Case 2:19-cv-01862-GW-PJW Document 71 Filed 10/28/19 Page 1 of 17 Page ID #:1014

1 DANIEL M. PETROCELLI (S.B. #97802)

dpetrocelli@omm.com
2 DREW E. BREUDER (S.B. #198466)
dbreuder@omm.com
3 O’MELVENY & MYERS LLP
1999 Avenue of the Stars, 8th Floor
4 Los Angeles, CA 90067-6035
Telephone: (310) 553-6700
5 Facsimile: (310) 246-6779
6 THEODORE J. BOUTROUS JR. (S.B. #132099)
tboutrous@gibsondunn.com
7 NATHANIEL L. BACH (S.B. #246518)
nbach@gibsondunn.com
8 GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
9 Los Angeles, CA 90071-3197
Telephone: (213) 229-7804
10 Facsimile: (213) 229-6804
11 Attorneys for Defendant Home Box Office, Inc.
12 UNITED STATES DISTRICT COURT
13 CENTRAL DISTRICT OF CALIFORNIA
14 OPTIMUM PRODUCTIONS, a Case No. 2:19-cv-01862-GW-PJW
California corporation; and JOHN
15 BRANCA and JOHN MCCLAIN, in Hon. George H. Wu
the respective capacities as CO-
16 EXECUTORS OF THE ESTATE OF DEFENDANT HOME BOX
MICHAEL J. JACKSON, OFFICE, INC.’S NOTICE OF
17 MOTION AND MOTION TO STAY
ORDER COMPELLING
18 Plaintiffs, ARBITRATION PENDING
RESOLUTION OF APPEAL, AND
19 v. MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
20 HOME BOX OFFICE, a Division of THEREOF
TIME WARNER ENTERTAINMENT,
21 L.P., a Delaware Limited Partnership; [PROPOSED ORDER FILED
HOME BOX OFFICE, INC., a CONCURRENTLY HEREWITH]
22 Delaware corporation; DOES 1 through
5, business entities unknown; and Hearing Date: November 7, 2019
23 DOES 6 through 10, individuals Hearing Time: 8:30 a.m.
unknown,
24
Defendants.
25
26
27
28
HBO’S MOTION TO STAY
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1 TO THIS COURT, ALL PARTIES, AND THEIR ATTORNEYS OF

2 RECORD:
3 Please take notice that on November 7, 2019, at 8:30 a.m., in Courtroom 9D
4 of the above-captioned court, located at 350 West 1st Street, Los Angeles,
5 California 90012, or as soon thereafter as may be heard, Defendant Home Box
6 Office, Inc. (“HBO”) will, and hereby does, move the Court for an order staying
7 enforcement of the Court’s order compelling arbitration until resolution of HBO’s
8 appeal of that order. See Dkts. 40, 55.
9 This Motion is made on the ground that all factors to be considered weigh in
10 favor of a stay, and is based on this notice, the attached memorandum of points and
11 authorities, the papers, pleadings, and evidence on file in this case, and any such
12 additional papers and arguments as may be presented before or at the hearing of this
13 matter. This Motion is made following the conference of counsel pursuant to L.R.
14 7-3, which took place in Court on October 21, 2019.
15
Dated: October 28, 2019 O’MELVENY & MYERS LLP
16 GIBSON, DUNN & CRUTCHER LLP
17
By: /s/ Daniel M. Petrocelli
18 Daniel M. Petrocelli
19
20 By: /s/ Theodore J. Boutrous Jr.
Theodore J. Boutrous Jr.
21
22 Attorneys for Defendant Home Box
Office, Inc.
23
24
25
26
27
28
HBO’S MOTION TO STAY
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1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ........................................................................................... 1
4 II. BACKGROUND ............................................................................................. 2
5 III. LEGAL STANDARD ..................................................................................... 4
6 IV. ARGUMENT .................................................................................................. 4

