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04.28.10

Hollywood's Biggest Hustler

Why is a movie about a sex addict starring Jake Gyllenhaal and Jessica Biel and written by Al Gore’s daughter not making it to theaters? Kim Masters on a comedy trapped in Hollywood purgatory.

Nailed was meant to be a quirky David O. Russell comedy starring Jake Gyllenhaal, Jessica Biel, Tracy Morgan, Catherine Keener, and Paul Reubens. Instead, its unlucky cast and crew have gotten screwed in a way that wasn’t remotely funny.

For once, the nightmare had nothing to do with the famously volatile Russell, who brawled with George Clooney while making Three Kings and who inadvertently starred in a viral video that showed him throwing a spectacular tantrum on the set of I Heart Huckabees

Rather, Nailed was one of many films caught in the snares of would-be Hollywood moneyman David Bergstein, a defiant operator with a string of movie companies that have a tendency to run out of money.

“He has fancy offices in Century City,” says one veteran producer who’s had unhappy dealings with Bergstein. “It doesn’t look like a set.”

Bergstein, 47, came into the business by acquiring the remains of Franchise Films, a scandal-engulfed company that ran aground in 2004 after founder Elie Samaha was found liable for using “grossly fraudulent and inflated budgets.” Since then, Bergstein and his silent partner, Los Angeles-based construction magnate Ron Tutor, have acquired several more film companies and built up a library that includes such films as Crouching Tiger, Hidden Dragon, Before the Devil Knows You’re Dead and Woody Allen’s Sweet and Lowdown.

To many in Hollywood, Bergstein came across as a serious businessman. “He has fancy offices in Century City,” says one veteran producer who’s had unhappy dealings with him. “It doesn’t look like a set.” The bearded Bergstein has “a nervous thing where he’s constantly shaking his leg while he’s talking,” this producer says, “but he seemed stand-up.”

Now Bergstein is facing more than a dozen creditors in Los Angeles bankruptcy court who say he’s left a trail of unpaid bills and “demonstrated repeatedly that he is unfit and incompetent.” Bergstein did not respond to a request for comment but in recent interviews he has denied wrongdoing, portraying himself as the victim of “fake” creditors and tough times in the independent film world.

The cast and crew of Nailed certainly found Bergstein unfit and incompetent—and that’s putting it kindly. They suffered through repeated shutdowns when promised funds failed to materialize. Nonetheless, Russell almost managed to finish filming his movie. He got everything shot before the money finally ran out—except for one key scene.

Nailed sounds like a typically off-the-wall Russell project: A young woman accidentally gets a nail lodged in her head, loses her sexual inhibitions, and goes to Washington on a crusade to reform healthcare. Based on a script by Kristin Gore (Al’s daughter, who’s had writing credits on Saturday Night Live and Futurama), the movie was developed by seasoned producers Lucy Fisher and Douglas Wick, whose credits include Gladiator and Stuart Little. In a better economy, they would have been comfortably settled at a big studio rather than looking for funding from Bergstein, who homed in on smaller projects that the studios would not make.

According to several sources, Bergstein has consistently lured in talent by offering just a bit more money than the next highest bidder. In the world of independent film, that’s a temptation many can’t resist. “If he’s saying, I’ll put up $24 million and the other person is saying he’ll put up $22 million—that’s a lot of money,” says a key player on Nailed. “What he understands in a very parasitical way is that you get people pregnant and you use their natural creative urges, knowing that once they get [involved], you can really fuck them over.”

Though Bergstein’s business habits are well known in Hollywood by now, his reputation wasn’t so clearly established when the cast and crew of Nailed set off to film in South Carolina in 2008. A tipoff came early. On the first day of filming, the Screen Actors Guild instructed its members not to work because a required bond payment had not been deposited. With the SAG order, actors were not even supposed to rehearse.

“We had the normal five blocks of trucks, it looked like the Marines had landed, and we couldn’t start,” says a source involved with the project. Though filming commenced without much delay, a week later the Director’s Guild also ordered its members to stop work.

Bergstein’s associates kept promising that money was on the way. It arrived late, in fits and starts, and often in smaller amounts than promised. Repeatedly, a line producer standing on the back of a grip truck had to tell the unhappy crew that payroll money had not arrived again. The orders from Bergstein’s company were to offer a premium if the crew would wait for payment. For each day the money failed to arrive, the promised payday grew and the cost of the film went up.

“It was the hardest movie in my life,” says one key member of Nailed’s filmmaking team. “Some people quit. Some people were brought to tears. . . They were at the breaking point.”

One production source estimates the many starts and stops probably added $4 million to the cost of the film. By the end, some crew members were left so short of money and desperate that they made off with photocopiers and other equipment in an attempt to recoup their losses. And no one seems to blame them. “It was the hardest movie in my life,” says one key member of the filmmaking team. “Some people quit. Some people were brought to tears. . . They were at the breaking point.”

