While Hollywood waits for further indictments in the Pellicano probe, the trickle of civil suits by alleged wiretap victims is threatening to become a flood.
But the real attention is shining upon Bert Fields’ future should any of these allegations be proven.
Front and center is Bo Zenga, an executive producer on “Scary Movie,” who lost a bitter lawsuit with Brad Grey in 2002 over profits on the movie.
Last week Zenga amended his 2004 civil suit against Anthony Pellicano and former LAPD officer Mark Arneson to add claims for illegal wiretapping, invasion of privacy and other torts against Grey; Fields and his law firm, Greenberg Glusker Fields Claman Machtinger & Kinsella; and Brillstein-Grey Entertainment, Grey’s management company before he took the helm at Paramount last year.
In addition to damages, the suit seeks to reopen the “Scary Movie” case. Zenga’s suit marks the first civil suit against either Fields or Grey in connection with the wiretap probe.
Greenberg Glusker is an all-purpose firm with more than 100 lawyers; it could easily weather an isolated tort suit by Zenga.
But if it is the first of several suits by alleged victims in cases where the firm used Pellicano, the consequences could be different. While courts are extremely reluctant to actually reopen cases that have been adjudicated or settled, victims of Pellicano’s wiretaps can bring claims against the firm for illegal wiretapping, a statutory crime in California, along with claims of invasion of privacy, disclosure of confidential information and intentional infliction of emotional distress.
The landscape changes if the firm or any of its partners is indicted. Brian Sun, the firm’s attorney, has denied any wrongdoing by the firm and has said it and Fields are in ongoing negotiations with federal prosecutors.
It remains to be seen whether Zenga’s suit against Greenberg Glusker is just the first of many or what impact it will have on the firm. The Pellicano indictment listed several cases involving the firm where Pellicano ran illegal background checks or wiretaps, including cases where Sylvester Stallone and Aaron Russo were in litigation against firm clients.
In addition, Andrew Stevens, Elie Samaha’s former partner at Franchise Entertainment, retained Fields in connection with a failed settlement agreement with German distributor Intertainment. Stevens never sued, but the FBI informed Intertainment U.S. president Stephen Brown that he had been wiretapped. When Intertainment sought to depose Fields in its then-pending case with Franchise, the motion was denied (Daily Variety, Dec. 1, 2003). The Franchise case ultimately went to trial, resulting in a jury verdict for Intertainment.
Laurie Levenson, who teaches criminal law at Loyola Law School, said the negotiations could have many outcomes.
“If you’re on the tape, you’re in trouble. If you’re not on the tape, prosecutors have to shore up their case,” Levenson explained. The end result could be an indictment or a plea aimed at avoiding jail time.
The one outcome that won’t happen, Levenson said, is exoneration. “There are lots of reasons why federal authorities decide not to prosecute, but it’s not a clean bill of health. You’re always under a cloud.”
As for Zenga’s case, in a statement, Sun said: “If any wiretapping took place, it was not done at the direction or with the knowledge of Greenberg Glusker or any attorney in that firm. We believe that, like Mr. Zenga’s first lawsuit, any claims in this lawsuit against Brillstein-Grey or Greenberg Glusker are wholly lacking in merit.”
Paramount spokeswoman Janet Hill said, “Neither Brillstein-Grey Entertainment or Brad Grey knew of or condoned any illegal activity by Mr. Pellicano at any time, ever. Mr. Zenga is trying to reopen a lawsuit that both the trial court and court of appeals threw out as meritless.”
Although Zenga had been informed earlier by the FBI that his phone had been tapped, it was not until Pellicano was indicted in February that they felt they had enough information to sue Fields and Grey, according to Zenga’s attorney Gregory Dovel, who also handled the “Scary Movie” suit.
The indictment indicated Zenga was wiretapped and his business associates and family members were subjected to illegal background checks in 2001, while the “Scary Movie” suit was pending.
