1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP Howard Weitzman (SBN 38723) hweitzman@kwikalaw.com 2 Dale F. Kinsella (SBN 63370) dkinsella@kwikalaw.com 3 Jonathan P. Steinsapir (SBN 226281) jsteinsapir@kwikalaw.com 4 Zachary T. Elsea (SBN 279252) 5 zelsea@kwikalaw.com 808 Wilshire Boulevard, 3rd Floor 6 Santa Monica, California 90401 Telephone: 310.566.9800 7 Facsimile: 310.566.9850 8 FREEDMAN + TAITELMAN LLP Bryan J. Freedman (SBN 151990) 9 bfreedman@ftllp.com 1901 Avenue of the Stars, Suite 500 10 Los Angeles, California 90067 Telephone: 310.201.0005 11 Facsimile: 310.201.0045 12 Attorneys for Optimum Productions and for John Branca and John McClain as Executors of the 13 Estate of Michael J. Jackson 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF LOS ANGELES 16 17 OPTIMUM PRODUCTIONS, a California 18 corporation; and JOHN BRANCA and JOHN MCCLAIN, in the respective capacities as 19 CO-EXECUTORS OF THE ESTATE OF MICHAEL J. JACKSON, 20 Plaintiffs, 21 vs. 22 HOME BOX OFFICE, a Division of TIME 23 WARNER ENTERTAINMENT, L.P., a Delaware Limited Partnership, and HOME 24 BOX OFFICE, INC., a Delaware corporation, and DOES 1 through 5, business entities 25 unknown, and DOES 6 through 10, individuals unknown, 26 Defendants. 27 Case No. PETITION TO COMPEL PUBLIC ARBITRATION OF CLAIMS OF 1. BREACH OF CONTRACT (NONDISPARAGEMENT CLAUSE); AND 2. BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING AND ALL OTHER RELATED ARBITRABLE CLAIMS AND ISSUES Code of Civil Procedure §§ 1281.2, 1290 28 PETITION TO COMPEL ARBITRATION 1 2 INTRODUCTION Michael Jackson is innocent. Period. In 2005, Michael Jackson was subjected to a trial— 3 where rules of evidence and law were applied before a neutral judge and jury and where both sides 4 were heard—and he was exonerated by a sophisticated jury. Ten years after his passing, there are 5 still those out to profit from his enormous worldwide success and take advantage of his 6 eccentricities. Michael is an easy target because he is not here to defend himself, and the law does 7 not protect the deceased from defamation, no matter how extreme the lies are. Michael may not 8 have lived his life according to society’s norms, but genius and eccentricity are not crimes. 9 Nothing and no one can rewrite the facts which show that Michael Jackson is indeed innocent of 10 the charges being levied at him by HBO in its “documentary” Leaving Neverland. No one-sided 11 “documentary” can substitute for a real documentary, or for a trial where both sides are heard, 12 competent evidence is presented, and witnesses are cross-examined. 13 Those behind this posthumous character assassination are: 14 HBO: a company, recently acquired by AT&T, so desperate for eyeballs that its growing 15 irrelevance to the cord-cutting generation was crystallized when its chief rival bluntly stated in its 16 January earnings report that it considers a popular online game to be a more serious competitor 17 than HBO. In producing this fictional work, HBO ignored its contractual obligations to Michael 18 and his companies by disparaging both him and the Dangerous World Tour that HBO had 19 previously profited from immensely. 20 Wade Robson and James Safechuck: two admitted perjurers, one of whom is a self- 21 described “master of deception,” whose litigations have played out in the courts as a failed 22 melodrama for more than five years. With more holes in their stories than anyone can count, both 23 view Michael Jackson, the man who they previously swore was an inspiration and did nothing to 24 them, as a lottery ticket through accusations never brought during Michael’s life. They never 25 brought these claims during Michael’s life, because they knew Michael would have held them 26 both legally accountable for their defamation, just as Michael had held the “reporter” Victor 27 Gutierrez—who seems to be the true author of these two men’s fictional tales—liable before a jury 28 for millions of dollars when he falsely made similar claims about Jackson. 2 PETITION TO COMPEL ARBITRATION 1 Dan Reed: the HBO-deployed “documentarian” and director of Leaving Neverland who 2 violated every rule of responsible journalism and documentary filmmaking. He all but embedded 3 himself with the accusers’ legal team to the point where he refused to devote even one minute of a 4 240-minute film to any of the mountainous evidence showing that Robson and Safechuck are 5 lying. He refused to offer any counter-point to their fabrications, and refused to talk to anyone 6 whose statements might not fit the storyline of the fictional film he was dead-set on making from 7 the outset. Dan Reed made no attempt to review the legal records from Robson’s and Safechuck’s 8 litigations with the Estate, where the judge found that Robson had lied under oath during the 9 litigations on key issues; and where Robson was caught red-handed hiding crucial evidence from 10 the court, from the Jackson Estate, and even from his own lawyers. Reed even ignored the fact that 11 these men are still pursuing claims against the Jackson Estate for hundreds of millions of dollars 12 so they have hundreds of millions of reasons to lie. 13 While the conduct of the above participants speaks for itself, special emphasis must be 14 placed on HBO. HBO refused to even meet with representatives of the Jackson Estate—the 15 primary beneficiaries of which are Michael’s three children—who made no threats but just asked 16 for a meeting to discuss problems with the “documentary.” HBO is not in search of the truth— 17 only in search of “content” and “engagement” as its bosses at AT&T have publicly ordered. 18 The real victims here are the primary beneficiaries of the Estate, Michael’s three children, 19 who are forced to endure this attack on their father, ten years after they buried him, and when he 20 has no chance to respond. 21 Michael Jackson can never be silenced. His music and artistry live, as does his innocence. 22 They will long outlast false claims, gossip, and allegations spread by those who seek to make 23 money off him. In the end, this “documentary” will say much more about HBO than it ever could 24 about Michael Jackson. 25 26 27 28 3 PETITION TO COMPEL ARBITRATION 1 GENERAL ALLEGATIONS REGARDING HBO’S BREACH OF ONGOING 2 CONTRACTUAL OBLIGATIONS TO THE JACKSON ESTATE 3 The just and proper jealousy with which the law protects the reputation of a living man forms a curious contrast to its impotence when the good name of a dead man is attacked. … The dead cannot raise a libel action, and it is possible to bring grave charges against their memory without being called upon to justify these charges in a court of law or to risk penalties for slander and defamation. The possibilities of injustice are obvious. – “Libeling the Dead,” Glasgow Herald (July 27, 1926), as quoted in Don Herzog, Defaming the Dead (Yale Univ. Press 2017) 4 5 6 7 8 A. Michael Jackson Was Proven Innocent 9 1. Michael Jackson passed away almost ten years ago on June 25, 2009, as a result of 10 a criminal homicide by his “doctor.” Almost exactly four years earlier, on June 14, 2005, Jackson 11 was exonerated by a unanimous jury of twelve men and women in Santa Maria, California, on 12 discredited charges that he had committed unspeakable acts. 13 2. Michael Jackson’s acquittal was not the result of some technical “reasonable 14 doubt” argument. The phrase “reasonable doubt” appeared only once in Jackson attorney Tom 15 Mesereau’s opening statement (at the very end of it). Rather, much to the media’s legal experts’ 16 ridicule at the time, Mesereau affirmatively assumed the burden of proving Jackson innocent in 17 the case. Among his first words to the jury in his opening statement were: “I say to you right now, 18 I am going to make some promises in this case, I am going to fulfill them, and I want you to judge 19 me accordingly at the end. These charges are fake, silly, ridiculous.” Mesereau left no doubt 20 about what he was promising to prove: “We will prove [that child molestation] never, ever 21 happened.” Three-and-a-half months later, the jury found that Mesereau had kept his promises. 22 The jury found that Michael Jackson was no child molester. The jury found that Mesereau was 23 right: the charges against Jackson were “fake, silly, and ridiculous.” 24 3. The jury that cleared Michael was a diverse mix of American citizens, including 25 several highly educated persons and persons with particular expertise in the subject matter—e.g., 26 the head of the local Social Services Agency, a former high school principal with a Master’s 27 Degree in Counseling, a math teacher with a Master’s Degree in mathematics, a civil engineer, and 28 residents of a neighboring military base. And these jurors have confirmed in recent interviews that 4 PETITION TO COMPEL ARBITRATION 1 they would reach the same decision today. 2 4. Jackson’s 2005 acquittal ended a 12 year crusade by Thomas Sneddon, the former 3 district attorney for Santa Barbara County. Sneddon looked under every rock and pebble for 4 supposed “victims” of Jackson. At taxpayer expense, he literally sent investigators all over the 5 United States and all over the world to follow “leads” about supposed “victims.” Sneddon’s 6 investigators went to the Philippines, to Australia, to England, etc. Sneddon orchestrated multiple 7 raids of Jackson’s homes at Neverland Ranch and in Los Angeles over the course of a decade. 8 They found nothing. As Rolling Stone’s Matt Taibbi—no fan of Jackson as his other writings 9 confirm—explained in an article shortly after the verdict: “Virtually every piece of [Sneddon’s] 10 case imploded in open court, and the chief drama of the trial quickly turned into a race to see if the 11 DA could manage to put all of his witnesses on the stand without getting any of them removed 12 from the courthouse in manacles.” 13 5. Given Sneddon’s unsupported allegations in the years he chased Jackson, the FBI 14 also investigated Michael Jackson extensively. The FBI’s 300-page file on Jackson, made 15 available through the Freedom of Information Act, makes clear that the FBI never found anything 16 to show that Jackson was a child molester (because he was not). 17 6. The legal analyst and author, Jeffrey Toobin, explained after the verdict that “you 18 don’t need a law degree to understand this verdict. It is an absolute and complete victory for 19 Michael Jackson, utter humiliation and defeat for Thomas Sneddon, the district attorney who has 20 been pursuing Michael Jackson for more than a decade, who brought a case that was not one that 21 this jury bought at all. This one’s over.” 22 7. Sneddon’s crusade against Michael may have been “over” in Toobin’s words, but 23 the damage it caused to Michael was not. 24 B. Michael Jackson’s Legacy and Humanitarian Efforts 25 8. Michael Jackson had long been a champion for the rights of children, giving 26 hundreds of millions of dollars to children’s charities during his lifetime, along with a substantial 27 bequest of tens of millions of dollars to children’s charities in his Will. In light of his commitment 28 to improving the lives of children around the world, the fact that Michael was chased for twelve 5 PETITION TO COMPEL ARBITRATION 1 years on frivolous molestation charges devastated him. As one writer wrote, he was “an emaciated 2 mess” at the end of the trial. 3 9. Michael Jackson had no childhood of his own. From the age of 10, he was the 4 primary breadwinner for his very large family, and never enjoyed a normal childhood. As he 5 explained in the only medium (songwriting) where he could explain himself: “It’s been my fate to 6 compensate, for the childhood I've never known ... Before you judge me, try hard to love me, 7 Look within your heart then ask, Have you seen my Childhood?” He was arguably the most 8 famous person on the planet but possibly also one of the loneliest. 9 10. Almost immediately after his acquittal, Michael Jackson left the country and 10 largely disappeared from public life for several years. In early 2009, he reemerged ready to 11 embark on a comeback with a series of resident shows at London’s O2 Arena to be called “This Is 12 It.” Despite his ordeals and absence from public life, Michael’s magic had not left him. As we all 13 saw in the posthumously released film, Michael Jackson’s This Is It, documenting his rehearsals 14 for the O2 shows in London, Michael Jackson could still dance, sing, and enchant an audience in a 15 way that no one else ever has and no one else ever will again. 16 11. On June 25, 2009, Michael Jackson passed away. In the wake of Michael’s death, 17 the public outpouring and mourning throughout the world was unprecedented. AOL called it a 18 “seminal moment in internet history.” Approximately 15% of Twitter posts (5,000 tweets per 19 minute) mentioned Jackson after the news broke. To this day, most still vividly recall where they 20 were when they heard the news that Michael Jackson had died. 21 12. In Michael Jackson’s death, there was hope that he finally was at peace, and that 22 his name could no longer be smeared by a media who had spent decades obsessing over him and 23 selling any story about him, no matter how outrageous. As a then 27-year-old dancer and protégé 24 of Michael Jackson named Wade Robson summed up the mood of so many in a statement on June 25 26, 2009, the day after Michael’s death. Michael Jackson is “one of the main reasons I believe in 26 the pure goodness of human kind … I will miss him immeasurably.” 27 C. HBO, Netflix and the Changing “Pay Television” Business 28 13. Meanwhile, about a year before Michael’s death, a company called Netflix began to 6 PETITION TO COMPEL ARBITRATION 1 slowly move away from its highly-successful DVD rent-by-mail business towards an internet 2 streaming business. To say that its move was successful would be among the greater 3 understatements of the last decade. In the last several years, Netflix and those following a similar 4 model like Amazon Prime and Hulu have completely disrupted the Pay Television business. 