UNITED STATES DISTRICT COURT

Transcription

1 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID DANIEL M. PETROCELLI (S.B. # 0) dpetrocelli@omm.com LINDA J. SMITH (S.B. # ) lsmith@omm.com DAVID J. MARROSO (S.B. # ) dmarroso@omm.com O MELVENY & MYERS LLP Avenue of the Stars, th Floor Los Angeles, California 00-0 Telephone: () -00 Facsimile: () - Attorneys for Plaintiff and Counter-defendant Hollywood Foreign Press Association HOLLYWOOD FOREIGN PRESS ASSOCIATION, a California Corporation, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiff, RED ZONE CAPITAL PARTNERS II, L.P., a Delaware Limited Partnership; DICK CLARK PRODUCTIONS, INC., a Delaware Corporation; RED ZONE CAPITAL GP, LLC, a Delaware Limited Liability Company; RED ZONE CAPITAL MANAGEMENT COMPANY, LLC, a Delaware Limited Liability Company, Defendants. DICK CLARK PRODUCTIONS, INC., a Delaware Corporation, v. Counter-claimant, HOLLYWOOD FOREIGN PRESS ASSOCIATION, a California Corporation, Counter-defendant. Case No. CV- AHM (FMOx) PLAINTIFF HOLLYWOOD FOREIGN PRESS ASSOCIATION S NOTICE OF MOTION AND MOTION FOR ENTRY OF JUDGMENT ON PHASE I CLAIMS AND CONTINUED STAY OF PHASE II PROCEEDINGS Hearing Date: July, Courtroom: Honorable A. Howard Matz CASE NO. CV - AHM (FMOx)

2 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID TO DEFENDANTS AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on July,, at :00 a.m., Plaintiff and Counter-defendant Hollywood Foreign Press Association ( HFPA ) will move, and hereby does move, the Court for an order pursuant to Federal Rule of Civil Procedure (b) directing entry of a final judgment on the claims resolved in Phase I of this lawsuit in order to permit an immediate appeal and for a continued stay of Phase II proceedings pending that appeal. This motion is made on the grounds that: () the Court s decision is a final disposition of the Phase I claims; and () there is no just reason to delay the entry of final judgment. An immediate appeal would benefit the parties and facilitate the efficient resolution of the action. Additionally, entering judgment to permit an appeal would further the goals of the Court s order bifurcating this case. In the interests of efficiency and sound judicial administration, the Court should also continue the stay of Phase II Proceedings. The parties have met and conferred in a good-faith attempt to resolve these issues, as required by Local Rule -. This Motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Declaration of Laura E. Perry and exhibits appended thereto, the Phase I trial record and files in the action and on such additional submissions and argument as may be presented at or before the hearing on this Motion. Dated: June, Respectfully submitted, DANIEL M. PETROCELLI LINDA J. SMITH DAVID MARROSO O MELVENY & MYERS LLP By: /s/ Daniel M. Petrocelli Daniel M. Petrocelli Attorneys for Plaintiff and Counter-defendant Hollywood Foreign Press Association NOTICE OF MOTION CASE NO. CV - AHM (FMOx)

3 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID Table of Contents MEMORANDUM OF POINTS AND AUTHORITIES... PRELIMINARY STATEMENT... BACKGROUND... A. HFPA s Action And dcp s Counterclaims.... B. Bifurcation To Facilitate Prompt Resolution Of Principal Contract Dispute.... C. Phase I Proceedings.... D. Anticipated Phase II Proceedings.... ARGUMENT... I. RULE (B) JUDGMENT IS WARRANTED BECAUSE THE COURT S DECISION IS A FINAL DISPOSITION OF THE PHASE I CLAIMS AND THERE IS NO JUST REASON FOR DELAYING APPEAL.... A. The Phase I Order Constitutes A Final Judgment On Some But Not All Claims In This Action.... B. There Is No Just Reason To Delay Entry Of Final Judgment On The Phase I Claims..... Immediate Appeal Would Facilitate The Efficient Resolution Of The Action..... Delay Would Undermine The Bifurcation Order s Central Objective Of Promptly Resolving The Main Show Contractual Dispute.... II. THE COURT SHOULD STAY PHASE II PROCEEDINGS.... CONCLUSION... TABLE OF CONTENTS CASE NO. CV - AHM (FMOx)

4 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID Table of Authorities Page(s) Cases Acevedo-Garcia v. Monroig, F.d (st Cir. 0)... City of Saint Paul, Alaska v. Evans, F.d (th Cir. 0)... CMAX, Inc. v. Hall, 00 F.d (th Cir. )... Cold Metal Process Co. v. United Engineering & Foundry Co., U.S. ()... Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., F.d (th Cir. )..., Curtiss-Wright Corp. v. General Electric Co., U.S. (0)...,,,, Ginett v. Computer Task Group, F.d (d Cir. )... Gregorian v. Izvestia, F.d (th Cir. )...,, Mediterranean Enteprises, Inc. v. Ssangyong Corp., 0 F.d (th Cir. )..., National Fuel Gas Distribution Corp. v. TXG Corp., 0 F.d (d Cir. )..., SEC v. Platforms Wireless International Corp., F.d, (th Cir. )... Sheehan v. Atlanta International Insurance Co., F.d (th Cir. )... Texaco, Inc. v. Ponsoldt, F.d (th Cir. )...,, The Nautilus Group, Inc. v. The Nautilus Group, Inc., 0 F. Supp. d, (W.D. Wash. 0) (affirmed at F.d 0 (Fed. Cir. 0))... United States Golf Assoc. v. St. Andrews Systems, Data-Max, Inc., F.d (d Cir. )... W.L. Gore & Assoc., Inc. v. International Medical Prosthetics Research Assoc., Inc., F.d (Fed. Cir. )... Wood v. GCC Bend, LLC, F.d (th Cir. 0)...,, Rules Fed. R. Civ. P. (b)... passim ii TABLE OF AUTHORITIES CASE NO. CV - AHM (FMOx)

