October 31, 2012 6:22pm PT by Eriq Gardner
Agent of 'Hawaii Five-O' Creator Sues CBS to Invalidate Reboot Deal (Exclusive)
George Litto, the talent agent who represented the original Hawaii Five-O creator Leonard Freeman, is still pursuing money from CBS' hit reboot. In May, Litto sued Freeman's heirs for making a 2010 deal with CBS that cut the ex-showbiz agent out of the success of the franchise.
Now, the 81-year-old Litto has a new plan for how he's going to collect what he believes is owed. In an amended complaint, he's added CBS as a defendant and wants the court to declare the 2010 agreement to be invalid. According to Litto's new attorney, Henry Gradstein, the development is a "game-changer" that could potentially put CBS on the hook for tens of millions of dollars.
CBS, of course, isn't letting this go unchallenged. Earlier this month, the network told a judge that the move to drag CBS into the fight was designed to "gain leverage against the Trusts" and asked that it be rejected.
The fight over a police procedural show that has been called a "cash cow" is heating up.
Litto's boutique agency represented Freeman in 1966 when the writer-producer made his first deal with CBS for the original Hawaii Five-O, which lasted 12 years on the network. The deal entitled Freeman to 50 percent of the profits from the show. Litto got a 10 percent commission.
Freeman passed away in 1974 as the result of heart bypass surgery.
After his death, the showrunner's widow Rose Freeman concluded that the deal needed to be modified. According to Litto's lawsuit, a 1974 amendment gave CBS the right to produce the show in the future and shifted responsibility of production from Freeman's company to CBS. Litto also says that because Freeman's company could no longer strictly control and monitor costs, CBS wouldn't be allowed to recoup production overages.
As the lawsuit states, "In effect, all revenue from exploitation of the Series in media and channels other than on CBS would be accounted for on a gross basis, without deduction or reductions for any costs."
The original Hawaii Five-O went off the air in 1980.
Then, in the 1990s, according to Litto, CBS decided it wanted to make a movie version of the series. The parties fought in federal court and in arbitration over this. As the fight occurred, Litto and Rose Freeman allegedly agreed in 1996 to "work together and jointly exploit and equally share revenues" from future productions of Hawaii Five-O. Then in 1998, an arbitrator ruled against CBS and held that Leonard's heirs were entitled to separation of rights and control of reserved rights in the Hawaii Five-O property, including the possibility of a motion picture, stage play and merchandising.
There doesn't seem to be much question, though, that CBS still had a right to make a TV show based on the original, but would it do so under an old agreement that required them to share a good deal of the profits?
Litto suggests that a new 2010 amendment took care of that problem. According to updated claims, "The Trusts, aided and abetted by CBS, nevertheless signed and entered into an agreement with CBS to materially modify the 1974 Amendment in various respects, including, without limitation, changing material financial terms pertaining to the new television productions, significantly reducing the percentage back-end participation provided for in the 1974 Amendment and eliminating the extremely valuable no deficit/no production overage computation applicable to such a back-end participation in new episodes of Hawaii Five-O."
But Litto says the Trusts weren't authorized to make such a deal -- that if any deal was to be made, it had to come from the joint venture that Litto and Rose Freeman established. Litto further alleges that CBS was fully aware of this, and couldn't "reasonably rely on the Trusts' warranty and representation" concerning the heirs' authority to make an amendment without Litto's participation.
So now Litto is seeking to void the 2010 amendment, which according to Gradstein, would mean that the 1974 amendment is still operative and require CBS to pay over much greater profits from the series.
In a demurrer filed earlier in the month, CBS is objecting.
"Plaintiff does not plead the existence of any actual controversy between it and CBS based on any cognizable legal theory," says the network's legal papers. "Plaintiff does not contend that CBS has failed to pay any money owed under the 2010 Amendment or otherwise owed to Plaintiff. Plaintiff similarly does not plead any legal theory pursuant to which it may challenge the 2010 Amendment between CBS and the Trusts."
Another amended complaint is coming soon with more details about the 2010 deal as Litto attempts to revive the possibility of punitive damages.
A hearing on CBS' demurrer is scheduled for January, but Gradstein says he will be asking for expedited consideration due to his client's advanced age.
CBS tells The Hollywood Reporter, "It doesn’t take McGarrett’s investigative skills to conclude that Litto’s claim against CBS has no merit, and we will vigorously defend the case.”
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