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Pg ID 756

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
:
:
:
Plaintiff,
:
:
v.
:
:
NICOLAS WINDING REFN
:
An Individual – citizen of
:
Denmark,
:
BOLD FILMS INC.
:
A Delaware Corporation,
:
MARC PLATT PRODUCTIONS INC. :
A California Corporation,
HOSSEIN AMINI, an Individual,
Citizen of Iran,
ALBERT BROOKS, an Individual,
Citizen of California,
GIGI PRITZKER, an Individual, Citizen
of Illinois,
MARC PLATT, an Individual, Citizen
of California,
MICHEL LITVAK, an Individual,
Citizen of California,
JOHN PALERMO, an Individual,
Citizen of California,
ADAM SIEGEL, and Individual, Citizen
of California,
SONY PICTURES ENTERTAINMENT
INC.,
A California Corporation,
NETFLIX INC,
A Delaware Corporation,
AMAZON.COM INC., A California
Corporation,
APPLE INC.,
A California Corporation,
MARTIN H. LEAF,

Civil Case No. 2:16-cv-12149-VARMKM
Hon. Victoria A. Roberts (presiding)
Hon. Mona K. Majzoub (referral)

 2:16-cv-12149-VAR-MKM Doc # 31 Filed 01/06/17 Pg 2 of 52

Pg ID 757

GOOGLE INC.,
A Delaware Corporation,
AMERICAN MULTI-CINEMA, INC.,
A Missouri Corporation doing
business as AMC Livonia 20,
Joint and Several
Defendants.

SAMUEL H. GUN (P29617)
2057 Orchard Lake Road
Sylvan Lake, Michigan 48320
Tel: 248-335-7970
gunneratlaw@comcast.net
MARTIN H. LEAF PLLC
Martin H. Leaf (P43202)
2055 Orchard Lake Road
Sylvan Lake, MI 48320
Tel: 248-687-9993
leafmartin@gmail.com
Attorneys for Plaintiff

REED SMITH LLP
Harrison J. Dossick (CA Bar No. 128319)
Christine M. Neuharth (CA Bar No. 263509)
1901 Avenue of the Stars, Ste. 700
Los Angeles, CA 90067
Tel: 310-734-5200
hdossick@reedsmith.com
cneuharth@reedsmith.com
HONIGMAN MILLER SCHWARTZ &
COHN LLP
James E. Stewart (P23254)
Andrew M. Pauwels (P79167)
315 E. Eisenhower Parkway, Suite 100
Ann Arbor, MI 48108
Tel: 734-418-4256
jstewart@honigman.com
apauwels@honigman.com
Attorneys for Defendants Bold Films, Inc.;
Sony Pictures Entertainment Inc.; Netflix,
Inc.; Amazon.com, Inc.; American MultiCinema, Inc.; Marc Platt Productions,
Inc.; Albert Brooks; and John Palermo

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Pg ID 758

REED SMITH LLP
Harrison J. Dossick (CA Bar No. 128319)
Christine M. Neuharth (CA Bar No. 263509)
1901 Avenue of the Stars, Suite 700
Los Angeles, CA 90067
Tel: 310-734-5200
hdossick@reedsmith.com
cneuharth@reedsmith.com
SCHIFF HARDIN LLP
Thomas M. Crispi (NY Bar No. 2584332)
666 Fifth Avenue, Suite 1700
New York, NY 10103
Tel: 212-745-0865
tcrispi@schiffhardin.com
Jessica A. Sprovtsoff (P70218)
350 S. Main Street, Suite 210
Ann Arbor, MI 48104
Tel: 734-222-1518
jsprovtsoff@schiffhardin.com
Attorneys for Defendant Apple Inc.
WILSON SONSINI GOODRICH &
ROSATI, P.C.
Brian M. Willen (P75110)
1301 Avenue of the Americas, 40th Floor
New York, NY 10019
Tel: 212-999-5800
bwillen@wsgr.com
Attorneys for Defendant Google, Inc.
DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT
For the reasons set forth in the attached brief, Defendants, by and through
their attorneys—Reed Smith LLP and Honigman Miller Schwartz and Cohn LLP
for Bold Films, Inc., Sony Pictures Entertainment Inc., Netflix, Inc., Amazon.com,
Inc., American Multi-Cinema, Inc., Marc Platt Productions, Inc., Albert Brooks,

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Pg ID 759

and John Palermo; Reed Smith LLP and Schiff Hardin LLP for Apple Inc.; and
Wilson Sonsini Goodrich and Rosati P.C. for Google, Inc.*—hereby move this
Court pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for an
order dismissing Plaintiff’s Complaint in its entirety and with prejudice.
Pursuant to Local Rule 7.1, on January 3, 2016, counsel for Defendants
contacted Plaintiff’s counsel requesting concurrence in relief sought in this motion,
and concurrence has not been reached.
HONIGMAN MILLER SCHWARTZ AND COHN LLP

By:

*

/s/ James E. Stewart
James E. Stewart (P23254)
Andrew M. Pauwels (P79167)
315 E. Eisenhower Pkwy., Ste. 100
Ann Arbor, MI 48108
Tel: 734-418-4256
jstewart@honigman.com
apauwels@honigman.com
Attorneys for Defendants Bold Films, Inc.;
Sony Pictures Entertainment Inc.; Netflix,
Inc.; Amazon.com, Inc.; American MultiCinema, Inc.; Marc Platt Productions, Inc.;
Albert Brooks; and John Palermo

Specially Appearing Party Nicolas Refn (“Refn”), who resides in Denmark,
concurrently moves for dismissal under FRCP 12(b)(5) on the grounds that he was
not properly served with the Summons and Complaint. Without waiving such
grounds for dismissal, should the Court not grant his Rule 12(b)(5) Motion, Refn
respectfully joins in this Rule 12(b)(6) Motion.

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Pg ID 760

REED SMITH LLP
By: /s/ Harrison J. Dossick
Harrison J. Dossick (CA Bar No. 128319)
Christine M. Neuharth (CA Bar No. 263509)
1901 Avenue of the Stars, Suite 700
Los Angeles, CA 90067
Tel: 310-734-5200
hdossick@reedsmith.com
cneuharth@reedsmith.com
Attorneys for Defendants Bold Films, Inc.;
Sony Pictures Entertainment Inc.; Netflix,
Inc.; Amazon.com, Inc.; American MultiCinema, Inc.; Marc Platt Productions, Inc.;
Albert Brooks; and John Palermo; and
Apple Inc.
SCHIFF HARDIN LLP
By: /s/ Jessica A. Sprovtsoff
Thomas M. Crispi (NY Bar No. 2584332)
Jessica A. Sprovtsoff (P70218)
350 S. Main Street, Suite 210
Ann Arbor, MI 48104
Tel: 734-222-1518
tcrispi@schiffhardin.com
jsprovtsoff@schiffhardin.com
Attorneys for Defendant Apple Inc.
WILSON SONSINI GOODRICH & ROSATI, P.C.
By: /s/ Brian M. Willen
Brian M. Willen (P75110)
1301 Avenue of the Americas, 40th Floor
New York, NY 10019
Tel: 212-999-5800
bwillen@wsgr.com
Attorneys for Defendant Google, Inc.
January 6, 2017

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Pg ID 761

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
:
:
:
Plaintiff,
:
:
v.
:
:
NICOLAS WINDING REFN
:
An Individual – citizen of
:
Denmark,
:
BOLD FILMS INC.
:
A Delaware Corporation,
:
MARC PLATT PRODUCTIONS INC. :
A California Corporation,
HOSSEIN AMINI, an Individual,
Citizen of Iran,
ALBERT BROOKS, an Individual,
Citizen of California,
GIGI PRITZKER, an Individual, Citizen
of Illinois,
MARC PLATT, an Individual, Citizen
of California,
MICHEL LITVAK, an Individual,
Citizen of California,
JOHN PALERMO, an Individual,
Citizen of California,
ADAM SIEGEL, and Individual, Citizen
of California,
SONY PICTURES ENTERTAINMENT
INC.,
A California Corporation,
NETFLIX INC,
A Delaware Corporation,
AMAZON.COM INC., A California
Corporation,
APPLE INC.,
A California Corporation,
MARTIN H. LEAF,

i

Civil Case No. 2:16-cv-12149-VARMKM
Hon. Victoria A. Roberts (presiding)
Hon. Mona K. Majzoub (referral)

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Pg ID 762

GOOGLE INC.,
A Delaware Corporation,
AMERICAN MULTI-CINEMA, INC.,
A Missouri Corporation doing
business as AMC Livonia 20,
Joint and Several
Defendants.