5 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID MEMORANDUM OF POINTS AND AUTHORITIES PRELIMINARY STATEMENT The central dispute in this case is whether defendants have the contractual right to produce and license the television broadcast of the Golden Globe Awards Show in perpetuity so long as the Show is broadcast by NBC, without the consent of the Show s owner, plaintiff Hollywood Foreign Press Association ( HFPA ). From the beginning of this action, the parties and the Court agreed that, given the ongoing requirements for producing and licensing the Show, an expeditious and conclusive determination to that pivotal question was of paramount importance. Indeed, at the Court s urging, this case was bifurcated precisely so that the core question could be isolated and answered without the interference and delay that would necessarily arise from litigating the other claims and issues in the case. The bench trial on Phase I is complete but, as the parties and Court agree, the Phase I issue will not be finally resolved until the Court of Appeals reviews the Trial Court s decision. As this Court observed: [F]or the side that wins, it s going to be a very short-lived success or something that is brief in its enjoyment, because the other side s going to appeal. I don t know how long it will take me to issue my findings, but it will take some time and then so will the course of appeal, and you ll run up into the same dilemma you had last fall with respect to the approaching show in. (Perry Declaration, Ex. B (// Trial Tr. at :-).) In short, appellate review always has been a necessary and inevitable aspect of Phase I itself. In this motion, HFPA asks the Court to facilitate that appeal by entering partial final judgment pursuant to Federal Rule of Civil Procedure (b) as to the claims decided by the Phase I trial. Absent a Rule (b) judgment, there can be no appeal until all remaining claims and issues are resolved, a process that will require at least a year and likely much longer. That is, in part, because of the breadth and CASE NO. CV - AHM (FMOx)

6 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID scope of the remaining claims and, in part, because every one of them was stayed pending disposition of Phase I. Discovery specific to Phase II claims has not begun no party or third party documents have been requested, subpoenaed, or produced; no interrogatories or requests for admission have been issued or answered; none of the likely dozens of depositions has been taken; and no substantive or evidentiary motions have been filed, answered, and argued. Trial on the Phase II claims remains a distant prospect. But a conclusive answer to the Phase I question remains as urgent as ever. Resolving the Phase I claims through appeal now achieves two crucial objections. First, a final determination will allow the parties to make business arrangements necessary to ensure timely and efficient production of the Awards Show. Second, if HFPA prevails in a Phase I appeal, it will significantly streamline Phase II and could obviate the proceedings entirely by creating favorable settlement conditions. For these reasons, which are elaborated below, this Court should enter a Rule (b) judgment on the claims decided in Phase I to facilitate an immediate appeal on those claims and should stay Phase II proceedings pending that appeal. BACKGROUND A. HFPA s Action And dcp s Counterclaims. On November,, the HFPA filed this lawsuit against dcp and three Red Zone entities (collectively, defendants ). HFPA asserted numerous grounds for recovery, including trademark infringement, false association, declaration of copyright co-ownership, breach of contract, declaratory relief, accounting, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, unfair competition, intentional interference with prospective economic advantage, and reformation. But the heart of the action was HFPA s claim that the contract governing dcp s production rights (the Main Show contract ) did not allow dcp to license the Show to NBC in, or in subsequent years, and certainly not without CASE NO. CV - AHM (FMOx)

7 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID HFPA s knowledge or consent. Although that claim was (and is) central to the case, HFPA s amended complaint also challenged dcp s NBC license on other substantive and procedural grounds, and further claimed that dcp infringed HFPA s rights with respect to a distinct agreement governing the Red Carpet Pre-Show (the Pre-Show contract ). In response, dcp asserted two counterclaims for declaratory relief. dcp s first counterclaim responded directly to HFPA s central claim and sought a declaration that a amendment to the Main Show contract authorized dcp to license the Show to NBC in and in subsequent years without HFPA s consent. (Dkt. (First Claim for Relief).) The second counterclaim responded to HFPA s claims concerning the Pre-Show contract. (Dkt. (Second Claim for Relief).) B. Bifurcation To Facilitate Prompt Resolution Of Principal Contract Dispute. Recognizing the urgent need to decide who had the rights after the broadcast to produce and license the broadcast of the Golden Globe Awards Show, the parties and the Court quickly moved to expedite and streamline the case by bifurcating the proceedings and prioritizing the Main Show contract interpretation dispute. The issue of bifurcation was raised at the parties first scheduling conference, when the Court (Baker Fairbank, D.J.) asked the parties, [C]an contract interpretation and/or issues presented in the declaratory relief cause of action in the complaint be adjudicated first, either through a motion for summary judgment or a court trial? (Perry Decl., Ex. A (// Hearing Tr. at :- ).) Defendants wholeheartedly agreed with bifurcating the case and prioritizing the Main Show contract interpretation dispute. A very early resolution of the terms of the Main Show contract would be helpful, defendants explained, because everything else flow[s] from what the interpretation of the agreement is. (Id. at 0:-; :-.) Defendants also argued that resolving the Main Show contract interpretation dispute first would help resolve the remainder of CASE NO. CV - AHM (FMOx)

