Arbitration Likely in $100 Million Fight Between Michael Jackson Estate and HBO

This combination photo shows Wade Robson, left, and James Safechuck who appear in the Michael Jackson documentary “Leaving Neverland” during the Sundance Film Festival in Park City, Utah. (Photo by Taylor Jewell/Invision/AP)

LOS ANGELES (CN) – A federal judge indicated Thursday he will deny entertainment network HBO’s request to keep a dispute with the estate of pop legend Michael Jackson over the “Leaving Neverland” documentary out of arbitration.

The documentary focuses on the accounts of two men, Wade Robson and James Safechuck, who claim they were sexually abused by Jackson over several years when they were children.

Jackson’s estate sued Home Box Office – informally called HBO – to force arbitration, saying the “one-sided” documentary violated a nondisparagement clause from a 1992 agreement between the parties.

The estate called the documentary an attempt at “posthumous character assassination” and said Jackson had been acquitted of child molestation charges in a 2005 trial in California.

“Ten years after his passing, there are still those out to profit from his enormous worldwide success and take advantage of his eccentricities,” the complaint says. “Michael is an easy target because he is not here to defend himself, and the law does not protect the deceased from defamation, no matter how extreme the lies are.”

HBO called the agreement invalid in court papers and said the estate’s demand for $100 million in damages, coupled with an arbitration request, was meant to buttress their media campaign against the documentary’s release.

HBO’s attorney Theodore Boutrous with Gibson, Dunn & Crutcher moved to dismiss the case under California’s anti-SLAPP statute, which protects against meritless complaints that impede free speech rights.

“Plaintiffs’ unconstitutional conduct falls squarely within the boundaries of what the anti-SLAPP law was enacted to prevent – deep-pocketed plaintiffs using the prospect of expensive and time-consuming litigation (in whatever forum) to chill speech they do not like,” HBO said in the filing.

But at a hearing Thursday in Los Angeles, U.S. District Judge George Wu tentatively denied HBO’s request to toss the complaint. But he noted an appeal is foreseeable since higher courts are split as to whether SLAPP applies to arbitration petitions.

“Lots of these issues are so close,” Wu said. “Either side will probably appeal. Maybe it doesn’t make a difference what I do.”

Boutrous told Wu the purpose of the complaint is to “abuse the system to chill speech” regarding child sexual abuse.

“This wasn’t a traditional petition for arbitration,” Boutrous told Wu, adding that the complaint – filed weeks before “Leaving Neverland” aired on HBO – hardly focused on the arbitration request.

“I can’t apply SLAPP in this context,” Wu told Boutrous. “Perhaps [plaintiffs] should’ve asked for arbitration first but there was no indication HBO would have agreed to it.”

The Jackson estate is represented by Jonathan Steinsapir of Kinsella Weitzman Iser Kump & Aldisert.

Steinsapir said in court papers opposing HBO’s motion that the anti-SLAPP statute doesn’t apply to claims under federal law, citing the Ninth Circuit’s 2013 decision in Doe v. Gangland Products.

Wu said a final ruling would issue before September 30.

An HBO spokesperson did not return a request for comment by press time.

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