C N . 19-56222 United States Court Of Appeals For The Ninth Circuit

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CASE NO. 19-56222 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OPTIMUM PRODUCTIONS, a California corporation, and JOHN BRANCA AND JOHN MCCLAIN, in their respective capacities as CO-EXECUTORS OF THE ESTATE OF MICHAEL J. JACKSON (deceased), Plaintiffs and Appellees, vs. HOME BOX OFFICE, INC., a Delaware corporation, Defendant and Appellant. Appeal from the United States District Court for the Central District of California, Case No. No. 2:19-cv-01862 Hon. George H. Wu, District Judge, presiding APPELLEES’ SUPPLEMENTAL EXCERPTS OF RECORD KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman Jonathan Steinsapir Zachary T. Elsea 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 Telephone: 310.566.9800 Facsimile: 310.566.9850

FREEDMAN + TAITELMAN LLP Bryan J. Freedman 1901 Ave. of the Stars, Ste 500 Los Angeles, California 90067 Telephone: 310.201.0005 Facsimile: 310.201.0045

Attorneys for Plaintiffs and Appellees Optimum Productions, and John Branca and John McClain, in their respective capacities as Co-Executors of the Estate of Michael J. Jackson (deceased)

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TABLE OF CONTENTS DATE

DOCKET NO.

DESCRIPTION

SER PAGE

09-19-19

58

Reporter’s Transcript of Motion Hearing re 1 Anti-SLAPP Motion and Request to Compel Arbitration

08-29-19

48

Jackson Estate’s Opposition to HBO’s Anti-SLAPP Motion and Further Request to Compel Arbirattion

08-29-19

48-1 Request for Judicial Notice and Declaration of Howard Weitzman and Jonathan Noyes in Opposition to HBO’s Anti-SLAPP Motion

30

55

Ex. A – Notice of Hearing on Petition to Compel Public Arbitration; Memorandum of Points and Authorities; Declaration of Jonathan Steinsapir 07-15-19

41

Reporter’s Transcript of Proceeding re Motion to Compel Arbitration

76

06-17-19

36

Plaintiffs’ Supplemental Brief re Arbitrability and in Support of Motion to Compel Arbitration

114

06-04-19

30-1 Declaration of Drew E. Breuder in Support 126 of Defendant Home Box Office, Inc.’s Supplemental Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion to Compel Arbitration Ex. C Transcript of May 23, 2019 hearing.

ii

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DATE

DOCKET NO.

DESCRIPTION

SER PAGE

05-09-19

25

Plaintiffs’ Reply in Support of Motion to Compel Arbitration; and Supplemental Declaration of Jonathan P. Steinsapir

163

04-15-19

18

Notice of Motion to Compel Arbitration; Memorandum of Points and Authorities; and Declaration of Jonathan Steinsapir

186

Ex. A – Howard Weitzman letter to Home Box Office dated February 7, 2019 Ex. B – 1992 Agreement between HBO and Michael Jackson Ex. C – Agreement of Merger filed with the Secretary of State on December 29, 2010 03-13-19

1

HBO’s Notice of Removal

699421

iii

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UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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HONORABLE GEORGE H. WU, U.S. DISTRICT JUDGE

4 5

OPTIMUM PRODUCTIONS, et al, Plaintiff,

6 7

vs.

Case No. 19-cv-1862-GW

8

HOME BOX OFFICE et al,

9

Defendants. _______________________________________/

10 11 12 13 14

REPORTER'S TRANSCRIPT OF MOTION HEARING THURSDAY, SEPTEMBER 19, 2019 8:30 A.M. LOS ANGELES, CALIFORNIA

15 16 17 18 19 20 21 ________________________________________________________ 22 23 24

TERRI A. HOURIGAN, CSR NO. 3838, CCRR FEDERAL OFFICIAL COURT REPORTER 350 WEST FIRST STREET, ROOM 4311 LOS ANGELES, CALIFORNIA 90012 (213) 894-2849

25

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FOR THE PLAINTIFF: FREEDMAN and TAITELMAN, LLP BY: BRYAN J. FREEDMAN Attorney at Law 1901 Avenue of the Stars, Suite 500 Los Angeles, California 90067 [email protected]

7 8 9 10 11

KINSELLA WEITZMAN ISER KUMP and ALDISERT LLP BY: HOWARD WEITZMAN JONATHAN P. STEINSAPIR ZACHARY TRUMAN ELSEA Attorneys at Law 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 [email protected]

12 FOR THE DEFENDANT: 13 14 15 16 17 18

O'MELVENY AND MYERS LLP BY: DANIEL M. PETROCELLI Attorney at Law 1999 Avenue of the Stars, 8th Floor Los Angeles, California 90067 [email protected] GIBSON DUNN and CRUTCHER LLP BY: THEODORE J. BOUTROUS, JR. 333 South Grand Avenue Los Angeles, California 90071

19 ALSO PRESENT:

Stephanie Aberton, Counsel

20 21 22 23 24 25

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LOS ANGELES, CALIFORNIA; THURSDAY, SEPTEMBER 19, 2019

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8:30 A.M.

3

--oOo--

4 5

THE COURT:

Let me call the matter of Optimum

6

Productions versus Home Box Office.

7

MR. WEITZMAN:

Howard Weitzman, Jonathan Steinsapir,

8

Zack Elsea, Bryan Freedman on behalf of Optimum and the

9

executives of the Michael Jackson Estate.

10 11

At the end of the counsel table is John Branca, who is one of the co-executors of the Michael Jackson Estate.

12

THE COURT:

He was a lot younger -- I mean a lot

13

younger, he and I worked together as summer associates in a law

14

firm.

15

At that time he told me he wanted to go into entertainment

16

law.

17

mind goes into entertainment.

18 19

I told him he was an idiot because nobody in their right

What can I say, that shows how correct I am insofar as my understanding of how the law works.

20

MR. BRANCA:

21

THE COURT:

22

Yes.

Have you changed at all?

You

don't look like you have changed that much.

23

MR. BRANCA:

24

THE COURT:

25

It worked out for me.

Nor have you. We were both kind of stupid back then,

and we are still stupid now.

What can I say?

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MR. WEITZMAN:

we would submit on your tentative.

3

THE COURT:

4

MR. BOUTROUS:

5

Boutrous for HBO.

6

Aberton as well.

7 8 9 10 11 12 13

Your Honor, on behalf of the parties,

All right. Good morning, Your Honor.

Theodore

I am joined by Dan Petrocelli and Stephanie

THE COURT:

All right.

This case is interesting, but I guess it's like, you know, the gold curse, may you live in interesting times, and it is kind of like may you get interesting cases. You know, I don't know what else I can say other than what I have stated in my previous tentatives on this. Let me just ask the defense counsel, and I apologize that

14

may be the foray into the SLAPP area which was probably at my

15

suggestion or inference.

16

And now I have decided that it probably wasn't anything

17

you necessarily should have gone into, although the problem is

18

that a lot of these issues are so close and up in the air that

19

I think no matter which side wins or loses, they are going to

20

take an appeal.

21 22 23 24 25

A lot of this stuff should be decided in the Circuit Court and a lot of stuff has not been decided by the Circuit Court. So it doesn't make any difference what I do necessarily as long as I do something quickly. MR. BOUTROUS:

Your Honor, if I may make a few

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points.

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We appreciate the opportunity to file the anti-SLAPP

3

motion because this case, from the beginning, was all about the

4

fact that it was a lawsuit.

5 6 7 8 9

The Court, I think, in the tentative says in Footnote 11, it was a red herring that the state came into court first. That is really our whole point in this motion, and it goes to the preemption argument that I would like to go to. Here, Your Honor, this lawsuit, the fact that it was filed

10

in court, it screams strategic lawsuit against public

11

participation.

12

It was filed to chill speech to tell the world that don't

13

criticize, don't talk about the allegations of child sex abuse

14

against Michael Jackson.

15

THE COURT:

And if that were the primary intent to

16

affect the discussion, let's be blunt, the discussion insofar

17

as Mr. Jackson's life has been, you know -- so much has already

18

been said.

19 20

MR. BOUTROUS:

It's an issue of great public

interest, that is true.

21

THE COURT:

I would have to agree and I think the

22

plaintiff would also have to agree, it is a matter of public

23

interest.

24 25

What can one say? MR. BOUTROUS:

I think, Your Honor, it's important

to -- if we think about the purpose, and I know the Court knows

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the purpose of anti-SLAPP, which is to stop abuse of the court

2

system and use of the court system as a mechanism to chill

3

speech.

4

Here, by filing this suit, I had forgotten, to be honest,

5

the petition which is really a complaint, Your Honor,

6

arbitration isn't mentioned until page 19.

7

It goes through -- it castigates HBO, it's former CEO, it

8

even goes after the prosecutor Tom Sneddon in the underlying

9

criminal action.

10

THE COURT:

11

MR. BOUTROUS:

12 13 14 15 16 17 18 19 20 21 22

Honor.

Didn't this thing win an Emmy? I was going to get to that, Your

Thank you.

It's an Emmy-winning documentary -THE COURT:

On either side, I will allow argument on

either side. MR. BOUTROUS:

I appreciate you reminding me of that

point, Your Honor. But I think it is important to focus on the fact that this wasn't a traditional petition for arbitration. It's really only the last couple of pages -- and literally arbitration isn't mentioned, by my account, until page 19. THE COURT:

You must agree, it is still an issue as

23

to whether or not an arbitration or motion to compel

24

arbitration should not be considered to be encompassed in the

25

SLAPP, I guess the SLAPP -- within the scope of the SLAPP

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statute because SLAPP envisions a litigation whereas I suppose

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an arbitration can be considered to be an agreement between the

3

parties as to a method to resolve disputes.

4

So therefore, the question as to whether or not SLAPP

5

should be applied to a petition to compel arbitration is really

6

up in the air, and I don't think I can find a decision one way

7

or the other on that.

8 9

Again, this one -- it's one of these things that are interesting, and as long as I reach a decision one way or the

10

other, whoever loses can appeal these issues and hopefully the

11

Circuit will resolve them and it will be more clear as to what

12

goes on.

13 14 15

The problem I have, again, though, is the way that these things are kind of like formulated. Also, there is so much public policy behind the various

16

positions that are taken as to SLAPP and First Amendment

17

rights, but then again as to arbitration as to the current

18

Supreme Court's view insofar as the importance of enforcing

19

arbitration or provisions without any preset biases against

20

that as a means of resolution.

21

So I mean there are so many issues that pop up here, one

22

must pick and choose whatever one wants, but the question

23

really is who gets to finally choose.

24

way, it is certainly not the trial judge.

25

And let's put it this

It may be the Circuit and maybe the Supreme Court, but in

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the end, someone will say what the final ruling is. MR. BOUTROUS:

I think it's been very helpful that

3

the Court has been grappling with all of these issues, whatever

4

happens from this point on.

5 6 7 8 9

If I could just make two more points, one on the preemption point. We recognize the strong policy favoring arbitration, as the Court pointed out. We actually didn't take the position, Your Honor, that it

10

has to be a law that specifically targets arbitration or that

11

disfavors arbitration.

12

As the Court points out, the Supreme Court talks about

13

state law, even if it's general, that creates obstacles to

14

arbitration that are so inconsistent with the policy favoring

15

arbitration that that could be preempted.

16

But here, Your Honor, the party that acted in a way that

17

was inconsistent with the Federal Arbitration Act, it's the

18

plaintiff -- it's the plaintiffs.

19

I know the Court said it was a red herring.

20

They didn't even say they felt they had a claim under this

21

agreement or any other claim before they came running into

22

court to file this diatribe on the merits.

23 24 25

THE COURT:

I think you are being somewhat

pejorative in that regard. I mean, maybe they didn't include it within the first 19

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pages, but it's obviously the basis upon which they are moving

2

because they are not bringing an action in and of itself for a

3

breach of the confidentiality agreement.

4

What they have done is they have asked for the arbitration

5

of that issue because they recognize that there is an

6

arbitration provision.

7

MR. BOUTROUS:

But, Your Honor, even under the

8

Federal Arbitration Act, in order to file a petition, the right

9

to come into court -- the Federal Arbitration Act doesn't want

10

people to come into court, to begin with.

11

THE COURT:

Well, except that there is that comment

12

from the Supreme Court, and I can't remember the name of case

13

now, the one that was cited in 2019, that says that we are not

14

supposed to -- the mere fact we think -- even if we think that

15

there is no basis upon which the claim should go forward, we're

16

still not supposed to consider that in deciding whether or not

17

to enforce the terms of arbitration provision if we find there

18

isn't enforceable arbitration provisions.

19 20

MR. BOUTROUS:

I wasn't arguing that point, Your

Honor.

21

The point I was making was everything the Supreme Court

22

has said points in the direction that a party who thinks they

23

have a right to arbitrate under an agreement should at least

24

alert the other party and demand that there be arbitration.

25

That, to me, it's the blinking red light and demands

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arbitration. THE COURT:

Are you saying -- well, it's kind of an

3

ironic argument, because you are saying because the fact they

4

didn't ask for arbitration prior to filing a lawsuit seeking to

5

compel arbitration, it's somehow, what -- they waived it?

6

causes it to be waived?

7 8 9 10 11

I don't understand the argument. MR. BOUTROUS:

It really goes to why this is a very

unique -- I think the Court called it a novel motion and a messy case -- but it's really an extraordinary case. The party comes to court asking the Court to compel an

12

arbitration that has never even asked for, when the whole

13

purpose of the arbitration agreement they claim applies --

14

It

THE COURT:

Stop.

If you are going to say it's

15

going to be mooted because you will agree to arbitration, then

16

okay, I understand that.

17 18 19

It's mooted because you guys are going to agree to arbitration, then I say, okay, they should have brought it. But at this point in time, it's my understanding that the

20

defendant is not willing to go into arbitration, and so

21

therefore, it is a live issue, et cetera.

22

MR. BOUTROUS:

23

THE COURT:

24 25

But --

He never says anything, but he kind of

does things. Why didn't he ever say anything in court?

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MR. BOUTROUS: we are done today.

I'm sure he will say something before

Actually, he will get in.

But here, Your Honor, again, they came to court asking not

4

only for things that are in the alleged agreement they claim

5

applies, but they asked for a public arbitration.

6

They made all their allegations -- but my point, Your

7

Honor, is that this was a misuse of the courts in order to send

8

a message to the world and HBO to not engage on these issues --

9

to the filmmaker, to other people.

10

The Court, I think gave a nod to this point in the prior

11

tentative that the filing of the lawsuit for improper purposes,

12

to chill speech, is what the Anti-SLAPP statute is meant to

13

challenge.

14

Here, they asked for a public arbitration and asked the

15

Court to declare something that is not even in the agreement.

16 17 18

They did it before the airing of the documentary, put out a press release -THE COURT:

I understand that it is somewhat ironic

19

to ask for a public arbitration on the issue of disparargement

20

and alleged release of confidential information.

21

It's kind of weird.

22

But be that as it may, the problem I have is, I can't get

23

to your arguments unless I make a finding that SLAPP can apply

24

to their request for arbitration.

25

And again, it's a weighing of various issues.

There is a

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question of preemption, as you indicated. I use preemption not in a technical way but as some sort of preemptive effect.

4

So I really can't even get to the issues you are arguing

5

at this point in time because the problem I have is to whether

6

or not SLAPP even applies.

7 8 9 10

MR. BOUTROUS:

I have a proposal on that very point,

Your Honor. One of the cases that we cited is the California Supreme Court's decision in the Barel case.

11

And that issue there was whether a complaint that had

12

claims based on protected activity and unprotected activity

13

that were all kind of mixed in, whether that meant the

14

anti-SLAPP statute didn't apply because there was unprotected

15

activity in play.

16

The Supreme Court of California said:

We're not going to

17

let artful pleading take the anti-SLAPP statute and its

18

important policies out of play.

19

The Court said that where there is a both protected and

20

unprotected activity, even if the Court says that it's not

21

willing to apply the anti-SLAPP statute to the arbitration

22

request, under the Barel case, the Court should strike the

23

allegations -- I went through it -- it would be paragraphs 1

24

through 68, paragraphs 79 through 80, and in the prayer after

25

on page 22, lines 2 through 6, because those are all

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allegations of protected activity that are relevant to the

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arbitration claim.

3

They didn't need to file a 22-page brief.

4

Instead, they attacked speech, they asked for punitive

5

damages and a breach of contract claim.

6 7

It was clearly meant to say, we're coming after you. Anybody who speaks about these issues, don't do it.

8 9 10

I know the Court says that there is a lot of discussion about it, but it is significant that someone like HBO can fight back and move forward, but others may not be able to do that.

11

So under the Barel case, the Court said the motion to

12

strike procedure allows the Court to strike allegations of

13

protected activity even if they are mixed in with -- if the

14

Court deems the arbitration request to be off limits -- we

15

would respectfully ask the Court to grant our motion as to

16

those allegations and award us our attorney's fees in

17

connection with the motion.

18 19 20

This is not a proper use of a lawsuit.

It's a dangerous

path. People with arbitration agreements can now take a free

21

shot in court without seeking arbitration, get all of their

22

allegations in a courtroom where there is a litigation

23

privilege that they don't have to fear --

24 25

THE COURT:

I don't understand that argument,

because, you know, again, if I were to evaluate the merits of

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the SLAPP, I would probably agree with you on a lot of points

2

you are making, but what I'm indicating is that I can't apply

3

SLAPP in this particular context.

4 5

So if I can't apply the SLAPP in this particular context, I can't do that which you want me to do at all.

6

So, that is the problem I have.

7

You know, I'm not saying your arguments aren't worthwhile,

8

but there is a predicate, you know, for the type of analysis

9

you want me to do that I cannot get above that little lump.

10

MR. BOUTROUS:

We appreciate, Your Honor, that you

11

have been grappling with the various policies of FAA and

12

California law, I will just finish with this:

13

Our position is much more consistent with the policies of

14

Federal Arbitration Act that a party that wants to arbitrate

15

and thinks it has a right to arbitrate should not go into court

16

first and file a detailed complaint with its allegations, but

17

instead should invoke arbitration through whatever processes is

18

available to them, sending a letter, sending in a demand to the

19

Triple A or just making a demand and say, under the alleged

20

contract they claim applies that --

21

THE COURT:

Even if I were to agree with you

22

100 percent, the situation is where the plaintiff does not do

23

that, that doesn't constitute any sort of waiver.

24

like they go into court and litigate the merits, and then say,

25

now I want to arbitrate this.

It's not

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That is not what they are doing.

2

From the get-go, they said we wanted to compel

3 4

arbitration. Perhaps they should have contacted HBO first to see if HBO

5

was willing to go into arbitration, but there is no indication,

6

as it turns out, that HBO ever would agree to have gone into

7

arbitration.

8

And so, therefore, it's kind of like no harm no foul.

9

MR. BOUTROUS:

No, Your Honor.

The harm is the

10

filing of the lawsuit which is the kind of lawsuit the

11

anti-SLAPP statute was meant to prevent.

12

There is no other reason they filed it before contacting

13

HBO, other than they wanted to get their position in court,

14

tell the world we're going to sue people, we will come up with

15

whatever reason we can if you talk about this important public

16

issue.

17

THE COURT:

Let me put it this way, again, if HBO

18

were a mom and pop business, I would say that is not very nice

19

of them, but these are all -- you are a big company, and they

20

are obviously a very wealthy estate.

21

So, you know, it's kind of the Clash of the Titans, these

22

are things that amuse small people.

23

MR. BOUTROUS:

But the message sent by a lawsuit of

24

this kind, Your Honor, it doesn't just go to HBO.

It goes to

25

the small players, the independent producers, individuals who

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might want to speak out.

2

THE COURT:

The thing about it is in the end, it

3

will go into arbitration.

4

public arbitration.

5 6

As you indicated it's going to be a

They are going to win or lose.

If they lose, they will say, oh, that was kind of stupid of them to have brought this.

7

Let's put it this way, I mean, everything they have said,

8

you know, in the -- is stuff that is not -- the fact that there

9

was a confidentiality provision, or non-disparage provision in

10

a contract from 1992 or whatever it was -- they are not arguing

11

that HBO is doing anything even that weird or anything that was

12

wrong or anything of that sort.

13

They are basically saying there was this provision in the

14

contract, and it was breached, and we want to have that placed

15

in front of a arbitrator.

16

It's not like -- again, it doesn't seem to me that it is

17

so troublesome, is what the allegations are.

18

they are.

19

MR. BOUTROUS:

They are what

I understand what you are saying,

20

Your Honor, but that allegation starts on page 19 after they

21

tell the entire story.

22

THE COURT:

23

to 19?

24

of pages --

25

Were you tired of reading before you got

You said, gee, I could flip through these next couple

MR. BOUTROUS:

I was looking at what is the purpose

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of this lawsuit. You have been very generous with your time and we really appreciate that you grappled with these issues. We urge the Court to take one more look and consider the

5

fact that the Federal Arbitration Act's policies and the

6

anti-SLAPP statute policies are consistent with our motion and

7

we would ask the Court to grant the motion.

8 9 10 11 12 13

Thank you very much. THE COURT:

Actually, I do have a couple of other

questions still. And I apologize, again, looking at the stuff every now and then things pops up. Something I indicated in my first tentative that I really

14

didn't discuss in the second tentative nor did I discuss it in

15

the latest in regards to the motion to strike, isn't the issue

16

as to whether or not there is a clear and unambiguous agreement

17

to go to arbitrate, or has the arbitrator determined

18

arbitrability?

19

Is that decided under state law or federal law?

20

Is an issue of contract interpretation, which would seem

21

to me to be state law, or am I supposed to look to federal

22

common law in that regard?

23 24 25

MR. BOUTROUS:

So going back to -- we're talking

about the delegation, whether this Court -THE COURT:

In other words, as I do the analysis, I

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indicate that because of the American Arbitration Association

2

Rule 1, basically says that all of this stuff that comes up

3

that -- in other words, new amendments to the rules are adopted

4

-- being adopted by both sides, so therefore, when the demand

5

for arbitration is filed, you use the current rules even though

6

the rules that were in existence at the time could be

7

completely different.

8

So, therefore, there is no dispute that at the time in

9

1992 or whatever it was that the agreement was entered into,

10

there was no provision that the arbitrator decided the issue of

11

arbitrability.

12 13 14

Although now, there is also currently at the time this lawsuit was filed, that that was a provision of the Triple A. So the question is, is the determination as to whether or

15

not this approach that says, you know, the current version of

16

the Rule 1 -- or sorry, the current version of the arbitration

17

rules which has the arbitrator decide arbitrability, is that

18

clear and -- you know, I want to use words, clear and

19

convincing, but that is not the correct terminology -- it is

20

clear and something.

21 22 23

MR. BOUTROUS:

Clear and unambiguous or

unmistakable. THE COURT:

In other words, is the rule -- is the

24

language of Rule 1 of the AAA clear manifestation, clear and

25

unambiguous.

I do understand that most cases says yes.

UNITED STATES DISTRICT COURT SER18

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 22 of 238 19 1 2 3

But there are a couple of cases including a case from California that says no. And so if the issue is one of state law, I would probably

4

be looking to the California Court of Appeals' decision rather

5

than the federal cases, because again, it is an issue of state

6

law, not federal.

7

The question is, is it federal or state law?

8 9 10

MR. BOUTROUS:

Your Honor, I believe that would be

federal law based on the Supreme Court decisions about how you interpret --

11

THE COURT:

In that case, you lose.

12

MR. BOUTROUS:

13

MR. PETROCELLI:

14

MR. BOUTROUS:

I think the Court got it -I understand the opposite view.

I knew he would come in, but I think

15

the Court would look to -- I think the Court got it right in

16

the sense that in terms of the clear and unmistakable terms of

17

the agreement in its -- I can't remember which tentative it

18

was, that the fact that the rules in 1992 didn't say that.

19 20 21

You looked to the parties' intent.

That line of cases is

correct. I think there was -- there are California cases as well,

22

and to the extent some Federal Courts have said otherwise it

23

was really in different circumstances I think, and here, I

24

think the Court got that piece right.

25

THE COURT:

But the thing about it is, in most cases

UNITED STATES DISTRICT COURT SER19

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 23 of 238 20 1

from most of the Federal Courts, in fact almost virtually all

2

of the Federal Courts have basically said that insofar as this

3

issue is concerned as to Rule 1 of the AAA, it is a

4

sufficient -- that language is a sufficient manifestation

5

because the parties agreed that the current rule would apply,

6

so therefore, even if there are changes, even if those changes

7

are ones that are not conceived of by the parties at the time

8

they agreed to an arbitration provision that has Rule 1 in it,

9

that that is a sufficient clear and unambiguous agreement so

10

that this later adoption of the rule that allows arbitrators to

11

determine arbitrability, you know, is binding on the parties.

12

The thing about it is, there is that one California case,

13

a published Court of Appeals case, that says no, it's not

14

because it's not clear and unambiguous when it's not even a

15

notion that any party even thought of at the time that because

16

arbitrability is supposed to be determined by clear and

17

unambiguous manifestation that the mere agreeing to some sort

18

of application of using then current rules would be sufficient

19

for that purpose.

20

But if you are saying to me that is federal common law,

21

the federal common law, I think has already been decided that

22

it is sufficient.

23 24 25

State law, however, would indicate perhaps that it's not. MR. BOUTROUS:

Your Honor, now that you are ruling

against us, I guess we will take another crack with the

UNITED STATES DISTRICT COURT SER20

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 24 of 238 21 1

arbitrator on arbitrability and let the arbitrator take another

2

shot at it.

3

But I do think in this unique circumstance, the 1992

4

agreement where there was nothing in the rules, nothing in the

5

agreement, it's hard to say that these parties had clear and

6

unmistakable intent on the arbitrability issue.

7 8 9 10

But, I would leave it at that. THE COURT:

The Ninth Circuit hasn't taken a

position on that that I can see, and the Supreme Court has never done it either.

11

MR. BOUTROUS:

12

THE COURT:

That's correct.

Sorting through all of these issues, I

13

just want this to be the omnibus arbitration vehicle so all of

14

these questions can be answered by Courts so that the next time

15

a case like this comes in front of me, it could just say, well

16

it says it here.

17

MR. BOUTROUS:

18

rule book on a lot of these issues.

19

THE COURT:

It's amazing we don't have a clearer

It is because we don't have inventive

20

minds such as I have in front of me that are spinning away like

21

Rumpelstiltskin with a wheel with all of this straw.

22 23 24 25

MR. BOUTROUS:

I enjoyed talking about these issue

with Your Honor. And I think it would be great to continue the discussion in connection with keeping this case here and dismissing it

UNITED STATES DISTRICT COURT SER21

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under the anti-SLAPP statute, and we wish you would do that.

2

THE COURT:

It's not that I am not happy to have you

3

here, but I pretty much have said all I need to say, I think.

4

So I will think about it a little bit more and I will try to

5

get something out certainly before the end of the month.

6 7

MR. BOUTROUS:

Thank you, Your Honor, we do

appreciate it.

8

THE COURT:

9

MR. PETROCELLI:

10

Do you want to say something now?

THE COURT:

12

MR. WEITZMAN:

13

THE COURT:

Anything from you guys? No, Your Honor.

All right.

lady, it was very interesting. Nice to see you again.

16

We will take a break, of course.

18 19

Thank you very much.

Thank you, gentlemen and

15

17

Thank you very

much.

11

14

No, Your Honor.

(Pause in the proceedings.) THE COURT:

Gentlemen, can you get counsel back?

I presume that once I get my decision out, no matter what,

20

one side or the other I presume is going to ask for an

21

interlocutory appeal?

22

MR. PETROCELLI:

23

THE COURT:

24

MR. BOUTROUS:

25

We're considering it, Your Honor.

Okay. Yes.

It would be interlocutory or

not, I mean, if you denied the motion, it would be appealed,

UNITED STATES DISTRICT COURT SER22

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but yeah, yes. THE COURT:

Okay.

3

So, I just wanted to get the scheduling for that.

4

I presume that it has to be done within a certain period

5

of time, so I presume -- let's assume this:

6

something out, but if I don't get it out tomorrow, I probably

7

will not get it out until September 30th, so it would be

8

tomorrow or September 30.

9 10 11

Let's assume I get

So in terms of scheduling, I am just -MR. BOUTROUS:

Once we get the order, we will confer

and come up with an efficient process for the Court.

12

THE COURT:

Okay.

13

MR. FREEDMAN:

14

THE COURT:

Thanks.

Thank you, Your Honor.

Let's take a break.

15

(The proceedings were concluded at 10:35 a.m.)

16

* * *

17 18 19 20 21 22 23 24 25

UNITED STATES DISTRICT COURT SER23

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 27 of 238 24 CERTIFICATE OF OFFICIAL REPORTER

1 2 3

COUNTY OF LOS ANGELES

4

STATE OF CALIFORNIA

) ) )

5 6

I, TERRI A. HOURIGAN, Federal Official Realtime

7

Court Reporter, in and for the United States District Court for

8

the Central District of California, do hereby certify that

9

pursuant to Section 753, Title 28, United States Code that the

10

foregoing is a true and correct transcript of the

11

stenographically reported proceedings held in the

12

above-entitled matter and that the transcript page format is in

13

conformance with the regulations of the judicial conference of

14

the United States.

15 16

Date:

September 25, 2019

17 18 19

/s/ TERRI A. HOURIGAN

20

TERRI A. HOURIGAN, CSR NO. 3838, CCRR Federal Official Court Reporter

21 22 23 24 25

UNITED STATES DISTRICT COURT SER24

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 28 of 238 1 / /s [1] - 24:19

1 1 [6] - 12:23, 18:2, 18:16, 18:24, 20:3, 20:8 100 [1] - 14:22 10:35 [1] - 23:15 11 [1] - 5:5 19 [7] - 1:13, 3:1, 6:6, 6:21, 8:25, 16:20, 16:23 19-cv-1862-GW [1] 1:7 1901 [1] - 2:5 1992 [4] - 16:10, 18:9, 19:18, 21:3 1999 [1] - 2:15

2 2 [1] - 12:25 2019 [4] - 1:13, 3:1, 9:13, 24:16 213 [1] - 1:24 22 [1] - 12:25 22-page [1] - 13:3 25 [1] - 24:16 28 [1] - 24:9

3 30 [1] - 23:8 30th [1] - 23:7 333 [1] - 2:18 350 [1] - 1:23 3838 [2] - 1:22, 24:20 3rd [1] - 2:10

4 4311 [1] - 1:23

5 500 [1] - 2:5

6 6 [1] - 12:25 68 [1] - 12:24

7 753 [1] - 24:9 79 [1] - 12:24

8 80 [1] - 12:24 808 [1] - 2:10 894-2849 [1] - 1:24 8:30 [2] - 1:14, 3:2 8th [1] - 2:15

9 90012 [1] - 1:24 90067 [2] - 2:6, 2:15 90071 [1] - 2:18 90401 [1] - 2:10

A a.m [1] - 23:15 A.M [2] - 1:14, 3:2 AAA [2] - 18:24, 20:3 Aberton [2] - 2:19, 4:6 able [1] - 13:10 above-entitled [1] 24:12 abuse [2] - 5:13, 6:1 account [1] - 6:21 Act [4] - 8:17, 9:8, 9:9, 14:14 Act's [1] - 17:5 acted [1] - 8:16 action [2] - 6:9, 9:2 activity [6] - 12:12, 12:15, 12:20, 13:1, 13:13 adopted [2] - 18:3, 18:4 adoption [1] - 20:10 affect [1] - 5:16 agree [8] - 5:21, 5:22, 6:22, 10:15, 10:17, 14:1, 14:21, 15:6 agreed [2] - 20:5, 20:8 agreeing [1] - 20:17 agreement [13] - 7:2, 8:21, 9:3, 9:23, 10:13, 11:4, 11:15, 17:16, 18:9, 19:17, 20:9, 21:4, 21:5 agreements [1] 13:20 air [2] - 4:18, 7:6 airing [1] - 11:16 al [2] - 1:5, 1:8 ALDISERT [1] - 2:7 alert [1] - 9:24 allegation [1] - 16:20 allegations [9] -

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arbitrate [5] - 9:23, 14:14, 14:15, 14:25, 17:17 Arbitration [6] 8:17, 9:8, 9:9, 14:14, 17:5, 18:1 arbitration [46] - 6:6, 6:19, 6:21, 6:23, 6:24, 7:2, 7:5, 7:17, 7:19, 8:7, 8:10, 8:11, 8:14, 8:15, 9:4, 9:6, 9:17, 9:18, 9:24, 10:1, 10:4, 10:5, 10:12, 10:13, 10:15, 10:18, 10:20, 11:5, 11:14, 11:19, 11:24, 12:21, 13:2, 13:14, 13:20, 13:21, 14:17, 15:3, 15:5, 15:7, 16:3, 16:4, 18:5, 18:16, 20:8, 21:13 arbitrator [6] - 16:15, 17:17, 18:10, 18:17, 21:1 arbitrators [1] 20:10 area [1] - 4:14 arguing [3] - 9:19, 12:4, 16:10 argument [5] - 5:8, 6:14, 10:3, 10:7, 13:24 arguments [2] 11:23, 14:7 artful [1] - 12:17 associates [1] - 3:13 Association [1] 18:1 assume [2] - 23:5 attacked [1] - 13:4 Attorney [2] - 2:5, 2:14 attorney's [1] - 13:16 Attorneys [1] - 2:9 available [1] - 14:18 Avenue [3] - 2:5, 2:15, 2:18 award [1] - 13:16

B Barel [3] - 12:10, 12:22, 13:11 based [2] - 12:12, 19:9 basis [2] - 9:1, 9:15 begin [1] - 9:10 beginning [1] - 5:3 behalf [2] - 3:8, 4:1 behind [1] - 7:15 between [1] - 7:2

bfreedman@ftllp. com [1] - 2:6 biases [1] - 7:19 big [1] - 15:19 binding [1] - 20:11 bit [1] - 22:4 blinking [1] - 9:25 blunt [1] - 5:16 book [1] - 21:18 Boulevard [1] - 2:10 Boutrous [1] - 4:5 BOUTROUS [31] 2:17, 4:4, 4:25, 5:19, 5:24, 6:11, 6:16, 8:2, 9:7, 9:19, 10:8, 10:22, 11:1, 12:7, 14:10, 15:9, 15:23, 16:19, 16:25, 17:23, 18:21, 19:8, 19:12, 19:14, 20:24, 21:11, 21:17, 21:22, 22:6, 22:24, 23:10 Box [1] - 3:6 BOX [1] - 1:8 Branca [1] - 3:10 BRANCA [2] - 3:20, 3:23 breach [2] - 9:3, 13:5 breached [1] - 16:14 break [2] - 22:16, 23:14 brief [1] - 13:3 bringing [1] - 9:2 brought [2] - 10:18, 16:6 BRYAN [1] - 2:4 Bryan [1] - 3:8 business [1] - 15:18 BY [4] - 2:4, 2:8, 2:14, 2:17

C CALIFORNIA [5] 1:2, 1:14, 1:24, 3:1, 24:4 California [12] - 2:6, 2:10, 2:15, 2:18, 12:9, 12:16, 14:12, 19:2, 19:4, 19:21, 20:12, 24:8 cannot [1] - 14:9 case [14] - 4:8, 5:3, 9:12, 10:10, 12:10, 12:22, 13:11, 19:1, 19:11, 20:12, 20:13, 21:15, 21:25 Case [1] - 1:7 cases [8] - 4:10, 12:9, 18:25, 19:1,

UNITED STATES DISTRICT COURT SER25

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 29 of 238 2 19:5, 19:19, 19:21, 19:25 castigates [1] - 6:7 causes [1] - 10:6 CCRR [2] - 1:22, 24:20 Central [1] - 24:8 CENTRAL [1] - 1:2 CEO [1] - 6:7 certain [1] - 23:4 certainly [2] - 7:24, 22:5 CERTIFICATE [1] 24:1 certify [1] - 24:8 cetera [1] - 10:21 challenge [1] - 11:13 changed [2] - 3:21, 3:22 changes [2] - 20:6 child [1] - 5:13 chill [3] - 5:12, 6:2, 11:12 choose [2] - 7:22, 7:23 Circuit [5] - 4:21, 4:22, 7:11, 7:25, 21:8 circumstance [1] 21:3 circumstances [1] 19:23 cited [2] - 9:13, 12:9 claim [8] - 8:20, 8:21, 9:15, 10:13, 11:4, 13:2, 13:5, 14:20 claims [1] - 12:12 Clash [1] - 15:21 clear [13] - 7:11, 17:16, 18:18, 18:20, 18:21, 18:24, 19:16, 20:9, 20:14, 20:16, 21:5 clearer [1] - 21:17 clearly [1] - 13:6 close [1] - 4:18 co [1] - 3:11 co-executors [1] 3:11 Code [1] - 24:9 coming [1] - 13:6 comment [1] - 9:11 common [3] - 17:22, 20:20, 20:21 company [1] - 15:19 compel [5] - 6:23, 7:5, 10:5, 10:11, 15:2 complaint [3] - 6:5, 12:11, 14:16 completely [1] - 18:7 conceived [1] - 20:7

concerned [1] - 20:3 concluded [1] 23:15 confer [1] - 23:10 conference [1] 24:13 confidential [1] 11:20 confidentiality [2] 9:3, 16:9 conformance [1] 24:13 connection [2] 13:17, 21:25 consider [2] - 9:16, 17:4 considered [2] 6:24, 7:2 considering [1] 22:22 consistent [2] 14:13, 17:6 constitute [1] - 14:23 contacted [1] - 15:4 contacting [1] 15:12 context [2] - 14:3, 14:4 continue [1] - 21:24 contract [5] - 13:5, 14:20, 16:10, 16:14, 17:20 convincing [1] 18:19 correct [5] - 3:18, 18:19, 19:20, 21:11, 24:10 COUNSEL [1] - 2:1 counsel [3] - 3:10, 4:13, 22:18 Counsel [1] - 2:19 COUNTY [1] - 24:3 couple [4] - 6:20, 16:23, 17:9, 19:1 course [1] - 22:16 Court [40] - 4:21, 4:22, 5:5, 5:25, 7:25, 8:3, 8:8, 8:12, 8:19, 9:12, 9:21, 10:9, 10:11, 11:10, 11:15, 12:16, 12:19, 12:20, 12:22, 13:8, 13:11, 13:12, 13:14, 13:15, 17:4, 17:7, 17:24, 19:4, 19:9, 19:12, 19:15, 19:24, 20:13, 21:9, 23:11, 24:7, 24:20 COURT [41] - 1:1, 1:23, 3:5, 3:12, 3:21,

3:24, 4:3, 4:7, 5:15, 5:21, 6:10, 6:14, 6:22, 8:23, 9:11, 10:2, 10:14, 10:23, 11:18, 13:24, 14:21, 15:17, 16:2, 16:22, 17:9, 17:25, 18:23, 19:11, 19:25, 21:8, 21:12, 21:19, 22:2, 22:8, 22:11, 22:13, 22:18, 22:23, 23:2, 23:12, 23:14 court [14] - 5:6, 5:10, 6:1, 6:2, 8:22, 9:9, 9:10, 10:11, 10:25, 11:3, 13:21, 14:15, 14:24, 15:13 Court's [2] - 7:18, 12:10 courtroom [1] 13:22 courts [1] - 11:7 Courts [4] - 19:22, 20:1, 20:2, 21:14 crack [1] - 20:25 creates [1] - 8:13 criminal [1] - 6:9 criticize [1] - 5:13 CRUTCHER [1] 2:17 CSR [2] - 1:22, 24:20 current [6] - 7:17, 18:5, 18:15, 18:16, 20:5, 20:18 curse [1] - 4:9

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E effect [1] - 12:3 efficient [1] - 23:11 either [3] - 6:14, 6:15, 21:10 Elsea [1] - 3:8 ELSEA [1] - 2:9 Emmy [2] - 6:10, 6:13 Emmy-winning [1] 6:13 encompassed [1] 6:24 end [4] - 3:10, 8:1, 16:2, 22:5 enforce [1] - 9:17 enforceable [1] 9:18

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F FAA [1] - 14:11 fact [9] - 5:4, 5:9, 6:18, 9:14, 10:3, 16:8, 17:5, 19:18, 20:1 favoring [2] - 8:7, 8:14 fear [1] - 13:23 Federal [10] - 8:17, 9:8, 9:9, 14:14, 17:5, 19:22, 20:1, 20:2, 24:6, 24:20 federal [8] - 17:19, 17:21, 19:5, 19:6, 19:7, 19:9, 20:20, 20:21 FEDERAL [1] - 1:23 fees [1] - 13:16 felt [1] - 8:20 few [1] - 4:25 fight [1] - 13:9 file [5] - 5:2, 8:22, 9:8, 13:3, 14:16 filed [5] - 5:9, 5:12, 15:12, 18:5, 18:13 filing [4] - 6:4, 10:4, 11:11, 15:10 filmmaker [1] - 11:9 final [1] - 8:1 finally [1] - 7:23 finish [1] - 14:12 firm [1] - 3:14 first [5] - 5:6, 8:25, 14:16, 15:4, 17:13 FIRST [1] - 1:23 First [1] - 7:16 flip [1] - 16:23 Floor [2] - 2:10, 2:15

UNITED STATES DISTRICT COURT SER26

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 30 of 238 3 focus [1] - 6:18 Footnote [1] - 5:5 FOR [2] - 2:3, 2:12 foray [1] - 4:14 foregoing [1] - 24:10 forgotten [1] - 6:4 format [1] - 24:12 former [1] - 6:7 formulated [1] - 7:14 forward [2] - 9:15, 13:10 foul [1] - 15:8 free [1] - 13:20 Freedman [1] - 3:8 FREEDMAN [3] - 2:4, 2:4, 23:13 front [3] - 16:15, 21:15, 21:20

G gee [1] - 16:23 general [1] - 8:13 generous [1] - 17:2 gentlemen [2] 22:13, 22:18 GEORGE [1] - 1:3 get-go [1] - 15:2 GIBSON [1] - 2:17 gold [1] - 4:9 Grand [1] - 2:18 grant [2] - 13:15, 17:7 grappled [1] - 17:3 grappling [2] - 8:3, 14:11 great [2] - 5:19, 21:24 guess [3] - 4:8, 6:25, 20:25 guys [2] - 10:17, 22:11

H happy [1] - 22:2 hard [1] - 21:5 harm [2] - 15:8, 15:9 HBO [11] - 4:5, 6:7, 11:8, 13:9, 15:4, 15:6, 15:13, 15:17, 15:24, 16:11 HEARING [1] - 1:13 held [1] - 24:11 helpful [1] - 8:2 hereby [1] - 24:8 herring [2] - 5:6, 8:19 Home [1] - 3:6 HOME [1] - 1:8

honest [1] - 6:4 Honor [27] - 4:1, 4:4, 4:25, 5:9, 5:24, 6:5, 6:12, 6:17, 8:9, 8:16, 9:7, 9:20, 11:3, 11:7, 12:8, 14:10, 15:9, 15:24, 16:20, 19:8, 20:24, 21:23, 22:6, 22:9, 22:12, 22:22, 23:13 HONORABLE [1] 1:3 hopefully [1] - 7:10 HOURIGAN [4] 1:22, 24:6, 24:19, 24:20 HOWARD [1] - 2:8 Howard [1] - 3:7 hweitzman@ kwikalaw.com [1] 2:11

I idiot [1] - 3:16 importance [1] 7:18 important [4] - 5:24, 6:18, 12:18, 15:15 improper [1] - 11:11 include [1] - 8:25 including [1] - 19:1 inconsistent [2] 8:14, 8:17 independent [1] 15:25 indicate [2] - 18:1, 20:23 indicated [3] - 12:1, 16:3, 17:13 indicating [1] - 14:2 indication [1] - 15:5 individuals [1] 15:25 inference [1] - 4:15 information [1] 11:20 insofar [4] - 3:18, 5:16, 7:18, 20:2 instead [2] - 13:4, 14:17 intent [3] - 5:15, 19:19, 21:6 interest [2] - 5:20, 5:23 interesting [5] - 4:8, 4:9, 4:10, 7:9, 22:14 interlocutory [2] 22:21, 22:24 interpret [1] - 19:10

interpretation [1] 17:20 inventive [1] - 21:19 invoke [1] - 14:17 ironic [2] - 10:3, 11:18 ISER [1] - 2:7 issue [15] - 5:19, 6:22, 9:5, 10:21, 11:19, 12:11, 15:16, 17:15, 17:20, 18:10, 19:3, 19:5, 20:3, 21:6, 21:22 issues [11] - 4:18, 7:10, 7:21, 8:3, 11:8, 11:25, 12:4, 13:7, 17:3, 21:12, 21:18 itself [1] - 9:2

J Jackson [3] - 3:9, 3:11, 5:14 Jackson's [1] - 5:17 John [1] - 3:10 joined [1] - 4:5 JONATHAN [1] - 2:8 Jonathan [1] - 3:7 JR [1] - 2:17 judge [1] - 7:24 JUDGE [1] - 1:3 judicial [1] - 24:13

K keeping [1] - 21:25 kind [12] - 3:24, 4:10, 7:14, 10:2, 10:23, 11:21, 12:13, 15:8, 15:10, 15:21, 15:24, 16:5 KINSELLA [1] - 2:7 knows [1] - 5:25 KUMP [1] - 2:7

L lady [1] - 22:14 language [2] - 18:24, 20:4 last [1] - 6:20 latest [1] - 17:15 law [17] - 3:13, 3:16, 3:19, 8:10, 8:13, 14:12, 17:19, 17:21, 17:22, 19:3, 19:6, 19:7, 19:9, 20:20, 20:21, 20:23 Law [3] - 2:5, 2:9, 2:14

lawsuit [11] - 5:4, 5:9, 5:10, 10:4, 11:11, 13:18, 15:10, 15:23, 17:1, 18:13 least [1] - 9:23 leave [1] - 21:7 letter [1] - 14:18 life [1] - 5:17 light [1] - 9:25 limits [1] - 13:14 line [1] - 19:19 lines [1] - 12:25 literally [1] - 6:20 litigate [1] - 14:24 litigation [2] - 7:1, 13:22 live [2] - 4:9, 10:21 LLP [4] - 2:4, 2:7, 2:13, 2:17 look [4] - 3:22, 17:4, 17:21, 19:15 looked [1] - 19:19 looking [3] - 16:25, 17:11, 19:4 LOS [4] - 1:14, 1:24, 3:1, 24:3 Los [3] - 2:6, 2:15, 2:18 lose [3] - 16:4, 16:5, 19:11 loses [2] - 4:19, 7:10 lump [1] - 14:9

M manifestation [3] 18:24, 20:4, 20:17 matter [5] - 3:5, 4:19, 5:22, 22:19, 24:12 mean [5] - 3:12, 7:21, 8:25, 16:7, 22:25 means [1] - 7:20 meant [4] - 11:12, 12:13, 13:6, 15:11 mechanism [1] - 6:2 mentioned [2] - 6:6, 6:21 mere [2] - 9:14, 20:17 merits [3] - 8:22, 13:25, 14:24 message [2] - 11:8, 15:23 messy [1] - 10:10 method [1] - 7:3 Michael [3] - 3:9, 3:11, 5:14 might [1] - 16:1 mind [1] - 3:17

minds [1] - 21:20 misuse [1] - 11:7 mixed [2] - 12:13, 13:13 mom [1] - 15:18 Monica [1] - 2:10 month [1] - 22:5 mooted [2] - 10:15, 10:17 morning [1] - 4:4 most [3] - 18:25, 19:25, 20:1 motion [11] - 5:3, 5:7, 6:23, 10:9, 13:11, 13:15, 13:17, 17:6, 17:7, 17:15, 22:25 MOTION [1] - 1:13 move [1] - 13:10 moving [1] - 9:1 MR [39] - 3:7, 3:20, 3:23, 4:1, 4:4, 4:25, 5:19, 5:24, 6:11, 6:16, 8:2, 9:7, 9:19, 10:8, 10:22, 11:1, 12:7, 14:10, 15:9, 15:23, 16:19, 16:25, 17:23, 18:21, 19:8, 19:12, 19:13, 19:14, 20:24, 21:11, 21:17, 21:22, 22:6, 22:9, 22:12, 22:22, 22:24, 23:10, 23:13 must [2] - 6:22, 7:22 MYERS [1] - 2:13

N name [1] - 9:12 necessarily [2] 4:17, 4:23 need [2] - 13:3, 22:3 never [3] - 10:12, 10:23, 21:10 new [1] - 18:3 next [2] - 16:23, 21:14 nice [2] - 15:18, 22:15 Ninth [1] - 21:8 NO [2] - 1:22, 24:20 nobody [1] - 3:16 non [1] - 16:9 non-disparage [1] 16:9 nothing [2] - 21:4 notion [1] - 20:15 novel [1] - 10:9

UNITED STATES DISTRICT COURT SER27

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 31 of 238 4 O O'MELVENY [1] 2:13 obstacles [1] - 8:13 obviously [2] - 9:1, 15:20 OF [6] - 1:2, 1:12, 2:1, 24:1, 24:3, 24:4 Office [1] - 3:6 OFFICE [1] - 1:8 Official [2] - 24:6, 24:20 OFFICIAL [2] - 1:23, 24:1 omnibus [1] - 21:13 once [2] - 22:19, 23:10 one [15] - 3:10, 5:23, 7:6, 7:8, 7:9, 7:21, 7:22, 8:5, 9:13, 12:9, 17:4, 19:3, 20:12, 22:20 ones [1] - 20:7 oOo [1] - 3:3 opportunity [1] - 5:2 opposite [1] - 19:13 OPTIMUM [1] - 1:5 Optimum [2] - 3:5, 3:8 order [3] - 9:8, 11:7, 23:10 otherwise [1] - 19:22

