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PostPosted: Tue Nov 25, 2008 5:28 pm 
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Aravar, I honestly don't see what benefit the plaintiffs can get from the fraud claim at this point that they can't get from the breach of contract claim. Certainly not the repudiation of the contract; that is dependent on proving the breach. The only thing that I can see is that they are preserving the ability to appeal the striking of the punitive damages claim.

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PostPosted: Tue Nov 25, 2008 5:58 pm 
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Well, in theory at least a live tort count keeps alive claims for consequential damages which go beyond simple contract damages. I'm not sure that in this case any such exist, but at least the door remains open.

What that means is this: in an action based on contract, the plaintiff is entitled only to the money that was promised in the contract, period. If the defendant's noncompliance caused the plaintiff to suffer additional injury (for example, if a construction firm doesn't get paid and winds up having to cancel other jobs for lack of funds), contract law alone provides no remedy. Whereas if the defendant's actions are found to be fraudulent or otherwise tortious, then consequential damages may be awarded.


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PostPosted: Tue Nov 25, 2008 7:51 pm 
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Doesn't not allowing punitive damages pretty much preclude there was no malfeasance?

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PostPosted: Tue Nov 25, 2008 8:22 pm 
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Well, no. malfeasance is simply wrong action with bad intent, and covers all intentional torts, but not negligent torts or actions in contract. New York law requires a higher standard than most for punitive damages, which is not coterminous with malfeasance (most states simply require 'malicious' intent, which in more liberal states like California can include so-called 'constructive malice,' i.e. recklessness, and don't add New York's 'public wrong' standard.) The fact that the fraud charge remains means that the judge, so far, is allowing for the possibility of malfeasance (fraud being an intentional tort).

Remember also that the court has yet to evaluate a scrap of evidence. All the proceedings so far have been 'on the pleadings'- that is, the court assumes claims of fact are true at this stage, without examining the bases of those allegations.


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PostPosted: Tue Nov 25, 2008 8:31 pm 
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Holbytla wrote:
Doesn't not allowing punitive damages pretty much preclude there was no malfeasance?


Just to elaborate on this, New York law (in contrast to California law, for instance) requires that there proof of a public harm, not just a private harm. Under California law, you just need to prove that the conduct was malicious, oppressive and/or fraudulent. So punitive damages would be allowed for any fraud cause of action that was proven. But New York law has this additional requirement.

soli wrote:
Well, in theory at least a live tort count keeps alive claims for consequential damages which go beyond simple contract damages. I'm not sure that in this case any such exist, but at least the door remains open.


While that is quite true, I don't believe that the plaintiffs have even alleged any consequental damages beyond that directly related to the alleged breach.

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PostPosted: Tue Nov 25, 2008 9:06 pm 
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At what point is one considered to have been working on a film, legally speaking? I guess a better question is can a cease and desist order be obtained prior to release of the film? Are they likely to even get to the point of actual filming before this is wrapped up?

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PostPosted: Tue Nov 25, 2008 9:12 pm 
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Those questions are really beyond my knowledge base. Logic and common sense would seem to suggest that once significant time and money has been invested towards making the films, it would be too late to rescind the rights to make them. But I'm sure I don't need to tell you that logic and common sense don't always prevail in legal battles. Still, I would be quite shocked to see the court actually put the brakes on the making of the films, even in the unlikely event that the case actually went to trial and a breach was found to have occurred. Very shocked indeed.

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PostPosted: Wed Nov 26, 2008 10:00 am 
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Over here, fraud gives a wider damages claim, in that it allows all consequential losses, foreseaable or not to be claimed. The limit on contractual damages is what was reasonably forseeable at the time of the contract: either being damages of a type expressly contemplated by the parties; or which naturally arise from the kind of breach.

In solictr's example of a construction firm it would depend on whether the defaulter knew at the time of contract that the losses on other jobs would occur.

Exemplary, or punitive damages are awarded in very limited circumstances and it seems would not be awarded for fraud.


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PostPosted: Thu Dec 11, 2008 2:48 pm 
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Just out of curiosity, Aravar, where is 'here'?


