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

[jacmyoung]

Waiting for Dish to produce a smoking gun...and you're free to post what Dish has introduced into evidence regarding the subject.

That is the problem, there is no such thing as a smoking gun. Otherwise a contract is meaningless. Why even have a contract if it's own language cannot stand on its own, and it can be easily circumvented by some smoking gun? This is not a political dispute.

Even after all the evidence were submitted, the motion court still said the contract was ambiguous, while it upheld the lower court sanction against Dish. That is the question I asked many times, why did the motion court say the contract was ambiguous? Presumably they had read the evidence, not just the publicly available pieces?

Why is VOOM asking for more from Dish's claimed confidential communications? The evidence are still not good enough?

 

[ScottChez]

You ask where is the docs and evidence from Dish.
It is not there turn yet to present evidence. The had it sealed from the public until its there turn on purpose for better negotiations.

 

[riffjim4069]

That is the problem, there is no such thing as a smoking gun. Otherwise a contract is meaningless. Why even have a contract if it's own language cannot stand on its own, and it can be easily circumvented by some smoking gun? This is not a political dispute.

Even after all the evidence were submitted, the motion court still said the contract was ambiguous, while it upheld the lower court sanction against Dish. That is the question I asked many times, why did the motion court say the contract was ambiguous? Presumably they had read the evidence, not just the publicly available pieces?

Asked and answered. We're beating a dead horse and I cannot append anything further to what I have already mentioned.

Why is VOOM asking for more from Dish's claimed confidential communications? The evidence are still not good enough?

Why? Because Voom feels that Dish is hiding evidence by asserting privilege. As they mentioned, and the court agreed, Dish has a history of hiding/destroying evidence and, if they were forthcoming, they should have presented these documents to the court and allowed Judge Lowe to determine their privilege status. Regardless of how much evidence Voom may or may not have presented, Voom's lawyers have an obligation (and are being paid handsomely to do so) to discover as much evidence as possible to support their client's case. Besides, if these documents do, in fact, demonstrate that Dish executives were apprised of details in the audit report as alleged by Voom...well, that most certainly is my definition of a smoking gun. What if the auditor said something like, "The audit team found Voom to have spent 102.954 million dollars in verifiable expenses on the service in accordance with Annex B of the November 2005 LLC Agreement"? Game, set and match!

 

[jacmyoung]

Asked and answered. We're beating a dead horse and I cannot append anything further to what I have already mentioned.

You never answered why the motion court concluded the agreement was ambiguous.

Why? Because Voom feels that Dish is hiding evidence by asserting privilege. As they mentioned, and the court agreed, Dish has a history of hiding/destroying evidence and, if they were forthcoming, they should have presented these documents to the court and allowed Judge Lowe to determine their privilege status. Regardless of how much evidence Voom may or may not have presented, Voom's lawyers have an obligation (and are being paid handsomely to do so) to discover as much evidence as possible to support their client's case. Besides, if these documents do, in fact, demonstrate that Dish executives were apprised of details in the audit report as alleged by Voom...well, that most certainly is my definition of a smoking gun. What if the auditor said something like, "The audit team found Voom to have spent 102.954 million dollars in verifiable expenses on the service in accordance with Annex B of the November 2005 LLC Agreement"? Game, set and match!

Even if the auditor said one thing, Dish's own team could have concluded differently. Until the term "service" is made clear, everyone can interpret it in his/her own favor. The question is not whether Dish wanted to find a way to get out of the contract, the question is whether they violated the contract.

So far, I read the motion court as concluding the contract, or at least the disputed term(s), were ambiguous. No new evidence has been introduced since then as far as I could tell.

What I do know is, an ambiguous contract cannot be enforced by the court.

 

[HDRoberts]

I think you guys are making this out to be way too simple. I don't think the definition of "service" to be as black and white, i.e. all Voom-claimed overhead is included or none of it is included. I think the argument is more along the lines of some of it isn't included.

I thought one of the contentions was the way that Cablevision general overhead was parsed out. I also imagine there can be arguments about the legitimacy of the overhead. For instance, did they buy more expensive perks for employees, knowing that they could spend whatever on themselves and it could just be paid for by subtracting from the programming budget? If I were Dish, that is the argument I'd go with, painting Voom execs as fat cats living large off Dish subscribers and using bogus overhead accounting to divert money for the screen to their own comforts.

 

[riffjim4069]

You never answered why the motion court concluded the agreement was ambiguous.

