Federal Appeals Court Sides with Time Warner Cable in Nexstar Contract Dispute

(Photo credit: Wikipedia)

A three-judge panel of the United States Court of Appeals for the Fifth Circuit yesterday in Nexstar Broadcasting, Inc. v. Time Warner Cable, Inc. (Case No. 12-10935) upheld a trial court's refusal to grant injunctive relief to Irving, Texas-based Nexstar, thereby, enabling Time Warner to retransmit television signals to its cable subscribers in remote markets.

The appellate panel ruled that Time Warner legitimately had a statutory license to rebroadcast the signals of  Nexstar's  television stations in Rochester, NY; Terre Haute, Ind.; and Wilkes-Barre, Penn., to subscribers in other markets, including Winston-Salem,  N.C., Cincinnati, Ohio, Louisville, Ky., Burlington, Vt.; Plattsburgh, NY; and Orlando, Fla. The plaintiff alleged in its July 2012, breach of contract action that Time Warner was not paying for retransmission of the signals and that it ran afoul of FCC nonduplication rules by, for example, broadcasting the same syndicated programming to its Winston-Salem subscribers at the same time as another station in the market.

The appeals court found the parties' retransmission consent agreement was broad and not geographically restrictive. Judge E. Grady Jolly concluded in the panel's opinion that the agreement gave "Time Warner broad authority to retransmit Nexstar signals on Time Warner stations." Moreover, the appellate panel ruled Nexstar failed to put Time Warner on notice concerning its alleged breach of the nonduplication rules.

Tip of the hat to Courthouse News Service for reporting on this decision.

Actress' Suit Against IMDb One for the Ages

Internet Movie Database (Photo credit: Wikipedia)

Hollywood's obsession with youthful screen stars is best reflected by the probably apocryphal tale of the journalist who once wired legendary actor Cary Grant: "How old Cary Grant?" to which he replied: "Old Cary Grant fine. How you?"

Age was no laughing matter to actress Huong Hoang, whose stage name, Junie Hoang, can be found in the credits of celluloid classics, including Gingerdead Man 3: Saturday Night Cleaver (2011) and Hoodrats 2: Hoodrat Warriors (2008). Last week, according to the Associated Press, a United States District Court for the Western District of Washington jury rejected her breach of contract claim in Hoang v. Amazon.com, Inc. & IMDb.com, Inc. (Case No. C11-1709(MJP)).

Before the trial began, the presiding judge granted the summary judgment motion of defendant Amazon, the parent company of  the Internet Movie Database(IMDb) Web site, allowing it to get out of the case. Hoang initially sought $1 million damages against IMDb in her complaint, which included counts of breach of contract and violation of Washington's Privacy Act [RCW 9.73 et seq.) and Consumer Protection Act [RCW 19.86.020], for publishing her actual age in her profile.

The 41-year-old Houston native originally listed her birthdate as 1978, instead of 1971, because she claimed she was always cast in younger roles, according to the AP story. IMDb refused her request not to list a birth year at all unless she could prove the original date listed was incorrect. The defendant ultimately performed a public records search using her birth name and listed the 1971 birthdate on her account profile, despite her protestations.

She alleged in her complaint that acting roles were few and far-between once her actual age appeared on the site, despite her obviously sterling resume. She sued for breach of contract, alleging the defendant violated its privacy terms by mining her account data. The defendant countered that it had a First Amendment right to publish the information and that she had failed to show any damages sustained as a result of the listing of her birth year as 1971. The jury apparently agreed.

IMDb lists more than 2 million pages of data about tv, movies and entertainment in its searchable database, according to the AP story. Hoang should not give up hope--maybe she can fill the void in mature roles left by Judi Dench's decision to curtail her movie appearances to concentrate on theater.

Potboiler Publisher Won't Share the Pot, Romance Novelists Claim in Contract Suit

(Photo credit: Wikipedia)

Expect plenty of bodice-ripping, burning eyes and flaming lips, and waves crashing against the ocean in the United States District Court for the Southern District of New York as three romance novelists have filed a putative class action breach of contract/unjust enrichment suit against Harlequin Enterprises Ltd. ("HEL") concerning E-book royalties.

The case, reported on by Courthouse News Service and the Wall St. Journal Law Blog, is Barbara Keiler, Mona Gay Thomas & Linda Barrett v. Harlequin Enterprises Ltd., Harlequin Books, S.A. & Harlequin Enterprises B.V. (Case No. 12-cv-5558). Toronto-based HEL, the subject of a copyright infringement suit earlier this year reported here (see "TUOL" post 4/23/12), reportedly cranks out 110 titles monthly in 34 languages reaching 114 international markets from its stable of 1,200 authors. As faithful readers of this blog no doubt know, lead plaintiff Keiler is the author of Right Place, Wrong Time and Blooming All Over, Thomas penned His Secret Duchess and The Heart's Desire, while the collected works of Barrett include Apple Orchard [not to be confused with Anton Chekhov's obvious knock-off Cherry Orchard] and Love Money and Amanda Shaw.

The plaintiffs are seeking class-action status that would cover Harlequin authors who penned books for the defendants overflowing with heaving bosoms during the period from 1990 to 2004. The plaintiffs allege in their complaint that they are owed royalties on E-book editions of their works because of a standard contract clause that pays authors 50 percent royalties on net receipts of the "publisher, from the exercise, sale or license of digital rights to their works."

The plaintiffs contend that defendants Switzerland-based Harlequin Books S.A. and Netherlands-based Harlequin Enterprises B.V. are HEL subsidiaries that perform no publishing functions and merely provide tax benefits to the parent company. HEL claims it had to obtain a license from its Swiss arm to publish the authors' E-books and that any royalty calculation should be based on the publisher Harlequin Switzerland license, or 6 percent to 8 percent of the E-book's cover price, which means 3 to 4 percent for the authors.

As set forth in the plaintiffs' complaint:

 "In 2011, Harlequin Enterprises sent written communications to plaintiffs and the other class members in which it took the position that royalties for e-books were covered by the AOR [All Other Rights] Clause in the Publishing Agreements and that the authors' 50% royalty was to be calculated based on the net amount received by Harlequin Switzerland, from a 'license' that Harlequin Enterprises claims Harlequin Switzerland granted to it to publish the e-books," the complaint states. "Harlequin Enterprises claimed in those communications that the net amount received by Harlequin Switzerland was 6% to 8% of the cover price of the e-books, and that the royalties owed to plaintiffs and to other class members were therefore 50% of that amount, or 3% to 4% of the cover price.

     Under the publishing agreements, defendants have been paying plaintiffs and the other class members e-book royalties of 3% to 4% of the cover price based on the net amount received by Harlequin Switzerland from the claimed 'license' granted to Harlequin Enterprises, far less than what plaintiffs and the other class members would have been paid if their royalties were based, as they should have been, on the net amount received by Harlequin Enterprises." 

The "TUOL" staff can't help but wonder whether the judge hearing the case wears an eyepatch and has a handsome scar.

'Bought Out' Journalist Sues Paper for Fraud

(Photo credit: Wikipedia)Advance Publications-owned The Star-Ledger has been sued by former deputy business editor and Essex County (N.J.) Bureau Chief Philip Read for fraud, breach of contract and breach of the covenant of good faith and fair dealing concerning his 2010 buyout, Romanesko.com reports.

Read, who joined the daily as deputy business editor in 1997, alleges that he was misled into accepting the voluntary buyout by purportedly being told editorial staffers would be pink-slipped if the paper didn't realize $10 million in savings, according to his complaint. As Bureau Chief, he was earning $109,000 in 2008 when he purportedly received memoranda from the Star-Ledger citing declining advertising revenues as the impetus for the daily needing 200 employees to accept buyouts.

According to his complaint, Read was told he would likely be laid off if he didn't take the buyout. He alleges the Star-Ledger did not achieve the $10 million cost reduction goal, yet did not layoff staff. (Disclosure: the tireless staff of "TUOL" grew up reading The Star Ledger once The Newark Evening News figuratively and literally folded.)

