HBO wants another shot at convincing a court that the Michael Jackson Estate can't go to arbitration over its Emmy-winning sex abuse documentary Leaving Neverland. On Monday, the pay network filed paperwork for a high-stakes appeal.
The Michael Jackson Estate is attempting to enforce a non-disparagement clause in a 1992 contract — one that provided HBO with rights to air a televised concert following the release of Jackson's album Dangerous. That contract had provisions pertaining to secrecy and non-disparagement, which the estate is seizing upon to litigate Leaving Neverland, which focuses on allegations against Jackson by Wade Robson and James Safechuck. In February, a petition to compel arbitration was filed in Los Angeles Superior Court just days before HBO aired the documentary.
In response, HBO had the case removed to federal court and attacked it as a "transparent effort to bolster their publicity campaign against the documentary."
The pay cabler argues that the legal claims are premised on an old agreement that has been fully performed by the parties and thus terminated. It further contends that the Michael Jackson Estate is attempting to trample on its First Amendment rights by using a quarter-century-old, nearly forgotten contract as "a perpetual platform to police HBO's speech."
Ultimately, though, a federal court deferred to the primacy of the Federal Arbitration Act and decided that the arbitrator would have a crack at tackling the controversy. In making this decision, U.S. District Court Judge George H. Wu rejected HBO's bid to have a petition for arbitration stricken under California's anti-SLAPP statute, which provides special recourse to those hauled into court on frivolous actions targeting First Amendment activity.
HBO is now going to the Ninth Circuit Court of Appeals.
"This bogus appeal is nothing more than HBO’s latest desperate attempt to cover up the truth about its shoddy journalism," responds Bryan Freedman, an attorney for the Michael Jackson Estate. "For seven months HBO has tried and failed to avoid a public arbitration. This appeal, which is its latest Hail Mary attempt, is even more pathetic than all of its other attempts to avoid public scrutiny. If HBO truly wanted to avoid a judgment, it should have thought about that before it aided and abetted a one sided documentary without any journalistic integrity and in which the subjects have a huge motivation to lie — namely the millions of dollars for which they are suing the Estate. Our client will never stop until justice is served."
Although Freedman characterizes the appeal as a "Hail Mary," that was hardly the assessment of Wu, who during a Sept. 19 hearing stated that "a lot of these issues are so close and up in the air that I think no matter which side wins or loses, they are going to appeal."
The judge also told the parties at the hearing that "this stuff should be decided in the Circuit Court."
Although HBO hasn't spelled out the grounds for its appeal before the Ninth Circuit, the network — represented by the all-star legal team of Daniel Petrocelli and Ted Boutrous — will likely argue that California's anti-SLAPP statute isn't preempted by the Federal Arbitration Act and thus the Michael Jackson Estate can't go to arbitration unless it can demonstrate the likelihood of its victory there.
The use of SLAPP laws in federal courts is a particularly hot topic, and there's some reason to believe this case might be a candidate for the U.S. Supreme Court, particularly since it also addresses the topic of arbitrability, something that has attracted close attention by the high court justices in recent years.
If the case does eventually wind up in arbitration, it could be an odd one. The Michael Jackson Estate says it wants an "open" proceeding, which would be rare for an arbitration forum like JAMS. Additionally, it's not clear that Leaving Neverland needs to be factually inaccurate for the estate to prevail over HBO. After all, this is not a defamation suit. It's a dispute based on an agreement not to disparage Jackson. Nevertheless, the estate is eager for the opportunity to show off evidence it has collected in prior legal disputes with the Jackson accusers featured in Leaving Neverland.