8 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID the case: [T]he Court has captured that this is basically a contract case, and that those [contract interpretation issues] are really the core issues in the case, and it can be resolved much more easily by hearing those first. (Id. at :-.) At the Court s request, the parties filed separate briefs laying out their specific plans for phasing the proceedings. (// Minutes, Dkt. No..) Although the parties proposals differed, both sides agreed that the contract interpretation questions related to the parties rights under the Main Show agreement to produce and license the broadcast of the Golden Globe Awards Show should be decided first. (See HFPA s Supp. Brief Re Bifurcation and Pre-Trial Phasing :-:, Dkt. No. 0; Defs. Submission on Phasing of Trial Issues :-, Dkt. No..) Defendants successfully urged that Phase I be limited to the disputed questions of contract interpretation and HFPA s reformation claim in order to further the interests of justice and judicial economy. (Defs. Submission on Phasing of Trial Issues :-, Dkt. No..) According to defendants, the Phase I issues should be addressed and resolved before the parties spend an inordinate amount of time and expense on the remaining issues in the case (id.); and defendants insisted that all Phase II discovery be stayed. (Id. at :.) The parties stipulated to bifurcation, and on February,, the Court entered its Bifurcation Order. (Dkt. No..) The Court set a schedule for fasttracked discovery, dispositive motions, and a bench trial on Phase I to address the following issue: Interpretation of and declaratory relief or equitable relief (e.g., reformation) as to who has the rights and/or options under the parties Golden Globe Awards Agreement, as amended, to produce and license the television broadcast of the Golden Globe Awards Show after. (Id. at.) The Court ordered that all discovery not related to the Phase I claims would await Phase II: All discovery other than the discovery of matters relevant CASE NO. CV - AHM (FMOx)

9 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID to the Phase I Issues is stayed until after the Phase I Issues are resolved (or until the Court orders otherwise). (Id.) C. Phase I Proceedings. Even under the fast-tracked discovery ordered by the Court, the Phase I issue necessitated nine months of intense litigation by more than a dozen lawyers at three of the country s most prominent law firms. Phase I discovery commenced on February, and the non-expert portion closed three months later on May,. (See Bifurcation Order, Dkt. No..) During those three months, HFPA, defendants, and third parties produced and reviewed tens of thousands of pages of documents and other materials. (Perry Decl. at ). The parties took and defended depositions, which were often scheduled back-to-back and even double-tracked with both parties taking and defending depositions at the same time. (Id.) The parties exchanged 0 interrogatories and document requests; they served subpoenas on third parties. (Id.) HFPA and dcp also prepared and filed extensive cross-motions for summary judgment. (Dkt. Nos. & ). dcp s motion argued the plain meaning of the agreements forecloses Plaintiff s claims, and no relevant and admissible extrinsic evidence supports any other meaning. (dcp s Notice of Motion for Summary Judgment at :-, Dkt. No. ). HFPA s motion argued that even assuming arguendo that the agreement conferred on dcp the right to produce and license the broadcast of the show in perpetuity and without further HFPA approval, the then-president who executed the agreement exceeded her authority as HFPA s agent. (HFPA s Notice of Motion for Summary Judgment at :-, Dkt. No..) The Court denied dcp s motion based on its interpretation on the contract, finding that the disputed portion of the Amendment is reasonably susceptible to the interpretation of both parties. (// Minutes at, Dkt. No..) The Court did find that HFPA s reformation claims were barred by the statute of limitations and granted dcp s motion on that issue only. (Id. at.) The Court denied HFPA s CASE NO. CV - AHM (FMOx)

10 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID motion. After the close of expert discovery, the parties pretrial preparations intensified. Collectively, the parties filed and briefed motions in limine (Dkt. Nos. -,, -,,, -0), exchanged lists identifying more than 0 witnesses and over 00 trial exhibits (Dkt. Nos.,, ), and issued and responded to dozens of trial subpoenas. (Perry Decl. at.) Trial was set to begin on Tuesday, September,, before Judge Baker Fairbank. On the last business day before trial Friday, September, the trial was postponed indefinitely. On September,, the parties were informed the case had been transferred to the Honorable A. Howard Matz. (Notice of Reassignment, Dkt. No..) A bench trial before this Court began on January,. During the threeweek trial, the Court heard testimony from witnesses and considered and admitted almost 0 exhibits. Closing arguments were held on February,. On April 0,, the Court issued its Findings of Fact and Conclusions of Law on Phase I ( Phase I Order ). (Dkt. No..) The Court held, in summary, that dcp is entitled to a declaration that 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 [HFPA]. (Phase I Order at :-). The Court specifically granted dcp s counterclaim for declaratory relief and denied HFPA s claim for declaratory relief. (Id. at :-.) The Court also rejected HFPA s affirmative defenses to dcp s counterclaim. (Id. at :-.) As expressly noted in the Phase I order, the Court s conclusion that dcp has the right to produce and license the broadcast of the Golden Globes beyond without HFPA s knowledge or approval completely and definitely resolves defendants first counterclaim for declaratory relief. (Defs. First Counterclaim - Dkt. No. ). The parties further agree that the Court s Phase I findings CASE NO. CV - AHM (FMOx)