SAMUEL H. GUN (P29617)
2057 Orchard Lake Road
Sylvan Lake, Michigan 48320
Tel: 248-335-7970
gunneratlaw@comcast.net
MARTIN H. LEAF PLLC
Martin H. Leaf (P43202)
2055 Orchard Lake Road
Sylvan Lake, MI 48320
Tel: 248-687-9993
leafmartin@gmail.com
Attorneys for Plaintiff

REED SMITH LLP
Harrison J. Dossick (CA Bar No. 128319)
Christine M. Neuharth (CA Bar No. 263509)
1901 Avenue of the Stars, Ste. 700
Los Angeles, CA 90067
Tel: 310-734-5200
hdossick@reedsmith.com
cneuharth@reedsmith.com
HONIGMAN MILLER SCHWARTZ &
COHN LLP
James E. Stewart (P23254)
Andrew M. Pauwels (P79167)
315 E. Eisenhower Parkway, Suite 100
Ann Arbor, MI 48108
Tel: 734-418-4256
jstewart@honigman.com
apauwels@honigman.com
Attorneys for Defendants Bold Films, Inc.;
Sony Pictures Entertainment Inc.; Netflix,
Inc.; Amazon.com, Inc.; American MultiCinema, Inc.; Marc Platt Productions,
Inc.; Albert Brooks; and John Palermo
ii

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Pg ID 763

REED SMITH LLP
Harrison J. Dossick (CA Bar No. 128319)
Christine M. Neuharth (CA Bar No. 263509)
1901 Avenue of the Stars, Suite 700
Los Angeles, CA 90067
Tel: 310-734-5200
hdossick@reedsmith.com
cneuharth@reedsmith.com
SCHIFF HARDIN LLP
Thomas M. Crispi (NY Bar No. 2584332)
666 Fifth Avenue, Suite 1700
New York, NY 10103
Tel: 212-745-0865
tcrispi@schiffhardin.com
Jessica A. Sprovtsoff (P70218)
350 S. Main Street, Suite 210
Ann Arbor, MI 48104
(734) 222-1518
jsprovtsoff@schiffhardin.com
Attorneys for Defendant Apple Inc.
WILSON SONSINI GOODRICH &
ROSATI, P.C.
Brian M. Willen (P75110)
1301 Avenue of the Americas, 40th Floor
New York, NY 10019
Tel: 212-999-5800
bwillen@wsgr.com
Attorneys for Defendant Google, Inc.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT

iii

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Pg ID 764

ISSUES PRESENTED
1. Whether this Court should dismiss Plaintiff Martin Leaf’s causes of
action because (1) they are barred by claim and issue preclusion, (2)
Plaintiff has failed to plead a claim on which relief can be granted under
Rule 12(b)(6), and/or (3) the motion picture and related advertising at
issue in this case is protected speech under the First Amendment, which
the MCPA may not regulate?
Answer: Yes.

iv

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Pg ID 765

STATEMENT OF CONTROLLING AUTHORITY
Defendants Bold Films, Inc., Sony Pictures Entertainment Inc., Netflix, Inc.,
Amazon.com, Inc., American Multi-Cinema, Inc., Marc Platt Productions, Inc.,
Albert Brooks, John Palermo, Apple Inc., and Google, Inc. state that the
controlling and most appropriate authority for the arguments asserted and relief
sought are as follows:
•

Mr. Leaf has failed to state a claim upon which relief can be granted:
Rule 12(b)(6) of the Federal Rules of Civil Procedure, Bell Atl. Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009).

•

Claim and issue preclusion bars Mr. Leaf’s causes of action: Dart v.
Dart, 460 Mich. 573, 586; 597 N.W.2d 82, 88 (1999); Wallace v. JP
Morgan Chase Bank, N.A., No. 13-13862, 2014 WL 4772029 (E.D.
Mich. Sept. 24, 2014); and Lund v. Citibank (West) FSB, No. 07-CV10686-DT, 2007 WL 3408468 (E.D. Mich. Nov. 14, 2007).

•

Mr. Leaf has not stated a claim under the Michigan Consumer
Protection Act: MCL § 445.903(1).

•

The First Amendment of the United States Constitution protects
expressive works like the motion picture Drive and its related
advertising: Rogers v. Grimaldi, 875 F.2d 994, 996 (2d Cir. 1989).

v

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Pg ID 766

TABLE OF CONTENTS
Page
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1
BACKGROUND FACTS AND PROCEDURAL HISTORY .................................. 5
A.

The Trailer ....................................................................................................... 5

B.

The Picture ....................................................................................................... 7

C.

Mr. Leaf And Ms. Deming See The Trailer At A Theater In Livonia;
A Week Later They See Drive At A Theater In Novi ..................................... 8

D.

Mr. Leaf Files The State Court Action On Behalf Of Ms. Deming For
Injunctive And Other Relief For Alleged Violations Of The MCPA ............. 9

E.

The Ensuing State Court Action Proceedings ............................................... 11

F.

1.

The State Action Defendants Move For Summary Disposition ......... 11

2.

Mr. Leaf Files Objections to the Order Granting Summary
Disposition, Files A New Motion to Amend the FAC, and
Moves to Disqualify Judge O’Brien ................................................... 12

3.

The State Appellate Proceedings......................................................... 13

The Allegations, Theories, Claims And Relief Pleaded Here By Mr.
Leaf, The Plaintiff, Are The Same As Those Raised By Mr. Leaf, The
Attorney, In The State Court Action ............................................................. 15

LEGAL STANDARD .............................................................................................. 16
ARGUMENT ........................................................................................................... 17
I.

II.

III.

Mr. Leaf Improperly Attempts To Relitigate Issues That Were
Decided On The Merits In The State Court Action....................................... 17
A.

Res Judicata Bars Relitigation of all Counts in the FAC ................... 17

B.

The Issues Raised In Mr. Leaf’s Civil Conspiracy Claim Were
Already Adjudicated In The State Action ........................................... 22

The Fac Fails To State A Claim Under The Mcpa ........................................ 23
A.

Mr. Leaf Has Failed To State A Claim Under MCPA Section
445.903(1)(s) ....................................................................................... 24

B.

Mr. Leaf’s Claim Under Section 445.903(1)(CC) Of The
MCPA Also Is Legally Defective ....................................................... 27

Mr. Leaf’s Claims Are Barred By The First Amendment ............................. 28
i

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A.

Pg ID 767

Motion Pictures And Their Related Advertising Are Forms Of
Speech Protected By The First Amendment ....................................... 28

IV.

The Third Count For Civil Conspiracy, Predicated On The Fatally
Flawed Mcpa Claims, Must Be Dismissed.................................................... 32

V.

Mr. Leaf Has Failed To Articulate A Claim For Recovery Against The
Distributor Defendants Under Any Legal Theory ......................................... 33

CONCLUSION ........................................................................................................ 34

ii

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Pg ID 768

TABLE OF AUTHORITIES
Page(s)
Cases
Alston v. Advanced Brands & Importing, Inc.,
No. Civ. 05-72629, 2006 WL 1374514 (E.D. Mich. May 19, 2006) ................. 23
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................................ 17
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................................ 17
Bowens v. Aftermath Ent.,
No. 250984, 2005 WL 900603 (Mich. Ct. App. Apr. 19, 2005) ........................ 29
Chimenti v. Apple Vacations, Inc.,
No. 208446, 2000 WL 33401822 (Mich. Ct. App. Nov. 17, 2000) ................... 24
Cliff Notes, Inc. v. Bantam Doubleday Dell Publ’g Group, Inc.,
886 F.2d 490 (2d Cir. 1989) ............................................................................... 31
Dart v. Dart,
460 Mich. at 586 N.W.2d at 88 (1999) .............................................................. 18
Dochenetz v. Elliot Leveling, Inc.,
No. 257057, 2005 WL 3481446 (Mich. Ct. App. Dec. 20, 2005) ...................... 23
Dubuc v. Green Oak Twp.,
312 F.3d 736 (6th Cir. 2002) ........................................................................18, 19
ETW Corp. v. Jireh Publ’g, Inc.,
332 F.3d 915 (6th Cir. 2003) .............................................................................. 32
F.T.C. v. Simeon Mgmt. Corp.,
532 F.2d 708 (9th Cir. 1976) ........................................................................27, 28
Groden v. Random House, Inc.,
61 F.3d 1045 (2d Cir. 1995) ............................................................................... 29
Henry v. Farmer City State Bank,
808 F.2d 1228 (7th Cir. 1986) ............................................................................ 21
i

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Pg ID 769

Jones v. Dirty World Ent. Recordings, LLC,
755 F.3d 398 (6th Cir. 2014) ................................................................................ 4
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952) ......................................................................................28, 29
Kussy v. Home Depot U.S.A., Inc.,
No. 06-12899, 2006 WL 3447146 (E.D. Mich. Nov. 28, 2006) ........................ 23
Lane v. Random House, Inc.,
985 F. Supp. 141 (D.C. Cir. 1995)...................................................................... 29
Lawler v. Marshall,
898 F.2d 1196 (6th Cir. 1990) ............................................................................ 17
Leahy v. Orion Twp.,
711 N.W.2d 438 (Mich. Ct. App. 2006) ............................................................. 22
Lintz v. Credit Adjustments, Inc.,
No. 07-11357, 2008 WL 835824 (E.D. Mich. Mar. 28, 2008)........................... 21
Lund v. Citibank (West) FSB,
2007 WL 3408468 (E.D. Mich. Nov. 14, 2007)................................................. 22
Mays v. Three Rivers Rubber Corp.,
352 N.W.2d 339 (Mich. Ct. App. 1984) .......................................................33, 34
Meador v. Cabinet for Human Res.,
902 F.2d 474 (6th Cir. 1990) .............................................................................. 17
Monat v. State Farm Ins. Co.,
469 Mich. 679 N.W.2d 843 (2004)..................................................................... 23
Nichols v. Moore,
334 F. Supp. 2d 944 (E.D. Mich. 2004) ............................................................. 31
Roberts v. City of Troy,
429 N.W.2d 206 (Mich. Ct. App. 1988) ............................................................. 19
Rogers v. Grimaldi,
875 F.2d 994 (2d Cir. 1989) ...................................................................29, 30, 31

ii

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Pg ID 770

Seale v. Gramercy Pictures,
949 F. Supp. 331 (E.D. Pa. 1996) ....................................................................... 29
Sexton v. Barry,
233 F.2d 220 (6th Cir. 1956) .............................................................................. 17
Trice v. Oakland Dev. Ltd. P’ship,
No. 278392, 2008 WL 7488023 (Mich. Ct. App. Dec. 16, 2008) ...................... 24
Vanmeerbeeck v. M & T Bank,
No. 2:12-cv-11980, 2012 WL 2943400 (E.D. Mich. July 18, 2012) ................. 20
Wallace v. JP Morgan Chase Bank, N.A.,
2014 WL 4772029, at *4 (E.D. Mich. Sept. 24, 2014) ..........................18, 19, 20
Zine v. Chrysler Corp.,
236 Mich. App. 261 (1999) ................................................................................ 25
Statutes
15 U.S.C. § 55(a) ..................................................................................................... 27
15 U.S.C. § 1051 et seq............................................................................................ 30
47 U.S.C. § 230(c)(1) ........................................................................................... 4, 34
MCL § 445.901 et seq. ......................................................................................passim
MCL § 445.903(1) ................................................................................................... 23
MCL § 445.903(1)(c) ...................................................................................10, 23, 24
MCL § 445.903(1)(cc) ......................................................................................passim
MCL § 445.903(1)(e) .........................................................................................10, 24
MCL § 445.903(1)(s) ........................................................................................passim
MCL § 445.911(1)(b)............................................................................................... 33
Other Authorities
Fed. R. Civ. P. 12(b)(6)................................................................................16, 17, 23
MCR 2.116(C)(8) ..................................................................................................... 24
iii

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Pg ID 771

MCR 2.116(C)(10) ................................................................................................... 24
U.S. Const. amend I ..........................................................................................passim

iv

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Pg ID 772

INTRODUCTION AND SUMMARY OF ARGUMENT
This is the second time Martin H. Leaf (“Mr. Leaf” or “Plaintiff”) has asked
a Michigan Court to censor the motion picture Drive (at times referred to as the
“Picture”) under the Michigan Consumer Protection Act (the “MCPA”) based on
his personal opinion of the film. In late September 2011, shortly after Drive was
released theatrically in the United States, Mr. Leaf—then, as putative counsel for
an acquaintance—filed suit in Oakland County Circuit Court against the Picture’s
domestic theatrical distributor and a local movie theater demanding class
certification and injunctive relief (the “State Court Action”). The pleadings and
briefs penned by Mr. Leaf throughout the three-plus year lifespan of that case
posited the same uniquely personal, distorted interpretation of the Picture he now
advances in this action. Once again, Mr. Leaf theorizes that Drive is an antiSemitic hate film based on its supposed subliminal content and the symbolic
significance he attaches to particular scenes, characters, dialogue, objects and other
of its seemingly innocuous tangible elements. Mr. Leaf also claims here, as he did
then, that the parties he has chosen to sue have violated sections 445.903(1)(s) and
445.903(1)(cc) of the MCPA—jointly, and as part of a conspiracy—by advertising
and promoting the Picture differently than how he perceives it and for not warning
the public that Drive actually is not what it appears to be.

1

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Pg ID 773

All of the claims and allegations asserted in the State Court Action were
fully, fairly and finally adjudicated in the Michigan state courts, and all were found
to be completely without merit. In March 2012, the Oakland County Circuit Court
granted summary disposition, ruling that the MCPA claims failed as a matter of
law; in October 2013, the Michigan Court of Appeals affirmed that decision; and
in April 2014, the Michigan Supreme Court issued an order denying leave to file a
further appeal.
Mr. Leaf cannot properly re-litigate his claims in this or in any other Court.
It makes no difference that Mr. Leaf now seeks to proselytize his beliefs in his own
name rather than on behalf of a client. Re-pleading the same views and the same
claims, under the same provisions of the same statute, concerning the same motion
picture, mandate the same result. Mr. Leaf’s extreme convictions about the
Picture, no matter how strongly held, whether asserted in his own name or by him
as an advocate for another, have no more legal merit now than in 2011.
Even if the law did not preclude Mr. Leaf from re-filing his claims in federal
court, each “count” and each form of relief pleaded in his First Amended
Complaint (the “FAC”) fails as a matter of law. The first count under MCPA
Section 445.903(1)(s) should be dismissed without leave to amend because the
FAC does not and cannot allege that the Trailer omitted material facts about the

2

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Pg ID 774

Picture in a manner that was misleading or deceitful.1 The supposed “facts” that
Mr. Leaf claims were missing from the Trailer are not facts at all, let alone
material facts. Rather, what Mr. Leaf claims the Trailer (or the Creators/AMC)
should have disclosed is his subjective belief that the Picture communicates a
sinister subtext through symbols and subliminal speech. Beliefs, opinions and
interpretations, especially concerning the supposed presence of imperceptible
aspects of a product or service, are not objectively verifiable, material facts. The
MCPA has never been and cannot now properly be applied to state a claim under
the bizarre facts and circumstances Mr. Leaf advances.
The second count, also asserted only against AMC and the Creators, is under
MCPA Section 445.903(1)(cc), which creates liability for “[f]ailing to reveal facts
that are material to the transaction in light of representations of fact made in a
positive manner.” It, too, fails because Mr. Leaf does not and cannot establish that
the Trailer affirmatively represented, as fact, that Drive was free from “Implanted
Hate” (i.e., subliminal anti-Semitic messages) or that “Implanted Hate” in fact is
present in the Picture. The Trailer, as one would expect, makes no representations
about whether the Picture does or does not contain “Implanted Hate,” and the

1

The first count is only pleaded against Refn (a citizen of Denmark who has not
been properly served), Bold, Platt Productions, and Hossein Amini (a citizen of
Iran, who has not been and likely never will be served), who collectively are
defined in the FAC as the “Creators,” and AMC, the movie theater where Mr. Leaf
first saw the Trailer.
3

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Pg ID 775

claim that it does is not a fact material to the transaction; it is the product of Mr.
Leaf’s imagination.
The third count for conspiracy and the request for injunctive relief likewise
are not proper because each is based on the same set of fatally defective MCPA
claims. Further, even if Mr. Leaf could state a claim under the MCPA against
AMC or any of the Creators, which he does not and cannot, injunctive relief cannot
be imposed against SPE, Netflix, Amazon, Apple, or Google (collectively, the
“Distributor Defendants”) because the FAC fails to allege any claim whatsoever
against any one of them as a predicate for such extraordinary relief. 2
Finally and axiomatically, no claim can exist under the MCPA, or under any
other theory, because it is beyond question that works of creative expression,
including motion pictures and their related advertising, are entitled to the full
protections afforded by the First Amendment of the United States Constitution.
Thus, even if Mr. Leaf’s views about Drive were valid, obvious and beyond
debate, no court may prevent a filmmaker from creating or a distributor from
2

While the allegations against the Distributor Defendants are so cursory, legally
meritless, and contrary to the First Amendment that they fail to state a claim as a
matter of law, Netflix, Amazon, and Google (the “Online Distributors”) are further
shielded from any liability pursuant to Section 230(c)(1) of the Communications
Decency Act, 47 U.S.C. 230(c)(1) (“CDA”). This statute provides sweeping
immunity for the providers of an “interactive computer service” for liability for
publishing or distributing material provided by someone else. See e.g., Jones v.
Dirty World Ent. Recordings, LLC, 755 F.3d 398, 406-07 (6th Cir. 2014). To the
extent Plaintiff’s allegations against the Online Distributors are discernable, they
run squarely into this immunity.
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showing a “controversial” or “offensive” motion picture, nor may a court force
such parties to edit (i.e., censor) content or issue a warning to appease the
sensibilities of the few or the masses.
BACKGROUND FACTS AND PROCEDURAL HISTORY
A.

