Two of my least favorite things—misogynistic frat-boys and frivolous lawsuits—together at once. Three Chi Psi fraternity brothers from the University of South Carolina, after signing waivers and getting paid $200, got caught drunkenly wishing for slaves and making other obnoxious sexist and racist remarks on film to Sasha Baron Cohen in his character of Kazakh journalist Borat; those scenes appeared in the movie. They’re now suing, wanting takebacks. TMZ has the Los Angeles Superior Court complaint, which asks for an injunction, punitive damages, and attorneys’ fees. (I look forward to the discovery on the “false light” claims that suggest that the plaintiffs never would say such things as they were recorded being said.) Earlier, a friend of one of the frat boys asked Metafilter for advice. The complaint is filed by John Does, but Chi Psi David Corcoran has already bragged about the experience to FHM. Frat president Todd Bailey talks about the story to the local paper.
(Update: Upon further review, I see that the complaint alleges that the movie “falsely depicted them as insensitive to minorities.” There is no allegation that the movie falsely depicted them as insensitive to women. In the trade, that’s known as a negative pregnant.)
(Second update: Bashman with a roundup of links and Lat with sardonic commentary.)
8 Comments
The fifth comment in the MetaFilter thread:
He could threaten to sue the filmmakers, claiming that they defrauded him by falsely representing the nature of their film, which is not in fact a documentary about Khazakstan.
I assume he would be unlikely to succeed. Lawyers will know better.
Wow, who knew that people actually follow the advice in Ask MeFi?
Is this really frivolous, if, as the complaint alleges (as described by Yahoo! news) the producers got the frat boys drunk and *then* had them sign the waiver?
Furthermore, the complaint alleges that they were specifically told that:
a)the film would not be shown in the U.S.
b)their names, fraternity, and university would not be given
These were both deliberate falsehoods.
Honestly, Ted, if the facts as stated by plaintiffs are true, is there any way that this is not clearly fraud?
Don’t we still want clear-cut (again, assuming plaintiffs’ facts are accurate) fraud to be actionable, even when the plaintiffs are unsympathetic and the results of the fraud were funny?
I suspect, though it is not explained in the complaint, that the false depiction may hinge on complaints about how the footage was edited. If that’s the case, that would also seem to be a legitimate complaint.
note: I have not seen the film. I do think Sasha Baron Cohen is very funny.
1) If the producers were foolish enough to get the participants drunk before giving them the waivers, then, yeah, they’re going to have problems. The producers didn’t need to get anyone else drunk to sign a waiver, however, so I am extraordinarily skeptical that that is what happened here with a bunch of frat boys. (I’m also extraordinarily skeptical that the frat boys aren’t just as racist when they’re sober. Like I said, the discovery will be interesting, though this will likely get thrown out before then.) As we’ve seen time and time again, just because something is in a complaint doesn’t mean it’s true.
2) Tsiroth, if the waiver has an integration clause disclaiming oral representations (as it does appear to do in Clause #5), then I don’t have a problem with oral representations not counting in the inquiry. The written contract overrides the oral discussions, and has to, even in cases like this, or all contracts lose their legal enforceability.
Ted, I’m not a lawyer, so perhaps you can clarify things for me.
1) To form a contract, there has to be a meeting of the minds. Can there truly be a meeting of the minds if one of the minds is drunk? If there was no valid contract then maybe the guys have a case.
2) On the other hand, are we not held responsible for our behavior even if we are drunk? Can you imagine the reaction of the Court if you try to plead that you can’t be responsible for drunk driving because the drink made you lose your judgment?
3) Would issues of contributory negligence be involved? The producers of Borat didn’t force the frat boys to get drunk. They chose to do that on their own, even if, as they allege, the producers paid them to get drunk. Also, Borat did not put words into their mouths. Drinking lowers one’s inhibitions. It doesn’t make you adopt an attitude that wasn’t already there. They were the ones who chose to utter racist comments and I fail to see how he captured them in a false light.
Having said that, if everything they allege in the complaint is true then Borat may be guilty of fraud and the contract may be invalid. Yet it was their contributory negligence that got them drunk and got them to make asses of themselves. If they make their case then shouldn’t the Court take their own negligence into consideration and give them a $1 settlement?
The frat boys have the burdern to prove a case that is a he said she said discrepancy. It’s going to mighty difficult to prove:
1) That they were encouraged to and were drunk when they signed the waiver
2) That they were told they identies, i.e., names, fraternities, would be kept secret
3) That the movie would not be shown in the U.S.
I assume that waiver would either mention these and prove points 2 and 3 for the plantiffs, or isn’t mentioned at all and is moot point. As I see it, they only have a claim on the first point, which comes down to testimony.
Side question: I haven’t seen it yet, but I’m from South Carolina (Clemson). Are the frat guys from University of South Carolina?
I’m reminded of the Mel Gibson thing. The guy’s real worry should be that he makes obnoxious sexist and racist statements at all. You can get me blind drunk on grain alcohol, and not a racist or obnoxious sexist thing will come out of my mouth — because that stuff’s not in my head. Perhaps the guy should sue himself for not acting in his own best interest?
I have to say I saw the film last night and was shocked that all of the people in the film would sign a waiver knowing the true nature of the film. I think the mere incredibility that people would so willingly act like baffoons knowing that the footage would appear in a hugely successful U.S. motion picture is evidence that the film’s participants were in fact unaware. Of course, Cohen owned no duty of disclosure, but one really has to wonder what sort of affirmative misrepresentations were made to make people as comfortable as they were under the circumstances. The rodeo guy is already making noice that he was duped too.
If Cohen / the production company made false representations of fact, and the participants relied on those representations when signing the agreement, the waiver will be deemed null and void, regardless of any integration clause.
I think the sheer unbelievability that people would sign the waiver without knowing the nature of the film, as well as the testimony of others who I expect will come forward claiming to have meen misled, will go a long way to supporting the frat boys’ claim that misrepresentations were made. So, unless I am missing something, I think the claim is far from frivolous.