For many years Weil has represented CBS in a number of complex disputes in state and federal courts around the country. Recently, Weil secured a favorable outcome for CBS in a dispute with an international cable conglomerate. CBS had entered into programming agreements with Cablevision and Suddenlink. Subsequently, Altice, a European company, acquired Suddenlink and then later separately acquired Cablevision. After the Cablevision acquisition, Altice tried to assign the Suddenlink Agreement to an Altice subsidiary, Neptune Holding US Corp. A few days later, Altice claimed that the Suddenlink Agreement now superseded the Cablevision Agreement and controlled CBS’s rates for both the Cablevision and Suddenlink cable systems. CBS maintained that the assignment was invalid and that there was no language in either agreement that could terminate the Cablevision Agreement. Tens of millions of dollars were in dispute. In September 2016, CBS filed suit in the New York Commercial Division asking for a judgment declaring that the Cablevision Agreement controlled and asserting a claim for breach of the Cablevision Agreement. Almost immediately after CBS filed its suit, the defendants approached Weil, and all the parties settled their dispute amicably.
Earlier, in 2015 and 2016, Weil obtained significant victories for CBS and its affiliates that will redefine the contours of publicity and privacy law in the United States involving the use of student-athlete names, images, and likenesses in the media. In June 2015, Weil persuaded a Tennessee federal court to dismiss with prejudice a putative nationwide class action (Marshall) brought by NCAA Division I student-athletes alleging that CBS, other networks, college athletic conferences, and licensors, profited from the broadcast and use of student-athletes’ names, images, and likenesses without permission, violating Tennessee’s right of publicity statute and federal antitrust laws. In a landmark decision and judgment on the defendants’ motions to dismiss, the court dismissed Plaintiffs’ complaint in its entirety.
In August 2015, a California federal court granted Weil’s motion for summary judgment on behalf of CBS Interactive Inc. (CBSI) in another landmark right of publicity case (Lightbourne) that dismissed all of plaintiff’s claims. The plaintiff in this action alleged that CBSI had used student-athletes’ names, images, and likenesses, without their consent, in connection with its provision of services to NCAA member institutions’ sale of photographs of student-athletes through the schools’ official athletic websites. The summary judgment ruling followed the court’s July 30, 2015 denial of the plaintiff’s motion for class certification, in which the court, among other things, rejected Plaintiff’s attempt to apply California law to a nationwide class in this case, concluding that there were material differences in states’ right of publicity laws, and that other states’ interests in applying their own right of publicity laws outweighed California’s.
Weil also successfully obtained the dismissal of CBS from a multi-district antitrust class action consolidated in California federal court relating to the use of CBS’s NFL broadcasts in the “Sunday Ticket” subscription package.
In August 2016, Weil secured a complete bench trial victory for Discovery Communications and Animal Planet (together, Discovery) following a multi-week bench trial in Maryland federal court that took place in November 2015. Plaintiff Sky Angel U.S. LLC – a former satellite distributor – had alleged that Discovery breached the parties’ Affiliation Agreement when it terminated the Agreement in 2010 after becoming aware that Sky Angel was utilizing the public Internet to distribute Discovery’s programming. Sky Angel sought tens of millions of dollars in damages, and had initially sought specific performance of the Agreement as well. Weil took over the case from another major law firm after an adverse ruling on a motion to dismiss. Weil quickly developed and pressed several arguments as to why, in light of Sky Angel’s improper distribution methodology, Discovery’s termination was authorized under the Agreement, objectively and subjectively reasonable under governing Maryland law, and thus entirely lawful. In March 2018, following oral argument, the U.S. Court of Appeals for the Fourth Circuit affirmed the trial court’s ruling.
Weil also represents Discovery Communications in a lawsuit filed in California federal court asserting breach of contract, copyright, and trademark infringement. Plaintiff, LMNO Cable Group, produced multiple television series for Discovery, including The Little Couple, Unusual Suspects, and 7 Little Johnstons. Discovery terminated the parties’ ten-year relationship in June 2016, after learning that LMNO had systematically defrauded Discovery by creating false, overinflated budgets, resulting in millions of dollars in overpayments by Discovery. As a result, Discovery claimed it had the sole right to continue producing additional episodes of The Little Couple and Unusual Suspects. LMNO, asserting that it had been the victim of fraud and embezzlement by its own accountant, sued Discovery, claiming breach of contract as well as copyright and trademark infringement. LMNO amended its Complaint to add additional copyright and trademark claims as well as to bring certain of these copyright claims against both Discovery and certain named cable and satellite distributors.
