5:27pm PT by Eriq Gardner
Dish Fires Back at TV Networks in Ad-Skipping Lawsuit; Is ABC About to Countersue?
On Monday, Dish Network told a New York federal court why its lawsuit against the TV networks should proceed and why suits brought by the networks in California should be stopped. The dispute is over Dish's Primetime Anytime and AutoHop technologies that let subscribers skip commercials.
Dish's new legal filing reveals that ABC, the only major network not to sue thus far, has no intention of sitting on the sideline in this dispute. The filing also details discussions between the parties in the aftermath of the May 24 lawsuits. In response to Fox's charge that Dish rushed a "hastily drafted complaint" into court that was riddled with errors, Dish says the networks filed their own actions "in haste" with procedural deficiencies.
The battle over New York or Los Angeles comes because Dish, CBS, NBC and Fox all filed separate lawsuits May 24, looking to gain a jurisdictional edge in the coming fight over whether the satellite TV giant's new services comply with copyright law and various distribution contracts. The original lawsuits came a day after The Hollywood Reporter revealed that the networks were eyeing legal action, prompting Dish to beat the others into court by exactly 29 minutes the next morning.
A New York judge then issued a temporary restraining order that barred Fox from pursuing its lawsuit until a hearing, which caused Fox to attack Dish and argue that the judge should reject an allegedly improper anticipatory strike.
Dish now has responded, saying that it chose to file a lawsuit over subscribers' "freedom to elect to skip commercials" on May 24 "in response to the networks' vague and indirect threats to Dish's lawful rights."
The key word there is "indirect."
"The networks seek to have this action dismissed in favor of their California actions by arguing that the first-filed rule does not apply when the first action was filed in response to a direct threat of litigation," writes Dish's attorney Peter Bicks at Orrick Herrington & Sutcliffe. "But that argument necessarily fails because there were no direct threats of litigation in this case."
Dish goes on to say that the THR story can't be read as a direct legal warning. "There is nothing 'direct' about generalized press accounts from anonymous sources," says the new filing. "It is precisely the sort of vague and looming threat of litigation contained in the Hollywood Reporter article that the declaratory judgment action is designed to address."
The dispute over venue is a mere precursor to the main showdown over the legality of Dish's service, but it could play a role in helping determine the outcome. Sources familiar with the proceedings agree that one of Dish's reasons for going to New York court is to take advantage of the same jurisdiction that handed broadcast content owners a big loss in a battle a few years ago when Cablevision announced its remote-storage DVR.
Dish gives other reasons why the case should proceed in New York.
The company says it shouldn't be forced to defend "piecemeal litigation" in California concerning separate contracts with each of the networks. Plus, it says that ABC hasn't yet sued but will be taking action soon. "While ABC has not yet answered the Complaint, it has advised Dish and the Court that it will litigate in this Court by filing an answer and counterclaim," says Dish.
The networks have argued that many of the parties, witnesses and documents are located in Los Angeles and that even Dish, headquartered in Colorado, is closer to the West Coast. Dish hits back by pointing out that the TV networks all have substantial divisions in New York, have top executives there and that meetings between the parties have taken place there too. Dish also says it likewise keeps a residence in the Big Apple.
Finally, Dish has made a counterattack on the suggestion that its complaint is rife with errors, including naming the wrong parties and not including details about the contracts. Dish says that naming the exact defendants isn't necessary, that it had to deal with confidentiality concerns before detailing information about the contracts and that the networks know very well which contracts are at issue.
Dish also says that when the networks filed their lawsuits in California, they didn't wait to receive an assigned index number on one action before completing the civil cover sheet for the next one. That supposedly didn't allow the clerk to know there were related cases. Dish also asserts that Fox rushed to serve it on the same day it filed the summons and complaint.
Dish essentially says that while networks were trying to win the courtroom foot race, they managed to shoot themselves in the foot.
"Because of this haste and the failure to advise the California court of related cases, the status of the California actions remains in flux," writes Bicks.