by Suzelle M. Smith and Don Howarth
The $4.3B Question Over What Terrorist Victims Can Recoup
By Natalie Rodriguez
(Law360)
The U.S. Supreme Court during oral arguments on Monday will be asked to create a clearer path to punitive damages in certain cases involving state sponsors of terrorism. It’s just the latest chapter in a case that highlights the decadeslong legal battles that terrorist victims and their families often face in trying to recoup damages.
August will mark 22 years since Monica Okaba Opati and her siblings lost their mother Caroline Setla Opati to a truck bomb explosion that hit the U.S. embassy in Nairobi, Kenya, where Caroline worked.
For most of the past two decades, Opati has been seeking recompense through the U.S. court system, along with the victims and families of around 150 U.S. employees killed or injured in the 1998 al-Qaida orchestrated embassy bombings in both Nairobi and Dar es Salaam, Tanzania.
On Monday, the families hope to get one step closer with oral arguments set before the U.S. Supreme Court, asking the court to reinstate $4.3 billion in punitive damages against Sudan, which the families argue supported al-Qaida in the years prior to the attacks.
In 2014, a Washington, D.C., district court originally granted the families in the consolidated cases $10.2 billion in default judgments against Sudan, but the D.C. Circuit nixed the punitive damages that was part of that initial award.
A win at the high court, however, would help the families to move forward to the next — also grueling — stage of trying to recoup damages, and it could potentially open the door to punitive damages for several dozen cases involving terrorist acts, according to court filings.
At the heart of the Supreme Court hearing is a 2008 update to the Foreign Sovereign Immunities Act that gave the green light to terrorist victim lawsuits to seek punitive damages.
In nixing the punitive damages, the D.C. Circuit sided with Sudan’s argument that law’s new clause couldn’t be applied to pre-2008 terrorist events. The appeals court largely relied on the Supreme Court’s 1994 decision in Landgraf v. USI Film Products, which prohibited victims from securing punitive damages retroactively
“Landgraf requires that each new remedy — and in particular, punitive damages — be supported by a clear statutory command of retroactivity,” Sudan argued in a brief.
The families, however, say that Congress intended punitive damages to apply retroactively with the 2008 update and that the Supreme Court’s 2004 ruling in Republic of Austria v. Altmann says courts should defer to the judgment of Congress when considering Foreign Sovereign Immunity Act cases.
“Nothing in the 2008 amendments even remotely suggests an intent to close the courthouse doors to victims of state-sponsored terrorism with state-law claims,” the victims told the Supreme Court in a recent brief.
Counsel for the victims did not respond to requests for comments.
A chief ally for the victims on their interpretation of Congress’ intent is the U.S. government.
In a brief, the government noted that the 2008 update to the law was delayed by then-President George W. Bush until it could be amended to protect Iraq from the imposition of punitive damages due to diplomatic concerns. This, the government and the families say, shows that both the White House and Congress understood the amendments would apply retroactively.
Solicitor General Noel Francisco, whose office is scheduled to argue this point before the Supreme Court justices on Monday, said it is important that the justices resolve the confusion and clearly rule in favor of the government’s reading of the law.
“The question is important. It affects, in these cases alone, billions of dollars in punitive damages judgments awarded to approximately 150 U.S. government employees and contractors who were murdered or injured in the line of duty because of their service to the United States, as well as hundreds of their family members,” the solicitor general’s office said in a brief to the court.
Counsel for the victims noted in a brief to the court that they have identified at least 75 Foreign Sovereign Immunities Act cases involving pre-2008 state-sponsored terrorism acts that have received or are seeking punitive damages. A win in the Opati case could help create or preserve punitive damages in several of these cases.
Under the Foreign Sovereign Immunity Act, only foreign states designated by the U.S. Department of State as state sponsors of terrorism can be sued over terrorism. Currently, that list of foreign states includes Iran, North Korea, Sudan and Syria.
Sudan, which has staunchly denied the allegations in the suit, has decried the rise in no-fault judgments against it and other states on that list and said it is an impediment to better diplomatic relations.
“The frequency of runaway default-judgment awards likely serves as a further deterrent to an appearance by a foreign-state defendant, which may reasonably conclude that the action against it is a political tool devoid of the fair administration of justice,” Sudan said in a brief.
Osama bin Laden lived in the country from the early to mid-1990s, but Sudan denies providing “material support” to his terrorist activities and deported bin Laden in 1996. The country has also called several technical fouls in how the Washington, D.C., case proceeded in the lower court.
Sudan contends its internal struggles with civil war and natural disasters played a large role in its default.
The appeals court, however, tossed out that argument. “By defaulting, then appearing, then defaulting again [after the initial default had been vacated], Sudan delayed this case for years beyond its likely end had it simply failed to appear at all. These affirmative actions extended the delay and make Sudan’s second default even less excusable than its first,” the D.C. Circuit said in its opinion.
Christopher Curran, a White & Case LLP partner representing Sudan in the Supreme Court case, declined to comment for this article, given the pending litigation.
The sovereign state has filed its own petition asking the Supreme Court to review the case and challenging the default judgments on several grounds, including the admissibility of a plaintiffs’ expert who the country says introduced hearsay into the court proceedings.
“If indeed the vacatur of these foreign nationals’ punitive damages awards ... constitutes an ‘important’ issue deserving this court’s review, then, to be sure, the ability of the majority of these foreign nationals to actually pursue these claims is equally important,” Sudan said in a supplemental brief to the court.
Even with a win in the Supreme Court, recouping any funds will likely be another long fight.
As the embassy victim cases show, getting a final judgment in lawsuits against sovereign states can take decades. The next step of securing assets to pay those judgments can take just as long — if not longer — if the sovereign state digs in its heels, according to experts.
Since the 1996 passage of the Foreign Sovereign Immunities Act, courts have awarded approximately $90 billion against these states, according to a December 2019 Congressional Research Service report.
“Although these states have largely not participated in this litigation at the merits phase, some of these states have appeared in court to attempt to prevent plaintiffs from collecting their assets,” the Congressional Research Service noted.
The U.S. government has tried to alleviate some of the challenges by establishing in 2016 the United States Victims of State Sponsored Terrorism Fund.
Seeded with an initial $1.025 million and additionally funded by the sale of forfeited property or other penalties imposed on certain state actors, the fund provides at least some compensation to those in the U.S. who hold a final judgment against a foreign state sponsor of terrorism, as allowed under the Foreign Sovereign Immunities Act.
Still, the fund cannot cover all the judgments. It is unclear whether the families involved in the Sudan suits, who are largely foreign nationals, can participate.
Suzelle Smith, a Los Angeles name partner at Howarth & Smith who has represented terrorist victims in a number of other suits, said cases like the Sudan suits still take decades to resolve and that federal courts often place hurdles to recovery.
“They interpret the terrorist statutes narrowly to favor banks and terrorist organizations,” Smith said.
Smith does not seek punitive damages for her clients because they are so hard to collect. She added that given the limited assets often available to terrorist victims, it can be unfair to allow one plaintiff to collect potentially hundreds of millions, while another victim collects nothing.
“Courts have been reluctant to allow that to happen, and in the last 10 years, I do not know of a case where punitive damages have been collected as opposed to awarded,” Smith said.
Wildfire Plaintiffs Worry Boeing Will Again Move Cases to US Court
By Gina Kim
(Daily Journal)
Attorneys representing a small group of plaintiffs suing the Boeing Co. over the Woolsey fire are advising future claimants not to tie any claims to contamination and radioactive material at the Santa Susana Field Laboratory near Simi Valley, where the blaze ignited Nov. 8, 2018.
Boeing was able to use those claims to retain federal jurisdiction over wildfire litigation against it as there are special federal statutes that govern radiation contamination cases.
On Thursday, the 9th U.S. Circuit Court of Appeals dismissed Boeing's appeal of a district court's order remanding the lawsuit filed by plaintiff Andrew Von Oeyen to state court to join coordinated proceedings. Woolsey Fire cases, JCCP 5000.
The 9th Circuit also denied Boeing's motion to stay the state court proceedings pending before Los Angeles County Superior Court Judge William F. Highberger. Don Howarth and Suzelle M. Smith of Howarth & Smith on behalf of Van Oeyen and other plaintiffs sued Boeing in Los Angeles County Superior Court in February along with defendant Southern California Edison Co., whose equipment has been blamed for starting the Woolsey fire. The blaze chewed through more than 96,000 acres in Ventura and Los Angeles counties. Other plaintiffs in the litigation dropped Boeing as a defendant after the company threatened to remove cases to federal court.
Howarth and Smith kept Boeing as a defendant; Boeing followed through with its threat. Howarth and Smith filed an amended complaint April 30, which clarified their pleadings and cleared out the contamination allegations. Van Oeyen et al. v. The Boeing Company, et al. 19-CV-3955 (C.D. Cal., filed April 30, 2019). Boeing, however, removed the original complaint to federal court before the amended complaint was served.
In August, U.S. District Judge Michael Fitzgerald remanded the case to state court, finding Boeing's removal based on an inoperative and superseded complaint constituted a technical defect, thus making the remand non-appealable.
The 9th Circuit's affirmation of Fitzgerald's remand order keeps the case in state court, unless Boeing petitions to the U.S. Supreme Court, which is unlikely.
"Our cases are now free to proceed in state court full steam ahead," Smith said Friday, noting their amended lawsuit made it clear plaintiffs are only seeking damages for Boeing's conduct related to starting the fire and failing to contain it.
Fitzgerald's remand order in August paved the way for other individual plaintiffs to pursue Boeing again, but it remains to be seen if Boeing will start the same jurisdiction fights with new plaintiffs.
Plaintiff lawyer Gerald B. Singleton of Singleton Law Firm who represents several hundred Woolsey fire victims and plans to pursue Boeing, said the company still has legal rights to remove future cases to federal court.
