1 PAUL D. MURPHY (SBN 159556) DAVID E. ROSEN (SBN 155385 ... file-i-printed on recycled paper...

PRINTED ON RECYCLED PAPER OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

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PAUL D. MURPHY (SBN 159556) DAVID E. ROSEN (SBN 155385) MARK J. NAGLE (SBN 248873) MURPHY ROSEN LLP 100 Wilshire Boulevard, Suite 1300 Santa Monica, California 90401-1142 Telephone: (310) 899-3300 Facsimile: (310) 399-7201 Email: [email protected] Email: [email protected] Email: [email protected]

Attorneys for Defendant Morgan Spurlock and Warrior Poets Inc.

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

TURNER ENTERTAINMENT NETWORKS, INC.,

Plaintiff,

vs.

MORGAN SPURLOCK, and WARRIOR POETS INC.,

Defendants.

))))))))))))))))))

CASE NO. 2:18-cv-2490 R (ASx)

DEFENDANTS’ OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Date: May 7, 2018 Time: 10;00 a.m. Place: Courtroom 880

Case 2:18-cv-02490-R-AS Document 21 Filed 04/16/18 Page 1 of 23 Page ID #:127

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TABLE OF CONTENTS

Page(s)

I. PRELIMINARY STATEMENT ......................................................................... 1

II. STATEMENT OF RELEVANT FACTS .......................................................... 3

A. Warrior Poets. ................................................................................................ 3

B. The Production Services Agreement. ............................................................ 4

C. Spurlock’s December 13, 2017 Tweet. ......................................................... 5

III. ARGUMENT .................................................................................................... 7

A. The Legal Standard for a Preliminary Injunction. ........................................ 7

B. TEN Has Not Established it is Likely to Succeed on the Merits. ................. 7

C. TEN Has Not Established that Injunctive Relief is Necessary to Avoid ...... 9

Irreparable Injury. ................................................................................................ 9

D. A Balance of the Hardships Weighs in Favor of Defendants. .................... 14

IV. CONCLUSION .............................................................................................. 16


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TABLE OF AUTHORITIES Page(s) Cases Caribbean Marine Services Co., Inc. v. Baldridge,

844 F.2d 668 (9th Cir. 1988) ..................................................................... 13, 14

Friends of the Wild Swan v. Weber, 767 F.3d 936 (9th Cir. 2014) ........................................................................... 14

Herb Reed Enters., LLC v. Fla Entertainment Mgmt., 736 F.3d 1239 (9th Cir. 2013) ......................................................................... 12

IRIS Management Grp., LLC v. Malan, 329 F.App’x 112 (9th Cir. 2009) ............................................................... 16, 17

Kimber v. Grant, 2017 U.S. Dist. LEXIS 31628 (S.D. Cal. March 6, 2017) .............................. 15

Los Angeles Memorial Coliseum Comm. v. National Football League, 634 F.2d 1197 (1980) ................................................................................ 13, 17

Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009) ........................................................................... 15

Mazurek v. Armstrong, 520 U.S. 968, 117 S. Ct. 1865 (1997) ............................................................. 10

National Meat Ass’n v. Brown, 599 F.3d 1093 (9th Cir. 2010) ......................................................................... 10

Ohio National Life Assurance Corp. v. Davis, 2010 WL 4916643 (C.D. Cal. 2010) ............................................................... 16

Perfect 10, Inc. v. Amazon, Inc., 487 F.3d 701 (9th Cir. 2007) ........................................................................... 10

Sampson v. Murray, 415 U.S. 61, 94 S. Ct. 937 (1974) ................................................................... 13

Sanborn Mfg., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484 (8th Cir. 1993) ........................................................................... 18


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Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115 (9th Cir. 1999) ......................................................................... 10

Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011) ......................................................................... 10

U.S.A. Express Cab, LLC v. City of San Jose, 2007 U.S. Dist. LEXIS 95692 (N.D. Cal. December 31, 2007) ..................... 11

Winter v. NRDC, Inc., 555 U.S. 7 (2008) ............................................................................................ 14


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I.

