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Federal Judge Lets Movie Fans Sue Over Allegedly Misleading Trailer Featuring Ana de Armas — Who Hit Final Film’s Cutting Room Floor

Ana de Armas appears in a screenshot

Ana de Armas appears on the Late Show with James Cordon.

A federal judge ruled that movie fans can sue over an allegedly misleading trailer, which featured a Golden Globe-nominated actress who ultimately did not make the film’s final cut.

Two viewers sued Universal Pictures when they rented a movie only to be disappointed when a scene shown in the trailer failed to make a film’s final cut.  Peter Michael Rosza of San Diego and Conor Woulfe of Maryland each rented the 2019 film Yesterday,  for a rental fee of $3.99 on Amazon Prime. Rosza and Woulfe say they chose the movie because Cuban actor Ana de Armas was featured in the trailer.

The movie depicts a failed musician who wakes up in a world completely lacking any memory of the Beatles. The protagonist then adopts Beatles songs as his own and becomes a worldwide music sensation. In the scene shown in the trailer, the protagonist performs on a talk show while he gazes into de Armas’ eyes as Beatles song Something plays in the background. At the short scene’s conclusion, de Armas and the protagonist embrace. The scene contains no dialogue and accounted for 15 seconds of the trailer’s total run time of three and a half minutes.

However, neither that particular scene, nor any other including de Armas, appeared in the final cut of the movie. The disappointed fans say the trailer constitutes false advertising and that they would not have chosen to view Yesterday if they had known de Armas would not appear onscreen.

Rosza and Woulfe filed a putative class action lawsuit in federal court in California, demanding more than $5 million in damages for themselves and other disappointed fans.

Universal moved to strike the complaint under California’s anti-SLAPP statute, arguing that its trailer was protected by the First Amendment. U.S. District Judge Stephen Wilson, an octogenarian appointed by actor-turned-president Ronald Reagan, refused to throw out the lawsuit.

Wilson wrote in a 32-page ruling that movie trailers may be exercises of free speech, but that they may be actionable given that they are used for “drumming up public interest in a movie.”

Wilson rejected Universal’s primary defense: that the trailer could not constitute any actionable misrepresentation, because it did not specifically promise that de Armas was in the movie.

“Even an implied assertion may be sufficient to deceive a reasonable consumer,” Wilson wrote. The judge also dispensed with the examples Universal offered in its argument that the Yesterday trailer was “too vague” to be actionable.

Wilson ruled that while whether were actually misled was a “close question,” the fact that they certainly could have been was not. The judge called it “plausible” that a viewer could have watched the trailer and believed that de Armas would appear in the movie.

Universal also advanced the argument that a ruling in favor of the plaintiffs would “open the floodgates” for similar lawsuits every time a viewer wrongly predicted the plot of a movie after watching the trailer. Wilson was again unconvinced and clarified that to be actionable, an alleged misrepresentation must be something that the objective “reasonable consumer” would expect.

“The Court’s holding is limited to representations as to whether an actress or a scene is included in a movie, and nothing else,” Wilson explained.

Wilson did side with Universal on the plaintiffs’ false advertising and breach of warranty claims. The case will now proceed through the litigation process and will next come before Wilson on April 3, 2023.

Counsel for the parties did not immediately respond to request for comment.

[screengrab via YouTube]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos