Hollywood Docket: Dueling 'Sully' Lawsuits Move Toward Trial

Sully - Photofest - H 2017

Sully - Photofest - H 2017

Dueling lawsuits over an aviation consultant's pay for his work on Sully are closer to trial, after a California judge denied motions to strike the complaint and cross-complaint. 

Scott Heger sued Warner Bros. and Kiki Tree Pictures in July, claiming he made an agreement to act as the "aerial coordinator" for the film and arrange for Blair Adhesive Products to acquire the necessary airplanes, but Warners declined to pay him.

The producers countersued, arguing the planes that were delivered were not visually complete and were missing components needed for filming. The producers also moved to strike Heger's claim for punitive damages, arguing there were not sufficient facts to support malice, oppression or fraud, or to show conduct or authorization by a managing agent, officer or director.

"The Court disagrees," writes judge John P. Doyle in a tentative ruling denying the motion to strike, which he adopted during a Feb. 1 hearing. "Kiki, Warner Defendants, and Moore have failed to demur to the intentional misrepresentation claims asserted against them, which claims are sufficient to support the fraud basis for punitive damages predicated upon the alleged fraudulent promises to compensate Heger and Blair and the threat to blacklist them from the entertainment industry."

Meanwhile, Heger and Blair moved to strike claims from the cross-complaint. They argue their agreements with Kiki Tree contain liability release provisions that bar breach of contract claims.

Doyle notes that the parties' agreements span at least three documents, two of which relate to a specific aircraft, and it's unclear how the release of liability for the airplane agreements relates to their overall procurement deal. "Notably, the Cross-Complaint is based on the procurement agreement, and the relationship between the three agreements is subject to more than one reasonable interpretation which is not properly resolved at the pleading stage," writes Doyle.

The trial currently is scheduled for Aug. 21.

In other entertainment law news:

— In 2016, Beyonce's "Formation" video sparked scores of conversations analyzing the underlying messages about culture and police brutality — and now spoken word samples used in the song are at the center of a lawsuit. The estate of Anthony Barre is suing Bey, and just about every person and company connected to the song and video, for copyright infringement. Barre, a New Orleans comedian and music artist known as Messy Mya who died in 2010, was known for his catch phrases and raspy voice, according to the complaint. Barre is first heard at the very beginning of "Formation" saying “What happened at the New Orleans” and later in the song saying “Bitch, I’m back by popular demand.” The suit claims the samples infringe the rights in two works of Barre's performance art, "A 27 Piece Huh?" and "Booking the Hoes from New Wildings." His estate is seeking royalties, damages and an order that Barre be credited as a writer, composer, producer and artist on the track.

— Time Warner is asking the court to dismiss a discrimination lawsuit filed on behalf of a "vague, unascertainable putative class" of African-American employees. In December, Celeslie Henley and Ernest Colbert Jr. sued CNN, along with Turner Broadcasting and Time Warner, claiming there are not only "glass ceilings" for advancement, but also "glass walls" that segregate the company into divisions in which black leadership is acceptable and others in which it is not. Time Warner says it is "at a loss" to determine which class claims are targeted at each of its companies. The media giant is asking the court to either strike the claims or order Henley and Colbert to provide a "more definite statement of the class definition and their individual and class claims." (Read the full motion here.)

— For the time being, Midnight Sun producers are clear of a lawsuit from a screenwriter who says the unreleased film infringes on her 2010 treatment for a film called Shade, which is also known as Midnight Juliet. Bethany Ashton Wolf sued John Rickard, Alan Ou, Wrigley Pictures, Boies/Schiller Film Group and Open Road Films, among others, for copyright infringement and breach of contract. She claims she pitched her story to Rickard and Ou, but negotiations fell apart because they didn't want her to direct the project, and they later used her screenplay for the basis of their film. Midnight Sun producers argue their project is a licensed derivative work of a 2006 Japanese film called Taiyo no Uta, upon which Wolf's story also is based, and Wolf's claims are legally deficient. U.S. District Judge George H. Wu agreed, finding she failed to adequately plead her claims and dismissing the suit with leave to amend. (Read his full ruling here.)

— Century City law firm Sklar Kirsh is beefing up its entertainment practice with its third in-house attorney hire in recent years. Hillel Elkins is joining the firm, following his work as executive vp for business and legal affairs at Relativity Media. “By recruiting top talent, we’ve created a team with a unique understanding of the complexities and nuances of Entertainment transactions,” said Sklar Kirsh co-chairman Jeffrey Sklar. “Hillel’s impressive in-house experience in film and TV gives us a competitive advantage in representing entertainment companies and executives.” Prior to Elkins, Sklar Kirsh hired former Relativity general counsel Michael Rosner and former Deluxe Entertainment GC Scott Ehrlich.

— In Beverly Hills, Rami S. Yanni is joining entertainment law firm Rosenfeld, Meyer & Susman. His practice will include all aspects of intellectual property, brand and content licensing, as well as IP-focused mergers and acquisitions. Yanni is the former SVP of Saban Brands, which created the Power Rangers franchise, and was responsible for the company's dealmaking, litigation and intellectual property work. "We are delighted to add Rami to our close-knit legal team of professionals," said co-managing partner Burt Levitch in a statement. "Rami’s expertise and varied perspectives will prove to be a tremendous asset to the firm’s clients. Additionally, his talents and personality are a perfect fit for us.”