Media, Entertainment and Technology

Gibson Dunn has a prominent U.S. litigation practice with a winning track record litigating virtually every kind of dispute that arises in the media, entertainment and technology industries.  Our experience encompasses contractual issues such as profit participation and film finance, as well as intellectual property issues such as copyright, trademark and trade secret, and the right of publicity. We coordinate with our partners in related practice groups on patent and First Amendment issues.

We also handle a wide variety of commercial disputes for our media, entertainment and technology clients, including securities, real estate, class action and contract disputes.  In addition, we represent clients in connection with internal and governmental investigations.

Our clients include major and independent motion picture studios, television networks, newspapers, magazines, video game publishers, producers and distributors, entertainment industry executives and performers, production companies, studios, book and music publishers, merchandising and record companies, authors, personal managers, and talent agencies.  Our lawyers litigate in U.S. state and federal courts as well as arbitrate before guilds and other institutional forums such as the Independent Film and Television Alliance.

Contract Dispute, Profit Participation and Film Finance

Gibson Dunn lawyers represent studios, production companies and talent in all facets of entertainment and media litigation, including contract disputes, finance agreements, profit participation and accounting disputes, and business fraud. We also handle internal and government investigations for our clients.

Intellectual Property and Associated Rights

Gibson Dunn provides its media, entertainment and technology clients with skilled counsel on a wide range of IP issues, including licensing disputes and infringement claims involving high-profile industry names.  We also have extensive experience litigating a wide variety of intellectual property rights, including copyright, rights of publicity, trademarks, trade names and trade dress, theft of ideas, Internet advertising, counterfeiting claims and patent disputes for our entertainment clients.

First Amendment Litigation

Gibson Dunn is unique among law firms in terms of the depth and breadth of its media, entertainment and technology practice.  The firm has been extensively involved in handling First Amendment issues in virtually all areas of free speech and press and offers counseling, litigation at the trial and appellate levels, prepublication or prebroadcast review, and contractual negotiations among many other services.

Employment Litigation

Gibson Dunn has one of the premier labor and employment practices in the United States, with approximately 70 lawyers nationwide assisting corporations with their most sensitive and challenging matters.  We help clients develop company-wide policies that affect tens of thousands of employees; represent media, entertainment and technology companies on issues involving a single employee or work site; and litigate disputes large and small on behalf of individuals and corporations, before courts, agencies and arbitrators in jurisdictions throughout the country.

Wage and Hour Litigation

We have represented many clients, including film studios, production companies and television companies, in both individual and class actions alleging wage and hour violations, including unlawful business expense practices.

Discrimination Litigation

We have successfully defended a wide variety of clients in the entertainment and media industries against claims of discrimination, including the defense of a talent agency in an industry-wide age discrimination class action filed by television writers.

Union Litigation

We regularly represent entertainment companies in actions brought by unions, including those initiated by them on behalf of individuals.

Wrongful Termination

We have been involved in a variety of wrongful termination actions, including those alleging termination in violation of public policy (“whistleblower” cases).

Other Claims

Our broad-based employment litigation client work includes a wide variety of other employment-related claims, such as alleged sexual harassment, fraud, defamation and breach of contract.

