EXCLUSIVE: Bones executive producer Barry Josephson today began his stern push-back against Fox’s attempts to move his multimillion-dollar profit participation lawsuit to arbitration and stay the case. He was joined by stars Emily Deschanel and David Boreanaz and EP Kathleen Reichs, who filed a similar suit on November 30 last year. The Bones EP first filed his lawsuit on November 25, 2015 — effectively ruining Fox’s Thanksgiving.
The filings Monday come after Fox sought last month to have the lawsuits moved out of the courts. The broadcaster also wanted all proceedings stayed until petitions are heard before Judge Richard E. Rico on March 14 and March 2, respectively, for each suit.
A big part of Josephson’s argument today is that Fox’s petition of last month is talking about the wrong agreement and the wrong conditions. “Incredibly, Fox does not even attach, and only once mentions in passing, the document that completely disposes of its improper petition,” says the opposition (read it here) filed in L.A. Superior Court on Monday by Josephson’s lawyers at Kinsella Weitzman Iser Kump & Aldisert Llp. Adds the filing (read it here) today by Deschanel, Boreanaz and Reichs: “In a transparent attempt to keep their misconduct out of the public eye, Defendants’ Petition resorts to mischaracterizing both the parties’ agreements and the allegations of Plaintiffs’ Complaint.”
“In their haste to hide from public view precisely how they deprived Plaintiff Work Entertainment, Inc. f/s/o Barry Josephson out of tens of millions of dollars of profits from the hit television series Bones (the ‘Series’), Defendants Twentieth Century Fox Film (‘Fox TV’), Fox Broadcasting Corporation (‘FBC’), and Fox Entertainment Group (‘FEG’) (collectively, ‘Fox’) argue that every one of Josephson’s claims is arbitrable based on the limited arbitration clause contained in Josephson’s original producer agreement with Fox TV (the “2004 Agreement”),” says one of Josephson’s filings Monday. “But that provision was superseded by a later document, the January 2008 Modified Adjusted Gross Receipts (‘MAGR’) Definition. The 2004 Agreement compels arbitration of only ‘dispute[s] arising under the provisions of ‘ two subparagraphs related to Fox TV’s distribution of the Series.”
“Josephson’s claims do not relate to Fox’s distribution of the Series, but rather, Fox’s accounting of MAGR-provided for in an entirely separate paragraph of the 2004 Agreement, governed by a separate document, and mandating that any claims related to MAGR be tried by an “action at law,’” the 27-page filing states.
“Unfortunately for Defendants, with one minor and easily severable exception, the Complaint does not contest Defendants’ rights to control the distribution of Bones or allege a single breach of the ‘Distribution Controls’ provision,” asserts Deschanel, Boreanaz and Reichs’ filing today, with a clear slap at Fox. “Rather, the Complaint essentially alleges that defendant 20th TV had contractual and implied contractual obligations to properly account to Plaintiffs and to pay them their fair share of profits, that it failed to do so, and that the other Defendants conspired with 20th TV in underpaying Plaintiffs.”
The trio alleged they were “cheated out of more than $100 million in gross revenues and being overcharged many additional millions of dollars in alleged expenses.”
“As discussed in Plaintiff’s concurrently filed Opposition to Defendants’ petition to compel arbitration (hereafter, ‘Opp.’), Defendants’ request is moot, because none of Plaintiff’s claims are arbitrable,” notes Josephson’s simultaneously filed opposition to Fox’s request for a stay (read it here). If, however, the court orders that any claims be arbitrated, it should not stay litigation of the non-arbitrable claims.”
Now those public hearing dates will be about the stay and the move to get things out of the glare of the courts.
Dale Kinsella, Chad Fitzgerald and Aaron Liskin are representing Josephson and his Wark Entertainment. Deschanel, Boreanaz and Reichs are represented by John Berlinski, Mansi Shah and Candace Frazier of the LA office of Kasowitz Benson Torres and Friedman LLP. The Fox defendants are represented by attorneys from Munger, Tolles & Olson LLP led by Glenn Pomerantz.