good morning your honors in may please the court mary christine sing i love hanes and be in on behalf of the palin m g a entertainment and i would like to reserve five of my twenty minutes for rebuttal and i'll watch the clock you've been here before you know regularly broadcast a series in the same time slot on a regular basis and that from that failure all these other breaches and failures and turns in the story of the relationship everything kind of went downhill from there but in terms of our our arguments with regard to the co finance agreement and viacom's claims and our own counter claims we have two arguments one is the regularly scheduled which is that was y and she's she testified that with her thirty years of experience in the industry that regularly scheduled means you know every every every day or every day the same time every day every week there were certainly overseeing them and knew what was what was going on in that issue but even so i'm sorry but even so whether or not she was involved in it that that in that you interpret in what the contract means you can look certainly look to industry standard and custom and given her statement generally about what regularly scheduled to her match given her time in the industry was over senate she could have had that the find in the contract so kind of dropped the ball because it's not defined well it's that it is not expressively defined in the contract but quietly the role evidence is that which i have to confess being from washington although i did take  california bar i had to admit how many years ago i know there's a big difference between california law on parole evidence but are you saying that the phrase is ambiguous and that therefore her interpretation broadcast the programming on either the main mickle odeon channel or the nick jr channel on a regularly scheduled basis during the hours eight am to nine pm for three years parin subject to customary resting periods comma which shall not be longer than three consecutive months parin period right it's the regularly scheduled schedule basis and that term is not defined correct but did they actually run out more often than what they were contractually obligated to do so where's the harm well i think that the question is kind of pulling back and looking at the purpose of this entire arrangement so the purpose of this entire arrangement was was both in this case gives viacom some upside if the toy sales increase as a result of that and for m t a it promotes their brand overall and also promotes their sales so if you're looking at that overall in terms of what you're trying to do and the t estimony of our expert as well in terms of this is how you do it is that you are you get kids interested in the brand more than half of the children who purchased lalaloopsy dolls did so because they saw the over a regularly scheduled event to me that seems there's plain language is frequently and then perhaps there's a common understanding of how frequently has to be aired but i'm struggling to see that damage the linkage between the alleged failure because that's their formative claim so as to that that's not our burden but with regard to our counter claim which which is based on the regular schedule in our own breach of contract and our breach of the implied co analysis and the their expert opined that on the basis of the regression analysis there was no nexus show you did not counter that with your own expert did you just say that to address was whether or not there is a correlation between when the programs are scheduled and dull fail or did i misunderstand the bre well we we have we do have our own  expert who talks about the issues of that of the correlation as well and i think that that correlation looks at not only the regularly scheduled aspect but our other argument with regard to the evidence do you have to refute what i would consider to be two very strong pieces of evidence to show that there is no nexus between when the program is run  have the television show that that kids get hooked on someone they they buy the doll few get hooked on a television show you have to know what's on and be able to see it regularly so i think there's a common sense aspect to that in terms of of what  was scheduled i think that's an argument but i'm having difficulty understanding whether there's a genuine issue of material fact in light of the demonstration that viacom made that there isn't a linkage given how often the series ran even though it may not have been on wednesdays at three o'clock in the afternoon for the entire period of the contract well there is evidence that there were over the sense but there's also a second component to this besides the contract argument with regard to regularly scheduled and not is the implied president which was that the discretion to end the right to promote the property and that there was evidence that in fact it chose to put its own properties above all above and gas in terms of does address the correlation between the alleged breach and the declining sales because as i understand from the record it doesn't address the correlation so if i missed it if you can provide an e r site that would be very sales targets for the effective years even by inference i think that would be too tenuous well i mean whether whether that is the  ten times more than what they were required to do under the contract did i misread something they were required to do a one hundred fifty six contract they did seven hundred times oh well that gets back marcieu establishes that a decision to intentionally divert promotional dollars towards a media company's own properties raises a fact issue on the covenant of good faith and fair dealing and here there's evidence that in connection with negotiations on the co finance period and that further demonstrates a lack of good faith and so as in the law case five com may have had discretion to promote the series and the contract but in exercising that discretion and deciding whether and how to promote the series it had to do so in good faith you're down to a little over three minutes you can you free to use that time but i just wanted to give you that ok i just think you just want to spend one minute addressing the international sales agreement and the beacon agreements those are the two