Metropolitan News-Enterprise


Monday, April 27, 2015


Page 3


C.A. Won’t Block Action by Kardashian, West Over Video

Presiding Justice Bigelow Says Action Against YouTube Co-Founder Will Probably Succeed


By a MetNews Staff Writer


YouTube co-founder Chad Hurley has lost a bid in the Court of Appeal to have an action against him by television personality and model Kim Kardashian and her then -fiancé, rapper Kanye West, scrapped under the anti-SLAPP statute.


In this file photo, Kanye West and wife Kim Kardashian attend the Met Gala in New York.

The decision, in an unpublished opinion filed Wednesday, affirms a determination by Los Angeles Superior Court Judge Ruth Kwan. She found that while Hurley’s conduct—posting on the Internet a video, taken at a party, of West’s proposal of marriage to Kardashian—arose from protected activity, the plaintiffs met the burden, which thus shifted to them under the anti-SLAPP statute, of showing a probability of prevailing at trial.

Hurley posted the video not on YouTube—which he and co-founder Steve Chen sold to Google in 2006 for $1.65 billion—but on the lesser known website, MixBit, founded by the same duo in 2013. That site is owned by AVOS Systems, Inc., of which Hurley is CEO.

AVOS is included as a defendant.

Hurley shot the proposal on Oct. 21, 2013, at AT&T Park in San Francisco during Kardashian’s 33rd birthday celebration. Suit was brought 10 days later, and the video was removed on Nov. 11, 2013—after it had received more than 1.5 million hits.

Confidentiality Agreement

The complaint alleged breach of contract based on the “Celebrity Appearance Release” signed by Hurley (and other guests) at the party not to divulge what occurred during the “Program.” The “program” was Keeping Up with the Kardashians, a reality show on the cable television channel, E!; scenes from the party, including the proposal, were aired on it on Feb. 16, 2014.

Writing for Div. Eight, Presiding Justice Tricia Bigelow said:

“Respondents submitted evidence that Hurley signed the release and that it contains a confidentiality clause restricting Hurley from disclosing any confidential information about events and activities relating to the television program, Keeping Up with the Kardashians. Respondents also showed Hurley posted his video of the marriage proposal and the surrounding festivities the day following the event.  Further, Plaintiff’s expert discussed how Hurley’s publication of the video prior to Respondents’ own broadcast usurped their exclusive rights to publicize the event, causing them harm.  This is sufficient to establish a prima facie claim for breach of contract.”

Terms Arguments ‘Specious’

Hurley argued that his promise was unenforceable because it was unsupported by consideration and, in any event, the video did not contain “confidential information.” Bigelow said those arguments “are specious and lack merit.”


YouTube co-founder Chad Hurley.

She wrote:

“[S]igning the release gave Hurley the opportunity to appear in Keeping Up with the Kardashians and the opportunity to remain at the party.  Respondents submitted evidence that Hurley would have been asked to leave if he refused to sign the release.  This is sufficient evidence of consideration—the proverbial ‘peppercorn’—to surmount the relatively low hurdle of establishing a prima facie case.”

Bigelow said that it was readily apparent that a professional crew was recording the event for broadcasting and that under that circumstance, “a reasonable interpretation of the phrase ‘confidential information’ could include the events filmed and published by Hurley,” though he could argue to the contrary in “later proceedings.”

Hurley submitted a declaration in which he insisted that he did not attend the party as a representative of AVOS. That, Bigelow wrote, was not enough to dispose of the issue, pointing out:

“Respondents allege in their complaint and submitted evidence that Hurley needed publicity for his foundering new venture, and he used his video of the proposal to promote MixBit.  Hurley sent a congratulatory tweet to Kardashian and West with a link to the MixBit video from the same Twitter account he used to dispute a news article about MixBit.  Moreover, Hurley’s apology to Kardashian and West after he learned they were upset about the video was sent from his email address at AVOS.”

From these and other facts, the jurist declared, “it can reasonably be inferred that Hurley acted on behalf of AVOS,” though his contrary contention can be “weighed by a jury at trial.”

Fraud, Unjust Enrichment

The plaintiffs also sued for fraud and unjust enrichment. It was a question of fact whether Hurley signed the release without intending to abide by it, Bigelow said, and given that the breach of contract action stands, a cause of action may be pursued for unjust enrichment stemming from the breach.

Trial in the case is scheduled for Nov. 17.

The case is Kardashian v. Hurley, B255440.

Eric M. George, Russell F. Wolpert and Elena Nutenko of the Century City law firm of Browne George Ross represented Kardashian and West. Rodger R. Cole, chair of Fenwick & West’s litigation group, was joined by associates Songmee L. Connolly and Ciara N. Mittan, all of the firm’s Mountain View office, and Jennifer J. Johnson, of its San Francisco office, in arguing for Hurley and AVOS.


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