2019 05 09 Estate Reply To HBO Motion To Remand

Case 2:19-cv-01862-GW-PJW Document 24 Filed 05/09/19 Page 1 of 7 Page ID #:476
1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

Howard Weitzman (SBN 38723)
2 hweitzman@kwikalaw.com
Jonathan P. Steinsapir (SBN 226281)
3 jsteinsapir@kwikalaw.com
Zachary T. Elsea (SBN 279252)
4 zelsea@kwikalaw.com
808 Wilshire Boulevard, 3rd Floor
5 Santa Monica, California 90401
Telephone: 310.566.9800
6 Facsimile: 310.566.9850
7 FREEDMAN + TAITELMAN LLP
Bryan J. Freedman (SBN 151990)
8 bfreedman@ftllp.com
1901 Avenue of the Stars, Suite 500
KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP
9 Los Angeles, California 90067

Telephone: 310.201.0005
10 Facsimile: 310.201.0045
TEL 310.566.9800 • FAX 310.566.9850
11 Attorneys for Optimum Productions and

808 WILSHIRE BOULEVARD, 3RD FLOOR
SANTA MONICA, CALIFORNIA 90401
for John Branca and John McClain as

12 Executors of the Estate of Michael J.
Jackson
13
14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16 WESTERN DIVISION
17 OPTIMUM PRODUCTIONS, a Case No. 2:19-cv-01862 GW (PJWx)
California corporation; and JOHN
18 BRANCA and JOHN MCCLAIN, in Hon. George H. Wu
the respective capacities as CO-
19 EXECUTORS OF THE ESTATE OF PLAINTIFFS’ REPLY IN SUPPORT
MICHAEL J. JACKSON, OF MOTION TO REMAND TO
20 THE LOS ANGELES SUPERIOR
Plaintiffs, COURT
21
vs.
22 Date: May 23, 2019
HOME BOX OFFICE, a Division of Time: 8:30 a.m.
23 TIME WARNER ENTERTAINMENT, Ctrm: 9D
L.P., a Delaware Limited Partnership,
24 and HOME BOX OFFICE, INC., a
Delaware corporation, and DOES 1
25 through 5, business entities unknown,
and DOES 6 through 10, individuals
26 unknown,
27 Defendant.
28
REPLY IN SUPPORT OF MOTION TO REMAND

1 I. INTRODUCTION
2 HBO admits that the Agreement requires that if “the parties cannot mutually
3 agree on a retired judge [of the Los Angeles Superior Court] to serve as an
4 arbitrator; and … the two retired [Los Angeles Superior Court] judges selected by
5 the parties cannot select a third [Los Angeles Superior Court] judge within 30 days
6 of their appointment,” the Los Angeles Superior Court is the only court that can
7 appoint the sole arbitrator. (Opp. (Dkt. 21) at 6:10-15.) As this Court can see from
8 HBO’s meritless opposition to the motion to compel arbitration 1, HBO is delaying
9 resolution of this litigation for as long as possible. HBO’s conduct makes it a virtual
10 certainty that court intervention will be necessary to appoint an arbitrator, i.e., to
TEL 310.566.9800 • FAX 310.566.9850
11 complete the process of compelling an arbitration. The only court that can do that
12 under the Agreement is the Los Angeles Superior Court.

13 HBO’s position is that the Agreement envisions proceedings to start the
14 process of choosing an arbitrator in one court, but then requires proceedings to
15 appoint an arbitrator to take place in another, i.e., the Los Angeles Superior Court.
16 That is an illogical reading of the Agreement. An arbitrator is a necessary
17 component of any arbitration. You cannot arbitrate without an arbitrator. Thus,
18 pursuant to the Agreement, the only court that can truly and fully compel HBO to
19 arbitrate is the Los Angeles Superior Court. The parties could not have intended that
20 if one party refused to arbitrate altogether, any court could compel the parties to
21
22 1
As explained in the concurrently-filed reply brief on Plaintiffs’ motion to
compel arbitration, HBO’s opposition to arbitration violates fundamental principles
23 of arbitrability. HBO’s argument that the Court should decide the “validity” of the
Agreement on the motion to compel arbitration runs headlong into decades of
24 jurisprudence on arbitrability from the Supreme Court. The issue of the continuing
validity of the Agreement is for the arbitrator, not a state or federal court. As
25 explained by the Supreme Court, “as a matter of substantive federal arbitration law,
an arbitration provision is severable from the remainder of the contract. Second,
26 unless the challenge is to the arbitration clause itself, the issue of the contract’s
validity is considered by the arbitrator in the first instance.” Buckeye Check
27 Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006).
28
1
1 begin the process of choosing an arbitrator, but only one specific court could finalize
2 that process. Reading the arbitration clause as a whole, it is clear that the parties
3 intended that the Los Angeles Superior Court would be the court to handle
4 proceedings to compel an arbitration. No rational party would agree to the process
5 that HBO advocates for, i.e., this Court compelling HBO to begin the process of
6 choosing an arbitrator, but then requiring the parties to go to a different court to
7 complete the process. The public policy in favor of conserving the resources of our
8 already overly-burdened state and federal courts certainly does not support HBO’s
9 reading of the Agreement.

10 For all the reasons set out herein and in Plaintiffs’ opening brief, Plaintiffs
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11 respectfully request that this Court remand this matter to the Los Angeles Superior
12 Court so that it can oversee the entire process of compelling an arbitration.

13 II. ARGUMENT
14 It is true that there is diversity jurisdiction of this action, but the question
15 raised by this motion is not subject matter jurisdiction but one of procedure, i.e.,
16 whether the Court should enforce the Agreement’s forum selection clause. As
17 explained by the Ninth Circuit, a federal “court is not required in every circumstance
18 to exercise the jurisdiction it may possess,” and may “refuse to hear a case on the
19 ground that it was not brought in the forum selected by the parties.” Pelleport Inv'rs,
20 Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 280 (9th Cir. 1984). Thus, the
21 question here is “whether the court should exercise its jurisdiction to do more than
22 specifically enforce the forum clause, which gives effect to the expectations of the
23 parties, as manifested in their agreement.” Ibid.
24 Where a contract includes a clause requiring that disputes be litigated in state
25 court, “[t]he enforcement of a forum selection clause is a proper basis for remanding
26 a removed case to state court.” Comerica Bank v. Whitehall Specialties, Inc., 352 F.
27 Supp. 2d 1077, 1080 (C.D. Cal. 2004). “When interpreting a contractual forum
28 selection clause, courts rely primarily on basic rules of contract interpretation: the
2
1 common or normal meaning of the contract language controls absent evidence that
2 the parties intended to give words a special meaning … and the court must try to
3 effectuate the parties’ intent.” Calisher & Assocs., Inc. v. RGCMC, LLC, 2008 WL
4 4949041, at *3 (C.D. Cal. Nov. 17, 2008). Because the Agreement includes a valid
5 and enforceable forum selection clause 2 indicating the contracting parties’ clear
6 intent that the Los Angeles Superior Court decide matters pertaining to the parties
7 mandatory arbitration agreement, this Court should remand this case to that court.
8 A. The Plain Reading and Intent of the Parties Gives the Los Angeles
9 Superior Court Exclusive Jurisdiction Over Proceedings to Compel

10 Arbitration
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11 A plain reading of the Agreement shows that: (1) the parties intended that any
12 disputes in any way related to the Agreement be resolved in arbitration rather than in
13 court, and (2) to the extent judicial intervention is required to enforce the arbitration
14 clause, the exclusive forum for doing so is the Los Angeles Superior Court:
15 (iv) Any dispute arising out of, in connection with or relating to this
Agreement shall be submitted for binding and final arbitration
16 before a retired judge of the Superior Court of the State of
California for the County of Los Angeles who shall be mutually
17 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
18 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
19 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
20 two party-appointed judges are unable to select a third judge within 30
days after their appointment, the sole retired judge in connection
21 with such dispute shall be selected by the Superior Court of the
State of California for the County of Los Angeles. The retired judge
22 so selected shall conduct the Arbitration in conformity with the rules
of, and as if it were conducted by, the American Arbitration
23 Association.
24
2
Forum selection clauses “are prima facie valid and should be enforced
25 unless enforcement is shown by the resisting party to be ‘unreasonable’ under the
circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972). HBO
26 does not argue that enforcement of the forum selection clause would be
unreasonable or otherwise unenforceable on policy grounds, instead arguing only
27 that no such clause exists or that the clause is only permissive.
28
3
1
2 (Steinsapir Decl., Ex. B, pp. 9-10 (¶ iv)) (emphasis added). HBO argues that the
3 forum selection clause within the Agreement’s arbitration provisions does not
4 include the necessary language to render it mandatory, namely words such as
5 “exclusive,” “forum,” and “venue.” (Dkt. 21 at 6.) But, “there are no magic words
6 that render a forum selection clause mandatory and exclusive.” A.O. Smith Corp. v.
7 Transpac Container Sys. Ltd., 2009 WL 3001503, at *3 (C.D. Cal. May 8, 2009)
8 (finding forum selection clause mandatory and exclusive, despite lack of the words
9 “venue” or “forum,” because of use of the term “shall” and the prohibition of
10 resolution of disputes in other courts, except upon parties’ agreement). 3 Even where
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11 forum selection clauses are ambiguous, “that ambiguity would not militate against
12 remand,” and, because HBO has “not shown that the clause is unambiguously
13 permissive, the presumption in favor of enforcing forum selection clauses would
14 counsel in favor of remand to state court.” Robeson v. Twin Rivers Unified Sch.
15 Dist., 2014 WL 1392922, at *3 (E.D. Cal. Apr. 9, 2014), citing Doe 1 v. AOL LLC,
16 552 F.3d 1077, 1083 (9th Cir. 2009).
17 Here the Agreement provides that if the parties cannot agree on which retired
18 judge of the Los Angeles Superior Court would preside over the arbitration—a very
19 distinct possibility given HBO’s refusal to even respond to the Plaintiffs’ demands to
20 arbitrate—then the arbitrator “shall be selected by the Superior Court of the State
21 of California for the County of Los Angeles.” (Dkt. 1-1, p. 45-46; Steinsapir Decl.,
22
3
HBO’s Opposition cites several cases involving permissive forum selection
23 clauses, none of which have a clause similar to that in the Agreement. See, e.g. Hunt
Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75 (9th Cir. 1987) (“shall have
24 jurisdiction”); Daewoo Motor Am., Inc. v. Dongbu Fire Ins. Co., 289 F. Supp. 2d
1127 (C.D. Cal. 2001) ( “subject to English law and practice but Korean
25 jurisdiction,” and the court finding first that improper venue argument had already
been waived); N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co.,
26 69 F.3d 1034 (9th Cir. 1995) ( “shall be enforceable by”); Gennock v. Lucas Energy,
Inc., 2011 WL 4738320 (E.D. Cal. Oct. 5, 2011) (“submits to the jurisdiction of the
27 state of and federal courts sitting in the State of Nevada”).
28
4
1 Ex. B pp. 9-10 ¶ iv.). The Agreement could not be more clear that the only Court
2 with the authority to ultimately compel an arbitration is “the Superior Court of the
3 State of California for the County of Los Angeles.” In particular, an arbitrator is a
4 necessary ingredient of any arbitration. Stated otherwise, there can be no arbitration
5 without an arbitrator. So, if an arbitration is to be compelled, an arbitrator will need
6 to be appointed. And the parties unambiguously provided that the Los Angeles
7 Superior Court would be the court to implement the appointment. The idea of a
8 singular, definitive court with jurisdiction over this necessary aspect of the parties’
9 mandatory arbitration procedures implicitly excludes the possibility of other courts

10 having jurisdiction as well. See S. Cty. Prof'l Park, Ltd v. Orchard Supply Co. LLC,
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11 2014 WL 3706825, at *2 n.24 (N.D. Cal. July 21, 2014) (holding that “the phrase
12 ‘shall be brought’ indicates that the case must be heard–not merely filed–in state
13 court.”)
14 Reading the forum selection clause as exclusive is the only way to give full
15 effect to its language. The contract is simply not susceptible to an interpretation that
16 the arbitrator can be appointed by other courts. It clearly provides that the arbitrator,
17 a retired judge, “shall be selected by the Superior Court of the State of California for
18 the County of Los Angeles.” (Steinsapir Decl., Ex. B, pp. 9-10 (¶ iv).)
19 B. HBO’s Reading of the Agreement Leads to an Absurd Result
20 “The language of the contract is to be read as a whole and given a reasonable
21 interpretation, not an interpretation that would produce absurd results.” U.S. v.
22 Irvine, 756 F.2d 708, 710–11 (9th Cir.1985). Not remanding this case would be an
23 absurd result, and would only delay the all but certain outcome that HBO itself
24 admits is required by the Agreement: that the Los Angeles Superior Court selects the
25 arbitrator (if the parties cannot agree to one, which is a virtual inevitability).
26 It would make no sense that the parties intended that a federal court would
27 handle the proceedings to begin the process of compelling the mandatory arbitration
28 envisioned by the Agreement, but then hand the case back to the Los Angeles
5
1 Superior Court to complete the process if and when the parties cannot agree on an
2 arbitrator. Denial of remand would allow for the following wasteful scenario to play
3 out: this Court compels the parties to “arbitrate” pursuant to the Agreement; the
4 parties cannot mutually agree on a retired judge of the Los Angeles Superior to serve
5 as an arbitrator; the two retired judges selected by the parties cannot select a third
6 judge within 30 days; and Plaintiffs then file a separate civil action in the Los
7 Angeles Superior Court to have the arbitrator appointed. This wasteful and absurd
8 result could not have been intended and can be avoided. This case should be
9 remanded to the Superior Court.

10 III. CONCLUSION
TEL 310.566.9800 • FAX 310.566.9850
11 Based on the foregoing, Plaintiffs respectfully request that this Court remand
12 this action to the Los Angeles Superior Court.

13 DATED: May 9, 2019 Respectfully submitted,
14
KINSELLA WEITZMAN ISER
15 KUMP & ALDISERT LLP
16
17
By: /s/Jonathan P. Steinsapir
18
Jonathan P. Steinsapir
19 Attorneys for Defendants Optimum
Productions and John Branca and John
20
McClain in the respective capacities as
21 Co-Executors of the Estate of Michael
22 Jackson
10386.00348/641297
23
24
25
26
27
28
6
1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

Howard Weitzman (SBN 38723)
2 hweitzman@kwikalaw.com
Jonathan P. Steinsapir (SBN 226281)
3 jsteinsapir@kwikalaw.com
Zachary T. Elsea (SBN 279252)
4 zelsea@kwikalaw.com
808 Wilshire Boulevard, 3rd Floor
5 Santa Monica, California 90401
Telephone: 310.566.9800
6 Facsimile: 310.566.9850
7 FREEDMAN + TAITELMAN LLP
Bryan J. Freedman (SBN 151990)
8 bfreedman@ftllp.com
1901 Avenue of the Stars, Suite 500
LLP
9 Los Angeles, California 90067

Telephone: 310.201.0005
KINSELLA WEITZMAN ISER KUMP & ALDISERT
10 Facsimile: 310.201.0045
TEL 310.566.9800 • FAX 310.566.9850


12 Executors of the Estate of Michael J.
Jackson
13
14 UNITED STATES DISTRICT COURT
15 CENTRAL DISTRICT OF CALIFORNIA
16 WESTERN DIVISION
17 OPTIMUM PRODUCTIONS, a Case No. 2:19-cv-01862 GW(PJWx)
California corporation; and JOHN
18 BRANCA and JOHN MCCLAIN, in Hon. George H. Wu
the respective capacities as CO-
19 EXECUTORS OF THE ESTATE OF PLAINTIFFS’ REPLY IN SUPPORT
MICHAEL J. JACKSON, OF MOTION TO COMPEL
20 ARBITRATION; AND
Plaintiffs, SUPPLEMENTAL DECLARATION
21 OF JONATHAN P. STEINSAPIR
vs.
22
HOME BOX OFFICE, a Division of Date: May 23, 2019
23 TIME WARNER ENTERTAINMENT, Time: 8:30 a.m.
L.P., a Delaware Limited Partnership, Ctrm: 9D
24 and HOME BOX OFFICE, INC., a
Delaware corporation, and DOES 1
25 through 5, business entities unknown,
and DOES 6 through 10, individuals
26 unknown,
27 Defendant.
28
PLAINTIFFS' REPLY BRIEF IN SUPPORT OF MOTION TO COMPEL ARBITRATION

1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ............................................................................................. 1
4 II. ARGUMENT .................................................................................................... 3
5 A. Arbitrability is for the Arbitrator ............................................................ 3
6 B. The Law is Crystal Clear that the Continuing Validity of the
Contract as a Whole is for the Arbitrator and not a Court ...................... 6
7
C. The Arbitration Clause Is Valid And Enforceable Regardless of
8 HBO’s Argument that the Agreement Has “Expired.” ......................... 10
LLP
9 D. The Jackson Estate’s Claims Arise Out of the Agreement ................... 13
10 E. HBO’s Substantive Arguments Are Irrelevant ..................................... 15

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11 III. CONCLUSION ............................................................................................... 17

12
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14
15
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23
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25
26
27
28
i
1 TABLE OF AUTHORITIES
2 Page
3
FEDERAL CASES
4
BNSF Ry. Co. v. Alstom Transportation, Inc.
5 2010 WL 11619686 (N.D. Tex. 2010) .......................................................... 4, 5
6 Brachfeld v. Hopkins
2017 WL 10436075 (C.D. Cal. Dec. 11, 2017) .............................................. 12
7
Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners,
8 Inc.
203 F.R.D. 677 (S.D. Fla. 2001) ....................................................................... 4
LLP
9
Brennan v. Opus Bank
10 796 F.3d 1125 (9th Cir. 2015) ................................................................... 3, 4, 5

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11 Bridge Fund Capital Corp. v. Fastbucks Franchise Corp.

622 F.3d 996 (9th Cir. 2010) ............................................................................. 7

12
Buckeye Check Cashing, Inc. v. Cardegna
13 546 U.S. 440 (2006) ................................................................................ passim
14 Cong. Const. Co. v. Geer Woods, Inc.
2005 WL 3657933 (D. Conn. Dec. 29, 2005) ................................................... 5
15
E.E.O.C. v. Waffle House, Inc.
16 534 U.S. 279 (2002) ........................................................................................ 13
17 Grynberg v. BP P.L.C.
585 F. Supp. 2d 50 (D.D.C. 2008) .................................................................... 4
18
Henry Schein, Inc. v. Archer & White Sales, Inc.
19 139 S. Ct. 524 (2019) .......................................................................... 1, 8, 9, 10
20 Hodge v. Top Rock Holdings, Inc.
2011 WL 1527010 (E.D. Mo. 2011) ............................................................. 4, 5
21
Homestead Lead Co. of Missouri v. Doe Run Resources Corp.
22 282 F. Supp. 2d 1131 (N.D. Cal. 2003) .......................................................... 12
23 JSC Surgutneftegaz v. President & Fellows of Harvard College
167 Fed. Appx. 266 (2d Cir. 2006) ............................................................... 3, 4
24
Just Film, Inc. v. Merch. Servs., Inc.
25 2011 WL 2433044 (N.D. Cal. June 13, 2011) ................................................ 12
26 Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. N.L.R.B.
501 U.S. 190 (1991) ........................................................................................ 11
27
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.
28 460 U.S. 1 (1983) ............................................................................................ 14
ii
1 Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers Union,
AFL-CIO 430 U.S. 243 (1977) ........................................................ 2, 11, 12, 13
2
Pikes Peak Nephrology Assocs., P.C. v. Total Renal Care, Inc.
3 2010 WL 1348326 (D. Colo. 2010) .................................................................. 4
4 Prima Paint Corp. v. Flood & Conklin Mfg. Co.
388 U.S. 395 (1967) .................................................................................. 7, 8, 9
5
Sanford v. MemberWorks, Inc.
6 483 F.3d 956 (9th Cir. 2007) ............................................................................. 8
7 Simula, Inc. v. Autoliv, Inc.
175 F.3d 716 (9th Cir. 1999) ..................................................................... 14, 15
8
Sleepy’s LLC v. Escalate, Inc.
LLP
9 2010 WL 2505678 (S.D.N.Y. 2010) ................................................................. 4

10 Southland Corp. v. Keating

465 U.S. 1 (1984) .............................................................................................. 7
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11
Three Valleys Mun. Water Dist. v. E.F. Hutton & Co.

12 925 F.2d 1136 (9th Cir.1991) ............................................................................ 8
13 Wamar Int’l, LLC v. Thales Avionics, Inc.
No., 2019 WL 1877615 (C.D. Cal. Mar. 20, 2019) ........................................ 11
14
Yahoo! Inc. v. Iversen
15 836 F. Supp. 2d 1007 (N.D. Cal. 2011) ............................................................ 5
16
17 STATE CASES
18 Gilbert St. Developers, LLC v. La Quinta Homes, LLC
174 Cal. App. 4th 1185 (2004) .......................................................................... 5
19
Selman v. FCB Worldwide, Inc.
20 No. B168315, 2004 WL 2729656 (Cal. Ct. App. Dec. 1, 2004)..................... 10
21
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25
26
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iii
1 I. INTRODUCTION
2 Most of HBO’s arguments in opposition to the motion to compel arbitration
3 are a hodgepodge of vague, under-developed, and ultimately baseless arguments
4 attacking the underlying merits of the Jackson Estate’s damages claims.1 Those
5 arguments are for another day in another forum (i.e., arbitration). As the Supreme
6 Court has repeatedly explained, the Federal Arbitration Act (“FAA”) does not allow
7 a court to review the claims to be arbitrated in order to assure itself that they have
8 merit: “We have held that a court may not rule on the potential merits of the
LLP
9 underlying claim that is assigned by contract to an arbitrator, even if it appears to the

10 court to be frivolous. A court has no business weighing the merits of the grievance
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11 because the agreement is to submit all grievances to arbitration, not merely those
12 which the court will deem meritorious.” Henry Schein, Inc. v. Archer & White Sales,
13 Inc., 139 S. Ct. 524, 529 (2019) (internal citation omitted and punctuation cleaned
14 up). Rather, on a motion to compel arbitration a federal court’s “role is strictly
15 limited to determining arbitrability and enforcing agreements to arbitrate, leaving
16 the merits of the claim and any defenses to the arbitrator.” Chiron Corp. v. Ortho
17 Diagnostic Sys., Inc., 207 F.3d 1126, 1131 (9th Cir. 2000).
18 As to HBO’s arguments addressed to arbitrability, they been repeatedly
19 rejected by the Supreme Court. First, it challenges the continuing validity of the
20 Agreement itself, arguing that a Court must first find the Agreement to be “valid”
21 before compelling arbitration. (Opp. at 10.) HBO is dead wrong: “as a matter of
22 substantive federal arbitration law, an arbitration provision is severable from the
23 remainder of the contract,” and “unless the challenge is to the arbitration clause
24
1
25 We use the same naming convention as in the opening brief: “HBO” refers
to Respondent/Defendant Home Box Office, Inc.; “the Jackson Estate” refers
26 collectively to Petitioners/Plaintiffs Optimum Productions and the Co-Executors of
27 the Estate of Michael J. Jackson; and “the Agreement” refers to the 1992 agreement
at issue, Steinsapir Decl., Ex. B (Dkt. 18, pp. 25-40).
28
1
1 itself, the issue of the contract’s validity is considered by the arbitrator in the first
2 instance.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-46 (2006)
3 (emphasis added). Nowhere does HBO challenge the validity of “the arbitration
4 clause itself.” Its attacks on the validity of the Agreement are thus irrelevant. They
5 are for “the arbitrator in the first instance.” Ibid.
6 Second, HBO contends that the Agreement is expired because all obligations
7 have been performed. (Opp. at 11:2-24.) That argument is a classic tautology: it
8 assumes the very conclusion that HBO wants an adjudicator to reach in this dispute,
LLP
9 i.e., that there are no remaining obligations under the Agreement. The Jackson
10 Estate obviously disagrees, and contends that substantive obligations, like

