— Entertainment giant forces Michael Fierstein into bankruptcy after its string of shameful attempts to delay the case to starve him out —
LOS ANGELES – Edwin F. McPherson with McPherson Rane LLP, a Los Angeles-based entertainment litigation law firm, and attorney Larry Zerner, obtained a win in Fox Entertainment Group’s appeal in a breach of contract dispute, allowing Michael Fierstein, a manufacturer of licensed watches, to continue his lawsuit against Fox, after the entertainment giant sabotaged the agreed-upon sale of ‘24’-themed watches for the hit television show’s 2014 premier, costing Fierstein his business and driving him into bankruptcy. Despite Fox’s frivolous attempts to further delay the case in the hopes of deterring Fierstein’s will to fight, the California Court of Appeal affirmed the lower court’s decision to grant Fierstein a new trial after the original trial in 2016 resulted in inconsistent jury answers on a confusing verdict form.
“Although this nightmare isn’t over for Mike, we’re glad that we have another chance to get him the damages he deserves,” said McPherson. “It was very clear that the original jury agreed with Mike’s claims against Fox, and we’re confident that a jury will vote in his favor again. In fact, the foreman of the original jury submitted a declaration stating ‘It breaks my heart that Mr. Fierstein is not going to get the money he deserves.’”
Michael Fierstein, who had been selling licensed watches for 25 years, entered into a license agreement with Fox to sell watches with the theme of Fox’s hit television show ‘24’ for its 2014 premier. Fierstein obtained approval of the watch and packaging – artwork that was provided by Fox – to design, manufacture and deliver the watches to his buyers well before the show’s premier date. Unfortunately, Fox changed its mind on the artwork numerous times throughout this process, resulting in Fierstein losing his buyers.
Not only did Fierstein lose out on the sale of 15,000 watches at $84 each, as a result of Fox’s failure to hold up its end of the agreement, he lost his relationship with his manufacturers and buyers, costing him his business and driving him into bankruptcy. Now, at the age of 72, Fierstein drives an Uber 12-18 hours per day, seven days a week to support himself and his wife.
Fierstein filed a complaint against Fox on January 18, 2015, alleging breach of contract and breach of implied covenant of good faith and fair dealing. Since the trial-setting conference in April 2015, Fox’s counsel has employed one tactic after another to delay this case, claiming that they intended to file a very viable motion for summary judgment that would end the case, and then purposely failing to schedule the hearing for said motion to delay the trial for as long as possible (the motion was summarily denied). Fox’s counsel continuously barraged discovery and even scheduled his attendance at a conference in Mexico in the middle of trial, ultimately causing a continuance of the trial to November 28, 2016.
After closing arguments on December 7, 2016, the jury began deliberating. Two of the questions on the special verdict form that the jurors had to complete had raised questions early in deliberations, leading McPherson to argue that the inclusion of these questions was confusing and ask that they be removed, unfortunately to no avail. Ultimately, because of the misunderstanding of these questions, the jury verdict was inconsistent. The jury voted 9-3 to award Fierstein damages in the amount of $452,885, plus interest of approximately $90,000. However, the same 9 jurors mistakenly voted “no” to a confusing previous question on the verdict form. The trial court discharged the jury over McPherson’s objection, and ruled that Fox was the prevailing party. McPherson later filed a motion requesting that the trial court set aside the judgment, grant a judgment notwithstanding the verdict or grant a new trial. Multiple jurors filed declarations stating that they misunderstood the question, and that their votes on that question should have been the opposite.
The trial court granted McPherson’s motion for a new trial, and Fox subsequently filed an appeal, which McPherson argued was frivolous and solely to cause further delay. During oral argument, Fox’s counsel asserted that the verdict was not inconsistent at all, to which one of the justices replied “Counsel, I have read the verdict forms 300 times, and they are completely inconsistent and don’t really make sense.” The Court of Appeal affirmed the new trial order, awarding Fierstein costs on appeal. A hearing to set the date for the new trial is scheduled for April 24, 2018.
Read the Opinion here.