Dad & Son Want Second Shot at ‘X Factor’

MIAMI (CN) - A man and his elderly father claim former "American Idol" judge Simon Cowell's new show, "The X Factor" thought the father-son duo was so hot that Fox TV subjected them to hours of "physical and mental exertion that no other contestants that day had to endure" before their audition, and the exhaustion showed in their performance, which got them booted from the show.

Stephen, Hyman and Helen Marks filed a pro se complaint against Fox, The X Factor, and Simon Cowell in Miami-Dade Court.

Stephen Marks, 54, and his father Hyman, 86, say they have always been aspiring singers, and in April this year they went to Miami to audition for "The X Factor," which will debut on Fox in the fall.

Competing separately, Hyman and Stephen say, they advanced through three rounds, beating more than 8,000 other contestants. The fourth round, in June, included interviews celebrity judges Cowell, Paula Abdul and two other judges, before an audience of several thousand people, according to the complaint.

For this round, the Markses say, "The X Factor" filmed them more "than all other contestants that day combined" because they were only father-son team to make it to "this elite group."

The Markses claim The X Factor spent more than 5 hours filming multiple takes of the Markses outside in 96-degree weather, and inside, conducting interviews and having the father and son "dancing wildly."

The Markses claim this special treatment was "clearly discriminatory, since no other contestant that day was forced to endure that level of physical and mental exertion."

They add: "Because of the physical and mental exertion that no other contestants that day had to endure, both Hyman Marks and Stephen Marks lost the incredible opportunity they had to be at their best in front of the judges and audience."

The Markses say they were so tired by the time they got to the actual audition that Hyman could not remember how old his wife and son were when he was questioned on stage.

The father and son received two out of four votes; three votes were needed to pass to the next round.

Simon Cowell said he voted "no" because Hyman "did not look like he could withstand the rigors and stress of going into the deeper rounds as a candidate on The X Factor," the complaint states.

The Marks also claim The X Factor staff engaged in "unethical behavior" after the Markses left the stage, when they were "ambushed" by a "Sarah Jessica Parker look-alike" and "a woman behind a curtain who could see him although he couldn't see her, asking him in Gestapo-like fashion confrontational questions and denying that he had passed successfully through three prior auditions, and denying the prior auditions ever took place."

The Markses seek $3 million in damages and another shot at round four, so the judges can see the "real" them.

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