January 08, 2013 1:36pm PT by Eriq Gardner
CBS Wins Lawsuit Over 'Hawaii Five-O' Reboot (Exclusive)
CBS has prevailed in a lawsuit brought by George Litto, the talent agent who represented the original Hawaii Five-O creator Leonard Freeman.
Litto claimed that he was cut out from participating in the successful new version of the show, and in October, he amended his allegations in an effort to have the 2010 agreement that paved the way for the new Five-O be ruled invalid.
If successful, Litto might have been able to extract tens of millions of dollars in damages from CBS and also make it more difficult for the network to reap profits on the hit series going forward.
But a judge has sustained CBS' demurrer to the lawsuit without leave to amend, meaning that barring any reconsideration or appeal, the network has escaped any liability.
CBS tells The Hollywood Reporter, “We appreciate the court’s ruling and are pleased that it brings an appropriate conclusion to our involvement in this lawsuit.”
The original incarnation of Hawaii Five-O ran from 1968-80 on CBS.
Litto's boutique agency represented Freeman when the writer-producer made his first deal with CBS. Freeman died in 1974, necessitating a new deal with the showrunner's widow Rose Freeman. That year, an amendment to the contract gave CBS the right to produce the show in the future and shifted responsibility of production from Freeman's company to CBS. The Freeman estate got a huge backend profit participation, and CBS wasn't allowed to recoup production overages.
In short, though Freeman had died, his heirs were entitled to big money from the show.
Two decades later, in the 1990s, CBS decided it wanted to make a movie version of the series, and the parties fought in federal court and in arbitration over who reserved rights for this possibility.
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. In 1998, an arbitrator decided that Freeman's heirs held on to motion picture, stage play and merchandising.
But CBS still retained the possibility of rebooting the TV series, which it eventually did, but only after making a deal in 2010 with Freeman's heirs on more friendly financial terms.
In May, George Litto Productions sued Freeman's heirs for cutting the ex-agent out of the dealmaking and arriving at an arrangement that allegedly reduced the percentage backend participation and eliminated the valuable no deficit/no production overage accounting stipulations. Litto alleged the backstabbing had cost him tens of millions of dollars.
Then, this past autumn, in what Litto's attorney Henry Gradstein called at the time a "game-changer," CBS was added as a defendant on the allegation that it was aware of the 1996 operating agreement between Litto and Freeman and nonetheless had the trusts make a deal they weren't authorized to make unilaterally.
CBS brought forward all sorts of fancy arguments to defend the claims, including that what was transferred to the Litto/Freeman joint company only involved the rights to revenue, not the right to control exploitation of Hawaii Five-O.
But ultimately, the judge dismissed CBS from the case for a much simpler reason: that Litto had waited too long to bring the claims.
"Although plaintiff has sufficiently pled that the company rather than the trusts possessed the right to exploit the underlying rights to Hawaii Five-O … it would be inequitable to rescind the 2010 amendment," wrote Los Angeles Superior Court Judge Gregory Alarcon in his tentative ruling, which has now been adopted as official.
The judge added that a delay in bringing the claims would be prejudicial for CBS.
"Plaintiff instituted this current action over two years after the 2010 amendment was signed," he wrote. "CBS has already produced the television series and to restore the consideration would essentially require CBS to 'un-make' or, in the alternative, pull what has become a very popular television series."
Reached for comment, Gradstein says, "Obviously, we respectfully disagree with the Court’s current ruling and are considering our procedural options."
The case continues without CBS' participation as a lawsuit from Litto against Freedman's heirs.
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