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

[PTVC]

When they found no other takers for the Voom 15, all the evidence points to Voom essentially shutting up shop, investing the bare minimum, inflating their overhead to drive that minimum down, and choosing to leach off one of their biggest competitors, Dish.

Voom didn't leach, they had a $2.5B contract with Dish.

Not that Voom needed any more evidence than it already had, but when deleted emails surface indicating Dish executives were well-aware of the provisions of the spend requirement...well, then it leads one to believe this was a concerted efforted by Dish to illegally terminate the affiliation agreement, destroy and conceal evidence, and lied to the court under oath. Game, set and match?

Considering forensic analysits claim that Dish hard drives had been "cleaned" before the trial, I'd say Dish was doing whatever it could to get out of the bad business deal they made without having to pay.

Really?? I wonder how much a real network gets then....

Why be snide? Could have just pointed out the I used a B instead of an M.

Only if there is no dispute of facts.

Or if the judge felt Cablevision had no case and dismissed all or part of it.

 

[mikeinaustin]

Why did the court specifically refuse to allow the expert testimony? Did he do something wrong? Or is it tied to a specific misconduct by Dish?

Dish wanted Timothy Brooks — a former research exec for Lifetime and USA Networks – to take the stand and refute the plaintiffs’ claim that they’re entitled to more than $2.4B following Dish’s 2008 decision to drop the VOOM suite of HD channels. But Lowe says that Brooks is not qualified to rebut the plaintiff’s expert, Susquehanna Financial Group’s Thomas Claps says. Since Brooks is not an economist, he doesn’t have the expertise needed to challenge the assumptions and models from the expert for AMC and its former parent, Cablevision: consulting firm Compass Lexecon’s Senior Managing Director Jonathan Orszag (who also happens to be the brother of the Obama administration’s former Office of Management and Budget director Peter Orszag). Lowe now has disqualified all three of the damages witnesses Dish wanted to call. Claps says this is “another significant blow to Dish” following a series of run-ins with Lowe who found that satellite company improperly destroyed evidence, and hid emails that supported the plaintiffs’ case.

http://www.deadline.com/2012/10/voom-dish-network-amc-trial-damages-expert-witness/

 

[Tampa8]

Which one?

That's funny whatever your feelings on Dish and Charlie.....

 

[jacmyoung]

Or if the judge felt Cablevision had no case and dismissed all or part of it.

A judge cannot prevent a trial by "feeling" whether one party has a case or not. Only when parties do not have any dispute of material facts, can the court issue a summary judgment.

As long as there is dispute of material facts, even if the judge "feels" one side of dispute cannot be trusted, the court must still let the fact-finding be performed in a trial, by bench or by a jury.

In this example, if there is no disput between Dish and VOOM the "the service" meant all cost, whether programming and other overhead costs, and there is no dispute VOOM spent over $100M required, a jury trial would be unnecessary.

As long as the parties dispute the above facts, the judge cannot issue a summary judgment because he feels VOOM does not have a case, or Dish is lying.

Of course a party cannot disput facts for the sake of disputing the facts. If a reasonable person, faced with the facts, would conclude that there is absolutely no dispute of such facts, summary judgment can be issued, even if that party insists on disputing the facts.

 

[riffjim4069]

Why did the court specifically refuse to allow the expert testimony? Did he do something wrong? Or is it tied to a specific misconduct by Dish?

I believe the damage expert was excluded as a sanction for spoliation of evidence (deleting electronic evidence). There is another outstanding motion (pending ruling) to exclude another expert witness on the grounds that he will be testifying to junk science, he's not qualified, the information is not relevant to this case, and any utterance is prejudicial. As I recall, this witness is supposed to testify about an International something or other category expense, which is not a valid expense category listed in any of the thousands of pages of documents. Voom says Dish concocted this nonsense in August out of mere desperation. The motion (#11?) is still open and, I feel, whatever slim shot Dish had of putting him on the stand is likely gone after they got caught hiding evidence by asserting privilege and having those damaging emails recovered.

 

[riffjim4069]

Considering forensic analysits claim that Dish hard drives had been "cleaned" before the trial, I'd say Dish was doing whatever it could to get out of the bad business deal they made without having to pay.

Not having to pay is one thing, but terminating a 15-year agreement and leaving their partner CV/AMC $500 million in debt because they didn't like the deal they signed is quite another.

 

[GaryPen]

Dish and Voom will come to a settlement...(ahem)... soon.

 

[ScottChez]

Umm...you do realize that two courts have ruled the contract was ambiguous and that the court must look at extrinsic evidence to determine what both parties knew, or were reasonably expected to know, about executing and operating under this contract. If I were you, I would go back and start reading Page 1 of this thread. We'll be here when you catch-up. I would also suggest that you read the following definition of the term extrinsic evidence.

"Extrinsic evidence is similar to extraneous evidence, which is not furnished by the document in and of itself but is derived from external sources. In contract law, Parol Evidence is extrinsic evidence since it is not within a contract but, rather, is oral and outside the instrument."