Only in 2008, 2009, 2010, 2011 and 2012 (see the pattern here). Here are just two of the 30 or 40 posts I made about the subject of ambiguity. If you really want to know why the motion court concluded the agreement was ambigious...well, I suggest you contact the clerk of the court for an answer. Hopefully he can provide you with an unambiguous statement regarding the courts ruling on contract ambiguity.

http://www.satelliteguys.us/threads/137234-DISH-VS-VOOM-The-Trial-Begins!?p=2388933#post2388933
http://www.satelliteguys.us/threads/137234-DISH-VS-VOOM-The-Trial-Begins!?p=2817839#post2817839

Even if the auditor said one thing, Dish's own team could have concluded differently. Until the term "service" is made clear, everyone can interpret it in his/her own favor. The question is not whether Dish wanted to find a way to get out of the contract, the question is whether they violated the contract.

So far, I read the motion court as concluding the contract, or at least the disputed term(s), were ambiguous. No new evidence has been introduced since then as far as I could tell.

What I do know is, an ambiguous contract cannot be enforced by the court.

It most certainly can be enforced if Voom provides sufficient evidence to the court to demonstrate that EchoStar knew or should have reasonably known what 'the service' meant during execution of this contract...that's why Voom is suing EchoStar, and it's why 2.5 million pages of documents have been produced and presented to the court! While an "Injunction" order cannot be issued in matters involving ambiguous contracts (that's the main reason why the court did not prevent Dish from terminating (legally or not) the Affiliation Agreement in January 2008 (turned 'em off May 2008), the court opined that extrinsic evidence would need to be evaluated in order to determine what each party knew or were reasonably expencted to know about 'the service'.

Again, why else would the court gather 2.5+ million pages of documents through discovery and move this case forward. Voom also asserted the Affiliation Agreement was part of a larger busineess/partnership (LLC Agreement) and distribution agreement in which various documents were drafted, signed and exchanged with clear knowledge and understanding between both parties. I don't know how many more times I can say the same thing. Well, that's not true...that number is one (1) as in this is the last time. If you wish to believe something different then go right ahead.

 

[jacmyoung]

I think you guys are making this out to be way too simple. I don't think the definition of "service" to be as black and white, i.e. all Voom-claimed overhead is included or none of it is included. I think the argument is more along the lines of some of it isn't included.

I thought one of the contentions was the way that Cablevision general overhead was parsed out. I also imagine there can be arguments about the legitimacy of the overhead. For instance, did they buy more expensive perks for employees, knowing that they could spend whatever on themselves and it could just be paid for by subtracting from the programming budget? If I were Dish, that is the argument I'd go with, painting Voom execs as fat cats living large off Dish subscribers and using bogus overhead accounting to divert money for the screen to their own comforts.

Sometimes faced with millions pages of evidence, a simple way to look at the case might be the only way to do it.

The intent of the spending limit was clearly to ensure the programming continued to attract eyeballs. If VOOM spent similar amount of money over that few years, at the end, it was all repeats, one can argue it had failed to fulfill the service obligation intended by that spending limit of the service.

To say that it is ok for VOOM to turn the service into something no one watches anymore, as long as their accounting showed they spent the same money, you can't fault Dish for terminating the service as it deterioated, because money was used elsewhere compared to the previous years, at least not when the term "service" was not clearly defined. In such case you cannot convince me the service spending limit had no meaning, when the service had gone down hill.

 

[dishburgh]

Sometimes faced with millions pages of evidence, a simple way to look at the case might be the only way to do it.

The intent of the spending limit was clearly to ensure the programming continued to attract eyeballs. If VOOM spent similar amount of money over that few years, at the end, it was all repeats, one can argue it had failed to fulfill the service obligation intended by that spending limit of the service.

To say that it is ok for VOOM to turn the service into something no one watches anymore, as long as their accounting showed they spent the same money, you can't fault Dish for terminating the service as it deterioated, because money was used elsewhere compared to the previous years, at least not when the term "service" was not clearly defined. In such case you cannot convince me the service spending limit had no meaning, when the service had gone down hill.

http://www.multichannel.com/news-art...etrayed/139536
"Morrison Foerster partner James Bennett, representing EchoStar, focused his opening statements on what he called Voom's failure to spend an agreed upon $100 million annually on HD programming. He claimed that prior to the agreement, Voom had easily spent more than that amount each year strictly on programming costs, but that declined substantially shortly after the agreement was signed, in part because Voom parent Cablevision Systems was considering shutting the service down. Bennett added that shortly after the EchoStar deal was signed, Cablevision stopped carrying the Voom channels ."

