Kevin Costner (WME, One Talent, Jeffer Mangels) is in talks to star in "McFarland," a track-and-field drama that Niki Caro ("Whale Rider") is directing for Disney.
Kevin Costner‘s attorneys are going to need to work a little harder in a lawsuit that alleges the actor was robbed of profits from the 1991 hit Robin Hood: Prince of Thieves.
A Los Angeles Superior Court judge Friday allowed his breach-of-contract claim against Morgan Creek Productions to move forward but dismissed claims that the studio breached an implied covenant of good faith and fair dealing and committed fraud against him. However, the judge is allowing Costner to revive the claims by amending his complaint.
Costner sued in July over a film that made $390 million in worldwide box office, saying that no participation statements were given to him in 2010 and 2011 and late statements were rendered from 2004 to 2009.
Among other things, Costner’s lawsuit also accuses Morgan Creek of hiding money from him by assigning foreign distribution rights on Robin Hood from Morgan Creek to a foreign company owned by Morgan Creek CEO James Robinson. The foreign rights on Robin Hood allegedly were sold as a package, and the lawsuit suggests that Morgan Creek might have participated in a practice that’s known in Hollywood as “straight-lining,” or allocating the same share of a blanket license fee to every movie in a package, regardless of performance.
On Friday, a judge ruled on the defendant’s demurrer.
According to a tentative ruling that was issued before a hearing Friday, the judge says that Costner has “sufficiently pled that the participation statements provided by Defendants were misleading.”
Morgan Creek had attempted to throw out the claim on the basis that Costner hadn’t performed his own contractual obligations — namely objecting to participation statements within 12 months if there was any problem. Costner’s attorneys argued that their client was excused from such timely duties because concealment prevented him from discovering the alleged breaches.
The judge agreed with Costner on this point.
However, moving forward, Costner needs to allege more in his lawsuit if damages are going to be anything more than what he is or isn’t owed from any contractual breaches on the continued exploitation of Robin Hood.
“While Plaintiff contends Defendant’s deprived Plaintiffs of the benefits of the acting agreements by unfairly allocating the license fees attributable to the Picture, these allegations are not contained in the [First Amended Complaint,” says the judge. “Rather, paragraph 18 merely alleges actions taken by Defendant in packaging the Picture in international territories, without stating how these actions ‘unfairly frustrate[ed] the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement.'”
The judge also asks for more details from Costner’s side on which statements made by Morgan Creek were misrepresentations and when they happened.
Marty Singer, who is representing Costner along with Michael Holtz at Lavely & Singer, says he’ll address the deficiencies.
“We will be able to solve the court’s technical issue on the fraud claim so that it will survive,” he tells The Hollywood Reporter. “Notwithstanding, my client is owed significant monies from Morgan Creek.”
At the time of the lawsuit’s filing, Robinson told us that Costner has already been paid $40 million on the film, and that the company has been “very straight with him.”
E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner
