10 11
•
1 MARTIN D. SINGER (BAR NO. 78166) LYNDA B. GOLDMAN (BAR NO. 119765)
2 ANDREW B. BRETTLER (BAR NO. 262928) LAVELY & SINGER
3 PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400
4 Los Angeles, California 90067-2906 Telephone: (310) 556-3501
5 Facsimile: (310) 556-3615 J'
Email: msinger@lavelysinger.com
6 lgoldmaneplavelyslnger.com
7 abrett1er@laVelYSinger.com~'
Attorneys for Defendants CASEY AF LECK and 8 FLEMMY PRODUCTIONS, LLC
9
•
FILED
l.os Angeles Superior Court
JUL as 20lD
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
12 AMANDA WHITE. an individual. )
)
13 Plaintiff, )
)
14 v. )
)
15 CASEY AFFLECK, an individual; )
FLEMMY PRODUCTIONS, LLC, a )
16 California limited liability company; and )
DOES 1 through 10, inclusive, )
17 )
Defendants. )
18 )
)
19 )
)
20 )
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21 )
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22 )
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28 K:\4612-3\PLE\MQt To Compel Arb.wpd
CASE NO. BC 442321
[Hon. Richard L. Fruin, Jr. - Dept. 15) NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S CLAIMS AGAINST DEFENDANTS CASEY AFFLECK AND FLEMMY PRODUCTIONS, LLC; REQUEST FOR ATTORNEY'S FEES AND COSTS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF CASEY AFFLECK, AUGUST J. BRANDENSTEIN, DAVID WEBER, AND MARTIN D. SINGER
[Filed concurrently with (Proposed) Order] Date:
Time:
Dep't:
September 22, 2010 8:30 a.m.
15
Complaint Filed:
MOTION 1'0 COMPEL ARBITRATION
1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD HEREIN:
•
2 PLEASE TAKE NOTICE that on September 22,2010, at 8:30 a.m., in Department
3 15 of the Los Angeles Superior Court, located at 111 North Hill Street, Los Angeles,
4 California 90012, Defendants Casey Affleck (" Affleck") and Flemmy Productions, LLC 5 ("Flemmy") (collectively, "Defendants") will and hereby do move the Court for an order 6 compelling arbitration of all claims alleged against them by Plaintiff Amanda White
7 ("Plaintiff"). Defendants also seek an award of attorney's fees and costs in the amount of 8 $18,825 associated with this Motion to enforce the mandatory contractual arbitration
9 agreement between the parties. against Plaintiff and her attorney of record, jointly and
10 severally, pursuant to California Civil Code § 1717.
11 This Motion will be made pursuant to California Code of Civil Procedure § 1280 et
12 seq., including § 1281.2 and § 1281.4. on the grounds that in January 2009 Plaintiff, on the 13 one hand, and Flemmy, on the other band, entered into a Work-for-Hire/lndependent
14 Contractor Agreement (the" Agreement") related to Plaintiffs employment by Flemmy as a
15 contractor. Pursuant to paragraph 4 of the Agreement, the parties agreed that " [a]11 disputes 16 which may arise between the parties ... will be determined solely by arbitration in accordance 17 with the rules of the American Arbitration Association." A true and correct copy of the
18 Agreement is attached to the accompanying Declarations of Casey Affleck and August J.
19 Brandenstein as Exhibits A.
20 On July 23, 2010, Plaintiff filed her Complaint in this action. On July 27. 2010,
21 Defendants requested that Plaintiff submit all of her claims pending against them to binding 22 arbitration pursuant to paragraph 4 of the parties' Agreement. As of the time of the filing of 23 this Motion, Plaintiff has failed to agree to submit her claims to binding arbitration, thereby
~l4 necessitating this Motion. f~5 /11
'76 11/
r~
c27 III
28 III
K:\4612-3\PLE\Mot To Compel Arb.wpd
2
MOTION TO COMPEL ARBItRATION
•
1 This Motion will be sed upon this Notice of Motion, the attached Memorandum of
2 Points and Authorities and
Declarations of Casey Affleck, August J. Brandenstein, David
3 Weber, and Martin D. Singe and the exhibits attached thereto, the files and records in this 4 action and on such other arg ment and evidence which the Court may desire to consider.
5
6 DATE: July 28, 2010 7
8
9
LA VELY & SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER
LYNDA B. GOLDMAN
ANDRE B. B TL
10
11 12 13 14 15 16 17 18 19 20 21 22 23
,n:1
Attorneys for efen CASEY AFFLECK and FLEMMY PRODUCTIONS, INC.
~4
." ~
~5
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~6
28
K:\46l2·3\PLE\Mot To Compel Arb.wpd
3
MOTION 'fO COMPEL ARBITRATION
1 TABLE OF CONTENTS
2 Page(s)
3 MEMORANDUM OF POI TS AND AUTHORITIES " 1
4
5 1. INTRODUCTION " 1
6
7 II. 8
9 III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7
FACTUAL BACKG OUND " 3
10 11 12
A.
The Court Sh uld Enforce the Contractual Arbitration Provision
Contained in the Parties' Agreement . . . . . . . . . . . . . . . . . . . . . . . . .. 7
13
1. 2.
Califo nia Has a Strong Public Policy in Favor of Arbitration 7
The A reement is Valid and Enforceable " 8
14
15
16 IV.
17
18
19
20
21
22
23
."' ~
24
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,
:26
r,
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27
28 B. Defendants A e Entitled to an Award of Attorney's Fees and Costs ..... 11
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
K:\4612·3\PLE\TABLES - Mot To Compel Arb wpd
1
MOTION TO COMPEL ARHITRA'I'lON
lui v. Mesquite Country Cl b
10 186 Cal. App.3 " 8
1 2 3
P_age(s)
TABLE OF AUTHORITIES
6
STATE CASES l
Acosta v, Kerrigan I
150 Cal. App. 4th 1 24, 58 Cal. Rptr. 3d 865 (2d Dist. 2007) 11
4 5
Ericksen, Arbuthnot, McCa hy, Kearney & Walsh, Inc. v, 100 Oak St.
7 35 Cal. 3d 312, 197 Cal. Rptr. 581 (1983) 8
8 Application of G. W. McNea , Inc.
90 Cal. App. 2d 66 , 203 P.2d 550 (4th Dist. 1949) 9
9
12
11 Moncharsh v, Heily & Bias
3 Cal. 4th 1, 10 Cal. Rptr. 2d 183 (1992) 8
Pac. Inv. Co. v. Townsend
13 58 Cal. App. 3d 1, 29 Cal. Rptr. 489 (2d Dist. 1976) 8
14 Tuso v. Green
194 Cal. 574, 229 P 327 (1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Wagner Constr. Co. v. Pac. Mech. Corp.
16 41 Cal. 4th 19, 58 C . Rptr. 3d 434 (2007) 7, 8
17
18
19
20 Cal. Civ. Code § 1565 9
21 Cal. Civ. Code § 1633.7(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
22 Cal. Civ, Code § 1717 " 2
23 California Code of Civil Pr cedure § 1280 2
15
STATE STATUTES
/
.24 California Code of Civil Pr cedure § 1281.2 " 7
::: ~
~5
,
126 U 27
28
K:\4612·3\PLmTABLES - Mot To Compel Arb wpd
ii
MOTION TO COMPEL AkBl'fRA'l'lON
1
3 Plaintiff Amanda Wh te ("White" or "Plaintiff') concocted this fabricated sexual
MEMO NDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
4 harassment lawsuit over a ye r after she failed in her devious attempt extort a better production 5 deal by walking off the film ocumentary Project and withholding key production documents
6 she had tried to ransom for a bigger pay-day. Over the course of more than 15 months, she
7 had unsuccessfully undertoo a series of extortionate tactics in her effort to obtain more
8 compensation than she was 1 gaIly entitled to and repeatedly threatened to interfere with the 9 film Project. First, in early 009, she withheld key production documents, refusing to turn
10 them over unless her deman to improve her "deal" were met. (Affleck Decl. "8-10 & 11 Exs. F-G.) Next, she refuse to confirm that she had provided the Production with all of the
12 necessary executed agreeme which it had been her responsibility to have signed (including 13 her own executed agreement bligating her to arbitrate all disputes).
14 After those gambits f iled to pressure the Production into capitulating to her
15 unwarranted demands, Whit next implicitly threatened to interfere with the release of the film 16 by claiming in March of 201 (through her lawyer-friend) that she supposedly owned the
17 "results and proceeds" of he services on the Project. (Weber Decl. ,7 & Ex. A.) When that 18 tactic also failed, White next vertly threatened (again through her lawyer-friend) in June of 19 2010 to interfere with the rel ase of the documentary, this time directly stating that unless
20 White's demands were met, he would contact the documentary's distributor. (Weber Decl. 21 1 8.) Even in the face of the e heavy-handed extortionate threats, the Production remained
22 unwilling to capitulate to Wh te's baseless and unreasonable demands for more compensation 23 than she was legally entitled 0 receive. Then, in July of 2010-15 months after White walked
.";:
:24 off the Project-White claim d for the very first time that she allegedly had claims against the
.~
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Q5 Production based on an alleg d "hostile work environment." (Weber Decl. 110.) White's
:~6 assertion of this newly fabric ted legal theory (again via her lawyer-friend) came in response to
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27 being warned that White sho ld refrain from interfering with the Project. (Weber Decl. , 10.)
28
K:\4612·3\PLE\Mot To Compel Arb.wpd
1
MOTION TO COMPEL ARBftRATION
1 When White's last-dit h heavy-handed threat of an alleged "hostile work environment" 2 claim failed to extort the co pensation she wanted, White maliciously filed a public lawsuit in 3 violation of her contractual 0 ligation to arbitrate all disputes regarding the Project. (Singer
4 Decl.' 2.) White, with the elp of a lawyer-friend, conjured up salacious but fictional
5 "harassment" claims which e not only time-barred, but which are subject to mandatory
6 arbitration in any event. Ind ed, White's own words belie the claims in her lawsuit, revealing 7 that she had loved working 0 the film Project, enjoyed her personal and professional
8 relationship with Defendant ¢asey Affleck (" Affleck"), and wished him and his family all the 9 best months after she walkedlofthe Project. (Affleck Decl. "6-7 & Exs. D-E.)
10 White gushed in an e~ail in March of 2009, "I am really happy to be a part of this
11 project. 1 do enjoy workin~ with you and 1 think that most of the time, we do it well" 12 (Affleck Decl. , 6 & Ex. D)'l and emailed Affleck a month later in April of 2009 (after she 13 walked off the job) to wish + well, to thank him for the opportunity, and to glowingly
14 express to him, "I am happ to have been a part of it. All the best, Amanda." (Affleck 15 Decl.,. 7 & Ex. E.) White e en emailed Affleck a birthday greeting in August 2009, wishing 16 him "All the best to you an your family." (Affleck Decl. ,. 11 & Ex. H.) Despite all this, 17 White now outrageously aUe es that before she stopped working on the Project back on
18 April 1, 2009, she had suppo edly been subjected to unwanted sexual harassment. However, 19 after leaving the Project, W te even told Affleck that it had been "difficult to walk away." 20 (Affleck Decl. ,7 & Ex. E.) Had she really been subjected to unwarranted and unwelcome 21 harassment, leaving would
22 Throughout her work n the production from late December 200S through April 1 •
. ~3 2009 when she walked away om the Project, White never complained that she had
.=:
.2.4 supposedly been subjected to sexual harassment or offensive conduct. (Affleck Decl. 16.) To
" ,~ ~
125 the contrary. she repeatedly t ld Affleck how happy she was to be part of the Project, and how
:26 much she cared for him prof sionally and personally. (Affleck Decl. " 6-7 & Exs. D-E.)
rj u
27 Nevertheless, White ithheld key documents-including those she herself had signed in
28 connection with her work on e film Project-in an extortionate attempt to use them as
K;\4612-3\PLE\Mot To Compel Arb.wpd
MOTION 'to cOMPEL ARBITRA'llON
2
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1 leverage to negotiate a better "deal" for herself on the Project. (Affleck Decl. " 8-10 & 2 Exs. F-G.)
3 More than 15 months later, White filed this meritless lawsuit in this Court. (Singer 4 Decl. 12.) However, White is bound by an agreement to resolve all disputes regarding the
5 Project solely by arbitration before the American Arbitration Association. In January 2009, I
6 White, on the one hand, and 6efendant Flemmy Productions, LLC ("Flemmy"), on the other I
7 hand, had entered into a Wo.1k-for-Hire/Independent Contractor Agreement (the" Agreement") I
8 related to White's employmert as a contractor on the Project. Pursuant to paragraph 4 of the
9 Agreement, the parties agreed that "[a]II disputes which may arise between the parties •.• 10 will be determined solely b~ arbitration in accordance with the rules of the American
11 Arbitration Association." (iAffleck Dec!. Ex. A 14; Brandenstein Decl. Ex. A 14.)
White filed her comp~aint in this action on July 23,2010 (Singer Decl. 12), despite 13 having agreed to submit all disputes to Arbitration. On July 27, 2010, Affleck and Flemmy
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14 (collectively, "Defendants") requested that White comply with the terms of the Agreement and
15 submit all of her claims pen~g against them to binding arbitration. (Singer Decl. "3, 6 &
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16 Exs. A, C.) White has refusfd, thereby necessitating this Motion. (Singer Decl. 1 7.)
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In keeping with Calif1rnia's strong public policy favoring arbitration, Defendants
18 respectfully request that the Court issue an Order compelling arbitration of all of Plaintiffs
I I I
19 claims against them. Defendants also respectfully request that Plaintiff and her attorneys of
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20 record, jointly and severally, \be required to pay Defendants' attorney's fees and costs incurred
21 in connection with the instan~ Motion, in the amount of $18,825, and for such other and
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22 further relief as the Court mar deem just and appropriate.
23 II. FACTUAL BACKG*OUND
I
12
17
:24 White alleges that in ecember of 2008, she started work on the documentary film
@5 project which was subsequen y titled I'm Still Here: The Lost Year of Joaquin Phoenix (the
r-
J6 "Project"). (Complaint" 2 17.) During the time that she worked on the Project from late
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27 December until she stopped ork on or about April 1, 1009, White never once complained that
28 she had been subjected to un anted sexual harassment. (Affleck Decl. 16,) Nor were any
K;\4612·3\PLE\Mot To Compel Arb.wpd
3
MOTION 'fO COMPEL ARB1'1'RAl'ION
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1 complaints that White had btfn subjected to unwanted sexual harassment voiced by White's
2 agent or lawyers, who were fSO involved in negotiating her "deal." (Brandenstein Decl. 15;
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3 Weber Decl. ~ 9.) To the cof'ntrary, White sent an email to Affleck on March 6, 2009, telling
4 him how much she enjoyed orking with him and how thrilled she was to be part of the
5 Project. She gushed, "I am eally happy to be a part of this project. I do enjoy working
6 with you and I think that 40st of the time, we do it well." She then proceeded to apologize 7 to Affleck for "being short" ~ith him. (Affleck Decl. 4{ 6 & Ex. D.)
8 A month later. on April 6, 2009. White emailed Affleck to wish him well, thank him
9 for the opportunity, and to glowingly express to him: "I am happy to have been a part of it.
10 All the best, Amanda." (A eck Decl. , 7 & Ex. E.) She also expressed her support of the 11 film Project and conveyed g ad wishes to Affleck, telling him, "I wish you well with the
12 project. I do believe in it, , thank you for the opportunity and for whatever endorsements 13 you gave me along the waY.I" (Affleck Decl. 17 & Ex. E.) She warmly noted, "I do care 14 about our relationship, bO~ personal and professional •..• " (Affleck Decl. 17 & Ex. E.)
l
15 White even lamented in her tprH 6, 2009 email that she found it "difficult to walk away"
16 from the Project. (Affleck qecl. 1 7 & Ex. E.) Of course, if White had been subjected to
17 unwelcome harassment as Sh~ now contends, it obviously would not have been at all "difficult
18 to walk away. " \
19 Some four months lat~r, on August 15. 2009, White even emailed birthday greetings to 20 Affleck under the subject lin "Happy Birthday," telling him, "I thought I'd reach out and 21 wish you a happy birthday, ' and wished him "All the best to you and your family .•.• "
K:\4612-3\PLE\Mot To Compel Arb.wpd
22 (Affleck Decl. 111 & Ex. H )
Meanwhile, on Janu~ 12,2009, White met with August J. Brandenstein and David .24 Weber, the lawyers who wert handling some of the legal work in connection with the Project. ~5 (Compl. 121; Brandenstein teel. n 1-2; Weber Decl. "1-2.) White alleges that they
:~6 discussed procedures for obtaining clearances, release forms, deal memos, and other important
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23
27 aspects of the production. ( ompl., 21.) At that January 12, 2009 meeting, they also
28 discussed that all of the crew members-including White as a member of the crew-were
4
MOTION '1'0 cOMPEL ARBITRATION
i
1 required to sign important production documents which would be provided to her, and that it
2 was White's responsibility t10btain signatures on those documents by all the crew members. 3 (Brandenstein Decl. , 2; Weber Decl. , 2.)
4 Two days later, on January 14,2009, Mr. Brandenstein sent White the documents
5 which it was her responsibility to have signed by the people working on the Project.
6 (Brandenstein Decl. , 3 & Ek B; Weber Decl. '2.) Those documents included a Work-for-
7 Hire/Independent Contractor I Agreement containing rights releases, confidentiality terms, and a 8 provision requiring the arbi*tion of all future disputes. (Brandenstein Decl. , 3 & Ex. B;
9 Weber Decl. '2.) Also tr4mitted to White at that time were a Crowd Notice and Release,
10 Location Agreement, and a ~ikeness Release. (Brandenstein Decl. 13 & Ex. B; Weber Decl. II 12.) Those documents wer~ transmitted to White not only because her job responsibilities on 12 the Project required her to o\tain signatures on the documents from everyone else working on 13 the film, but also so that a1l1rew members, including White, would sign the required
14 documents as well. (Brandenstein Decl. ,'2-3; Weber Decl. '2.) White told Affleck that I
15 she had, indeed, signed the dpcuments required by her, which included the Agreement
i
16 containing the arbitration provision, (Affleck Decl. ,5; Weber Decl , 3.)
I
17 Moreover, in responsf to Affleck's request that White and her friends, Devorah and
18 Jeff, each sign the required tnfidentiality agreement. White wrote in a January 17, 2009 email 19 to Affleck: "I already have tgned an NDA and a [D]evorah and [J]eff did last night as
20 well. 1 get it and respect it.\ (Affleck Decl. , 5 & Ex. C.)
21 White alleges that at + meeting with the production' s lawyers in January of 2009. she
22 told them that although she hfd discussed payment terms with Affleck in December of 2008, 23 she now wanted a better dealJ (Compl.r[ 23.) Therefore, as leverage, White held onto the :~4 various executed production ~ocuments, including the Agreement she had signed containing ~5 the arbitration provision. (Se Affleck Decl. " 8-10 & Exs. F-G.) Meanwhile, on or about
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:g6 February 2, 2009, White's a ent, Stephanie Comer of UTA, called Mr. Weber to discuss the
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'27 terms of White's "deal." ( jber Decl. '4.) Mr. Weber had a subsequent conversation with
28 Ms. Comer regarding White'f compensation and other aspects of her "deal" on or about
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K:\4612-3\PLE\Mol To Compel Arb.wpd I
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5
MOTION 'to COMPEL ARBITRA'fION
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e I e
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1 March 19, 2009. (Weber D1cl. 1 4.) On or about April 1, 2009, Mr. Brandenstein also had a
2 discussion with Ms. Comer +garding White's compensation. (Brandenstein Decl. 14.) And 3 Mr. Weber had another con+rsation with Ms. Comer on April 2, 2009, during which Ms.
4 Comer told Mr. Weber that rhite wanted to resume working on the Project. (Weber Decl.
5 15.) Mr. Weber continued (0 discuss with Ms. Comer the terms of White's engagement on
I
6 the Project through mid-September 2009, and on October 8, 2009, White's then-attorney, Erin
i
7 McPherson, sent a letter to ~r. Weber stating that negotiations were being terminated.
8 (Weber Decl. 16.) \
9 Several months later .IMr. Weber received a letter, dated March 23, 2010, from
10 White's new attorney, Brian rrocel. (Weber Decl. 17 & Ex. A.) In that letter, Mr. Proce1
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11 attempted to resume negotiations on behalf of White, and he implicitly threatened to interfere
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12 with the release of the film br claiming on White's behalf that she supposedly owned the
!
13 "results and proceeds" of he; services on the Project. (Weber Decl. 17 & Ex. A.) Mr.
14 Procel sent Mr. Weber a sub equent letter on June 29,2010, again threatening to interfere
15 with the release of the doc entary, but in this letter Mr. Procel directly stated that unless his 16 client's financial demands w9re met, he intended to contact the documentary's distributor.
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17 (Weber Decl. '8.) And, on lor about July 7,2010, Mr. Weber received another letter from
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18 Mr. Procel, dated July 2, 20~0, in which Mr. Procel raised the issue for the very first time that
19 White allegedly had claims b~sed on an alleged "hostile work environment." (Weber Decl.
20 1 10.) Mr. Procel sent his J~y 2, 2010 letter in response to a letter which had been sent to
21 him by counsel to Flemmy, ihiCh had cautioned Mr. Procel and his client to refrain from
22 interfering with the Project a, he had repeatedly threatened. (Weber Decl. 1 10.)
23 At no time during anJ of the communications between representatives for Defendants,
~6 (Brandenstein Decl. 1 5; We~er Decl. 1 9.)
147 AU of the claims asse~ed in White's Complaint arise out of her employment with
28 Flemmy as a contractor and te Agreement she signed in connection with that employment.
K",.12-3\PLE,M", To Compo) Arb.wpd I 6 MOTION TO cOMPEL ARBTIRATION
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t4 on the one hand, and represe tatives of White, on the other hand, did anyone representing
Q5 White state that she had been subjected to unwanted and unwelcome sexual harassment.
I
I
1 Under the Agreement's plainiterms, White's claims against Defendants must be submitted I
2 solely to binding arbitration. I (Affleck Decl. Ex. A 14; Brandenstein Dec!. Ex. A 14.) The
I
3 Agreement mandates that "[a~ll disputes which may arise between the parties ... will be
4 determined solely by arbitration in accordance with the riles of the American Arbitration
5 Association." (Affleck Decil Ex. A 14; Brandenstein Decl. Ex. A. 14.) The Agreement i
6 further provides: "In the eve,t of a dispute, the aggrieved party shall serve upon the other
!
7 party a notice in writing reqting arbitration and designating the first arbitrator." (Affleck
8 Decl. Ex. A 1 4; Brandensteia Decl. Ex. A 14.) White ignored these requirements, and filed i
9 her Complaint in this action 9n July 23, 20ID. (Singer Decl. 12.)
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10 Defendants requested lthat White comply with her Agreement to arbitrate, and agree to
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11 resolve her claims via arbitrapon. (Singer Decl. 113-6 & Exs. A-C.) She has not done so.
12 (Singer Decl. 17.) I
13 III. ARGUMENT
14
A.
The Court Sh uld Enforce the Contractual Arbitration Provision Contained
in the Parties' Agreement I
Calif0i}nia Has a Strone Public Policy in Favor of Arbitration
I
Code of Civil Procedure provides in relevant part that "the court shall order the
18 petitioner and the respondent Ito arbitrate the controversy if it determines that an agreement to 19 arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration 20 has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. " 21 Cal. Civ. Proc. Code § 1281b (emphasis added). "A written agreement to submit to
I
22 arbitration an existing contr0rersy or a controversy thereafter arising is valid, enforceable and
,~3 irrevocable, save upon such ~rounds as exist for the revocation of any contract." Id. § 1281; ;~4 Wagner Constr. Co. v. Pac. Mech. Corp., 41 Cal. 4th 19,25-26,58 Cal. Rptr. 3d 434,
i
Q5 437-38 (2007). I
~6 California law recognFes a "strong public policy in favor of arbitration as a speedy and
27 relatively inexpensive meansf' f dispute resolution." Wagner, 41 Cal. 4th at 25,58 Cal. Rptr. 28 3d at 438 (citations and inter al quotations omitted). Courts "will indulge every intendment to
K:\4612-3\PLE\Mot To Compel Arb.wpd \
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15
16
1.
17
7
MOTION 'f0 cOMPEL ARBrfRATION
4
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i
1 give effect to [arbitration] proceedings" and are to construe arbitration agreements liberally.
I
2 Moncharsh v. Heily & Btase s 3 Cal. 4th 1, 9, 10 Cal. Rptr. 2d 183, 186 (1992) (citations and
I
3 internal quotations omitted); see also lui v. Mesquite Country Club, 186 CaL App.3 d 1309, i
1315,231 Cal. Rptr. 315, 31~ (4th Dist. 1986) ("Arbitration is a favored method of dispute
5 resolution and agreements to ~rbitrate disputes are liberally interpreted. "). "When the parties
I
6 to an arbitrable controversy 1ave agreed in writing to arbitrate it and one has refused, the
7 court, under section 1281.2, Pzust ordinarily grant a petition to compel arbitration." Wagner, 8 41 Cal. 4th at 26, 58 Cal. R~tr. 3d at 438 (emphasis added); see also Pac. Inv. Co. v.
I
9 Townsend, 58 Cal. App. 3d ~, 9, 129 Cal. Rptr. 489, 493 (2d Dist. 1976) (Arbitration
i
10 agreements should be upheld i"unleSS it can be said with assurance that the arbitration clause is
11 not susceptible of an interpret' tion that covers the asserted dispute."). Even in cases unlike
12 this one where there is doubt las to whether a dispute is subject to arbitration, California courts 13 have held that "doubts conce~ning the scope of arbitrable issues are to be resolved in favor of
i
14 arbitration." See, e.g., Ericl4sen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak I
15 St., 35 Cal. 3d 312, 323, 19~ Cal. Rptr. 581, 587 (1983) (analyzing arbitration agreement
I
16 under federal law). Thus, eVfn if arguendo there were any doubt that White's claims came
17 within the scope of the Agreement to arbitrate, such doubts would be resolved in favor of
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18 compelling arbitration.
19 2.
On January 12, 2009, White met with Messrs. Brandenstein and Weber of Sloane, 21 Offer, Weber and Dern, LL1 the law firm representing Defendants in connection with the 22 Project. (Compl. ~ 21; Brandenstein Decl. " 1-2; Weber Decl. "1-2.) During the
23 meeting, Messrs. Weber and ~randenstein discussed with White that it would be her
~4 responsibility as a producer + the Project to obtain the necessary signed agreements from ~5 individuals who either would (be appearing on film andlor working on the Project. (Compl. +6 121; Brandenstein Decl. ~ 2~ Weber Decl. ~ 2.) When they met on January 12, 2009,
~7 Messrs. Brandenstein and W~ber made it clear to White that, as a crew member, she needed to 28 sign the documents as well. JBrandenstein Decl. 12; Weber Decl. 12.) Among those
\
K:I4612·3IPLEIMot To Compel Arb.wpd I
20
8
MOTION TO cOMPEL ARBITRATION
i i i
1 documents was the Agreement that contained confidentiality provisions (see Affleck Decl. Ex.
2 A 15; Brandenstein Decl. Et. A , 5) and a binding arbitration clause (see Affleck Decl. Ex. A 3 , 4; Brandenstein Decl. Ex. ~ , 4). White agreed to accept that responsibility, and she further 4 agreed to execute an Agreeint containing the confidentiality and arbitration provisions.
5 (Brandenstein Decl. '2; wefer Decl. , 2.)
6 On January 14,2009) Mr. Brandenstein sent White copies of the form agreements
I
I
7 containing the important confidentiality provision and binding arbitration clause that she would
8 execute and have others execute prior to their involvement with the Project. (Brandenstein
9 Decl. 13 & Ex. B; Weber White later told Affleck that she had signed the
10 Agreement. (Affleck Decl. 5; Weber Decl. '3.) Moreover, in response to Affleck's request 11 that White and her friends. evorah and Jeff. each sign the required confidentiality agreement, I
12 White wrote in a January 17.j 2009 email to Affleck: "1 already have signed an NDA and a
13 [D]evorah and [J]eff did last ~ght as well. I get it and respect it. ,. (Affleck Decl. 1 5 &
I
14 Ex. C.) i
!
15 Because a copy of the\ Agreement signed by White has not yet been located, she may try
16 to argue that she never signe~ the Agreement. However, her physical signature on the
I
17 Agreement itself is not-and pever has been-legally required in order to form a valid and
i
18 enforceable contract. First, ~er admission that she signed the Agreement is alone sufficient to
19 prove the existence of the coitract. See Application of G. W. McNear, Inc., 90 Cal. App. 2d 20 662, 666, 203 P.2d 550 (4th Ioist. 1949) (finding existence of contract based on a party's
I
21 admission that the contract wrs executed). Second, all that is required under California law to
22 form a contract is evidence ot mutual consent-i.e., a proposal or offer by one party and an
23 acceptance by the other. SeelCal. Civ. Code. § 1565 ("The consent of the parties to a contract
,., ~
fl5 ("Consent is deemed to be fu ly communicated between the parties as soon as the party
; I
:i6 accepting a proposal has put his acceptance in the course of transmission to the
fJ7 proposer.. .. "). I
1 i
K,14612-'IPLEIM. T. C""",, Arb.wpd I
~/
24 must be: 1. Free; 2. Mutual; and, 3. Communicated by each to the other."); id. § 1583
28 / / /
9
MOTION TO COMPEL ARBn'RA'flON
1
I I i
Here, White told Af1eck that she had signed the Agreement (Affleck Decl. ~ 5; Weber
2 Decl. ~ 3.) In addition, White's January 17, 2009 written acknowledgment in her email to
3 Affleck that she "already ha[~] signed" the non-disclosure agreement (Affleck Decl. , 5 &
4 Ex. C). is sufficient to prove'that she. in fact. had done so. See Tuso v. Green. 194 Cal. 574. 5 580-81,229 P. 327 (1924) (t A contract between two parties is created by a proposal or offer 6 by one of the parties and an ,cceptance thereof by the other."). Finally. White's January 17,
7 2009 email to Affleck includ s her typed signature (see Affleck Decl. Ex. C), and thus
8 qualifies as a writing signed y her. See Cal. Civ. Code § 1633.7(b) (" A contract may not be 9 denied legal effect or enforc ability solely because an electronic record was used in its
10 formation."). Accordingly, or all of these reasons, White cannot in good faith dispute that I
11 she signed the Agreement. i
i
Pursuant to paragrap~ 4 of the Agreement, "[ a] 11 disputes which may arise between the
13 parties under or with respect Ito this Agreement will be determined solely by arbitration in
14 accordance with the rules of ~e American Arbitration Association pursuant to the procedures I
\
15 hereinafter set forth." (Affleck Decl. Ex. A ,4; Brandenstein Decl. Ex. A '4.) Here, all of !
,
16 the claims asserted in White'~ Complaint arise out of her employment with Flemmy as a I
I
17 contractor and the Agreemen~ she signed in connection with that employment. Under the plain
18 terms of the Agreement. Wh~e's claims against Defendants must be submitted to binding
I
19 arbitration. (Affleck Decl. ~x. A ~ 4; Brandenstein Decl. Ex. A 14.) The Agreement
20 provides: "In the event of a dispute, the aggrieved party shall serve upon the other party a I
21 notice in writing requiring arbitration and designating the first arbitrator." (Affleck Decl.
i
22 Ex. A 14; Brandenstein DecJ. Ex. A ~ 4.) White failed to adhere to this requirement, and on
.. ~ July 23.2010 she filed her +mplaint in this action. (Singer Deel. '2.)
,Z4 On July 27. 2010, Defendants requested that White dismiss her Complaint and submit
f~5 all of her claims against Def~ndants to binding arbitration pursuant to paragraph 4 of the
'~6 parties' Agreement. (Singer bed. ~ 3 & Ex. A.) On July 27, 2010, White's counsel
U I
27 requested that Defendants' c9unsel provide him with copies of the agreements to which
28 Defendants' counsel referredjin its July 27,2010 letter. (Singer Decl. , 5 & Ex. B.)
I
K;\4612·3\PLE\Mot To Compel Arb.wpd I
12
10
MUnON To COMPEL ARBITRATION
1 Defendants' counsel replied ~n July 27, 2010 and sent White's attorney a copy of White's 2 January 17, 2009 email to A{fleck in which White acknowledged that she signed the
i
3 agreements in question. (Sioger Decl. 16 & Ex. C.) Defendants' counsel instructed White's
I
4 attorney to obtain copies of the agreements directly from his client. (Singer Decl. , 6 &
5 Ex. C.) Prior to filing this ~Otion, Defendants' counsel received no further communication 6 from White's attorney. (Singer Decl. , 7.) White's refusal to abide by the terms of the
!
7 parties' Agreement governin* " [a] 11 disputes which may arise between the parties" (Affleck
8 Decl. Ex. A , 4; Brandenstein Decl. Ex. A 14) has necessitated this motion. !
Defendants Are Entitled to an Award of Attorney's Fees and Costs
\
The prevailing party to a motion to compel arbitration brought pursuant to an !
11 arbitration provision in an agreement containing an attorney fee provision is entitled to recover 1
12 its attorney's fees and costs ~sociated with a successful motion to compel arbitration.
I
13 Acosta v. Kerrigan, 150 Cal.IApp. 4th 1124,1132,58 Cal. Rptr. 3d 865, 871-72 (2d Dist.
I
14 2007). The Court may awar1 an interim fee award upon granting the motion to compel
15 arbitration and prior to resolution of the resulting arbitration. [d. at 1132-33, 58 Cal. Rptr. 3d I
16 at 872. I
17 Here, paragraph 4 of fhe parties' Agreement provides, in pertinent part, that the
I
18 "arbitration shall be held in 10S Angeles. California and the cost thereof. including reasonable
I
19 attorney's fees, shall be borne by the party which does not prevail therein." (Affleck Decl.
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20 Ex. A ,4; Brandenstein Decf. Ex. A '4.) Moreover, Defendants have demanded that White
21 submit her claims to arbitrati~n, but she has not done so. (Singer Decl. " 3-7 & Ex. A-C.) 22 Defense counsel informed ~te's attorney that ifWbite refused to dismiss her Complaint
I
23 voluntarily, then Defendants would be forced to bring this Motion to Compel Arbitration and
~4 would seek an award of attorhey's fees and costs incurred in bringing such a motion. (Singer ~5 Decl." 4, 6 & Exs A, C.) ~hite has nevertheless attempted to litigate this matter in court in
i I
complete disregard of her ob~igations to arbitrate all disputes pursuant to the parties' I
(Singer Decl. 1 f; Affleck Dec!. Ex. A 14; Brandenstein Decl. Ex. A 14.)
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1
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K:\4612·3\PLE\Mot To Compel Arb.wpd I
9
B.
10
~6
," ~
f,' ~
~" r
27 Agreement.
28 III
11
MOTION TO COMPEL ARBITRATION
8
•
K:\4612-3\PLE\MOl To Compel Arb.wpd
LAVELY & SINGER
PROFESSIONAL CORPORATION MARTIN D. SINGER LYNDA B. GOLD A
AND~B.B T
By:/11
--~A~RrnmINunH.~SIffd~~------
Attorneys for Defendants
CASEY AFFLECK and FLEMMY PRODUCTIONS, INC.
I
As set forth in Mr. Srger's Declaration, Lynda B. Goldman, Esq. has spent in excess
2 of twelve (12) hours prepari~g this Motion, Andrew B. Brettler, Esq. has spent in excess of
I
3 sixteen (16) hours preparing this Motion, and Mr. Singer has spent in excess of two (2) hours
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4 preparing this Motion. (Sin~er Decl. ~ 8.) Defendants' counsel anticipates that Ms. Goldman
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5 will spend an additional three (3) hours preparing the reply to Plaintiffs opposition to this \
6 Motion, Mr. Brettler will spend an additional eight (8) hours preparing the reply, and Mr.
I
7 Singer will spend an additional two (2) attending the hearing on this Motion.
1
!
Mr. Singer's hourly rfte is $750, Ms. Goldman's hourly rate is $525, and Mr.
9 Brettler's hourly rate is $300~ Accordingly, should Defendants prevail on their Motion to
10 Compel Arbitration, they res~tfullY request that the Court issue an interim fee award in their 11 favor and against Plaintiff an~ her attorney of record, jointly and severally, in the amount of
I
12 $18,075, plus Defendants' f~st appearance fees totaling $710 and the $40 filing fee for this
13 Motion, for a total award of $181825.
I !
For the foregoing reatons, Defendants respectfully request that the Court issue an
16 Order compelling arbitration lof all of Plaintiff's claims against them, and requiring Plaintiff
I
17 and her attorney of record, j~int1y and severally, to pay Defendants' attorney's fees and costs
t
18 in the amount of $18,825, anr for such other and further relief as the Court may deem just and
I
14 IV.
CONCLUSION
15
19 appropriate.
20
21 DATE: July 28, 2010 22
23
,
,24
."' ~
12
MOTION 'fO COMPEL ARBffRA'fION
1 2
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DECLARATION OF CASEY AFFLECK
I, CASEY AFFLECJ, declare:
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3 1. I am a party t~ the action entitled Amanda White v. Casey Affleck, et al., Los
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4 Angeles Superior Court, Casf No. BC 442321. The facts set forth herein are of my own
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5 personal knowledge, and if c~lled and sworn as a witness I could and would competently
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6 testify thereto. This Declaration is submitted in support of the Motion to Compel Arbitration I
7 filed on my behalf and on behalf of Defendant Flemmy Productions, LLC ("Flemmy I
8 Productions").
9 2. I am the direc~or of a documentary film about the life of Joaquin Phoenix, titled
,
10 I'm Still Here: The Lost YeG1{~ of Joaquin Phoenix (the "Project"). In late December 2008,
11 Plaintiff Amanda White was ri~ed as a contr~tor by FJemmy Productions to produce aspects 12 of the Project. Her Job duties included obtaining the SIgnatures from people working on the
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13 Project on various production documents, including releases, confidentiality agreements and
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14 agreements including arbitra~ion provisions.
i
In connection with Ms. White's hire, she was required to enter into a Work-for!
16 Hire/Independent Contracrorjagreement (the "Agreement"), whereby she agreed to arbitrate
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17 all disputes involving her employment as a contractor and agreed to abide by the terms of the
18 confidentiality clause contain,bd therein. In mid-January, 2009, Ms. White told me that she
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19 had signed that Agreement. ~ true and correct copy of the Agreement is attached hereto as
!
20 Exhibit A and incorporated "*' reference herein.
4. On January d, 2009, I sent an email to Ms. White requesting that she and her
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22 friends, Devorah and Jeff, si~n an Agreement containing the confidentiality provisions. A true
1
2,3 and correct copy of my email, dated January 17, 2009 is attached hereto as Exhibit B and
·.~4 incorporated by reference he~ein.
~i5 5. Later on Janu4rY 17, 2009, Ms. White responded to my email and indicated that g6 she "already ha[s) signed an fmA and [D)evorah and [J)eff did last night as well.' Her email 27 continued: "I get it and respect it." A true and correct copy of Ms. White's email that I
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28 received on January 17, 200Q is attached hereto as Exhibit C and incorporated by reference
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K:\4612-3\PLE\Affleck Decl in Supp of Mot to~ompel Arb.wpd
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15
3.
21
1
MOTION TO COMPEL ARBITRATION
16 Exhibit D and incorporated ~y reference herein.
17 7. Ms. White cottinued to email me after she walked away from the Project in
18 early April 2009. In an Apr~l 6, 2009 email, she wrote, "its difficult to walk away," and 19 indicated that she felt "a sen~e of responsibility about seeing the [P]roject thru." Her email
I
20 continued: "I do care about Our relationship, both personal and professional .... I wish you I
21 well with the [P]roject. 1 dolbelieve in it, I thank you for the opportunity and for whatever
1 herein. Although Ms. White told me that the documents had been signed, and although she I
2 obtained signatures on vario~s production documents as part of her job, while working on the I
3 Project, she held onto these documents and did not provide them to me or others working on I
4 the Project. I
I
5 6. Ms. White alleges in her lawsuit that she was subject to unwanted and
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6 unwelcome sexual harassment, claims which are completely fabricated. Ms. White repeatedly
7 expressed to me that she wasl very happy to be part of the Project. Throughout her work on
8 the Project from late December 2008 through early April 2009, when she walked away from
I
9 the Project, Ms. White nevei complained that she had supposedly been subjected to sexual I
10 harassment or offensive conduct, To the contrary, she repeatedly told me verbally and by
11 email how happy she was to ~e part of the Project and how much she valued our professional I
12 relationship as well as our frtendshiP. In one March 6, 2009 email from Ms. White to me she
13 wrote: "I am really happy tolbe a part of this project. I do enjoy working with you and I think I
14 that most of the time, we do ~t well. I'm sorry for being short with you .... " A true and
15 correct copy of Ms. White's ~mail that I received on March 6, 2009 is attached hereto as
I
22 endorsements you gave me a}ong the way. I am happy to have been a part of it. All the best, .. ~3 Amanda." A true and COff1 copy of Ms. White', email that I received on April 6, 2009 is ~l4 attached hereto as Exhibit E and incorporated by reference herein.
i:;~5 8. After Ms. Wh~te stopped working on the Project in early April 2009, I asked
I
I
her to return the executed prtduction documents that she had withheld. On April 12, 2009, I
sent an email to Ms. White i~dicating that 1 was "still waiting for the production documents," I
28 and inquired whether I coulrf "send someone to get them" because "the documents do not
i
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K:14612-3IPLEIAffleck Dec! in Supp of MOl lolcompel Arb.wpd 1
I
L~ 27
2
MoTION To COMPEL ARBITRATION
1
1
3
4
5
6
7
8
9
10
11
12
13
14
15
H,
17
18
19
20
21
22
23
24
.. ,= 25
26
,
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; 2-7
28 I
belong to [her]." I even otfered Ms. White the option of delivering the production documents I
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to one of my attorneys. David Weber. A true and correct. copy of my email, dated April. 12~
I
2009 is attached hereto as Exhibit F and. incorporated by reference herein.
I
9. Ms. White rFPondcd to my April 12, 2009 email and indicated that she
intended to "keep [the doc~ellts] until [her] deal is done." She wrote: ... I would prefer to i
hold them in trust until we lean get the matter of my deal resolved." See Ex. F. Based on Ms.
White's response to me on iAprU12, 2009, I believed that she was attempting to use the
I
documents as '3 bargaining FIDP to negotiate her "deal" in an attempt to return to working on
,
:
the Project.
, i
10. I then email¥- Ms. White on April 13.2009 and explained that "1 need the
signed releases and confideptiality agreements" as well as the "blank forms ernailed [0 me." A true and correct copy ofm~ email, dared April 13. 2009 is attached hereto as Exhibit G and
I
incorporated by reference h~rein. Although Ms. White told me verbally and in writing that she
[
signed the Agreement, she ~id not forward the executed Agreement to me. I
On August rs, 2009, Ms. White sent me another email with the subject .. Happy I
I .
Birthday." In that messager she wrote, "I thought I'd reach OUt and, wisb you a happy
birthday," and closed with r AU the best to you and your family. Amanda." My birthday is not August 15t and I did not respond to Ms. White's message. A true and correct copy of Ms. White's email that I receiv4 on August 15, 2009 is attached hereto as Exhibit Hand incorporated by reference bfrein.
I declare under pena~ty of perjury under the laws of the State of California that the foregoing lS true and corred..
I
Executed this ;Jfth ~ay of July, 2010, in '=rL\A. 'I/l:> • Massachusetts.
I
/l~~.~-~
~~ C .. __
C EY A ·CK
,---
11.
3
troTlol'f1U COMPa AkmTRi\"11,j'f,r- ---
WORK-FOR-IDREmJpEPENDENT CONTRACTOR AGREEMENT
i
,
This Agreement is made as of between Flemmy Productions, LLC (hereinafter
"Company") and ' (hereinafter referred to as "Contractor"). In consideration of
Contractor's engagement and other go01 and valuable consideration, the adequacy, sufficiency and receipt of which is hereby acknowledged, Company and Contractor hereby agree as follows:
I
1. Company hereby ~gages Contractor to render certain services as a
_ which jay include, without limitation, furnishing ideas, concepts, services
and materials for the project currentl1 entitled "Untitled Joaquin Phoenix Documentary" ("Picture"). Contractor acknowledges that this engagrment is that of an independent contractor and Company will not be responsible to Contractor or anyone en~ged by Contractor for any money or materials whatsoever except as specifically set forth herein. Contractor understands and agrees that this Picture is a non-guild production and there will be no residual or any other type of payment due in connection therewith. Nothing contained herein will be so c01strued as to constitute Contractor and Company as joint venturers, partners or agents, nor will any similar elationship be deemed to exist between Contractor and Company. Company will not be held responsible or! liable to Contractor or to any third person for any expense incurred by Contractor unless specifically agreed to by Company in writing, nor will Company be held responsible or liable to Contractor or to a third person for or on account of any of Contractor's employees or agents. Company shall have no responsibility tolContractor for pension, health and welfare benefits, social security, unemployment, workers' compensation ~nd state disability insurance, and like matters. Contractor shall be solely responsible for all such matters; "\'ithholding taxes, and other customarily withheld sums from wages (collectively "Withholdings"). Contractor will indemnify and hold Company harmless from and against any and all liability, damages, costs and e~penses, including reasonable attorneys' fees, arising out of (i) Contractor's failure to pay any Withholdings and/or (ii) Company's treatment of Contractor hereunder as an independent contractor, including, without limitation, Contractor's failure to pay any Withholdings in
connection with this engagement. i
, '.
2. For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Company shall be the sole and exclusive owner throughout the universe in perpetuity of all of the results and proceeds of Contr~ctor's services, work and labor hereunder in connection with Contractor's engagement by Company (hollectively "Results"), including without limitation all intellectual property which Contractor may develop, create, write or otherwise produce during any period wherein services are rendered hereunder, free and clear of any and all claims, liens or encumbrances, and Company shall be free to exploit all of the Results in perpetuity in any and all media and by any and all means (whether now known or hereafter deviSi) without any obligations whatsoever to Contractor. All Results shall be deemed to be a ''work-made-for ire" for Company within the meaning of the copyright laws of the United States and Company shall be emed to be the sole author thereof in all territories and for all purposes. Contractor understands that al intellectual property submitted to Company for its review shall be deemed a "work-made-for-hire" consisteht with this Paragraph. In the event any Results are determined not to b .. e "works made-for-hire", in cons1' eration of Contractor's engagement, Contractor exclusively and irrevocably assigns to Company, in pe etuity, all rights (including without limitation all copyrights and renewals and extensions thereof) in and to such Results and Company's rights to such Results shall be the s~e as its rights as described above in . onnection with the "works made-for-hire" Results. Additionally, the, parties acknowledge that this lette agreement constitutes a waiver by Contractor and Contractor h~by releases and absolutely and fore er discharges Company, its successors, licensees and assigns and it~por their shareholders, directors, offi ers, employees and attorneys from any and an proceedings and causes of action of whatever kind or na e, whether now known or unknown, suspected or unsuspected, wW-ch Contractor now owns or holds, 0 at any time has heretofore owned or he1d against Company with re~~ect to any matter referred to herein, or with respect to any other claim of ownership or matter of any
I
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AJICLlENTriLESIJOAQUlNPIiOENIX/DOCU I r/ A
Work For Hire Independent Contractor Agreeement I 0--
i I
type whatsoever related thereto and/or ~n any way related to the subject matter of this agreement andlor the Results and, except for such righiS and obligations as may be created by this letter agreement, Contractor having been advised of the ffect of such provisions by its own counsel, specifically, waives the provisions of Section 1542 of the ivil Code of the State of California (and the provisions of any statute or law of any other jurisdiction kvhich are similar in substance or effect to the provisions of said Section 1542), which Code Section re~s as follows: "A general release does not extend to claims which the creditor does not know or suspect t exist in his favor at the time of executing the release, which, if known by him, must have materially a cted his settlement with the debtor."
3. Company shall have th~right (but not the obligation) to use Contractor's name, biography,
and likeness in connection with its bus' ess, including in advertising and promotion of the Picture, as well as any "behind-the-scenes" and/or "rna ' g-of" type productions and may grant this right to others, but not
for use as a direct endorsement. I
4. All disputes which may\arise between the parties under or with respect to this Agreement
will be determined solely by arbitration in accordance with the rules of the American Arbitration Association pursuant to the procedures hereinafter set forth. In the event of a dispute, the aggrieved party shall serve upon the other party a nftice in writing requiring arbitration and designating the first arbitrator. Within ten (10) business d;ts thereafter the other party shall designate a second arbitrator by notice in writing duly given to the ag eved party. The two arbitrators thus chosen shall appoint a third arbitrator within five (5) business days ereafter. If the third arbitrator is not appointed within such five (5) business day period, then either P~I may secure the appointment of a third arbitrator by application to the American Arbitration Associati n. When appointed, the three arbitrators shall determine the controversy by majority vote, except t t if only one arbitrator has been appointed by the end of the first ten (10) day period mentioned above, t en the first arbitrator shall be the sole arbitrator, The arbitration shall be held in Los Angeles, California land the cost thereof, including reasonable attorneys I fees, shall be borne by the party which does not prevail therein. Such determination by the arbitrators or by the sole arbitrator, whatever the case may be, s~all be fmal, binding and conclusive upon the Parties hereto and shall be rendered in such form that it may be judicially confirmed under the laws of the State of
California. !
,
! I
5. Contractor understands that it is an essential term of this engagement that the
Confidential Information (defmed belot) be maintained in the strictest confidence and that Contractor does not duplicate, disclose, report, reveal, assign, sell or transfer, either directly or indirectly, any Confidential Information without Company's prior consent. "Confidential Information" shall mean any information or material proprietary to qompany and! or related to the Picture or not known generally to the public which Contractor may obtain knowledge of or access to including without limitation any and a11 such information relating to any screenplay, budget, schedule, plans, drawings, designs, specifications, ideas, concepts, models, costumes, techniques, cast members or special effects for the Picture or other creative, business and/or physical production elements relating to the Picture and/or Company including, without limitation, its business, executives, officers, directors and financial information. Contractor expressly acknowledges that in the ev nt of a breach by Contractor of any terms hereof relating to Confidential Information, Company '11 be caused irreparable injury which cannot be adequately compensated by money damages, Ac 'ordingly, Company shall be entitled to seek equitable andlor injunctive relief, in addition to any other ights or remedies which Company may have, to enforce the terms of:lbis Agreement as they relate to Can dential Information. In the event Company is required to enforce thblterms of this Agreement, Compan)j shall be entitled to reimbursement of all legal fees, costs and expenses incident to such enforcement. i
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(
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AJ/CLlENTFILES/JOAQUINPHOENlx/DOCU I
Work For Hire Independent Contractor Agreeement I,
I !
I
2
i
6. Contractor hereby represents and warrants to Company as follows: (a) Contractor is free to
enter into this Agreement and to grant the rights granted herein to Company; (b) Contractor has not made and will not make any commitment, an has not done and will not do any act which is inconsistent with or in conflict with this Agreement or an of the rights granted or to be granted to Company hereunder; (c) all of the results and proceeds of Con actor's services hereunder are and shall be wholly original with Contractor (except to the extent that sai results and proceeds are in the public domain or are supplied to Contractor by Company); (d) the result and proceeds of Contractor's services will not violate or infringe upon any copyright, or any right of an kind or nature whatsoever of any third party including, without limitation, any right of privacy or publ' city; and (e) Contractor has neither exercised nor authorized or permitted others to exercise any of the ghts granted or to be granted to Company hereunder, and will not do so.
7. Contractor hereby agre~s to defend, indemnify, save and hold harmless Company, its
successors, assigns, licensees, represe;~tives and agents from and against any and all claims, demands, causes of action, costs, expenses, losses damages, judgments and reasonable attorneys' fees arising out of or resulting from any breach by Con ctor of any covenants, agreements, representations or warranties
made by Contractor herein. :
I
8. Any remedies which Clintractor may have against Company hereunder and in connection
with the Picture and the Results, shall, e limited to the right to recover damages, if any, in an action at law, and Contractor hereby waives y right or remedy in equity, including any right to rescind Company's right and interest in and Ito the Results and the Picture and to enjoin or restrain the distribution, exploitation or exhibition] of the Picture, including any advertising or publicity relating
thereto. I
9. Contractor hereby represents and warrants that it maintains adequate General Liability,
Worker's Compensation and Errors andlOmissions insurance coverage and that it shall cause Company to be named as an additional insured on eafh and every one of such insurance policies.
(
10. Company may assign al~ or any rights in and to this Agreement to any person, firm or entity.
11. This agreement constiJtes the full and complete understanding and agreement of the parties with respect to the subject mattet hereof and supersedes any prior understandings and agreements, whether oral or written. This is an integrated agreement. This agreement cannot be modified, changed or terminated orally but only by way of a ,tten agreement duly authorized and signed by all parties hereto.
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3
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AJfCLIENTFILESfJOAQUINPHOENIXfDOCU Work For Hire Independent Contractor Agreeement
12. This agreement shall bel interpreted and enforced in accordance with the law ofthe State of
California. If any portion of this agreement is found to be illegal or unenforceable, such action shall not affect the validity or enforceability for tif remaining paragraphs or subparagraphs of this agreement.
Please sign below to indicate ac1eptance.
I
I
i
FLEMMY PRODUCTIONS, LLC
Signature
By: __
Its:
----------------------------
ACCEPTED AND AGREED:
Social Security Number: __
Print Name
Address
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4
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... r
[~
AJ/CLIENTFILES/JOAQUINPHOENIXIDOCU Work For Hire Independent Contractor Agreeement
•
From: John Merrick
To: Amanda White ! Sent: SatJan 1717:25:162009 i SUbject: Re: So i
REDACTED
i
Now I know that it got late a~d everyone had worked REALLY hard aU day and we were all·tired and had a ~ drinks so I understand hOw you might have let Slip some infonnation. But ~ere reaDy isnt any way anything could have gone differently_ . So since that har' pened, and if H happens ~gain. lets just ~I it .what it is,,: acknowledge the fuck up take care of it (ae make sure that the information iJoesnt go beyond those it ~s leaked to) and move 00. Jeff and your friend should sign a non-disdosu"r agreement
c
.,
"
REDACTED
,
. i
From:·"Amanda White" < R~b>
·Oate: January 17,2009 6:17f28 PM PST
To: < ~&bJ\~> .' .
·Subject: Re: So I
Hey, I am totally fme. • .and I agree ~ everything you've $<lid here .• J already have signed an NDA and devorah and jeff aad las; right as well. f get it and respect it
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REDACTED
i
From: "Amanda White" < Re:l)~~> Date: March 6, 2009A:43:18 PM PST
To: < (6'tIAt..-rEr> > I
Subject: Re: Reminder
I agree, we are all working hard. I am fine and yes it will all work out as needed.DOI would feel better if we could work out my deal o~ the project. My agent has called many times and is not getting called back byWeber.ODYOu said yourself Grutman is a putz and he told me that the Lear was the bigger plane. I am not s~re how I am supposed to know if he is lying. But whatever, moving on.DOI know you are doing a, much or more than everyone else and I both respect and appreciate it. 00\ am really happy to ,e a part of this project. I do enjoy working with you and I think that most of the time, we do it w+". DOl'm sorry for being short with you, its only from being
over taxed today.ODAmanda i
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From: "Amanda White" (RE'D~ '>
Date: April 6, 2009 12:46:00 PM PDT
To: < ~ Er>Ac:fEt) > :
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So, it seems as though we're at an impasse. It makes me sad of course because like anyone
who works hard at something that is ihcomplete. its difficult to walk away whether that is one's choice, or in this case, not.OOI have ~ought a great deal about our conversation and think that for both of us, emotion got in the way lof business. I heard aU that you said to me and I understand why you felt betrayed. I ~m sorry that I made you feel that way, it was never my intention. I feel that you took advanta~e of my generous nature for a long time, and it seemed that you would continue to do so for 3f.1ong as I allowed it. ! had no choice but to become serious about this aspect of Ulings an~ to put my foot down. Continuing to be generous with you had proven ineffective. I do ftael that ou forced my hand.OoThat said, I am sorry that things got so heated. I think you and I are som what similar in our tendency to get overly emotional in these kinds of situations.! am also s rry that we upset what I thought (at least on same level)
was a friendship. 001 am unable to rk with people who don't respect me. I work too hard and
take care of people too well to be tre ed poorly. Your unwillingness to move on my deal
showed me a fundamental disrespect that was oft confirmed by the ways you would speak to me and treat me. Your idea of "ribbing" i~ hurtful and unnecessary. It less humor and more a way to disarm and attempt to overpower oth rs. ! am uniquely sensitive to people who push past my boundaries and unfortunately for both of us, when this happens, I push back. I know that me standing strong in the face of your att~mpt at dominance was maddening for you as evidenced by this situation. I wish you could under~tand why treating the people who work hard for you well, is important, and how treating people w,1I creates both hard work and dedication amongst the ranks, but it seems like you and I havr differing philosophies on this maUer.OOlf that can change and we can put a deal in place, , am ~appy to finish things out. I arn concerned about the amount of work that lies ahead for you and fe¢1 a sense of responsibility about seeing the project thru because I know you will need help. ItO care about our relationship, both personal and
.protessional and of course, I would p fer that things were smooth. But none of these decisions rest in my hands, SO, l leave it to you p decide where things land.OORegardless, I wish you well with the project. ! do believe in it, I th~nk you forthe opportunity and for whatever endorsements you gave me along the way. I am happy to have been a part of it.OOAII the best,DAmanda 0
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From: "Amanda White"·( ~ > Date: April 12, 20099:12:20 PM PDT To: "John Merrick" < g6D.'.er~* > . Subject: RE:
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Hi Casey, DODo you need something specific? I thought we
agreed last week that 10 Would keep these until my deal is done. I am not withholding anythingflthat is impeding either production or post and as you have seen, I amOforwarding anything pertinent to you within minutes. 0 0 I teally feel that in good faith, the documents you refer to are my workOproduct, so I would prefer to hold them in trust until w~ can get the 0 matter of my deal resolved.
As I mentioned last week, I think it is inOeveryone's interest that we resolve things quicklyifl o All the best,OAmandaD o amanda whiteD (RebAc..-rEi:> > :
Original Message-v-v-Llfirom: John Merrick
[mailto:< ~eDAc:ttt> '> i - OSent: Sunday, April 12,
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2009 8:41 PMDTo: Amanda WhiteD Subject: 0 Oi am still waiting
on the production docuffi1nts. can i please send 0 someone to get them now? i think your point has been made. 0 Othe documents do not belong to you. if youl feel more comfortable, why 0 dont you tum them over to david weber.D Othanks,D o casey
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From: John Merrick (mailto:-r 12G~l:'"iel) > . DSent:
Monday, April 13, 2009 7:24 ~MOTo: Amanda WhiteDSubject: Fwd: RE:
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i need the signed releases ~nd confidentiality agreements. would like the blank forms emailed to me please.
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From: "Amanda White" <. Re1)ACfE» Date: August 15, 2009 9:01 :49 PM PDT To: "John Merrick" <~6'DAc:nm > Subject: Happy Birthday
Hey Casey.
My calendar told me it was today so I thought I'd reach out and wish you a happy birthday.
I hope one day we can be friends again.
All the best to you and your family, Amanda
amanda white L ~Ej)Ac:tbO >
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2.
On January 12.2009. my partner David Weber and I met with Plaintiff Amanda
DECLARATION OF AUGUST J. BRAJSPENSTEIN
2 I. AUGUST J. BRANDENSTEIN. declare:
3 1. I am an attorney duly licensed to practice before all courts in the State of
4 California. I am a partner at the law fum of Sloane, Offer. Weber and Dern, LLP. Our office 5 handled some of the legal work for Defendants Casey Affleck and Flemmy Productions. LLC 6 (collectively." Defendants") in connection with the documentary film project, titled I'm Still
7 Here: The Lost Years of Joaquin Phoenix (the "Project"). The facts set forth herein are of my 8 own personal knowledge. and if called and sworn as a witness I could and would competently 9 testify thereto. This Declaration is submitted in support of Defendants' Motion to Compel
10 Arbitration.
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12 White at our office to discuss her obligations and responsibilities as a producer on the Project. 13 At that meeting. I informed Ms. White that I would be sending her documents which all of the 14 crew members, including Ms. White, would be required to sign, and we discussed that having 15 those documents signed. by all the crew members was her responsibility. We also discussed
16 that I would also be sending her applicable production documents. such as location agreements 17 and likeness releases. and that it was also her responsibility to make sure that they were
18 executed by the appropriate individuals.
19 3. On January 14.2009, I emailed Ms. White the documents we had discussed at
20 our meeting, which included a Work-for-HirelIndependent Contractor Agreement (the
21 "Agreement"). a true and correct copy of which is attached hereto as Exhibit A and
22 incorporated by reference herein. A true and correct copy of my email (with attachments). 23 dated January 14.2009 is attached hereto as Exhibit B.
24 4. On or about April l , 2009. I had discussions regarding the terms of Ms. White's
25 engagement with Ms. White's agent, Stephanie Comer of UTA, regarding Ms. White's
26 compensation and credit.
27 III
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K;\4612-3\PLE\BRANDENSTElN DBCL (c) 072710.wpd
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At no time during any of my aforementioned conununications with Ms. White
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2 and her representatives did Ms. White or any of her representatives ever inform me that Ms. 3 White claimed that she had been subjected to alleged unwarranted or unwelcome sexual
" harassment while working on the Project.
! I declare under penalty of perjury under the laws of the State of California that the
6 foregoing is true and correct.
Executed this-?l._th day of July, lOW, in Los Angeles, California.
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WORK-FOR-IDREIINDEPENDENT CONTRACTOR AGREEMENT
This Agreement is made as of between Flemmy Productions, LLC (hereinafter
"Company") and (hereinafter referred to as "Contractor"). In consideration of
Contractor's engagement and other good and valuable consideration, the adequacy, sufficiency and receipt of which is hereby acknowledged, Company and Contractor hereby agree as follows:
1. Company hereby engages Contractor to render certain services as a
___ ----, -:-- __ ----" which may include, without limitation, furnishing ideas, concepts, services
and materials for the project currently entitled "Untitled Joaquin Phoenix Documentary" ("Picture"). Contractor acknowledges that this engagement is that of an independent contractor and Company will not be responsible to Contractor or anyone engaged by Contractor for any money or materials whatsoever except as specifically set forth herein. Contractor understands and agrees that this Picture is a non-guild production and there will be no residual or any other type of payment due in connection therewith. Nothing contained herein will be so construed as to constitute Contractor and Company as joint venturers, partners or agents, nor will any similar relationship be deemed to exist between Contractor and Company. Company will not be held responsible or liable to Contractor or to any third person for any expense incurred by Contractor unless specifically agreed to by Company in writing, nor will Company be held responsible or liable to Contractor or to a third person for or on account of any of Contractor's employees or agents. Company shall have no responsibility to Contractor for pension, health and welfare benefits, social security, unemployment, workers' compensation and state disability insurance, and like matters. Contractor shall be solely responsible for all such matters, withholding taxes, and other customarily withheld sums from wages (collectively "Withholdings"). Contractor will indemnify and hold Company harmless from and against any and all liability, damages, costs and expenses, including reasonable attorneys' fees, arising out of (i) Contractor's failure to pay any Withholdings and/or (ii) Company's treatment of Contractor hereunder as an independent contractor, including, without limitation, Contractor's failure to pay any Withholdings in connection with this engagement.
2. For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Company shall be the sole and exclusive owner throughout the universe in perpetuity of all of the results and proceeds of Contractor's services, work and labor hereunder in connection with Contractor's engagement by Company (collectively "Results"), including without limitation all intellectual property which Contractor may develop, create, write or otherwise produce during any period wherein services are rendered hereunder, free and clear of any and all claims, liens or encumbrances, and Company shall be free to exploit all of the Results in perpetuity in any and all media and by any and all means (whether now known or hereafter devised) without any obligations whatsoever to Contractor. All Results shall be deemed to be a "work-made-for-hire" for Company within the meaning of the copyright laws of the United States and Company shall be deemed to be the sole author thereof in all territories and for all purposes. Contractor understands that all intellectual property submitted to Company for its review shall be deemed a "work-made-for-hire" consistent with this Paragraph. In the event any Results are determined not to be "works made-for-hire", in consideration of Contractor's engagement, Contractor exclusively and irrevocably assigns to Company, in perpetuity, all rights (including without limitation all copyrights and renewals and extensions thereof) in and to such Results and Company's rights to such Results shall be the same as its rights as described above in connection with the "works made-for-hire" Results. Additionally, the, parties acknowledge that this letter agreement constitutes a waiver by Contractor and Contractor h~eby releases and absolutely and forever discharges Company, its successors, licensees and assigns and itJ:~or their shareholders, directors, officers, employees and attorneys from any and all proceedings and causes of action of whatever kind or nature, whether now known or unknown, suspected or unsuspected, wNch Contractor now owns or holds,. or at at~y time has heretofore own~d or held aga~nst Company with respect to any matter referred to herem, or WIth respect to any other claim of ownership or matter of any
AJ/CLIENTFILES/JOAQUINPHOENIXIDOCU Work For Hire Independent Contractor Agreeement
1
type whatsoever related thereto and/or in any way related to the subject matter of this agreement and/or the Results and, except for such rights and obligations as may be created by this letter agreement, Contractor having been advised of the effect of such provisions by its own counsel, specifically, waives the provisions of Section 1542 of the Civil Code of the State of California (and the provisions of any statute or law of any other jurisdiction which are similar in substance or effect to the provisions of said Section 1542), which Code Section reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him, must have materially affected his settlement with the debtor."
3. Company shall have the right (but not the obligation) to use Contractor's name, biography,
and likeness in connection with its business, including in advertising and promotion of the Picture, as wen as any "behind-the-scenes" and/or "making-of" type productions and may grant this right to others, but not for use as a direct endorsement.
4. All disputes which may arise between the parties under or with respect to this Agreement
will be determined solely by arbitration in accordance with the rules of the American Arbitration Association pursuant to the procedures hereinafter set forth. In the event of a dispute, the aggrieved party shall serve upon the other party a notice in writing requiring arbitration and designating the first arbitrator. Within ten (10) business days thereafter the other party shall designate a second arbitrator by notice in writing duly given to the aggrieved party. The two arbitrators thus chosen shall appoint a third arbitrator within five (5) business days thereafter. If the third arbitrator is not appointed within such five (5) business day period, then either party may secure the appointment of a third arbitrator by application to the American Arbitration Association. When appointed, the three arbitrators shall determine the controversy by majority vote, except that if only one arbitrator has been appointed by the end of the first ten (10) day period mentioned above, then the first arbitrator shall be the sole arbitrator. The arbitration shall be held in Los Angeles, California and the cost thereof, including reasonable attorneys' fees, shall be borne by the party which does not prevail therein. Such determination by the arbitrators or by the sole arbitrator, whatever the case may be, shall be final, binding and conclusive upon the Parties hereto and shall be rendered in such form that it may be judicially confirmed under the laws of the State of California.
5. Contractor understands that it is an essential term of this engagement that the
Confidential Information (defined below) be maintained in the strictest confidence and that Contractor does not duplicate, disclose, report, reveal, assign, sell or transfer, either directly or indirectly, any Confidential Information without Company's prior consent. "Confidential Information" shall mean any information or material proprietary to Company and/ or related to the Picture or not known generally to the public which Contractor may obtain knowledge of or access to including without limitation any and all such information relating to any screenplay, budget, schedule, plans, drawings, designs, specifications, ideas, concepts, models, costumes, techniques, cast members or special effects for the Picture or other creative, business and/or physical production elements relating to the Picture and/or Company including, without limitation, its business, executives, officers, directors and financial information. Contractor expressly acknowledges that in the event of a breach by Contractor of any terms hereof relating to Confidential Information, Company will be caused irreparable injury which cannot be adequately compensated by money damages. Accordingly, Company shall be entitled to seek equitable and/or inj\Jnctive relief, in addition to any other rights or remedies which Company may have, to enforce the terms o(this Agreement as they relate to Confidential Information. In the event Company is required to enforce thb~ terms of this Agreement, Company shall be entitled to reimbursement of all legal fees, costs and expenses incident to such enforcement.
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AJ/CLIENTFILES/JQAQUINPHOENIXIDOCU Work For Hire Independent Contractor Agreeement
6. Contractor hereby represents and warrants to Company as follows: (a) Contractor is free to
enter into this Agreement and to grant the rights granted herein to Company; (b) Contractor has not made and will not make any commitment, and has not done and will not do any act which is inconsistent with or in conflict with this Agreement or any of the rights granted or to be granted to Company hereunder; (c) all of the results and proceeds of Contractor's services hereunder are and shall be wholly original with Contractor (except to the extent that said results and proceeds are in the public domain or are supplied to Contractor by Company); (d) the results and proceeds of Contractor's services will not violate or infringe upon any copyright, or any right of any kind or nature whatsoever of any third party including, without limitation, any right of privacy or publicity; and (e) Contractor has neither exercised nor authorized or permitted others to exercise any of the rights granted or to be granted to Company hereunder, and will not do so.
7. Contractor hereby agrees to defend, indemnify, save and hold harmless Company, its
successors, assigns, licensees, representatives and agents from and against any and all claims, demands, causes of action, costs, expenses, losses, damages, judgments and reasonable attorneys' fees arising out of or resulting from any breach by Contractor of any covenants, agreements, representations or warranties made by Contractor herein.
8. Any remedies which Contractor may have against Company hereunder and in connection
with the Picture and the Results, shall be limited to the right to recover damages, if any, in an action at law, and Contractor hereby waives any right or remedy in equity, including any right to rescind Company's right and interest in and to the Results and the Picture and to enjoin or restrain the distribution, exploitation or exhibition of the Picture, including any advertising or publicity relating thereto.
9. Contractor hereby represents and warrants that it maintains adequate General Liability,
Worker's Compensation and Errors and Omissions insurance coverage and that it shan cause Company to be named as an additional insured on each and every one of such insurance policies.
10. Company may assign an or any rights in and to this Agreement to any person, firm or entity.
11. This agreement constitutes the full and complete understanding and agreement of the
parties with respect to the subject matter hereof and supersedes any prior understandings and agreements, whether oral or written. This is an integrated agreement. This agreement cannot be modified, changed or terminated orally but only by way of a written agreement duly authorized and signed by all parties hereto.
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AJ/CLIENTFILES/JOAQUINPHOENIXIDOCU Work For Hire Independent Contractor Agreeement
12. This agreement shall be interpreted and enforced in accordance with the law of the State of
California. If any portion of this agreement is found to be illegal or unenforceable, such action shall not affect the validity or enforceability for the remaining paragraphs or subparagraphs of this agreement.
Please sign below to indicate acceptance.
FLEMMY PRODUCTIONS, LLC
By: __
Its:
----------------------------
ACCEPTED AND AGREED:
Signature
Social Security Number: __
Print Name
Address
4
AJ/CLIENTFILES/JOAQUINPHOENIXIDOCU Work For Hire Independent Contractor Agreeement
•
From: AJ Brandenstein
Sent: Wednesday, January 14, 2009 2:35 PM To: 'Amanda White'
Cc: David Weber; Dan Uchtenstein Subject: Joaquin Phoenix Documentary
As discussed, I've attached the following forms:
If you have any questions please feel free to give me a call.
1. Crowd Notice and Release;
2. Location Agreement;
3. Independent Contractor Agreement (for crew members); and
4. Likeness Release (for individuals appearing in the documentary).
Best, A. J.
A.J. Brandenstein, Esq.
Sloane, Offer, Weber and Dern, LLP 9601 Wilshire Blvd.
Suite 500
Beverly Hills, CA 90210 (310) 248-5112
(310) 248-3512 Fax
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. IfyOD are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICfLY PROHIBITED. If you have received this transmission in error, please immediately notify us by reply e-mail at aj@Sowdllp.com or by telephone at (310) 248-5112, and destroy the original transmission and its attachments without reading them or saving them to disk. Thank you.
IRS CIRCULAR 230 DISCLOSURE: To comply with requirements imposed by recently issued treasury regulations, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written by us, and cannot be used by you, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another person any transaction or matter addressed herein.
CROWD
NOTICE / RELEASE
FLEMMY PRODUCTIONS, LLC WILL BE FILMING TODAY. PLEASE BE AWARE THAT BY ENTERING THIS AREA, YOU IRREVOCABLY CONSENT TO AND AUTHORIZE WITHOUT COMPENSATION FLEMMY PRODUCTIONS, LLC, ITS SUCCESSORS, ASSIGNS AND LICENSEES TO USE YOUR VOICE AND LIKENESS AND TO PHOTOGRAPH YOU AND/OR MAKE SOUND RECORDINGS OF YOU AND TO USE SAME WORLDWIDE FOR EXPLOITATION IN ANY AND ALL MEDIA, WHETHER NOW KNOWN OR HEREAFTER DEVISED, FOR ANY PURPOSE WHATSOEVER IN PERPETUITY, ALL SUCH PHOTOGRAPHS AND SOUND RECORDINGS TO BE THE SOLE PROPERTY OF FLEMMY PRODUCTIONS, LLC, AND YOU RELEASE FLEMMY PRODUCTIONS, LLC ITS SUCCESSORS, ASSIGNS AND LICENSEES FROM ANY LIABILITY ON ACCOUNT OF SUCH USAGE.
IF YOU DO NOT WISH TO BE SUBJECT TO THE FOREGOING, DO NOT ENTER THIS AREA.
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LOCATION AGREEMENT UNTITLED JOAQUIN PHOENIX DOCUMENTARY
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned as owner/agent ("GRANTOR") having the full right and authority to do so, hereby irrevocably grants to Flemmy Productions, LLC and any of its agents, licensees and/or assignees (collectively "PRODUCER") the right to: use, photograph, reproduce and replicate the real and personal property located at
INSERT ADDRESS AND DESCRIPTION OF PREMISES ("PREMISES"), in any manner whatsoever, including any identifying features thereof, the right to refer to the PREMISES or any part thereof by its real name or address or any fictitious name or address and any names, trademarks, signs and identifying features thereof and the right to attribute any real or fictitious events as occurring on and/or in the PREMISES; and (b) to enter upon said PREMISES with PRODUCER'S personnel and equipment for the purpose of erecting and maintaining temporary motion picture sets, structures and equipment (if necessary) and of photographing said PREMISES, sets and structures and/or recording sound for such scenes as PRODUCER may desire, on INSERT DATE(S) (which daters] may be changed by PRODUCER due to weather conditions, changes in the production schedule and such other unanticipated changes; provided further that PRODUCER may re-enter the PREMISES with notice to and approval from GRANTOR [such approval not to be unreasonably withheld] for the purpose of making added scenes and retakes on such other dates as PRODUCER and GRANTOR coordinate in good faith taking into account PRODUCER'S required schedule on the same terms as set forth herein).
