Mar 1, 2022 | Employment Law, Litigation and Court
Scarlett Johansson sues Walt Disney Co. for damages for intentional interference in her contract with Marvel Studios
Scarlett Johansson recently filed a law suit against Walt Disney Co. (Disney) alleging that the studio engaged in the tort of intentional interference by releasing Black Widow on Disney+ at the same time as it was released in theatres. She alleges that this interference caused Marvel Studios (Marvel), a subsidiary of Disney, to breach the terms of their contract with her. She is seeking both compensatory and punitive (also called exemplary) damages. This article will provide further insight into the elements of the tort of intentional interference in Australia and how it relates to Johansson’s claim.
Background for Johansson’s claim against Disney
Johansson alleges that Disney caused Marvel to breach the terms of her contract, by releasing Black Widow on Disney+ simultaneously with the theatrical release. Her compensation for the film was “based largely on ‘box office’ receipts”. This has been common practice within the industry for decades where stars are often paid an upfront fee along with receiving a portion of the back end profits which are dependent on box office success.
Johansson’s claim exposes the current shift within the film industry towards prioritising streaming services as a result of the COVID-19 pandemic, which will impact the future cinematic experience. COVID-19 has pushed film companies to adopt a hybrid release model, where movies are released in cinemas and on streaming platforms simultaneously. While Netflix offers larger up front deals to actors who forego cinematic releases, this claim highlights that many film companies have not shifted their payment practices in accordance with this new model. This claim will potentially set a precedent for other actors contracted under the same model. Disney has accused Johansson of “callous disregard for the horrific and prolonged global effects of the COVID-19 pandemic”, adding that there was “no merit whatsoever” to the claim.
Tort of intentional interference
Johansson alleges that Disney intentionally interfered with her contract with Marvel, thereby committing a civil wrong as they were subject to a duty not to do so. According to the influential case of Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1995] FCA 1368, this tort allows damages to be claimed against a defendant who induces or procures an entity to act or refrain from acting whilst being aware that doing so would result in the entity breaching their contractual obligations to the plaintiff.
The recent case of Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156 outlines the elements needed to establish this:
- There must be a contract between the plaintiff (Johansson) and a third party (Marvel).
- In this case, Johansson must establish that her contract with Marvel specifies that Black Widow would have an exclusive theatrical screening for a period of time. Johansson will likely argue that the agreement for a ‘wide theatrical release of the picture’ will be understood to expressly or impliedly promise this exclusive release. If this is proven, Disney would have intentionally disregarded this contract by simultaneously releasing the film on their streaming platform.
- The defendant (Disney) must know that such a contract exists.
- The defendant (Disney) must know that if the third party (Marvel) does, or fails to do, a particular act (provide an exclusive theatrical release) that conduct of the third party would be a breach of contract.
- The defendant (Disney) must intend to induce or procure the third party (Marvel) to breach the contract through that conduct (failing to provide an exclusive theatrical release).
- To establish this, the defendant (Disney) must have a “fairly good idea” that the contract benefits another person in the respect which they are intervening in. Reckless indifference or wilful blindness can amount to his knowledge.
- Knowledge of the contract can infer that there was “actual” or “subjective” intention within the state of mind of the defendant (Disney).
- The breach must cause loss or damage to the plaintiff (Johansson).
- Johansson will likely allege that Disney presumably released the film on Disney+ to increase the share price, at Johansson’s expense as it likely interfered with box office sales.
Johansson is seeking both compensatory and punitive damages
Compensatory damages aim to put the plaintiff (Johansson) into the position they would have been in, had the defendant (Disney) not committed the civil wrong. These damages are calculated according to the size of the plaintiff’s loss, which will be difficult to calculate in this matter given the effects of COVID-19 on the industry globally and the uncertainty of the specific revenue expected from an exclusive cinematic release.
