FOX TELEVISION STATIONS, INC., et al v. AEREOKILLER LLC, et al

Filing 58

DEFENDANT FILMON XS REPLY TO PLAINTIFFS RESPONSE TO ORDER TO SHOW CAUSE WHY DEFENDANT SHOULD NOT BE HELD IN CONTEMPT OF THE SEPTEMBER 5, 2013 PRELIMINARY INJUNCTION filed by FILMON X, LLC, FILMON.COM, INC, FILMON.TV NETWORKS, INC., FILMON.TV, INC. (Attachments: # 1 Declaration of Ryan G. Baker)(Baker, Ryan) Modified on 10/25/2013 to correct event and linkage (rdj).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
CIVIL ACTION NO. 1:13-cv-00758 (RMC)

FOX TELEVISION STATIONS, INC., et al.,
Plaintiffs/Counter-Defendants,
v.

Civil No. 1:13-cv-00758 (RMC)

FILMON X, LLC, et al.,
Defendants/Counter-Plaintiffs.
_______________________________________
DECLARATION OF RYAN G. BAKER IN SUPPORT OF DEFENDANT FILMON X’S
REPLY TO PLAINTIFFS’ RESPONSE TO ORDER TO SHOW CAUSE WHY
DEFENDANT SHOULD NOT BE HELD IN CONTEMPT OF THE SEPTEMBER 5, 2013
PRELIMINARY INJUNCTION

I, Ryan G. Baker, declare:
1.

I am an attorney admitted to practice in the State of California, and a partner at

Baker Marquart LLP. I represent the defendants in this action.
2.

I submit this declaration in support of Defendants FilmOn X LLC, FilmOn.TV

Networks, Inc., FilmOn.TV, Inc. and FilmOn.com, Inc.’s (“Defendants”) Reply to Plaintiffs’
Response to Order to Show Cause Why Defendant Should Not Be Held in Contempt of the
September 5, 2013 Preliminary Injunction. I have personal knowledge of the facts set forth
herein and, if called as a witness, I could and would testify competently thereto.
3.

In addition to this action, I represent defendant FilmOn.com, Inc. in an action

captioned CBS Broadcasting, Inc. v. FilmOn.com, Inc. in the Southern District of New York,
Case No. 10 CV 7532 (NRB) (the “New York Action”).
4.

On August 15, 2013, the court in the New York Action held a hearing on two

motions to compel filed by the plaintiffs and an order to show cause why FilmOn should not be
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DECLARATION OF RYAN G. BAKER

found in civil contempt for violation of an injunction. I attended this hearing on behalf of
FilmOn and third party Alkiviades David.
5.

At the August 15, 2013 hearing, FilmOn was ordered by the Court to produce an

agreement that it allegedly entered into with a third party by August 21, 2013. It was my
understanding from the discussion that took place at the hearing that FilmOn had been ordered to
produce the agreement to plaintiffs. I did not believe that FilmOn had been ordered to file a
copy of the agreement directly with the Court. It was my understanding that – after production
of the agreement to plaintiffs – the parties would conduct a further meet and confer and then
submit supplemental briefing on plaintiffs’ contempt motion as necessary before this Court ruled
on the merits of that motion.
6.

On August 20, 2013, in accordance with this Court’s order at the August 15, 2013

hearing, I emailed a copy of the agreement at issue to Hadrian Katz at Arnold & Porter LLP,
counsel for plaintiffs in the New York Action. I also offered to “discuss” the agreement at Mr.
Katz’s convenience. Attached as Exhibit A is a true and correct copy of an email chain between
myself and Mr. Katz, including my August 20, 2013 email to him.
7.

Mr. Katz did not respond to my offer to meet and confer about the agreement;

instead, on September 6, 2013, plaintiffs filed a letter with this Court enclosing a copy of the
September 5, 2013 preliminary injunction issued in this action.
8.

A couple days later, on September 10, the court in the New York Action found

FilmOn in contempt on the mistaken ground that FilmOn had “failed to produce [the alleged
licensing agreements] despite that court order.” CBS Broadcasting Inc. v. FilmOn.com, Inc.,
2013 WL 4828592, *8 (Sept. 10, 2013 S.D.N.Y.).
9.

Recently, the plaintiffs submitted and obtained entry of a ten million dollar

judgment in the New York Action against FilmOn, which the court subsequently deleted from
the docket after my office advised the court that the judgment was actually against another party
and originated from a completely different litigation. A copy of the deleted docket entry is
attached as Exhibit B.
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DECLARATION OF RYAN G. BAKER

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on October 24, 2013 at Los Angeles, California.

By

Ryan G. Baker

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DECLARATION OF RYAN G. BAKER