PRELIMINARY STATEMENT

In March 2017, Turner Entertainment Networks, Inc. (“TEN” or

“Turner”) entered into a Production Services Agreement (“Agreement”) with

Warrior Poets, Inc. (“Warrior Poets”). Pursuant to the Agreement, Warrior Poets

was retained to (1) produce a television series for TEN and (2) furnish Morgan

Spurlock (one of the producers at Warrior Poets) as executive producer. In

December 2017, Spurlock tweeted a statement in which he admitted to various

incidents from his past. Because of the tweet, TEN decided it no longer wanted

Warrior Poets or Spurlock to be affiliated with the project.

Now, without citation to any evidence and based on nothing more than

the allegations of its unverified complaint, TEN seeks a preliminary injunction

prohibiting Warrior Poets or Spurlock from disbursing any funds from Warrior

Poets’ general operating account and affirmatively requiring Warrior Poets and

Spurlock to pay all funds in that account to TEN.1 For numerous reasons, the

Court should deny the motion.

First, TEN necessarily did not satisfy its burden of establishing a

substantial likelihood of success because it presents no evidence to support its

position. It is well-settled that the allegations of an unverified complaint are

insufficient to support a preliminary injunction. In any event, TEN cannot

establish a substantial likelihood of success. TEN’s motion is premised on the

false assumption that Spurlock’s tweet somehow breached the Agreement. It did

not. If TEN wants to walk away from the project, so be it. But that does not

mean Warrior Poets breached the Agreement. Furthermore, TEN is not entitled

1 The Motion (p. 4) identifies by account number the bank account it alleges “upon information and belief” was the separate bank account for the production. This is not accurate. The account that is the subject of this Motion is Warrior Poets’ general operating account.



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to the funds in the production account. As the Agreement makes clear, the only

circumstance under which TEN is entitled to the funds in that account is if TEN

exercises its right to take over the production. To date, TEN has not chosen to

exercise this right. And TEN certainly is not entitled to the funds in Warrior

Poets’ general operating account, which is what its Motion actually seeks.

Second, TEN did not, and cannot, establish irreparable harm. This is a

breach of contract case where the only remedy sought is readily ascertainable

money damages. Financial harm is not irreparable. Though TEN argues “there

is real concern that Defendants will commingle and/or use the funds . . . in

violation of the PSA,” it presents absolutely no evidence whatsoever to support

this assertion. Instead, this “concern” is alleged only “upon information and

belief.” (Complaint, ¶37.) Furthermore, the Motion argues nothing more than

the “possibility” of irreparable harm. (Motion, p. 7.) As the Supreme Court has

made clear, a “possibility” of irreparable harm is never enough.

Third, there is no basis to grant any relief against Spurlock. He is not a

party to the Agreement. Because the only claim asserted in the complaint is for

breach of a contract between TEN and Warrior Poets, injunctive relief cannot be

granted against Spurlock.

This is a simple breach of contract case with basic money damages at

issue. It is far from the type of case in which provisional relief is appropriate.

TEN’s Motion is a transparent attempt to gain the upper-hand in the litigation,

and granting the Motion would be akin to granting an attachment without

requiring TEN to meet the high burden associated with an attachment order.

Furthermore, because the Motion erroneously seeks all of the funds in Warrior

Poets’ general operating account rather than the project’s production account,

granting the Motion would cripple Warrior Poets’ entire business operations.

The Motion is devoid of evidence and unsupported by law, and should be denied.



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II.

STATEMENT OF RELEVANT FACTS

A. Warrior Poets.

Warrior Poets is a New York based production studio formed in 2004.

Over the years, Warrior Poets has been credited with more than 50 motion

picture and television productions. These projects run the gamut of subject

matters. Motion picture projects include: The Greatest Movie Ever Sold; Where

in the World is Osama Bin Laden?; Rats; and One Direction: This Is Us.

Television projects include: 30 Days (FX); I Hart Food (Food Network);

Morgan Spurlock: Inside Man (CNN); and Springfield of Dreams (Fox

Sports/Fox/MLB). (Spurlock Decl., ¶2.)