Weil also successfully represented ESPN in a second and different matter obtaining a near-complete defense jury verdict following trial of more than $150 million in claims brought by Dish Network challenging certain provisions of distribution agreements ESPN had negotiated with Dish and several of Dish’s competitors.
Weil serves as Facebook’s lead U.S. IP counsel, counseling Facebook, as well as its Instagram, WhatsApp, and Oculus divisions, on all non-patent IP-related issues on a daily basis, including complex and cutting-edge copyright and trademark issues, product development, global DMCA notice-and-takedown issues, and music licensing issues. In addition, we help coordinate global IP advice for Facebook and craft their constantly-evolving trademark and copyright policies and notifications. Recently, Weil represented Instagram in a copyright infringement action in federal court in California (Reilly v. Instagram) by a fine art photographer alleging that Instagram users copied and displayed her copyrighted images on Instagram’s social media platform without authorization. Just two months after plaintiff filed her complaint, Weil successfully convinced her to stipulate to a dismissal of all claims.
Weil successfully represented Forbes Media in a $9 million international arbitration with Ukraine-based United Media Holding concerning trademark licensing rights to the Forbes trademark in Ukraine, in which the Ukraine-based Claimants – who were placed on the U.S. sanctions list during the course of the dispute – disputed the termination of the license agreement and sought significant damages. Weil secured a complete victory after a full hearing was conducted in February and March 2016. Forbes was not required to pay damages in any amount, and the final award declared the license terminated as of March 2014, thereby saving Forbes significant reputational harm from doing business with a sanctioned party. On August 9, 2017, the S.D.N.Y. sided with our client on all counts and denied UMH and TriLado’s petition to vacate the Award, allowing Forbes to engage a reputable licensee to continue operation of Forbes Ukraine, and avoid the significant reputational harm from doing business with a sanctioned party.
Weil represents Pandora Media, the largest single webcaster in the United States, in a number of high-profile disputes with parties in the recorded music and music publishing industries.
- Weil is representing Pandora in Phonorecords III, a CRB proceeding adverse to the National Music Publishers Association (NMPA) and the Nashville Songwriters Association International (NSAI) that will determine royalty rates for the on-demand streaming of musical works for the years 2018-2022.
- Weil is also defending Pandora in connection with two copyright class actions filed in the S.D.N.Y. arising out of Pandora’s alleged unlicensed streaming of sound recordings created prior to February 15, 1972, as well as in connection with amicus submissions on this issue in various appellate courts around the country.
- In April 2015, Weil represented Pandora in CRB trial proceedings against SoundExchange that established rates for the use of recorded music by webcasters over a five-year period starting January 1, 2016. In December 2015, the CRB issued a favorable ruling that modestly increased current royalty rates – aligning closely with Pandora’s proposed rates – instead of awarding plaintiffs’ sought after fees that would have increased Pandora’s royalty rate by nearly 80% in the first year and escalated it even further thereafter, implicating billions of dollars in royalties. We continue to represent Pandora in the record industry’s appeal of the CRB ruling before the U.S. Court of Appeals for the D.C. Circuit. The CRB itself is defended by the DOJ, with Pandora in the role of intervenor in support of the CRB ruling.
Weil successfully represented Showtime Networks Inc. (SNI) in multi-district class action litigation consolidated in the C.D. Cal. relating to the 2015 Manny Pacquiao-Floyd Mayweather boxing match, which was billed as the “Fight of the Century.” In February 2016, Weil secured a strategic early dismissal on behalf of SNI during the MDL consolidation process, avoiding costly additional phases of litigation. Plaintiffs in these cases, including 13 class actions involving SNI, alleged that SNI, along with other media networks, the boxers, and their respective promotion companies, deceptively and fraudulently promoted the match as one between two healthy fighters, while allegedly knowing that one of the fighters was injured prior to the start of the fight. Weil obtained the early resolution of all 13 cases by negotiating with plaintiffs a stipulated dismissal of all claims against SNI without prejudice, based in part upon factual representations by SNI regarding its knowledge of the fighter’s injury.
Weil subsequently was chosen by SNI to defend a suite of putative class actions arising out of the latest “Fight of The Century” between Floyd Mayweather and UFC star Conor McGregor that took place in August 2017. Plaintiffs in these cases claim they purchased the pay-per-view match and planned to view it through Showtime’s digital application, but were unable to do so due to Showtime’s alleged insufficient bandwidth and server systems. In November 2017, Weil secured a critical early victory in one of the component cases when a New York federal judge granted SNI’s Motion to Compel Arbitration of plaintiff’s claims, precluding him from pursuing his claims on behalf of a class. In the subsequent weeks, Weil succeeded in extracting SNI from every other pending case in which it was named as a defendant.
