Olivia de Havilland’s Feud lawsuit that was thrown out by an appeals court today might not be over. The Oscar-winning actress’ lawyer said tonight that the case “appears to be destined for a higher court,” noting that it was “an entirely pro-industry decision” and that one of the appellate judges once was a partner in the firm that represented FX Networks in the case.

“We will be preparing the appropriate petition for such review,” Smith added. The next level of appeal would be the California Supreme Court.

Feud Olivia De Havilland
FX/Associated Press

In a statement released to the media (read it below), attorney Suzelle Smith cited the official bography of Justice Anne Egerton, who was appointed to the 2nd District Court of Appeal in November by California Gov. Jerry Brown. It says the jurist formerly was an SVP at NBC from 1990-2000 and before that a partner at Munger, Tolles and Olson LLP from 1987-90, where she was an associate from 1983-86.

“Miss de Havilland, her many fans all over the world, and actors in similar situations are rightly disappointed in this Opinion,” Smith says in her statement. “The Opinion does not properly balance the First Amendment with other important rights. This case appears to be destined for a higher court, and we will be preparing the appropriate petition for such review.” Read her full statement below.

Here is Smith’s full statement, via her assistant at Howarth & Smith in Los Angeles; note the last two paragraphs:

Four business days after the hearing on FX’s appeal of the trial Court’s ruling that Olivia de Havilland could proceed to a jury on her case against FX for the unauthorized and false portrayal of her in Feud, Justice Anne Egerton of the Court of Appeal published a 36-page opinion entirely in favor of FX and the industry, reversing the trial Judge, the Honorable Holly Kendig.

The Opinion holds that Miss de Havilland is not entitled to a trial on her claims because, according to Justice Egerton, the “portrayal of de Havilland in Feud is not highly offensive to a reasonable person as a matter of law,” and that had Feud made the reference to Fontaine as “my dragon lady sister” rather than bitch, the “effect on the mind of the reader” would not have been appreciably different.

The Court of Appeal adopting the FX characterization, rather than Miss de Havilland’s view of her character using profanity and disclosing confidential information about friends, states that the “de Havilland character is portrayed as beautiful, glamorous, self-assured, and considerably ahead of her time in her views on the importance of equality and respect for women in Hollywood.”

The Court of Appeals holds for the first time that “fiction is by definition untrue…. Put more starkly, it is false. Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice.” The Court of Appeal further dismissed Miss de Havilland’s claims based on the admitted unconsented and uncompensated use of her name and identity, “[U]se of a person’s name and likeness to advertise a novel, play, or motion picture concerning that individual is not actionable as an infringement of the right of publicity.”

The Opinion is breathtaking in its failure to follow established precedent from both the Court of Appeal and the Supreme Court. It ignores the rule of law that the Justices cannot weigh the evidence and must credit all plaintiff’s evidence,” said Suzelle Smith, counsel for Miss de Havilland. Smith continued, “The Court of Appeal, unlike the trial Court, has taken on itself the role of both Judge and jury, denying Miss de Havilland her Constitutional rights to have a jury decide her claims to protect the property rights in her name or to defend her reputation against knowing falsehoods.

Smith also stated, “This is an entirely pro-industry decision, and was clearly written before the hearing less than a week ago.” She notes that the official biography of Justice Egerton, a recent appointee to the Court of Appeal, states that the Justice was previously the West Coast General Counsel for the National Broadcasting Company (NBC) and before that was a partner at Munger Tolles & Olsen, the firm representing FX in this case.

Smith concluded, “Miss de Havilland, her many fans all over the world, and actors in similar situations are rightly disappointed in this Opinion. The Opinion does not properly balance the First Amendment with other important rights. This case appears to be destined for a higher court, and we will be preparing the appropriate petition for such review.”