DISH -VS- VOOM - A Settlement has been reached!

[HDRoberts]

...it looks like they filed several motions last week (24 August):

- Preclude references to any decision by EchoStar to no longer distribute separate programming owned by VOOM HD Holdings LLC's parent company AMC Networks. (i.e., Cablevision wants to show Dish/SATS is using AMC Networks at leverage...I can only assume they are trying to show a pattern on conduct in how they used similar tactics when trying to get VOOM to renegotiate?)

- Exclude all evidence regarding Charles Ergen's financial condition. (not sure why VOOM would involve Charlie's personal accounts admitted)

- Exclude all evidence regarding Echostar's financial condition. (this may be relevant)

- Exclude all references to unrelated litigation. (this is part of VOOM's argument, but it may be prejudicial)

- Exclude all references to plaintiff's purported job losses at VOOM HD. (seems like a resonable piece of information in proving damages)

- Exclude all references to judicial statements regarding the testimony of Paul Meyer in unrelated action. (probably excluded)

- Preclude VOOM HD from using at trial a video prepared to trial purporting to demonstrate programming content. (why? it's the only place in town where you can still watch VOOM)

Reading this list, exclusion seems pretty logical. Dropping AMC is irrelevant. Happened long before Voom was dropped. Charlie, Dish, and Voom's financials are irrelevant. All that matters is the contract. They could have billions in the bank to pay Voom, but if they did not hold up their contract it does not matter. Other lawsuits are irrelevant; all that matters are the facts of THIS case. Voom's job losses seem irrelevant as well. Even when it comes to damages, how does firing people cost Voom much money?

I have no idea who Paul Meyer is, so I can't comment there. But Voom's content is irrelevant. I don't care if their programming was awesome, the contract is what is at issue. Bit perhaps if Voom prevails on the motion, Dish can counter by forcing the jury to watch the same episode of Flipper 3 times a day every day.

 

[Scott Greczkowski]

More documents were filed with the eCourt last week. VOOM filed a pretrial memorandum which, IMO, pretty much outlined their case and opening statement to the jury. Dish's also filed a pretrial memorandum, but it was sealed by the court (no idea why).

Anyway, TRIAL STARTS NEXT WEEK! If we're going to see a settlement, and if the AMC Networks channels are going to return to Dish, we will probably hear something within the next 48-hours.

Jim I say that we make you our official Voom trial reporter.

Sent from my iPhone using SatelliteGuys

 

[riffjim4069]

Reading this list, exclusion seems pretty logical. Dropping AMC is irrelevant. Happened long before Voom was dropped. Charlie, Dish, and Voom's financials are irrelevant. All that matters is the contract. They could have billions in the bank to pay Voom, but if they did not hold up their contract it does not matter. Other lawsuits are irrelevant; all that matters are the facts of THIS case. Voom's job losses seem irrelevant as well. Even when it comes to damages, how does firing people cost Voom much money?

I have no idea who Paul Meyer is, so I can't comment there. But Voom's content is irrelevant. I don't care if their programming was awesome, the contract is what is at issue. Bit perhaps if Voom prevails on the motion, Dish can counter by forcing the jury to watch the same episode of Flipper 3 times a day every day.

I agree...a lot of this stuff has no bearing on the case at hand - a contract dispute. From what I could take-away from the filings, Voom is asking to admit irrelevant evidence simply to match Dish's requests in kind (according to Voom). Additionally, it seems like a much larger percentage of Dish's motions and filings are sealed by the court (not sure why) so I have nothing to base their position on other than Voom's motions and replies that summarize Dish's actions and tactics.

 

[riffjim4069]

Jim I say that we make you our official Voom trial reporter.

Sent from my iPhone using SatelliteGuys

Funny...I was thinking Sean Mota since he is:

1. Knowledgeable on the facts of this case
2. Lives in New York city
3. Loved by all

Some would argue that I meet none of these qualifications.

 

[Tyralak]

This is still going on? Damn.

 

[dan188]

the trial hasn't started yet

 

[riffjim4069]

This is still going on? Damn.

the trial hasn't started yet

That's funny when you think this case started back in May 2008. The good news is all the evidence has been gathered and the judge appears to doing everything necessary to streamline the trial. And the experts agree there is one issue involved in this case (i.e., whether VOOM met the spending requirement) so they believe the judge will curtail all the B.S. and the trial will run its course in 4-6 weeks. I believe the lawyers for VOOM and Dish were also in agreement with the 4-6 week trial estimate. We shall see...

