The opinion of the court was delivered by: A. Howard Matz Senior U.S. District Judge
Resolution of the dispute that is at the core of this case should not have required a trial. It is a contract dispute over who has the right to license the Golden Globes Award Show for television broadcast. The parties could have settled their differences even before the complaint was filed. Certainly by the autumn of 2011, after discovery had been completed and the main legal issues fully briefed, they were in a position to promote and protect their respective interests by entering into a reasonable compromise. Indeed, they had preliminarily explored some key concepts that could serve their main objectives. (See Findings of Fact ¶¶ 134-146.)
Yet sometimes it does take a trial to enable litigants to reach a compromise, and presiding over the trial was a pleasure for this Court: excellent lawyers on both sides, some colorful witnesses and numerous issues of law.
The Court concludes that the defendants, who will be referred to as "dcp" (dick clark productions), are entitled to a declaration that their interpretation of the parties' agreement is correct. dcp has the right to license the Golden Globes Award Show to NBC (but not to others) so long as NBC commits to broadcast that show, and dcp may do so even without the approval of the Hollywood Foreign Press Association ("HFPA").
What led to this conclusion? The Court specifies the most important factors and principles in the detailed findings of fact and conclusions of law that follow. What the Court is compelled to note here is that there is an overriding feature of the lengthy relationship between dcp and HFPA that helps explain how it came to pass that HFPA granted such sweeping rights to dcp. That feature is simply this: HFPA suffered from the absence of sound, business-like practices. See, e.g., ¶¶ 83, 91 and 156-170. It also lacked consistent leadership. It elected a new President every year for a one year term, with a maximum of two consecutive terms. Some elections triggered bitter feelings. HFPA members have always been dedicated to the success of the Golden Globes Award Show. But often they succumbed to bouts of pronounced turmoil and personal feuds. (See, e.g., Findings of Fact ¶ 356 and fn. 2) In contrast, dcp acted in a consistently business-like fashion, and for almost all of the 27 year relationship it had with HFPA before this suit was filed dcp was represented by one experienced executive who was adept at dealing fairly and effectively with the often amateurish conduct of HFPA.
Because HFPA functioned in such an unusual fashion, the emphasis devoted at trial to expert testimony about industry custom and practice proved to be of little, if any, value to the Court. Given that the legal principles applied in this ruling are well-established, it would be surprising if the outcome of this ruling is viewed as a legal precedent. For the story that follows is sui generis.
1. Plaintiff Hollywood Foreign Press Association ("HFPA") is a registered not-for-profit association in California that comprises approximately 80 foreign journalists who cover the entertainment industry. Intellectual property and contractual rights associated with the Golden Globes awards for excellence in film and television are the principal assets of HFPA. The presentation of the Golden Globes Award has generated millions of dollars in annual revenues for the HFPA since the mid-1990s, which are used to fund its operations and charitable giving. (Ex. 789) (Soria Decl. ¶¶ 5-9.) The HFPA and its members expend substantial time and resources to make the Golden Globes Awards Shows successful. (Id., ¶¶ 19-22.)
2. Defendant dick clark productions, inc. ("dcp") is an independent producer of television programming. It produces shows such as the "American Music Awards," "So You Think You Can Dance," and the "Golden Globe Awards." In that role, dcp produces an event or a program to be broadcast on television and secures a contract with a network or other outlet to broadcast the event or program to viewers. In February 2002, dcp was sold to Mosaic Media Group. In June 2007 the Red Zone defendants purchased dcp from Mosaic Media Group. (In these findings and conclusion, the defendants collectively shall be referred to as "dcp" or "Defendants.")
3. The Golden Globe Awards show aired on the National Broadcasting Company ("NBC") in the 1960s, but NBC declined to renew its license. The show aired again on NBC in 1977 and 1978, and again NBC declined to renew its license. The show aired on CBS in 1981 and 1982; CBS declined, however, to renew its license following the 1982 broadcast, and the Golden Globe Awards show was in peril of not being televised in 1983.
4. dcp agreed to become the producer of the Golden Globe Award show after CBS declined to renew its license for the show in 1982. Shortly thereafter, dcp was able to secure a syndication deal for the Golden Globe Awards and the show was televised on local stations throughout the country in 1983. Under agreements with HFPA, dcp has produced and distributed the Golden Globe Awards show and licensed that production for television ever since. The parties split the net profits 50-50. (Soria Decl., Ex. 789, ¶¶ 30, 32; RT 29:14-30:6 (La Maina 1/24/12).) Since 1996, the Golden Globe Awards show has aired on NBC under a long-term license agreement that dcp and NBC entered into in 1993, which dcp and NBC extended in 2001 and 2010.
5. dcp is responsible for the television-production aspects of the show, including writing the script, providing a television director, and managing the technical aspects of the production such as the stage, cameras, lighting, and sound. dcp and HFPA have mutual control in connection with creative matters, but HFPA has final script approval and creative control over the Awards live presentation. (Ex. 789 (Soria Decl. ¶ 23); RT 77:8-79:23 (La Maina 1/24/12); RT 1661:24-1662:917 (Takla-O'Reilly 2/7/12); Ex. 1; Ex. 5.)
6. HFPA's bylaws require that all material contracts be approved by the Board of Directors and General Membership. (Ex. 333.0040; Ex. 415:0038; RT 1538:12-21, 1540:16-1541:7 (Van Blaricom 2/3/12).)
7. The principal terms of every production agreement between HFPA and dcp prior to 1993 were discussed and approved by the HFPA Board and/or Membership. (RT 34:16-38:16 (La Maina 1/24/12); RT 485:22-25; 489:8-490:21; 492:1-11 (La Maina 1/26/12); 1983Agreement: Ex. 100; Ex. 254; 1987 Agreement: Ex. 560.0006; Ex. 328; Ex. 326; Ex. 496.0002; Ex. 322; Ex. 448; Ex. 321; Ex. 319; Ex. 318; Ex. 104.0001, 0003; Ex. 311; Ex. 103; 1989 Agreement: Ex. 154; Ex. 153.)
8. In August 2001, in connection with what became the first extension of the dcp-NBC license, dcp executed an exercise of options, directed to HFPA, to produce and distribute the Golden Globe Awards through 2011. Ex. 4. In October 2010, dcp again executed another exercise of options directed to HFPA, which was identical but for the date to the 2001 document, to produce and distribute the Golden Globe Awards through 2018. (Ex. 20.)
9. HFPA claims that dcp had no right to enter into a broadcast license agreement with NBC for any year after 2011 and that the 2010 exercise of options by dcp to extend its agreement with HFPA is invalid. Defendants disagree. They contend that the parties' agreement, as amended in 1993, permitted both the 2010 extension of the dcp-NBC license and the 2010 exercise of options, just as it permitted the 2001 extension and exercise of options.
10. The crux of the parties' dispute is whether the 1993 Amendment should be interpreted: (a) to permit dcp to exercise options beyond the eight options specified for the years 1998-2005 upon any "extensions, renewals, substitutions or modifications" of the dcp-NBC license agreement only if HFPA approves of any such "extensions, renewals, substitutions or modifications," as HFPA contends; (b) to permit dcp to exercise only the eight options specified for the period 1998-2005 during that time or thereafter only in the event of a force majeure event, as HFPA alternatively contends; (c) to permit HFPA to revoke any options granted in the 1993 Amendment, as HFPA alternatively contends; or instead (d) to permit dcp to exercise options beyond the eight specified for the years 1998-2005 upon any "extensions, renewals, substitutions or modifications" of the dcp-NBC license agreement even without HFPA's approval, as Defendants contend.
11. This action was commenced by HFPA on November 17, 2010 (Dkt. No. 1), and an amended complaint was filed on March 9, 2011 (Dkt. No. 50). Defendant dcp filed counterclaims for declaratory relief on March 28, 2011. (Dkt. No. 53.)
12. Pursuant to Court order (Dkt. No. 38), the case was bifurcated on February 21, 2011. Phase I is limited to: "[i]nterpretation of and declaratory relief or equitable relief (e.g., reformation) as to who has the rights and/or options under the parties' 1987 'Golden Globe Awards' Agreement, as amended, to produce and license the television broadcast of the Golden Globe Awards Show after 2011."
13. Both parties filed motions for summary judgment. On August 8, 2011, Judge Fairbank granted Defendants' motion with respect to HFPA's reformation claim, ruling that the claim is barred by the statute of limitations. (See Dkt. No. 182 at 1-2, 5.)
14. Based on these findings of fact and conclusions of law, HFPA's claim for declaratory relief is denied, and Defendants' claim for declaratory relief is granted. The Court finds that, pursuant to the 1993 Amendment of the 1987 Agreement, (a) dcp has the rights to produce and distribute the Golden Globe Awards show through the current term of the dcp-NBC Agreement (2018) and (b) dcp also has irrevocable options granted by HFPA to do so for any further "extensions, renewals, substitutions or modifications of the NBC Agreement," with or without HFPA's approval. (See Exs. 3, 576.)
II. THE SURROUNDING CIRCUMSTANCES AND THE PARTIES' COURSE OF DEALING PRIOR TO EXECUTION OF THE 1993 AMENDMENT
A. The 1983 Agreement Between dcp And HFPA
15. At the commencement of the HFPA/dcp relationship, the parties shared the objective of getting the Golden Globe Awards show back onto, and maintaining it on, a national broadcast network. (RT 367:13-368:23, 382:14-23, (La Maina 1/25/12); RT 1188:1-8 (Berk 2/1/12); RT 1078:20-25 (Orlin 2/1/12); RT 1568:10-15, 1618:2-1619:6, 1631:13-1632:1 (Van Blaricom 2/3/12).)
16. In January and February 1983, HFPA and dcp entered into and documented an agreement in which HFPA granted dcp the right to produce and distribute the January 1983 Golden Globe Awards show and four (4) consecutive, exclusive, and irrevocable options to produce and distribute the 1984, 1985, 1986, and 1987 Awards shows. The agreement is dated "as of" January 7, 1983, revised January 19, 1983, January 27, 1983, and February 28, 1983 (the "1983 Agreement"). (Exs. 5 (agreement), 203; RT 361:12-364:2 (La Maina 1/25/12).) dcp did not receive what the parties referred to as "end-of-the-deal protection," such as rights of first negotiation and first refusal. (RT 357:21-360:6 (La Maina 1/25/12).) (These terms are defined or described below, in ¶ 18.)
B. The 1987 Agreement Between dcp And HFPA
17. On July 20, 1987, HFPA and dcp entered into an agreement by which HFPA granted dcp five (5) consecutive, exclusive, and irrevocable options to produce and distribute the Golden Globe Awards show for the years 1988 through 1992. The agreement is dated "as of" March 13, 1987, revised July 15, 1987 (the "1987 Agreement"). (Ex. 1 (agreement); RT 370:15-372:4 (La Maina 1/25/12).)
18. In the 1987 Agreement, dcp sought and obtained end-of-the-deal protection in the form of rights of first negotiation and first refusal. Specifically, Paragraph 1(a) of the 1987 Agreement provides that, if dcp has exercised all of its options under the agreement, dcp and HFPA must enter a 30-day exclusive Negotiating Period 30 days "after the date of first broadcast of the 1992 Awards Presentation." (Ex. 1.) This is the "right of first negotiation." Paragraph 1(b) of the 1987 Agreement provides that if the parties do not reach an agreement during the Negotiating Period HFPA could offer rights to the show to another party, but not on terms less favorable than dcp's last offer, and only after it gives dcp a right to accept those terms. This is referred to as dcp's right of first refusal and it was to be "applicable until such time as HFPA shall have entered into an agreement with a third party pursuant to all of the foregoing provisions or July 15, 1992, whichever first occurs." (Ex. 1.) These two provisions were the subject of negotiations between dcp and HFPA prior to the execution of the 1987 Agreement. (Exs. 81, 103, 316; RT 372:6-13 (La Maina 1/25/12).)
19. Paragraph 6 of the 1987 Agreement addresses "creative control" over the show and provides that HFPA shall have creative control unless dcp licenses the show for national television network broadcast, in which case "dcp and HFPA shall have mutual creative control . . . ." (Ex. 1; RT 372:14-18 (La Maina 1/25/12).)
20. (a) Paragraph 7 of the 1987 Agreement-which relates to "television production aspects" of the Golden Globe Awards and identifies dcp's rights with respect to distribution and exploitation of its "television production(s)"-provides that dcp alone shall "have control over all matters relating to the distribution and exploitation of the rights granted to it pursuant to this agreement." (Ex. 1; RT 372:19-373:7 (La Maina 1/25/12).)
(b) Paragraph 9 of the 1987 Agreement provides that dcp will "provide copies of all contracts relating to the exercise of its rights pursuant to this agreement to a designated representative of HFPA for informational purposes . . . ." (Ex. 1; RT 373:8-374:3 (La Maina 1/25/12).)
21. The 1987 Agreement expressly provides HFPA a right of "prior approval" in Paragraph 10, but that approval right is limited to dcp's issuance of publicity relating to the show. (Ex. 1; RT 374:4-11 (La Maina 1/25/12).)
22. Paragraph 19 of the 1987 Agreement states: "This agreement contains the entire agreement of the parties, supersedes all prior negotiations and/or agreements, and may only be or amended or modified by written instrument signed by the party to be charged. Neither party has entered into this agreement in reliance upon any promise or representation not contained in this agreement." (Ex. 1.)
23. In 1988, dcp secured an agreement with the national cable network TBS for a significantly higher license fee than had been available during the years of syndication. In that agreement, dcp granted TBS rights to televise the Golden Globes Award Show for two additional years (1991 and 1992). The agreement is dated June 17, 1988. (Ex. 150.)
24. In a letter to the HFPA Board dated August 30, 1988, Philip Berk, a longtime and key member of HFPA, wrote, in relevant part: "Of course we are indebted to Dick Clark for rescuing the Golden Globe Show in its darkest hours, but by the same token we shouldn't allow ourselves to be taken advantage of. Perhaps we acted too hastily in giving Dick Clark a blanket endorsement of the Turner agreement. We might have asked for tentative approval and additional time to study the deal before we gave them carte blanche. I trust that our unanimous vote is not legal and binding." (Ex. 641.) Although there is no evidence that Berk or the HFPA actually took further steps to repudiate HFPA's consent to the TBS-dcp agreement, this communication is an early example of the unorthodox manner in which some of HFPA's key representatives sometimes acted in their dealings with dcp.
C. The 1989 Agreement Between dcp And HFPA
25. In November 1989 dcp and TBS arranged to enter into another agreement. The 1989 dcp-TBS Agreement provided TBS with rights to televise the show through 1995. Under the 1987 Agreement, however, dcp had options to produce and distribute the Golden Globe Awards only through 1992. To allow dcp to enter into and execute the 1989 TBS Agreement, HFPA and dcp entered into an amendment to the 1987 Agreement, dated November 13, 1989, by which HFPA granted dcp five (5) additional options to produce and distribute the Golden Globe Awards show for the years 1993 through 1997. The amendment is dated November 13, 1989 (the "1989 Amendment"). (Ex. 2 (agreement); RT 380:21-382:23 (La Maina 1/25/12).)
26. On November 6, 1989, a meeting of the HFPA Membership was held. dcp representatives were present, and HFPA's agreement with dcp was discussed. (Ex. 154.) At that meeting, HFPA's President stated that "[t]he  agreement would essentially be the same terms as the last contract," and a vote was then taken by the Membership without the Membership having reviewed the written agreement. (Exs. 154, 789 (Soria Decl. ¶ 35 ("The members were not shown a copy of the 1989 amendment.").) The members approved the agreement.
27. Consistent with HFPA's usual practice, the membership approval of the 1989 Amendment took place outside the presence of dcp. (Ex. 154; RT 1261:13-1262:10 (Berk 2/2/12).)
28. In the 1989 Amendment, as in 1987, dcp secured end-of-the-deal protections. They provided that dcp would continue to have rights of first negotiation and first refusal. The 1989 Amendment modified the 1987 Agreement (and the rights of first negotiation and first refusal granted there) as follows: "This will also confirm that the reference in Paragraph 1(a) to '1992' shall be changed to '1997' and the reference to July 15, 1992 in Paragraph 1(b) of the Agreement shall be changed to 'July 15, 1997.'" (Ex. 2.) In addition, the 1989 Amendment provided dcp with options sufficient to cover dcp's grant of rights to TBS under the 1989 TBS Agreement and two additional options for the years 1996 and 1997. (Ex. 2; RT 70:19-73:5 (La Maina 1/24/12); RT 380:21-382:23 (La Maina 1/25/12).) The 1989 Amendment provides: "Except as stated above, all of the terms of the  Agreement shall remain in full force and effect." (Ex. 2.)
III. THE 1993 AMENDMENT AND THE EXTENSIONS CLAUSE
A. dcp Secures An Agreement For The Golden Globe Awards To Air On NBC
29. In 1993, with four years still remaining on its contract with HFPA, dcp informed HFPA of an opportunity to secure a network broadcast license for the Golden Globe Awards show. (Ex. 157; RT 72:18-73:23, 76:15-77:7 (La Maina 1/24/12).)
30. In April 1993, dcp asked HFPA's Board to grant it five additional annual options so it could pursue that opportunity. The HFPA declined to grant additional options up front (Ex. 160) but HFPA did authorize dcp to "go ahead with negotiations for the purpose of obtaining a multi-year contract for the Golden Globe Awards Show with a television network" and stated that, "if such a contract is achieved through [dcp's] efforts, [dcp's] contract with the Hollywood Foreign Press Association will be renewed to cover the number of years with the network." (Exs. 105, 179.)
31. On May 3, 1993, in a letter to active HFPA members, HFPA's President asked those members to indicate their approval of the Board's decision authorizing dcp to "research the possibilities of a more favorable deal for our Golden Globe Awards-and, if such a deal is made with a network, to extend the contract with the said production company [i.e., dcp] to cover the network contract." (Ex. 6.)
32. From April to September 1993, dcp and NBC negotiated the terms of a proposed broadcast license agreement whereby NBC would agree to license the rights to broadcast three Golden Globe Awards shows for the years 1996 through 1998, with an option in favor of NBC to broadcast three additional shows for the years 1999 through 2001, and, if that option were exercised, an additional option in favor of NBC to broadcast four additional shows for the years 2002 through 2005 (the "dcp-NBC Agreement"). (Exs. 158, 177.) If NBC exercised both options, it would have a right of first negotiation and first refusal to seek to obtain continued broadcast rights to the Golden Globe Awards show beyond 2005. (Exs. 38, 575.) The proposed 3-3-4 broadcast license could be accelerated two years if TBS relinquished its rights to televise the 1994 and 1995 Shows. (RT 146:16-147:4 (La Maina 1/24/12); Ex. 177.0004.) Thus, the proposed broadcast license was subject to many permutations. It could begin in 1994 or 1996. It could run three years if NBC exercised no option, six years if NBC exercised only its first option, and 10 years if NBC exercised both of its options. (Exs. 110.0004-05, 177; RT 107:8-108:23 (La Maina 1/24/12).) Accordingly, NBC's commitment to televise the show could expire as early as 1996 (if the contract was accelerated to 1994 and NBC did not exercise any options) and as late as 2005 (if the contract commenced in 1996 and NBC exercised both of its options). (Exs. 110.0004-05, 177; RT 146:16-147:4 (La Maina 1/24/12).)
33. On September 2, 1993, meetings of the HFPA Membership and Board were held. The status of the dcp-NBC negotiations regarding a proposed agreement was discussed. (Exs. 7 ("She [Mirjana Van Blaricom, who was HFPA's President at the time] said NBC network is in negotiations with Dick Clark Productions. Dick Clark and the board of directors will discuss the details and it will be brought to the membership" and reflecting that "[q]uite a number of members participated in the discussion of the NBC Golden Globe Award subject."), 107 ("She said in the very near future there will be a meeting of the General Membership with Dick Clark Production to discuss the NBC network ---- Golden Globe Award deal."); RT 1554:15-1555:8, 1619:7-1621:12 / / / (Van Blaricom 2/3/12).) The future meeting Van Blaricom referred to was held on September 22, 1993.
B. The September 22, 1993 Meeting
34. A most unusual feature of this contract dispute is that there is an undisputed verbatim transcript of the September 22, 1993 HFPA Members meeting that La Maina attended. (Ex. 110.) Understandably, the parties attach critical importance to what was said -- and not said -- at that meeting, and they referred to the transcript in their extensive questioning of the several trial witnesses who were there: La Maina, Berk, Orlin, Soria and Van Blaricom. Both sides agree that what the transcript reflects is relevant to understanding the very language of the 1993 Amendment, the parties' respective communicated intent, and the object and nature of the 1993 Amendment.
35. Certain aspects of the September 22, 1993 meeting bear on the degree to which it supports or refutes each side's contentions.
(a) First, Dick Clark was present and he spoke enthusiastically (and with no small amount of pride) about the breakthrough dcp had achieved in the proposed NBC deal. Ex. 110, p.9.*fn1 It is highly likely that for many of the HFPA attendees, whose professional lives revolved around the personalities and lives of celebrities, Clark's very presence induced or fueled a sense of euphoria. The potential deal with NBC - - a multi-year network commitment for the Golden Globes Award Show, after so many years of second-tier broadcasts -- was extremely important and exciting to HFPA.
(b) Second, both before and after the statements that the Court has summarized below were made, many of the HFPA members spent inordinate amounts of time focusing on trivial matters. They fussed about the start time for the broadcasts; the length of the show (2 v. 3 hours); the format (how much entertainment? dinner setting v. theatre?); what day of the week the show would be broadcast; and whether to serve soup or caviar (p. 19), etc. Moreover, they bickered about whether members were hogging the floor (p. 16). This unbusiness-like display of misplaced priorities was characteristic of how HFPA often functioned throughout the years,*fn2 and it is consistent with the inference -- which this Court draws -- that on September 22, 1993 most of the HFPA members were far less interested in the terms of the dcp-HFPA contract that La Maina left behind for them to review than they were with the heady prospect of being on NBC. This is confirmed persuasively by the testimony of Van Blaricom, who stressed that - - referring to the fact that HFPA's previous deal with CBS had been cancelled - - the members' biggest concern was "not to be cancelled; that we behave." (RT 1626:6 (Van Blaricom 2/3/12).)
(c) Third, La Maina indicated that he understood that the HFPA members looked to him to provide full and accurate information. (RT 173:2-11; 183:22-184:11 (La Maina 1/24/12).) Although La Maina described the principal terms of the "NBC Agreement" he did not provide HFPA with a copy of the dcp-NBC agreement. (As is shown below, however, he did leave copies of the amendment to the dcp-HFPA Agreement that dcp sought.)
(d) Fourth, although there are references to the 1993 Amendment in the transcript of the September 22, 1993 meeting, nowhere does any witness actually recite any of the language in that agreement. At trial, counsel sought to have the witnesses who were present on September 22, 1993 give testimony supportive of their respective side's position on the meaning of the extensions clause. While that questioning was entirely appropriate, the September 22, 1993 meeting occurred more than 18 years ago. To the extent that witnesses were, in essence, being asked to go beyond the transcript and recount from their memories what they believed was "really going on," the Court finds that such testimony is of limited value, especially the testimony of the HFPA witnesses (as opposed to La Maina throughout his stint on the stand, who was the most consistently credible witness).
36. In any event, the Court finds that in the transcript (Ex. 110) each side can point to statements that support its contentions about the 1993 Amendment. Here is a summary.
Item Speaker Statement Original
Transcript Page 1 La Maina NBC contract not firm for 10 years.
3 3 4. "A ten year term if they [NBC] exercise all their options."
2 "Avik" You [dcp] negotiate [with NBC] and you tell us and we more or less deal with you.
3 La Maina And always subject to your approval.
I'm asking that the contract be extended for the period of time necessary to fulfill the NBC agreement.
5 Orlin The integrity of the show and the financial terms both sound very advantageous to us, but . . . "How long are we associated with Dick Clark Productions?"
6 Orlin " . . . how is our tie-in with Dick Clark working?"
7 La Maina " . . . we're asking you to extend our contract for as long as necessary to satisfy the NBC term and not longer than that . . . I hope it's ten years."
"Our deal with NBC is finished. This is as a result of six months negotiation guaranteed so long as you say it's a deal."
"What you should understand. Dick Clark is us. We do share everything with them so whatever they sign; whatever they get we get half of it so it's in their interest to achieve the best deal so you should understand it's the same like (Inaudible). Their signing is like our signing."
9 La Maina "The sequence of events that everyone understands is you execute an amendment with us that says we extend Dick Clark for as long as necessary to fulfill the NBC deal. The minute that's signed, I sign an NBC contract and we're finished."
"Let's - - who approves of their presentation can raise their hands so these guys can go ahead and - -with the presentation. Who approves and that they go ahead and they have to sign. Approve the contract."
11 La Maina "We need a - - all right. Let me do it again. We need a - - we need a verbal approval right now to close our deal with NBC."
12 La Maina "So we - - we now have a favorable approval to close our deal with NBC. The second thing we have - -unanimous. The second thing we need is a formal extension of our contract. The minute that's signed, I sign the NBC deal and we're finished so you now have the papers to discuss with your attorneys or whoever you'd like to discuss them with."
"To make it for the record, could we have a signed . . . instead of a verbal?"
"Everybody can just put a yes on a sign-in sheet by their name. Everybody put yes. Okay?
14 The sign-in sheet (Ex. 111) contained 31 outright "yes" votes and two "yes" votes with not entirely legible qualifications. No one voted "no."
37. Items 1 and 7 of the foregoing summary support Plaintiff's contention that the separately-executed 1993 Amendment must be interpreted to have had a maximum ten year duration. In addition, items 4 and 9 could be viewed as consistent with that construction, given La Maina's statements in items 1 and 7. Moreover, item 3 supports Plaintiff's contention that HFPA did not give up its right of approval over any deal with NBC (or any entity, for that matter) that dcp may have negotiated.
38. On the other hand, items 2, 4 and 9 support dcp's view that so long as there was or would be an NBC deal, dcp could not and would not be put out of or kept out of the picture. Moreover, items 5 and 8 reflect just how pleased HFPA was with the deal that dcp had secured from NBC, and items 10 and 13 show that the huge benefits of that deal were far more important to almost all of the members than were the precise terms or duration of the "papers" that La Maina was leaving for them to discuss with their attorneys (item 12). In addition, that La Maina understood and accepted that the membership had to approve those papers, and that he was perfectly receptive to having the membership discuss those papers in his absence and with their own attorneys, utterly refutes the notion that he or dcp were intent on deceiving HFPA or taking advantage of it. Finally, La Maina's comments in items 11 and 12 indicate that the deal with NBC was approved orally before he left the meeting.
39. HFPA's then-president Van Blaricom testified that on September 22, 1993 the HFPA members continued to meet after La Maina left, that the 1993 Amendment was read and explained to members, (it is not clear whether it was read "by" or read "to" them), and that a half-hour discussion ensued. (RT 1601:11-17; 1602:13-15 (Van Blaricom 2/13/12).) Van Blaricom further testified that while the specific scenario of dcp extending the NBC deal without HFPA's knowledge or consent was not then discussed, what was said did reflect an understanding by the members that as long as dcp kept the show on NBC, dcp had the rights to the show. ("It was like till death do us part. Nobody is -- we're all happy that we had a deal. We had nothing at that point.") (RT 1605:17-1606:3 (Van Blaricom 2/3/12).)
40. Van Blaricom has a long history of animus towards and bias against HFPA stemming from her separation from HFPA in the mid-1990s. In 1994, the HFPA determined that Van Blaricom had violated HFPA rules and standards by taking HFPA funds without approval and by secretly invoicing and accepting payment from dcp without approval. (Exs. 346, 497, 629, 702; 789 (Soria Decl. ¶ 51).) Van Blaricom was later expelled from the HFPA, unsuccessfully sued for reinstatement, established a rival international press organization, and threatened publicly to embarrass HFPA. (Exs. 348, 349, 350, 351, 626, 789 (Soria Decl. ¶ 52).) (See ¶¶ 158-160.)
41. Van Blaricom's grievances concerning HFPA were evident in her trial testimony, and her testimony about this membership discussion on September 22, 1993 was not corroborated by any other HFPA member who was present nor by any documentation. Nevertheless, her demeanor, the post-September 22, 1993 circumstances described below and the behavior of the HFPA members reflected in Exhibit 110 and discussed above make this portion of her testimony plausible.
42. Prior to or during the September 22, 1993 meeting, dcp provided HFPA three copies of the 1993 amendment to the 1987 Agreement that it had drafted. All were signed by La Maina on behalf of dcp and given to Van Blaricom. (Exs. 3, 110, 111, 506, 577; RT 395:24-396:5; 396:21-397:20 (La Maina 1/25/12); RT 1573:9-12; 1574:14-1575:24 (Van Blaricom 2/3/12).) As noted above, La Maina told the Membership at the September 22, 1993 meeting: "so you now have the papers to discuss with your attorneys or whoever you'd like to discuss them with." (Ex. 110 at 26.)
43. There is no evidence that at the September 22, 1993 discussion following La Maina's departure that Van Blaricom testified about, she distributed copies of the 1993 Amendment that La Maina left behind at the meeting, either to the HFPA Board or to the Membership. But even if the document was not distributed at that time, it was viewed soon thereafter by some HFPA members and accessible to all of them, as the following findings demonstrate.
C. 1993 Events Post-September 22
44. On September 24, 1993, La Maina and Van Blaricom spoke, and, at Van Blaricom's request, La Maina recommended three experienced entertainment attorneys to Van Blaricom. (Ex. 344.)
