Dish Network L.L.C. v. ABC, Inc. et al

Filing 12

DECLARATION of Elyse D. Echtman in Support re: 3 Order to Show Cause,,,,,,,,. Document filed by Dish Network L.L.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Echtman, Elyse)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DISH NETWORK L.L.C.,
Plaintiff,
12 Civ. 4155 (LTS) (KNF)

v.
AMERICAN BROADCASTING
COMPANIES, INC., CBS CORPORATION,
the FOX ENTERTAINMENT GROUP, INC.,
FOX TELEVISION HOLDINGS, INC., FOX
CABLE NETWORK SERVICES, L.L.C., and
NBCUNIVERSAL MEDIA, L.L.C.,
Defendants.

DECLARATION OF ELYSE D. ECHTMAN IN SUPPORT
OF DISH NETWORK L.L.C.'S MOTION FOR AN
ANTI-SUIT INJUNCTION AND TEMPORARY RESTRAINING ORDER
Pursuant to 28 U.S.C. § 1746, ELYSE D. ECHTMAN hereby declares:
1.

I am a member of the bar of this Court and a partner at Orrick, Herrington &

Sutcliffe LLP, attorneys for DISH Network L.L.C. ("DISH"). I submit this declaration in
support of DISH's Motion for an Anti-Suit Injunction and Temporary Restraining Order.
2.

DISH commenced this action against all four major television networks on May

24, 2012 at 4:06 p.m. Eastern Daylight Time. A copy of DISH's time-stamped complaint is
attached hereto as Exhibit 1. The Complaint sets forth declaratory judgment claims that DISH'S
Hopper digital video recorder ("DVR") and its Auto Hop commercial-skipping feature for
recorded shows do not directly or indirectly infringe the defendants' copyrights and that DISH is
in compliance with its re-transmission agreements with the defendants.
3.

By this motion, DISH seeks an anti-suit injunction, pursuant to Rule 65 of the

Federal Rules of Civil Procedure, enjoining defendants Fox Entertainment Group, Inc., Fox

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Television Holdings, Inc. and Fox Cable Network Services, L.L.C. (collectively "Fox"), CBS
Corporation ("CBS") and NBCUniversal Media L.L.C. ("NBC") from proceeding with laterfiled copyright infringement and breach of contract actions brought in the Central District of
California. DISH further seeks a temporary restraining order against Fox which is currently
attempting to expedite its later-filed California action.
4.

DISH brought its action in this Court, because certain of its contracts with

defendants designate this Court as a mandatory forum for disputes between the parties, certain of
those contracts designate New York law as the governing law, and ABC, CBS and NBC have
headquarters in the Southern District of New York, while Fox has a substantial presence in New
York and its parent company, News Corporation, has its headquarters here.
The Hopper and AutoHop
5. • On May 10, 2012, DISH added an "AutoHop" commercial-skipping feature to its
latest high definition DVR known as the "Hopper." The top executives of the major television
networks responded to AutoHop with strongly critical statements to the press. For example, Les
Moonves, the Chairman of CBS, called the AutoHop "illegal." Tim Molloy, CBS's Moonves on

Dish's Auto Hop: 'It's Illegal', REUTERS (May 27, 2010), available at
http://news.yahoo.com/cbss-moonves-dishs-auto-hop-illegal-193411443.html. A copy of this
article is attached hereto as Exhibit 2.
6.

A May 23, 2012 news article in The Hollywood Reporter reported that "the

parent companies of the four major broadcasting networks -- Fox Broadcasting, NBCUniversal,
ABC/Disney Television Group and CBS Corp. -- have begun consulting with major law firms
with the expectation that litigation will be filed against Dish" and that "[t]he networks are said to
be examining their Dish license agreements, looking for breaches of contract that can be alleged
along with claims for copyright infringement. One top exec said a lawsuit should be expected
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within a month." Matthew Belloni, DISH vs. TV Networks: Attorneys Readying Showdown
over Auto Hop, THE HOLLYWOOD REPORTER (May 23, 2012),
http://www.hollywoodreporter.comithr-esq/dish-auto-hop-tv-networks-lawsuit-327958. A copy
of this article is attached hereto as Exhibit 3.

The Fox, CBS and NBC Later-Filed Actions
7.

Fox filed a copyright infringement and breach of contract action against DISH on

May 24, 2012 that was file-stamped at 1:35 p.m. Pacific Daylight Time, or 4:35 p.m. Eastern
Daylight Time. A copy of the civil cover sheet and the complaint filed in Fox Broadcasting
Company, Inc., Twentieth Century Fox Film Corp, and Fox Television Holdings, Inc. v. DISH
Network L.L.C. and DISH Network Corp., Case No. 12-CV-04529 (C.D.,Cal.) is attached hereto
as Exhibit 4.
8.

NBC filed a copyright infringement action against DISH on May 24, 2012 that

was file-stamped at 2:32 p.m. Pacific Daylight Time, or 5:32 p.m. Eastern Daylight Time. A
copy of the complaint filed in NBC Studios, L.L.C., Universal Network Television, L.L.C., Open
4 Business Productions L.L.C., and NBCUniversal Media, L.L. C. v. DISH Network Corporation
and DISH Network L.L. C., Case No. 12-CV-04536 (C.D. Cal.) is attached hereto as Exhibit 5.
9.

CBS filed a copyright infringement action against DISH on May 24, 2012 that

was file-stamped at 3:29 p.m. Pacific Daylight Time, or 6:29 p.m. Eastern Daylight Time. A
copy of the complaint filed in CBS Broadcasting Inc., CBS Studios Inc., and Survivor
Productions L.L.C. v. DISH Network Corporation and DISH Network L.L.C., Case No. 12-CV4551 (C.D. Cal.) is attached hereto as Exhibit 6.
10.

When Fox filed its action, it submitted an ex parte application by order to show

cause to shorten the time to hear a motion for expedited discovery in support of a prospective

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preliminary injunction motion. In Fox's application, Fox noted that it is "mindful that [its]
Application is being filed before a holiday weekend and that the Court is closed on Monday,
May 28, 2012," however, Fox requested a briefing schedule that required substantive opposition
papers from DISH "no later than Wednesday, May 30, 2012." A copy of Fox's ex parte
application to shorten time is attached hereto as Exhibit 7.
11.

This litigation among DISH and the networks has received extensive press

coverage. The Los Angeles Times reported that "{t]he major broadcast networks' legal skirmish
with satellite television service Dish Network over its new ad-skipping device is shaping up to be
a titanic struggle with enormous implications." Meg James & Dawn C. Chmielewski, Networks'
Fight with Dish over Ad Skipping has Huge Implications, L.A. TIMES, May 25, 2012,
-

http://www.latimes.com/entertainment/envelope/cotown/la-et-et-broadcast-networks-fight-withdish-over-adskipping-has-enormous-implications-20120525,0,4852990.story. A copy of this
article is attached hereto as Exhibit 8.

The Re-Transmission Agreements Between DISH And Defendants
12.

DISH is a party to re-transmission agreements with the defendants. Certain of

those agreements designate venue for a dispute in this Court and certain of those agreements
designate New York law as the choice of law, as shown in the following chart:
Network

Mandatory Venue
Clause

Governing Law

Time Network Filed
Suit

FOX

n/a

New York

4:35 EDT - 29 minutes
after DISH filed

NBC

n/a

New York

5:32 EDT - 86 minutes
after DISH filed

CBS

New York or Colorado

Colorado

6:29 EDT - 143
minutes after DISH
filed

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ABC

New York

New York

ilia

The relevant clauses from the re-transmission agreements are excerpted below.

13.

