LocusPoint Networks, LLC v. D.T.V. LLC

Filing 129

ORDER ON PLAINTIFF LOCUSPOINT NETWORKS MOTION TO ENFORCE SETTLEMENT RE THIRD-PARTY APPOINTMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 1/8/2016. (ahm, COURT STAFF) (Filed on 1/8/2016)

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B. ANDREW BEDNARK (admitted pro hac vice)

[e-mail]
MARK E. BERGHAUSEN (S.B. #278968)
[e-mail]
O’MELVENY & MYERS LLP
Times Square Tower
7 Times Square
New York, New York 10036-6524
Telephone: [phone]
Facsimile: [phone]
Mark Schallert (S.B #112542)
Law Office of Mark Schallert
[e-mail]
310 29th Avenue
San Francisco, CA 94121
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff LocusPoint Networks, LLC
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
LOCUSPOINT NETWORKS, LLC,

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Plaintiff,
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vs.
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D.T.V., LLC, A WYOMING Limited Liability )
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Company,
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Defendant.
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Case No.: 3:14-cv-01278-JSC
[PROPOSED] ORDER ON PLAINTIFF
LOCUSPOINT NETWORK’S MOTION
TO ENFORCE SETTLEMENT RE
THIRD-PARTY APPOINTMENT

Judge: Hon. Jacqueline Scott Corley
Place: Courtroom F, 15th Floor

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The Motion of Plaintiff LocusPoint Networks, LLC (“LPN”) to enforce its settlement

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agreement came on for hearing on January 7, 2016. This Court has jurisdiction to enforce the

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[PROPOSED] ORDER ON PLAINTIFF LOCUSPOINT NETWORK’S MOTION TO ENFORCEMENT
SETTLEMENT

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parties’ settlement agreement per the Stipulation and Order Re Dismissal of Case and

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Jurisdiction Over Settlement entered on September 16, 2015.

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The settlement agreement requires the parties “to appoint a neutral third party to ensure

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that WPHA enters and continues to participate in the Auction until its bid is accepted by the

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FCC.” This settlement agreement required appointment of the neutral third party by December

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12, 2015, but the parties were unable to agree on the appointment. LPN’s Motion sought, inter

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alia, to compel appointment of PricewaterhouseCoopers Advisory Services (“PwC”) to serve as

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the neutral third party.

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The Court, having considered the parties’ submissions and argument of counsel and
files in this matter, and GOOD CAUSE appearing,
IT IS HEREBY ORDERED:
1. DTV shall execute the document entitled “Appointment of Neutral Third Party As
Required Under Settlement Agreement,” a copy of which is attached hereto, thereby
appointing PwC to serve as the neutral third party.

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Date: January ___, 2016

_________________________________
Jacqueline Scott Corley
United States Magistrate Judge

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[PROPOSED] ORDER ON PLAINTIFF LOCUSPOINT NETWORK’S MOTION TO ENFORCEMENT
SETTLEMENT

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Appointment of Neutral Third Party
As Required Under Settlement Agreement
Under Section 2 of the Settlement Agreement between D.T.V. LLC (“DTV”) and
LocusPoint Networks, LLC (“LPN”), dated September 10, 2015 (the “Agreement”), DTV and
LPN are to appoint a “neutral third party to ensure that WPHA enters and continues to
participate in the [FCC broadcast spectrum incentive auction] until its bid is accepted by the
FCC.”
As of the deadline for submitting applications to participate in the broadcast incentive
auction (6:00pm ET on January 12, 2016) and until the announcement of the auction results
(the so-called “quiet period” under the FCC’s rules against prohibited communications), LPN
and DTV will be unable to communicate with each other regarding any aspect of WPHA’s (or
any station’s) bids or bid strategy. DTV therefore hereby agrees to the appointment of
Pricewaterhouse Coopers Advisory Services LLC (“PwC”) to ensure WPHA’s entry and
continued participation in the FCC spectrum auction by cooperating with PwC in its
performance of the services outlined in Attachment A hereto.
DTV further agrees to reimburse LPN at the conclusion of the “quiet period” for 50% of
the fees and expenses reasonably incurred by PwC and paid by LPN in connection with WPHA
up to a maximum reimbursement of $15,000 from the Auction proceeds.
LPN agrees that it will not seek or accept information (from PwC or otherwise)
regarding any aspect of WPHA’s bids or bid strategy during the “quiet period”. LPN further
agrees that it will use its best efforts to ensure that the PwC personnel working with DTV (the
“PwC Monitor(s)”) do not provide other PwC personnel, LPN, or any other person or entity
information regarding any aspect of WPHA’s bids or bid strategy during the “quiet period”.

