July 12, 2013 3:01pm PT by Eriq Gardner
Appeals Court: Morgan Creek Owes $5.7 Million Over Robert De Niro Film
A California appeals court Friday ruled that Morgan Creek can't escape money that's due to a Japanese distributor for the 2006 film The Good Shepherd, directed by Robert De Niro and starring Matt Damon, Angelina Jolie and Alec Baldwin.
As The Hollywood Reporter detailed in September, Morgan Creek was facing a potential restraining order and a frozen bank account after refusing to pay up after an arbitrator's decision in favor of Japanese distributor Toho-Towa Co. Morgan Creek had to deliver $5.7 million out of contractual obligations that required the producer to make up any shortfall in the film's box-office performance from its cost to distribute. The Good Shepherd earned only $3.3 million in Japan, which led Toho-Towa to demand repayment of 434 million yen.
As Toho-Towa pursued the money, looking to serve notice on third parties that any money credited to Morgan Creek should be diverted to Toho-Towa, an attorney for Morgan Creek told THR at the time that the company's ex-attorneys had screwed up by not making a bigger issue of the fact that Toho-Towa's agreement was with Morgan Creek International rather than Morgan Creek Productions.
That was challenged at the appellate stage, and the result is not in Morgan Creek's favor.
California appeals judge Vincent O'Neill had to analyze whether a trial judge was properly authorized to add Morgan Creek Productions to a judgment against Morgan Creek International B.V. and Morgan Creek International Ltd.
The appellant argued that there was "no alter ego liability" on MCP's part.
O'Neill agrees the the lower court made no error.
"There is substantial evidence for the trial court's finding that MCP, B.V. and Ltd. were part of a single business enterprise," he writes.
Among the cited evidence was that the three entities were owned by the same person, James G. Robinson, that they all exploited the same assets and that work was performed by employees of MCP.
The judge also says in the ruling:
"There is also substantial evidence for the court's conclusion that it would be inequitable to uphold B.V.'s separate existence under the circumstances of this case. Toho-Towa negotiated the distribution rights to the Picture with MCP. When that negotiation was concluded, MCP told Toho-Towa that the contract would actually be with B.V., not MCP, because this was how MCP conducted its distribution business. MCP assured Toho-Towa that there would be sufficient assets to pay Toho-Towa any monies due under the agreement. Toho-Towa was not told and did not know that B.V.'s financial operations were structured by MCP in such a way that it never received any money from its licensees, and thus would not have funds to meet its payment obligations under the agreement. In sum, it would be inequitable to permit MCP, the alter ego of B.V., to shift liability to B.V. after ensuring that B.V. would have no funds to pay its debts."
Finally, the judge declines to overturn the ruling based upon the former attorney's alleged failings.
The impact of the ruling to Morgan Creek could be large. Besides fighting with this Japanese distributor over money owed, the company also has been battling Kevin Costner over profits from the 1991 blockbuster film Robin Hood: Prince of Thieves. In that case, Morgan Creek also has attempted to shift liability to its international division now in bankruptcy.