UPDATE: Lawsuit Not Going Off in a Huff

Image by Getty Images via @daylifeNew York Supreme Court Justice Charles F. Ramos yesterday denied defendants' motion to dismiss, allowing two former political consultants' lawsuit against Huffington Post co-founders Arianna Huffington and Kenneth Lerer to proceed to discovery, the Associated Press reports.

Peter Daou and James Boyce sued last year, claiming Huffington and Lerer stole their idea for an online news aggregating site (see "TUOL" post 11/17/10). Their 26-page Complaint includes counts alleging idea appropriation, breach of fiduciary duty, breach of contract, fraud and unjust enrichment. 

Lie to Me, But Don't Steal from Me

Image by Getty Images via @daylifeKudos to the always interesting Suffolk Media Law Newsletter, along with Courthouse News Service, for reporting on a Los Angeles County Superior Court case involving allegations that the idea for Lie to Me, a Fox TV drama starring English actor Tim Roth that just completed its third season, was purloined from an author and a production company after their negotiations with Fox to develop the series broke down.

Roderick Anscombe, Massachusetts author of the novel,  The Interview Room (2004), and Calif.-based John Gertz Productions, which purchased the screen rights to the novel in 2005 that yielded a screenplay entitled Lie to Lie, sued Fox, Imagine Entertainment and Fox exec Simon Andreae for breach of contract and breach of confidence. The complaint alleges that themes, plots and episodes of  Lie to Me are "strikingly similar" to Lie to Lie and concepts purportedly disclosed by plaintiffs during series development talks in Sept. 2007, with Fox.

The plaintiffs claim that Fox deceived them by debuting Lie to Me in January 2009, after purportedly informing the plaintiffs in late 2007 that the development project was being shelved. Anscombe's novel features a forensic psychiatrist who aids police in crime solving and specializes in detecting falsehoods.

In Lie to Me, Roth plays Dr. Cal Lightman, a body language expert, who assists authorities in criminal investigations by detecting lies. The pilot episode drew 12 million viewers, and is regularly watched by 6 million viewers on average three years into its run.

Fox has not officially commented on the suit. Wonder if the plaintiffs will hire a body language expert to see if  any tv execs squirm on the witness stand.  Radio comedian Fred Allen once said: "Imitation is the sincerest form of television."  Perhaps that will be offered as a defense at trial.

Dem Consultants Go Off on a 'Huff' in Lawsuit Against News Aggregator

Image via Wikipedia
The guardian.co.uk Web site reports today on a 26-page complaint filed in the Supreme Court of New York (Peter Daou & James Boyce  v. Arianna Huffington, Kenneth Lerer & TheHuffingtonPost.com, Inc.) in which two Democratic politicos allege breach of contract, breach of fiduciary duty, idea misappropriation, unjust enrichment, quantum meruit, fraud, negligent misrepresentation and breach of implied contract against the co-founders of  The Huffington Post news aggregator.


According to their lawsuit, Daou & Boyce are being deprived of an ownership interest in HuffPost by the defendants, whom they accuse of stealing their idea for the influential Web site that launched in 2005. According to the Guardian account, Daou has pledged to donate any proceeds from the lawsuit to progressive political causes.


Huffington & Lerer released a statement to the Politico Web site denying the plaintiffs' accusations, and asserting that Daou & Boyce had no role in the creation, financing or operation of TheHuffingtonPost Web site. The defendants allege they rejected hiring or entering into a partnership with the plaintiffs six years ago.

The lawsuit is in its nascent stage as the defendants have yet to file an answer to the complaint. The defendants should have no problem mounting a defense with the money that they don't pay Web site contributors, but Arianna probably wishes she had the "bus money" she doled out to transport New Yorkers to the Stewart/Colbert Rally for Sanity in Washington, D.C. last month.

Federal Judge Tosses Md. Woman's 1st A. Facebook Suit

Image via CrunchBase
In Young v. Facebook (2010 WL 4269304 N.D. Cal. 10/25/10), U.S. District Court Judge for the Northern District of California Jeremy Fogel dismissed a Maryland woman's lawsuit against Facebook that alleged violation of her First Amendment rights, breach of contract, negligence and other common law claims.