Punitive damages are only available in the USA for tortious claims (not for breach of contract), and aim to punish the defendant (Disney) for egregious conduct, acting as a deterrent for future actions. Awards of punitive damages in the USA are often significantly larger than that of compensatory damages. However, punitive damages are rarely available in Australia, and only for very rare personal injury matters.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law in relation to your individual circumstances. If you need further advice or assistance with contractual or tortious matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Nov 23, 2021 | Litigation and Court
On the 23rd of July 2021, the Federal Court ordered Lorna Jane Pty Ltd to pay $5 million in fines for making false and misleading claims to consumers in relation to its “LJ Shield Activewear” line of products. The company admitted that in July of 2020, it falsely represented that the activewear “stopped the spread” and “protected wearers” against viruses including COVID-19. This article discusses the lesson learnt from this Federal Court proceeding and how the law surrounding misleading and deceptive conduct protects consumers.
What is Misleading or Deceptive Conduct?
Misleading or deceptive conduct is regulated under the Australian Consumer Law which provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive. ‘Trade or commerce’ is interpreted by its ordinary meaning and extends to anyone providing or acquiring goods and services. Therefore, it is important for business owners to be aware of their obligations. For conduct to be considered ‘misleading or deceptive’ there must be a real possibility that the alleged conduct will mislead a consumer into thinking that the false claim was, in fact, true. This may include:
- False advertising about a company’s or its competitors’ products;
- Small print and disclaimers hiding important information from consumers;
- Bait advertising and special offers which misrepresent products or prices;
- Pricing errors where products are advertised at incorrect prices; or
- Silence and withholding important information.
However, even if a consumer discovers the truth before the conclusion of a transaction, the company can still be found to have engaged in misleading and deceptive conduct as the consumer has been enticed into ‘the marketing web’. Misleading or deceptive conduct claims can be brought by individual claimants who have relied upon this conduct to their detriment, or by the Australian Competition & Consumer Commission (ACCC) as part of their regulatory function.
The Case of Lorna Jane
The marketing campaign for the Lorna Jane “Shield Activewear” included claims that the product incorporated ground-breaking technology that made the transferal of pathogens onto the fabric impossible, thereby eliminating viruses upon contact with the fabric. These misrepresentations were made both in store and on the company’s social media platforms. Representatives from the company admitted that there was no scientific basis for their claims. The Federal Court emphasised the severity of the company’s conduct, characterising it as ‘exploitative, predatory and potentially dangerous’. Along with the $5 million in penalties, the Court also ordered that Lorna Jane be restrained from making any ‘anti-virus’ claims about their products, must publish corrective notices across their media platforms and establish a consumer law compliance program.
How Etheringtons Solicitors can help
This case is a timely reminder that the ACCC will continue to prioritise consumer protections in the midst of the pandemic and hold companies accountable for their advertising practices. It is important for companies to be fully aware of their obligations particularly during this rapidly changing environment. If you would like more information on how we can assist you, do not hesitate to contact us on 9963 9800 or via our contact form.
Aug 4, 2020 | Litigation and Court
If you are involved in a dispute that is brought before a court, you will require a litigation lawyer to protect your legal rights and present your side of the argument to maximise your chances of achieving a favourable outcome. Some clients find being involved in litigation both financially and emotionally stressful, so it’s important to find the right person to guide you through the process.
According to litigation lawyer Howard Scher, experience and specialisation don’t always make for a successful litigation lawyer. With four decades of front line courtroom experience, Scher believes that the most effective trial lawyers share these five key traits:
- Credibility
Credibility is the foundation of trust and the cornerstone of effective representation. It is a trait that is earned over time. When a credible lawyer speaks, people listen. The appointments and promises they make are kept. Effective litigation lawyers know that every move they make can potentially build or destroy their credibility, so they protect it at all costs.
- Civility
Effective litigators understand that civility is a powerful tool in the art of persuasion. Litigation doesn’t have to be confrontational. Using hostile tactics that include volume, anger and intimidation undermine a lawyer’s long-term ability to persuade. It can draw attention away from key witnesses and facts, and in the case of settlements, it can harm a lawyer’s ability to negotiate in a reasonable manner with the opposition.
