Clause & Effect

Film Release/Approvals

A magistrate for the Manhattan federal district court ruled that neither members of 'NSYNC nor its representatives breached the cure provision of an agreement for the plaintiff production company to release a giant-screen concert film of the singing group. RBFC One LLC v. Zeeks Inc., 02 Civ. 3231 (DFE). RBFC claimed that the defendants had “unreasonably delayed issuing approvals for virtually all aspects of the Film and its related advertising” and “failed to take normal and customary steps, as they do with respect to all other projects, to promote the Film so as to insure its success.”

The “Right to Cure” provision in the RBFC/'NSYNC agreement stated: “No failure by Producer or Band to perform any of Producer's or Band's respective obligations hereunder shall be deemed a breach hereof, unless Band or Producer gives the other written notice of such failure and such party fails to cure such nonperformance within forty-eight (48) hours after such party's receipt of such notice.” The magistrate noted, “At times, Plaintiff seems to argue that it could … give notice of an alleged breach that occurred more than a year earlier. I reject this as an irrational reading of [the cure provision].”

The magistrate added that the agreement required that: “Plaintiff must show that it gave ['NSYNC's company general counsel Adam] Ritholz a 'written notice' concerning any alleged breach. In opposing summary judgment, Plaintiff has submitted a number of writings (generally e-mails) that [RBFC manager and CFO Linda] Nelson sent to agents of Defendants (generally Melinda Bell and Johnny Wright of the Band's management company). I have reviewed those documents. None of them uses the word 'breach.'” The magistrate acknowledged there had been a 2-week delay in the group's approval of the film's sound mix but emphasized that e-mails from RBFC's Nelson “did not suggest that this delay was unreasonable or unacceptable.” That led the magistrate to conclude further that “it was not unreasonable for Defendants to delay their approval of the visual print until their approval of the sound track.”

As for the claim of failure to properly promote the film, the magistrate found no breach, noting the agreement stated: “[Plaintiff] agrees that the Band, at their sole discretion, can make personal appearances at any venue where the Film is exhibited.”

The Court of Appeal of California, Second Appellate District, Division Seven, decided that two agreements in principle signed by Francis Ford Coppola's Zoetrope Corp. to develop and produce space and science-fiction TV and multimedia projects weren't enforceable against the company. Portman v. Zoetrope Corp., B166488. The agreements had been signed after plaintiff Neil Portman approached Zoetrope with the projects idea. The court of appeal noted in its unpublished opinion: “[T]here was no understanding as to the exact type of projects to be developed, proposed budget costs, or the nature of the development. Indeed, these alleged agreements are so broad based it is impossible to discern how many projects were even contemplated by the parties, much less know the details of each project such as production duties and cast characteristics. The documents also lack material terms such as what, if any, affirmative steps the parties must take to perform, whether the parties were to work exclusively with each other, the compensation that the parties were to receive, the time for performance, the identity of the employees on each project, the identity of the projects, and the ownership of the projects. … The documents state that 'formal agreements' shall supersede the 'Agreements in principle' when and if a third party funds the agenda. Taken in their ordinary sense, these words manifest an intention of the parties that no binding contract would come into being unless and until third-party funding was secured and the terms memorialized into a formal contract, which would supersede the two agreements in principle.”

Film Release/Approvals

A magistrate for the Manhattan federal district court ruled that neither members of 'NSYNC nor its representatives breached the cure provision of an agreement for the plaintiff production company to release a giant-screen concert film of the singing group. RBFC One LLC v. Zeeks Inc., 02 Civ. 3231 (DFE). RBFC claimed that the defendants had “unreasonably delayed issuing approvals for virtually all aspects of the Film and its related advertising” and “failed to take normal and customary steps, as they do with respect to all other projects, to promote the Film so as to insure its success.”

The “Right to Cure” provision in the RBFC/'NSYNC agreement stated: “No failure by Producer or Band to perform any of Producer's or Band's respective obligations hereunder shall be deemed a breach hereof, unless Band or Producer gives the other written notice of such failure and such party fails to cure such nonperformance within forty-eight (48) hours after such party's receipt of such notice.” The magistrate noted, “At times, Plaintiff seems to argue that it could … give notice of an alleged breach that occurred more than a year earlier. I reject this as an irrational reading of [the cure provision].”

The magistrate added that the agreement required that: “Plaintiff must show that it gave ['NSYNC's company general counsel Adam] Ritholz a 'written notice' concerning any alleged breach. In opposing summary judgment, Plaintiff has submitted a number of writings (generally e-mails) that [RBFC manager and CFO Linda] Nelson sent to agents of Defendants (generally Melinda Bell and Johnny Wright of the Band's management company). I have reviewed those documents. None of them uses the word 'breach.'” The magistrate acknowledged there had been a 2-week delay in the group's approval of the film's sound mix but emphasized that e-mails from RBFC's Nelson “did not suggest that this delay was unreasonable or unacceptable.” That led the magistrate to conclude further that “it was not unreasonable for Defendants to delay their approval of the visual print until their approval of the sound track.”

As for the claim of failure to properly promote the film, the magistrate found no breach, noting the agreement stated: “[Plaintiff] agrees that the Band, at their sole discretion, can make personal appearances at any venue where the Film is exhibited.”

The Court of Appeal of California, Second Appellate District, Division Seven, decided that two agreements in principle signed by Francis Ford Coppola's Zoetrope Corp. to develop and produce space and science-fiction TV and multimedia projects weren't enforceable against the company. Portman v. Zoetrope Corp., B166488. The agreements had been signed after plaintiff Neil Portman approached Zoetrope with the projects idea. The court of appeal noted in its unpublished opinion: “[T]here was no understanding as to the exact type of projects to be developed, proposed budget costs, or the nature of the development. Indeed, these alleged agreements are so broad based it is impossible to discern how many projects were even contemplated by the parties, much less know the details of each project such as production duties and cast characteristics. The documents also lack material terms such as what, if any, affirmative steps the parties must take to perform, whether the parties were to work exclusively with each other, the compensation that the parties were to receive, the time for performance, the identity of the employees on each project, the identity of the projects, and the ownership of the projects. … The documents state that 'formal agreements' shall supersede the 'Agreements in principle' when and if a third party funds the agenda. Taken in their ordinary sense, these words manifest an intention of the parties that no binding contract would come into being unless and until third-party funding was secured and the terms memorialized into a formal contract, which would supersede the two agreements in principle.”