5 14. Netflix and other streamers are now at the forefront of original content and 6 documentaries, and have even contracted directly with major movie studios for “first-run” motion 7 picture content, which was once the entire lifeblood of Pay Television networks like HBO. In 8 short, Netflix threatens the very survival of Pay Television. None are more threatened than the 9 longtime pay industry leader, HBO. 10 15. As an entire generation of “cable cutters” has opted for “over the top” services, 11 HBO has been struggling to play catch up. Nothing crystallized HBO’s growing irrelevance more 12 than a Netflix earnings report in January stating that Netflix considers the popular online game 13 Fortnite a more serious competitor than HBO. 14 D. HBO’s Mandate from AT&T 15 16. In June 2018, HBO’s parent, Time Warner, was acquired by AT&T. 16 17. AT&T’s CEO for its new “WarnerMedia” division (including Warner Brothers and 17 HBO), John Stankey directed HBO to win the “streaming wars” and obtain substantially more 18 content in an obvious recognition of the success of Netflix, Amazon and others. Stankey ordered 19 HBO’s CEO Richard Plepler: “We need hours a day,” referring to the time he wanted viewers 20 engaging with HBO content. “It’s not hours a week, and it’s not hours a month. We need hours a 21 day.” Moreover, according to Vanity Fair, Stankey “made clear that in the current era of mega 22 scale, HBO on its own is not enough.” 23 18. As the New York Times reported, in a July 2018 meeting with Plepler, “Stankey 24 described a future in which HBO would substantially increase its subscriber base and the number 25 of hours that viewers spend watching its shows. To pull it off, the network will have to come up 26 with more content, transforming itself from a boutique operation, with a focus on its signature 27 Sunday night lineup, into something bigger and broader.” 28 19. Content has been a real problem during Richard Plepler’s tenure as CEO of HBO. 7 PETITION TO COMPEL ARBITRATION 1 With the one exception of Game of Thrones, all of the cutting-edge, and now classic, original 2 content that is associated with HBO—The Sopranos, The Wire, Deadwood, Six Feet Under, 3 Entourage, Sex and the City, Curb Your Enthusiasm, etc.—was from the era when Chris Albrecht 4 ran HBO. With Albrecht’s departure in 2007, Richard Plepler took over. And Plepler has almost 5 entirely failed where Albrecht succeeded: original content. With Netflix and others in the industry 6 now, HBO picked the wrong time to fail in original content. 7 20. The only HBO show left that can truly drive significant subscribers is Game of 8 Thrones. And its final season, with just six episodes, will end in May 2019. After that, HBO will 9 no longer carry any “must have” content. In short, HBO is facing existential problems. 10 21. Although recognizing that the programming budget of Netflix and Amazon dwarfs 11 that of HBO’s, Stankey has refused to commit to substantially increasing HBO’s programming 12 budget. Without a substantially increased budget, HBO will have to turn to a less expensive way 13 to create buzz and content. 14 22. And so Richard Plepler needs content for HBO that will draw streamers, and he 15 needs to obtain that content inexpensively. In that desperation, Plepler has been willing to violate 16 just about all of his companies’ internal policies and procedures. As relevant here, Plepler decided 17 to willfully violate HBO’s obligations to Michael Jackson, obligations that Plepler no doubt knew 18 about given that he arrived at HBO in early 1992 as Senior VP of Communications and advisor to 19 the CEO. That was the same year that HBO partnered with Jackson to broadcast a concert from the 20 Dangerous World Tour, which was by far HBO’s biggest event in the early years of Plepler’s 21 employment. 22 23. Like so many before him, Richard Plepler decided to turn on Michael Jackson for 23 the money. In so doing, he and HBO teamed up with a documentarian that they had worked with 24 for years, Dan Reed. And they decided to tell the “stories” of two serial perjurers—Wade Robson 25 and James Safechuck. Those two men’s stories had already been completely discredited in public 26 lawsuits where they sought hundreds of millions of dollars from the Jackson Estate—lawsuits that 27 these two men are still pursuing today, despite HBO’s patently false protests that the two are not 28 telling their stories for money. And the good news for HBO was that the script for the 8 PETITION TO COMPEL ARBITRATION 1 documentary had already been written by Robson’s and Safechuck’s shared lawyers. The same 2 lawyer drafted detailed declarations for both men. The salacious and false details of those 3 declarations, written by the same lawyer for both men, are then used as the script for the 4 “documentary.” 5 E. 6 7 HBO Covenants to a Broad Non-Disparagement Clause With Jackson In Exchange for a Historic Right to Air Jackson’s Live Concert 24. HBO, on the one hand, and Michael Jackson and his entities, including Plaintiff 8 Optimum Productions’ predecessor entity, TTC Touring Corporation, on the other, have a 9 longstanding contractual relationship. Under that relationship, HBO’s production and airing of 10 Leaving Neverland (“the Film”) is not only reckless and irresponsible, it is also a violation of the 11 express terms of HBO’s and Optimum’s contract. 12 25. Following the release of his fourth studio album as an adult, Dangerous, Jackson 13 appeared at a packed press conference at Radio City Music Hall to announce that he was 14 embarking on the Dangerous World Tour in order to benefit Jackson’s Heal the World Foundation 15 and other charity groups. 16 26. Jackson planned live performances on five continents. The tour was ultimately a 17 huge success, reaching approximately 3.5 million fans through 69 live performances. The tour, 18 however, did not include any performances in the United States. 19 27. Jackson had never previously allowed any complete concerts to be aired or 20 broadcast on television in the United States. For the Dangerous World Tour, however, Jackson 21 decided to allow a full two-hour performance to be filmed and aired on television for his tens of 22 millions of fans in the United States. 23 28. The exclusive right to air the first-ever televised concert performance of the biggest 24 star in the world was a huge prize for any network. Ultimately, in what was reported by the New 25 York Times to be potentially the “largest financial deal for a concert performance on television,” 26 HBO secured the exclusive right to air Jackson’s Bucharest concert. The terms of the license that 27 Jackson and Optimum’s predecessor entity granted to HBO were memorialized in a written 28 contract (the “Agreement”), a copy of which is attached as Exhibit B (only the financial terms 9 PETITION TO COMPEL ARBITRATION 1 have been redacted). 2 29. HBO’s Chairman and CEO at the time, Michael Fuchs, touted the television event, 3 explaining to the New York Times that, “With no U.S. tour planned in the near future, this special 4 HBO event could be the only chance that American audiences will have to see Michael Jackson in 5 full concert for years.” 6 30. HBO aired its two-hour television event, Michael Jackson in Concert in Bucharest: 7 The Dangerous Tour, at 8 p.m. on Saturday, October 10, 1992. As Variety reported at the time, the 8 airing of this concert from the Dangerous Tour was the network’s highest-rated special ever, with 9 approximately 3.7 million U.S. households tuning in to HBO to watch Jackson’s performance. 10 31. In addition to monetary consideration, HBO and its team of sophisticated lawyers 11 agreed to certain covenants in the Agreement to air Jackson’s first-ever televised live performance. 12 Specifically, as “a material inducement to Licensor [TTC Touring Corporation] in granting the 13 license to HBO” to air Jackson’s Bucharest performance, HBO agreed to certain non14 disparagement provisions detailed in an “Exhibit I” to the Agreement. 15 32. By 1992, Michael Jackson was the most popular and most recognizable entertainer 16 in the world. He had also long been the subject of outrageous tabloid reporting: he slept in a 17 hyperbaric chamber, he beat his pet chimpanzee, he bought “the elephant man’s” bones, etc. 18 Because of that, it was important to him that the people he did business with not disparage him 19 and feed these tabloids. There were plenty of other media outlets doing that, and Jackson had no 20 need for outlets he worked with doing the same. 21 33. In those non-disparagement provisions, HBO promised that “HBO shall not make 22 any disparaging remarks concerning Performer or any of his representatives, agents, or business 23 practices or do any act that may harm or disparage or cause to lower in esteem the reputation or 24 public image of Performer.” Other provisions in the Agreement require HBO to notify and consult 25 with Jackson and Optimum Productions if it wishes to air additional programming about Jackson. 26 34. HBO agreed that the covenants by which HBO promised to be bound would run 27 both during and “after HBO’s contact or HBO’s relationship with Licensor and/or Performer.” 28 35. Richard Plepler began work at HBO in early 1992 as Senior VP of 10 PETITION TO COMPEL ARBITRATION 1 Communications and advisor to the CEO. Plepler must have known, or should have known, about 2 HBO’s contract with Jackson, as Michael Jackson in Concert in Bucharest: The Dangerous Tour 3 was the biggest event for HBO that year. Yet in his desperation, Plepler willfully ignored HBO’s 4 obligations to Michael Jackson. 5 F. HBO Violates the Agreement’s Non-Disparagement Covenant and Suggests, 6 Among Many Other Things, That Jackson Was Abusing Children In 7 Connection With the Dangerous World Tour 8 36. On January 25, 2018, at the Sundance film festival, the HBO produced 9 “documentary” called Leaving Neverland (the “Film”) premiered. The Film rehashes long 10 discredited allegations that Jackson sexually assaulted children several decades ago. 11 37. But the Film is no “documentary” at all. As HBO and the Film’s director, Dan 12 Reed, have conceded, they disregarded every norm of documentary filmmaking and journalistic 13 integrity in producing this film. Despite the Film’s four hour length—ample time for an 14 exhaustive examination of the facts—HBO and Reed made no effort to investigate the veracity of 15 Robson’s and Safechuck’s claims, nor to scrutinize them in the Film itself. Nor do HBO and Reed 16 explore the men’s motivations for making their allegations: they are currently pressing claims in 17 the California courts against the Jackson Estate for hundreds of millions of dollars. HBO and Reed 18 also do not bother to point out that these men were caught lying under oath repeatedly in their 19 litigations with the Jackson Estate (set aside the fact that they also had previously testified for 20 Jackson in criminal proceedings and explained that no inappropriate conduct between them and 21 Jackson occurred). The trial judge found one of Robson’s lies so incredible that the trial judge 22 disregarded Robson’s sworn declaration and found that no rational trier of fact could possibly 23 believe Robson’s sworn statements. Specifically, Robson falsely swore under oath that he did not 24 know about the Jackson Estate until March 2013, despite having met with John Branca, the Co25 Executor of the Jackson Estate in 2011 trying unsuccessfully to pitch himself to direct a Jackson26 themed Cirque du Soleil show. When Robson learned about the existence of the Jackson Estate 27 was the key issue on his attempt to get around the statute of limitations. Yet in his efforts to try to 28 sue the Estate for hundreds of millions of dollars, Robson had no problem lying under oath about 11 PETITION TO COMPEL ARBITRATION 1 the key issue, as the trial judge found. HBO and Reed interviewed no other witnesses, despite the 2 fact that several witnesses have contradicted Robson’s and Safechuck’s claims. 3 38. Indeed, HBO and Reed failed to contact two named persons who are identified in 4 the film as supposed victims of Jackson’s abuse. Yet since the Film was announced, both of these 5 other men have publicly and prominently stated that the Film’s allegations that they were abused 6 are utterly false. In fact, one person mentioned repeatedly by name in the Film as a supposed 7 “victim” of Jackson’s who “replaced” Robson has called the Film “a work of fiction.” That person 8 was never contacted by HBO or Reed to respond to what the Film says about him. 9 39. HBO’s Film violates the plain words of Agreement with Jackson and Optimum: 10 The Film makes false and “disparaging remarks concerning [Michael Jackson] [and] disparage[s] 11 or cause[s] to lower in esteem the reputation or public image of [Michael Jackson].” 12 40. Worse still is HBO’s duplicity with respect to the very tour from which it profited. 13 The Film expressly alleges that Jackson was abusing children in connection with and on the 14 Dangerous World Tour. For example, during one scene of the Film, Wade Robson’s mother, Joy 15 “Joey” Robson, explains that she got very upset with Michael when he told her that he would not 16 be taking Wade on the Dangerous World Tour. Mrs. Robson continues that she was especially 17 upset because Michael had taken another boy and his family on the tour. Footage of the boy and 18 Jackson on the Dangerous World Tour is then shown. Wade Robson then says that that is when he 19 realized he had been “replaced” by that boy, i.e., any reasonable viewer would interpret that to 20 mean that Michael Jackson was sexually abusing the boy on the Dangerous World Tour. That 21 young man, mentioned by name repeatedly in the Film, has publicly stated that the Film is “a 22 work of fiction,” and has stated repeatedly and eloquently that Michael Jackson never did anything 23 inappropriate with him on the Dangerous World Tour, or at any other time. The Film effectively 24 ignores that. 25 41. To summarize, HBO profited off the Dangerous World Tour by airing a concert 26 from the tour and promoting Michael Jackson’s talents. Now, HBO is profiting off the Dangerous 27 World Tour by airing a “documentary” that falsely claims Michael Jackson was abusing children 28 on the same tour. It is hard to imagine a more direct violation of the non-disparagement clause. 12 PETITION TO COMPEL ARBITRATION 1 42. HBO decided to willfully violate its commitments and covenants to Jackson and his 2 entities. In violation of both basic norms of documentary journalism and the explicit terms of the 3 Agreement, HBO has disparaged Jackson’s legacy by airing a one-sided hit piece against Jackson 4 based exclusively on the false accounts of two proven, serial perjurers. 5 43. The fact that HBO’s CEO, Richard Plepler was fully aware of HBO’s contractual 6 relationship with Jackson and Optimum and yet willfully ignored them is inexcusable. HBO’s 7 airing of the film, including its double-faced depiction of the Dangerous World Tour, constitutes a 8 malicious and willful breach of the anti-disparagement covenants in the Agreement. 9 44. As Richard Plepler himself once said, “A lie goes halfway around the world before 10 the truth puts its boots on, and we bear some responsibility for that.” Indeed. 