Borat Lawsuits: Valid?

The Borat movie has only been out a few days, and lawsuits are flying already.  Two frat boys from South Carolina have sued "Borat", comedian Sacha Baron Cohen, and the movie's makers and producers.  The suit alleges that they were tricked into believing that the film would not be shown in the United States, and that the young men only signed the Standard Consent Agreement after they had been drinking alcohol. 

The Complaint alleges several causes of action: fraud, false light, appropriation of likeness, and negligent infliction of emotional distress.  This despite the fact that Paragraph 4 of the Consent Agreement specifically waives their rights to file any such actions.

They key then is the plaintiffs' demand for recission of the Consent Agreement.  If they can succeed in having that waiver rescinded, then the claims the waiver would otherwise bar can move forward.

The plaintiffs allege that they were both lied to about the movie, and that they were intoxicated at the time they signed the waiver.  Either allegation, if sufficiently proven, could serve as a basis for rescission of the waiver, which would allow the other claims to go forward. 

Comments

[Josh S.]

So if I understand, the issue isn't whether they signed away their rights, but whether they were led to do so under false pretenses and while impaired?

I might be more sympathetic to this argument if these guys weren't so repugnant. Clearly, that is clouding my thinking here.

But hasn't the "I was drunk when I behaved badly" defense been debunked? Isn't the purpose of a waiver to demonstrate that someone is doing something willingly, all else be damned?

And as for them being misled about the distribution of the film, does their action really speak to that?

It seems that their argument hinges on them not knowing what they were doing at the time. I can see them saying they were too drunk to sign away their right to sue. But if you argue that they didn't know the film would air in the U.S., you're saying they agreed to be being filmed in a negative light as long as a set group of people -- their peers -- didn't see it. Was there any such guarantee in the standard agreement?

I'm sure these guys got roped into acting like apes on screen through some wink-wink-nudge-nudge tactics. But if you sign an agreement allowing yourself to be filmed, it's hard for me to think you don't get what you deserve.

[Tom Kerner]

Mr. S,

You are correct -- the issue the plaintiffs are raising is that they were either (a) intoxicated, or (b) misled about what was to come.

The intoxication defense has not only NOT been debunked, it's an excellent defense against being held to the terms of a contract. It just doesn't come up all that often, is all. If they can show they were intoxicated, it's clear cut that the contract should be rescinded.

I agree that their second line of attack -- misrepresentation -- appears to be thinner. Generally, a misrepresentation has to be so material to the agreement that the party would not have signed the contract had they known the truth.

The "won't be shown in the U.S." claim could go either way, in my view. It does not appear on the face of the contract.

But they can still introduce evidence (testimony) that they voiced concerns that the movie would be shown in the US; that they asked if the film would be shown in the US; and the producers told them it wouldn't (knowing that it would), then it's a pretty classic case of fraud by material misrepresentation.

For it's part, the defense could claim it is unrealistic in this day and age to think a movie wouldn't end up in the United States at some point, so therefore even if they did lie, the lie wasn't material. In other words, they will want to make the "US distribution" claim out to be *immaterial*.

So that whole line of argument will boil down to a question of fact as to whether there (a) was a misrepresentation at all, and (b) if so, whether it was *material* to the contract.