P page [5] - 6:6, 6:21, 12:25, 16:20, 24:12 pages [3] - 6:20, 9:1, 16:24 paragraphs [2] 12:23, 12:24 participation [1] 5:11 particular [2] - 14:3, 14:4 parties [6] - 4:1, 7:3, 20:5, 20:7, 20:11, 21:5 parties' [1] - 19:19 party [6] - 8:16, 9:22, 9:24, 10:11, 14:14, 20:15 path [1] - 13:19 Pause [1] - 22:17 pejorative [1] - 8:24 people [5] - 9:10, 11:9, 13:20, 15:14, 15:22 percent [1] - 14:22

perhaps [2] - 15:4, 20:23 period [1] - 23:4 petition [4] - 6:5, 6:19, 7:5, 9:8 Petrocelli [1] - 4:5 PETROCELLI [4] 2:14, 19:13, 22:9, 22:22 pick [1] - 7:22 piece [1] - 19:24 placed [1] - 16:14 Plaintiff [1] - 1:6 plaintiff [3] - 5:22, 8:18, 14:22 PLAINTIFF [1] - 2:3 plaintiffs [1] - 8:18 play [2] - 12:15, 12:18 players [1] - 15:25 pleading [1] - 12:17 point [11] - 5:7, 6:17, 8:4, 8:6, 9:19, 9:21, 10:19, 11:6, 11:10, 12:5, 12:7 pointed [1] - 8:8 points [5] - 5:1, 8:5, 8:12, 9:22, 14:1 policies [5] - 12:18, 14:11, 14:13, 17:5, 17:6 policy [3] - 7:15, 8:7, 8:14 pop [2] - 7:21, 15:18 pops [1] - 17:12 position [4] - 8:9, 14:13, 15:13, 21:9 positions [1] - 7:16 prayer [1] - 12:24 predicate [1] - 14:8 preempted [1] - 8:15 preemption [4] - 5:8, 8:6, 12:1, 12:2 preemptive [1] - 12:3 PRESENT [1] - 2:19 preset [1] - 7:19 press [1] - 11:17 presume [4] - 22:19, 22:20, 23:4, 23:5 pretty [1] - 22:3 prevent [1] - 15:11 previous [1] - 4:12 primary [1] - 5:15 privilege [1] - 13:23 problem [5] - 4:17, 7:13, 11:22, 12:5, 14:6 procedure [1] 13:12

proceedings [3] 22:17, 23:15, 24:11 process [1] - 23:11 processes [1] 14:17 producers [1] 15:25 PRODUCTIONS [1] 1:5 Productions [1] - 3:6 proper [1] - 13:18 proposal [1] - 12:7 prosecutor [1] - 6:8 protected [4] 12:12, 12:19, 13:1, 13:13 provision [8] - 9:6, 9:17, 16:9, 16:13, 18:10, 18:13, 20:8 provisions [2] - 7:19, 9:18 public [9] - 5:10, 5:19, 5:22, 7:15, 11:5, 11:14, 11:19, 15:15, 16:4 published [1] - 20:13 punitive [1] - 13:4 purpose [5] - 5:25, 6:1, 10:13, 16:25, 20:19 purposes [1] - 11:11 pursuant [1] - 24:9 put [4] - 7:23, 11:16, 15:17, 16:7

Q questions [2] 17:10, 21:14 quickly [1] - 4:24

R rather [1] - 19:4 reach [1] - 7:9 reading [1] - 16:22 really [11] - 5:7, 6:5, 6:20, 7:5, 7:23, 10:8, 10:10, 12:4, 17:2, 17:13, 19:23 Realtime [1] - 24:6 reason [2] - 15:12, 15:15 recognize [2] - 8:7, 9:5 red [3] - 5:6, 8:19, 9:25 regard [2] - 8:24, 17:22 regards [1] - 17:15

regulations [1] 24:13 release [2] - 11:17, 11:20 relevant [1] - 13:1 remember [2] - 9:12, 19:17 reminding [1] - 6:16 reported [1] - 24:11 REPORTER [2] 1:23, 24:1 Reporter [2] - 24:7, 24:20 REPORTER'S [1] 1:12 request [3] - 11:24, 12:22, 13:14 resolution [1] - 7:20 resolve [2] - 7:3, 7:11 respectfully [1] 13:15 rights [1] - 7:17 ROOM [1] - 1:23 rule [4] - 18:23, 20:5, 20:10, 21:18 Rule [5] - 18:2, 18:16, 18:24, 20:3, 20:8 rules [7] - 18:3, 18:5, 18:6, 18:17, 19:18, 20:18, 21:4 ruling [2] - 8:1, 20:24 Rumpelstiltskin [1] 21:21 running [1] - 8:21

S Santa [1] - 2:10 scheduling [2] 23:3, 23:9 scope [1] - 6:25 screams [1] - 5:10 second [1] - 17:14 Section [1] - 24:9 see [3] - 15:4, 21:9, 22:15 seeking [2] - 10:4, 13:21 seem [2] - 16:16, 17:20 send [1] - 11:7 sending [2] - 14:18 sense [1] - 19:16 sent [1] - 15:23 SEPTEMBER [2] 1:13, 3:1 September [3] 23:7, 23:8, 24:16

sex [1] - 5:13 shot [2] - 13:21, 21:2 shows [1] - 3:18 side [4] - 4:19, 6:14, 6:15, 22:20 sides [1] - 18:4 significant [1] - 13:9 situation [1] - 14:22 SLAPP [21] - 4:14, 5:2, 6:1, 6:25, 7:1, 7:4, 7:16, 11:12, 11:23, 12:6, 12:14, 12:17, 12:21, 14:1, 14:3, 14:4, 15:11, 17:6, 22:1 small [2] - 15:22, 15:25 Sneddon [1] - 6:8 someone [2] - 8:1, 13:9 somewhat [2] - 8:23, 11:18 sorry [1] - 18:16 sort [4] - 12:2, 14:23, 16:12, 20:17 sorting [1] - 21:12 South [1] - 2:18 speaks [1] - 13:7 specifically [1] 8:10 speech [4] - 5:12, 6:3, 11:12, 13:4 spinning [1] - 21:20 Stars [2] - 2:5, 2:15 starts [1] - 16:20 STATE [1] - 24:4 state [8] - 5:6, 8:13, 17:19, 17:21, 19:3, 19:5, 19:7, 20:23 States [3] - 24:7, 24:9, 24:14 STATES [1] - 1:1 statute [8] - 7:1, 11:12, 12:14, 12:17, 12:21, 15:11, 17:6, 22:1 Steinsapir [1] - 3:7 STEINSAPIR [1] 2:8 stenographically [1] - 24:11 Stephanie [2] - 2:19, 4:5 still [4] - 3:25, 6:22, 9:16, 17:10 stop [1] - 6:1 Stop [1] - 10:14 story [1] - 16:21 strategic [1] - 5:10 straw [1] - 21:21

UNITED STATES DISTRICT COURT SER28

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 32 of 238 5 STREET [1] - 1:23 strike [4] - 12:22, 13:12, 17:15 strong [1] - 8:7 stuff [5] - 4:21, 4:22, 16:8, 17:11, 18:2 stupid [3] - 3:24, 3:25, 16:5 submit [1] - 4:2 sue [1] - 15:14 sufficient [5] - 20:4, 20:9, 20:18, 20:22 suggestion [1] - 4:15 suit [1] - 6:4 Suite [1] - 2:5 summer [1] - 3:13 suppose [1] - 7:1 supposed [4] - 9:14, 9:16, 17:21, 20:16 Supreme [9] - 7:18, 7:25, 8:12, 9:12, 9:21, 12:9, 12:16, 19:9, 21:9 system [2] - 6:2

T table [1] - 3:10 TAITELMAN [1] - 2:4 talks [1] - 8:12 targets [1] - 8:10 technical [1] - 12:2 tentative [6] - 4:2, 5:5, 11:11, 17:13, 17:14, 19:17 tentatives [1] - 4:12 terminology [1] 18:19 terms [4] - 9:17, 19:16, 23:9 TERRI [4] - 1:22, 24:6, 24:19, 24:20 THE [41] - 2:3, 2:12, 3:5, 3:12, 3:21, 3:24, 4:3, 4:7, 5:15, 5:21, 6:10, 6:14, 6:22, 8:23, 9:11, 10:2, 10:14, 10:23, 11:18, 13:24, 14:21, 15:17, 16:2, 16:22, 17:9, 17:25, 18:23, 19:11, 19:25, 21:8, 21:12, 21:19, 22:2, 22:8, 22:11, 22:13, 22:18, 22:23, 23:2, 23:12, 23:14 THEODORE [1] 2:17 theodore [1] - 4:4 therefore [6] - 7:4, 10:21, 15:8, 18:4,

18:8, 20:6 thinks [2] - 9:22, 14:15 THURSDAY [2] 1:13, 3:1 tired [1] - 16:22 Titans [1] - 15:21 Title [1] - 24:9 today [1] - 11:2 together [1] - 3:13 Tom [1] - 6:8 tomorrow [2] - 23:6, 23:8 traditional [1] - 6:19 TRANSCRIPT [1] 1:12 transcript [2] 24:10, 24:12 trial [1] - 7:24 Triple [2] - 14:19, 18:13 troublesome [1] 16:17 true [2] - 5:20, 24:10 TRUMAN [1] - 2:9 try [1] - 22:4 turns [1] - 15:6 two [1] - 8:5 type [1] - 14:8

U U.S [1] - 1:3 unambiguous [6] 17:16, 18:21, 18:25, 20:9, 20:14, 20:17 under [8] - 8:20, 9:7, 9:23, 12:22, 13:11, 14:19, 17:19, 22:1 underlying [1] - 6:8 unique [2] - 10:9, 21:3 United [3] - 24:7, 24:9, 24:14 UNITED [1] - 1:1 unless [1] - 11:23 unmistakable [3] 18:22, 19:16, 21:6 unprotected [3] 12:12, 12:14, 12:20 up [7] - 4:18, 7:6, 7:21, 15:14, 17:12, 18:2, 23:11 urge [1] - 17:4

version [2] - 18:15, 18:16 versus [1] - 3:6 view [2] - 7:18, 19:13 virtually [1] - 20:1 vs [1] - 1:7

W waived [2] - 10:5, 10:6 waiver [1] - 14:23 wants [2] - 7:22, 14:14 wealthy [1] - 15:20 weighing [1] - 11:25 weird [2] - 11:21, 16:11 Weitzman [1] - 3:7 WEITZMAN [5] - 2:7, 2:8, 3:7, 4:1, 22:12 WEST [1] - 1:23 WESTERN [1] - 1:2 wheel [1] - 21:21 whereas [1] - 7:1 whole [2] - 5:7, 10:12 willing [3] - 10:20, 12:21, 15:5 Wilshire [1] - 2:10 win [2] - 6:10, 16:4 winning [1] - 6:13 wins [1] - 4:19 wish [1] - 22:1 words [4] - 17:25, 18:3, 18:18, 18:23 works [1] - 3:19 world [3] - 5:12, 11:8, 15:14 worthwhile [1] - 14:7 WU [1] - 1:3

Y younger [2] - 3:12, 3:13

Z ZACHARY [1] - 2:9 Zack [1] - 3:8

V various [3] - 7:15, 11:25, 14:11 vehicle [1] - 21:13

UNITED STATES DISTRICT COURT SER29

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1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) [email protected] 2 Jonathan P. Steinsapir (SBN 226281) [email protected] 3 Zachary T. Elsea (SBN 279252) [email protected] 4 808 Wilshire Boulevard, 3rd Floor 5 Santa Monica, California 90401 Telephone: 310.566.9800 6 Facsimile: 310.566.9850

808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

7 FREEDMAN + TAITELMAN LLP Bryan J. Freedman (SBN 151990) 8 [email protected] 1901 Avenue of the Stars, Suite 500 9 Los Angeles, California 90067 Telephone: 310.201.0005 10 Facsimile: 310.201.0045 11 Attorneys for Petitioners/Plaintiffs Optimum Productions and for the Co12 Executors of the Estate of Michael J. Jackson 13 14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16 17 OPTIMUM PRODUCTIONS, a California corporation; and JOHN 18 BRANCA and JOHN MCCLAIN, in the respective capacities as CO19 EXECUTORS OF THE ESTATE OF MICHAEL J. JACKSON, 20 Petitioners, 21 vs. 22 HOME BOX OFFICE, a Division of 23 TIME WARNER ENTERTAINMENT, L.P., a Delaware Limited Partnership, 24 and HOME BOX OFFICE, INC., a Delaware corporation, and DOES 1 25 through 5, business entities unknown, and DOES 6 through 10, individuals 26 unknown, 27

Case No. 2:19-cv-01862 GW(PJWx) THE JACKSON ESTATE’S OPPOSITION TO HBO’s ANTISLAPP MOTION AND FURTHER REQUEST TO COMPEL ARBITRATION FORTHWITH Filed Concurrently With Request for Judicial Notice and Declarations of Howard Weitzman and Jonathan Noyes Judge: Hon. George H. Wu Date: September 19, 2019 Time: 8:30 a.m. Ctrm: 9D

Respondents.

28 THE JACKSON ESTATE'S OPPOSITION TO HBO'S ANTI-SLAPP MOTION

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TABLE OF CONTENTS

1

Page

2 3 I. 

INTRODUCTION ............................................................................................. 1 

4 II. 

THE ANTI-SLAPP STATUTE DOES NOT APPLY HERE .......................... 3 

5

A. 

Plaintiffs’ Petition Is Governed by the Federal Arbitration Act; and the California Anti-SLAPP Statute Is Inapplicable in Federal Court to Claims Based on Federal Law .................................................. 3 

B. 

The FAA Preempts the Anti-SLAPP Statute in Cases Seeking an Order to Compel Arbitration Under the FAA ......................................... 6 

C. 

Even Setting Aside the FAA, California Law Provides that the Anti-SLAPP Statute Does Not Apply to Petitions To Compel Arbitration ............................................................................................. 10 

6 7

9 10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

8

III. 

11

HBO’S MOTION FAILS ON THE “MERITS” ............................................. 12  A. 

HBO’s Refusal To Submit To Arbitration Is Not A Constitutionally Protected Activity....................................................... 12 

B. 

The Jackson Estate Is Likely To Prevail On Its Motion To Compel Arbitration ............................................................................... 18 

12 13 14

IV. 

CONCLUSION ............................................................................................... 20 

15 16 17 18 19 20 21 22 23 24 25 26 27 28 i

THE JACKSON ESTATE'S OPPOSITION TO HBO'S ANTI-SLAPP MOTION

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TABLE OF AUTHORITIES

1

Page

2 3 4 5

FEDERAL CASES  AT& T Technologies, Inc. v. Communications Workers 475 U.S. 643 (1986) ........................................................................................ 10

808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

6 AT&T Mobility LLC v. Concepcion 563 U.S. 333 (2011) ................................................................................ 2, 8, 15 7 AT&T Techs., Inc. v. Commc’ns Workers of Am. 475 U.S. 643 (1986) ........................................................................................ 18 8 9 Batzel v. Smith 333 F.3d 1018 (9th Cir. 2003) ........................................................................... 7 10 Buckeye Check Cashing, Inc. v. Cardegna 546 U.S. 440 (2006) ............................................................................... 7, 8, 13 11 12 Bulletin Displays, LLC v. Regency Outdoor Advertising 448 F.Supp.2d 1172 (C.D. Cal. 2006)........................................................... 5, 6 13 Carbone v. Cable News Network, Inc. 910 F.3d 1345 (11th Cir. 2018) ......................................................................... 5 14 15 Chiron Corp. v. Ortho Diagnostic Sys., Inc. 207 F.3d 1126 (9th Cir. 2000) ......................................................................... 14 16 Cox v. Ocean View Hotel Corp. 533 F.3d 1114 (9th Cir. 2008) ....................................................................... 1, 3 17 18 CPR for Skid Row v. City of Los Angeles 779 F.3d 1098 (9th Cir.2015) ...................................................................... 2, 12 19 Daugherty v. Experian Info. Solutions, Inc. 847 F. Supp. 2d 1189 (N.D. Cal. 2012) .......................................................... 14 20 21 Dean Witter Reynolds, Inc. v. Byrd 470 U.S. 213 (1985) .................................................................................. 1, 4, 9 22 Doctor’s Assocs., Inc. v. Casarotto 517 U.S. 681 (1996) .......................................................................................... 7 23 24 Doe v. Gangland Prods., Inc. 730 F.3d 946 (9th Cir. 2013) ......................................................................... 1, 5 25 eDrop-Off Chicago LLC v. Burke No. CV 12-4095 GW, 2013 WL 12131186 (C.D. Cal. Aug. 9, 2013) ........... 17 26 27 Globetrotter Software, Inc. v. Elan Computer Grp., Inc. 63 F.Supp.2d 1127 (N.D. Cal. 1999) ................................................................ 5 28 ii

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1 Hilton v. Hallmark Cards 599 F.3d 894 (9th Cir. 2010) ..................................................................... 4, 5, 6 2 Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) .......................................................................................... 17 3 4 In re Bah 321 B.R. 41 (B.A.P. 9th Cir. 2005) ................................................................... 5 5 Macias v. Excel Bldg. Servs. LLC 767 F.Supp.2d 1002 (N.D. Cal. 2011) ............................................................ 14 6

808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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7 Makaeff v. Trump University, LLC 736 F.3d 1180 (9th Cir.2013) ............................................................................ 5 8 Necchi S.p.A. v. Necchi Sewing Mach. Sales Corp. 348 F.2d 693 (2d Cir. 1965) .............................................................................. 3 9 10 Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd. 711 F.3d 1136 (9th Cir. 2013) ........................................................................... 9 11 Perry v. Thomas 482 U.S. 483 (1987) ................................................................................. passim 12 13 Planned Parenthood v. Center for Medical Progress 735 Fed. Appx. 241 (9th Cir. 2018) .................................................................. 5 14 Preston v. Ferrer 552 U.S. 346 (2008) .............................................................................. 1, 2, 7, 8 15 16 Rhodes v. Turner No. CV 17-3632-GW, 2018 WL 6016165 (C.D. Cal. 2018) ............................ 5 17 Roberts v. AT&T Mobility LLC 877 F.3d 833 (9th Cir. 2017) ........................................................................... 15 18 19 Southland Corp. v. Keating 465 U.S. 1 (1984) .............................................................................................. 8 20 Travelers Cas. Ins. Co. of Am. v. Hirsh 831 F.3d 1179 (9th Cir. 2016) ........................................................................... 5 21 22 United States v. Rodriguez 100 F.Supp.3d 905 (C.D. Cal. 2015)................................................................. 2 23 Verizon Delaware, Inc. v. Covad Commc'ns Co. 377 F.3d 1081 (9th Cir. 2004) ......................................................................... 17 24 25 26 STATE CASES  27 A.F. Brown Elec. Contractor, Inc. v. Rhino Elec. Supply, Inc. 137 Cal.App.4th 1118 (2006) .......................................................................... 17 28 iii

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1 Century 21 Chamberlain & Assocs. v. Haberman 173 Cal.App.4th 1 (2009) ......................................................................... passim 2 City of Cotati v. Cashman 29 Cal. 4th 69 (2002) ....................................................................................... 12 3 4 Sahlolbei v. Montgomery No. E047099, 2010 WL 197298 (Cal. Ct. App. Jan. 21, 2010) ............... passim 5 Sheppard v. Lightpost Museum Fund 146 Cal. App. 4th 315 (2006) .......................................................................... 11 6

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7 Spear v. California State Auto. Assn. 2 Cal. 4th 1035, 1040 (1992)........................................................................... 12 8 Thomas v. Quintero 126 Cal. App. 4th 635 (2005) .......................................................................... 13 9 10 Wagner Constr. Co. v. Pac. Mech. Corp. 41 Cal.4th 19 (2007) .......................................................................................... 3 11 12 13 14 15 16

STATUTES  9 U.S.C. § 1 .............................................................................................................. 1, 4 9 U.S.C. § 2 .......................................................................................................... 4, 6, 9 Cal. Code Civ. Proc. § 425.16 ..................................................................................... 7 Cal. Lab. Code §1700 .............................................................................................. 1, 7

17 18 19 20 21 22 23

RULES  Fed. R. Civ. P. 12 ......................................................................................................... 5 Fed. R. Civ. P. 15 ......................................................................................................... 5 Fed. R. Civ. P. 26 ......................................................................................................... 5 Fed. R. Civ. P. 56 ......................................................................................................... 5 Fed. R. Civ. P. 8 ........................................................................................................... 5

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1 I.

INTRODUCTION

2

HBO’s anti-SLAPP motion is without merit. First, the only relief sought in

3 this Court is an order compelling arbitration. The only “claim for relief” is therefore 4 a request for specific performance of the parties’ arbitration agreement. Cox v. 5 Ocean View Hotel Corp., 533 F.3d 1114, 1125 (9th Cir. 2008). Whether Petitioners 6 are entitled to that relief turns exclusively on an issue of federal law under the 7 Federal Arbitration Act (“FAA”). 9 U.S.C. §§ 1, et. seq.; Dkt. 40, pp. 2-10 of 10. 1

9 federal law. Doe v. Gangland Prods., Inc., 730 F.3d 946, 955 n.3 (9th Cir. 2013). 10 That should be the beginning and end of the analysis here. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 California’s anti-SLAPP statute does not apply in federal court to claims based on

11

Second, even if the Ninth Circuit had not already held that anti-SLAPP

12 motions are inapplicable to claims based on federal law, decades of Supreme Court 13 precedent also makes clear that California cannot create “procedural or substantive” 14 obstacles to enforcement of arbitration agreements governed by the FAA. See, e.g., 15 Preston v. Ferrer, 552 U.S. 346, 354-56 (2008) (California law providing that Labor 16 Commissioner must first exercise her “exclusive jurisdiction” to determine whether 17 a contract is invalid under the California Talent Agencies Act, Cal. Lab. Code 18 §§ 1700, et seq., before a claim arising under such a contract can be arbitrated is 19 void as preempted by the FAA). As this Court explained in connection with the 20 motion to compel arbitration, “[b]y its terms, the [FAA] leaves no room for the 21 exercise of discretion by a district court, but instead mandates that district courts 22 shall direct the parties to proceed to arbitration on issues as to which an arbitration 23 agreement has been signed.” Dkt. 40, pp. 2-3 of 10, quoting Dean Witter Reynolds, 24 25

1

We use the same naming convention as in the motion to compel arbitration: “HBO” refers to Respondent/Defendant Home Box Office, Inc.; “the Jackson 26 Estate” refers collectively to Petitioners/Plaintiffs Optimum Productions and the CoExecutors of the Estate of Michael J. Jackson; and “the Agreement” refers to the 27 1992 agreement at issue, Steinsapir Decl., Ex. B (Dkt. 18, pp. 25-40 of 42). 28 1

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1 Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in original). A state statute cannot 2 withdraw this “mandate” of federal law. 3

Third, even setting aside federal preemption issues, California law itself is

4 clear that that “a demand commencing private contractual arbitration does not ‘fit[ ]’ 5 any of the four anti-SLAPP categories” and, thus, does not give rise to an anti6 SLAPP motion. Century 21 Chamberlain & Assocs. v. Haberman, 173 Cal.App.4th 7 1, 8 (2009). Parties have a “right to a judicial determination on arbitrability” and

9 arbitration.” Id. at 10. In other words, there is “no authority [for] applying the anti10 SLAPP statute to a petition to compel arbitration.” Sahlolbei v. Montgomery, No. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 courts cannot “strike their means for obtaining that determination before

11 E047099, 2010 WL 197298, at *2 (Cal. Ct. App. Jan. 21, 2010).2 12

HBO cannot be surprised that these issues are front-and-center in this brief.

13 At the July 15, 2019 hearing, the Court and counsel for Petitioners engaged in a 14 detailed discussion of whether an anti-SLAPP motion could be applied to petitions 15 governed by the FAA. Dkt. 46-2, Ex. B (Tr. of July 15 Hearing), pp. 70-80 of 88. 16 Even though the issue had not even been briefed, Petitioners’ counsel cited specific 17 authority from the Supreme Court that the FAA preempts California public policy 18 that stands in its way. Id., pp. 71, 74-75 of 88 (discussing AT&T v. Concepcion 19 discussed below at § II.B). At the hearing, HBO’s only “response” to this discussion 20 was that it would “save [its] response to that for an anti-SLAPP motion.” Id., p. 80 21 of 88. HBO then ignored the issue altogether in its motion. 22

Finally, even if the Court were to reach the “merits” of HBO’s motion, such

23 as they are, the Court would still be required to deny the motion. The only relief 24 25

2

As HBO implicitly recognized in its brief opposing the motion to compel arbitration, Dkt. 22, p. 17 of 28, ll. 17-21, “unpublished opinions of the California 26 Court of Appeal may be considered [by federal courts] as persuasive authority.” United States v. Rodriguez, 100 F.Supp.3d 905, 922 n. 12 (C.D. Cal. 2015), citing 27 CPR for Skid Row v. City of Los Angeles, 779 F.3d 1098, 1117 (9th Cir.2015). 28 2

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1 requested from this Court is an order to compel arbitration. “Therefore, [the Jackson 2 Estate’s only] ‘cause of action’ is the demand for arbitration.” Sahlolbei, 2010 WL 3 197298, at *4. That cause of action arises out of HBO’s refusal to arbitrate. 4 Breaching an agreement by refusing to arbitrate is not constitutionally protected 5 activity. Century 21, 173 Cal.App.4th at 8. And even if it were, the Jackson Estate 6 has shown a probability of success on that claim, as the Court explained in detail in 7 its tentative order (where it definitively rejected all of HBO’s arguments against

9

If the Jackson Estate’s claims to be arbitrated are as frivolous as HBO would

10 have the Court believe, it should have no reason for concern. Petitioners respectfully 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 arbitration). Dkt. 40, pp. 2-9 of 10.

11 request that HBO’s anti-SLAPP motion be denied, and that this Court’s tentative 12 ruling respecting the motion to compel arbitration be made final and that arbitration 13 be compelled forthwith. 14 II.

THE ANTI-SLAPP STATUTE DOES NOT APPLY HERE

15

A.

Plaintiffs’ Petition Is Governed by the Federal Arbitration Act;

16

and the California Anti-SLAPP Statute Is Inapplicable in Federal

17

Court to Claims Based on Federal Law

18

“An action to compel arbitration is in essence a suit in equity to compel

19 specific performance of a contract.” Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 20 1125 (9th Cir. 2008), quoting Wagner Constr. Co. v. Pac. Mech. Corp., 41 Cal.4th 21 19, 29 (2007). See also Necchi S.p.A. v. Necchi Sewing Mach. Sales Corp., 348 F.2d 22 693, 696 (2d Cir. 1965) (T. Marshall, J.) (“An order under the Federal Arbitration 23 Act compelling a party to arbitrate is simply an order granting specific performance 24 of an arbitration provision”). 25

Whether to grant specific performance of the arbitration agreement here—the

26 only relief sought in this Court—depends on a question of federal law: whether the 27 parties’ dispute is arbitrable under the Federal Arbitration Act (“FAA”). See, e.g., 28 Dkt. 18, p. 2 of 42 (moving to compel arbitration “pursuant to the Federal 3

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1 Arbitration Act, 9 U.S.C. § 1, et seq.”). See also Request for Judicial Notice 2 (“RJN”), Ex. A, pp. 4:23-24, 5:4-13 (relying on the FAA as authority for requested 3 order to compel arbitration in state court motion filed the day before this case was 4 removed to this Court). 3 5

“Section 2 [of the FAA] is a congressional declaration of a liberal federal

6 policy favoring arbitration agreements, notwithstanding any state substantive or 7 procedural policies to the contrary. The effect of the section is to create a body of

9 within the coverage of the Act.” Perry v. Thomas, 482 U.S. 483, 489 (1987) 10 (emphasis added). If the dispute falls within the scope of a valid arbitration 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 federal substantive law of arbitrability, applicable to any arbitration agreement

11 agreement—as this Court has already (tentatively) held, see Dkt. 40, pp. 4-5 of 10— 12 the federal substantive law of arbitrability “leaves no room for the exercise of 13 discretion by a district court, but instead mandates that district courts shall direct the 14 parties to proceed to arbitration on issues as to which an arbitration agreement has 15 been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) 16 (emphasis in original). 17

Because the claim here rests on federal law, the anti-SLAPP statute is

18 inapplicable. A “federal court can only entertain anti-SLAPP special motions to 19 strike in connection with state law claims.” Hilton v. Hallmark Cards, 599 F.3d 894, 20 901 (9th Cir. 2010). As noted above, the only relief to which the Jackson Estate 21 asserts a claim is an order compelling arbitration. That claim for relief is based on 22 23 24 25 26 27

3

The arbitration agreement here is part of “a contract evidencing a transaction involving commerce,” 9 U.S.C. § 2, and is thus within the scope of the FAA. The contract is between a California corporation (TTC Touring, which has since been merged into Petitioner Optimum Productions, see Dkt. 18, p. 12 of 42 ¶ 7) and a New York company (HBO) relating to the first United States television broadcast of a Michael Jackson concert, which took place in Bucharest, Hungary. This fits easily within “the pre-emptive effect of the Federal Arbitration Act, a statute that embodies Congress’ intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause.” Perry, 482 U.S. at 491.

28 4

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1 the FAA, a federal statute. 2

The Ninth Circuit has repeatedly held that California’s anti-SLAPP statute

3 does not apply to claims based on federal law. See, e.g., Doe v. Gangland Prods., 4 Inc., 730 F.3d 946, 955 n.3 (9th Cir. 2013) (“the anti-SLAPP statute does not apply 5 to federal law causes of action”), quoting Hilton, 599 F.3d at 901; Planned 6 Parenthood v. Center for Medical Progress, 735 Fed. Appx. 241, 247 (9th Cir. 7 2018) (“We stress that a defendant cannot use an anti-SLAPP motion to strike

9 WL 6016165, at *1 (C.D. Cal. 2018) (Wu, J.) (“[A]n anti-SLAPP motion does not 10 lie against a federal cause of action in federal court.”); Globetrotter Software, Inc. v. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 federal causes of action.”). See also Rhodes v. Turner, No. CV 17-3632-GW, 2018

11 Elan Computer Grp., Inc., 63 F.Supp.2d 1127, 1130 (N.D. Cal. 1999) (“the anti12 SLAPP statute is not applicable to the federal claims asserted”); In re Bah, 321 B.R. 13 41, 46 (B.A.P. 9th Cir. 2005) (“the anti-SLAPP statute may not be applied to 14 matters involving federal questions”). 4 15

As the district court explained in Bulletin Displays, LLC v. Regency Outdoor

16 Advertising, 448 F.Supp.2d 1172 (C.D. Cal. 2006)—the case that the Ninth Circuit 17 4

As explained by several Judges on the Ninth Circuit and other federal courts, 18 “an anti-SLAPP motion has no proper place in federal court” regardless of whether the claims are based on state or federal law. Travelers Cas. Ins. Co. of Am. v. Hirsh, 19 831 F.3d 1179, 1186 (9th Cir. 2016) (Gould, J., concurring) (expressing regret for joining the Ninth Circuit’s opinion in Batzel v. Smith). See also Carbone v. Cable 20 News Network, Inc., 910 F.3d 1345, 1356 (11th Cir. 2018) (discussing entrenched circuit split on issue); Makaeff v. Trump University, LLC, 736 F.3d 1180, 1188 (9th 21 Cir.2013) (Watford, J., dissenting from denial of rehearing en banc) (explaining why Ninth Circuit was wrong to conclude that anti-SLAPP statute applied at all in 22 federal court). As anyone who has litigated anti-SLAPP motions in both the state and federal courts can advise, the Ninth Circuit’s attempts to harmonize the anti23 SLAPP statute with conflicting provisions of Federal Rules of Civil Procedure 8, 12, 15, 26, 56, etc., have resulted in a haphazard process that has little in common with 24 the orderly anti-SLAPP procedure in state court designed by the California Legislature as a set of rules for state trial courts (consistent with the California Rules 25 of Court, the California Code of Civil Procedure, and other applicable California procedure). That said, the Ninth Circuit’s mistakes can only be rectified by an en 26 banc panel of that Court, or by the Supreme Court, so we will not further dwell on the point. We raise the issue only to preserve it for any proceedings down the road 27 (in the unlikely event that the issue would ever need to be reached). 28 5

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1 relied upon in Hilton, 599 F.3d at 901—application of the anti-SLAPP statute to 2 claims based on federal law in federal court “would frustrate substantive federal 3 rights.” Bulletin Displays, 448 F.Supp.2d at 1180. “While the anti-SLAPP statute 4 furthers ‘important, substantive state interests,’ California has no interest in dictating 5 rules of procedure or substance applicable to federal claims brought in federal 6 court.” Id. at 1182 (internal citations omitted). 7

For this reason alone, HBO’s anti-SLAPP motion must be denied. Instead, the

9 already explained in its tentative ruling. Dkt. 40. 10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 motion to compel arbitration should be granted for the reasons this Court has

11 12

B.

The FAA Preempts the Anti-SLAPP Statute in Cases Seeking an Order to Compel Arbitration Under the FAA

Even if the Ninth Circuit had not already held that the anti-SLAPP statute is

13 inapplicable to claims based on federal law, this California statute could not apply to 14 a petition to compel arbitration governed by the FAA. Extensive case law from the 15 United States Supreme Court makes clear that California, and other States, cannot 16 create “substantive or procedural” obstacles to enforcing arbitration agreements 17 governed by the FAA. Perry, 482 U.S. at 489. 18

The FAA is a duly-enacted federal law. It is therefore “the supreme law of the

19 land” notwithstanding “anything in the Constitution or laws of any State to the 20 contrary.” U.S. Const., art. vi, cl. 2. Section 2 of the FAA is unambiguous. “A 21 written provision in any … contract evidencing a transaction involving commerce to 22 settle by arbitration a controversy thereafter arising out of such contract or 23 transaction … shall be valid, irrevocable, and enforceable, save upon such grounds 24 as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. 25

Thus, the only role that State law may play in an analysis under the FAA is in

26 providing “grounds … at law or in equity for the revocation of any contract,” such 27 as duress, fraud, or unconscionability. 9 U.S.C. § 2. Moreover, any revocation 28 defense to arbitration grounded in State law must be specific to revocation of the 6

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1 arbitration provision alone, rather than the contract as a whole. See Buckeye Check 2 Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006) (“as a matter of substantive 3 federal arbitration law, an arbitration provision is severable from the remainder of 4 the contract” and “unless the challenge is to the arbitration clause itself, the issue of 5 the contract’s validity is considered by the arbitrator in the first instance”). 6

The anti-SLAPP statute does not fit within this narrow role for California law

7 under the FAA. The anti-SLAPP statute does not render any contracts revocable,

9 unconscionability.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996). 10 Instead, the plain language of the anti-SLAPP statute creates a procedure for striking 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 unlike “generally applicable contract defenses, such as fraud, duress, or

11 certain “causes of action” filed in courts. See generally Cal. Code Civ. Proc. 12 § 425.16. As the Ninth Circuit has explained, the anti-SLAPP statute creates a 13 qualified, “substantive immunity from suit” for certain claims arising out of 14 petitioning and related activities within the scope of the statute. Batzel v. Smith, 333 15 F.3d 1018, 1025-26 (9th Cir. 2003). 16

The FAA leaves no room for States to interpose substantive or procedural

17 obstacles to the enforcement of a valid arbitration agreement. The Supreme Court 18 has accordingly held, time-and-again, that California and other States’ laws—both 19 statutes and judge-made common law—that purport to render certain types of causes 20 of action unsuitable for arbitration are void as preempted by the FAA. See, e.g., 21 Preston, 552 U.S. at 354-56 (California law providing that Labor Commissioner 22 must first exercise “exclusive jurisdiction” to determine whether a contract is invalid 23 under the California Talent Agencies Act, Cal. Lab. Code §§ 1700, et seq., before a 24 claim arising under such a contract can be arbitrated is void as preempted by the 25 FAA); Buckeye, 551 U.S. at 443, 449 (Florida rule purporting to give courts 26 authority to decline to order arbitration of claims arising under a contract that the 27 court deems “criminal on its face” is void as preempted by the FAA); Perry, 482 28 U.S. at 491 (California law providing that claims for unpaid wages cannot be 7

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1 arbitrated, but must be litigated in a “judicial forum,” is void as preempted by the 2 FAA); Southland Corp. v. Keating, 465 U.S. 1, 10-11, 16 (1984) (California law 3 requiring that claims arising under the California Franchise Investment Law cannot 4 be arbitrated is void as preempted by the FAA). See also AT&T Mobility LLC v. 5 Concepcion, 563 U.S. 333, 344-46 (2011) (California rule that contracts requiring 6 claims to be arbitrated individually, and not on a class basis, are unenforceable is 7 void as preempted by the FAA). Just as California cannot mandate that a Labor Commissioner must first

9 affirm the validity of a contract raising issues under California’s Talent Agencies 10 Act before an arbitration is ordered in a case governed by the FAA, Preston, 552 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8

11 U.S. at 356, California cannot mandate that a court must first affirm that a claim 12 does not implicate anti-SLAPP concerns before an arbitration is ordered in a case 13 governed by the FAA. Or, stated differently, California law cannot purport to 14 authorize a court, much less a federal court, to refuse to order arbitration under the 15 FAA of a claim because it raises anti-SLAPP concerns any more than Florida law 16 can permit courts to refuse to order arbitration of a claim because a judge finds that 17 a consumer contract with an arbitration clause may be “criminal on its face.” 18 Buckeye, 551 U.S. at 443, 449. 19

Here, the parties agreed to arbitrate “[a]ny dispute arising out of, in

20 connection with or relating to” the parties’ Agreement. Dkt. 18, pp. 33-34 of 42. 21 “When parties agree to arbitrate all questions arising under a contract, the FAA 22 supersedes state laws lodging primary jurisdiction in another forum, whether 23 judicial or administrative.” Preston, 552 U.S. at 359. The FAA does not permit 24 California or any other State to create “substantive or procedural policies to the 25 contrary.” Perry, 482 U.S. at 489. Thus, any First Amendment challenges to the 26 parties’ contract as a whole, and the underlying claims to be arbitrated, must be 27 adjudicated by the arbitrator and not by a Court. Buckeye, 551 U.S. at 445-46. The 28 federal courts “have never recognized that an immunity from suit was necessary to 8

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1 prevent an unacceptable chill of … First Amendment rights.” Nunag-Tanedo v. E. 2 Baton Rouge Par. Sch. Bd., 711 F.3d 1136, 1141 (9th Cir. 2013) (emphasis original 3 but ellipses and quotation marks omitted). And the States cannot create such an 4 immunity for the federal courts to apply with respect to claims for relief based on 5 federal law. 6

As noted above in section II.A, and as this Court explained in its tentative

7 order respecting the motion to compel arbitration, “[b]y its terms, the [FAA] leaves

9 district courts shall direct the parties to proceed to arbitration on issues as to which 10 an arbitration agreement has been signed.” Dkt. 40, pp. 2-3 of 10, quoting Dean 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 no room for the exercise of discretion by a district court, but instead mandates that

11 Witter, 470 U.S. at 213 (emphasis in original). That is all that needs to be said about 12 whether a State anti-SLAPP statute can be used to strike a petition to compel 13 arbitration governed by the FAA. The State of California cannot grant federal 14 district courts authority to decide issues of federal law in a manner contrary to 15 Congress’s statutory scheme as interpreted by the Supreme Court of the United 16 States. The Supreme Court has spoken enough on these issues. The FAA requires 17 this Court to compel this matter to arbitration, once it finds that there is a valid 18 arbitration agreement encompassing the issues in dispute between the parties. See 19 Dkt. 40, pp. 4-9 of 10 (holding that the arbitration agreement is valid and that the 20 issues to be arbitrated fall within the scope of that agreement, and rejecting HBO’s 21 arguments to the contrary). Courts have “no room for the exercise of discretion” to 22 do otherwise. Dean Witter, 470 U.S. at 213. 23

For all these reasons, California’s anti-SLAPP statute does not apply to the

24 sole claim for relief here—a claim seeking only one form of relief, an order to 25 compel arbitration under the FAA—and this motion must be denied. Instead, the 26 Court’s tentative order respecting Petitioner’s motion to compel arbitration should 27 be made final and this controversy should be compelled to arbitration forthwith. 9 28 U.S.C. §§ 2, 4; Dkt. 40. 9

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1

C.

Even Setting Aside the FAA, California Law Provides that the

2

Anti-SLAPP Statute Does Not Apply to Petitions To Compel

3

Arbitration

4

As explained above, California cannot create “substantive or procedural

5 policies” barring application of the Federal Arbitration Act in the manner that the 6 Supreme Court has prescribed. Perry, 482 U.S. at 489. But even if it could do so, it 7 would not matter because it did not do so. California law itself is clear that the anti-

9

In Century 21 Chamberlain & Assocs. v. Haberman, 173 Cal.App.4th 1

10 (2009), defendant alleged that plaintiffs had negligently marketed her house and 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 SLAPP does not apply to petitions to compel arbitration.

11 filed an arbitration demand with a realtors’ association. Id. at 6. Plaintiffs responded 12 by filing a civil action seeking, among other things, a declaratory judgment that no 13 arbitration agreement existed between the parties. Defendant responded by filing an 14 anti-SLAPP motion against the claim, which the trial court denied. Ibid. The Court 15 of Appeal affirmed, holding that “a demand commencing private contractual 16 arbitration does not ‘fit[ ]’ any of the four anti-SLAPP categories” and, thus, does 17 not give rise to an anti-SLAPP motion. Id. at 8. Pointing to FAA cases, the Court of 18 Appeal explained that “[g]enerally, the court must determine whether a dispute is 19 subject to contractual arbitration, unless the parties clearly and unmistakably agree 20 otherwise.” Id. at 10, citing AT& T Technologies, Inc. v. Communications Workers, 21 475 U.S. 643, 649 (1986). “It would provide cold comfort to parties resisting 22 arbitration to recognize their right to a judicial determination on arbitrability, yet 23 strike their means for obtaining that determination before arbitration.” Century 21, 24 173 Cal.App.4th at 10. 25

Though the relief sought by plaintiffs in Century 21 was the mirror-image of

26 what the Jackson Estate seeks here—a judicial determination that arbitration is 27 required—the distinction is immaterial. The Court was clear in Century 21 that its 28 holding addressed the question of whether a demand for contractual arbitration is 10

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1 subject to anti-SLAPP motions. The key point the Court made was that parties have 2 a “right to a judicial determination on arbitrability” and courts cannot “strike their 3 means for obtaining that determination before arbitration.” Century 21, 173 4 Cal.App.4th at 10. See also Sheppard v. Lightpost Museum Fund, 146 Cal. App. 4th 5 315, 324 (2006) (reversing trial court’s partial grant of anti-SLAPP motion against 6 claims pending in an arbitration; anti-SLAPP statute does not apply to claims 7 pending in arbitrations). Not surprisingly, the Court of Appeal has since relied on Century 21 to

9 squarely hold that petitions to compel arbitration are also not subject to anti-SLAPP 10 motions. In Sahlolbei v. Montgomery, No. E047099, 2010 WL 197298, at *4 (Cal. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8

11 Ct. App. Jan. 21, 2010), plaintiff and defendant agreed to arbitrate any disputes 12 arising out of a non-disparagement agreement. Id. at *1. Like the Jackson Estate 13 here, plaintiff alleged that defendant breached a non-disparagement agreement and 14 filed a petition to compel arbitration of the dispute in superior court. Ibid. Like the 15 Jackson Estate here, plaintiff’s counsel wrote to defendant and demanded arbitration 16 but defendant refused. Id. at *2; Weitzman Decl., ¶ 2; Dkt. 1-1, p. 19 of 54 ¶ 64, p. 17 21 of 54 ¶ 72. Defendant thereafter filed an anti-SLAPP motion, arguing that the 18 alleged breaches of the non-disparagement agreement “were made in connection 19 with official hospital proceedings.” Sahlolbei, 2010 WL 197298, at *2. Defendant 20 “argued that, as an elected Board member [of the hospital], his statements were 21 protected from lawsuits, pursuant to the ‘official proceedings’ exception, because 22 the statements concerned [defendant’s] performance as a surgeon at Palo Verde 23 Hospital.” Ibid. The trial court denied the motion for several reasons, the principal 24 one being that there was “no authority [for] applying the anti-SLAPP statute to a 25 petition to compel arbitration.” Ibid. 26

The Court of Appeal affirmed with the following straightforward reasoning:

27

A petition to compel arbitration is, in form, a law and motion proceeding; however, in substance, it is a suit in equity seeking specific performance of a contract that contains an arbitration clause. [Citations

28

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1 2 3 4 5 6

omitted.] Therefore, [plaintiff’s] “cause of action” is the demand for arbitration. “A demand for commencing private, contractual arbitration does not fit any of the four anti-SLAPP categories.” [Century 21, 173 Cal.App.4th at 7-8]. … [Plaintiff’s] demand to arbitrate his dispute with [defendant] is neither a public issue nor an issue of public interest. [Plaintiff’s] breach of contract claim concerns a confidential settlement agreement, i.e ., a private contract, not a public issue. Accordingly, we conclude that the anti-SLAPP statute (§ 425.16) is not applicable to [plaintiff’s] petition to arbitrate, because the petition is not based upon an act that furthers [defendant’s] rights of petition or free speech. Therefore, the trial court did not err.

7 Id. at *4 (punctuation cleaned up, brackets added, and emphasis in original).

9 authority further illustrating the way in which California courts apply” the law in 10 this area, CPR for Skid Row, 779 F.3d at 1117, this Court should follow it. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 Because “the Court of Appeal’s unpublished decision” in Sahlolbei “is persuasive

11

In short, there is no conflict between the anti-SLAPP statute and the Federal

12 Arbitration Act, because the California courts hold that the anti-SLAPP statute does 13 not apply to petitions to compel arbitration. 14 III.

HBO’S MOTION FAILS ON THE “MERITS”

15

A.

16 17

HBO’s Refusal To Submit To Arbitration Is Not A Constitutionally Protected Activity

The party bringing an anti-SLAPP motion “bears the initial burden of

18 establishing the causes of action in the complaint arise from her protected activity.” 19 Century 21, 173 Cal.App.4th at 7. “The statutory phrase ‘cause of action . . . arising 20 from’ means simply that the defendant’s act underlying the plaintiff’s cause of 21 action must itself have been an act in furtherance of the right of petition or free 22 speech.” City of Cotati v. Cashman, 29 Cal. 4th 69, 78 (2002) . 23

The act underlying the Jackson Estate’s petition to compel HBO to arbitrate is

24 HBO’s refusal to arbitrate. See Spear v. California State Auto. Assn., 2 Cal.4th 1035, 25 1041-42 (1992) (“cause of action to compel arbitration” accrues upon refusal to 26 arbitrate). It is not, as HBO argues, HBO’s production and airing of Leaving 27 Neverland. Dkt. 46-1, p. 15 of 33. As explained above in section II.C, California 28 courts have held that, irrespective of the substance of the underlying claims to be 12

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1 arbitrated, neither the demand to arbitrate nor the refusal to submit to arbitration is a 2 constitutionally protected act for purposes of the anti-SLAPP statute. Century 21, 3 173 Cal.App.4th 1; Sahlolbei, 2010 WL 197298, at *4. HBO’s citation to Thomas v. 4 Quintero, 126 Cal. App. 4th 635, 646 (2005) for the proposition that “facially the 5 anti-SLAPP statute applies to petitions [generally]” is irrelevant, as that case 6 involved a petition for injunctive relief under California’s civil harassment statute. 7 And the Jackson Estate’s Petition to Compel Arbitration was clear that it was not

9 pleading them as the “First [and] Second Cause[s] of Action To Be Arbitrated.” Dkt. 10 1-1, pp. 22-23 of 54.5 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 seeking relief in court for the two causes of action to be arbitrated, expressly

11

HBO ignores this settled law and instead filed what is essentially an anti-

12 SLAPP Motion against a not-yet-pending breach of contract arbitration. (Dkt. 46-1, 13 pp. 15-16 of 33) (“Plaintiffs’ Petition raises two causes of action: (1) breach of 14 contract based on alleged breach of a non-disparagement sentence, and (2) breach of 15 the covenant of good faith and fair dealing.”). HBO’s attempt to challenge the 16 claims to be arbitrated is contrary to what the Court advised in its tentative order: 17 18 19 20 21

The Court notes that Defendant’s Opposition attacked the Disparagement Clause rather than the Arbitration Provision. … The Court will not consider any challenges to portions of the Agreement aside from the Arbitration Provision. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006) (“First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.”).

22 Dkt. 40, p. 10 of 10, n. 6. The Court’s holding here follows from fundamental 23 24

5

HBO argues that it was unnecessary for the Jackson Estate to describe the substance of the claims to be arbitrated in its Petition to Compel Arbitration, but 25 HBO is wrong: how else would the Court determine whether the claims to be arbitrated fall within the scope of the arbitration agreement? HBO made largely the 26 same argument at the hearing on the Motion to Compel Arbitration, and the Court rejected it. Dkt. 46-2, p. 60 of 80 (Court noting that “It doesn't get around what they 27 have to have asserted, which was the disparagement – what the specific disparagement was.”) (emphasis added). 28 13

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1 principles of federal law. As the Court explained its tentative order: “The court’s 2 role under the [FAA] is therefore limited to determining: (1) whether a valid 3 agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses 4 the dispute at issue. If the response is affirmative on both counts, then the Act 5 requires the court to enforce the arbitration agreement in accordance with its terms.” 6 Dkt. 40, p. 3 of 10, quoting Daugherty v. Experian Info. Solutions, Inc., 847 F. 7 Supp. 2d 1189, 1193 (N.D. Cal. 2012), quoting Chiron Corp. v. Ortho Diagnostic

9 merits of the underlying case” to be arbitrated.” Dkt. 40, p. 3 of 10, quoting Macias 10 v. Excel Bldg. Servs. LLC, 767 F.Supp.2d 1002, 1007 (N.D. Cal. 2011). It is unclear 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). And “the Court may not review the

11 why HBO continues to ignore this Court’s holdings in prior orders. See, e.g., Dkt. 12 36, p. 10 of 12 (noting that HBO ignored the Court’s holding in prior order that 13 “[t]he continued validity of the Agreement as a whole is a question for the 14 arbitrator”), quoting Dkt. 27 at 9-10 fn. 7; Dkt. 28 (adopting Dkt. 27 as final ruling). 15

Even setting aside this Court’s prior order, and the body of settled federal

16 jurisprudence on which it rests, the California courts also hold that courts do not 17 have authority to apply the anti-SLAPP statute to claims pending in arbitration. 18 Sheppard , 146 Cal.App.4th at 324. The simple fact is that the Jackson Estate has 19 not yet filed a breach of contract claims in arbitration and cannot do so until this 20 Court orders arbitration (or HBO quits its attempt to avoid its plain obligation to 21 arbitrate). At the risk of sounding repetitive, the only thing the Jackson Estate has 22 filed in any venue regarding the Agreement is a petition to compel HBO to arbitrate. 23 “Therefore, [the Jackson Estate’s only] ‘cause of action’ is the demand for 24 arbitration.” Sahlolbei, 2010 WL 197298, at *4. 25

Relatedly, HBO suggests that its refusal to arbitrate is somehow entitled to

26 anti-SLAPP protection because the Jackson Estate “filed their Petition in court 27 (when they could have filed privately in arbitration).” (Dkt. 46-1, p. 19 of 33; see 28 also id., p. 14, 20 of 33). HBO thus argues that “Plaintiffs have deliberately 14

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1 enmeshed this Court in an interpretive exercise that constitutes ‘state action.’” Dkt. 2 46-1, p. 14 of 33. This argument continues to be as frivolous as it was when HBO 3 made it in the last round of briefing. First, it goes without saying that if HBO had 4 consented to arbitration, contested proceedings “enmeshing this Court” would be 5 unnecessary. And contrary to HBO’s claims that it did not refuse to arbitrate, HBO 6 publicly stated that it would not even discuss Leaving Neverland with the Estate at 7 all in the month prior to its airing, and after the Jackson Estate requested that HBO

9 event, HBO later affirmed its refusal to arbitrate before a contested motion was filed 10 “enmeshing this Court” with these issues. Weitzman Decl., ¶ 2; see also Dkt. 18, p. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 discuss the matter with the Estate. Dkt. 1-1, p. 19 of 54 ¶ 64, p. 21 of 54 ¶ 72. In any

11 10 of 42 ¶ 2. 12

Second, it is perplexing why HBO continues to beat the “state action” drum

13 when “[i]t is well established that judicially enforcing arbitration agreements does 14 not constitute state action.” Roberts v. AT&T Mobility LLC, 877 F.3d 833, 838 n. 1 15 (9th Cir. 2017).6 Or as the California courts have explained, “a demand 16 commencing private contractual arbitration does not ‘fit[ ]’ any of the four anti17 SLAPP categories.” Century 21, 173 Cal.App.4th at 8. 18 19 20 21 22 23 24 25 26 27

6

The cited case (as many of the arbitration cases cited here are) was litigated by affiliates of HBO’s parent company, AT&T. Dkt. 5, 8, 10, 12 (noting AT&T ownership of HBO and recusals based thereon). In other words, it was AT&T who successfully argued that orders to arbitrate are not “state action” for purposes of the First Amendment, in direct contradiction to its position here. The U.S. Reports and the Federal Reporter are filled with cases where AT&T has successfully shaped FAA law as it exists today, compelling consumers to arbitrate under boilerplate arbitration agreements with no exceptions. To say the least, it is rather ironic that AT&T is now fighting tooth-and-nail to avoid an arbitration clause in a negotiated agreement between sophisticated parties, and making arguments that are directly contrary to positions it has successfully litigated throughout the state and federal courts. Apparently, for AT&T, consumers can be required to arbitrate their rights as a condition of having a cellular phone with its service, see generally AT&T v. Concepcion, 563 U.S. at 337-38, but AT&T itself cannot be forced to arbitrate, even after it agreed to do so in a negotiated agreement between highly sophisticated parties, frivolously arguing that being required to arbitrate would violate AT&T’s “due process” rights. Dkt. 46-1, pp. 24-25 of 33.

