Ninth Circuit Orders Arbitration in ‘Leaving Neverland’ Dispute Between Jackson Estate, HBO

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

(CN) — Michael Jackson’s estate won its quest to pull HBO into arbitration to settle claims the 2019 documentary “Leaving Neverland” disparaged the pop legend with child abuse allegations.

The two-part documentary by director Dan Reed centers 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 for damages and to force arbitration, saying Home Box Office — informally called HBO — produced a “one-sided” documentary that violated a nondisparagement clause from a 1992 agreement between the parties.

The network countered, calling the agreement invalid and the claims dismissible under California’s anti-SLAPP statute, which protects against meritless lawsuits that impede free speech rights.

In September 2019, U.S. District Judge George Wu denied HBO’s bid to toss the lawsuit and ordered arbitration with both the Jackson estate and its Optimum Productions.

But two months later, Wu granted the network’s request to pause arbitration, saying the Ninth Circuit should review HBO’s claim that the out-of-court proceedings would impede its First Amendment rights to create “newsworthy works” about a celebrity.

More than a year later, a Ninth Circuit panel weighed in Monday and found the parties’ 1992 agreement clearly contained a broad arbitration provision.

In a 4-page, unpublished and unsigned memorandum, the panel rejected HBO’s contract validity challenge and cited text in the agreement that said “any dispute” was to be settled in arbitration.

“As part of the confidentiality provisions, HBO agreed that it would not ‘make any disparaging remarks concerning’ Jackson,” the memorandum states, citing the circuit’s 1977 decision in Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers Union. “An arbitration clause can still bind the parties, even if the parties fully performed the contract years ago.”

The panel said claims must be arbitrated because HBO used video from Jackson’s performances to make its allegations in the documentary and that those performances fall under the 1992 agreement.

“We may only identify whether the parties agreed to arbitrate such claims; it is for the arbitrator to decide whether those claims are meritorious,” the panel held.

U.S. Circuit Judges Richard A. Paez, a Bill Clinton appointee, Lawrence VanDyke, a Donald Trump appointee, and U.S. District Judge Karin J. Immergut, sitting by designation from the District of Oregon, made up the panel. Immergut is also a Trump appointee.

A spokesperson for HBO did not immediately respond to a request for comment. Theodore J. Boutrous of Gibson, Dunn & Crutcher represents the network.

In a statement Monday, Howard Weitzman and Jonathan Steinsapir of Kinsella Weitzman, counsel for the Jackson estate, applauded the ruling.

“The trial judge and now the Ninth Circuit Court of Appeals have unanimously rejected HBO’s arguments,” the statement said. “In the court’s own words, HBO ‘agreed that it would not make any disparaging remarks concerning Jackson.’ It’s time for HBO to answer for its violation of its obligations to Michael Jackson.”

The Jackson estate is also represented by Bryan Freedman of Freedman & Taitelman.

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