HBO Asks Appeals Court to Toss Michael Jackson ‘Leaving Neverland’ Suit

HBO urged an appeals court on Thursday to throw out a lawsuit brought by the Michael Jackson estate over the “Leaving Neverland” documentary.

The estate sued HBO for $100 million, arguing that the network broke a 27-year-old promise not to disparage the late pop star by accusing him of child sexual abuse.

The estate has also argued that the subjects of the documentary — Wade Robson and James Safechuck — had a financial incentive to fabricate their allegations. Jackson died in 2009, and so HBO cannot be sued for defaming him. Instead, the estate has invoked a non-disparagement provision from a contract for a 1992 concert film from Jackson’s “Dangerous” tour.

In September 2019, Judge George Wu sided with the Jackson estate, granting a request to take the case to arbitration. HBO appealed the ruling, claiming that the “Leaving Neverland” dispute had nothing to do with the 1992 contract.

Theodore Boutrous, arguing for HBO, urged a three-judge panel of the 9th Circuit Court of Appeals to overturn the lower court ruling on Thursday. He argued that the Jackson estate had filed the case as a “publicity stunt,” and that HBO would never have given Jackson and his heirs a perpetual veto over the network’s First Amendment rights.

“That is on its face absurd,” Boutrous argued. “There is nothing that suggests HBO intended that.”

Jonathan Steinsapir, arguing for the Jackson estate, countered that Jackson was the biggest star in the world at the time, and had the leverage to bargain for a strong non-disparagement provision.

Jackson “had been the subject of some extremely ridiculous tabloid reporting,” Steinsapir said. “It’s not crazy he would want that in an agreement.”

The judges seemed somewhat open to Boutrous’ argument that the 1992 contract is “far afield” from the “Leaving Neverland” dispute.

“This is pretty remote, isn’t it?” Judge Lawrence VanDyke asked Steinsapir.

But VanDyke also seemed inclined to leave the interpretation of the contract up to an arbitrator. Boutrous urged the panel instead to decide the case on its own.

“The court has a duty to interpret the contract to see if the dispute has its real substance in the contract,” Boutrous argued. “Consent is crucial. There was no agreement to arbitrate.”

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