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1

Setting both of those points aside, HBO’s suggestion that the Jackson Estate

2 could have “fil[ed] a demand with the private arbitration association specified in 3 [the] arbitration agreement” is just plain wrong. Dkt. 46-1, p. 14 n. 4 of 33. The 4 arbitration agreement does not provide that the American Arbitration Association 5 (“AAA”) would administer the arbitration, only that its rules would apply. The 6 Agreement requires arbitration before a retired judge of the Los Angeles Superior 7 Court to be chosen by a procedure requiring the involvement of both parties. Dkt.

9 to communicate with the Jackson Estate at all, the Estate was then free to select an 10 arbitrator of its own choosing and bind HBO in an arbitral judgment without HBO’s 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 18, p. 33 of 42.7 We do not believe HBO means to suggest that, after HBO refused

11 participation (but the Jackson Estate would happily stipulate to that). 12

HBO also repeatedly implies that the Estate has done something wrong by

13 requesting that the arbitration be “public,” i.e., not confidential. As the Jackson 14 Estate explained in its Petition, it has litigated with the two subjects of the HBO film 15 for over six years in open court (from May 2013 through the present day where the 16 their appeals from two of their four dismissed actions remain pending), and has 17 nothing to hide. Dkt. 1-1, p. 21 of 54 ¶ 73. Given that HBO has claimed that its film 18 was meant to “expose” the truth, it is odd that HBO apparently wants the arbitration 19 7

Although the Agreement requires that the AAA Rules be applied, it does not 20 require that AAA administer the arbitration. Id., p. 34 of 42 (“The retired judge so selected shall conduct the Arbitration in conformity with the rules of, and as if it 21 were conducted by, the American Arbitration Association.”) (emphasis added). In any event, as most practitioners in this geographic area will attest—including, we 22 are sure, counsel for HBO—retired judges of the Los Angeles Superior Court (and retired federal judges for that matter) who have chosen to be private neutrals are 23 generally not affiliated with AAA but with other services (e.g., JAMS, ADR Services, and Signature Resolution). All of these services prominently advertise who 24 their arbitrators are on their websites with a list of their judicial experience (if any) except for AAA. Specifically, it is not possible to find out who, if any, retired 25 Superior Court judges are available through AAA on its website. Declaration of Jonathan Noyes (filed concurrently) ¶ 3. Efforts to find out this information by 26 calling AAA revealed that it requires parties to pay between $750 and $2000 to even get a list of such names (if any). Ibid. AAA will not provide the list without 27 payment and would not identify any retired Superior Court judges when asked. Ibid. 28 16

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1 to be confidential. There is no reason that arbitration proceedings must be 2 confidential. Although the 1992 AAA Rules require the arbitrator to “maintain the 3 privacy of the hearing,” the arbitrator also has discretion to allow persons other than 4 the parties to attend. Dkt. 22-2, pp. 11 of 31 (1992 AAA Rule 25). Moreover, there 5 is nothing requiring the record of the arbitration, information learned in it, and 6 evidence produced in it, to be kept confidential. Id. pp. 11-12 of 31 (1992 AAA 7 Rules 23, 31). (Of course, it is the 1992 rules that control as this Court expressly

9 issues for an arbitrator and are of no relevance to this motion. Howsam v. Dean 10 Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (unlike question of arbitrability itself, 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 held at HBO’s urging. Dkt. 27, p. 10 of 14, Dkt. 28.) In any event, these are all

11 which is generally for courts, procedural issues relating to arbitration are to be 12 decided by arbitrators). 13

Finally, HBO objects to various allegations in the Petition, taking particular

14 offense to the banal allegation “that the arbitrator award punitive damages in the 15 maximum amount permissible if and when Petitioners show their entitlement to 16 such damages.” Dkt. 1-1, p. 24 of 54 (emphasis added). “But the anti-SLAPP statute 17 is targeted at causes of action, not ‘particular allegations within a cause of action.’” 18 eDrop-Off Chicago LLC v. Burke, No. CV 12-4095 GW, 2013 WL 12131186, at 19 *14 (C.D. Cal. Aug. 9, 2013) (Wu, J.), quoting A.F. Brown Elec. Contractor, Inc. v. 20 Rhino Elec. Supply, Inc., 137 Cal.App.4th 1118, 1124 (2006). The mention of 21 punitive damages “if and when” appropriate is not even within a cause of action but 22 a statement at the end of the petition about what may lie in a future arbitration.8 23

In summary, HBO’s attempts to reimagine both the Jackson Estate’s Petition

24 8

In any event, to the extent that HBO takes offense at particular allegations, 25 and the Court finds merit in HBO’s problems with them, they can be omitted in an amended petition. Verizon Delaware, Inc. v. Covad Commc'ns Co., 377 F.3d 1081, 26 1091 (9th Cir. 2004) (“granting a defendant's anti-SLAPP motion to strike a plaintiff's initial complaint without granting the plaintiff leave to amend would 27 directly collide with Fed. R. Civ. P. 15(a)’s policy favoring liberal amendment”). 28 17

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1 and binding precedent must fail. There is only one “cause of action” before this 2 Court: a request for an order compelling arbitration under the FAA based on HBO’s 3 refusal to arbitrate. Under settled California law, HBO’s refusal to arbitrate is not a 4 protected activity under the anti-SLAPP statute. 5 6 7

B.

The Jackson Estate Is Likely To Prevail On Its Motion To Compel Arbitration

HBO’s devotes approximately 15 pages of its brief to arguing that “Plaintiffs

9 breach of contract claims.” Dkt. 46-1, p. 18 of 33; see id. pp. 17-32 of 33. HBO’s 10 efforts are misdirected and premature. As noted above, the Jackson Estate has not 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 cannot establish that there is a reasonable probability they will prevail on their

11 yet filed the underlying breach of contract claims that are to be decided by an 12 arbitrator. What the Jackson Estate did file was a petition to compel arbitration 13 under the FAA. (Dkt. 1-1). In that Petition, it included the “Cause[s] of Action To 14 Be Arbitrated” so that there was a basis for a court to conclude that the controversy 15 fell within the scope of arbitrable issues. See above at footnote 5. And for the 16 reasons set forth in pages 1-8 of the Court’s tentative ruling on the merits of the 17 Estate’s petition, Dkt. 40, pp. 2-9 of 10, the Jackson Estate is likely to succeed on 18 that petition. Indeed, with the exception of this anti-SLAPP issue, the Court has 19 definitively rejected all of HBO’s arguments against arbitration. 20

It is well-settled that “where the contract contains an arbitration clause, there

21 is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the 22 particular grievance should not be denied unless it may be said with positive 23 assurance that the arbitration clause is not susceptible of an interpretation that covers 24 the asserted dispute. Doubts should be resolved in favor of coverage.’” AT&T 25 Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986). 26

A court cannot conclude that the claims are arbitrable, as this Court has

27 tentatively held, see Dkt. 40, but then refuse to enforce the arbitration agreement 28 because it has doubts about the merits of the claims to be arbitrated. The Supreme 18

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1 Court has emphatically held that “a court may not rule on the potential merits of the 2 underlying claim that is assigned by contract to an arbitrator, even if it appears to the 3 court to be frivolous. A court has no business weighing the merits of the grievance 4 because the agreement is to submit all grievances to arbitration, not merely those 5 which the court will deem meritorious.” Henry Schein, Inc. v. Archer & White Sales, 6 Inc., 139 S. Ct. 524, 529 (2019) (internal citation and quotation marks omitted). 7 Thus, the Court has “no business” considering the merits of the grievances to be

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8 arbitrated here.9

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

9

Where, as here, the claims are not challenged on factual grounds (e.g., with evidence), the motion must be analyzed under a Rule 12(b)(6) standard. “If a defendant makes an anti-SLAPP motion to strike founded on purely legal arguments, then the analysis is made under Fed. R. Civ. P. 8 and 12 standards; if it is a factual challenge, then the motion must be treated as though it were a motion for summary judgment and discovery must be permitted.” Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833 (9th Cir. 2018). Here, there can be no doubt that the causes of action to be arbitrated are “plausible” under a Rule 12(b)(6) standard. HBO’s arguments that the Agreement expired as a matter of law, or that the non-disparagement clause could not possibly apply, have already been addressed and rejected. Those arguments are for the arbitrator in any event, and they could not be resolved without discovery; HBO itself effectively asserts that the non-disparagement clause is “ambiguous.” Dkt. 46-1, p. 21 of 33 (asserting that there is an “ambiguous standard for disparagement”). In order to resolve any ambiguity, extrinsic evidence would need to be introduced, and discovery taken. This just further highlights the impropriety of using the anti-SLAPP statute to “strike” petitions to compel arbitration. Federal law is clear that the scope of discovery, etc., in cases governed by the FAA are to be determined by arbitrators not courts. Howsam, 537 U.S. at 84

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1 IV.

CONCLUSION

2

For the reasons stated, this anti-SLAPP motion should be rejected and the

3 Jackson Estate’s motion to compel arbitration should be granted. 4 DATED: August 29, 2019 5

Respectfully Submitted: KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

6 7

By:

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8

11 12 13

/s/ Jonathan Steinsapir Jonathan Steinsapir Attorneys for Petitioners/Plaintiffs Optimum Productions and for the CoExecutors of the Estate of Michael J. Jackson

10386.00348/653835

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1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) [email protected] 2 Jonathan P. Steinsapir (SBN 226281) [email protected] 3 Zachary T. Elsea (SBN 279252) [email protected] 4 808 Wilshire Boulevard, 3rd Floor 5 Santa Monica, California 90401 Telephone: 310.566.9800 6 Facsimile: 310.566.9850

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7 FREEDMAN + TAITELMAN LLP Bryan J. Freedman (SBN 151990) 8 [email protected] 1901 Avenue of the Stars, Suite 500 9 Los Angeles, California 90067 Telephone: 310.201.0005 10 Facsimile: 310.201.0045 11 Attorneys for Petitioners/Plaintiffs Optimum Productions and for the Co12 Executors of the Estate of Michael J. Jackson 13 14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16

WESTERN DIVISION

17 OPTIMUM PRODUCTIONS, a California corporation; and JOHN 18 BRANCA and JOHN MCCLAIN, in the respective capacities as CO19 EXECUTORS OF THE ESTATE OF MICHAEL J. JACKSON, 20 Petitioners, 21 vs. 22 HOME BOX OFFICE, a Division of 23 TIME WARNER ENTERTAINMENT, L.P., a Delaware Limited Partnership, 24 and HOME BOX OFFICE, INC., a Delaware corporation, and DOES 1 25 through 5, business entities unknown, and DOES 6 through 10, individuals 26 unknown, 27

Case No. 2:19-cv-01862 GW(PJWx) REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS OF HOWARD WEITZMAN AND JONATHAN NOYES IN OPPOSITION TO HBO’s ANTISLAPP MOTION Filed Filed Concurrently With the Jackson Estate’s Opposition Brief Judge: Hon. George H. Wu Date: Time: 8:30 a.m. Ctrm: 9D

Respondents.

28 REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS IN OPPOSITION TO HBO'S ANTI-SLAPP MOTION

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1

Petitioners Optimum Productions and the Co-Executors of the Estate of

2 Michael J. Jackson hereby request pursuant to Rule 201 of the Federal Rules of 3 Evidence that the Court take judicial notice of the following document in connection 4 with their opposition to the anti-SLAPP motion of Respondent Home Box Office,

6

Notice Of Hearing On Petition To Compel Public Arbitration;

7

Memorandum Of Points And Authorities; Declaration Of Jonathan P.

8

Steinsapir1 (filed in the Los Angeles Superior Court) (attached as

9

Exhibit A)

10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

5 Inc. (“HBO”):

This pleading was filed in this civil action on March 12, 2019 while it was

11 pending in the Los Angeles Superior Court. Declaration of Howard Weitzman 12 (“Weitzman Decl.”), ¶ 3. It was served on counsel for HBO the same day, and a 13 copy was emailed to counsel the next day. Ibid. 14

The Court can take judicial notice of this pleading. Reyn’s Pasta Bella, LLC

15 v. Visa USA, Inc., 442 F.3d 741, 746 (9th Cir. 2006) (taking judicial notice of court 16 filings to determine what issues were raised in those courts). In fact, 28 U.S.C. 17 § 1446(a) requires a removing party to include with its removal papers “a copy of all 18 process, pleadings, and orders served upon such defendant or defendants in such 19 action.” It appears that HBO inadvertantly failed to include this document with its 20 removal papers, and it thus should be a part of this Court’s file in any event. 21

The document is authenticated at paragraph 3 in the attached declaration of

22 Howard Weitzman. 23 24 25 26

1

The three exhibits to the Declaration have been omitted to save paper, as they have all been filed numerous times already in this action. They are the same 27 exhibits attached to the Petition to Compel Arbitration, Dkt. 1-1. 28 2

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1 2 3 DATED: August 29, 2019 4

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

5 6 7

9 10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

8

By:

/s/ Jonathan Steinsapir Jonathan Steinsapir Attorneys for Optimum Productions and for John Branca and John McClain as Executors of the Estate of Michael J. Jackson

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS IN OPPOSITION TO HBO'S ANTI-SLAPP MOTION

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DECLARATION OF HOWARD WEITZMAN

1 2

I, Howard Weitzman, declare as follows:

3

1.

I am an attorney at law, duly admitted to practice before this Court. I

4 am a partner of Kinsella Weitzman Iser Kump & Aldisert LLP, counsel of record for 5 the Petitioners here. Unless stated otherwise, I have personal knowledge of the 6 following facts. If called as a witness, I could and would competently testify to such 7 facts under oath. 2.

On March 5, 2019, I sent a letter to Eve Constan of Respondent Home

9 Box Office, Inc. (“HBO”) requesting that HBO agree to arbitrate the issues set out 10 in Petitioners February 21, 2019 Petition to Compel Arbitration filed in the Los 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

8

11 Angeles Superior Court (a copy of which is found at Docket Entry 1-1 in this 12 Court). A true and correct copy of that letter is found at Docket Entry 22-1 in this 13 Court at pages 5-6 (using the ECF header). On or around March 9, 2019, Dan 14 Petrocelli of O’Melveny & Myers contacted me to advise that he and his firm would 15 be representing HBO jointly with Ted Boutrous and his firm, Gibson, Dunn & 16 Crutcher. Mr. Petrocelli advised that HBO probably would not agree to arbitrate but 17 suggested that his partner Drew Breuder and my partner Jonathan Steinsapir should 18 further discuss the issue. I understand that Mr. Breuder later confirmed that position 19 definitively with Mr. Steinsapir. 20

3.

Attached as Exhibit A hereto is a true and correct copy of a pleading

21 styled as “Notice Of Hearing On Petition To Compel Public Arbitration; 22 Memorandum Of Points And Authorities; Declaration Of Jonathan P. Steinsapir” 23 (without the attached exhibits). This pleading was filed in the Los Angeles Superior 24 Court in this civil action on March 12, 2019 (prior to the removal of this action to 25 this Court). The pleading was served by mail on counsel for HBO that day. The next 26 day, my partner, Jonathan Steinsapir, emailed a copy of the motion to counsel of 27 record herein for HBO in connection with providing ex parte notice to HBO of an 28 anticipated application to expedite the hearing date on the matter. HBO removed the 4

REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS IN OPPOSITION TO HBO'S ANTI-SLAPP MOTION

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1 action to this Court later that day, mooting the ex parte application. 2

I declare under penalty of perjury under the laws of the United States of

3 America that the foregoing is true and correct. 4

Executed on this 29th day of August, 2019, in Santa Monica, California.

5 /s/Howard Weitzman Howard Weitzman

6 7

9 10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

8

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS IN OPPOSITION TO HBO'S ANTI-SLAPP MOTION

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DECLARATION OF JONATHAN NOYES

1 2

I, Jonathan Noyes, declare as follows:

3

1.

I am a paralegal with the law firm Kinsella Weitzman Iser Kump &

4 Aldisert LLP, counsel of record for the Petitioners here. Unless stated otherwise, I 5 have personal knowledge of the following facts. If called as a witness, I could and 6 would competently testify to such facts under oath. 7

2.

I am familiar with the respective websites for JAMS, ADR Services,

9 neutrals, including retired judges, who are available for mediations and arbitrations. 10 The websites provide short biographies of the neutrals, including their judicial 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

8 and Signature Resolution. Each of these websites provide an easily-accessible list of

11 experience (if any). 12

3.

Unlike the websites for JAMS, ADR Services, and Signature

13 Resolution, the website for the American Arbitration Association (“AAA”) does not 14 contain any such list. There are some search functions for potential mediators but 15 there is no way that I could figure out how to find out what retired judges of the Los 16 Angeles Superior Court, if any, are available to act as AAA arbitrators or mediators. 17 To further investigate the issue, I called AAA on August 27, 2019, to inquire about 18 potential arbitrators who are also retired judges of the Los Angeles Superior Court. I 19 spoke a few times with a woman named Molly. She advised me that AAA will not 20 provide a list of potential arbitrators unless an arbitration is filed with an associated 21 filing fee, or a separate fee is paid to acquire such a list. In particular, I was told that 22 one must pay $750 to acquire a list of five potential arbitrators, $1,500 to acquire a 23 list of ten potential arbitrators, or $2,000 to acquire a list of fifteen potential 24 arbitrators. I was provided with a Form to fill out to acquire such a list. I attach a 25 copy of the Form as Exhibit B hereto. Molly would not identify any specific retired 26 judges of the Los Angeles Superior Court or tell me how many such judges are 27 available to arbitrate through AAA. 28

/// 6

REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS IN OPPOSITION TO HBO'S ANTI-SLAPP MOTION

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1

I declare under penalty of perjury under the laws of the United States of

2 America that the foregoing is true and correct. 3

Executed on this 29th day of Augu:

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21 22 23 24 25 26 27 28 REQUEST FOR JUDICIAL NOTICE AND DECLARATIONS IN OPPOSITION TO HBO'S ANTI-SLAPP MOTION

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EXHIBIT A

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1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) [email protected] 2 Dale F. Kinsella (SBN 63370) [email protected] 3 Jonathan P. Steinsapir (SBN 226281) [email protected] 4 Zachary T. Elsea (SBN 279252) 5 [email protected] 808 Wilshire Boulevard, 3rd Floor 6 Santa Monica, California 90401 Telephone: 310.566.9800 7 Facsimile: 310.566.9850 8 FREEDMAN + TAITELMAN LLP Bryan J. Freedman (SBN 151990) 9 [email protected] 1901 Avenue of the Stars, Suite 500 10 Los Angeles, California 90067 Telephone: 310.201.0005 11 Facsimile: 310.201.0045 12 Attorneys for Optimum Productions and for John Branca and John McClain as Executors of the 13 Estate of Michael J. Jackson 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF LOS ANGELES 16 17 OPTIMUM PRODUCTIONS, a California 18 corporation; and JOHN BRANCA and JOHN MCCLAIN, in the respective capacities as 19 CO-EXECUTORS OF THE ESTATE OF MICHAEL J. JACKSON, 20 Plaintiffs, 21 vs. 22 HOME BOX OFFICE, a Division of TIME 23 WARNER ENTERTAINMENT, L.P., a Delaware Limited Partnership, and HOME 24 BOX OFFICE, INC., a Delaware corporation, and DOES 1 through 5, business entities 25 unknown, and DOES 6 through 10, individuals unknown, 26 Defendants. 27

Case No. 19SMCP00075 Case Assigned to the Hon. Craig D. Karlan – Dept. N NOTICE OF HEARING ON PETITION TO COMPEL PUBLIC ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JONATHAN P. STEINSAPIR Code of Civil Procedure §§ 1281.2, 1290 RESERVATION ID #420999219683 Hearing Date: Time: Dept.:

June 26, 2019 8:30 A.M. N

28 1 NOTICE OF HEARING ON MOTION TO COMPEL ARBITRATION AND SUPPORTING MEMORANDUM

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1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE THAT Petitioners John Branca and John McClain, in their

3 respective capacities as co-executors of the estate of Michael J. Jackson, and Optimum 4 Productions, through their attorneys of record herein, will on June 26, 2019, or as soon thereafter 5 as the matter may be heard in Department N of the above-named court, located at 1725 Main 6 Street, Santa Monica, California, 90401, will and hereby do petition the Court for an order 7 compelling Respondents Home Box Office, a Division of Time Warner Entertainment, L.P., and 8 Home Box Office, Inc. (collectively “HBO”) to arbitrate the dispute detailed in the recently-filed 9 Petition to Compel Arbitration (the “Petition”) pursuant to the arbitration clause in the 1992 10 agreement between HBO, Michael Jackson, and the predecessor entity of Optimum Productions, 11 TTC Touring Corporation. That agreement is attached as Exhibit B to the Petition. 12

The Petition is brought pursuant to Code of Civil Procedure section 1281.2, which

13 provides that “[o]n petition of a party to an arbitration agreement alleging the existence of a 14 written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate 15 that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy 16 if it determines that an agreement to arbitrate the controversy exists.” The Petition is further based 17 on Code of Civil Procedure sections 1290 et seq. 18

The Petition is further based on the Exhibits attached thereto, the Memorandum of Points

19 and Authorities included herein, the Declaration of Jonathan P. Steinsapir, the papers and 20 pleadings on file herein, and on such further oral and documentary evidence as may be presented 21 at the hearing. 22 DATED: March 12, 2019

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

23 24 25 26 27

By:

/s/ Jonathan P. Steinsapir Jonathan P. Steinsapir Attorneys for Optimum Productions and John Branca and John McClain as Executors of the Estate of Michael J. Jackson

28 2 NOTICE OF HEARING ON MOTION TO COMPEL ARBITRATION AND SUPPORTING MEMORANDUM

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1 2

MEMORANDUM OF POINTS AND AUTHORITIES As detailed in the concurrently-filed Petition to Compel Public Arbitration (the “Petition”),

3 Respondents Home Box Office, a Division of Time Warner Entertainment, L.P., and Home Box 4 Office, Inc. (collectively, “HBO”) entered into an agreement with Michael Jackson and Optimum 5 Productions’ predecessor entity, TTC Touring Corporation, in 1992 (the “Agreement”). See 6 Steinsapir Decl., Ex. C (agreement of merger between Optimum and TTC). The Agreement is 7 attached as Exhibit B to the Petition (and the attached declaration of Jonathan P. Steinsapir). The 8 Agreement granted HBO an exclusive and historic license to televise in the United States one of 9 Michael Jackson’s concert performances on the Dangerous World Tour in exchange for monetary 10 and non-monetary consideration, including a covenant by HBO not to disparage Michael Jackson 11 or his affiliates. 12

As detailed in the Petition, Respondents have breached the Agreement, including the

13 Agreement’s non-disparagement clause, as well as the covenant of good faith and fair dealing, by 14 producing, screening, and promoting the Film Leaving Neverland (“the Film”). Among other 15 things, the Film specifically disparages Michael Jackson in connection with the Dangerous World 16 Tour, and uses footage from one of Michael Jackson’s famous short films, which was utilized in 17 the Dangerous World Tour—including in the actual concert HBO aired—for the specific purpose 18 of disparaging Michael Jackson. Steinsapir Decl. ¶ 6. 19

The Agreement includes a mandatory arbitration clause. It reads as follows:

20

(iv) Arbitration. Any dispute arising out of, in connection with or relating to this Agreement shall be submitted for binding and final arbitration before a retired judge of the Superior Court of the state of California for the County of Los Angeles who shall be mutually selected by the parties. In the event that the parties cannot agree on the selection of such a retired judge within 30 days after one of the parties notifies the other in writing that there is any such dispute to be resolved, each party shall select such a retired judge, and the two retired judges so selected shall then select a third retired judge who shall serve as the sole judge in connection with such dispute. If the two party-appointed judges are unable to select a third judge within 30 days after their appointment, the sole retire judge in connection with such dispute shall be selected by the Superior Court of the State of California for the County of Los Angeles. The retired judge so selected shall conduct the arbitration in conformity with the rules of, and as if it were conducted by, the American Arbitration Association.

21 22 23 24 25 26 27 28

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1 Steinsapir Decl., Ex. B, pp. 9-10 (¶ iv). 2

On February 7, 2019, through their counsel, the Co-Executors of the Estate of Michael

3 Jackson and Optimum Productions sent a letter to HBO’s Chief Executive Officer regarding 4 Leaving Neverland, copying the General Counsel of HBO, a copy of which is attached as Exhibit 5 A to the Petition (and the attached declaration of Jonathan P. Steinsapir). Though HBO was surely 6 already aware of them, the letter catalogued the many glaring deficiencies with and recklessness of 7 Leaving Neverland, as well as the mountain of evidence disproving the false stories peddled by 8 Robson and Safechuck. Steinsapir Decl., Ex. A, pp. 5-8. 9

In the letter, counsel for the Co-Executors of the Jackson Estate and Optimum Productions

10 requested a meeting with HBO to discuss a solution. HBO has never responded. Rather, HBO 11 stated publicly and in no uncertain terms that it will not communicate with the Jackson Estate or 12 its related entities with respect to any issues relating to the Film. Steinsapir Decl., ¶ 3. Indeed, 13 HBO never even had the courtesy to respond to the letter. Ibid. In other words, HBO could care 14 less about the truth, or presenting a balanced and real “documentary.” Apparently, HBO was 15 happy to rely on the fact that deceased persons cannot sue for defamation in this State, and thus 16 saw no need to comply with any sort of journalistic ethics at all. Regardless, HBO completely shut 17 down Petitioners’ attempt to reach out to HBO and request arbitration of this dispute. 18 19 20 21

California Code of Civil Procedure section 1281.2 requires as follows: On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists . . . .

22 23

Both California and federal law reflect a “strong public policy in favor of arbitration,” with

24 any doubt “resolved in favor of arbitration, not against it.” Coast Plaza Doctors Hosp. v. Blue 25 Cross of California, 83 Cal.App.4th 677, 686–87 (2000). Pursuant to the California Arbitration 26 Act (“CAA”), a “written agreement to submit to arbitration an existing controversy or a 27 controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as 28 exist for the revocation of any contract.” Code Civ. Proc § 1281. “On a petition of a party to an 4 NOTICE OF HEARING ON MOTION TO COMPEL ARBITRATION AND SUPPORTING MEMORANDUM

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1 arbitration agreement alleging the existence of a written agreement,” “the court shall order the 2 petitioner and the respondent to arbitrate the controversy if it determines that an agreement to 3 arbitrate exists.” Id. § 1281.2 (emphasis added); see also 9 U.S.C. §§ 1, 2. The Federal Arbitration 4 Act (“FAA”), 9 U.S.C. § 1, et seq., provides that an agreement to arbitrate “shall be valid, 5 irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation 6 of any contract.” 9 U.S.C. § 2. As with California law, the FAA “declares a national policy 7 favoring arbitration of claims that parties contract to settle in that manner. That national policy . . . 8 applies in state as well as federal courts.” Preston v. Ferrer, 552 U.S. 346, 353 (2008) (citations 9 and some punctuation omitted). “The United States Supreme Court has explained that the words 10 ‘involving commerce’ [in the FAA] reflect an intent to exercise the Congressional Commerce 11 Clause powers ‘to the full.’” Hedges v. Carrigan, 117 Cal.App.4th 578, 585 (2004), citing Allied12 Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 274 (1995). The Agreement here 13 involves interstate, and international, commerce. 14

It cannot be disputed that the Agreement contains a valid arbitration clause binding

15 Petitioners and Respondents. Accordingly, the Court must compel this dispute to arbitration 16 according to the terms of the Agreement. Code Civ. P. § 1281.2; see also Henry Schein, Inc. v. 17 Archer & White Sales, Inc., 139 S. Ct. 524, 530 (2019). There is currently a dispute between HBO 18 and the Jackson Estate regarding the Film, and whether HBO breached its obligations under the 19 Agreement by airing and producing the Film. Any defenses HBO may raise, regarding the scope 20 or enforceability of the substantive obligations in the Agreement along with the continuing 21 viability of the obligations in the Agreement, are for the Arbitrator to resolve, and not for a Court. 22 See, e.g., Code Civ. Proc. § 1281.2(d); Wagner Constr. Co. v. Pac. Mech. Corp., 41 Cal.4th 19, 26 23 (2007); Larian v. Larian, 123 Cal.App.4th 751, 765 (2004). 24

Petitioners therefore respectfully request that the Court compel HBO to participate in a

25 non-confidential arbitration in Los Angeles County consistent with the terms of the Agreement to 26 arbitrate claims for breach of the non-disparagement clause in the Agreement and breach of the 27 covenant of good faith and fair dealing therein, along with any other arbitral issues between the 28 parties relating to the Agreement. In the event that the parties, or their designated retired judges, 5 NOTICE OF HEARING ON MOTION TO COMPEL ARBITRATION AND SUPPORTING MEMORANDUM

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1 cannot agree on an arbitrator, Petitioners further request that this Court—i.e., “the Superior Court 2 of the State of California for the County of Los Angeles” as stated in the Agreement at pages 9 3 through 10—select a retired judge as arbitrator. 4 5 DATED: March 12, 2019

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

6 7 By:

8 9 10

/s/ Jonathan P. Steinsapir Jonathan P. Steinsapir Attorneys for Optimum Productions and John Branca and John McClain as Executors of the Estate of Michael J. Jackson

11 12

10386.00347/623205

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1

DECLARATION OF JONATHAN STEINSAPIR

2

I, Jonathan Steinsapir, declare as follows:

3

1.

I am an attorney duly admitted to practice before this Court. I am a partner with

4 Kinsella Weitzman Iser Kump & Aldisert LLP, attorneys of record for Optimum Productions and 5 for John Branca and John McClain as Co-Executors of the Estate of Michael J. Jackson (“the 6 Jackson Estate”). If called as a witness, I could and would competently testify to all the facts 7 within my personal knowledge except where stated upon information and belief. 8

2.

Attached as Exhibit A hereto is a true and correct copy of the February 7, 2019

9 letter sent by counsel for Petitioners to Richard Plepler. I am copied on this letter and I transmitted 10 the letter by email to Mr. Plepler on behalf of Mr. Weitzman. 11

3.

After receiving Petitioners’ February 7, 2019 letter, HBO’s programming

12 President, Casey Bloys, stated publicly that “There are no plans to take a meeting [with the 13 Jackson Estate]. We are airing the documentary, and the letter is not going to change that.” HBO 14 otherwise never bothered to respond to the letter at all. 15

4.

Attached as Exhibit B hereto is a true and correct copy of the 1992 agreement

16 (monetary terms have been redacted) entered into between HBO on one hand, and Michael 17 Jackson and TTC Touring Corporation (“TTC”), on the other. I have continuously represented the 18 Co-Executors of the Estate of Michael Jackson (“the Jackson Estate”) since shortly after Michael 19 Jackson’s untimely death on June 25, 2009. Because of that, I have personal knowledge of the 20 general record retention practices and the history of, and ownership of stock in, various 21 corporations that are a part of the Jackson Estate (as their stock was owned by Michael Jackson at 22 the time of his passing). Exhibit B is maintained in the regular course of the business of the 23 Jackson Estate in its legal records, which are maintained by the office of Co-Executor John 24 Branca’s law firm Ziffren Brittenham LLP. 25

5.

TTC was a California corporation, all of the stock in which was owned by Michael

26 Jackson during his lifetime. The stock therefore passed to the Jackson Estate as a matter of law 27 after Jackson’s passing in June 2009. In December 2010, all of the stock of TTC was acquired by 28 Optimum Productions (“Optimum”) in a merger with Optimum as the surviving corporation. A 7 DECLARATION OF JONATHAN P. STEINSAPIR IN SUPPORT OF PETITION TO COMPEL ARBITRATION

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1 true and correct copy of the “Agreement of Merger” on file with the Secretary of State of the State 2 of California is attached as Exhibit C hereto. Optimum is a California corporation, founded by 3 Michael Jackson in around 1983 as a production company through which he produced films. It 4 holds copyright interests in films Michael Jackson acquired or produced. During his lifetime, all of 5 the stock of Optimum was owned by Michael Jackson. The stock therefore passed to the Jackson 6 Estate as a matter of law after Jackson’s passing in June 2009. 7

6.

I am familiar with the Film Leaving Neverland, which HBO aired earlier this

8 month and continues to make available on its “on demand” platforms. Among other things, the 9 Film disparages Michael Jackson in connection with the Dangerous World Tour, and uses footage 10 from at least one of Michael Jackson’s short films utilized in the Dangerous World Tour 11 (including in the actual concert HBO aired) to disparage Michael Jackson. 12

I declare under penalty of perjury under the laws of the State of California that the

13 foregoing is true and correct. 14

Executed on March 12, 2019, at Santa Monica, California.

15 16

/s/ Jonathan Steinsapir Jonathan Steinsapir

17 18 19 20 21 22 23 24 25 26 27 28 8 DECLARATION OF JONATHAN P. STEINSAPIR IN SUPPORT OF PETITION TO COMPEL ARBITRATION

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1

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 808 Wilshire 4 Boulevard, 3rd Floor, Santa Monica, CA 90401. 3

On March 12, 2019, I served the following document(s) described as NOTICE OF HEARING ON PETITION TO COMPEL PUBLIC ARBITRATION; MEMORANDUM OF 6 POINTS AND AUTHORITIES; DECLARATION OF JONATHAN P. STEINSAPIR on the interested parties in this action as follows: 7 8 Daniel M. Petrocelli Drew E. Breuder 9 O’Melveny & Myers LLP 1999 Avenue of the Stars, 8th Floor 10 Los Angeles, CA 90067-6035 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

5

Attorneys for Defendants Tel: 310-553-6700 Fax: 310-246-6779 Email: [email protected] [email protected]

11 Home Box Office, Inc. 12 c/o CT Corporation System, Agent for Service of Process 13 28 Liberty, Floor 42 New York, NY 10005 14 Home Box Office, A division of Time 15 Warner Entertainment, L.P. c/o The Corporation Trust Company 16 Agent for Service of Process 1209 Orange Street W. 17 Wilmington, DE 19800 18

BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed above or on the attached Service List and placed the envelope for 19 collection and mailing, following our ordinary business practices. I am readily familiar with Kinsella Weitzman Iser Kump & Aldisert LLP's practice for collecting and processing 20 correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in 21 a sealed envelope with postage fully prepaid. 22

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 12, 2019, at Santa Monica, California.

23 24 /s/ Candace Hoffman Candace Hoffman

25 26 27 28 10386.00347/630150.1

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Reservation Case Name:

OPTIMUM PRODUCTIONS,ACALIFORNIA CORPORATION,et al. vs HOME BOX OFFICE, A DIVISION OFTIME WARNER ENTERTAINMENT, L.P., A DELAWARE LIMITED PARTNERSHIP,et al.

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Type:

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Motion to Compel Arbitration

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Filing Party:

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Location: Santa Monica Courthouse - Department N

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EXHIBIT B

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Case: 19-56222, 07/08/2020, ID:48-1 11746679, DktEntry: Page 17, Page 7821 of 238 Case 2:19-cv-01862-GW-PJW Document Filed 08/29/19 21 of Page ID #:860 REQUEST FOR ARBITRATOR SELECT: LIST ONLY Date: Case Type (Check one.):

Commercial

Construction

Employment

5 ($750) Number of Arbitrators to be provided (Check one.): Fees are payable at the time of submission of this form.

10 ($1,500)

15 ($2,000)

Please include requests for professional and/or industry expertise, geographic limitations and/or locations, and any other relevant information.

Additional Case Information Dollar Amount of Claim: Dollar Amount of Counterclaim (if any): Nature of Dispute: Termination of AAA Authority With Arbitrator Select: List Only, AAA services conclude with the provision of the arbitrator list. Therefore, AAA services do not include, among other scheduling, award-related matters or any other issues that might arise during the arbitration proceeding. Exclusion of Liability a.

The parties agree that neither the AAA nor any arbitrator listed or appointed under this service is a necessary or proper party in judicial proceedings related to either the parties’ arbitration or the provision of services under the AAA’s Arbitrator Select.

b.

The parties agree that neither the AAA nor any arbitrator listed or appointed under this service shall be liable to any party in any action for damages or injunctive relief for any act or omission in connection with the parties’ arbitration or the provision of AAA’s Arbitrator Select.

c.

The parties further agree not to call the arbitrator, the AAA or AAA employees as a witness in litigation or any other proceeding relating to the arbitration for which the AAA’s Arbitrator Select has been utilized. The arbitrator, the AAA and AAA employees are incompetent to testify as witnesses in any such proceeding.

Credit toward Future Case Management Fees

Refunds There is a minimum non-refundable search fee of $750. If the AAA, in its sole discretion, is unable to compile an appropriate list of arbitrators after completing a search, the balance of the List Only service fees will be refunded. Requesting Party and Representative By executing the form below, all parties and their representatives acknowledge that they agree to be bound by the terms of this submission form. Party:

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1

UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

3

1

HONORABLE GEORGE WU

4

UNITED STATES DISTRICT JUDGE PRESIDING

5

- - -

6 Optimum Productions, 7 8 9 10

) ) ) VS. ) ) Home Box Office, ) DEFENDANT, ) ___________________________________) PLAINTIFF,

NO. CV 19-1862 GW

11 12 13

REPORTER'S TRANSCRIPT OF PROCEEDINGS

14

LOS ANGELES, CALIFORNIA

15

MONDAY, JULY 15, 2019

16 17 18

_____________________________________

19

KATIE E. THIBODEAUX, CSR 9858 U.S. Official Court Reporter

20

Suite 4311 350 West 1st Street Los Angeles, CA 90012

21 22 23 24 25

UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

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1

2

APPEARANCES OF COUNSEL:

2 3 4

FOR PLAINTIFF: FREEDMAN AND TAITELMAN LLP

6

BY: BRIAN J. FREEDMAN 1901 Avenue of the Stars Suite 500 Los Angeles, CA 90067

7

-and-

8

KINSELLA WEITZMAN ISER KUMP AND ALDISERT LLP BY: HOWARD WEITZMAN -and- JONATHAN P. STEINSAPIR -and- ZACHARY ELSEA 808 Wilshire Boulevard Third Floor Santa Monica, CA 90401

5

9 10 11 12 13 14

FOR DEFENDANT:

16

O'MELVENY AND MYERS LLP BY: DANIEL M. PETROCELLI 1999 Avenue of the stars Eighth Floor Los Angeles, CA 90067

17

-and-

18

GIBSON DUNN AND CRUTCHER LLP BY: THEODORE BOUTROS 333 South Grand Avenue Los Angeles, CA 90071

15

19 20 21 22 23 24 25

UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

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1

3

LOS ANGELES, CALIFORNIA; MONDAY, JULY 15, 2019

2

9:36 A.M.

3

- - - - -

4 5 6 7

THE COURT:

Let me call the matter of Optimum

8

Productions versus Home Box Office.

9

appearances.

10 11 12 13 14

MR. STEINSAPIR:

MR. WEITZMAN:

Howard Weitzman on behalf of

plaintiffs, your Honor. MR. FREEDMAN:

Bryan Freedman on behalf of

plaintiffs, your Honor.

16

MR. ELSEA:

Zachary Elsea on behalf of plaintiffs,

your Honor.

18

THE COURT:

19

MR. PETROCELLI:

20 21 22 23 24 25

Good morning, your Honor.

Jonathan Steinsapir for the plaintiffs' petitioners.

15

17

Let me have

All right.

And for the defense.

Good morning, your Honor.

Daniel

Petrocelli for HBO. MR. BOUTROUS:

Good morning, your Honor.

Theodore

Boutrous for HBO. MR. BACH:

Good morning, your Honor.

Nathaniel

Bach for HBO. MR. MCNALLY:

Good morning, your Honor.

UNITED STATES DISTRICT COURT,

Patrick

CENTRAL DISTRICT OF CALIFORNIA

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1

McNally for HBO.

2 3

MS. ABRUTYN:

Good morning, your Honor.

Stephanie

Abrutyn, in-house counsel for HBO.

4

THE COURT:

A lot of HBO people.

We are here on a

5

continuation of the motion to compel.

6

supplemental briefing, which I got.

7

another written what I call a further consideration of

8

the motion to compel arbitration.

9

have seen it.

10

MR. STEINSAPIR:

11

THE COURT:

12

I asked for

I have issued

I presume both sides

Yes, your Honor.

Both sides have seen the further

written --

13

MR. PETROCELLI:

14

THE COURT:

15

We did.

I will allow you guys to argue.

As I have indicated, I haven't reached a final

16

decision.

17

today.

18

4

It depends on how you argue this matter to me

Yes. MR. PETROCELLI:

Your Honor, I am going to address

19

the first two issues, and Mr. Boutrous will address the

20

First Amendment issue on which you specifically invited

21

argument.

22

THE COURT:

All right.

23

MR. PETROCELLI:

I am going to use whatever

24

capital I may have left with the Court on the second of

25

the two issues, although we respectfully disagree with UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

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1 2 3 4

your tentative on the first issue that the -THE COURT:

Is that your way of saying you are

going to address the second issue, not the first? MR. PETROCELLI:

Yes.

That is a way of saying it,

5

your Honor.

6

of whether this agreement and its arbitration clause

7

picks up this dispute.

8

I want to focus your Honor on this question

The plaintiff cited the Ninth Circuit decision

9

in the Simula v AutoLiv case.

And we agree with the

10

principles articulated there.

The Court there laid down

11

the test for determining whether a dispute is covered by

12

a broad arbitration provision such as we have here.

13

The Court said, "We likewise conclude that the

14

language arising in connection with reaches every dispute

15

between the parties having a significant relationship to

16

the contract, and all disputes having their origin or

17

genesis in the contract.

18

5

"To require arbitration Simula's factual

19

allegations need only touch matters covered by the

20

contract containing the arbitration clause, and all

21

doubts are to be resolved in favor of arbitrability."

22

THE COURT:

That is really broad, isn't it?

23

MR. PETROCELLI:

It is broad, your Honor.

And it is not limitless.

But it

24

is not infinite.

25

plaintiff's position which with which the Court has UNITED STATES DISTRICT COURT,

And the

CENTRAL DISTRICT OF CALIFORNIA

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1

apparently tentatively agreed is literally that HBO is

2

forever barred from saying anything bad about Michael

3

Jackson.

4

the courts have said, of consent, not coercion.

5

And, your Honor, arbitration is a matter, as

THE COURT:

The real question is -- you know, that

6

is an interesting question, but that is not the real

7

question.

8

decide whether or not that is what the parties decided?

9

The real question is shouldn't the arbitrator

MR. PETROCELLI:

So I understand the tension

10

between the decision the Court is being asked to make on

11

this motion and the ultimate merits of the case.

12

will acknowledge, your Honor, that it may well be the

13

case that were your Honor to agree with our position that

14

this dispute is not covered by this agreement, there may

15

be no viable claim to be brought.

16

And I

But that is not a reason not to look at the

17

underlying allegations.

18

THE COURT:

19

No.

I looked at the underlying

allegations.

20

MR. PETROCELLI:

That is what I would like to

21

address, your Honor, because what the plaintiffs have

22

simply done is pointed to the non-disparagement provision

23

and say we think that you breached it and you dispute

24

that.

25

6

Therefore we have an arbitrable matter. But that is -- the gatekeeping function on

UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

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1

arbitrability doesn't put blinders on the Court to look

2

at simply how they denominated a claim or pointed to a

3

particular obligation that the claim is breached.

4

They gave you a ridiculous example.

If HBO

5

assaulted somebody, they couldn't bring a claim under

6

arbitration here.

7

So what they have said is that, well, you

8

disparaged Michael Jackson and there is a

9

non-disparagement clause here.

10

THE COURT:

Let's assume that somebody from HBO

11

assaulted Michael Jackson and said, you pedophile, in

12

public.

13 14 15

MR. PETROCELLI:

Your Honor, this agreement is not

boundless. THE COURT:

I agree it is not boundless, but a

16

disparagement is a disparagement.

17

this documentary did not disparage?

18

MR. PETROCELLI:

Are you saying that

For purposes of this motion, we

19

are not quarreling with the truth or falsity of the

20

allegations.

21

allegations are insufficient to show the significant

22

relationship or that this dispute touches the agreement.

23

7

What we are claiming is that the

And what I am suggesting to your Honor, it has

24

to touch the agreement beyond pointing to a provision in

25

the agreement. UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

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1

THE COURT:

Well, you have to give me the language

2

of the particular provision.

3

language say?

4

MR. PETROCELLI:

Yes.

What does the particular

The provision says thou

5

shalt not disparage the performer.

6

Honor, the arbitration provision requires arbitration of

7

dispute arising under, in connection with, or relating

8

to, quote, this agreement.

9 10

Okay.

But, your

So there must be a tether to the agreement. And when we look at the agreement, your Honor,

11

you have to look at the totality of the agreement.

12

have to ask yourself were the parties really consenting

13

that forever HBO, whether it be Bill Maher or John

14

Oliver, 30 years later, completely unrelated to the

15

subject matter of the agreement, which was the exhibition

16

of a single concert of 70 on a tour --

17

THE COURT:

Let me put it this way.

You

Putting aside

18

the First Amendment concerns, why not?

19

something that arbitrators normally decide, to the extent

20

that something is done for purposes of meeting the

21

disparagement provisions, which the arbitrators are

22

supposed to decide?

23 24 25

8

Why isn't that

This is the normal course for an arbitrator to decide how extensive is this thing going to be. MR. PETROCELLI:

To be clear, under their view all

UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

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1

they would need to do to meet the test is to say that HBO

2

disparaged Michael Jackson.

3

subject to arbitration.

4

THE COURT:

Full stop.

Put it this way.

And that is

They would have to

5

go a little bit further saying how he was disparaged.

6

They couldn't use the term to say he was disparaged

7

without a basis for articulating what the disparagement

8

was.

9

Which they have done here. MR. PETROCELLI:

They have gone beyond.

Well, all they have said is that

10

HBO exhibited some content -- namely this documentary --

11

that disparages Michael Jackson.

12

THE COURT:

If you look at the complaint, it says

13

a little bit more than that.

14

MR. PETROCELLI:

No.

Your Honor, I looked at the

15

complaint, and paragraph 40 contains the salient

16

allegation.

17

Jackson was abusing children," and this is what they

18

emphasized in bold and in italics, "in connection with

19

and on the Dangerous World Tour."

20

Bucharest concert.

21

agreement.

22

9

It says, "The film expressly alleges that

Nothing about the

Nothing about this particular

Zero. And why would they even need to mention the

23

Dangerous World Tour?

Those were 70 concerts over the

24

course of a year-and-a-half.

25

to their analysis. UNITED STATES DISTRICT COURT,

That is almost gratuitous

CENTRAL DISTRICT OF CALIFORNIA

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1

This agreement --

2 3

THE COURT:

Maybe they just like to throw in a

bunch of stuff.

4 5

MR. PETROCELLI:

Well, then, that is precisely my

point, your Honor.

6

THE COURT:

It doesn't get around what they have

7

to have asserted, which was the disparagement -- what the

8

specific disparagement was.

9

is -- I understand what you are trying to argue.

But, I mean, the thing of it You are

10

trying to argue that this is beyond what was contemplated

11

by the parties when they entered into this particular

12

agreement.

13 14

10

MR. PETROCELLI:

That is precisely what I am

arguing.

15

THE COURT:

But that is something that normally

16

arbitrators decide.

17

possibility of that, and I think it clearly falls within

18

the realm of possibility.

19

As long as it is within the

MR. PETROCELLI:

Well, I believe that the Ninth

20

Circuit jurisprudence requires more than that, your

21

Honor.

22

pointing to a provision in a contract, because otherwise

23

what we are dealing with is a situation where not even

24

during the performer's lifetime, but forever, forever,

25

HBO cannot say anything bad about one of the most iconic,

I do think you need underlying facts not merely

UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

SER85

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1

controversial celebrities of all time.

2

in news coverage --

3 4

THE COURT: territory now.

MR. PETROCELLI:

6

THE COURT:

8 9 10 11 12 13 14 15

say. MR. PETROCELLI:

I am now going to take But, your

Honor, I do think these are related concepts. THE COURT:

I understand your argument.

Do you

want to respond? MR. STEINSAPIR:

I would like to respond just

briefly. THE COURT:

Let me ask, how are you guys going to

17

MR. STEINSAPIR:

These are just the pretty faces.

I'm the one.

19

THE COURT:

20

MR. STEINSAPIR:

21

THE COURT:

23

Okay.

your cue and turn it over to Mr. Boutrous.

divide your arguments?

22

I am.

You have to leave something for him to

16

18

That would mean

Again, you are getting into his

5

7

11

I'm sad for you. First of all --

I hope they are not being paid a lot

for that. MR. STEINSAPIR:

24

read the transcript.

