Another interesting read...
http://www.chicagotribune.com/enter...varietynvr1118059351-20120917,0,6533508.story
http://www.chicagotribune.com/enter...varietynvr1118059351-20120917,0,6533508.story
DISH -VS- VOOM - A Settlement has been reached!
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I wonder how many of those 2 million pages of documents are print outs from SatelliteGuys? From what I am hearing "a lot."
Of course not counting the first ruling that went Dish's way where the injunction was not granted since the judge decided that VOOM's case was not solid enough even though the ruling would mean the end of VOOM...
"So far, said Mike Morris at Davenport & Co., "The only winners to date have been the analysts who were treated to an entertaining Dish earnings call during which Charlie Ergen extolled the virtues of the 'Godfather' approach to doing business.""
"So far, said Mike Morris at Davenport & Co., "The only winners to date have been the analysts who were treated to an entertaining Dish earnings call during which Charlie Ergen extolled the virtues of the 'Godfather' approach to doing business.""
Well, since the Godfather put a horses head in somebodies bed, I guess that leaves Charlie a horses ass!
Kind of fitting, if you ask me... lol
Speaking of the analysts, if any of you are familiar with the TiVo v. Dish case, you would probably hold judgment of their predictions and assessments.
I do think Dish has a hard battle at the jury trial, but we have learned the appeals courts can easily render a jury decision, especially on damages, meaningless.
At the end of the TiVo litigation, Dish actually won, Dish stock went up, TiVo stock went down, even though all the analysts insisted TiVo took it to the bank. So take the analysts for what they do. Of course legally they are never wrong.
One thing I kept asking, why did the appeals panel say the court had already determined the contract ambiguous? In what way? If the contract failed to spell out what the $100M/year entailed, to what extent one can say, his version is correct, not yours?
I do think Dish has a hard battle at the jury trial, but we have learned the appeals courts can easily render a jury decision, especially on damages, meaningless.
At the end of the TiVo litigation, Dish actually won, Dish stock went up, TiVo stock went down, even though all the analysts insisted TiVo took it to the bank. So take the analysts for what they do. Of course legally they are never wrong.
One thing I kept asking, why did the appeals panel say the court had already determined the contract ambiguous? In what way? If the contract failed to spell out what the $100M/year entailed, to what extent one can say, his version is correct, not yours?
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Different motion and different legal standard as noted in earlier discussions (in this thread) back in 2008. In an injunction hearing, the court can only rule on the plain language found within the strict confines of the contract. As such, the court stated the affiliation agreement was "ambiguous" in which the court was not empowed to issue an injunction against Dish. In other words the term "service" was not clearly defined in the contract so there was no credible basis for determing whether Voom did, or did not, meet the spend requirement, again, within the strict confines of the contract. The court further opined "Voom's case was not solid enough..." at the time because Voom did not provide evidence (nor would the court accept nor would it consider it during an injunction motion) to support that VoomHD LLC and EchoStar had exchanged documents, signed agreements, and had a clear understand of what the term "service" meant, how costs would be allocated, and how the financials would be reported. The court could only issue a ruling based on the plain language found in the contract in question...and not what the parties knew or agreed to prior as a matter of executing and operating under the affiliation agreement.
The court also stated that in the case of ambiguious contracts (e.g., terms and conditions not clearly defined), the court must rely on what both parties reasonably understood the contract to mean. In this case we're talking about the terms "service" and "spend". Voom has provided an overwhelming number of documents (appendix to the Affiliation Agreement, pre-agreements, accounting methods, financial statements, memoradums of understanding/agreement, emails, etc.) to the court showing that Dish knew, and agreed with, how "service was defined and how the costs, and shared expenses, would be allocated. That's why most experts expected Dish to settle this case or get creamed in court.
Could Voom have continued to operate in some form or fashion post EchoBoom? Could they have scaled-back operations and, perhaps, started schlocking a MonstersHD, Rave or WorldSport channel? Sure! But if they did, they would have all but kissed-away any sizable damage claims against Dish (their surviving would have supported Dish's damage arguments), so they shuttled operations and loudly claim that Dish's actions of illegally terminating the affiliation agreement killed VoomHD. This case is money grab!
Okay, here is the case in a nutshell: (my viewpoint based on the evidence I have seen submitted to the court...along with common sense, of course!)
Did EchoStar illegally terminate VOOM? In my best Jack Nickolson (Col. Jessup) voice, "You're damn straight they did!" EchoStar signed a bad contract. They thought Cablevision/AMC/Voom would successfully market VoomHD and their total expenses would be greatly reduced since they were given a 20% share in VoomHD Networks for providing distribution services. Dish may have even though they would make money on the deal. Dish got royally pissed when Voom couldn't find anyone to sign-up for their 15-channel lineup (all or nothing), and even more irate when Voom would not break it up into smaller chunks (oh, say a 3 or 5-channel package - although I do recall they may have briefed a 5-channel package to DirecTV at one point) or a la carte. The Dolan's made a strategic decision to bleed EchoStar dry under the existing affiliation agreement, and Charlie viewed the contract as a anchor around their necks as HD became mainstream. Heck, Dish was demanding, and receiving, free HD feeds from their network/cable programmers while having to pay a mint (something like $3.25 - $6.50 per HD customer) for Voom during the 15-year life of the contract. There was no reason Voom would not meet the spend requirement since their compliance would bring in billions of easy money into the Dolan's coffers. Anyway, it was cheaper for Dish to walk-away from the contract, and take their chances in court at some distant time in the future, than to pay Voom for another 13-years under the agreement. So they killed the contract and hoped they could find a legal loophole or perhaps a sympathetic jury.
Did EchoStar kill Voom? No! Voom could have continued to provide some services to Cablevision customers, International customers, and perhaps negotiate another deal for distribution. However, that would destory their damage claims against Dish so they shuttled the operations, rolled-over on their backs, and are pandering for big bucks!
Who is culpable? Both parties! Dish for signing a terrible contract and Voom for electing to bleed Dish dry. Who is legally at fault? My Magic 8 Ball says Dish is going down. Hard? We shall see.
Who wins? Well, Cablevision shareholders will get a few nickels and dimes in the settlement or jury award...however, the Dolans make out like bandits and bastards!!!
Who loses? Dish Network customers...each and every one of the poor bastards who have been and will continue to pay for VoomHD. Heck, they are basically paying for the AMC Networks channels and receiving no Mad Men, Breaking Bad or Walking Dead.
Anyway, that's all I have to say about that...
Article in the Sept 16, 2012 Wall Street Journal regarding the lawsuit made the following comment:
Some analysts say that the resumed carriage of AMC channels could be part of a settlement. Mr. Moffett wrote in a recent note that it is one of Dish's "only sources of negotiating leverage" against AMC and Cablevision.
Some analysts say that the resumed carriage of AMC channels could be part of a settlement. Mr. Moffett wrote in a recent note that it is one of Dish's "only sources of negotiating leverage" against AMC and Cablevision.
Yes, that Chicago Trib article was quite good. AMC may need the carriage more than the money but I'll bet the Dolans are fixated on the cash. And if it drags out for years- who knows? I know who the biggest gambler is, though.
I said when AMC was dropped, losing carriage was gonna hurt them more than any money they might get from the Voom lawsuit. The Dolans are in it just for pure greed and to put it to Charlie.
riffjim4069 said:
I just want to point out, during the TiVo v. Dish debate, you concluded the same, saying the case would harm Dish customers and stock holders. You said back then that was all you had to say about that.
You did not like Dish then, apparently like it even less so now, since that case did not turn out as you predicted. How could an evil company continue to get away with things you know.
Personally I would not play the emotion card. Dish customers do not need you standing up for them, nor do Dish investors.
riffjim4069 said:
There's one problem with this point. Voom/Cablevision has a duty to mitigate damages in the case of breach. They can't take steps to exacerbate the damages suffered. That just doesn't fly.
To give a real world hypothetical example. Say you hired me and we signed an employment contract with a five year term. A year into the contract you fire me in breach of the contract. I can't turn around and decide to remain unemployed while suing you for damages. I have to make an effort to find employment and mitigate the harm I suffer. Refusing to mitigate by refusing to find alternative employment will not help me stick it to you, my actions would be taken into account during the damages calculation.
dangue said:
Along this line of reasoning, I recall VOOM did talk to DirecTV and offered the 5-channel to them, DirecTV declined. I don't know the timing of it, but if true, the fact VOOM rejected Dish's 5-channel alternative, could it be an issue against VOOM's claim of damages?
If it was clear the agreement was not sustainable, even if just for one party, did they both have duty to mitigate?
jacmyoung said:
Parties enter into bad contracts all the time. One side does not have an obligation to agree to modify or alter the contract just so the other side can get out from under terms that did not work out well for them. Depending on the relationship, parties to a contract can and do modify all the time. It doesn't seem like Voom and Dish ever had that sort of relationship. Duty to mitigate only comes up when there is a breach and damages are expected.