11 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID resolve each of the following claims set forth in the FAC insofar as they rest on the allegation that the Main Show Agreement did not authorize dcp to license the Show to NBC after without HFPA s knowledge or consent. (Dkt. No. 0) :. Declaratory relief regarding who has the right to produce and distribute the Golden Globe Awards Show under the main show agreement (FAC (a)-(c) (Fifth Claim for Relief));. Trademark infringement regarding whether dcp infringed HFPA s trademark by licensing the broadcast of the Golden Globes to NBC beyond without HFPA s knowledge or approval (FAC - (First Claim for Relief));. False association regarding whether dcp created a false association between dcp and the Golden Globes, by licensing the broadcast of the Golden Globes to NBC beyond without HFPA s knowledge or approval (FAC - (Second Claim for Relief));. Breach of contract regarding whether dcp materially breached the Main Show agreement, as amended, by entering into a broadcast licensing agreement with NBC and by exercising invalid and ineffective options to broadcast the Golden Globes beyond without HFPA s knowledge or approval (FAC (a)-(b) (Fourth Claim for Relief)); and. Unfair competition regarding whether dcp engaged in any unauthorized use of HFPA s trademarks and/or related misrepresentations regarding its interests in and control over HFPA s intellectual property by licensing the broadcast of the Golden Globes to NBC beyond without HFPA s knowledge or approval Defendants agreement on this issue is set forth in the parties meet-and-confer correspondence exchanged prior to the filing of this motion. (Perry Decl., Ex. C (// from R. Wall to M. Katz, et al.).) CASE NO. CV - AHM (FMOx)

12 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID (FAC - (Ninth Claim for Relief)). D. Anticipated Phase II Proceedings. The Court s Phase I decision did not, however, resolve all of the general issues or specific claims / causes of action in the litigation. Issues remaining for Phase II include (i) HFPA s accounting claims, including allegations that dcp has underpaid and improperly accounted to HFPA for prior Golden Globes shows; (ii) HFPA s claim that dcp breached the implied covenant of good faith and fair dealing in connection with dcp s decision to license the broadcast of the Golden Globes to NBC from through ; (iii) a determination whether, under the parties separate Pre-Show Agreement, dcp has any right to prevent HFPA from hosting, producing, and licensing for broadcast a Red Carpet Pre-Show of the Golden Globes; and (iv) a determination whether, under any agreement, dcp has rights to limit HFPA s exploitation of so-called digital rights. Specifically, the remaining Phase II Claims are:. Declaratory relief regarding what rights, if any, dcp possesses to participate in any Red Carpet Pre-Shows and digital rights owned by HFPA (FAC (d)-(e) (Fifth Claim for Relief));. Breach of contract regarding whether dcp materially breached the parties agreements by pursuing agreements to exploit the digital rights and Red Carpet Pre-Show of the Golden Globes without HFPA s knowledge or permission, entering into a sponsorship agreement with a corporate third party without HFPA s knowledge and without accounting for the profits, taking impermissible deductions as production costs, improperly bundling the popular Golden Globes with less popular shows and not accounting for it, and failing to attribute to HFPA its full compensation for licenses dcp granted to HFPA s property (FAC (a), (b), (e)-(h) (Fourth Claim for Relief));. Breach of the implied covenant of good faith and fair dealing CASE NO. CV - AHM (FMOx)

13 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID regarding whether dcp failed to properly assess and obtain value for the show in connection with licensing the broadcast to NBC from through, and for misleading HFPA and third parties about the status of negotiations (FAC 0- (Seventh Claim for Relief));. Action for accounting regarding whether dcp owes HFPA a proper accounting for HFPA s 0% of the net profits, whether dcp has taken impermissible deductions of expenses as production costs, and whether dcp failed to account for revenue from sponsorship agreements with third parties, additional foreign revenue, revenue generated by bundling rights to Awards shows with dcp s other, less popular shows, and benefits dcp derived from encumbering rights to the Awards Shows (FAC - (Sixth Claim for Relief));. Trademark infringement regarding whether dcp infringed the HFPA s trademark and service marks by claiming to third parties that it holds the exclusive right to license the digital rights to the Golden Globes and the right to produce and distribute the Red Carpet Pre- Show without HFPA s knowledge or approval (FAC - (First Claim for Relief));. False association regarding whether dcp s unilateral attempts to license HFPA s intellectual property to third parties created a false association between dcp and the Golden Globes, thus infringing HFPA s marks (FAC - (Second Claim for Relief));. Unfair Competition Under Cal. Bus. & Prof. Code 0 and California Common Law regarding whether dcp s unauthorized use of HFPA s trademarks and misrepresentations about the digital rights and the Red Carpet Pre-Show constitute unfair competition under the statute (FAC - (Ninth Claim for Relief)); and. Intentional Interference with Prospective Economic Advantage CASE NO. CV - AHM (FMOx)

14 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID regarding whether dcp interfered with HFPA s ability to obtain a sponsorship agreement with Facebook. (FAC 0- (Tenth Claim for Relief)). Phase II also included a declaration of copyright co-ownership regarding dcp s failure to properly file the copyrights for certain of the Award Shows and Red Carpet Pre-Shows dcp produced. These copyrights have since been remedied, and HFPA expects that a stipulated dismissal of this claim will be possible. (FAC - (Third Claim for Relief)). HFPA anticipates that the more fact-intensive Phase II will require at least one year to complete. Phase II discovery which is likely to be much broader than Phase I due to the number and nature of the remaining claims at issue has not yet begun and will be extremely expensive and time consuming for the parties. Moreover, if Phase I discovery serves as any guide, Phase II discovery will be vigorously contested, with numerous meet-and-confers required for many document production requests, interrogatories, requests for admissions, and third party subpoenas. Party and third party depositions will have to be taken and any disputes resolved. Phase II will almost certainly involve motion practice before the Magistrate and the Court, including summary judgment motions. And absent summary judgment, a full Phase II trial will follow. Allowing the Phase I appeal to proceed now may eliminate the need to try major portions of Phase II and may facilitate settlement of the entire case. Entering final judgment on the Phase I claims and staying Phase II proceedings will streamline the case and very likely save the parties and the Court significant time and cost. For those reasons, and all of the reasons that follow, the Court should grant HFPA s Rule (b) motion for entry of judgment and continued stay of Phase II pending the outcome of that appeal. CASE NO. CV - AHM (FMOx)

