'Bones' Executive Producer Barry Josephson Files Amended Profits Suit Against Fox

New court papers say there are non-arbitrable issues left unresolved, including a $10 million claim over how Josephson's profit share was allegedly reduced from 12.5 to 5.6 percent.
Photofest; Vivien Killilea/Getty
'Bones' (Inset: Barry Josephson)

The Bones profit dispute isn't done making a splash —  and that goes beyond a forthcoming appeal over a judge's decision to slash a $179 million ruling from an arbitrator who slammed 21st Century Fox TV for a "company-wide culture and an accepted climate that enveloped an aversion for the truth."

Yes, Bones stars David Boreanaz and Emily Deschanel as well as executive producer Barry Josephson plan on going to a California appellate court to challenge the wiping out of $128 million in punitive damages, but there's another aspect of the case being litigated.

This week, Josephson brought an amended complaint in a case filed in 2015, even before the self-dealing controversy was adjudicated in arbitration over what Fox's studio division was collecting from Fox's network arms and Hulu. According to his new court papers, there remains the showrunner's "non-arbitrable claims, which arose from a comprehensive audit of TCFTV's books and records."

Josephson asserts there would be tens of millions of dollars more in the profit pool were it not for misclassifications and failures to report revenue.

Perhaps the biggest claim in the amended suit, though, relates to what Josephson contends was a fraudulent promise on Fox's part to pay him a "floor" of 7.5 percent of the defined profits from the series.

His agreement for the series provided him with contingent compensation of 12.5 percent that was reducible by the profits paid to all third parties. But Josephson alleges that Fox violated the guaranteed 7.5 percent floor by counting both "above the line" and "below the line" third-party profit participations.

The result, he asserts, is "circular accounting whereby one Participant's share of MAGR [modified adjusted gross receipts, or profits] reduces the pool of MAGR in which the other Participant shares, and that other Participant's share of MAGR likewise reduces the pool of MAGR in which the first Participant shares."

The amended complaint continues, "In dollar terms, TCFTV has thereby improperly reduced the MAGR it reports to Josephson from $236,370,687 to $177,819,677 — far less than '100% of MAGR.' Just this bit of chicanery, in turn, has deprived Josephson of approximately $10 million to date."

Josephson says he's essentially getting 5.6 percent of profits instead of 7.5 percent, and to any argument coming that the deduction of profit participation this way was allowed, he says it "contradicts the express language" of the only agreement he signed.

As his attorney Dale Kinsella's team puts it, "The word 'floor' meant just that: the absolute minimum."

Fox hasn't yet responded.