Based on confidentiality provisions in those agreements, it would be inappropriate to publicly
file the entirety of the agreements with this Court.
DISH's agreement with Fox provides:

14.

t).. Miscellaneous.This Aggeernent and the license .granted by Network to Affiliate under this
AsFeanent =limited by, and 'subject to, League Restrictions. This Agreement shall be governed
try and construed in wean/woe with the la-ws of the State of New York applicable to contracts
made and fully performed therein, except to the extent that the :parties', :respective rights and
obligaduris are subject to mandatory local, State and Federal laws or regulatiM,Any provision
tbis; Asrteurent which logically woold be expected to survive temination or expiration, shall
survive for a reasonable time period under the ehrunutances, wbether or not spe.cifically
provided in Ibis Agreement, The failure of either party to insist pcsm strict periiormance of any
provision of this Agreement shall not be construed as a waiver of any 8ubsequeni breach or the
same or Shall= nature,. :accept as otherwise exp ressly provided, all rights and remedies reserved
to either party shall becumulative and shall not be tn limitation of any other.right or remedy
ttLth Stich pony row ha' at law ,or in equity,
15.

DISH's agreement with NBC provides:

10..°8

aoverrohls LAW

This Agreement and all collateral matters shall be cox-lamed..arse Tdance with
the laWS of the.State f New York applicable to agreements made arid to be parforrned
therein,
16.

DISH's agreement with CBS provides:

.kprilitithlo Law.. This Agree:melt-11bn be governed land consifflect under and
c,le
itLaccordtacerwitlathp Ian qtr tbc Stag, a radoi- without rugard d4unflibt.cif
law mks therol; itl r. 10 milk4k provisions of the Cotrununications 4et of
1934, as amended, and iipplicable rttl sk regiffili.otts and orders of the fe.4.1eill
Comuttnioations Commission,. T federai and stale courts; located in the i4,, aad
gtato of Donvor; Colorado, Alid the Southbro. Ne:w la ll. is

axclusive jtrisaliction to hear and due- mills any oialins, disputes actions or suits
that may arisp uudig Or opt of ibis Agreement and eaa party belay waives ire
right- to imam any akfirn the -GpTifiary. The pm-v. '6;7.nsof tbLI Section _5h 11
1
slitvive the teintination. or ,cip.3-aeltivitm of ihia-Agte
-ettlebt

,

17.

DISH's agreement with ABC provides:
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.

21.

{o)' Thy dotal and :stator coOrt46ated in:1171.4 dcullty of
Ylirk in
the State or New York 's hall have exclu$iv6
hO4r and det60044 any
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Certification of DISH's Compliance with this Court's Individual Rules 2(b)(i)(A) and 2(b)(ii)

18.

My partner, Peter Bicks wrote to counsel for Fox, CBS and NBC on Friday, May

25, 2012, the day after the California suits were filed, and requested that those defendants agree
to dismiss, transfer or stay their later-filed California cases in deference to the first-filed suit in
this Court. In the absence of such an agreement, Mr. Bicks asked that Fox, CBS and NBC

commit, at a minimum, to hold their California actions in abeyance pending a determination of
proper venue by this Court. That letter specifically disclosed, "Nil the absence of such consent,
DISH will have no choice but to move for relief before Judge Swain." Mr. Bicks suggested that
confer by telephone and schedule a time to talk over the three-day weekend. A copy of DISH's
May 25 letter is attached hereto as Exhibit 9.
19.

Fox's counsel, David R. Singer at Jenner & Block LLP sent a responsive letter to

Mr. Bicks the same day. Mr. Singer represented that Fox would be moving to dismiss this action
and characterized DISH's declaratory judgment action as a "sham." Notwithstanding Fox's own
order to show cause, Mr. Singer offered to schedule a telephone call no earlier than Tuesday,
May 29, 2012, or Wednesday, May 30, 2012. Mr. Singer's letter did not respond to DISH's

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request that Fox agree to hold its action in abeyance. A copy of Mr. Singer's May 25 letter is
attached hereto as Exhibit 10.
20.

