If you had 73 Days in your office’s Scarlett Johansson settlement pool, congrats and collect your prize. Many gasped when Disney and the actress jointly announced a deal on Thursday to resolve her $80 million litigation over Black Widow debuting on Disney+ concurrent with theaters, but few in the entertainment law community seriously thought this would last long. Johansson’s CAA agents were seeking a deal before the lawsuit. And after a short break following the filing drama, they quickly resumed talking with Disney. Litigation as negotiation.
Here’s how it went down, based on conversations with sources on both sides of the dispute. (Nobody’s commenting, per the settlement.)
Disney leadership was clearly rattled by the personal allegations in the lawsuit, specifically the claim that Bob Chapek and Bob Iger were stiffing Disney stars to pad their own stock-incentive-laden salaries. That led to a rare communications misstep—Disney’s unusually mean-spirited statement suggesting that Johansson was greedy and insensitive to Covid. CAA’s Bryan Lourd smartly jumped on this error, putting out his own statement decrying the “salary shaming” of his very famous female client. All of a sudden, Disney was the villain—and majorly incentivized to make this go away. Point, Johansson.
But despite the public criticism, Disney studio chief Alan Bergman knew that if he was gonna pay Johansson a chunk of her lost box office bonuses, he should roll the money into a deal for another Disney movie. Note the inclusion of her commitment to Tower of Terror in Bergman’s statement announcing the settlement. Point, Disney.
While Lourd and Bergman talked, the litigation proceeded. Many have noted that Disney would want to settle this before invasive discovery requests started flying. But I’m told that John Berlinski, Johansson’s lawyer, actually did serve discovery on Disney, demanding all kinds of information about Disney+ and the financials behind the Avengers movies. Exactly the kind of stuff Disney wouldn’t want to hand over.
Disney was preparing to fight those requests, with lead lawyer Dan Petrocelli arguing that his request to move the whole thing to private arbitration necessarily paused any attempt to obtain discovery. Probably not coincidentally, a hearing on that issue was coming up soon. I asked an independent litigator I know, and he said that Disney probably would have won on the discovery issue. (He wasn’t sure about the arbitration.) So, a point for Disney.
But it didn’t help Disney’s overall cause that Shang-Chi, a “lesser” Marvel title starring a largely unknown actor that was released over the usually dormant Labor Day weekend, has stormed past Black Widow at the box office. The difference? Shang-Chi was a theatrical exclusive, of course. So that’s a point for Johansson.
With all that in mind, Lourd and Bergman reached the key deal terms at the end of last week, Chapek approved the terms, and everything was handed over to the lawyers to paper. I’m surprised nothing leaked over the next few days, especially after an upcoming hearing was pushed on Monday by mutual agreement, often the sign of a pending settlement. By Thursday midday, everything was ready to go, and the cookie-cutter statements were released. Johansson got paid (though likely not what she sought), Disney got another Johansson movie, and the lawsuit that was supposed to redefine Hollywood was quickly buried and forgotten.