15 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID ARGUMENT I. RULE (B) JUDGMENT IS WARRANTED BECAUSE THE COURT S DECISION IS A FINAL DISPOSITION OF THE PHASE I CLAIMS AND THERE IS NO JUST REASON FOR DELAYING APPEAL. Rule (b) authorizes a district court to enter an appealable final judgment on an otherwise interlocutory ruling when two conditions are satisfied. See Wood v. GCC Bend, LLC, F.d, - (th Cir. 0). First, the ruling must reflect the ultimate disposition of an individual claim entered in the course of a multiple claims action. Id. (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., U.S., (0) (quotation omitted)). Second, there must be no just reason for delay. Id.; SEC v. Platforms Wireless Int l Corp., F.d, (th Cir. ). It is left to the sound judicial discretion of the district court to determine the appropriate time when each final decision in a multiple claims action is ready for appeal. This discretion is to be exercised in the interest of sound judicial administration. Wood, F.d at (quotation omitted). The Court s Phase I Order easily satisfies each of the foregoing conditions, and it is therefore an appropriate time to appeal that order. The Order conclusively resolves the parties competing claims for a declaration concerning whether dcp has the right under the Main Show contract to license the Show after the broadcast (and certainly without HFPA s knowledge and consent). There is no just reason to delay appellate review of that crucial Order delay almost certain to last more than a year, seriously disrupting production and broadcast efforts for the and Shows, and possibly as far as the Show. A. The Phase I Order Constitutes A Final Judgment On Some But Not All Claims In This Action. The Phase I Order qualifies as a final judgment under Rule (b) because it conclusively resolves some, but not all, of the claims in this multiple-claims action. CASE NO. CV - AHM (FMOx)

16 Case :-cv-0-ahm-fmo Document #:00 Filed 0// Page of Page ID Specifically, it resolves HFPA s declaratory relief claim and dcp s mirror counterclaim, each of which seeks to determine whether dcp has the contractual right to produce and license the Main Show to NBC in future years. That determination affects and significantly narrows the remaining claims for relief. Both the Supreme Court and [the Ninth Circuit] have upheld certification on one or more claims despite the presence of facts that overlap remaining claims when, for example the case is complex and there is an important or controlling legal issue that cuts across (and cuts out or at least curtails) a number of claims. Wood, F.d at ; see, e.g., Curtiss-Wright, U.S. at -; Cold Metal Process Co. v. United Eng g & Foundry Co., U.S., - (); Texaco, Inc. v. Ponsoldt, F.d, (th Cir. ); Cont l Airlines, Inc. v. Goodyear Tire & Rubber Co., F.d, (th Cir. ); Sheehan v. Atlanta Int l Ins. Co., F.d, (th Cir. ); Gregorian v. Izvestia, F.d, (th Cir. ). This is such a case. As noted, Phase I was explicitly designed to obtain a judicial declaration on the central, disputed contractual question of who has the rights and/or options under the parties Golden Globe Awards Agreement, as amended, to produce and license the television broadcast of the Golden Globe Awards Show after. (Dkt., at.) The Phase I order provides just such a declaration, in favor of defendants: The Court concludes that the defendants 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 [HFPA]. (Phase I Order, at ; see id. at ( Defendants are entitled to a judicial declaration that the Amendment grants dcp the option to extend its rights to produce and distribute the Golden Globe Awards show beyond 0 for any extensions, renewals, substitutions or modifications of the NBC Agreement, with or without CASE NO. CV - AHM (FMOx)

17 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID HFPA s approval. ).) The declaration in the Phase I Order completely disposes of dcp s first counterclaim for declaratory relief, which sought exactly the declaration provided in the Phase I Order: [U]nder the Main Show Agreement, [dcp] is entitled to exercise additional options to produce the Golden Globe Awards show, by virtue of dcp s extension of its existing agreement with NBC. (Dkt. (First Claim for Relief).) No issues or claims within dcp s first counterclaim remain to be litigated. A decision on a claim for declaratory relief is appealable under Rule (b), see City of Saint Paul, Alaska v. Evans, F.d, (th Cir. 0), as is a decision resolving a counterclaim under the Rule s express terms. Accordingly, it is appropriate to enter judgment on dcp s counterclaim for declaratory relief in accordance with the declaration already stated in the Phase I Order. The Phase I Order also resolves HFPA s own Phase I declaratory relief claim. In the jointly submitted Pretrial Order, which the parties agreed supersede[d] the pleadings and govern[ed] the course of the trial of this cause (Dkt. -, at ), HFPA defined the declaratory judgment it sought in Phase I as follows: HFPA seeks a declaration that dcp has and had no right to produce the Golden Globe Awards or to license the broadcast rights to NBC (or any other broadcaster) for any years after. Dkt. -, at. HFPA further defined each of the independent grounds on which it was seeking that declaration (id. at -), each of which was expressly addressed by the Phase I Order, as the following annotations show: (i) the Amendment to the Agreement did not grant to dcp potentially perpetual, unilateral options to exploit the Golden Globes if NBC remained the broadcaster or for any other reason and did not The proposed Pretrial Order also noted that the parties list only those claims and defenses proceeding in the Phase I trial and that parties do not waive any other claim or defense in their respective pleadings. Dkt. -, at n.. CASE NO. CV - AHM (FMOx)

