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January 12, 2017

Fox Hits Back Again At “Futile” Netflix Efforts In Executive Poaching Suit

Less than a week after Netflix filed paperwork to further blunt Fox’s lawsuit over the poaching of two executives under contract, the studio today struck back again. As it has before, Fox reiterated it wants the streaming service’s October 19 cross-complaint tossed and an anti-SLAPP motion granted by the court.

“There are no ‘do overs’ under the SLAPP statute,” says 20th Century Fox and Fox 21 TV Studios in the latest installment of a legal drama that started last September when Fox entities sued over Netflix’s hiring of Marco Waltenberg and Tara Flynn. “Yet that is exactly what Netflix aspires to do to evade dismissal of its cross-complaint, the filing Wednesday from Fox says.

“In lieu of its repeated, targeted, and explicit attacks on Fox’s “enforcement” of its fixed-term contracts, Netflix would have the Court erase the word from its cross-complaint all 13 instances in which it was used in one form or another throughout the 11 pages of the cross-complaint -and replace it with the word ‘use.’”

“It likewise invites the Court to disregard repeated allegations to bar Fox from enforcing its fixed-term contracts, and instead now asks to enjoin Fox’s ‘practice of binding employees’ to these contracts,” the 16-page reply filed today in LA Superior Court adds “These revisionist efforts are hopelessly futile, both because they are flatly prohibited by law in opposing a SLAPP motion, and because they do nothing to obscure the gravamen of Netflix’s cross-complaint and its ineluctable aim to bar Fox from enforcing its fixed-term employment contracts companywide.”

In what is ultimately a procedural move heading towards the now definitely happening January 19 hearing on the motion, Fox tries to get in a couple of kick to Netflix. “It cannot articulate, let alone prove, how it could possibly have standing to challenge all of Fox’s ongoing fixed-term employment contracts companywide,” the studio says of the streaming service’s response to its lawsuit. “Netflix’s opposition confirms its cross-complaint suffers numerous infirmities, barring its claims as a matter of law and rendering futile any attempt at amendment,” says a reply in support of its own demurrer that Fox also filed today.

The action in the Santa Monica courthouse next week could be a good opening act to when and if this actually goes to trial.

In that, Daniel Petrocelli of O’Melveny & Myers LLP is representing the Fox parties, with O’Melveny & Myers’ Molly Lens and J. Hardy Ehlers also working on the case. Orrick, Herrington & Sutcliffe LLP’s Lynne Hermle and Karen Johnson-McKewan are working for Netflix in the matter.

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