Both Singleton and Smith said they believed if the toxic tort contamination allegations are removed from future lawsuits, then there'd be no basis for Boeing to assert federal jurisdiction.
Wildfire Suit Against Boeing Should Be In State Court: Judge
By Gina Kim
(Daily Journal)
LOS ANGELES - A lawsuit against the Boeing Co. over a 2018 wildfire in Southern California should be heard in state court, a federal judge tentatively ruled Monday, a move that could allow other plaintiffs to sue the aerospace giant.
If U.S. District Judge Michael W. Fitzgerald sticks with his tentative decision, the Boeing case will join coordinated proceedings presided over by Los Angeles County Judge William F. Highberger. Southern California Fire cases JCCP 5000.
Bellwether trials are set to commence in February 2020.
Don Howarth and Suzelle M. Smith of Howarth & Smith on behalf of plaintiff Andrew Von Oeyen and others, initially sued Boeing in Los Angeles County Superior Court in February along with defendant Southern California Edison Co., whose equipment is believed to have started the Nov. 8, 2018 Woolsey Fire.
The fire began near the Boeing-owned Santa Susana Field Laboratory in Ventura County and charred more than 96,000 acres. Von Oeyen et al. v. The Boeing Company et al. 19-CV3955 (C.D. Cal, filed April 30, 2019).
Other plaintiff firms also pursued Boeing as a defendant but dismissed their cases without prejudice, citing lack of evidence, jurisdiction issues and that Boeing's government contract work could give it immunity.
Howarth & Smith kept Boeing as a defendant, and filed an amended complaint April 30 to clear out toxic tort allegations and proceed on state claims only. On May 6, Boeing removed the action to U.S. district court, invoking the federal officer removal statute.
Over the last several weeks, both plaintiffs and defense argued over whether the case should be remanded to superior court. The primary dispute was whether plaintiffs' unserved original complaint or the first amended complaint is the operative pleading for purposes of a remand.
In his tentative ruling, Fitzgerald agreed with plaintiffs that their amended complaint is the operative pleading.
"Here where the original complaint was not served, this particular risk of gamesmanship is not at play," Fitzgerald wrote. "Accordingly, because the Court determines that Boeing removed a non-operative complaint, this alone is sufficient basis for granting the Remand Motion. If there is any doubt regarding the existence of subject matter jurisdiction, the court must resolve those doubts in favor of remanding the action to state court."
Boeing failed to meet that burden, Fitzgerald wrote.
In their pleadings, Howarth and Smith argued their newly-amended lawsuit deals only with state-related wildfire damages claims. There are no federal officer-ordered actions or omissions at Boeing's Santa Susana Field Lab property that required Boeing to allow electrical infrastructure to fall into disrepair or permit vegetation to spread as to increase the risk of fire, plaintiffs argued.
Boeing removed the action to federal court operating on plaintiffs' original complaint - which was unserved - that addressed claims about the fire's juncture, pollution on premises and contamination. When the case was removed to federal court, plaintiffs' original complaint and not their unserved amended complaint was the operative pleading, Boeing contended in their opposition.
Plaintiffs' first amended complaint "is nothing more than a thinly- veiled attempt to avoid federal jurisdiction," Boeing argued.
On Monday, Gibson, Dunn & Crutcher LLP partner Peter S. Modlin argued that it is a matter of law that plaintiffs' unserved initial complaint is the operative complaint for purposes of removal. If an amended complaint isn't served prior to a defendant's answer, the amended complaint doesn't become operative at all, he argued, adding that law requires an amended complaint to be served to the defense for it to become operative.
Howarth contended that the first complaint was nullified once an amended complaint was timely filed. There is no law that doesn't allow the amended complaint to supersede the initial, he added. He also argued Boeing waited until after the first amended complaint was filed to remove the case to federal court.
"We're beating a dead horse here, it's pretty clear," Fitzgerald remarked, while acknowledging the legal issue was an interesting one.
Howarth said after the hearing that his firm went after Boeing and refused to dismiss the company because "we like to get in all defendants we all believe apparently had a hand in this [fire]."
"You name everyone who's responsible and you'll see justice in the appropriate court. State or federal, we'll argue anywhere - both are good places to be in. I'm not going to leave someone out because I'm afraid to argue in a particular jurisdiction," he said.
Now that Von Oeyen prevailed on remand, the question remains as to whether other plaintiffs might pursue Boeing again.
If the remand is successful others plaintiffs could seek to amend their complaints to add Boeing, Howarth said.
Alexander Robertson of Robertson & Associates LLP who is the plaintiffs' co-leadership counsel in the Woolsey litigation said Monday he and his fellow leadership colleagues have no plans at this time to pursue Boeing as a co-defendant.
Ronald L.M. Goldman of Baum Hedlund Aristei & Goldman, who represents individual plaintiffs in the case, said he might pursue Boeing again.
"Discovery is ongoing, and we'll revisit Boeing if needed if we find people who fell ill due to [Boeing's] failure to properly clean up the toxic waste after the fire," Goldman said.
Oaktree Fund Sues Irell Alleging Poor Drafting of Contract Hurt Investors
By Brian Cardile
(Daily Journal)
LOS ANGELES - A mainstay of southern California legal practice faces claims of professional negligence and fraud over its handling of a 2007 transaction and subsequent litigation it spawned involving private equity behemoth Oaktree Capital Management.
The plaintiff, energy sector investment group OCM/GFI Power Opportunities Fund II, L.P., alleged in a complaint filed Monday that Irell & Manella LLP's elementary drafting mistake in an acquisition contract banned the investor in later dealings, as did the law firm's prolonged insistence on the soundness of its allegedly faulty work. The investor, part of Oaktree's corporate private equity division and referred to as "Power Fund II" in the complaint, seeks more than $11 million in damages, plus a potential punitive award.
"Irell had a duty and breached its duty of care to Power Fund II by its acts, errors, and/or omissions that were negligent, reckless, and below the standard of care required of attorneys practicing under similar circumstances," reads the complaint filed by Howarth & Smith. "These breaches of duty caused Power Fund II substantial harm and damages."
The law firm, which since being founded in 1941, has inhabited Los Angeles' upper legal echelon, represented Power Fund II in 2007 when the investor acquired the energy services company GoodCents Holdings Inc for just under $40 million.
When Power Fund II sought to sell GoodCents via merger in 2015, the company expected to rely on contractual language in the 2007 agreement it believed would ensure a preferential stock position after any sale. But Power Fund II, a Delaware partnership headquartered in Los Angeles, claims that a drafting mistake excluded such preferential consideration in which a sale occurred as part of a merger.
Irell & Manella, the complaint further alleges, continued to advise Power Fund II that the 2007 contract was sufficient, notwithstanding Delaware authority that clearly suggested otherwise.
"Irell either recklessly never did any research at any time as to how to properly document a preferential return under well-established Delaware case law ... or it did such research and deliberately misled Power Fund II as to the legal sufficiency of the language that it drafted in order to continue representing Power Fund II ... and thereby earn substantial attorneys' fees, and to cover up its earlier malpractice," the complaint alleges.
The firm's alleged mistake, the complaint claims, caused Power Fund II millions in avoidable legal costs and a settlement with other shareholders over the merger. OCM/GFI Power Opportunities Fund II, L.P. v. Irell & Manella, 19STCV23477 (L.A. Super. Ct., filed July 8, 2019).
Don Howarth, a partner with Howarth & Smith whose plaintiff-side team includes fellow partner Suzelle M. Smith and Padraic J. Glaspy, described in an interview Monday a situation that evolved from careless to deceitful. "It's a sad case for the profession," Howarth said. "It's one that started with a screwup, but became what now looks like a coverup."
Howarth expressed hope the matter would reach a mutually-acceptable settlement.
"We're hoping they'll come to the table," he said, noting the firm had yet to make a "significant" offer.
Irell & Manella's press office declined to comment, citing the pending nature of the matter.
Boeing, SoCal Edison Blamed In Suit For Role In Woolsey Fire
By Dave Simpson
(Law360)
Law360 (February 11, 2019, 8:25 PM EST) -- The Boeing Co. and Southern California Edison Co. have been accused of negligence over the Woolsey Fire outbreak in California state court by Malibu residents and business owners who suffered property damage and losses as a result of the blaze, the plaintiffs' attorneys said.
Boeing and SCE had been hit with a separate suit earlier this month from a group of more than 100 property owners who claim that the companies failed to prevent the fire, which they allege broke out at SCE's Chatsworth substation located on Boeing's Santa Susana Field Laboratory land. SCE has been sued several times over its alleged role in the fire.
The suit filed Friday claims that Boeing was aware that rockets were tested and nuclear accidents have occurred on the site over the years, and that these events resulted in tons of radioactive and toxic chemical waste contaminating the area.
"The Boeing defendants were aware of the foreseeable danger of wildfire causing the toxins in the ground to contaminate the air," the suit claims, noting the Boeing defendants "have or had" a private fire department at the SSFL.
"According to the Boeing defendant's SSFL Emergency Readiness Assurance Plan, submitted to the United States Department of Energy, this was to protect against '[o]ne of the greatest hazards at SSFL ... brush-covered hills. ... it is important to be able to respond quickly to a brush fire.'"
The suit further claims that, on the day of the fire, public firefighters who were responding to the blaze did not recall seeing Boeing's fire crew, but a Boeing spokesperson refuted this claim.
"Security and fire personnel stationed at Santa Susana immediately responded when the fire was first reported and also promptly notified firefighting agencies," the spokesperson told Law360 in an email. "Upon arrival, the county and municipal fire jurisdictions established incident command over the firefighting activities. Cal Fire is conducting an investigation into the origins of the fire. The California Public Utilities Commission is also conducting an investigation. Boeing is fully cooperating with these investigations."
The suit from Malibu victims also slams Edison for numerous reasons, including its alleged lack of response.
"Investigations by the California Department of Forestry and Fire Protection have already concluded that an earlier fire, which ignited almost two hours before the first reports of Woolsey Fire, was probably caused by SCE equipment," the suit claims. Plaintiffs thereon allege that, despite actual knowledge of this earlier fire, SCE still did not take adequate steps to prevent the far more destructive Woolsey Fire from subsequently igniting later that afternoon."
The Woolsey fire, which broke out on Nov. 8 and was contained Nov. 21, charred about 97,000 acres, razed more than 1,500 buildings and killed three people, according to CalFire.
In December, California Insurance Commissioner Dave Jones said in a prepared statement that recent data collected from insurers indicates that homeowners and business owners suffered about $9.05 billion in insured losses from the Camp fire in northern California's Butte County, and the Woolsey and Hill fires in southern California's Los Angeles and Ventura counties. That sum includes claims under home, commercial, automobile and agricultural insurance policies.
Losses from the Camp fire accounted for about $7 billion of the total, while losses from the Woolsey and Hill fires accounted for the other $2.05 billion, according to Jones' data.
Suzelle M. Smith, who is representing the plaintiffs, said in a release that one goal of the suit is to compel Boeing and SCE to take the steps to prevent future fires in the area.
"These corporations know how to improve the safety of their electrical equipment but they have not made the necessary financial investment, preferring to let the community suffer these losses," Smith said. "This must stop."
Plaintiffs in the case announced Friday are represented by Don Howarth, Suzelle M. Smith, and Pauleen Truong of Howarth & Smith. Plaintiffs in the case filed earlier this month are represented by Diane Marger Moore, Michael L. Baum, Ronald L. M. Goldman, Brian R. Strange, Brianna Strange, and Robert F. Kennedy, Jr.
Counsel for Boeing and Edison were not immediately known Monday.
The case is Von Oeyen et al. v. SCE Co. et al. in the Superior Court of the State of California, for the County of Los Angeles, Central District. The case number was not immediately available. The previous case filed against Boeing is [redacted] v. SCE et al., case number 19STCV03419, in the Superior Court of the State of California, County of Los Angeles.
Supreme Court Urged To Free Iranian Cash Held By JPMorgan
By Kevin Penton
(Law360)
The U.S. Supreme Court has been urged to review a case brought against JPMorgan Chase by a former CNN journalist held hostage in Lebanon during the 1980s so it can correct the Second Circuit’s alleged error in affirming a decision not to order the release of $3.18 million in funds tied to Iran.
The high court should clarify that the Second Circuit erred by affirming the Southern District of New York’s determination that money in a frozen account held by JPMorgan Chase Bank NA should not be transferred to Jeremy Levin to partly satisfy a $28.8 million judgment against Iran that the former CNN Beirut bureau chief secured in 2008, according to the Tuesday petition for certiorari.
While the money in the account was flagged because of its ties to Bank Saderat Iran — a bank based in Tehran, Iran — JP Morgan argued that it cannot release the funds to Levin and his wife, Lucille Levin, because the entity that actually transferred the money was Lloyds Bank PLC, a correspondent bank for Saderat, according to the Second Circuit’s October opinion.
The Supreme Court should close the loophole created by the Second Circuit in its decision, which the Levins assert allows terrorists to effectively funnel and launder money through U.S. banks as long as the entity that deals with a U.S. bank is not considered a terrorist.
“This court should grant certiorari to clarify the rules of ownership of property where the means of transmittal of blocked funds of a sanctioned party and originator of funds is by [electronic funds transfer], under [the Terrorism Risk Insurance Act], the [Foreign Sovereign Immunities Act], and federal common law,” the petition reads.
Jeremy Levin was kidnapped in 1984 by individuals with alleged ties to Iran, according to court documents. He escaped from captivity approximately one year later, according to the documents.
“New York banks want to hold onto funds no matter where they come from or where they are going,” said Suzelle Smith, an attorney representing the Levins, in a statement. “This is the reason JPMorgan is fighting to deny the Levins’ access to the blocked assets, so the monies stay in the bank. It doesn’t matter to the banks that this is money laundering by terrorists.”
Counsel for JPMorgan could not be reached for comment on Thursday.
The Levins are represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.
JPMorgan was represented in the Second Circuit by Steven B. Feigenbaum of Katsky Korins LLP.
The case is Levin et al. v. JPMorgan Chase Bank NA, case number unavailable, before the U.S. Supreme Court.
At 102, Olivia de Havilland won't give up her fight over 'Feud.' Will the Supreme Court hear her case?
By Danid Ng
(Los Angeles Times)
Olivia de Havilland was more than just angry when she learned how she was portrayed in last year’s FX limited series “Feud: Bette and Joan.” The Hollywood legend felt blindsided by the show.
“Mystification and indignation,” the 102-year-old star of “Gone With the Wind,” “The Heiress” and other classic movies recalled feeling in a recent email interview from her home in Paris.
“I was furious. I certainly expected that I would be consulted about the text. I never imagined that anyone would misrepresent me.”
The two-time Oscar-winning actress is refusing to back down in her year-and-a-half-long battle with FX Networks, alleging the 21st Century Fox-owned cable network never obtained her permission and defamed her in the Ryan Murphy-produced limited series.
Despite losing her bids in a California appeals court in March and the state Supreme Court in July, the centenarian star is now petitioning the U.S. Supreme Court to consider her case. In what has shaped up to be a battle over 1st Amendment rights, De Havilland is seeking to reverse the appeals court decision so that she can pursue a jury trial.
Defamation disputes are common in Hollywood, where fictionalized dramas depicting real-life people are a staple of TV and films. Movies as recent as “The Wolf of Wall Street” and “The Hurt Locker” have been targeted by the people they portray. But De Havilland is one of the most prominent figures to take a studio to court over the way she was depicted.
De Havilland contends FX violated her own free speech rights by deliberately misrepresenting her as a profane gossip and attributing false words to her — including obscenities aimed at her sister, actress Joan Fontaine.
Though experts say the actress faces an uphill battle because she is a public figure, the major studios are watching the case closely. A victory for the star would have serious repercussions on how they make biopics and other shows.
The actress was just 27 when she risked her career by suing Warner Bros. in 1943 over her restrictive studio contract. The studio blacklisted her but she prevailed in a landmark ruling that bears her name — the De Havilland Law, which is still part of the California Labor Code and prohibits the enforcement of personal services contracts beyond seven years.
Now, De Havilland is proving once again that she is a tenacious studio adversary, even at her advanced age.
“It is essential not to give up in any struggle one undertakes,” De Havilland said, conveying some of the graceful fortitude of Melanie Hamilton Wilkes, her “Gone With the Wind” character.
FX also isn’t backing down, and last month asked the Supreme Court to pass on the case.
De Havilland’s attorneys fired back, arguing that the appeals court’s decision protects “knowing falsehoods about living persons in profitable docudramas.” The high court could make a decision as early as next month.
One of the few living stars from Hollywood’s Golden Age, De Havilland moved to France more than half a century ago for marriage and has remained there. Her life in retirement is quiet, but she stays busy, according to people close to her.
The actress lives in a luxury suite in the 16th arrondissement of Paris, in the city’s upscale western edge. She lives alone, but has assistants who come daily. They are typically young, English-speaking women, though the actress speaks fluent French. Her daily life is filled with numerous fan letters and emails.
If the weather is pleasant, De Havilland and a friend will go outside to enjoy the roof garden’s view of the Eiffel Tower. She likes to play with her fawn-colored pug, whom she named Oscar. As per the doctor’s orders, the actress is no longer allowed to have her nightly glass of champagne, instead enjoying one glass per week.
In the late afternoon, she will often receive a Skype or Facetime call from her daughter Gisele, and her son-in-law Andy, who live in Malibu.
Her associates say De Havilland can still be a witty and frank conversationalist. She is also a fighter, when the situation demands it.
At the heart of her dispute with FX is how much liberty docudramas like “Feud” can take when portraying living people. While the studio contends that dramatizations are protected by the 1st Amendment, De Havilland is arguing that “Feud” crossed the line.
In real life, De Havilland has said little publicly about Fontaine, who died in 2013, despite gossip that the sisters didn’t always get along. The FX show, De Havilland alleged, damaged her “professional reputation for integrity, honesty, generosity, self-sacrifice and dignity.”
De Havilland and her attorneys say that the case has larger implications for the power media companies wield. “The appellate court set out a rule that means everyone is at the mercy of the entertainment and news media,” said Suzelle Smith, De Havilland’s attorney. “Living people can be falsely portrayed because the public may have an interest in the story, whether accurate or a pack of lies.”
FX declined a request for comment.
Most legal experts see De Havilland’s case as a long shot, saying the Supreme Court would agree to hear the case only if it concurs that the 1st Amendment issues in question will have wider legal repercussions.
“The question before the Supreme Court is not whether the [appellate] decision was wrong, but whether it conflicts with decisions regarding the 1st Amendment in other states,” said Eugene Volokh, a professor who teaches free speech law and the 1st Amendment at the UCLA School of Law.
He said public figures don't have exclusive control over their name or likeness. “They do when it comes to commercial purposes, like advertising, but that isn’t the case here.”
In past defamation cases, courts have sided with the moviemakers.
“The Hurt Locker” case involved an Army sergeant who sued the makers of the 2009 Oscar-winning movie, claiming misappropriation of his likeness, invasion of privacy, defamation and other injuries. But a federal appeals court ruled in 2016 that the movie was protected by the 1st Amendment and contained subject matter in the public interest.