remaining agreements and those of the advertising agreements so how does one your twelve months somehow get extended to so so with regard to to that question on the international game and there are a couple of different ways actually there's three months and then three months so that the three months with regard to when you're airing the program whether whether it means you need to does or does the twelve months run from the very first date you're the program in one region or all regions well let me ask a question different way if we were just looking at the british market would you agree that the twelve months would run from the date of the initial broadcast in great britain well except that you have to go back to the  therefore extends to what amounts to fifteen months after they started in greek correct right right even with than fifteen months did and spend all of the advertising that's required no they spent one point i wanted to make that runs across both international and beacon has to do with damages and the there is at least at least a tribal issue with regard to viacom's damages on both of these advertising agreements because there is evidence in the record that in the fall of two thousand and fifteen period that viacom was in fact sold out of advertising and therefore it would appear not seeking the three hundred eighty thousand that we generated through resale to somebody oh those times that's right they did they did do that they did do that but the of of advertising and the international agreement was focused for m j on television advertising and that is that the contrast takes across the full full spectrum of social media television it talks about digital but it it that deposition testimony can't contravene the language of the contract can well except in terms of the question of did did we you know did they fail to did they actually mitigate  involved as a participant in negotiations secondly the media can't possibly be parole evidence no it doesn't mean it can't possibly be parole evidence inadmissible furthermore there is no evidence whatsoever in the deposition record which is where this comes from that ms are gone he was describing a custom and practice in the industry is clear from the deposition that she was talking at the and of a lot of questioning about a personal understanding that she had but finally and perhaps most important what she said if you read the deposition testimony is that the program had to be scheduled in a regular pattern for an extended period of time and to spend it as you pointed out there's no question that this program was scheduled and in fact exhibited in a regular pattern for an extended period of time in the total period of time from twenty five thirteen to twenty fifteen as you pointed out except for the summer changes which are designed to accommodate kids summer vacations there were actually three changes so that first it aired in the summer of two thousand and thirteen until august then it changed from august to february more than six months change times and then it aired for august for seven months until the series ended so there are very few changes and all of those are extended periods of time and as all of you have pointed out there was in any event absolutely no effort whatsoever to correlate any harm to any of those scheduling changes and in fact if i come substantially over performed  next point i want to respond to is this argument on promotion that viacom shifted assets now first of all this contract unlike some entertainment contracts does not obligate to do any promotion whatsoever and furthermore it doesn't contain an equal treatment clause like some contracts do that we have to treat all of our properties identically or similarly but in all  testimony that they use which is in the record at our seven fifty three has been grossly misrepresented because it does not say and there is no evidence that vi ever did shift resources this witness wrote a memo in which she discussed the possibility of doing that but there's no evidence that any resources were ever shifted and has already been pointed out by the panel there's no obligation in the agreement to promote there's a at the parties did discuss promotion they granted each other rights which of course the intellectual property rights necessary to use a clip or something to promote but there was no obligation to promote and the implied covenant cannot expand the obligations under the agreement it's important to point out that there are two advertising contracts in the mitigate the issues are different as between them so one is a domestic advertising contract and the other is an international advertising contract on the domestic advertising a contract it's undisputed that viacom did mitigate to the extent of three hundred eighty thousand dollars and that there's about another eight hundred thousand dollars that it was mitigate now mitigation of course is the burden of m j to establish a failure to mitigate and for starters there's a legal question as to whether there was any obligation to mitigate at all because remember as their court below found the contracts here were non cancelable what does that mean that means that there is a term that you cannot cancel why is that so because it is very difficult to mitigate on the fly in these situations so there is case law  mitigation does not apply when the effect would be to act as a sword against the right specifically protected by contract when you to shift the burden of cancellation to viacom defeats the nullify a contract term but beyond that there's also no evidence that they have put into the record no specific facts as they are required to do in order to raise a issue that defeats summary judgment that viacom had any other buyers for any additional portion beyond this three hundred eighty thousand dollars that they were able to resell no evidence as to what a hypothetical buyer would have paid for the cancelled advertising no evidence that viacom benefited from the cancelled advertising and no evidence that viacom's failure to achieve more than three hundred  eighty thousand dollars worth of mitigation was unreasonable under the circumstances and this was all n g s burden because they had to introduce evidence from which a reasonable jury could duty to further mitigate in a