Even though Scarlett Johansson is a Japanese tree who lives inside her own ass, I feel a little bit sorry for her at the moment. She just had a baby in a pandemic and she’s dealing with a massive lawsuit which she filed against Disney. And Disney is being sexist as hell about all of it. When I first read through the argument Scarlett and her lawyers are making, I kind of agreed with them and I still feel like Scarlett has a good case, or at least she has a case which will potentially change the way Disney does business with creatives. Disney, of course, wants no part of those conversations publicly or privately. Disney wants to move Scarlett’s lawsuit into binding arbitration.
Disney is pushing back following Scarlett Johansson’s lawsuit against the company for alleged breach of contract over the release of Black Widow. The company filed a motion with the Los Angeles Superior Court on Friday evening to move the lawsuit to binding arbitration in New York, according to court documents obtained by PEOPLE. Arbitration is a confidential process “where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments,” per the American Bar Association.
In response to Friday’s filing, Johansson’s attorney John Berlinski said in a statement, “After initially responding to this litigation with a misogynistic attack against Scarlett Johansson, Disney is now, predictably, trying to hide its misconduct in a confidential arbitration. Why is Disney so afraid of litigating this case in public? Because it knows that Marvel’s promises to give Black Widow a typical theatrical release ‘like its other films’ had everything to do with guaranteeing that Disney wouldn’t cannibalize box office receipts in order to boost Disney+ subscriptions. Yet that is exactly what happened — and we look forward to presenting the overwhelming evidence that proves it.”
Disney’s latest filing disputes that claim and questions Johansson’s Periwinkle Entertainment Inc. for deciding not to name Marvel as a defendant in the lawsuit.
“In a futile effort to evade this unavoidable result (and generate publicity through a public filing), Periwinkle excluded Marvel as a party to this lawsuit — substituting instead its parent company Disney under contract-interference theories. But longstanding principles do not permit such gamesmanship,” Disney said in the filing.
They continued, “The contract does not mandate theatrical distribution — let alone require that any such distribution be exclusive. Moreover, the contract expressly provides that any theatrical-distribution obligations are satisfied by distribution on ‘no less than 1500 screens.’ And even though Black Widow’s release coincided with a global public-health crisis, Marvel made good on its promises. After shifting the original May 2020 release date several times — including at Johansson’s request — the Picture ultimately debuted on July 9, 2021 on more than 30,000 screens.”
The defendant also stated, “Marvel discussed the hybrid-release-pattern decision with Johansson in spring 2021, as the parties were conferring regarding the Picture’s release date. Marvel has assured Johansson that she will be credited with 100% of the Premier Access and PEHV receipts for purposes of the box-office thresholds used to calculate any additional compensation — even though Marvel has no obligation under the Agreement to do so.”
I hope some lawyers chime in here, because I have no idea if Disney would be able to force ScarJo into binding arbitration anyway? Isn’t this Disney saying to the court: we want this to happen behind closed doors, with a gag order in place, and Scarlett shouldn’t get a say in it? Wouldn’t Scarlett have to agree to that, and it couldn’t be forced on her? Yikes. Anyway, Disney keeps insisting that they’re folding in the profits from Premier Access into the box office numbers and Scar’s team keeps saying “no, you’re missing the point, Premier Access depressed the box office numbers.” And she’s right? Is Disney trying to push this into binding arbitration because they think/know that Scarlett actually has a case? Disney already revealed that much in their response to ScarJo – they never would have gone after her in such a sexist way unless they were actually afraid that she had a point.
Photos and posters courtesy of Avalon Red, Disney/Marvel.
My husband is part of a union. Their employer always wants binding arbitration when it’s time to negotiate a new contract.
Fingers crossed for Scarlett. She’s taking on a giant who’s been doing it their way forever. Just ask the past 900 messed up child stars of Disney.
Binding arbitration is pretty much standard now, I am actually really surprised that there isn’t an automatic arbitration clause in her contract. (look at your credit card agreements and cell phone agreements – you’re probably required to participate in arbitration and can’t take the companies to court. also if you have any money invested with a brokerage firm or investment firm you are probably required to submit to arbitration under FINRA, where I worked during law school was a boutique law firm that pretty much did nothing but FINRA arbitrations. You can go to court after the arbitration sometimes but the standard for getting it overturned is really high.) binding arbitration agreements CAN be really problematic because a lot of the times it shifts the power dynamics (so with FINRA, you usually had two industry arbitrators and one non-industry, and you got to select your top 3 choices out of a list of 10 or 15 or so but if its Becks1 vs Deutsche Bank Securities Inc, the arbitrators are going to encounter DBSI again, probably not Becks1, and they don’t want to be struck from any case involving DBSI, i.e. it was hard to get a big settlement in favor of the claimants.) This is all from 10 years ago so the regulations and laws may have changed too.