But in a separate case, a New York court ruled last year that a defamation suit involving the 2015 indie comedy “Learning to Drive” could proceed. A former New York Times columnist sued the filmmakers, claiming he was slandered by the movie’s depiction of him as a womanizer and philanderer.
De Havilland and her attorneys have argued that the 1st Amendment also protects individuals from being compelled to say or express things they don’t believe.
“It would threaten the First Amendment rights of individuals like Miss de Havilland, who would lose the ability to remain silent when television and movie producers would prefer that they speak,” her attorneys wrote in a filing last month.
The case hinges on just a few lines of dialogue in “Feud,” which FX first aired in March of last year.
The Emmy-nominated, eight-part limited series is a cat-fight soap opera depicting the professional rivalry between Bette Davis (Susan Sarandon) and Joan Crawford (Jessica Lange), focusing on their backbiting antics during the making of the 1962 movie “What Ever Happened to Baby Jane?” De Havilland, portrayed by Catherine Zeta-Jones, is a supporting character who appears in a handful of scenes.
De Havilland said she would have been open to discussion if the show’s producers had contacted her first. But she said they never did.
“I would have engaged a lawyer and have insisted that the two of us be consulted about any text which involved me,” De Havilland said. “If the actress who portrayed me had asked to meet with me, I would have agreed to do so, under proper conditions.”
Her case focuses mostly on three scenes in “Feud.” In one scene, Zeta-Jones refers to Fontaine — De Havilland’s younger sibling in real life — by saying: “You know what my bitch sister has taken to telling the press?” In another scene, she declines a movie role, explaining: “Oh no, I don’t do bitches. They make me so unhappy. You should call my sister.”
De Havilland has argued that she has never publicly referred to her sister as a “bitch.” She has admitted to calling Fontaine a “dragon lady” but maintains that the two phrases are completely different in meaning and tone. The California appeals court disagreed, ruling that the “bitch” remarks “are not highly offensive to a reasonable person and are, in addition, substantially truthful characterizations of her actual words.”
The third scene involves an exchange between De Havilland and Bette Davis. The De Havilland character makes a remark about her friend Frank Sinatra, saying that the singer must have drunk all the liquor in his dressing room.
De Havilland has argued the scene portrays her as a “vulgar gossip” and “hypocrite.” But the appeals court again disagreed.
Though De Havilland faces challenging odds, the Motion Picture Assn. of America and Netflix said the case could have a chilling effect on the way the studios make TV shows and movies.
“The MPAA and Netflix cannot overstate the serious implications that the trial court’s rulings would have for the creation of fictionalized motion pictures and other expressive works about or inspired by real people or events,” the groups said a January filing.
De Havilland wasn’t pleased with their action. “What do I have to say to them? That I am profoundly disappointed by their support of my opposition,” she said.
Early in her case, FX and Ryan Murphy tried to halt the lawsuit by invoking California’s anti-SLAPP laws, which allow a judge to strike a suit on free speech grounds. But a Los Angeles County Superior Court judge sided with De Havilland, ruling that her case could go to trial. FX won subsequent appeals in California courts. Murphy could not be reached for comment.
As De Havilland awaits the Supreme Court’s decision, she continues with her daily life in relative privacy. An assistant is currently reading to her a biography of Ginger Rogers.
Last year, she was made a dame of the British Empire, the oldest living person to receive the honor. De Havilland was born in 1916 to British parents in Tokyo, but moved as a young girl to northern California, growing up in Saratoga.
When asked what accounts for her willingness to battle with Hollywood studios — Fox now, Warner Bros. then — De Havilland offered a succinct explanation.
“It is only natural for me to take on these institutions because they are in error.”
Shooting Her Good Side
By Mark F. Bernstein '89
(UVA Lawyer)
Now here’s a client meeting for you. In June 2017, Suzelle Smith ’83 met with Olivia de Havilland, the 102-year-old, two-time Oscar-winning best actress, most widely known as Melanie from “Gone with the Wind.” Smith had known de Havilland for more than 25 years and had advised her on some legal matters, but this was more of a social call.
Over champagne and canapés in de Havilland’s Paris apartment, Smith brought up “Feud: Bette and Joan,” the docudrama about actresses Bette Davis and Joan Crawford produced by FX Network. The show depicted de Havilland as a foul-mouthed gossip.
“I asked her,” Smith said via email, “as the only living person who participated in the real events: (1) Did you help in the writing of ‘Feud’; (2) did you consent to FX using your name and persona; and (3) did you say those things portrayed in the film?”
“No, no and no — can we sue?” de Havilland replied. So sue they did.
Their claim, alleging that the show’s creators portrayed de Havilland in a false light and used her likeness without compensation, provoked opposition from some of Hollywood’s big hitters, including the Motion Picture Association of America. Although the trial court denied a defense motion to dismiss the claim, the state court of appeals reversed in what Smith described as a “pro-industry” decision. The California Supreme Court, with one published dissent, declined to review that decision, and Smith filed a writ of certiorari with the U.S. Supreme Court in October.
Though perhaps the most colorful, the case is hardly the only high-profile matter Smith has handled since founding her Los Angeles–based firm, Howarth & Smith, in 1985. She has represented professional football players in an antitrust suit against the NFL, families of 9/11 victims in a suit against Osama bin Laden, and the Vatican Library in a $100 million breach-of-contract claim. The National Law Journal has named Smith one of the top 10 litigators in the United States.
That experience has helped Smith become an expert on sizing up potential cases and clients, expertise she distilled into a co-authored book, “Case Assessment and Evaluation,” and a series of web videos on Legal Counselor. The book has been very successful; more than once, Smith says, she has seen it on a judge’s shelf when she has gone into a conference.
Smith and her husband, Don Howarth, started Howarth & Smith two years after she began as an associate at Gibson, Dunn & Crutcher. Before law school, she worked on Capitol Hill as a legislative assistant to Alabama Sen. Howell Heflin. She graduated summa cum laude from Boston University and earned an M.Phil. from Oxford University. She is an honorary member of the Law School Foundation Board of Trustees.
Smith acknowledges that her petition for Supreme Court review is a longshot, but is undeterred.
“It is very important to Olivia de Havilland that we see this all the way through,” she said. “They’re going to have to shoot us dead before we give up.”
De Havilland Takes FX 'Feud' Fight To Supreme Court
By Bill Donahue
(Law360)
Actress Olivia de Havilland is asking the U.S. Supreme Court to revive a lawsuit she filed over the way she was portrayed in the FX docudrama "Feud: Bette and Joan," pressing the justices to reject an “absolutist view of the First Amendment.”
In a Friday petition to the high court, de Havilland warned that a California appellate court ruling that rejected her case against FX threatened to create “an absolute First Amendment immunity for docudramas,” even if they publicize “known falsehoods.”
“The First Amendment does not protect knowing or reckless publication of a falsehood, even if such falsehoods are artfully constructed and entertaining,” de Havilland wrote. “This basic principle of First Amendment jurisprudence is currently under attack from powerful media forces because sensationalist lies are more popular, and hence more profitable, than reality, which is often relatively dull.”
The 102-year-old actress sued last year over “Feud,” which told the story of the infamous Hollywood rivalry between Bette Davis and Joan Crawford, accusing the network of both violating her right of publicity by including her in the story and casting her in a false light by taking artistic liberties.
Among other allegedly false aspects of "Feud," de Havilland said the show created "a public impression that she was a hypocrite, selling gossip in order to promote herself at the Academy Awards, criticizing fellow actors, using vulgarity and cheap language with others."
The case has drawn attention in entertainment law circles, particularly since a September 2017 ruling in which a state judge refused to dismiss it under California's so-called anti-SLAPP law — a statute designed to quickly end cases that threaten free speech.
The kind of claims de Havilland was making are usually quickly tossed as barred by the First Amendment; a decision allowing the case to move forward, on the other hand, raised alarm bells.
In March, a state appellate court overturned the ruling, offering a full-throated rejection of the trial court decision and emphatically ruling the First Amendment gives authors broad leeway to use real people in their creations, both in purely factual and fictionalized works. The California Supreme Court refused to tackle the case in July.
On Friday, de Havilland told the justices that the ruling amounted to unprecedented special treatment for docudramas and “squarely conflicts” with the Supreme Court’s seminal free speech ruling in New York Times v. Sullivan.
“There is nothing about a docudrama or partially fictionalized historical work which does or should allow the genre to freely and without consequence mix in falsehoods in order to increase ratings or to fill gaps in the narrative with lies in order to improve profits or make it more interesting to the public, where those distortions and fabrications of the historical record cause damage to living persons,” the actress wrote Friday.
A spokesman for FX declined to comment on Tuesday.
De Havilland is represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.
FX and Pacific 2.1 Entertainment are represented by Glenn D. Pomerantz and Kelly Klaus of Munger Tolles & Olson LLP.
The case is Olivia de Havilland v. FX Networks LLC et al., case number S248614, in the Supreme Court of California.
Olivia de Havilland Appeals Her Feud Lawsuit’s Dismissal to the Supreme Court
By Yohana Desta
(Vanity Fair)
Olivia de Havilland is attempting to take her suit against Ryan Murphy and FX’s Feud to the highest court in the land. Back in 2017, the Oscar-winning actress, 102, brought a case against FX, claiming that her portrayal in Murphy’s series, a drama about the fraught relationship between Bette Davis and Joan Crawford, was inaccurate. De Havilland took issue with specific things, like her character (played by Catherine Zeta-Jones) making jokes about Frank Sinatra’s drinking, or calling her sister, Joan Fontaine (with whom she had a legendary rivalry), a “bitch.” She also claimed that FX never reached out to her for permission, or to consult with her about the portrayal. The suit was eventually tossed out by an appeals court in March, and a later attempt to bring it to the California Supreme Court was struck down as well. No matter—de Havilland and her legal team have rallied once more, taking the case all the way to the Supreme Court.