45. On September 24, 1993, Van Blaricom, as President of HFPA, placed and dated her signature on the 1993 Amendment, "9*24*1993." (Exs. 3 (agreement), 577, 648; RT 1589:18-20 (Van Blaricom 2/3/12).) Van Blaricom returned the countersigned 1993 Amendment to dcp five days later, on September 29, 1993. (RT 1590:1-11, 1593:6-1601:10 (Van Blaricom 2/3/12); RT 400:2-16 (La Maina 1/25/12).)
46. Van Blaricom signed and dated two of the three copies of the 1993 Amendment. She returned one copy to dcp (Ex. 577) and kept one copy in HFPA's files (Ex. 3).
47. Before Van Blaricom returned an executed copy of the 1993 Amendment to dcp, she consulted with Eric Weissmann (who was not one of the lawyers recommended by La Maina) of the law firm of Weissmann, Wolff, Bergman, Coleman & Silverman. (Ex. 794 (4/26/11 Van Blaricom Decl., Dkt. No. 270-1, ¶ 6); RT 1590:1-11, 1592:2-14, 1593:6-1601:17, 1622:25-1624:15 (Van Blaricom 2/3/12).) On September 27, 1993, Van Blaricom left a message with a secretary of attorney Weissmann. (Ex. 502.) Then, on September 29, 1993, Weissmann and Van Blaricom met for approximately 30 minutes. (Ex. 503.)
48. Weissmann was a highly respected, sophisticated entertainment attorney. (RT 400:17-401:7 (La Maina 1/25/12); RT 1582:9-1583:6, 1622:25-1623:9 (Van Blaricom 2/3/12).)
49. At or before the September 29, 1993 meeting with Weissmann, Van Blaricom gave him the third copy of the 1993 Amendment, which was executed by dcp, but not HFPA. (Ex. 506 (copy of 1993 Amendment produced from files of Weissmann Wolff); RT 1598:19-1600:4, 1623:12-1624:15 (Van Blaricom 2/3/12).)
50. After meeting with Weissman, Van Blaricom returned the countersigned 1993 Amendment to dcp's President (La Maina). (Ex. 180; RT 400:2-16 (La Maina 1/25/12); RT 1593:18-25, 1601:4-10 (Van Blaricom 2/3/12).) However, Weissman did not testify at trial, and other than Van Blaricom's testimony that she did not return the contract to La Maina until "when I got okay from Eric Weissman", (RT 1593:10-20), (Van Blaricom 2/3/12), there is no evidence that he reviewed the 1993 Amendment with Van Blaricom before she returned it, with her signature affixed, to La Maina.
51. Prior to trial, La Maina had never seen HFPA's bylaws. (RT 479:5-9 (La Maina 1/26/12).) Nevertheless, La Maina was aware that Board or Membership approval of contracts was required, but not how it was given. (RT 192:10-12 (La Maina 1/24/12).)
52. When La Maina received the countersigned 1993 Amendment (Ex. 180), he reasonably believed that all necessary conditions for Van Blaricom's execution of the document had been satisfied and that she had authority to execute the document. RT 222:24-223:16 (La Maina 1/24/12); (La Maina 1/25/12); RT 492:25-494:13 (La Maina 1/26/12).) Indeed, Van Blaricom's actions in this instance (i.e., signing the agreement in her capacity as President of HFPA) were consistent with La Maina's prior dealings with HFPA, where he relied on the signature of the designated HFPA representative as confirmation that all necessary internal steps had been taken by HFPA to permit it to enter into an agreement with dcp. (RT 35:19-39:3, 154:22-155:16 (La Maina 1/24/12); RT 442:3-443:3 (La Maina 1/26/12).) At the time he received the countersigned 1993 Amendment from HFPA, La Maina also had reason to believe that Van Blaricom had consulted with counsel, given his recommendation that she do so. (Ex. 344; RT 396:15-401:13 (La Maina 1/25/12).) In any event, La Maina did not consider the 1993 Amendment "approved" until he received the signed copy of the amendment from Van Blaricom. (RT 492:25-495:5 (La Maina 1/26/12).)
53. After receiving the countersigned 1993 Amendment from Van Blaricom on September 29, 1993, La Maina sent a letter to Van Blaricom thanking her for sending the executed 1993 Amendment "as authorized by [HFPA's] membership . . . ." He informed Van Blaricom that "based on that extension [i.e., the 1993 Amendment], we have executed the NBC agreement." In this ...