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11 confidentiality and non-disparagement, continue to apply. Whether those substantive

12 obligations survive, of course, is a classic question of contract interpretation for the

13 arbitrator’s resolution. Henry Schein, 139 S. Ct. at 529. But even setting that aside,
14 HBO’s arguments regarding the effect of a supposed “expiration” of the Agreement
15 are also wrong. It argues that arbitration clauses necessarily expire when an
16 agreement itself expires, unless there is an express statement to the contrary. (Opp.
17 at 12:16-18.) That argument is frivolous. The only “authority” for it is a single
18 unpublished case from the California Court of Appeal that HBO severely misreads.
19 In fact, the law is precisely the opposite of what HBO says it is. “[W]here the
20 dispute is over a provision of [an] expired agreement, the presumptions favoring
21 arbitrability must be negated expressly or by clear implication.” Nolde Bros. v.
22 Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 252 (1977).
23 Thus, “the parties’ obligations under their arbitration clause survive[ ] contract
24 termination when the dispute [is] over an obligation arguably created by the expired
25 agreement.” Ibid. The dispute here is “over an obligation arguably created by the
26 [supposedly] expired agreement.” Ibid. The arbitration clause therefore “survives.”
27 Third, and in any event, the Agreement here incorporates the Rules of the
28 American Arbitration Association (“AAA”), which provide that arbitrability itself is
2
1 a question to be determined by the arbitrator. “[I]ncorporation of the AAA rules

2 constitutes clear and unmistakable evidence that contracting parties agreed to
3 arbitrate arbitrability.” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015).
4 Although the AAA Rules at the time the contract was entered into in 1992 did not so
5 provide, Rule 1 of the 1992 Rules (like almost all AAA rule sets) provided that the
6 “rules and any amendment of them shall apply in the form obtaining at the time the
7 demand for arbitration” is made. (Bach Decl. (Dkt. 22-2), Ex. A, p. 8, 1992 AAA
8 Rule 1.) It appears that the overwhelming majority of federal courts to address the
LLP
9 issue have therefore held that subsequent amendments to the AAA Rules providing
10 that arbitrability is for the arbitrator do apply in circumstances like those here:
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11 where the demand for arbitration is made after adoption of those amendments. See,
12 e.g., JSC Surgutneftegaz v. President & Fellows of Harvard College, 167 Fed.
13 Appx. 266, 268 (2d Cir. 2006) (arbitrability is for the arbitrator: that 1996 version of
14 AAA Rules did not so provide is irrelevant, because Rule 1 made later amendments
15 applicable to arbitration demanded roughly 10 years later). See also the numerous
16 cases cited below at § II.A, pp. 4-5.
17 In sum, the Jackson Estate respectfully requests that this Court decline HBO’s
18 invitation to ignore binding Supreme Court precedent. Instead, the Court should
19 grant the motion to compel arbitration (in the event the motion to remand is denied).
20 II. ARGUMENT
21 A. Arbitrability is for the Arbitrator
22 As explained below, there is no question that the dispute here is arbitrable,
23 regardless of whether that decision is made by a court or an arbitrator. That said, the
24 Court need not even reach the issue. As explained in the Jackson Estate’s moving
25 papers, the question of arbitrability here is for the arbitrator. The Agreement
26 incorporates the AAA Rules. (Steinsapir Decl., Ex. B, Dkt. 18 at 34.) Those rules
27 unambiguously provide that “[t]he arbitrator shall have the power to rule on his or
28 her own jurisdiction, including any objections with respect to the existence, scope,
3
1 or validity of the arbitration agreement or to the arbitrability of any claim or

2 counterclaim.” AAA R-7 (“Jurisdiction”) (available at page 13 of
3 https://www.adr.org/sites/default/files/Commercial%20Rules.pdf). The Ninth
4 Circuit holds that “incorporation of the AAA rules constitutes clear and
5 unmistakable evidence that contracting parties agreed to arbitrate arbitrability.”
6 Brennan, 796 F.3d at 1130.
7 HBO correctly notes that the AAA Rules at the time the contract was entered
8 into in 1992 did not so provide. However, Rule 1 of the 1992 Rules (like almost all
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9 AAA rule sets) provided that the “rules and any amendment of them shall apply in
10 the form obtaining at the time the demand for arbitration” is made. (Bach Decl.
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11 (Dkt. 22-2), Ex. A, p. 8, 1992 AAA Rule 1.)

12 According to our research, the overwhelming majority of federal courts to

13 address the issue have therefore held that the subsequent amendments to the AAA
14 Rules providing that arbitrability is for the arbitrator apply in circumstances like
15 those here: where the demand for arbitration is made after adoption of the Rules
16 providing that the parties are to arbitrate arbitrability itself. See, e.g., JSC
17 Surgutneftegaz v. President & Fellows of Harvard College, 167 Fed. Appx. 266,
18 268 (2d Cir. 2006); Grynberg v. BP P.L.C., 585 F. Supp. 2d 50, 55 (D.D.C. 2008);
19 Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc.,
20 203 F.R.D. 677, 684-85 (S.D. Fla. 2001), aff'd on other grounds at 312 F.3d 1349
21 (11th Cir. 2002). See also Hodge v. Top Rock Holdings, Inc., 2011 WL 1527010, at
22 *5 (E.D. Mo. 2011); Pikes Peak Nephrology Assocs., P.C. v. Total Renal Care, Inc.,
23 2010 WL 1348326, at *7 (D. Colo. 2010); Sleepy’s LLC v. Escalate, Inc., 2010 WL
24 2505678, at *2 n. 28 (S.D.N.Y. 2010); BNSF Ry. Co. v. Alstom Transportation, Inc.,
25 2010 WL 11619686, at *2 (N.D. Tex. 2010); S. Farms Ltd. v. Am. Farmland Inv'rs
26 Corp., 2006 WL 2038532, at *2 (M.D. 2006); Cong. Const. Co. v. Geer Woods,
27
28
4
1 Inc., 2005 WL 3657933, at *3 (D. Conn. 2005). 2 But see Hasbro, Inc. v. Amron,
2 419 F. Supp. 2d 678, 686 (E.D. Pa. 2006) (disagreeing with the above courts with
3 mention, but no analysis, of AAA Rule 1; but finding the dispute arbitrable in any
4 event). Most of these cases involve arbitration agreements, like the one here, that
5 were signed in the 1990s, but some are even older: one involves an arbitration
6 agreement from 1979, Hodge, 2011 WL 1527010, at *5; and another involves an
7 arbitration agreement from 1984, BNSF Ry. Co. v. Alstom Transportation, Inc., 2010
8 WL 11619686, at *2.
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9 The sole case HBO relies upon does say that the applicable rules are those
10 that exist at the time of contracting. Yahoo! Inc. v. Iversen, 836 F. Supp. 2d 1007,
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11 1012 (N.D. Cal. 2011), citing Gilbert St. Developers, 174 Cal. App. 4th at 1193
12 (discussed immediately below in footnote 2). Notably, however, the court did not
13 address the effect of AAA Rule 1 at all—no party appears to have raised the
14 argument—as the above cases do. And just as importantly, the question of which
15 rules applied does not appear to have made any difference. The rules in place at the
16 time of contracting also stated that arbitrability was for the arbitrator, and the Court
17 so held. Yahoo!, 836 F. Supp. 2d at 1012.
18 In short, arbitrability here is for the arbitrator, and the Court should compel
19 this matter to arbitration where the arbitrator, when chosen, can address HBO’s
20 arguments in the first instance.
21
2
Some of these cases purport to rely on state law to reach their conclusions.
22 However, the Ninth Circuit has clearly held that whether parties clearly and
unmistakeably delegate arbitrability questions to the arbitrator is an issue of the
23 substantive federal law of arbitrability. Brennan, 796 F.3d at 1130. Notably, a
California case holds as a matter of “California common law” that prior versions of
24 the AAA rules do not apply to the issue of whether the parties have delegated
arbitrability to the arbitrator. Gilbert St. Developers, LLC v. La Quinta Homes, LLC,
25 174 Cal. App. 4th 1185, 1193 (2004). Besides the fact that the case was based on
“California common law,” id. at 1190, it also does not address the effect of AAA
26 Rule 1, as all of the above cited-courts do (although it does mention the rule in the
background section of the opinion but does not return to it in its legal analysis
27 section, id. at 1189).
28
5
1 B. The Law is Crystal Clear that the Continuing Validity of the

2 Contract as a Whole is for the Arbitrator and not a Court
3 HBO’s primary argument in opposition to the motion to compel is that “[t]he
4 obligations under the 1992 Agreement have … long been fulfilled, and the
5 Agreement has terminated along with the arbitration provision therein.” (Opp.,
6 11:22-24; see generally Opp. at 10-15.) This argument is contrary to decades of
7 precedent from the Supreme Court.
8 In Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), the
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9 Supreme Court summarized its jurisprudence on the question of whether attacks on

10 the validity of an agreement containing an arbitration clause may be the basis for
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11 denying a motion to compel arbitration under the FAA. The Court explained that
12 “[c]hallenges to the validity of arbitration agreements ‘upon such grounds as exist at

13 law or in equity for the revocation of any contract’ can be divided into two types.”
14 Id. at 444. First, there are “challenges specifically [to] the validity of the agreement
15 to arbitrate.” Ibid. Second, there are “challenges [to] the contract as a whole, either
16 on a ground that directly affects the entire agreement (e.g., the agreement was
17 fraudulently induced), or on the ground that the illegality of one of the contract's
18 provisions renders the whole contract invalid.” Ibid. The former challenges—
19 specifically to the arbitration agreement—are for courts. The latter challenges—to
20 the contract more generally—are for arbitrators. The Supreme Court helpfully
21 summarized the law as follows:
22 First, as a matter of substantive federal arbitration law, an arbitration
23 provision is severable from the remainder of the contract. Second,
24 unless the challenge is to the arbitration clause itself, the issue of the
25 contract’s validity is considered by the arbitrator in the first instance.
26 … Applying the[se principles] to this case, we conclude that because
27 respondents challenge the Agreement, but not specifically its arbitration
28 provisions, those provisions are enforceable apart from the remainder
6
1 of the contract. The challenge should therefore be considered by an

2 arbitrator, not a court.
3 Id. at 445-46. See also Bridge Fund Capital Corp. v. Fastbucks Franchise Corp.,
4 622 F.3d 996, 1000 (9th Cir. 2010) (“[W]hen a [party’s] legal challenge is that a
5 contract as a whole is unenforceable, the arbitrator decides the validity of the
6 contract, including derivatively the validity of its constituent provisions (such as the
7 arbitration clause).”).
8 The Buckeye Court cited its prior decision in Southland Corp. v. Keating, 465
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9 U.S. 1 (1984), as an example of an argument that, unlike HBO’s attack on the

10 Agreement at large, must be determined by the Court. In Southland, the plaintiffs

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11 specifically “challeng[ed] the agreement to arbitrate as void under California law

12 insofar as it purported to cover claims brought under the state Franchise Investment
13 Law.” Buckeye, 546 U.S. at 444. Plaintiffs did not argue that the entire contract was
14 invalid, but rather that the contract’s arbitration agreement was prohibited under
15 California’s Franchise Investment Law. Southland Corp., 465 U.S. at 4. Thus, the
16 validity of the arbitration clause in Southland Corp. was properly before the courts,
17 rather than the arbitrator. See Buckeye, 546 U.S. at 444.
18 On the other hand, the Buckeye Court cited its earlier decision in Prima Paint
19 Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), as an example of a claim
20 that, like HBO’s, must go to the arbitrator. The issue in Prima Paint was “whether a
21 claim of fraud in the inducement of the entire contract is to be resolved by the
22 federal court, or whether the matter is to be referred to the arbitrators.” Id. at 402.
23 The Court held that “if the claim is fraud in the inducement of the arbitration clause
24 itself—an issue which goes to the making of the agreement to arbitrate—the federal
25 court may proceed to adjudicate it. But the statutory language [in the FAA] does not
26 permit the federal court to consider claims of fraud in the inducement of the contract
27 generally.” Id. at 403-04. Because there was no argument that the respondent had
28 “fraudulently induced [the petitioner] to enter into the agreement to arbitrate,” the
7
1 issue of whether the contract as a whole had been induced by fraud was for the
2 arbitrator and not a court. Id. at 406.
3 Here, HBO does not attack the validity of the arbitration clause, but attacks
4 the continuing validity of the Agreement itself (Opp. at 10:10-12), and the validity
5 of the non-disparagement clause specifically as violating California public policy.
6 (Id. at 19:5-16.) Those are issues for the arbitrator, however, as they are not attacks
7 on “the agreement to arbitrate” but attacks on “the contract generally.” Prima Paint,
8 388 U.S. at 403-04. Thus, the issues raised by HBO are for the arbitrator and not this
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9 Court.
10 In the Jackson Estate’s opening brief, this law was specifically referenced by
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11 citation to and quotation from the Ninth Circuit’s decision Sanford v.

12 MemberWorks, Inc., 483 F.3d 956, 962 (9th Cir. 2007): “Issues regarding the
13 validity or enforcement of a putative contract mandating arbitration should be
14 referred to an arbitrator, but challenges to the existence of a contract as a whole must
15 be determined by the court prior to ordering arbitration.” Ibid. (emphasis in
16 original), citing Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d
17 1136, 1140–41 (9th Cir.1991). (Mot. at 5:1-7, citing and quoting same).
18 HBO only response to this binding precedent is in a footnote. (Opp. at 10,
19 n. 4.) And its response is just plain wrong. HBO says that the Sanford court
20 “specifically cautioned that the ‘the Supreme Court has not yet spoken to this
21 issue.’” Ibid. The “issue” that that Sanford court “cautioned that ‘the Supreme Court
22 has not yet spoken to’” was not contract validity, but contract formation. See
23 Sanford, 483 F.3d at 962. There is no issue in this case as to contract formation.
24 HBO then contends that the Supreme Court’s recent decision in Henry
25 Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019) somehow
26 overruled the Ninth Circuit’s caselaw in this area and held that “this Court (not an
27 arbitrator) is to consider not merely the existence of an agreement, but also its
28 continuing validity.” (Opp. at 10, n. 4.) The decision in Henry Schein held nothing
8
1 of the sort. Henry Schein overruled a body of case law from the Circuits that
2 allowed a court to deny a motion to compel arbitration, even when the arbitration
3 agreement delegated arbitrability decisions to the arbitrator, if the court found that
4 the grounds for arbitration were “wholly groundless.” Schein, 139 S. Ct. at 528. In
5 other words, after Henry Schein, a court must compel arbitration even if a court
6 believes that the basis for arbitration is completely frivolous (assuming that the
7 arbitration agreement delegates arbitration to the arbitrator).
8 HBO’s claim that it overruled Ninth Circuit case law—much less the decades
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9 of Supreme Court case law discussed above—is based on an incorrect, and overly
10 broad, reading of one sentence in the case. Specifically, HBO cites Henry Schein for
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11 its reiteration of the long-settled rule that “before referring a dispute to an arbitrator,
12 the court determines whether a valid arbitration agreement exists.” Henry Schein,
13 139 S. Ct. at 530 (emphasis added). As seen from the discussion above, the Supreme
14 Court routinely refers to arbitration clauses as “arbitration agreements” and
15 distinguishes them from the larger “contract as a whole.”3 In other words, the Henry
16 Schein Court’s statement that “before referring a dispute to an arbitrator, the court
17 determines whether a valid arbitration agreement exists,” Henry Schein, 139 S. Ct.
18 at 530, is an obvious reference to this long-existing case law referring to arbitration
19 clauses as “arbitration agreements.” Under the cases discussed above, it is only the
20 validity of the “arbitration agreement” (or arbitration clause), and not the “contract
21
3
As noted above, the Supreme Court has long distinguished between: (1) an
22 “arbitration agreement” (i.e., an arbitration clause); and (2) the “contract as a
whole.” For example, Buckeye contrasts two types of challenges to the validity of
23 agreements under the FAA. There are challenges to (1) “the validity of the
agreement to arbitrate.” Buckeye, 546 U.S. at 444. The Court contrasts these to (2)
24 challenges to “the contract as a whole.” Ibid. Later, Buckeye summarized that case
as “reject[ing] application of state severability rules to the arbitration agreement
25 without discussing whether the challenge at issue would have rendered the contract
void or voidable.” Ibid. Likewise, in Prima Paint, the Court contrasted arguments
26 that a party had been “fraudulently induced it to enter into the agreement to
arbitrate,” with arguments that the “agreement itself w[as] procured by fraud.”
27 Prima Paint, 388 U.S. at 406 (all emphases in this footnote are added).
28
9
1 as a whole” that a Court must examine. HBO’s assertion to the contrary would
2 require this Court to conclude that the unanimous Court in Henry Schein overruled
3 sub silientio decades of its own case law on the severability of analysis of the
4 validity of arbitration clauses from analysis of the validity of the contract as a
5 whole.
6 HBO does not specifically challenge the validity of the Agreement’s
7 arbitration clause. Instead, HBO argues that the entire contract has expired and is no
8 longer valid, including its arbitration clause. Under Buckeye, HBO’s “challenge to
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9 the validity of the contract as a whole, and not specifically to the arbitration clause,
10 must go to the arbitrator.” Buckeye, 546 U.S. at 449.