Per Deadline, de Havilland’s team has filed a petition for a writ of certiorari with the United States Supreme Court, asking the legal body to re-examine the California Court of Appeal’s previous decision to dismiss her claims.
“We must persevere and speak truth to power,” de Havilland said in a statement. “The fight is itself important to the principle of honesty, so much in need today in the face of deliberate public confusion for selfish agendas.”
Suzelle Smith, de Havilland’s legal counsel, also released a statement: “This case is of immense social significance and popular concern over the California Court’s use of the First Amendment to immunize Hollywood businesses when they knowingly publish unconsented falsehoods about living people in commercial productions.”
She continued, noting that de Havilland “has always said she will not give up on this important constitutional and moral struggle with the financial powerhouses in the entertainment world. The fact that we received hundreds of calls, e-mails, and letters from people of all walks of life imploring us not to abandon the fight encouraged her and her team not to lose heart.”
In defending the suit, FX’s team leaned on California’s anti-Slapp (Strategic Lawsuit Against Public Participation) statute, which essentially protects free speech in the state. FX was also supported by organizations like the Motion Picture Association of America and Netflix, among others, who viewed a de Havilland victory as something that could subsequently encourage a flood of legal action against artwork that portrays real people. (The Screen Actors Guild, meanwhile, threw its support behind de Havilland.) When the case was thrown out in March, Murphy released a statement calling it a “victory for the creative community, and the First Amendment.”
In the 112-page petition (which you can read here), de Havilland’s team lays out her issues with the Feud portrayal, noting the actress’s concern that younger viewers of the show will let it color and shape their impression of her.
“Tens of millions of people viewed Feud, and for a new generation, most likely all they know of Petitioner [de Havilland] is found in the unauthorized lies and mischaracterization of her life, her work, and her nature as put forward in that series,” the document reads. Representatives for FX have not yet responded to Vanity Fair’s request for comment.
Dame Olivia de Havilland takes fight with Ryan Murphy over FX's Feud to the Supreme Court
By DailyMail.com Reporter
(DailyMail.com)
- De Havilland, 102, filed a lawsuit against Ryan Murphy and FX in June 2017
- She claims the director and the network never asked to use her name or likeness in 'Feud: Bette and Joan' about Bette Davis and Joan Crawford
- Catherine-Zeta Jones portrayed de Havilland in a recurring role in the series
- An LA court agreed in September 2017 to take her lawsuit to trial but, in March 2018, an appellate court agreed unanimously to dismiss the lawsuit
Dame Olivia de Havilland is taking her feud with producer Ryan Murphy to the US Supreme Court.
The 102-year-old claims Murphy and network FX never asked to use her name or likeness for their 2017 eight-episode series 'Feud: Bette and Joan' about legendary actresses Bette Davis and Joan Crawford, reported Deadline. Catherine Zeta-Jones portrayed the two-time Oscar winner, who was a friend of Davis and participated in a 1970s documentary on Crawford, in a recurring role.
De Havilland filed her original lawsuit in June 2017 claiming that Zeta-Jones's portrayal of her as 'b----h' had damaged the actress's 'professional reputation for integrity, honesty, generosity, self-sacrifice and dignity'.
In September 2017, Deadline reported that LA Superior Court Judge Holly Kendig had agreed to let de Havilland's case proceed to trial. But higher courts agreed with Murphy and FX that they were protected by the First Amendment.
In March 2018, an appellate court agreed unanimously to dismiss the lawsuit.
Then, in July, the California Supreme Court rejected de Havilland's request to have judges review her case.
In the petition filed on Friday, the actress asked that the Supreme Court overturn the California court's decision.
'We must persevere and speak truth to power,' de Havilland said in a statement from her home in Paris.
'The fight is itself important to the principle of honesty, so much in need today in the face of deliberate public confusion for selfish agendas.'
De Havilland's attorney Suzelle Smith told Deadline that the California decision 'is a radical departure from traditional First Amendment precedent and benefits no group other than those who seek to use the names and identities of others in untrue and salacious "historical dramas" for their own profit.'
The actress made her film debut in 1935's A Midsummer Night's Dream and received her big break just three years late as Maid Marion in 1938's The Adventures of Robin Hood opposite Errol Flynn as the titular chracter.
De Havilland's most famous role is that of Melanie Hamilton in 1939's Gone with the Wind, with her performance being praised by critics.
The film went on to garner 10 Academy Awards, and de Havilland received her first nomination for Best Supporting Actress.
She won Best Actress in a Leading Role in 1946 for To Each His Own and again in 1949 for The Heiress.
De Havilland and her sister Joan Fontaine are the only siblings to have each won an Academy Award in a lead acting category.
Olivia de Havilland taking FX ‘Feud’ to the Supreme Court
By Michael Hechtman
(Page Six)
Olivia de Havilland may be 102 years old, but the two-time Oscar winner is not about to back away from a fight.
The famed actress is asking the US Supreme Court to overturn a California ruling that said it was OK for FX, Fox 21 TV and producer Ryan Murphy to use her persona and her name in “Feud: Bette and Joan,” an eight-episode series about Bette Davis and Joan Crawford, Deadline reported Friday.
De Havilland was played on the show by Catherine Zeta-Jones.
“We must persevere and speak truth to power,” de Havilland said as her attorneys filed their petition with the nation’s highest court.
“The fight is itself important to the principle of honesty, so much in need today in the face of deliberate public confusion for selfish agendas,” she added in a statement from her Paris home.
Her lawyer, Suzelle Smith, told Deadline that the California decision “is a radical departure from traditional First Amendment precedent and benefits no group other than those who seek to use the names and identities of others in untrue and salacious ‘historical dramas’ for their own profit.”
In court papers, de Havilland’s lawyers say their client is “fiercely protective of her name and professional reputation. Miss de Havilland is almost unique among major stars in that she achieved success without sacrificing her . . . commitment to truth, loyalty, consideration of others and plain old fashioned good manners.”
De Havilland claims the networks and Murphy never asked for permission to use her likeness in “Feud,” which aired in 2017. It’s unclear what, if anything, she is seeking in damages.
The plaintiffs did not reply to Deadline’s request for comment.
During her career, de Havilland appeared in 49 films, including “Captain Blood’’ and the “Adventures of Robin Hood,’’ in which she played opposite her swashbuckling co-star Errol Flynn.
One of her most famous film roles was Melanie Hamilton in “Gone with the Wind.”
She moved to Paris in the 1950s, and was awarded honors including the Legion d’honneur. She also has been named Dame Commander of the British Empire.
Olivia de Havilland Is Bringing Her 'Feud: Bette and Joan' Lawsuit to the Supreme Court
By Michael Nordine
(IndieWire)
We’ll soon find out whether Brett Kavanaugh likes “Feud” as much as he likes beer and boofing. Olivia de Havilland, whose displeasure with the way she was depicted in “Bette and Joan” is evident in her year-long legal battle with Ryan Murphy and FX, is officially petitioning the Supreme Court to hear her case. A two-time Oscar winner, the 102-year-old actress claims the network never had (or even requested) her permission to use her name or likeness. She was played by Catherine Zeta-Jones in the award-winning miniseries.
“We must persevere and speak truth to power,” de Havilland said in a new statement obtained by Deadline. “The fight is itself important to the principle of honesty, so much in need today in the face of deliberate public confusion for selfish agendas.” Her legal battle has seen mixed results thus far, as the California Supreme Court decided not to review her case earlier this year.
“The United States Supreme Court grants very few writs; however, this case is of immense social significance and popular concern over the California Court’s use of the First Amendment to immunize Hollywood businesses when they knowingly publish unconsented falsehoods about living people in commercial productions,” wrote her attorney, Suzelle Smith, as part of the same statement.
De Havilland continued, “Are reckless or knowing false statements about a living public figure, published in docudrama format, entitled to absolute First Amendment protection from claims based on the victim’s statutory and common law causes of action for defamation and right of publicity, so as to justify dismissal at the pleading stage?”
Olivia de Havilland, Now 102, Will Take 'Feud' to Supreme Court
By Eriq Gardner
(The Hollywood Reporter)
A petition that could forever impact biopics and docudramas: What does "actual malice" mean when the genre is by definition untrue?
For more than a half a century, journalists have been given leeway when it comes to reporting about prominent individuals and institutions. Ever since the 1964 Supreme Court decision in New York Times Co. v. Sullivan, public figures must demonstrate actual malice in order to prevail in a defamation case. That means knowledge of falsity or reckless disregard of the truth. But what about those who make movies and television shows that are based on real life but use imaginative flourishes? Should the makers of biopics be held to the same standard?
Soon to put that question to the U.S. Supreme Court is 102-year-old actress Olivia de Havilland, whose attorney tells The Hollywood Reporter that a petition for writ will be filed in September.
De Havilland is a legend in Hollywood, not only because of starring in films like Gone With the Wind and The Adventures of Robin Hood, but also because of her legal exploits. Many decades ago, she helped bring down the old studio system in Hollywood with a ground-breaking case about her contract with Warner Bros. In 1944, a California appeals court freed her under a state statute that limits personal service contracts to seven years.
Now, she's eyeing First Amendment standards after being dismayed by Ryan Murphy's FX series, Feud: Bette and Joan, which she contends falsely portrayed her in a role played by Catherine Zeta-Jones as a vulgar hypocrite and gossip.
De Havilland sued in June 2017 with claims of infringement of common law right of publicity, false light and unjust enrichment. And for a moment, it appeared as if she would get a swift trial. Last September, a Los Angeles Superior Court rejected FX's bid to stop the lawsuit on free speech grounds. At the time, Judge Holly Kendig ruled that although the case arose from First Amendment activity, she was likely to prevail. In particular, in examining the false light claim (a hybrid of defamation and privacy intrusion), the judge suggested that because de Havilland was alive, the network could have gone to her to answer questions. Wasn't that reckless disregard for truth?
