Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
California Court of Appeal Interprets Incontestability Clause in Profit Participation Agreements
The producers of the hit TV series Home Improvement signed a series of profit participation agreements with Walt Disney Pictures. The agreements gave the producers the right to 75% of all net profits earned by the series and to conduct an audit of Disney's books once per year (though the producers' attorney Marcia Harris claimed Disney restricted annual audits). The participation agreements also contained an “incontestability” clause that required the producers to raise objections to their quarterly participation statements within two years after Disney sent them, and to file any legal action within six months following the end of the two-year limitations period. In July 2008, after their auditors finished an audit of Disney's books, the producers objected to the participation statements sent them between June 2001 and March 2006. Disney and the producers then agreed the incontestability limitations period would be tolled while they tried to negotiate a settlement. But in February 2013, the producers filed suit in L.A. Superior Court alleging, among other things, breach of contract, and breach of the implied covenant of good faith and fair dealing. In particular, the producers claimed Disney syndicated the Home Improvement series in New York for below fair market value and had made improper charges in calculating the producers' net profits. The trial court ruled the producers' suit was time-barred by the incontestability clause. On the producers' appeal, the California Court of Appeal first noted that under the language of the incontestability clause: “[I]f the producers' interpretation of the incontestability clause as applying solely to transactions apparent on the face of the statement were correct, it would nullify the contractual limitations period in all but the narrowest of circumstances.” Wind Dancer Production Group v. Walt Disney Pictures, B262426 (Cal. Ct. App. 2017). But the producers also argued the discovery rule should allow them to proceed with their lawsuit on the ground that they couldn't have discovered or reasonably discovered the alleged underpayments until they actually got to conduct the audit in question. On this, the court of appeal decided the producers waived use of the discovery rule when signing the incontestability clause. According to the court of appeal: “The clause accordingly provides that a claim arising from a participation statement accrues on the date the statement is sent, irrespective of whether the participant knows, or has reason to know, the facts supporting the claim.” But the court of appeal went on to reverse the lower court, by finding: “Based on the totality of evidence presented about Disney's alleged conduct, including the oral [incontestability] tolling agreements, the prior failure to enforce the incontestability clause, and the chronic delays in the audit process, we conclude that there are triable issues of material fact as to whether Disney may be estopped from asserting the contractual limitations period as a defense to the producers' claims.”
*****
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.