11 G. Wade Robson and James Safechuck 12 45. HBO’s and Plepler’s willful violation of their non-disparagement obligations to 13 Jackson and Optimum are made the worse given that the Film relies solely on the word of two 14 serial perjurers. 15 46. Wade Robson and James Safechuck are admitted perjurers. They previously 16 testified that Jackson never touched them inappropriately in any manner whatsoever. By 2013 and 17 2014, they were in financial dire straits. Safechuck was in serious need of money, the failed 18 dreams of a successful acting and music career having long since passed him by. For his part, 19 Robson was at the end of his choreography career. He had burned so many bridges that the only 20 thing he had left was his connection with Michael Jackson. But in 2011, the Jackson Estate had 21 turned him down for the lead choreography job in a Cirque du Soleil show, a job that he told 22 Cirque he “wanted badly.” By 2012, Robson’s wife was threatening to divorce him because of his 23 inability to work. 24 47. So, in 2013 and 2014, Robson and Safechuck changed their stories. No doubt 25 reading reports from Forbes and others, and seeing programs like 60 Minutes that reported on the 26 unprecedented success of the Jackson Estate—stories that all ran in the year before these men 27 changed their stories—Robson and Safechuck filed suits against the Jackson Estate. 28 48. Having claimed to have perjured themselves repeatedly prior to filing their suits 13 PETITION TO COMPEL ARBITRATION 1 against the Jackson Estate—and claiming to want to now “speak only the truth”—Robson and 2 Safechuck still could not keep their stories straight after filing suit. Robson, in particular, was 3 caught committing perjury repeatedly in 2013 through 2017, in his litigations against the Estate. 4 For just a few examples among many that the Estate discovered: a. 5 The trial judge in Robson’s initial case against the Estate found one of 6 Robson’s lies—on the key issue in that case, i.e., when he learned about the Estate for 7 statute of limitations purposes—so clear that the judge took the extraordinary step of 8 disregarding Robson’s sworn statements on a summary judgment motion. The judge found 9 that no rational fact-finder could possibly believe Robson’s sworn statement (i.e., his lie 10 under oath) given the unequivocal evidence to the contrary and issued judgment in the 11 Estate’s favor as a result. b. 12 In another of the many, many lies in which Robson was caught during his 13 litigations with the Jackson Estate, he swore under oath in 2016 that he had but one written 14 communication with anyone about his abuse allegations from May 2012 until the date of 15 his sworn statement. Another Wade Robson fabrication. Through third party discovery— 16 largely from Robson’s mother, Joey, and his sister Chantal—it was revealed that Robson 17 had thousands of such communications, talking to anyone and everyone about his evolving 18 story of “abuse” (many of the communications were inquiries to his mother where he told 19 her he was asking her to help him reconstruct “my story with Michael”). In fact, Robson 20 had even written a book about his supposed abuse by Jackson in the year before filing his 21 lawsuit—which he hid from the Jackson Estate and hid from his own attorneys. When 22 shopping his book in late 2012 and early 2013, Robson communicated with numerous 23 publishers about his supposed abuse (contrary to his lie under oath that he had had only 24 one written communication about his “abuse”). Robson first met with his lawyers about 25 filing a lawsuit against the Jackson Estate in March 2013, just a few weeks after being told 26 by his book agent that no one was interested in publishing Robson’s ludicrous story. 27 49. More precisely, no one was interested in publishing Robson’s fabricated and 28 internally inconsistent tale until HBO, Channel 4 (UK), and Dan Reed came along. 14 PETITION TO COMPEL ARBITRATION 1 50. In all, owing to HBO’s and Reed’s willful blindness, the Film neglects to subject 2 the accusations against Jackson to any scrutiny whatsoever, and it ignores the countless facts and 3 circumstances evincing that these stories have been trumped up by Robson, Safechuck, and their 4 shared litigation attorneys as part of an ongoing campaign of lawsuits where they are attempting to 5 recover hundreds of millions of dollars in damages against the Jackson Estate and affiliated 6 companies for the supposed abuse they suffered. 7 51. A critical consideration by HBO of Robson and his accusations against Jackson 8 would have revealed the absurdity of these claims. When Jackson faced criminal prosecution in 9 2005 for a now-discredited accusation of abuse as to which he was fully exonerated, an adult 10 Robson testified under oath that Jackson had not molested him or engaged in any other 11 inappropriate behavior. Robson never wavered in the face of withering cross-examination from 12 one of our State’s finest prosecutors (a senior deputy to Sneddon). 13 52. Many other times in the past, Robson similarly spoke out to defend Jackson and 14 deny that he was abused. Robson maintained his support of Jackson even after the singer’s death. 15 Consistent with his belief in Michael’s innocence, for years after Jackson’s death, Robson 16 solicited work relating to Jackson—for a Jackson tribute on So You Think You can Dance; from 17 Kenny Ortega asking whether he could help on the film Michael Jackson’s This Is It; on an MTV 18 tribute produced by Janet Jackson; and from the Jackson Estate itself in 2011 on a Jackson-themed 19 Cirque du Soleil show, all so that he could further honor his friend and mentor, and make money 20 doing it. Had he actually been horrifically abused as he now claims, why would he want to spend 21 at least a year of his life dedicated to creating a show centered around his abuser’s life and art? 22 53. Wade Robson has proudly declared himself in writing to be a “master of 23 deception.” At her deposition, his own mother said that she agreed, explaining that Wade should 24 “have had an Oscar” because of his ability to stare people in the face and spin lies. Mrs. Robson is 25 right of course: Wade Robson should win an Oscar for his acting in Leaving Neverland. 26 54. Although Robson and Safechuck now claim to want to speak the truth publicly to 27 help out other “victims,” their prior actions show otherwise. Robson first filed his lawsuit “under 28 seal” in the hope that the Estate would quickly pay him off before it could be unsealed and made 15 PETITION TO COMPEL ARBITRATION 1 public. The Estate had no interest in being extorted, and the suit was then unsealed. 2 55. Safechuck followed the same dubious playbook. He had also testified under oath 3 years before that Jackson did not molest him. Not until decades later, when Safechuck saw 4 Robson on the Today Show in May 2013 discussing his multi-million dollar lawsuit against the 5 Jackson Estate, did Safechuck suddenly discover that he had been abused as a child. Hoping to 6 cash in as well, Safechuck hired the same attorneys who represent Robson and filed copycat 7 claims for abuse, again seeking hundreds of millions of dollars in damages. 1 8 H. Dan Reed and His Idea to Make a Documentary About Michael Jackson 9 56. A real documentarian would have explored the above, including the many lies in 10 which Robson and Safechuck were caught even after they supposedly discovered their “truth” in 11 2013 and 2014 respectively. A real “documentarian” would have explored the financial 12 motivations of these two men, including the fact that they continue to seek hundreds of millions of 13 dollars from the Jackson Estate and only brought their claims when they were in serious financial 14 trouble (in Robson’s case because the Estate refused to hire him as lead choreographer for a 15 Cirque show). Yet the “documentarian” hired by HBO had no interest in the truth. 16 57. Dan Reed is a self-described “documentarian” who has a history of making 17 documentaries about salacious sexual topics, such as like Babies: Britain’s Super Sperm Donors 18 and Celebrity Sexploitation. Reed became especially well known for producing a film glorifying a 19 vigilante “pedophile hunter” who once entrapped a man online who had been suffering from 20 severe depression due to the breakup of his marriage, financial strains, and the separation from his 21 son. After the subject of Reed’s film orchestrated the man’s arrest, the suspect committed suicide. 22 58. According to an interview, Dan Reed was looking for subjects for a documentary 23 when a friend asked him, “What are the big, unresolved stories that everyone’s heard of?” 24 25 1 The sheer frivolousness of Safechuck’s lawsuits led them to be thrown out so early that he had fewer chances to lie under oath. He successfully avoided having his deposition taken or 26 producing any documents. Nevertheless, his sworn declaration in support of his lawsuit contained numerous proven lies. One need only check Wikipedia and the record of Jackson’s 2005 trial in 27 Santa Maria to see that Safechuck was lying about several issues. 28 16 PETITION TO COMPEL ARBITRATION 1 According to Reed, the friend then said, “What about Michael Jackson? That’s a big story and no 2 one really knows what happened.” Of course, as explained above, we do know what happened. 3 The FBI investigated Michael Jackson and found nothing. A district attorney in Santa Barbara 4 County prosecuted Jackson, and it was a total failure. The jury completely exonerated Jackson. 5 59. But Reed and HBO ignored the facts of the prior allegations. Rather, they turned 6 their focus to two men alone—Wade Robson and James Safechuck, who as discussed above, have 7 lied repeatedly under oath (both before and after filing their lawsuits) and whose motivation for 8 making allegations is seeking hundreds of millions against the Jackson Estate (claims that they are 9 continuing to press today). 10 60. And Reed and HBO knew exactly what graphic story they could tell. Robson and 11 Safechuck had laid out their accusations in writing against Jackson in vivid detail, i.e., all the lurid 12 “shocking” details of their abuse were in public declarations written by their shared lawyers. The 13 fact that stories are told in lurid and salacious detail does not make them true, as some in the media 14 apparently believe. This is especially the case when the stories were first written out by lawyers 15 whose very job it is to litigate child sexual abuse cases. 16 I. HBO Turns a Blind Eye to Facts Made Available To Them 17 61. HBO and Reed willfully disregarded mountains of other evidence eviscerating 18 Robson’s and Safechuck’s credibility, all of which the Jackson Estate would have provided if the 19 filmmakers had sought a comment on these claims, which they did not. 20 62. HBO and Reed never approached the Estate, Jackson’s family, Jackson’s friends or 21 children, or anyone else, to scrutinize Robson’s and Safechuck’s claims. The two inter-related 22 reasons they kept their hit piece secret are rather obvious: (1) They knew that Robson’s and 23 Safechuck’s stories would collapse on scrutiny; and (2) They knew that if the Jackson Estate had 24 known such a documentary was coming, they could have had time to prepare for it with a piece of 25 their own. This is also why neither was identified in the announcement of the Film; and it was the 26 Estate in its initial public statement that “outed” the subjects of the Film. 27 63. In a perhaps naïve hope that HBO would do the right thing, the Jackson Estate 28 wrote Richard Plepler a detailed, ten-page letter explaining many (but far from all) of the problems 17 PETITION TO COMPEL ARBITRATION 1 with the Film and the two men at the center of it. The Jackson Estate did not make threats; it just 2 asked to sit down with HBO so that it could be heard before the documentary aired on HBO. 2 3 64. HBO never even had the decency to respond to the letter. The day after sending the 4 letter, however, HBO’s programming President Casey Bloys arrogantly told the press that: 5 “There are no plans to take a meeting [with the Jackson Estate]. We are airing the 6 ‘documentary’ and the letter is not going to change that.” 7 65. Casey Bloys explained that he and HBO had decided not to even explore potential 8 credibility problems with the Film because “it’s a very powerful documentary.” Any halfway 9 decent filmmaker can make a “powerful documentary” about anything if the filmmaker admittedly 10 refuses to consider the credibility of the persons in the documentary. A “documentary” that 11 willfully ignores any evidence contrary to its thesis can of course still be a “powerful 12 documentary.” But at the same time, any such “powerful documentary” would have more in 13 common with tabloid sensationalism than with bona fide journalism. We challenge HBO and the 14 public to name a reputable documentarian and a reputable network that would willfully refuse to 15 discuss such serious accusations with no one other than the accusers. Name one. 16 66. Other than ethics and journalistic norms, the main check on making a “powerful 17 documentary” with false accusations, without talking to anyone other than the accusers and their 18 families, is the law of defamation. And that is the heart of the issue. As noted at the beginning of 19 this pleading, it has long been the rule in Anglo-American law that there is no civil liability for 20 defamation of the deceased. HBO and Dan Reed are using that very unfortunate rule of law to 21 ignore all norms of journalism, and to justify their abject refusal to talk to anyone who might 22 discredit Robson and Safechuck’s made-up stories. 23 67. Casey Bloys bragged to a publication that the Film had been vetted by HBO’s 24 “many lawyers.” We assume HBO’s “many lawyers” did two minutes of legal research to discover 25 that HBO had nothing to worry about—you can literally say anything about a dead person and 26 2 That letter is attached as Exhibit A to this Petition. Notably, every single assertion in it 27 can be backed up by source documents for anyone interested in actually learning the truth. 28 18 PETITION TO COMPEL ARBITRATION 1 you face no civil liability whatsoever. You do not need Westlaw to understand that; Google will 2 suffice. The fact that HBO’s lawyers figured that out is nothing for Casey Bloys to brag about. 3 68. But HBO’s “many lawyers” missed their non-disparagement obligations to Jackson 4 and Optimum. And HBO cannot just “blame the lawyers” for this mistake. Its CEO, Richard 5 Plepler was almost certainly aware of why the Film violated obligations HBO had to Michael 6 Jackson, yet Plepler appears to have willfully ignored those obligations. Sadly, Plepler’s mandate 7 from AT&T, and his need to find content no matter what, seems to have led him to ignore the 8 company’s obligations and basic ethics and decency. 