On Saturday, May 26, 2012, I sent Mr. Singer a follow-up email seeking a

specific response to DISH's request that Fox's California action be voluntarily held in abeyance.
In light of Fox's order to show cause submission, we again requested the courtesy of a telephone
call to meet and confer over the weekend. We offered to postpone the time for our call if Fox
would agree to hold its order to show cause in abeyance. A copy of my May 26 email message
is attached hereto as Exhibit 11.
21.

On Sunday, May 27, 2012, I sent Mr. Singer another email requesting a specific

response to DISH's request that Fox agree to hold its order to show cause in abeyance. In
addition, I proposed that the parties speak by telephone on Monday, May 28, 2012 at 2 p.m.
Eastern. A copy of my May 27 email message is attached hereto as Exhibit 12.
22.

Mr. Singer responded by email later that day, specifically refusing to stay Fox's

California action or to take Fox's order to show cause off of the calendar. Mr. Singer also
refused to speak on the telephone prior to Tuesday, May 29. Mr. Singer's email message further
set forth the basis for Fox's disagreement with DISH over the priority of DISH's first-filed
action. A copy of Mr. Singer's May 27 email message is attached hereto as Exhibit 13.
23.

I responded to Mr. Singer by email on May 28, 2012. I offered to speak with Mr.

Singer by telephone at any time that day or in the early morning of Tuesday, May 29, 2012. I
advised Mr. Singer that at this point DISH had no choice but to file a motion for relief with this
Court seeking, among other things, an order temporarily restraining Fox from proceeding on an
expedited basis in California. I asked Mr. Singer to provide the name of a colleague located in

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New York who might be available to appear in Court on Tuesday, if necessary. A copy of my
May 28 email message is attached hereto as Exhibit 14.
24.

Late on Monday, May 28, 2012, Amy Gallegos at Jenner & Block, a colleague of

Mr. Singer, sent me an email that, among other things, identified counsel in Jenner & Block's
New York office. A copy of Ms. Gallegos's May 28 email message is attached hereto as Exhibit
15.
25.

With respect to CBS and NBC, we did not receive an immediate response to Mr.

Bicks's letter of May 25, 2012. In order to ensure that the letter was received, I sent follow-up
copies by fax and email. On May 27, 2012, counsel for CBS and NBC, Robert Rotstein of
Mitchell Silberberg & Knupp LLP, responded by email confirming receipt of the letter. Mr.
Rotstein wrote that he would provide a substantive response during the following week. A copy
of Mr. Rotstein's email is attached hereto as Exhibit 16.
26.

On Monday, May 28, 2012, I wrote to Mr. Rotstein by email to provide him with

an update on DISH's meet and confer process with counsel for Fox. I advised Mr. Rotstein that,
because of Fox's position with respect to its California order to show case, DISH was left with
no choice but to move for a temporary restraining order on Tuesday, May 29, 2012, and that in
the interest of avoiding duplicative motion practice, DISH would also be seeking an anti-suit
injunction against CBS and NBC by the same motion. I also asked Mr. Rotstein to identify a
colleague in New York whom we might contact in the event that an appearance is necessary
today. Mr. Rotstein identified his colleague Jane G. Stevens. A copy of the email chain between
me and Mr. Rotstein is attached hereto as Exhibit 17.
27.

We have provided counsel for Fox, CBS and NBC with copies of DISH's motion

papers prior to submitting them to Chambers.

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28.

DISH does intend to submit papers in Fox's California action today requesting

that the district court in that case decline to entertain Fox's order to show cause.
29.

No previous application for the same or similar relief has been made, and no other

provisional remedy with respect to the matters raised herein has been sought or secured before
this or any other Court.

I declare under penalty of perjury that the forgoing is true and correct.
Executed on May 29, 2012

efir—cf.0

Elyse D. Echtman

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