All rights of every kind in and to all photography and sound recordings made hereunder shall be solely owned in perpetuity by PRODUCER, and neither GRANTOR nor any tenant or other party now or hereafter having an interest in said PREMISES shall have any right of action including, without limitation, any right to rescission, injunctive or equitable relief against PRODUCER and/or any other party arising out of any use or non-use of said photography and/or sound recordings and/or the production, distribution, advertising, promotion and exploitation of the production currently entitled "Untitled Joaquin Phoenix Documentary" ("PRODUCTION"). GRANTOR agrees that GRANTOR will not assert or maintain against PRODUCER any claim of any kind or nature based upon invasion of privacy or other civil rights, defamation, copyright infringement, libel or slander in connection with the exercise of the permission or rights herein granted. GRANTOR hereby irrevocably grants to PRODUCER the right, in perpetuity, throughout the world, to re-use the photography and sound recordings (or any part thereof) and/or to duplicate and re-create all or a portion of said PREMISES and to use the same in any and all media and/or manner known or unknown including, without limitation, in and in connection with the PRODUCTION, and/or in connection with any publicity, promotion, exploitation and/or advertising of same. PRODUCER shall have the unfettered right to license, assign or otherwise transfer all rights in and to the photography and sound recordings created h~*eunder to any person or entity.
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P~ODUCER shall leave said PREMISES in substantially as good condition as when received by it f~easonable wear and tear excluded); and PRODUCER shall indemnify and hold GRANTOR harmless from and against damages for injury to persons and for damage to or destruction of
property occurring during PRODUCER'S use of the PREMISES and as a result of PRODUCER'S gross negligence or willful misconduct.
GRANTOR warrants that GRANTOR is the owner (or the agent for the owner) of said PREMISES, that GRANTOR is fully authorized to enter into this agreement and has the right to grant PRODUCER the use of said PREMISES and each and all of the rights herein granted and that no one else's permission is required.
This agreement shall be construed and enforced in accordance with the laws of the State of California. This Agreement is entered into as of the date indicated below, represents and the entire agreement between the parties, and may be amended only in writing signed by the parties.
FLEMMY PRODUCTIONS. LLC
GRANTOR
By: ~ __
By:
----~----------------
Signature
Its:
----------------------
Its:
----------------------
PRINT NAME
DATE
ADDRESS
CONTACT NUMBER
2
WORK-FOR-IDREIINDEPENDENT CONTRACTOR AGREEMENT
This Agreement is made as of between Flemrny Productions, LLC (hereinafter
"Company") and (hereinafter referred to as "Contractor"). In consideration of
Contractor's engagement and other good and valuable consideration, the adequacy, sufficiency and receipt of which is hereby acknowledged, Company and Contractor hereby agree as follows:
1. Company hereby engages Contractor to render certain services as a
___________ , which may include, without limitation, furnishing ideas, concepts, services and materials for the project currently entitled "Untitled Joaquin Phoenix Documentary" ("Picture"). Contractor acknowledges that this engagement is that of an independent contractor and Company will not be responsible to Contractor or anyone engaged by Contractor for any money or materials whatsoever except as specifically set forth herein. Contractor understands and agrees that this Picture is a non-guild production and there will be no residual or any other type of payment due in connection therewith. Nothing contained herein will be so construed as to constitute Contractor and Company as joint venturers, partners or agents, nor will any similar relationship be deemed to exist between Contractor and Company. Company will not be held responsible or liable to Contractor or to any third person for any expense incurred by Contractor unless specifically agreed to by Company in writing, nor wi1l Company be held responsible or liable to Contractor or to a third person for or on account of any of Contractor's employees or agents. Company shall have no responsibility to Contractor for pension, health and welfare benefits, social security, unemployment, workers' compensation and state disability insurance, and like matters. Contractor shan be solely responsible for all such matters, withholding taxes, and other customarily withheld sums from wages (collectively "Withholdings"). Contractor will indemnify and hold Company harmless from and against any and all liability, damages, costs and expenses, including reasonable attorneys' fees, arising out of (i) Contractor's failure to pay any Withholdings and/or (ii) Company's treatment of Contractor hereunder as an independent contractor, including, without limitation, Contractor's failure to pay any Withholdings in connection with this engagement.
2. For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Company shall be the sole and exclusive owner throughout the universe in perpetuity of all of the results and proceeds of Contractor's services, work and labor hereunder in connection with Contractor's engagement by Company (collectively "Results"), including without limitation all intellectual property which Contractor may develop, create, write or otherwise produce during any period wherein services are rendered hereunder, free and clear of any and all claims, liens or encumbrances, and Company shall be free to exploit all of the Results in perpetuity in any and all media and by any and all means (whether now known or hereafter devised) without any obligations whatsoever to Contractor. All Results shall be deemed to be a "work-made-for-hire" for Company within the meaning of the copyright laws of the United States and Company shall be deemed to be the sole author thereof in all territories and for all purposes. Contractor understands that all intellectual property submitted to Company for its review shall be deemed a "work-made-for-hire" consistent with this Paragraph. In the event any Results are determined not to be "works made-for-hire", in consideration of Contractor's engagement, Contractor exclusively and irrevocably assigns to Company, in perpetuity, all rights (including without limitation all copyrights and renewals and extensions thereof) in and to such Results and Company's rights to such Results shall be the same as its rights as described above in connection with the "works made-for-hire" Results. Additionally, t~ parties acknowledge that this letter agreement constitutes a waiver by Contractor and Contractor hereby releases and absolutely and forever discharges Company, its successors, licensees and assigns and it~~;or their shareholders, directors, officers, employees and attorneys from any and all proceedings and causes of action of whatever kind or nature, whether now known or unknown, suspected or unsuspected, wNch Contractor now owns or holds, or at any time has heretofore owned or held against Company with respect to any matter referred to herem, or with respect to any other claim of ownership or matter of any
1
AJ/CLIENTFILES/JOAQUINPHOENIX/DOCU Work For Hire Independent Contractor Agreeement
type whatsoever related thereto and/or in any way related to the subject matter of this agreement and/or the Results and, except for such rights and obligations as may be created by this letter agreement, Contractor having been advised of the effect of such provisions by its own counsel, specifically, waives the provisions of Section 1542 of the Civil Code of the State of California (and the provisions of any statute or law of any other jurisdiction which are similar in substance or effect to the provisions of said Section 1542), which Code Section reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him, must have materially affected his settlement with the debtor."
3. Company shall have the right (but not the obligation) to use Contractor's name, biography,
and likeness in connection with its business, including in advertising and promotion of the Picture, as well as any "behind-the-scenes" and/or "making-of' type productions and may grant this right to others, but not for use as a direct endorsement.
4. All disputes which may arise between the parties under or with respect to this Agreement
will be determined solely by arbitration in accordance with the rules of the American Arbitration Association pursuant to the procedures hereinafter set forth. ill the event of a dispute, the aggrieved party shall serve upon the other party a notice in writing requiring arbitration and designating the first arbitrator. Within ten (10) business days thereafter the other party shall designate a second arbitrator by notice in writing duly given to the aggrieved party. The two arbitrators thus chosen shall appoint a third arbitrator within five (5) business days thereafter. If the third arbitrator is not appointed within such five (5) business day period, then either party may secure the appointment of a third arbitrator by application to the American Arbitration Association. When appointed, the three arbitrators shall determine the controversy by majority vote, except that if only one arbitrator has been appointed by the end of the first ten (10) day period mentioned above, then the first arbitrator shall be the sole arbitrator. The arbitration shall be held in Los Angeles, California and the cost thereof, including reasonable attorneys' fees, shaB be borne by the party which does not prevail therein. Such determination by the arbitrators or by the sole arbitrator, whatever the case may be, shall be final, binding and conclusive upon the Parties hereto and shall be rendered in such form that it may be judicially confirmed under the laws of the State of California.
5. Contractor understands that it is an essential term of this engagement that the
Confidential Information (defined below) be maintained in the strictest confidence and that Contractor does not duplicate, disclose, report, reveal, assign, sell or transfer, either directly or indirectly, any Confidential Information without Company's prior consent. "Confidential Information" shall mean any information or material proprietary to Company and/ or related to the Picture or not known generally to the public which Contractor may obtain knowledge of or access to including without limitation any and all such information relating to any screenplay, budget, schedule, plans, drawings, designs, specifications, ideas, concepts, models, costumes, techniques; cast members or special effects for the Picture or other creative, business and/or physical production elements relating to the Picture and/or Company including, without limitation, its business, executives, officers, directors and financial information. Contractor expressly acknowledges that in the event of a breach by Contractor of any terms hereof relating to Confidential Information, Company will be caused irreparable injury which cannot be adequately compensated by money damages. Accordingly, Company shall be entitled to seek equitable and/or injunctive relief, in addition to any other rights or remedies which Company may have, to enforce the terms o(thls Agreement as they relate to Confidential Information. ill the event Company is required to enforce th~! terms of this Agreement, Company shall be entitled to reimbursement of all legal fees, costs and expenses incident to such enforcement.
.j.
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2
AJ/CLIENTFILES/JOAQUINPHOENIXIDOCU Work For Hire Independent Contractor Agreeement
6. Contractor hereby represents and warrants to Company as follows: (a) Contractor is free to
enter into this Agreement and to grant the rights granted herein to Company; (b) Contractor has not made and will not make any commitment, and has not done and will not do any act which is inconsistent with or in conflict with this Agreement or any of the rights granted or to be granted to Company hereunder; (c) all of the results and proceeds of Contractor's services hereunder are and shall be wholly original with Contractor (except to the extent that said results and proceeds are in the public domain or are supplied to Contractor by Company); (d) the results and proceeds of Contractor's services will not violate or infringe upon any copyright, or any right of any kind or nature whatsoever of any third party including, without limitation, any right of privacy or publicity; and (e) Contractor has neither exercised nor authorized or permitted others to exercise any of the rights granted or to be granted to Company hereunder, and will not do so.
7. Contractor hereby agrees to defend, indemnify, save and hold harmless Company, its
successors, assigns, licensees, representatives and agents from and against any and all claims, demands, causes of action, costs, expenses, losses, damages, judgments and reasonable attorneys' fees arising out of or resulting from any breach by Contractor of any covenants, agreements, representations or warranties made by Contractor herein.
8. Any remedies which Contractor may have against Company hereunder and in connection
with the Picture and the Results, shall be limited to the right to recover damages, if any, in an action at law, and Contractor hereby waives any right or remedy in equity, including any right to rescind Company's right and interest in and to the Results and the Picture and to enjoin or restrain the distribution, exploitation or exhibition of the Picture, including any advertising or publicity relating thereto.
9. Contractor hereby represents and warrants that it maintains adequate General Liability,
Worker's Compensation and Errors and Omissions insurance coverage and that it shall cause Company to be named as an additional insured on each and every one of such insurance policies.
10. Company may assign all or any rights in and to this Agreement to any person, firm or entity.
11. This agreement constitutes the full and complete understanding and agreement of the
parties with respect to the subject matter hereof and supersedes any prior understandings and agreements, whether oral or written. This is an integrated agreement. This agreement cannot be modified, changed or terminated orally but only by way of a written agreement duly authorized and signed by all parties hereto.
3
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AJICLlENlFILES/JOAQUINPHOENlX!DOCU Work For Hire Independent Contractor Agreeement
FLEMMY PRODUCTIONS, LLC
12. This agreement shall be interpreted and enforced in accordance with the law of the State of
California. If any portion of this agreement is found to be illegal or unenforceable, such action shall not affect the validity or enforceability for the remaining paragraphs or subparagraphs of this agreement.
Please sign below to indicate acceptance.
By: _
Its:
----------------------------
ACCEPTED AND AGREED:
Signature
Social Security Number: _
Print Name
Address
4
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AJ/CLIENTFILES/JOAQUINPHOENIXIDOCU Work For Hire Independent Contractor Agreeement
Program/Project Title: _
Artist/Guest Name: _
(check one) Performance: _ Interview: _ MOS:_
PRODUCER:
DATE: _
LIKENESS RELEASE
This release is made to allow Flemmy Productions, LLC ("Company") to include me in the production and/or publication of the documentary project tentatively entitled "Untitled Joaquin Phoenix Documentary" (the "Picture") and the advertising and promotion thereof. I am giving this release in consideration for Company allowing me to participate in the Picture and I recognize that my signature on this release is a condition of Company permitting me to be a guest on or a performer in the Picture or both. I agree that Company may tape and photograph me and record my likeness (including any distinctive characterizations or attributes), my voice, including, without limitation, any conversation (including quotes, paraphrases and sounds), and any performance of musical compositionts), for use in and in connection with the Picture (the "Performance") and the advertising and promotion thereof. I also understand and agree that the Picture is a non-guild production.
I agree that Company shall be the exclusive owner of all copyright and other rights in and to the Picture and Performance and will be able to use them forever and throughout the world, and to license others to use them, in any manner Company wishes and in any and all media now known or hereafter discovered or developed.
I further irrevocably agree that Company may use and license others to use the Performance (including any excerpts therefrom), and my name, voice, likeness and any biographical facts which may have been provided to Company, in the Picture or any other program, production or publication whatsoever, and in any related or derivative versions and/or uses of the Picture, or any program, production or publication (including, without limitation, any serialization(s). translation(s) and/or adaptation(s) thereof), and in the advertising, marketing and promotion thereof, in all mediums and/or media now known or hereafter devised, including all allied and ancillary markets (e.g., merchandising, commercial tie-ins and related products) in connection therewith. I confirm that, to the best of my knowledge, the Performance (including any statements made by me) will be true and will not violate or infringe upon any third party's rights.
I acknowledge that nothing contained herein obligates Company to exercise any of the rights, licenses or privileges granted by this release. I acknowledge and agree that no promise, representation, or warranty has been made to me to induce me to enter into this agreement, and further acknowledge that I have not executed this agreement in reliance on any promise, representation, or warranty of Company.
I agree that Company may change, edit, add to, or subtract from, the Performance and Picture and I waive all moral rights or other personal or proprietary rights with respect thereto.
I agree that at no cost to Company, I have secured, or will secure (and/or will arrange with any respective publisher and/or third party owner to secure) all rights, including, without limitation, synchronization rights necessary for Company to use any musical composition(s) written, co-written and/or performed by me that is contained within the Performance, if any. Notwithstanding the foregoing, nothing in this release shall affect my right, or the right of any authorized publisher or cowriter, to collect public performance royalties.
Complete oni!' for har,ardolls activitt':
1 am vohuueering to engage in the following activity (ies) in connection with the Picture scheduled to take place on
___ _ 0::.; _._._ _ _._. ._ .. _._._ _ .•.. _._._ __ ._ .. _._._ .. __ _ _.. at .. _._. __ ._._ ._._ _._.............. ._ _ _._._. __ ._ _._ _..... (the
"Evenn'_,/:
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1 acknowledge and fl.ll~r understand that the foregoing is/are hazardous activityties). 1 represent and warrant that 1 am vohmta~ily participating in the Event and related activities with full knowledge, appreciation and understanding of the dangers and pe~fonal risks involved and hereby agree to accept any and all risks ofparticipating therein. Further. I hereby knowingly and freely accept and assume all risks. both known and unknown, associated with my participation in the Event, even ifarising from the negligence of Company, and/ or its parents, subsidiaries, affiliates, licensees, successors and assigns and each of
1
their respective directors, ojJicets, employees. agents and represenfatives aJld assume ji.ltl responsibility fi)r my participation therein.