9 J. HBO Refuses to Communicate with Petitioners 10 69. The Agreement includes a mandatory arbitration clause. It reads as follows: (iv) Arbitration. Any dispute arising out of, in connection with or relating to this Agreement shall be submitted for binding and final arbitration before a retired judge of the Superior Court of the state of California for the County of Los Angeles who shall be mutually selected by the parties. In the event that the parties cannot agree on the selection of such a retired judge within 30 days after one of the parties notifies the other in writing that there is any such dispute to be resolved, each party shall select such a retired judge, and the two retired judges so selected shall then select a third retired judge who shall serve as the sole judge in connection with such dispute. If the two party-appointed judges are unable to select a third judge within 30 days after their appointment, the sole retire judge in connection with such dispute shall be selected by the Superior Court of the State of California for the County of Los Angeles. The retired judge so selected shall conduct the arbitration in conformity with the rules of, and as if it were conducted by, the American Arbitration Association. 11 12 13 14 15 16 17 18 19 20 70. On February 7, 2019, through their counsel, the Co-Executors of the Estate of 21 Michael Jackson and Optimum Productions sent a letter to HBO’s Chief Executive Officer 22 regarding Leaving Neverland. Though HBO was surely already aware of them, the letter 23 catalogued the many glaring deficiencies with and recklessness of the Film, as well as the 24 mountain of evidence disproving the false story peddled by Robson and Safechuck. 25 71. In the letter, counsel for the Co-Executors of the Jackson Estate and Optimum 26 Productions requested a meeting with HBO to discuss a solution. HBO has never responded. 27 Rather, HBO stated publicly and in no uncertain terms that it will not communicate with the 28 Jackson Estate or its related entities with respect to any issues relating to the Film. As noted 19 PETITION TO COMPEL ARBITRATION 1 above, HBO’s Casey Bloys made it unequivocally clear that HBO has no interest in the truth or in 2 discussing the film with Petitioners. 3 72. HBO has therefore completely shut down Petitioners’ attempt to reach out to HBO 4 and request arbitration of this dispute. 5 73. HBO’s spin machine may argue that the Jackson Estate is only demanding 6 arbitration in order to shroud proceedings in secret. False. The Jackson Estate is demanding 7 arbitration because that is what its contract with HBO requires. Unlike HBO, Michael Jackson, his 8 successors, and affiliated companies keep their promises. They agreed to arbitrate and that is what 9 they will do. However, in order to alleviate the predictable nonsense that will come from HBO’s 10 spin machine that the Jackson Estate only wants an arbitration so that proceedings are shrouded in 11 secrecy, the Jackson Estate expressly requests that HBO agree to a public arbitration. Indeed, the 12 Robson and Safechuck litigations were carried out in the public courts, and all of the false, 13 graphic and detailed statements about how Jackson supposedly abused Robson and Safechuck— 14 which have caused such a stir in the press—were all available in the public records. Had HBO 15 actually looked at the public records of the lawsuits, it would have discovered that, along with the 16 fact that the credibility of Robson and Safechuck were absolutely devastated in the trial court. 17 Unfortunately, however, it is obvious HBO did no diligence at all. 18 19 PARTIES, JURISDICTION AND VENUE 74. Jurisdiction is proper in the Superior Court of the State of California for the County 20 of Los Angeles pursuant to section 410.10 of the Code of Civil Procedure. Venue is proper in Los 21 Angeles County, California, pursuant to section 1292 of the Code of Civil Procedure because the 22 agreement was made in Los Angeles County, the arbitration clause calls for performance in Los 23 Angeles County, and all parties do substantial business in Los Angeles County. 24 75. Petitioner Optimum Productions (“Optimum”) is a California corporation. 25 Optimum is the successor in interest to TTC Touring Corporation (“TTC”), a California 26 corporation. TTC and Optimum merged in or around December 2010, with Optimum as the 27 successor corporation. A true and correct copy of the “Agreement of Merger” on file with the 28 California Secretary of State is attached hereto as Exhibit C. Petitioners John Branca and John 20 PETITION TO COMPEL ARBITRATION 1 McClain are the duly-appointed and currently-serving Co-Executors of the Estate of Michael 2 Jackson, and are parties in that capacity. 3 76. Respondent Time Warner Entertainment, L.P., is a Delaware limited partnership. 4 As of 1992, “Home Box Office” was a Division of Time Warner Entertainment, L.P. Respondent 5 Home Box Office, Inc., is a Delaware corporation. On information and belief, it is the successor6 in-interest to the “Home Box Office” Division of Time Warner Entertainment, L.P. 7 77. Respondent Does 1 through 5 are business entities whose identities or roles are 8 unknown who induced the two named Respondents to breach their contractual obligations to 9 Petitioners and intentionally or negligently interfered with those obligations. 10 78. Respondent Does 6 through 10 are individuals whose identities or roles are 11 unknown who induced the two named Respondents to breach their contractual obligations to 12 Petitioners and intentionally or negligently interfered with those obligations. 13 FIRST CAUSE OF ACTION TO BE ARBITRATED: BREACH OF CONTRACT 14 (Against all Defendants) 15 79. Petitioners incorporate by reference all prior allegations of this pleading. 16 80. Petitioner Optimum’s predecessor entity, TTC, entered into a valid and enforceable 17 contract with “Home Box Office” a Division of Respondent Time Warner Entertainment, L.P. A 18 true and correct copy of the Agreement is attached hereto as Exhibit B. Michael Jackson was an 19 intended third party beneficiary of the Agreement. 20 81. Petitioners John Branca and John McClain are the duly-appointed and currently- 21 serving Co-Executors of the Estate of Michael Jackson, and have therefore succeeded to Michael 22 Jackson’s rights under the Agreement. 23 82. On information and belief, Respondent Home Box Office, Inc., is the successor-in- 24 interest to the “Home Box Office” Division of Respondent Time Warner Entertainment, L.P., and 25 has therefore succeeded to the obligations of the “Home Box Office” Division of Respondent 26 Time Warner Entertainment, L.P. 27 83. Respondents have breached their obligations to Petitioners under the Agreement for 28 the reasons set out above, including but not limited to by disparaging Michael Jackson and 21 PETITION TO COMPEL ARBITRATION 1 disparaging the Dangerous World Tour. 2 84. Petitioners have performed all their material obligations under the Agreement, 3 which may be dependent upon the breached obligations, except as may have been excused or 4 waived. 5 85. Respondents’ breaches of the Agreement have caused damages to Petitioners in an 6 amount to be prove in an arbitration, with such damages potentially exceeding $100 million 7 should Respondents’ succeed in the damage they are intending to cause to the legacy of Michael 8 Jackson and the businesses associated with the Jackson Estate. 9 SECOND CAUSE OF ACTION TO BE ARBITRATED: 10 BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING 11 (Against all Defendants) 12 86. Petitioners incorporate by reference all prior allegations of this pleading. 13 87. In the Agreement, as in every contract or agreement, there is an implied promise of 14 good faith and fair dealing such that each party will not do anything to unfairly interfere with the 15 right of any other party to receive the benefits of the contract. 16 88. Respondents have breached the duty of good faith and fair dealing by unfairly 17 interfering with Petitioners’ right to receive the benefits of the Agreement. 18 89. Petitioners have performed all their material obligations under the Agreement, 19 which may be dependent upon the breached duty of good faith and fair dealing, except as may 20 have been excused or waived. 21 90. Respondents’ breaches of the duty of good faith and fair dealing have caused 22 damages to Petitioners in an amount to be prove in an arbitration, with such damages potentially 23 exceeding $100 million should Respondents’ succeed in the damage they are intending to cause to 24 the legacy of Michael Jackson and the businesses associated with the Jackson Estate. 25 PRAYER FOR RELIEF 26 WHEREFORE, Petitioners pray for relief against Respondent as follows: 27 1. That the Court compel HBO to participate in a non-confidential arbitration 28 consistent with the terms of the Agreement to arbitrate claims for breach of the non-disparagement 22 PETITION TO COMPEL ARBITRATION 1 clause in the Agreement and breach of the covenant of good faith and fair dealing therein. In that 2 arbitration, the Jackson Estate will seek all damages proximately caused by HBO’s reprehensible 3 disparagement of Michael Jackson, which could exceed $100 million should HBO succeed in the 4 damage it is intending to cause to the legacy of Michael Jackson. Petitioners further pray that the 5 arbitrator award punitive damages in the maximum amount permissible if and when Petitioners 6 show their entitlement to such damages. 7 DATED: February 21, 2019 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP 8 9 By: 10 11 12 /s/Howard Weitzman Howard Weitzman Attorneys for Optimum Productions and John Branca and John McClain as Executors of the Estate of Michael J. Jackson 13 14 15 16 10386.00347/623076 17 18 19 20 21 22 23 24 25 26 27 28 23 PETITION TO COMPEL ARBITRATION EXHIBIT A Howard Weitzman Direct Dial: (310) 566-9811 Direct Fax: (310) 566-9871 E-Mail: hweitzman@kwikalaw.com February 7, 2019 VIA E-MAIL AND OVERNIGHT DELIVERY Richard Plepler Chief Executive Officer Home Box Office, Inc. 1100 Avenue of the Americas - 15th Floor New York, NY 10036 (212) 512-1960 E-Mail: richard.plepler@hbo.com Re: Michael Jackson Dear Mr. Plepler: We are counsel to the Co-Executors of the Estate of Michael J. Jackson, as well as various wholly-owned entities which own intellectual property and other intangible rights associated with the late Michael Jackson (collectively the “Estate” or the “Jackson Estate”). We write regarding Leaving Neverland, an admittedly one-sided, sensationalist program—referred to as a “documentary” by HBO and others—that HBO apparently funded and intends to air this Spring. The Estate first learned about this program in early January when its premiere at Sundance was announced in the press. As you must know, contrary to all norms of documentary filmmaking, the Estate was never contacted by the supposed “documentarian,” Dan Reed (or anyone else associated with the program) to provide the Estate’s views on, and responses to, the absolutely false claims that are the subject matter of the program. Likewise, no one else who might offer evidence to contradict the program’s premise was consulted either, as Dan Reed has publicly admitted. When the program was first announced, HBO and its producing partners did not disclose the identities of the two subjects of the documentary, but referred to them only as “two men.” However, from even the brief descriptions of the “two men” in the announcement, the Estate knew exactly who they were: Wade Robson and James Safechuck. The Estate knew this not because it had any inside “sources” about the documentary—it had none—but because these two men have been peddling their false “story” for years now, most notably in a series of failed legal actions against the Estate. The Estate did not hesitate to advise the media of their identity. The Estate was one-hundred percent confident that there were no other purported “victims” who this documentary could be about (because, contrary to Robson’s and Richard Plepler February 7, 2019 Page 2 Safechuck’s lawyers’ predictions when they first filed their lawsuits for hundreds of millions of dollars in 2013, no “flood” of further identifiable “victims” ever came forward beyond these two). HBO and its producing partners were then forced to acknowledge that the Estate had “guessed right” and that the two subjects of the film were indeed those two admitted perjurers who had filed lawsuits against the Estate, all of which have now been dismissed with prejudice (but as noted below are pending on appeal). The Estate spent years litigating with Robson and Safechuck, and had four different lawsuits by these two men dismissed with prejudice. (Today, Robson owes the Estate almost seventy thousand dollars in court costs, and Safechuck owes the Estate several thousand dollars as well.) In those litigations, the Estate discovered troves of information about Robson and Safechuck that made it unequivocally clear that they had no credibility whatsoever. We discuss some of that information below, but the information discussed in this letter is just the tip of the iceberg on these two. Had HBO actually complied with the most basic of journalistic ethics—rather than just accept their salacious allegations at face value—it would have discovered so much more long before it ever got involved in this disgraceful project. Obviously, that is the reason that Dan Reed and HBO’s producing partners initially tried to hide the identities of Robson and Safechuck. This ambush was carried out because Dan Reed knew that Michael Jackson’s family and friends, his Estate, and his millions of fans who are deeply knowledgeable about the case would have discredited Robson and Safechuck before filming began. HBO Is Being Used As Part of Robson’s and Safechuck’s Litigation Strategy Robson and Safechuck are pursuing appeals of the judgments against them, appeals that will probably be heard this year. As many other press outlets noted when their lawsuits were still pending in the trial court, Robson, Safechuck, and their shared attorneys have long engaged in a deliberate campaign to try their case in the media, most often through leaks of false information to some of the most salacious online tabloids. Had HBO done any research into this, it would have easily discovered that every year or so while the litigation was pending, before a major issue was to be decided, the tabloids would suddenly be full of false claims being peddled by Robson’s and Safechuck’s attorneys about Michael Jackson. The trial court never let