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Civil Litigation FlashPoints May 2006

"I'm as mad as hell, and I'm not going to take this anymore!" - NETWORK (Metro-Goldwyn Mayer (MGM) 1976).

That sentiment may echo what many moviegoers feel right now when they pay to see a film in the theater. Of the approximately 37,000 movie screens in the United States, more than 27,000 of them run cinema advertising or other pre-show entertainment. Jane L. Levere, Advertisers Pour More Money Into the Big Screen, N.Y. TIMES, June 27, 2005, at C2. The reasons are many: box office revenues are down, studios are taking a bigger piece of the box office pie upfront, high-tech home theater systems and DVDs are becoming the norm, and, as devices like iPods, Playstation Portables, and cellular phones develop, consumers are finding they can get their entertainment fix when and where they want. William Booth, Box Office Blahs: Blame It on (Fill in the Blank), WASH. POST, Dec. 30, 2005, at C01. Theaters are struggling to stay afloat, and the only bright spot is on-screen advertising revenue”it is the "fastest-growing part of the exhibition business." Gabriel Snyder, Box Office Down; Pre-Show Ads Up, VARIETY.COM (July 27, 2005).

Pre-show entertainment is nothing new. Back in 1929, movie theaters would show a three-hour program that included newsreels, short comedy films, cliffhanger serials, a œB feature, and finally, the movie. Edward J. Epstein, The Vanishing Box Office: A Terminal Condition, THE HOLLYWOOD ECONOMIST (July 5, 2005). But in the 1980s, commercials invaded theaters (Jen Chaney, Shhh! The Ads Are About to Start, WASH. POST, May 15, 2005, at N01), and these days, commercials and previews can occupy up to twenty minutes of screen time before the movie even begins. The line between television and the theatrical experience is beginning to blur, and moviegoers are revolting.

One Evanston woman has led the charge. Fisch & Alexander v. Loews Cineplex Theatres, Inc., No. 1-04-1454, 2005 Ill. App. LEXIS 1088 (1st Dist. Nov. 4, 2005). Co-Plaintiff Miriam Fisch brought this class action suit against Loews Cineplex Theatres, Inc., Loews Theatre Management Corporation, and Loews Piper's Theatres, Inc. (collectively Loews) in February 2003 after attending a showing of, ironically enough, The Quiet American at Loews' Pipers Alley Theatre. Plaintiff's Class Action Complaint at 2, Fisch (No. 1-04-1454). The movie's start time was delayed a mere four minutes because of commercials (id.), but according to Fisch, "My time is very important to me.™ On with the Show? Moviegoers Ticked Off Over Preshow Commercials, LOOK SMART (Apr. 25, 2003). Plaintiffs alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS § 505/1 et seq. (West 2000)), and sought an injunction that would require Loews to either give consumers reasonable notice as to the true start time for movies or disclose the length of the pre-show entertainment. Fisch, 2005 Ill. App. LEXIS 1088, at *23.

Plaintiffs' complaint specifically alleged that Loews deliberately withheld and suppressed material information regarding movie start times, provided intentionally vague and misleading movie times, and forced its patrons to arrive early and become part of an unwitting captive audience that [Loews] could sell to advertisers. Id. Loews responded by filing a motion to dismiss pursuant to 735 ILCS § 5/2-615 (id. at *4), and issuing a statement calling the lawsuit "frivolous and completely without merit." Tristan Arnold, Evanston Resident Sues Theater Chain for Showing Ads, THE DAILY NORTHWESTERN (Feb. 27, 2003). The trial court granted the motion to dismiss, and Plaintiffs appealed. Fisch, 2005 Ill. App. LEXIS 1088, at *4.

While on appeal, State Representative Jack Franks (D-Woodstock) proposed House Bill 1472, which would mandate that movies start on time. Id. at *56. Several months after completing their appellate briefing, however, Loews filed a motion arguing that the appeal was moot. Id. at *45. In May 2005, Loews CEO Travis Reid publicly announced that the chain would include a small disclaimer in its movie listings noting that "[f]eature presentations start 10-15 minutes following published showtimes." Id. at *5. Reid also said that by October, no commercials (just previews) would be shown after the listed start time. Steve Patterson, Disclaimer in Movie Ads Enough, Justices Rule, CHI. SUN-TIMES, Nov. 5, 2005, at 3. In addition, Loews attached movie listings with the disclaimer to its supplemental brief on mootness and sent a letter to Rep. Franks. Fisch, 2005 Ill. App. LEXIS 1088, at *56. These actions had a domino effect: Rep. Franks dropped his legislation, and the Court dismissed the appeal as moot. Id. at *6, 16. The Court found that the disclaimer secured what plaintiffs sought in their prayer for relief: reasonable notice of the true starting times of movies. Id. at *8. Still, Plaintiffs persisted.

Plaintiffs argued that Loews could reverse this policy change at any time and that an injunction was still needed. The Court contrasted this situation with those in two other cases cited by Plaintiffs, Fryzel v. Chicago Title & Trust Co., 173 Ill.App.3d 788, 527 N.E.2d 1025 (1st Dist. 1988), and Cohan v. Citicorp., 266 Ill.App.3d 626, 639 N.E.2d 1302 (1st Dist. 1993), because here, Plaintiffs sought an order requiring Loews to implement and follow a practice they are already performing rather than refrain from some future action. Fisch, 2005 Ill. App. LEXIS 1088, at *11. The Court recognized that Loews had signed no contract promising to continue the disclaimer indefinitely, but instead focused on the totality of circumstances. The Court found that Loews satisfied its burden of showing that its alleged wrongful behavior could not reasonably be expected to recur because Loews had made the public announcement, sent a letter to Rep. Franks, and not maintained any right to omit reasonable notice of movie start times in the future. Id. at *1112. The disclaimer resolved the issue on appeal, thus making the case moot.

The Court also rejected Plaintiffs' argument that the public interest exception should apply in this case because the degree of public concern and interest was not extraordinary enough to overcome the mootness doctrine. Id. at *1314. Finally, the Court stated that nothing in the opinion would preclude lawmakers from later refining disclaimer requirements, such as size and placement of the notice in movie listings. Id. at *16.

Although Loews' disclaimer secured the relief Plaintiffs sought, moviegoers are still going to have to deal with commercials before movies. This case does little to restore a bit of the magic that comes from sitting in a darkened theater and losing yourself in a good movie. If you really want to avoid pre-show ads, do yourself a favor: watch previews online and show up to the theater ten minutes late. Now if we could just do something about those pesky cell phones . . . .