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“Will the real ‘James Bond’ please stand up?”
Thus begins the decision by a Washington federal judge who on Thursday found enough puns in the extensive catalog of James Bond films to move a lawsuit against MGM and and 20th Century Fox Home Entertainment forward.
Mary Johnson is suing on behalf of herself and other completists who insist the distributors of James Bond films were deceptive in marketing a box set purporting to include “all” of the films but missing Casino Royale (1967) and Never Say Never Again (1983). Those two films weren’t MGM films for reasons recounted in our earlier story, but are owned by MGM now.
The defendants, staring at a putative class action claiming a violation of the Washington Consumer Protection Act and breaches of express and implied warranty, argued that any reasonable consumer would review the box sets’ outer packaging and then open the box sets to review their inner contents and figure out what really was included in the Bond box set.
“At this time, the Court will Live and Let Die,” writes U.S. District Court judge Ricardo Martinez, meaning he thinks some claims should live and others should be shot down by a Walther PPK.
MGM tried to convince the judge that the words “all” and “every,” enjoyed by class action lawyers everywhere, aren’t actionable and that fans of David Niven are out of luck.
“The Court finds the questions of how a reasonable person would interpret ‘all’ and ‘every’ and what qualifies as a James Bond film remain for the trier of fact to decide,” concludes the judge in Thursday’s order. “These terms are not unequivocally puffery as a matter of law. Defendants fail to adequately address Plaintiff’s argument as to the omission of Casino Royale and Never Say Never Again or the need for a disclaimer. Even if a reasonable consumer examines the box-sets’ entire packaging, they would only know which films are included. That consumer would not know whether the box-set includes ‘all’ James Bond films or which films are excluded. This could constitute a deceptive act under the WCPA. The Court finds Plaintiff has adequately pled a claim for relief under the WCPA.”
MGM took aim at the express warranty claim by arguing that consumers had “actual knowledge” of what they were getting, but without the benefit of, say, a survey of 007 fans, the judge finds the factual record incomplete. Martinez writes that at this point, the record only supports consumer knowledge of the films included, and Casino Royale and Never Say Never Again will have to be tested later.
Johnson may ultimately fail here, but Martinez writes, “From the Defendants’ perspective, this claim will have to Die Another Day.”
MGM gets more luck on the claim of breach of implied warranty of merchantability.
This one hinges on whether the box set conformed to its contract description, but MGM and Fox argued there was no contractual relationship because Johnson purchased her box set from Amazon. Her lawyer attempted to get around this by talking about the vertical chain or arguing she was a third-party beneficiary, but the judge agrees with defendants that there’s insufficient contractual privity and a lack of knowledge on MGM/Fox’s part about the identity of their purchasers.
Getting perhaps a little too corny, Martinez rules, “Plaintiff may amend her claim once if she discovers sufficient facts to establish privity; thus, this claim may Only Live Twice.”
The rest of the ruling (read here) deals with whether parent companies properly belong in the suit (not at the moment) and whether the case is ripe for class action (a decision deferred to a later point).
Fortunately for plaintiff attorney Alexander Kleinberg at Eisenhower Carlson, this judge is no Dr. No.
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