25

record.

Well, we won't let our client

That is a joke, by the way, for the

UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

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1

First of all, we didn't only sue under the

2

non-disparagement clause, and this relates to the first

3

amendment issue that is going to be discussed, and that

4

is why I wanted to bring it up.

5

Page 39 of document 18, which includes the

6

non-disparagement provision, also makes very clear that

7

if HBO comes into possession of information that is not

8

public, it has to come to us and get our permission to

9

use it.

10

Okay.

And our biggest complaint about this

11

documentary, and I use documentary in quotes, is that

12

HBO -- and let me also make one other thing clear.

13

friend said that HBO just exhibited this.

14

this.

15

My

HBO produced

HBO's documentary heads were producers on this. Our biggest complaint about this documentary

16

is not that you make a documentary about this subject.

17

It is how you make it.

18

us -- the first time we learned about this documentary --

19 20 21

12

THE COURT:

And the fact that they sandbagged

If that is your argument, I would

agree with him. MR. STEINSAPIR:

But let me just go.

So the point

22

is that there is a confidentiality provision.

23

Supreme Court in Cohen versus Cowles Media held

24

specifically that state law confidentiality provisions

25

are enforceable under the First Amendment. UNITED STATES DISTRICT COURT,

The US

CENTRAL DISTRICT OF CALIFORNIA

SER87

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1

And First Amendment issues are arbitrated all

2

the time in this country.

3

example.

4

claims under collective bargaining agreements all the

5

time.

6

And I will give you an

Public employees arbitrate First Amendment

So HBO's position apparently is the First

7

Amendment precludes HBO from arbitrating a First

8

Amendment defense, but school teachers can arbitrate

9

their claims that they were fired in violation of the

10

First Amendment.

11

that they were fired in violation of the First Amendment.

12

So the fact is that the First Amendment just does not

13

apply here.

14 15

Janitors can be forced to arbitrate

And I guess I am getting into the second issue.

16

THE COURT:

17

MR. STEINSAPIR:

18

THE COURT:

19 20 21

13

You are. And can I get into it?

Well, we have to see what he says

first. MR. STEINSAPIR:

Okay.

Well, the tentative wasn't

in my favor.

22

THE COURT:

Who knows?

23

MR. BOUTROUS:

Thank you, your Honor.

Ted

24

Boutrous for HBO.

I think one thing is clear, and the

25

Court noted in its tentative that there is no question UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

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1

this is a documentary film.

2

There is also no question that it is of great

3

public concern, that it involves one of the most famous

4

public figures of all time.

5

THE COURT:

6

too high a pedestal here.

7

Well, let's not -- let's not put up

MR. BOUTROUS:

I agree.

Because the allegations

8

of the film are serious allegations of child sexual

9

abuse.

10

So it is the kind of thing -THE COURT:

Let me put it this way.

11

news.

12

transpired, but it is not earth-shattering.

13 14 15

It is not new

It is maybe a more in-depth analysis of what

MR. BOUTROUS:

He is dead.

He is, your Honor, and that is why

we see this -THE COURT:

This is my question.

Is the

16

applicable law that should govern this California law or

17

Delaware law?

18

What law is covering this.

MR. BOUTROUS:

We believe that California law on

19

these issues would apply, including the strong policy

20

that the Court cited in its tentative.

21

THE COURT:

22

MR. BOUTROUS:

23 24 25

14

You guys didn't file an anti-SLAPP? We have not filed an anti-SLAPP,

your Honor. THE COURT:

It seemed to me that your argument is

basically premised on a kind of anti-SLAPP. UNITED STATES DISTRICT COURT,

And if you

CENTRAL DISTRICT OF CALIFORNIA

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1

had filed an anti-SLAPP there wouldn't be any question as

2

to going forward in an examination of the First Amendment

3

aspects of this case, because again, they filed a case to

4

compel arbitration.

5

As I see it at this point in time, there is a

6

First Amendment issue, even though there is no state

7

action, per se, but the California legislature has placed

8

a spin in regards to First Amendment issues and the

9

bringing of lawsuits that concern First Amendment rights,

10

be it freedom of speech or freedom of petitioning the

11

government, however all the First Amendment rights are

12

concerned.

13

So, the question is, in essence, what you are

14

arguing is that when they filed this action they are

15

seeking to affect HBO's putting together a documentary on

16

an issue that is obviously newsworthy.

17

toward his arguments in regards to the confidentiality

18

provision.

And it also goes

19

The question is whether or not a

20

confidentiality provision in the context of a contract

21

that was signed for a concert being shown on HBO will

22

have -- what effect is that supposed to have on a

23

documentary prepared decades later on something that

24

doesn't concern the concert.

25

15

And the question is to what extent can the UNITED STATES DISTRICT COURT,

CENTRAL DISTRICT OF CALIFORNIA

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1

plaintiffs seek to utilize any litigation in response to

2

the exercise of this First Amendment right.

3

MR. BOUTROUS:

4

THE COURT:

5

by the way.

6

That's correct, your Honor.

That was beautifully expressed by you,

I like that.

MR. BOUTROUS:

Well, it really is that they are

7

asking this Court to take judicial action to create, as

8

we put it, a perpetual platform to police HBO's speech.

9

And that is the kind of thing that New York Times versus

10

Sullivan and the California anti-SLAPP statute is meant

11

to preclude.

12 13

THE COURT:

MR. BOUTROUS:

Your Honor, let me address that

because we --

16 17

And yet you didn't file an anti-SLAPP

motion.

14 15

THE COURT:

Have you waived even the time period

for filing an anti-SLAPP motion?

18

MR. BOUTROUS:

That does not apply in federal

19

court.

20

procedural mechanism --

21

THE COURT:

22 23

16

other.

And if the Court thinks that is the proper

I am not thinking one way or the

I am just asking these questions. MR. BOUTROUS:

We were thinking that we would take

24

it in two steps based on the allegations here, based on

25

the scope of the contract and the question that UNITED STATES DISTRICT COURT,

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Mr. Petrocelli was discussing with the Court, whether

2

this dispute is encompassed, that that should take care

3

of the issue.

4

If the Court disagrees with us, I do think

5

that the First Amendment concern should inform that

6

question.

7

THE COURT:

The First Amendment concerns were

8

basically a couple of pages in your briefs, whereas all

9

the other stuff was pages and pages and pages that I had

10 11

to read. MR. BOUTROUS:

I thought it was so

12

straightforward, your Honor, that we could just cut to

13

the chase, because there is no question --

14

THE COURT:

When you argue in front of the supreme

15

court, do you use that sort of thing too or you just

16

don't do it simply for the fact that you don't know what

17

the results of that type of statement will be?

18

17

MR. BOUTROUS:

Well, you never know, your Honor.

19

But in our opposition to the plaintiff's motion, we did

20

lay out the First Amendment concerns that the California

21

courts -- and it is clear that this is fully protected

22

speech of public concern about a public figure subject to

23

the highest First Amendment concerns.

24

what the parties really -- would HBO with those First

25

amendment interests at stake in 1992 have agreed to UNITED STATES DISTRICT COURT,

And we look at

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1 2

muzzle itself forever regarding Michael Jackson. THE COURT:

Well, if you are going to go there,

3

then we have to look and see did Michael Jackson

4

authorize any broadcasts of his concerts.

5

extremely famous at that point in time.

6

been a situation where HBO would have agreed to get this

7

particular concert on our platform at that point in time

8

when HBO was what it was at that point in time, then

9

would they have agreed that we weren't going to do any of

10

those things.

11

don't think you want to go there.

12

He was

And it may have

So is it a purely contractual matter.

MR. BOUTROUS:

I

But I would say, your Honor, that

13

even plaintiffs did not think in February of 2019 -- when

14

they filed their letter seeking to block the broadcast,

15

they didn't cite this contract.

16

And it is clear -- this goes back to the

17

Court's question about the anti-SLAPP motion and about

18

the procedure.

19

The fact of the filing of this lawsuit,

20

seeking a public arbitration, which isn't even in the

21

agreement, was really meant to chill speech.

22

what the anti-SLAPP statute recognizes, that the mere

23

filing of a lawsuit seeking tens of millions of dollars

24

of damages --

25

18

THE COURT:

And that is

Again, you didn't --

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MR. BOUTROUS:

We would like permission, your

2

Honor, to do so.

3

is the -- you are not expressing an opinion.

It sounds like the Court believes that

4

THE COURT:

5

MR. BOUTROUS:

I am not expressing an opinion. But we would like an opportunity to

6

do that, your Honor, if the Court is inclined to on the

7

other issues.

8 9

THE COURT:

All right.

Do you have anything else

to add?

10 11

MR. BOUTROUS:

I think that is it, your Honor.

Thank you.

12

THE COURT:

13

MR. STEINSAPIR:

Let me hear from the plaintiff. Taking the last issue first on

14

whether to file an anti-SLAPP, I do think the deadline on

15

timing does file in federal court -- that is the time to

16

file.

17

you file a responsive pleading, one responsive pleading.

18

Their responsive pleading was a 12(b) -- or not 12(b).

19

It was an opposition to the motion.

20 21

And under the Federal Rules of Civil Procedure,

THE COURT:

You say that in federal court you

cannot file a successive 12(b)(6) followed by a SLAPP?

22 23

19

MR. STEINSAPIR:

No.

You file them at the same

time.

24

THE COURT:

That is what I just said.

25

can't do it separately. UNITED STATES DISTRICT COURT,

I say you

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MR. STEINSAPIR:

Oh, no, no.

You can do it

2

separately, but you have to do it within the deadline to

3

respond.

4

And they have not filed any anti-SLAPP.

THE COURT:

Put it this way.

If that is your

5

position, I will allow him to file it and you can bring

6

out -- you cite to me the cases.

7

MR. STEINSAPIR:

First of all, your Honor raised

8

the anti-SLAPP issue at the last hearing and they still

9

didn't bring anything else about it.

10

THE COURT:

I was too subtle the last time.

And

11

they just didn't appreciate the gem that was in their

12

mine.

13

went on forward and kept digging.

14 15

18

They had the stone and they just threw it back and

MR. STEINSAPIR:

You mentioned the anti-SLAPP

statute specifically at the last hearing.

16 17

THE COURT:

Sometimes it just takes a little

while. MR. STEINSAPIR:

Okay.

The anti-SLAPP statute

19

does not apply to motions to compel arbitration.

20

can explain why.

21 22

20

And I

AT&T versus Concepcion -THE COURT:

Let me stop you.

That argument I will

23

entertain on the basis of briefing.

24

are going to cite to me these things and I am not going

25

to say you are right or wrong, because again, this is an UNITED STATES DISTRICT COURT,

In other words, you

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interesting issue.

2

I mean, to what extent does -- because you

3

have a strong federal policy favoring arbitration and yet

4

you have, I guess one would argue, an equally strong, if

5

not stronger, concern in regards to First Amendment

6

issues.

7

interplay of these two issues.

8

MR. STEINSAPIR:

9

And so there is obviously this interesting

Sure.

And the interplay has been

decided by AT&T versus Concepcion.

10

THE COURT:

I understand that is your position.

11

But again, nobody has briefed it to me.

12

going to entertain an oral motion one way or the other.

And I am not

13

What I will probably wind up doing is allowing

14

the defendant to make their motion, SLAPP motion, and see

15

if it flies.

16

doesn't fly, it will land like a turd.

17

term.

18

21

If it flies, then it will fly.

MR. STEINSAPIR:

If it

That's a legal

Well, your Honor, if I could just

19

talk a little bit more about why this isn't a First

20

Amendment issue.

21

THE COURT:

Okay.

22

MR. STEINSAPIR:

Look, as your Honor says, they

23

are complaining that this contract supposedly allows a

24

perpetual forum to enforce a defamation after death

25

claim, which this isn't. UNITED STATES DISTRICT COURT,

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But sticking on that perpetual forum, that is

2

not an attack on the arbitration clause at all because

3

this Court would be the perpetual forum.

4 5

THE COURT:

Let me ask this question.

Was Optimum

Productions even in existence at the time?

6

MR. STEINSAPIR:

Absolutely.

Absolutely.

7

Absolutely it was.

8

founded in 1983.

9

merged into Optimum Productions, and it succeeds to its

10

And that is in evidence.

It was

TTC Touring, the contracting party, was

rights.

11

And that is why this isn't a defamation after

12

death.

13

a non-disparagement clause.

14

Amendment issues.

15

they have raised, that attacks the arbitration clause,

16

not just the non-disparagement clause.

17

It is a brief of confidentiality and a breach and Those do not raise First

And the First Amendment issue that

Their attacking against the arbitration clause

18

is they are saying arbitration would create a perpetual

19

forum to enforce the contract's rights.

20

in your tentative.

21

22

You quoted that

But if there wasn't an arbitration clause, the

22

court would be the perpetual forum and the Court would

23

decide whether this claim has validity, just like the

24

arbitrator would.

25

THE COURT:

I understand all that, and again, that

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is why my focus at this point in time is not on that

2

aspect of the case.

3

First Amendment issues.

4

because it crystallizes it, because it raises both the

5

litigation rights -- because everybody has a right to

6

file suit.

7

you know, how can you prevent me from filing, going

8

forward and continuing with the suit.

9

by contract.

10 11

It is really on this aspect of the And the reference to SLAPP was

And it would have been a shock to say, oh,

It is provided for

It is provided for in case law.

It is

provided for in common law, et cetera, et cetera. And yet you have a statute that was enacted in

12

in California that affects the ability of people to

13

litigate when that litigation has an adverse effect -- an

14

adverse and improper effect on First Amendment rights.

15

One might very well argue that in the end it

16

may have an effect on First Amendment rights, but it is

17

not a proper effect on First Amendment rights, and

18

therefore they should lose their SLAPP motion, which is a

19

lot of stuff I think you are going to be arguing now.

20 21 22 23

23

But again, I am not going to entertain it on the basis of an oral representation. MR. STEINSAPIR:

If I can try to convince you that

you shouldn't let an anti-SLAPP --

24

THE COURT:

How would you possibly do that?

25

MR. STEINSAPIR:

I am that charming.

UNITED STATES DISTRICT COURT,

But I do

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think that --

2 3

THE COURT:

That takes you maybe 5 percent of the

way.

4 5

MR. STEINSAPIR:

That is for the arbitrator, your

Honor.

6

THE COURT:

7

MR. STEINSAPIR:

Save it for an arbitrator. No, your Honor.

We have two of

8

the best law firms in town representing HBO.

9

lawyers in the world.

10 11

THE COURT: law firms.

12

You should be great.

The best

Two of the best

Two of the best.

MR. STEINSAPIR:

The two best.

Look.

I think

13

that giving them a way out at this point is just not

14

fair.

15

issue to be resolved.

16

We want to get to arbitration and we want this

Now, when you came back on confirmation

17

proceedings, if the arbitrator issues an injunction,

18

which we are not asking for, you can address those.

19

THE COURT:

But the problem is this.

Again, there

20

is a concern, and it is the SLAPP concern, that you are

21

not supposed to be allowed to continue with litigation

22

that has an adverse affect on First Amendment rights,

23

according to the California legislature, which is

24

apparently what this case is proceeding under.

25

24

MR. STEINSAPIR:

I will take my one last shot,

UNITED STATES DISTRICT COURT,

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which is according to the California legislature, and

2

just like the California legislature said that class

3

action waivers are not enforceable as a matter of

4

California public policy, my friends on the other side,

5

AT&T, who own HBO, went to the supreme court and said

6

that, no, the FAA pre-empts the California legislature

7

and the California supreme court saying that class action

8

waivers are unenforceable.

9

arbitration.

10

You have to enforce

Same exact thing here.

THE COURT:

Well, again, I recognize there are all

11

these things, because again, as I indicated earlier there

12

is a tension between the Federal Arbitration Act, which

13

obviously favors arbitration, and First Amendment

14

concerns.

15

It might very well be that an argument, I

16

guess, you can make is that the FAA supersedes SLAPP

17

motions.

18

MR. STEINSAPIR:

19

THE COURT:

Exactly.

But there is no case that has held

20

that.

21

Therefore this case may be the one in which case it will

22

be emblazoned with your name as a successful litigant, of

23

course unless you get to the supreme court and then he

24

argues something and it is like home town --

25

25

I looked for it.

MR. STEINSAPIR:

I didn't see anything.

I think I would be replaced in

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1

the supreme court.

2

THE COURT:

3

MR. STEINSAPIR:

4

THE COURT:

5

MR. STEINSAPIR:

You shouldn't be. But I agree with your Honor.

Don't let your client try to do that. Well, your Honor, I am going

6

to -- other than respectfully submitting that they have

7

waived the right to bring an anti-SLAPP --

8

THE COURT:

9

MR. STEINSAPIR:

They may have. Oh, I don't mean -- as a matter

10

of a federal district judge having control over his own

11

docket.

12

THE COURT:

But conversely, certain aspects of it

13

might be controlled by state law, and there might be a

14

waiver.

15

because again, it wasn't raised.

16

Who knows.

I haven't looked at the issue,

So again, at this point in time my tentative

17

is to postpone a final determination and let the defense

18

go forward with a proposed anti-SLAPP motion, and then

19

you can respond.

20 21

26

MR. STEINSAPIR:

Can I make just a request for

clarification?

22

THE COURT:

Or one other thing.

23

MR. STEINSAPIR:

This is a request for

24

clarification, honestly.

All other issues other than the

25

anti-SLAPP, such as the issues Mr. Petrocelli was raising UNITED STATES DISTRICT COURT,

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about whether there is arbitrable notwithstanding

2

anti-SLAPP, those have been decided.

3

reargue those.

4

THE COURT:

No.

We are not going to

Because I think it comes into

5

play in part.

6

has to be done.

7

the discussion of the anti-SLAPP nothing changes in

8

regards to those aspects, then I have already given what

9

my position is, and unless something happens I probably

In other words, it is a fine-tuning that I have indicated in my tentative.

If in

10

will stick with those positions, to the extent I can

11

remember them by the time this thing is resolved.

12

Yes.

I understand that, but I am not at this

13

time going to make any sort of preliminary finding in

14

that regard other than to tentatively indicate where I am

15

leaning.

16

MR. STEINSAPIR:

I will give Mr. Boutrous the last

17

word, but I think my pretty-faced colleague wants to say

18

something.

19

MR. FREEDMAN:

20

notice of that, your Honor.

21

And we are not asking for judicial

So, you know, one question back to the Court

22

is why is the First Amendment issue not an issue for the

23

arbitrator to decide?

24 25

27

THE COURT:

Because -- well, I don't know.

Maybe

that is something you should argue. UNITED STATES DISTRICT COURT,

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MR. FREEDMAN:

Well, I mean, I think in some sense

2

we actually have argued that.

3

a procedural SLAPP motion that may or may not apply, what

4

we have said all along is that if this is a defense, if

5

if the First Amendment is a defense, an arbitrator is

6

eminently qualified to make a ruling as to a First

7

Amendment defense in this case.

8 9

THE COURT:

And just because there is

Again, this is stuff that you guys, I

am sure you are going to litigate, and you have your

10

little minions to start researching this stuff and you

11

will present it to me whenever you can present it to me.

12

MR. FREEDMAN:

13

THE COURT:

But my point --

I am not saying your point is wrong.

14

Obviously we can sit down here and think of all these

15

wonderful issues that are going to be raised in this

16

particular aspect of the case, but there is no way we can

17

resolve it at this point in time, because again, they are

18

are going to have to have some research.

19

to have to look at this, look at that and give me a

20

brief.

21

They are going

And then I will look at the briefs and I will

22

either agree with one side or the other or, like I am

23

doing now, indicate that I can't agree because I still

24

want more stuff.

25

28

MR. FREEDMAN:

Sure.

But just to clarify, your

UNITED STATES DISTRICT COURT,

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Honor has found that other than this issue of First

2

Amendment --

3

THE COURT:

In other words, I am going to keep

4

myself to my position that in my tentative I indicated

5

no.

6

yes, I have said what I said, and if nothing else is

7

presented to me that would cause me to change my

8

viewpoint, then what I have said is probably what I will

9

say in the end.

I indicated that unless -- generally I would say

10

But because of the fact that I do agree with

11

Mr. Petrocelli -- you know, I have gone through so many

12

years.

Have I pronounced that correctly this time?

13

MR. PETROCELLI:

14

THE COURT:

You did, your Honor.

Because he was with me in another case

15

that I managed to mangle his name almost every single

16

time.

17

MR. PETROCELLI:

18

THE COURT:

That was a long time ago.

But he was very forgiving.

And so,

19

unless something happens, that is probably going to be my

20

position.

21

again, as he indicated there is an interplay between

22

First Amendment and all these other issues as well.

23

29

But I am not going to commit myself, because

MR. STEINSAPIR:

Sure.

And just for purposes of

24

clarity on the record, it is our position that to the

25

extent there is a First Amendment defense, which there UNITED STATES DISTRICT COURT,

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may or may not be, that is -- the arbitrator is qualified

2

to rule on that.

3

THE COURT:

I understand that is your position.

4

And again, I will take a look at it.

5

the issues that the parties are going to be raising, and

6

we will see what happens.

7

MR. BOUTROUS:

That will be one of

Your Honor, I will save my response

8

to that for an anti-SLAPP motion, which I propose, if it

9

works for the Court, we file by, say, August 15th.

10

THE COURT:

11

MR. BOUTROUS:

12

THE COURT:

13

Let me ask the -It is a Thursday.

The plaintiff counsel, any problem

with an August 15th filing?

14

MR. STEINSAPIR:

15

THE COURT:

16

We would prefer it to be earlier.

Well, let me ask you this.

How long

is it going to take for you to respond, then?

17

MR. STEINSAPIR:

18

THE COURT:

19

MR. BOUTROUS:

20

THE COURT:

21

then a reply on the 5th.

22

for the 16th.

Two weeks.

Two weeks. And then we do a reply in a week.

So the 15th, response on the 29th, and I will put it back on calendar

23

MR. BOUTROUS:

24

16th, but let me just check.

25

30

I think I am in New York on the

What I remember, your Honor, is I have a Ninth UNITED STATES DISTRICT COURT,

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Circuit argument that may be the week of the 16th, but if

2

it is not that day, then I am good.

3

Court know.

4

MR. STEINSAPIR:

And I will let the

We can submit a briefing

5

schedule.

But I think the 16th is good.

6

reason the Ninth Circuit schedules it on the 16th, maybe

7

do the 19th, which is the Thursday.

8

MR. BOUTROUS:

9

MR. STEINSAPIR:

10

Circuit that.

MR. BOUTROUS:

12

THE COURT:

13

If for some

Or we could --

That is when I will be in New York. But he can also tell the Ninth

They listen.

11

They listen.

I am happy to do that.

They listen to him.

They don't listen

to me, for sure.

14

MR. STEINSAPIR:

15

MR. BOUTROUS:

16

THE COURT:

17

MR. BOUTROUS:

18

THE COURT:

Well, that is a common complaint.

Thank you very much, your Honor.

My name is mud up there. Thank you.

In fact, you probably want me to rule

19

against you.

20

because eventually the Ninth Circuit will go the other

21

way.

Either side wants me to rule against them

22

MR. STEINSAPIR:

23

THE COURT:

24 25

31

I will take my odds.

All right.

gentlemen and lady.

Thank you very much,

Have a very nice day.

(Proceedings concluded.) UNITED STATES DISTRICT COURT,

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1

CERTIFICATE

2 3 4

I hereby certify that pursuant to Section 753, Title 28,

5

United States Code, the foregoing is a true and correct

6

transcript of the stenographically reported proceedings held

7

in the above-entitled matter and that the transcript page

8

format is in conformance with the regulations of the

9

Judicial Conference of the United States.

10

Date:

July 17, 2019

11 12

/s/ Katie Thibodeaux, CSR No. 9858, RPR, CRR

13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT,

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21/19 27/1

arbitrated [1]

13/1

Case: 19-56222, 07/08/2020, ID:[1] 11746679, DktEntry: 17,arbitrating Page 111 of[1] 238 13/7 above 32/7

MR. BACH: [1] 3/22 MR. BOUTROUS: [25] MR. ELSEA: [1] 3/15 MR. FREEDMAN: [5] 3/13 27/18 27/25 28/11 28/24 MR. MCNALLY: [1] 3/24 MR. PETROCELLI: [21] MR. STEINSAPIR: [40] MR. WEITZMAN: [1] 3/11 MS. ABRUTYN: [1] 4/1 THE COURT: [84]

above-entitled [1] 32/7 Abrutyn [1] 4/3 Absolutely [3] 22/6 22/6 22/7 abuse [1] 14/9 abusing [1] 9/17 according [2] 24/23 25/1 acknowledge [1] 6/12 Act [1] 25/12 action [5] 15/7 15/14 16/7 25/3 25/7 actually [1] 28/2 add [1] 19/9 -and [4] 2/7 2/9 2/9 2/17 address [6] 4/18 4/19 5/3 6/21 16/14 24/18 / adverse [3] 23/13 23/14 /s [1] 32/12 24/22 affect [2] 15/15 24/22 1 affects [1] 23/12 12 [3] 19/18 19/18 19/21 after [2] 21/24 22/11 15 [2] 1/15 3/1 again [16] 11/3 15/3 18/25 15th [3] 30/9 30/13 30/20 20/25 21/11 22/25 23/20 16th [5] 30/22 30/24 31/1 24/19 25/10 25/11 26/15 31/5 31/6 26/16 28/8 28/17 29/21 30/4 17 [1] 32/10 against [3] 22/17 31/19 18 [1] 12/5 31/19 1862 [1] 1/8 ago [1] 29/17 19-1862 [1] 1/8 agree [9] 5/9 6/13 7/15 1901 [1] 2/5 12/20 14/7 26/3 28/22 28/23 1983 [1] 22/8 29/10 1992 [1] 17/25 agreed [4] 6/1 17/25 18/6 1999 [1] 2/15 18/9 19th [1] 31/7 agreement [15] 5/6 6/14 7/13 1st [1] 1/20 7/22 7/24 7/25 8/8 8/9 8/10 8/11 8/15 9/21 10/1 10/12 2 18/21 2019 [4] 1/15 3/1 18/13 agreements [1] 13/4 32/10 ALDISERT [1] 2/8 28 [1] 32/4 all [24] 29th [1] 30/20 allegation [1] 9/16 allegations [8] 5/19 6/17 3 6/19 7/20 7/21 14/7 14/8 30 [1] 8/14 16/24 333 [1] 2/19 alleges [1] 9/16 350 [1] 1/20 allow [2] 4/14 20/5 39 [1] 12/5 allowed [1] 24/21 allowing [1] 21/13 4 allows [1] 21/23 40 [1] 9/15 almost [2] 9/24 29/15 4311 [1] 1/20 along [1] 28/4 already [1] 27/8 5 also [5] 12/6 12/12 14/2 5 percent [1] 24/2 15/16 31/9 500 [1] 2/5 although [1] 4/25 5th [1] 30/21 am [25] amendment [38] 7 analysis [2] 9/25 14/11 70 [2] 8/16 9/23 ANGELES [6] 1/14 1/21 2/6 753 [1] 32/4 2/16 2/19 3/1 another [2] 4/7 29/14 8 anti [21] 808 [1] 2/10 anti-SLAPP [21] any [7] 15/1 16/1 18/4 18/9 9 20/3 27/13 30/12 90012 [1] 1/21 anything [5] 6/2 10/25 19/8 90067 [2] 2/6 2/16 20/9 25/20 90071 [1] 2/19 apparently [3] 6/1 13/6 90401 [1] 2/11 24/24 9858 [2] 1/19 32/12 appearances [2] 2/1 3/9 9:36 [1] 3/2 applicable [1] 14/16 apply [5] 13/13 14/19 16/18 A 20/19 28/3 appreciate [1] 20/11 A.M [1] 3/2 arbitrability [2] 5/21 7/1 ability [1] 23/12 arbitrable [2] 6/24 27/1 about [14] 6/2 9/19 9/20 arbitrate [3] 13/3 13/8 10/25 12/10 12/15 12/16 12/18 17/22 18/17 18/17 20/9 13/10

arbitration [23] arbitrator [9] 6/7 8/23 22/24 24/4 24/6 24/17 27/23 28/5 30/1 arbitrators [3] 8/19 8/21 10/16 are [44] argue [8] 4/14 4/16 10/9 10/10 17/14 21/4 23/15 27/25 argued [1] 28/2 argues [1] 25/24 arguing [3] 10/14 15/14 23/19 argument [7] 4/21 11/11 12/19 14/24 20/22 25/15 31/1 arguments [2] 11/16 15/17 arising [2] 5/14 8/7 around [1] 10/6 articulated [1] 5/10 articulating [1] 9/7 as [17] aside [1] 8/17 ask [5] 8/12 11/15 22/4 30/10 30/15 asked [2] 4/5 6/10 asking [4] 16/7 16/22 24/18 27/19 aspect [3] 23/2 23/2 28/16 aspects [3] 15/3 26/12 27/8 assaulted [2] 7/5 7/11 asserted [1] 10/7 assume [1] 7/10 attack [1] 22/2 attacking [1] 22/17 attacks [1] 22/15 August [2] 30/9 30/13 August 15th [2] 30/9 30/13 authorize [1] 18/4 AutoLiv [1] 5/9 Avenue [3] 2/5 2/15 2/19

B Bach [1] 3/24 back [5] 18/16 20/12 24/16 27/21 30/21 bad [2] 6/2 10/25 bargaining [1] 13/4 barred [1] 6/2 based [2] 16/24 16/24 basically [2] 14/25 17/8 basis [3] 9/7 20/23 23/21 be [35] beautifully [1] 16/4 because [23] been [4] 18/6 21/8 23/6 27/2 behalf [3] 3/12 3/14 3/16 being [3] 6/10 11/21 15/21 believe [2] 10/19 14/18 believes [1] 19/2 best [5] 24/8 24/8 24/10 24/11 24/12 between [4] 5/15 6/10 25/12 29/21 beyond [3] 7/24 9/8 10/10 biggest [2] 12/10 12/15 Bill [1] 8/13 bit [3] 9/5 9/13 21/19 blinders [1] 7/1 block [1] 18/14 bold [1] 9/18 both [3] 4/8 4/11 23/4 Boulevard [1] 2/10 boundless [2] 7/14 7/15 BOUTROS [1] 2/18 Boutrous [5] 3/22 4/19 11/9 13/24 27/16 Box [2] 1/9 3/8

SER108

B

breach [1] 22/12 breached [2] 6/23 7/3 BRIAN [1] 2/4 brief [2] 22/12 28/20 briefed [1] 21/11 briefing [3] 4/6 20/23 31/4 briefly [1] 11/14 briefs [2] 17/8 28/21 bring [5] 7/5 12/4 20/5 20/9 26/7 bringing [1] 15/9 broad [3] 5/12 5/22 5/23 broadcast [1] 18/14 broadcasts [1] 18/4 brought [1] 6/15 Bryan [1] 3/14 Bucharest [1] 9/20 bunch [1] 10/3

C

colleague [1]

27/17

DANIEL [2]

2/14 3/19

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17,Date Page 11232/10 of 238 collective [1] 13/4 [1] come [1] 12/8 comes [2] 12/7 27/4 commit [1] 29/20 common [2] 23/10 31/14 compel [4] 4/5 4/8 15/4 20/19 complaining [1] 21/23 complaint [5] 9/12 9/15 12/10 12/15 31/14 completely [1] 8/14 Concepcion [2] 20/21 21/9 concepts [1] 11/10 concern [8] 14/3 15/9 15/24 17/5 17/22 21/5 24/20 24/20 concerned [1] 15/12 concerns [5] 8/18 17/7 17/20 17/23 25/14 concert [5] 8/16 9/20 15/21 15/24 18/7 concerts [2] 9/23 18/4 conclude [1] 5/13 concluded [1] 31/25 Conference [1] 32/9 confidentiality [5] 12/22 12/24 15/17 15/20 22/12 confirmation [1] 24/16 conformance [1] 32/8 connection [3] 5/14 8/7 9/18 consent [1] 6/4 consenting [1] 8/12 consideration [1] 4/7 containing [1] 5/20 contains [1] 9/15 contemplated [1] 10/10 content [1] 9/10 context [1] 15/20 continuation [1] 4/5 continue [1] 24/21 continuing [1] 23/8 contract [9] 5/16 5/17 5/20 10/22 15/20 16/25 18/15 21/23 23/9 contract's [1] 22/19 contracting [1] 22/8 contractual [1] 18/10 control [1] 26/10 controlled [1] 26/13 controversial [1] 11/1 conversely [1] 26/12 convince [1] 23/22 correct [2] 16/3 32/5 correctly [1] 29/12 could [3] 17/12 21/18 31/7 couldn't [2] 7/5 9/6 counsel [3] 2/1 4/3 30/12 country [1] 13/2 couple [1] 17/8 course [3] 8/23 9/24 25/23 court [31] Court's [1] 18/17 courts [2] 6/4 17/21 coverage [1] 11/2 covered [3] 5/11 5/19 6/14 covering [1] 14/17 Cowles [1] 12/23 create [2] 16/7 22/18 CRR [1] 32/12 CRUTCHER [1] 2/18 crystallizes [1] 23/4 CSR [2] 1/19 32/12 cue [1] 11/9 cut [1] 17/12 CV [1] 1/8

CA [5] 1/21 2/6 2/11 2/16 2/19 calendar [1] 30/21 CALIFORNIA [15] 1/2 1/14 3/1 14/16 14/18 15/7 16/10 17/20 23/12 24/23 25/1 25/2 25/4 25/6 25/7 call [2] 3/7 4/7 came [1] 24/16 can [19] can't [2] 19/25 28/23 cannot [2] 10/25 19/21 capital [1] 4/24 care [1] 17/2 case [14] 5/9 6/11 6/13 15/3 15/3 23/2 23/9 24/24 25/19 25/21 25/21 28/7 28/16 29/14 cases [1] 20/6 cause [1] 29/7 celebrities [1] 11/1 CENTRAL [1] 1/2 certain [1] 26/12 CERTIFICATE [1] 32/1 certify [1] 32/4 cetera [2] 23/10 23/10 change [1] 29/7 changes [1] 27/7 charming [1] 23/25 chase [1] 17/13 check [1] 30/24 child [1] 14/8 children [1] 9/17 chill [1] 18/21 Circuit [6] 5/8 10/20 31/1 31/6 31/10 31/20 cite [3] 18/15 20/6 20/24 cited [2] 5/8 14/20 Civil [1] 19/16 claim [6] 6/15 7/2 7/3 7/5 21/25 22/23 claiming [1] 7/20 claims [2] 13/4 13/9 clarification [2] 26/21 26/24 clarify [1] 28/25 clarity [1] 29/24 class [2] 25/2 25/7 clause [10] 5/6 5/20 7/9 12/2 22/2 22/13 22/15 22/16 22/17 22/21 clear [6] 8/25 12/6 12/12 13/24 17/21 18/16 clearly [1] 10/17 client [2] 11/23 26/4 Code [1] 32/5 D coercion [1] 6/4 damages [1] 18/24 Cohen [1] 12/23 Dangerous [2] 9/19 9/23

day [2] 31/2 31/24 dead [1] 14/12 deadline [2] 19/14 20/2 dealing [1] 10/23 death [2] 21/24 22/12 decades [1] 15/23 decide [7] 6/8 8/19 8/22 8/24 10/16 22/23 27/23 decided [3] 6/8 21/9 27/2 decision [3] 4/16 5/8 6/10 defamation [2] 21/24 22/11 defendant [3] 1/9 2/13 21/14 defense [7] 3/18 13/8 26/17 28/4 28/5 28/7 29/25 Delaware [1] 14/17 denominated [1] 7/2 depends [1] 4/16 depth [1] 14/11 determination [1] 26/17 determining [1] 5/11 did [6] 4/13 7/17 17/19 18/3 18/13 29/13 didn't [8] 12/1 14/21 16/12 18/15 18/25 20/9 20/11 25/20 digging [1] 20/13 disagree [1] 4/25 disagrees [1] 17/4 discussed [1] 12/3 discussing [1] 17/1 discussion [1] 27/7 disparage [2] 7/17 8/5 disparaged [4] 7/8 9/2 9/5 9/6 disparagement [12] 6/22 7/9 7/16 7/16 8/21 9/7 10/7 10/8 12/2 12/6 22/13 22/16 disparages [1] 9/11 dispute [8] 5/7 5/11 5/14 6/14 6/23 7/22 8/7 17/2 disputes [1] 5/16 district [4] 1/1 1/2 1/4 26/10 divide [1] 11/16 DIVISION [1] 1/2 do [23] docket [1] 26/11 document [1] 12/5 documentary [11] 7/17 9/10 12/11 12/11 12/14 12/15 12/16 12/18 14/1 15/15 15/23 does [6] 8/2 13/12 16/18 19/15 20/19 21/2 doesn't [4] 7/1 10/6 15/24 21/16 doing [2] 21/13 28/23 dollars [1] 18/23 don't [7] 17/16 17/16 18/11 26/4 26/9 27/24 31/12 done [4] 6/22 8/20 9/8 27/6 doubts [1] 5/21 down [2] 5/10 28/14 DUNN [1] 2/18 during [1] 10/24

E earlier [2] 25/11 30/14 earth [1] 14/12 earth-shattering [1] 14/12 effect [5] 15/22 23/13 23/14 23/16 23/17 Eighth [1] 2/15 either [2] 28/22 31/19 else [3] 19/8 20/9 29/6 ELSEA [2] 2/9 3/16 emblazoned [1] 25/22 eminently [1] 28/6 emphasized [1] 9/18

SER109

E

forced [1]

13/10

9/8 13/13 14/6 16/24 25/9

Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, 28/14 Page 113 of 238 foregoing [1] 32/5

employees [1] 13/3 empts [1] 25/6 enacted [1] 23/11 encompassed [1] 17/2 end [2] 23/15 29/9 enforce [3] 21/24 22/19 25/8 enforceable [2] 12/25 25/3 entered [1] 10/11 entertain [3] 20/23 21/12 23/20 entitled [1] 32/7 equally [1] 21/4 essence [1] 15/13 et [2] 23/10 23/10 even [7] 9/22 10/23 15/6 16/16 18/13 18/20 22/5 eventually [1] 31/20 every [2] 5/14 29/15 everybody [1] 23/5 evidence [1] 22/7 exact [1] 25/9 Exactly [1] 25/18 examination [1] 15/2 example [2] 7/4 13/3 exercise [1] 16/2 exhibited [2] 9/10 12/13 exhibition [1] 8/15 existence [1] 22/5 explain [1] 20/20 expressed [1] 16/4 expressing [2] 19/3 19/4 expressly [1] 9/16 extensive [1] 8/24 extent [5] 8/19 15/25 21/2 27/10 29/25 extremely [1] 18/5

forever [5] 6/2 8/13 10/24 10/24 18/1 forgiving [1] 29/18 format [1] 32/8 forum [5] 21/24 22/1 22/3 22/19 22/22 forward [4] 15/2 20/13 23/8 26/18 found [1] 29/1 founded [1] 22/8 FREEDMAN [3] 2/4 2/4 3/14 freedom [2] 15/10 15/10 friend [1] 12/13 friends [1] 25/4 front [1] 17/14 Full [1] 9/2 fully [1] 17/21 function [1] 6/25 further [3] 4/7 4/11 9/5

hereby [1] 32/4 high [1] 14/6 highest [1] 17/23 him [4] 11/6 12/20 20/5 31/12 his [5] 11/3 15/17 18/4 26/10 29/15 home [3] 1/9 3/8 25/24 honestly [1] 26/24 Honor [50] HONORABLE [1] 1/3 hope [1] 11/21 house [1] 4/3 how [9] 4/16 7/2 8/24 9/5 11/15 12/17 23/7 23/24 30/15 HOWARD [2] 2/8 3/12 however [1] 15/11

I

I'm [2] 11/18 11/19 iconic [1] 10/25 gatekeeping [1] 6/25 improper [1] 23/14 gave [1] 7/4 in-depth [1] 14/11 gem [1] 20/11 in-house [1] 4/3 generally [1] 29/5 inclined [1] 19/6 genesis [1] 5/17 includes [1] 12/5 gentlemen [1] 31/24 including [1] 14/19 GEORGE [1] 1/3 indicate [2] 27/14 28/23 get [6] 10/6 12/8 13/17 18/6 indicated [6] 4/15 25/11 24/14 25/23 27/6 29/4 29/5 29/21 getting [2] 11/3 13/14 infinite [1] 5/24 GIBSON [1] 2/18 inform [1] 17/5 give [4] 8/1 13/2 27/16 information [1] 12/7 28/19 injunction [1] 24/17 given [1] 27/8 insufficient [1] 7/21 giving [1] 24/13 interesting [3] 6/6 21/1 go [6] 9/5 12/21 18/2 18/11 21/6 F 26/18 31/20 interests [1] 17/25 FAA [2] 25/6 25/16 goes [2] 15/16 18/16 interplay [3] 21/7 21/8 faced [1] 27/17 going [28] 29/21 faces [1] 11/17 gone [2] 9/8 29/11 invited [1] 4/20 fact [6] 12/17 13/12 17/16 good [8] 3/10 3/19 3/21 3/23 involves [1] 14/3 18/19 29/10 31/18 3/25 4/2 31/2 31/5 is [162] facts [1] 10/21 got [1] 4/6 ISER [1] 2/8 factual [1] 5/18 govern [1] 14/16 isn't [6] 5/22 8/18 18/20 fair [1] 24/14 government [1] 15/11 21/19 21/25 22/11 falls [1] 10/17 Grand [1] 2/19 issue [18] falsity [1] 7/19 gratuitous [1] 9/24 issued [1] 4/6 famous [2] 14/3 18/5 great [2] 14/2 24/10 issues [16] 4/19 4/25 13/1 favor [2] 5/21 13/21 guess [3] 13/14 21/4 25/16 14/19 15/8 19/7 21/6 21/7 favoring [1] 21/3 guys [4] 4/14 11/15 14/21 22/14 23/3 24/17 26/24 26/25 favors [1] 25/13 28/8 28/15 29/22 30/5 February [1] 18/13 GW [1] 1/8 it [102] federal [7] 16/18 19/15 italics [1] 9/18 19/16 19/20 21/3 25/12 26/10 H its [4] 5/6 13/25 14/20 22/9 figure [1] 17/22 itself [1] 18/1 had [3] 15/1 17/9 20/12 figures [1] 14/4 file [11] 14/21 16/12 19/14 half [1] 9/24 happens [3] 27/9 29/19 30/6 J 19/15 19/16 19/17 19/21 happy [1] 31/11 Jackson [8] 6/3 7/8 7/11 9/2 19/22 20/5 23/6 30/9 has [13] 5/25 7/23 12/8 15/7 9/11 9/17 18/1 18/3 filed [6] 14/22 15/1 15/3 21/8 21/11 22/23 23/5 23/13 Janitors [1] 13/10 15/14 18/14 20/3 John [1] 8/13 filing [5] 16/17 18/19 18/23 24/22 25/19 27/6 29/1 have [59] joke [1] 11/24 23/7 30/13 haven't [2] 4/15 26/14 JONATHAN [2] 2/9 3/11 film [3] 9/16 14/1 14/8 having [3] 5/15 5/16 26/10 judge [2] 1/4 26/10 final [2] 4/15 26/17 HBO [25] judicial [3] 16/7 27/19 32/9 finding [1] 27/13 HBO's [4] 12/14 13/6 15/15 JULY [3] 1/15 3/1 32/10 fine [1] 27/5 16/8 jurisprudence [1] 10/20 fine-tuning [1] 27/5 he [11] 9/5 9/6 13/18 14/12 just [23] fired [2] 13/9 13/11 14/13 18/4 25/23 29/14 29/18 firms [2] 24/8 24/11 K 29/21 31/9 first [47] heads [1] 12/14 KATIE [2] 1/19 32/12 flies [2] 21/15 21/15 hear [1] 19/12 keep [1] 29/3 Floor [2] 2/10 2/15 hearing [2] 20/8 20/15 kept [1] 20/13 fly [2] 21/15 21/16 held [3] 12/23 25/19 32/6 kind [3] 14/9 14/25 16/9 focus [2] 5/5 23/1 here [10] 4/4 5/12 7/6 7/9 KINSELLA [1] 2/8 followed [1] 19/21

G

SER110

K

28/1

obviously [4]

15/16 21/6

Case: 19-56222, 07/08/2020, ID:[2] 11746679, DktEntry: 17, 25/13 Page 114 of 238 meant 16/10 18/21 28/14

know [8] 6/5 17/16 17/18 23/7 27/21 27/24 29/11 31/3 knows [2] 13/22 26/14 KUMP [1] 2/8

mechanism [1] 16/20 Media [1] 12/23 meet [1] 9/1 meeting [1] 8/20 mention [1] 9/22 L mentioned [1] 20/14 lady [1] 31/24 mere [1] 18/22 laid [1] 5/10 merely [1] 10/21 land [1] 21/16 merged [1] 22/9 language [3] 5/14 8/1 8/3 merits [1] 6/11 last [6] 19/13 20/8 20/10 Michael [7] 6/2 7/8 7/11 9/2 20/15 24/25 27/16 9/11 18/1 18/3 later [2] 8/14 15/23 might [4] 23/15 25/15 26/13 law [11] 12/24 14/16 14/16 26/13 14/17 14/17 14/18 23/9 23/10 millions [1] 18/23 24/8 24/11 26/13 mine [1] 20/12 lawsuit [2] 18/19 18/23 minions [1] 28/10 lawsuits [1] 15/9 MONDAY [2] 1/15 3/1 lawyers [1] 24/9 Monica [1] 2/11 lay [1] 17/20 more [5] 9/13 10/20 14/11 leaning [1] 27/15 21/19 28/24 learned [1] 12/18 morning [6] 3/10 3/19 3/21 leave [1] 11/6 3/23 3/25 4/2 left [1] 4/24 most [2] 10/25 14/3 legal [1] 21/16 motion [16] 4/5 4/8 6/11 legislature [5] 15/7 24/23 7/18 16/13 16/17 17/19 18/17 25/1 25/2 25/6 19/19 21/12 21/14 21/14 let [19] 23/18 26/18 28/3 30/8 let's [3] 7/10 14/5 14/5 motions [2] 20/19 25/17 letter [1] 18/14 Mr [2] 11/9 27/16 lifetime [1] 10/24 Mr. [4] 4/19 17/1 26/25 like [12] 6/20 10/2 11/13 29/11 16/5 19/1 19/2 19/5 21/16 Mr. Boutrous [1] 4/19 22/23 25/2 25/24 28/22 Mr. Petrocelli [3] 17/1 likewise [1] 5/13 26/25 29/11 limitless [1] 5/24 much [2] 31/15 31/23 listen [4] 31/10 31/10 31/12 mud [1] 31/16 31/12 must [1] 8/9 literally [1] 6/1 muzzle [1] 18/1 litigant [1] 25/22 my [19] litigate [2] 23/13 28/9 MYERS [1] 2/14 litigation [4] 16/1 23/5 myself [2] 29/4 29/20 23/13 24/21 little [5] 9/5 9/13 20/16 N 21/19 28/10 name [3] 25/22 29/15 31/16 LLP [4] 2/4 2/8 2/14 2/18 namely [1] 9/10 long [3] 10/16 29/17 30/15 Nathaniel [1] 3/23 look [13] 6/16 7/1 8/10 8/11 need [4] 5/19 9/1 9/22 10/21 9/12 17/23 18/3 21/22 24/12 never [1] 17/18 28/19 28/19 28/21 30/4 new [4] 14/10 16/9 30/23 looked [4] 6/18 9/14 25/20 31/8 26/14 news [2] 11/2 14/11 LOS [6] 1/14 1/21 2/6 2/16 newsworthy [1] 15/16 2/19 3/1 nice [1] 31/24 lose [1] 23/18 Ninth [6] 5/8 10/19 30/25 lot [3] 4/4 11/21 23/19 31/6 31/9 31/20 no [18] M nobody [1] 21/11 Maher [1] 8/13 non [6] 6/22 7/9 12/2 12/6 make [9] 6/10 12/12 12/16 22/13 22/16 12/17 21/14 25/16 26/20 non-disparagement [6] 6/22 27/13 28/6 7/9 12/2 12/6 22/13 22/16 makes [1] 12/6 normal [1] 8/23 managed [1] 29/15 normally [2] 8/19 10/15 mangle [1] 29/15 not [57] many [1] 29/11 noted [1] 13/25 matter [9] 3/7 4/16 6/3 6/24 nothing [4] 9/19 9/20 27/7 8/15 18/10 25/3 26/9 32/7 29/6 matters [1] 5/19 notice [1] 27/20 may [12] 4/24 6/12 6/14 18/5 notwithstanding [1] 27/1 23/16 25/21 26/8 28/3 28/3 now [5] 11/4 11/8 23/19 30/1 30/1 31/1 24/16 28/23 maybe [5] 10/2 14/11 24/2 27/24 31/6 O McNally [1] 4/1 O'MELVENY [1] 2/14 me [30] obligation [1] 7/3 mean [5] 10/8 11/1 21/2 26/9

odds [1] 31/22 Office [2] 1/9 3/8 Official [1] 1/19 oh [3] 20/1 23/6 26/9 Okay [6] 8/5 11/8 12/10 13/20 20/18 21/21 Oliver [1] 8/14 one [16] 10/25 11/18 12/12 13/24 14/3 16/21 19/17 21/4 21/12 23/15 24/25 25/21 26/22 27/21 28/22 30/4 only [2] 5/19 12/1 opinion [2] 19/3 19/4 opportunity [1] 19/5 opposition [2] 17/19 19/19 Optimum [4] 1/6 3/7 22/4 22/9 oral [2] 21/12 23/21 origin [1] 5/16 other [18] otherwise [1] 10/22 our [8] 6/13 11/23 12/8 12/10 12/15 17/19 18/7 29/24 out [3] 17/20 20/6 24/13 over [3] 9/23 11/9 26/10 own [2] 25/5 26/10

P page [2] 12/5 32/7 pages [4] 17/8 17/9 17/9 17/9 paid [1] 11/21 paragraph [1] 9/15 paragraph 40 [1] 9/15 part [1] 27/5 particular [7] 7/3 8/2 8/2 9/20 10/11 18/7 28/16 parties [6] 5/15 6/8 8/12 10/11 17/24 30/5 party [1] 22/8 Patrick [1] 3/25 pedestal [1] 14/6 pedophile [1] 7/11 people [2] 4/4 23/12 per [1] 15/7 percent [1] 24/2 performer [1] 8/5 performer's [1] 10/24 period [1] 16/16 permission [2] 12/8 19/1 perpetual [6] 16/8 21/24 22/1 22/3 22/18 22/22 petitioners [1] 3/11 petitioning [1] 15/10 PETROCELLI [5] 2/14 3/20 17/1 26/25 29/11 picks [1] 5/7 placed [1] 15/7 plaintiff [5] 1/7 2/3 5/8 19/12 30/12 plaintiff's [2] 5/25 17/19 plaintiffs [6] 3/13 3/15 3/16 6/21 16/1 18/13 plaintiffs' [1] 3/11 platform [2] 16/8 18/7 play [1] 27/5 pleading [3] 19/17 19/17 19/18 point [12] 10/5 12/21 15/5 18/5 18/7 18/8 23/1 24/13 26/16 28/12 28/13 28/17 pointed [2] 6/22 7/2 pointing [2] 7/24 10/22 police [1] 16/8 policy [3] 14/19 21/3 25/4 position [10] 5/25 6/13 13/6 20/5 21/10 27/9 29/4 29/20