7 A. The Court Should Stay Enforcement of Its Order Compelling

Arbitration Pending Resolution of HBO’s Appeal. .............................. 4
8
1. HBO Will Suffer Irreparable Harm In the Absence of a
9 Stay. ............................................................................................ 4
10 2. HBO’s Appeal Presents “Difficult” Legal Questions On
Which It Is Likely To Prevail. .................................................... 6
11
3. Plaintiffs Will Not Be Substantially Injured By A Stay. ............ 9
12
4. The Public Interest Weighs In Favor Of A Stay....................... 10
13
V. CONCLUSION ............................................................................................. 11
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
HBO’S MOTION TO STAY
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1 TABLE OF AUTHORITIES
2 Page(s)
3 CASES
4 Brown v. Wal-Mart Stores, Inc.,
5 2012 WL 5818300 (N.D. Cal. Nov. 15, 2012) ...................................................... 9
6 Chronicle Pub. Co. v. Nat’l Broad. Co.,
7 294 F.2d 744 (9th Cir. 1961) ............................................................................... 10

8 Cooper Cos. v. Transcon. Ins. Co.,

31 Cal. App. 4th 1094 (1995) ................................................................................ 6
9
10 Divxnetworks, Inc. v. Gericom AG,
2007 WL 4538623 (S.D. Cal. Dec. 19, 2007) ............................................... 4, 7, 8
11
Dorsey v. Nat’l Enquirer, Inc.,
12 973 F.2d 1431 (9th Cir. 1992) ............................................................................... 5
13
Elrod v. Burns,
14 427 U.S. 347 (1976) .......................................................................................... 1, 6
15 G & V Lounge, Inc. v. Mich. Liquor Control Com’n,
16 23 F.3d 1071 (6th Cir. 1994) ............................................................................... 11
17 General Teamsters Union Local No. 439 v. Sunrise Sanitation Servs
18 Inc., 2006 WL 2091947 (E.D. Cal. July 26, 2006) ............................................... 7

19 Good Gov’t Group of Seal Beach, Inc. v. Sup. Ct,

22 Cal. 3d 672 (1978) ............................................................................................ 5
20
21 Gustavson v. Mars, Inc.,
2014 WL 6986421 (N.D. Cal. Dec. 10, 2014) ...................................................... 9
22
Harris v. Tomcak,
23
94 F.R.D. 687 (E.D. Cal. 1982) ............................................................................. 5
24
Immuno A.G. v. Moor-Jankowski,
25 145 A.D. 2d 114 (1st Dep’t 1989) ......................................................................... 5
26
Just Film, Inc. v. Merchant Servs., Inc.,
27 2011 WL 2433044 (N.D. Cal. June 13, 2011) ...................................................... 8
28
HBO’S MOTION TO STAY
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1 TABLE OF AUTHORITIES
(continued)
2 Pages

3 Karaduman v. Newsday, Inc.,

51 N.Y.2d 531 (1980) ............................................................................................ 5
4
5 Klein v. City of San Clemente,
584 F.3d 1196 (9th Cir. 2009) ..................................................................... 1, 6, 11
6
Lair v. Bullock,
7
697 F.3d 1200 (9th Cir. 2012) ............................................................................... 4
8
Lamps Plus, Inc. v. Varela,
9 139 S. Ct. 1407 (2019) .......................................................................................... 8
10
Litton Fin. Printing Div. v. NLRB,
11 501 U.S. 190 (1991) .............................................................................................. 8
12 Lockyer v. Mirant Corp.,
13 398 F.3d 1098 (9th Cir. 2005) ............................................................................... 9
14 Masson v. New Yorker Magazine, Inc.,
15 832 F. Supp. 1350 (N.D. Cal. 1993).................................................................. 1, 5

16 Meijer, Inc. v. Abbott Laboratories,

2009 WL 723882 (N.D. Cal. Mar. 18, 2009) ...................................................... 10
17
18 Mezhbein v. Salazar,
2008 WL 1908533 (C.D. Cal. Apr. 27, 2008) ....................................................... 4
19
Nat. Res. Def. Council, Inc. v. Sw. Marine Inc.,
20 242 F.3d 1163 (9th Cir. 2001) ............................................................................... 4
21
New York Times v. Sullivan,
22 376 U.S. 254 (1964) ........................................................................................ 4, 10
23 Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers
24 Union, AFL-CIO,
430 U.S. 243 (1977) .......................................................................................... 7, 8
25
26 Orange Belt Dist. Council of Painters No. 48 v. Standard Drywall Inc.,
1979 WL 1943 (S.D. Cal. Oct. 16, 1979).............................................................. 9
27
28
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1 TABLE OF AUTHORITIES
(continued)
2 Pages

