Lionsgate seeking to toss Weinsteins' 'Push' suit

By Matthew Belloni

We had a feeling this shoving match over "Push" wasn't going to settle quickly.  

Lionsgate has hit the ground running in its bi-coastal battle with the Weinstein Co. over the Sundance award-winner, asking a judge in New York to throw out the Weinstein case less than a week after it was filed.

In papers submitted quietly last week (click here and here and here for the full documents), Lionsgate argues that the question of who owns distribution rights to "Push: Based on the Novel By Sapphire" should be answered in an LA courtroom, where Lionsgate filed a declaratory relief action on the morning of Feb 4, six hours before the Weinsteins filed three separate cases in New York against Lionsgate, sales agency Cinetic and a producer of the film.

The jurisdiction argument mirrors what Lionsgate attorney Patti Glaser told us the day the cases were filed. We spoke with her again last week and she reiterated that filing in good faith in LA before the New York action clearly entitles her clients to litigate in LA.

Not surprisingly, the Weinsteins lead lawyer, Bert Fields, disagrees. We talked to him today and he shot down the race-to-the-courthouse argument. Fields says he's prepared to cite plenty of cases denying jurisdiction to the party who files first, and he's confident that New York judge Michael D. Stallman will see the Lionsgate LA lawsuit as a bad-faith preemptive move.   

Regardless, Lionsgate's motion to dismiss also previews a more substantive argument, one that gets to the heart of what makes this an interesting case. The minimajor argues that the lawsuit should be dismissed because the Weinsteins don't even claim they had a written agreement to buy the film. Instead, the motion argues, TWC alleges that its execs entered into an oral agreement with Cinetic reps to buy distribution rights (followed up by a vague, possibly confirming email exchange), and intellectual property rights can't be transferred by an oral agreement:

• "Because Weinstein's alleged agreement for the rights to 'Push' was never written...Weinstein cannot, as a matter of law, meet the essential element of having a valid contract and its sole cause of action therefore cannot stand."

Lionsgate, of course, has a written deal to acquire North American distribution rights for around $5 million.

We asked Fields what he thought of the theory and he said it was the kind of argument you make "when you don't have a real argument." We'll likely see a more detailed rebuttal when TWC files its response, and we're sure Fields and co-counsel David Boies are preparing their own motion to dismiss the LA case, which we're sure will point out all the reasons these issues need to be litigated in New York.