By 2017, Warrior Poets employed three critically acclaimed lead staff

producers: Spurlock, Matthew Galkin and Jeremy Chilnick. Spurlock is an

award-winning writer, director and producer. His first film, Supersize Me, won

him Best Directing honors at the Sundance Film Festival and was nominated for

an Academy Award for Best Feature Documentary. Matthew Galkin has

produced many documentary films and television series for Warrior Poets,

including a number of award winning projects. Jeremy Chilnick is an Emmy-

nominated writer and producer who produced and executive produced many

Warrior Poets projects. (Id. at ¶3.)

In 2017, Chilnick also served as the Chief Operating Officer for Warrior

Poets and was primarily responsible for running the day-to-day operations of the

company. He signed the Agreement at issue here on behalf of Warrior Poets and,

along with the Production Manager, were the primary contacts with TEN during

Warrior Poets’ work on the project. Though Spurlock was the Chief Executive

Officer of Warrior Poets and ultimately responsible for the company and the

Project, Spurlock’s day-to-day focus was on the creative side of the company,

not the business side. (Id. at ¶4.)



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B. The Production Services Agreement.

In March 2007, TEN retained Warrior Poets to produce and executive

produce a television series entitled Who Runs The World? (“the Project”). The

terms of the deal are set forth in a Production Services Agreement (the

“Agreement”) and Standard Terms and Conditions (“Standard Terms”) dated as

of March 7, 2007. (Compl., Ex. A.)

Though the Agreement provides that Warrior Poets will designate

Spurlock to be the executive producer of the Project, Spurlock is not a party to

the Agreement or the Standard Terms. Instead, both documents make clear that

the only legally responsible parties are “Warrior Poets Inc. (‘Producer’) and

Turner Entertainment Networks, Inc. (‘Turner’).” Though Spurlock’s signature

appears at the end of the Agreement, as the notation above his signature makes

clear, he signed the document solely for the purpose of acknowledging that the

Agreement concerns his “services and/or rights.” Specifically, section 12 of the

Agreement requires that Spurlock consent to TEN’s use of his name, voice,

likeness and biography, and section 7(e) of the Agreement requires that Warrior

Poets make Spurlock available for various appearances at marketing events. To

the extent Spurlock has any obligations under the Agreement, they are simply to

offer his services as executive producer and agree to the provisions of sections

7(e) and 12.

The Agreement contains no “morals” clause. Nor does it contain any

other provision that grants TEN the right to declare a default under the

Agreement if TEN disapproves of prior conduct of Warrior Poets personnel.

The Agreement provides that TEN will fund the Project “on a mutually

approved cash flow schedule.” (Id. at §6.) The Agreement contains no provision

allowing TEN to demand repayment of the incremental funds provided to

Warrior Poets.



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If TEN believes that Warrior Poets is “unable to continue” on the Project,

the Standard Terms sets forth a very specific procedure for TEN to “takeover”

the production:

“Turner shall have the right to require Producer to provide

proof reasonably satisfactory to Turner that Producer has the

capacity (including the financial capacity) to complete and

Deliver the Episodes as required hereunder. In the event

Producer fails to make such satisfactory showing within the

time period reasonably required by Turner . . ., Turner shall

have the right, exercisable by written notice to Producer, to

takeover production of the Series. If Turner exercises its

takeover rights, Turner shall be deemed to be appointed the

manager and agent of Producer for the purpose of

completing such episodes and Producer shall, at Turner’s

request, place at Turner’s disposal and under Turner’s

control, the production account and any and all other assets,

personnel and equipment employed and used by producer . .

. .” (Standard Terms, §12) (emphasis added).

Under the Agreement and Standard Terms, the only circumstance under

which TEN is entitled to take control of the Warrior Poets production account is

if TEN exercises its “takeover” rights. To date, TEN has not exercised its

takeover rights.

C. Spurlock’s December 13, 2017 Tweet.

On December 13, 2017, Spurlock tweeted the phrase “I am Part of the

Problem” along with a link to a statement. In the statement, reflecting on the

widespread reporting of misconduct in the entertainment industry, Spurlock

wrote, “I’ve come to understand after months of these revelations, that I am not

some innocent bystander, I am also a part of the problem.” (Compl., Ex. C.) He



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states that “if I’m going to truly represent myself as someone who has built a

career on finding the truth, then it’s time for me to be truthful as well.”

