EXCLUSIVE: Bones executive producer Barry Josephson and his lawyers have done the forensics on the long-running Fox series and claim they’ve found something rotten financially. In a detailed breach of contract and fraudulent inducement complaint filed today in L.A. Superior Court (read it here), Josephson says the “unrelenting” broadcaster stiffed him and others for potentially millions in promised profit participation. A Fox rep declined today to comment on Josephson’s action.
Detailing “underreporting” of more than $19 million from license fees in Europe, “misclassifying” of more than $3.75 million in integration and product-placement deals and “misallocated revenue” from Fox-owned Hulu, among other focused examples, Josephson’s eight-claim lawsuit against 20th Century Fox Corporation, Fox Broadcasting Company and Fox Entertainment Group also asserts that take-it-or-cancel-it threats from high-level Fox executives including now co-Fox CEOs Gary Newman and Dana Walden were used over the years to get Josephson — plus showrunner Hart Hansen, producer Kathleen Reichs and stars Emily Deschanel and David Boreanaz, who also serve as producers, and their WME and ICM agencies — to agree to a reduction in episodic license fees.
“Specifically, on or about May 13, 2009, then-Fox senior executives Newman and Walden telephoned Plaintiff regarding the Release,” today’s filing says, regarding a conversation with Josephson, Newman and Walden about the $2 million per-episode fee the execs said Fox Broadcasting Company would accept for the successful series’ upcoming seasons. This was coming off a vert successful Season 4 for Bones. “On this call, the Fox executives told Plaintiff that he would have to accept lower license fees for Seasons 5 and 6 of the Series or that it would be cancelled if he did not.”
Josephson then says Fox Network Group boss Peter Rice called him the same day to induce him to sign the agreement. In that conversation, Rice allegedly said he had two primetime schedules in front of him — one with Bones on the air and one without — and that the fate of the series was in Josephson’s hands. “Fox executives also informed Plaintiff or his representatives that all the other Participants had signed or would sign the Release,” the complaint adds.
That turned out to be untrue claims Josephson, who signed that reduced license fee agreement, because he learned that Deschanel and Boreanaz didn’t sign, and the show was not canceled. After a similar negotiating tactic for Seasons 7 and 8, Josephson called Fox’s bluff and refused to sign — and the show again wasn’t cancelled. “Plaintiff is informed and believes, and on that basis alleges, that there was never any real ‘negotiation’ between Fox and FBC regarding the renewal of the Series for seasons 5 and 6, and this sham ‘negotiation’ was simply another strong-arm tactic used by Fox to induce Plaintiff to sign the Release.”
Similar in many ways to Frank Darabont and CAA’s ongoing nearly 2-year profit-sharing suit against AMC over The Walking Dead, the action today by Josephson — who was an executive producer on AMC’s Turn in 2014 — shares Darabont’s law firm in powerhouses Kinsella Weitzman Iser Kump & Aldisert LLP. Like Darabont’s complaint of December 2013, Josephson’s filing dives deep into what he calls the “opaque profits definitions” that Fox “used to manipulate and artificially depress participants’ reported ‘profits’ while keeping the majority-if not all-of the profits for the studio.”
“Fox has repeatedly breached its agreement with Josephson by systematically depriving him of compensation to which he is contractually entitled and by failing to maximize its profits on the Series — all to the benefit of its parent company and the detriment of Josephson and the other profit participants on the Series,” the complaint reads.
Josephson’s initial October 2004 agreement with Fox and subsequent revisions states that his percentage of the Defined Modified Adjusted Gross Receipts shall be “computed, determined and paid pursuant to Fox’s standard Television Definition of MAGR [.]” Definition being the operative word here.
Josephson is seeking unspecified monetary damages, punitive damages, a full accounting and restitution. His complaint also seeks a court order of what Fox owes him based on the contract and the appointment of a receiver to oversee the disbursement of the funds he hopes to get from Fox’s “unfair, unlawful, and/or fraudulent conduct.”
Dale Kinsella and his fellow attorneys Chad Fitzgerald and Aaron Liskin are representing Josephson and his Wark Entertainment, Inc in the action.