Can Two Stans Really Sue Over Ana de Armas Getting Cut From ‘Yesterday’?

Late last week, two men filed a lawsuit against Universal Pictures for engaging in “immoral, unethical, oppressive, and unscrupulous activities.” Their attorney described this behavior as “substantially injurious” to those it affected. They’re seeking at least $5 million in restitution for an alleged act of wrongdoing that, they claim, impacted “hundreds of thousands, if not millions, of consumers.” The heinous offense in question? Cutting Ana de Armas out of Yesterday, that deeply mediocre movie about what would happen if everyone on Earth except for one guy forgot The Beatles existed.

The two plaintiffs—38-year-old Maryland resident Conor Woulfe and 44-year-old California resident Peter Michael Rosza—allege they both experienced the same strangely specific letdown on two separate nights last year, 2,600 miles apart. They were scrolling through Prime Video looking for something to watch, they say, when they stumbled across Yesterday. Intrigued, but not fully sold, they decided to check out the trailer, which briefly features Ana De Armas, known for her turns in Knives Out, No Time to Die, and Blade Runner 2049. They claim that seeing de Armas in the trailer convinced them to rent Yesterday, but when they watched the movie, they were shocked to find she wasn’t actually in it. They say they never would’ve rented Yesterday if they hadn’t seen de Armas in the trailer. Now, feeling as if they were bilked out of a whopping $3.99, they’re demanding justice—but not just for themselves: They’re seeking to turn their case into a class-action suit, one representing an untold number of Ana de Armas stans who, supposedly, were duped into watching Yesterday just like Woulfe and Rosza were.

It’s true that de Armas appears in the trailer for Yesterday, but not the movie. She’s in the teaser for about 12 seconds, playing a character named Roxanne who was ultimately axed from the final cut. As Woulfe and Rosza’s attorney tells it, Universal intentionally left de Armas in the trailer to “deceive” consumers into watching Yesterday. He claims, rather rudely, that the studio didn’t have a big enough draw in Himesh Patel (the film’s lead) or Lily James (his love interest)—whom he questionably describes as “largely unknown”—and that it exploited de Armas’s “fame, radiance, and brilliance” to trick folks into watching the movie. In so doing, he argues, Universal violated various false advertising laws in California and Maryland.

To figure out if these guys might actually have a chance at prevailing in court—or if, instead, this lawsuit is as preposterous as it seems—I called up William Markham, a California attorney who has worked on a number of false advertising cases. He walked me through what the plaintiffs would need to prove to win, the legal strategy Universal might use to fight them, and who he thinks will ultimately come out on top. 

VICE: On a big picture level, what are your thoughts on this complaint?

William Markham: It seems like a stretch to me. The trailer certainly does not imply that she's a lead actress. The most you could infer from that trailer is that she had some sort of supporting role in this film. My hunch would be that someone at Universal Studios goofed and left that snippet in the trailer even after they decided not to use it. The director of the film was Danny Boyle, who's highly acclaimed. He's not trying to scoop up customers by lying about who appears in his movies. Also, I looked at the complaint, and I think the judge could reasonably require the plaintiffs to replead it, because it has some sloppy wording in some key parts.

In your view, does including Ana de Armas in the trailer for Yesterday, but not in the movie, constitute false advertising?

The plaintiffs allege that Universal Studios deliberately included this snippet of Ana de Armas because she's a famous, acclaimed actress, and by suggesting that she has a significant role in the film, the trailer induced many people to watch the film who otherwise wouldn't have done so. The question then is: Did showing the snippet [with Ana de Armas] actually significantly contribute to viewers’ decisions to watch the movie? And also, were viewers—other than these two named plaintiffs—disappointed or somehow cheated of their viewing experience when they discovered that this actress had no role at all in the movie? 

If the plaintiff somehow ended up providing evidence that this was purposeful—that Universal Studios deliberately left that snippet in the trailer to attract more viewers—that would be false advertising. If this was a mistake, and they left Ana de Armas in the trailer by accident, then it is probably not false advertising. And, either way, if most viewers report that her bit role in the trailer had no effect at all on their decision to watch the movie, but rather that they watched it for other reasons, then the case starts to fall apart. The plaintiffs have to show that a substantial number of customers were induced to believe that Ana de Armas had a significant role in this film; that they were fooled by that and therefore decided to watch the film; and then that they felt cheated because she didn't appear in the film. That sounds like a tough standard. 

How would the plaintiffs go about trying to prove all that?

The evidence would be in the form of a consumer survey. They're going to have to figure out how many people watched the trailer, and then how many people among that group—narrowed to Maryland and California—therefore decided to watch the movie. Then you hire someone who specializes in conducting consumer surveys to see how consumers are influenced by advertising. The legal standard is, [Ana de Armas’ appearance] doesn't have to be the only reason the consumer decided to buy or rent the product, but it has to be a significant reason. If the plaintiffs’ experts are clever, they're going to say that it played a role, and it was significant, even if it wasn't overwhelming. 

How much money are the plaintiffs seeking from Universal, exactly?

The plaintiffs seem to be overreaching there. They're seeking a refund of all gross receipts, which sometimes run into the hundreds of millions of dollars. They’re demanding all profits [from ticket sales, purchases, and rentals of Yesterday]. That's not allowed under the California laws they've invoked. They're entitled only to restitution of what viewers paid to watch the movie. If [their attorney] is seeking a refund only for plaintiffs who watched the trailer and therefore decided to watch the movie in California and Maryland—which I think is probably his correct class—now, all of a sudden, the sum is going to be a lot less than all gross receipts. 

How hard will it be for the plaintiffs’ attorney to turn this case into a class-action suit and to track down would-be members of that class?

The class might be people in Maryland and California who watched the trailer, and then decided to rent or purchase the movie, in substantial part, because they saw the scene with Ms. de Armas. I think that’s your class. Then you have to figure out if it's possible to find those people. There's no incentive to individual members of the class; each person gets back their four bucks, or maybe they get 20 bucks because they cooperate with the plaintiffs. I don't see a strong incentive for movie viewers to come out of the woodwork and exaggerate how much this scene influenced their interest in watching the movie. 

If Universal hired you to defend them against this lawsuit, how would you go about it?

I’d look very, very closely at the plaintiff's complaint. I just noticed in the 10 or 15 minutes that I reviewed it that it was sloppily worded, and its definition of the proposed class was far too vague. So there's ample ground to move to dismiss the complaint, and I would review those grounds closely and bring that motion to [dismiss]. I'd also want to know what happened. I’d want to understand who made the trailer, what relationship they have to Universal, how that scene appeared in the trailer—I'd want to know all that right at the start. If in fact it was a mistake, and it wasn't some calculated, nefarious, venal advertising scheme to lure in otherwise uninterested viewers to watch a dull movie, they should prove that right out of the gate without fooling around.

Obviously, you don’t have all the facts here. But from where you’re sitting, what do you think will ultimately happen with this case?

That turns on whether or not this was purposeful. In the unlikely event that this was purposeful deceit, it will probably result in some sort of settlement. In the more foreseeable event that it was an oversight, or the evidence is ambiguous, I could see this case easily being dismissed.

Drew Schwartz is a staff writer at VICE. Follow him on Twitter.