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Old 03-16-2020, 01:33 PM   #1
CrissCross
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Default Force de Majeure

I have an option with a Producer expiring next week. I have not heard from this person in a while. I am assuming they are 1) not renewing 2) haven't looked at the agreement in a while to see when it ends 3) plan on renewing this week.
However, there's a clause in the contract called "Force de Majeure". This basically means that if there's a force of nature or act of G-D during the time of the option that the contract can be suspended until things get better. Here's more of a legal explanation. Force majeure refers to a clause that is included in contracts to remove liability for natural and unavoidable catastrophes that interrupt the expected course of events and restrict participants from fulfilling obligations.
I don't think there's any lawyers on this site, but my guess is that the Corona Virus is a Force de Majeure. Any thoughts would be appreciated.
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Old 03-16-2020, 01:45 PM   #2
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Default Re: Force de Majeure

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Old 03-16-2020, 02:07 PM   #3
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Default Re: Force de Majeure

I'm not WGA
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Old 03-16-2020, 03:55 PM   #4
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Default Re: Force de Majeure

I'd lean more towards it's not quite so much a force de majeure. Granted it's a a huge problem on many levels, but technically speaking executives, producers, reps, writers, directors, etc. can all still work from home. They can still read scripts, give notes, discuss deals, and so on. Yes, generally face-to-face meetings are involved with scripts deals, but still, they could technically do it without an actual physical meeting just based on the script, a FaceTime or Skype call, and so forth. (See the "Alternative methods of performance" section.")

Here is one of surely a few articles out there about all this:
https://www.haynesboone.com/alerts/i...-majeure-event

I think it will depend in many ways on how "difficult" this producer is and whether any court would actually agree to his claims. Probably no way to truly know without going to court. And if this person can't do it right now, or everyone is holding off, then probably not a ton of places to turn to right now anyway.

I might suggest simply not reaching out and just letting it lapse. If the producer doesn't contact you and "properly" call for/make a declaration of "force de majeure" to extend the option for a set period of time, I don't think they will have a leg to stand on. It'd be like calling your insurance agency years later to file a claim on an accident. One has to act within a (very) reasonable amount time and the parties involved have to be properly notified in a timely fashion.

Not a lawyer, but I'd say lay low and see, if you can.
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Old 03-17-2020, 12:30 AM   #5
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Default Re: Force de Majeure

While this is not about the entertainment industry, the article is worth reading for general knowledge:

https://techcrunch.com/2020/03/16/ca...-start-trying/
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Old 03-17-2020, 02:04 AM   #6
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Default Re: Force de Majeure

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I might suggest simply not reaching out and just letting it lapse.
I've had numerous options lapse and this isn't the best course of action, according to the legal advice I've received. Better off contacting the producer and politely alerting them to the expiring option, if no response or renewal, send another email informing them they no longer have claim to the material. Then you're free and clear (unless you incorporated a bunch of their notes and didn't protect yourself in writing from any creative claims).
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Old 03-17-2020, 08:08 AM   #7
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I've had numerous options lapse and this isn't the best course of action, according to the legal advice I've received. Better off contacting the producer and politely alerting them to the expiring option, if no response or renewal, send another email informing them they no longer have claim to the material. Then you're free and clear (unless you incorporated a bunch of their notes and didn't protect yourself in writing from any creative claims).
Fair enough. And normally, I would actually suggest sending a polite note reminding them the option has fully ended, politely "thank" them and note you're moving on -- after the option was truly done, even allowing for a few days or so to pass first. Didn't mean to suggest someone should run off into the night with their script. (I naturally assumed there would always be some decorum in all this. I should have been clearer about that to be safe.) But I'll still say, the producer needs to alert you in writing if they want to push the option ending date, as in this case. Just as much as someone says, you/the writer should write to them, they need to write you even more so, particularly if they want to extend the contract due to circumstances. Notice should be given before the option runs out. A push can't be assumed especially when no timeline is established or presented. It cannot be some overly arbitrary/vague date or time extension, of course, they assign at their desire. None of us know how long this will last but some kind of "end date" has to be established in writing and that should be in the producer's court in terms of formally announcing a timeline based on the option agreement.

If CC does write, which is fine, obviously they should not allude to or mention the current climate. Keep it very short, simple and "sweet." Force the producer to bring up the issue. Also, there is only a week left in the option agreement. Considering only production has been truly halted, development can still technically go on, so there is not some grand argument for "fm" at this time, anyway.

