19-1108 

Twelve Sixty LLC v. Viacom Int’l Inc. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 11th day of December, two thousand nineteen. 

PRESENT: 

DENNIS JACOBS, 

SUSAN L. CARNEY, 

MICHAEL H. PARK, 

Circuit Judges. 

_________________________________________ 

TWELVE SIXTY LLC, ARON MARDEROSIAN,

ROBERT MARDEROSIAN, 

 Plaintiffs-Appellants, 

 v. No. 19-1108 

VIACOM INTERNATIONAL INC., ON-SITE 

PRODUCTIONS, INC.,

 Defendants-Appellees. 

_________________________________________

FOR PLAINTIFFS-APPELLANTS: Michael G. Marderosian, Marderosian & 

Cohen PC, Fresno, CA. 

FOR DEFENDANTS-APPELLEES: Wook Hwang, Loeb & Loeb LLP, New 

York, NY. 
 

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Appeal from the judgment of the United States District Court for the Southern 

District of New York (Buchwald, J.). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on March 27, 2019, is 

AFFIRMED. 

Plaintiffs-Appellants Twelve Sixty LLC, Aron Marderosian, and Robert Marderosian 

(together, “Twelve Sixty”) appeal from the judgment of the District Court (Buchwald, J.) 

granting Defendants-Appellees Viacom International Inc. and On-Site Productions, Inc.’s 

(together, “Viacom”) motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). 

According to the complaint, in 2014, Twelve Sixty signed a “Loanout Agreement” 

(the “Agreement”) with Viacom to produce a theme song for the MTV show “Are You the 

One?” Under the Agreement, in return for writing the theme song, Viacom agreed to pay 

Twelve Sixty $10,000. App’x 21 ¶ 6(a). Twelve Sixty also retained the right to “receive and 

retain” the “writer’s share” of any “public performance income” (“PPI”) the song might 

produce. App’x 21 ¶ 6(b). In the United States, PPI payments flow from broadcasters to 

writers via middleman “performing rights organizations” (“PROs”), such as Twelve Sixty’s 

designated PRO under the Agreement, Broadcast Music Inc. (“BMI”). Twelve Sixty alleged 

that, in order for it to receive PPI, Viacom—as broadcaster—must file “cue sheets” with a 

PRO indicating when the song was broadcast as part of airings of “Are You the One?” 

Twelve Sixty further alleged that Viacom has failed to file cue sheets for the complete set of 

domestic and foreign broadcasts of “Are You the One?” and its spinoffs. 

Relying on the implied covenant of good faith and fair dealing, Twelve Sixty argued 

before the District Court that Viacom has a duty under New York common law to submit 

cue sheets for foreign and domestic broadcasts. See, e.g., Dalton v. Educ. Testing Serv., 87 

N.Y.2d 384, 389, 663 N.E.2d 289 (1995) (discussing the implied covenant under New York 

law). 
 

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The District Court dismissed as moot Twelve Sixty’s claims as to domestic broadcasts 

because, during the litigation, Viacom submitted all unfiled cue sheets for domestic 

broadcasts. The District Court dismissed Twelve Sixty’s claims as to foreign broadcasts 

because the Agreement discusses only domestic PROs and covers only payments from the 

domestic PRO BMI. See Murphy v. Am. Home Prod. Corp., 58 N.Y.2d 293, 304, 448 N.E.2d 86, 

91 (1983) (explaining that no implied covenant of good faith and fair dealing may be implied 

if such implied covenant “would be inconsistent with other terms of the contractual 

relationship”). Reasoning that to imply a covenant to submit cue sheets for foreign 

broadcasts to foreign PROs would be inconsistent with the text of the Agreement, the 

District Court determined that Twelve Sixty’s claim fell short as a matter of law. Twelve 

Sixty argues on appeal that the Agreement, read in light of the implied covenant of good 

faith and fair dealing, does, in fact, require Viacom to submit cue sheets for foreign 

broadcasts of the song. 

We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6). Elias v. 

Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (“We review the grant of a motion to 

dismiss under Rule 12(b)(6) de novo, construing the complaint liberally, accepting all factual 

allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s 

favor.” (internal quotation marks omitted)). Applying this standard, we affirm the dismissal 

of Twelve Sixty’s claims as to foreign broadcasts, substantially for the reasons stated by the 

District Court in its sound opinion and order. 

* * * 

We have considered all of Twelve Sixty’s remaining arguments and conclude that they 

are without merit. The District Court’s judgment is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court