The Trailer.3

Drive is a feature-length motion picture that was marketed and distributed in
the United States by FilmDistrict Distribution, LLC (“FilmDistrict”), the principal
defendant in the State Court Action. See Request for Judicial Notice in Support of
Motion to Dismiss and Affidavit of James E. Stewart in support thereof
(collectively, “RJN”), Ex. 1, ¶ 10 [State Court Action, First Amended Complaint
(“SFAC”)]. Prior to its release in theaters on September 16, 2011, FilmDistrict
marketed the Picture to motion picture audiences through a short advertisement
known in the motion picture industry as a “trailer.” The trailer for Drive (the

3

Mr. Leaf did not include a copy of the Trailer or a copy of the Picture among his
exhibits to the FAC. The description of the Trailer and the description of the
Picture set forth herein are similar in all material respects to the descriptions in the
Motion for Summary Disposition filed in the State Court Action. See RJN, Ex. 3
at 4. Mr. Leaf did not take exception to either description in the State Court Action
and therefore Defendants herein believe they are without controversy. Although
supporting copies of the Trailer and the Picture were submitted to the Circuit
Court, because all issues related thereto were fully and finally adjudicated in the
State Court Action, and because the Court here can and should dismiss the claims
in the FAC as a matter of law without regard to the Trailer or the Picture,
Defendants herein have elected not to further burden the record. Copies are
available should the Court determine that viewing the Trailer or the Picture will be
of value in connection with this Motion.
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“Trailer”) runs for two-and-a-half minutes, and covers numerous scenes from the
Picture. See FAC ¶ 59. Approximately fifteen seconds of the Trailer depict some
of the driving/high-speed car chase scenes from the Picture, and the remainder of
the footage introduces a number of the Picture’s central characters and key plot
elements. Id.
The Trailer begins with Driver’s4 declaration of his rules as a getaway driver
and then quickly moves to the scene where he first meets a young, beautiful
woman (Irene). Id. She asks what he does. Driver responds only by saying he is a
stunt driver; he does not mention his other occupations. Id. Irene and Driver then
are shown holding hands and smiling amorously as they drive together with Irene’s
young son. The Trailer then jumps to Bryan Cranston’s character (Shannon) who
tells “Bernie” (played by defendant Brooks) there is nothing Driver cannot do
behind the wheel of a car. Id. The Trailer next shows Irene telling Driver that her
husband (Standard) is returning from prison, and then shows a bloodied and beaten
Standard as he explains to Driver that some men want him to “do a job for them”
that he refuses to do. Id. Driver appears to partner with Standard on this “job” in
exchange for a promise that when it’s over, the men will “never go near
[Standard’s] family again.” Id. The next series of clips move quickly. They show
the “job” is a heist, and things do not go as planned. Id. Gunshots are fired,
4

The main character in Drive, played by actor Ryan Gosling, is known only as
“Driver” because his actual name is never revealed.
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Standard falls to the ground, and Driver speeds away from the scene as he is being
chased by the unknown occupants of a dark sedan. Id. The next few scenes make
clear the job was a set-up. Id. Whoever is in the second car came to take the
stolen money from Driver and Standard. Id. But that did not go as planned either.
Id. Driver outmaneuvers his pursuers, gets away with the stolen money, and
becomes the target of those who double-crossed him and Standard. Id. The
remainder of the Trailer shows Bernie and his cohort—revealed in the Picture to be
“Nino” (played by Ron Perlman)—forming plans to find Driver, get the money,
and kill him. Id. We then see Driver engaging in fistfights, moving Irene to
protect her in the build-up to a fight in an elevator, and taking other measures to
safeguard Irene and her young son. Id. The trailer ends with Bernie’s ominous
warning to Driver: “Any dreams you have or plans for your future, you’re going to
have to put that on hold. For the rest of your life you’re going to be looking over
your shoulder.” Id.
B.

The Picture.

Each of the scenes depicted in the Trailer appears in the Picture, and the
Picture’s story arc follows the same general path as the Trailer. As one might
expect after seeing the Trailer, the Picture develops the growing bond between
Driver and Irene that soon is interrupted by Standard’s return from prison and
Driver’s decision to help him pull off a heist to assure the safety of Irene and her

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son. Though a loner by nature, Driver cannot help falling in love with Irene, which
leads him to encounter the dangerous criminal underworld that follows Standard
when he returns home from prison. After the heist intended to pay off Standard’s
debts spins out of control, Driver is left to protect Irene and her young son from a
syndicate of deadly serious criminals led by two gangsters, Bernie and Nino.
C.

Mr. Leaf And Ms. Deming See The Trailer At A Theater In
Livonia; A Week Later They See Drive At A Theater In Novi.

Mr. Leaf and Sarah Deming (“Ms. Deming”) went to see the movie The
Debt at the AMC Livonia 20 theater on September 9, 2011. Before the showing of
The Debt started, the theater played a number of “coming attractions,” including
the Trailer for Drive, which was being released the following week. FAC ¶ 58.
According to the FAC, “the [Trailer] portrayed a race action/chase film involving
gangsters, and the protagonist “Driver,” played by Ryan Gosling” (Id. at ¶ 61);
“[t]here was no indication whatsoever, in the trailer, that the motion picture Drive
had a sophisticated, hidden/deceptive, scientifically advanced method of promoting
an anti-Semitic agenda” (Id. at ¶ 62); and “[b]ased on the trailer, [Mr. Leaf]
purchased a ticket for Drive at the Emagine Theatre in Novi, on or about
September 16, 2011” (Id. at ¶ 66).5 These same claims were made by Ms. Deming
in the State Court Action. SFAC ¶¶ 12, 17, 38-39.

5

When the foregoing allegations are read in conjunction with the parallel
allegations in the SFAC, logic informs that Mr. Leaf and Ms. Deming were
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D.

Pg ID 780

Mr. Leaf Files The State Court Action On Behalf Of Ms. Deming
For Injunctive And Other Relief For Alleged Violations Of The
MCPA.

Mr. Leaf filed the State Court Action as counsel for Ms. Deming on
September 28, 2011, twelve days after they saw Drive. The initial complaint
named CH Novi LLC, the company that operates the Emagine movie theater in
Novi, Michigan, and FilmDistrict Distribution, LLC, the motion picture
distribution company that released the Picture in movie theaters in the United
States (collectively, the “State Action Defendants”).6 The SFAC claimed Ms.
Deming was misled in two ways by the Trailer. First, the SFAC stated Ms.
Deming’s belief that the Trailer promoted Drive “as a chase, race, or high speed
action driving film, similar to the Fast and Furious [sic], Fast Five, or similar,
series of movies,” but then claims that in her view the Trailer ultimately “bore very
little similarity to a chase, race, or high speed action film” because, again in her
belief, Drive contained “relatively little high speed action driving.” SFAC ¶¶ 12together on Friday, September 9, 2011, when they saw the Trailer (and The Debt),
and again the next Friday, September 16, 2011, when they saw the Picture. The
SFAC specifically alleges that “because of that trailer, [Ms. Deming] caused to be
purchased for [her] a ticket for DRIVE, which [she] ultimately paid for” and that
Ms. Deming “viewed the performance of the motion picture DRIVE on or about
September 16, 2011, at Defendant CH NOVI’S theater.” SFAC at ¶¶ 38-39.
6

The SFAC, filed on October 11, 2011, expanded on the allegations in the initial
complaint, but did not add any additional “counts” for relief or any new parties.
Although it is now clear from the FAC that Ms. Deming (and Mr. Leaf) saw the
Drive Trailer at the AMC Livonia 20 theater (facts known to them in September
2011), defendant AMC, which owns that theater, was not named in the SFAC.
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13. Second, the SFAC asserted that the Trailer failed to warn Ms. Deming that
Drive contained—in her view—“extreme gratuitous defamatory dehumanizing
racism to depict members of the Jewish faith” and in doing so, “promoted criminal
violence against members of the Jewish faith.” SFAC ¶ 17. The particular
concern appeared to stem from Ms. Deming’s belief that while “Jewish gangsters
and criminals in American cinema have been portrayed as nuanced, the same as
other types of gangsters,” in Drive, “the Jews were portrayed as uniformly evil, in
a cartoon stereotypical manner.” SFAC ¶ 22. Nevertheless, the SFAC conceded
(just as Mr. Leaf does here, see FAC at ¶¶ 64-65) that no film critic appeared to
share Ms. Deming’s view that Drive is anti-Semitic. SFAC ¶ 33.7 Based on these
allegations, the SFAC claimed that the State Court Defendants violated Sections
903(1)(c), (e), (s), and (cc) of the MCPA and sought injunctive relief and class
certification.

7

In contrast to Ms. Deming’s/Mr. Leaf’s thesis, Defendants are not aware of any
Jewish organization that has publicly denounced the Picture, nor has Drive been
associated with any violent acts, hate crimes or reported threats against members of
the Jewish faith. Indeed, Drive either received or was nominated for numerous
prestigious awards, including by the Motion Picture Academy of Arts and Sciences
(presenters of the Oscars), the Hollywood Foreign Press Association (presenters of
the Golden Globes), the Independent Spirit Awards, the Chicago Film Critics
Association, the Los Angeles Film Critics Association, the National Society of
Film Critics, and the New York Film Critics Circle (Source: IMDB.com).
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E.

Pg ID 782

The Ensuing State Court Action Proceedings.
1.

The State Action Defendants Move For Summary
Disposition.

The State Action Defendants moved to dismiss the SFAC on the grounds
that each of the claims and requests for relief failed as a matter of law.
Specifically, the State Action Defendants’ Motion for Summary Disposition
(“MSD”) argued that no claim could exist under the MCPA or otherwise as a
matter of law because (1) none of Ms. Deming’s claims was based on a
misrepresentation of material fact, (2) the Trailer did not fail to disclose any
material facts, and (3) Ms. Deming’s claims were barred by the First Amendment.
RJN, Ex. 3 at pp. 7-20.
The MSD was argued on March 1, 2012. The hearing lasted some two
hours. The transcript of the proceedings (the “MSD Transcript”), nearly one
hundred pages in length, reflects Judge O’Brien’s appreciation of the inherent
flaws in Ms. Deming’s claims. RJN, Ex. 5. In reaching his decision, Judge
O’Brien explained that he assumed all facts alleged by Ms. Deming to be true—
i.e., that the Picture contained subliminal anti-Semitism, and that the Trailer did
not contain any anti-Semitism (Id. at 88)—and nevertheless concluded that the
Trailer could not be deceptive or misleading simply because it does not contain
every element of the Picture. More specifically, Judge O’Brien noted that “the
trailer itself does not posit positively this movie is not anti-Semitic” (Id. at 91-92)
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and, after further noting that the Trailer depicted car chases, found “[t]hat fact does
not mean that the movie did not have racing characteristics,” and thus “the trailer
advertising racing is not a representation of a service or a characteristic that the
movie does not have.” Id. at 89. Ultimately, Judge O’Brien stated that he had
granted summary disposition “for those reasons, and [further] adopting the
Defendants’ reasons.” Id. at 93. Immediately after Judge O’Brien made his ruling,
Mr. Leaf withdrew his pending motion to amend the FAC and stated that he
intended to file a new motion to amend.8
2.

Mr. Leaf Files Objections to the Order Granting Summary
Disposition, Files A New Motion to Amend the FAC, and
Moves to Disqualify Judge O’Brien.

Defendants then submitted a standard, purposely non-controversial form of
order stating merely that Defendants’ motion was granted for the reasons stated on
the record. Mr. Leaf thereafter filed objections and submitted his own, more
complicated, proposed order. Mr. Leaf’s refiled March 5, 2012 Motion for
Injunction and other Relief was heard on March 14, 2012. RJN, Ex. 8. Early that
morning, before the hearing commenced, Mr. Leaf filed and served an emergency
8

Judge O’Brien admonished Mr. Leaf not to take such action: “I’m telling you
quite frankly, Mr. Leaf, I’m curious how you could file a motion to amend from
this point forward, and even more so, when an order is entered, which could
possibly be today, reflecting the Court’s pronouncement it’s a summary disposition
against the whole case . . . [how] could you possibly file a motion to amend on a
case that has been dismissed?” RJN, Ex. 5 at 94:5-13. Mr. Leaf nevertheless
refiled his motion to amend on March 5, 2012. RJN, Ex. 6.
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Pg ID 784

Motion to Disqualify Judge O’Brien. RJN, Ex. 9 at p. 3. In that motion, Mr. Leaf
argued (i) that Judge O’Brien should be removed for bias because he was antiSemitic, and (ii) that his disqualification motion must be heard before Judge
O’Brien ruled on his motion to amend (contained in his March 5, 2012 Motion for
Injunction and Additional Relief) and before Judge O’Brien ruled on his objections
to Defendants’ standard form of order granting the summary disposition motion.
Judge O’Brien denied Plaintiff’s disqualification motion, reviewed the
competing MSD orders, and entered Defendants’ proposed MSD order. RJN, Exs.
11, 7. Mr. Leaf then immediately sought review of the denial of his Motion to
Disqualify by the Chief Judge (Judge Grant). RJN, Ex. 2. That motion also was
denied. Id.
Less than a week later (April 4, 2012), Mr. Leaf moved for reconsideration
of the order granting the MSD. Id. That motion was denied on April 19, 2012. Id.
Ms. Deming noticed her appeal eleven days later. RJN, Ex. 12.
3.

The State Appellate Proceedings.

Ms. Deming appealed both the order denying the motion to disqualify Judge
O’Brien and the order granting the MSD. While the appeal was pending, Mr. Leaf
filed a Motion for Summary Reversal of the order granting summary disposition.
Id. That motion was denied on October 1, 2013. Id. The Court of Appeals heard
oral argument of the issues on appeal the next day.

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Pg ID 785

On October 15, 2013, the Court of Appeals issued its unpublished decision
affirming the lower court’s rulings. RJN, Ex. 13. With respect to the merits of the
MCPA claims, the Court concluded that Ms. Deming had “failed, beyond the
power of her own hyperbole, to support her claim.” Id. at 2. In particular, the
Court recognized she “has not shown that the film’s trailer failed to reveal a
material fact, as required under MCL § 445.903(1)(s),” and found that “her
subjective interpretation that the film is anti-Semitic was not shared by others.” Id.
at 3. The Court further denied Ms Deming’s request to amend the complaint to
“add a claim that the movie Drive contains subliminal anti-Semitic content,” which
she argued would not constitute protected speech. Id. As the Court reasoned, “[a]
lack of First Amendment protection is not a basis upon which plaintiff can state a
claim. Whether the film contained unprotected subliminal content is irrelevant; the
inclusion of such content does not, in and of itself, create a claim.” Id.
After the Opinion was issued, Mr. Leaf filed a motion requesting that the
Court of Appeals panel recuse itself for alleged bias. RJN, Ex. 12. Each of the
Judges on the panel separately denied that motion a week later. Id. Mr. Leaf then
unsuccessfully appealed those rulings to the Chief Judge of the Court of Appeals.
Id. On November 5, 2013, Ms. Deming unsuccessfully moved the Court of
Appeals to reconsider its opinion. Id.

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Ms. Deming filed an application for leave to appeal to the Michigan
Supreme Court on January 28, 2014 as a last resort. Id. That seemingly final
request was denied on April 28, 2014. Id.
F.

The Allegations, Theories, Claims And Relief Pleaded Here By
Mr. Leaf, The Plaintiff, Are The Same As Those Raised By Mr.
Leaf, The Attorney, In The State Court Action.

The FAC (i) rehashes the same set of facts in the State Court Action; (ii)
focuses on the same extreme, unique beliefs, theories and interpretations of the
Picture (including the supposed symbolic meaning of the same scenes, objects,
dialogue and characters and the purported presence of sinister subliminal content)
as the State Court Action; (iii) pleads violations of the same MCPA sections as the
State Court Action; (iv) makes the same demands for relief as the State Court
Action; and (v) directly challenges/seeks to re-litigate rulings made in the State
Court Action. A complete list of the specific factual similarities would fill many
pages and includes the following principal examples:
•

Both actions allege that the Trailer misrepresented the true nature of

the Picture. FAC, ¶¶ 61-63; SFAC ¶¶ 11-12; RJN, Ex. 4 at p 4-9;
•

Both actions allege that the Trailer failed to disclose that, in the

Picture, unlike in other films with ethnic characters, Jews are depicted as purely
evil, having no redeeming qualities. FAC, ¶¶ 80-106; SFAC ¶ 19, 22;

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•

Pg ID 787

Both actions allege that the same objects, scenes, dialogue and other

elements in Drive are symbolic, anti-Semitic references (e.g., “Blood Libel” and
“Kosher Slaughter”). FAC, ¶¶ 54, 110-117; SFAC ¶¶ 30-31; RJN, Ex. 4 at pp. 1,
19-21;
•

Both actions allege that Drive contains subliminal hate speech, also

referred to as “Implanted Hate.” FAC, ¶55; RJN, Ex. 4 at pp. 3, 9; Ex. 6 at pp 1617;
•

Both actions allege that the motion picture Drive does not follow the

book on which the film is based. FAC, ¶¶ 79-108; RJN, Ex. 4 at pp. 15-18; Ex. 6
at pp. 8-16;
•

Both actions allege that the anti-Semitic aspects of Drive are

comparable to obscure, Nazi-era German propaganda films. FAC, ¶ 70; RJN, Ex.
4 at pp 3, 14-15, 18, 21; and
•

Both actions allege that the climactic scene in Drive where Driver (the

“hero”/not Jewish) kills Bernie (the evil-most mobster/Jewish) subconsciously
promotes the incendiary accusation that Jews are responsible for the death of Jesus.
FAC, ¶ 119; RJN, Ex. 4 at pp. 19-21.
LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a district court
to dismiss a complaint which fails “to state a claim upon which relief may be
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Pg ID 788

granted.” When faced with a Rule 12(b)(6) motion to dismiss, a district court
“must construe the complaint in the light most favorable to [the plaintiff], accept
all of [plaintiff’s] factual allegations as true, and determine whether [the plaintiff]
undoubtedly can prove no set of facts in support of his claims that would entitle
him to relief.” Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir.
1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, the court
does not give the presumption of truthfulness to any legal conclusions, opinions, or
deductions, even if they are couched as factual allegations. Sexton v. Barry, 233
F.2d 220, 223 (6th Cir. 1956). A complaint need only give “fair notice of what the
plaintiff's claim is and the grounds upon which it rests” (Lawler v. Marshall, 898
F.2d 1196, 1199 (6th Cir. 1990) (internal citations omitted)), but must be sufficient
to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557-58 (2007).
ARGUMENT
I.

MR. LEAF IMPROPERLY ATTEMPTS TO RELITIGATE ISSUES
THAT WERE DECIDED ON THE MERITS IN THE STATE COURT
ACTION
A.

Res Judicata Bars Relitigation of all Counts in the FAC.

“The purposes of claim preclusion are to relieve parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, prevent inconsistent
decisions, encourage reliance on adjudication, and promote comity between the
state and federal courts.” Dubuc v. Green Oak Twp., 312 F.3d 736, 744 (6th Cir.
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Pg ID 789

2002) (citing Allen v. McCurry, 449 U.S. 90, 94, 97 (1980). “A federal court must
give a state court judgment the same preclusive effect it would have in the courts
of the rendering state.” Dubuc, 312 F.3d at 744 (citing Full Faith and Credit
clause, 28 U.S.C. § 1738). Accordingly, where, as here, a previous action was
filed in a Michigan state court, a federal court adjudicating a second action
“applies Michigan preclusion law.” Wallace v. JP Morgan Chase Bank, N.A., No.
13-13862, 2014 WL 4772029, at *4 (E.D. Mich. Sept. 24, 2014) (citing Dubuc,
supra). Under Michigan law, res judicata “bars a subsequent action between the
same parties when the evidence or essential facts are identical,” i.e., “when (1) the
first action was decided on the merits, (2) the matter contested in the second action
was or could have been resolved in the first, and (3) both actions involve the same
parties or their privies.” Dart v. Dart, 460 Mich. 573, 586; 597 N.W.2d 82, 88
(1999) (citations omitted); see also Wallace, 2014 WL 4772029 at *4 (citing Dart);
Dubuc, 312 F.3d at 746-47. Michigan courts have broadly applied the doctrine of
res judicata, refusing to entertain not only claims that were already litigated, but
also those that arise from the same transaction that the parties, exercising
reasonable diligence, could have raised, but did not. Dart, 460 Mich. at 586, 597
N.W. 2d at 88; Wallace, 2014 WL 4772029 at *4 (citations omitted).
Here, the elements of res judicata are met with respect to each of the claims
pleaded in the FAC. First, the State Court Action was decided on the merits. See
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Pg ID 790

Roberts v. City of Troy, 170 Mich. App. 567, 577; 429 N.W.2d 206, 211 (1988)
(“A summary judgment is a judgment on the merits which bars relitigation on the
basis of res judicata.”); Wallace, 2014 WL 4772029, at *4 (applying Roberts to
summary disposition ruling in underlying state action). Second, the three claims
Mr. Leaf asserts in the FAC were or could have been resolved in the State Court
Action. The first two counts pleaded in the FAC (for alleged violations of MCPA
sections 445.903(1)(s) and (cc)) are materially identical to Count I in the SFAC for
violation of those same sections of the MCPA. In both instances, violations of the
MCPA were raised on the same set of facts and legal grounds and, as described
above, were fully adjudicated on the merits in the State Court Action. Compare
FAC ¶¶ 71-149, 150-154 with SFAC ¶¶ 44-45; RJN, Ex. 5, at 88:12-93:4.
Additionally, Mr. Leaf’s third claim for civil conspiracy is barred by res judicata
because it arises out of the same “transaction”—i.e., Mr. Leaf’s viewing of the
Trailer and the Picture in September 2011—and, therefore, could (and should)
have been raised in the previous action. See Dubuc, 312 F.3d at 748 (citing Perry
v. Croucher, No. 97-3033, 165 F.3d 28, 1998 WL 661151 at *4 (6th Cir. Aug. 31,
1998)) (“the issue with claim preclusion ‘is not whether the court heard this claim,
the issue is whether the court could have heard the claim.’”) (emphasis added).
Further, Mr. Leaf raised this same claim in a proposed amended complaint after the

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Pg ID 791

hearing on the MSD in the State Court Action, which was disposed of by the
Circuit Court’s subsequent order granting the MSD. See RJN, Ex. 6.
Third, Mr. Leaf cannot circumvent res judicata by bringing a subsequent
action against different parties because the third element—privity among the
parties—need not be established here. “Michigan courts have held that where a
[defendant] seeks to assert the res judicata doctrine defensively, that party need not
be in privity with a party to the prior action. . . . Thus this element need not be
satisfied to apply res judicata to bar Plaintiffs’ attempt to litigate claims that it
raised or could have raised in [the prior action].” Vanmeerbeeck v. M & T Bank,
No. 2:12-cv-11980, 2012 WL 2943400, at *3 (E.D. Mich. July 18, 2012).
Nevertheless, privity exists. “[T]o find privity for purposes of res judicata,
‘a perfect identity of the parties is not required, only a ‘substantial identity of
interests’ that are adequately presented and protected by the first litigant.’” Id.
To be in privity is to be so identified in interest with
another party that the first litigant represents the same
legal right that the later litigant is trying to assert. The
outer limit of the doctrine traditionally requires both a
substantial identity of interests and a working functional
relationship in which the interests of the nonparty are
presented and protected by the party in the litigation.
Id. Ms. Deming and Mr. Leaf are in privity by virtue of the fact that Mr. Leaf
represented Ms. Deming as counsel in the State Court Action. See Wallace, 2014
WL 4772029, at *4 (“Attorneys are considered privies of their clients for the

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Pg ID 792

purpose of res judicata.”) (internal citations omitted); Henry v. Farmer City State
Bank, 808 F.2d 1228, 1235 n. 6 (7th Cir. 1986) (attorneys, who represented party
in first case, are privies with that party in second case for purposes of res
judicata.). Privity likewise exists with respect to the Defendants in this action and
the State Action Defendants. The State Court Action asserted MCPA claims
against FilmDistrict, the U.S. theatrical distributor of the Picture. In this action,
Mr. Leaf asserts the same MCPA claims against the Creators—i.e, those who
wrote, directed, and produced the Picture—the parties from whom FilmDistrict
derived its rights. Just as the State Court Action sought to enjoin FilmDistrict, here
Mr. Leaf seeks to enjoin the Distributor Defendants.9 The foregoing connections
are more than sufficient to establish privity. See Lintz v. Credit Adjustments, Inc.,
No. 07-11357, 2008 WL 835824, at *4 (E.D. Mich. Mar. 28, 2008) (“A privy
includes a person so identified in interest with another that he represents the same
legal right, such as a principal to an agent . . . .” Privity exists because the issues at
stake were the same and “Defendants are alleged to have committed the same
wrongdoing . . . [and] would face the same liability.”) (citations omitted).

9

The State Court Action also named CH Novi, LLC, which operates the Emagine
movie theater where Ms. Deming and Mr. Leaf saw the Picture, and in this action
Mr. Leaf similarly names AMC, the parent company of the AMC Livonia 20
movie theater where he and Ms. Deming viewed the Trailer for the Picture. Both
motion picture theaters derived their rights from the Creators via FilmDistrict.
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B.

Pg ID 793

The Issues Raised In Mr. Leaf’s Civil Conspiracy Claim Were
Already Adjudicated In The State Action.

In Michigan, three elements must be met to bar a party from relitigating an
issue in a new action pursuant to the doctrine of collateral estoppel:
(1) a question of fact essential to the judgment [in the
second action] must have been actually litigated and
determined by a valid and final judgment [in the first
action]; (2) the same parties [or their privies] must have
had a full [and fair] opportunity to litigate the issue; and
(3) there must be mutuality of estoppel.
Lund v. Citibank (West) FSB, 2007 WL 3408468, at *2 (E.D. Mich. Nov. 14,
2007)(first, second and fourth sets of brackets in original); Leahy v. Orion Twp.,
269 Mich. App. 527, 530; 711 N.W.2d 438, 441 (2006) (“[C]ollateral estoppel bars
relitigation of an issue in a new action arising between the same parties or their
privies when the earlier proceeding resulted in a valid final judgment and the issue
in question was actually and necessarily determined in that prior proceeding.”).
These elements are met here with respect to Mr. Leaf’s civil conspiracy
allegations. First, the crux of the claim—whether the MCPA was violated by
inclusion of alleged anti-Semitic content in the Picture—was adjudicated and fully
determined in the State Court Action, through a final disposition on appeal. RJN,
Ex. 5 at 88:24-92:10. Second, as discussed above, the parties in this action are
privies of the parties present in the State Court Action. Finally, mutuality of
estoppel—which means that “one taking advantage of the earlier adjudication

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Pg ID 794

would have been bound by it, had it gone against him” (Monat v. State Farm Ins.
Co., 469 Mich. 679, 684-85; 677 N.W.2d 843, 846-47 (2004))—is not required
when collateral estoppel is “asserted defensively [by a defendant] to prevent a
party from relitigating an issue that such party has already had a full and fair
opportunity to litigate in a prior suit.” Id. at 691-92.
II.

THE FAC FAILS TO STATE A CLAIM UNDER THE MCPA
The MCPA “authorizes any person who suffers loss as a result of unfair,

unconscionable, or deceptive trade practices to bring an action to enjoin the
prohibited conduct, obtain declaratory relief, or recover damages.” Alston v.
Advanced Brands & Importing, Inc., No. Civ. 05-72629, 2006 WL 1374514, at *5
(E.D. Mich. May 19, 2006). The purpose of the MCPA is to protect consumers by
prohibiting unfair practices in trade or commerce. See MCL § 445.903(1).
However, the MCPA is not intended to indiscriminately afford relief for any
consumer complaint against anyone in the chain of commerce, and Michigan
courts have not hesitated to dismiss MCPA claims where, as here, a plaintiff has
failed to state a claim under any of its specific subdivisions. See, e.g., Kussy v.
Home Depot U.S.A., Inc., No. 06-12899, 2006 WL 3447146, at *5-6 (E.D. Mich.
Nov. 28, 2006) (dismissing § 445.903(1)(c), (s), and (cc) claims under Fed. R. Civ.
P. 12(b)(6)); Dochenetz v. Elliot Leveling, Inc., No. 257057, 2005 WL 3481446, at
*4 (Mich. Ct. App. Dec. 20, 2005) (dismissing MCPA claims under MCR

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2.116(C)(8)); Chimenti v. Apple Vacations, Inc., No. 208446, 2000 WL 33401822,
at *2-3 (Mich. Ct. App. Nov. 17, 2000) (same under MCR 2.116(C)(8) and
(C)(10)); Trice v. Oakland Dev. Ltd. P’ship, No. 278392, 2008 WL 7488023, at
*13-14 (Mich. Ct. App. Dec. 16, 2008) (affirming MCR 2.116(C)(10) dismissal of
claims under MCPA § 445.903(1)(c), (e) and (s)).
A.