And yes, of course, on any notes CC might have incorporated. That's a whole different ball of wax and complication.
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Old 03-17-2020, 12:29 PM   #8
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Default Re: Force de Majeure

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Originally Posted by Done Deal Pro View Post
I'd lean more towards it's not quite so much a force de majeure. Granted it's a a huge problem on many levels, but technically speaking executives, producers, reps, writers, directors, etc. can all still work from home. They can still read scripts, give notes, discuss deals, and so on. Yes, generally face-to-face meetings are involved with scripts deals, but still, they could technically do it without an actual physical meeting just based on the script, a FaceTime or Skype call, and so forth. (See the "Alternative methods of performance" section.")

Here is one of surely a few articles out there about all this:
https://www.haynesboone.com/alerts/i...-majeure-event
As we advance deeper into this pandemic, it is likely to be considered a force de majeure. Projections estimate the industry expects to lose a minimum of $20 billion, seems more than just a bad situation. It's a devastating disruption, right?

Couple that with the fact that almost all production has been halted for both TV and Film-- panic and fear is understandable. Right now, things are shut down for two weeks, but that might be a placating action to stifle panic in the short term. The reality might be July.

The US government is saying to avoid groups of more than 10 for eight weeks. That seems a more realistic timeline. Analysts are predicting we could lose 1 million jobs in March alone (all industries). Theaters are closing globally. This could put production companies out of business.

The Dow had its single greatest point drop in history. Some are saying "depression" instead of "recession." It doesn't matter if your bills are $1,000/month or $12,000/month, if you cannot pay your bills that's increased stress, increased stress suppresses your natural immune system, which increases your risk of COVID-19 affecting you more severely.

Schools are closed, restaurants are limited to pick up only, bars are shutting down, gyms are closing, and this's only the beginning. I wouldn't doubt if they shut down malls next.

This article was written on 3.11.20 and though it's only six days ago, so much has already changed in that short period of time. A week ago there were like 700 cases of Coronavirus in the US, now there are more than 5,600 in less than a week.

I'm not a lawyer, but I think this is just beginning.

I would reach out to the producer.

What I think is most important to note, there is no stopping this outbreak. We can only mitigate its impact. It will run its course-- the test for US is how well we manage it.

I'm tracking the outbreak here https://www.worldometers.info/coronavirus/ and this is the second day in a row that Italy has had more than 3,000 new cases in 24 hours and over 300 deaths again today. And this is a country that is supposedly "shut down" from the rest of the world. We're on track with where Italy was several weeks ago. The numbers reset every day at midnight I think, so I refresh it each day in the morning and afternoon, because Italy's numbers post in the afternoon here.

Actually, just checked DDP deals for March and deals are still being made, so maybe things are still moving forward. It seemed that Deadline and THR has been a bit dead lately.
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Old 03-17-2020, 12:58 PM   #9
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Default Re: Force de Majeure

Yes. As it all goes further and further along, who knows what will happen with development. It's (going to be) tough for everyone. At a certain point if this all drags on, buying or optioning stuff probably won't make much sense, since one can't really do a whole lot without meetings, casting, pre-production, etc.

Again, I'm more referencing CC's current situation of, the option agreement runs out in a week. I don't think this producer can really call force de majeure at this time. Production, yes. Clearly that is happening and is being reported on every day. But I don't think anyone can say all development including options or possibly purchases has ended -- at least not yet and as it applies to this situation. (I have seen nothing on that, yet.)

We're talking about an agreement which runs out in roughly seven days, essentially. I'd say reach out after it's done and as has been noted, send a nice note putting in writing it's "your" understanding the option has run out etc. -- especially if CC wants to move on.

As far as everything else, it's a wait and see. And the stuff I'm listing on the main site is for the indie world only right now, and some of those announcements are coming out delayed.
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Old 03-17-2020, 02:37 PM   #10
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Default Re: Force de Majeure

I haven't heard from the Producer in about five months and they've had two years to shop it, so blaming Corona and using it as an excuse doesn't really cut it. My writing partner wants to just go merrily on our way the day after the option expires because we do have other directions we can go. The contract also stipulates that we need written notice that they want to extend as well as cash payment. So I'll be checking my mailbox as well.
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