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11 C. The Arbitration Clause Is Valid And Enforceable Regardless of

12 HBO’s Argument that the Agreement Has “Expired.”

13 As explained above, the law is clear that the arbitration clause is severable
14 and survives any supposed expiration of the Agreement’s other obligations.
15 Buckeye, 546 U.S. at 445. Nevertheless, HBO attempts to persuade this Court that “a
16 contract must specifically provide that such [arbitration] rights survive termination
17 of the agreement.” (Opp. at 12:16-17.)
18 HBO’s argument is, quite literally, the exact opposite of the Supreme Court’s
19 clear jurisprudence in this area as explained below. Indeed, the only case HBO cites
20 for this proposition is an unpublished decision from the California Court of Appeal,
21 Selman v. FCB Worldwide, Inc., No. B168315, 2004 WL 2729656, at *1–2 (Cal. Ct.
22 App. Dec. 1, 2004). (See Opp. at 12:18-19.) And the case does not remotely stand
23 for the proposition that HBO cites it for. The case mentions that an employment
24 agreement “provided for expiration of the substantive rights but survival of the
25 arbitration clause.” Id. at *2. The Court was not addressing the validity of the
26 arbitration clause, but the issue of waiver. Plaintiff argued that defendant had
27 waived its right to arbitrate when it filed an answer to Plaintiff’s complaint—that
28 asserted, among other things, that the employment agreement had expired—instead
10
1 of immediately moving to compel arbitration. Ibid. In that context, the Court

2 mentioned the fact that the arbitration clause stated that it survived expiration as one
3 reason, among many, that defendant had not waived its right to arbitrate. Ibid. No
4 fair reading of the case could possibly support HBO’s citation of it for the
5 (erroneous) proposition that for an arbitration clause to survive expiration, “a
6 contract must specifically provide that such rights survive termination of the
7 agreement.” (Opp. 12:16-17 (emphasis added).)
8 Contrary to HBO’s assertions, the Supreme Court has held that there is “a
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9 presumption in favor of postexpiration arbitration of matters unless ‘negated

10 expressly or by clear implication.’” Litton Fin. Printing Div., a Div. of Litton Bus.
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11 Sys., Inc. v. N.L.R.B., 501 U.S. 190, 204 (1991). Thus, “the parties’ obligations
12 under their arbitration clause survive[ ] contract termination when the dispute [is]
13 over an obligation arguably created by the expired agreement.” Nolde Bros., 430
14 U.S. at 252. Or, in other words, “where the dispute is over a provision of the expired
15 agreement, the presumptions favoring arbitrability must be negated expressly or by
16 clear implication.” Ibid.
17 In fact, as recently as March 2019, following this precedent, a court in this
18 district rejected an argument identical to HBO’s and granted the moving party’s
19 motion to compel arbitration. Wamar Int’l, LLC v. Thales Avionics, Inc., 2019 WL
20 1877615, at *8. The court summarized the state of the law as follows:
21 Even where an agreement has been terminated, “the well settled
22 jurisprudence that holds arbitration agreements to a life and validity
23 separate and apart from the agreement in which they are embedded”
24 dictates that “parties’ duties under an arbitration clause survive contract
25 termination when the dispute is over an obligation arguably created by
26 the expired contract.”
27 Wamar Int’l, LLC v. Thales Avionics, Inc., No., 2019 WL 1877615, at *10 n. 3
28 (C.D. Cal. Mar. 20, 2019), quoting Homestead Lead Co. of Missouri v. Doe Run
11
1 Resources Corp., 282 F. Supp. 2d 1131, 1140 (N.D. Cal. 2003).

2 Another court in this district also recently rejected the proposition that HBO
3 urges this Court to adopt as barred by Supreme Court precedent. The court
4 explained that “[a]bsent an express agreement to the contrary, however, arbitration
5 agreements ‘survive[ ] contract termination when the dispute [is] over an obligation
6 arguably created by the expired agreement.’” Brachfeld v. Hopkins, 2017 WL
7 10436075, at *5 (C.D. Cal. Dec. 11, 2017) (granting motion to compel arbitration),
8 quoting Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers Union,
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9 AFL-CIO, 430 U.S. 243, 252 (1977). Thus, “[t]he strong presumption in favor of
10 arbitration therefore resolves any dispute as to the ambiguity of an arbitration

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11 clause’s survival, even if it is otherwise omitted from a contract’s survival clause.”

12 Brachfeld, 2017 WL 10436075, at *5.

13 HBO’s heavy reliance on Just Film, Inc. v. Merch. Servs., Inc., 2011 WL
14 2433044 (N.D. Cal. 2011), is misplaced. The case is readily distinguishable. In a
15 nutshell, the case involved a plaintiff who leased various equipment from a lessor.
16 The lease included an arbitration clause. Id. at *2. Roughly four years after the lease
17 expired, the lessor’s assignee claimed that plaintiff attempted to debit her bank
18 account for supposed failure to pay tax processing and filing fees. Id. at *3. Plaintiff
19 thereafter brought RICO claims against the lessor and others, and the lessor moved
20 to compel arbitration. Id. at *3-4. The court did not deny defendants’ motion to
21 compel arbitration of plaintiff’s RICO claims because the lease that included the
22 arbitration clause had expired. Rather, the court expressly found that plaintiff’s
23 “RICO claims are not based on any dispute regarding the lease, but rather on
24 [lessor’s assignee’s] allegedly fraudulent attempt to extract funds from her bank
25 account approximately four years after the lease ended.” Id. at *5. Indeed, the Court
26 noted that the lessor’s assignee “offers no evidence that this post-expiration dispute
27 concerns conduct that occurred before June 2007 or that [lessee’s] lease is
28 implicated.” Ibid. In other words, the dispute did not fall within the scope of the
12
1 arbitration provision regardless of whether it had expired or not.