I represent and warrant that all information I am providing to Company on this release is valid, true and accurate, and that I have (or will concurrently provide) to Company a legible photocopy of my valid drivers license, passport or other acceptable government-issued photo identification for Company's verification and record-keeping purposes. I hereby agree not to sue and irrevocably and unconditionally release, waive and forever discharge Company, its past, present and future parents, subsidiaries (whether or not wholly-owned), affiliates, divisions, agents, representatives, employees, successors and assigns, jointly and individually (hereinafter collectively referred to as "Releasees''), from any and all manner of liabilities, claims and demands of any kind or nature, whatsoever, in law or equity, whether known or unknown, which I (or my assigns, agents and/or representatives) ever had, now has, or in the future may have against the Releasees, including, but not limited to, claims arising out of or related to the uses described herein, the Event (if applicable), the Picture, the Performance, and/or my decision to perform the Event (if applicable). In addition, I expressly waive the provisions of Section 1542 of the California Civil Code (and the laws of any similar jurisdiction anywhere in the world), which reads as follows: itA general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." I further agree that I shall be liable for any attorneys' fees and costs incurred by Company in connection with any claim or lawsuit brought in violation of this agreement. Without limiting the generality of the foregoing, in no event shall I have the right to rescission, injunctive or equitable relief in connection with the development, production, distribution, advertising, promotion or exploitation of the Picture or the Performance. Company may license, transfer and/or assign this agreement and all or any of its rights or privileges hereunder to any entity or individual without restriction.
I understand that as an essential term of this engagement that the Confidential Information (defined below) will be maintained in the strictest confidence and that I will not duplicate, disclose, report, reveal, assign, sell or transfer, either directly or indirectly, any Confidential Information without Company's prior consent "Confidential Information" shall mean any information or material proprietary to Company and! or related to the Picture or Performance or not known generally to the public which I may obtain knowledge of or access to including without limitation any and all such information relating to any screenplay, budget, schedule, plans, drawings, designs, specifications, ideas, concepts, models, costumes, techniques, cast members or special effects for the Picture or other creative, business and/or physical production elements relating to the Picture and/or Company including, without limitation, its business, executives, officers, directors and fmancial information. I expressly acknowledge that in the event of a breach by me of any terms hereof relating to Confidential Information, Company will be caused irreparable injury which cannot be adequately compensated by money damages. Accordingly, Company shall be entitled to seek equitable and/or injunctive relief, in addition to any other rights or remedies which Company may have, to enforce the terms of this Agreement as they relate to Confidential Information. In the event Company is required to enforce the terms of this Agreement, Company shall be entitled to reimbursement of all legal fees, costs and expenses incident to such enforcement.
This release shan be binding on all of my successor-in-interest and heirs. This agreement sets forth the entire agreement between me and Company with respect to the subject matter hereof and may not be altered or amended except in writing signed by both parties. Each of the parties acknowledges that it had the full and unfettered opportunity to consult with independent attorneys of its own choosing with respect to this Agreement, and that it either fully consulted with such counsel, or knowingly and freely elected not to do so. This agreement shall be governed by the laws of the state of California. The parties hereto agree to submit to jurisdiction in the State of California.
SIGNATURE: _
Date:
-------------------
~ruNDNAME:--------------------------------------------------------
LIST ASL PRIOR NAMES, ALIASES, PROFESSIONAL/STAGE NAMES, ETC.: _
DATE ¢.F BIRTH:
l.,~ -------------------------------------------------------
:;,'
ADDRESS: ___
CITY, STATE, ZIP: TELEPHONE: _
2
TYFEOFIDCHECKED: __
COPY OF ID RECEIVED:
YES
NO IF NOT, GIVE REASON __
[THIS INFORMATION IS BEING OBTAINED AND WILL BE MAINTAINED SOLEY FOR LEGALLY-MANDATED RECORD-KEEPING PURPOSES]
FOR USE BY PARENT OR GUARDIAN OF GUEST UNDER 18 YEARS OF AGE: I represent that I am a parent/guardian of the minor named above and I agree that the grant and release contained therein binds us and said minor to all of the terms thereof.
Signature of Parent Guardian: _
Date: __
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I am an attorney duly licensed to practice before all courts in the State of
1 DECLARATIQN OF DAVID WEBER
2 I. DAVID WEBER, declare:
1.
4 California. I am a partner at the law firm of Sloane, Offer, Weber and Dern, LLP. Our office 5 handled some of the legal work for Defendants Casey Affleck and Flemmy Productions, LLC 6 (collectively. "Defendants") in connection with the documentary film project. titled I'm Still
7 Here: The Lost Years of Joaquin Phoenix (the "Project"). The facts set forth herein are of my 8 own personal knowledge, and if called and sworn as a witness I could and would competently 9 testify thereto. This Declaration is submitted in support of Defendants' Motion to Compel
10 Arbitration.
2. On January 12, 2009, my partner August J. Brandenstein and I met with
Plaintiff Amanda White at our law office to discuss her obligations and responsibilities as a producer of the Project. During that meeting, we discussed with Ms. White that all of the crew members, including Ms. White, would be required to sign important production documents that we would be sending to her, and we discussed that it was Ms. White's responsibility to obtain signatures on those documents by all the crew members. In addition. during our meeting we discussed that we would send Ms. White other applicable production documents as well. such as location agreements and likeness releases, and that it was also her responsibility to make sure that those documents were executed by the appropriate individuals. Two days later, on January 14, 2009; I received a copy of Mr. Brandenstein's email to Ms. White to which he attached the documents we had discussed at our meeting, one of which was a Work-for-Hire/Independent Contractor Agreement (the "Agreement").
3. Based upon her representation to Casey Affleck that she had done so, it is my
understanding and belief that Ms. White signed the Agreement on or before January 17,2009.
4. On or about February 2,2009, I was contacted by Ms. White's agent, Stephanie
Comer of UTA; to discuss the terms of Ms. White's deal. I had a subsequent conversation with Ms. Comer regarding Ms. White's compensation and other aspects of her deal on or
28 about March 19, 2009.
K:\4612·3\PLB\WEBBR PECL (e) 072710. wpd
1
1
5.
On April 2, 2009, after Ms. White left the Project, I had a discussion with her
2 agent Ms. Comer, during which Ms. Comer told me that Ms. White wanted to resume working 3 on the Project.
4
6.
I continued to have various communications and discussions regarding the terms
S of Ms. White's engagement and resolving disagreements between Ms. White and the
6 Production, which continued through mid-September 2009. However, I thereafter received a 7 letter dated October 8,2009, from Ms. White's attorney, Erin McPherson, in which she
8 indicated that negotiations were being terminated.
9
Several months later, I received a letter dated March 23,2010, from a new
7.
10 attorney named Brian Procel, who said that he was representing Ms. White. A true and
11 correct copy of that letter is attached hereto as Exhibit A. In that letter, Mr. Procell attempted 12 to resume negotiations on behalf of Ms. White, and be implicitly threatened to interfere with 13 the release of the film by claiming on Ms. White's behalf that she supposedly owned the
14 "results and proceeds" of her services on the Project.
15
I received a subsequent letter from Mr. Procel regarding Ms. White dated. June
8.
16 29,2010. In that letter, Mr. Procel again threatened to interfere with the release of the
17 documentary. this time directly stating that unless his client's financial demands were met, he 18 intended to contact the documentary's distributor.
19
During the foregoing communications from January 2009 through June 29,
9.
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!d
20 2010, neither Ms. White nor any of her representatives (Ms. Comer, Ms. McPherson, and Mr. 21 Procel) ever informed me that Ms. White was claiming that she had been subjected to alleged 22 unwarranted or unwelcome sexual harassment while working on the Project.
23 10. On or about July 7, 2010, I received a letter from Mr. Procel dated July 2,
24 2010, in which he raised the issue for the very first time that Ms. White allegedly had claims 25 based on an alleged "hostile work environment." Mr. Procel sent his letter of July 2.2010 on 26 Ms. White's behalf in response to a letter which had been sent to him by counsel to Flemmy
27 (II 28 1/ I
K:\4612-)\l'LB\WEBlll\ DIlCL lc) on'10.wpd
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28 1 Productions, LLC, which had cautioned Mr. Procel and his client to refrain from interfering 2 with the Project as he had repeatedly threatened.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed thisZ,e th day of July, 2010, in Los Angeles, California.
DAVID WEBER
K:\461l-3\PLB\WBBER DBCL (1:) 072710.wpd
3
MILLER BARONDESS, LLP
ATTORNEYS AT LAW 1999 AVENUE OF THE STARS
SUITE 1000
LOS ANmus, CAliFORNIA 90067 TEL: (310) 552-4400
FAX: (310) 552-8400 www.millerbarondess.com
March 23, 2010
BRIAN A. PROCEl
DllliCl" DIAl: (310) 552-5235
EMAil: BPROCEL@MILLERBARONDESS.COM
VL1 FACSIMILE & Us. MAIL
David Weber
Sloane, Offer, Weber and Dem, LLP 9601 Wilshire Blvd.
Suite 500
Beverly Hills, CA 90210
Re: Amanda White
Untitled Joaquin Phoenix Documentary Project
Dear Mr. Weber:
This office represents Amanda White in connection with services she rendered in connection with the film Untitled Joaquin Phoenix Documentary Project (the "Project"). Please direct all future communications regarding this matter to me at the above address and phone number.
As you know, Ms. White worked on the Project from December 23, 2008 to March 31, 2009 as a producer. Prior to the commencement of work, Ms. White reached a verbal agreement with Casey Affleck and Joaquin Phoenix that she would be paid a $50,000 flat rate for her services as producer. She never received any payments in connection with the Project and is therefore entitled to the full $50,000.
Ms. White continues to own the results and proceeds of the services she rendered in connection with the Project, and she has not authorized the use of her name, voice or likeness. Ms. White will pursue any available remedies in the event your clients attempt to sell, distribute or otherwise exploit the Project without first compensating her.
62088.1
MILLER BARONDESS, LLP
David Weber March 23, 2010 Page 2
Please let me know no later than April 5, 2010, whether your clients intend to pay the amount owed. We reserve all rights and remedies herein.
BAP:cc
cc: Amanda White
,
:;; ~
62088.l
Brian A. Procel
3
6.
In my reply to Mr. Procel's letter, I enclosed a copy of Plaintiff's January 17,
1 DECLARATION OF MARTIN D. SINGER
2 I, MARTIN D. SINGER, declare:
1.
I am an attorney duly licensed to practice before all courts in the State of
4 California. I am a member of the firm of Lavely & Singer Professional Corporation, counsel 5 for Defendants Casey Affleck and Flemmy Productions, LLC (collectively, "Defendants").
6 The facts set forth herein are of my own personal knowledge, except for those matters that are 7 based on information and belief as indicated below, and if called and sworn as a witness I
8 could and would competently testify thereto. This Declaration is submitted in support of 9 Defendants' Motion to Compel Arbitration.
10
2.
I am informed and believe that on July 23, 2010 Plaintiff Amanda White
11 ("Plaintiff") filed a Complaint styled Amanda White v. Casey Affleck, et al., Los Angeles 12 Superior Court, Case No. Be 442321.
13
3.
On July 27. 2010, I wrote to Plaintiff's counsel, Brian Procel, and requested
14 that Plaintiff dismiss her Complaint and stipulate to submit her claims against Defendants to 15 binding arbitration pursuant to paragraph 4 of the Work-For-Hire/lndependent Contractor 16 Agreement (the "Agreement") entered into by Plaintiff, on the one hand and Flemmy
17 Productions, LLC, on the other hand, in or about January 2009. A true and correct copy of 18 my letter to Mr. Procel, dated July 27, 2010 is attached hereto as Exhibit A and incorporated 19 by reference herein.
4.
I informed Mr. Procel that if Plaintiff refused to dismiss her Complaint
20
21 voluntarily, then Defendants would be forced to bring the instant Motion to Compel
22 Arbitration and would seek an award of attorney's fees and costs incurred in bringing such a
23 motion. See Ex. A at 3.
"l4
~, ;"
5.
On July 27, 2010, I received a letter from Mr. Procel requesting that we provide
~5 him with copies of the agreements to which I referred in my letter. A true and correct copy of ~a6 Mr. Proce1's July 27, 2010 letter to me is attached hereto as Exhibit B and incorporated by
q7 reference herein.
28
K:\4612-3\PLE\Singer Dec! ill Supp of Mot to Compel Arb.wpd
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MOTION TO COMPEL ARBITRATION
9
7. 8.
Prior to filing this Motion, I received no further response from Mr. Procel.
1 2009 email to Casey Affleck in which she acknowledges that she signed the agreements in
2 question. I instructed Mr. Procel to obtain copies of the agreements directly from his client, 3 and I again reiterated that if Plaintiff refuses to dismiss her Complaint and stipulate to submit
4 her claims against Defendants to binding arbitration pursuant to paragraph 4 of the Agreement, 5 then Defendants would be filing a Motion to Compel Arbitration and seek recovery of the
6 associated attorney's fees and costs. A true and correct copy of my reply to Mr. Procel, dated 7 July 27, 2010 is attached hereto as Exhibit C and incorporated by reference herein.
8
I have spent two (2) hours preparing this Motion. My partner Lynda B.
10 Goldman, Esq. has spent twelve (12) hours preparing this Motion, and my associate
11 Andrew B. Brettler, Esq. has spent sixteen (16) hours preparing this Motion. I anticipate that 12 Ms. Goldman will spend an additional three (3) hours, and Mr. Brettler will spend an
13 additional eight (8) hours preparing the reply to Plaintiffs opposition to this Motion. I also 14 anticipate spending two (2) hours attending the hearing on this Motion. My hourly rate is 15 $750. Ms. Goldman's hourly rate is $525, and Mr. Brettler's hourly rate is $300.
16 Accordingly, should Defendants prevail on their Motion to Compel Arbitration, they
17 respectfully request that the Court issue an interim fee award in their favor and against Plaintiff 18 and her attorney of record, jointly and severally, in the amount of $18,075, plus Defendants' 19 first appearance fees totaling $710 and the $40 filing fee for this Motion, for a total award of
20 $18,825.
21 I declare under penalty of perjury under the laws of the State of California that the
22 foregoing is true and correct.
23 24
~*5 <126 i:!7
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K:\4612·3\PLE\Singer Decl in Supp of Mot to Compel Arb.wpd
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MOTION TO COMPEL ARBITRATION
LAVELY 8: SINGER
PROFE!:ss!orfAL CORPORATION
JOHN H. LAVEL-Y, JR. MA.RTlN O. SlNGEfl BRIAN G. WOLF LYNDA B. GOLDMAN MICHAEL O. I-IOLT2:
WII-LIAM J. BRIGGS, II PAUL N. SORRELL EVAN N. SPIEGEL
ATTORNEYS AT LAW sUITE 2400
.2049 CENTURY PARI< EAST
LOS ANGE::LES, CALIFORNIA 90067·Z906 TJ;;LE::PHONE (310) 556·3501 TELECOPIER (310) 556·3615 www.LAVELYSINGER.eoM
YAEL E. HOLTKAMP
TODD STANFORD EAGAN BRIG IT K. CONNEL-LY HENRY L. SELF', III MATTKEW E. PANAGIOTIS JESSICA G. BABRleK AI>(OREW B. BRETTI_ER
AI-LISON HART SIEVERS KJ;;VIN JAMES
OF COUNSEL
July 27, 2010
VIA EMAIL: bprocel@millerbarondess.com
Brian Procel, Esq.