particular amount which they didn't do normally if you have a battle over mitigation an expert comes in says there were the father following opportunities available of which state took no advantage and you know that there was another buyer who could have paid x would have paid x there's no evidence in the record whatsoever they made no effort they just threw it against the wall and speculated now international advertising is the next issue again of course n g a has the burden of showing a lack of mitigation now here the contract was different than any in domestic in domestic n g a purchased particular advertising spots as did other advertisers purchase particular advertising spots and there is a finite inventory of time on television so you can say there are x number of advertising spots domestically however that's not how it works internationally according to of advertising viacom sells eyeballs that word in the industry well across all media i will eyeballs yes views across all media and so the undisputed testimony to provide those views in the form of internet in the form of television in the form in any form on any  viacom property any viacom network that it wants to with this means is that viacom can use dynamic pricing to try to attract attract the maximum amount of advertising across all of its media and it can shift advertisers unless they specify and there's no evidence in the record that these other advertisers did specify particular locations  they can shift them at will from t v spot to internet with this means according to the undisputed testimony is that viacom is always elastic as to the number of t v spots that it has the undisputed testimony is that viacom had whether n g a paid its five million dollars or not plenty of excess t v spot capacity as well as other media capacity so when they didn't pay their full five million dollars that was a dead loss to viacom and it was not something that could be mitigated now if they wanted to contest that evidence they could have submitted evidence of their own if they had some expert who could have said otherwise if they had a cheap through cross examination but there is no evidence to contradict what i just said no actual evidence in the record furthermore on the meaning of the agreement this came up so the question was we had a broadcast in the k in july and that according to viacom started the twelve month clock they want to argue no because broadcasts continued in other territories until the initial broadcast continued until october and therefore that extended the clock for fifteen to from a twelve month clock to a fifteen month clock now there are a number of things that are wrong with that argument the first thing that's wrong with the argument is that in the broadcast agreement which is where viacom took on its obligation viacom agreed i'm sorry let me start it needs more logical to start with the advertising agreement in the advertising agreement where n g a promised to spend five million dollars within a year the word is to start that twelve month period from the first telecast singular intell telecast of the program in the t v slice and territory right and so telecast you're saying in the t v carefully that's the airing in the u k right it's not a plural term so obviously there were going to be other telecasts in other territories but this is from the end mishal telecast in those territories and there is no  wording whatsoever that suggested that this would be floating for a fourth however many months it took to finish the telecast in other territories the second thing is viacom in the broadcast agreement which is a separate agreement negotiated at the same time negotiated for flexibility to broadcast not for twelve months but for actually up to sixteen months and the reason they did that was that in many of these territories there there needs to be  foreign language dubbing and other complications in delivering the programming so viacom reserved the flexibility to broadcast the episodes as late a broadcasts that's a seventy yard ten thirty five so there was always a deal linkage between the twelve month period that was set forth in the international advertising agreement which to be extended up to sixteen months period until october thirty first and yet the parties never said in either of the agreements for these periods have to match there was no linkage between those periods drawn in the agreements although of course it would have been easy to do so it would have been easy if n g a had cared about this issue at the time to say well if you are going to delay your program airing then we get to delay our payments but of course that wasn't done and then on top of that they didn't pay even within that period the fifteen month period in which their case the  curd the other thing i wanted to mention going back to the co financing agreement but also this whole dispute the argument that was made to you at the beginning is everything came off the track because of the regularly scheduled issue that's actually not true and it's not and it's clear that it's not true in the record and if you look at judge reels order you'll notice that he spends four full pages at the beginning of his order on the co financing agreement talking about what was the reason why things went off track and what was their principal complaint and what was the sole basis of their export expert's report an abandoned their initial argument was that viacom should not have been allowed to move the program from what's called big nickelodeon to nickelodeon jr big nickelodeon is for a kid range that's somewhat older than nickelodeon jr which is for littler kids that was their primary argument in the case that was the basis on which their expert although he never tried to establish causation all efforts a correlation he he made paltry and misguided as they were based on this change from nick to nick jr that was true of his first report and his supplemental report of course the contract said explicitly that we were allowed to move the program from that nick to nick jr and of course they have abandoned that argument on appeal but to suggest that things went off track because of the regularly scheduled issue on the kunar that's just not the case it's not borne out by the record if your honour's have any further questions