Contract Disputes, Profit Participation and Film Finance Litigation

• Won a major victory for Facebook and its founder Mark Zuckerberg in a breach of contract case filed by Paul Ceglia, who claimed he was entitled to an 84% ownership stake in Facebook based on a purported 2003 contract.  After being retained to replace another law firm, we uncovered evidence of fraud and a forgery scheme that resulted in the plaintiff’s arrest on federal felony charges.  In response to our motion to dismiss Ceglia’s breach of contract case, a federal magistrate judge ruled the lawsuit a fraud that should be dismissed with prejudice.  The federal judge presiding over the case adopted that ruling, dismissing the case with prejudice based on Ceglia’s lies, forgeries and litigation misconduct.  We then secured Second Circuit affirmance.
• Representing NBC Universal in a profit participation suit seeking accounting and monetary damages brought by producer Glen Larson alleging that he is owed net profits as the producer of such television series as “Six Million Dollar Man,” “Magnum P.I.,” “Battlestar Galactica,” “Knight Rider” and “Quincy M.E.”
• Represented CBS in its high-profile challenge to the development of ABC’s reality series “The Glass House” for its substantial similarities to CBS’s long-running show “Big Brother” and in connection with its trade secret misappropriation claims related to the production of “The Glass House.”
• Secured summary judgment from the Central District of California for Nike, Inc. against competitor Oakley in a lawsuit over which company was entitled to the endorsement services of former No. 1 world-ranked golfer Rory McIlroy.  Oakley, alleging that Nike intentionally induced McIlroy to breach his contract with Oakley when Nike signed him to a marketing contract, sought damages of more than $105 million.  The court held that there was no evidence that Nike intended to interfere with Oakley’s contract, and that Nike was entitled to rely on McIlroy’s agent’s representations regarding McIlroy’s existing contractual obligations, regardless of their truth.  Earlier in the litigation Gibson Dunn successfully defeated Oakley’s attempt to compel production of athlete endorsement contracts with such icons as Tiger Woods, Michael Jordan and Kobe Bryant, among other sensitive and protected trade secret documents.
• Represented Dow Jones & Company, Inc. in putative consumer class action in the Southern District of New York brought on behalf of all annual Wall Street Journal online subscribers.  Plaintiffs alleged that Dow Jones breached its contract with annual subscribers and violated New York’s consumer protection laws when it “spun off” Barron’s Online from The Wall Street Journal Online into a separate subscription product. Gibson Dunn won summary judgment and defeated plaintiffs’ motion for class certification as moot.  In its ruling, the court held that Dow Jones’s subscriber agreement, which permitted Dow Jones to discontinue or change its services (defined to include Barron’s Online) at “any time,” was enforceable and that the discontinued access to Barron’s Online was in accordance with the contractual terms.  The Second Circuit affirmed, holding that the subscriber agreement permitted the “spin-off” of Barron’s Online, which meant that both plaintiffs’ breach of contract and consumer protection claims failed.  The court also rejected plaintiffs’ alternative argument that the spin-off denied them of so much of the value of the contract as to make it illusory, holding that Dow Jones’s conduct was reasonable as a matter of law.
• Successfully settled a high-profile case during a jury trial on behalf of VOOM HD Holdings LLC, a high-definition television subsidiary of Cablevision Systems Corporation’s Rainbow Media Holdings LLC.  In its multibillion-dollar lawsuit against Dish Network’s EchoStar, Voom alleged that the company unlawfully terminated a 15-year agreement to carry its high-definition television programming.  The defendants were burdened by a January 2012 New York appeals court decision upholding a ruling that EchoStar had destroyed evidence.  As a sanction, jurors would be told that EchoStar erased e-mails, and they could assume the evidence was helpful to Cablevision.  Before the jurors were told, the parties settled.  The settlement was valued at well over $1 billion, one of the largest settlements in a breach of contract case.
• Represented Warner Bros. and the WB Network in a profit participation lawsuit relating to the television series “Smallville.”
• Represented Fox Broadcasting Co. in a widely publicized breach of contract lawsuit brought by “American Idol” creator Simon Fuller over his role in the singing contest “X Factor.”

Copyright and Patent Litigation

• Won pretrial dismissal, for Zynga and Electronic Arts, of patent infringement suits in the Northern District of California, invalidating plaintiff GT Gaming’s asserted patent that purported to claim methods for allowing players to purchase objects during a game. We then secured Federal Circuit affirmance of the dismissal.
• Won a motion for summary judgment on behalf of client FX Networks, LLC in a highly publicized theft of ideas case.  Plaintiff Chuck Zito, a well-known radio and television personality and the former president of the New York City chapter of the Hells Angels motorcycle club, claimed that FX breached an implied-in-fact contract allegedly formed during a 2004 pitch to FX by using his ideas for a television show about an outlaw motorcycle club to develop FX’s hit series “Sons of Anarchy.”  In granting summary judgment for FX, the court held that “Sons of Anarchy” was developed independently by writer Kurt Sutter, in collaboration with two feature film producers, John and Art Linson.  
• Represented a collation of the world’s largest music publishers in a copyright class action against XM Radio alleging multiple counts of copyright infringement based on XM’s operation of a digital music download service.

Lanham Act/Trademark/Unfair Competition Litigation

• Secured Ninth Circuit affirmance for Yelp of the dismissal of a purported class action that threatened the way in which companies manage user-generated content.  The well-known online review site allows members of the public to read and write reviews about local businesses.  Small business owners had alleged that Yelp manipulated reviews based on whether a business paid for advertising on Yelp’s website.  In the trial court we had obtained dismissal by combining a motion for failure to state an actionable claim with one for lack of standing, a strategy that broadened the evidence we were able to submit.  The Ninth Circuit accepted our key arguments on appeal and upheld the dismissal with prejudice, ruling that plaintiffs had not sufficiently alleged the elements necessary to predicate their claim on allegations of extortion.
• Obtained dismissal with prejudice from the Central District of California of Lanham Act case brought against client Playtex Products, LLC by a competitor to challenge odor control superiority claims on Playtex’s market-leading “Diaper Genie Elite” diaper pails.  Adopting Gibson Dunn’s arguments, the court concluded that plaintiff’s claims were time-barred, by its own admission: Plaintiff suffered sales losses well outside of the applicable statute of limitations.  This win, on the heels of Gibson Dunn’s April 2013 trial victory for Playtex in another competitor’s Lanham Act case, ended the latest round of competitors’ “diaper pail” challenges.
• Just hours before a week-long jury trial was to begin, obtained a complete defense win on all claims for Playtex Products (a division of Energizer Holdings) in a long-running Lanham Act case that challenged advertising statements on Playtex’s Diaper Genie products.  The court granted Playtex’s motion to exclude all of its competitor’s damages evidence on the eve of trial, rejecting its attempts to introduce new damages theories that would have totaled $106.7 million.  Gibson Dunn had previously prevailed in securing a new trial as to liability and damages, resulting in the judge throwing out a $13.6 million verdict reached after a two-week jury trial.

Rights of Publicity Litigation

• Represented a leading toy manufacturer and Hard Rock Cafe International (USA), Inc. in an action brought by the lead singer of The Horrorpops, claiming the Hard Rock Cafe® Rockabilly Barbie® doll violated her rights of publicity and the Lanham Act.
• Represented Lucky Strike Entertainment, LLC in an action brought by a model who appeared in Lucky Strike’s nationwide advertising and promotional media campaign.
• Represented the family of James Dean and its licensing agent, the Curtis Management Group, in a successful federal court trial regarding merchandising and Dean’s right of publicity.

Theft of Ideas Litigation

• Represented FX Networks in a breach of implied-in-fact contract action brought by a former chapter president of the New York Hells Angels, claiming the television series “Sons of Anarchy” was based on his ideas pitched to FX executives.
• Represented Penguin Group in successful defense against claims that an author of a book on the Zodiac serial killer appropriated the research and theories of the killer’s identity developed by a Zodiac hobbyist.
• Represented the estate of Carl Sagan in a theft of idea action brought by Francis Ford Coppola concerning the motion picture Contact.  Obtained summary judgment, which was affirmed on appeal.​

ICANN Arbitrations

Arbitrations with favorable resolutions before the Internet Corporation for Assigned Names and Numbers (ICANN) have included those involving:  

• Foxchannel.com and Alienmovies.com (representing Twentieth Century Fox)
• Tejonindustrialcomplex.com (representing Tejon Ranch)
• uscbookstore.com (representing the University of Southern California)