3 Sammartano v. First Judicial Dist. Ct.,

303 F.3d 959 (9th Cir. 2002) ............................................................................... 11
4
5 Stop H-3 Ass’n v. Volpe,
353 F. Supp. 14 (D. Haw. 1972) ........................................................................... 7
6
Suntrust Bank v. Houghton Mifflin Co.,
7
268 F.3d 1257 (11th Cir. 2001) ........................................................................... 11
8
Tribal Village of Akutan v. Hodel,
9 859 F.2d 662 (9th Cir. 1988) ............................................................................... 10
10
Westlands Water Dist. v. Natural Resources Defense Council,
11 43 F.3d 457 (9th Cir. 1994) ................................................................................. 10
12 Whaley v. Pac. Seafood Grp.,
13 2017 WL 4973193 (D. Ore. Nov. 1, 2017) ................................................... 4, 8, 9
14 STATUTES
15 Cal. Penal Code § 11164 .......................................................................................... 10
16
RULES
17
Fed. R. App. Proc. 8(a)(1) .......................................................................................... 4
18
19
20
21
22
23
24
25
26
27
28
HBO’S MOTION TO STAY
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1 MEMORANDUM OF POINTS AND AUTHORITIES

2
I. INTRODUCTION
3
The Court should stay Plaintiffs’ effort to force Home Box Office, Inc.
4
(“HBO”) to arbitrate their meritless claims attacking Leaving Neverland based on a
5
more than 27-year-old, expired contract. HBO has timely appealed the Court’s
6
order granting Plaintiffs’ motion to compel arbitration (Dkts. 40, 55, the “Order”),
7
and the Ninth Circuit has already set a briefing schedule for HBO’s appeal. There
8
is no rush to arbitrate Plaintiffs’ claims based on that 1992 Agreement, and a stay of
9
the Court’s Order pending resolution of HBO’s appeal is not only appropriate under
10
the test employed by the Ninth Circuit, but critical to protecting the fundamental
11
constitutional rights threatened by Plaintiffs’ effort to arbitrate.
12
First, and most critically, HBO will be irreparably harmed without a stay
13
because Plaintiffs’ demand to immediately arbitrate seeks to provide them a
14
perpetual forum to attack HBO’s speech about Michael Jackson and represents a
15
serious threat to HBO’s exercise of its free speech rights to continue to distribute an
16
important, award-winning documentary like Leaving Neverland. See Klein v. City
17
of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (“[t]he loss of First
18
Amendment freedoms, for even minimal periods of time, unquestionably
19
constitutes irreparable injury”) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
20
And fundamental First Amendment rights are threatened when media defendants
21
like HBO are forced into prolonged and costly litigation over the exercise of their
22
constitutional rights. See Masson v. New Yorker Magazine, Inc., 832 F. Supp.
23
1350, 1376 (N.D. Cal. 1993), aff’d, 85 F.3d 1394 (9th Cir. 1996) (recognizing the
24
“‘chilling effect’ of any protracted litigation” when it comes to “important First
25
Amendment” rights). Second, a stay is warranted because of the difficult legal
26
issues at play here, and courts grant stays pending appeal in such situations.
27
Moreover, HBO is likely to prevail on its appeal given Plaintiffs’ efforts to invoke
28
HBO’S MOTION TO STAY
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1 an expired arbitration agreement and hold HBO hostage to it in perpetuity. Third, a