Spurlock then details three specific reasons why he is “part of the

problem.” The first involved an incident while Spurlock was in college (he

graduated from NYU in 1993). The second involved verbal incidents with an

assistant approximately eight years earlier. The third involved infidelity with

former spouses and girlfriends. In the statement, Spurlock also describes his

problems with alcohol abuse. Spurlock concluded by stating, “I am also part of

the solution. By recognizing and openly admitting what I’ve done to further this

terrible situation, I hope to empower the change within myself.” (Id.)

On December 14, 2017, Spurlock checked himself into a rehabilitation

facility to seek treatment and therapy. Also on December 14, Spurlock advised

Mr. Chilnick and Mr. Galkin that, while he sought treatment, he would

temporarily step down from his leadership role at Warrior Poets. Spurlock

remained at the rehabilitation facility for thirty days. (Spurlock Decl., ¶7.)

D. TEN Suspends Production and Decides Not to Take Over the Project.

On December 15, 2017, based solely on Spurlock’s tweet, TEN sent a

letter to Warrior Poets suspending production of the Project. (Compl., Ex. D.)

Thereafter, TEN advised Warrior Poets that it was considering whether to

exercise its “takeover” rights, which would allow TEN to take control of the

production account. (Compl., Ex. E.) To date, however, TEN has not taken over

the production.

The complaint does not seek completion of the production. Instead, the

only relief TEN seeks for the alleged breach of contract is money damages, and

the only injunctive relief sought is either a return of funds or a prohibition of use

of funds. Though the Motion purports to seek a return of the funds in the Project

production account, the account TEN identifies is actually Warrior Poets’ general

operating account.



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III.

ARGUMENT

A. The Legal Standard for a Preliminary Injunction.

“[A] preliminary injunction is an extraordinary and drastic remedy, one

that should not be granted unless the movant, by a clear showing, carries the

burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct.

1865 (1997). “This burden is correctly placed on the party seeking to

demonstrate entitlement to the extraordinary remedy of a preliminary injunction

at an early stage of litigation, before the defendant has had the opportunity to

undertake extensive discovery or develop its defenses.” Perfect 10, Inc. v.

Amazon, Inc., 487 F.3d 701, 714 (9th Cir. 2007).

In deciding whether to grant a preliminary injunction, the Court must

balance “the plaintiff’s likelihood of success against the relative hardships to the

parties.” Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th

Cir. 1999). In order to prevail, plaintiff “must demonstrate ‘that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of the equities tip in his favor, and that an

injunction is in the public interest.’” National Meat Ass’n v. Brown, 599 F.3d

1093, 1097 (9th Cir. 2010) (quoting Winter v. National Res. Def. Council, Inc.,

129 S. Ct. 365, 374 (2008)).

TEN has not come close to meeting its burden under this test.

B. TEN Has Not Established it is Likely to Succeed on the Merits.

“The burden of proof at the preliminary injunction phase tracks the burden

of proof at trial.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th

Cir. 2011). This requires the moving party to present evidence sufficient to

establish the likelihood of success on the merits in order to shift the burden to

defendants to present contrary evidence. Id.



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Here, TEN necessarily has failed to meet this burden because TEN

literally presents no evidence whatsoever in support of its Motion. Instead, TEN

relies solely and exclusively on the bare allegations contained in its unverified

complaint. A motion for preliminary injunction based on nothing more than an

unverified complaint must be denied. See U.S.A. Express Cab, LLC v. City of

San Jose, 2007 U.S. Dist. LEXIS 95692 at *2 fn.1 (N.D. Cal. December 31,

2007) (“an application for a temporary restraining order or preliminary injunction

cannot be supported by an unverified complaint”); K-2 Ski Co. v. Head Ski Co.,

467 F.2d 1087, 1088 (9th Cir. 1972) (“[a] verified complaint or supporting

affidavits may afford the basis for a preliminary injunction”).