 

[navychop]

Arise! Arise, I say! LIVE!

 

[riffjim4069]

Another setback for Dish?

I received an email that these documents (attached) were posted online early this morning. I scanned them for only a minute or two (didn't read them), but it appears two things happened at trial this week besides testimony from Voom/Rainbow/AMC/Cablevision execs. One, Judge Lowe ruled that almost all the documents Voom claimed Dish was improperly asserting as being privileged were, in fact, not privileged - they were business documents created by non-lawyers. I think three of the documents were excluded or portions were redacted, but they were moved into evidence and possibly shared with Voom, pending appeal. Two, Dish appealed Judge Lowe's ruling. Again, I only scanned these documents but Dish's lawyers did not appear to be happy with the ruling. Will this appeal affect trail procedings? I have no idea.

 

[Voyager6]

After reading the docs, it appears Dish is appealing Judge Lowe's decision to give the docs to VOOM. He did not turn them over to VOOM right away. He gave Dish until the following morning to appeal which Dish did. The audit findings and the negotiation and due diligence docs appear to be the main contested points.

 

[jacmyoung]

After reading the docs, it appears Dish is appealing Judge Lowe's decision to give the docs to VOOM. He did not turn them over to VOOM right away. He gave Dish until the following morning to appeal which Dish did. The audit findings and the negotiation and due diligence docs appear to be the main contested points.

Based on what I learned from the TiVo v. E* case, the judge will certify an appeal if there is a valid legal dispute of the ruling, otherwise Dish will have to wait till the end of the jury trial, at least for something rather trivial. Not that Dish will likely win on appeal, but there may be a valid legal contention against such ruling that the court itself needs clarification or certainty.

 

[thechaz05]

Anyone find out anything new yet?

Sent from my phone using SatelliteGuys sweet app

 

[Scott Greczkowski]

Judge Criticizes Dish During Voom Trial

Dish doesn't provide documents with appeal
By Jon Lafayette -- Broadcasting & Cable, 10/9/2012 3:26:02 PM

The judge hearing Voom's lawsuit against Dish Network criticized Dish for "incredible" behavior he said was delaying the case and could cause a mistrial.

According to Thomas Claps, an analyst for Susquehana Financial Group, Dish's lawyer appealed a ruling by Judge Richard Lowe III to turn over certain documents, but failed to provide the appellate court with a copy of the documents making it impossible for the appellate court to make an immediate decision.

Judge Lowe said the action was further evidence of Dish's ongoing, inappropriate conduct in the case, according to Claps. The judge also accused Dish of attempting to "spin its wheels" and delay the proceedings so that the current trial schedule could be jeopardized and possibly result in a mistrial, Claps said. He added the judge appeared to be "absolutely furious."

http://www.broadcastingcable.com/article/489809-Judge_Criticizes_Dish_During_Voom_Trial.php

 

[primestar31]

Well, just goes to show you that Dish found another way out for now: Mistrial. I didn't even think of that option, but it couldn't hurt them any worse, and perhaps might be a great delaying tactic.

 

[mikeinaustin]

yes but how long can it take to get the appellate court the documents? a few hours to one day at most. as for the dish lawyers, though i am sure they are following the wishes of their client, almost certainly they will face direct sanction after the trail by the judge. worse, the judge could recommend disbarment hearings be brought against dishes lawyers. in other words, if you are a practicing attorney you really don't want to piss off your judge this badly.

 

[mikeinaustin]

further blibs from trial: "The judge became “extremely animated” and accused Dish of “blatant misconduct and attempts to delay” .

Some members of the jury have said that they can’t serve past the end of October; if there aren’t enough jurors then the case would end in a mistrial. But Lowe “indicated that he won’t let that happen, and won’t let Dish continue to delay the case,” Claps says.

http://www.deadline.com/2012/10/dish-network-amc-voom-court-delay/

 

[riffjim4069]

Simply astounding. What's next? They're going to come to court and say the dog ate these documents?

 

[primestar31]

Simply astounding. What's next? They're going to come to court and say the dog ate these documents?

The judge needs to hit them where it hurts: immediate sanctions that hits their pocketbook even worse. It's already been 4 + years.

 

[Teehar]

Wow,no idea what Dish and their legal team are thinking.Seems to get uglier by the day.