2 stay will not will not prejudice nor substantially injure Plaintiffs, who seek only
3 money damages. Fourth, the public interest favors a stay given the strong interests
4 in protecting the exercise of First Amendment rights and promoting expressive,
5 newsworthy works exploring issues of public concern such as Leaving Neverland.
6 Therefore, because there is no urgency for an arbitration to begin now—
7 particularly given the ongoing harm to HBO by forcing it to defend the exercise of
8 its First Amendment rights—the Court should preserve the status quo and issue a
9 stay of its order pending resolution of HBO’s appeal.
10
II. BACKGROUND
11
On July 22, 1992, TTC Touring Corporation (“TTC”) and Home Box Office,
12
a division of Time Warner Entertainment Co. L.P. (“TWE”)—the alleged
13
predecessors of Plaintiff Optimum Productions and HBO, respectively—entered
14
into an agreement (the “1992 Agreement”) relating to the production and television
15
exhibition of Mr. Jackson’s live concert performance in Bucharest, Romania. Dkt.
16
18, Ex. B. The 1992 Agreement granted TWE a license to exhibit the Bucharest
17
performance “one time only” on October 10, 1992, “and at no other time.” Id. at 2.
18
In consideration for these rights, TWE paid TTC a license fee, the last portion of
19
which was to be delivered within five days after the delivery of the program to
20
TWE (with delivery no later than October 8, 1992). Id. at 1–2. The longest any
21
performable rights or obligations lasted under the 1992 Agreement was through the
22
“Holdback Period”—defined as the 12-month period immediately following the
23
October 10, 1992, exhibition date. Id. at 2, 5–6. After the conclusion of the
24
Holdback Period on October 10, 1993, the 1992 Agreement was fully performed.
25
The 1992 Agreement also incorporated a confidentiality rider as an addendum to
26
the main contract (the “Confidentiality Provisions”), which includes the non-
27
disparagement sentence that is the basis of the claims that Plaintiffs seek to
28
HBO’S MOTION TO STAY
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1 arbitrate.
2 Nearly 26 years after the Holdback Period concluded, Leaving Neverland
3 premiered on HBO. Leaving Neverland tells the personal stories of two individuals
4 who allege that as young boys they were sexually abused by Mr. Jackson for years.
5 Leaving Neverland premiered on HBO on March 3, 2019, in the midst of a
6 nationwide cultural debate about sexual abuse and harassment, and whether such
7 misconduct had for too long been tolerated or suppressed in favor of protecting the
8 wealthy, famous, and powerful.
9 On February 21, 2019, Plaintiffs filed a petition to compel arbitration in Los
10 Angeles County Superior Court, which HBO removed to this Court. Dkts. 1, 1-1.
11 Plaintiffs alleged that HBO’s exhibition of Leaving Neverland violated the non-
12 disparagement sentence of the 1992 Agreement and sought to compel arbitration
13 under that agreement’s arbitration clause. On April 15, 2019, Plaintiffs filed a
14 motion to compel arbitration. Dkt. 18. On July 15, 2019, the Court indicated that it
15 “would” find Plaintiffs’ claims arbitrable. Dkt. 40 at 6. However, the Court
16 declined to enter an order compelling arbitration at that time because it also found
17 that even the “initiation of litigation” by Plaintiffs may have “trigger[ed] First
18 Amendment concerns,” and noted that “Plaintiffs’ arbitration action is seeking to
19 recover damages based upon [HBO’s] broadcasting [of] a documentary.” Id. at 9.
20 In light of these First Amendment considerations, the Court invited HBO to file an
21 anti-SLAPP motion, Dkt. 40, and HBO did so, Dkt. 46. On September 20, 2019,
22 the Court issued consolidated final rulings, granting Plaintiffs’ motion to compel
23 arbitration and denying HBO’s anti-SLAPP motion. Dkt. 55. On October 21,
24 2019, HBO timely filed a notice of appeal of the order pursuant to 9 U.S.C. §
25 16(a)(3). Dkt. 64. The Ninth Circuit has set a briefing schedule for HBO’s appeal,
26 with HBO’s final brief due no later than March 20, 2020. Dkt. 69. In a joint report
27 submitted to the Court on October 22, 2019, HBO informed the Court that it would
28 seek a stay of the Order pending completion of its appeal. Dkt. 65.
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1 III. LEGAL STANDARD

2 Courts have “discretion to grant a stay of arbitration pending appeal,
3 applying the standards for granting a preliminary injunction.” See Whaley v. Pac.
4 Seafood Grp., 2017 WL 4973193, at *1 (D. Ore. Nov. 1, 2017); Divxnetworks, Inc.
5 v. Gericom AG, 2007 WL 4538623, at *2 (S.D. Cal. Dec. 19, 2007) (court has
6 “discretion to stay” order compelling arbitration pending appeal); see also Fed. R.
7 App. Proc. 8(a)(1) (“A party must ordinarily move first in the district court for … a
8 stay of the judgment or order of a district court pending appeal.”).1 In exercising
9 that discretion, the Court considers four factors: (1) whether the applicant will be
10 irreparably injured absent a stay; (2) whether the stay applicant has made a strong
11 showing that it is likely to succeed on the merits; (3) whether issuance of the stay
12 will substantially injure the other parties interested in the proceeding; and (4) where
13 the public interest lies. Whaley, 2017 WL 4973193, at *1, citing Lair v. Bullock,
14 697 F.3d 1200, 1203 (9th Cir. 2012). All factors here weigh in favor of a stay, and
15 the Court should grant HBO’s Motion.
16 IV. ARGUMENT
17 A. The Court Should Stay Enforcement of Its Order Compelling
Arbitration Pending Resolution of HBO’s Appeal.
18
1. HBO Will Suffer Irreparable Harm In the Absence of a
19 Stay.
20
Fifty-five years ago, the United States Supreme Court recognized in New
21
York Times v. Sullivan that the mere threat of “expens[ive]” but meritless litigation
22
can have a “self-censor[ing]” effect that may improperly deter “would-be critics of
23
official conduct . . . from voicing their criticism.” 376 U.S. 254, 279 (1964). Since
24
then, courts around the country, including the Ninth Circuit, “have recognized the
25
1
26 The Court retains jurisdiction to consider this Motion following HBO’s notice of
appeal. See Nat. Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166
27 (9th Cir. 2001) (“The district court retains jurisdiction during the pendency of an
appeal to act to preserve the status quo.”); Mezhbein v. Salazar, 2008 WL 1908533,
28 at *1 (C.D. Cal. Apr. 27, 2008) (“Even though Respondent has filed a notice of
appeal, this Court retains jurisdiction to consider a motion to stay proceedings.”).
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1 importance of protecting a free and vigorous press” and reinforced the fundamental
2 principle that “because unnecessarily protracted litigation would have a chilling
3 effect upon the exercise of First Amendment rights, speedy resolution of cases
4 involving free speech is desirable.” See Dorsey v. Nat’l Enquirer, Inc., 973 F.2d
5 1431, 1435 (9th Cir. 1992) (quoting Good Gov’t Group of Seal Beach, Inc. v. Sup.
6 Ct, 22 Cal. 3d 672, 685 (1978), cert. denied, 441 U.S. 961 (1979); Masson, 832 F.
7 Supp. at 1376 (confirming that courts should guard against the “‘chilling effect’ of
8 any protracted litigation” where “important First Amendment” rights are
9 implicated). Moreover, as “the threat of litigation itself may have a chilling effect
10 on the exercise of free speech . . . pretrial disposition, where possible, is desirable.”
11 Harris v. Tomcak, 94 F.R.D. 687, 696 n.12 (E.D. Cal. 1982).
12 Litigation against media organizations such as HBO is not only costly, but
13 highly disruptive, taking filmmakers and others away from their creative work to
14 participate in the defense of such claims. See Immuno A.G. v. Moor-Jankowski,
15 145 A.D. 2d 114, 128 (1st Dep’t 1989), aff’d, 74 N.Y.2d 548 (1989), vacated on
16 other grounds 497 U.S. 1021 (1990), aff’d, 77 N.Y.2d 235, cert. denied, 500 U.S.
17 954 (1991) (“To unnecessarily delay the disposition of a libel action is not only to
18 countenance waste and inefficiency but to enhance the value of such actions as
19 instruments of harassment and coercion inimical to the exercise of First
20 Amendment rights.”); Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 545 (1980)
21 (internal citation omitted) (“The threat of being put to the defense of a lawsuit . . .
22 may be as chilling to the exercise of First Amendment freedoms as fear of the
23 outcome of the lawsuit itself.”); cf. Dkt. 40 at 9 (“[T]he initiation of the litigation
24 itself can trigger First Amendment concerns.”). Forcing HBO to arbitrate now,
25 prior to resolution of HBO’s appeal, would have precisely that improper disruptive
26 effect by requiring it to expend time and resources defending itself for exercising its
27 First Amendment rights.
28 Moreover, HBO will suffer irreparable harm to its First Amendment rights in
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1 the absence of a stay. Here, Plaintiffs have succeeded in obtaining an order to hold
2 HBO hostage to an arbitration over an unquestionably fully performed and thus
3 expired agreement, and seek a perpetual forum in arbitration to attempt to police
4 and chill HBO’s speech. Cf. Cooper Cos. v. Transcon. Ins. Co., 31 Cal. App. 4th
5 1094, 1103 (1995) (“[C]onstruing a contract to confer a right in perpetuity is clearly
6 disfavored.”). Plaintiffs’ motion to compel arbitration—and the Court’s grant
7 thereof—in and of itself harms HBO’s ability to speak freely about Mr. Jackson.
8 Such harm is irreparable and weighs heavily in favor of a stay. Klein, 584 F.3d at
9 1208 (“Both this court and the Supreme Court have repeatedly held that ‘[t]he loss
10 of First Amendment freedoms, for even minimal periods of time, unquestionably
11 constitutes irreparable injury.’” (quoting Elrod, 427 U.S. at 373)).
12 Indeed, given Plaintiffs’ demand, not only must HBO submit to arbitration
13 over its distribution of Leaving Neverland, but HBO must be mindful that any
14 additional commentary it might want to exhibit about Leaving Neverland or Mr.
15 Jackson may subject it to additional claims. Others who did business with Mr.
16 Jackson decades ago also could face a similar conundrum, especially those who do
17 not necessarily have the resources to defend against the Estate’s efforts to control
18 the historical narrative about Mr. Jackson. In light of the serious First Amendment
19 concerns presented by Plaintiffs’ effort to force HBO arbitrate their claims,
20 particularly over a 27-year-old expired contract, a stay pending resolution of HBO’s
21 appeal is necessary to prevent the irreparable harm to HBO’s First Amendment
22 rights and afford HBO the opportunity to dispose of Plaintiffs’ claims at the earliest
23 stage possible.
24 2. HBO’s Appeal Presents “Difficult” Legal Questions On
Which It Is Likely To Prevail.
25
In considering whether the moving party has demonstrated a likelihood of
26
success on the merits, courts do not “rigidly apply” that factor because to do so
27
“would require the district court to conclude that it was probably incorrect in its
28
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1 determination on the merits.” Divxnetworks, 2007 WL 4538623 at *3 (citation and