Even if TEN had presented admissible evidence in support of its Motion, it

still would be unable to establish a substantial likelihood of success. First,

TEN’s fundamental assumption that Spurlock’s tweet breached the Agreement is

false. There is nothing in the Agreement that prohibits Spurlock (or anyone else

at Warrior Poets) from having engaged in any particular conduct (whether

appropriate or not) in their pasts, and there is nothing in the Agreement that

prohibits Spurlock from publicly admitting his prior conduct. If TEN does not

want Spurlock to be the executive producer on the Project, or does not want

Warrior Poets to provide production services, then TEN can walk away from the

Project. But it does not mean Warrior Poets or Spurlock (who is not even a party

to the Agreement) have breached or otherwise defaulted under the Agreement.

Second, the fact that Spurlock temporarily stepped down from his

leadership role at Warrior Poets while he sought treatment for 30 days does not

constitute a breach of the Agreement. In fact, TEN made it clear that it did not

even want Spurlock to be performing any services on the production during that

period of time.

Third, unless and until TEN takes over the production, Warrior Poets has

no obligation to return any funds to TEN or to turn the production account over



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to TEN. As section 12 of the Standard Terms makes clear, these obligations only

arise “if Turner exercises its takeover rights.” Because TEN has not taken over

the production, Warrior Poets has absolutely no obligation to turn over the

production account.

Fourth, even if TEN could prove a breach of the Agreement, TEN does

not automatically get the funds in the production account. Instead, TEN’s

damages are limited to what it can prove were directly and proximately caused

by the alleged breach. There is nothing in the Agreement that, absent a takeover

of the production, entitles TEN to a return of funds paid into the production

account. And certainly there is nothing that would require Warrior Poets to turn

over to TEN all of the funds in its general operating account.

Fifth, there is no circumstance under which TEN can establish the

likelihood of success on its breach of contract claim against Spurlock for the

simple reason that Spurlock is not a party to the Agreement or the Standard

Terms. Spurlock signed the Agreement not as a party, but solely for the purpose

of acknowledging that the Agreement concerns his “services and/or rights.” In

any event, even if Spurlock was deemed to be a party to the Agreement with

respect to the services he was providing, Spurlock has not breached the

Agreement. He never refused to serve as executive producer of the Project and

his tweet did not violate any provision of the Agreement.

Because TEN failed to present evidence in support of its Motion, the

burden of proof never even shifted to Defendants. Even if it had, the evidence

establishes that it is far from “likely” that TEN will succeed on the merits. As

such, the Motion must be denied.

C. TEN Has Not Established that Injunctive Relief is Necessary to Avoid

Irreparable Injury.

To establish a likelihood of irreparable harm, conclusory or speculative

allegations are not enough. Herb Reed Enters., LLC v. Fla Entertainment Mgmt.,



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736 F.3d 1239, 1250 (9th Cir. 2013). Instead, in order to prevail, TEN must

establish through a specific factual showing that, absent the extraordinary relief it

seeks, it will suffer “serious, immediate, and irreparable” injury for which there

is no adequate remedy at law. Caribbean Marine Services Co., Inc. v. Baldridge,

844 F.2d 668, 678 (9th Cir. 1988). TEN cannot meet this burden.

1. TEN Seeks Only Monetary Damages.

It is well established that monetary harm alone does not constitute

irreparable harm. See, e.g., Los Angeles Memorial Coliseum Comm. v. National

Football League, 634 F.2d 1197, 1202 (1980) (“it is well established, however,

that such monetary injury is not normally considered irreparable”). As explained

by the United States Supreme Court:

“The key word in this consideration is irreparable. Mere

injuries, however substantial, in terms of money, time and

energy necessarily expended . . . are not enough. The

possibility that adequate compensatory or other corrective

relief will be available at a later date, in the ordinary course of

litigation, weighs heavily against a claim of irreparable harm.”

Sampson v. Murray, 415 U.S. 61, 90, 94 S. Ct. 937 (1974) (quoting Virginia

Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921,

925 (D.C. Cir.1958)).

Here, the sole and exclusive relief sought by TEN is monetary damages.

Furthermore, TEN does not deny that the monetary damages it seeks are readily

ascertainable. As such, TEN is not entitled to a preliminary injunction.

TEN argues that it nonetheless should be granted injunctive relief because

“there is a serious possibility that Warrior Poets may collapse and/or have no

funds to pay a judgment to TEN.” (Motion, p. 7.) This argument fails and two

separate and distinct reasons. First, TEN presents absolutely no evidence

whatsoever to support this assertion. Instead, the assertion is based entirely on



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the conclusory and speculative allegations of its unverified complaint. Such

allegations are insufficient to support a claim for preliminary injunction. See

Caribbean Marine Services Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir.

1988) (“a plaintiff seeking preliminary injunctive relief must demonstrate that it

will be exposed to irreparable harm. Speculative injury does not constitute

irreparable injury sufficient to warrant granting a preliminary injunction. A

plaintiff must do more than merely allege imminent harm sufficient to establish

standing; a plaintiff must demonstrate immediate threatened injury as a

prerequisite to preliminary injunctive relief”).

Second, a “possibility” of irreparable harm is insufficient to support

injunctive relief. Instead, even under the sliding scale approach, the moving

party must at least establish that irreparable harm is “likely.” See Winter v.

NRDC, Inc., 555 U.S. 7, 22 (2008) (“the Ninth Circuit's ‘possibility’ standard is

too lenient. Our frequently reiterated standard requires plaintiffs seeking

preliminary relief to demonstrate that irreparable injury is likely in the absence of

an injunction”). See also, Friends of the Wild Swan v. Weber, 767 F.3d 936, 946

(9th Cir. 2014) (after analyzing the distinction between the “possibility” and the

“likelihood” of irreparable harm, the court concluded “we nonetheless affirm the

denial of the preliminary injunction because Wild Swan has not established a

likelihood of irreparable harm”). Because TEN alleges nothing more than a

“possibility” of irreparable harm, the motion must be denied.

2. The Remedies Provision in the Agreement Does Not Help TEN.

In its Motion, TEN suggests that the preliminary injunction sought is

allowed under the “Remedies” provision of the Standard Terms. (Motion, p. 4.)

Not so.

Section 13 of the Standard Terms provides as follows:

“In the event of a breach by Turner, Producer specifically

acknowledges and agrees that the damage, if any, caused



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thereby will not be irreparable or otherwise sufficient to

entitle Producer to injunctive or other equitable relief. . . .

Producer acknowledges that the Services to be provided by

Producer hereunder are of a unique nature, that Turner may

not be adequately compensated at law for any breach by

Producer and that Turner shall be entitled to seek, among

other remedies, injunctive relief.” (Standard Terms, Compl.

Ex. A, §13.)

As this provision makes clear, the right to seek injunctive relief stems from

the potential irreparable harm caused because of the “unique nature” of the

production services provided by Warrior Poets. But this lawsuit has nothing to

do with protecting or enforcing these unique services. This case is about money

– precisely the type of remedy that the first part of section 13 acknowledges is

insufficient to support injunctive relief.

3. The Motion is Particularly Inappropriate Because it Seeks a

Mandatory Injunction.

TEN’s Motion seeks a mandatory injunction. Specifically, it seeks an

order that defendants “are required to return the funds in the Production Bank

Account to TEN, or, in the alternative, to place the funds in a secure escrow

account.” ([Proposed] Order.) “A mandatory injunction goes well beyond

simply maintaining the status quo pendente lite and is particularly disfavored. In

general, mandatory injunctions are not granted unless extreme or very serious

damage will result and are not issued in doubtful cases or where the injury

complained of is capable of compensation in damages.” Marlyn Nutraceuticals,

Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-879 (9th Cir. 2009). See

also, Kimber v. Grant, 2017 U.S. Dist. LEXIS 31628, at *4 (S.D. Cal. March 6,

2017) (“[w]hen a plaintiff seeks a court order requiring another party to take

affirmative action, the relief is treated as a mandatory injunction, which requires



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the plaintiff to establish that the law and facts clearly favor her position not

simply that she is likely to succeed”).

Here, as explained throughout, TEN has not come close to meeting the

standard for a prohibitory injunction, and it certainly cannot meet the standard

for a mandatory injunction. Moreover, not only does the Motion seek a

mandatory injunction, but it seeks a mandatory injunction over the wrong bank

account. The account identified in the Motion is not the production account for

the Project. Instead, it is Warrior Poets’ general operating account. (Spurlock

Decl., ¶8.)

4. The Cases Cited by TEN are Wholly Inapposite.

In support of its position, TEN cites to two cases that purport to have

granted a preliminary injunction requiring defendants to deposit funds into

escrow: Ohio National Life Assurance Corp. v. Davis, 2010 WL 4916643 (C.D.

Cal. 2010) and IRIS Management Grp., LLC v. Malan, 329 F.App’x 112 (9th Cir.

2009). In one instance, TEN simply misstates the case. In the other instance, the

case is based on Nevada law and has no application here.

TEN describes the Ohio National holding as “granting injunction and

requiring defendant to deposit premium payments received in escrow.” (Motion,

p. 8.) This is demonstrably false. In fact, the injunction did not place any

affirmative requirement on defendant. To the contrary, the injunction allowed

plaintiff (the moving party) to deposit premium payments it received with the

clerk of the court. Furthermore, the motion in that case (a matter involving life

insurance fraud) was unopposed, and the court specifically found irreparable

harm because “calculating damages based on the speculative nature of a person’s

death will be difficult to ascertain.” (Id. at *9-10.)

The IRIS Management case (which contains very little legal or factual

analysis) was decided under Nevada law. Nevada, unlike California, has a

statute that specifically allows a preliminary injunction to be issued when it is



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established that defendant “is doing or threatens, or is about to do” some act

“tending to render the judgment ineffectual.” (Id. at 113-114.) Though the court

does not describe what evidence was presented in support of the motion for

preliminary injunction, the court concluded that sufficient evidence was

presented to meet the requirements “contained in the Nevada preliminary

injunction statute.” (Id.)

These cases have no application here.

D. A Balance of the Hardships Weighs in Favor of Defendants.

“Traditional standards for granting a preliminary injunction impose a duty

on the court to balance the interests of all parties and weigh the damage to each,

mindful of the moving party's burden to show the possibility of irreparable injury

to itself and the probability of success on the merits.” Los Angeles Memorial

Coliseum Com. v. National Football League, supra, 634 F.2d at 1203.

Here, the balancing of the interests strongly weighs against TEN. TEN

has filed a simple breach of contract action in which it seeks only monetary

damages that are readily ascertainable. Injunctive relief is not appropriate in

such cases. Though TEN argues that “there is real concern that Defendants will

commingle and/or use the funds . . . in violation of the PSA,” they present

absolutely no evidence to support this assertion. Furthermore, TEN’s Motion is

premised on the false assumption that Spurlock’s tweet somehow breached the

Agreement, which it clearly did not. In fact, there is little, if anything, that

weighs in favor of granting injunctive relief.

On the other hand, there are strong reasons to deny injunctive relief. First

and foremost, TEN has wholly failed to meet its burden of establishing

irreparable harm and the likelihood of success on the merits – by far the most

critical factors in the analysis.

Second, granting the relief requested is tantamount to granting TEN an

attachment on Warrior Poets’ bank account without requiring TEN to meet the



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standard for an attachment. Similarly, granting the injunction effectively grants

TEN the relief it would seek at the trial on the merits. Such injunctions are

disfavored and are subject to a heightened standard. See, e.g., Sanborn Mfg., Inc.

v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 486 (8th Cir. 1993).

Third, locking the production account will prejudice Warrior Poets. The

mere fact that TEN has chosen not to proceed with the Project does not mean that

Warrior Poets should be precluded from paying expenses that have been incurred

in connection with the Project.

Fourth, if TEN wants to get control of the production account, the

Agreement gives it a mechanism to do so, by taking over the production. If TEN

chooses not to take over the production, this Court should not grant it benefits to

which TEN is not entitled under the Agreement.

Fifth, though the Motion purports to seek return of the funds in the Project

production account, it actually seeks disgorgement of all funds in Warrior Poets’

operating account. If granted, this would cripple Warrior Poets’ business

operations.

Sixth, granting an injunction against Spurlock is patently unfair as he is not

even a party to the Agreement, and has no financial obligations under the

Agreement.

