October 11, 2013 12:01pm PT by Eriq Gardner
'Rebecca' Publicist Can't Escape $300 Million Lawsuit
What are entertainment publicists good for?
The question isn't meant to be snarky. Rather, the answer informs an ongoing dispute over the ill-fated Broadway production of Rebecca, which was meant to open in September of 2012, but didn't because of a $4.5 million shortfall in its $12 million budget, the actions of former stockbroker Mark Hotton, and just maybe, e-mails sent by publicist Marc Thibodeau.
Hotton has pled guilty to defrauding producers including Ben Sprecher by telling them that he had overseas investors waiting in the wings and collecting fees and commissions before the producers discovered those investors were phantoms.
Then, there's Thibodeau, who is facing a civil lawsuit for his own role. According to the allegations, he warned off an angel investor who had stepped up at the last moment to save Rebecca. Thibodeau allegedly pretended to be "Bethany Walsh" and "Sarah Finkelstein" in order to direct the investor to read unflattering news articles and advised the investor, "the walls are about to cave in on Mr Sprecher and the Rebecca Broadway production."
Thibodeau's attorney has called the publicist "an innocent whistle-blower" but the producers see things differently. He was charged with breaching a contract, committing defamation and violating his fiduciary duties.
Well, strike that last part.
The defendant argued that to support a claim for breach of fiduciary duty, the producers needed to allege a legal duty separate and apart from any contractual duty, and that as an arms-length contractor, Thibodeau had none. The only way that the producers could overcome this, according to the defendant, was if Thibodeau had superior expertise about some subject and misled the producers by false representations concerning that subject.
Thibodeau wasn't a "doctor, lawyer, technical specialist, experienced tradesman or any other professional that might possess 'superior expertise' about any body of knowledge," said a motion to dismiss.
In a hearing earlier this week, New York Judge Jeffrey Oing agreed, throwing out the claim. He said that press agents in New York would "gasp" if he made the determination that publicists owe clients fiduciary duties.
On the other hand, the judge kept the breach of contract and defamation claims. Each carries claimed damages of at least $100 million. Judge Oing denied the motion to dismiss those claims over Thibodeau's argument that the plaintiff had failed to identify the provision that the publicist allegedly breached and over an argument that the e-mail warnings were non-actionable "opinion or hyperbole."
And while the fiduciary duty is out the window (barring an appeal), Thibodeau is now facing an additional $100 million charge. According to an amended complaint filed on Friday, Thibodeau allegedly committed tortious interference by getting in the way of the producers and the angel investor who is said to have signed documentation committing to an investment in Rebecca.
Still plenty of things for press agents to worry about.