The task of whistle-blowing is not one that's ordinarily associated with the job of being an entertainment industry publicist. But in the strange saga of what went wrong with a $12 million Broadway musical adaptation of Rebecca, based on the 1938 Daphne du Maurier book, that's the defensive posture now being taken by Marc Thibodeau, the show's former publicist.
In an amended complaint filed in New York Superior Court, Thibodeau is being accused of breaching contract and committing defamation by warning an investor against attempting to salvage the show at the last second.
The stage production of Rebecca, which has been adapted many times over the years including by Alfred Hitchcock in an Oscar-winning film, was to have opened in September. But the $12 million production had a $4.5 million shortfall and things unraveled when producers led by Broadway veteran Ben Sprecher turned to Mark Hotton, a former stockbroker, who purportedly represented that he had overseas investors waiting in the wings.
Last October, federal authorities arrested Hotton and charged him with perpetrating a "stranger than fiction" fraud. According to prosecutors, Hotton created subterfuge to dupe the producers into giving him some $60,000 in fees and commissions as well as pay for an $18,000 safari trip. Hotton also is alleged to have created phony e-mail addresses and fabricated conversations with phantom investors as well as pretending to secure a $1.1 million loan -- enough to allow Broadway producers to have confidence in spending $6 million in money from their real investors, which led to debt and the need to shut down the Rebecca production in September when Hotton told producers that one of his imaginary investors had died of malaria.
Hotton faces a maximum of 20 years in prison if he is convicted of wire fraud.
Now, the saga has taken a strange new turn with producers amending their complaint Tuesday in a separate civil lawsuit against Hotton to include Thibodeau.
According to the complaint, against "long odds," the producers miraculously succeeded in finding a new, and legitimate, investor (the "Angel Investor") "just in time to save the Musical."
The lawsuit goes to state that "the Angel Investor, who desired strongly to maintain its anonymity, then received three disturbing and malicious e-mails from Defendant Marc Thibodeau. Those emails spread false rumors about the Musical designed to sow alarm. Unfortunately, they accomplished that objective, ultimately causing the Angel Investor not to release his signed subscription documents and co-producer agreement to the Partnership and to withdraw."
Thibodeau is accused of using pseudonyms in his warnings to the investor. In one e-mail, he allegedly took the name of "Bethany Walsh" and advised the investor to read an article in the New York Times "as there is a serious possibility of fraud of grave concern." In another e-mail, he allegedly took the name of "Sarah Finkelstein" to warn, among other things, that "the walls are about to cave in on Mr Sprecher and the Rebecca Broadway production."
Thibodeau's attorney Jeffrey Lichtman gave his response in an interview with the Times, calling his publicist client “an innocent whistle-blower."
Does claiming to be a whistle-blower provide any immunity to the claims?
If Lichtman (who was unavailable for comment) merely meant that his client was telling the truth, that would be a defense against defamation.
But legal experts say it wouldn't provide any saving grace against the breach of contract claim.
Richard Frey at Venable says that the whistle-blower status is usually understood to apply to situations when an individual goes to human resources or a federal agency and points out things going wrong or a potential fraud. "If whistle-blower thinks he can go to press or an outsider and blow the horn on a fraud, no, they don't have free reign to do that," he says.
Then, there's the issue of whether Thibodeau is actually a whistle-blower. "If you hide (behind aliases), you're not blowing the whistle," adds Frey, saying what might be more important is what Thibodeau's contract says about his duties. (The amended complaint was silent on this.)
Bryan Sullivan at Early Sullivan adds: "If the publicist’s statements were false, then he cannot be a whistle-blower. The term whistle-blower is often thrown around as a publicity stunt because it gives the impression that the person’s intentions were good and for the public interest — in this case, allegedly to warn someone that they were being defrauded. However, its legal application is not as broad as people think it is."
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