Mr. Leaf Has Failed To State A Claim Under MCPA Section
445.903(1)(s).

Mr. Leaf’s first cause of action for violation of Section 445.903(1)(s) of the
MCPA contends that “Defendant Creators, while developing the [Picture], . . .
creat[ed] and embed[ed] nonconscious anti-Semitic and anti-Christian messages in
the [Picture], in tandem with subtle anti-Semitic messages, i.e., Implanted Hate,”
which they failed to reveal to Mr. Leaf. FAC ¶¶ 72, 132-133. He further contends
that AMC failed to reveal that the Picture contained Implanted Hate against Jews
and anti-Semitic messages “when plaintiff saw the trailer for Drive at [AMC’s]
AMC Livonia 20” theater. FAC ¶¶ 146-147.
A claim under Section (s) requires the plaintiff to allege (i) a failure to
disclose a material fact, the “omission of which tends to mislead or deceive the
consumer,” and (ii) that the undisclosed fact “could not reasonably be known by
the consumer.” MCL § 445.903(1)(s). As to the first prong, “[t]o be material, the
representation need not ‘relate to the sole or major reason for the transaction, but
. . . it [must] relate to a material or important fact.’” Zine v. Chrysler Corp., 236
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Mich. App. 261, 283; 600 N.W.2d 384, 398 (Mich. Ct. App. 1999) (citations
omitted, brackets in original). And, with respect to the second prong, “the issue is
not whether the omission is misleading to a reasonable consumer but whether the
consumer could reasonably be expected to discover the omission at issue.” Id. at
284 (emphasis added). The FAC fails to satisfy either of these requirements.
First, Mr. Leaf fails to allege a misleading material fact. Mr. Leaf’s
subjective view of the supposed anti-Semitism in the Picture is not a verifiable
fact. Rather, it is merely the subjective opinion of a single consumer. Moreover,
Mr. Leaf’s admission that neither the marketing associated with the Picture—in
particular, the Trailer—nor movie reviews made any mention of anti-Semitic,
racist, or hateful content in the Picture (see FAC ¶¶ 62-65) confirms that this was
not a material fact about the movie.
Second, this claim also fails because Mr. Leaf concedes that, although he
claims it is “nonconscious,” i.e., not perceived by the viewer, he was able to
discern the alleged anti-Semitic content in the Picture. See FAC ¶ 32, 67, 80-131.
In other words, the “material fact” he contends defendants concealed was, in fact,
revealed to him. Assuming his interpretation is correct, Mr. Leaf fails to explain
why any other consumer would not equally be able to recognize the content for
what he says it is. Additionally, Mr. Leaf could reasonably and readily have
discovered information about the content of the Picture, including the Jewish
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ethnicity of some of the characters and their roles as antagonists, before he went to
the theater to see it. In fact, at least as early as its opening day—September 16,
2011—numerous critics had published reviews about the Picture in both local
(Detroit Free Press and Detroit News) and nationwide news and popular culture
sources (Rolling Stone magazine and USA Today). See RJN, Ex. 14 (reviews
reporting, e.g., that the Picture: (i) “is really an art house action movie;” (ii) “is
filled with nuance and subtlety rarely found in muscle car melodramas;” (iii)
engages in more character and relationship development than one might expect
from a crime drama; and (iv) “contains brutal and bloody violence.”). Moreover,
information about the Jewish gangsters, Bernie and Nino, was readily available to
Mr. Leaf. For example, the “Cast” section on the film’s website identifies Bernie
and Nino as mobsters who are Jewish and the “Story” section describes them as
“deadly serious criminals.” See RJN, Ex. 15. Thus, while Defendants deny that
the Picture contains any anti-Semitic content, either subconscious or overt, to the
extent that Mr. Leaf perceives the portrayal of Jewish criminals in the Picture as
anti-Semitic, he had ample means and opportunity to ascertain information about
its messaging and content before he decided to see the movie.

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B.

Pg ID 798

Mr. Leaf’s Claim Under Section 445.903(1)(CC) Of The MCPA
Also Is Legally Defective.

In his second claim for violation of Section 445.903(1)(cc) of the MCPA,10
Mr. Leaf asserts that the Trailer for the Picture “gave no indication that Drive
contained Implanted Hate, or promoted anti-Semitism.” FAC ¶ 152. Section (cc)
proscribes “[f]ailing to reveal facts that are material to the transaction in light of
representations of fact made in a positive manner.” (Emphasis added). Mr. Leaf
has again failed to state a claim under this section of the MCPA because his
allegations fail to demonstrate that the Creators or AMC made positive factual
representations in the Trailer, as required under Section (cc).
F.T.C. v. Simeon Mgmt. Corp., 532 F.2d 708, 716 (9th Cir. 1976), which
concerns a similarly defective false advertising claim, is instructive here. There,
the Ninth Circuit affirmed a denial of the Federal Trade Commission’s (“FTC”)
request, pursuant to 15 U.S.C. § 55(a), to enjoin the defendants’ efforts to advertise
a weight loss program. Like Section (cc) of the MCPA, Section 55(a) of the
Federal Trade Commission Act addresses false advertising arising from a
defendant’s failure to reveal material facts in light of representations made by the
defendant. F.T.C., 532 F.2d at 716. The FTC asserted that the defendants’
advertisements failed to disclose a lack of scientific evidence showing that a drug
used in their weight loss program was more effective than drug-free dieting. The
10

The second claim, just like the first, is directed solely at the Creators and AMC.
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Pg ID 799

Ninth Circuit ruled that the FTC had not shown a likelihood of success because
none of the defendants’ advertising included any information about the use of
drugs in their weight reduction program. Id. (an “advertisement is misleading only
if it fails to disclose facts necessary to dissipate false assumptions likely to arise in
light of the representations actually made”).
Just as in the F.T.C. case, the FAC fails to allege a single affirmative
representation made in the promotional materials associated with the Picture, or in
the Picture itself, that would require a corrective disclosure. To that end, Mr. Leaf
has not alleged that any promotional material, including the Trailer, makes any
mention one way or the other about whether the Picture may be interpreted to be
anti-Semitic. Instead, he claims that any indication of anti-Semitic content was
completely absent from the Trailer. See FAC ¶ 152. Thus, even accepting Mr.
Leaf’s interpretation as true, as is required for purposes of this motion, no
disclosure of any additional facts would be required under Section (cc).
III.

MR. LEAF’S CLAIMS ARE BARRED BY THE FIRST
AMENDMENT
A.

Motion Pictures And Their Related Advertising Are Forms Of
Speech Protected By The First Amendment.

Motion pictures are protected under the First Amendment because “[t]hey
may affect public attitudes and behavior in a variety of ways, ranging from direct
espousal of a political or social doctrine to the subtle shaping of thought which

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Pg ID 800

characterizes all artistic expression.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
501 (1952). They are protected regardless of whether they are fictitious, made for
profit, or intended to entertain audiences. Id. at 501-02. It is equally well settled
that the First Amendment protection of artistic works extends to promoting the
works as well. Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir. 1995)
(dismissing false advertising claim regarding advertisement of book). “The critical
question is whether the promotional material relates to a speech product that is
itself protected.” Lane v. Random House, Inc., 985 F. Supp. 141, 152 (D.C. Cir.
1995) (citation omitted). “‘Defendants’ economic motivation . . . is not enough to
turn the statements into commercial speech.’” Id. (ellipses in original)). See also
Bowens v. Aftermath Ent., No. 250984, 2005 WL 900603, at *7 (Mich. Ct. App.
Apr. 19, 2005) (advertising “incidental” to entertainment protected by First
Amendment is itself “privileged” under First Amendment); Seale v. Gramercy
Pictures, 949 F. Supp. 331, 337 (E.D. Pa. 1996) (in denying challenge to movie
advertisement, court held that use “was for the purpose of First Amendment
expression: the creation, production, and promotion of a motion picture”).
In Rogers v. Grimaldi, 875 F.2d 994, 995-96 (2d Cir. 1989), Ginger Rogers
claimed that the title of a fictional movie called “Ginger and Fred” misleadingly
made it seem like the movie was about Rogers and Fred Astaire, even though it
only “obliquely relate[d]” to them. She presented evidence to support her claims
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Pg ID 801

that the title actually misled the public through market research and anecdotal
evidence, “including the fact that when MGM/UA publicists first heard the film’s
title (and before they saw the movie), they began gathering old photographs of
Rogers and Astaire for possible use in an advertising campaign.” Id. at 997.
The Second Circuit in Rogers recognized that “[t]itles, like the artistic works
they identify, are of a hybrid nature, combining artistic expression and commercial
promotion.” Id. at 998. “The artistic and commercial elements of titles are
inextricably intertwined” insofar as “[f]ilm-makers and authors frequently rely on
word-play, ambiguity, irony, and allusion in titling their works.” Id. For those and
other reasons, “the expressive element of titles requires more protection than the
labeling of ordinary commercial products.” Id. Thus, the court held that “[w]here
a title with at least some artistic relevance to the work is not explicitly misleading
as to the content of the work, it is not false advertising under the Lanham Act.” Id.
at 1000. Further, the court expressly stated that the construction of the Lanham
Act avoids a clash with the First Amendment by “insulat[ing] from restriction titles
with at least minimal artistic relevance that are ambiguous or only implicitly
misleading.” Id. After acknowledging that “some members of the public would
draw the incorrect inference that Rogers had some involvement with the film,” and
that there was evidence of some actual confusion, the court held “that risk of
misunderstanding, not engendered by any overt claim in the title, is so outweighed
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Pg ID 802