this avalanche of false claims affect it, and we have no doubt that the Court of Appeal will not be affected by it either. That said, Robson’s and Safechuck’s lawyers will continue attempting to try their cases in the media. As noted, Robson and Safechuck are now appealing the dismissal of their multimillion dollar lawsuits. Not coincidentally, their appeals are likely to be heard later this year. HBO’s “documentary” is simply just another tool in their litigation playbook, which they are obviously using in a (very misguided) effort to somehow affect their appeals. Sadly, it appears that HBO—a once great and respected network—has now been reduced to the pay television version of Hard Copy (with a little mix of The Jerry Springer Show). Most pathetically, HBO has been reduced to a pawn in part of Robson’s and Safechuck’s attorneys’ litigation strategy. Richard Plepler February 7, 2019 Page 3 HBO and Dan Reed Intentionally Chose Not to Interview Anyone Who Would Detract From Their Story Leaving Neverland rehashes accusations against the late Michael Jackson of committing the most heinous crimes any person can be accused of in modern society. Given the seriousness of those allegations, one would have expected that HBO and its producing partners would contact: (1) the Jackson family; (2) persons who worked with Jackson during the relevant time period; (3) other young men and women who spent time with Jackson as children (including ones mentioned by name in the “documentary”); (4) friends of Michael Jackson who knew him for his whole life; (5) the many persons who know Safechuck and Robson well but do not believe them; (6) Tom Mesereau and his investigator, Scott Ross, who Robson happily met with for hours in 2005 to tell them about his experiences with Michael, with Mesereau finding Robson so credible that he made Robson the first witness for the defense in Jackson’s 2005 trial; and (7) the Estate, who spent years litigating the very claims discussed in the “documentary” by Safechuck and Robson. Yet, shockingly, HBO and its producing partners never attempted to contact any of these people. The fact that HBO and its producing partners did not even deign to reach out to any of these people to explore the credibility of the false stories Robson and Safechuck told violates all norms and ethics in documentary filmmaking and journalism. It is a disgrace. In fact, Dan Reed admitted in the question and answer session at Sundance that he never even attempted to contact the many, many other young men and women who spent time with Jackson as children, yet continue to defend him to this very day. And at least two of these young men are referenced by name in the film with the implications that they “replaced” Robson and Safechuck as Jackson’s “abuse victims.” Both have gone on record since the documentary was announced to explain that they were never abused by Jackson. One of them, who Robson explicitly claimed in the film “replaced” him, has released several “tweets” denouncing the documentary as a work of fiction. Yet neither of them—among the many others who spent time with Jackson as children—were ever approached by Dan Reed and HBO. In other words, HBO’s “documentary” is based solely on the word of two admitted perjurers. HBO and its partner, Dan Reed, never even attempted to explore whether these two men might not be telling the truth. We have read reports that these two men are supposedly “credible” in the documentary because they tell their story so fluidly. Yet they have been practicing their stories and rehearsing their lines (which changed throughout the litigation as discussed below) for years now. Thus, it is no surprise that these two men—who have also both acted professionally—tell their false story well. The bottom line is that any halfway skilled filmmaker could make a “documentary” telling any outrageous story about a dead man if they can just find two people willing to tell that story and then not challenge those two at all. That is particularly the case when one of the men—Wade Robson—is a self-described “master of deception”; and his own mother testified under oath that he should “have had an Oscar” given how good a liar he is (as discussed below). Richard Plepler February 7, 2019 Page 4 In Interviews, Dan Reed Is Using HBO in Order to Bolster the Credibility of the Program Despite Making Blatantly False Statements in Those Same Interviews Notably, HBO’s reputation is being used as one of the main reasons that the “documentary” should be taken seriously. The producer of this program, Dan Reed, is telling the media that one of the principal reasons the documentary is credible is because of HBO’s reputation. When asked whether an attorney had vetted the film, he responded, “that’s what happens on every single film I make or, to my knowledge, that anyone makes, certainly for HBO.”1 The usual checks on filmmakers are ethical and normative ones, such as factchecking (e.g., are their stories consistent? see below), investigating the motivations of people (e.g., do they have a financial motivation to say what they are saying?), talking to others with knowledge who may have something different to say, etc. But as is apparent from our discussion below, HBO apparently no longer cares about these ethical and normative checks on documentary filmmaking and journalism anymore. If HBO does care about such things, this documentary will never air on HBO. In the same interviews where he touts HBO’s involvement as a reason for his “documentary’s” supposed “credibility,” Mr. Reed has also made blatantly false statements about Robson and Safechuck in an effort to bolster their credibility. For example, in the same Huffington Post interview discussed above, Mr. Reed agrees with the interviewer that “one of the most impactful things in the documentary is the way [Robson’s and Safechuck’s] stories align … even though they didn’t know each other until now.” In another interview, Reed “confirms” that “for legal reasons, [Robson and Safechuck] were kept apart, long before you even approached them about making the movie.” Reed expands on that and says that this was done so “they couldn’t exchange stories. Sundance was the first time [as adults] that they’d met. It’s the first time they’ve had any significant time together.”2 This is utterly false. In Robson’s 2016 deposition, he testified that he had spoken to Safechuck in 2014, the year Safechuck filed his lawsuit against the Estate. When asked what the two men had spoken about, Robson refused to answer the question—his attorney instructed him to remain silent because Robson’s and Safechuck’s common attorneys were involved in the conversations between the two men in 2014. Accordingly, we can never know what they talked about and how they aligned their stories with their attorneys’ help. Given that they were both seeking hundreds of millions of dollars against the Estate, they had hundreds of millions of reasons for aligning their stories. 1 https://www.huffingtonpost.com/entry/leaving-neverland-michael-jackson-danreed_us_5c500044e4b0d9f9be689ab0 2 https://www.rollingstone.com/movies/movie-features/leaving-neverland-directordan-reed-michael-jackson-interview-785817/ Richard Plepler February 7, 2019 Page 5 In any event, the idea that two men who are represented by the same attorneys for the last six years would have stories that “align” is hardly surprising. You really cannot be so naïve that you would not understand this. Finally, we must note that we can only assume that the legendary Sheila Nevins had nothing to do with the decision to go forward with this “documentary.” It is a shame that she is no longer involved in these types of decisions for HBO. That HBO, the once iconic network, would fund, produce and distribute this pathetic and untruthful vehicle for these admitted liars to revisit false allegations made as part of their effort to revive their dismissed lawsuits is just plain sad. Robson and Safechuck Were Repeatedly Caught Lying During Their Failed Lawsuits Against the Jackson Estate Wade Robson testified in detail as an adult before a jury in 2005 that Michael Jackson never did anything wrong with or to him. He was then subjected to a withering crossexamination by Ron Zonen, one of California’s most-seasoned prosecutors. Yet, despite that, Wade Robson never wavered. Moreover, even after his testimony, there are many videos of him (readily available online) where he praises Michael Jackson as an inspiration and denies that Michael ever molested him. But even setting that aside, Robson was also caught lying repeatedly in the dismissed litigations with the Estate. For example, in order to try to get around the statute of limitations for monetary claims against the Estate, Robson testified under oath that “[p]rior to March 4, [2013,] I did not understand or was even aware that an Estate [of Michael Jackson] had been opened for administration.” That was a lie. In truth, Robson had personally met with John Branca, one of the Estate’s executors, at Mr. Branca’s office in 2011 in a (failed) effort to solicit work with the Estate on a Michael Jackson-themed Cirque du Soleil show. Prior to meeting with Mr. Branca, Robson’s talent agent told him that he had to contact “John Branca, the person in charge of MJ’s estate.” Not surprisingly, the trial judge dismissed Robson’s claims against the Estate, finding that no rational person could believe Robson’s declaration that he did not know about Michael Jackson’s Estate until March 4, 2013 when he, in fact, had met with John Branca, the Co-Executor of the Estate. In plain English, the judge found that Robson had lied in his sworn declaration. (The idea that Robson would want to spend years of his life creating and directing a Michael Jackson-themed show, when he was in fact a victim of horrendous abuse by Jackson, is itself hard to take seriously.) Robson’s meeting with Mr. Branca was hardly the first time that he tried to capitalize on his relationship with Michael Jackson after Michael’s death when he thought it would help him make money. In the days after Michael’s death, Robson released a statement praising Michael as “one of the main reasons I believe in the pure goodness of human kind.” He then tried to solicit work from Kenny Ortega, the director of Michael Jackson’s This Is It, to help work on the movie. Robson was able to secure work with Janet Jackson, in her 2009 MTV Video Music Awards tribute to Janet’s late brother Michael. In videos behind the scenes Richard Plepler February 7, 2019 Page 6 of the tribute show (easily found online), Robson is seen praising Michael Jackson in the most effusive terms. During the litigation with Jackson’s companies, Robson was also caught trying to hide evidence before his cases were dismissed. For example, Robson lied under oath and stated that, other than one brief email in late 2012, he had had “no written communications” with anyone (other than his attorneys) about his newly-concocted allegations that he was abused by Jackson. This turned out to be a complete and utter lie. Robson had actually shopped a book about his allegations in the year prior to filing his lawsuit—a book he tried to hide from the Estate. That book told a completely different story of how he was first abused by Jackson. When asked about some of these discrepancies at his deposition, Robson explained that his memories had “evolved” since writing the draft of the book in late 2012 and early 2013. He explained that “post disclosing the abuse in 2012 and beginning that healing journey, they've evolved as far as I remember more details about scenarios. As it goes along, you know, it evolves, details get added to.”3 Moreover, despite lying under oath in his lawsuit that he had had “no written communications” with anyone about his supposed abuse, he was eventually ordered by the trial court to produce all such documents. Robson produced hundreds (if not thousands) of written communications (emails, texts, etc.) with his family and friends about his false abuse allegations. He never explained why he lied and said he had no such communications. Most notably, many of these communications were with his mother where he admittedly was trying to reconstruct his own “memories” of the time period when he was supposedly abused—i.e., in his own words, to “add” the “details” that he did not know when he was drafting his book. In one email, he lists over twenty different questions to his mother asking her about the specific details of his interactions with Michael Jackson. Some of these include: “Can you explain all that you remember of that first night at Neverland? What happened when we drove in what did we do? And that first weekend at Neverland?” Notably, in the “documentary,” Robson now recounts “his” supposed “memories” of these events in great detail. But Mr. Reed and Robson never explain that he had to first ask his mother scores of questions before he could tell his story. Indeed, despite telling the story of his first night at Neverland in the documentary as if it is his own memory, at his deposition, he admitted that he “did not know” if his memory of that night “came from [his] own recollection or [if] it was told to [Robson] by someone else.” Simply put, Robson is an admitted perjurer who proudly called himself (in his draft book) a “master of deception.” Robson is such a good liar that his own mother testified under 3 We would be happy to provide you with any source documents, such as depositions, documents produced in discovery, etc. It is a shame Mr. Reed and your colleagues at HBO were not interested in such documents when producing their “documentary.” Richard Plepler February 7, 2019 Page 7 oath at her deposition that she could not tell when he was lying; she even volunteered that “he should have had an Oscar” given how convincing his lies were. It may just be that he deserves an Oscar for HBO’s “documentary” as well. Robson’s fabricated story, of course, is that Jackson’s abuse caused him to have two self-described nervous breakdowns in 2011 and 2012. Those breakdowns, according to Robson, caused him to realize that he had been abused by Jackson decades before. But there is a much more simple explanation for Robson’s breakdowns. He has a family history of suicidal, major depression on his father’s side. Robson’s father committed suicide in 2002. Robson’s first cousin on his father’s side committed suicide in 2012. Unfortunately, major depression is a very heritable disease. Thus, it is no surprise that Robson had these breakdowns. And it is even less surprising that he has continued to have breakdowns given that when Robson saw a psychiatrist in 2011 he was prescribed anti-depressant medication. But he