Yates v. Adams et al

Filing 58

ORDER: The court asks the plaintiff's counsel to weigh in on the request. The ruling is deferred; Re 57 Letter filed by Comcast Corporation, Seal Rock Broadcasters, LLC, David B. Adams, Nexstar Broadcasting Group, Inc., Gray Television, Inc., Intermountain West Communications Company, Inc., Sarkes Tarzian, Inc., Sinclair Broadcast Group, Inc. Signed by Magistrate Judge Laurel Beeler on 5/4/2016. (lsS, COURT STAFF) (Filed on 5/4/2016)

JESSICA S. PLINER

2033 North Main Street, Suite 800

[e-mail]

Walnut Creek, CA 94596-3759

925-930-6600

925.930.6600
925.930.6620 (Fax)
www.archernorris.com

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Yates v. Adams, et al., Case No. 3:15-cv-04912-JD
Mandatory Settlement Conference: June 28, 2016

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Judge L

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Hon. Laurel Beeler
San Francisco Courthouse
Courtroom C - 15th Floor
450 Golden Gate Ave.
San Francisco, CA 94102

The Court asks the
platintiff's counsel to
weigh in on the request.
The ruling is deferred.
DATED: May 4, 2016

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May 2, 2016

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Dear Judge Beeler:
Defendants Nexstar Broadcasting Group, Inc., Seal Rock Broadcasters, LLC,
Sarkes Tarzian, Inc., Gray Television, Inc., Intermountain West Communications
Company, LLC, Sinclair Broadcast Group, Inc. and Comcast Corporation, hereinafter,
“Requesting Defendants,” request permission for their personal attendance at the June
28, 2016 settlement conference be excused because their appearance would an
unjustifiable hardship.
This suit arises from the alleged copyright infringement of computer software
“Subject Software” related to the digital delivery of commercial television
advertisements. The Requesting Defendants, operators of television stations across
the country, accessed the Subject Software at the request of Defendant David Adams
and his company Transmedia, Inc. in order to enable Transmedia to deliver
advertisements for insertion into programming in an efficient manner.
Transmedia has agreed to indemnify the Requesting Defendants with respect to
damages arising out of their access to or use of the Subject Software in this suit and Mr.
Adams has full authority to resolve this matter on behalf of Requesting Defendants. Mr.
Adams will be present at the settlement conference and will have full authority to settle
this matter on behalf of himself, Transmedia and on behalf of the Requesting
Defendants. Counsel for Requesting Defendants, including separate counsel for

C

Hon. Laurel Beeler
May 2, 2016
Page 2
Comcast Corporation will be present and Requesting Defendants propose being
available via telephone if required.
Mr. Adams possesses the information about the development of the Subject
Software, Plaintiff’s role in the development of the Subject Software and all Defendants’
access to and use of that software. Mr. Adams also possesses the information and
documentation supporting all Defendants’ affirmative defenses. Requesting Defendants
do not have any additional information on these items. Mr. Adams also possesses the
documents and information necessary to undertake a calculation of actual damages
relating to each Defendant’s access to the Subject Software, if liability were established.
Prior to the conference, said calculations will be confirmed with Requesting Defendants.
Therefore the value in the personal appearances of Requesting Defendants is
outweighed by the hardship of the extensive time commitment and long distance travel.
Requesting Defendants’ personnel who would satisfy the Court’s attendance
requirements (as stated in the Court’s April 5, 2016 Order) are located:
a) Nexstar Broadcasting Group, Inc.: Irving, Texas;
b) Seal Rock Broadcasters, LLC: Monterey, California
c) Sarkes Tarzian, Inc.: Reno, Nevada;
d) Gray Television, Inc.: Atlanta, Georgia;
e) Intermountain West Communications Company, LLC: Las Vegas, Nevada;
f) Sinclair Broadcast Group, Inc.: Hunt Valley, Maryland;
g) Comcast Corporation: Philadelphia, Pennsylvania.
Defendants Gray Television, Inc., Sinclair Broadcast Group, Inc., Sarkes Tarzian,
Inc. and Intermountain West Communications Company, LLC have liability policies
which may satisfy a judgment, however Transmedia is providing a defense and
indemnity to these Defendants and, accordingly, these carriers are not participating in
the litigation. The other Requesting Defendants do not have liability policies which
might satisfy a judgment.
Assuming liability could be established, which is unlikely for a number of reasons,
including conclusively established matters resulting from Plaintiff’s failure to respond to
requests for admissions, Defendants estimate the net actual damages to be less than
$10,000. (Statutory damages and attorney’s fees are not available in this matter).
Plaintiff’s counsel was unable to provide Plaintiff’s position on this matter as he
was unable to reach Plaintiff, who is apparently out of the country for at least another
week.
Because Mr. Adams will be present with full settlement authority to resolve this
matter as well as full knowledge of the relevant information and based on the amount in
controversy and the distances to be traveled, the personal appearance of the

Hon. Laurel Beeler
May 2, 2016
Page 3
Requesting Defendants at the settlement conference would represent an unjustifiable
hardship.
Respectfully Submitted,
s/ Jessica Stuart Pliner
Counsel for Defendants DAVID B. ADAMS,
erroneously sued Individually, and d/b/a
TRANSMEDIA, INC., TRANSMEDIA POST
PRODUCTION, TRANSMEDIA RADIO
NETWORKS, MEDIAFAX, INC. and
SPOTTRAFFIC, INC., NEXSTAR
BROADCASTING GROUP, INC., SEAL
ROCK BROADCASTERS, LLC, SARKES
TARZIAN, INC., GRAY TELEVISION, INC.,
INTERMOUNTAIN WEST
COMMUNICATIONS COMPANY, LLC
erroneously sued as INTERMOUNTAIN
WEST COMMUNICATIONS COMPANY,
INC. and SINCLAIR BROADCAST
GROUP, INC.

and

cc:

Jill Battilega Rowe
Counsel for Defendant Comcast
Corporation

Craig Lusiani (Counsel for Plaintiff)
Charles R. Kozak (Counsel for Plaintiff)
Owen Seitel (Co-Counsel for Requesting Defendants)

T0230001/4817-5496-1200-1