Judge Fogel tossed Karen Beth Young's First Amendment count against Facebook because the social media monolith is not a government actor, notwithstanding the existence of  federal agencies' Facebook pages per contractual arrangement with the social network service. Young also alleged breach of contract, claiming Facebook didn't abide by its Statement of Rights and Responsibilities ("SRR") by failing to halt alleged online harassment of her, but Judge Fogel pointed to Facebook's express disclaimer in the SRR regarding monitoring the network's safety and noted the SRR did not create an affirmative contractual obligation by Facebook toward the plaintiff.


Depending on one's vantage point, Young was either the harasser or the harassed. She claims she was subjected to offensive comments and postings after she objected online to an anti-President Obama Facebook page that Facebook failed to halt. Facebook, however, banned her from the social network because of what it claimed was harassing behavior in which she allegedly engaged, such as attempting to friend people she did not know en masse.  At the time Facebook shut down her account, she purportedly had 4,300 friends on her personal page (certainly a deterrent to casual get-togethers with pals).

Young brought the suit pro se and allegedly twice drove from Maryland to Facebook's California  headquarters in unsuccessful attempts to get her account reactivated, so she apparently wasn't wanting for spare time.

Those interested in further claims Young alleged and Judge Fogel rejected should read Evan Brown's informative blog, Internet Cases (http://blog.internetcases.com).

2d Cir. Rekindles MSNBC Reporter's Libel Suit Against Network

Image via Wikipedia
In Claudia DiFolco v. MSNBC Cable LLC, Rick Kaplan & Scott Leon (Docket No. 09-2821-cv), the U.S. Circuit Court of Appeals for the Second Circuit last week reinstated defamation and breach of contract claims against the cable network brought by Claudia DiFolco, former Los Angeles correspondent for MSNBC at the Movies and MSNBC Entertainment Hot List.


The appellate court reversed the March 30, 2007, decision of U.S. District Court for the Southern District of New York Judge Loretta Preska's dismissal of DiFolco's lawsuit alleging defamation, breach of contract and tortious interference with prospective business relations for failure to state a claim by reinstating the contract and defamation counts.  Writing for the three-judge panel, Judge Roger Miner said the trial court precipitously accepted the defendants' argument that the plaintiff had resigned.

DiFolco contended that MSNBC President Rick Kaplan wrongly interpreted an email she sent about alleged mistreatment of her by producers of her programs to be her resignation before her two-year contract expired.  She alleged MSNBC leaked her purported departure to online industry news sites Inside Cable, News Blues and TV Spy, which she claimed defamed her in online articles. TV Spy posted a pseudonymous comment that DiFolco "believe[d] that cleavage, overtime in the makeup chair and a huge desire to become a star is...how to pay your dues," while the other two sites claimed she quit MSNBC mid-contract.


Judge Preska ruled DiFolco's repudiation of her agreement negated her breach of contract claim and found the defenses of truth and fair comment (opinion) defeated her defamation claims.  The appeals court, however, noted that opinions grounded on false facts are actionable, so Judge Preska prematurely ruled TV Spy's posting was non-defamatory, and that the parties' email exchange did not reflect unequivocally DiFolco's intention to resign as correspondent, giving new life to the breach of contract allegation.

In this instance, MSNBC, whose new slogan is "Leaning Forward," may fall on its face.

'Open Channel D' as in Damages

Image via WikipediaA Los Angeles County Superior Court jury, following a two-week trial,  has awarded $7.3 million to Anchor Bay Entertainment in its fraud case against Lindsay Dunlap & Ember Entertainment concerning the '60s tv classic spy series The Man from U.N.C.L.E., as reported by the Website THR, Esq.
(http://thresq.hollywoodreporter.com).

Anchor Bay filed suit in October 2007, including counts alleging fraud, intentional misrepresentation and breach of contract in its 18-page complaint. The plaintiff claimed Dunlap represented to it that she held the rights to the hit spy series that ran from 1964-1968 and made international stars of Robert Vaughn (Napoleon Solo) and David McCallum (Illya Kuryakin).