refused to ever take that medication. To be clear, we ascribe no “fault” or “weakness” whatsoever to those who suffer or who have suffered from clinical depression. That said, we must note Robson’s mental illness, and his abject and stubborn refusal to get appropriate medical treatment for it, because Robson’s claim is that his “nervous breakdowns” are strong evidence of his abuse by Jackson. But those breakdowns are much more easily explained by Robson’s family history of major depression and his own (apparent) diagnosis of depression for which he stubbornly and irrationally refused to take the medication prescribed to him by a medical doctor to treat it. As for Safechuck, by his own admission, he did not “realize” that he had been abused until after he saw Robson on the Today Show in May 2013 being interviewed by Matt Lauer about Robson’s newly-concocted story of abuse. All of a sudden, Safechuck realized that he had been abused. He then contacted Robson’s lawyers and filed copycat lawsuits against the Estate for millions of dollars. And like Robson, he too had testified under oath that Jackson never did anything inappropriate with him. His two cases against the Estate were also dismissed. Safechuck’s frivolous lawsuits were dismissed so early in the proceedings that significant discovery was never taken in his case, and he was able to avoid having his deposition taken and producing documents. But even in his sworn declarations in the litigations, there are clear signs that he is lying and trying to construct a false story of abuse from his vague memories of his interactions with Jackson. For example, Safechuck claimed in his sworn declaration that he was first abused on the Paris leg of the Bad Tour, which he correctly identifies as taking place in late June 1988 (as a simple Wikipedia search would reveal). He later says that after the Bad tour ended, Michael flew him out to New York “in February 1989” where Michael was performing at the Grammy’s. Safechuck states in his declaration that he was abused on this New York trip for the Grammy’s. However, the Grammy’s were not in New York in 1989; they were in Los Angeles that year (and in 1990). And Michael did not perform at the Grammy’s in 1989. However, Michael did perform at the Grammy’s in New York in February 1988, i.e., before Safechuck claims he was first abused Richard Plepler February 7, 2019 Page 8 in June 1988. Yet he somehow claims that he was abused on a New York trip to the Grammy’s that occurred before he claims he was first abused. Safechuck’s “error” here is obviously reflective of an effort to create a story of abuse out of whole cloth. Or in other words, Safechuck is just making it up as he goes along. In the “documentary” and in his declaration for the litigation, Safechuck spins a tale about how he refused to testify for Jackson in 2005, despite threats from Jackson and his legal team. Setting aside the absurdity of Jackson and his sophisticated legal team trying to convince an unwilling and unstable witness to testify on such a sensitive issue, Safechuck’s story is demonstrably false. In particular, Safechuck declares that Michael and his legal team called him “towards the end of the criminal trial” trying to pressure him to testify. But this statement cannot be true. Early on in the trial, the Judge precluded the prosecution from allowing evidence regarding alleged molestation of Safechuck and others because the “evidence” of such molestation was unreliable. The exceptions were that the Judge did allow testimony from certain disgruntled workers that they had heard that Michael had molested Wade Robson, Macaulay Culkin and Brett Barnes. That is why those three specifically testified, and all of them denied the molestation (including Robson of course), and were subject to cross-examination by prosecutors but did not waver. And that is why Jackson and his attorneys would not have ever tried to pressure an unwilling and unstable Safechuck to testify, particularly “towards the end of the criminal trial” as Safechuck so falsely claims in the documentary and under oath. *** Given all of this, which are facts readily available to anyone doing minimal due diligence, why would HBO produce a documentary based solely on the words of these two liars and director/producer Dan Reed? Why would HBO produce this documentary without even seeking comment and response from the Jackson Estate who spent years successfully litigating these false allegations with Robson and Safechuck? Is there any other artist who HBO would do this to? Is there any other artist who HBO would not even seek comment from when making such serious accusations? Michael Jackson was subjected to a decade-long investigation by an overly-zealous, ethically-challenged, and ultimately disgraced prosecutor in Santa Barbara County, Tom Sneddon, who looked anywhere and everywhere for supposed “victims” of Jackson’s. Yet, he never found those “victims.” Indeed, the 2005 criminal trial of Jackson was a complete farce, and Michael Jackson was completely exonerated. As anyone who has studied that trial knows, the jury utterly repudiated the prosecution’s case. In both his opening and closing statements, Jackson’s attorney, Tom Mesereau, took the unusual step of telling the jury that they should acquit Jackson because Mesereau and his team had proven Jackson innocent. In other words, he did not try the case as a “reasonable doubt” case. Mr. Mesereau tried the case with the purpose and goal of proving Jackson innocent. And he did exactly that. As recently as 2017, several jurors were re-interviewed about the case in light of Robson’s about-face, and they all agreed that they would still acquit Jackson today. The jurors have been interviewed many Richard Plepler February 7, 2019 Page 9 times; they are articulate bright people, not the gullible idiots that Dan Reed tries to paint them as in his “documentary.” Yet HBO is relying on the uncorroborated stories of two admitted perjurers over the weight of the American justice system. Of course, the tabloid media’s fascination with Michael Jackson and telling more-andmore ridiculous stories about him is nothing new. The great American intellectual, James Baldwin, wrote about “the Michael Jackson cacophony” all the way back in 1985 when the media first began subjecting him to “the jaws of a carnivorous success.” As Baldwin saw it, Michael “will not swiftly be forgiven for having turned so many tables, for he damn sure grabbed the brass ring, and the man who broke the bank at Monte Carlo has nothing on Michael.” By 1985, when Baldwin wrote those words, Michael Jackson was a 27-year-old African-American from Gary, Indiana who had “turned the tables” on the entire power structure in the music business. Leveraging his unprecedented success, Michael insisted that MTV and mainstream radio play his music and that of other African-American artists like him. Michael also insisted that his record company assign him ownership of his own master recordings. In other words, Michael Jackson, the young artist, insisted on controlling his own art and not leaving it to the whims of big business. And more still—the 27 year-old Michael did not just own his own music publishing, he had the gall to outbid other more established players in the industry for one of the crown jewels of music publishing, the ATV catalogue (which famously included the Beatles catalogue). We suspect that even James Baldwin could not have imagined that his words would still ring so true today, over thirty years later. Michael Jackson has yet to “be forgiven for having turned so many tables” even ten years after he left this world forever. Even the once great HBO—who had partnered with Michael to immense success—is subjecting the deceased Michael Jackson to “the jaws of a carnivorous success” in death, devoting four hours of its programming to the words of two serial perjurers, whose sole agenda has been to extract money from Jackson’s rightful heirs and chosen beneficiaries. That HBO has now joined the tabloid media’s “Michael Jackson cacophony”—ten years after his death—is truly sad. We know that HBO is facing serious competitive pressures from Netflix, Amazon and other more modern content providers, but to stoop to this level to regain an audience is disgraceful. We know HBO and its partners on this documentary will not be successful. We know that this will go down as the most shameful episode in HBO’s history. We know that Michael’s devoted fans, and all good people in the world, will not swiftly forgive HBO for its conduct. Richard Plepler February 7, 2019 Page 10 Mr. Plepler, as you yourself said in late 2017: “A lie goes halfway around the world before the truth puts its boots on.”4 The media coverage alone of this disgraceful “documentary” has proven you right. We would be happy to meet with HBO to discuss a solution. We have plenty of further information and witnesses that would expose these two for who they are. If HBO wants to maintain its industry position as a valid source of news and fact, it owes an obligation to the public—not to mention the deceased Michael Jackson with whom HBO had previously partnered with during his lifetime—to actually investigate these matters. Barring that, this “documentary” will say a lot more about HBO than it ever could about Michael Jackson. Very truly yours, /s/ Howard Weitzman HW/JPS cc: Jonathan P. Steinsapir, Esq. Bryan Freedman, Esq. Eve Konstan, Esq. General Counsel, HBO Glenn Whitehead, Esq., EVP, Business & Legal Affairs, HBO 10386.00347/618197 4 https://deadline.com/2017/10/hbo-richard-plepler-confederate-backlash-vanity-fairsummit-1202181519/ EXHIBIT 7?31?92 310553058?3# 2 MICHAEL JACKSON Jack792.la he of July 22, 1992 TTC Touring Corp. . o/o Greenberg, Glusker, Fields, Claman 8 Meohtihger 1900 Avenue of the Stars Suite 2000 Lee Angolo?, CA 90057 Attention: Sandra A. Dewey, Esq. no: MICHAEL JACKSOH IN Coroner Gentlemens' The following shall confirm the terms and conditions of the. agreement between Home Box Office, a Division of Time Warner Entertainment Company, L.P. and TTC Touring Corp. ("Liceneor") for the above-mentioned program. Performer: Michael Jackaon. Progronu An approximately 120 minutes in length in-concert program featuring Performer (the ?Program"), which Licenoor shall record at Performer's live concert in Bucharest; Romania currently scheduled for' October 1. 1992 '(the "Performance"). The Program shall thereafter'be delivered to HBO for exhibition.by'HBO on October 10, 1992 (or at such later date as set forth in the "cancellation" paragraph below). The Program shall contain up to approximately ten (10) minutes (but in no event more than twelve (12) minutes) of footage (which shall include, it it is used, the video, approximately three (3) minutes in length, featuring Performer which in shown at the beginning of the Performance before Performer appears on stage] other than in?concert footage of Performer during, the Performance (the "Non-Concert Footage"); provided that the entirety of the Non-Concert Footage shall be placed immediately at the beginning of the Program; and (ii) the remainder of the Program shall consist solely of uninterrupted in?concert footage of Performer during the Performance. Delivery: The Program shall be delivered to HBO no later than October 8, 1992; provided that. Licenoor ahall ueex reasonable efforts to deliver the Program earlier (the "Delivery Date"). The Program shall be held by HBO for the sole purpose of preparing for use hereunder such videotapes of the Program on HBO requires. H30 in not granted the right to own the Program. After delivery of alder Home Box Office, A Time Warner Entertainment Company 1100 Avenue of the Americas. New York, NY 10036-6373? (212) 512-1000 . pr BYiereenberg Glusker at 7-31-92 1331PM NY 14 FL 5530657:# 5 i? TTB Touring Corp. A5 Of JUIY 22' 1992 the Program, HBO may not alter or edit the Program in any way. If there are technical or legal reasons why the Program roguiree alteration or editing, HBO shall immediately notify Lioenoor of such problems, and Lioeneor shall be reeponsible for the immediate oorrection thereof. Within thirty (30) days after the Exhibition Date (ae hereinafter defined), HBO shall return to Lioeneor all videOtapee of the Program in its possession and any promotional or advertising materials delivered to HBO by Lioeneor in connection with this Agreement; provided that HBO may keep a videotape for archival purpoeea only. Rights: Licenaor hereby irrevocably licenses to HBO, its successors and assigns, the exclusive rights to exhibit the Program one time only On each feed (without overlap) on the HBO pragramming service without regard to the number of channels comprising such service by means of Non?Standard Television in the Territory on October 10, 1992 (or at such later date as set forth ~in the "Cancellation" paragraph below (the "Exhibition Date")) and at no other time. .. License Fee: In consideration for the license granted Lioenoor to HBO hereu Lioenaor one third by wire transfer within five (5) days after Lioenaor'e execution and delivery of this Agreement; {ii} one third two weeks prior to the Delivery Date; and one third within five (5) days after the Delivery Date. Holdbaoke: (A) Neither Performer, nor Liceneor, nor any entity or person owned or controlled by Performer and/or L'ioeneor shall cause, authorize, or permit any exhibition, diatribution, promotion, publicity or advertisement of the Program, any portion theregi, or any outtakes from the videotaping of the Performance, as to owe: in the Territory, by means of Non-Standard Television, during the twelve (12) month period immediately following the Exhibition Date (the "Holdback Period"); (ii) in the Warritory, by means of Standard Television .until after the Holdbaok Period; A. R9M BYidreenberg Glusker at 7c31~92 NY 14 FL 5530687:# 6 TTC Touring Corp. As of July 22; 1992 in the Territory, by means of Non~Theatrical Distribution, until after the Hoidhack Period; (iv) in the Territory, by means of Consumer Video Devices until thirty (30) days after the Exhibition Date; and outside the Territory by means of any'media until one (1) day after the Exhibition Date; provided that it is understood and agreed between the parties hereto that Licensor has entered into an arrangement with Radio Vision International, Inc. pursuant to which Radio Vision International, Inc. has been granted the right to record the Performance and to authorize the broadcast of such recordation twice in certain territories in Europe only (once "live" and once during the six (6) month period following the live broadcast). (B) Notwithstanding anything to the contrary contained in clause (A), above, Performer or Licensor shall have the right to cause, authorize and permit the exhibition,.promotion, publicity or advertisement of the folloWing: Excerpts fromiPerformer's 1992/1993 tour for'purpoaes of advertising or promoting.the 1992/1993 tour or the sale of Performer's records; provided that, no one excerpt or clip of such footage shall exceed two (2) songs in the aggregate; (ii) a "making of" documentary of Performer's 1992/1993 tour containing not more than twenty (20) minutes of concert footage from Performer's 1993/1993 tour; provided, that such documentary shall not be promoted, advertised or exhibited in the Territory by any means or media until three (3) months after the Exhibition Data; any outtakes from the Program, to be used solely in connection with Performer's commercial endorsements (except as set forth in clause (iv) below), not to exceed thirty (30) seconds in length each; and (iv) any outtakes from the Program, to be used solely in connection with mini documentaries about Performer (except as set forth in clause above), provided that such outtakes shall not exceed (A) thirty (30) seconds in length each and (B) five (5) minutes in length.in the aggregate, for inclusion in each such mini documentary. cancellation: If the Performance is canceled for any reason within?Licenaor's or Pertormer's control, or within the control of HOV thereenberg GIUSKBP at 4 1332PM NY 14 FL 5530687?