Dublin company cannot pursue film studio project without LA firms, court rules

Dispute involving Windmill Studios founder James Morris centres on ‘one in, all in’ clause in agreement

The High Court has granted an injunction temporarily preventing a media company from taking steps to purchase west Dublin lands for the development of a state-of-the-art film centre without the participation of its alleged partners.

Cooper Plus Holdings Limited and Plus Development LLC, both headquartered in Los Angeles, issued proceedings against Dublin-based Lens Media over fears it intended to breach its alleged obligations under a partnership agreement.

They claimed Lens Media, whose directors include Oscar-nominated producer Gary Levinsohn (Saving Private Ryan) and Windmill Lane founder James Morris, had approached Cooper Plus in 2019 seeking its involvement in the business venture as a financing partner.

Cooper Plus and Plus Development, a real estate firm founded by Irish natives Carlin and Tyrone McKillen, claim the three companies agreed to jointly acquire, develop and operate a media park on council lands at Grange Castle Business Park in Clondalkin.

South Dublin County Council agreed in principle to sell the 48 acres of development lands in Clondalkin to the partnership for €26.5 million after Cooper Plus had provided evidence of $35 million funds, they claimed.

The plaintiff companies, who claim to have invested €600,000 in the venture, expressed fears that Lens Media, with an address on Adelaide Road, would pursue the project with alternative backers.

The injunction, granted on Tuesday by Mr Justice Michael Twomey, restrains Lens Media from developing the film studios without the plaintiffs until the court dispute is resolved.

Negative pledge

Mr Justice Twomey concluded there was, “at the very least”, a fair issue to be tried at a substantive hearing regarding the enforceability or binding nature of a negative pledge covenant in a memorandum of understanding entered into by the three companies in June 2020.

A clause of the agreement says the parties “specifically agree that none of them will seek to pursue the project without the others” unless the others voluntarily agree to withdraw.

Mr Cooper claims this continues to be “binding and enforceable”. Lens Media says the parties’ failure to agree terms of a subsequent operating/shareholders’ agreement brought to an end their obligations under the memorandum.

The memorandum stated that it would expire when the parties entered into the operating agreement, but it “specifically does not address” what would occur if there was a failure to agree terms of that agreement, said Mr Justice Twomey. An express term could “easily have been inserted” to deal with such a failure, and its absence militates against a court implying it, he said.

Damages

Such a term would likely be accompanied by further details as to the parties’ respective rights in the unwinding of the partnership, he said.

The judge bore in mind the apparent financial positions of the companies in finding that the “clear” balance of justice favoured granting the injunction sought by the plaintiffs.

Matthew Cooper, a film-maker, real estate developer and director of Cooper Plus, had averred that damages would not be an adequate remedy if the trial judge were to find an interlocutory (pending the substantive trial) injunction should have been granted and was not, said the judge.

Mr Cooper’s uncontroverted claim was that Lens Media is balance sheet insolvent, with net liabilities of €228,000, so is unlikely to be able to provide damages if the plaintiffs are successful at trial. In contrast, Mr Cooper provided sworn evidence that Plus Development is financially robust, with annual profits exceeding $1 million.

The judge ordered the parties to engage with each other to see if they could reach an agreement on all outstanding matters. The case was adjourned.