Michael Jackson's former publicist cannot pursue litigation against his production company despite the emergence of alleged new evidence in her favor, an appeals court said Tuesday in affirming a lower court ruling, which denied the publicist the at least $44 million she sought in compensation.
Mr. Jackson retained Washington-based Davis Bain & Associates as his public relations firm in December 2003, according to the ruling by the U.S. Court of Appeals for the District of Columbia Circuit in Raymone K. Bain and Davis, Bain & Associates Inc. v. MJJ Productions Inc. and Estate of Michael Joseph Jackson.
Ms. Bain began serving as a spokeswoman and publicist for Mr. Jackson and later became his general manager. Ms. Bain entered into a personal services agreement with Mr. Jackson in May 2006, according to her complaint, said the ruling. She claimed that under terms of that contract, she was owed at least $44 million.
In May 2009, Ms. Bain and her firm sued Mr. Jackson — who died in June 2009 — and his production company, Hollywood, California-based MJJ Productions, claiming that services she had provided included arranging the release of the 25th anniversary edition of Jackson's “Thriller” album.
The defendants moved to dismiss the case, principally relying on a December 2007 release agreement, signed by Mr. Jackson and Ms. Bain, in which Ms. Bain broadly relinquished any claims against Mr. Jackson and his business entities. That agreement provided that Ms. Bain would be paid $489,000, said the ruling.
Mr. Jackson died a week after MJJ filed its motion to dismiss the case. The U.S. District Court in Washington granted MJJ summary judgment in May 2010, holding that the 2007 release agreement precluded Ms. Bain's claims.
'Newly discovered evidence'
Five months later, in October 2010, Ms. Bain sought reconsideration of the ruling based on “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial.”
This evidence was an April 2008 letter from Mr. Jackson to Ms. Bain in which he denied having signed the release agreement upon which the District Court had grounded its dismissal of the case.
Ms. Bain contended that this letter had wound up in a file concerning the Sultan of Brunei, whose property Mr. Jackson had considered buying for a permanent residence, according to the ruling, and was only discovered in June or July of 2010.
But the District Court refused to change its earlier ruling, stating the letter was not newly discovered evidence because Ms. Bain had known about it at the time of the trial, and that she had failed to exercise due diligence in seeking out the letter.
A three-judge appeals panel affirmed the lower court's ruling. “While awareness of evidence standing alone does not categorically preclude considering the evidence to be 'newly discovered'” under the relevant rule of civil procedure, “a party's unannounced awareness of evidence can affect the assessment of whether it exercised the 'reasonable due diligence' contemplated” by the rule, said the appellate panel.
“Bain's efforts to find her own copy of the letter did not relieve her of all responsibility to undertake reasonable efforts to obtain the original letter (or a separate copy) from Jackson, his estate or his counsel,” said the ruling.
“And by failing to apprise the district court of the letter, Bain denied the court any opportunity to assist with locating it,” said the appellate court in affirming the lower court's ruling.