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Agreed this ____ day of January 2016.
D.T.V. LLC

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By:
__________________________________
Name:
Title:
Agreed this ____ day of January 2016.
LocusPoint Networks, LLC
By:
__________________________________
Name:
Title:

[PROPOSED] ORDER ON PLAINTIFF LOCUSPOINT NETWORK’S MOTION TO ENFORCEMENT
SETTLEMENT

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ATTACHMENT A

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(Services to Be Rendered By PwC)

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1. Pre-Auction preparation – Prior to March 1, PwC will review and confirm the bidding
strategy and procedures for WPHA’s participating in the Auction, as outlined in the
parties’ agreement, with the individuals designated by DTV as its “Authorized
Bidders” in its FCC Form 177 application to participate in the Auction.
2. Monitoring Services in Support of WPHA/DTV – PwC will monitor the entry of bids
for WPHA in each Auction round by DTV’s Authorized Bidders in the licensee
computerized bid system established by the FCC, including acceptance of all FCC
“Go Off-Air” price offers, as follows:

(a)
In advance of each round of the Auction, the PwC Monitor(s) and
Randolph Weigner (or, in event of his unavailability for any reason, the
other Authorized Bidders) will confirm with each other electronically the
date and starting and closing times for that round as announced by the
FCC.
(b)
Promptly upon the beginning of each round of the Auction,
Randolph Weigner (or, in event of his unavailability for any reason, the
other Authorized Bidders) will electronically transmit to the PwC
Monitor(s) (1) the status of WPHA in that round of the Auction (e.g.,
“Active” or “Frozen”); and (2) the offer(s), if any made by the FCC for
WPHA in that round of the Auction; and (3) DTV’s anticipated
response(s) to those offer(s).

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(c)
Promptly upon submitting DTV’s WPHA-related response(s) to
the FCC’s offer(s), and in any event prior to the end of that round of the
Auction, Randolph Weigner (or, in event of his unavailability for any
reason, the other Authorized Bidders) will electronically transmit DTV’s
actually submitted WPHA-related response(s) to the PwC Monitor(s), by
providing PwC a “screen shot” or similar confirmation of the
response(s).
From the deadline for filing applications to participate in the Auction (January 12, 2016) until
the FCC announces the Auction results (the “Quiet Period”), under no circumstances will
PwC’s personnel who are in contact with DTV regarding WPHA’s Auction bids communicate
any of the WPHA bids or bid strategies to LPN or be involved with any other station’s bids or
bidding strategies. In addition, during the Quiet Period, PwC will take reasonable steps to
assure that all PwC personnel who are designated as the primary or alternate PwC
representative to a Station or Licensee will not be privy to, or communicate, the bids or bidding
strategies of any other Station or Licensee. PwC will also implement internal controls during
the Quiet Period to assure that information concerning the bids or bidding strategies of any

[PROPOSED] ORDER ON PLAINTIFF LOCUSPOINT NETWORK’S MOTION TO ENFORCEMENT
SETTLEMENT

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Station or Licensee to which PwC is providing Services will not be communicated by PwC to
any other Covered Television Licensee or applicant in the Auction, as those terms are defined
by the FCC.

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[PROPOSED] ORDER ON PLAINTIFF LOCUSPOINT NETWORK’S MOTION TO ENFORCEMENT
SETTLEMENT