Do Sean Connery, George Lazenby, Roger Moore, Timothy Dalton, Pierce Brosnan and Daniel Craig constitute all of the onscreen personifications of charismatic super spy James Bond, or must one include David Niven?
That question is before a Washington federal judge, as he evaluates whether a class action over a 50th anniversary DVD box set should be allowed to move forward.
Mary Johnson sued MGM and 20th Century Fox Home Entertainment in April, claiming that she was promised all the Bond films when she bought the set but it was missing two of them: Casino Royale (1967) and Never Say Never Again (1983). Bond connoisseurs may argue that the two films are not actually true 007 flicks. The original Casino Royale is a Columbia Pictures spoof starring Niven, Peter Sellers and Woody Allen that isn't associated with Bond producer Eon Productions or MGM. Meanwhile, Never Say Never Again was made by screenwriter Kevin McClory who worked with iconic Bond author Ian Fleming to create the Thunderball story and was given the green light by a London court to make his own film after claiming co-authorship of the characters and elements.
That debate aside, in a motion to dismiss MGM argued that “no reasonable purchaser would expect that a box set would contain films that are not included on the list of titles clearly printed on its packaging."
Johnson's attorney Alexander Kleinberg says that argument is factually and legally defective, relying on the assumption that the customer would be able to "decipher the list of films printed in barely readable print" on the back of the box. "More importantly, it impermissibly imposes on that reasonable purchaser the obligation to be a James Bond expert who would know every single James Bond film ever produced, marketed, and sold," writes Kleinberg.
He also argues that MGM is twisting the meanings of the wording it used to describe the set. "It presumes that the reasonable purchaser will interpret the all-inclusive language that Defendants chose to use to describe the Sets — 'All of the Bond films gathered for the first time in this one-of-a-kind box set — every gorgeous girl, nefarious villain and charismatic star from Sean Connery, the legendary actor who started it all' — to mean that 'all' means some and that 'every' means only certain.
Johnson says were it not for her belief that those two films would be included in the Bond 50 set she wouldn't have paid $106.44 to order it on Amazon.com. "To prove that a practice is deceptive, neither intent to deceive nor actual deception is required," writes Kleinberg. "The question is whether the conduct has the capacity to deceive a substantial portion of the public."
Kleinberg also argues that it would be premature for the court to determine at this stage whether MGM Holdings or 21st Century Fox should be dismissed. The parent companies are named as defendants, he argues, because Johnson claims all four of the corporations are responsible for marketing and selling the sets and each profits from them.
If U.S. District Judge Ricardo Martinez denies MGM's motion to dismiss, the studio's attorney John Devlin has alternatively asked him to strike the nationwide class allegations, arguing that the class definition, which essentially includes anyone who bought the box set, is "impermissibly overbroad." Kleinberg disagrees, adding that would chill class certification in false advertising cases.
A hearing on the motion to dismiss, the full reply to which is posted below, is currently set for May 26.