It’s not exactly the unending Jarndyce v. Jarndyce of Dickens’ Bleak House, but the five-years-and-counting saga of the Broadway-bound musical Rebecca saw another court ruling today that appears to send the case to trial, possibly as soon as this fall. The decision was good news for producing partners Ben Sprecher and Louise Forlenza, and not so good for veteran press agent Marc Thibodeau, whom the producers claim sabotaged the show.
The New York State Supreme Court’s Appellate Division today affirmed last May’s Supreme Court rulings clearing the way for the suit to proceed to trial. At issue is whether Thibodeau should be held accountable for sending four e-mails, one of them anonymously, scaring off  a potential investor in the troubled show just as rehearsals were about to get under way. At the time, in the fall of 2012, Thibodeau was working for Sprecher and Forlenza as press agent for the musical. Based on Daphne Du Maurier’s popular 1938 novel and Alfred Hitchcock’s 1940 movie, the show had enjoyed successful runs in Europe.

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But capitalizing the Broadway production, especially after most of the producing establishment had passed on the project, turned into a series of costly mishaps. After several false starts that included a mystery investor who turned out to have been the fabrication of a flim-flam artist, Sprecher and Forlenza appeared to have been close to raising the necessary funds when Thibodeau sent the emails to an angel who thought he was investing $2.25 million anonymously. Thibodeau, a highly regarded veteran of the Broadway p.r. trade, claimed that he could not stand by as a potential investor was kept in the dark about the show’s financial history, especially when he had been instructed by Sprecher  “not to go there” when reporters asked about the show. Thibodeau argued that those orders constituted a breach of the producers’ contract with him. Both courts disagreed.

“It is difficult to imagine a plainer case of a party to a contract utterly defeating the purpose for which the other party had entered into that contract, or a more blatant example of an agent’s disloyalty to his principal,” according to the Appellate Court ruling filed today. “[A] first material breach of the parties’ agreement by RBLP [i.e., Sprecher and Forlenza], if there was one, would not have justified Thibodeau’s remaining in RBLP’s employ while using confidential information entrusted to him to sabotage the production. A party to a bilateral contract, when faced with a breach by the other party, must make an election between declaring a breach and terminating the contract or, alternatively, ignoring the breach and continuing to perform under the contract. Such a party has no right to represent himself as continuing to perform under the contract — and continuing to receive the other party’s performance in exchange — while at the same time surreptitiously breaching his own duty by flouting his own implied duty of good faith and fair dealing…”

The court didn’t let the producers completely off the hook, noting that, “Although neither the producer nor the publicity agent can be credited with angelic virtue, we hold that Supreme Court correctly determined that the producer’s claims for defamation and tortious interference should go to trial.” But the decision made clear its feeling that Thibodeau didn’t have grounds to argue that he couldn’t ethically fulfill his responsibilities. “Needless to say, dealing with pressure from the press and the public is what publicists are paid to do,” the decision added in a wry footnote.
Although Thibodeau can ask for a hearing by the state Court of Appeals, it would have to be approved by  the Appellate Division, whose attitude is hard to miss in the 18-page document. Thibodeau did not repond to Deadline’s request for comment.
“We will be seeking to hold him responsible for destroying the production,” Erik S. Groothius, the lawyer for Sprecher and Forlenza, told Deadline. “It is in the millions of dollars.”