Wednesday, September 22, 2021

Netflix prevails over claims by lawyers that they were misportrayed in money laundering film

Mossack Fonseca & Co., S.A. v. Netflix Inc., 2020 WL 8509658, No. CV 19-9330-CBM-AS(x) (C.D. Cal. Dec. 23, 2020)

MFSA brought trademark dilution and false advertising claims against Netflix for its portrayal in the film “The Laundromat.” (It’s about money laundering.) No. (Libel/false light claims aren’t addressed in this decision; see below.)

Rogers governed the false advertising claim. There was artistic relevance because the film is about MFSA and the Panama Papers, so the use of the mark was relevant to the film. And using a mark without the owner’s authorization does not explicitly mislead consumers about the source or content of the film. Gordon v. Drape Creative, Inc., 909 F.3d 257 (9th Cir. 2018), is not to the contrary, because Netflix used the mark in a different context, as opposed to using it exactly the same way the plaintiffs do. “Plaintiffs use their mark in the offshore shell company finance industry, whereas Defendant used Plaintiffs’ mark in a film.” Plus, and also distinguishable from Gordon, the mark appears in several scenes of the film, “and is therefore only one component of Defendant’s larger expressive work.” This was not explicitly misleading.

MFSA also argued that the trailer made false statements, because it “portrays the Plaintiffs as criminals and/or in the false light of criminality in the provision of their services as overseas lawyers.” But they failed to identify any false statement in the trailer for the Film. And use of MFSA’s logo in the trailer was also protected by Rogers.

Trademark dilution/tarnishment. Among the problems, Netflix’s use of the MFSA logo was noncommercial because it had some artistic relevance to the film. (Not precisely the full reason, but really I can’t blame the court for cutting some corners on a claim this terrible.)

Mossack Fonseca & Co., S.A. v. Netflix Inc., 2020 WL 8510342, No. CV 19-9330-CBM-AS(x) (C.D. Cal. Dec. 23, 2020)

Special motion to strike the state-law claims of libel/false light invasion of privacy. “The Laundromat” is allegedly “based on” investigative journalist Jake Bernstein’s book entitled Secrecy World: Inside the Panama Papers Investigation of Illicit Money Networks and the Global Elite. It “tells the story of the documents known as the Panama Papers ... leaked in 2015,” which “revealed how Panamanian law firm Mossack Fonseca illegally funneled money for the wealthy in Panama and worldwide.”

Plaintiffs initally failed to authenticate internet stories reviewing the film, e.g., the description: “When a widow gets swindled out of insurance money, her search for answers leads to two cunning lawyers in Panama, who hide cash for the super rich.”

The film was disseminated in a public forum, and it covered a public issue/an issue of public interest. The burden shifted to MFSA to show a probability of success on their claims.

They didn’t.

The Court finds no reasonable viewer of the Film would interpret the Film as conveying “assertions of objective fact,” particularly given the statement at the beginning of the Film “BASED ON ACTUAL SECRETS” which sets the stage and the disclaimer at the end of the Film that states the Film is fictionalized for dramatization and is not intended to reflect any actual person or history.

Even assuming a reasonable viewer would view the Film as statements of actual fact, the Film does not portray Plaintiffs as directly involved in the murders, drug cartels, and other criminal activity committed by their clients as referenced in the Complaint.

And the complaint admitted that some of the offshore entities created by Plaintiffs “appears to have been utilized by some [end users] for criminal activity including, but not limited to, money laundering, tax evasion, bribery and/or fraud.” So the film’s portrayal of persons for whom MFSA created shell companies as engaging in criminal activity was not false. Fonseca and Mossack were also criminally charged, so depicting them as being arrested and jailed wasn’t false. There was no reason to allow them discovery.


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