18 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID grant to dcp any options beyond the maximum of eight options through 0 specified in the amendment [compare Phase I Order, at -] (ii) any contrary agreement is the result of mistake [compare Phase I Order, at -]; (iii) HFPA s President did not have authority in to execute an agreement granting dcp more than eight options through 0 [compare Phase I Order, at -]; (iv) dcp did not confer a benefit or suffer prejudice in exchange for any asserted right to infinite unilateral options to produce the Golden Globe Awards so long as they are broadcast on NBC and the right to control the terms of any licenses with NBC [compare Phase I Order, at -]; and (v) HFPA revoked any post- options before dcp exercised them, or even began negotiating with NBC for a new broadcasting deal [compare Phase I Order, at -]. Because the Phase I Order leaves nothing to be litigated on the Phase I declaratory judgment claim sought by HFPA, it is appropriate to enter a Rule (b) judgment on that claim. Finally, it bears emphasis that the Phase I Order also cuts across and at least curtails some of the remaining causes of action. Wood, F.d at. As described above, supra at, the Phase I Order eliminates a key though not the only basis for HFPA s asserted right to recover under a number of its causes of action. Accordingly, even beyond the resolution of the parties claims for declaratory relief, Rule (b) judgment is appropriate here because the Phase I Order effectively narrowed the issues and because the matters resolved by the Order are sufficiently severable factually and legally from the remaining matters. Cont l Airlines, F.d at ; see Texaco, F.d at (Rule (b) judgment proper where rulings separated legal from factual questions and eliminated certain theories of recovery). CASE NO. CV - AHM (FMOx)

19 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID B. There Is No Just Reason To Delay Entry Of Final Judgment On The Phase I Claims. There is no just reason to delay entry of final judgment on the Phase I Order, pending the discovery, pretrial, and trial proceedings on the remaining Phase II claims. To the contrary, the same urgency that justified the bifurcation of the case equally justifies the entry of final judgment on the Phase I Order, so the core contractual dispute it addresses can be promptly and definitely resolved on appeal.. Immediate Appeal Would Facilitate The Efficient Resolution Of The Action. The proper guiding star [when ruling on a (b) motion], as the Supreme Court has emphasized, is the interest of sound judicial administration. Ginett v. Computer Task Group, F.d, (d Cir. ) (citing Curtiss-Wright, U.S. at ); see Gregorian, F.d at -. The interest of sound judicial administration strongly favors the entry of final judgment on Phase I here, because a Phase I appeal may eliminate significant portions of Phase II and, regardless of outcome, is also likely to facilitate a global settlement by finally deciding the basic parameters of the parties business relationship. By letting the appeal proceed, the parties and the Court could avoid altogether litigating issues related to the Red Carpet Pre-Show and digital rights in Phase II. Specifically, dcp contends it possesses certain Pre-Show and digital rights that stem from and relate to the right to produce the Main Show. (Defendants Answer to FAC and Counterclaims at :-, (Dkt. No..) If HFPA prevails on appeal, dcp s asserted Pre-Show and digital rights, if any, will evaporate. The fact that the appeal may resolve a significant portion of the Phase II claims weighs in favor of HFPA s (b) motion. Texaco, F.d at - (approving application of (b) because the legal issues now appealed will streamline the ensuing litigation ); Nat l Fuel Gas Distrib. Corp. v. TXG Corp., 0 F.d, (d Cir. ) ( [A]n immediate appeal should be allowed concerning its CASE NO. CV - AHM (FMOx)

20 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID declaratory judgment [about the contract because] the rights and obligations of the parties under the take or pay provision of the Contract cannot be addressed intelligently without resolving the threshold question of the Contract s continuing validity. ). Additionally, the final determination on appeal of the parties rights regarding production and broadcast licensing of the Main Show should provide the framework necessary for a global resolution of the parties dispute. When the Court was considering bifurcation, defendants agreed on this point: Moreover, resolution of the Phase I Issues could streamline the rest of the case, including by minimizing burdensome discovery. It would also likely result in settlement, as the parties would have a much clearer sense of the playing field. (Defs. Submission Regarding Phasing of Trial Issues at :-, Dkt. No. (emphasis added).) Regardless whether the Ninth Circuit Court of Appeals rules in favor of HFPA or defendants, the outcome of the Phase I appeal will clarify and likely eliminate some Phase II issues and should advance the possibility of settlement. In either case, the resources of the parties and the Court will be conserved.. Delay Would Undermine The Bifurcation Order s Central Objective Of Promptly Resolving The Main Show Contractual Dispute. Any delay in the appeal of Phase I would directly contravene the interests underlying the parties stipulation to and the Court s entry of the Bifurcation Order. From the outset of the litigation, the parties have shared a mutual interest in resolving the Main Show dispute as quickly as possible. Both the parties and the Court determined that judicial economy demanded that the Phase I Claims be tried first and on an expedited basis. The Bifurcation Order reflected those judgments. (Dkt. No..) Those concerns remain unchanged and weigh heavily in favor of entry of judgment on Phase I to permit an immediate appeal. See W.L. Gore & CASE NO. CV - AHM (FMOx)