2 quotation marks omitted); see also General Teamsters Union Local No. 439 v.
3 Sunrise Sanitation Servs Inc., 2006 WL 2091947, at *3 (E.D. Cal. July 26, 2006)
4 (same). Rather, courts may properly stay their own orders when they have “ruled
5 on an admittedly difficult legal question and when the equities of the case suggest
6 that the status quo should be maintained.” Divxnetworks, 2007 WL 4538623, at *3
7 (citation omitted); Stop H-3 Ass’n v. Volpe, 353 F. Supp. 14, 16 (D. Haw. 1972)
8 (holding that stays are particularly appropriate where “the trial court is charting new
9 and unexplored ground and the court determines that a novel interpretation of the
10 law may succumb to appellate review”). Here, the issues bound up with Plaintiffs’
11 effort to arbitrate claims over Leaving Neverland based on a 27-year-old contract
12 present precisely the type of “difficult” legal questions sufficient to satisfy this first
13 factor. Indeed, before ruling on Plaintiffs’ motion to compel arbitration, the Court
14 held three separate hearings, issued three separate tentative rulings, asked for
15 supplemental briefing on the issue of arbitrability, confirmed the important First
16 Amendment concerns bound up with Plaintiffs’ request to arbitrate their claims,
17 Dkt. 40 at 9, and invited HBO to file an anti-SLAPP motion. Plaintiffs’
18 unprecedented effort to arbitrate claims arising in 2019 over an expired contract
19 from 1992—and the thorny legal questions such effort raises—satisfies this factor.
20 Moreover, while not necessary for HBO to carry this factor, HBO is likely to
21 succeed on the issues presented in its appeal. For example, although the 1992
22 Agreement was fully performed more than a quarter century ago, Plaintiffs
23 nevertheless argued that the arbitration provision remains fully enforceable against
24 HBO, Dkts. 18, 25, 36, and the Court accepted such argument in issuing its Order,
25 Dkt. 40.2 Nevertheless, Plaintiffs have still not identified any authority in which a
26 2
In granting Plaintiffs’ motion to compel arbitration, the Court found that an
27 arbitration clause may remain in effect after the expiration of the underlying
agreement, relying on the Supreme Court’s decision in Nolde Bros. v. Local No.
28 358, Bakery & Confectionery Workers Union, AFL-CIO, 430 U.S. 243, 252 (1977).
Dkt. 40 at 8. But the circumstances in Nolde Brothers were very different, and not
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1 party was compelled to arbitrate under similar circumstances—i.e., based on a 27-