# 7 5 . TTC Touring Corp. he of July 22, 1992 any employee, agent, representative or deeignee of either of them, Liceneor shall, within ten (10) business days after receipt of an invoice therefor, reimburse HBO for any portion of the License Fee heretofore paid. For of this Agreement, any strike, epidemic, act of God, illness, injury or any other condition beyond Lioeneor'e or Performer'c control dancing a cancellation (each, a "Force Majeure Event") shall be deemed an event beyond Licenaor'a and Performer'e control. (ii) If the Performance in canceled as a reeult of any Force Majeure Event, neither Lioenaor?nOr HBO shall have any liability whatsoever to the other; prov1ded, that if and only if 'the Performance and the videotaping' thereof are not rescheduled (as set forth in this paragraph), Licensor shall, within ten (10) business days after receipt of an invoice, reimburse ?BO'for any portion of the License Fee heretofore paid which has not been expended or irrevocably committed by Lioeneor on - the actual production of the Program by the date of cancellation or the Performance. Licenaor shall account to in writing simultaneously?with.caid reimbursement for any amounts so expended. notwithstanding the foregoing, Lioeneor shall have the right to reschedule the videotaping of the Program, during one of the performances during Performer's 1992/1993 tour; provided that the Exhibition Date moat be within two (2) weeks tollowing October 10. 1992; and provided further.that the venue of such rescheduled performance shall be subject to approval. . -Aa uted throughout this Agreement: "hon-Standard Television" meant any and all forms or televiann exhibition, whether new existing Or developed in the future, other than exhibitions by means of Standard Television, Consumer Video Devices, and Non-Theatrical Distribution. Non-Standard Televieion ahall -inolude, without limitation, exhibition by means of cable, wire or fibre of any material, "over~the-air pay" or STV in any frequency band, any and all forms of regular or occasional scrambled broadcast for taping, master antenna, satellite master' antenna, low' power television, closed?circuit television, tingle and multinohannel multi=point distribution service, and direct to TVRO satellite transmission, and radio (only for purposes of eimuloaet), all on a subscription, pay~per-view, license, rental, sale or any other basic. ?dtandard Television? means television distributed by a UHF or VHF television broadcast station, the video and audio portiona of which are intelligibly receivable without charge by means of standard home roof?top or television aet builtwin antennae. . Gluekar at 3 7-31-92 NY 14 FL 5530687?# 8 TTC Touring Corp. As of July 22, 1992 means a television earth station capable of receiving satellite transmieciOns. "Consumer Video Devices" means any form or video device, now existing or hereafter ev sod, including video discs and video cassettes, for.enhibition by means of playback device causing visual image of the Program on the screen of a television receiver or any comparable device, whether new existing or hereafter developed, located in consumer homes, including, without limitation, distribution for sale or rent, on a retail subscription, club, mail order or other direct consumer basis. "Noanhantricel Distribution" means distribution of the Program any means or method to educational and/or institutional organizations, airlines for in flight and trains for inetrensit distribution, chipswat~see, remote corporate locations and U.S. military bases. "Territory" means the United States of America, its territories, possessions and commonwealths. Promotional Activities: For purposes o?.edvertising, promoting and publicizing the Program, HBOHehall have the right to: use and authorize others to utilize Performer'e name, approved likeness; approved recorded singing-voice and approved recorded speaking voice; provided, that Performer's recorded singing end/or speaking voice as contained in the Performance and in any interviews conducted by HBO with Performer are hereby deemed approved; and provided further that all other approvals must be obtained from Licensor, and shall be given within five (5) business days of receipt by Licensor oi! submission for approval of such likeness and recorded singing and/or speaking voice and failure by License: to respond within such five (5) business day period shall be deemed require Licensor to provide a reasonable number of photographs of Performer; and screen and utilise audio/visual materials as are reasonably available to Licensor or Performer (as well as clips from the Program) for purposes of creating and airing commercials and on?air promotion. In the event that HBO shall determine that such audio/visual materials are not sufficient, Licensor agrees to videotape additional materials as requested by HBO of Performer on stage, subject to Performer's availability; provided that -HBO shall be responsible for reimbursing? Licensor for out-of?pocket expenses incurred in videotaping such additional materials. After the Exhibition Date ?and until the expiration of the Holdback Period, for purposes of advertising, promoting and publicizing the fact that the Program and Performer have appeared on the HBO programming service (but not 4 RCV?BYiereenberg Giuaker at 7-31-92 i 1334PM NY 14 FL 55305874# 9 TTC Touring corp. he oi July 22, 1992 for the purpose of directly soliciting new subscribers, in connection with a specific special offer or an "800" or "900" telephone number), HBO shall have the right to use excerpts from the Program, each excerpt not to exceed ten (10) seconds in length; provided, however, that Lioensor shall have the right to approve (A) such excerpt(s), provided that Licensor shall Supply at least five (5) minutes in the aggregate of, such excerpts (consisting solely of Performer'e performance in the Program) on or before the Exhibition Date and (B) the material which contains any such excerpt(s) (which approval of such material shall not be unreasonably withheld); and (ii) Periormer's name.and/or approved likeness in printed promotional or advertising material, provided that Licensor shall have the right to approve the material which contains any such name and/or likeness. In connection. with Licensor's approval of material created by HBO and containing excerpts from the Program, the name and/or likeness of Performer, such approval shall be notified to HBO no later than five (5) business days of receipt by Licensor of HEO's submission for approval; and provided further that failure by Liconsor to respond within such five (5) business day period shall be deemed approval. copyright: Licensor shall be the solo and exclusive owner of all right, title and interest in, to and with respect to the Program including, without limitation, the copyright therein and thereto. License: shall register or cause to be registered the copyright in the Program in the united States Copyright Office and shall protect the copyright in the Program throughout the Territory. Licensor shall deliver to HBO an executed and notarized Memorandum of Exclusive License, in the form attached hereto. For such purpose only, HBO is hereby irrevocably appointed the attorneywin-fact oi Licensor to execute, verify, acknowledge and deliver any and all such instruments which Licensor shall fail or refuse to execute, verify, acknowledge or deliver within ten (10) business days. HBO shall deliver to Licensor copies of any documents or instruments executed, verified, acknowledged and delivered by HBO as attorney- inwfaot of Licensor. Licensor's Representations and.Warranties: Licensor represents and warrants that: The Program, any _-element thereof, or any advertising, promotional or publicity material supplied by Licensor hereunder will not contain any language or material which, to the host of Licensor's knowledge, is libelous, slanderous or defamatory and will not, to the best of Licensor's knowledge, violate, infringe upon, or give rise to any adverse claim with respect to, any common law' or other right. whatsoever (including, without RsvaY=Greenberg Glusker at i 7?31?92 NY 14 FL 5530687;#10 TTC Touring Corp. As of July 22, 1992 limitation, any' copyright, trademark, service mark, literary, dramatic, comedic, or photoplay right, right of privacy or publicity or contract right) of any person, firm or corporation, or violate any applicable law; (ii) Licensor has the right to enter into this Agreement, to grant the rights herein licensed and to perform fully all of its obligations hereunder; Licensor has acquired all rights necessary to Lioensor's license of rights to HBO hereunder including, without limitation, music rights, music master recording rights, still photos, film or videotape footage licenses or other appropriate licenses of all elements of the Program; and (iv) None of the rights herein licensed to HBO has been transferred to any third party; to the _beet of Licensor?s knowledge, said rights are free of any liens, claims and encumbrances whatsoever in favor of any other party; and to the best of Licensor's knowledge, there are no claims, litigation or other proceedings pending or threatened which would adversely affect HBO's rights hereunder. Representations and Warranties: HBO represents and warrants that it has the right to enter into this Agreement and perform fully all of its obligations hereunder. Indemnification: Lioensor shall indemnify and hold harmless HBO, its parent, subsidiary and affiliated companies, distributors, assigns, licensees and the respective shareholders, directors, officers, employees and agents of the foregoing (the "gag Indemnified Parties") from.and against any and all claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, expenses or damages (including, without limitation, reasonable outside legal fees and expenses) of whatsoever kind and nature imposed on, incurred by or asserted against any of the HBO Indemnified Parties arising out of any breach by Licensor of any representation, warranty or covenant made, or obligation assumed, by Licensor pursuant to this Agreement. The provisions of this subsection (1) shall apply, without limitation, to claims brought by HBO against Licensor. (ii) HBO shall indemnify and hold harmless Licensor, its parent, subsidiary and affiliated companies, distributors, assigns, licensees and the respective shareholders, directors, officers, omp10yees and agents of the foregoing (the "Licensor Indemnified Parties") from and against any and all claims, actions, suits, HOV BYiereenberg Giueker at 7f31-92 NY 14 FL TTG Touring Corp. A3 of July 22, 1992 costs, liabilities, judgments, obligatiOne, penalties, expenses damages (including, without limitation, reasonable outside legal fees and expenses) of whatsoever kind and nature imposed on, incurred by or asserted against any of the Liceneor Indemnified Partiee arieing out of (A) any breach by HBO of any representation, warranty or covenant made, or obligation by HBO pursuant to this Agreementany advertising or promotional materials not approved by Lioeneor or Performer; or (C) the production, exploitation or exhibition of any materials created by HBO. The provisions of this subsection (ii) shall apply, without limitation, to claime brought by Lioeneor against HBO. Miscellaneous: (1) Notices. All notices and other communications between the parties hereto shall be in writing and deemed received (1) when delivered in person or by telex or electronic meane, or (ii) five (5) days after deposited in the United states maile, postage -prepaid, certified or registered mail, addressed to the other party at the address set forth below (or at such other address as such other party may supply by written notice): Address"): TTC Touring Corp. c/o Greenberg, Glueker, Fields, Claman Mechtinger 1900 Avenue of the Stars Suite 2000 Lee Angelee, CA 90067 Attention: Bertram Fields, Esq. and Sandra A. Dewey, Esq. with copiee to: MJJ Productions, Inc. 10960 Wilehire Boulevard, Ste. 2206 Lee Angelee, californie 90024 Attention: He. Norma Staikoe Breeleuer, Jacobson, Rutmen Sherman 10345 Olympia Boulevard Lee Angelea, California 90064 Attention: Mr. Richard Sherman 55306879$11 R?v-BYlereenberg Glueker at 7-31-92 NY 14 FL 5530687;#12 TTC Touring Corp. As of July 22, 1992 EEG: Home Box Office, a Division of Time Warner Entertainment Company, L.P. 1100 Avenue of the Americas New-York, New York 10036 Attention: Senior Vice President, Business Affairs with a separate copy delivered to: Senior Vice President and General Counsel (ii) Confidential Information. It is understood that HBO shall comply with the confidentiality provisions set forth in Exhibit I attached hereto and incorporated herein by this reference. Governing Law. This Agreement should be governed by, and construed in accordancek with, the laws of the State of California, applicable to contracts entered into and to be fully performed therein. (iv) Arbitration. Any dispute arising cut of, in connection with or relating to this Agreement shall be submitted for binding and final arbitration before a retired judge of the Superior Court of the State of California for the County of Loo hnqelcs who shall be mutually selected by the parties. In the event that the parties cannot agree on the selection of such a retired judge