Two men who rented “Yesterday” on Amazon Prime after seeing Ana de Armas in the trailer, only to discover that her role was removed in the final cut of the film, have settled their false advertising lawsuit.
Peter Rosza and Conor Woulfe sued Universal in 2022, alleging that they were each cheated out of $3.99. A federal judge initially sided with them, finding that movie trailers are not immune from false advertising claims. But various setbacks followed, leaving the men on the hook for $126,705 in Universal legal fees.
On Friday, they accepted a settlement that will resolve the case. The terms were not disclosed and neither side responded to a request for comment.
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From the evidence of court filings, nobody is happy with the outcome. Universal believes it was forced to spend two years and hundreds of thousands of dollars defending a patently frivolous lawsuit. Meanwhile, the plaintiffs’ class action lawyers — who initially believed the claim was worth millions of dollars — ended up believing that California’s courts are rigged in favor of the Hollywood studios.
If the case has any lasting significance, however, it comes from a ruling in which the court sided against the studio and for the plaintiffs. Universal took the position that movie trailers are works of art and therefore they should be protected by the First Amendment. The studio warned that if they were treated merely as advertising, viewers could sue every time they thought a movie didn’t live up to the trailer.
U.S. District Judge Stephen Wilson rejected that argument, finding that trailers are “commercial speech,” subject to false advertising laws.
The difficulty for the plaintiffs, however, was converting that victory into real money.
The class action lawyers, led by Cody R. LeJeune, argued that everyone who bought a ticket to the movie or rented it on any platform had, potentially, been duped.
But had they?
Released in 2019, “Yesterday” tells the story of Jack, a struggling musician who comes to after getting hit by a bus and discovers that he is the only person on Earth who remembers the Beatles. He then rockets to stardom recreating their discography. De Armas was supposed to appear briefly, late in the movie, as a suitress for Jack’s affections. Her role was cut out of the film after test screenings.
Universal argued that most people who saw the film likely did so for reasons having nothing to do with de Armas and that viewers might not have even seen the trailer that included her for a few seconds (or, if they did, they might have been more interested in the other stars or in the Beatles’ music).
Under the rules that apply to class action cases, it was up to LeJeune and his colleagues to prove that a lot of people were hoping to see de Armas, and were — like Woulfe and Rosza — crestfallen by her absence. But their motion for class certification posited only a hypothetical way to prove that — maybe a survey? — without presenting actual evidence.
Wilson was not impressed.
“Plaintiffs’ motion for class certification is patently inadequate,” the judge wrote in a ruling last August.
The false advertising suit could go forward. But with only two plaintiffs, it wouldn’t be worth very much. In Universal’s estimation, the most they could hope to recover was $7.98.
The studio then moved in for the kill, filing a motion for attorneys’ fees. While the judge had allowed the false advertising claims, he had also dismissed the plaintiffs’ other product liability claims, ruling they do not apply to movies.
That made Universal the winning party under California’s anti-SLAPP statute, which entitled it to legal fees. The studio’s lead lawyer, Kelly Klaus, charges $1,158 an hour. The bill for two anti-SLAPP motions — plus, of course, the fees for two motions for legal fees — came to $672,000, of which Universal sought reimbursement in the amount of $472,000, which it considered a “generous” reduction.
The judge saw it differently — “In the Court’s experience, modern law firms are neither eleemosynary nor altruistic,” he wrote — and knocked it down to $126,705.
Universal reached out to discuss a settlement. But, for several months, LeJeune gave the impression that he would fight to the bitter end, filing multiple requests for discovery regarding various “Yesterday” trailers, further driving up Universal’s defense costs.
In January, LeJeune’s former co-counsel, Matthew A. Pequignot, made a settlement proposal of his own. First, he claimed that a renewed class action motion might succeed, given that Universal’s test screenings showed that the “trailer version with Ana de Armas was most appealing to consumers.”
He also complained about the anti-SLAPP statute, which he argued allowed movie companies to threaten the plaintiffs “with financial ruin for ‘daring’ to express their First Amendment rights.” But in the spirit of avoiding further litigation cost, he said that his clients would drop the suit in exchange for a lump-sum payment of $750,000.
From the tone of their subsequent motion for sanctions, Universal’s lawyers were increasingly aggravated.
“The attorneys who filed and sunk two years into this frivolous case are trying to pressure Universal into making a huge monetary payment (with no legal or factual basis) to end a case that is now worth $7.98,” wrote Stephanie Herrera, one of the studio’s lawyers.
She asked the judge to award another $43,000 for abuse of the discovery process. A hearing on that motion was set for April 30 and the trial was due to begin on May 21.
At that point, evidently, it was time for Rosza and Woulfe to call it a day. The parties filed a joint notice of settlement on Friday, indicating they expected to dismiss the case this week.