2 year-old contract that was fully performed fifteenth months after it was entered. To
3 the contrary, the authority presented by HBO confirms that arbitration agreements
4 do not have unlimited life in the absence of a provision so specifying. See Just
5 Film, Inc. v. Merchant Servs., Inc., 2011 WL 2433044, at *4 (N.D. Cal. June 13,
6 2011) (“The dead hand of a long-expired arbitration clause cannot govern
7 forever.”) (emphasis added and internal quotations and citations omitted)).
8 “Although there is a general presumption in favor of arbitrability, it does not apply
9 ‘wholesale in the context of an expired . . . agreement for to do so would make
10 limitless the contractual obligation to arbitrate.’” Id. at *5 (emphasis added)
11 (quoting Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 209 (1991)). Were it
12 otherwise, one party to a long-terminated contract could commence an arbitration
13 on any topic whatsoever, at any time, forcing another party into an arbitration that it
14 could not have reasonably anticipated. Cf. Lamps Plus, Inc. v. Varela, 139 S. Ct.
15 1407, 1415 (2019) (rejecting efforts to expand the Federal Arbitration Act to
16 compel arbitration in ways in which parties did not expressly agree). That is
17 precisely what Plaintiffs improperly attempt to accomplish here.
18 In light of the “difficult” questions presented, Divxnetworks, 2007 WL
19 4538623, at *3, and HBO’s likelihood of success, staying this Court’s Order
20 pending appeal is warranted and indeed the most prudent, equitable course of
21 action, see Whaley, 2017 WL 4973193, at *1 (granting stay of arbitration pending
22 appeal).
23
24
25
26
controlling. The contract in Nolde Brothers had expired just four days before the
27 events giving rise to the litigation. Nolde Bros., 430 U.S. at 247. Here, there is a
26-year gap between full performance and expiration of the 1992 Agreement and
28 Plaintiffs’ attempt to compel arbitration. Here, the Court even noted that “[t]he rule
in Nolde Brothers is not limitless. . . .” Dkt. 40 at 8.
HBO’S MOTION TO STAY
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1 3. Plaintiffs Will Not Be Substantially Injured By A Stay.

2
Plaintiffs will not be prejudiced, much less “substantially injure[d],” in any
3
way by a stay of this Court’s Order pending resolution of HBO’s appeal. Whaley,
4
2017 WL 4973193, at *1. Plaintiffs seek only monetary damages. See Dkt. 1-1 at
5
22–23 (requesting that Plaintiffs be awarded in arbitration “damages . . . which
6
could exceed $100 million” as well as punitive damages). However, “[t]he
7
potential delay in Plaintiff[s’] ability to recover” damages “does not constitute a
8
substantial injury” constituting harm sufficient to deny a stay. Brown v. Wal-Mart
9
Stores, Inc., 2012 WL 5818300 (N.D. Cal. Nov. 15, 2012); see also Gustavson v.
10
Mars, Inc., 2014 WL 6986421, at *3 (N.D. Cal. Dec. 10, 2014) (“[M]ere delay in
11
monetary recovery is an insufficient basis to deny a stay.”), citing Lockyer v.
12
Mirant Corp., 398 F.3d 1098, 1110-12 (9th Cir. 2005).
13
The court’s ruling in Orange Belt Dist. Council of Painters No. 48 v.
14
Standard Drywall Inc., 1979 WL 1943, at *1 (S.D. Cal. Oct. 16, 1979) is
15
instructive. There, the court granted a stay of its order compelling arbitration
16
pending appeal and explained that “[t]he underlying dispute . . . involves a failure to
17
pay money . . . and does not involve the exercise of individual or constitutional
18
rights.” Id. Therefore, the court found that “[a] delay in arbitration would appear
19
to present no irreparable harm.” Id. (noting that the purpose of a stay order is “to
20
preserve the status quo pending appeal” and that “the status quo would be served by
21
delaying arbitration proceedings, with their attendant time and expense, until the
22
appellate court’s resolution of this matter”). Id. This action presents a similar but
23
more compelling case for a stay. Here, Plaintiffs seek only money damages and it
24
is HBO, not Plaintiffs, whose constitutional rights are implicated by being forced to
25
arbitrate claims based on the exercise of their First Amendment rights. Therefore,
26
Plaintiffs will not suffer any “comparable hardship” as a result of the stay. See id.
27
28
HBO’S MOTION TO STAY
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1 Nor would a stay “put Plaintiffs at a strategic disadvantage” because a stay