A balancing of the equities weighs strongly in favor of denying the

Motion.

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IV.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that this Court

deny the motion for preliminary injunction, in its entirety.

Respectfully Submitted, DATED: April 16, 2018 MURPHY ROSEN LLP

By: Paul D. Murphy David E. Rosen Mark J. Nagle Attorneys for Defendants Morgan Spurlock and Warrior Poets Inc.

/s/ David E. Rosen



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DECLARATION OF MORGAN SPURLOCK

I, Morgan Spurlock, hereby declare as follows:

1. I am a party to this action. I am also an officer and director of

Warrior Poets Inc. (“Warrior Poets”). I make this declaration in opposition to

Turner Entertainment Networks, Inc.’s (“TEN”) motion for preliminary

injunction. The facts set forth herein are personally known by me to be true and

correct and if called upon as a witness, I would competently testify thereto.

2. Warrior Poets is a New York based production studio formed in

2004. Over the years, Warrior Poets has been credited with more than 50 motion

picture and television productions. These projects run the gamut of subject

matters. Motion pictures include: The Greatest Movie Ever Sold; Where in the

World is Osama Bin Laden?; Rats; and One Direction: This Is Us. Television

projects include: 30 Days (FX); I Hart Food (Food Network); Morgan Spurlock:

Inside Man (CNN); and Springfield of Dreams (Fox Sports/Fox/MLB).

3. By 2017, Warrior Poets employed three lead staff producers: me,

Matthew Galkin and Jeremy Chilnick. I am a writer, director and producer. My

first film, Supersize Me, won me Best Directing honors at the Sundance Film

Festival and was nominated for an Academy Award for Best Feature

Documentary. Matthew Galkin has produced many documentary films and

television series for Warrior Poets, including a number of award winning

projects. Jeremy Chilnick is an Emmy-nominated writer and producer who

produced and executive produced many Warrior Poets projects.

4. In 2017, Mr. Chilnick also served as the Chief Operating Officer for

Warrior Poets and was primarily responsible for running the day-to-day

operations of the company. Though I was the Chief Executive Officer of

Warrior Poets and ultimately responsible for the company, my day-to-day focus

was on the creative side of the company, not the business side.



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5. In March 2017, TEN retained Warrior Poets to produce and

executive produce a television series entitled Who Runs The World? (“the

Project”). The terms of the deal are set forth in a Production Services Agreement

(the “Agreement”). The Agreement provides that Warrior Poets will furnish me

as executive producer of the Project. However, I am not a party to the

Agreement. I signed the document solely for the purpose of acknowledging that

the Agreement concerns my “services and/or rights.” This was necessary

because the Agreement requires me to consent to TEN’s use of my name, voice,

likeness and biography, and requires Warrior Poets to make me available for

various appearances at marketing events.

6. Consistent with my overall role in Warrior Poets, my work on the

Project focused on the creative side, not the business side. I was not involved in

the process of determining how the money funded by TEN was spent or how

those funds were accounted for. I did not sign any checks in connection with the

Project. I have not received any compensation for my work on the Project. (My

compensation would have come at the end of the Project.)

7. On December 13, 2017, I tweeted the phrase “I am Part of the

Problem” along with a link to a statement that I wrote. A copy of that statement

is attached as Exhibit C to the complaint. On December 14, 2017, I checked

myself into a rehabilitation facility to seeking treatment and therapy. Also on

December 14, I advised Mr. Chilnick and Mr. Galkin that I would be temporarily

stepping down from my leadership role at Warrior Poets while I sought

treatment. I remained at the rehabilitation facility for thirty days. I have since

returned to work for Warrior Poets.

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8. In the Motion, TEN identifies by account number the bank account

it asserts is the Project's Production Bank Account. I have been told by Warrior

Poets' accountant that, in fact, the account identified is not the Production Bank

Account, but is actually Warrior Poets' general operating account.

I declare under penalty of perjury under the laws of the United States that

the foregoing is true and correct.

Executed this 161h day of April, 2018, at New York, New York.

-19- PRINTED ON RECYCLED PAPER

OPPOSITION TO MOTION FOR PRELlMINARY INJUNCTION


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