SER111

P

reargue [1]

27/3

seemed [1]

14/24

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position... [2] 29/24 30/3 positions [1] 27/10 possession [1] 12/7 possibility [2] 10/17 10/18 possibly [1] 23/24 postpone [1] 26/17 pre [1] 25/6 pre-empts [1] 25/6 precisely [2] 10/4 10/13 preclude [1] 16/11 precludes [1] 13/7 prefer [1] 30/14 preliminary [1] 27/13 premised [1] 14/25 prepared [1] 15/23 present [2] 28/11 28/11 presented [1] 29/7 PRESIDING [1] 1/4 presume [1] 4/8 pretty [2] 11/17 27/17 pretty-faced [1] 27/17 prevent [1] 23/7 principles [1] 5/10 probably [5] 21/13 27/9 29/8 29/19 31/18 problem [2] 24/19 30/12 procedural [2] 16/20 28/3 procedure [2] 18/18 19/16 proceeding [1] 24/24 proceedings [4] 1/13 24/17 31/25 32/6 produced [1] 12/13 producers [1] 12/14 Productions [4] 1/6 3/8 22/5 22/9 pronounced [1] 29/12 proper [2] 16/19 23/17 propose [1] 30/8 proposed [1] 26/18 protected [1] 17/21 provided [3] 23/8 23/9 23/10 provision [11] 5/12 6/22 7/24 8/2 8/4 8/6 10/22 12/6 12/22 15/18 15/20 provisions [2] 8/21 12/24 public [9] 7/12 12/8 13/3 14/3 14/4 17/22 17/22 18/20 25/4 purely [1] 18/10 purposes [3] 7/18 8/20 29/23 pursuant [1] 32/4 put [8] 7/1 8/17 9/4 14/5 14/10 16/8 20/4 30/21 putting [2] 8/17 15/15

Q qualified [2] 28/6 30/1 quarreling [1] 7/19 question [18] questions [1] 16/22 quote [1] 8/8 quoted [1] 22/19 quotes [1] 12/11

R raise [1] 22/13 raised [4] 20/7 22/15 26/15 28/15 raises [1] 23/4 raising [2] 26/25 30/5 reached [1] 4/15 reaches [1] 5/14 read [2] 11/24 17/10 real [3] 6/5 6/6 6/7 really [6] 5/22 8/12 16/6 17/24 18/21 23/2 realm [1] 10/18

recognize [1] 25/10 recognizes [1] 18/22 record [2] 11/25 29/24 reference [1] 23/3 regard [1] 27/14 regarding [1] 18/1 regards [4] 15/8 15/17 21/5 27/8 regulations [1] 32/8 related [1] 11/10 relates [1] 12/2 relating [1] 8/7 relationship [2] 5/15 7/22 remember [2] 27/11 30/25 replaced [1] 25/25 reply [2] 30/19 30/21 reported [1] 32/6 Reporter [1] 1/19 REPORTER'S [1] 1/13 representation [1] 23/21 representing [1] 24/8 request [2] 26/20 26/23 require [1] 5/18 requires [2] 8/6 10/20 research [1] 28/18 researching [1] 28/10 resolve [1] 28/17 resolved [3] 5/21 24/15 27/11 respectfully [2] 4/25 26/6 respond [5] 11/12 11/13 20/3 26/19 30/16 response [3] 16/1 30/7 30/20 responsive [3] 19/17 19/17 19/18 results [1] 17/17 ridiculous [1] 7/4 right [8] 3/18 4/22 16/2 19/8 20/25 23/5 26/7 31/23 rights [9] 15/9 15/11 22/10 22/19 23/5 23/14 23/16 23/17 24/22 RPR [1] 32/12 rule [3] 30/2 31/18 31/19 Rules [1] 19/16 ruling [1] 28/6

sense [1] 28/1 separately [2] 19/25 20/2 serious [1] 14/8 sexual [1] 14/8 shalt [1] 8/5 shattering [1] 14/12 shock [1] 23/6 shot [1] 24/25 should [6] 14/16 17/2 17/5 23/18 24/10 27/25 shouldn't [3] 6/7 23/23 26/2 show [1] 7/21 shown [1] 15/21 side [3] 25/4 28/22 31/19 sides [2] 4/8 4/11 signed [1] 15/21 significant [2] 5/15 7/21 simply [3] 6/22 7/2 17/16 Simula [1] 5/9 Simula's [1] 5/18 single [2] 8/16 29/15 sit [1] 28/14 situation [2] 10/23 18/6 SLAPP [28] so [17] some [4] 9/10 28/1 28/18 31/5 somebody [2] 7/5 7/10 something [10] 8/19 8/20 10/15 11/6 15/23 25/24 27/9 27/18 27/25 29/19 Sometimes [1] 20/16 sort [2] 17/15 27/13 sounds [1] 19/2 South [1] 2/19 specific [1] 10/8 specifically [3] 4/20 12/24 20/15 speech [4] 15/10 16/8 17/22 18/21 spin [1] 15/8 stake [1] 17/25 stars [2] 2/5 2/15 start [1] 28/10 state [3] 12/24 15/6 26/13 statement [1] 17/17 STATES [4] 1/1 1/4 32/5 32/9 S statute [5] 16/10 18/22 20/15 20/18 23/11 sad [1] 11/19 said [13] 5/13 6/4 7/7 7/11 STEINSAPIR [2] 2/9 3/11 stenographically [1] 32/6 9/9 12/13 19/24 25/2 25/5 Stephanie [1] 4/2 28/4 29/6 29/6 29/8 steps [1] 16/24 salient [1] 9/15 stick [1] 27/10 same [2] 19/22 25/9 sticking [1] 22/1 sandbagged [1] 12/17 still [2] 20/8 28/23 Santa [1] 2/11 stone [1] 20/12 save [2] 24/6 30/7 stop [2] 9/2 20/22 say [15] 6/23 8/3 9/1 9/6 10/25 11/7 18/12 19/20 19/24 straightforward [1] 17/12 Street [1] 1/20 20/25 23/6 27/17 29/5 29/9 strong [3] 14/19 21/3 21/4 30/9 saying [8] 5/2 5/4 6/2 7/16 stronger [1] 21/5 stuff [6] 10/3 17/9 23/19 9/5 22/18 25/7 28/13 says [5] 8/4 9/12 9/16 13/18 28/8 28/10 28/24 subject [4] 8/15 9/3 12/16 21/22 17/22 schedule [1] 31/5 submit [1] 31/4 schedules [1] 31/6 submitting [1] 26/6 school [1] 13/8 subtle [1] 20/10 scope [1] 16/25 succeeds [1] 22/9 se [1] 15/7 successful [1] 25/22 second [3] 4/24 5/3 13/14 successive [1] 19/21 Section [1] 32/4 such [2] 5/12 26/25 see [7] 13/18 14/14 15/5 sue [1] 12/1 18/3 21/14 25/20 30/6 suggesting [1] 7/23 seek [1] 16/1 suit [2] 23/6 23/8 seeking [4] 15/15 18/14 Suite [2] 1/20 2/5 18/20 18/23

SER112

S

today [1]

4/17

12/14 13/9 13/11 16/23 17/7

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Sullivan [1] 16/10 supersedes [1] 25/16 supplemental [1] 4/6 supposed [3] 8/22 15/22 24/21 supposedly [1] 21/23 supreme [6] 12/23 17/14 25/5 25/7 25/23 26/1 sure [5] 21/8 28/9 28/25 29/23 31/13

T TAITELMAN [1] 2/4 take [8] 11/8 16/7 16/23 17/2 24/25 30/4 30/16 31/22 takes [2] 20/16 24/2 Taking [1] 19/13 talk [1] 21/19 teachers [1] 13/8 Ted [1] 13/23 tell [1] 31/9 tens [1] 18/23 tension [2] 6/9 25/12 tentative [8] 5/1 13/20 13/25 14/20 22/20 26/16 27/6 29/4 tentatively [2] 6/1 27/14 term [2] 9/6 21/17 territory [1] 11/4 test [2] 5/11 9/1 tether [1] 8/9 than [6] 9/13 10/20 26/6 26/24 27/14 29/1 Thank [5] 13/23 19/11 31/15 31/17 31/23 that [180] That's [2] 16/3 21/16 their [10] 5/16 8/25 9/25 13/9 18/14 19/18 20/11 21/14 22/17 23/18 them [4] 19/22 24/13 27/11 31/19 then [13] 10/4 18/3 18/8 21/15 25/23 26/18 27/8 28/21 29/8 30/16 30/19 30/21 31/2 THEODORE [2] 2/18 3/21 there [28] therefore [3] 6/24 23/18 25/21 these [9] 11/10 11/17 14/19 16/22 20/24 21/7 25/11 28/14 29/22 they [43] THIBODEAUX [2] 1/19 32/12 thing [10] 8/24 10/8 12/12 13/24 14/9 16/9 17/15 25/9 26/22 27/11 things [3] 18/10 20/24 25/11 think [20] thinking [2] 16/21 16/23 thinks [1] 16/19 Third [1] 2/10 this [79] those [9] 9/23 17/24 18/10 22/13 24/18 27/2 27/3 27/8 27/10 thou [1] 8/4 though [1] 15/6 thought [1] 17/11 threw [1] 20/12 through [1] 29/11 throw [1] 10/2 Thursday [2] 30/11 31/7 time [22] Times [1] 16/9 timing [1] 19/15 Title [1] 32/4

too [3] 14/6 17/15 20/10 totality [1] 8/11 touch [2] 5/19 7/24 touches [1] 7/22 tour [3] 8/16 9/19 9/23 Touring [1] 22/8 toward [1] 15/17 town [2] 24/8 25/24 transcript [4] 1/13 11/24 32/6 32/7 transpired [1] 14/12 true [1] 32/5 truth [1] 7/19 try [2] 23/22 26/4 trying [2] 10/9 10/10 TTC [1] 22/8 tuning [1] 27/5 turd [1] 21/16 turn [1] 11/9 two [10] 4/19 4/25 16/24 21/7 24/7 24/10 24/11 24/12 30/17 30/18 type [1] 17/17

West [1] 1/20 WESTERN [1] 1/2 what [37] whatever [1] 4/23 when [9] 8/10 10/11 15/14 17/14 18/8 18/13 23/13 24/16 31/8 whenever [1] 28/11 where [3] 10/23 18/6 27/14 whereas [1] 17/8 whether [9] 5/6 5/11 6/8 8/13 15/19 17/1 19/14 22/23 27/1 which [20] while [1] 20/17 who [3] 13/22 25/5 26/14 why [10] 8/18 8/18 9/22 12/4 14/13 20/20 21/19 22/11 23/1 27/22 will [28] Wilshire [1] 2/10 wind [1] 21/13 within [3] 10/16 10/17 20/2 without [1] 9/7 U won't [1] 11/23 wonderful [1] 28/15 U.S [1] 1/19 word [1] 27/17 ultimate [1] 6/11 under [8] 7/5 8/7 8/25 12/1 words [3] 20/23 27/5 29/3 works [1] 30/9 12/25 13/4 19/16 24/24 world [3] 9/19 9/23 24/9 underlying [3] 6/17 6/18 would [27] 10/21 wouldn't [1] 15/1 understand [7] 6/9 10/9 11/11 21/10 22/25 27/12 30/3 written [2] 4/7 4/12 wrong [2] 20/25 28/13 unenforceable [1] 25/8 UNITED [4] 1/1 1/4 32/5 32/9 WU [1] 1/3 unless [4] 25/23 27/9 29/5 Y 29/19 unrelated [1] 8/14 year [1] 9/24 up [5] 5/7 12/4 14/5 21/13 year-and-a-half [1] 9/24 31/16 years [2] 8/14 29/12 us [4] 12/8 12/18 12/22 17/4 yes [6] 4/10 4/17 5/4 8/4 use [5] 4/23 9/6 12/9 12/11 27/12 29/6 17/15 yet [3] 16/12 21/3 23/11 utilize [1] 16/1 York [3] 16/9 30/23 31/8 you [94] V your [66] yourself [1] 8/12 validity [1] 22/23 versus [5] 3/8 12/23 16/9 Z 20/21 21/9 very [7] 12/6 23/15 25/15 ZACHARY [2] 2/9 3/16 29/18 31/15 31/23 31/24 Zero [1] 9/21 viable [1] 6/15 view [1] 8/25 viewpoint [1] 29/8 violation [2] 13/9 13/11

W waived [2] 16/16 26/7 waiver [1] 26/14 waivers [2] 25/3 25/8 want [7] 5/5 11/12 18/11 24/14 24/14 28/24 31/18 wanted [1] 12/4 wants [2] 27/17 31/19 was [31] wasn't [3] 13/20 22/21 26/15 way [14] 5/2 5/4 8/17 9/4 11/24 14/10 16/5 16/21 20/4 21/12 24/3 24/13 28/16 31/21 we [46] week [2] 30/19 31/1 weeks [2] 30/17 30/18 WEITZMAN [3] 2/8 2/8 3/12 well [23] went [2] 20/13 25/5 were [8] 6/13 8/12 9/23

SER113

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1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) [email protected] 2 Jonathan P. Steinsapir (SBN 226281) [email protected] 3 Zachary T. Elsea (SBN 279252) 4 [email protected] rd 808 Wilshire Boulevard, 3 Floor 5 Santa Monica, California 90401 Telephone: 310.566.9800 6 Facsimile: 310.566.9850

808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

7 FREEDMAN + TAITELMAN LLP Bryan J. Freedman (SBN 151990) 8 [email protected] 1901 Avenue of the Stars, Suite 500 9 Los Angeles, California 90067 Telephone: 310.201.0005 10 Facsimile: 310.201.0045 11 Attorneys for Optimum Productions and John Branca and John McClain as Co12 Executors of the Estate of Michael J. Jackson 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 16 OPTIMUM PRODUCTIONS, a California corporation; and JOHN 17 BRANCA and JOHN MCCLAIN, in their respective capacities as CO18 EXECUTORS OF THE ESTATE OF MICHAEL J. JACKSON, 19 Plaintiffs, 20 vs. 21 HOME BOX OFFICE, a Division of 22 TIME WARNER ENTERTAINMENT, L.P., a Delaware Limited Partnership, 23 and HOME BOX OFFICE, INC., a Delaware corporation, and DOES 1 24 through 5, business entities unknown, and DOES 6 through 10, individuals 25 unknown, 26

Case No. 2:19-cv-01862 GW(PJWx) Hon. George H. Wu PLAINTIFFS’ SUPPLEMENTAL BRIEF RE ARBITRABILITY AND IN SUPPORT OF MOTION TO COMPEL ARBITRATION Date: July 15, 2019 Time: 8:30 a.m. Ctrm: 9D

Defendants.

27 28 PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO COMPEL ARBITRATION

SER114

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TABLE OF CONTENTS

1

Page

2 3 1. 

The Dispute Here Is Clearly Arbitrable ............................................................ 1 

4 2. 

HBO’s Attempt To Avoid The Presumption Of Arbitrability Is Meritless ............................................................................................................ 1 

3. 

6

The Confidentiality Provisions’ Reference To A “Court” Does Not Exclude Claims For Their Breach From The Obligation to Arbitrate .............. 2 

7 4. 

HBO’s Arguments That It Did Not Breach Are For The Arbitrator................. 5 

8 5. 

As This Court Already Held, HBO’s Argument That “The 1992 Agreement Has Expired” Is For the Arbitrator ................................................. 6 

9

6. 

HBO’s First Amendment And Public Policy Arguments Are Frivolous .......... 7 

10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

5

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO COMPEL ARBITRATION

SER115

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TABLE OF AUTHORITIES

1

Page

2 3 4 5

CASES  AbbVie Inc. v. Novartis Vaccines & Diagnostics, Inc. 2017 WL 3835340 (N.D. Cal. 2017) ................................................................. 5

808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

6 AT&T Mobility LLC v. Concepcion 563 U.S. 333 (2011) .......................................................................................... 7 7 AT&T Techs., Inc. v. Commc’ns Workers of Am. 475 U.S. 643 (1986) .......................................................................................... 1 8 9 Buckeye Check Cashing, Inc. v. Cardegna 546 U.S. 440 (2006) ......................................................................................... 7 10 Comedy Club, Inc. v. Improv West Associates 553 F.3d 1277 (9th Cir. 2009) ....................................................................... 4, 5 11 12 Comer v. Micor, Inc. 436 F.3d 1098 (9th Cir. 2006) ................................................................... 1, 2, 4 13 Harris v. Sandro 96 Cal. App. 4th 1310 (2002) ............................................................................ 3 14 15 Henry Schein, Inc. v. Archer & White Sales, Inc. 139 S. Ct. 524 (2019) ........................................................................................ 6 16 ISTA Pharm., Inc. v. Senju Pharm. Co. 2010 WL 11601183 (C.D. Cal. 2010) ............................................................... 2 17 18 Katz v. Feinberg 290 F.3d 95 (2d Cir. 2002) ................................................................................ 5 19 Knutson v. Sirius XM Radio Inc. 771 F.3d 559 (9th Cir. 2014) ............................................................................. 2 20 21 Lamps Plus, Inc. v. Varela 139 S. Ct. 1407 (2019) ...................................................................................... 5 22 McKinney v. Emery Air Freight Corp. 954 F.2d 590 (9th Cir. 1992) ............................................................................. 6 23 24 Nolde Bros. v. Local 358 430 U.S. 243 (1977) .......................................................................................... 6 25 Republic Bank v. Marine Nat. Bank 45 Cal. App. 4th 919 (1996) .............................................................................. 2 26 27 Roberts v. AT&T Mobility LLC 2016 WL 1660049 (N.D. Cal. 2016) ................................................................. 7 28 ii

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO COMPEL ARBITRATION

SER116

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1 Roberts v. AT&T Mobility LLC 877 F.3d 833 (9th Cir. 2017) ............................................................................. 7 2 Simula, Inc. v. Autoliv, Inc. 175 F.3d 716 (9th Cir. 1999) ............................................................................. 1 3 4 5 6 7

9 10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT

LLP

8

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO COMPEL ARBITRATION

SER117

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1 1.

The Dispute Here Is Clearly Arbitrable

2

The Agreement requires “binding and final arbitration” of “[a]ny dispute

3 arising out of, in connection with or relating to this Agreement.” Doc. 18 at 33. The 4 “language ‘arising in connection with’ reaches every dispute between the parties 5 having a significant relationship to the contract and all disputes having their origin 6 or genesis in the contract.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 7 1999). The Jackson Estate alleges that HBO violated the express terms of the

9 there is a dispute that has its “origin or genesis in the contract,” ibid., and that 10 dispute must be arbitrated. That is the beginning and end of the analysis here. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 contract. HBO vehemently disagrees that it has violated the contract. Accordingly,

11 HBO’s efforts to escape the result of this simple analysis fail. 12 2.

HBO’s Attempt To Avoid The Presumption Of Arbitrability Is Meritless

13

It is well-settled that “where the contract contains an arbitration clause, there

14 is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the 15 particular grievance should not be denied unless it may be said with positive 16 assurance that the arbitration clause is not susceptible of an interpretation that covers 17 the asserted dispute. Doubts should be resolved in favor of coverage.’” AT&T 18 Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986). 19

HBO cannot rebut the presumption of arbitrability, so it argues that the

20 presumption does not apply because Plaintiffs must first “demonstrate the existence 21 of a valid agreement to arbitrate disputes regarding the Confidentiality Provisions.” 22 Doc. 30 at 3:14-15 (emphasis added); see also id. at 1-3. That argument clearly 23 conflates two separate issues: (1) the existence of an arbitration clause (our burden 24 but undisputed); and (2) the scope of the arbitration clause (HBO’s burden to show 25 that “arbitration clause is not susceptible of an interpretation that covers” dispute). 26

The authorities on which HBO relies to argue that it is Plaintiffs’ burden to

27 show arbitrability are all irrelevant because they address the existence of an 28 arbitration agreement, and not its scope. In Comer v. Micor, Inc., 436 F.3d 1098 (9th 1

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1 Cir. 2006), the Court affirmed the denial of a motion to compel arbitration because 2 the plaintiff was not a signatory to the arbitration agreement and therefore no 3 arbitration agreement existed between the litigants. Id. at 1103–04. In Knutson v. 4 Sirius XM Radio Inc., 771 F.3d 559 (9th Cir. 2014), the Court held that “no valid 5 agreement to arbitrate exists between Knutson and Sirius XM because Knutson 6 never assented to the Customer Agreement” with the arbitration clause. Id. at 5657 66. See also ISTA Pharm., Inc. v. Senju Pharm. Co., 2010 WL 11601183, *7 (C.D.

9

HBO does not dispute the arbitration clause’s existence. It does not challenge

10 its authenticity. It does not contend, for example, that the Agreement is a forgery, 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 Cal. 2010) (addressing whether plaintiff was party to arbitration agreement).

11 that HBO is not bound by it, etc. It is therefore HBO’s burden to rebut the 12 presumption that the arbitration clause requires arbitration of the claim that HBO 13 breached the Agreement. 14 3.

The Confidentiality Provisions’ Reference To A “Court” Does Not

15

Exclude Claims For Their Breach From The Obligation to Arbitrate

16

The dispute here is whether HBO breached non-disparagement and other

17 provisions in Exhibit I of the Agreement. The exhibit, entitled “Confidentiality 18 Provisions” is specifically incorporated by reference into the Agreement: “It is 19 understood that HBO shall comply with the confidentiality provisions set forth in 20 Exhibit I attached hereto and incorporated herein by this reference.” Doc. 18-1 at 33 21 § (ii). “The phrase ‘incorporation by reference’ is almost universally understood, 22 both by lawyers and nonlawyers, to mean the inclusion, within a body of a 23 document, of text which, although physically separate from the document, becomes 24 as much a part of the document as if it had been typed in directly.” Republic Bank v. 25 Marine Nat. Bank, 45 Cal. App. 4th 919, 922 (1996) (emphasis in original). The 26 arbitration clause therefore applies to breaches of obligations in Exhibit I in 27 precisely the same way that it applies to every other part of the Agreement. 28

Nevertheless, HBO argues that a bare reference to a “court” in Exhibit I 2

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1 somehow excludes breaches of those provisions from the scope of the broad 2 arbitration clause here. HBO contends that the supposedly “specific” reference to a 3 court in Exhibit I trumps the allegedly more “general” reference to arbitration in the 4 Agreement. This argument fails at the outset for the simple reason that the 5 arbitration clause is much more specific than the reference to a “court” in Exhibit I. 6 The arbitration clause requires that “[a]ny dispute arising out of, in connection with 7 or relating to this Agreement shall be submitted for binding and final arbitration.”

9 judge of the Superior Court); how the arbitrator will be chosen; and what procedures 10 govern the arbitration (the AAA Rules). 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 Doc. 18 at 33 (emphasis added). It then specifies who the arbitrator will be (a retired

11

Contrary to HBO’s contention that the paragraph in Exhibit I “makes clear

12 that any disputes [relating to the confidentiality provisions] must be resolved by ‘the 13 court,’ not an arbitrator,” (Doc. 30, initial emphasis added), the paragraph is a 14 simple fee-shifting clause. It provides as follows: 15 16 17

In the event that either party to this agreement brings an action to enforce the terms of these confidentiality provisions or to declare rights with respect to such provisions, the prevailing party in such action shall be entitled to an award of costs of litigation … in such amount as may be determined by the court having jurisdiction in such action.

18 Doc. 18 at 40 (emphasis added). The reference to a “court having jurisdiction” is 19 easily read under these circumstances—where there is a broad arbitration clause—to 20 include an arbitrator. And indeed, this is precisely what the case law holds. 21

In Harris v. Sandro, 96 Cal. App. 4th 1310 (2002), an option agreement

22 included a typically broad arbitration clause like the one here. Id. at 1312. It also 23 contained a fee-shifting clause like the one here, providing: “Should any litigation 24 be commenced between the parties … the prevailing party … may be granted, a 25 reasonable sum for attorneys’ fees to be determined by the court in such litigation 26 …” Ibid. An arbitrator awarded fees to the prevailing party pursuant to this clause, 27 and the other party argued that only a “court” could award fees. The Court rejected 28 the argument, holding that “a contract that both compels arbitration and requires a 3

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1 ‘court’ to determine the amount of the fee award must contemplate that an arbitrator 2 will make the fee award. Otherwise, fees could never be awarded because no ‘court’ 3 may decide a dispute under the contract; all such disputes must be decided by an 4 arbitrator.” Id. at 1315. 5

Even if that precedent were ignored—and the language were read to only

6 include a “public court of record”—this conditional, permissive language is not an 7 exclusion from the broad arbitration clause, or a mandatory forum selection clause

9 that, if the parties are in court, the court is empowered to award fees and costs. 10 There are many reasons why the parties would be in court, despite the Agreement’s 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 for disputes relating to the confidentiality provisions. The provision merely states

11 arbitration clause. The first reason is obvious given the proceedings here: a party 12 may seek court intervention to compel arbitration. The second, as stated at the May 13 23 hearing is to seek injunctive relief (which is referenced in Exhibit I, see Doc. 18 14 at 39). A third reason is that a court may need to confirm an arbitration award. 15

The very best interpretation for HBO is that there may be an ambiguity as to

16 arbitrability. “However, if a contract is capable of two different reasonable 17 interpretations, the contract is ambiguous, and under the federal presumption in 18 favor of arbitration, an arbitrator would have jurisdiction to arbitrate claims.” 19 Comedy Club, Inc. v. Improv West Associates, 553 F.3d 1277, 1285 (9th Cir. 2009).1 20

The Ninth Circuit’s decision in Comedy Club is on point. Like here, the

21 parties’ agreement included: (1) a broad arbitration clause; (2) a clause referencing 22 the courts’ jurisdiction over certain disputes; and (3) a provision authorizing an 23 award of fees and costs to “the prevailing party in any arbitration or action to 24 25

1

HBO argued at the May 23, 2019 hearing that “we have absolute ambiguity because we have two directly conflicting provisions”—the broad arbitration clause 26 in the Agreement and the reference to a “court” in Exhibit I thereof. See Doc. 30-1 at p. 22 of 37 (Transcript of Proceedings) (emphasis added). That assertion is itself 27 dispositive of this motion in light of the law cited above. 28 4

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1 enforce this Agreement.” Id. at 1286. The second clause, which referenced the 2 courts, looks much more like a mandatory exclusion-from-arbitration provision than 3 the clause HBO relies on here. It reads as follows: Notwithstanding this agreement to arbitrate, the parties, in addition to arbitration, shall be entitled to pursue equitable remedies and agree that the state and federal courts shall have exclusive jurisdiction for such purpose.

4 5 6 7

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8

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

Id. at 1285 (emphasis added and modification omitted). The Court nonetheless held that the agreement could be interpreted such that the “second clause did not ‘supplant the arbitrator’s authority’ to decide all disputes under the Trademark Agreement” as provided in the broad arbitration clause. Id. at 1285. The Court held that, taken together, “[t]hese [three] phrases can support that the arbitration agreement lets the parties pursue equitable remedies in courts in aid of the arbitration, and gives those courts exclusive jurisdiction over, and awards costs and attorneys fees to the prevailing party in, those actions.” Id. at 1286. The Court therefore held that “because the arbitration agreement is ambiguous, it should be interpreted as granting arbitration coverage over ‘all disputes’ arising from the Trademark Agreement.” Ibid. See also AbbVie Inc. v. Novartis Vaccines & Diagnostics, Inc., 2017 WL 3835340, *5 (N.D. Cal. 2017) (same).2 Simply stated, the mere reference to a “court” in Exhibit I is insufficient to rebut the presumption in favor of arbitrability. 4.

HBO’s Arguments That It Did Not Breach Are For The Arbitrator HBO takes a very narrow view of the Agreement’s non-disparagement clause, 2

Notably, the sole case that HBO cites on this issue, relating to arbitration, is irrelevant. It involved competing arbitration provisions. Katz v. Feinberg, 290 F.3d 95, 97 (2d Cir. 2002) (“disputes under agreements containing both specific and general arbitration clauses must be arbitrated under the particularized clauses”) (emphasis added and punctuation omitted). HBO cites Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019) to suggest that ambiguity regarding arbitrability can imply that there is no consent to arbitrate. Lamps Plus is plainly inapposite. The reasoning and holding in that case were specific to class arbitration, which the Court explained is “markedly different from the ‘traditional individualized arbitration.’” Id. at 1405.

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1 arguing that it is not implicated because Leaving Neverland supposedly has “nothing 2 to do with Live in Bucharest.” Doc. 30 at 3:23-24. The Jackson Estate disagrees 3 both with the narrow interpretation of the non-disparagement clause (which requires 4 no relationship to the specific concert), and also disagrees that Leaving Neverland 5 had “nothing to do” with the concert. But these disagreements are for another day in 6 another forum. The issue on this motion is not whether the Jackson Estate’s claims 7 have merit, but who decides whether they have merit. In the words of the Supreme

9 assigned by contract to an arbitrator, even if it appears to the court to be frivolous. A 10 court has no business weighing the merits of the grievance because the agreement is 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 Court, “a court may not rule on the potential merits of the underlying claim that is

11 to submit all grievances to arbitration, not merely those which the court will deem 12 meritorious.” Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529 13 (2019) (internal citation and quotation marks omitted). 14 5.

As This Court Already Held, HBO’s Argument That “The 1992

15

Agreement Has Expired” Is For the Arbitrator

16

HBO argues that the arbitration clause “does not encompass this dispute

17 because the 1992 Agreement has expired.” Doc. 30 at 5:18-19 (capitalization and 18 bolding removed). This Court already rejected that argument, explaining that 19 “Defendants are not challenging the Arbitration Provision itself as invalid, instead 20 they argue that the Agreement as a whole has expired. The continued validity of the 21 Agreement as a whole is a question for the arbitrator.” Doc. 27 at 9-10 fn. 7; Doc. 22 28 (adopting tentative, Doc. 27, as final ruling). HBO ignores the Court’s holding in 23 this regard. It also ignores the many cases cited by the Jackson Estate in its reply 24 brief rejecting HBO’s argument. Doc. 25 at 10-13. Regardless, even if the 25 Agreement “expired” in some sense, this would not change the outcome: “where the 26 dispute is over a provision of the expired agreement, the presumptions favoring 27 arbitrability must be negated expressly or by clear implication.” Nolde Bros. v. 28 Local 358, 430 U.S. 243, 255 (1977). See also McKinney v. Emery Air Freight 6

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1 Corp., 954 F.2d 590, 593 (9th Cir. 1992). Not only can HBO not rebut those 2 presumptions, it cannot even acknowledge them or the many cases invoking them. 3 6.

HBO’s First Amendment And Public Policy Arguments Are Frivolous

4

“[A]s a matter of substantive federal arbitration law, an arbitration provision

5 is severable from the remainder of the contract,” and “unless the challenge is to the 6 arbitration clause itself, the issue of the contract’s validity is considered by the 7 arbitrator in the first instance.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S.

9 of the Agreement’s arbitration clause. It does not contend, for example, that the 10 arbitration clause was procured by fraud or trick, that it was signed under duress, 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 440, 445-46 (2006) (emphasis added). HBO does not genuinely dispute the validity

11 that it is unconscionable, etc. 12

HBO counters that it is “attacking the enforceability of [the] arbitration

13 provision itself.” Doc. 30 at 7:15-16 (emphasis omitted). Specifically, it argues that 14 an order compelling arbitration is “the kind of ‘state action’ that can violate the First 15 Amendment, due process, and California law and policy.” Doc. 30 at 7:15-17 16 (emphasis omitted). That argument is just plain frivolous: “It is well established that 17 judicially enforcing arbitration agreements does not constitute state action.” Roberts 18 v. AT&T Mobility LLC, 877 F.3d 833, 838 n. 1 (9th Cir. 2017) (emphasis added) 19 (rejecting First Amendment challenge to order compelling arbitration). See also 20 Roberts v. AT&T Mobility LLC, 2016 WL 1660049, at *3 (N.D. Cal. 2016) (district 21 court’s more fulsome discussion of the issue). 22

To the extent that HBO is arguing that there is some unique California public

23 policy against arbitrating cases involving breaches of contractual confidentiality and 24 non-disparagement clauses, there is no authority whatsoever for that contention. 25 Any such policy would violate the Federal Arbitration Act in any event. “When state 26 law prohibits outright the arbitration of a particular type of claim, the analysis is 27 straightforward: The conflicting rule is displaced by the FAA.” AT&T Mobility LLC 28 v. Concepcion, 563 U.S. 333, 341 (2011). 7

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1 DATED: June 17, 2019 2

Respectfully submitted, KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

3 4 5

By:

6 7 10386.00348/650142

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8

/s/Jonathan P. Steinsapir Jonathan P. Steinsapir Attorneys for Plaintiffs Optimum Productions and the Co-Executors of the Estate of Michael Jackson

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1 2 3 4 5 6

DANIEL M. PETROCELLI (S.B. #97802) [email protected] DREW E. BREUDER (S.B. #198466) [email protected] O’MELVENY & MYERS LLP 1999 Avenue of the Stars, 8th Floor Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779

10

THEODORE J. BOUTROUS JR. (S.B. #132099) [email protected] NATHANIEL L. BACH (S.B. #246518) [email protected] GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7804 Facsimile: (213) 229-6804

11

Attorneys for Defendant Home Box Office, Inc.

7 8 9

12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14 15 16 17

OPTIMUM PRODUCTIONS, a California corporation; and JOHN BRANCA and JOHN MCCLAIN, in the respective capacities as COEXECUTORS OF THE ESTATE OF MICHAEL J. JACKSON,

18 19 20 21 22 23 24 25

Plaintiffs, v. HOME BOX OFFICE, a Division of TIME WARNER ENTERTAINMENT, L.P., a Delaware Limited Partnership; HOME BOX OFFICE, INC., a Delaware corporation; DOES 1 through 5, business entities unknown; and DOES 6 through 10, individuals unknown,

Case No. 2:19-cv-01862-GW-PJW Hon. George H. Wu DECLARATION OF DREW E. BREUDER IN SUPPORT OF DEFENDANT HOME BOX OFFICE, INC.’S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL ARBITRATION Hearing Date: June 24, 2019 Hearing Time: 8:30 a.m.

Defendants.

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DECLARATION OF DREW E. BREUDER

1 2

I, Drew E. Breuder, declare:

3

1.

I am an attorney at law, licensed to practice in the State of California. I

4

am a partner at O’Melveny & Myers LLP and counsel for Defendant Home Box

5

Office, Inc. (“HBO”) in the above-referenced matter. I submit this declaration in

6

support of HBO’s Supplemental Memorandum of Points and Authorities in Opposition

7

to Plaintiffs’ Motion to Compel Arbitration (the “Motion”). I have personal

8

knowledge of the facts set forth below and, if called as a witness, I could and would

9

testify competently to them.

10

2.

I have reviewed and am familiar with the concert special Michael

11

Jackson: Live in Bucharest—The Dangerous Tour (“Live in Bucharest”). Live in

12

Bucharest is an approximately two-hour program featuring an October 1992 live

13

concert performance by Michael Jackson in Bucharest, Romania as part of the

14

worldwide tour for Mr. Jackson’s 1991 Dangerous album (the “Dangerous tour”). A

15

true and correct DVD copy of Live in Bucharest, which was purchased from

16

Amazon.com, has been lodged with the Court as Exhibit A to HBO’s June 4, 2019

17

Notice of Lodging.

18

3.

I have reviewed and am familiar with the 2019 documentary film Leaving

19

Neverland. A true and correct DVD copy of Leaving Neverland (Part I and Part II) has

20

been lodged with the Court as Exhibit B to HBO’s June 4, 2019 Notice of Lodging.

21

4.

Plaintiffs’ Motion contends that arbitration of the parties’ dispute should

22

be compelled because Leaving Neverland “expressly alleges that Jackson was abusing

23

children in connection with and on the Dangerous World Tour.” Dkt. 1-1 at 13, ¶ 40

24

(emphasis in original); see also Dkt. 17 at 6. The Dangerous tour was a worldwide

25

concert tour by Mr. Jackson that took place following the November 1991 release of

26

Mr. Jackson’s Dangerous album. According to Mr. Jackson’s official website, the

27

Dangerous tour ran for more than a year—from June 1992 to November 1993—and

28

included nearly 70 concerts in more than 25 different countries, including Germany, 1

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Italy, Spain, England, France, Japan, Russia, Turkey, Argentina, Brazil, Chile, Mexico,

2

and Romania. See https://www.michaeljackson.com/the-artist/?pdate=1992;

3

https://www.michaeljackson.com/the-artist/?pdate=1993;

4

https://www.michaeljackson.com/music/live-concert-bucharest-dangerous-tour/; see

5

also https://en.wikipedia.org/wiki/Dangerous_World_Tour.

6

5.

As mentioned above, Live in Bucharest features Mr. Jackson’s October 1,

7

1992 concert performance in Bucharest, Romania in connection with the Dangerous

8

tour. See https://www.michaeljackson.com/music/live-concert-bucharest-dangerous-

9

tour/. Live in Bucharest pertains solely to the October 1, 1992 concert in Romania;

10

there is no content in Live in Bucharest relating to any other aspect or venue of the

11

Dangerous tour. Based on my review, Leaving Neverland does not mention or discuss

12

Live in Bucharest, Mr. Jackson’s October 1992 concert in Bucharest, or HBO’s

13

exhibition of Live in Bucharest on the HBO programming service in October 1992.

14

There does not appear to be any concert footage or other content from Live in

15

Bucharest in Leaving Neverland, nor have Plaintiffs alleged otherwise. Nor have

16

Plaintiffs alleged that Leaving Neverland contains or uses any “confidential

17

information” (as that term is defined in Exhibit I to the 1992 Agreement (Dkt. 18, Ex.

18

B at 38)). Plaintiffs have not even alleged that HBO acquired any “confidential

19

information” in connection with its one-time license to exhibit Mr. Jackson’s Live in

20

Bucharest concert performance on the HBO programming service in October 1992.

21

Leaving Neverland also does not mention or discuss the 1992 Agreement that is the

22

basis of Plaintiffs’ Motion.

23 24

6.

Moreover, the Dangerous tour is only mentioned once during Leaving

Neverland, in the following passage:

25

Joy Robson: “During that Dangerous tour when Michael [Jackson] took

26

Brett Barnes on the tour with him, Wade [Robson] had asked to go on the

27

tour. And Michael had told him no, he couldn’t go because he wasn’t

28 2

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1

allowed to take children on this tour. And then he saw Brett Barnes with

2

him on television.”

3

See HBO’s Notice of Lodging, Ex. B (Leaving Neverland, Part I) at 1:58:38—1:58:59

4

(showing a photograph and video of Mr. Jackson with Brett Barnes).

5

7.

Plaintiffs also contend that arbitration should be compelled because

6

Leaving Neverland shows part of the same “music video footage”—i.e., the music

7

video for Mr. Jackson’s November 1991 song Black or White—that was played on

8

stage in October 1992 at Mr. Jackson’s concert in Romania and which also briefly

9

appears in Live in Bucharest. Dkt. 17 at 6; id. at 18, ¶ 7 (alleging Leaving Neverland

10

“uses footage from at least one of Michael Jackson’s short films utilized in the

11

Dangerous World Tour”). Notably, Plaintiffs do not allege that the Black or White

12

music video was specifically created for or in connection with Mr. Jackson’s October

13

1, 1992 concert in Romania or the Live in Bucharest program. To the contrary, Mr.

14

Jackson’s official website confirms that the Black or White song and corresponding

15

music video were released in November 1991—nearly a year before Mr. Jackson’s

16

October 1, 1992 concert in Bucharest and HBO’s exhibition of Live in Bucharest. See

17

https://www.michaeljackson.com/news/michael-jackson-black-or-white-single-

18

released/; see also https://en.wikipedia.org/wiki/Black_or_White. Both the Black or White

19

song and music video are available to the public for purchase on iTunes.

20

8.

Live in Bucharest contains a segment where the opening sequence of the

21

Black or White music video, featuring Macaulay Culkin, plays on large screens to the

22

left and the right of the concert stage, as an introduction to Mr. Jackson’s live

23

performance of the song. Below is a screenshot from Live in Bucharest showing the

24

Black or White video on display for concert attendees and viewers of the program:

25 26 27 28 3

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See HBO’s Notice of Lodging, Ex. A (Live in Bucharest) at 1:30:23—1:31:57. 9.

Leaving Neverland also contains a short excerpt from the beginning

16

sequence of the Black or White music video. See HBO’s Notice of Lodging, Ex. B

17

(Leaving Neverland, Part I) at 1:50:37.

18 19

10.

Attached hereto as Exhibit C is a true and correct copy of the May 23,

2019 hearing transcript in this matter.

20

I declare under penalty of perjury under the laws of the State of California that

21

the foregoing is true and correct. Executed this 4th day of June 2019, at Los Angeles,

22

California.

23 24

/s/ Drew E. Breuder Drew E. Breuder

25 26 27 28 4

BREUDER DECL. ISO HBO’S SUPPL. OPP. TO MOTION TO COMPEL ARBITRATION CASE NO. 2:19-CV-01862-GW-PJW

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Exhibit C

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UNITED STATES DISTRICT COURT

2

CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

3

HONORABLE GEORGE H. WU, U.S. DISTRICT JUDGE

4 5

OPTIMUM PRODUCTIONS, et al, Plaintiff,

6 7

vs.

Case No. CV 19-1862-GW

8

HOME BOX OFFICE, et al,

9

Defendants. _______________________________________/

10 11 12 13 14

REPORTER'S TRANSCRIPT OF MOTION HEARING THURSDAY, MAY 23, 2019 8:30 A.M. LOS ANGELES, CALIFORNIA

15 16 17 18 19 20 21 ________________________________________________________ 22 23 24

TERRI A. HOURIGAN, CSR NO. 3838, CCRR FEDERAL OFFICIAL COURT REPORTER 350 WEST FIRST STREET, ROOM 4311 LOS ANGELES, CALIFORNIA 90012 (213) 894-2849

25

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1 2 3 4 5 6

FOR THE PLAINTIFF: FREEDMAN and TAITELMAN, LLP BY: BRYAN J. FREEDMAN Attorney at Law 1901 Avenue of the Stars, Suite 500 Los Angeles, California 90067 [email protected]

7 8 9 10

KINSSELLA WEITZMAN ISER KUMP and ALDISERT LLP BY: JONATHAN P. STEINSAPIR HOWARD WEITZMAN Attorneys at Law 808 Wilshire Boulevard, 3rd Floor Santa Monica, California 90401 [email protected]

11 12 13 14 15

FOR THE DEFENDANT: GIBSON DUNN and CRUTCHER LLP BY: THEODORE J. BOUTROUS, JR. Attorney at Law 333 South Grand Avenue Los Angeles, California 90071 [email protected]

16 17 18 19 20

O'MELVENY and MYERS BY: DANIEL M. PETROCELLI Attorney at Law 1999 Avenue of the Stars, 8th Floor Los Angeles, California 90067 [email protected] ALSO PRESENT:

Stephanie Aberton, In-house counsel

21 22 23 24 25

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LOS ANGELES, CALIFORNIA; THURSDAY, MAY 23, 2019

2

8:30 A.M.

3

--oOo--

4 5 6

THE COURT:

Okay.

In that case, let me call Optimum

Productions versus HBO.

7

MR. WEITZMAN:

Good morning, Your Honor.

Howard

8

Weitzman on behalf of Optimum Productions and the Estate of

9

Michael Jackson.

10

THE COURT:

11

MR. STEINSAPIR:

12

All right. Jonathan

Steinsapir for the plaintiff and the petitioners.

13

THE COURT:

14

MR. FREEDMAN:

15

Good morning, Your Honor.

All right. Good morning, Your Honor.

Bryan

Freedman on behalf of the same parties.

16

THE COURT:

All right.

17

MR. PETROCELLI:

Good morning, Your Honor.

Daniel

18

Petrocelli for the defendant Home Box Office, Inc., together

19

with Theodore Boutrous and Stephanie Aberton, who is the

20

in-house chief litigation counsel for Home Box Office.

21

the client.

22 23

THE COURT:

All right.

She's

So do I have to be nice to

her, too?

24

MS. ABERTON:

25

THE COURT:

No, Your Honor.

All right.

We're here on a motion to

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remand and a motion to compel arbitration. I have issued a tentative on the matters. sides have seen it?

4 5 6

MR. STEINSAPIR:

9

Too much? THE COURT:

Too much.

I feel a little drippy after

I hear all of that. Yes, does somebody want to argue something?

10 11

Thank you for your excellent and

your law clerks' excellent work.

7 8

I presume both

MR. STEINSAPIR:

Yes, Your Honor.

Of the motion to

remand --

12

THE COURT:

Yes.

13

MR. STEINSAPIR:

14

THE COURT:

15

MR. STEINSAPIR:

-- we will submit on the tentative.

Okay. My only comment is that on the

16

arbitration issue, it looks like the best case for them is from

17

the California Court of Appeal, and it might be that they would

18

want to go back to state court, in which case we would be okay

19

with it.

20 21 22 23 24 25

But with that said, I will turn to the issue Your Honor identified. And the issue is whether arbitrability has been delegated to the arbitrator under this agreement. I want to argue that issue, but it's a tricky issue. There is a split of authority on it.

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There is no binding authority from either the Ninth Circuit or the Supreme Court as Your Honor recognizes. I think Your Honor can skip right over it and just go to arbitrability. If you look at Footnote 7 of Your Honor's tentative, that

6

decides the issue of arbitrability right there, which is Your

7

Honor says correctly under Supreme Court precedent, challenges

8

to the validity of the agreement as a whole go to the

9

arbitrator.

Only challenges to the arbitration clause are for

10

Your Honor.

You can read their opposition papers.

11

THE COURT:

But the problem is that is not their

12

only argument, that is one of their arguments and if that was

13

their sole argument then I can understand your argument here to

14

me on that point.

15 16 17

MR. STEINSAPIR:

I would actually say it is their

sole argument. They do not make a single argument -- not a single one

18

that is addressed to the validity of the arbitration clause as

19

such -- not a single one.

20

THE COURT:

They're raising the issues -- they are

21

raising First Amendment issues, although they don't flesh that

22

out, but they kind of like dangle that.

23

They didn't make a Slapp motion, which is weird because if

24

they going to do that I thought they would have made a Slapp

25

motion.

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MR. STEINSAPIR:

I will tell you why they didn't

2

because the California Courts have said you can't make a Slapp

3

motion to a petition to compel arbitration.

4

to that.

5 6 7 8 9 10

On the First Amendment issue, those defenses are for the arbitrator. The defenses are always for the arbitrator, that is what their own case Henry Schein says. Henry Schein says that any challenges to the merits of the claim are for the arbitrator, even if they are frivolous.

11 12 13

That would explain

THE COURT:

Is the plaintiff conceding then the

point, so that I don't have to decide the issue? I can say it is for me to decide, then just go forward and

14

then have you guys come back at a later date where I will then

15

-- because I haven't considered the arbitrability myself,

16

because I didn't feel I should do that unless I make the

17

determination that it's for me to make the decision on.

18

MR. STEINSAPIR:

Well, if we're not going to

19

entertain argument on that issue, then I'm certainly not going

20

to concede the first issue, just come back here.

21

If what Your Honor is telling me to move on to the actual

22

issue that you discussed in your tentative, I will do that, and

23

I got the message, but that is it, I think this issue can be

24

avoided.

25

Let me get to the issue of delegation.

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In 1992, two very sophisticated parties here -- we're not

2

dealing with consumers, we're not dealing with employees, we're

3

dealing with a multi-billion dollar corporation, and Michael

4

Jackson at the time was worth some money -- maybe not a

5

billion, but it was a lot -- the biggest performer in the world

6

at the time.

7 8

THE COURT:

In other words, after he passed away his

estate was worth more.

9

MR. STEINSAPIR:

Well, it certainly was, but that is

10

for a lot of reasons.

11

individual to spend money anymore, so it's easier to preserve

12

assets when that is the case, but that is a side issue.

13 14 15

One of which, you don't have the

The point is that these are two very sophisticated parties represented by very sophisticated lawyers. They agreed to the broadest possible arbitration clause

16

under the Ninth Circuit precedent and then they took it a step

17

farther and said this arbitration would be governed by the

18

Rules of the AAA.

19

Now at the time, and this is the issue, Rule 1 of the AAA

20

said these rules will apply as they exist at the time the

21

demand for arbitration is made, okay.

22 23 24 25

They, therefore, delegated clearly and unmistakably to AAA -THE COURT:

Let's put it this way:

I said I found

-- is it Gilbert?

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MR. STEINSAPIR:

2

THE COURT:

Gilbert, the Court of Appeals case.

In Gilbert, it would be somewhat

3

persuasive.

4

what you are arguing except for the fact that the Courts have

5

always said, and the Supreme Court has just recently this year

6

in a unanimous decision, that, you know, a decision by the

7

parties to give the arbitrator the jurisdiction or the

8

authority to decide the issues of arbitrability in and of

9

itself have to be clear and unmistakable.

10 11 12

It seems to me, you know, I have no problem with

In other words, it cannot be by silence, it cannot be just as an afterthought, it has to be really explicit. So the thing I can't understand is if I look at an

13

agreement in and of itself between the parties that actually

14

talk about this issue, I have to make sure that it's clear and

15

unmistakable from the language of the agreement itself, which

16

talks about it.

17

How am I supposed to say that well, if we have an

18

agreement that the parties entered into that doesn't reference

19

that specifically, but just simply says at some point in time

20

in the future if the rules of the AAA are changed by the AAA,

21

and the AAA can change its rules for whatever reason it wants

22

to, and for example, I gave some perhaps preposterous examples,

23

but let's say the AAA decides that none of its arbitrators have

24

to give a written decision that states a reason for their

25

decision.

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They can say you win and you lose.

Does that mean the

2

parties unmistakably agreed to that and are bound by that

3

because it's a clear indication of their agreement?

4

What happens if the AAA says if you lose in front of us,

5

not only does the loser has to pay the obviously -- attorney's

6

fees or whatever and the damages of the prevailing party, but

7

it also has to throw in a half million dollars to the AAA for

8

the insult of AAA of having to deal with a bad type of claim.

9

Has that loser agreed?

"Oh yes, I did agree to give the

10

AAA a half million dollars if I lose."

11

MR. STEINSAPIR:

Well, to address your two specific

12

examples, if the AAA were to purport to repeal the rule that

13

would violate the California Arbitration Act and the Federal

14

Arbitration Act so it would be unlawful, they both require

15

decisions from the arbitrator.

16 17

Certainly, the California Arbitration Act does, which is -- there is a choice of law clause.

18

THE COURT:

19

MR. STEINSAPIR:

20

THE COURT:

21

But can't you waive that?

You are sophisticated parties, can't you

waive that?

22

MR. STEINSAPIR:

23

THE COURT:

24

MR. STEINSAPIR:

25

I don't --

I don't know.

That is the issue. Let me get back to delegation.

The point is here and the case is -- I understand that

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Your Honor is not bound by any of the cases, but I don't think

2

it's noteworthy but at least the overwhelming majority of other

3

district judges across the nation and the Second Circuit in an

4

unpublished decision, have gone my way on this issue.

5 6

One of the things they have said is a sophisticated party HBO, you know what Rule 1 says, and you can opt out of it.

7

You can say we don't want that.

8

And let me just finish my thought, because I see where

9

Your Honor is going, but they have clearly and unmistakably

10

delegated the issue of what the rules of the arbitration are to

11

the arbitrator -- to the arbitration service, AAA.

12 13 14

They are clearly on notice that AAA changes its rules because they change its rules all of the time. AAA wasn't some new organization in 1992.

We have cases

15

here talking about arbitration clauses from the AAA from the

16

'70s, in fact AAA goes back to the '30s.

17

changed their rules.

18

They have also always

So HBO was certainly on notice as were we that it could

19

change this rule, and they certainly clearly and unmistakably

20

delegated the rules of the arbitration to the AAA.

21 22 23

THE COURT:

In that recent Supreme Court case, the

Henry Schein, I think that is the case, that case wasn't a AAA. The Supreme Court remanded it, and it was so clear that

24

the AAA rules would apply, and you would have to consider that

25

in and of itself to be clear and unmistakable, I don't

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understand why the Supreme Court sent anything back. The Supreme Court should have reached its decision because it is clear as to what the language was.

4 5

MR. STEINSAPIR:

Why they sent it back -- it was AAA

rules, wasn't it, or JAMS -- same thing.

6

THE COURT:

Yes.

7

MR. STEINSAPIR:

They sent it back simply as -- I

8

think Mr. Boutrous would know the rules of the Supreme Court

9

better than I, but they didn't grant cert on the issue of that

10

issue.

11

They took it as assumed, and because that issue had not

12

been addressed by the Appeals Court, I believe it was for the

13

Appeals Court to address in the first instance, so that is a

14

procedural issue.

15 16 17 18

THE COURT:

That's what I think, too.

This issue really has to be addressed by Appeals Court or by the Supreme Court. I understand your point, and I'm not saying that you are

19

necessarily wrong, it just seems to me there is a conflict

20

between a requirement that requires the assent of the parties

21

to be clear and unmistakable as a requirement -- as the first

22

step to saying that this important decision has been decided by

23

the parties versus a situation where, well, if the AAA decides

24

to do it later on, you know, that is clear and unmistakable no

25

matter what the AAA decides to do, because it was possible that

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the AAA could have done it. If that is all you need to have clear and unmistakable,

3

then okay, then it seems to me that clear and unmistakable

4

means you could get -- if you forget to, you know, to not

5

include something of that sort, that you are bound.

6

It's just, to my mind, is kind of flaky.

7 8 9 10

MR. STEINSAPIR:

It's kind of flaky.

I mean, these are sophisticated parties that have delegated the rules of the arbitration to AAA. They know that those rules can change.

11

unmistakably delegated the rules to AAA.

12

about that.

13 14 15

They clearly and

There is no doubt

The question is whether they have clearly and unmistakably delegated arbitrability. THE COURT:

The problem is that there are certain

16

types of areas that Supreme Court has said, and this is one of

17

them that has to be clear and unmistakable.

18

There are other types of changes that you could do, for

19

example, purely procedural rules.

20

an agreement to purely procedural rules have to be shown by

21

clear and unmistakable evidence, but this is one area where it

22

does, and that is my problem.

23 24 25

There is no requirement that

I don't understand how I could find clear and unmistakable in this context. MR. STEINSAPIR:

Well, I think you could find it by

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citing all of the cases that we cited that did find it.

2 3

THE COURT:

The problem is I look at those cases and

I don't understand why they say that.

4

I mean, you know, again, sometimes there is certain

5

fiction that come up and people just assume something and they

6

don't really analyze it.

7

Courts say it is clear and unmistakable.

8 9 10 11

I don't understand how these other

I can say that they want some sort of rule that is easy to follow, and therefore, okay, just do it.

I suppose you could

do that, but again, to my mind it's not clear and unmistakable. But I'm perfectly willing to accept if the Ninth Circuit

12

or Supreme Court tells me that, yes, this is clear and

13

unmistakable, I would say, fine, I have done my duty.

14

done the analysis that you forced me to make, and I'm saying

15

that a person can agree clearly and unmistakably to a very

16

important issue by simply not saying anything about it, okay,

17

that is fine, I'm willing to do that.

18

MR. STEINSAPIR:

I have

Well, Your Honor, I don't think

19

we're going to need the Ninth Circuit or Supreme Court to do

20

that in this case because I think once we get to the second

21

question on the arbitrability, it's going to be an easy issue

22

for you.

23

So then the question I have for Your Honor since you are

24

not prepared to address the issue now, is when we come back to

25

address that issue, which is fully briefed, and I don't think

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we need any further briefing, there has been enough on it.

2

THE COURT:

What I would do is this:

If I ruled the

3

way of my tentative, I will send out to the parties an

4

indication as to whether or not I want any further briefing on

5

that issue.

6

time to brief it.

7 8

And obviously, if I do, I will give you both sides

But if I decide it is sufficiently briefed enough, I will simply have you guys back and we will argue it on a new day.

9

MR. STEINSAPIR:

10

THE COURT:

Okay, that is fine.

Let me hear from the defense.

11

Did you decide to split up the argument or is it just you?

12

He hogged his entire side.

13

MR. PETROCELLI:

For this issue, it is just me

14

unless Mr. Boutrous decides to sit me down because I am not

15

doing a good job.

16 17

MR. BOUTROUS:

I may not be able to resist, but we

will let him start.

18

MR. PETROCELLI:

Your Honor, without repeating what

19

you wrote on your tentative and your discussion that just

20

ensued, there might be a case where this could be a closer call

21

given the authorities on both sides of the issue.

22 23 24 25

But I would submit, Your Honor, that this is not such a case. The reason I say that is because obviously -THE COURT:

Before you go any further, are all of

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the other judicial officers just idiots?

2

Is that what you are saying?

3

MR. PETROCELLI:

Your Honor, to be frank, I can't

4

fathom the logic of those cases.

5

could be bound by something that did not exist except if it was

6

a mere procedural addition or improvement or change.

7 8 9

THE COURT:

I can't imagine that anybody

Let's be charitable.

I think what it is, is that there has been such a swing in the Supreme Court insofar as arbitration is concerned that

10

pretty much, you know, whatever is a pro-arbitration

11

determination seems to be automatically agreed upon by the

12

Supreme Court.

13

So, it could very well be in light of the last maybe

14

decade or two decades of Supreme Court precedent that people

15

are willing to say, okay, it seems that this is something they

16

will agree to.

17 18

But the problem is that the Henry Schein case -MR. PETROCELLI:

Actually, Your Honor, even more

19

recently than that, just several weeks ago, you have the U.S.

20

Supreme Court decision in Lamps Plus, perhaps that was the case

21

Your Honor had in mind, but in Lamps Plus which refused to find

22

a class action arbitrable because of failure to -- because the

23

refusal to infer consent.

24

The Court said, although parties are free to authorize

25

arbitrators to resolve such questions, referring to the very

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kind of gateway questions we're now addressing, we will not

2

conclude that they have done so based on silence or ambiguity

3

in their agreements, which is precisely the comment Your Honor

4

made.

5

Now that phrase, "silence or ambiguity" happens to be,

6

although they didn't cite to it, the precise language that the

7

California Court in Gilbert Street used.

8 9

So, ten years earlier in 2009, Gilbert Street says you can't incorporate, because we don't have clear and unmistakable

10

consent, particularly, and we're not going to infer consent

11

where there is silence or ambiguity.

12 13 14

And ten years later, just several weeks ago, the Supreme Court says exactly that same thing. And here, Your Honor, the one thing I do want to emphasize

15

which may not have been so apparent from our papers, although

16

it's in there, the arbitration clause that is bringing us here

17

is a general arbitration clause in the body of the agreement.

18 19 20

I'm looking at the exhibit to Mr. Steinsapir's declaration, I think it's Exhibit D. But the sentence in the document that is alleged to have

21

been violated, this non disparagement sentence is not in the

22

body of the agreement.

23

agreement, which is incorporated by reference.

24 25

It is in the attachment to the

But, Your Honor, in this attachment, this confidentiality provision which is the sole basis of their claim, there is in

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the final paragraph a provision assigning disputes to the Court

2

having jurisdiction.

3

THE COURT:

4

MR. PETROCELLI:

5

I quote that. You did quote that, Your Honor.

In the face of this, I would suggest, and we can deal with

6

this in Part 2, that we don't even have an arbitration

7

provision that applies to this dispute, we have a Court

8

provision that applies to the dispute.

9

But at the very least for purposes of Issue 1, who is the

10

decision-maker, we have absolute ambiguity because we have two

11

directly conflicting provisions.

12

And I would say the only way that that conflict can be

13

resolved is because -- is by the principle that the specific

14

overrides the general, and here we have a very specific court

15

adjudication provision, not an arbitration provision, so that's

16

why I say while there is an interesting debate on perhaps a

17

different record, it's not this record.

18

Getting past that, Your Honor, as Your Honor has pointed

19

out, there is absolutely nothing even in the generic

20

arbitration provision, even assuming that were to apply to this

21

dispute, that suggests that has been delegated.

22

We're talking about not some mere procedural issue.

23

This is a fundamental issue of who is going to make these

24

threshold critical decisions.

An arbitration is a matter of

25

consent and it's pure contract interpretation.

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However, in this case the Courts have made clear that the

2

default is to the Court being the decision-maker.

3

right out of Section 2 of the Federal Arbitration Act.

4

That is

If we go to the Schein case, Your Honor, which is the

5

other recent Supreme Court decision, the Court says that to be

6

sure before referring a dispute to the arbitrator the Court

7

determines rather a valid arbitration agreement exists.

8 9 10 11

And it goes on to say, that only if you have a valid arbitration agreement do we start talking about issues of arbitrability. But the default is always to the Court unless there is

12

clear and unmistakable evidence that the parties assigned this

13

to the arbitrator.

14

We have no such evidence in this case, and we have direct

15

evidence of the opposite because of the presence of the Court

16

provision in this document.

17

At the very minimum, we have silence.

18

If we have silence, we're right in the throes of these

19

competing cases, and I would suggest that the winner is the

20

Supreme Court's most recent pronouncement just a couple of

21

weeks ago, Your Honor, in the Lamps Plus case.

22

There is no dispositive Ninth Circuit case on this issue.

23

We have the California case, which, by the way, the

24

California case while applying California law relied on Federal

25

law because the whole discussion in the California case, the

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Gilbert Street case started with the language from the AT&T

2

case back in 1986, where the Supreme Court laid down this

3

principle that there has to be evidence of clear and

4

unmistakable delegation.

5

So we're really looking at the same law here.

6

Beyond all of that, it just doesn't make any sense to

7 8 9 10

incorporate something that doesn't exist.

It makes no sense.

I mean, maybe at the margins, Your Honor, but not as a fundamental proposition as to this. I don't want to waive our argument, Your Honor, that we

11

don't even have the question of who the decision-maker is under

12

the Supreme Court law -- under the Federal Arbitration Act with

13

respect to the question of the validity of the arbitration

14

agreement.

15 16 17 18 19

There has to be a valid agreement, otherwise what are we doing here? The question that we're tackling really deals with arbitrability. Once it's been established that we have a valid

20

arbitration agreement -- you can imagine a situation, for

21

example, extreme hypo, where the plaintiff files a motion to

22

compel arbitration and there is no arbitration agreement, or,

23

one that said that this arbitration agreement applies only for

24

three days, 25 years ago.

25

In that case, the Court would have the threshold

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responsibility as it has in all cases, to look and see if we

2

have an arbitration agreement that even brings us here.

3 4 5

Now, this argument spills over on the merits, but it also has relevance to your threshold determination. We don't have to reach it, Your Honor, because even if you

6

assume there is a valid arbitration agreement because of the

7

generic provision, we don't have the clear and unmistakable

8

delegation of authority.

9 10

THE COURT:

13 14

Anything else for me to

decide?

11 12

All right.

MR. STEINSAPIR:

Just very briefly.

First of all, just to correct the record, we did cite the Gilbert Street case.

They didn't.

We brought it to your attention as part of our duty of

15

candor to bring contrary authority to your attention, it was us

16

who cited it.

17

But more importantly on this question of whether Exhibit I

18

is part of the arbitration agreement, it is by -- right above

19

the arbitration agreement it says:

20

shall comply with the confidentiality provisions set forth in

21

Exhibit I, attached hereto and incorporated herein by this

22

reference.

23

provision.

24 25

It is understood that HBO

So clearly it is subject to the arbitration

Now, with the respect to the Court provision, that is very easily explained.

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There is a provision in Exhibit I which allows for

2

injunctive relief.

3

would need to go to a Court, not an arbitrator, most likely.

4

Arbitrators can recommend injunctions, they certainly can't

5

enter them.

6

We didn't bring that, but in that case you

Secondly, as to the substantive question of arbitrability,

7

which we are not here for, but I just want to make this

8

absolutely clear, the case that Mr. Petrocelli is referring to,

9

he says it is the AT&T case, it is actually the First Options

10 11

case, which holds it has to be clear and unmistakable. But Justice Breyer in that case for a unanimous court,

12

makes it very clear that although delegation is governed by

13

this clear and unmistakable rule, the question of arbitrability

14

when a Court is determining it, is governed by the exact

15

opposite rule.

16

Mr. Petrocelli just admitted there was an ambiguity, all

17

ambiguities are construed in favor of arbitration, unless the

18

Court can say with positive assurances that it is not

19

arbitrable, and there is no way that just because there is one

20

little reference to a Court in Exhibit I that you could say

21

with positive assurances that it's not arbitrable, but that

22

goes to the Phase 2 issue.

23 24 25

All doubts and all ambiguities, and

With that, we would submit. THE COURT:

I do want a response from defense to his

two points that he just raised.

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MR. PETROCELLI:

I'm not sure I understood what the

two points were.

3

THE COURT:

The first point was you were arguing the

4

reference to other Courts in the confidentiality provisions,

5

and he's making an argument that was not necessarily a

6

demonstration that the parties were taking it outside of an

7

arbitration -- arbitration situation.

8 9

It was simply to recognize if injunctive relief was called for as a remedy or whatever, that that would have to be sought

10

by the Courts because an arbitrator cannot issue injunctive

11

relief.

12

MR. PETROCELLI:

We disagree with that, Your Honor,

13

you have to understand this is a document that -- this is their

14

document attached to our document.

15

They were not created in --

16

THE COURT:

17

MR. PETROCELLI:

These were two documents.

Well, one references the other, though. Well, but to be clear, if we want

18

to get precise about it -- first of all, there is nothing in

19

this document which says it applies only to injunction actions.

20

Okay, I mean you can read it, Your Honor, we will read it.

21

And secondly, all that is incorporated is the

22

confidentiality provisions, and there is nothing in the

23

incorporation statement that says they are incorporating the

24

nondisparagement statement or sentence in the confidentiality

25

document.

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At the very minimum we have absolute ambiguity, and

2

counsel is dead wrong about the second point on this issue on

3

the delegation issue that there has to be clear and

4

unmistakable evidence of delegation.

5

THE COURT:

He's admitted that it is clear and

6

unmistakable.

7

itself, not who decides the arbitrability, the issue of

8

arbitrability or the -- I can't remember how you phrased it.

9

But insofar as the issue of arbitrability

MR. PETROCELLI:

I think what he is saying once it's

10

determined that the Court is the decision-maker here in round

11

one, and we're now in round two, and we're dealing with

12

arbitrability, where you have an arbitration provision that is

13

clearly free from any kind of challenge, and we challenge it,

14

the Court put in a footnote and they prominently featured in

15

his opening argument that we're only challenging the overall

16

agreement.

17

No, that is not true, Your Honor.

18

We're challenging the over -- we're challenging the

19

arbitration provision that is included in the overall

20

agreement.

21

You can't divorce the two.

The cases that they are

22

talking about and that Your Honor probably had in mind in the

23

footnote, are cases where someone is trying to get out of an

24

arbitration clause in an agreement because there is some

25

usurious provision in the agreement or there is some defect in

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some substantive provision where they say it's induced by

2

fraud and all of those other arguments.

3

saying here.

4

THE COURT:

That is not what we're

Also that gets to the subject that we

5

will be discussing later on anyway if I make a determination as

6

to who decides the issue of arbitrability.

7

MR. PETROCELLI:

I would suggest, Your Honor, that

8

if you do decide to stick with your tentative, it might make

9

more sense to have a rebriefing of the arbitrability issue.

10 11 12 13

THE COURT: look at it.

I will take a

I understand the plaintiff would not prefer that.

But let me just stop you.

It doesn't make any difference

what you say, I'm going to make the decision myself.

14 15

Let me put it this way:

MR. PETROCELLI:

I just thought that we could clean

and refine the arguments for Your Honor.

16

MR. STEINSAPIR:

Your Honor, if I could be precise

17

on why we are against that is because they did not raise the

18

issue.

19

argument challenging the arbitration clause.

20 21

They have waived it.

They did not make a single

I read their brief 15 times. want a do-over.

22

They blew it on that.

THE COURT:

Let me stop you again.

23

anything, he just passes you paper.

24

don't move.

25

They don't do it, and they

MR. WEITZMAN:

He doesn't say

That is funny, his lips

Your Honor, for purposes of the

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record, the arbitration clause that we're talking about is on

2

page 9 of the body of the agreement itself.

3

Also on page 9 of the body agreement itself, right next to

4

it, one paragraph above it, it says "confidential information.

5

It's understood that HBO shall comply with the confidentiality

6

provision set forth in Exhibit 1 attached hereto and

7

incorporated herein by reference."

8

The confidentiality provisions are the entire exhibit.

9

It's what it's titled, it's what is here, it's where the

10

disparagement clause comes from.

11

THE COURT:

Thank you very much, everybody.

I will

12

think about this, and I will have something out hopefully by no

13

later tomorrow one way or the other.

14

MR. STEINSAPIR:

15

MR. BOUTROUS:

Thank you, Your Honor.

Thank you, Your Honor.

16 17

(The proceedings concluded at 10:32 a.m.)

18

* * *

19 20 21 22 23 24 25

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1 2 3

COUNTY OF LOS ANGELES

4

STATE OF CALIFORNIA

) ) )

5 6

I, TERRI A. HOURIGAN, Federal Official Realtime

7

Court Reporter, in and for the United States District Court for

8

the Central District of California, do hereby certify that

9

pursuant to Section 753, Title 28, United States Code that the

10

foregoing is a true and correct transcript of the

11

stenographically reported proceedings held in the

12

above-entitled matter and that the transcript page format is in

13

conformance with the regulations of the judicial conference of

14

the United States.

15 16

Date:

May 29,2019

17 18 19

/s/ TERRI A. HOURIGAN

20

TERRI A. HOURIGAN, CSR NO. 3838, CCRR Federal Official Court Reporter

21 22 23 24 25

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/

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2 2 [3] - 17:6, 18:3, 21:20 2009 [1] - 16:8 2019 [2] - 1:13, 3:1 213 [1] - 1:24 23 [2] - 1:13, 3:1 25 [1] - 19:23 28 [1] - 26:9 29,2019 [1] - 26:16

3 333 [1] - 2:14 350 [1] - 1:23 3838 [2] - 1:22, 26:20 3rd [1] - 2:9

4 4311 [1] - 1:23

5 500 [1] - 2:5

7 7 [1] - 5:5 753 [1] - 26:9

8 808 [1] - 2:9 894-2849 [1] - 1:24 8:30 [2] - 1:14, 3:2 8th [1] - 2:18

A a.m [1] - 25:12 A.M [2] - 1:14, 3:2 Aberton [1] - 3:19 ABERTON [1] - 3:24 able [1] - 14:16 above-entitled [1] 26:12 absolute [2] - 17:10, 22:22 absolutely [2] 17:19, 21:5 accept [1] - 13:12 Act [5] - 9:14, 9:15, 9:17, 18:3, 19:12 action [1] - 15:22 actions [1] - 22:15 actual [1] - 6:21 addition [1] - 15:6 address [4] - 9:12, 11:15, 13:24, 13:25 addressed [3] - 5:18, 11:14, 11:18 addressing [1] - 16:1 adjudication [1] 17:15 admitted [2] - 21:14, 23:1 afterthought [1] 8:11 ago [4] - 15:19, 16:12, 18:21, 19:23 agree [3] - 9:10, 13:16, 15:16 agreed [4] - 7:15, 9:2, 9:10, 15:11 agreement [27] 4:23, 5:8, 8:13, 8:15, 8:18, 9:3, 12:21, 16:17, 16:22, 16:23, 18:7, 18:9, 19:14, 19:15, 19:19, 19:21, 19:22, 20:1, 20:5, 20:16, 20:17, 23:12, 23:15, 23:19, 23:20, 24:22, 24:23 agreements [1] 16:3 al [2] - 1:5, 1:8 ALDISERT [1] - 2:7 alleged [1] - 16:20

allows [1] - 20:24 ambiguities [2] 21:13, 21:15 ambiguity [6] - 16:2, 16:5, 16:11, 17:10, 21:14, 22:22 Amendment [2] 5:21, 6:5 analysis [1] - 13:15 analyze [1] - 13:7 ANGELES [4] - 1:14, 1:24, 3:1, 26:3 Angeles [3] - 2:6, 2:15, 2:18 anyway [1] - 23:25 apparent [1] - 16:15 Appeal [1] - 4:17 Appeals [4] - 8:1, 11:14, 11:15, 11:18 APPEARANCES [1] 2:1 applies [4] - 17:7, 17:8, 19:22, 22:15 apply [3] - 7:20, 11:2, 17:20 applying [1] - 18:24 arbitrability [16] 4:22, 5:4, 5:6, 6:15, 8:8, 12:15, 13:22, 18:10, 19:18, 21:4, 21:11, 23:2, 23:3, 23:8, 24:1, 24:4 arbitrable [3] 15:22, 21:17, 21:19 Arbitration [5] 9:14, 9:15, 9:17, 18:3, 19:12 arbitration [42] - 4:1, 4:16, 5:9, 5:18, 6:3, 7:15, 7:17, 7:21, 10:11, 10:12, 10:16, 10:21, 12:10, 15:9, 15:10, 16:16, 16:17, 17:6, 17:15, 17:20, 17:24, 18:7, 18:9, 19:13, 19:19, 19:21, 19:22, 20:1, 20:5, 20:16, 20:17, 20:20, 21:15, 22:4, 23:8, 23:14, 23:19, 24:14, 24:21 arbitrator [11] - 4:23, 5:9, 6:6, 6:7, 6:10, 8:7, 9:16, 18:6, 18:13, 21:1, 22:7 arbitrators [3] - 8:24, 15:25, 21:2 area [1] - 12:22 areas [1] - 12:17 argue [3] - 4:9, 4:24,

14:7 arguing [2] - 8:4, 21:25 argument [12] - 5:12, 5:13, 5:16, 5:17, 6:19, 14:11, 19:10, 20:2, 22:2, 23:11, 24:14 arguments [3] 5:12, 23:22, 24:10 assent [1] - 11:21 assets [1] - 7:12 assigned [1] - 18:12 assigning [1] - 17:1 assume [2] - 13:6, 20:5 assumed [1] - 11:13 assuming [1] - 17:20 assurances [2] 21:16, 21:19 AT&T [2] - 19:1, 21:7 attached [3] - 20:19, 22:10, 25:1 attachment [2] 16:22, 16:24 attention [2] - 20:13, 20:14 Attorney [3] - 2:5, 2:14, 2:17 attorneys [1] - 9:6 Attorneys [1] - 2:9 authorities [1] 14:21 authority [5] - 4:25, 5:1, 8:8, 20:7, 20:14 authorize [1] - 15:24 automatically [1] 15:11 Avenue [3] - 2:5, 2:14, 2:18 avoided [1] - 6:24

B bad [1] - 9:9 based [1] - 16:2 basis [1] - 16:25 behalf [2] - 3:8, 3:15 best [1] - 4:16 between [2] - 8:13, 11:21 beyond [1] - 19:6 bfreedman@ftllp. com [1] - 2:6 biggest [1] - 7:5 billion [2] - 7:3, 7:5 binding [1] - 4:25 blew [1] - 24:16 body [4] - 16:17, 16:22, 24:22, 24:23 Boulevard [1] - 2:9

bound [4] - 9:2, 10:2, 12:6, 15:5 BOUTROUS [2] 14:16, 25:10 Boutrous [3] - 3:19, 11:11, 14:14 BOX [1] - 1:8 Box [2] - 3:18, 3:20 Breyer [1] - 21:9 brief [2] - 14:6, 24:15 briefed [2] - 13:25, 14:6 briefing [2] - 14:1, 14:4 briefly [1] - 20:10 bring [2] - 20:13, 20:25 bringing [1] - 16:16 brings [1] - 20:1 broadest [1] - 7:15 brought [1] - 20:12 Bryan [1] - 3:14 BRYAN [1] - 2:4 BY [4] - 2:4, 2:8, 2:13, 2:17

C CALIFORNIA [5] 1:2, 1:14, 1:24, 3:1, 26:4 California [14] - 2:6, 2:10, 2:15, 2:18, 4:17, 6:2, 9:14, 9:17, 16:7, 18:23, 18:24, 18:25, 26:8 candor [1] - 20:13 cannot [3] - 8:10, 22:7 Case [1] - 1:7 case [32] - 3:5, 4:16, 4:18, 6:8, 7:12, 8:1, 10:1, 10:23, 10:24, 13:21, 14:20, 14:23, 15:17, 15:20, 18:1, 18:4, 18:14, 18:21, 18:22, 18:23, 18:24, 18:25, 19:1, 19:2, 19:24, 20:12, 20:25, 21:6, 21:7, 21:9 cases [9] - 10:2, 10:16, 13:2, 13:3, 15:4, 18:19, 19:25, 23:16, 23:18 CCRR [2] - 1:22, 26:20 Central [1] - 26:8 CENTRAL [1] - 1:2 cert [1] - 11:12 certain [2] - 12:16,

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19:21 competing [1] 18:19 comply [2] - 20:18, 24:25 concede [1] - 6:19 conceding [1] - 6:11 concerned [1] - 15:9 conclude [1] - 16:2 concluded [1] 25:12 conference [1] 26:13 confidential [1] 24:24 confidentiality [7] 16:24, 20:18, 22:1, 22:18, 22:20, 24:25, 25:3 conflict [2] - 11:20, 17:12 conflicting [1] 17:11 conformance [1] 26:13 consent [4] - 15:23, 16:10, 17:25 consider [1] - 11:2 considered [1] - 6:15 construed [1] 21:15 consumers [1] - 7:2 context [1] - 12:25 contract [1] - 17:25 contrary [1] - 20:13 corporation [1] - 7:3 correct [2] - 20:11, 26:10 correctly [1] - 5:7 COUNSEL [1] - 2:1 counsel [2] - 3:20, 22:23 COUNTY [1] - 26:3 couple [1] - 18:20 COURT [39] - 1:1, 1:23, 3:5, 3:10, 3:13, 3:16, 3:22, 3:25, 4:7, 4:12, 4:14, 5:11, 5:20, 6:11, 7:7, 7:24, 8:2, 9:19, 9:21, 9:24, 10:23, 11:9, 11:17, 12:16, 13:3, 14:2, 14:10, 14:25, 15:7, 17:3, 20:8, 21:22, 21:25, 22:12, 23:1, 23:24, 24:5, 24:17, 25:6 Court [45] - 4:17, 5:1, 5:7, 8:1, 8:5, 10:23, 11:1, 11:4, 11:5,

11:11, 11:14, 11:15, 11:18, 12:17, 13:13, 13:20, 15:9, 15:12, 15:14, 15:20, 15:24, 16:7, 16:12, 17:1, 17:7, 18:2, 18:5, 18:6, 18:11, 18:15, 19:2, 19:12, 19:24, 20:22, 21:1, 21:12, 21:16, 21:18, 23:6, 23:10, 26:7, 26:20 court [3] - 4:18, 17:14, 21:9 Court's [1] - 18:20 Courts [6] - 6:2, 8:4, 13:8, 18:1, 22:1, 22:6 created [1] - 22:11 critical [1] - 17:24 CRUTCHER [1] 2:13 CSR [2] - 1:22, 26:20 CV [1] - 1:7

D damages [1] - 9:6 dangle [1] - 5:22 DANIEL [2] - 2:13, 2:17 Daniel [1] - 3:17 Date [1] - 26:16 date [1] - 6:14 days [1] - 19:23 dead [1] - 22:23 deal [2] - 9:8, 17:5 dealing [4] - 7:2, 7:3, 23:7 deals [1] - 19:17 debate [1] - 17:16 decade [1] - 15:14 decades [1] - 15:14 decide [7] - 6:12, 6:13, 8:8, 14:6, 14:11, 20:9, 24:3 decided [1] - 11:23 decides [7] - 5:6, 8:23, 11:25, 12:1, 14:14, 23:3, 24:1 decision [15] - 6:17, 8:6, 8:24, 8:25, 10:5, 11:5, 11:23, 15:20, 17:10, 18:2, 18:5, 19:11, 23:6, 24:8 decision-maker [4] 17:10, 18:2, 19:11, 23:6 decisions [2] - 9:16, 17:24 declaration [1] 16:19

default [2] - 18:2, 18:11 defect [1] - 23:20 DEFENDANT [1] 2:12 defendant [1] - 3:18 Defendants [1] - 1:9 defense [2] - 14:10, 21:22 defenses [2] - 6:5, 6:7 delegated [8] - 4:22, 7:22, 10:11, 10:21, 12:9, 12:12, 12:15, 17:21 delegation [7] - 6:25, 9:25, 19:4, 20:7, 21:10, 22:24, 22:25 demand [1] - 7:21 demonstration [1] 22:3 determination [4] 6:17, 15:11, 20:3, 23:25 determined [1] 23:6 determines [1] - 18:7 determining [1] 21:12 difference [1] - 24:7 different [1] - 17:17 direct [1] - 18:14 directly [1] - 17:11 disagree [1] - 22:8 discussed [1] - 6:22 discussing [1] 23:25 discussion [2] 14:19, 18:25 disparagement [2] 16:21, 25:5 dispositive [1] 18:22 dispute [4] - 17:7, 17:8, 17:21, 18:6 disputes [1] - 17:1 District [2] - 26:7, 26:8 DISTRICT [3] - 1:1, 1:2, 1:3 district [1] - 10:4 DIVISION [1] - 1:2 divorce [1] - 23:16 do-over [1] - 24:16 document [7] 16:20, 18:16, 22:9, 22:10, 22:15, 22:21 documents [1] 22:10 dollar [1] - 7:3

dollars [2] - 9:7, 9:11 done [4] - 12:2, 13:14, 13:15, 16:2 doubt [1] - 12:13 doubts [1] - 21:13 down [2] - 14:14, 19:2 dpetrocelli@omm. com [1] - 2:19 drippy [1] - 4:7 DUNN [1] - 2:13 duty [2] - 13:14, 20:13

E easier [1] - 7:11 easily [1] - 20:23 easy [2] - 13:9, 13:22 either [1] - 5:1 emphasize [1] 16:14 employees [1] - 7:2 ensued [1] - 14:20 enter [1] - 21:2 entered [1] - 8:18 entertain [1] - 6:18 entire [2] - 14:12, 25:3 entitled [1] - 26:12 established [1] 19:18 estate [1] - 7:8 Estate [1] - 3:8 et [2] - 1:5, 1:8 evidence [6] - 12:22, 18:12, 18:14, 18:15, 19:3, 22:25 exact [1] - 21:12 exactly [1] - 16:12 example [3] - 8:22, 12:20, 19:20 examples [2] - 8:23, 9:13 excellent [2] - 4:4, 4:5 except [2] - 8:4, 15:5 exhibit [2] - 16:18, 25:3 Exhibit [6] - 16:19, 20:15, 20:19, 20:24, 21:18, 25:1 exist [3] - 7:20, 15:5, 19:7 exists [1] - 18:7 explain [1] - 6:3 explained [1] - 20:23 explicit [1] - 8:11 extreme [1] - 19:20

UNITED STATES DISTRICT COURT SER159

Case: 19-56222, 07/08/2020, ID:30-1 11746679, DktEntry: 17, Page 163 238 ID #:567 Case 2:19-cv-01862-GW-PJW Document Filed 06/04/19 Page 35 of 37of Page 3 F face [1] - 17:5 fact [2] - 8:4, 10:17 failure [1] - 15:22 fathom [1] - 15:4 favor [1] - 21:15 featured [1] - 23:10 Federal [6] - 9:15, 18:3, 18:24, 19:12, 26:6, 26:20 FEDERAL [1] - 1:23 fees [1] - 9:6 fiction [1] - 13:6 files [1] - 19:20 final [1] - 17:1 fine [3] - 13:14, 13:18, 14:9 finish [1] - 10:9 First [3] - 5:21, 6:5, 21:7 FIRST [1] - 1:23 first [6] - 6:20, 11:15, 11:22, 20:11, 21:25, 22:14 flaky [2] - 12:7, 12:8 flesh [1] - 5:21 Floor [2] - 2:9, 2:18 follow [1] - 13:10 footnote [2] - 23:10, 23:18 Footnote [1] - 5:5 FOR [2] - 2:3, 2:12 forced [1] - 13:15 foregoing [1] - 26:10 forget [1] - 12:5 format [1] - 26:12 forth [2] - 20:18, 25:1 forward [1] - 6:13 frank [1] - 15:3 fraud [1] - 23:22 free [2] - 15:24, 23:9 Freedman [1] - 3:15 FREEDMAN [25] 2:4, 2:4, 3:14, 4:4, 4:10, 4:13, 4:15, 5:15, 6:1, 6:18, 7:9, 8:1, 9:12, 9:20, 9:23, 9:25, 11:7, 11:10, 12:8, 13:1, 13:19, 14:9, 20:10, 24:11, 25:9 frivolous [1] - 6:10 front [1] - 9:4 fully [1] - 13:25 fundamental [2] 17:23, 19:9 funny [1] - 24:18 future [1] - 8:20

G gateway [1] - 16:1 general [2] - 16:17, 17:14 generic [2] - 17:19, 20:6 GEORGE [1] - 1:3 GIBSON [1] - 2:13 Gilbert [7] - 7:25, 8:1, 8:2, 16:7, 16:8, 19:1, 20:12 given [1] - 14:21 governed [3] - 7:17, 21:10, 21:12 Grand [1] - 2:14 guys [2] - 6:14, 14:7

H half [2] - 9:7, 9:11 HBO [5] - 3:6, 10:7, 10:19, 20:17, 24:25 hear [2] - 4:8, 14:10 HEARING [1] - 1:13 held [1] - 26:11 Henry [4] - 6:8, 6:9, 10:24, 15:17 hereby [1] - 26:8 herein [2] - 20:19, 25:2 hereto [1] - 25:1 hogged [1] - 14:12 holds [1] - 21:8 HOME [1] - 1:8 Home [2] - 3:18, 3:20 Honor [42] - 3:7, 3:11, 3:14, 3:17, 3:24, 4:10, 4:20, 5:2, 5:3, 5:7, 5:10, 6:21, 10:1, 10:10, 13:19, 13:23, 14:18, 14:22, 15:3, 15:18, 15:21, 16:3, 16:14, 16:24, 17:4, 17:18, 18:4, 18:21, 19:8, 19:10, 20:4, 22:8, 22:16, 23:13, 23:17, 24:2, 24:10, 24:11, 24:20, 25:9, 25:10 Honor's [1] - 5:5 HONORABLE [1] 1:3 hopefully [1] - 25:7 HOURIGAN [4] 1:22, 26:6, 26:19, 26:20 house [1] - 3:20 HOWARD [1] - 2:8 Howard [1] - 3:7

hypo [1] - 19:20

I identified [1] - 4:21 idiots [1] - 15:1 imagine [2] - 15:4, 19:19 important [2] 11:23, 13:17 importantly [1] 20:15 improvement [1] 15:6 in-house [1] - 3:20 Inc [1] - 3:18 include [1] - 12:5 included [1] - 23:15 incorporate [2] 16:9, 19:7 incorporated [4] 16:23, 20:19, 22:17, 25:2 incorporating [1] 22:19 incorporation [1] 22:19 indication [2] - 9:3, 14:3 individual [1] - 7:11 induced [1] - 23:21 infer [2] - 15:23, 16:10 information [1] 24:24 injunction [1] - 22:15 injunctions [1] - 21:2 injunctive [3] 20:25, 22:5, 22:7 insofar [2] - 15:9, 23:2 instance [1] - 11:15 insult [1] - 9:8 interesting [1] 17:16 interpretation [1] 17:25 ISER [1] - 2:7 issue [42] - 4:16, 4:20, 4:22, 4:24, 5:6, 6:5, 6:12, 6:19, 6:20, 6:22, 6:23, 6:25, 7:12, 7:19, 8:14, 9:24, 10:5, 10:11, 11:12, 11:13, 11:16, 11:17, 13:17, 13:22, 13:24, 13:25, 14:4, 14:13, 14:21, 17:22, 17:23, 18:22, 21:20, 22:7, 22:23, 22:24, 23:2, 24:1,

24:4, 24:13 Issue [1] - 17:9 issued [1] - 4:2 issues [4] - 5:20, 5:21, 8:8, 18:9 itself [7] - 8:9, 8:13, 8:15, 11:3, 23:3, 24:22, 24:23

J Jackson [2] - 3:9, 7:4 JAMS [1] - 11:8 job [1] - 14:15 Jonathan [1] - 3:11 JONATHAN [1] - 2:8 jsteinsapir@ kwikalaw.com [1] 2:10 JUDGE [1] - 1:3 judges [1] - 10:4 judicial [2] - 15:1, 26:13 jurisdiction [2] - 8:7, 17:2 Justice [1] - 21:9

K kind [5] - 5:22, 12:7, 12:8, 16:1, 23:9 KINSSELLA [1] - 2:7 KUMP [1] - 2:7

L laid [1] - 19:2 Lamps [3] - 15:20, 15:21, 18:21 language [4] - 8:15, 11:6, 16:6, 19:1 last [1] - 15:13 Law [4] - 2:5, 2:9, 2:14, 2:17 law [6] - 4:5, 9:18, 18:24, 18:25, 19:5, 19:12 lawyers [1] - 7:14 least [2] - 10:3, 17:9 light [1] - 15:13 likely [1] - 21:1 lips [1] - 24:18 litigation [1] - 3:20 LLP [3] - 2:4, 2:7, 2:13 logic [1] - 15:4 look [5] - 5:5, 8:12, 13:3, 19:25, 24:6 looking [2] - 16:18,

19:5 looks [1] - 4:16 LOS [4] - 1:14, 1:24, 3:1, 26:3 Los [3] - 2:6, 2:15, 2:18 lose [3] - 9:1, 9:4, 9:11 loser [2] - 9:5, 9:10

M majority [1] - 10:3 maker [4] - 17:10, 18:2, 19:11, 23:6 margins [1] - 19:8 matter [3] - 12:1, 17:24, 26:12 matters [1] - 4:2 MAY [2] - 1:13, 3:1 mean [4] - 9:1, 13:5, 19:8, 22:16 means [1] - 12:5 mere [2] - 15:6, 17:22 merits [2] - 6:9, 20:2 message [1] - 6:23 Michael [2] - 3:9, 7:3 might [3] - 4:17, 14:20, 24:3 million [2] - 9:7, 9:11 mind [4] - 12:7, 13:11, 15:21, 23:17 minimum [2] - 18:17, 22:22 mistakable [1] - 12:1 money [2] - 7:4, 7:11 Monica [1] - 2:10 morning [4] - 3:7, 3:11, 3:14, 3:17 most [2] - 18:20, 21:1 MOTION [1] - 1:13 motion [7] - 3:25, 4:1, 4:10, 5:23, 5:25, 6:3, 19:20 move [2] - 6:21, 24:19 MR [40] - 3:7, 3:11, 3:14, 3:17, 4:4, 4:10, 4:13, 4:15, 5:15, 6:1, 6:18, 7:9, 8:1, 9:12, 9:20, 9:23, 9:25, 11:7, 11:10, 12:8, 13:1, 13:19, 14:9, 14:13, 14:16, 14:18, 15:3, 15:18, 17:4, 20:10, 21:24, 22:8, 22:13, 23:5, 24:2, 24:9, 24:11, 24:20, 25:9,

UNITED STATES DISTRICT COURT SER160

Case: 19-56222, 07/08/2020, ID:30-1 11746679, DktEntry: 17, Page 164 238 ID #:568 Case 2:19-cv-01862-GW-PJW Document Filed 06/04/19 Page 36 of 37of Page 4 25:10 MS [1] - 3:24 multi [1] - 7:3 multi-billion [1] - 7:3 MYERS [1] - 2:16

N nation [1] - 10:4 necessarily [2] 11:20, 22:2 need [4] - 12:3, 13:20, 14:1, 21:1 new [2] - 10:15, 14:7 next [1] - 24:23 nice [1] - 3:22 Ninth [5] - 5:1, 7:16, 13:12, 13:20, 18:22 NO [2] - 1:22, 26:20 non [1] - 16:21 nondisparagement [1] - 22:20 none [1] - 8:24 noteworthy [1] 10:3 nothing [3] - 17:19, 22:14, 22:18 notice [2] - 10:13, 10:19

O O'MELVENY [1] 2:16 obviously [3] - 9:5, 14:5, 14:24 OF [6] - 1:2, 1:12, 2:1, 26:1, 26:3, 26:4 Office [2] - 3:18, 3:20 OFFICE [1] - 1:8 officers [1] - 15:1 Official [2] - 26:6, 26:20 OFFICIAL [2] - 1:23, 26:1 once [3] - 13:21, 19:18, 23:5 one [14] - 5:12, 5:17, 5:19, 7:10, 10:6, 12:17, 12:22, 16:14, 19:22, 21:17, 22:12, 23:7, 24:24, 25:8 oOo [1] - 3:3 opening [1] - 23:11 opposite [2] - 18:15, 21:13 opposition [1] - 5:10 opt [1] - 10:7 OPTIMUM [1] - 1:5 Optimum [2] - 3:5,

3:8 Options [1] - 21:7 organization [1] 10:15 otherwise [1] - 19:15 outside [1] - 22:3 overall [2] - 23:11, 23:15 overrides [1] - 17:14 overwhelming [1] 10:3 own [1] - 6:8

P page [3] - 24:22, 24:23, 26:12 paper [1] - 24:18 papers [2] - 5:10, 16:15 paragraph [2] - 17:1, 24:24 part [2] - 20:13, 20:16 Part [1] - 17:6 particularly [1] 16:10 parties [15] - 3:15, 7:1, 7:13, 8:7, 8:13, 8:18, 9:2, 9:21, 11:21, 11:24, 12:9, 14:3, 15:24, 18:12, 22:3 party [2] - 9:7, 10:6 passed [1] - 7:7 passes [1] - 24:18 past [1] - 17:18 pay [1] - 9:5 people [2] - 13:6, 15:14 perfectly [1] - 13:12 performer [1] - 7:5 perhaps [3] - 8:22, 15:20, 17:16 person [1] - 13:16 persuasive [1] - 8:3 petition [1] - 6:3 petitioners [1] - 3:12 PETRECELLI [1] 24:9 Petrocelli [3] - 3:18, 21:6, 21:14 PETROCELLI [13] 2:13, 2:17, 3:17, 14:13, 14:18, 15:3, 15:18, 17:4, 21:24, 22:8, 22:13, 23:5, 24:2 Phase [1] - 21:20 phrase [1] - 16:5 phrased [1] - 23:4

Plaintiff [1] - 1:6 plaintiff [4] - 3:12, 6:11, 19:20, 24:6 PLAINTIFF [1] - 2:3 Plus [3] - 15:20, 15:21, 18:21 point [8] - 5:14, 6:12, 7:13, 8:19, 10:1, 11:19, 21:25, 22:23 pointed [1] - 17:18 points [1] - 21:23 positive [2] - 21:16, 21:19 possible [2] - 7:15, 12:2 precedent [3] - 5:7, 7:16, 15:14 precise [3] - 16:6, 22:14, 24:11 precisely [1] - 16:3 prefer [1] - 24:6 prepared [1] - 13:24 preposterous [1] 8:23 presence [1] - 18:15 preserve [1] - 7:11 presume [1] - 4:2 pretty [1] - 15:10 prevailing [1] - 9:6 principle [2] - 17:13, 19:3 pro [1] - 15:10 pro-arbitration [1] 15:10 problem [6] - 5:11, 8:3, 12:16, 12:23, 13:3, 15:17 procedural [5] 11:16, 12:20, 12:21, 15:6, 17:22 proceedings [2] 25:12, 26:11 PRODUCTIONS [1] 1:5 Productions [2] 3:6, 3:8 prominently [1] 23:10 pronouncement [1] 18:20 proposition [1] 19:9 provision [17] 16:25, 17:1, 17:7, 17:8, 17:15, 17:20, 18:16, 20:6, 20:21, 20:22, 20:24, 23:8, 23:14, 23:20, 23:21, 25:1 provisions [5] -

17:11, 20:18, 22:1, 22:18, 25:3 pure [1] - 17:25 purely [2] - 12:20, 12:21 purport [1] - 9:13 purposes [2] - 17:9, 24:20 pursuant [1] - 26:9 put [3] - 7:24, 23:10, 24:5

Q questions [2] 15:25, 16:1 quote [2] - 17:3, 17:4

R raise [1] - 24:12 raised [1] - 21:23 raising [2] - 5:20, 5:21 rather [1] - 18:7 reach [1] - 20:4 reached [1] - 11:5 read [4] - 5:10, 22:16, 24:15 really [4] - 8:11, 13:7, 19:5, 19:17 Realtime [1] - 26:6 reason [3] - 8:22, 8:25, 14:24 reasons [1] - 7:10 rebriefing [1] - 24:4 recent [3] - 10:23, 18:5, 18:20 recently [2] - 8:5, 15:19 recognize [1] - 22:5 recognizes [1] - 5:2 recommend [1] 21:2 record [4] - 17:17, 20:11, 24:21 reference [6] - 8:18, 16:23, 20:20, 21:18, 22:1, 25:2 references [1] 22:12 referring [3] - 15:25, 18:6, 21:6 refine [1] - 24:10 refusal [1] - 15:23 refused [1] - 15:21 regulations [1] 26:13 relevance [1] - 20:3 relied [1] - 18:24

relief [3] - 20:25, 22:5, 22:7 remand [2] - 4:1, 4:11 remanded [1] - 11:1 remedy [1] - 22:5 remember [1] - 23:4 rent [1] - 11:12 repeal [1] - 9:13 repeating [1] - 14:18 reported [1] - 26:11 Reporter [2] - 26:7, 26:20 REPORTER [2] 1:23, 26:1 REPORTER'S [1] 1:12 represented [1] 7:14 require [1] - 9:16 requirement [3] 11:21, 11:22, 12:20 requires [1] - 11:21 resist [1] - 14:16 resolve [1] - 15:25 resolved [1] - 17:13 respect [2] - 19:13, 20:22 response [1] - 21:22 responsibility [1] 19:25 ROOM [1] - 1:23 round [2] - 23:6, 23:7 rule [5] - 9:13, 10:20, 13:9, 21:11, 21:13 Rule [2] - 7:19, 10:7 ruled [1] - 14:2 Rules [1] - 7:18 rules [16] - 7:20, 8:20, 8:21, 10:11, 10:13, 10:14, 10:18, 10:21, 11:2, 11:7, 11:11, 12:10, 12:11, 12:12, 12:20, 12:21 rvoureoua@ gibsondunn.com [1] 2:15

S Santa [1] - 2:10 Schein [5] - 6:8, 6:9, 10:24, 15:17, 18:4 Second [1] - 10:4 second [2] - 13:21, 22:23 secondly [2] - 21:4, 22:17 Section [2] - 18:3, 26:9

UNITED STATES DISTRICT COURT SER161

Case: 19-56222, 07/08/2020, ID:30-1 11746679, DktEntry: 17, Page 165 238 ID #:569 Case 2:19-cv-01862-GW-PJW Document Filed 06/04/19 Page 37 of 37of Page 5 see [2] - 10:9, 19:25 send [1] - 14:3 sense [3] - 19:6, 19:7, 24:4 sent [2] - 11:4, 11:10 sentence [3] - 16:20, 16:21, 22:20 service [1] - 10:12 set [2] - 20:18, 25:1 several [2] - 15:19, 16:12 shall [2] - 20:18, 24:25 shown [1] - 12:21 side [2] - 7:12, 14:12 sides [3] - 4:3, 14:5, 14:21 silence [6] - 8:10, 16:2, 16:5, 16:11, 18:17, 18:18 simply [5] - 8:19, 11:10, 13:17, 14:7, 22:4 single [4] - 5:17, 5:19, 24:13 sit [1] - 14:14 situation [3] - 11:24, 19:19, 22:4 skip [1] - 5:3 SLAP [3] - 5:23, 5:24, 6:2 sole [3] - 5:13, 5:15, 16:25 someone [1] - 23:18 sometimes [1] - 13:5 somewhat [1] - 8:2 sophisticated [6] 7:1, 7:13, 7:14, 9:21, 10:6, 12:9 sort [2] - 12:6, 13:9 sought [1] - 22:6 South [1] - 2:14 specific [3] - 9:12, 17:13, 17:14 specifically [1] 8:19 spend [1] - 7:11 spills [1] - 20:2 split [2] - 4:25, 14:11 Stars [2] - 2:5, 2:18 start [2] - 14:17, 18:9 started [1] - 19:1 state [1] - 4:18 STATE [1] - 26:4 statement [2] 22:19, 22:20 states [1] - 8:25 States [3] - 26:7, 26:9, 26:14

STATES [1] - 1:1 STEINSAPIR [3] 2:8, 3:11, 24:20 Steinsapir [1] - 3:12 Steinsapir's [1] 16:18 stenographically [1] - 26:11 step [2] - 7:16, 11:23 Stephanie [1] - 3:19 stick [1] - 24:3 stop [2] - 24:7, 24:17 STREET [1] - 1:23 Street [4] - 16:7, 16:8, 19:1, 20:12 subject [2] - 20:20, 23:24 submit [3] - 4:13, 14:22, 21:21 substantive [2] 21:4, 23:21 sufficiently [1] - 14:6 suggest [3] - 17:5, 18:19, 24:2 suggests [1] - 17:21 Suite [1] - 2:5 suppose [1] - 13:10 supposed [1] - 8:17 Supreme [21] - 5:1, 5:7, 8:5, 10:23, 11:1, 11:4, 11:5, 11:11, 11:18, 12:17, 13:13, 13:20, 15:9, 15:12, 15:14, 15:20, 16:12, 18:5, 18:20, 19:2, 19:12 swing [1] - 15:8

T tackling [1] - 19:17 TAITELMAN [1] - 2:4 talks [1] - 8:16 ten [2] - 16:8, 16:11 tentative [7] - 4:2, 4:13, 5:5, 6:22, 14:3, 14:19, 24:3 TERRI [4] - 1:22, 26:6, 26:19, 26:20 THE [39] - 2:3, 2:12, 3:5, 3:10, 3:13, 3:16, 3:22, 3:25, 4:7, 4:12, 4:14, 5:11, 5:20, 6:11, 7:7, 7:24, 8:2, 9:19, 9:21, 9:24, 10:23, 11:9, 11:17, 12:16, 13:3, 14:2, 14:10, 14:25, 15:7, 17:3, 20:8, 21:22, 21:25, 22:12, 23:1, 23:24,

24:5, 24:17, 25:6 Theodore [1] - 3:19 therefore [2] - 7:22, 13:10 three [1] - 19:23 threshold [3] 17:24, 19:24, 20:3 throes [1] - 18:18 throw [1] - 9:7 THURSDAY [2] 1:13, 3:1 Title [1] - 26:9 titled [1] - 25:4 together [1] - 3:18 tomorrow [1] - 25:8 took [2] - 7:16, 11:13 transcript [2] 26:10, 26:12 TRANSCRIPT [1] 1:12 tricky [1] - 4:24 Triple [26] - 7:18, 7:20, 7:23, 8:20, 8:21, 8:23, 9:4, 9:8, 9:11, 9:13, 10:12, 10:13, 10:15, 10:16, 10:17, 10:22, 10:25, 11:2, 11:7, 11:24, 12:1, 12:2, 12:10, 12:12 true [2] - 23:13, 26:10 trying [1] - 23:18 turn [1] - 4:20 two [9] - 7:1, 7:13, 9:12, 15:14, 17:10, 21:23, 22:10, 23:7, 23:16 type [1] - 9:9 types [2] - 12:17, 12:19

U U.S [2] - 1:3, 15:19 unanimous [2] - 8:6, 21:9 under [5] - 4:23, 5:7, 7:16, 19:11, 19:12 understood [3] 20:17, 21:24, 24:25 UNITED [1] - 1:1 United [3] - 26:7, 26:9, 26:14 unlawful [1] - 9:15 unless [4] - 6:16, 14:14, 18:11, 21:15 unmistakable [20] 8:9, 8:15, 11:3, 11:22, 12:3, 12:4, 12:18, 12:22, 12:24, 13:8,

13:11, 13:14, 16:9, 18:12, 19:4, 20:6, 21:8, 21:11, 22:25, 23:2 unmistakably [7] 7:22, 9:2, 10:10, 10:21, 12:12, 12:14, 13:16 unpublished [1] 10:5 up [2] - 13:6, 14:11 usorious [1] - 23:20

V valid [5] - 18:7, 18:8, 19:15, 19:18, 20:5 validity [3] - 5:8, 5:18, 19:13 versus [2] - 3:6, 11:24 violate [1] - 9:14 violated [1] - 16:21 vs [1] - 1:7

W waive [3] - 9:19, 9:22, 19:10 waived [1] - 24:13 wants [1] - 8:22 weeks [3] - 15:19, 16:12, 18:20 weird [1] - 5:23 WEITZMAN [3] - 2:7, 2:8, 3:7 Weitzman [1] - 3:8 WEST [1] - 1:23 WESTERN [1] - 1:2 whole [2] - 5:8, 18:25 willing [3] - 13:12, 13:18, 15:15 Wilshire [1] - 2:9 win [1] - 9:1 winner [1] - 18:19 words [2] - 7:7, 8:10 world [1] - 7:5 worth [2] - 7:4, 7:8 written [1] - 8:24 wrote [1] - 14:19 WU [1] - 1:3

Y year [1] - 8:6 years [3] - 16:8, 16:11, 19:23

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1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) [email protected] 2 Jonathan P. Steinsapir (SBN 226281) [email protected] 3 Zachary T. Elsea (SBN 279252) [email protected] 4 808 Wilshire Boulevard, 3rd Floor 5 Santa Monica, California 90401 Telephone: 310.566.9800 6 Facsimile: 310.566.9850

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7 FREEDMAN + TAITELMAN LLP Bryan J. Freedman (SBN 151990) 8 [email protected] 1901 Avenue of the Stars, Suite 500 9 Los Angeles, California 90067 Telephone: 310.201.0005 10 Facsimile: 310.201.0045 11 Attorneys for Optimum Productions and for John Branca and John McClain as 12 Executors of the Estate of Michael J. Jackson 13 14

UNITED STATES DISTRICT COURT

15

CENTRAL DISTRICT OF CALIFORNIA

16

WESTERN DIVISION

17 OPTIMUM PRODUCTIONS, a California corporation; and JOHN 18 BRANCA and JOHN MCCLAIN, in the respective capacities as CO19 EXECUTORS OF THE ESTATE OF MICHAEL J. JACKSON, 20 Plaintiffs, 21 vs. 22 HOME BOX OFFICE, a Division of 23 TIME WARNER ENTERTAINMENT, L.P., a Delaware Limited Partnership, 24 and HOME BOX OFFICE, INC., a Delaware corporation, and DOES 1 25 through 5, business entities unknown, and DOES 6 through 10, individuals 26 unknown, 27

Case No. 2:19-cv-01862 GW(PJWx) Hon. George H. Wu PLAINTIFFS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION; AND SUPPLEMENTAL DECLARATION OF JONATHAN P. STEINSAPIR Date: May 23, 2019 Time: 8:30 a.m. Ctrm: 9D

Defendant.