2 will “last only as long as it takes for the Ninth Circuit panel to issue its opinion.”
3 See Meijer, Inc. v. Abbott Laboratories, 2009 WL 723882, at *4 (N.D. Cal. Mar.
4 18, 2009).3 Here, Plaintiffs seek to bring contract claims for damages allegedly
5 caused by injury to Mr. Jackson’s reputation. Dkt. 1-1 at 23 (seeking damages
6 regarding alleged injury “to the legacy of Michael Jackson”). The commercial
7 effects of Leaving Neverland on Mr. Jackson’s legacy, if any, will be better capable
8 of being determined with more (not less) time to allow those effects to settle.
9 Therefore, a stay will benefit the parties for this reason as well.
10
4. The Public Interest Weighs In Favor Of A Stay.
11
Finally, staying arbitration pending appeal will advance the public interest.
12
Courts consider the public interest only in “certain cases” where that interest is
13
implicated. See Tribal Village of Akutan v. Hodel, 859 F.2d 662, 663 (9th Cir.
14
1988); Westlands Water Dist. v. Natural Resources Defense Council, 43 F.3d 457,
15
459 (9th Cir. 1994) (“If the public interest is involved, the district court must also
16
determine whether the public interest favors the [movant].”). That interest is
17
implicated here. Just as HBO has a strong interest in protecting its own First
18
Amendment rights, see supra, Section IV.A.1, the public has a strong interest in
19
promoting expressive, newsworthy works such as Leaving Neverland; in ensuring
20
that speech of “would-be critics” is not chilled, Sullivan, 376 U.S. at 279; and in
21
protecting and encouraging reporting about sexual abuse, generally, and particularly
22
about sexual abuse of minors, see Cal. Penal Code § 11164 et seq. (imposing
23
mandatory reporting obligation on certain individuals in cases of known or
24
suspected child abuse or neglect). Indeed, Plaintiffs’ effort to arbitrate its claims
25
26
27 3
The Ninth Circuit has found that stays are reasonable even if they last “months, if
28 not years.” Chronicle Pub. Co. v. Nat’l Broad. Co., 294 F.2d 744, 749 (9th Cir.
1961) (affirming grant of stay).
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1 against HBO threaten these principles and will improperly deter and chill third
2 parties’ speech about Mr. Jackson by making them a target of Mr. Jackson’s Estate.
3 The Ninth Circuit has “consistently recognized the ‘significant public
4 interest’ in upholding free speech principles.” Klein, 584 F.3d at 1208 (quoting
5 Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 964, 974 (9th Cir. 2002)
6 (collecting cases)); see also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257,
7 1276 (11th Cir. 2001) (the “public interest is always served in promoting First
8 Amendment values”) (emphasis added); G & V Lounge, Inc. v. Mich. Liquor
9 Control Com’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (noting “it is always in the
10 public interest to prevent the violation of a party’s constitutional rights”). Staying
11 the arbitration pending appeal, therefore, will protect the public interests in
12 maintaining the free exchange of ideas, including those expressed in Leaving
13 Neverland, and in minimizing the threat of costly, time-consuming litigation for
14 critics of public figures.
15
V. CONCLUSION
16
For the reasons set forth herein, the Court should grant HBO’s Motion, and
17
stay enforcement of its order compelling arbitration until HBO’s appeal is resolved.
18
19
Dated: October 28, 2019 O’MELVENY & MYERS LLP
20 GIBSON DUNN & CRUTCHER LLP
21
By: /s/ Daniel M. Petrocelli
22 Daniel M. Petrocelli
23
By: /s/ Theodore J. Boutrous Jr.
24 Theodore J. Boutrous Jr.
25
Attorneys for Defendant Home Box
26 Office, Inc.
27
28
HBO’S MOTION TO STAY
11 CASE NO. 2:19-CV-01862-GW-PJW