Time may be relative, but from Disney’s vantage point, Bill Nye the Science Guy waited too long to file a $37 million lawsuit over profits from his 1990s television show.
Nye is claiming fraud. He survived the initial foray into the galaxy of Hollywood accounting, and blessed by the ability to conduct further fact-finding, he and Disney are now at the summary judgment phase, a point where the Los Angeles Superior Court judge will determine whether there’s any observable realm of fact to test at trial.
Disney insists Nye’s legal hypothesis fails.
In a motion for summary adjudication, Disney’s lawyers at Mitchell Silberberg argue that claims arising from profit participation statements issued before 2012 are barred by an incontestability provision setting the countdown clock at 24 months. Given that Nye admits having concerns about being cheated as early as the 1990s and didn’t file suit until August 2017, and given how witnesses died and memories faded in the interim, Disney contends he simply waited too long to take a trip to the legal laboratory.
“This is the very reason statutes of limitations exist,” states Disney’s memorandum.
According to court documents, a Disney subsidiary agreed to pay Nye 50 percent of net profits on Bill Nye the Science Guy, but of course, the definition of net profits included caveats related to fees, expenses and other costs. Nye also got a per-episode fee of about $12,500, reimbursement for his developmental costs, a $50,000 royalty if his likeness was used at a theme park and, perhaps most important and somewhat unusual, the rights to the Science Guy character reverted to Nye after his old children’s show ended.
Nye has certainly been successful since his PBS show ended its run back in 1998. (See, for example, Netflix’s Bill Nye Saves the World.) But in 2014, he formally requested an audit for his old show and then sued over the results. Now, Disney tells the judge that most of the claims including breach of contract, fraudulent concealment, misrepresentation and breach of fiduciary duty are time-barred. (Read the summary adjudication memo.)
Disney has been in this position before. For example, the studio raised similar arguments of timeliness in a profits case over Home Improvement, only to have that dispute revived by an appellate court with word that an incontestability clause in a contract could be overcome by allegations of misconduct including purposeful delayed audits preventing timely objection. (The Home Improvement remains pending and is scheduled to go to jury sometime in the 21st century.)
Here, Disney argues that Nye cannot meet his burden to show a tolling of claims via delayed discovery. When Nye gets a chance to oppose summary adjudication, he’ll likely detail any efforts on Disney’s part to frustrate the search for the truth. Discovery in this case has been broad. Even Disney general counsel Alan Braverman has faced questions about his involvement in the matter.
Disney separately brings a second motion related to Nye’s fiduciary duty claims, which, as highlighted in our previous story, is notable given the famous profits case over Who Framed Roger Rabbit. While the judge in that old case determined that contingent entitlement to future compensation does not alone give rise to such a fiduciary relationship, Nye has nevertheless been able to proceed on the allegation of having a real joint relationship.
Now at the stage where facts are sorted, Disney still insists that it owes no fiduciary duty to Nye. The studio points to a disclaimer in the agreement itself, and as to the question of whether contractual language disavowing a partnership is procedurally or substantively unconscionable, Disney points to how Nye had a sophisticated talent agent working on his behalf as was also surrounded by those with significant experience in the television industry.
“Nothing supports a finding of ‘oppression,'” writes Disney’s lawyers, later adding that the disclaimer “is not one-sided.”
Disney also adds that the fact that both parties had an interest in the success of the series isn’t determinative of such a relationship since nothing in Nye’s contract provided he’d be responsible for losses. (See the full second brief here.)
A summary adjudication hearing is scheduled for Aug. 7. If a trial does proceed, it is currently set for Sept. 16.