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TABLE OF CONTENTS

1

Page

2 3 I. 

INTRODUCTION ............................................................................................. 1 

4 II. 

ARGUMENT .................................................................................................... 3 

5

A. 

Arbitrability is for the Arbitrator ............................................................ 3 

6

B. 

The Law is Crystal Clear that the Continuing Validity of the Contract as a Whole is for the Arbitrator and not a Court ...................... 6 

C. 

The Arbitration Clause Is Valid And Enforceable Regardless of HBO’s Argument that the Agreement Has “Expired.” ......................... 10 

9

D. 

The Jackson Estate’s Claims Arise Out of the Agreement ................... 13 

10

E. 

HBO’s Substantive Arguments Are Irrelevant ..................................... 15 

11 III. 

CONCLUSION ............................................................................................... 17 

7

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8

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i

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TABLE OF AUTHORITIES

1

Page

2 3 4 5

BNSF Ry. Co. v. Alstom Transportation, Inc. 2010 WL 11619686 (N.D. Tex. 2010) .......................................................... 4, 5

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6 Brachfeld v. Hopkins 2017 WL 10436075 (C.D. Cal. Dec. 11, 2017) .............................................. 12 7 Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc. 8 203 F.R.D. 677 (S.D. Fla. 2001) ....................................................................... 4 9 Brennan v. Opus Bank 796 F.3d 1125 (9th Cir. 2015) ................................................................... 3, 4, 5 10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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FEDERAL CASES 

11 Bridge Fund Capital Corp. v. Fastbucks Franchise Corp. 622 F.3d 996 (9th Cir. 2010) ............................................................................. 7 12 Buckeye Check Cashing, Inc. v. Cardegna 546 U.S. 440 (2006) ................................................................................ passim 13 14 Cong. Const. Co. v. Geer Woods, Inc. 2005 WL 3657933 (D. Conn. Dec. 29, 2005) ................................................... 5 15 E.E.O.C. v. Waffle House, Inc. 534 U.S. 279 (2002) ........................................................................................ 13 16 17 Grynberg v. BP P.L.C. 585 F. Supp. 2d 50 (D.D.C. 2008) .................................................................... 4 18 Henry Schein, Inc. v. Archer & White Sales, Inc. 139 S. Ct. 524 (2019) .......................................................................... 1, 8, 9, 10 19 20 Hodge v. Top Rock Holdings, Inc. 2011 WL 1527010 (E.D. Mo. 2011) ............................................................. 4, 5 21 Homestead Lead Co. of Missouri v. Doe Run Resources Corp. 282 F. Supp. 2d 1131 (N.D. Cal. 2003) .......................................................... 12 22 23 JSC Surgutneftegaz v. President & Fellows of Harvard College 167 Fed. Appx. 266 (2d Cir. 2006) ............................................................... 3, 4 24 Just Film, Inc. v. Merch. Servs., Inc. 2011 WL 2433044 (N.D. Cal. June 13, 2011) ................................................ 12 25 26 Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. N.L.R.B. 501 U.S. 190 (1991) ........................................................................................ 11 27 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. 460 U.S. 1 (1983) ............................................................................................ 14 28 ii

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1 Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers Union, AFL-CIO 430 U.S. 243 (1977) ........................................................ 2, 11, 12, 13 2 Pikes Peak Nephrology Assocs., P.C. v. Total Renal Care, Inc. 2010 WL 1348326 (D. Colo. 2010) .................................................................. 4 3 4 Prima Paint Corp. v. Flood & Conklin Mfg. Co. 388 U.S. 395 (1967) .................................................................................. 7, 8, 9 5 Sanford v. MemberWorks, Inc. 483 F.3d 956 (9th Cir. 2007) ............................................................................. 8 6

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7 Simula, Inc. v. Autoliv, Inc. 175 F.3d 716 (9th Cir. 1999) ..................................................................... 14, 15 8 Sleepy’s LLC v. Escalate, Inc. 2010 WL 2505678 (S.D.N.Y. 2010) ................................................................. 4 9 10 Southland Corp. v. Keating 465 U.S. 1 (1984) .............................................................................................. 7 11 Three Valleys Mun. Water Dist. v. E.F. Hutton & Co. 925 F.2d 1136 (9th Cir.1991) ............................................................................ 8 12 13 Wamar Int’l, LLC v. Thales Avionics, Inc. No., 2019 WL 1877615 (C.D. Cal. Mar. 20, 2019) ........................................ 11 14 Yahoo! Inc. v. Iversen 836 F. Supp. 2d 1007 (N.D. Cal. 2011) ............................................................ 5 15 16 17 STATE CASES  18 Gilbert St. Developers, LLC v. La Quinta Homes, LLC 174 Cal. App. 4th 1185 (2004) .......................................................................... 5 19 Selman v. FCB Worldwide, Inc. No. B168315, 2004 WL 2729656 (Cal. Ct. App. Dec. 1, 2004)..................... 10 20 21 22 23 24 25 26 27 28 iii

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1 I.

INTRODUCTION

2

Most of HBO’s arguments in opposition to the motion to compel arbitration

3 are a hodgepodge of vague, under-developed, and ultimately baseless arguments 4 attacking the underlying merits of the Jackson Estate’s damages claims.1 Those 5 arguments are for another day in another forum (i.e., arbitration). As the Supreme 6 Court has repeatedly explained, the Federal Arbitration Act (“FAA”) does not allow 7 a court to review the claims to be arbitrated in order to assure itself that they have

9 underlying claim that is assigned by contract to an arbitrator, even if it appears to the 10 court to be frivolous. A court has no business weighing the merits of the grievance 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 merit: “We have held that a court may not rule on the potential merits of the

11 because the agreement is to submit all grievances to arbitration, not merely those 12 which the court will deem meritorious.” Henry Schein, Inc. v. Archer & White Sales, 13 Inc., 139 S. Ct. 524, 529 (2019) (internal citation omitted and punctuation cleaned 14 up). Rather, on a motion to compel arbitration a federal court’s “role is strictly 15 limited to determining arbitrability and enforcing agreements to arbitrate, leaving 16 the merits of the claim and any defenses to the arbitrator.” Chiron Corp. v. Ortho 17 Diagnostic Sys., Inc., 207 F.3d 1126, 1131 (9th Cir. 2000). 18

As to HBO’s arguments addressed to arbitrability, they been repeatedly

19 rejected by the Supreme Court. First, it challenges the continuing validity of the 20 Agreement itself, arguing that a Court must first find the Agreement to be “valid” 21 before compelling arbitration. (Opp. at 10.) HBO is dead wrong: “as a matter of 22 substantive federal arbitration law, an arbitration provision is severable from the 23 remainder of the contract,” and “unless the challenge is to the arbitration clause 24 1

We use the same naming convention as in the opening brief: “HBO” refers to Respondent/Defendant Home Box Office, Inc.; “the Jackson Estate” refers 26 collectively to Petitioners/Plaintiffs Optimum Productions and the Co-Executors of 27 the Estate of Michael J. Jackson; and “the Agreement” refers to the 1992 agreement at issue, Steinsapir Decl., Ex. B (Dkt. 18, pp. 25-40). 28 25

1

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1 itself, the issue of the contract’s validity is considered by the arbitrator in the first 2 instance.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006) 3 (emphasis added). Nowhere does HBO challenge the validity of “the arbitration 4 clause itself.” Its attacks on the validity of the Agreement are thus irrelevant. They 5 are for “the arbitrator in the first instance.” Ibid. 6

Second, HBO contends that the Agreement is expired because all obligations

7 have been performed. (Opp. at 11:2-24.) That argument is a classic tautology: it

9 i.e., that there are no remaining obligations under the Agreement. The Jackson 10 Estate obviously disagrees, and contends that substantive obligations, like 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 assumes the very conclusion that HBO wants an adjudicator to reach in this dispute,

11 confidentiality and non-disparagement, continue to apply. Whether those substantive 12 obligations survive, of course, is a classic question of contract interpretation for the 13 arbitrator’s resolution. Henry Schein, 139 S. Ct. at 529. But even setting that aside, 14 HBO’s arguments regarding the effect of a supposed “expiration” of the Agreement 15 are also wrong. It argues that arbitration clauses necessarily expire when an 16 agreement itself expires, unless there is an express statement to the contrary. (Opp. 17 at 12:16-18.) That argument is frivolous. The only “authority” for it is a single 18 unpublished case from the California Court of Appeal that HBO severely misreads. 19 In fact, the law is precisely the opposite of what HBO says it is. “[W]here the 20 dispute is over a provision of [an] expired agreement, the presumptions favoring 21 arbitrability must be negated expressly or by clear implication.” Nolde Bros. v. 22 Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 252 (1977). 23 Thus, “the parties’ obligations under their arbitration clause survive[ ] contract 24 termination when the dispute [is] over an obligation arguably created by the expired 25 agreement.” Ibid. The dispute here is “over an obligation arguably created by the 26 [supposedly] expired agreement.” Ibid. The arbitration clause therefore “survives.” 27

Third, and in any event, the Agreement here incorporates the Rules of the

28 American Arbitration Association (“AAA”), which provide that arbitrability itself is 2

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1 a question to be determined by the arbitrator. “[I]ncorporation of the AAA rules 2 constitutes clear and unmistakable evidence that contracting parties agreed to 3 arbitrate arbitrability.” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015). 4 Although the AAA Rules at the time the contract was entered into in 1992 did not so 5 provide, Rule 1 of the 1992 Rules (like almost all AAA rule sets) provided that the 6 “rules and any amendment of them shall apply in the form obtaining at the time the 7 demand for arbitration” is made. (Bach Decl. (Dkt. 22-2), Ex. A, p. 8, 1992 AAA

9 issue have therefore held that subsequent amendments to the AAA Rules providing 10 that arbitrability is for the arbitrator do apply in circumstances like those here: 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 Rule 1.) It appears that the overwhelming majority of federal courts to address the

11 where the demand for arbitration is made after adoption of those amendments. See, 12 e.g., JSC Surgutneftegaz v. President & Fellows of Harvard College, 167 Fed. 13 Appx. 266, 268 (2d Cir. 2006) (arbitrability is for the arbitrator: that 1996 version of 14 AAA Rules did not so provide is irrelevant, because Rule 1 made later amendments 15 applicable to arbitration demanded roughly 10 years later). See also the numerous 16 cases cited below at § II.A, pp. 4-5. 17

In sum, the Jackson Estate respectfully requests that this Court decline HBO’s

18 invitation to ignore binding Supreme Court precedent. Instead, the Court should 19 grant the motion to compel arbitration (in the event the motion to remand is denied). 20 II.

ARGUMENT

21

A.

22

As explained below, there is no question that the dispute here is arbitrable,

Arbitrability is for the Arbitrator

23 regardless of whether that decision is made by a court or an arbitrator. That said, the 24 Court need not even reach the issue. As explained in the Jackson Estate’s moving 25 papers, the question of arbitrability here is for the arbitrator. The Agreement 26 incorporates the AAA Rules. (Steinsapir Decl., Ex. B, Dkt. 18 at 34.) Those rules 27 unambiguously provide that “[t]he arbitrator shall have the power to rule on his or 28 her own jurisdiction, including any objections with respect to the existence, scope, 3

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1 or validity of the arbitration agreement or to the arbitrability of any claim or 2 counterclaim.” AAA R-7 (“Jurisdiction”) (available at page 13 of 3 https://www.adr.org/sites/default/files/Commercial%20Rules.pdf). The Ninth 4 Circuit holds that “incorporation of the AAA rules constitutes clear and 5 unmistakable evidence that contracting parties agreed to arbitrate arbitrability.” 6 Brennan, 796 F.3d at 1130. 7

HBO correctly notes that the AAA Rules at the time the contract was entered

9 AAA rule sets) provided that the “rules and any amendment of them shall apply in 10 the form obtaining at the time the demand for arbitration” is made. (Bach Decl. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 into in 1992 did not so provide. However, Rule 1 of the 1992 Rules (like almost all

11 (Dkt. 22-2), Ex. A, p. 8, 1992 AAA Rule 1.) 12

According to our research, the overwhelming majority of federal courts to

13 address the issue have therefore held that the subsequent amendments to the AAA 14 Rules providing that arbitrability is for the arbitrator apply in circumstances like 15 those here: where the demand for arbitration is made after adoption of the Rules 16 providing that the parties are to arbitrate arbitrability itself. See, e.g., JSC 17 Surgutneftegaz v. President & Fellows of Harvard College, 167 Fed. Appx. 266, 18 268 (2d Cir. 2006); Grynberg v. BP P.L.C., 585 F. Supp. 2d 50, 55 (D.D.C. 2008); 19 Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 20 203 F.R.D. 677, 684-85 (S.D. Fla. 2001), aff'd on other grounds at 312 F.3d 1349 21 (11th Cir. 2002). See also Hodge v. Top Rock Holdings, Inc., 2011 WL 1527010, at 22 *5 (E.D. Mo. 2011); Pikes Peak Nephrology Assocs., P.C. v. Total Renal Care, Inc., 23 2010 WL 1348326, at *7 (D. Colo. 2010); Sleepy’s LLC v. Escalate, Inc., 2010 WL 24 2505678, at *2 n. 28 (S.D.N.Y. 2010); BNSF Ry. Co. v. Alstom Transportation, Inc., 25 2010 WL 11619686, at *2 (N.D. Tex. 2010); S. Farms Ltd. v. Am. Farmland Inv'rs 26 Corp., 2006 WL 2038532, at *2 (M.D. 2006); Cong. Const. Co. v. Geer Woods, 27 28 4

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1 Inc., 2005 WL 3657933, at *3 (D. Conn. 2005). 2 But see Hasbro, Inc. v. Amron, 2 419 F. Supp. 2d 678, 686 (E.D. Pa. 2006) (disagreeing with the above courts with 3 mention, but no analysis, of AAA Rule 1; but finding the dispute arbitrable in any 4 event). Most of these cases involve arbitration agreements, like the one here, that 5 were signed in the 1990s, but some are even older: one involves an arbitration 6 agreement from 1979, Hodge, 2011 WL 1527010, at *5; and another involves an 7 arbitration agreement from 1984, BNSF Ry. Co. v. Alstom Transportation, Inc., 2010

9

The sole case HBO relies upon does say that the applicable rules are those

10 that exist at the time of contracting. Yahoo! Inc. v. Iversen, 836 F. Supp. 2d 1007, 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 WL 11619686, at *2.

11 1012 (N.D. Cal. 2011), citing Gilbert St. Developers, 174 Cal. App. 4th at 1193 12 (discussed immediately below in footnote 2). Notably, however, the court did not 13 address the effect of AAA Rule 1 at all—no party appears to have raised the 14 argument—as the above cases do. And just as importantly, the question of which 15 rules applied does not appear to have made any difference. The rules in place at the 16 time of contracting also stated that arbitrability was for the arbitrator, and the Court 17 so held. Yahoo!, 836 F. Supp. 2d at 1012. 18

In short, arbitrability here is for the arbitrator, and the Court should compel

19 this matter to arbitration where the arbitrator, when chosen, can address HBO’s 20 arguments in the first instance. 21 2

Some of these cases purport to rely on state law to reach their conclusions. 22 However, the Ninth Circuit has clearly held that whether parties clearly and unmistakeably delegate arbitrability questions to the arbitrator is an issue of the 23 substantive federal law of arbitrability. Brennan, 796 F.3d at 1130. Notably, a California case holds as a matter of “California common law” that prior versions of 24 the AAA rules do not apply to the issue of whether the parties have delegated arbitrability to the arbitrator. Gilbert St. Developers, LLC v. La Quinta Homes, LLC, 25 174 Cal. App. 4th 1185, 1193 (2004). Besides the fact that the case was based on “California common law,” id. at 1190, it also does not address the effect of AAA 26 Rule 1, as all of the above cited-courts do (although it does mention the rule in the background section of the opinion but does not return to it in its legal analysis 27 section, id. at 1189). 28 5

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1 2 3

B.

The Law is Crystal Clear that the Continuing Validity of the Contract as a Whole is for the Arbitrator and not a Court

HBO’s primary argument in opposition to the motion to compel is that “[t]he

4 obligations under the 1992 Agreement have … long been fulfilled, and the 5 Agreement has terminated along with the arbitration provision therein.” (Opp., 6 11:22-24; see generally Opp. at 10-15.) This argument is contrary to decades of 7 precedent from the Supreme Court. In Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), the

9 Supreme Court summarized its jurisprudence on the question of whether attacks on 10 the validity of an agreement containing an arbitration clause may be the basis for 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8

11 denying a motion to compel arbitration under the FAA. The Court explained that 12 “[c]hallenges to the validity of arbitration agreements ‘upon such grounds as exist at 13 law or in equity for the revocation of any contract’ can be divided into two types.” 14 Id. at 444. First, there are “challenges specifically [to] the validity of the agreement 15 to arbitrate.” Ibid. Second, there are “challenges [to] the contract as a whole, either 16 on a ground that directly affects the entire agreement (e.g., the agreement was 17 fraudulently induced), or on the ground that the illegality of one of the contract's 18 provisions renders the whole contract invalid.” Ibid. The former challenges— 19 specifically to the arbitration agreement—are for courts. The latter challenges—to 20 the contract more generally—are for arbitrators. The Supreme Court helpfully 21 summarized the law as follows: 22

First, as a matter of substantive federal arbitration law, an arbitration

23

provision is severable from the remainder of the contract. Second,

24

unless the challenge is to the arbitration clause itself, the issue of the

25

contract’s validity is considered by the arbitrator in the first instance.

26

… Applying the[se principles] to this case, we conclude that because

27

respondents challenge the Agreement, but not specifically its arbitration

28

provisions, those provisions are enforceable apart from the remainder 6

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1

of the contract. The challenge should therefore be considered by an

2

arbitrator, not a court.

3 Id. at 445-46. See also Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 4 622 F.3d 996, 1000 (9th Cir. 2010) (“[W]hen a [party’s] legal challenge is that a 5 contract as a whole is unenforceable, the arbitrator decides the validity of the 6 contract, including derivatively the validity of its constituent provisions (such as the 7 arbitration clause).”). The Buckeye Court cited its prior decision in Southland Corp. v. Keating, 465

9 U.S. 1 (1984), as an example of an argument that, unlike HBO’s attack on the 10 Agreement at large, must be determined by the Court. In Southland, the plaintiffs 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8

11 specifically “challeng[ed] the agreement to arbitrate as void under California law 12 insofar as it purported to cover claims brought under the state Franchise Investment 13 Law.” Buckeye, 546 U.S. at 444. Plaintiffs did not argue that the entire contract was 14 invalid, but rather that the contract’s arbitration agreement was prohibited under 15 California’s Franchise Investment Law. Southland Corp., 465 U.S. at 4. Thus, the 16 validity of the arbitration clause in Southland Corp. was properly before the courts, 17 rather than the arbitrator. See Buckeye, 546 U.S. at 444. 18

On the other hand, the Buckeye Court cited its earlier decision in Prima Paint

19 Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), as an example of a claim 20 that, like HBO’s, must go to the arbitrator. The issue in Prima Paint was “whether a 21 claim of fraud in the inducement of the entire contract is to be resolved by the 22 federal court, or whether the matter is to be referred to the arbitrators.” Id. at 402. 23 The Court held that “if the claim is fraud in the inducement of the arbitration clause 24 itself—an issue which goes to the making of the agreement to arbitrate—the federal 25 court may proceed to adjudicate it. But the statutory language [in the FAA] does not 26 permit the federal court to consider claims of fraud in the inducement of the contract 27 generally.” Id. at 403-04. Because there was no argument that the respondent had 28 “fraudulently induced [the petitioner] to enter into the agreement to arbitrate,” the 7

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1 issue of whether the contract as a whole had been induced by fraud was for the 2 arbitrator and not a court. Id. at 406. 3

Here, HBO does not attack the validity of the arbitration clause, but attacks

4 the continuing validity of the Agreement itself (Opp. at 10:10-12), and the validity 5 of the non-disparagement clause specifically as violating California public policy. 6 (Id. at 19:5-16.) Those are issues for the arbitrator, however, as they are not attacks 7 on “the agreement to arbitrate” but attacks on “the contract generally.” Prima Paint,

9 Court. 10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 388 U.S. at 403-04. Thus, the issues raised by HBO are for the arbitrator and not this

In the Jackson Estate’s opening brief, this law was specifically referenced by

11 citation to and quotation from the Ninth Circuit’s decision Sanford v. 12 MemberWorks, Inc., 483 F.3d 956, 962 (9th Cir. 2007): “Issues regarding the 13 validity or enforcement of a putative contract mandating arbitration should be 14 referred to an arbitrator, but challenges to the existence of a contract as a whole must 15 be determined by the court prior to ordering arbitration.” Ibid. (emphasis in 16 original), citing Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 17 1136, 1140–41 (9th Cir.1991). (Mot. at 5:1-7, citing and quoting same). 18

HBO only response to this binding precedent is in a footnote. (Opp. at 10,

19 n. 4.) And its response is just plain wrong. HBO says that the Sanford court 20 “specifically cautioned that the ‘the Supreme Court has not yet spoken to this 21 issue.’” Ibid. The “issue” that that Sanford court “cautioned that ‘the Supreme Court 22 has not yet spoken to’” was not contract validity, but contract formation. See 23 Sanford, 483 F.3d at 962. There is no issue in this case as to contract formation. 24

HBO then contends that the Supreme Court’s recent decision in Henry

25 Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019) somehow 26 overruled the Ninth Circuit’s caselaw in this area and held that “this Court (not an 27 arbitrator) is to consider not merely the existence of an agreement, but also its 28 continuing validity.” (Opp. at 10, n. 4.) The decision in Henry Schein held nothing 8

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1 of the sort. Henry Schein overruled a body of case law from the Circuits that 2 allowed a court to deny a motion to compel arbitration, even when the arbitration 3 agreement delegated arbitrability decisions to the arbitrator, if the court found that 4 the grounds for arbitration were “wholly groundless.” Schein, 139 S. Ct. at 528. In 5 other words, after Henry Schein, a court must compel arbitration even if a court 6 believes that the basis for arbitration is completely frivolous (assuming that the 7 arbitration agreement delegates arbitration to the arbitrator). HBO’s claim that it overruled Ninth Circuit case law—much less the decades

9 of Supreme Court case law discussed above—is based on an incorrect, and overly 10 broad, reading of one sentence in the case. Specifically, HBO cites Henry Schein for 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8

11 its reiteration of the long-settled rule that “before referring a dispute to an arbitrator, 12 the court determines whether a valid arbitration agreement exists.” Henry Schein, 13 139 S. Ct. at 530 (emphasis added). As seen from the discussion above, the Supreme 14 Court routinely refers to arbitration clauses as “arbitration agreements” and 15 distinguishes them from the larger “contract as a whole.”3 In other words, the Henry 16 Schein Court’s statement that “before referring a dispute to an arbitrator, the court 17 determines whether a valid arbitration agreement exists,” Henry Schein, 139 S. Ct. 18 at 530, is an obvious reference to this long-existing case law referring to arbitration 19 clauses as “arbitration agreements.” Under the cases discussed above, it is only the 20 validity of the “arbitration agreement” (or arbitration clause), and not the “contract 21 3

As noted above, the Supreme Court has long distinguished between: (1) an 22 “arbitration agreement” (i.e., an arbitration clause); and (2) the “contract as a whole.” For example, Buckeye contrasts two types of challenges to the validity of 23 agreements under the FAA. There are challenges to (1) “the validity of the agreement to arbitrate.” Buckeye, 546 U.S. at 444. The Court contrasts these to (2) 24 challenges to “the contract as a whole.” Ibid. Later, Buckeye summarized that case as “reject[ing] application of state severability rules to the arbitration agreement 25 without discussing whether the challenge at issue would have rendered the contract void or voidable.” Ibid. Likewise, in Prima Paint, the Court contrasted arguments 26 that a party had been “fraudulently induced it to enter into the agreement to arbitrate,” with arguments that the “agreement itself w[as] procured by fraud.” 27 Prima Paint, 388 U.S. at 406 (all emphases in this footnote are added). 28 9

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1 as a whole” that a Court must examine. HBO’s assertion to the contrary would 2 require this Court to conclude that the unanimous Court in Henry Schein overruled 3 sub silientio decades of its own case law on the severability of analysis of the 4 validity of arbitration clauses from analysis of the validity of the contract as a 5 whole. 6

HBO does not specifically challenge the validity of the Agreement’s

7 arbitration clause. Instead, HBO argues that the entire contract has expired and is no

9 the validity of the contract as a whole, and not specifically to the arbitration clause, 10 must go to the arbitrator.” Buckeye, 546 U.S. at 449. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 longer valid, including its arbitration clause. Under Buckeye, HBO’s “challenge to

11 12 13

C.

The Arbitration Clause Is Valid And Enforceable Regardless of HBO’s Argument that the Agreement Has “Expired.”

As explained above, the law is clear that the arbitration clause is severable

14 and survives any supposed expiration of the Agreement’s other obligations. 15 Buckeye, 546 U.S. at 445. Nevertheless, HBO attempts to persuade this Court that “a 16 contract must specifically provide that such [arbitration] rights survive termination 17 of the agreement.” (Opp. at 12:16-17.) 18

HBO’s argument is, quite literally, the exact opposite of the Supreme Court’s

19 clear jurisprudence in this area as explained below. Indeed, the only case HBO cites 20 for this proposition is an unpublished decision from the California Court of Appeal, 21 Selman v. FCB Worldwide, Inc., No. B168315, 2004 WL 2729656, at *1–2 (Cal. Ct. 22 App. Dec. 1, 2004). (See Opp. at 12:18-19.) And the case does not remotely stand 23 for the proposition that HBO cites it for. The case mentions that an employment 24 agreement “provided for expiration of the substantive rights but survival of the 25 arbitration clause.” Id. at *2. The Court was not addressing the validity of the 26 arbitration clause, but the issue of waiver. Plaintiff argued that defendant had 27 waived its right to arbitrate when it filed an answer to Plaintiff’s complaint—that 28 asserted, among other things, that the employment agreement had expired—instead 10

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1 of immediately moving to compel arbitration. Ibid. In that context, the Court 2 mentioned the fact that the arbitration clause stated that it survived expiration as one 3 reason, among many, that defendant had not waived its right to arbitrate. Ibid. No 4 fair reading of the case could possibly support HBO’s citation of it for the 5 (erroneous) proposition that for an arbitration clause to survive expiration, “a 6 contract must specifically provide that such rights survive termination of the 7 agreement.” (Opp. 12:16-17 (emphasis added).) Contrary to HBO’s assertions, the Supreme Court has held that there is “a

9 presumption in favor of postexpiration arbitration of matters unless ‘negated 10 expressly or by clear implication.’” Litton Fin. Printing Div., a Div. of Litton Bus. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8

11 Sys., Inc. v. N.L.R.B., 501 U.S. 190, 204 (1991). Thus, “the parties’ obligations 12 under their arbitration clause survive[ ] contract termination when the dispute [is] 13 over an obligation arguably created by the expired agreement.” Nolde Bros., 430 14 U.S. at 252. Or, in other words, “where the dispute is over a provision of the expired 15 agreement, the presumptions favoring arbitrability must be negated expressly or by 16 clear implication.” Ibid. 17

In fact, as recently as March 2019, following this precedent, a court in this

18 district rejected an argument identical to HBO’s and granted the moving party’s 19 motion to compel arbitration. Wamar Int’l, LLC v. Thales Avionics, Inc., 2019 WL 20 1877615, at *8. The court summarized the state of the law as follows: 21

Even where an agreement has been terminated, “the well settled

22

jurisprudence that holds arbitration agreements to a life and validity

23

separate and apart from the agreement in which they are embedded”

24

dictates that “parties’ duties under an arbitration clause survive contract

25

termination when the dispute is over an obligation arguably created by

26

the expired contract.”

27 Wamar Int’l, LLC v. Thales Avionics, Inc., No., 2019 WL 1877615, at *10 n. 3 28 (C.D. Cal. Mar. 20, 2019), quoting Homestead Lead Co. of Missouri v. Doe Run 11

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1 Resources Corp., 282 F. Supp. 2d 1131, 1140 (N.D. Cal. 2003). 2

Another court in this district also recently rejected the proposition that HBO

3 urges this Court to adopt as barred by Supreme Court precedent. The court 4 explained that “[a]bsent an express agreement to the contrary, however, arbitration 5 agreements ‘survive[ ] contract termination when the dispute [is] over an obligation 6 arguably created by the expired agreement.’” Brachfeld v. Hopkins, 2017 WL 7 10436075, at *5 (C.D. Cal. Dec. 11, 2017) (granting motion to compel arbitration),

9 AFL-CIO, 430 U.S. 243, 252 (1977). Thus, “[t]he strong presumption in favor of 10 arbitration therefore resolves any dispute as to the ambiguity of an arbitration 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 quoting Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers Union,

11 clause’s survival, even if it is otherwise omitted from a contract’s survival clause.” 12 Brachfeld, 2017 WL 10436075, at *5. 13

HBO’s heavy reliance on Just Film, Inc. v. Merch. Servs., Inc., 2011 WL

14 2433044 (N.D. Cal. 2011), is misplaced. The case is readily distinguishable. In a 15 nutshell, the case involved a plaintiff who leased various equipment from a lessor. 16 The lease included an arbitration clause. Id. at *2. Roughly four years after the lease 17 expired, the lessor’s assignee claimed that plaintiff attempted to debit her bank 18 account for supposed failure to pay tax processing and filing fees. Id. at *3. Plaintiff 19 thereafter brought RICO claims against the lessor and others, and the lessor moved 20 to compel arbitration. Id. at *3-4. The court did not deny defendants’ motion to 21 compel arbitration of plaintiff’s RICO claims because the lease that included the 22 arbitration clause had expired. Rather, the court expressly found that plaintiff’s 23 “RICO claims are not based on any dispute regarding the lease, but rather on 24 [lessor’s assignee’s] allegedly fraudulent attempt to extract funds from her bank 25 account approximately four years after the lease ended.” Id. at *5. Indeed, the Court 26 noted that the lessor’s assignee “offers no evidence that this post-expiration dispute 27 concerns conduct that occurred before June 2007 or that [lessee’s] lease is 28 implicated.” Ibid. In other words, the dispute did not fall within the scope of the 12

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1 arbitration provision regardless of whether it had expired or not. 2

Here, the dispute between the Jackson Estate and HBO is a “dispute over an

3 obligation arguably created by the [allegedly] expired agreement.” Nolde Bros., 430 4 U.S. at 252. The Nolde Court was clear that in such a case, “the parties’ obligations 5 under their arbitration clause survive[ ] contract termination.” Ibid.; see also Litton, 6 501 U.S. at 205–06 (1991) (an arbitrable “postexpiration grievance can be said to 7 arise under the contract … where an action taken after expiration infringes a right

9

This must be so. Ultimately, an arbitration clause must be interpreted to

10 effectuate the intent of the contracting parties. See E.E.O.C. v. Waffle House, Inc., 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 that accrued or vested under the agreement.”).

11 534 U.S. 279, 294 (2002). The parties intended that “any dispute arising out of, in 12 connection with or relating to this Agreement shall be submitted for binding and 13 final arbitration before a retired judge of the Superior Court of the State of 14 California for the County of Los Angeles.” (Steinsapir Decl., Ex. B, Dkt. 18 at p. 15 33.) It cannot be the case that the parties intended that if one party alleges that the 16 other party violated covenants in the Agreement and the other defended the claim by 17 asserting that the covenants expired, interpretation of the Agreement and resolution 18 of the parties’ dispute about the meaning of the Agreement would be for a court and 19 not an arbitrator. But that is precisely what HBO is urging this Court to find. 20 Because HBO’s position is contrary to Supreme Court precedent, and the intent of 21 the parties as embodied in the broad arbitration clause, the Court should reject it and 22 grant the Jackson Estate’s Motion to Compel Arbitration. 23

D.

24

There can be no serious contention that this dispute does not arise out of the

The Jackson Estate’s Claims Arise Out of the Agreement

25 Agreement and falls within the scope of the arbitration clause. Indeed, HBO’s 26 opposition largely ignores the strong federal policy in favor of arbitration. “The 27 Arbitration Act establishes that, as a matter of federal law, any doubts concerning 28 the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. 13

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1 Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (emphasis 2 added). Here, to the extent there are any such doubts, they must be resolved in favor 3 of arbitrability. 4

And notwithstanding HBO’s statement that the Agreement contains a “limited

5 arbitration provision,” (Opp. 8:28), the Agreement here has the broadest arbitration 6 clause possible. That clause requires arbitration of “[a]ny dispute arising out of, in 7 connection with or relating to this Agreement.” (Steinsapir Decl., Ex. B, Dkt. 18 at

9 with’ reaches every dispute between the parties having a significant relationship to 10 the contract and all disputes having their origin or genesis in the contract.” Simula, 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 p. 33 of 42.) The Ninth Circuit has held that “the language ‘arising in connection

11 Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 1999). The Jackson Estate alleges 12 that HBO violated the express terms of the Agreement, which obviously has more 13 than “a significant relationship to the contract.” 14

The predecessor entities of the Jackson Estate and HBO signed the

15 Agreement, which included a broad arbitration clause.4 That clause requires 16 arbitration of “[a]ny dispute arising out of, in connection with or relating to this 17 Agreement.” (Dkt. 18 at p. 33 of 42). The Ninth Circuit has held that “the language 18 ‘arising in connection with’ reaches every dispute between the parties having a 19 significant relationship to the contract and all disputes having their origin or genesis 20 in the contract.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 1999). The 21 22 23 24 25 26

4

HBO says it is not disputing, for purposes of this motion, that Plaintiff Optimum Productions is the successor-in-interest to TTC Touring. (Opp. at 2, n. 2.) It does not address, in any meaningful way, whether HBO is the successor-ininterest to “Home Box Office, a Division of Time Warner Entertainment Company, L.P.” The Jackson Estate’s arguments and evidence on the issue are therefore undisputed. (Steinsapir Decl. ¶¶ 2-3.) And HBO has waived any argument on the issue in this court at least. Conservation Force v. Salazar, 677 F.Supp.2d 1203, 1211 (N.D.Cal. 2009) (“Where plaintiffs fail to provide a defense for a claim in opposition, the claim is deemed waived.”).

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1 Jackson Estate alleges that HBO violated the express terms of the Agreement, which 2 obviously has more than “a significant relationship to the contract.” 3

HBO’s argument to the contrary, that “the arbitration provision of that

4 Agreement still would not encompass this dispute,” is hard to follow. (Opp. at15). 5 HBO claims that “Petitioners do not, and cannot, allege that any information 6 obtained during the course of performing the 1992 Agreement . . . was provided to 7 the filmmakers.” (Id. at 16). HBO continues that, “by the express language of the

9 Confidentiality Provisions.” (Ibid.). HBO concludes that, “[a]ny complaints 10 Petitioners have about the film, therefore, are outside the scope of the 1992 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 contract itself, Leaving Neverland is categorically outside the scope of the

11 Agreement and its arbitration provision.” (Ibid.). 12

HBO’s conclusion does not follow from its premises. As best as the Jackson

13 Estate can follow HBO’s argument, HBO appears to be suggesting that the 14 arbitration clause only applies to disputes arising under the Agreement’s 15 Confidentiality Provisions and does not apply to the non-disparagement provision. 16 But there is no basis in the text of the Agreement for such a narrow reading. The 17 arbitration clause references the entire Agreement, which must be understood as 18 broadly as possible under controlling Ninth Circuit precedent. Simula, 175 F.3d at 19 721. At best, these are substantive arguments that HBO can pitch to the arbitrator to 20 explain why HBO believes it is entitled to break its commitments. 21

E.

22

HBO devotes a large part of its opposition brief to arguing that the covenant

HBO’s Substantive Arguments Are Irrelevant

23 that the Jackson Estate seeks to enforce in arbitration is unenforceable for policy and 24 other reasons. (Opp. at 16-22.) These arguments are directed at the underlying 25 merits of the Jackson Estate’s claims, rather than their arbitrability, and they have no 26 place in an opposition to a motion to compel arbitration. Whatever HBO may think 27 of the non-disparagement clause, HBO does not contend that the arbitration clause 28 in particular is contrary to law or public policy. And there is certainly no First 15

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1 Amendment right not to arbitrate. Thus, even if HBO were to argue, as the plaintiffs 2 did in Buckeye, that the entire Agreement is contrary to law, the Court would still be 3 obliged to send the dispute to arbitration. See Buckeye, 546 U.S. at 449. HBO’s 4 substantive arguments about the Agreement’s non-disparagement clause are, in 5 short, a waste of ink at this stage. But a few comments are necessary. Non6 disparagement and confidentiality clauses between private parties are generally 7 enforceable under the First Amendment. Cohen v. Cowles Media Co., 501 U.S. 663,

9 Amendment and other public policy is an issue for the arbitrator in the first instance. 10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 672 (1991). Whether and how the contract should be interpreted in light of the First

Finally, HBO repeatedly refers to the Jackson Estate as somehow seeking a

11 “prior restraint” in this suit and claims that the Jackson Estate reads the Agreement 12 as an agreement for a “prior restraint.” (Opp. at 13:12, 16:19, 21:8.) This rhetoric is 13 misplaced, as it appears that HBO does not know what a “prior restraint” is. A 14 “prior restraint” is a court order “barring speech in the future.” Alexander v. United 15 States, 509 U.S. 544, 553 (1993). The Jackson Estate never sought to preliminarily 16 enjoin HBO’s film. The claims to be arbitrated seek money damages. Claims for 17 money damages are, by definition, not prior restraints. CBS, Inc. v. Davis, 510 U.S. 18 1315, 1318 (1994) (Blackmun, Circuit Justice) (contrasting a “damages” remedy 19 with a “prior restraint”).5 20 21 22 23 24 25 26 27

5

This is far from the only mistake in HBO’s papers. At pages 3-4 of the brief, HBO asserts that “Petitioners” (i.e., the Jackson Estate) “released their own film to respond to the allegations in the documentary.” (Opp. at 3:25-4:1.) This is incorrect. The cited article refers to a YouTube video, which includes interviews with Michael Jackson’s nephew Taj, and niece Brandi. That video had nothing to do with the Jackson Estate. (Supp. Steinsapir Decl. ¶ 2.) It is one of many YouTube videos, which have exposed various flaws in the “documentary” HBO released. (Ibid.) Moreover, neither Taj Jackson nor Brandi Jackson are beneficiaries of the Jackson Estate. (Id. ¶ 4.) HBO appears to be confusing the “Jackson Family” with the “Jackson Estate”—an understandable mistake for a layperson but not for HBO, whose counsel in this case (O’Melveny & Myers) actually defended a very wellpublicized case brought by the Jackson Family (which the Jackson Estate was not a party to as counsel certainly understood). (Id. ¶ 3.) And regardless, neither Taj Jackson nor Brandi Jackson produced or “released” the Film. (Id. ¶ 4.)

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1 III.

CONCLUSION

2

For the reasons stated, the Jackson Estate respectfully requests that the Court

3 compel HBO to participate in arbitration in Los Angeles County consistent with the 4 terms of the Agreement. 5 6 DATED: May 9, 2019 7

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8

Respectfully Submitted:

11 12 13 14

By:

/s/ Jonathan Steinsapir Jonathan Steinsapir Attorneys for Optimum Productions and for John Branca and John McClain as Executors of the Estate of Michael J. Jackson

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1

SUPPLEMENTAL DECLARATION OF JONATHAN P. STEINSAPIR

2

I, Jonathan Steinsapir, declare as follows:

3

1.

I am an attorney duly admitted to practice before this Court. I am a

4 partner with Kinsella Weitzman Iser Kump & Aldisert LLP, attorneys of record for 5 Optimum Productions and for John Branca and John McClain as Co-Executors of 6 the Estate of Michael J. Jackson (“the Jackson Estate”). If called as a witness, I 7 could and would competently testify as follows. 2.

In defendant’s opposition brief at pages 3 and 4, it asserts that

9 “Petitioners”—the Jackson Estate—“released their own film to respond to the 10 allegations in the [so-called] documentary,” Leaving Neverland. The brief then 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8

11 refers to an article about a thirty-minute YouTube video, entitled Neverland 12 Firsthand: Investigating the Michael Jackson Documentary. This video was not 13 produced by the Jackson Estate. This video was not funded by the Jackson Estate. 14 The Jackson Estate had nothing to do with this video. From communications with 15 Taj Jackson (Michael Jackson’s nephew) who is interviewed in the video, I 16 understand that this was a video produced by Liam McEwan, a New Zealand born 17 radio host. This video is one of many videos on YouTube, which were 18 independently created without the Jackson Estate or the Jackson Family, exposing 19 the many flaws in Leaving Neverland. 20

3.

O’Melveny & Myers was counsel of record to the defendant in a long-

21 running and highly-publicized lawsuit brought by members of the Jackson Family 22 after Michael Jackson’s tragic death on June 25, 2009. The Jackson Estate was not a 23 party to that suit. Both sides in that suit dealt with the Jackson Estate—almost 24 entirely through Mr. Weitzman, me, and other lawyers at our firm—as a third party 25 to the lawsuit. 26

4.

From communications with Taj Jackson, I understand that neither he

27 nor his cousin Brandi Jackson (nor anyone else in his extended family to his 28 knowledge) were involved in the production, funding, or release of Neverland 1

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1 Firsthand: Investigating the Michael Jackson Documentary. Neither Taj Jackson, 2 nor Brandi Jackson, are beneficiaries of the Estate of Michael Jackson. The sole 3 beneficiaries of the Estate of Michael Jackson, through a Trust, are his three 4 children, his mother (for the remainder of her life), and various charities. 5

I declare under penalty of perjury under the laws of the State of California

6 that the foregoing is true and correct. 7

Executed on May 9, 2019, at Santa Monica, California. /s/ Jonathan Steinsapir Jonathan P. Steinsapir

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8

11 10386.00348/642293

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7 FREEDMAN + TAITELMAN LLP Bryan J. Freedman (SBN 151990) 8 [email protected] 1901 Avenue of the Stars, Suite 500 9 Los Angeles, California 90067 Telephone: 310.201.0005 10 Facsimile: 310.201.0045 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) [email protected] 2 Jonathan P. Steinsapir (SBN 226281) [email protected] 3 Zachary T. Elsea (SBN 279252) [email protected] 4 808 Wilshire Boulevard, 3rd Floor 5 Santa Monica, California 90401 Telephone: 310.566.9800 6 Facsimile: 310.566.9850

11 Attorneys for Plaintiffs Optimum Productions and for the Co-Executors of 12 the Estate of Michael J. Jackson 13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15

WESTERN DIVISION

16

OPTIMUM PRODUCTIONS, a 17 California corporation; and JOHN BRANCA and JOHN MCCLAIN, in 18 the respective capacities as COEXECUTORS OF THE ESTATE OF 19 MICHAEL J. JACKSON, Plaintiffs,

20 21

vs.

Case No. 2:19-cv-01862 GW(PJWx) NOTICE OF MOTION TO COMPEL ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF JONATHAN STEINSAPIR Judge: Hon. George H. Wu

22 HOME BOX OFFICE, a Division of TIME WARNER ENTERTAINMENT, 23 L.P., a Delaware Limited Partnership, and HOME BOX OFFICE, INC., a 24 Delaware corporation, and DOES 1 through 5, business entities unknown, 25 and DOES 6 through 10, individuals unknown, 26 Defendants. 27

Date: May 13, 2019 Time: 8:30 a.m. Ctrm: 9D

28 NOTICE OF MOTION TO COMPEL PUBLIC ARBITRATION

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1

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

2

PLEASE TAKE NOTICE that on May 13, 2019 at 8:30 a.m., or as soon

3 thereafter as the matter may be heard, in Courtroom 9D of the United States 4 Courthouse, located at 350 West 1st Street, Los Angeles, California, 90012, before 5 the Honorable George H. Wu, United States District Judge, Petitioners Optimum 6 Productions and John Branca and John McClain, in their respective capacities as 7 Co-Executors of the Estate of Michael J. Jackson (collectively, the “Jackson 9 Home Box Office, a division of Time Warner Entertainment, L.P., and Home Box 10 Office, Inc., (collectively, “HBO”) to participate in a public arbitration with the 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 Estate”), and each of them, will appear and move the Court to compel Respondents

11 Jackson Estate regarding the 1992 agreement (the “Agreement”) with the Estate’s 12 predecessors-in-interest. 13

This Motion is made pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et

14 seq., on the grounds that the Agreement contains a valid and enforceable arbitration 15 clause that requires arbitration of the dispute between the Estate and HBO regarding 16 the terms of the Agreement. This Motion is made in the alternative to the Motion to 17 Remand, set for the same date. If the Court grants the Motion to Remand, this 18 motion is moot. 19

This Motion is based upon: this Notice; the attached Memorandum of Points

20 and Authorities and Proposed Order filed concurrently therewith; the Declaration of 21 Jonathan P. Steinsapir (“Steinsapir Decl.”) filed concurrently herewith; all papers 22 and pleadings on file in this action; and on such other and further evidence and 23 argument as the Court may, in its discretion, lawfully consider in deciding this 24 Motion. 25

PLEASE TAKE FURTHER NOTICE that this Motion is made following

26 the conference of counsel pursuant to Local Rule 7-3, which took place in a 27 telephonic conferences on March 22, 2019 and April 11, 2019. (See Steinsapir Decl. 28 at ¶ 2.) 2

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1 2 DATED: April 15, 2019 3

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4 5 6 7

9

/s/ Jonathan Steinsapir Jonathan Steinsapir Attorneys for Optimum Productions and for John Branca and John McClain as Executors of the Estate of Michael J. Jackson

10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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By:

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MEMORANDUM OF POINTS AND AUTHORITIES

1 2 I.