First Amendment Litigation

• Represented major media organizations (including NBC, CBS, CNN, Fox, The New York Times, Los Angeles Times, Gannett, the Associated Press and The Washington Post) in seeking public access to secret judicial proceedings and records in the California criminal trial against Michael Jackson, and British journalist Martin Bashir and “Tonight Show” host Jay Leno, called as witnesses in the Michael Jackson criminal trial.
• Represented Time Inc. and its reporter Matthew Cooper in connection with U.S. Supreme Court proceedings arising from their refusal to reveal their confidential source information in response to subpoenas from Special Counsel Patrick Fitzgerald in his investigation regarding whether White House officials illegally leaked the name of CIA official Valerie Plame to the press.  (Earlier in the case, Gibson Dunn filed amicus briefs for 25 news organizations and reporters’ and editors’ groups in both the district court and in the District of Columbia Circuit Court of Appeals in support of Time, Cooper and The New York Times reporter Judith Miller, and Time Inc.)
• Represented The New York Times and its reporters Allison Hope Weiner and David Halbfinger in connection with a grand jury investigation of leaked audiotapes of defendant Anthony Pellicano’s conversations with his co-defendants, which were posted on The New York Times website.  Gibson Dunn successfully persuaded the U.S. Department of Justice not to issue subpoenas against the reporters as part of the leak investigation.  We also represented Weiner when she covered the trial for The Huffington Post.  This time, one of the defendants demanded that Weiner be enjoined from disseminating the contents of the audiotapes and turn them over to the court.  Gibson Dunn successfully opposed the request on grounds that it was an unconstitutional effort to chill speech.
• Persuaded a federal district court, on behalf of The Wall Street Journal, to overturn the largest libel verdict in history ($222 million) based on lack of evidence and “serious misconduct” of the plaintiff during discovery and trial, and devised a strategy that caused the plaintiff to dismiss its case entirely.
• Represented 13 major media organizations (including the Associated Press, NBC, CBS, CNN, Fox, The Wall Street Journal, The New York Times, The Washington Post, and the Los Angeles Times) in obtaining public access to secret judicial proceedings and records throughout the grand jury investigation conducted by Independent Counsel Kenneth W. Starr concerning the conduct of President Clinton and Monica Lewinsky.​
• Represented Dow Jones, successfully briefing and arguing a motion for summary judgment in a federal court libel action against Professor Rodney Smolla by a Texas stockbroker suing over a Barron’s article, “Nest Egg Cracked.”
• Represented a major media organization as lead counsel in a Louisiana defamation, privacy and newsgathering tort action arising from an exposé of Russian baby adoptions.  We defeated a privacy-based request for a prior restraint in 1998; plaintiff was later indicted and pleaded guilty to federal immigration felony.

Ownership/Founders Litigation

• Won a major victory for Facebook and its founder Mark Zuckerberg in a breach of contract case filed by Paul Ceglia, who claimed he was entitled to an 84% ownership stake in Facebook based on a purported 2003 contract.  After being retained to replace another law firm, we uncovered evidence of fraud and a forgery scheme that resulted in the plaintiff’s arrest on federal felony charges.  In response to our motion to dismiss Ceglia’s breach of contract case, a federal magistrate judge ruled the lawsuit a fraud that should be dismissed with prejudice.  The federal judge presiding over the case adopted that ruling, dismissing the case with prejudice based on Ceglia’s lies, forgeries and litigation misconduct.  We then secured Second Circuit affirmance.
• Representing Square, Inc. and its two co-founders, Jack Dorsey and Jim McKelvey, in connection with claims filed in federal court in St. Louis, Missouri, that they breached an alleged oral joint venture agreement to form the innovative company.  Square is a major technology start-up that revolutionized credit card payments by allowing users to accept credit cards using their mobile devices.
• Representing Yik Yak, Inc. and its two co-founders, Tyler Droll and Brooks Buffington, in connection with claims filed in state court in Georgia that they breached an alleged partnership/joint venture agreement that governs a popular mobile application, Yik Yak, an anonymous-messaging app that has spread rapidly across college campuses.