2 Here, the dispute between the Jackson Estate and HBO is a “dispute over an
3 obligation arguably created by the [allegedly] expired agreement.” Nolde Bros., 430
4 U.S. at 252. The Nolde Court was clear that in such a case, “the parties’ obligations
5 under their arbitration clause survive[ ] contract termination.” Ibid.; see also Litton,
6 501 U.S. at 205–06 (1991) (an arbitrable “postexpiration grievance can be said to
7 arise under the contract … where an action taken after expiration infringes a right
8 that accrued or vested under the agreement.”).
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9 This must be so. Ultimately, an arbitration clause must be interpreted to

10 effectuate the intent of the contracting parties. See E.E.O.C. v. Waffle House, Inc.,
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11 534 U.S. 279, 294 (2002). The parties intended that “any dispute arising out of, in
12 connection with or relating to this Agreement shall be submitted for binding and
13 final arbitration before a retired judge of the Superior Court of the State of
14 California for the County of Los Angeles.” (Steinsapir Decl., Ex. B, Dkt. 18 at p.
15 33.) It cannot be the case that the parties intended that if one party alleges that the
16 other party violated covenants in the Agreement and the other defended the claim by
17 asserting that the covenants expired, interpretation of the Agreement and resolution
18 of the parties’ dispute about the meaning of the Agreement would be for a court and
19 not an arbitrator. But that is precisely what HBO is urging this Court to find.
20 Because HBO’s position is contrary to Supreme Court precedent, and the intent of
21 the parties as embodied in the broad arbitration clause, the Court should reject it and
22 grant the Jackson Estate’s Motion to Compel Arbitration.
23 D. The Jackson Estate’s Claims Arise Out of the Agreement
24 There can be no serious contention that this dispute does not arise out of the
25 Agreement and falls within the scope of the arbitration clause. Indeed, HBO’s
26 opposition largely ignores the strong federal policy in favor of arbitration. “The
27 Arbitration Act establishes that, as a matter of federal law, any doubts concerning
28 the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H.
13
1 Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983) (emphasis
2 added). Here, to the extent there are any such doubts, they must be resolved in favor
3 of arbitrability.
4 And notwithstanding HBO’s statement that the Agreement contains a “limited
5 arbitration provision,” (Opp. 8:28), the Agreement here has the broadest arbitration
6 clause possible. That clause requires arbitration of “[a]ny dispute arising out of, in
7 connection with or relating to this Agreement.” (Steinsapir Decl., Ex. B, Dkt. 18 at
8 p. 33 of 42.) The Ninth Circuit has held that “the language ‘arising in connection
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9 with’ reaches every dispute between the parties having a significant relationship to
10 the contract and all disputes having their origin or genesis in the contract.” Simula,
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11 Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 1999). The Jackson Estate alleges
12 that HBO violated the express terms of the Agreement, which obviously has more
13 than “a significant relationship to the contract.”
14 The predecessor entities of the Jackson Estate and HBO signed the
15 Agreement, which included a broad arbitration clause.4 That clause requires
16 arbitration of “[a]ny dispute arising out of, in connection with or relating to this
17 Agreement.” (Dkt. 18 at p. 33 of 42). The Ninth Circuit has held that “the language
18 ‘arising in connection with’ reaches every dispute between the parties having a
19 significant relationship to the contract and all disputes having their origin or genesis
20 in the contract.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 1999). The
21
22 4
HBO says it is not disputing, for purposes of this motion, that Plaintiff
Optimum Productions is the successor-in-interest to TTC Touring. (Opp. at 2, n. 2.)
23 It does not address, in any meaningful way, whether HBO is the successor-in-
interest to “Home Box Office, a Division of Time Warner Entertainment Company,
24 L.P.” The Jackson Estate’s arguments and evidence on the issue are therefore
undisputed. (Steinsapir Decl. ¶¶ 2-3.) And HBO has waived any argument on the
25 issue in this court at least. Conservation Force v. Salazar, 677 F.Supp.2d 1203,
1211 (N.D.Cal. 2009) (“Where plaintiffs fail to provide a defense for a claim in
26 opposition, the claim is deemed waived.”).
27
28
14
1 Jackson Estate alleges that HBO violated the express terms of the Agreement, which
2 obviously has more than “a significant relationship to the contract.”
3 HBO’s argument to the contrary, that “the arbitration provision of that
4 Agreement still would not encompass this dispute,” is hard to follow. (Opp. at15).
5 HBO claims that “Petitioners do not, and cannot, allege that any information
6 obtained during the course of performing the 1992 Agreement . . . was provided to
7 the filmmakers.” (Id. at 16). HBO continues that, “by the express language of the
8 contract itself, Leaving Neverland is categorically outside the scope of the
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9 Confidentiality Provisions.” (Ibid.). HBO concludes that, “[a]ny complaints

10 Petitioners have about the film, therefore, are outside the scope of the 1992
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11 Agreement and its arbitration provision.” (Ibid.).

12 HBO’s conclusion does not follow from its premises. As best as the Jackson
13 Estate can follow HBO’s argument, HBO appears to be suggesting that the
14 arbitration clause only applies to disputes arising under the Agreement’s
15 Confidentiality Provisions and does not apply to the non-disparagement provision.
16 But there is no basis in the text of the Agreement for such a narrow reading. The
17 arbitration clause references the entire Agreement, which must be understood as
18 broadly as possible under controlling Ninth Circuit precedent. Simula, 175 F.3d at
19 721. At best, these are substantive arguments that HBO can pitch to the arbitrator to
20 explain why HBO believes it is entitled to break its commitments.
21 E. HBO’s Substantive Arguments Are Irrelevant
22 HBO devotes a large part of its opposition brief to arguing that the covenant
23 that the Jackson Estate seeks to enforce in arbitration is unenforceable for policy and
24 other reasons. (Opp. at 16-22.) These arguments are directed at the underlying
25 merits of the Jackson Estate’s claims, rather than their arbitrability, and they have no
26 place in an opposition to a motion to compel arbitration. Whatever HBO may think
27 of the non-disparagement clause, HBO does not contend that the arbitration clause
28 in particular is contrary to law or public policy. And there is certainly no First
15
1 Amendment right not to arbitrate. Thus, even if HBO were to argue, as the plaintiffs
2 did in Buckeye, that the entire Agreement is contrary to law, the Court would still be
3 obliged to send the dispute to arbitration. See Buckeye, 546 U.S. at 449. HBO’s
4 substantive arguments about the Agreement’s non-disparagement clause are, in
5 short, a waste of ink at this stage. But a few comments are necessary. Non-
6 disparagement and confidentiality clauses between private parties are generally
7 enforceable under the First Amendment. Cohen v. Cowles Media Co., 501 U.S. 663,
8 672 (1991). Whether and how the contract should be interpreted in light of the First
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9 Amendment and other public policy is an issue for the arbitrator in the first instance.
10 Finally, HBO repeatedly refers to the Jackson Estate as somehow seeking a

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11 “prior restraint” in this suit and claims that the Jackson Estate reads the Agreement
12 as an agreement for a “prior restraint.” (Opp. at 13:12, 16:19, 21:8.) This rhetoric is
13 misplaced, as it appears that HBO does not know what a “prior restraint” is. A
14 “prior restraint” is a court order “barring speech in the future.” Alexander v. United
15 States, 509 U.S. 544, 553 (1993). The Jackson Estate never sought to preliminarily
16 enjoin HBO’s film. The claims to be arbitrated seek money damages. Claims for
17 money damages are, by definition, not prior restraints. CBS, Inc. v. Davis, 510 U.S.
18 1315, 1318 (1994) (Blackmun, Circuit Justice) (contrasting a “damages” remedy
19 with a “prior restraint”).5
20
5
21 This is far from the only mistake in HBO’s papers. At pages 3-4 of the
brief, HBO asserts that “Petitioners” (i.e., the Jackson Estate) “released their own
22 film to respond to the allegations in the documentary.” (Opp. at 3:25-4:1.) This is
incorrect. The cited article refers to a YouTube video, which includes interviews
23 with Michael Jackson’s nephew Taj, and niece Brandi. That video had nothing to do
with the Jackson Estate. (Supp. Steinsapir Decl. ¶ 2.) It is one of many YouTube
24 videos, which have exposed various flaws in the “documentary” HBO released.
(Ibid.) Moreover, neither Taj Jackson nor Brandi Jackson are beneficiaries of the
25 Jackson Estate. (Id. ¶ 4.) HBO appears to be confusing the “Jackson Family” with
the “Jackson Estate”—an understandable mistake for a layperson but not for HBO,
26 whose counsel in this case (O’Melveny & Myers) actually defended a very well-
publicized case brought by the Jackson Family (which the Jackson Estate was not a
27 party to as counsel certainly understood). (Id. ¶ 3.) And regardless, neither Taj
Jackson nor Brandi Jackson produced or “released” the Film. (Id. ¶ 4.)
28
16
1 III. CONCLUSION
2 For the reasons stated, the Jackson Estate respectfully requests that the Court
3 compel HBO to participate in arbitration in Los Angeles County consistent with the
4 terms of the Agreement.
5
6 DATED: May 9, 2019 Respectfully Submitted:
7
KINSELLA WEITZMAN ISER
8 KUMP & ALDISERT LLP
LLP
9
10
TEL 310.566.9800 • FAX 310.566.9850
By: /s/ Jonathan Steinsapir

