;ausc or imh,rce the publlcatlon of, any Confldenttal
Information. Including. witliout Umitation, glva any Interviews, wrlta or prepare or
assist in the preparation of any books, artJctes, programs or tny other oral or wrltton
communtoadons oonmlrning Performer or any corpurations or entitles doing business
with o·r In any wav relat~d to Performer and/or any of hia or their acttvltles. HBO
understands and acknowledgas that If HBO hU any question as to whether a
particular place qf lnformatlon Is canfidentlalt HBO la obUoutod to obtafn Uoensor'a ··
written approval prior to dtactosing any such inform1.dion. HBO shalt not make any
drsparaglng remarks oonaemlng Performer or any of hbs repru,entatlves, agan~ or
business practices or do any act that may harm or disparaga or cauae to lower ln
eoteem tho ropotatlon or publlc hnoge of Performer or any peraon.. firm or corporation
related to or doing business with Performer.
HBO .-cknowltd9" and agrees that HBO does not have, nor shaH HBO at any
time claim, any Interest whatsoever ·In the name "'Mictu:1el Jackson"' or In any m•me
similar thereto or In anv goodwiU associated therowlth.· Further, any end all
Oonfic;i<mthll lnforrna~on, ...•!'~~dif}9, with~.ut llml~qn,, any &f\d · al! plcnures. .
photographs, tapaa~ -mustc..-recordlngs, re:cords. documents or other Information
relating to any entertalnma.rrt servlceaf or other services performed by Performer or by
any other fttll'I or cotpora'tion dolng business with or in any way relat.ftd to Performer,
whether prepared by· HBO or o1herwi$e coming into HBO's possession or conttol, ahall
ba and remain Llconaor'a and/or Performur'u sole and excJuslvo property, fret of any
claim or lnt$r&&t of •ny . thlrd party, · and sllall not be removed, rapr.oducad,.
summarized. copied, excerpted. or utilized In •nvmanner whataoaver witho\Jt
Licensor's prior written consent In each lnstanc•. HBO herebv Irrevocably aod
perpetually assigns to Licensor and/or Psrform~r all rights. dtle and interest of every
kind or nature,. bath tangible and Intangible, In or atising out of ,uoh Confidential
Information or other materlal whlc:h le created by HSO· (inGluding,, without limitation,
any photographs, videos and/or recordings of Performer) to the ·extant that Llcanaor
and/or P$tformer do not atraa<iy own auoh rights. HBO agraaa to lmtnedlately return
all suoh Confidential lnformu1ion to licensor immediately on discovery of possession
thereof. or following request 'therefor by Llcansor~
HBO acknowledges that a breaQh of the provisions of these confidentiality

