On Friday, a California federal judge rejected a key portion of an ongoing lawsuit brought by Stephanie Counts and Shari Gold that alleges that the Fox series New Girl was derived from their own proposals for a show about a woman who moves in with three single men.
The plaintiffs have brought copyright claims, which have survived a motion to dismiss, and they’ve also asserted that defendants including Fox, William Morris Endeavor, showrunner Liz Meriwether and executive producer Peter Chernin breached an implied contract by not paying them for material that was submitted.
The problem with the latter implied contract claim is that the statute of limitations is two years. New Girl premiered on Fox in September 2011. Counts and Gold didn’t file a lawsuit until January 2014.
To explain why their claims were not timely filed, Counts and Gold attempted to make an argument for “equitable tolling,” meaning the clock for filing suit wouldn’t immediately begin upon the show’s premiere because they hadn’t yet discovered their injury.
In support, the two said they had hired an attorney to pursue claims in 2011 and had gotten a $10,000 offer from Fox to settle the matter in 2012. Counts and Gold rejected the offer, but there was something a little off about the situation; their law firm at the time also represented New Girl executive producer and director Jacob Kasdan. Their lawyers advised them about the conflict and suggested that if they wished to pursue claims against Kasdan, they’d need to discuss further involvement in the dispute.
In their lawsuit, brought by another attorney, Counts and Gold attempted to explain why this matters.
According to the complaint, they “were unaware of just how tightly aligned Defendants and their then-counsel were in the entertainment industry: The firm representing Plaintiffs also absurdly represented the director and executive producer of New Girl, the very show Plaintiffs claimed took their ideas and artistic expression. The extent to which this relationship had truly affected then-counsel’s representation of Plaintiffs only became truly evident to Plaintiffs in February 2012.”
In today’s opinion, U.S. District Judge Stephen Wilson is hardly impressed with the argument.
He writes that the plaintiffs admitted being informed about the potential conflict and “apparently consented.” He adds that they might have found the $10,000 settlement offer insulting, but he doesn’t believe the prior lawyer’s “failure to elicit a larger sum indicates that they were ‘incapacitated’ by their conflict of interest.”
Additionally, Wilson concludes the plaintiffs have “plead no facts indicating that prior counsel improperly refused to file suit or prevented Plaintiffs from filing suit” and have failed “to show any compelling reason for the alleged year-long delay between dismissing their first lawyers and hiring their current representation.”
The claim is dismissed with prejudice, meaning Counts and Gold won’t have the opportunity to amend and try again. They’ve still got copyright claims in play, but not one for conversion (with a three year statute of limitations) because separately, the judge also finds it preempted by copyright law.
Fox is represented by Jonathan Zavin and David Grossman at Loeb & Loeb and WME is represented by Michael Kump and Greg Korn at Kinsella Weitzman.