...then comes the appeals process.

 

[mike123abc]

...Additionally, it seems like a much larger percentage of Dish's motions and filings are sealed by the court (not sure why) so I have nothing to base their position on other than Voom's motions and replies that summarize Dish's actions and tactics.

I bet a lot of the sealed stuff is financial data, perhaps obtained by Dish's audit of VOOM, which is probably considered private information. Some of it will probably come out like if Dish points out that VOOM redecorated the executive bathrooms in gold leaf or something like that with the VOOM funds, the rest of the data like programming contract rates and such is probably going to be kept sealed or redacted.

Dish will have to show that if you add up all the money spent on programming contracts and such does not add up to the agreed amount. But, the devil will be in the details, I am sure Dish will want to exclude a lot of expenses that VOOM will feel is programming related.

 

[KAB]

the trial hasn't started yet

September 19...Wednesday.

 

[Foxbat]

As someone who works in IT, This whole business of Dish not being able to produce e-mails from their internal servers means that Dish should fire their IT staff. Backup when we had an Exchange server at our site we did nightly backups of the storage areas, and once a week the full backups were sent off-site for a month, and the tapes from the last Friday of the month (Extra Credit: guess which Backup software we used?) were kept offsite for a year. We were also required to keep one of the monthly backup sets for 15 years. As people pointed out, all thanks to Ken Lay and Co. at Enron.

Unless Dish's IT department wasn't backing up their mail servers, there should have been a way of recovering and providing the requested e-mails, even if they were automatically deleted once a week. If Dish claimed that they had no such backups available, Sarbanes-Oxley would provide for fines.

 

[navychop]

Let me guess- it wasn't MicroSoft backup!

 

[ScottChez]

Dish should broadcast the trail live on channel 101.
Or better yet Directv should do it.

 

[gpollock87]

Dish should broadcast the trail live on channel 101.
Or better yet Directv should do it.

or on trutv

 

[harshness]

This whole business of Dish not being able to produce e-mails from their internal servers means that Dish should fire their IT staff.

You're making a questionable assumption that DISH wanted to produce the information. Discovery is a very nasty business and if you can avoid it...

 

[riffjim4069]

As someone who works in IT, This whole business of Dish not being able to produce e-mails from their internal servers means that Dish should fire their IT staff. Backup when we had an Exchange server at our site we did nightly backups of the storage areas, and once a week the full backups were sent off-site for a month, and the tapes from the last Friday of the month (Extra Credit: guess which Backup software we used?) were kept offsite for a year. We were also required to keep one of the monthly backup sets for 15 years. As people pointed out, all thanks to Ken Lay and Co. at Enron.

Unless Dish's IT department wasn't backing up their mail servers, there should have been a way of recovering and providing the requested e-mails, even if they were automatically deleted once a week. If Dish claimed that they had no such backups available, Sarbanes-Oxley would provide for fines.

In a nutshell, Dish didn't maintain backups of email for 6-months after being advised of possible litigation with Voom. Dish claimed since they were negotiating "in good faith" during this time that they were under no legal requirement for them to retain these emails beyond their 1-week company-wide retention policy. Judge promptly rolled-up a spoiliation instruction and...well, you know the rest of the story.

Regardless, if Voom spent 100M on the service in 2006 they win. If not, they lose. If they win they will most likely win big because of the sanctions against Dish. We'll find out soon enough.

 

[mike123abc]

http://online.wsj.com/article/SB100...20795569832.html?mod=WSJ_qtoverview_wsjlatest

Wall Street Journal write up on it. The meat:

But it didn't give up on channels that had been launched to provide programming for the service. As part of the deal, EchoStar agreed to carry on its satellite service the Voom channels for 15 years. Cablevision, in turn, committed to invest about $100 million a year in programming for the networks for a total of $500 million. EchoStar reserved the right to stop carrying the channels if Cablevision failed to invest what it promised.

That point is pivotal. In 2007, EchoStar conducted an audit of Voom's spending and, alleging Cablevision had failed to spend the necessary $100 million, sent the cable operator a termination notice. Voom disputed the claim, producing documents showing that it had spent the money.

Nevertheless, in early 2008, EchoStar—by then known as Dish—terminated the agreement, and Voom sued.

Much of the case will boil down to what Cablevision was supposed to spend the $100 million on—only programming, as EchoStar contends, or broader costs to maintain the networks, including overhead such as employee salaries, as Cablevision argues.

