A day before the first court hearing in the increasingly bitter battle between 20th Century Fox and Netflix over the streaming service’s snagging of two executives under contract to the studio, a Los Angeles Superior Court judge has handed Fox and Fox 21 TV Studios a slap of sorts.
“The Special Motion to Strike filed by Cross-Defendant 20th Century Fox Film Corporation is denied,” read a tentative ruling by Judge Gerald Rosenberg today of Netflix’s pushback against fixed-term employment contracts in California. “The basis for the Cross-Complaint is not protected conduct,” he added in his brief notes. “It is the alleged use of agreements that unlawfully restrict the mobility of employees not the means of enforcement whether by cease and desist letter or litigation.”
If the brevity of this tentative becomes final, this would go down as a loss for Fox’s anti-SLAPP motion against the streaming service’s October 19 cross-complaint. That complaint is the subject of a still-on-the-books hearing scheduled for tomorrow in Santa Monica and is the latest in back and forth filings which began in September last year when the Fox units took Netflix to court over the latter’s hiring of execs Tara Flynn and Marco Waltenberg. Fox claimed Netflix “illegally” poached employees under contract.
Fox did not respond to request for comment today on the tentative ruling, but an appeal of such a ruling is likely. The parties have up until 4:30 PM today to respond to the tentative and push aside tomorrow’s hearing.
Daniel Petrocelli of O’Melveny & Myers LLP is representing the Fox parties, with O’Melveny & Myers’ Molly Lens and J. Hardy Ehlers also working on the case. Orrick, Herrington & Sutcliffe LLP’s Lynne Hermle and Karen Johnson-McKewan are working for Netflix in the matter.