By Eriq Gardner, The Hollywood Reporter
“It was bad enough they got knocked off the show,” a lawyer for 10 former contestants says at a court hearing on Thursday.
On Thursday, U.S District Judge Naomi Buchwald heard oral arguments in a lawsuit that aims to put the spotlight at what has occurred behind the scenes of Fox’s long-running singing competition show American Idol, which at its height was the most watched television program in the nation.
Nearly a dozen former African-American contestants are suing Fox, producers and sponsors over disqualifications, alleging racial discrimination and fraud have led to a show that is not really the fair contest it presents itself as being. Whether the plaintiffs can overcome roadblocks to advance the suit into the next round was the debated topic of today’s hearing.
Judge Buchwald is no Simon Cowell. If she was inclined to rule one way or another, she kept it to herself. But during the hearing, she basically declared that she would never certify a class action in this lawsuit — she said it would not meet the “numerosity” requirement — and she also appeared to be discomforted by the notion that there are online databases out there that offer sweeping background checks against people. “I think it’s legal, but it offends me on some level,” she said.
During the hearing, attorney James Freeman, who represents the plaintiffs (including second-season contestant Corey Clark, the only one who was in attendance), made emotional pleas.
“This was marketed as a bona fide competition where the contestants would be judged as singers,” he said. “We believe that is not what it was. Moreover, when the singers signed up, it was not foreseeable that producers would do background checks on them and leak it to the press. They used the background data without consent and had rap sheets pulled by databases used by law enforcement and security organizations.”
Freeman says that Fox has a global security operation that allows the entertainment company access to the most powerful databases, and that producers sent the information that was used to disqualify contestants to TMZ and other gossip outlets to humiliate them. “It was cruel,” said the lawyer. “It was bad enough they got knocked off the show, not based on their performances. They were then ostracized. … It hurts at a deep human level.”
Unfortunately for Freeman, the heartfelt appeal likely won’t sway the judge. It’d be more proper before a jury at trial, should the case ever get there. Most of the hearing was taken up by why the case might not survive much longer — in particular, the statute of limitations, which Daniel Petrocelli, representing the defendants, told the judge presents the “simplest and most direct path of dismissal.”
The statute of limitations on the anti-discrimination claims is just four years, while all but one of the plaintiffs — season nine contestant Chris Golightly being the exception — are suing over disqualifications that happened more than four years ago. Freeman is attempting to beat this defense by arguing that the claims accrue not from the time of injury, but from the time of discovery — and here, it’s the results of a statistical study that was commissioned after the disqualification of season 11 alum Jermaine Jones that is said to be key. The study allegedly shows that the disqualifications couldn’t have happened by random decisions on the part of producers, that there is “a prima facie case of racial discrimination as a matter of law with absolute zero percent chance of error.”
Freeman said that before the statistical study was released, he could never have beaten a motion to dismiss. The discrimination doesn’t have to be racial animus per se, but could be stereotyped thinking, argued the attorney, and proof of that is aided through the discovery of statistical evidence.
But Petrocelli countered that every one of Freeman’s case law citations (here’s an example) to support the argument that the lawsuit isn’t time-barred relate to non-discrimination laws. Petrocelli had his own case law citations, buttressing the point that if Judge Buchwald allows the lawsuit over disqualifications so long ago to proceed, she’ll be stepping away from much precedent.
Even if the lawsuit survives the statute of limitations defense — which also goes to show how long American Idol has been on the air — it will have to jump over other hurdles like the First Amendment.
Petrocelli argued that speakers get to dictate their messages, nodding to a famous 1995 Supreme Court decision that determined that parade organizers weren’t compelled to include the participation of a gay group as well as a federal judge’s dismissal in 2012 of a racial discrimination case against producers of ABC’s The Bachelor.
Freeman reminded the judge about the fraud claim — “Is it a fake contest or a real contest?” — and argued that the First Amendment isn’t a bar to tort claims. The metaphor he used was a guy who holds up a swastika as he walks down the street. That guy has free speech and is allowed to do that with impunity (unless perhaps, the cops think he’s inciting disorder). What the guy can’t do is carve a swastika into a synagogue. That’s a crime against one’s personal property, the attorney asserted.
But even if the plaintiffs survive both statute of limitations and the First Amendment, they’ll also have to beat the release forms they signed as a condition for appearing on the program. Those contracts pretty much allowed producers to take almost whatever actions they wished for purposes of the show.
The one thing that might not have been expressly discussed in the release forms was authorization to do background checks. Freeman says the checks were conducted without consent. The producers still might have been perfectly free to use the information as they wished — the judge pointed out that anything said to the media about the contestants was likely to be truthful — but if for some reason, the judge believes it plausible that the producers used nefarious means to find out about the plaintiffs’ criminal history (including charges that were expunged), given the judge’s discomfort, it’s not inconceivable that some claim could survive.
Perhaps it will be Golighty’s attempt to void his contestant agreement based on common law fraud. Unfortunately for him, even then, the judge would also have to decide what to do about the arbitration provision in his deal to appear on the show.
Nobody ever said that winning American Idol — or a lawsuit over American Idol — was easy.