Anchor Bay, Starz Media's DVD distribution unit, gave Dunlap $500,000 for U.N.C.L.E. masters and another $125,000 for DVD extra footage pursuant to a 2005 contract. M.G.M. produced the show chronicling U.N.C.L.E.'s battle against the evil organization T.H.R.U.S.H., but Warner Bros. TV subsequently acquired the program. Warner sent a cease and desist letter asserting its ownership rights to Anchor Bay as the plaintiff was readying the release of  U.N.C.L.E. DVDs.

Call it "The Ember Affair" and cue Jerry Goldsmith's catchy theme.

UPDATE: Judge Allows Contract Claim Against Fox News to Proceed

Image via Wikipedia

Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York has ruled that Fox News must answer to a breach of contract claim for its alleged continued airing of footage of convicted Ponzi artist Bernie Madoff and his spouse enjoying a spin on a yacht.

The case, Kenneth Stadt v. Fox News Network LLC (Case No. 1:09-cv-07910), was brought in September 2009, by the owner of  the video footage and included counts alleging copyright infringement, conversion, breach of contract and breach of fiduciary duty. [See "TUOL" post 9/17/09.] Fox sought to dismiss the latter three "state claims," arguing that they were preempted by the Copyright Act.

Judge Scheindlin obliged as to the conversion and fiduciary duty allegations, but sided with the plaintiff in her 23-page decision that Fox's alleged ongoing promotion of the Stadt footage as a "Fox Business Exclusive," could constitute a material breach of contract.  According to Stadt's original complaint, Fox paid him $10,000 in January of last year for the exclusive right to air the Madoff footage for 45 days, and then coughed up another $50,000 to show the Madoffs at sea for another 45 days. The plaintiff contends that Fox continued to show the allegedly copyrighted video of the seaworthy scammer once the exclusive rights period expired.

UPDATE: What's the Frequency Dan?

Image by Getty Images via Daylife

Former CBS Evening News Anchor Dan Rather's dead $70 million breach of contract suit against the Eye Network (See "TUOL" post 9/29/09) will stay dead.

The N.Y. Court of Appeals yesterday denied Rather's motion for leave to appeal the dismissal of his case by the Appellate Division of the NY Supreme Court (Motion No. 2009-1196). Rather was assessed $100 costs and necessary reproduction disbursements. Not sure what HDNet is paying the former network news star, but Rather is probably good for it.

UPDATE: Court to Dan Rather: 'Courage-Your CBS Lawsuit Is Toast'

Image by Getty Images via Daylife

The appellate division of the New York Supreme Court has tossed 75-year-old former anchor Dan Rather's $70 million lawsuit against CBS Corp and others. arising from Rather's participation in a  controveresial, ill-fated "60 Minutes II" story about former President George W. Bush's National Guard service.

In a unanimous seven-page decision written by Judge James Catterson, the appellate division held that Supreme Court Judge Ira Gammerman wrongly denied the defendants' motion to dismiss the breach of contract and breach of fiduciary duty claims in Rather's Complaint (Dan Rather v. CBS Corp., Viacom, Inc., et al., Case No. 603121/07). Rather sued in  Sept. 2007, alleging fraud, and breach of the covenant of good faith and fair dealing, along with the contract and fiduciary duty counts.  In July, Judge Gammerman restored the fraud count he had previously dismissed in September 2008 (see "TUOL" 7/22/09).

Writing for the Court, Judge Catterson concluded that CBS did not owe Rather a fiduciary duty and had not breached his contract by warehousing him after the error-laden Bush story ran, because Rather continued to be paid by CBS. Likewise, the Court ruled that Rather failed to prove fraud or that CBS had hindered his future business opportunities in its treatment of him.

Rather's counsel said Rather, who now works at HDNet, would appeal the ruling. A complete victory for the denizens of Black Rock.  As Rather's late colleague Walter Cronkite was wont to say: "That's the way it is."