You also realize that it is common knowledge that the ONLY...yes, the ONLY dispute in this case is determining what the parties understood the spend requirement mean as it related to the 'service'. Dish says it involves programming only while Voom maintains it involved programming and customary overhead. To support their case, Voom has provided reams of evidence backing their position. These artifacts include the LLC Agreement, Annex A and B, the preliminary agreement, emails, meeting minutes, financials, cost account methods exchanged during the due diligence phase, etc., ad nauseum.

As for Dish...well, their CEO and VP of Programming were deposed and stated under oath it was their understanding the 100M per year spend requirement was on programming only. Flashforward through Dish deleting evidence, withholding evidence, altering audit reports, improperly asserting privilege on non-privileged (and vital evidence) documents...and now it is being reported that auditors found deleted emails in which the CEO and VP of Programming acknowledge the 100M spend requirement included programming AND overhead expenses. Anyway, that's the evidence I've seen Dish submit so far in this case.

Anyway, I challenge you to look at the facts. Earlier you predicted this case would cost Dish $400M. I find that figure to be outrageous considering Voom had already invested 300M in the 'service' (i.e., in the red) before Dish terminated the agreement because Voom would not kowtow to their demands and agree to be re-tiered out of existence - or at least lose 300M by their executing under the terms and conditions of the agreements. According to Voom, they were required to invest another $200M into VoomHD before this agreement would be profitable well into the 6th year of this 15-year partnership and distribution agreement.

Sorry, but I see Dish coming out of this with a lot less cash in the bank. We shall see.

You do realize this is a jury trial? The jury only gets to see what is presented in court not the many years and thousands of pages you talk about.

 

[PTVC]

A judge cannot prevent a trial by "feeling" whether one party has a case or not. Only when parties do not have any dispute of material facts, can the court issue a summary judgment.

Ok, you're right, don't get all tingly over the use of the word feel. Judges never dismiss, have no legal authority to dismiss all or part of a lawsuit, or to determine if there are facts to dispute. Judges just can not dismiss cases. It just never happens. Didn't happen in the match.com lawsuit, didn't happen in 'The Bachelor' lawsuit.

I don't think you understand the difference between a dismissal and a summary judgement.

Dismissal = There are no judgements entered, as if the case was never filed.
Summary Judgement = Judge makes a binding decision, as if a case had proceeded to trial and a decision had been made and a judgement ordered.

Not having to pay is one thing, but terminating a 15-year agreement and leaving their partner CV/AMC $500 million in debt because they didn't like the deal they signed is quite another.

My whole point was Dish didn't want to pay. Whether it left Cablevision with $500 million of debt was not Dish's concern. I was just pointing out that Dish has been doing whatever it can to keep from having to honor the contact it breached.

Dish does not come out the winner in the case, regardless of whether it proceeds to trial or is settled by months end. And, AMC gets its carriage agreement.

 

[Teehar]

I suppose anything could happen when it comes to the jury's decision but,there is no glove that doesn't fit.

 

[PTVC]

If it doesn't fit, you must acquit.

 

[riffjim4069]

You do realize this is a jury trial? The jury only gets to see what is presented in court not the many years and thousands of pages you talk about.

You do realize that thousands, no, make that well over a million pages of documents were produced via discovery and introduced into evidence (exhibits 1-491). While this evidence is presented to the jury and argued by trial counsel, the jury DOES have the right, and a duty, to request access to whatever documents they feel are necessary in order to make an informed decision. In fact, during deliberations, juries will frequently send requests to the trial judge seeking a review of testimony or exhibits introduced at trial. Didn't you ever watch Perry Mason?

Seriously, if one of the parties were to summarize what was in some of the key documents, wouldn't you want to read that document for yourself in order to confirm what is says and what it doesn't say? Wouldn't you note inconsistencies with the evidence (physical and testimony) and, as a jury, ask the court to release these documents for deliberation? Of course you would. Likewise, should a witness provide testimony that conflicts with prior written statements or their deposition, a jury should want to rationalize these inconsistencies by reviewing depositions, documents and testimony. I would!

While the court certainly doesn't need the jury to review all the evidence (and they shouldn't if trial counsel is doing their jobs), they should certainly be permitted to read key documents (like the contracts) and the evidence they feel is relevant in adjudicating the case. Sometimes trial counsel makes it easy for a jury by framing their case, but others do not and, sometimes, a jury picks-up on things during trial that counsel ignores.

Anyway, the court collects evidence so a jury can review it, if necessary, during the trial. All they have to do is let the clerk know what evidence they wish to review, and the judge will usually honor their request. So a jury DOES NOT "only get to see what is presented in court not the many years and thousands of pages..."

 

[riffjim4069]

My whole point was Dish didn't want to pay. Whether it left Cablevision with $500 million of debt was not Dish's concern. I was just pointing out that Dish has been doing whatever it can to keep from having to honor the contact it breached.