provisions ..,,.111 cause Ucansor and/or Performer irraparabla harm for whieh there ls no
adequate remedy at law, and therefore, in addition to any and all other rights or
temadie1 available to Ucensor andfor Performer r Licensor ·and/or Performer shall be
antltled to Injunctive r,Hef end ~U ottter remedies provided In auoh event by law or
equity~ Such temedie$ sh(lfl include. without Um1tatlon, the right. to prevent
diasemin$tion of ~ny Confidential lnfotmatlon before such Confidential Information Is
published. In the avant of eny unauthorb:atl publfcatlon of Confldontltl Information.
Lleensor and/Gt Patfotmqr shall autornatlc;ailly own tho <:opyrlght thQreto;
" ,.
ER217
(225 of 239)
Case: 19-56222, 02/28/2020,
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03/13/19 9-2,
-+ Page
Page 193
52 of of Page
207 IDi#34
543.19.51?9~8_7 #:58
:, ,. .
• c;"I '
-
HBO agrees to Indemnify an_d hold Licensor. Performer sand any of iu and his
corporations or other antitie:s harmlefa from Qnd against •nv cleimo, losees, liabilitiae,
dc.rm•si•s and expensea (including, without limitation. attomev.s' fees and related
~qs~') incurred by the f~rogotng pertt(ts a, a result Of HBO's breach, or the breach of
~BO's agants, arnployeea or representatives. of anv covenants .. reprosuntatJons or
warrantfcus contained. heratn.
In the avent that either party to this agroemant brings an a~tfon to .enforce the ..
terms of th9ae aonfldtmthtlity provisions or to dtclare rfghta with raspect to such
provlaiona, the prevailing party in such actfon sheU be ontltled to an award of coata
of litigation, Including attorney•' faaa and refated ccists, to bt paid by tho losfng p&rfy
In such amount as .may be determfne4 by the court having Jurlsdlctlon In such ·action~
..
. -.·
... ..
__,.,..,.,-_--,-~.....:.-~~
** TOTAL PAGE.034 **
ER218
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Case: 19-56222, 02/28/2020,
Case 2:19-cv-01862-GW-PJW ID: 11613681,
03/13/19 9-2,
PagePage 194
53 of 54of Page
207 ID #:59
EXHIBIT C
ER219
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Case: 19-56222, 02/28/2020, ID: 11613681,
1-1 Filed DktEntry:
03/13/19 9-2, Page 19554of Page
207 ID #:60
Case 2:19-cv-01862-GW-PJW Document 0\052044 Page 54 of
THE COMPLETE MERGER FILING IS UNDER
,_ CORP.ORATE NUMBER l211 5ti8 FILED /Jlt
in the office of the Secretary of State
Agreement of Merger of the State of California
' ~ .
"
Thi s ,-,.greernent 01'Merger 1s
. llntereo' into
. .neLwr.en 0 pb.mum
. 1~ ro d· uc.:llons,
. a Ca 1·f · corpornt10n
I ornrn 2 9 2010
(herein "Surviving Corporation") and il'TC Touring Corp.~ .:i. Californta corporation (herein "Merging
Corporation).
2. The outstanding shares of Merging Corporation sh~ b~ canc=.led \·, ithout consideration.
1
3. The outstand.ing shares of Sun:ivi..r.'1g Corpor.:ition shall remain outstanding and il!'e not
affected by the merger.

<l. Merging Corporation shall from time L·o time, as and whe::1 requested by SLLrviving
Corporation, execute and deliver-all such cio~uments and instrum.ents anc take all such
action necessary or desirable to evidence or carry out th.is merger.
... Tne effect of the me:rger and the effective date of the merger are as presc:ibed by law.
Il\i WITNESS v\lHEREOF fue parties have executed th.is Agreement.
J~..n Branca, President/CEO

0
~c<_~
1/
John McCain, Secre.ta.ry /CFO
,,. I
, ·/ftZZ. I ' : - - -
'
Jo}ivivfcClair., Secretary/ CFO
·,:.,,,.
I0046SSZ2.DDCX \ 1]
ER220
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191!"00"233#$3%03%09&'"'39" ER224 (1""
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010210303 Case: 19-56222, 02/28/2020, ID:451
647ÿ9ÿ4
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191!"00"233#$3%03%09&'"'39" ER225 21""
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010210303 Case: 19-56222, 02/28/2020, ID:451
647ÿ9ÿ4
DktEntry:
11613681,
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Page 201 of 207
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191!"00"233#$3%03%09&'"'39" ER226 (1""
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010210303 Case: 19-56222, 02/28/2020, ID:451
647ÿ9ÿ4
DktEntry:
11613681,
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11
191!"00"233#$3%03%09&'"'39" ER227 (1""
(235 of 239)
010210303 Case: 19-56222, 02/28/2020, ID:451
647ÿ9ÿ4
DktEntry:
11613681,
ÿ4
ÿ9-2,
Page 203 of 207
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11
191!"00"233#$3%03%09&'"'39" ER228 %1""
(236 of 239)
010210303 Case: 19-56222, 02/28/2020, ID:451
647ÿ9ÿ4
DktEntry:
11613681,
ÿ4
ÿ9-2,
Page 204 of 207
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191!"00"233#$3%03%09&'"'39" ER229 #1""
(237 of 239)
010210303 Case: 19-56222, 02/28/2020, ID:451
647ÿ9ÿ4
DktEntry:
11613681,
ÿ4
ÿ9-2,
Page 205 of 207
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11
191!"00"233#$3%03%09&'"'39" ER230 "31""
(238 of 239)
010210303 Case: 19-56222, 02/28/2020, ID:451
647ÿ9ÿ4
DktEntry:
11613681,
ÿ4
ÿ9-2,
Page 206 of 207
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11
191!"00"233#$3%03%09&'"'39" ER231 ""1""
(239 of 239)
CERTIFICATE OF SERVICE
I hereby certify that on February 28, 2020, I filed the foregoing Appellant’s
Excerpts of Record with the Clerk of Court for the United States Court of Appeals
for the Ninth Circuit using the Court’s CM/ECF system. Participants in the case
who are registered CM/ECF users will be served by the appellate CM/ECF system.
s/ Theodore J. Boutrous, Jr.