- Confidence in litigation
Litigation lawyers need to be able to think quickly on their feet without the benefit of an absolute certainty of the facts. This requires enormous levels of personal and professional confidence. The most effective litigators learn to translate mountains of structured and unstructured information into clear and decisive action, often in the heat of a trial. Confident lawyers radiate a sense of command that puts clients at ease and a positive energy that can help speed the course of trials and settlements.
- Curiosity
Possessing an insatiable curiosity beyond law for a variety of topics leads to innovative approaches and solutions, while also keeping the job of litigating fresh and exciting. Life experiences in science, art, physics, psychology and even pop culture can provide unlikely solutions to courtroom problems. It can also provide the ability to communicate with judges in a more grounded manner.
- Competitive Spirit
Effective litigators take on every matter, large or small, with a warrior’s spirit. They thrive on the thrill of the challenge, not just the outcome. They consider beating their opponents as secondary to the pursuit of finding an elegant trial solution. Litigators with this trait are at their best when a case seems unwinnable. But like a warrior, they are respectfully persuasive, without being overbearing.
Etheringtons is committed to providing effective trial advice, so if you or someone you know would like more information, or requires litigation advice contact us today.
Jul 1, 2020 | Family Law, Litigation and Court
What is a Subpoena
A subpoena is a legal document issued by the Court, at the request of a party involved in court proceedings which involves requiring the subpoenaed party to either produce documents or give evidence at a hearing.
Subpoenas in the Family Court
In family law matters, proceedings can be held either in the Federal Circuit Court of Australia or the Family Court of Australia. During these proceedings, it may be necessary for a party to issue a subpoena for relevant information to be provided in Court. Ordinarily, it may be necessary to issue more than one subpoena in Court proceedings.
Subpoenas are generally issued when one party fails to provide all of the necessary documents to the court. Subpoenas are often issued to banks or superannuation funds for purposes of seeking production of financial material related to the other party. In parenting matters, an Independent Children’s Lawyer, a lawyer who acts for the children in parenting matters, will often issue subpoenas. This may be to the children’s schools and doctor if health issues have been raised. They may also issue a subpoena to either parent’s doctor, if necessary.
Filing for a Subpoena
In some proceedings, you must seek the court’s approval before issuing a subpoena. This is especially relevant when there are court orders in place or there are less than seven days before a hearing commences. In the Federal Circuit Court, there is a capping of no more than five subpoenas to be issued by each party, unless permission is granted by the Court. There is no restrictions imposed in the Family Court for subpoenas.
If you gain the court’s approval, the filing of the subpoena can proceed as normal. The original subpoena must be filed at the Federal Circuit Court or Family Court registry (depending which jurisdiction the matter is in). You must also file enough copies for one to be served on each party in the proceeding as well as the person or organisation being asked to produce material.
Importantly, the court can refuse the issuance of a subpoena if it finds that the subpoena amounts to a ‘fishing expedition’. That is, the deliberate attempt by one party to search or investigate with the hope of discovering information on the other party. Therefore it is important that when issuing subpoenas in family law, one must ensure that they are seeking information or documentation relevant to the current court proceedings.
Filing fee
A subpoena will incur a filing fee of $55.00 per subpoena.
Serving a Subpoena
Once the subpoena has been filed, it must be personally delivered (served by hand) to the person it is addressed to.
If you are serving a subpoena to a bank or financial institution, a small amount of money must be provided to the subpoenaed party. This is known as ‘conduct money’ for the production of documents. Some banks will charge a set amount, so it is important to find out what the production of documents may cost where possible. You also need to provide a copy of the court’s brochure with the subpoena.
Objecting to a Subpoena
A party is entitled to raise an objection to the issuance of a subpoena. A number of objections which can be raised involve:
- The documents requested are irrelevant
- The documents are privileged
- The terms of the subpoena are vague or non-specific
- Insufficient time given to comply with the subpoena
- Subpoena issued without a ‘legitimate forensic purpose’
- Insufficient conduct money
In order to do so, you have to file a Notice of Objection and the matter will subsequently be listed before the court for determination.
Contact us
If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.