within 30 days after one of the parties notifies the other in writing that there is any such dispute to be resolved, each party shall select such a retired judge, and the two retired judges so selected shall then select a third retired judge who shall serve as the sole judge in connection with such dispute. If the two partynappointed judges are unable to select third judge within 30 days after their appointment, the sole retired judge in connection.with such dispute shall be selected by the Superior Court of the State of California We 5587 3.10.55.3968W28 TTC Tauring Corp. As of July 22L 1992 for the County of Los Angeles. The retired judge so selected shall - conduct the arbitratian in conformity with the rules af, and as if it were conducted by, the American Arbitration Assaciatinn. Very truly yourst HOME BOX OFFICE, A divisian of Time Warner Entertainment Company, L.P. ACCEPTED AND AGREED TO: TTC TOURING CORP. BY: Federal ID _10_ 595 KER, 5557 5.155 genome MEMORANDUM OF EXCLUSIVE LICENSE KNOW ALL PERSONS BY THESE In consideration of Ten Dollars, receipt of which is hereby acknowledged, paid by Home?sox Office, a Division of Time Warner Entertainment Company, L. P. and for other good and valuable consideration, the undersigned ("Licensor") does hereby irrevocably license to HBO, its successors and assigns, the exclusive rights to distribute the television program tentatively. entitled JACKSON IN (the "Program") as follows: Liceneor hereby irrevocably licenses to HBO, its successors and assigns, the exclusive.rights to exhibit the Program one time only on each transmission- feed (without overlap) on the HBO programming servioe without regard to the number of channels comprising such service by means of Non- Standard Television in the Territory (the "Exhibition Date"). Lioensor shall not cause, authorize, license or permit any exhibition, distribution, promotion, publicity or advertisement of the Program, or any portion thereof, as follows: in the Territory, by means of Non-Standard Television, during the twelve (12) month period immediately following the Exhibition Date (the "Holdback Period"), subject to the terms and provisions of a certain arrangement between Lioensor and (ii) in the Territory, by means of Standard Television, until after the Holdbaok Period; in? the Territory, by means of Non-wheatrioal Distribution, until after the Holdbaok Period; (vi) in the Territory, by means of Consumer Video Devices, until thirty (30) days after the Exhibition Date; and outside the Territory by means of any media, until lone (1) day after the Exhibition. Date; provided that it is understood and agreed between the parties hereto that Lioensor has entered into an arrangement with Radio Vision International, Inca pursuant to which Radio Vision International, Inc. has been granted the right to record the September 29th concert and to authorize the broadcast of such reoordation thereof twice in certain territories KER, .3 5587 in Europe only (once "live" and once during the six month period following the live broadcast). "hon?Standard Television" means any and all forms of television exhibition, whether new existing or developed in the future, other than exhibitions by means of Standard Television, Consumer Video Devices and Non-Theatrical Distribution. Non?Standard Television shall include, without limitation, exhibition by means of cable, wire or fibre of any material, "over?the?air pay" or STV in any frequency band, any and all-forms of regular or occasional scrambled broadcast for taping, master antenna, satellite master antenna, low power television, closed?circuit television, tape, cassette and disc distribution (excluding Consumer Video Devices), single and multi?chennel multi-point distribution service, and direct in: TVRO satellite transmission, and radio (only for purposes of simulcast) all on a subscription, pay-por-view, license, rental, sale cu: any other basis. "Standard Television" means television distributed by a UHF or VHF television broadcast station, the video and audio portions of which are intelligibly receivable without charge by means of standard home roof-top or television- set built?in antennas. means a television earth station 'capable of receiving satellite transmissions. "Consumer Video Devices; means any form of video device, now existing or hereafter devised, including video discs and video cassettes fer exhibition by means or a playback device causingta visual image of the Program on the screen of a television receiver or any comparable device, whether new existing or hereafter developed, located in consumer homes, including, without limitation, distribution for sale or rent, on a retail Subscription, club, mail order or other direct consumer basis. "Non-Theatrical Distribution" means distribution of the Program by any means or method to educational, institutional organizations, airlines for in flight and trains for in?transit distribution, ships-etwses, remote corporate locations and U.s. military besese erritogy" means the United States of America; its, territories, possessions and.commonwealths. This memorandumlo? exclusive license is executed in accordance with and is subject to the terms and conditions of the license KER. 5587 4 agreement dated as of July 22, 1992 between the undersigned and HBO (the "Agreement") relating to the license to HBO of the above~menticned rights in the Program. All capitalized terms used herein and not defined shall have the meanings set forth in the Agreement. IN WITNESS WHEREOF, the undersigned has caused thee? presents to be signed by its duly authorized cfficer on the m?i?xday of Pi?f?m?STATE 05COUNTY OF eve. - ?aemats a. 'n'J?j .. . on tie Q?l?kday of 1992 Defere me personally came to me known, who, by me did de?bee and say t?vt he/ehe resides at ahiw?ii?hii?flti?h:5; that he/she is the M?Ei?if??i?: {12?an cf TTC Teu?ring Corp?. the corporation de??fibed in and which executed the foregoing instrument; and that he/ehe signed hisiher name thereto by order of the board of directors of said corpOEFtion. (53 5/ J1 La Ki?, 1-). . ,x in 5a: {:51 a . f3 @354"; P. 3?45: \a . .. ybtary Public +1qu . i' FJCIAL NOTARYSEAL KATHYA.SHANNON Notary Pubiic? Ca??ornia LOS ANGELES COUNTY My Ccmm. Expires OCT 06,1995 . . 558'! 31 9.515305; 7i#32 '5 Elm-1mm I t0 . Agreai?nt between Hume Box Office and TIC mixing Carp. dated as 9f i Jilly}?! 1992 Prior to andiur during eantaut or relationship with Lleansor. HBO (which shall be: du?amad in include ui?cara. dimmers. cinema and umpiayeaul may be given access to or became acquainted with Performer andlor with ?Confidential information? (as such tum is defined below) Milan is at grunt value to Lluanaur and Parfarmar. HBO further adknuwladgahxhhi maintaining 61d ann?dhmiallty of all mun Con?dential Informatian is critically impatient in Liuanuor and Parfarmei'. and that l-lBCl's agreement to thaw confidentiality provisions is a material inducement Licensur in granting the license to HBO which is the whim: hi this agreement. . HBO shall not. in uuymunnar nor-at any time (either during or after Ha?'s contact or relationship with Liuanaur and/urPeriormarl. use ur disclose. directly or indiracily. even in the - course of annual discussions. to anyone: omur than representativesui ?cannot at other person: designated by Llcanaor any of tha foilawina ?scribed line "confidential any infurmauun. data, documents, or athur marshals of any kind or nature in any way rained in Parlormur from any enurce hr for any including without limitation: all annuira? - by HBO in the noun: (if. contact with Linen?? and Parfurmar. con?dentiul information ahall ulna include. without limitation. any information rai?iiria to Liaenuur'a business affairs or uperationu. 1h! business affairs. commons andlur parsunui life of Fariurmar. the laminae: a?alra. operations andior private lives of any and all mumharu oi Perlormar'a iamily. and/or the business affairs ur operatlun of any and all entities in which Performer has I controlling interest. which information is generally nuL known to the Gunfiduntili information shall also include. without ilmiutiun. any and all phqiogranhe. films, ulqlequ. mualupr other higludinu negatives. prints hr unplug tharaoi. relating ?Feriarmar or his liken?: or any of his mrpumtinns andior othur enlitlos. andlur mrpuratiana or other until!? doing business or in any way related to Performer. andiur any of his 9r their All such cunlldamial information shall be deemed to be private; neural; and sensitive and shall he kept confidential and seem uniaas? Linunwr otherwise adults: HBO in writing in each? instance. Han acknowledges that Confidential information may be ?nished in written materials. in written or verbal communication. similar in unwrli'iarl irnuwladgai - . HBU shall not photograph. tum. film ur otherwise runurd ill the value or any likeness or hi Perfurmar. an cerium performance hr utlm musical nl Farinrmar. ur rehaaraala urafur. ur any uthar authriilen related to Pariurmar. wiihum Licaniiar?a Written consent in each instance, and H30 acknowledgas that any such photographs, tapas. film or other ranordinas. if appruved in writing. shall ha owned by Humor and shall bu dean-rad confidential information. mammawaw i 5567 HBO shall not. without Lioenaor'a prior written oonaent in eaoh inetenoa. Pubii?h. diretl?v or indirectly.- or cause or induce the publication of. any Confidential information. including. without limitation. give-any interviews. write or prepare or assist in the preparation of any books. articles. programs or any other oral or written communications ooneerning Performer or any corporations or entities doing business with or in any way related to Performer and/or any of his or their activities. HBO understands and acknowledges that If HBQ has any Question as to whether a particular piece of information In confidential. HBU obligated to obtain ?center's written approval prior to disclosing any auoh information. HBO shall not make any disparaging remarks concerning Performer or any of his representatives. agents or buoineae practices or do any not that may harm or disparage or to lower in esteem the reputation or public: image of Performer or any person. ?rm or corporation related to or doing business with Performer. HBO acknowledges and agreea that HBO does not have. nor shall HBO at any time claim. any interest whatsoever in the name ?Michael Jackson" or in any name similar thereto or in any goodwill associated therewith. Further. any one all con?dential information. . including. without limitation. any and oil ploturas. photographs. tapas. 'mualoF recordings, records. do??iiments or other Information relating to any entertainment services. or other services performed lay Performer or by any other firm or corporation doing buaineaa with or in any way related to Forformer, whether prepared by HBO or otherwise coming into HBO's possession or control. shall i be and remain Lioensor'a andror Performor'e sole and exclusive property. free or any claim or interest of tiny third party. and shall not be remov'red, reproduced. summarized. copied. excerpted. or utilized in any manner whateoaver without Lioeneor'a prior written consent in each instance. HBO hereby irrevocably and perpetually assigns to Licensor endl'or Performer all rights. title and interesr: of every kind or nature. both tangible and intangible. in or wilting out of win con?dential information or other material which is created by HBO iinoioding. without limitation, any photographs. video: end/or recordings of Performerl to the extent that Licensor endior Performer do not already own such rights. HBO agrees to immediately return all auoh Confidential information to Lioaneor immediately on discovery of possession thereof. or following request therefor by Lioeneor. HBO acknowledges that a breach of the provisions of these ooniidentlailty provisions will cause Lioensor andior Performer irreparable harm tor whioh there is no adequate remedy at law. and therefore, in addition to any and all other rights or remedies available to lioenaor andior Forformer. Lioensor andlor Fer-former shall be entitled to minnotive relief and all other remedies provided in aooh event by law or equity Such remediea shall include. without limitation. the right to prevent diasaminetion of any Confidential information before such Con?dential information is published. in the event of any unauthorized publication of Confidential Information. Lieeneor end/or Performer shall automatioelly own the copyright thereto. mrm-rsm.ato 2 I 4 RCV- 5587 HBO aamas to indemnify and hold Licensar. Performer and any of its and his mrpur??onn or other entities harmless from and against any ciaima. losses, liabilities. damaqias and axmnsas (including. without ?mitatiun. attorneys' fees and related may") incurred by the fpragoing parties as a result of NEW: breach. or the breach of agents, employees or representativem of any covenants. representations or warrantlas cantalnad? hernia. In the event that either party in this agreement brings an aq?on menforee the term: of these confidan?a?tv provisions or to declare rights with respect to such pmvia?iana, the prevailing party in such action shaulbe entitled ta an award of agate Mitigation, atmrnay?s' fees and ratated masts. to began: by t?a lasing party In such amount as may be determined by the cam having jurisdiction in such action. 6555791729? 155520.219 3 aw Tomi.? 15965.334 EXHIBIT D~052044 THE COMPLETE MERGER FILING IS UNDER ~~PORATE fVlJMBER «-~~ ~ ~. ~ f~Qq ~~ ~(~('k in the office ofthe Seuetary of State of the State of California a,,e em ent of M eroer aEc 29 Z~~o This Agreement of Mercer is enterec into i~elween O~~timum 1'roJucli~ns, a CaliEorru~ corpont~on (~ler~in "Surviving Corporation") and ~I'C T'aurii~g Corp r ~ California ec~rporation (herein "~~er~in~ Corporation). ~, t'Vlpl'~PlSlo CUIpC11"8!-!011 S~1P.I1 ne mprbed inr~ 5~~~•~~ivi^.~ r~.'.'~~.~::~.:. ?_ '~~e outsiai~di~ig s'riares o M~r~ing Corvara;ian shat: 6~ cant=le~~ ~•.ritl~oui consideration. : ,. The outstand.in~ shaz•es a: Su:~~iving Corpo~~aHoY1 shall rem~i auts~dndin~ and are not affected by the mer;er, ~. Merging Coxporatiox~ shall E~om time to tune, as and wlzen recu:~sted ~~y Sur~rivuig Corporation, execute and ~eliver~all such uocumenfs and instr-~urients ant cake all such action necessary or desirable to evidence ar carry out phis mercer. The effec. o; Ella merger and ttie erie~tive dace o the ~erQer are as prescribed by Iaw. 7I~ WITi~~S Vt~PEOr Trp pari~es have pX~CIStAd this ng-ree..*-~ent. rJpti~~un P~dur:ians i jc^~n Branca, Pxesident/CEO ~ ., ~~.~ ,~ John McClain, Secretary/Cr0 TTC Tou:znj Corp 1 john B f ca resident/CEO ~-~. !" ' Toh~vlc~.lair., Secretary/CFO .~,..