Michael Jackson

By Ron Wynn

NASHVILLE, TN — A case that HBO thought might be resolved in their favor regarding the controversial film “Leaving Neverland” is instead headed back to arbitration because of a clause that dates back to the last century. A federal appeals court ruled Monday that an arbitration clause contained in a 1992 deal between the network and Michael Jackson for a concert film was still valid 28 years later. This is the aftermath from a lawsuit filed in February 2019 by Optimum Productions and the two co-executors of the Jackson estate. They claimed that HBO agreed not to “besmirch Jackson” in any manner when they agreed to the film deal, and showing “Finding Neverland” was a violation of that agreement.

Jackson fans maintain that the film “Leaving Neverland” was biased and inaccurate, contentions HBO disputed then and now. They described the lawsuit as a “poorly disguised and legally barred posthumous defamation claim.” They filed a motion to strike the complaint under California’s anti-SLAPP statute, which brings an early end to frivolous litigation arising from protected activity such as the exercise of free speech. U.S. District Judge George H. Wu sided with the estate, sending the matter to arbitration, and HBO appealed.

The 9th U.S. Circuit Court of Appeals affirmed Judge Wu’s decision, saying “The parties do not dispute that the 1992 Live in Bucharest contract at issue was a product of mutual consent and included a broad arbitration provision,” states the decision, which also mentions the “detailed and stringent” confidentiality provisions.”

“An arbitration clause can still bind the parties, even if the parties fully performed the contract years ago. … HBO does not dispute the existence of a valid agreement, the included arbitration provision, or the incorporated confidentiality provision, but rather the ‘continuing validity’ of the agreement and the arbitration provision. Thus, a valid arbitration agreement exists.”

The court noted it’s long been settled in the 9th Circuit that the arbitrator should decide whether a contract has expired if the arbitration clause itself is not disputed. In a footnote, the court explains that even if the estate’s arguments “are as frivolous as HBO claims” it’s not the court’s job to weigh the merits.

“The contract contained a broad arbitration clause that covers claims that HBO disparaged Jackson in violation of ongoing confidentiality obligations,” states the opinion. “We may only identify whether the parties agreed to arbitrate such claims; it is for the arbitrator to decide whether those claims are meritorious.”

At press time, HBO had not yet commented on the ruling.