21 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID Assoc., Inc. v. Int l Med. Prosthetics Research Assoc., Inc., F.d, - (Fed. Cir. ) (finding (b) appropriate where claims were bifurcated); The Nautilus Group, Inc. v. The Nautilus Group, Inc., 0 F. Supp. d, (W.D. Wash. 0) (affirmed at F.d 0 (Fed. Cir. 0)) (noting bifurcated case was cleanly divided for purposes of a (b) motion); c.f. Acevedo-Garcia v. Monroig, F.d, -0 (st Cir. 0) (reflecting on division of trial as evidence of court s intent to reach a final decision as to one issue was sufficient for purposes of appeal). The Bifurcation Order rested on the mutual recognition that the rights at issue in Phase I to produce and license the broadcast of the Golden Globes in perpetuity are extremely valuable and must be resolved expeditiously to protect both sides interests. The Golden Globe Awards Show is HFPA s principal asset and only meaningful source of revenue. It also generates a significant percentage of dcp s revenue and net profit. Yet even assuming an immediate appeal of Phase I, it is unlikely that the parties dispute could be resolved before the or the Golden Globe Awards Show which would already be three years into the contested contract period. Delaying appeal until the end of Phase II proceedings would push back appellate review another one to two years, possibly up to (or even beyond) the Golden Globes. The avoidance of such delay supports entry of judgment. See Curtiss-Wright Corp., U.S. at -; Gregorian, F.d at -. A final resolution on appeal will also assist the parties efforts to license the broadcast of the Awards Show both during the disputed contract period (-) and after. If HFPA prevails on appeal and is not held hostage to what it believes is a below-market deal with NBC, it will be able to take its show to market to obtain higher broadcast licensing fees. HFPA also needs a final resolution to avoid another situation, like in, where dcp tries to tie up the broadcast of the Golden Globes for an additional number of years on NBC at a sub-market price in order to remain CASE NO. CV - AHM (FMOx)

22 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID the producer. HFPA s interest in regaining control over and maximizing the value of its only significant asset weighs in favor of entry of judgment on Phase I. See Curtiss-Wright, U.S. at - (affirming (b) when value of plaintiff s judgment was injured by a difference in interest rates due to the passage of time). dcp has a similar interest in an expeditious appeal. Under dcp s interpretation of the Main Show agreement that the Court adopted in Phase I, dcp needs to renew its agreement with NBC before the expiration of the current deal in in order to automatically extend its tenure as producer. Until final resolution of the appeal, dcp s negotiating partner NBC should be skeptical as to dcp s ability to hold on to the Awards Show. From the beginning of this litigation, dcp recognized the need for an appeal immediately after the end of Phase I, and dcp proposed severance as an alternative to bifurcation of the Phase I claims for that very reason. (Defs. Submission on Phasing of Trial Issues :- (Dkt. No. ) ( Severance, of course, would permit an immediate appeal of the decision on the Phase I Issues. ).) dcp cannot object to an immediate appeal now, merely because it prevailed in Phase I. The parties would also benefit greatly by the certainty that an appeal will bring to their relationship. Until the appeal is resolved, the fundamental terms of the parties relationship who controls the rights to produce and license the broadcast of HFPA s Awards Show and for how long will remain unclear. The onepage amendment to the Agreement was written and amended before significant market and technological developments, such as the creation of the Red Carpet Pre-Show, and long before the rise of the internet and social media. The parties experience in, when they entered into a non-precedential, one-year interim agreement, allowed the parties to address current issues on a temporary basis. Bringing certainty to the parties contractual relationship is an important first step to addressing other elements of their relationship that are either disputed under or not addressed at all by the legacy contract. See Nat l Fuel Gas, 0 F.d at ( an immediate appeal should be allowed concerning its declaratory judgment CASE NO. CV - AHM (FMOx)

23 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID [about the contract because] the rights and obligations of the parties under the take or pay provision of the Contract cannot be addressed intelligently without resolving the threshold question of the Contract s continuing validity ). Moreover, uncertainty is bound to make the cooperation between HFPA and dcp that is required to put on the broadcast of the Golden Globes more difficult. The Court determined in Phase I that the Amendment fundamentally altered the parties relationship, divesting HFPA of control over the terms of the production and broadcast of its Award Show in perpetuity. HFPA maintains that it never agreed to this arrangement, and the prospective loss of control over its property in perpetuity is an exceptionally bitter pill to swallow. Moreover, as the Court acknowledges in its Phase I decision, dcp lied to and engaged in devious conduct toward HFPA (and NBC) in. (Phase I Order at -.) HFPA s members work without pay throughout the year to put the Golden Globes together and the production and broadcast of the television show requires close cooperation between HFPA s members and dcp. There is no assurance that HFPA s members will be able to cooperate with dcp on future Golden Globe Awards Shows, given dcp s deceitful and devious conduct towards its supposed partner. Beyond that, it was publicly reported that dcp has placed itself up for sale, including the perpetuity rights to the Golden Globes found by the Court. (Perry Decl., Ex. D (// New York Times Article).) Even assuming a sale were permitted under the operative agreements, HFPA would be forced to cooperate, possibly forever, with some unknown company with whom HFPA never dreamed of being partners. An immediate appeal and stay of Phase II (as described below) would greatly assist the parties to understand their roles and obligations and, importantly, help manage what is undeniably a fractured and difficult partnership. II. THE COURT SHOULD STAY PHASE II PROCEEDINGS. The Court should exercise its discretion to stay the Phase II proceedings pending resolution of the Phase I appeal. CASE NO. CV - AHM (FMOx)

