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Op-Ed

The missing actress

January 31, 2022

An actress appears in a movie trailer but doesn't appear in a movie. Can we not enjoy the actors who weren't edited out?

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

Fans of perplexing damages calculations will enjoy the proposed class action suit filed in federal court recently against Universal City Studios for an allegedly misleading film trailer.

The complaint notes that an actress the plaintiffs liked, Ana De Armas, was in the trailer for "Yesterday" but didn’t show up in the movie. Hence, the suit said, they each lost $3.99 and “suffered injury-in-fact.”

Did they?

I suppose it’s possible someone watched this movie only because of the promise of Ana De Armas — but they still got to watch a movie.

Was there emotional distress? Were the plaintiffs worried about what happened to Ana? Was this a cynical bait and switch?

This is what the suit says: “Because consumers were not provided with the movie product that they were promised by the 'Yesterday' movie trailer, they were effectively provided with no value at all.”

Ana De Armas in the "Yesterday" trailer. Gaze upon her longingly.

Here’s what the suit does not say: whether or not the plaintiffs enjoyed the movie. Is a film completely worthless because one actor is not in it?

Was the time spent watching this De Armas-less film a horrible waste when the plaintiffs could have been binging on real De Armas movies?

Is it possible the plaintiffs would have enjoyed the movie less if it included the De Armas scenes that the director said he cut to make the film better?

Discovery on these issues should be fascinating.

Mini review: I’ve seen 'Yesterday' and it’s really good. I watched it without having any idea who Ana De Armas was or whether she was in it.

Comic ruling. Last week I pointed you to a concurring opinion in McDougall v. County of Ventura by Ninth Circuit Court of Appeals Judge Lawrence VanDyke in which he included a parody of a ruling he expected if the case went to an en banc hearing.

I thought it was funny. Some of you may not have thought so. Comedy is a subjective art.

It turns out that this judge has a habit of needling people he disagrees with. Last summer, for example, some feathers got ruffled after VanDyke, in a dissent, complained that the court had repeatedly misapplied the Antiterrorism and Effective Death Penalty Act and that his “diligent clerk” had compiled a long list of citations to prove his point. The next sentence was this: “But including it felt awkward — like trying to shame a career offender with his rap sheet.”

A minor kerfuffle ensued. How dare he compare fellow judges to criminals!

VanDyke may not be someone I’d ever want to hang out with — or agree with on just about anything — but come on. Is a little ribbing so terrible?

The correct response to someone like VanDyke is to fight comedy with comedy. In the McDougall case, if it does go to an en banc hearing that overrules VanDyke, one of two things must happen: his parody ruling should be adopted verbatim as the majority decision or the court should write its own parody of the VanDyke voice.

It may be a little baby crying voice. The judge, in what may be a Trump appointee tradition, did some weeping during his confirmation hearing after the American Bar Association had some less than nice things to say about him. The ABA letter to Congress claimed VanDyke “lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”

Sounds like a judge to me. (Come on! It’s a joke!)

If nothing else, the McDougall ruling has introduced a concept that should be repeated, if not required: Judges on each side of a disputed ruling writing fake opinions for the other side.

Think of it as an empathy exercise. Or a roast.

If we can laugh at each other, maybe we’ll all calm down.

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