by the interests in artistic expression as to preclude application of the Lanham
Act.” Id. at 1001 (emphasis added).
Like a title to a movie, a trailer can be a measure of expression in addition to
being a way of marketing the movie to the public. To the extent it contains scenes
from a movie, those scenes carry the artistic expression and concomitant First
Amendment protection with them. Cf. Nichols v. Moore, 334 F. Supp. 2d 944, 957
(E.D. Mich. 2004) (“there is little question that an advertisement for [a movie]
containing a clip” from the movie is protected as well). And the Trailer here was
composed completely of scenes from the movie. The scenes clearly were
artistically arranged to give a view of the story arc of the Picture and convey its
intense drama. Thus, it is entitled to First Amendment protection, and under the
standard pronounced by Rogers, 875 F.3d at1000, is only subject to restriction
under consumer protection law if it is “explicitly misleading.” Cf. Cliff Notes, Inc.
v. Bantam Doubleday Dell Publ’g Group, Inc., 886 F.2d 490, 494 (2d Cir. 1989)
(Rogers is not limited to titles and is generally applicable to Lanham Act claims
involving works of artistic expression). As is discussed above, see, pp. 23-28,
infra, the FAC does not and cannot allege that the Trailer makes any explicitly
misleading statements about the Picture.
The Sixth Circuit has adopted the Second Circuit’s reasoning from Rogers
and has recognized that, in the more specific context of promoting works protected
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Pg ID 803

by the First Amendment, even implicitly misleading speech is protected. ETW
Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 926 (6th Cir. 2003) (“where the
defendant has articulated a colorable claim that the use of a celebrity’s identity is
protected by the First Amendment, the likelihood of confusion test”—which is
designed to evaluate whether use of the celebrity’s identity is likely to mislead
consumers—“is not appropriate because it fails to adequately consider the interests
protected by the First Amendment”); see also id. at 928 (“the public interest in free
expression should prevail if the use of the celebrity’s image has artistic relevance,
unless it is used in such a way that it explicitly misleads as to the source of the
work”) (emphasis added) (citing Rogers and Mattel, Inc. v. MCA Records, Inc.,
296 F.3d 894 (9th Cir. 2002)). Thus, the First Amendment protects the Trailer, and
the MCPA cannot apply to it.
IV.

THE THIRD COUNT FOR CIVIL CONSPIRACY, PREDICATED ON
THE FATALLY FLAWED MCPA CLAIMS, MUST BE DISMISSED
In his third count, Mr. Leaf alleges the Picture’s director (Refn),

screenwriter (Amini) and producer/actor (Brooks) conspired to create an antiSemitic hate film. FAC ¶¶ 156, 158-160, 162. To state a claim for civil
conspiracy, Mr. Leaf would have to allege facts sufficient to demonstrate that
defendants engaged in “(1) a concerted action (2) by a combination of two or more
persons (3) to accomplish an unlawful purpose (4) or a lawful purpose by unlawful

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Pg ID 804

means.” Mays v. Three Rivers Rubber Corp., 135 Mich.App. 42, 48; 352 N.W.2d
339, 341 (Mich. Ct. App. 1984).
Because Mr. Leaf has failed to state a claim under the MCPA, he has not
established, and cannot establish, the necessary element of unlawfulness to state a
claim for conspiracy. Thus, count three also must be dismissed as a matter of law.
V.

MR. LEAF HAS FAILED TO ARTICULATE A CLAIM FOR
RECOVERY AGAINST THE DISTRIBUTOR DEFENDANTS
UNDER ANY LEGAL THEORY
In addition to his three standalone causes of action, Mr. Leaf purports to

seek injunctive relief against Defendants SPE, Amazon, Netflix, Google and Apple
(defined above as the “Distributor Defendants”). See FAC at p. 36. He claims that
they should be enjoined “from selling, distributing, transmitting, downloading,
showing or displaying Drive, without removing . . . [the] messages that employ the
deceptive method of Implanted Hate and/or promote anti-Semitism” because,
“[w]ithout such injunctive relief, said Defendants will continue to violate the
Michigan Consumer Protection Act, MCL § 445.903(1), et seq.” Id. Under the
MCPA, injunctive relief is available in some circumstances to prevent parties from
“engaging . . . in a method, act, or practice which is unlawful under Section 3” of
the MCPA. See MCL § 445.911(1)(b). “Injunctive relief is “an extraordinary
remedy that courts normally grant only when ‘(1) justice requires it, (2) there is no
adequate remedy at law, and (3) there exists a real and imminent danger of

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Pg ID 805

irreparable injury.’” Mays v. Three Rivers Rubber Corp., 135 Mich.App. 42, 48;
593 N.W.2d 595, 603 (Mich. Ct. App. 1999).
Here, Mr. Leaf has failed to demonstrate that he is entitled to recovery
against the Distributor Defendants under any legal theory. Indeed, none of his
three causes of action is even alleged against any of the Distributor Defendants.
See FAC ¶¶ 71-154. And there are certainly no facts alleged in the FAC
concerning actions or conduct of any of those Defendants that could subject them
to liability under the MCPA, much less overcome their First Amendment
protection for distributing the Picture. Any bid for injunctive relief against these
Defendants fails for that reason alone. But even if Mr. Leaf had made substantive
allegations against the Distributor Defendants, any such claim under the MCPA
would be legally deficient for the same reasons those claims fail as to the other
Defendants in this action. As a matter of law, therefore, Mr. Leaf is not entitled to
any relief, injunctive or otherwise, against the Distributor Defendants. Finally, as
noted, any effort to seek relief against the Online Distributors is categorically
barred by Section 230(c)(1) of the CDA.
CONCLUSION
For the foregoing reasons, as a matter of law, the FAC fails to state a claim
upon which relief can be granted. Accordingly, Defendants respectfully submit
that the FAC shall be dismissed in its entirety, with prejudice.
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Pg ID 806

HONIGMAN MILLER SCHWARTZ
AND COHN LLP
By: /s/ James E. Stewart
James E. Stewart (P23254)
Andrew M. Pauwels (P79167)
315 E. Eisenhower Pkwy., Ste. 100
Ann Arbor, MI 48108
Tel: 734-418-4256
jstewart@honigman.com
apauwels@honigman.com
Attorneys for Defendants Bold
Films, Inc.; Sony Pictures
Entertainment Inc.; Netflix, Inc.;
Amazon.com, Inc.; American
Multi-Cinema, Inc.; Marc Platt
Productions, Inc.; Albert Brooks;
and John Palermo

REED SMITH LLP
By: /s/ Harrison J. Dossick
Harrison J. Dossick (CA Bar No. 128319)
Christine M. Neuharth (CA Bar No. 263509)
1901 Avenue of the Stars, Suite 700
Los Angeles, CA 90067
Tel: 310-734-5200
hdossick@reedsmith.com
cneuharth@reedsmith.com
Attorneys for Defendants Bold Films, Inc.;
Sony Pictures Entertainment Inc.; Netflix,
Inc.; Amazon.com, Inc.; American MultiCinema, Inc.; Marc Platt Productions,
Inc.; Albert Brooks; and John Palermo;
and Apple Inc.

SCHIFF HARDIN LLP
By: /s/ Jessica A. Sprovtsoff
Thomas M. Crispi (NY Bar No.
2584332)
Jessica A. Sprovtsoff (P70218)
350 S. Main Street, Suite 210
Ann Arbor, MI 48104
Tel: 734-222-1518
tcrispi@schiffhardin.com
jsprovtsoff@schiffhardin.com
Attorneys for Defendant Apple Inc.

WILSON SONSINI GOODRICH &
ROSATI, P.C.
By: /s/ Brian M. Willen
Brian M. Willen (P75110)
1301 Avenue of the Americas, 40th Floor
New York, NY 10019
Tel: 212-999-5800
bwillen@wsgr.com
Attorneys for Defendant Google, Inc.

January 6, 2017

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Pg ID 807

CERTIFICATE OF SERVICE

I hereby certify that on January 6, 2017, I electronically filed the foregoing
paper(s) with the Clerk of the Court using the ECF system which will send
notification of such filing to all counsel of record.

HONIGMAN MILLER SCHWARTZ AND
COHN LLP

By:

/s/ James E. Stewart
James E. Stewart (P23254)
Andrew M. Pauwels (P79167)
315 E. Eisenhower Pkwy., Ste. 100
Ann Arbor, MI 48108
Tel: 734-418-4256
jstewart@honigman.com
apauwels@honigman.com
Attorneys for Defendants Bold Films, Inc.;
Sony Pictures Entertainment Inc.; Netflix, Inc.;
Amazon.com, Inc.; American Multi-Cinema,
Inc.; Marc Platt Productions, Inc.; Albert
Brooks; and John Palermo

36