Weil also successfully represented SNI in its high-profile, $10+ million dollar carriage dispute with Charter Communications relating to Charter’s acquisition of Time Warner Cable, which resulted in a favorable settlement in May 2017.
Weil has served as lead counsel to Simon & Schuster, Inc. (S&S) in a series of investigations and private litigations regarding an alleged conspiracy in violation of federal antitrust laws concerning electronic books (e-books) pricing. Plaintiffs include the Antitrust Division of the U.S. Department of Justice, the Attorneys General of 49 states, the District of Columbia, and five U.S. territories, e-book retailers, a putative nationwide class of e-book consumers, and a number of individual plaintiffs.
Most recently, on July 17, 2017, in two separate opinions, the Second Circuit issued per curiam decisions affirming the U.S. District Court for the Southern District of New York’s decisions granting summary judgment for Simon & Schuster, Inc. and four other e-book publishers, against Abbey House Media, Inc., and Lavoho, L.L.C. Abbey House (d/b/a BooksOnBoard) and Lavoho (the successor in interest to Diesel Ebooks) were two independent e-book retailers that alleged that their businesses failed as a result of a conspiracy between the five e-book publishers and a retailer to fix the prices of e-books. The Second Circuit held that it “agree[s] with the district court’s determination that the record permits no genuine dispute as to any material fact underlying the conclusion that, as a matter of law, [Abbey House and Lavoho] suffered no antitrust injury caused by” the alleged conspiracy. The Second Circuit also adopted the district court’s “thorough and well-reasoned written decision” in each case. Weil prepared the winning summary judgment papers for the defense group.
Weil has been representing Sirius XM Radio in a variety of major disputes around the country, many involving SoundExchange Inc., a copyright collective that represents record labels and recording artists:
- Copyright Royalty Board Trial: Weil represents Sirius XM in a music royalty rate-setting proceeding before the Copyright Royalty Board (CRB) adverse to SoundExchange (representing a consortium of record companies), Warner Music Group, Universal Music Group, Sony Music Entertainment, the Recording Industry Association of America, and several other music industry trade associations. The CRB will determine the rates and terms for royalty payments due from Sirius XM to the recorded music industry between 2018 and 2022 for the digital transmission of sound recordings via Sirius XM’s satellite radio service. In 2008 and 2012, Weil obtained trial victories for Sirius XM before the Copyright Royalty Board in connection with similar proceedings affecting the 2007-2012 and 2013-2017 license periods, and defended those victories successfully before the Court of Appeals for the D.C. Circuit.
- Antitrust Litigation: Weil has been defending Sirius XM in an action brought by SoundExchange seeking payment of additional royalties for the digital transmission of sound recordings via Sirius XM’s satellite radio and webcasting services for the years 2007-2012 – above and beyond what Sirius XM has already paid for that reporting period. SoundExchange initially sued Sirius XM in the U.S. District Court for the District of Columbia, alleging that (among other things) Sirius XM owed hundreds of millions of dollars in additional royalty payments and interest. Sirius XM successfully moved to have the matter referred to the CRB, under the doctrine of primary jurisdiction, so the CRB could apply its expertise to interpret the meaning of its regulations. Once before the CRB, Sirius XM also successfully deflected SoundExchange’s threshold challenges to the CRB’s authority to accept the primary jurisdiction referral and its jurisdiction to interpret its regulations setting rates and terms for prior reporting periods. After additional discovery and briefing, the CRB released a September 2017 opinion agreeing with Sirius XM that it was entitled to reduce its royalty payments on account of performances of pre-1972 recordings – a holding that will save Sirius XM well over $100 million in back royalties and interest if the district court (to which the case will now return) affirms that Sirius XM’s method for calculating the pre-72 reduction was reasonably implemented, as is expected.
In April 2017, Weil negotiated a preliminary settlement that will, pending confirmation by the court, bring an end to a 15-year-old securities fraud class action – one of the few ever to be tried to a verdict (which Weil handled along with co-counsel in 2010). Leading up to this settlement, Weil successfully defeated more than 90% of the initial claims in the post-trial and appellate phases of the case. Most recently, we did so by securing summary judgment in 2015 and 2016 in two key component cases brought by so-called “value investors”. The decisions rejecting these claims are significant because, as the court noted in one of the decisions, securities fraud class actions in which reliance on share price can be disproved “are as rare as hens’ teeth.”
Weil also represented Vivendi and its former majority-owned subsidiary, Radionomy, an on-line music service, in a copyright infringement suit filed by Sony Music Entertainment in the United States District Court for the Northern District of California. Following extensive discovery, motion practice, and a court-ordered mediation, the dispute was settled and the action was dismissed with prejudice in December 2016.