24 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID As noted above, the appeal has the potential to moot certain key Phase II claims, avoiding further proceedings with respect to digital rights and the Red Carpet Pre-Show. The efficiencies achieved could be significant: the parties and the Court may be able to avoid discovery, motion practice, and trial on a large portion of the Phase II issues. These potential efficiencies support the entry of a stay. Mediterranean Enter., Inc. v. Ssangyong Corp., 0 F.d, (th Cir. ) (discussing district court s inherent power to control its own docket and calendar and authority to stay case pending independent judicial and arbitral proceedings); CMAX, Inc. v. Hall, 00 F.d, (th Cir. ) (discussing district court s broad discretion to decide whether a stay is appropriate to promote economy of time and effort for itself, for counsel, and for litigants ). Likewise, there are major efficiencies to be gained by staying Phase II even with respect to those Phase II claims both parties agree have been mooted by the District Court s Phase I decision. To be sure, any Phase II claim that was temporarily mooted by the Phase I decision will remain moot if dcp prevails on appeal. However, the converse is not necessarily true that is, an appellate reversal does not automatically mean one of the mooted Phase II claims has been completely adjudicated in HFPA s favor. That gap creates the unpleasant potential for three trials unless Phase II is stayed. For example, the parties agree HFPA s claim that dcp breached the Main Show Agreement in by licensing the Show to NBC without HFPA s knowledge and consent effectively has been decided and, thus, mooted by the Phase I decision. That claim will not be part of an immediate Phase II. However, if HFPA were to prevail on appeal, then HFPA will have established liability for its breach of contract claim (because dcp will have been found not to have the rights to license the Show to NBC without HFPA s permission), but there will need to be a Phase III third trial in order for HFPA to establish and quantify damages. The Court can avoid this disaster scenario by staying what could turn out to be an CASE NO. CV - AHM (FMOx)

25 Case :-cv-0-ahm-fmo Document #:0 Filed 0// Page of Page ID unnecessary and incomplete Phase II trial. Finally, a final resolution of the parties rights regarding production and broadcast licensing of the Main Awards Show enhances the likelihood of a global resolution of the parties dispute. When the Court was considering bifurcation, defendants agreed on this point. (Defs. Submission Regarding Phasing of Trial Issues at :-. Dkt. No. ( [R]esolution of the Phase I Issues would also likely result in settlement, as the parties would have a much clearer sense of the playing field. ).) Indeed, it is difficult to see how the parties will be able to resolve their differences without a conclusive understanding of their contractual rights. For example, HFPA has stated an accounting claim based on dcp s failure to account for the costs of production and revenue from sponsorship agreements with third parties. The parties ability to resolve this and other Phase II claims short of trial and the terms on which they might settle such claims will certainly be affected by whether HFPA and dcp are in business together in perpetuity. The fact that a stay of Phase II pending appeal of Phase I may ultimately facilitate a settlement of this entire matter strongly supports such a stay. United States Golf Assoc. v. St. Andrews Systems, Data-Max, Inc., F.d, n. (d Cir. ). A stay of Phase II will also further the interests of the Bifurcation Order. By staying any and all Phase II proceedings, the Bifurcation Order saved the parties the expense of litigating both phases simultaneously. A stay pending appeal would further the same interest here. Defendants raised four boilerplate objections to a stay in the parties May, Joint Status Report, but none of those objections is compelling. (See // Joint Status Report at :-: (Dkt. No. ).) First, defendants argued that a stay would not streamline this case [t]o the extent that HFPA seeks damages for events that have already transpired, citing dcp s representations to Facebook regarding digital rights. (Id. at :-:.) Of course, some Phase II claims will survive the appeal, but that does not change the fact that the appeal is likely to eliminate the CASE NO. CV - AHM (FMOx)

26 Case :-cv-0-ahm-fmo Document #:00 Filed 0// Page of Page ID need to litigate key claims and thus significantly streamline the Phase II proceedings. And a final resolution of the Phase I issues makes settlement of all remaining claims much more likely. Second, defendants argue that they need prompt resolution of the scope of dcp s digital rights and the viability of the [pre-show] agreement. (// Joint Status Report at :- (Dkt. No. ).) These are the precise issues that an immediate appeal may allow the parties and the Court to avoid in Phase II. Moreover, defendants have offered no reason to believe that these issues are more urgent now than they were in February when the parties stipulated to and the Court ordered a stay of all Phase II discovery. As the Court has noted, the parties have proven capable of reaching interim arrangements regarding the production and broadcast of the Golden Globes. (Phase I Order at :- ( For both [the and ] shows, dcp and HFPA collaborated effectively, and all sides considered both shows a success. ).) There is no reason to believe that they cannot do the same on these issues during the pendency of the appeal. Third, defendants argue that there is very little likelihood that the Court s Phase I ruling will be reversed on appeal. (// Joint Status Report at :- (Dkt. No. ).) HFPA believes that it will prevail on appeal and disagrees with defendants self-serving estimate of the likelihood of reversal. As the Court itself acknowledged, appeal in this case whatever the outcome of Phase I was inevitable: [F]or the side that wins, it s going to be a very short-lived success because the other side's going to appeal. (// Trial Tr. at :-.) Moreover, no showing of a likelihood of success on the merits is necessary: the Court s authority to stay trial proceedings on Phase II arises from its inherent power to control its own docket and calendar. Mediterranean Enter., 0 F.d at. Here, not only do the merits and equities strongly support a stay, but a stay will also conserve the parties and this Court s resources and streamline or eliminate future proceedings. CASE NO. CV - AHM (FMOx)