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3 days ago
Commentary and musings from the bestselling author of the intoxicating novels - THE GREAT PRETENDER & THE GREAT BETRAYAL - sizzling stories of families in turmoil. Welcome to Millenia Black's corner of the blogosphere!
"6. Gerritsen is informed and believes, and on that basis alleges, that in and subsequent to 2008, New Line and Katja have been and continue to be shell corporations wholly owned by WB and mere conduits through which WB conducts business. To the extent New Line and Katja continue to transact any business at all, it is at the sole direction and for the sole benefit of WB. Throughout the period 2008 to the present, WB exercised complete management, control, ownership, and domination over New Line and Katja. As such, there has been and is today such a unity of interest and ownership between New Line and Katja, on the one hand, and their parent WB on the other, that the separate personalities of New Line and Katja no longer exist and if their acts are not treated as the acts of WB an inequitable result will follow.”All three entities were already named in the complaint, all three share the same address. Why did attorney Glen Kulik go into this in his initial complaint with hostile language alleging "shell corporation," and "mere conduits" and "shielding from liability," etc. right out the gate? Had WB yet claimed (publicly) that Katja or New Line were NOT shell corporations or mere conduits? Had they even denied they owned the rights to Tess's book? So why bring it up? Why open that door? If they would have been so inclined, the burden would have been on Warner Bros. to explain/deny the relationship between the entities, not on Tess. And at the very least, the initial complaint would not have given WB frivolous ground to argue for dismissal based on a phantom technicality!
"WB has operated under an even larger number of names. The end result is a business structure so complicated that often the individuals who run the studio cannot even keep the relationships and their own multiple titles straight at any given time."Why the bleep is Tess’s own attorney padding his AMENDMENT with street talk that's not even probative at this stage? His second chance to get it right?? He sounds like counsel for Warner Bros.! Why not address the fact that the contract was shuffled around and activated without Tess' knowledge, despite having an "Assignment" Clause, which was blatantly ignored?
"While the court will assume for purposes of this motion that she plausibly pleads the Film was based on her Book, a "literary property” owned by Katja, in that she pleads purported similarities between the two works, and alleges that she and Katja entered into the Contract, she alleges no facts supporting her conclusion that “Katja is controlled by WB and WB is effectively the owner of the motion picture rights in the Book.” Conclusory allegations of control do not give rise to a plausible inference that Katja “transferred” rights to the Film to WB for a “fraudulent purpose.” See Iqbal, 129 S.Ct. at 1949 (“a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”). Because Gerritsen’s fraudulent purpose theory is not supported by factual allegations, the court concludes that she has failed plausibly to plead successor-in-interest liability on this basis."And in its 2nd dismissal, the Court talks like this:
"...the facts Gerritsen plead to show "total control" suggest only that WB, as parent, engaged in routine oversight of its subsidiaries, and provided support for their activities. The court previously concluded that this was not sufficient to state a claim for implied assumption of liabilities." "While such facts might give rise to a plausible inference that WB impliedly assumed Katja's and New Line's liabilities at the time it acquired their assets...the court concludes that Gerritsen has failed adequately to allege an implied assumption of liabilities sufficient to impose successor liability on WB."Is the judge trying the case here? When the facts to be tried have already been firmly established?