11
Jonathan Steinsapir
13
Executors of the Estate of Michael J.
14 Jackson
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1 SUPPLEMENTAL DECLARATION OF JONATHAN P. STEINSAPIR

2 I, Jonathan Steinsapir, declare as follows:
3 1. I am an attorney duly admitted to practice before this Court. I am a
4 partner with Kinsella Weitzman Iser Kump & Aldisert LLP, attorneys of record for
5 Optimum Productions and for John Branca and John McClain as Co-Executors of
6 the Estate of Michael J. Jackson (“the Jackson Estate”). If called as a witness, I
7 could and would competently testify as follows.
8 2. In defendant’s opposition brief at pages 3 and 4, it asserts that
LLP
9 “Petitioners”—the Jackson Estate—“released their own film to respond to the

10 allegations in the [so-called] documentary,” Leaving Neverland. The brief then

TEL 310.566.9800 • FAX 310.566.9850
11 refers to an article about a thirty-minute YouTube video, entitled Neverland

12 Firsthand: Investigating the Michael Jackson Documentary. This video was not
13 produced by the Jackson Estate. This video was not funded by the Jackson Estate.
14 The Jackson Estate had nothing to do with this video. From communications with
15 Taj Jackson (Michael Jackson’s nephew) who is interviewed in the video, I
16 understand that this was a video produced by Liam McEwan, a New Zealand born
17 radio host. This video is one of many videos on YouTube, which were
18 independently created without the Jackson Estate or the Jackson Family, exposing
19 the many flaws in Leaving Neverland.
20 3. O’Melveny & Myers was counsel of record to the defendant in a long-
21 running and highly-publicized lawsuit brought by members of the Jackson Family
22 after Michael Jackson’s tragic death on June 25, 2009. The Jackson Estate was not a
23 party to that suit. Both sides in that suit dealt with the Jackson Estate—almost
24 entirely through Mr. Weitzman, me, and other lawyers at our firm—as a third party
25 to the lawsuit.
26 4. From communications with Taj Jackson, I understand that neither he
27 nor his cousin Brandi Jackson (nor anyone else in his extended family to his
28 knowledge) were involved in the production, funding, or release of Neverland
1
1 Firsthand: Investigating the Michael Jackson Documentary. Neither Taj Jackson,

2 nor Brandi Jackson, are beneficiaries of the Estate of Michael Jackson. The sole
3 beneficiaries of the Estate of Michael Jackson, through a Trust, are his three
4 children, his mother (for the remainder of her life), and various charities.
5 I declare under penalty of perjury under the laws of the State of California
6 that the foregoing is true and correct.
7 Executed on May 9, 2019, at Santa Monica, California.
8
LLP
9 /s/ Jonathan Steinsapir

10 Jonathan P. Steinsapir
TEL 310.566.9800 • FAX 310.566.9850
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10386.00348/642293
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2

2019 05 09 Estate Reply To HBO Motion To Remand

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2019 05 09 Estate Reply To HBO Motion To Remand

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Case 2:19-cv-01862-GW-PJW Document 24 Filed 05/09/19 Page 1 of 7 Page ID #:476

1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

9 Los Angeles, California 90067

11 Attorneys for Optimum Productions and

for John Branca and John McClain as

REPLY IN SUPPORT OF MOTION TO REMAND

12 under the Agreement is the Los Angeles Superior Court.

9 reading of the Agreement.

12 Court so that it can oversee the entire process of compelling an arbitration.

9 Superior Court Exclusive Jurisdiction Over Proceedings to Compel

9 mandatory arbitration procedures implicitly excludes the possibility of other courts

9 remanded to the Superior Court.

12 this action to the Los Angeles Superior Court.

1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP

9 Los Angeles, California 90067

11 Attorneys for Optimum Productions and

for John Branca and John McClain as

PLAINTIFFS' REPLY BRIEF IN SUPPORT OF MOTION TO COMPEL ARBITRATION

10 E. HBO’s Substantive Arguments Are Irrelevant ..................................... 15

11 III. CONCLUSION ............................................................................................... 17

10 796 F.3d 1125 (9th Cir. 2015) ................................................................... 3, 4, 5

11 Bridge Fund Capital Corp. v. Fastbucks Franchise Corp.

622 F.3d 996 (9th Cir. 2010) ............................................................................. 7

9 2010 WL 2505678 (S.D.N.Y. 2010) ................................................................. 4

10 Southland Corp. v. Keating

Three Valleys Mun. Water Dist. v. E.F. Hutton & Co.

9 underlying claim that is assigned by contract to an arbitrator, even if it appears to the

10 Estate obviously disagrees, and contends that substantive obligations, like

11 confidentiality and non-disparagement, continue to apply. Whether those substantive

12 obligations survive, of course, is a classic question of contract interpretation for the

1 a question to be determined by the arbitrator. “[I]ncorporation of the AAA rules

1 or validity of the arbitration agreement or to the arbitrability of any claim or

11 (Dkt. 22-2), Ex. A, p. 8, 1992 AAA Rule 1.)

12 According to our research, the overwhelming majority of federal courts to

1 B. The Law is Crystal Clear that the Continuing Validity of the

9 Supreme Court summarized its jurisprudence on the question of whether attacks on

12 “[c]hallenges to the validity of arbitration agreements ‘upon such grounds as exist at

1 of the contract. The challenge should therefore be considered by an

9 U.S. 1 (1984), as an example of an argument that, unlike HBO’s attack on the

10 Agreement at large, must be determined by the Court. In Southland, the plaintiffs

11 specifically “challeng[ed] the agreement to arbitrate as void under California law

11 citation to and quotation from the Ninth Circuit’s decision Sanford v.

10 must go to the arbitrator.” Buckeye, 546 U.S. at 449.

11 C. The Arbitration Clause Is Valid And Enforceable Regardless of

12 HBO’s Argument that the Agreement Has “Expired.”

1 of immediately moving to compel arbitration. Ibid. In that context, the Court

9 presumption in favor of postexpiration arbitration of matters unless ‘negated

1 Resources Corp., 282 F. Supp. 2d 1131, 1140 (N.D. Cal. 2003).

10 arbitration therefore resolves any dispute as to the ambiguity of an arbitration

11 clause’s survival, even if it is otherwise omitted from a contract’s survival clause.”

12 Brachfeld, 2017 WL 10436075, at *5.

1 arbitration provision regardless of whether it had expired or not.

9 This must be so. Ultimately, an arbitration clause must be interpreted to

9 Confidentiality Provisions.” (Ibid.). HBO concludes that, “[a]ny complaints

11 Agreement and its arbitration provision.” (Ibid.).

10 Finally, HBO repeatedly refers to the Jackson Estate as somehow seeking a

By: /s/ Jonathan Steinsapir

1 SUPPLEMENTAL DECLARATION OF JONATHAN P. STEINSAPIR

9 “Petitioners”—the Jackson Estate—“released their own film to respond to the

10 allegations in the [so-called] documentary,” Leaving Neverland. The brief then

11 refers to an article about a thirty-minute YouTube video, entitled Neverland

1 Firsthand: Investigating the Michael Jackson Documentary. Neither Taj Jackson,

9 /s/ Jonathan Steinsapir