Netflix, Warner seek discovery pause in Pepperdine's infringement claims

Attorneys for Netflix and Warner Bros. urged a federal judge to pause the discovery process in an infringement dispute over an adult comedy series, "Running Point," until their bid to dismiss the case is decided.

In February, Pepperdine University accused the film companies of tainting the Christian school's mission through unauthorized use of its colors and "Waves" name in the show's raunchy depiction of a fictional professional basketball team called the Los Angeles Waves.

The university's bid to block the show's Feb. 27 release was denied by U.S. District Judge Cynthia Valenzuela a week after the lawsuit was filed in Los Angeles. A motion to permanently dismiss the case was filed in April.

In a motion filed by O'Melveny & Myers partner Matthew T. Kline on Monday, the film companies - including actress Mindy Kaling's production company - argued the discovery pause is warranted because since the judge already ruled in their favor, their proposed dismissal of the case has a high likelihood of success.

"In denying Pepperdine's TRO [Temporary Restraining Order] motion filed at the outset of the case, the court ruled that Pepperdine had 'not met its burden of establishing a likelihood of success on the merits,' given the First Amendment defense available to defendants under Rogers v. Grimaldi," the discovery brief stated.

The Rogers test is the most commonly used analysis in trademark law that asks whether an alleged unauthorized use of a work is a permissible artistic product that is not misleading.

"Pepperdine's aggressive approach to this lawsuit - including filing a TRO, needlessly suing Mindy Kaling's company, and demanding immediate and invasive discovery of the various creative teams - highlights the need to grant this motion," the discovery brief continued. "Merely filing a complaint ... does not 'unlock the doors of discovery' for Pepperdine."

The university case is led by Sullivan & Cromwell LLP partner Andrei Iancu. He could not be reached by press deadline on Tuesday.

However, according to the companies' discovery motion, Iancu is expected to file opposition briefs to the pending motions in the coming weeks. Valenzuela is scheduled to hear the matter in June. Pepperdine University v. Netflix Inc. et al., 2:25-cv-01429 (C.D. Cal., filed Feb. 20, 2025).

Led by O'Melveny & Myers partner Daniel M. Petrocelli, the film companies moved to dismiss all of Pepperdine's claims. They argued the fictional Waves team in "Running Point" is an expressive work because the name, blue and orange colors and logos are not source identifiers of anything rooted in the real world outside of its Southern California setting and common objects - such as blue ocean waves.

Instead, the team is creatively relevant to the series and does not explicitly mislead consumers, the dismissal brief stated.

In the amended complaint, Pepperdine argued Netflix's alleged infringement not only blatantly ripped off the university's image, but created a false advertisement threat.

The complaint claims the show falsely suggested an affiliation with the university, for example, because of a character wearing a number 37 jersey that they argued was prominently featured in the marketing.

Pepperdine claims this number was intentionally chosen by the showrunners because it reflects the school's 1937 founding and is well known by the public as the mascot's jersey number - which is also prominently featured in school promotion and high-selling merchandise, according to the complaint.

However, the film companies argued these claims did not represent an implied juxtaposition to Pepperdine's values and history.

"Pepperdine did not, and cannot, allege that the series 'Running Point' itself refers to Pepperdine or any of its sports teams. Rather, as the court found, 'Running Point's' title cards and credits refer accurately to the show's producers, which include Warner, Netflix and Ms. Kaling," the discovery brief stated.

"And 'Running Point's' ten episodes include myriad plot lines, not one of which references Pepperdine or its sports teams."