 

[Voyager6]

Regardless, if Voom spent 100M on the service in 2006 they win. If not, they lose. If they win they will most likely win big because of the sanctions against Dish. We'll find out soon enough.

If VOOM could prove $100 Million in actual programming expenses for 2006, this would have been over long ago. Since it has dragged on for almost 4 years, it leads me to believe that there is a definite question about how much was actually spent on programming. Sanctions or not, VOOM is going to have to produce a lot of solid evidence to prove it's case.

 

[jacmyoung]

http://online.wsj.com/article/SB10000872396390444433504577651720795569832.html?mod=WSJ_qtoverview_wsjlatest

Wall Street Journal write up on it. The meat:

If I read your quote correctly, this is to interpret the meaning of "spending in programming." If the contract did not clarify what constituted programming cost, it would be hard to argue that programming cost naturally included salaries and infrastructure support, if the programming rights were bought from others.

For example, if DirecTV spent $1 billion to buy the exclusive programming right to NFL Sunday Ticket, I wouldn't consider adding the cost of DirecTV's own distribution/broadcast to it.

But if DirecTV actually owns NFL, then I think they can add all the programming and operational costs, but they would not be able to use the $1 billion number since they would not have spent it.

Did VOOM mostly produce their own HD shows? I can only recall the HD News channel they produced. But I can see them inflate costs associated with their own productions. They might have spent only $20M on HD programming rights in 2006, but they might have argued that they spent $80M producing the news channel.

I have to think the contract had more specific definitions laid out.

 

[mike123abc]

http://www.google.com/url?sa=t&rct=...Eqwvc77ydk5tgeGQQ&sig2=XxAyvOV6NGd6WjcqSOZH3g

This link via Google appears to be a free view of the article.

 

[riffjim4069]

If VOOM could prove $100 Million in actual programming expenses for 2006, this would have been over long ago. Since it has dragged on for almost 4 years, it leads me to believe that there is a definite question about how much was actually spent on programming. Sanctions or not, VOOM is going to have to produce a lot of solid evidence to prove it's case.

405 exhibits and more than 2 million pages of documents have been filed with the court. Most experts feel Voom is going to win this case convincingly. I agree based on the thousands of pages of agreements, financials, emails and I have viewed...coupled with the fact every ruling this case has gone Voom's way the past 4-years. Of course, all that matters is what the Jury says, and we'll find out soon enough.

Regardless, most experts also expected this case to be settled prior to trial (could still be settled during trial and before Walking Dead premiers in October)...must be lots of bad blood on both sides so we may not see AMC, WE, IFC and Sundance on Dish Network for a long, long time. Instead of rehashing the past four years of postings in this thread, here is how the leading experts weigh in on this case. Dish will have an uphill battle to say the least.

Source

AMC and Cablevision’s breach of contract case against Dish for dropping the long defunct VOOM HD channels has been kicking around for years, but now is due to go to trial in September. And the smart money is starting to bet that Dish will settle to avoid being creamed in a case where the plaintiffs are seeking to split $2.5B in damages. That was one of the main drivers behind this morning’s decision by Susquehanna Financial Group’s Vasily Karasyov to raise his rating on AMC shares to positive from netutral, and his price target to $49 from $42. His company’s litigation analyst, Thomas Claps, says that Dish “is facing significant headwinds” as a result of two pre-trial rulings “which could cripple its liability and damages defenses.” The judge in the case has decided to tell the jury that Dish “destroyed potentially critical evidence in the case” and say they can infer that the evidence “would have been unfavorable to Dish.” In addition, the court will not allow Dish to include testimony or a report from its main damages expert. As a result, Karasyov believes Dish will settle — possibly before the October season premiere of AMC’s popular series Walking Dead — with the satellite company paying far less than $2.5B but resuming its carriage of the programmers’ channels including AMC, IFC, and WE.

Bernstein Research’s Craig Moffett also weighed in on the case this morning as he lowered his stock price target for Dish to $26 from $28. He’s now baking in a pre-tax loss of $1B. Moffett says that Dish will have a harder time than it did in its patent infringement case with TiVo using appeals and other legal maneuvers to delay its day of reckoning. The rules are different for a tort case than for a patent infringement one. And under New York State law, if the plaintiffs win, then Dish would have to escrow cash before it can appeal — and pay interest on it, which could be as high as 9%. He’s also betting on a settlement: “Cases involving spoliation of evidence rarely go to trial because the odds are so skewed against the offending party,” he says.