The original suit against Grey alleged that Zenga was called in by Peter Safran, then a manager at Brillstein-Grey, to doctor a script on what became “Scary Movie.” The suit alleged Zenga had an oral agreement to be equal partners with Brillstein-Grey; although there was no written contract, Zenga contended that correspondence with Miramax, which ultimately bought the project, as well as submissions to the WGA and internal emails buttressed his claim. The amount of money involved was significant: Instead of the $150,000 fee and executive producer credit he got, Zenga claimed he was entitled to $3.5 million as back-end participation on the low-budget hit that went on to gross $157 million domestically.
Through what at the time seemed like normal discovery methods, Grey’s attorneys learned a scriptwriting contest Zenga won was a scam. There were other fabrications in his resume, such as the fact that he represented himself as a successful investment banker-turned-filmmaker when he actually had declared bankruptcy. By the time the case came to trial in 2002, Zenga’s nearly unprecedented assertion of his Fifth Amendment right not to answer hundreds of deposition questions about the contest and his background became the focus of the case. As a sanction, L.A. Superior Court Judge Robert O’Brien barred Zenga from testifying at his own trial.
Laying out his strategy at the time of trial, Fields said: “No reasonable person will believe that Brillstein-Grey, with 20 years of producing credits and a seven-figure deal at a major studio, formed an equal partnership to make a picture with someone they never heard of, who had never produced a picture, who didn’t control the property, who handed out a resume filled with misstatements and who took the Fifth over 300 times in his deposition.”
Zenga issued his own statement, which in retrospect looks prescient: “For the last 22 months, Brad Grey and his attorneys have harassed me, my family and friends to pressure me to drop this lawsuit. I am not letting Grey off the hook.”
At the close of Zenga’s case, O’Brien took the unusual step of taking the case away from the jury and granted a non-suit for Grey. The California Court of Appeal affirmed, specifically holding that barring Zenga from testifying at trial was an appropriate sanction for his refusal to answer questions about the contest. Additionally, the court found the evidence didn’t support Zenga’s claim of a partnership with Brillstein-Grey.
Zenga’s current suit casts a different light on the underlying case. It alleges Grey’s use of Pellicano gave him an unprecedented advantage, which led directly to Zenga losing his lawsuit. If he had not asserted the Fifth and been barred from testifying at his own trial, he alleges, the outcome would have been different.
Grey initially decided to avoid Pellicano, the suit says, because he relied so heavily on illegal methods. (Grey was well acquainted with Pellicano’s and Fields’ work from an earlier case involving Garry Shandling, the suit alleges). But after Grey’s deposition, he decided to unleash Pellicano.
Pellicano prepared written summaries of the calls to disseminate the information to Grey and his attorneys, the suit claims. Samples of these reports are included in the complaint; it is unclear how Zenga obtained them, and the U.S. Attorney’s office did not respond to an email seeking comment.
In addition to listening in on conversations between Zenga and Dovel about litigation strategies, Pellicano also learned Zenga was trying to get copies of his old checks. Although it is not detailed in the complaint, it appears the overheard conversations about the bank accounts led Grey’s attorneys to the discovery of the sham contest.
ere have not been reports of large-scale departures from Greenberg Glusker, but a legal publication reported last week that famed litigator Howard Weitzman, who has been at the firm less than a year, is considering starting his own firm. Weitzman declined to comment on his plans.
In other civil fallout from the Pellicano probe, actor Keith Carradine sued Pellicano on Friday. Carradine’s ex-wife hired Pellicano, who illegally wiretapped Carradine. Also weighing a suit is Lisa Kerkorian, Kirk Kerkorian’s ex-wife, who was wiretapped in child support proceeding. Kerkorian’s attorney, Terry Christensen, was indicted last month on wiretapping charges.
Federal prosecutors, who have told the court to expect further indictments, already have indicted 13 people including Pellicano for their role in schemes in which he ran illegal wiretaps and background checks on behalf of his lawyer clients who were engaged in litigation. Of the high-profile lawyers who were Pellicano’s clients, only Christensen has been indicted.
Fields, who acknowledged almost three years ago that he is a subject of the grand jury probe, has not been indicted and denies any knowledge of Pellicano’s illegal activities.