Other Litigation

• Filed and successfully settled a challenge to the constitutionality of certain Pennsylvania law provisions concerning online wagering on horse races, on behalf of Churchill Downs, Incorporated, host of the Kentucky Derby, and its online wagering subsidiary, TwinSpires.com, in the Commonwealth Court of Pennsylvania.  The challenged provisions allowed only in-state racetracks to apply for licenses to accept wagers on horse races from Pennsylvanians, and imposed a 10% tax on any such wagers accepted by an unlicensed entity.  The settlement, reached after oral argument on an application for a preliminary injunction, achieved Churchill Downs’ goal of replacing the punitive 10% tax with the same 2.3% tax paid by in-state racetracks on online wagers.
• Secured affirmance from the California Court of Appeal of summary judgment for Lawrence Ng, co-founder of oversee.net, a multimillion-dollar Internet marketing business that oversees and monitors over 600,000 domain names. Plaintiff co-founder sued in connection with Mr. Ng’s decision to sell his shares to a private equity firm, alleging breach of fiduciary duty as a company director for failing to consider an allegedly superior offer for all outstanding company shares.  The trial court granted summary judgment based on Gibson Dunn’s argument that plaintiff was precluded from bringing the lawsuit because of a previous action he had brought against Mr. Ng in Delaware but then dismissed with prejudice so that he could participate in the sale to the private equity firm.
• Secured the voluntary dismissal in the Central District of California of a shareholder derivative suit against Conversant, Inc. (formerly known as ValueClick, Inc.), its directors and officers.  The suit was prompted by the company’s announcement of a major write-down of a note receivable taken in connection with the sale of its lead generation business unit as well as a significant drop in revenues and income from its media segment business. The complaint largely copied similar allegations in a securities class action filed against the company that also was voluntarily dismissed.  Shortly after Gibson Dunn moved to dismiss the derivative action for failure to allege demand futility as required by Delaware law, plaintiff’s counsel voluntarily dismissed.
• Obtained from the Delaware Supreme Court a rare expedited ruling from the bench reversing an injunction of the Delaware Chancery Court against an $8.3 billion stock repurchase transaction involving client Vivendi S.A. and software publisher Activision Blizzard, Inc.  A shareholder suit sought expedited proceedings to prevent closing of the transaction, in which Vivendi had agreed to sell most of its majority ownership stake in Activision back to the company and a consortium of investors.  The Delaware Supreme Court’s ruling reversing the injunction and remanding the case allowed the transaction to proceed.
• Successfully opposed an effort to enjoin a stockholder vote on Ameristar Casinos, Inc.’s proposed merger with Pinnacle Entertainment, Inc.  Ameristar’s Board of Directors had analyzed and rejected the idea of remaining independent and restructuring the company as a real estate investment trust (REIT).   Plaintiffs alleged the Board breached its fiduciary duty to stockholders and sought a preliminary injunction on the vote, arguing that Ameristar’s definitive proxy statement filed with the SEC omitted certain material information provided by financial advisors regarding the “upside” of a REIT transaction.  The court denied the motion, agreeing with Gibson Dunn that plaintiffs had not established a likelihood of success on the merits of their disclosure claim.
• Secured dismissal with prejudice of all claims against the directors of Hewlett-Packard in a shareholder derivative suit arising out of the termination of former CEO Mark Hurd, and related claims of breach of fiduciary duty lodged against HP’s board of directors.  Plaintiff made demand on HP to bring claims against the directors for, among other things, violating their duty of oversight, making false statements in HP’s annual proxy statements, and approving an improper severance deal for Mr. Hurd when he was forced to step down as CEO following a personal scandal.  In response, HP conducted an internal investigation and concluded that the directors had not engaged in any wrongful conduct.  Plaintiff sued, claiming that his demand was wrongfully refused, and that HP’s independent committee, in-house and outside counsel had engaged in a “whitewash” investigation designed to exonerate the board and management.  The court dismissed the plaintiff’s original as well as amended complaints and denied further leave to amend.
• Won denial of class certification in a securities action against client Belo Corp. and certain officers and directors arising from acknowledged circulation overstatements at a flagship newspaper, the Dallas Morning News.  The Fifth Circuit affirmed, accepting Gibson Dunn’s argument that the “corrective disclosure” included negative news unrelated to the circulation overstatement and that plaintiffs had failed to prove that the overstatement-related news, and not the unrelated negative news, caused a significant amount of the stock price decline that followed the disclosure.  
• Obtained dismissal from a high-profile shareholder class action for client Vivendi, permitting it to complete its multibillion-dollar Business Combination Agreement with Activision, Inc. to form Activision Blizzard.
• Won dismissal of Internet privacy class action filed against Specific Media, Inc. on grounds that the plaintiffs lacked standing to bring the suit under Article III of the U.S. Constitution.  The case was brought as a putative class action by a group of plaintiffs who claimed injury as the result of Specific Media’s alleged placement of Adobe “flash cookies.”  The ruling appears to be the first decision in an Internet privacy class action finding that plaintiffs failed to allege sufficient injury to establish standing.  ​