Neville L. Johnson, State Bar No. 66329
njohnson(@yjliplaw.com
Douglas L. Johnson, State Bar No. 209216
djohnson(@ijiliplaw.com
Jordana G. Thigpen, State Bar No. 2
Jthigpen(@jjliplaw.com
JOHNSON & JOHNSON LLP
439 North Canon Drive, Suite 200
Beverly Hills, California 90210
Tel: 310-975-1080
Fax: 310-975-1095
32642
Paul R. Kiesel, State Bar No. 119854
Kiesel(@kiesel law
Jeffrey A. Koncius, State Bar No. 189803
koneius@hkiesel law
KIESEL LAW LLP
8648 Wilshire Boulevard
Beverly Hills, California 90211-2910
‘ORMED
CORIGINAL
superior Court
copy
LED
altornis
DEC 06 2018
her Carter, Executive OticerCerk of out!
By: Steven Drew, Deputy
Clifford H. Pearson, State Bar No. 108523
cpearsonG@ipswlarw.com
Daniel L. Warshaw, State Bar No. 185365
dwarshaw@pswlaw.com
Bobby Pouya, State Bar No. 245527
bpouya@pswlaw.com
PEARSON, SIMON & WARSHAW LLP
Tel: 310-854-4444 15165 Ventura Boulevard, Suite 400
Fax: 310-854-0812 Sherman Oaks, California 91403
Tel: 818-788-8300
Fax: 818-788-8104
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
NEVERSINK PRODUCTIONS: CASE NO. 8
CORPORATION, | 18STCVO7 487
CLASS ACTION
ae COMPLAINT FOR:
ve 1. BREACH OF CONTRACT;
2. BREACH OF IMPLIED COVENANT;
WALT DISNEY PICTURES, a California | 3. MONEY HAD AND RECEIVED;
corporation, and DOES 1-100, 4. DECLARATORY JUDGMENT;
5. OPEN BOOK ACCOUNT; and
6. VIOLATION OF CAL. BUS. & PROF.
Defendants. |
Hi
CODE §17200 ET SEQ.
a JURY TRIAL DEMANDED
CLASS ACTION COMPLAINTae
Plaintiff Neversink Productions (“Plaintiff”), on behalf of itself and all others similarly
situated, alleges upon personal knowledge as to itself and its own acts, and upon information and
belief as to all other matters, based upon, inter alia, the investigation made by and through its
attorneys, as follows:
NATURE OF THE ACTION
1. Defendant Walt Disney Pictures (“DISNEY”) is contractually required to pay @
portion of the revenue it receives from the exploitation of motion pictures that are distributed
through the home video market to persons and/or entities described as “profit participants.” The
standard motion pictures contract entered into between DISNEY or its predecessors-in-interest
and the Class members requires the calculation of income to be based on all of the revenue
received by DISNEY. Contrary to the unambiguous terms of the standard contract, DISNEY
engages in a common and systematic practice of accounting for less revenue than it actually
receives, by including only 20% of home video revenue received, when calculating the amount
payable to the profit participants. The terms of the contracts between DISNEY and its
predecessors-in interest, and profit participants, contains the same, if not identical, language
regarding the method of accounting for revenues and paying the profit participants their
contingent share of the eamings generated from the exploitation of the motion pictures in the
home video market. Moreover, there is nothing in any of the class member contracts that permits
DISNEY to calculate home video revenue based on an amount less than all such revenue
received.
2. Plaintiff brings this nationwide class action against Defendant DISNEY —a
business entity headquartered in Los Angeles County, California, that undertakes significant
business activity in this State and Judicial District—for DISNEY’s failure to properly account to
Plaintiff and Class members for all revenue and income derived from the home video distribution
of motion pictures, which includes, but is not limited to, VHS, DVD, laser dise, Video-On-
Demand, digital download, streaming, and all other methods of distribution of motion pictures
that is categorized by DISNEY as “home video” for purposes of reporting to profit participants
| (collectively, “Home Video”).
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CLASS ACTION COMPLAINT10
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3. Plaintiff seeks monetary damages, injunctive, and/or declaratory relief against
DISNEY for its willful violation of contracts between itself and profit participants through which
DISNEY or its predecessors-in-interest obtained the services of individuals and entities in
exchange for profit participation payments to these individuals and entities (Hereinafter,
“Contingent Compensation Agreements”). DISNEY has unilaterally breached these contracts by
deciding to pay profit participants a fraction of the actual amount owed to them as required by the
Contingent Compensation Agreements in connection with the distribution of motion pictures on
Home Video.
4. Whether directly or indirectly through its subsidiary or affiliate, DISNEY receives
100% of the revenue derived from Home Video distribution. Rather than include 100% of the
moneys eamed from Home Video distribution when accounting to profit participants, DISNEY
only includes 20% of the earings and wrongfully retains the balance. The wrongful conduct
described herein was committed in and emanated from California,
5. This action seeks the payment to profit participants of their rightful earnings as
well as other related relief.
6. Plaintiff seeks damages on behalf of itself and all others similarly situated, as well
as an accounting and judgment declaring the proper method of calculating payments of income
derived from Home Video distribution. Further, Plaintifi requests that this Court order DISNEY
to adhere to the proper methodology for calculating such income in the future. Plaintiff brings
claims for breach of contract, breach of the implied covenant of good faith and fair dealing,
money had and received, declaratory relief, and statutory violations of California law.
IL PARTIES
Plaintiff
7. Plaintiff Neversink Productions Corporation, at all relevant times, is a California
corporation that transacts business within the County of Los Angeles, California. Plaintiff is the
Joan-out company for the services of writer Michael Elias. Plaintiff is a profit participant on the
‘motion picture “Young Doctors in Love” pursuant to a Writer’s Deal Contract dated October 7,
1980 (“Young Doctors Agreement”), A true and correct copy of the Young Doctors Agreement
- 3 —
CLASS ACTION COMPLAINT