A California appeals court reversed with a different formulation.
"When the expressive work at issue is fiction, or a combination of fact and fiction, the 'actual malice' analysis takes on a further wrinkle," wrote the California appellate panel. "De Havilland argues that, because she did not grant an interview at the 1978 Academy Awards or make the 'bitch sister' or 'Sinatra drank the alcohol' remarks to Bette Davis, Feud’s creators acted with actual malice. But fiction is by definition untrue. It is imagined, made-up. Put more starkly, it is false. Publishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice."
The appeals court continues, "Recognizing this, in cases where the claimed highly offensive or defamatory aspect of the portrayal is implied, courts have required plaintiffs to show that the defendant 'intended to convey the defamatory impression.' De Havilland must demonstrate that FX either deliberately cast her statements in an equivocal fashion in the hope of insinuating a defamatory import to the reader, or that it knew or acted in reckless disregard of whether its words would be interpreted by the average reader as defamatory statements of fact."
The appeals court concluded that Zeta-Jones' portrayal wasn't highly offensive to a reasonable person, and that even if it were, de Havilland hadn't demonstrated that she can prove actual malice under this standard.
Of course, the decision had other notable bits, including its discussion of the tension between an individual's publicity rights and free speech — and whether use of a famous person's likeness in an expressive work can be transformative.
While many are eager for the Supreme Court to tackle its second publicity rights case — adding to the scripture of Zacchini v. Scripps-Howard Broadcasting — the false light claim is probably the wisest course to test before the high court. Suzelle Smith at Howarth & Smith, who represents de Havilland, says, "The issue for the SCOTUS is whether or not the First Amendment creates an absolute immunity from suit for publishers of docudramas or whether that format like all others is governed by the actual malice of New York Times v Sullivan."
If the Supreme Court does take up the case, and the justices only select a very few, this one would surely impact the future of the docudrama genre.
The petition notably comes just as Viacom gets ready to go to trial in September for alleged defamation over the VH-1 docudrama CrazySexyCool. That $40 million case concerns Perri "Pebbles" Reid, the former manager of the 1990s R&B group who is upset about being depicted in scenes, among others, pressuring the group to sign contracts without providing its members time to read the agreements.
A Georgia judge rejected Viacom's summary judgment motion in September 2016, and then rather significantly, denied a bid for reconsideration the following year. Why it's important is that Viacom made the argument that the judge had erred on his analysis of actual malice. In response, U.S. District Court wouldn't permit any rule "requiring a subjective showing of actual doubt."
In other words, de Havilland might be able to use the decision in the Reid case to show that courts around the nation have come to different interpretations when analyzing actual malice in the context of docudramas. Circuit splits are one of the biggest factors in determining whether the Supreme Court grants review. De Havilland's petition is also likely to attract amicus briefs from others in entertainment, media and tech. De Havilland's latest act just might be her biggest one yet.
Appellate Court Hears Arguments In Hollywood Legend Olivia de Havilland's 'Feud' Lawsuit
By Nardine Saad
(Los Angeles Times)
Three California Court of Appeal judges heard arguments on Tuesday for and against veteran actress Olivia de Havilland's lawsuit over her depiction in FX's 2017 docudrama "Feud: Bette and Joan."
The "Gone With the Wind" star's legal team is attempting to move the case back to trial court after FX filed an anti-SLAPP motion to have it dismissed. However, an attorney for FX and a legal expert both encouraged the judges to prevent it from going to trial on the grounds that there was no evidence of actual malice.
Both sides submitted their oral arguments Tuesday during a hearing held at the University of Southern California's Gould School of Law and a decision is expected within 90 days. However, de Havilland's legal team believes it will come sooner given that the case has been expedited because of the actress' advanced age.
The 101-year-old icon of Hollywood's Golden Age lives in Paris and did not appear in court on Tuesday. Her daughter Gisele Galante Chulack, an L.A. resident, did attend the hearing.
De Havilland sued FX and Murphy in June over the unauthorized use of her identity in the Emmy-winning anthology series because, she alleges, the characterization cast her in a false light and violated her right to publicity.
In August, FX attempted to have the case dismissed altogether under California's anti-SLAPP statute. But Los Angeles Supreme Court Judge Holly Kendig greenlit the case a month later, ruling that de Havilland had a substantial probability of prevailing at a jury trial. FX then filed an appeal, thereby delaying the trial, but de Havilland's team filed another motion to have it expedited.
In the anthology, the two-time Academy Award winner is played by fellow Oscar winner Catherine Zeta-Jones, who provides commentary on the storied rivalry between actresses Bette Davis (Susan Sarandon) and Joan Crawford (Jessica Lange). De Havilland's suit accused FX and its partners of appropriating her name and identity "to sensationalize the series and to promote their own businesses" while ignoring her interests entirely.
Kelly Klaus, the attorney representing the appellants, argued that de Havilland's case should be dismissed because she is a living person who is enmeshed in the history of Hollywood.
"She played a pivotal role in the events 'Feud' dramatized," Klaus argued.
He also noted that each of de Havilland's four false-light claims would have "to clear the high hurdle of actual malice."
"She is a public figure and the matters discussed in 'Feud' are of public interest," he said.
The false-light claims, her team argued, stem from the series portraying her as a gossip, falsely depicting her in an interview that never happened, portraying her as "a vulgarian" for using the word "bitch" on two occasions and disparaging singer Frank Sinatra.
Klaus said that the court would have to prove that there was actual malice and there must be clear and convincing evidence that producers meant to cast her in a negative light or had reckless disregard for the truth. In fact, he argued, producers attempted to show her in a positive light as a consummate professional who "softened the hard edges of Bette Davis," he said.
FX contends that de Havilland's consent was not needed to include her in the series, nor did her inclusion violate her right of publicity. They argued that de Havilland "cannot carry her burden of showing a probability of prevailing on any of her four causes of action" under the state's anti-SLAPP statutes protecting petition and free-speech rights, according to legal documents submitted in the case.
De Havilland is backed by the Screen Actors Guild, but the Motion Picture Assn. of America and streaming giant Netflix, which recently inked a lucrative deal with Murphy, aligned themselves with FX by filing amicus briefs in January encouraging the court to reverse Kendig's decision.
Jennifer Rothman, a legal expert on the right of publicity who filed an amicus brief in the case, said that the right "protects against exploitative use of a person's identity" and that doesn't really apply in de Havilland's case.
"It's clear that this is a transformative use," Rothman said. "She did not appear in 'Feud'; Catherine Zeta-Jones did."
Rothman argued that "Feud" did not seek to exploit de Havilland — it used her to tell a story. If the case went to trial and prevailed, she said, the court would set a dangerous precedent for future right of publicity claims that could be brought "simply based on a name," which would be devastating to journalists, filmmakers and documentarians.
"We cannot recount historical events without the people who participated in them," she said. "The limits of rights of publicity claims were met here."
De Havilland's attorney, Suzelle M. Smith, fielded questions from the judges about the cases submitted for precedent, whether there was a difference between calling a person a "bitch" versus a "dragon lady" and whether there was actual malice in FX's depiction of de Havilland.
Smith said that because false statements were put in de Havilland's mouth in the series, that false portrayal upholds the actress right of publicity. She encouraged the judges not to try the case in appellate court and deny the actress the right to a jury trial but to let it move back to Superior Court, where it had been brought in the first place.
She argued that a celebrity should have the right to control his or her identity — not censor it — and be compensated for its use. De Havilland was not afforded those options because FX and Murphy never asked her permission, Smith said.
"The proper way to do this is to ask permission and compensate her," she said, explaining that if FX is paid for its creative work, then de Havilland should be compensated for the work she put into building up a reputation as a professional.
"This case is a really easy call," she concluded.
De Havilland proved victorious in appellate court before: Her landmark labor lawsuit against Warner Bros. resulted in the collapse of the binding long-term contract system and put the De Havilland Law on the books in 1944.
"In my dispute with FX for the series 'Feud,' I have nothing against actor Catherine Zeta-Jones," de Havilland wrote in this newspaper this month in response to Rothman's op-ed about the lawsuit.
"What I am vehemently opposed to is the attribution of outright fabrications to one's character," de Havilland wrote. "The creators of 'Feud' not only used my identity without my consent, but they also put false words in my mouth.
"Studios, which choose to chronicle the lives of real people," she added, "have a legal and moral responsibility to do so with integrity."
But if de Havilland triumphs again, experts argued that the effect could chill free speech and restrict studios' artistic expression.
Olivia de Havilland’s ‘Feud’ Petition Denied by California Top Court; SCOTUS Next?
By Dominic Patten
(Deadline Hollywood)
EXCLUSIVE: Nine days after Olivia de Havilland turned 102, the California Supreme Court has rejected the two-time Oscar winner’s desire to have them review her feud with FX Networks and Ryan Murphy over her depiction in the Emmy winning 2017 Feud: Bette and Joan anthology.
“It is a sad day for Miss de Havilland and for the legal system,” the Hold Back the Dawn actress’ primary lawyer Suzelle M. Smith said bluntly to Deadline today.
While a blow, the terse and unexplained “petition denied” from the Golden State’s highest court Wednesday hasn’t completely TKO’d the Hollywood legend’s aim to see the matter ultimately go to a jury trial. The action could be revived if de Havilland successfully petitions the U.S. Supreme Court to take the case. Putting together such paperwork to the SCOTUS is being evaluated by de Havilland’s team, but no decision has been made yet to go that route or not.
Producers Fox 21 Television had no comment on what was another victory for them in the year-plus matter.
