Kevin Spacey’s life exploded back in 2017. A Buzzfeed article laid bare allegations about behaviors that had been rumored for a long time. Actor Anthony Rapp alleged that Spacey had made a sexual advance in 1986 when Rapp was 14.

House of Cards halted production. Then a CNN story accused Spacey of creating a “toxic” environment on set by making crude comments and engaging in non-consensual touching of young male staffers.

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Projects were canceled, he was recast and edited out of movies. Hollywood cancel culture, so terrified of the skeletons in its own closets, move faster than any other.

He was completely removed from House Of Cards on Netflix. This is despite the show being five seasons old already with him in the lead role. His character was suddenly written out of the sixth season with the equivalent subtlety of Poochie dying on the way back to his home planet. Production company MRC had to trim the season from thirteen episodes down to eight.

They claimed significant loss of earnings and said it was all Spacey’s fault. Pointing to behavioral clauses in his contract, they sued. The case went to arbitration and MRC won a confidential ruling against Spacey in 2020.

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It turns out the amount in question was $31 million and attorneys for Kevin Spacey are seeking to have it thrown out due to a combination of factors. Spacey’s lawyers filed an opposition on Friday, asking the court to set the ruling aside. The attorneys argue that Spacey did not engage in sexual harassment and did not violate MRC’s anti-harassment policy:

“The truth is that while Spacey participated in a pervasive on-set culture that was filled with sexual innuendoes, jokes, and innocent horseplay, he never sexually harassed anyone.

In fact, as the evidence established and the Arbitrator recognized in the Award, the few times Spacey was told that his conduct made someone feel uncomfortable or was in any way unwanted, he stopped.”

There is also a technical hitch regarding Netflix and their actions. According to the lawyers, Netflix co-CEO Ted Sarandos sent an internal email within hours of publication of the CNN story, in which he said:

“Let’s announce tomorrow that there is NO scenario in which Kevin Spacey will appear in any version of a final season of the show.”

Sarandos also canceled a movie, Gore, which Spacey produced and starred in, and which was then already well into post-production.

However these decisions were taken by Netflix BEFORE the arbitration decision, and this conduct was not, at the time, part of the CNN story that was the trigger for Netflix’s actions.

Therefore they – Netflix – pulled the plug and cost MRC the money, not Spacey as at the time the plug was pulled nothing was confirmed. Netflix jumped the gun. The contention is that the damages MRC ultimately suffered could not have been caused by alleged misconduct discovered under arbitration, as it was not known at the time, and also Netflix’s own internal investigation had not even started when the decision was made to pull Spacey from House Of Cards.

It’s a pure technicality, but like all technicalities, it appears correct. In rushing to be seen to be doing the right thing, Netflix may well have screwed itself here. Back to the lawyers:

“As the Arbitrator recognized, the reduction in episodes was a foregone conclusion once Netflix dictated to Petitioners that Spacey could not and would not be a part of Season 6.

But what the Arbitrator ignored is that the conduct he found to be in breach of the Agreements was not even known by Netflix at the time it made this decision. In other words, the breaches found by the Arbitrator could not have been related to Petitioners’ damages because those damages had already been caused by the time the breaching conduct was known.”

American courts are usually very reluctant to overturn arbitration rulings, otherwise arbitration becomes useless as a dispute resolution tool. But the facts and the timelines around the technicality seem legitimate.

Billable hours must flow!

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