Up in Armas: Yesterday Movie Trailer Turned Lawsuit
The goal of the movie trailer has always been to give the audience a taste for an upcoming movie so he or she decides to buy a ticket and watch the entire movie. Now, in the internet era, trailers are widely available on sites like YouTube, even after movies are out of the theaters. This is because streaming services make so many movies available to so many potential viewers all the time. I guess it should not be a surprise then that we now have a lawsuit brought by a couple of disappointed movie-watchers who felt duped by a trailer.
The lawsuit is a class-action lawsuit filed in federal court in California against Universal Pictures, the production and distribution company who released the 2019 film, Yesterday, the subject of this suit. This headline caught my eye because I did see this film (it was actually one of the last films I saw in theaters pre-pandemic). If you know nothing about this film, it concerns a struggling musician who gets knocked unconscious in a bus accident. He awakes in a world where The Beatles have not existed as we know them. Therefore, he decides to hold out The Beatles’ songs as his own, rising to worldwide stardom. Interesting premise, right?
The two plaintiffs in this action each paid approximately $3.99 to stream Yesterday. Apparently, the only reason they chose to stream this film is that the actress, Ana de Armas, appeared in the trailer. On a casual viewing of the film’s trailer, it is true that Ana de Armas appears, and she appears in more than a few shots. The problem for these Ana de Armas-super fan-plaintiffs? She is not in the movie. Her failure to appear in the movie frustrated these gentlemen enough to file a federal lawsuit. They must be pretty big fans.
The general thrust of the causes of action in this suit are false and deceptive advertising and other related claims. While this all seems a little silly, it does make this lawyer at least wonder whether the trailer is in fact false, misleading or deceptive. Basically, the filmmakers decided to cut Ana de Armas’ scenes after the trailer was put out. They claim to have done it because test audiences did not like the storyline that she was part of in the movie, but you have to figure that the filmmakers considered the fact that some people would want those scenes in the final cut. They probably just assumed no one would get upset enough to sue about it.
This is an interesting case study for the class action lawsuit that requires certain criteria to be satisfied in order for a purported class to be certified. By bringing this class action, the plaintiffs claim that at least 100 class members are owed at least $5,000,000. Based on the allegations of the Complaint, because Ana de Armas was not in the actual film, the proposed class were not “provided with any value for their rental or purchase.” To me, this seems like a pretty narrow group of people, i.e. those who are such a big fan of an actress that they simply get no value out of a movie in which she was supposed to appear but does not.
In the end, I will be curious to see how it plays out, but, again, it still does make me wonder if the trailer would be considered legally misleading in terms of applicable consumer protection statutes. For at least the two named plaintiffs, you have to wonder if it is worth the fight to simply get your $3.99 rental fee back. As lawyers, this is something we often deal with in looking at potential cases – principal can be an expensive thing to vindicate.
Biden Administration Issues New Executive Order Requiring Project Labor Agreements
On February 4, 2022 in Upper Marlboro, Maryland, President Biden signed an Executive Order requiring the use of Project Labor Agreements (PLAs) on federal construction projects above $35 million. The construction projects to which the Order applies include “construction, reconstruction, rehabilitation, modernization, alteration, conversion, extension, repair, or improvement of buildings, structures, highways, or other real property.” The Administration stated that the Executive Order could affect as much as $262 billion in federal government construction contracting. This new Executive Order is only applicable to federal procurement.
The Executive Order states that “in awarding any contract in connection with a large-scale construction project, or obligating funds pursuant to such a contract, agencies shall require every contractor or subcontractor engaged in construction on the project to agree, for that project, to negotiate or become a party to a project labor agreement with one or more appropriate labor organizations.” Pursuant to the Order, the PLA’s must “allow all contractors and subcontractors on the construction project to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements” and contain guarantees against strikes, lockouts, and similar job disruptions; set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement; provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and fully conform to all statutes, regulations, Executive Orders, and Presidential Memoranda.
The Executive Order does allow for exceptions under certain circumstances. A “senior official” within an agency may grant an exception from the requirements of the Order for a particular contract for one of the following reasons: (1) A PLA would not advance the Federal Government’s interests in achieving economy and efficiency in Federal procurement because the project is of short duration and lacks operational complexity; the project will involve only one craft or trade; the project will involve specialized construction work that is available from only a limited number of contractors or subcontractors; or the agency’s need for the project is of such an unusual and compelling urgency that a project labor agreement would be impracticable; (2) Based on an inclusive market analysis, requiring a PLA would substantially reduce the number of potential bidders so as to frustrate full and open competition and (3) Requiring a PLA would otherwise be inconsistent with statutes, regulations, Executive Orders, or Presidential Memoranda.
The Executive Order became effective immediately and also revokes prior Executive Order 13502, which was issued on February 6, 2009 by President Obama addressing federal procurement PLA’s If you need any assistance with this new Executive Order or Project Labor Agreements please contact any of our attorneys in the Labor & Employment, Government Contracts or Construction practice groups.
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