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Case: 19-56222, 02/28/2020, ID: 11613681, DktEntry: 9-1, Page 1 of 32

IN THE UNITED STATES COURT OF APPEALS

OPTIMUM PRODUCTIONS, a California corporation, et al.,

Plaintiffs and Appellees,

HOME BOX OFFICE, a Division of Time Warner Entertainment L.P. a Delaware

HOME BOX OFFICE, INC., a Delaware corporation,

Defendant and Appellant.

On Appeal from the United States District Court

EXCERPTS OF RECORD: VOLUME I OF II

THEODORE J. BOUTROUS JR. DANIEL M. PETROCELLI

Attorneys for Defendant and Appellant Home Box Office, Inc.

DATE DOCKET NO. DESCRIPTION ER PAGE

09/20/19 55, 54 Order Granting Motion to Compel Arbitration ER1

07/15/19 40 Civil Minutes re Motion to Compel Arbitration ER19

11/07/19 Reporter’s Transcript of Proceedings – Motion ER29

05/23/19 27 Court’s Tentative Ruling re Plaintiffs’ Motion ER88

05/02/19 22 Home Box Office, Inc.’s Memorandum Of ER102

05/02/19 22-1 Declaration of Stephanie S. Abrutyn in Support ER130

DATE DOCKET NO. DESCRIPTION ER PAGE

05/02/19 22-2 Declaration of Nathaniel L. Bach in Support of ER136

03/13/19 1-1 Petition to Compel Public Arbitration ER167

N/A District Court Docket Sheet, Optimum ER221

UNITED STATES DISTRICT COURT

CIVIL MINUTES - GENERAL

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE

PLAINTIFFS' MOTION TO COMPEL ARBITRATION [18]

HOME BOX OFFICE, INC.'S MOTION TO STRIKE PLAINTIFFS'

Optimum Productions et al v. Home Box Office et al.; Case No. 2:19-cv-01862-GW-(PJWx)

UNITED STATES DISTRICT COURT

CIVIL MINUTES - GENERAL

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Optimum Productions et al v. Home Box Office et al; Case No. 2:19-cv-01862-GW-(PJWx)

(2) any written or oral statement or writing made in connection with an

(4) any other conduct in furtherance of the exercise of the constitutional

Cal. Code Civ. Proc. § 425.16(e).

dispute resolution regime in two basic respects: First, the TAA, in §

than in an arbitral forum.11

Century 21 could cut both ways, or be distinguished on a number of different facts.

UNITED STATES DISTRICT COURT

CIVIL MINUTES - GENERAL

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Optimum Productions et al v. Home Box Office et al; Case No. 2:19-cv-01862-GW-(PJWx)

disparaging remarks concerning Performer or any of his representatives, agents, or business

s/ Theodore J. Boutrous, Jr.

IN THE UNITED STATES COURT OF APPEALS

OPTIMUM PRODUCTIONS, a California corporation, et al.,

Plaintiffs and Appellees,

HOME BOX OFFICE, a Division of Time Warner Entertainment L.P. a Delaware

HOME BOX OFFICE, INC., a Delaware corporation,

Defendant and Appellant.

On Appeal from the United States District Court

EXCERPTS OF RECORD: VOLUME II OF II

THEODORE J. BOUTROUS JR. DANIEL M. PETROCELLI

Attorneys for Defendant and Appellant Home Box Office, Inc.

DATE DOCKET NO. DESCRIPTION ER PAGE

09/20/19 55, 54 Order Granting Motion to Compel Arbitration ER1

07/15/19 40 Civil Minutes re Motion to Compel Arbitration ER19

11/07/19 Reporter’s Transcript of Proceedings – Motion ER29

05/23/19 27 Court’s Tentative Ruling re Plaintiffs’ Motion ER88

05/02/19 22 Home Box Office, Inc.’s Memorandum Of ER102

05/02/19 22-1 Declaration of Stephanie S. Abrutyn in Support ER130

DATE DOCKET NO. DESCRIPTION ER PAGE