Dish does not come out the winner in the case, regardless of whether it proceeds to trial or is settled by months end. And, AMC gets its carriage agreement.

I was confirming what you were saying...apparently I missed the mark.

 

[PTVC]

I was confirming what you were saying...apparently I missed the mark.

Gotcha, now. Thought you were trying to make a whole different point were Cablevisions debt was more of an issue than Dish trying to weasel out of the deal all together.

 

[HDRoberts]

Voom didn't leach, they had a $2.5B contract with Dish.

The contract was for the Voom channels that existed in 2005. The channels Voom was providing in 2007 were crap compared to those.

They leach because they did not follow spirit of the agreement, even if the jury rules they followed the letter. Charlie I'm sure didn't think that the $100M commitment he asked for was to pay for posh office space, padded employee salaries, and what not.

Imagine if ESPN decided to cut back on what they are paying for programming. No more NFL, no more MLB, no more NBA, except for reruns on ESPN Classic. But they do show European Premiere League soccer. A few soccer fans love it, sure. But would the vast majority love continuing to have $10 added to their bill to carry the ESPN suite? I think there would be a revolt against ESPN.

That is what Voom did. They cut their programming, except for maybe Monsters HD. Sure, a few horror movie fans loved it. But the majority were not impressed. And as people went to DirecTV in droves to see Viacom stretch-o-vision, Dish needed out. If Voom instead focused on making their programming better, people, along with DirecTV, Comcast, TWC and the like would flock to them instead. But counting their money from Dish was easier, so count their Dish money they did.

Sure, maybe they followed the letter of the contract. But that does not mean that Voom execs were not a-holes for doing so.

 

[jacmyoung]

Ok, you're right, don't get all tingly over the use of the word feel. Judges never dismiss, have no legal authority to dismiss all or part of a lawsuit, or to determine if there are facts to dispute. Judges just can not dismiss cases. It just never happens. Didn't happen in the match.com lawsuit, didn't happen in 'The Bachelor' lawsuit.

I don't think you understand the difference between a dismissal and a summary judgement.

Dismissal = There are no judgements entered, as if the case was never filed.
Summary Judgement = Judge makes a binding decision, as if a case had proceeded to trial and a decision had been made and a judgement ordered.

You obviously have no concept of debating in the context of the subject involved. There is no such thing as dismissal in this case, only the issue of summary judgment.

To say well a judge can always dismiss the case if he feels there is no case. Of course the statement alone is not wrong, but in this case, such statement is purely argumentative.

 

[jacmyoung]

The contract was for the Voom channels that existed in 2005. The channels Voom was providing in 2007 were crap compared to those.

They leach because they did not follow spirit of the agreement, even if the jury rules they followed the letter. Charlie I'm sure didn't think that the $100M commitment he asked for was to pay for posh office space, padded employee salaries, and what not.

Imagine if ESPN decided to cut back on what they are paying for programming. No more NFL, no more MLB, no more NBA, except for reruns on ESPN Classic. But they do show European Premiere League soccer. A few soccer fans love it, sure. But would the vast majority love continuing to have $10 added to their bill to carry the ESPN suite? I think there would be a revolt against ESPN.

That is what Voom did. They cut their programming, except for maybe Monsters HD. Sure, a few horror movie fans loved it. But the majority were not impressed. And as people went to DirecTV in droves to see Viacom stretch-o-vision, Dish needed out. If Voom instead focused on making their programming better, people, along with DirecTV, Comcast, TWC and the like would flock to them instead. But counting their money from Dish was easier, so count their Dish money they did.

Sure, maybe they followed the letter of the contract. But that does not mean that Voom execs were not a-holes for doing so.

Charlie did get carried away by the concept of VOOM, when HD was in its infancy. They could have easily added limitations in the agreement consider the risk involved with such a new and unproven service. They did point out the term "the service" was added later, when they suspected the potential for the Dolans (in particular the young Dolan) to abandon the service.

I am just not so sure Dish did a good enough job to protect themselves at that time. A risk taker can benefit big time when it pays off, yet runs the risk of losing big too, such is the definition of risk taking.

 

[riffjim4069]

Circus maximus: Dish exec berates Cablevision lawyer

Stranger than fiction...

"A Dish Network executive yesterday stormed out of the courtroom sobbing after being insulted by the judge — only to return and launch into a finger-wagging verbal assault on a Cablevision lawyer.

In a wacky series of events in Manhattan state court, Dish programming boss Carolyn Crawford turned on her heels after dressing down Orin Snyder and, according to eyewitnesses, moved toward the exit and tapped the back of Snyder’s elderly dad and barked, “I hope you are proud of your son.”

That prompted Snyder to accuse Crawford of roughing up his father and he asked that cops be called."

Full Story

 

[jacmyoung]

Ok, the judge insulted her, then apologized. Maybe why the analyst said the chance of a mistrial is increasing

 

[dare2be]