BORAT LAWSUITS: page 3 of 4 ( go to page 1, 2, 4 )

IT TAKES A VILLAGE

Most likely, Fagan has been distracted by a New Jersey ethics investigation and other matters during the first months of the “Borat lawsuit.”  The complaint has been amended three times to correct deficiencies.  As it now stands, there are four plaintiffs seeking relief against Twentieth Century Fox film Corporation, Larry Charles, the director of the film, and other defendants.

Plaintiff Nicolae Todorache is a Romanian citizen who appeared in the film as “Dolton,” a man who had part of his right arm amputated.  At the beginning of the film Borat promises Dolton that he will find him a new right arm when he visits America.  While Borat is in America, he is given a rubber fist, and when he returns to the Village at the end of the film, the fist is attached to Dolton’s arm by masking tape.  Dolton is so pleased by this that he “high-fives” Borat while walking down the street.

Plaintiff Spiridom Ciorobea is also from the Village.  He appears briefly in the beginning of the film as the “town mechanic and abortionist” while shown holding an acetylene torch.  He is shown again in the crowd scene when Borat leaves for America.

Plaintiff Ion Ciorobea allegedly appears briefly in the scenes where Borat leaves the Village for America.

Plaintiff Nicholai Staicu, another Village resident, is shown in a scene walking with Borat at the beginning of the film, and in a scene kissing Borat goodbye.  The complaint states that he is the official representative of the Town and acting “on behalf of Other Villagers of Glod, Romania.”  While plaintiffs have not asked that the action be certified as a class action, they claim that Staicu is representing 516 people residing in the Village.

The complaint asserts a claim under Section 51 of the New York Civil Rights Law.  That section states: “Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent” of the plaintiff can bring an action to enjoin such use and obtain civil damages.

The defendants maintain that the Villagers were paid for their appearance in the film.  They maintain that the Villagers “knew they were acting as extras in the film, were paid accordingly, and signed acknowledgements to this effect.”

Twentieth Century Fox and other defendants moved for dismissal of the complaint.  Attorney Fagan, apparently seeing the problems in his case, filed a notice of “voluntary dismissal” without prejudice with the court.  Ironically, the Notice was dated April 1, April Fools Day.

Kathie Martin, who appeared in the movie as an “etiquette coach,” also filed suit against Twentieth Century Fox and Sacha Baron Cohen.  In the film Ms. Martin gave etiquette lessons to Borat before a dinner party.  Ms. Martin claimed that she was embarrassed and humiliated by her involvement in the movie.  “I was disappointed that Mr. Cohen never let me in on the joke,” she told Newsweek.  She filed a lawsuit in Alabama state court alleging fraud, quasi contract and unjust enrichment, commercial appropriation and invasion of privacy, and intentional infliction of emotional distress.

Before appearing in the movie, Ms. Martin had signed an agreement which contained a forum selection clause providing that any legal action had to be brought in New York.  The defendants moved to dismiss the suit on the basis of the forum selection clause, but the lower court denied the motion on the ground that agreement signed before the movie was void under Alabama’s “door-closing” statute.  That particular statute provides that contracts made in Alabama by a foreign corporation without a certificate of authority to transact business are unenforceable.

The Alabama Supreme Court vacated the lower court’s ruling.  It held that where the primary purpose of a transaction constitutes an interstate activity, the Commerce Clause of the United States Constitution prohibits Alabama courts from applying the door-closing statute to void such interstate contracts.

Ms. Martin must have anticipated this decision.  Even before it was handed down, she retained a New York lawyer, a single practitioner, and filed suit in Manhattan Supreme Court against Twentieth Century Fox.  She did not file a complaint, only a  bare-bones “Summons with Notice,” stating that she was asking for damages for “commercial misrepresentation, fraud, unjust enrichment, invasion of privacy, and intentional infliction of emotional distress.”   The defendants countered by filing a Notice of Removal to United States District Court for the Southern District.  The matter will now be before Judge Preska who will have to decide if the etiquette coach has a valid claim.