The July 11 decision not to accept the petition follows de Havilland coming up short in March when an appellate court unanimously dismissed her lawsuit against FX and the now-Netflix-bound producer over the Bette and Joan limited series. Seeking wide-ranging damages and to essentially shut down the FX anthology show with an injunction, de Havilland declared in her initial June 30, 2017 lawsuit that the “bitch”-spouting portrayal of her by Catherine Zeta-Jones in Feud damaged the Gone With the Wind actress “professional reputation for integrity, honesty, generosity, self-sacrifice and dignity.”
In her jury-seeking complaint of last summer, The Heiress actress asserted that FX, Murphy and producers Fox 21 TV never even sought nor obtained her permission to depict her or use her name in their eight-episode series about Joan Crawford and Bette Davis. Among other issues, de Havilland’s lawsuit specifically targeted the alleged backstage drama involving her depicted in Feud‘s “And the Winner Is …” fifth episode about the 1963 Oscars.
For a while, it seemed that de Havilland truly was going to get her day in court.
In September 2017, L.A. Superior Court Judge Holly Kendig rebuffed FX and gang and agreed that de Havilland’s case could go to trial starting in November of that year. That’s when the defendants started waving around anti-SLAPP laws and First Amendment protections to justify their stance. Actions that higher courts, as well as the likes of Netflix and the studio-controlled MPAA, eventually concurred with.
Suffering defeat in the Appeals Court, Paris-based de Havilland and her Howarth & Smith attorneys in early May of this year asked the California Supreme Court to “grant this petition, review and reverse the published Opinion, correct the legal standards applicable here, and reinstate the Ruling of the trial court.”
With Wednesday’s refusal to do that, the centenarian de Havilland and team now have to decide if this is a feud that they want to go large and long for at this point.
'Feud,' Olivia de Havilland and the "Bitch" vs. "Dragon Lady" Debate
By Mike Kaplan
(The Hollywood Reporter)
As her attorneys petition the California Supreme Court, the actress' portrayal on the award-winning miniseries is again in the spotlight.
*[Editor's note: Attorneys for Olivia de Havilland filed a petition with the California Supreme Court on Friday to review a California appeals court decision in March that dismissed the actress’ lawsuit against Ryan Murphy and FX in which she claimed the miniseries Feud: Bette and Joan made her look like a vulgar hypocrite and gossip.
During the hearing that preceded the appeals court decision, much of the oral argument revolved around whether the word “bitch” — which actress Catherine Zeta-Jones, who played de Havilland on the series, uses to refer to de Havilland’s sister Joan Fontaine — is an acceptable synonym for the term “dragon lady,” a phrase that de Havilland did once use to refer to her sister. During the proceeding, de Havilland’s attorney argued that the actress never referred to her sister as a "bitch," while attorneys representing Murphy countered that he used the word “bitch” because he believed the terms "dragon lady" and "bitch" generally had the same meaning and “dragon lady” would not have been recognized and understood by modern audiences.]*
In the oral arguments in the suit brought by Olivia de Havilland against FX and the producers of Feud, for presenting her in a "false light" and defaming her reputation, much attention was spent debating the impact and intent of using the word “bitch” rather than ”dragon lady,” when used by de Havilland to describe her sister and fellow Oscar-winner Joan Fontaine at a particular time in their stormy relationship.
Unlike most major stars of Hollywood’s “Golden Age,” Havilland never engaged in salacious gossip nor was involved in any romantic scandal. Intelligence and depth of character was her public persona, consistent with the depth, diversity and intelligence of her acting. She was known as “The Queen of Radiant Calm.”
In the miniseries Feud, which centers on the rivalry between screen icons Bette Davis and Joan Crawford, de Havilland’s character frames the piece, in interviews that never occurred, in which she offers sardonic gossip about the Davis-Crawford relationship and Frank Sinatra’s drinking and calls Fontaine her “bitch sister.”
Nothing in de Havilland’s public or private life substantiates this speech, which is a deliberate fabrication posing as reality.
There is a record of de Havilland once referring to Fontaine as “the dragon lady," which Feud’s creators and lawyers now assert is an equivalent to “bitch”… and that "bitch" was a necessary word to use since contemporary audiences weren’t familiar with “dragon lady" and wouldn’t understand the allusion.
However, “bitch” and “dragon lady” aren’t equivalents. “Bitch” is a derogatory pejorative, a direct invective and a vulgarity. “Dragon lady” connotes someone who is exotic, beautiful, glamorous and intelligent, who can also be calculating and intimidating. And coming from de Havilland, that choice description would have a degree of wit. A dragon lady is a complex figure: a bitch is one-dimensional.
As Warner Bros. head Jack L. Warner said of de Havilland, who fought him over the studio contract system and won, “There is a brain like a computer behind those fawn-like eyes.”
That brain didn’t choose “dragon lady” lightly. One can deduce it also refers to the fact that Fontaine spent much of her formative years in Japan.
The origin of the name comes from Terry and the Pirates, Milton Caniff’s popular comic strip in which the “Dragon Lady” first appeared. She was a gorgeous Asian woman, mysterious, aggressive and a character one waited for. I remember her entrance in one panel, clothed in a stunning pink silk sheath, challenging and breathtaking. So much more interesting and formidable than the mundane ”bitch.”
Today’s audiences are, in fact, well aware of another current dragon lady, one who is exotic, intelligent, aggressive, beautiful and a cultural phenomenon. She is “Khaleesi, Danerys Targaryen, The Mother of Dragons,” and played by Emilia Clarke, she is arguably the most resilient and important character on Game of Thrones.
Justice Anne Egerton, who wrote the 36-page ruling only four days after the oral arguments, cited language that read like a press release for Feud, and which displayed little knowledge or understanding of critical standards regarding acting, film history or de Havilland’s extraordinary career and importance as a figure of integrity in a business where dignity is at a premium.
She accepted the FX description that in Catherine Zeta-Jones performance, de Havilland is portrayed as “beautiful, glamorous, self-assured and considerably ahead of her time in her views on the importance of equality and respect for women in Hollywood.” This is pretentious nonsense, configured to elevate Feud to some higher level of importance rather than what it is — a beautifully produced entertainment about two complicated and often volatile movie legends coming together to create a new genre for aging stars, abetted by one of Hollywood’s boldest directors, Robert Aldrich.
While the respective performances of Susan Sarandon and Jessica Lange as Davis and Crawford are rich and nuanced, Aldrich (Alfred Molina) is shamefully misrepresented. A fearless filmmaker (Attack, The Dirty Dozen, Kiss Me Deadly) and a forceful president of the DGA, he achieved landmark contracts for its members, but is falsely depicted as a spineless wimp and studio toady, furthering Feud's pattern of fabrications.
Zeta-Jones is fundamentally miscast as de Havilland — as played by Zeta-Jones, de Havilland is “self-assured” only in conveying gossip and without an iota of the fierce intelligence needed to be concerned about “the inequality of women in Hollywood.” That thematic statement from Feud is an obvious ploy to capitalize on current issues and is given slight attention or insight in the program.
Returning to the question of bitch vs. dragon lady, Egerton assumes that de Havilland’s portrayal is “not highly offensive to a reasonable person as a matter of law.” Most people may not be familiar with the “matter of law.” But most people who have seen the most successful film of all time, Gone With the Wind, or viewed The Adventures of Robin Hood countless times or watched many of de Havilland's 49 movies, from Hold Back the Dawn and Dodge City to her Oscar-winning To Each Our Own and The Heiress, would indeed find it highly offensive and unreasonable to believe this distinguished, acclaimed actress would use profanity in any public forum, let alone in discussing her sister.
The effect on the minds of her many thousands of fans and admirers would be devastating. If she actually called Fontaine a “bitch,” as opposed to the multi-layered “dragon lady,” a respected bond would be shattered.
I have had brief encounters with both sisters and worked for months with Bette Davis while producing her last film, The Whales of August, and she would have exploded over how her friend, Olivia, and her director are depicted in Feud.
During my first job after college graduation as editorial associate and film critic for The Independent Film Journal, a bi-weekly trade publication supported by the Independent Theater Owners Association, whose editor Mort Sunshine produced high-end charity events, I watched as Fontaine arrived at the Americana Hotel in New York for one such event. The star of Rebecca and Suspicion appeared in a stunning, strapless red gown and ascended the escalator to applause — elegant, glamorous and totally in control — to be greeted at the top by a very pleased Mort, ready to escort her in. It was a perfectly staged and executed entrance.
Two years, one avenue and four blocks later, the entire advertising and publicity department were seated in the conference room of the MGM Building with de Havilland, who had recently arrived from Paris. She had called the meeting to learn of everything that had been arranged for the Atlanta premiere of a technically enhanced, remastered Gone With the Wind. As the last surviving major figure of the beloved film, she wore the mantle of its importance with grace and significance. I was the MGM publicist responsible for print and broadcast publicity, and she wanted to know about every aspect of the film’s presentation, details that straddled arrivals, attendees, premiere timing, post-premiere party, size of the various locations and her wardrobe. When she was satisfied all was well, we rose in unison as she made her exit. It was a precise, professional and perfectly executed meeting.
An hour later, we ran into each other on Sixth Avenue. Knowing she had nothing planned on her schedule that afternoon, I asked if she wanted to join my friend and me for lunch. “Thank you, you’re very kind,” she said, “but I’m having lunch with my sister.”
Aside from their career achievements, whatever squabbles, disagreements and estrangements the sisters engaged in during their lives, they were bonded by blood in how they appeared and conducted themselves. They were both circumspect and specific. In a 2016 interview in reference to her sister, de Havilland said, “'Dragon Lady,' as I eventually decided to call her, was a brilliant, multi-talented person but with an astigmatism in her perception of people and events, which often caused her to act in an unfair and even injurious way.”
