Defendants Cy Feuer and Ernest Martin, associated as Feuer and Martin Productions, Inc. (FMPI), have been successful

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Defendants Cy Feuer and Ernest Martin, associated as Feuer and Martin Productions, Inc. (FMPI), have been successful producers of Broadway musical comedies since 1948. Their first motion picture, ‘‘Cabaret,’’ produced by Feuer in conjunction with Allied Artists and American Broadcasting Company, received eight Academy Awards in 1973. Plaintiff Wyler is president and largest shareholder of Tool Research and Engineering Corporation, a New York Stock Exchange Company based in Beverly Hills. Prior to 1972 Wyler had had no experience in the entertainment industry.

   Wyler had had no experience in the entertainment industry. [In 1972, FMPI bought the motion picture and television rights to Simone Berteaut’s best-selling books about her life with her half-sister Edith Piaf. To finance a movie based on this novel, FMPI sought a substantial private investment from Wyler. In July 1973, Wyler signed a final limited partnership agreement with FMPI. The agreement stated that Wyler would provide, interest free, 100 percent financing for the proposed $1.6 million project, in return for a certain portion of the profits, not to exceed 50 percent. In addition, FMPI would obtain $850,000 in production financing by September 30, 1973. The contract specifically provided that FMPI’s failure to raise this amount by September 30, 1973, ‘‘shall not be deemed a breach of this agreement’’ and that Wyler’s sole remedy would be a reduction in the producer’s fee.]

   Despite their acclaimed success in ‘‘Cabaret,’’ defendants at the time of execution of the limited partnership agreement were experiencing difficulties in obtaining distributor commitments and knew it would be unlikely they could obtain any production financing by the September 30 deadline. Their difficulties arose from their overestimation of the attractiveness of the Piaf subject-matter, from the unknown leading actress, and from the scheduling of photography during the summer months when most Europeans go on vacation.

   Filming of the motion picture began July 23 and ended October 9. By that time Wyler had advanced $1.25 million and defendants had failed to obtain any production financing. The completed cost of the picture was $1,512,000.  

   Early in October, Feuer met Wyler in Paris and requested an extension of the deadline for production financing to December 30, so that defendants could take advantage of distributor negotiations in process and recoup their profit percentage and their producer’s fee. Wyler said he had already financed the picture and refused to extend the deadline, there by maintaining his profit percentage at 50 percent.

   [A year after its release in 1974, the motion picture proved less than an overwhelming success—costing $1.5 million but making only $478,000 in total receipts. From the receipts, Wyler received $313,500 for his investment. FMPI had failed to obtain an amount even close to the $850,000 required for production financing. Wyler then sued Feuer, Martin, and FMPI for mismanagement of the business of the limited partnership and to recover his $1.5 million as damages.]

   A limited partnership affords a vehicle for capital investment whereby the limited partner restricts his liability to the amount of his investment in return for surrender of any right to manage and control the partnership business. [Citation.] In a limited partnership the general partner manages and controls the partnership business. [Citation.] In exercising his management functions the general partner comes under a fiduciary duty of good faith and fair dealing toward other members of the partnership. [Citations.]  

   These characteristics—limited investor liability, delegation of authority to management, and fiduciary duty owed by management to investors—are similar to those existing in corporate investment, where it has long been the rule that directors are not liable to stockholders for mistakes made in the exercise of honest business judgment [citations], or for losses incurred in the good faith performance of their duties when they have used such care as an ordinarily prudent person would use. [Citation.] By this standard a general partner may not be held liable for mistakes made or losses incurred in the good faith exercise of reasonable business judgment.

   According all due inferences to plaintiff’s evidence, as we do on review of a nonsuit, we agree with the trial court that plaintiff did not produce sufficient evidence to hold defendants liable for bad business management. Plaintiff’s evidence showed that the Piaf picture did not make money, was not sought after by distributors, and did not live up to its producers’ expectations. The same could be said of the majority of motion pictures made since the invention of cinematography. No evidence showed that defendants’ decisions and efforts failed to conform to the general duty of care demanded of an ordinarily prudent person in like position under similar circumstances. The good faith business judgment and management of a general partner need only satisfy the standard of care demanded of an ordinarily prudent person, and will not be scrutinized by the courts with the cold clarity of hindsight.

   [Judgment for Feuer Martin and FMPI affirmed]

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Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

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