Gyllenhaal and Biel were not at risk financially. They worked for reduced fees but their money had been secured before they started. Sources on the film say Gyllenhaal pressured his agents at CAA to squeeze Bergstein but the executive proved to be squeeze-resistant. Both Gyllenhaal and Biel offered words of support to the crew. More than once, when filming shut down, Justin Timberlake sent a jet to spirit his girlfriend Biel away, according to one of the production staff.

Meanwhile, crew members drowned their sorrows in a local bar called The Whig. They began to read news articles about problems on other Bergstein films, emailing distressing stories to each other with mounting horror. A group created a website called “ihatedavidbergstein.com.” And a member of the accounting staff sent Bergstein and his associates a signed “fuck-you” email—using those exact words, more than once.

“How can you people live with yourselves?” this employee asked. “My typical day is filled with making promises that I cannot keep to little Ma and Pa vendors who have extended services to our company on good faith. These are real people with families to provide for and bills to pay. Your constant promises of `tomorrow the loan will go through’ [are] ludicrous. And you've all made a liar out of me . . . Fuck you.”

Through it all, David O. Russell remained relatively calm—a response that makes sense to one associate involved in the film. “For the first time, there were more demons outside his head than inside his head,” this insider says. “He wanted to step forward and captain a good ship for his own career. He was in ultra-professional mode. For him, it was so cruel—he was trapped at every turn.” (Russell did not respond to a request for comment.)

Despite all the setbacks, the cast and crew on Nailed nearly got to the finish line, with everything shot except for the key scene in which Biel’s character gets the nail implanted in her skull. Frustrating but perhaps not accidental: Without that scene, no one can slap a version of the film together and release it.

By now, the Nailed footage has languished for nearly two years. “It is $26 million just sitting on a shelf,” says a high-level source involved with the project. “It’s insane.” Russell still wants to shoot that last scene, which would take just a couple of days, and complete his movie. But others associated with the project say key players are worn out and feel that nothing is worth the pain of dealing with Bergstein again.

“That’s where the joke is on him,” says the insider. “He has your baby and he tortures you. But finally, he’s the one sitting with the $26 million dead baby.”

The baby might not be quite dead after all. Until recently, building magnate Ron Tutor has remained a silent partner in Bergstein's doings but in the past couple of weeks, he quietly met with representatives from Nailed, including attorney Bruce Ramer, who represents Russell (but is better known as Steven Spielberg's lawyer). Sources involved with the film say Tutor wants to get the movie finished—which makes sense given the amount of money that's already been spent. But those involved with the film remain leery of anyone associated with Bergstein. "I'm too suspicious to assume the best," says one.

Meanwhile, Bergstein’s problems have only deepend. Last month, a bankruptcy judge in Los Angeles took the rare step of appointing an interim trustee to seize control of Bergstein’s assets. The major Hollywood unions—the Screen Actors Guild, Directors Guild—have lined up against him. He also faces a bankruptcy proceeding in Britain.

And the story continues to get darker. On Monday, the Los Angeles Superior Court issued a bench warrant for Bergstein’s arrest in connection with a gambling debt of more than $1 million owed to Mandalay Bay Casino in Las Vegas. The casino had won a default judgment against Bergstein in August after he failed to appear in court in Nevada. He later told The Hollywood Reporter that he had been unaware of the matter. The casino has pursued its claim in Los Angeles—alleging that Bergstein has transferred two homes in Southern California—apparently to his mother—to prevent them from being seized in connection with the case. Bergstein has twice defied a judge's order to appear in court to explain what assets will enable him to cover the debt (though he did send an attorney).

Gyllenhaal and Biel are hardly the only big names who have suffered through Bergstein-financed productions. Among them are Helen Mirren, star of Love Ranch, a film directed by her husband, Taylor Hackford, about a couple who open a brothel in Nevada. Like Nailed, Love Ranch had to shut down temporarily during filming due to lack of funds. The Director’s Guild filed a claim last year to help Hackford collect the better part of his $500,000 fee. He managed to get most of his money and complete his film, which is set for a limited release in July.

While Bergstein would seem to have his hands more than full, he has amazed those in Hollywood who thought they had seen it all by spearheading what seems to be a quixotic attempt to purchase Miramax from Disney for about $650 million.

For those who suffered through the nightmare of Nailed, that’s the new definition of “chutzpah.”

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Kim Masters covers the entertainment business for The Daily Beast. She is also the host of The Business, public radio's weekly program about the business of show business, and the author of The Keys to the Kingdom: The Rise of Michael Eisner and the Fall of Everybody Else.