MILLER BARONDESS, LLP
1999 A venue of the Stars, Suite 1000 Los Angeles, CA 90067
Re: Casey Affleck and Flemmy Productions. LLC / Amanda White. et aI.
Our File No.: 4612-3
Dear Mr. Procel:
We are litigation counsel to Casey Affleck and Flemmy Productions, LLC. We demand that your client immediately dismiss the lawsuit she filed against my clients in the Los Angeles Superior Court, captioned Amanda White v. Casey Affleck. Flemmy Productions. LLC. and Does 1 through 10. LASC Case No. BC442321 (the "Action"). We further demand that Ms. White immediately submit to Arbitration any and all claims she has against my clients arising from the documentary film Project now known as "I'm Still Here: The Lost Year of Joaquin Phoenix."
As Ms. White is well aware, in January of2009, she and Flemmy entered into a Work-forHire/Independent Contractor/Confidentiality Agreement (the "Agreement") related to her employment by Flemmy. That Agreement requires that all disputes arising between the parties "be determined solely by arbitration" pursuant to the rules of the American Arbitration Association C' AAA"). The parties expressly agreed pursuant to paragraph 4 of the Agreement that "[a]lI disputes which may arise between the parties ... will be determined solely by arbitration in accordance with the rules of the American Arbitration Association."
Your client nevertheless maliciously initiated her Action in Court despite her knowledge that she is bound by an arbitration provision. Indeed, it was Ms. White's responsibility on the
:::Project to have the Agreement containing the arbitration provision and other key production .documents signed by the people working on the film. That included execution of the ~Confidentiality and Non-Disclosure Agreements, which is yet another contract that was brazenly ~breached by Ms. White's instigation of the Action when she filed her salacious Complaint in the Los Angeles Superior Court.
Brian Procel, Esq.
Re: Casey Affleck and Flemmy Productions. LLC / Amanda White. et al.
July 27,2010
Pa e2
Your client's malicious motives in filing a public lawsuit rather than the contractuallymandated arbitration are underscored by the fact that her highly inflammatory (and patently false) claims are all plainly time-barred, with the limited exception of her specious claim for breach of oral contract. Your client's intentional and malicious assertion of time-barred claims is without probable cause. Ms. White alleges in her Complaint that she ceased working on the Project in April of 2009, and the alleged facts which form the gravamen of her claims occurred prior to that time. The Complaint of Discrimination Under the Provisions of the California Fair Employment and Housing Act, which is attached to your client's Superior Court Complaint contains your client's assertion under penalty of perjury dated July 16, 2010, whereby she attests that the conduct on which her claims are based allegedly last occurred on or about March 31, 2009.
Pursuant to Government Code § 12960(d), your client had a year to file her DFEH complaint. However, she did not filed her DFEH complaint until July 16, 2010, and her LASC Complaint followed on July 23,2010. The filing of the Complaint was thus malicious and without probable cause, and your client's continued prosecution of her time-barred claims, whether in the proper arbitral forum or in Court, would be malicious and will expose your client to substantial liability.
Your client's material breaches of her confidentiality obligations under both the Agreement and the Confidentiality and Non-Disclosure Agreement likewise expose Ms. White to substantial liability. In addition to constituting a blatant violation of the agreement to arbitrate set forth in Paragraph 4 of the Agreement. your client's filing of her Complaint in the Los Angeles Superior Court also constituted a breach of her contractual obligation to maintain the confidentiality of all "Confidential Information" set forth in Paragraph 5 of the Agreement. Your client's Complaint wrongfully disclosed "information or material proprietary to the Company andlor related to the Picture or not known generally to the public" pertaining to the documentary film Project. In the Agreement, your client acknowledged that her breach of that provision would cause my client irreparable injury. That is what transpired.
Unfortunately. your client's malicious lawsuit has already caused my clients substantial harm, for which your client will be held fully responsible. Your client also knows that her agent at UTA was involved in her deal on the Project, and that the documentary evidence and witness testimony, including from her agent, will squarely refute her self-serving contention that she was
".supposedly entitled to a deferred payment of $50,000 in addition to monies to be paid during -production. Your client's unfounded harassment lawsuit was concocted only after she failed in :';her devious attempt extort a better production deal by walking off the film project and withholding i}ey production documents she had tried to ransom for a bigger pay-day. Ms. White should ['}ecognize that my clients will ultimately prevail with regard to her fabricated harassment claims, ::1 which you and your client-friend only recently conjured up and asserted for the first time well over
.·1·
f'~ 1:: ~
Brian Procel, Esq.
Re: Casey Affleck and Flemmy Productions, LLC I Amanda White, et aI.
July 27, 2010
Pa e 3
15 months after your client-friend Ms. White had stopped working on the film Project. Even if they were not summarily tossed out on statute of limitations grounds, Ms. White's outlandish fictional harassment claims would assuredly be proven false on the merits by extensive documentary evidence and the testimony of multiple witnesses.
We demand that your client inunediately dismiss the Action. We further demand that your client agree to submit all of her claims against my clients to Arbitration pursuant to the terms of the Agreement. Be advised that unless we are informed by not later than the close of business on Tuesday. July 27, 2010 that your client will stipulate to submitting all claims arising between our respective clients to Arbitration, we intend to promptly file a Motion to Compel Arbitration pursuant to Code of Civil Procedure § 1280 et seq. If it is necessary for us to file such a Motion, we intend to seek recovery of our clients' attorneys' fees and costs incurred.
We further demand that you and your client undertake immediate steps to preserve all evidence reflecting communications with media outlets by your firm, Ms. White andlor by others acting on her behalf pertaining to the claims and allegations asserted in the Complaint, including but not limited to representatives of the Hollywood Reporter, since such materials may evidence further breaches of your client's confidentiality obligations. which may expose her to additional substantial liability. The failure to preserve the demanded materials may likewise expose your client to additional legal claims.
Pursuant to Paragraph 4 of the Agreement, this letter shall also serve as written notice on behalf of Flemmy Productions, LLC, requiring arbitration of all disputes, and designating as Arbitrator the Han. Joseph Hilberman (Ret.). The claims to be arbitrated shall be all disputes arising between your client and mine, including all of your client's claims (assuming that she remains determined to prosecute them), as well as my client's affirmative claims against Ms. White, including inter alia claims arising from your client's breaches of the Agreement and of her confidentiality obligations.
Filing the Action in the Los Angeles Superior Court constituted a breach of your client's contractual obligation to submit all disputes solely to arbitration. So, too, was her Court filing a brazen violation of her confidentiality obligations under the Agreement and pursuant to the terms of the Confidentiality and Non-Disclosure Agreement to which Ms. White also agreed. Unless your client is intent upon exacerbating the liability to which she is already exposed, she would be
~::well advised to dismiss the Action and to stipulate to submit all claims to Arbitration.
Your client should govern herself accordingly.
Brian Proeel, Esq.
Re~ Casey Affleck and Flelllll\Y fXoductiollS,LL(! I &mandaWhite •. et al.
Jilly .21 t20 10
Pae 4
ThisJetterdoes uotconstitute.acpmpJete or exhaustive smeroentQ:fail of myclieAts' rights Qfclaims.Not1:ti:ngstated herein is intendedas,nor should it be deemed tocons.itute.~a waiver or relinquishment of allY Qfmy'C{jents' rights()! remeui~. vibethet lega1Qf equihlble •. ~ of which
. - - ,. .
are hereby expressly tesetved.
MDS/lg
CC~ Mr. Casey AffleCk '('via email)
Mr. Joaquin phoenix (viaei1l4iiJ StevenH.Burkow. Esq. (via email) David weber~ Esq .. (vlitt!l1lfJil)
AI grandenste1n, Esq. (wttemaiI) Lynda B. Goldman. ESq.
Andrew B. Brettlet~ Esq .
. ,. ~
MILLER BARONDESS, LLP
ATTORNEYS AT LAW 1999 AVENUE OF THE STARS SUITE 1000
LOS ANGElES. CALIFORNIA 90067 TEL: (310) 552-4400
FAX: (310) 552-8400
www.millerbarondess.com
July 27,2010
BRIAN A PROCEL
DIRECT DIAL: (310) 552-5235
EMAIL: BPROCEL@MILLERBARONDESS.COM
VIA E-MAIL
Martin D. Singer, Esq. Lavely & Singer
2049 Century Park East, Suite 2400 Los Angeles, CA 90067
Re: Amanda White v. Casey Affleck, et al.
Los Angeles Superior Court Case No. BC 442321
Dear Mr. Singer:
I am in receipt of your letter dated July 27, 2010. Please send me copies of the agreements to which you refer in your letter, including the Work-for-HirelIndependent Contractor/Confidentiality Agreement and the Confidentiality and Non-Disclosure Agreement.
Very truly yours,
~
BAP:cc
70368.1
•
LpNEl.V&$ING,ER
I'ROFI!Ssi,oNAl;. eOIl!'ORATION
$UITE 24Qo,
YAEL E, HOLTKAMP TODQ S,i'ANFORtJ EAGAN a'RIGITK' CONNl:!:LLy HENR'( I,..,SELF,III
MA'l'TH E ..... E. ,!'!ANAGIOTIS J,ESSI,OA 'G.SAEUUCK ANtiREW B. iutE'i"tt..1!R
JOHN H. l-AVELY, JR" MARTIN O. SINGER SR1AN G. WOLF LyNOAS. GOt..QMAN MICHAEt..o, HQLTZ WiLt;I"'" u, I3RIGG:'S,U PAtJL. N. '$ORRl:!:\.iL EVAN N. SPIEGEL
ATTORNEYS ATLI>.,W
2049 CENTURY PARK EAST
LOS ANGELES, CALIFORNIA 90067.2,906 TELEPHONE (a fO)S6!h3S01 TELECOPIERt3fio)S56-3l>''e. www;L,A.Vj;;L.YS,IN~E'R.<;>o ...
At..t.iso,N HAR'I'SIe:Vl!RS, KEVIN JAMES
OF COUNSEL.
July 27. 2010
VIA EMAIL:bpracel@tttillerbarondess.cmn
Brian Procel,Esq.
MILLER llAR()NDE$S, l.,LP
1999 Avenue ()'f the Stars, Suite laOO Los Angeles, CA ~7
R.e: casey Aftleek and mertlitly Productiolls~ LLC,jAnianda Whitf" elal.
Our Fi1eNo~: 461z,.3 ' '
Dear Mr. Procel:
Weareiureeeipt ,of your letter sentthisaf'ter,noon,. in whidb :y::ouaskus to '~end you copies of theagreemeht$ ~ed :py YPUr cliettt. Enclosed lsa C()})yofM ¢~il Jr,OID yO'lttqIi~nt to mine dated January 17,2009; in which Ms. White ,ac!mowledges titat :she signed the 'agreements in. question. AccordingIy f you sl,imrl(lobtain;copies of thesig,ne(l· agreements froUl Ms. White,
Sm~ it was Y01ll: cliene s t'e$ponsihility on. the P:r:pj~ to· Jrotonly ex'ec\tte t~ required dOCl111len.tsherself, but 'tU'al$Q ensnre: that .theI1~saty [pl'o:du:cllon doot1llleI1ts weresignetl' by
others W'orkihgQiltbe Ptoject~ Ms. Wbite :sh9u,ld provide you,: wltllcopies.. '.
As stated in 1l1:yearUer co:tte.spoodenc(i,wemten4 to:filea: M(:)tipn tQCompei A,rbinatiQn. on July 28, 2(J10unless yOUf: client 'agrees by the close ofbllSlnesS .tOday toitnm.ediawly :dismiSs the Actiol1and to submit au ot he1 Qlaitns to Arbitration. If that oecomesnecessary, we will be se.elting recovery of theattmneysl fees and. costs incurred-by my QUents.
~:MDSllg
:: :Enclosure ::i
'"t
!; be: Mr. Casey Affleck (v{aemait)
Mr.. .Jcaqula PhoeniX {Via emal:l} Steven H. :Burkow. Esq. (via emqiT)
David Weber, Esq. (Via email) AJ Brandenstein.Esq, (via email) LyndaB.GQldrnan, Esq.
•
From: "Amanda White" <awhite@goldiemail.com> Date: January 17,20096:17:28 PM PST
To: <john.merrick@sbcglobal,net>
Subject: Re: So
Hey, I am totally fine ... and I agree with everything you've said here ... 1 already have signed an NDA and devorah and jeff did last night as well. I get it and respect it. This is not my world, you know, so there is a learning CUNe on the decorum side I suppose.rinl am concerned about the number of ppl who get suspicious of what is going on, and it makes me nervous, but I can deal with it. I have maintained the ruse with everyone I know but am periodically confused by my mulliple roles of both being in and producing, the film. That is why I am looking to you for direction in the moment. 001 am enjoying myself far too much to quit and I agree, I am producing this project well and it is a good fit for me. o[JMagdalena is fine and felt bad for slapping AnLthey spoke and there is nothing to be worried about there ... she wants to do the project...1 am learning how best to handle her as we go.OOI think what you've written here explains enough to me that I can better prepare the crew in the future. ODi also want to be able to prepare people appropriately and feel things out in terms of their comfortabillty because an NDA doesn't protect us from a sexual harassment lawsuit. And as much as I agree with Ant's sense of humor in the situation and probably would have sat in that room and laughed at what he said, I can also see why she had the reaction she did. O[JAlas, I am a wornan.tltiln the future, I can talk to crew more thoroughly about things that may happen and I suppose now I know the extent to which that
might go. OOWater under the bridge. Moving on. Will be sleeping like a motherfucker
tonight. 0 DAmanda
NOTICE OF MOTION AND MOTION TO COMPEL ARBITRATION OF
7 PLAINTIFF'S CLAIMS AGAINST DEFENDANTS CASEY AFFLECK AND FLEMMY PRODUCTIONS, LLC; REQUEST FOR ATTORNEY'S FEES AND COSTS;
8 MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF CASEY
AFFLECK, AUGUST J. BRANDENSTEIN, DAVID WEBER,
9 AND MARTIN D. SINGER
[Filed concurrently with (proposed) Order]
•
•
1 2 3
PROOF OF SERVICE 1013A(3) C.C.P. Revised 5/1/88
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 4 18 and not a party to the within action. My business address is 2049 Century Park East, Suite 2400, Los Angeles, California 90067-2906.
5 6
On the dated indicated below, I served the foregoing document described as:
11 on the interested parties in this action by placing: [] the original document - OR - [X] a true and correct copy thereof enclosed in sealed envelopes addressed as follows:
10
12
Louis R. Miller, Esq. 13 Brian Procel, Esq.
Mira Hashmall, Esq.
14 MILLER BARONDESS, LLP
1999 Avenue of the Stars, Suite 1000 15 Los Angeles, CA 90067
Telephone: (310) 552-4400
16 Facsimile: (310) 552-8400
17
Attorneys for Plaintiff Amanda White
18 [Xl BY PERSONAL SERVICE: I delivered said envelope(s) to the offices of the addresseets), via hand delivery.
19 20 21 22 23 :24
~~ "
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed July 28, 2010, at Los AngeleSj1ali~~l
. Banco
t] 27
28
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