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I just had a notion which I think makes sense: if this case is conceived of strategically in terms of jury trial, or a credible threat thereof which NL would settle to avoid, then keeping the fraud count would allow for the introduction of "paint it black" evidence. The fraud theory would permit a whole line of testimony regarding a pattern and practice of prior dirty dealing with regard to Hollywood accounting, a tactic calculated to make the average juror angry at the defendant (generally desirable from the plaintiffs' viewpoint). A contract action alone wouldn't permit a parade of "this is how New Line's bookkeepers screwed me" witnesses.


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PostPosted: Thu Dec 11, 2008 2:52 pm 
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That's quite true, solicitr.

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UK, or to be more precise in terms of jurisdiction, England and Wales.


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PostPosted: Thu Feb 05, 2009 2:30 am 
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The parties in the case have apparently agreed on a mediator, and are tentatively scheduled to hold the mediation in mid-March or April. However, I would not be at all surprised if that get's put back a while.

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PostPosted: Thu Feb 05, 2009 3:53 pm 
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Mediation. Long periods of silence interrupted by sandwiches.


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Except divorce mediation: long periods of silence interrupted by screaming.


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Why, are the sandwiches that bad? :scratch:


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PostPosted: Mon Feb 09, 2009 11:11 am 
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Deadline Issued to Produce Documents for LOTR Lawsuit

http://www.msnbc.msn.com/id/29056995/

Buried amongst details of the latest action in the courts was this snippet, which was news to me:

Quote:
The most significant ruling for the Tolkien heirs during Friday's status conference came when Los Angeles Superior Court Judge Ann I. Jones set a March 3 deadline for both sides to exchange documents.

The papers will be reviewed by both sides in preparation for their appearance before a mediator in mid-March or April to try and settle the case.

Jones also said the plaintiffs could wait until an expert they hire has finished documenting their claims for a 7.5 royalty from the "The Two Towers" film before presenting that information to New Line.

Trust attorneys maintain "The Two Towers" incorporates portions and scenes taken from other Tolkien books. The film company lawyers maintain they need to know how that claim is supported so they can prepare their defense.

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PostPosted: Mon Feb 09, 2009 11:40 am 
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Interesting. Is this the Ring of Barahir stuff?

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PostPosted: Mon Feb 09, 2009 2:03 pm 
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No, it's poor journalism. "Other Tolkien books" means "other LOTR books other than The Two Towers." Because of the way the Agreements are drafted, New Line contends that they only owe 2.5% royalties on The Two Towers, as compared to 7.5% for the other books. The plaintiffs say no that is not true, but even if it is true, parts of the other books were used in the TTT movie, so they should still be owed 7.5% for that film.

The cause of action that got thrown out in the demurrer was the plaintiffs effort to have the agreements "reformed" to clarify that they are owed 7.5% for TTT.

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PostPosted: Mon Feb 09, 2009 8:18 pm 
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I wonder what parts those would be? At a guess,

Anything with Arwen, who doesn't appear anywhere in the book TT.

Saruman's "A new power" etc, which came from FR (before he imprisoned Gandaf)

Wormtongue's "hutch to trammel a wild thing in" speech, which was lifted from Gandalf in RK.

The Osgiliath flashback in the EE, which to the extent it has any Tolkien in it is adapted from RK and a bit of FR.

Éowyn/Aragorn on his age etc, which is FR + appendices stuff.

If you want to get ticky-tack, the Nazgûl's Beasts, since they aren't actually seen except as a shadow until RK

Treebeard's EE lines lifted from Tom Bombadil

The opening reprise of the Bridge of Khazad-dûm

Gollum's doggerel (from the Barrow-wight)

Wargs (although Saruman's wolves and wolfriders are briefly mentioned in the book, "Wargs" isn't).

Haldir and the Elves of Lórien; also Galadriel and Elrond (who do not appear in TT).

-----------

Incidentally, Vor, I can't really sort out this different-royalty issue. Apparently it had something to do with a previous license to a Scandinavian TV channel, and that is how somehow Tolkien retained the rights to two books, but A&U to the other two, but it's really murky. Have you got a handle on it


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PostPosted: Mon Feb 09, 2009 9:49 pm 
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soli, honestly I eventually concluded that it wasn't worth my time to even try to get a handle on it. ;)

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