The media’s coverage of the “bitch-dragon lady” debate has clouded the case’s main issue — the necessity of maintaining ethical concerns for the truth while exercising First Amendment rights.
Murphy, Feud’s talented creator, said he didn’t want “to intrude” on de Havilland before making the miniseries. Perhaps the insults and misrepresentation to her character could have been avoided if they had had personal contact. Instead, the honor and reputation of a national treasure has been impugned by not according her the same amount of concern given the program’s principals — Davis and Crawford — and that makes her portrayal all the more disheartening and offensive.
The court of appeals decision did not end the controversy, with de Havilland’s attorneys now petitioning to have it reviewed. As Fontaine once warned, her sister doesn’t give up without a fight. Referring to de Havilland’s successful court cast against Warners in 1943, Fontaine once said of their family’s dynamic, “We don’t knuckle under. We fight for what is right.”
Mike Kaplan ID has worn various hats as a producer, documentary director, indie distributor and marketing strategist, working closely with Stanley Kubrick, Robert Altman, Hal Ashby, Lindsay Anderson, Mike Hodges and Alan Rudolph. His film poster exhibit, The Art of the Movie Poster: Highlights From the Mike Kaplan Collection, is currently on view at LACMA through July 1.
De Havilland Takes 'Feud' Fight to California High Court
By Bonnie Eslinger
(Law360)
Olivia de Havilland asked the California Supreme Court to review a lower court decision tossing her lawsuit alleging FX Network’s “Feud: Bette and Joan” defiles and unlawfully profits from her name, saying Friday the opinion “eviscerates” the court’s 2001 opinion supporting a celebrity’s publicity rights.
The silver-screen actress sued FX and the producers of the docudrama over her unauthorized portrayal, claiming under California’s “right to publicity” statute she was protected from the allegedly false commercial exploration. In March, however, the state’s appeals court found the creative liberties taken with her character were protected by the First Amendment.
In a news statement, issued from her home in Paris, the 101-year-old de Havilland said the state’s high court should hear the case, for her sake and for others.
“My case is about FX publishing false statements about me and using my name without consent. I, and other individuals in like circumstances, should not be denied our constitutional right to trial by jury,” de Havilland said.
The decision by the lower appellate court reversed a September ruling by a Los Angeles Superior Court judge denying FX and Pacific 2.1 Entertainment Group’s motion to strike de Havilland’s suit under California’s anti-SLAPP statute. The anti-SLAPP, or Strategic Lawsuit Against Public Participation, law protects the exercise of free speech by forcing lawsuits that would constrain speech to show a likelihood of succeeding on the merits at the pleadings stage.
De Havilland’s petition to the California Supreme Court submitted Friday seeks for the state’s high court to review and reverse the lower appellate court opinion, so her litigation can proceed.
The appeals court found that a portrayal of de Havilland by Catherine Zeta-Jones in “Feud” or the use of her name did not constitute an endorsement of the show by the elderly actress. As such, the defendants did not need to acquire rights from de Havilland to portray her in their docudrama, the opinion said.
In addition, the appeals court found that the show’s portrayal of the real de Havilland was creatively transformed within the fictional context of “Feud,” due to its artistic elements and because Zeta-Jones’ de Havilland character was a smaller role.
That finding, de Havilland said, runs roughshod over the “transformative” test within the high court’s own 2001 ruling in Comedy III Productions Inc. v. Gary Saderup, a case involving the rights to the image of the The Three Stooges.
In that ruling the court said it formulated “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.”
In the FX show, de Havilland’s name is used, along with her photograph, and her character is portrayed realistically, the petition to the California Supreme Court states.
The opinion of the lower appellate panel “simply rewrites this court’s test so that it is meaningless, and holds that conventional, literal portrayals are entitled to First Amendment protection if there is some fictional component to the work,” de Havilland said.
De Havilland also turned the court’s attention to its 2003 ruling in Winter v. DC Comics, a case in which the comic book franchise prevailed because the court found that the two real-life musicians who were portrayed in a comic were not “conventional depictions” but distortions for “purposes of lampoon, parody or caricature.”
That’s not the case with de Havilland’s depiction, her petition argues.
“This court should make clear that such ‘literal’ portrayals are actionable under the Comedy III — Winter transformation test, and the right to publicity does not evaporate for docudramas,” the actress states.
An attorney for de Havilland issued a statement on Friday.
“The Court of Appeal opinion, if allowed to stand, will infringe on the constitutional right to a trial by jury not only of Miss de Havilland, but for any person in a similar situation, whether a celebrity or not,” said Suzelle Smith of Howarth & Smith. “This puts everyone at the mercy of the media and entertainment industry, which may find that false statements and fake news sell better than the truth.”
“Feud” was created by producer Ryan Murphy to tell the story of the historic Hollywood rivalry between Bette Davis and Joan Crawford when they were making the 1962 film “What Ever Happened to Baby Jane?”
De Havilland, who first sued last June, claims the show wrongfully portrayed her as the kind of person who engaged in “gossipmongering” about other actors — including calling her sister, Joan Fontaine, a “bitch.”
Other scenes at issue include a 1978 red carpet interview that allegedly never occurred and a dig at Frank Sinatra’s alleged alcoholism that de Havilland says never happened.
In September, de Havilland beat back FX’s anti-SLAPP motion, with a Los Angeles County Superior Court judge finding the actress provided sufficient evidence to support a claim that certain scenes portrayed her in a false light.
Although Judge Holly Kendig agreed with FX that de Havilland’s false light and right to publicity claims stemmed from protected activity, she ultimately concluded the actress met her burden to show a likelihood of succeeding on the merits, citing a minimal threshold at the anti-SLAPP stage.
Judge Kendig rejected FX’s arguments that the portrayal wasn’t defamatory, saying that a viewer “may think plaintiff to be a gossip who uses vulgar terms.”
FX and Pacific 2.1 Entertainment prevailed in their appeal and the suit was tossed, leading to de Havilland’s Friday petition to the California Supreme Court.
During the FX defendants' appeal, several companies and organizations got involved in the case as amici, chiming in on either side of the court battle.
The Screen Actors Guild—American Federation of Television and Radio Artists had argued on de Havilland’s side that because the actress is still alive, the show's creators had a responsibility to ensure it didn't dishonor her reputation, according to its brief.
That contention was offset by an avalanche of amici on behalf of FX arguing that the free-speech implications of letting de Havilland sue over the portrayal would freeze creativity in Hollywood and beyond, according to their filings.
Representatives for FX and Pacific 2.1 Entertainment did not immediately respond to requests for comment Friday.
De Havilland is represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.
FX and Pacific 2.1 Entertainment are represented by Glenn D. Pomerantz and Kelly Klaus of Munger Tolles & Olson LLP.
The case is Olivia de Havilland v. FX Networks LLC et al., case number S248614, in the Supreme Court of California.
Olivia de Havilland Takes FX 'Feud' to California Supreme Court
By Ashley Cullins
(The Hollywood Reporter)
The 101-year-old actress isn't giving up in her legal fight with Ryan Murphy and FX.
Olivia de Havilland's legal loss to FX and Ryan Murphy was celebrated as a win by docudrama creators, but attorneys for the actress say the decision effectively kills the right to a jury trial in defamation cases.
The actress sued last year, claiming the series Feud: Bette and Joan inaccurately portrayed her as a vulgar gossip in violation of her privacy and publicity rights.
The network and Murphy asked the court to toss the case under California's anti-SLAPP statute, which brings an early end to frivolous lawsuits arising from protected conduct like free speech. Judge Holly Kending found that, while Feud was clearly protected speech, de Havilland demonstrated a minimal probability of prevailing on her claims and allowed the suit to proceed.
That ruling was overturned by a California appeals court in March, after oral arguments that largely focused on whether Catherine Zeta-Jones' portrayal was a positive one and if "bitch" is still considered a highly offensive term. De Havilland's lawyer Suzelle Smith characterized the decision as "pro-industry" and said it was "clearly written before the hearing."
In a petition for review filed Friday, Smith asks the state's high court to evaluate whether the appellate ruling renders the anti-SLAPP statute unconstitutional and if the use of a living celebrity's name and likeness in a realistic portrayal can possibly be considered "transformative" under the law.
"The de Havilland case is being closely followed," writes Smith. "It is the textbook vehicle for this Court to address these issues of statutory and constitutional significance, including the 'inviolate' right to civil jury trial on issues of fact under California’s Constitution, and the vitality of the right of publicity and defamation causes of action, when plaintiff offers admissible evidence, both percipient and expert, that defendants knowingly or recklessly made false statements and misappropriated her literal identity, damaging her professional reputation and profiting themselves."
Smith notes the court has not yet addressed publicity and false light claims in connection to anti-SLAPP procedures and says it should do so.
"California’s anti-SLAPP statute involves several issues of constitutional significance, including the right to free speech, the right to petition, and the right to jury trial, which must be carefully balanced in applying the statute," she writes. "Otherwise, the statute can be used to undermine rather than protect constitutional rights."
The 2nd District's finding that de Havilland was obligated to present "credible evidence" was incorrect, Smith argues, and so was its opinion that the actress must prove knowing and reckless falsehood by direct, rather than circumstantial, evidence.
"It is the role of the jury, not the Court, to determine the credibility of admissible direct and circumstantial evidence produced by a plaintiff," Smith writes. "The Opinion arrogates to the court the right to judge credibility, an unconstitutional extension of the statute."
Smith also claims the opinion effectively eliminates jury trials in defamation cases.
"The Opinion, if left to stand, would extend constitutional protection to any knowingly false statements as long as the defendant produces a self-serving declaration claiming they were made in good faith," she writes. "Such a result would effectively abolish virtually all claims of defamation and false light."
Kelly Klaus, attorney for FX and Murphy, has not yet commented on the petition.