INTRODUCTION

3

On March 13, 2019, Defendant, Home Box Office, Inc. (“HBO”), removed

4 this Petition to Compel Public Arbitration (the “Petition”), (Dkt. 1-1), filed in Los 5 Angeles Superior Court to this Court. Plaintiffs Optimum Productions and the Co6 Executors of the Estate of Michael Jackson (collectively “the Jackson Estate”) filed 7 a motion to remand on April 12, 2019. (Dkt. 17.) This motion will be moot if the 9 however, the Jackson Estate respectfully requests that the Court compel arbitration 10 of its claims against HBO. 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 Court grants the motion to remand. If the Court denies the motion to remand,

11 II.

FACTUAL AND PROCEDURAL BACKGROUND

12

The background of this dispute is laid out in more detail in the motion to

13 remand. Here, we merely summarize the points pertinent to a motion to compel 14 arbitration. As detailed in the Petition, HBO—through its predecessor-in-interest 15 Home Box Office, a Division of Time Warner Entertainment Company, L.P. 16 (“TWE”) 1—entered into an agreement with Michael Jackson and Optimum 17 Productions’ predecessor entity, TTC Touring Corporation (“TTC”) in 1992 (the 18 “Agreement”). (Dkt 1-1, p. 37; Steinsapir Decl., Ex. B.) 19

Optimum Productions is the successor-in-interest to TTC by merger.

20 (Steinsapir Decl., Ex. C.) HBO is the successor-in-interest to the other contracting 21 party, Home Box Office, a Division of Time Warner Entertainment Company, L.P. 22 (Steinsapir Decl. ¶¶ 2-3.) 23

The Agreement granted HBO an exclusive and historic license to televise in

24 the United States one of Michael Jackson’s concert performances on the Dangerous 25 World Tour in exchange for monetary and non-monetary consideration, including a 26 1

TWE is apparently a subsidiary of Charter Communications. (Steinsapir 27 Decl. ¶ 3.) It has not been served, and it is apparently irrelevant to this case. (Id.) 28 1

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1 covenant by HBO not to disparage Michael Jackson or his affiliates. (Dkt. 1-1, p. 11 2 ¶¶ 30-32.) 3

In those non-disparagement provisions, HBO promised that “HBO shall not

4 make any disparaging remarks concerning Performer [i.e., Michael Jackson] or any 5 of his representatives, agents, or business practices or do any act that may harm or 6 disparage or cause to lower in esteem the reputation or public image of Performer.” 7 (Dkt. 1-1, p. 51 (emphasis added); Steinsapir Decl., Ex. B at Ex. I, p. 2.) As detailed in the Petition, Respondents have breached the Agreement,

9 including the Agreement’s non-disparagement clause, as well as the covenant of 10 good faith and fair dealing, by producing, screening, and promoting the film 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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11 Leaving Neverland (“the Film”). (Dkt. 1-1, pp. 12-13 ¶¶ 36-40.) Among other 12 things, the Film specifically disparages Michael Jackson in connection with the 13 Dangerous World Tour, and uses footage from one of Michael Jackson’s famous 14 short films, which was utilized in the Dangerous World Tour—including in the 15 actual concert HBO aired—for the specific purpose of disparaging Michael 16 Jackson. (Steinsapir Decl. ¶ 8.) 17

The Agreement includes a mandatory arbitration clause. It reads as follows:

18

(iv) Arbitration. Any dispute arising out of, in connection with or relating to this Agreement shall be submitted for binding and final arbitration before a retired judge of the Superior Court of the state of California for the County of Los Angeles who shall be mutually selected by the parties. In the event that the parties cannot agree on the selection of such a retired judge within 30 days after one of the parties notifies the other in writing that there is any such dispute to be resolved, each party shall select such a retired judge, and the two retired judges so selected shall then select a third retired judge who shall serve as the sole judge in connection with such dispute. If the two party-appointed judges are unable to select a third judge within 30 days after their appointment, the sole retire judge in connection with such dispute shall be selected by the Superior Court of the State of California for the County of Los Angeles. The retired judge so selected shall conduct the arbitration in conformity with the rules of, and as if it were conducted by, the American Arbitration Association.

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(Steinsapir Decl., Ex. B, pp. 9-10 (¶ iv)). 2

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On February 7, 2019, through their counsel, the Co-Executors of the Estate of

1

2 Michael Jackson and Optimum Productions sent a letter to HBO’s Chief Executive 3 Officer regarding Leaving Neverland, copying the General Counsel of HBO (a copy 4 of which is attached as Exhibit A to the Petition and the attached declaration of 5 Jonathan P. Steinsapir). The letter catalogued the many glaring deficiencies with and 6 recklessness of Leaving Neverland, as well as the mountain of evidence disproving 7 the false stories peddled by the two men at the center of the Film. (Steinsapir Decl., In the letter, counsel for the Co-Executors of the Jackson Estate and Optimum

9

10 Productions requested a meeting with HBO to discuss a solution. In response, HBO 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 Ex. A, pp. 5-8.)

11 stated publicly and in no uncertain terms that it will not communicate with the 12 Jackson Estate or its related entities with respect to any issues relating to the Film. 13 (Steinsapir Decl., ¶ 5.) HBO never even had the courtesy to otherwise respond to the 14 letter. Ibid. Apparently, HBO was happy to rely on the fact that deceased persons 15 cannot sue for defamation, and thus saw no need to comply with any sort of 16 journalistic ethics at all. Regardless, HBO completely shut down Petitioners’ 17 attempt to reach out to HBO and request arbitration of this dispute. HBO has since 18 confirmed through counsel that it will not agree to arbitrate. (Id. ¶ 2.) 19 III.

ARGUMENT

20

The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., requires that this

21 Court compel HBO to submit to arbitration of this dispute. Section 2 of the FAA 22 provides as follows: 23 24 25 26 27 28

A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. § 2. “In enacting § 2 of the federal Act, Congress declared a national policy 3

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1 favoring arbitration.” Southland Corp. v. Keating, 465 U.S. 1, 10 (1984). “The 2 Arbitration Act establishes that, as a matter of federal law, any doubts concerning 3 the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. 4 Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). 5

Where a party to an arbitration agreement has petitioned the Court for an

6 order compelling arbitration of a dispute, as the Jackson Estate has done here, the 7 FAA requires that “upon being satisfied that the making of the agreement for 9 order directing the parties to proceed to arbitration in accordance with the terms of 10 the agreement.” 9 U.S.C. § 4 (emphasis added). There is currently a dispute between 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 arbitration or the failure to comply therewith is not in issue, the court shall make an

11 HBO and the Jackson Estate regarding the Film, and whether HBO breached its 12 obligations under the Agreement by airing and producing the Film. It cannot be 13 disputed that the Agreement contains a valid arbitration clause binding the Jackson 14 Estate and HBO and covering disputes relating to the non-disparagement clause. 15 Accordingly, the Court must compel this dispute to arbitration according to the 16 terms of the Agreement. See id.; see also Henry Schein, Inc. v. Archer & White 17 Sales, Inc., 139 S. Ct. 524, 530 (2019). 18

Optimum Productions is the successor-in-interest to TTC by merger.

19 (Steinsapir Decl., Ex. C.) HBO is the successor-in-interest to the other contracting 20 party, Home Box Office, a Division of Time Warner Entertainment Company, L.P. 21 (Steinsapir Decl. ¶¶ 2-3.) In light of the provisions directed at not disparaging 22 Michael Jackson, Jackson was an intended third party beneficiary of the Agreement. 23 The Co-Executors are therefore entitled to enforce the Agreement to the same extent 24 Jackson was. See Cal. Prob. Code § 9820; Fryer v. Kaiser Found. Health Plan, Inc., 25 221 Cal.App.2d 674, 679 (1963). 26

Although HBO may dispute the scope of substantive obligations in the

27 Agreement—along with the continuing viability of the obligations in the 28 Agreement—those questions are for the Arbitrator to resolve, and not for a Court. 4

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1 “Issues regarding the validity or enforcement of a putative contract mandating 2 arbitration should be referred to an arbitrator, but challenges to the existence of a 3 contract as a whole must be determined by the court prior to ordering arbitration.” 4 Sanford v. MemberWorks, Inc., 483 F.3d 956, 962 (9th Cir. 2007) (emphasis in 5 original). Here, there is no dispute as to “the existence of [the] contract as a whole.” 6 Ibid. Accordingly, any disputes about its scope, along with its continuing validity or 7 enforceability, “should be referred to the arbitrator.” Ibid. Moreover, the Agreement calls for arbitration according to the Rules of the

9 American Arbitration Association, which provide that “[t]he arbitrator shall have the 10 power to rule on his or her own jurisdiction, including any objections with respect to 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8

11 the existence, scope, or validity of the arbitration agreement or to the arbitrability of 12 any claim or counterclaim.” AAA R-7 (“Jurisdiction”) (available at p. 13 of 13 https://www.adr.org/sites/default/files/Commercial%20Rules.pdf). The Court must 14 therefore refer any objections regarding the arbitrability of the dispute to the 15 arbitrator. Henry Schein, Inc., 139 S. Ct. at 530; see also First Options of Chicago, 16 Inc. v. Kaplan, 514 U.S. 938, 943 (1995). 17

The Jackson Estate therefore respectfully request that the Court compel HBO

18 to participate in arbitration in Los Angeles County consistent with the terms of the 19 Agreement to arbitrate claims for breach of the non-disparagement clause in the 20 Agreement and breach of the covenant of good faith and fair dealing therein, along 21 with any other arbitral issues between the parties relating to the Agreement. 22

Additionally, the Agreement requires that in the event that the parties, or their

23 designated retired judges, cannot agree on an arbitrator, “the Superior Court of the 24 State of California for the County of Los Angeles” shall select a retired judge as 25 arbitrator. (Steinsapir Decl., Ex. B, pp. 9-10 (¶ iv).) Accordingly, the Jackson Estate 26 further requests that, after ordering the parties to arbitration, the Court dismiss this 27 action so that the Los Angeles Superior Court may appoint an arbitrator if necessary. 28 5

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1 DATED: April 15, 2019 2

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3 4 5 6 7

/s/ Jonathan Steinsapir Jonathan Steinsapir Attorneys for Optimum Productions and for John Branca and John McClain as Executors of the Estate of Michael J. Jackson

9 10 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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By:

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DECLARATION OF JONATHAN STEINSAPIR

1 2

I, Jonathan Steinsapir, declare as follows:

3

1.

I am an attorney duly admitted to practice before this Court. I am a

4 partner with Kinsella Weitzman Iser Kump & Aldisert LLP, attorneys of record for 5 Optimum Productions and for John Branca and John McClain as Co-Executors of 6 the Estate of Michael J. Jackson (“the Jackson Estate”). If called as a witness, I 7 could and would competently testify to all the facts within my personal knowledge

9

2.

On March 22, 2019, I met and conferred with Drew Breuder, counsel of

10 record for defendant Home Box Office, Inc. (“HBO”) regarding this motion and an 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8 except where stated upon information and belief.

11 anticipated motion to remand. In a follow-up conversation on April 11, 2019, Mr. 12 Breuder advised that HBO would oppose this motion. He further explained, to the 13 extent the Agreement between TTC Touring and the Home Box Office Division of 14 Time Warner Entertainment Company, L.P. (“TWE”), was enforceable at all, HBO 15 would be the correct entity to enforce the contract against, i.e., TWE and its 16 successors would not be proper parties to this case. Mr. Breuder explained that this 17 contract was not among any assets retained by TWE when HBO was spun off into 18 its own subsidiary corporation (as opposed to a Division of TWE). Mr. Breuder was 19 clear, however, that he was not conceding HBO’s liability or the enforceability of 20 the contract. Mr. Breuder further advised that HBO will not agree to arbitrate. 21

3.

In addition to my conversation with Mr. Breuder, I have also reviewed

22 the “Form 10-K” filed with the Securities and Exchange Commission (“SEC”) for 23 the fiscal year 2002 by AOL/Time Warner Inc., the then parent company of HBO. 24 The document is available at 25 https://www.sec.gov/Archives/edgar/data/1105705/000095014403004064/g81332e1 26 0vk.htm. The document at page 17 explains that the HBO network “will be operated 27 by the wholly owned subsidiary Home Box Office, Inc.” following a corporate 28 restructuring that was occurring in 2002 and 2003. In light of this, it appears that 7

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1 HBO succeeded to all contracts formerly made with the “Home Box Office 2 Division” of TWE. I further understand from correspondence with Mr. Breuder that 3 TWE (of which the “HBO Division” was once part) is now a part of Charter 4 Communications. 5

4.

Attached as Exhibit A hereto is a true and correct copy of the February

6 7, 2019 letter sent by counsel for Petitioners to Richard Plepler. I am copied on this 7 letter and I transmitted the letter by email to Mr. Plepler on behalf of Mr. Weitzman. 5.

After receiving Petitioners’ February 7, 2019 letter, HBO’s

9 programming President, Casey Bloys, stated publicly that “There are no plans to 10 take a meeting [with the Jackson Estate]. We are airing the documentary, and the 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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8

11 letter is not going to change that.” HBO otherwise never bothered to respond to the 12 letter at all. 13

6.

Attached as Exhibit B hereto is a true and correct copy of the 1992

14 agreement (monetary terms have been redacted) entered into between HBO on one 15 hand, and Michael Jackson and TTC Touring Corporation (“TTC”), on the other. I 16 have continuously represented the Co-Executors of the Estate of Michael Jackson 17 since shortly after Michael Jackson’s untimely death on June 25, 2009. Because of 18 that, I have personal knowledge of the general record retention practices and the 19 history of, and ownership of stock in, various corporations that are a part of the 20 Jackson Estate (as their stock was owned by Michael Jackson at the time of his 21 passing). Exhibit B is maintained in the regular course of the business of the Jackson 22 Estate in its legal records, which are maintained by the office of Co-Executor John 23 Branca’s law firm Ziffren Brittenham LLP. 24

7.

TTC was a California corporation, all of the stock in which was owned

25 by Michael Jackson during his lifetime. The stock therefore passed to the Jackson 26 Estate as a matter of law after Jackson’s passing in June 2009. In December 2010, 27 all of the stock of TTC was acquired by Optimum Productions (“Optimum”) in a 28 merger with Optimum as the surviving corporation. A true and correct copy of the 8

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1 “Agreement of Merger” on file with the Secretary of State of the State of California 2 is attached as Exhibit C hereto. Optimum is a California corporation, founded by 3 Michael Jackson in around 1983 as a production company through which he 4 produced films. It holds copyright interests in films Michael Jackson acquired or 5 produced. During his lifetime, all of the stock of Optimum was owned by Michael 6 Jackson. The stock therefore passed to the Jackson Estate as a matter of law after 7 Jackson’s passing in June 2009. 8.

I am familiar with the film Leaving Neverland (the “Film”), which

9 HBO aired earlier this month and continues to make available on its “on demand” 10 platforms. Among other things, the Film disparages Michael Jackson in connection 808 WILSHIRE BOULEVARD, 3RD FLOOR SANTA MONICA, CALIFORNIA 90401 TEL 310.566.9800 • FAX 310.566.9850

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11 with the Dangerous World Tour, and uses footage from at least one of Michael 12 Jackson’s short films utilized in the Dangerous World Tour (including in the actual 13 concert HBO aired) to disparage Michael Jackson. 14

I declare under penalty of perjury under the laws of the State of California

15 that the foregoing is true and correct. 16

Executed on April 15, 2019, at Santa Monica, California.

17 /s/ Jonathan Steinsapir Jonathan P. Steinsapir

18 19 10386.00348/637105.

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EXHIBIT A

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Howard Weitzman Direct Dial: (310) 566-9811 Direct Fax: (310) 566-9871 E-Mail: [email protected]

February 7, 2019 VIA E-MAIL AND OVERNIGHT DELIVERY Richard Plepler Chief Executive Officer Home Box Office, Inc. 1100 Avenue of the Americas - 15th Floor New York, NY 10036 (212) 512-1960 E-Mail: [email protected] Re:

Michael Jackson

Dear Mr. Plepler: We are counsel to the Co-Executors of the Estate of Michael J. Jackson, as well as various wholly-owned entities which own intellectual property and other intangible rights associated with the late Michael Jackson (collectively the “Estate” or the “Jackson Estate”). We write regarding Leaving Neverland, an admittedly one-sided, sensationalist program—referred to as a “documentary” by HBO and others—that HBO apparently funded and intends to air this Spring. The Estate first learned about this program in early January when its premiere at Sundance was announced in the press. As you must know, contrary to all norms of documentary filmmaking, the Estate was never contacted by the supposed “documentarian,” Dan Reed (or anyone else associated with the program) to provide the Estate’s views on, and responses to, the absolutely false claims that are the subject matter of the program. Likewise, no one else who might offer evidence to contradict the program’s premise was consulted either, as Dan Reed has publicly admitted. When the program was first announced, HBO and its producing partners did not disclose the identities of the two subjects of the documentary, but referred to them only as “two men.” However, from even the brief descriptions of the “two men” in the announcement, the Estate knew exactly who they were: Wade Robson and James Safechuck. The Estate knew this not because it had any inside “sources” about the documentary—it had none—but because these two men have been peddling their false “story” for years now, most notably in a series of failed legal actions against the Estate. The Estate did not hesitate to advise the media of their identity. The Estate was one-hundred percent confident that there were no other purported “victims” who this documentary could be about (because, contrary to Robson’s and

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Safechuck’s lawyers’ predictions when they first filed their lawsuits for hundreds of millions of dollars in 2013, no “flood” of further identifiable “victims” ever came forward beyond these two). HBO and its producing partners were then forced to acknowledge that the Estate had “guessed right” and that the two subjects of the film were indeed those two admitted perjurers who had filed lawsuits against the Estate, all of which have now been dismissed with prejudice (but as noted below are pending on appeal). The Estate spent years litigating with Robson and Safechuck, and had four different lawsuits by these two men dismissed with prejudice. (Today, Robson owes the Estate almost seventy thousand dollars in court costs, and Safechuck owes the Estate several thousand dollars as well.) In those litigations, the Estate discovered troves of information about Robson and Safechuck that made it unequivocally clear that they had no credibility whatsoever. We discuss some of that information below, but the information discussed in this letter is just the tip of the iceberg on these two. Had HBO actually complied with the most basic of journalistic ethics—rather than just accept their salacious allegations at face value—it would have discovered so much more long before it ever got involved in this disgraceful project. Obviously, that is the reason that Dan Reed and HBO’s producing partners initially tried to hide the identities of Robson and Safechuck. This ambush was carried out because Dan Reed knew that Michael Jackson’s family and friends, his Estate, and his millions of fans who are deeply knowledgeable about the case would have discredited Robson and Safechuck before filming began. HBO Is Being Used As Part of Robson’s and Safechuck’s Litigation Strategy Robson and Safechuck are pursuing appeals of the judgments against them, appeals that will probably be heard this year. As many other press outlets noted when their lawsuits were still pending in the trial court, Robson, Safechuck, and their shared attorneys have long engaged in a deliberate campaign to try their case in the media, most often through leaks of false information to some of the most salacious online tabloids. Had HBO done any research into this, it would have easily discovered that every year or so while the litigation was pending, before a major issue was to be decided, the tabloids would suddenly be full of false claims being peddled by Robson’s and Safechuck’s attorneys about Michael Jackson. The trial court never let this avalanche of false claims affect it, and we have no doubt that the Court of Appeal will not be affected by it either. That said, Robson’s and Safechuck’s lawyers will continue attempting to try their cases in the media. As noted, Robson and Safechuck are now appealing the dismissal of their multimillion dollar lawsuits. Not coincidentally, their appeals are likely to be heard later this year. HBO’s “documentary” is simply just another tool in their litigation playbook, which they are obviously using in a (very misguided) effort to somehow affect their appeals. Sadly, it appears that HBO—a once great and respected network—has now been reduced to the pay television version of Hard Copy (with a little mix of The Jerry Springer Show). Most pathetically, HBO has been reduced to a pawn in part of Robson’s and Safechuck’s attorneys’ litigation strategy.

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HBO and Dan Reed Intentionally Chose Not to Interview Anyone Who Would Detract From Their Story Leaving Neverland rehashes accusations against the late Michael Jackson of committing the most heinous crimes any person can be accused of in modern society. Given the seriousness of those allegations, one would have expected that HBO and its producing partners would contact: (1) the Jackson family; (2) persons who worked with Jackson during the relevant time period; (3) other young men and women who spent time with Jackson as children (including ones mentioned by name in the “documentary”); (4) friends of Michael Jackson who knew him for his whole life; (5) the many persons who know Safechuck and Robson well but do not believe them; (6) Tom Mesereau and his investigator, Scott Ross, who Robson happily met with for hours in 2005 to tell them about his experiences with Michael, with Mesereau finding Robson so credible that he made Robson the first witness for the defense in Jackson’s 2005 trial; and (7) the Estate, who spent years litigating the very claims discussed in the “documentary” by Safechuck and Robson. Yet, shockingly, HBO and its producing partners never attempted to contact any of these people. The fact that HBO and its producing partners did not even deign to reach out to any of these people to explore the credibility of the false stories Robson and Safechuck told violates all norms and ethics in documentary filmmaking and journalism. It is a disgrace. In fact, Dan Reed admitted in the question and answer session at Sundance that he never even attempted to contact the many, many other young men and women who spent time with Jackson as children, yet continue to defend him to this very day. And at least two of these young men are referenced by name in the film with the implications that they “replaced” Robson and Safechuck as Jackson’s “abuse victims.” Both have gone on record since the documentary was announced to explain that they were never abused by Jackson. One of them, who Robson explicitly claimed in the film “replaced” him, has released several “tweets” denouncing the documentary as a work of fiction. Yet neither of them—among the many others who spent time with Jackson as children—were ever approached by Dan Reed and HBO. In other words, HBO’s “documentary” is based solely on the word of two admitted perjurers. HBO and its partner, Dan Reed, never even attempted to explore whether these two men might not be telling the truth. We have read reports that these two men are supposedly “credible” in the documentary because they tell their story so fluidly. Yet they have been practicing their stories and rehearsing their lines (which changed throughout the litigation as discussed below) for years now. Thus, it is no surprise that these two men—who have also both acted professionally—tell their false story well. The bottom line is that any halfway skilled filmmaker could make a “documentary” telling any outrageous story about a dead man if they can just find two people willing to tell that story and then not challenge those two at all. That is particularly the case when one of the men—Wade Robson—is a self-described “master of deception”; and his own mother testified under oath that he should “have had an Oscar” given how good a liar he is (as discussed below).

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In Interviews, Dan Reed Is Using HBO in Order to Bolster the Credibility of the Program Despite Making Blatantly False Statements in Those Same Interviews Notably, HBO’s reputation is being used as one of the main reasons that the “documentary” should be taken seriously. The producer of this program, Dan Reed, is telling the media that one of the principal reasons the documentary is credible is because of HBO’s reputation. When asked whether an attorney had vetted the film, he responded, “that’s what happens on every single film I make or, to my knowledge, that anyone makes, certainly for HBO.”1 The usual checks on filmmakers are ethical and normative ones, such as factchecking (e.g., are their stories consistent? see below), investigating the motivations of people (e.g., do they have a financial motivation to say what they are saying?), talking to others with knowledge who may have something different to say, etc. But as is apparent from our discussion below, HBO apparently no longer cares about these ethical and normative checks on documentary filmmaking and journalism anymore. If HBO does care about such things, this documentary will never air on HBO. In the same interviews where he touts HBO’s involvement as a reason for his “documentary’s” supposed “credibility,” Mr. Reed has also made blatantly false statements about Robson and Safechuck in an effort to bolster their credibility. For example, in the same Huffington Post interview discussed above, Mr. Reed agrees with the interviewer that “one of the most impactful things in the documentary is the way [Robson’s and Safechuck’s] stories align … even though they didn’t know each other until now.” In another interview, Reed “confirms” that “for legal reasons, [Robson and Safechuck] were kept apart, long before you even approached them about making the movie.” Reed expands on that and says that this was done so “they couldn’t exchange stories. Sundance was the first time [as adults] that they’d met. It’s the first time they’ve had any significant time together.”2 This is utterly false. In Robson’s 2016 deposition, he testified that he had spoken to Safechuck in 2014, the year Safechuck filed his lawsuit against the Estate. When asked what the two men had spoken about, Robson refused to answer the question—his attorney instructed him to remain silent because Robson’s and Safechuck’s common attorneys were involved in the conversations between the two men in 2014. Accordingly, we can never know what they talked about and how they aligned their stories with their attorneys’ help. Given that they were both seeking hundreds of millions of dollars against the Estate, they had hundreds of millions of reasons for aligning their stories.

1

https://www.huffingtonpost.com/entry/leaving-neverland-michael-jackson-danreed_us_5c500044e4b0d9f9be689ab0 2

https://www.rollingstone.com/movies/movie-features/leaving-neverland-directordan-reed-michael-jackson-interview-785817/

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In any event, the idea that two men who are represented by the same attorneys for the last six years would have stories that “align” is hardly surprising. You really cannot be so naïve that you would not understand this. Finally, we must note that we can only assume that the legendary Sheila Nevins had nothing to do with the decision to go forward with this “documentary.” It is a shame that she is no longer involved in these types of decisions for HBO. That HBO, the once iconic network, would fund, produce and distribute this pathetic and untruthful vehicle for these admitted liars to revisit false allegations made as part of their effort to revive their dismissed lawsuits is just plain sad. Robson and Safechuck Were Repeatedly Caught Lying During Their Failed Lawsuits Against the Jackson Estate Wade Robson testified in detail as an adult before a jury in 2005 that Michael Jackson never did anything wrong with or to him. He was then subjected to a withering crossexamination by Ron Zonen, one of California’s most-seasoned prosecutors. Yet, despite that, Wade Robson never wavered. Moreover, even after his testimony, there are many videos of him (readily available online) where he praises Michael Jackson as an inspiration and denies that Michael ever molested him. But even setting that aside, Robson was also caught lying repeatedly in the dismissed litigations with the Estate. For example, in order to try to get around the statute of limitations for monetary claims against the Estate, Robson testified under oath that “[p]rior to March 4, [2013,] I did not understand or was even aware that an Estate [of Michael Jackson] had been opened for administration.” That was a lie. In truth, Robson had personally met with John Branca, one of the Estate’s executors, at Mr. Branca’s office in 2011 in a (failed) effort to solicit work with the Estate on a Michael Jackson-themed Cirque du Soleil show. Prior to meeting with Mr. Branca, Robson’s talent agent told him that he had to contact “John Branca, the person in charge of MJ’s estate.” Not surprisingly, the trial judge dismissed Robson’s claims against the Estate, finding that no rational person could believe Robson’s declaration that he did not know about Michael Jackson’s Estate until March 4, 2013 when he, in fact, had met with John Branca, the Co-Executor of the Estate. In plain English, the judge found that Robson had lied in his sworn declaration. (The idea that Robson would want to spend years of his life creating and directing a Michael Jackson-themed show, when he was in fact a victim of horrendous abuse by Jackson, is itself hard to take seriously.) Robson’s meeting with Mr. Branca was hardly the first time that he tried to capitalize on his relationship with Michael Jackson after Michael’s death when he thought it would help him make money. In the days after Michael’s death, Robson released a statement praising Michael as “one of the main reasons I believe in the pure goodness of human kind.” He then tried to solicit work from Kenny Ortega, the director of Michael Jackson’s This Is It, to help work on the movie. Robson was able to secure work with Janet Jackson, in her 2009 MTV Video Music Awards tribute to Janet’s late brother Michael. In videos behind the scenes

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of the tribute show (easily found online), Robson is seen praising Michael Jackson in the most effusive terms. During the litigation with Jackson’s companies, Robson was also caught trying to hide evidence before his cases were dismissed. For example, Robson lied under oath and stated that, other than one brief email in late 2012, he had had “no written communications” with anyone (other than his attorneys) about his newly-concocted allegations that he was abused by Jackson. This turned out to be a complete and utter lie. Robson had actually shopped a book about his allegations in the year prior to filing his lawsuit—a book he tried to hide from the Estate. That book told a completely different story of how he was first abused by Jackson. When asked about some of these discrepancies at his deposition, Robson explained that his memories had “evolved” since writing the draft of the book in late 2012 and early 2013. He explained that “post disclosing the abuse in 2012 and beginning that healing journey, they've evolved as far as I remember more details about scenarios. As it goes along, you know, it evolves, details get added to.”3 Moreover, despite lying under oath in his lawsuit that he had had “no written communications” with anyone about his supposed abuse, he was eventually ordered by the trial court to produce all such documents. Robson produced hundreds (if not thousands) of written communications (emails, texts, etc.) with his family and friends about his false abuse allegations. He never explained why he lied and said he had no such communications. Most notably, many of these communications were with his mother where he admittedly was trying to reconstruct his own “memories” of the time period when he was supposedly abused—i.e., in his own words, to “add” the “details” that he did not know when he was drafting his book. In one email, he lists over twenty different questions to his mother asking her about the specific details of his interactions with Michael Jackson. Some of these include: “Can you explain all that you remember of that first night at Neverland? What happened when we drove in what did we do? And that first weekend at Neverland?” Notably, in the “documentary,” Robson now recounts “his” supposed “memories” of these events in great detail. But Mr. Reed and Robson never explain that he had to first ask his mother scores of questions before he could tell his story. Indeed, despite telling the story of his first night at Neverland in the documentary as if it is his own memory, at his deposition, he admitted that he “did not know” if his memory of that night “came from [his] own recollection or [if] it was told to [Robson] by someone else.” Simply put, Robson is an admitted perjurer who proudly called himself (in his draft book) a “master of deception.” Robson is such a good liar that his own mother testified under 3

We would be happy to provide you with any source documents, such as depositions, documents produced in discovery, etc. It is a shame Mr. Reed and your colleagues at HBO were not interested in such documents when producing their “documentary.”

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oath at her deposition that she could not tell when he was lying; she even volunteered that “he should have had an Oscar” given how convincing his lies were. It may just be that he deserves an Oscar for HBO’s “documentary” as well. Robson’s fabricated story, of course, is that Jackson’s abuse caused him to have two self-described nervous breakdowns in 2011 and 2012. Those breakdowns, according to Robson, caused him to realize that he had been abused by Jackson decades before. But there is a much more simple explanation for Robson’s breakdowns. He has a family history of suicidal, major depression on his father’s side. Robson’s father committed suicide in 2002. Robson’s first cousin on his father’s side committed suicide in 2012. Unfortunately, major depression is a very heritable disease. Thus, it is no surprise that Robson had these breakdowns. And it is even less surprising that he has continued to have breakdowns given that when Robson saw a psychiatrist in 2011 he was prescribed anti-depressant medication. But he refused to ever take that medication. To be clear, we ascribe no “fault” or “weakness” whatsoever to those who suffer or who have suffered from clinical depression. That said, we must note Robson’s mental illness, and his abject and stubborn refusal to get appropriate medical treatment for it, because Robson’s claim is that his “nervous breakdowns” are strong evidence of his abuse by Jackson. But those breakdowns are much more easily explained by Robson’s family history of major depression and his own (apparent) diagnosis of depression for which he stubbornly and irrationally refused to take the medication prescribed to him by a medical doctor to treat it. As for Safechuck, by his own admission, he did not “realize” that he had been abused until after he saw Robson on the Today Show in May 2013 being interviewed by Matt Lauer about Robson’s newly-concocted story of abuse. All of a sudden, Safechuck realized that he had been abused. He then contacted Robson’s lawyers and filed copycat lawsuits against the Estate for millions of dollars. And like Robson, he too had testified under oath that Jackson never did anything inappropriate with him. His two cases against the Estate were also dismissed. Safechuck’s frivolous lawsuits were dismissed so early in the proceedings that significant discovery was never taken in his case, and he was able to avoid having his deposition taken and producing documents. But even in his sworn declarations in the litigations, there are clear signs that he is lying and trying to construct a false story of abuse from his vague memories of his interactions with Jackson. For example, Safechuck claimed in his sworn declaration that he was first abused on the Paris leg of the Bad Tour, which he correctly identifies as taking place in late June 1988 (as a simple Wikipedia search would reveal). He later says that after the Bad tour ended, Michael flew him out to New York “in February 1989” where Michael was performing at the Grammy’s. Safechuck states in his declaration that he was abused on this New York trip for the Grammy’s. However, the Grammy’s were not in New York in 1989; they were in Los Angeles that year (and in 1990). And Michael did not perform at the Grammy’s in 1989. However, Michael did perform at the Grammy’s in New York in February 1988, i.e., before Safechuck claims he was first abused

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in June 1988. Yet he somehow claims that he was abused on a New York trip to the Grammy’s that occurred before he claims he was first abused. Safechuck’s “error” here is obviously reflective of an effort to create a story of abuse out of whole cloth. Or in other words, Safechuck is just making it up as he goes along. In the “documentary” and in his declaration for the litigation, Safechuck spins a tale about how he refused to testify for Jackson in 2005, despite threats from Jackson and his legal team. Setting aside the absurdity of Jackson and his sophisticated legal team trying to convince an unwilling and unstable witness to testify on such a sensitive issue, Safechuck’s story is demonstrably false. In particular, Safechuck declares that Michael and his legal team called him “towards the end of the criminal trial” trying to pressure him to testify. But this statement cannot be true. Early on in the trial, the Judge precluded the prosecution from allowing evidence regarding alleged molestation of Safechuck and others because the “evidence” of such molestation was unreliable. The exceptions were that the Judge did allow testimony from certain disgruntled workers that they had heard that Michael had molested Wade Robson, Macaulay Culkin and Brett Barnes. That is why those three specifically testified, and all of them denied the molestation (including Robson of course), and were subject to cross-examination by prosecutors but did not waver. And that is why Jackson and his attorneys would not have ever tried to pressure an unwilling and unstable Safechuck to testify, particularly “towards the end of the criminal trial” as Safechuck so falsely claims in the documentary and under oath. *** Given all of this, which are facts readily available to anyone doing minimal due diligence, why would HBO produce a documentary based solely on the words of these two liars and director/producer Dan Reed? Why would HBO produce this documentary without even seeking comment and response from the Jackson Estate who spent years successfully litigating these false allegations with Robson and Safechuck? Is there any other artist who HBO would do this to? Is there any other artist who HBO would not even seek comment from when making such serious accusations? Michael Jackson was subjected to a decade-long investigation by an overly-zealous, ethically-challenged, and ultimately disgraced prosecutor in Santa Barbara County, Tom Sneddon, who looked anywhere and everywhere for supposed “victims” of Jackson’s. Yet, he never found those “victims.” Indeed, the 2005 criminal trial of Jackson was a complete farce, and Michael Jackson was completely exonerated. As anyone who has studied that trial knows, the jury utterly repudiated the prosecution’s case. In both his opening and closing statements, Jackson’s attorney, Tom Mesereau, took the unusual step of telling the jury that they should acquit Jackson because Mesereau and his team had proven Jackson innocent. In other words, he did not try the case as a “reasonable doubt” case. Mr. Mesereau tried the case with the purpose and goal of proving Jackson innocent. And he did exactly that. As recently as 2017, several jurors were re-interviewed about the case in light of Robson’s about-face, and they all agreed that they would still acquit Jackson today. The jurors have been interviewed many

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times; they are articulate bright people, not the gullible idiots that Dan Reed tries to paint them as in his “documentary.” Yet HBO is relying on the uncorroborated stories of two admitted perjurers over the weight of the American justice system. Of course, the tabloid media’s fascination with Michael Jackson and telling more-andmore ridiculous stories about him is nothing new. The great American intellectual, James Baldwin, wrote about “the Michael Jackson cacophony” all the way back in 1985 when the media first began subjecting him to “the jaws of a carnivorous success.” As Baldwin saw it, Michael “will not swiftly be forgiven for having turned so many tables, for he damn sure grabbed the brass ring, and the man who broke the bank at Monte Carlo has nothing on Michael.” By 1985, when Baldwin wrote those words, Michael Jackson was a 27-year-old African-American from Gary, Indiana who had “turned the tables” on the entire power structure in the music business. Leveraging his unprecedented success, Michael insisted that MTV and mainstream radio play his music and that of other African-American artists like him. Michael also insisted that his record company assign him ownership of his own master recordings. In other words, Michael Jackson, the young artist, insisted on controlling his own art and not leaving it to the whims of big business. And more still—the 27 year-old Michael did not just own his own music publishing, he had the gall to outbid other more established players in the industry for one of the crown jewels of music publishing, the ATV catalogue (which famously included the Beatles catalogue). We suspect that even James Baldwin could not have imagined that his words would still ring so true today, over thirty years later. Michael Jackson has yet to “be forgiven for having turned so many tables” even ten years after he left this world forever. Even the once great HBO—who had partnered with Michael to immense success—is subjecting the deceased Michael Jackson to “the jaws of a carnivorous success” in death, devoting four hours of its programming to the words of two serial perjurers, whose sole agenda has been to extract money from Jackson’s rightful heirs and chosen beneficiaries. That HBO has now joined the tabloid media’s “Michael Jackson cacophony”—ten years after his death—is truly sad. We know that HBO is facing serious competitive pressures from Netflix, Amazon and other more modern content providers, but to stoop to this level to regain an audience is disgraceful. We know HBO and its partners on this documentary will not be successful. We know that this will go down as the most shameful episode in HBO’s history. We know that Michael’s devoted fans, and all good people in the world, will not swiftly forgive HBO for its conduct.

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Mr. Plepler, as you yourself said in late 2017: “A lie goes halfway around the world before the truth puts its boots on.”4 The media coverage alone of this disgraceful “documentary” has proven you right. We would be happy to meet with HBO to discuss a solution. We have plenty of further information and witnesses that would expose these two for who they are. If HBO wants to maintain its industry position as a valid source of news and fact, it owes an obligation to the public—not to mention the deceased Michael Jackson with whom HBO had previously partnered with during his lifetime—to actually investigate these matters. Barring that, this “documentary” will say a lot more about HBO than it ever could about Michael Jackson. Very truly yours, /s/ Howard Weitzman HW/JPS cc:

Jonathan P. Steinsapir, Esq. Bryan Freedman, Esq. Eve Konstan, Esq. General Counsel, HBO Glenn Whitehead, Esq., EVP, Business & Legal Affairs, HBO

10386.00347/618197

4

https://deadline.com/2017/10/hbo-richard-plepler-confederate-backlash-vanity-fairsummit-1202181519/

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EXHIBIT B

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EXHIBIT C

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From: To: Subject: Date:

[email protected] [email protected] Activity in Case 2:19-cv-01862-GW-PJW Optimum Productions et al v. Home Box Office et al Motion to Compel Arbitration Monday, April 15, 2019 4:47:28 PM

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Notice of Electronic Filing The following transaction was entered by Steinsapir, Jonathan on 4/15/2019 at 4:46 PM PDT and filed on 4/15/2019 Case Name: Optimum Productions et al v. Home Box Office et al Case Number: 2:19-cv-01862-GW-PJW Filer: John Branca John McClain Optimum Productions Document Number: 18 Docket Text: NOTICE OF MOTION AND MOTION to Compel Arbitration filed by Plaintiffs John Branca, John McClain, Optimum Productions. Motion set for hearing on 5/13/2019 at 08:30 AM before Judge George H. Wu. (Steinsapir, Jonathan) 2:19-cv-01862-GW-PJW Notice has been electronically mailed to: Bryan J Freedman     [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] Dale F Kinsella     [email protected] Daniel M Petrocelli     [email protected]

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Case: 19-56222, 07/08/2020, ID: 11746679, DktEntry: 17, Page 232 of 238 Drew E Breuder     [email protected] Jonathan P Steinsapir     [email protected], [email protected] Theodore J Boutrous , Jr     [email protected] Zachary Truman Elsea     [email protected], [email protected] 2:19-cv-01862-GW-PJW Notice has been delivered by First Class U. S. Mail or by other means BY THE FILER to : The following document(s) are associated with this transaction: Document description:Main Document Original filename:C:\fakepath\Motion to Compel Public Arbitration.pdf Electronic document Stamp: [STAMP cacdStamp_ID=1020290914 [Date=4/15/2019] [FileNumber=27472723-0 ] [71f75975bcdb161c50fb882d273e5fa3d9d4de17333342e468d84cd823094e9a9d3 b5912370396fc4eb51d295a6cb06530d0b7ae74c6946fcd2d63b006454ac7]] This message is intended solely for the use of the addressee(s) and is intended to be privileged and confidential within the attorney client privilege. If you have received this message in error, please immediately notify the sender and delete all copies of this email message along with all attachments. Thank you.

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DANIEL M. PETROCELLI (S.B. #97802) [email protected] DREW E. BREUDER (S.B. #198466) [email protected] O’MELVENY & MYERS LLP 1999 Avenue of the Stars, 8th Floor Los Angeles, CA 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 THEODORE J. BOUTROUS JR. (S.B. #132099) [email protected] GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7296 Facsimile: (213) 229-7242 Attorneys for Home Box Office, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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OPTIMUM PRODUCTIONS, a California corporation; and JOHN BRANCA and JOHN MCCLAIN, in the respective capacities as COEXECUTORS OF THE ESTATE OF MICHAEL J. JACKSON,

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Case No. Los Angeles County Superior Court Case No. 19SMCP00075 HOME BOX OFFICE, INC.’S NOTICE OF REMOVAL

Plaintiffs, v. HOME BOX OFFICE, a Division of TIME WARNER ENTERTAINMENT, L.P., a Delaware Limited Partnership; HOME BOX OFFICE, INC., a Delaware corporation; DOES 1 through 5, business entities unknown; and DOES 6 through 10, individuals unknown, Defendants.

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE THAT defendant Home Box Office, Inc. hereby

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removes this action from the Superior Court of California, County of Los Angeles,

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to the United States District Court for the Central District of California, pursuant to

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28 U.S.C. § 1332(a)(1), 28 U.S.C. § 1441, and 28 U.S.C. § 1446, and in support

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thereof states as follows:

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DESCRIPTION OF ACTION 1.

On February 21, 2019, plaintiffs Optimum Productions and John

Branca and John McClain, in their capacities as co-executors of the estate of

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Michael J. Jackson (collectively, “Plaintiffs”), filed a Petition to Compel Public

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Arbitration (“Petition”) against Home Box Office, Inc. in the Superior Court of the

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State of California, County of Los Angeles. A copy of the Petition is attached

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hereto as Exhibit A (“Ex. A”).

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THE NOTICE OF REMOVAL IS TIMELY 2.

On February 28, 2019, a copy of the Petition was served in New York

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on CT Corporation System, Home Box Office, Inc.’s agent for service of process.

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Abrutyn Decl. ¶ 4. The deadline to remove this action to this Court is therefore

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April 1, 2019. See 28 U.S.C. § 1446(b); Fed. R. Civ. Proc. 6(a)(1) (when a

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deadline falls on a weekend, the deadline is extended to “the next day that is not a

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Saturday, Sunday, or legal holiday”); Piazza v. EMPI, Inc., 2008 WL 590494, at *7

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(E.D. Cal. Feb. 29, 2008) (noting that Rule 6(a)(1) applies to notices of removal).

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This Notice is timely because it is filed prior to April 1, 2019.

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THE ACTION IS REMOVABLE AND

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THE COURT HAS SUBJECT MATTER JURISDICTION

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3.

Petitions to compel arbitration are removable to federal court when

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federal subject matter jurisdiction, including diversity jurisdiction, exists over the

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matter. See, e.g., Sunshine Beauty Supplies, Inc. v. U.S. Dist. Court for the Cent.

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Dist. of Cal., 872 F.2d 310, 311 (9th Cir. 1989) (noting plaintiff “filed a petition to HOME BOX OFFICE INC.’S NOTICE OF REMOVAL

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compel arbitration in California state court,” and defendant “removed the petition to

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federal district court”); Epstein Becker & Green, P.C. v. Brown, 2010 WL 3835067,

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at *1 (S.D.N.Y. Sept. 10, 2010) (addressing a “petition to compel arbitration that

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was removed to [federal] [c]ourt from the Supreme Court of the State of New

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York” based on diversity jurisdiction); Prudential Prop. & Cas. Ins. Co. v. Bazley,

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1986 WL 14198, at *1 (E.D. Pa. Dec. 12, 1986) (denying motion to remand where

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plaintiff “filed a petition to compel arbitration in state court,” and defendant

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“removed that action to [federal] court”); cf. 9 U.S.C. § 4 (“A party aggrieved by

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the alleged failure, neglect, or refusal of another to arbitrate under a written

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agreement for arbitration may petition any United States district court which, save

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for such agreement, would have jurisdiction under title 28, in a civil action or in

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admiralty of the subject matter of a suit arising out of the controversy between the

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parties, for an order directing that such arbitration proceed in the manner provided

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for in such agreement.”).

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4.

The Court has subject matter jurisdiction over this action because there

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is diversity jurisdiction—specifically, the action “is between … citizens of different

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States” and “the matter in controversy exceeds the sum or value of $75,000.” See

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28 U.S.C. § 1332(a).

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5.

At the time of filing of the Petition, Plaintiffs were, and on information

and belief continue to be, citizens of California. a. Optimum Productions is a citizen of California because it is a

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California corporation with its principal place of business in

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California. See Ex. A ¶ 75 (“Optimum Productions is a California

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corporation”); MJJ Prods., Inc. et al. v. The Walt Disney Co., et al.,

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Case No. 2:18-cv-04761-PSG-SK (C.D. Cal.) ¶ 26(b) (Optimum

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Productions “is a California corporation with its principal place of

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business in Los Angeles County”); see also 28 U.S.C. § 1332(c)(1)

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(“[A] corporation shall be deemed to be a citizen of every State … 2

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by which it has been incorporated and of the State … where it has

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its principal place of business.”).

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b. Messrs. Branca and McClain, in their capacity as co-executors of

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the Estate of Michael J. Jackson (“Jackson Estate”), are also

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California citizens because Mr. Jackson was domiciled in

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California at the time of his death. See Triumph Int’l, Inc. v.

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GourmetGiftBaskets.com, Case No. 2:16-cv-01315-PA-FFM (C.D.

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Cal.), Dkt. 1 ¶ 4 (Jackson Estate acknowledges that “[a]t the time of

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his death, Michael Jackson was domiciled in California”); see also

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28 U.S.C. § 1332(c)(2) (“[T]he legal representative of the estate of

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a decedent shall be deemed to be a citizen only of the same State as

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the decedent[.]”).1

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6.

At the time of filing of the Petition, Home Box Office, Inc. was, and

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continues to be, a citizen of Delaware and New York. Specifically, Home Box

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Office, Inc. is a Delaware corporation with its principal place of business in New

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York, New York. Abrutyn Decl. ¶ 2. See also 28 U.S.C. § 1332(c)(1).

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7.

The Petition also names Time Warner Entertainment [Company] L.P.

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(“TWE”), a Delaware limited partnership, as a defendant. 2 Plaintiffs do not appear

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to have served TWE, however, see Abrutyn Decl. ¶ 5, and thus TWE’s consent is

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not required to remove this action. See 28 U.S.C. § 1446(b)(2)(A) (consent to

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remove required from defendants “properly joined and served”) (emphasis added).

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Nor is service on TWE likely, given that records from the Delaware Secretary of

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State website indicate that TWE was merged into another entity (Time Warner

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Although not required for purposes of removal, Messrs. Branca and McClain also appear to be domiciled in California. See Triumph Int’l, Case No. 2:16-cv-01315PA-FFM (C.D. Cal.), Dkt. 1 ¶ 5 (“Plaintiffs John Branca and John McClain … are both domiciled in California.”). 2 Plaintiffs appear to have inadvertently omitted “Company” from the full name of the Time Warner entity alleged to be a party to the contract at issue in the Petition. See Petition, Exhibit B at 1 (referencing July 22, 1992 agreement with “Time Warner Entertainment Company, L.P.”). 3

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Cable Enterprises LLC) and ceased to exist as of September 30, 2012. Abrutyn

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Decl. ¶¶ 6-7; see also id. ¶¶ 3, 8 (confirming that Home Box Office, Inc., formed on

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December 3, 2002, has never had an ownership interest in TWE, that no company

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affiliated with Home Box Office, Inc. has had any ownership or other interest in

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TWE since March 2009, and that Time Warner Cable Enterprises LLC is not

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owned by or affiliated with Home Box Office, Inc.).

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8.

Although Home Box Office, Inc. disputes any liability, Plaintiffs’

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allegations confirm that the amount in controversy exceeds $75,000. See Ex. A

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¶ 90 (alleging that “damages potentially exceed[] $100 million”); CarMax Auto

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Superstores Cal. LLC v. Hernandez, 94 F. Supp. 3d 1078, 1090 (C.D. Cal. 2015)

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(“When a petition to compel arbitration is involved, the amount at stake in the

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underlying litigation ... is the amount in controversy for purposes of diversity

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jurisdiction.”); Vaden v. Discover Bank, 555 U.S. 49, 61 (2009) (“[A] federal court

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should determine its jurisdiction by ‘looking through’ a ... petition [to compel

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arbitration] to the parties’ underlying substantive controversy.”).

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VENUE IS PROPER 9.

Venue lies in the United States District Court for the Central District

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of California because this Court’s territorial jurisdiction includes Los Angeles

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County, where the state court action was filed and is pending. See 28 U.S.C.

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§ 1441(a).

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*

*

*

*

*

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Based on the foregoing, Home Box Office, Inc. hereby removes this action

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from the Superior Court of the State of California, County of Los Angeles, to the

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United States District Court for the Central District of California.

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HOME BOX OFFICE INC.’S NOTICE OF REMOVAL

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Dated:

March 13, 2019

O’MELVENY & MYERS LLP By: /s/ Daniel M. Petrocelli Daniel M. Petrocelli Attorneys for Home Box Office, Inc.

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HOME BOX OFFICE INC.’S NOTICE OF REMOVAL

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