(UPDATED with Jackson estate statement) With five nominations going into next month’s Emmy Awards, Leaving Neverland is hoping to score a final win in court too.
Under legal fire from the extremely litigious estate of Michael Jackson, the HBO documentary examining allegations that the Thriller star sexually abused children has now moved to have the case against it tossed out of court once and for all.
“Plaintiffs’ claims fail because they violate the First Amendment, Due Process Clause and public policy, and in any event, the contract on which they are based is inapplicable and expired,” states the special motion to strike by HBO’s powerhouse lawyers Theodore Boutrous Jr. and Daniel Petrocelli (read it here).
“California’s Anti-SLAPP law empowers—indeed requires—this Court to put an end to this litigation now,” the Gibson, Dunn & Crutcher LLP and O’Melveny & Myers LLP attorneys add in the August 15 paperwork submitted to federal court. “Accordingly, the Court should strike Plaintiffs’ Petition and claims with prejudice, and award attorneys’ fees and costs to HBO pursuant to the anti-SLAPP law’s mandatory attorneys’ fees clause for prevailing defendants.”
A hearing date of September 19 has been set, just three days before the 71st Primetime Emmys air live on Fox.
The move follows a decision in late May by U.S. District Court Judge George H. Wu to deny the estate’s ask to have the case taken behind closed doors and be decided by the American Arbitration Association, and have it sent back to state court. With the spotlight on the Dan Reed-directed project even before its police-protected but well-received world premiere at the Sundance Film Festival earlier this year, the estate of the deceased singer failed to convince then-HBO boss Richard Plepler to pull the plug on the docu in mid-February.
Soon after, attorneys from Kinsella Weitzman Iser Kump & Aldisert LLP and Freedman + Tailtelman LLP launched the big-bucks suit in Los Angeles Superior Court seeking an injunction against the March 3-debuting film. Also as a part of that action, attorneys for the estate cited a portion of a 1992 deal between Jackson and HBO over a concert special as proof of the legal slippage by the premium cabler.
That almost 30-year-old deal didn’t get much traction, but the case then slid to federal court in early March for jurisdictional reasons. That move came just over a week after Leaving Neverland played to some of the biggest documentary viewerships HBO in the past decade.
The timing of the lawsuit and the seemingly scattershot approach of the estate was brought front and center in this week’s filing.
“Plaintiffs’ Petition was filed as a public shot across the bow, threatening to pursue and punish HBO in a ‘public’ arbitration seeking over $100 million, even before Leaving Neverland debuted on HBO,” Boutrous and Daniel Petrocelli declared.
“Towards that end, Plaintiffs took a number of extraordinary steps: they filed their Petition in court (when they could have filed privately in arbitration), pled in detail the substance of their claims (when not required to compel arbitration), and claimed to be seeking that to which they are not entitled (punitive damages),” the duo points out to the court. “Such speech-chilling conduct is antithetical to the First Amendment principles that protect speech on issues of public concern, and seeks to unlawfully punish “would-be critics” of public figures.”
The Micheal Jackson estate rejected all that in a statement to Deadline today.
“A contract doesn’t expire just because you wish it so as HBO does here,” a spokesperson for the estate said Friday. “There is no expiration term in the contract, nor does it terminate as a matter of law. Likewise, the First Amendment does not protect HBO from willfully and blatantly violating its contractual obligations, as it did here. The Estate of Michael Jackson is confident that HBO’s latest attempt to avoid its contractual obligations will fail.”
Whether or not the case is before the courts by the time the Emmys come up, Leaving Neverland is up for Outstanding Documentary or Nonfiction Special as well as noms for Directing, Sounding Editing, Picture Editing and Sound Mixing.