It’s definitely a power play IMO but it doesn’t sound like Disney is worried about losing the case on the merits, just worried about a lot of the sausage making being made public and the PR involved.
Also, arbitration is not always a bad thing. A lot of times in very complicated cases it can be better because you have someone who is well versed in the specific laws at play and the industry. And for Scarlett specifically, it may not be a bad thing. My first reaction at hearing this news was “they dont have an arbitration clause in the K?” and then “oh so disney is going to pay her.” They don’t want to drag this out in court, even if they think they’ll win, so this way it goes to “arbitration” and gets settled there and Scarlett gets some money but its not all playing out in the courts.
So basically who knows.
Finally just to add – despite what I said in my second comment, I don’t think this necessarily means that Scarlett has a case and that Disney is scared of losing. Her whole point has been that PA depressed the box office numbers, but if the contract did not mandate exclusive theatrical release – and did not mandate theatrical distribution at all – then it seems like the law is in Disney’s favor here.
“The contract does not mandate theatrical distribution — let alone require that any such distribution be exclusive. Moreover, the contract expressly provides that any theatrical-distribution obligations are satisfied by distribution on ‘no less than 1500 screens.’”
I’m interested to know what “theatrical-distribution obligations” means in this context, if the contract did not mandate theatrical distribution. So I think this is more about the sausage-making than Disney afraid they are going to lose based on the terms of the contract.
Anyway I’m back to how I’ve felt about this all along – borrowing a line from Love Story – its not a matter of legality, its a matter of ethics. Disney probably acted according to the terms of the contract, but not in the spirit of the contract and not in a way that would benefit Scarlett at all. It doesn’t mean they would lose in a court of law, but probably in a court of public opinion.
There is .All Marvel employees have it as part of there contracts and it is pretty standard
And going to arbitration is part of her and everybody elses deal at Marvel anyway
just scrub this as I answered in the above post
Disney wants binding arbitration because it does not allow for appeals and Disney gets to choose the arbiter. Arbitration is designed to protect corporations, not individuals. I hope ScarJo successfully fights this.
It is in all Marvels contracts
Good Luck to her. Has anybody ever won vs. The House of Mouse?
Steve Brill!
There definitely is a binding arbitration clause in her contract. A loophole with those is that you can file publicly, but it will be moved to arbitration. Disney will win this motion, but the bad publicity has already happened, which I’m sure was SJ’s team’s plan.
Arbitration is not all bad in this case. She’ll basically negotiate a settlement for some money, and Disney will get to keep that amount secret. Both win/lose to some extent. Almost all contracts these days have an arbitration clause, so it’s not necessarily something shady Disney is pulling. Plus it’s cheaper and faster.
I dunno what it is, but her face irks me. Not a looks thing, just something about it. I can’t figure out who she reminds me of that I dislike.
I can’t with these Disney/marvel movies; you’ve see one, you’ve seen one too many.
I’m not a lawyer, but this feels like Disney just wants to pay to make this go away, and they just want to guarantee Johansson’s silence. There’s no way either side actually wants to test this in court, having nitty gritty details of marvel contracts come out and trying to come up with financial projections based on how much money something could have made. Arbitration seems like it allows everyone to save a little face.
They’ll want to discourage anybody in the future from thinking they can take on Disney and get a big win.
She will lose this. If we werent in a pandemic maybe she could win. But her lawyers can’t prove that they lost anything. Ticket sells are way down in all theatres. So how can her lawyers prove that people would have shown up for her movie. This is going to get me yelled at. But right now women lead movies don’t pull in as many viewers. Yes I know Wonder Woman did. But it’s been the fluke. So that’s a second strike against her. The pandemic changed everything. It’s not going to go back to the way it was any time soon. Every one needs to understand that.
But as we talk here it is just short of $500 m without a release date in China or India
I only hopes this doesn’t mean no more new movies in streaming. It’s been awful not being able or not feeling safe enough to go back to the theater but at least we get to see / rent new releases on Disney+ or HBO max, so I feel I’m not losing much.
If things continue this way, studios are putting a nail in the streaming coffin and everything will be theatre released exclusively.
For 45 days and then they go to streaming as Chapek annouced last week