What a difference a global pandemic can make.
Almost nine months after coming up short in its long battle with Disney-owned Fox over snatching two executives back in 2016, Netflix is climbing back in the ring to start the whole thing up again with an appeal that kicked off tonight.
“This case is about Fox’s abusive behavior in its quest to curtail its employees’ freedom to seek new and better opportunities,” says the streamer in an opening brief submitted late Wednesday to the 2nd District Court of Appeal (READ IT HERE).
Citing a number of “key, threshold legal” errors with the December 2019 final ruling by Judge Marc Gross, the now very establishment Netflix is widening its scope to battle the “Hollywood establishment” and its “dim view of employee mobility” in the otherwise free-to-be me Golden State.
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This all started back in September 2016, when Fox went after the streamer alleging it had illegally poached now-Netflix promotions and drama programming development bigwigs Marco Waltenberg and Tara Flynn. And, in the process, encouraged the duo to shatter their employment contracts. In short order, Netflix filed a counter-suit, proclaiming that Fox had actually engaged in unlawful and anti-competitive business practices itself.
Somewhere amidst visits to various courtrooms, then-Disney CEO Bob Iger and Rupert Murdoch’s $71.3 billion deal for the House of Mouse to acquire a large slab of Fox’s assets occurred, becoming official in March 2019. If you had bet then that Disney would wash its hands of the whole thing, you’d be out a few bucks. Disney doubled down and looked to have slammed Netflix to the mat, which brings us to today’s new showdown.
“Fox locks in its employees by conditioning modest pay raises and continued employment on the employee agreeing to a multiyear, fixed-term contract, typically with additional, multiyear options that Fox alone can exercise,” the slightly redacted filing notes. “Fox pairs that fixed term with an unlawful injunctive-relief provision that Fox uses to threaten employees who wish to leave into serving out the full term of the contract. And its contracting practices—notably, browbeating employees into accepting these terms, and threatening them if they don’t—have the purpose and effect of limiting employee mobility. As a result, Fox employees’ only hope for leaving is that a more enticing opportunity will line up with the expiration of their contract (and Fox’s option period).”
“The Court should vacate summary adjudication in favor of Fox on Fox’s own UCL claims, or at a minimum vacate the injunction; and it should vacate summary adjudication against Netflix on its cross-claims,” the streamer’s Orrick, Herrington & Sutcliffe LLP conclude.
Attorney Daniel Petrocelli, who represented Disney/Fox, did not respond to a request for comment on tonight’s filing. Netflix is in a similar suit with ViacomCBS over snagging some of its staff a few years back, too …though no one there is anywhere near an appeal yet. And this one… well, clearly Poachamania 2020 is on!