It would be an interesting argument on Dish's part (assuming breach is already determined) to say that Voom had an obligation to provide the five channels Dish was willing to carry to mitigate the damages Voom suffered from the initial breach. That seems like a very tough argument to make to a jury. Then again, Voom did offer a package of five channels to Direct at one point, so maybe it wouldn't be such a stretch. But I haven't delved into contract law enough to know if there's any precedent to such an argument.
If Dish gets to the point where they have to make it, they're probably be in serious trouble.
If you're trying to state that I concluded Tivo would win their patent infringement case against Dish, which they did, while you steadfastly maintained that Dish would triumph through multiple nonsensical legal wranglings, which they did not, then you would be right....er, or wrong in your case. I honestly had no problem with Dish making innovative DVRs (I leased one and purchased three others) and electing to fight the infringement lawsuit. In fact, back in 2005 I was hoping Dish would prevail, and their products found not to infringe, because I did not agree with some of Tivo's patent holdings. Dish didn't like the court's ruling. So you appeal the decision and, if you lose the appeal, you pay Tivo their licensing fees and go back to business. Instead, they played a dangerous game in the courts and a whole lot of DVRs were almost disabled in the process.
If you'll recall, I said Dish executives had a fiduciary responsibility to protect the wealth of shareholders and ensure profitability of the company. Having a large percent of DVRs disabled because the CEO was a "gambling man" could have cost the company hundreds of millions of dollars - perhaps over 1B. Thank goodness they settled with Tivo and avoided what would have been a very ugly situation. I also made no (zero, nil, nodda) utterances about this case harming Dish shareholders - not one. In fact, I have said multiple times that in the long run it will probably save Dish money not honoring their agreement with Voom. Although some may not approve of how they conduct business, the fact is they signed a bad agreement (nobody disputes this factoid) with Voom and it quickly became an anchor around their necks as HD moved mainstream.
Let's face it...Voom didn't budge one iota (would not restructure the contract) so they are also to blame for the demise of VoomHD. Of course, my objective statement flies opposite of your assertion when you said, "Cablevision is responsible for VOOM's demise, no one else." We're well aware of your agenda and I have pasted your quote below out of courtesy. I have said both parties are culpable numerous times as well. Anyway, Dish should have settled this case years ago. It's now going to cost them a lot more these days because Dolan wouldn't blink. Of course, everyone knows Charlie pulled the AMC Networks channels as leverage to force a settlement with Cablevision/AMC, who have an equal 50% stake in the defuct Voom. I think this is crappy tactic because customers are being inconvenienced and it may cost the company more money in the long run.
Anyway, I have concluded that you must be a politician, or a member of the band Dead or Alive, because you spin this story right round, baby, right round...to suit your agenda. I know, in your make believe world Dish won their lawsuit with Tivo...Dish will win this lawsuit with Voom...and Dish can do no wrong in your eyes. And nobody will convince you otherwise.
:Banter from this thread posted years ago...and yes, we understand you feel Voom was to blame and it was a mistake for dish to carry VOOM.
Gentlemen, lets keep the facts on the case now that the trial has started instead of focusing on each other.
Thanks!
BTW I haven't heard a word about today's proceedings... I wish I lived in NY!
Thanks!
BTW I haven't heard a word about today's proceedings... I wish I lived in NY!
With the VOOM, FOX, CBS, NBC and other lawsuits, E* lawyers probably have a "Take a Number" machine outside their doors as well.
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dangue said:
Did Dish even suggest such settlement?
So duty to mitigate only applies after breach of contract is determined. Which was why I thought the timing of the DirecTV offer was important. Did anyone know when that happened?
Assume it happened after Dish terminated the contract, would it not argue in Dish's favor that Dish made a reasonable offer to modify the contract? If so, would such determination have any impact on damages, assume of course Dish did breach the contract.
On the flip side, the fact DirecTV declined VOOM's 5-channel offer, it is almost as if VOOM after losing the lucrative revenue source from Dish, had to go find another job while giving itself a pay cut, even then could not find a job. Would that not argue in VOOM's favor the damage it suffered?
As a layperson, I imagine in a contract of such magnitude, there should be language that neither party may act against the other's interest, or both parties are obligated to promote each other's interest.
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IIRC, Voom offered the 5 pac to Direct before Dish got PO'ed and pulled the rug, but it's been so long ago, I could be wrong.
