5:35pm PT by Austin Siegemund-Broka
'Survivor' Consultant Moves Closer to Trial Claiming Millions in Unpaid Fees
Following a court hearing Thursday, a fight over millions of dollars in revenue from Survivor is closer to tribal council — in other words, trial.
Los Angeles Superior Court judge Frederick Shaller ruled on a pair of motions in favor of Layne Britton, a TV executive who sued Survivor mastermind Mark Burnett's former partner Conrad Riggs in 2012. The judge denied Riggs' summary judgment motion and granted Britton’s competing motion, two of the final proceedings before the trial scheduled for December over revenue from the series.
Britton claims he formed a contract with Riggs to provide consulting services shortly before Survivor's first season, when the show became an immediate hit on CBS. (It recently premiered season 31). In return, says Britton, he would pocket 35 percent of the revenue Riggs received from Burnett.
Britton says his work for Riggs included helping develop the show's unique revenue structure, in which Burnett would earn 50 percent of the competition series' ad revenues, and negotiating license fees with CBS Corp CEO Leslie Moonves.
Riggs and Burnett later ended their relationship, with Riggs suing his former partner for $70 million in Survivor revenue (they settled). In the meantime, Riggs stopped paying Britton per the contract, says Britton, instead paying him lesser "interim" payments and eventually nothing. He sued Riggs for more than $14 million.
Riggs countersued, claiming Britton was providing him legal advice under a "contingency fee agreement." Under such an agreement, Riggs says, he could end the contract at will. He further claims the $1.877 million he paid Britton over the six years following their agreement is excessive.
The case has undergone proceedings no less complicated than a season of Survivor. Britton twice has hired new attorneys (Quinn Emanuel’s Jeff McFarland now reps him) and amended his complaint to plead new causes of action. Other causes were struck in March.
Riggs contended Britton worked for him in the role of an attorney. He says Britton, who is a licensed lawyer in California, "rendered legal advice and engaged in the practice of law," including interpreting Burnett's contract and providing "extensive legal analysis" in counseling the producers on their negotiations with CBS.
Britton responded that the contract is by title a "consulting agreement" and added, "notably, the phrases 'legal services,' 'legal advice' and 'legal representation' do not appear in the agreement." The contract labels him an "independent contractor and not an agent, partner, joint venture partner, common law employee or representative” of Riggs, and he says Riggs once told him to tell other producers he was "not [Riggs and Burnett’s] attorney."
"Mr. Britton has not practiced a single day since he left UCLA law school. His dad told him, you could always fall back on [your legal education]. Out of respect for his father who's since passed, he’s maintained his Bar status," said McFarland in the hearing Thursday.
It doesn't matter, argued Riggs. If Britton provided legal services, he was Riggs' lawyer, even if he (or the contract) didn't consider himself to be. He contends he could void the contract under a California law about "contingency fee" agreements.
He separately held Britton's claims were barred by statutes of limitations. He should have brought his lawsuit when (or even years after) he stopped getting "interim payments" in 2006, said Riggs.
McFarland responded the claims are barred because Britton, Riggs' personal friend, could not be expected to have known Riggs was planning to reinterpret the contract. "For the defendants to escape the estoppel law, their argument must be, 'Gee, [Britton] must have known he wasn't telling the truth,' " he said Thursday. "That turns the argument on its head and is exactly the situation the estoppel law is trying to prevent."
The judge ruled in Britton's favor, with some caveats.
He denied the motion on the grounds Britton's claims were outside the statutes of limitation, though he did not comment that Riggs should definitely be estopped from arguing the defense. Rather, he found the jury should decide the issue.
He also approved Britton's argument he should not be considered Riggs' attorney. "It is evident to the court that Plaintiff was not a practicing lawyer in spite of having passed the California Bar and having been sworn in as an active member of the bar," he stated, adding, "Negotiating is not the practice of law."
However, Riggs' lawyer, Browne George Ross' Eric George, requested an appeal on whether performing the work of an attorney means a party in a contract should be considered an attorney even if the contract does not concern legal work. He wants the appellate court to rule on what he considers the "controlling question" of the case before the trial.
"I don’t think there's any question other judges might perceive this differently," said George in court. "I'm not the one wearing the black robe, I don't deserve the black robe, but what I am saying is, this is a very serious question that is going to be decided sometime."
Judge Shaller agreed both sides could submit arguments by Monday on the appeal. In the meantime, the trial will remain scheduled for December 2, but the appeal could change the timing.
McFarland declined to comment after the hearing.
Commented George to The Hollywood Reporter, "Another example of the American experience. Become successful, get sued. More than a decade after the parties did some work together, Mr. Britton became financially insolvent and brought a meritless and time-barred lawsuit."