Cameo Clips

FILM PRODUCTION LOSSES/ISSUE PRECLUSION

The Court of Appeals of Colorado decided that the outcome of a suit by film producer Bristol Bay against book author Clive Cussler in California ' over the unsuccessful film Sahara, which lost more than $50 million ' precluded a suit by Bristol Bay against Cussler's agent and book publishers in Colorado. Bristol Bay Productions LLC v. Lampack, 10CA2039. A California jury had in part ruled against Bristol Bay (earlier known as Crusader Entertainment) on its deceit claim against Cussler; the California Court of Appeal affirmed. Bristol Bay also sued Cussler's agent and publishers in Denver District Court over the allegedly inflated number of 100 million of Cussler's books sold that had been told to Crusader during negotiations for use of the Cussler literary property. Bristol Bay claimed the actual sales figure was closer to 40 million. But the Denver court dismissed Bristol Bay's suit, citing issue preclusion from the California litigation.

Affirming, the Colorado appeals court noted as to Cussler's agent Peter Lampack: “In California, the parties litigated and the jury determined that either Lampack, when acting on Cussler's behalf, or Cussler himself misrepresented the number of books that Cussler had sold. The parties also litigated and the jury also determined that, although Bristol Bay relied on this misrepresentation when it entered into the contract with Cussler, this reliance was not a sufficient cause of harm to Bristol Bay as to support a claim for damages.”

As to Cussler's book publishers, Simon & Schuster and Penguin Group USA, the Colorado appeals court emphasized: “[A]ll of the alleged post-contract misrepresentations were discoverable by Bristol Bay during the prior action, inasmuch as they were all public (available on the publishers' websites and book jackets) and had taken place before the California trial, as the movie was released before trial.”

The Court of Civil Appeals of Alabama decided that a TV station employee's non-competition agreement wasn't assigned to a purchaser of the station. Booth v. Newport Television LLC, 2100413. Cyndi Booth had signed a non-competition agreement for her position as a sales associate with the Clear Channel Broadcasting station WJTC-TV, later acquired by Newport Television. Competing station WKRG subsequently offered her a job but claimed the offer was rescinded after a Newport representative threatened to sue WKRG by citing the non-competition agreement. Booth then filed an action in Mobile Circuit Court seeking a declaration that the non-competition was void.

Reversing and remanding the trial court's ruling for Newport, the Alabama appeals court found: “Not only is it undisputed that Booth's employment contract and non-compete agreement were entered into before Newport purchased Clear Channel's assets, the fact that Booth's employment contract is not included [in the station purchase agreement] among the numerous employment contracts ' [to be assigned by Clear Channel to Newport] is telling.” Newport argued that the employment contracts that had been listed were those of “highly-compensated on-air talent, producers, etc. as opposed to ancillary employment agreements such as non-compete agreements, confidentiality agreements, etc.” But the appeals court determined: “Regardless of whether the parties to the purchase agreement were required by law to identify non-compete agreements as being subject to the purchase agreement in order to effectuate an assignment of the
non-compete agreements, the terms of the purchase agreement provided that the non-compete agreement was required to be listed if it was intended to be assigned.”

FILM PRODUCTION LOSSES/ISSUE PRECLUSION

The Court of Appeals of Colorado decided that the outcome of a suit by film producer Bristol Bay against book author Clive Cussler in California ' over the unsuccessful film Sahara, which lost more than $50 million ' precluded a suit by Bristol Bay against Cussler's agent and book publishers in Colorado. Bristol Bay Productions LLC v. Lampack, 10CA2039. A California jury had in part ruled against Bristol Bay (earlier known as Crusader Entertainment) on its deceit claim against Cussler; the California Court of Appeal affirmed. Bristol Bay also sued Cussler's agent and publishers in Denver District Court over the allegedly inflated number of 100 million of Cussler's books sold that had been told to Crusader during negotiations for use of the Cussler literary property. Bristol Bay claimed the actual sales figure was closer to 40 million. But the Denver court dismissed Bristol Bay's suit, citing issue preclusion from the California litigation.

Affirming, the Colorado appeals court noted as to Cussler's agent Peter Lampack: “In California, the parties litigated and the jury determined that either Lampack, when acting on Cussler's behalf, or Cussler himself misrepresented the number of books that Cussler had sold. The parties also litigated and the jury also determined that, although Bristol Bay relied on this misrepresentation when it entered into the contract with Cussler, this reliance was not a sufficient cause of harm to Bristol Bay as to support a claim for damages.”

As to Cussler's book publishers, Simon & Schuster and Penguin Group USA, the Colorado appeals court emphasized: “[A]ll of the alleged post-contract misrepresentations were discoverable by Bristol Bay during the prior action, inasmuch as they were all public (available on the publishers' websites and book jackets) and had taken place before the California trial, as the movie was released before trial.”

The Court of Civil Appeals of Alabama decided that a TV station employee's non-competition agreement wasn't assigned to a purchaser of the station. Booth v. Newport Television LLC, 2100413. Cyndi Booth had signed a non-competition agreement for her position as a sales associate with the Clear Channel Broadcasting station WJTC-TV, later acquired by Newport Television. Competing station WKRG subsequently offered her a job but claimed the offer was rescinded after a Newport representative threatened to sue WKRG by citing the non-competition agreement. Booth then filed an action in Mobile Circuit Court seeking a declaration that the non-competition was void.

Reversing and remanding the trial court's ruling for Newport, the Alabama appeals court found: “Not only is it undisputed that Booth's employment contract and non-compete agreement were entered into before Newport purchased Clear Channel's assets, the fact that Booth's employment contract is not included [in the station purchase agreement] among the numerous employment contracts ' [to be assigned by Clear Channel to Newport] is telling.” Newport argued that the employment contracts that had been listed were those of “highly-compensated on-air talent, producers, etc. as opposed to ancillary employment agreements such as non-compete agreements, confidentiality agreements, etc.” But the appeals court determined: “Regardless of whether the parties to the purchase agreement were required by law to identify non-compete agreements as being subject to the purchase agreement in order to effectuate an assignment of the
non-compete agreements, the terms of the purchase agreement provided that the non-compete agreement was required to be listed if it was intended to be assigned.”