Viamedia, Inc. v. Comcast Corporation et al

Northern District of Illinois, ilnd-1:2016-cv-05486

REPLY by Defendants Comcast Corporation, Comcast Spotlight, Inc. to motion by filer to set a briefing schedule, {{362}}, response in opposition to motion, {{367}} / Defendants' Combined (1) Reply Brief in Support of Their Motion to Set Schedule for Briefing Defendants' Entitlement to Attorneys' Fees and for Exchange of Fee-Related Information and (2) Opposition to Plaintiff's Motion to Defer Proceedings on Attorneys' Fees and Costs Pending Appeal [REDACTED PUBLIC VERSION]

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Case: 1:16-cv-05486 Document #: 372 Filed: 09/28/18 Page 1 of 8 PageID #:17807 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION)) VIAMEDIA, INC.,) Plaintiff,) No. 16 C 5486) v.) Honorable Charles R. Norgle Sr.) COMCAST CORPORATION and COMCAST) SPOTLIGHT, LP,)) Defendants.) DEFENDANTS' COMBINED (1) REPLY BRIEF IN SUPPORT OF THEIR MOTION TO SET SCHEDULE FOR BRIEFING DEFENDANTS' ENTITLEMENT TO ATTORNEYS' FEES AND FOR EXCHANGE OF FEE-RELATED INFORMATION AND (2) OPPOSITION TO PLAINTIFF'S MOTION TO DEFER PROCEEDINGS ON ATTORNEYS' FEES AND COSTS PENDING APPEAL Ross B. Bricker Sally K. Sears Coder Daniel T. Fenske JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654-3456 Tel: (312) 222-9350 Fax: (312) 527-0484 rbricker@jenner.com ssearscoder@jenner.com dfenske@jenner.com Arthur J. Burke (pro hac vice) David B. Toscano (pro hac vice) Christopher P. Lynch (pro hac vice) DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, New York 10017 Tel: (212) 450-4000 Fax: (212) 701-5800 Arthur.Burke@davispolk.com David.Toscano@davispolk.com Christopher.Lynch@davispolk.com Attorneys for Defendants Comcast Corporation and Comcast Cable Communications Management, LLC Case: 1:16-cv-05486 Document #: 372 Filed: 09/28/18 Page 2 of 8 PageID #:17807 Pursuant to Local Rule 54.3(g) and this Court's Order of September 14, 2018 (Dkt. 368), Comcast respectfully submits this Reply in Support of its Motion to Set a Briefing Schedule (Dkt. 362, the "Motion") and Opposition to Plaintiff's Cross-Motion to Defer Proceedings (Dkt. 367, the "Cross-Motion" or "Opp./Cross-Motion"). 1 BACKGROUND Comcast's Motion requests a briefing schedule to resolve whether Comcast is entitled to attorneys' fees under the 2003 Agreement between Viamedia and Comcast. As the Motion explained, both judicial and party resources will be conserved by a resolution of this threshold issue before the parties meet and confer regarding the amount of fees to which Comcast is entitled and submit any disagreement to the Court pursuant to Local Rule 54.3. Motion ¶ 7. On September 14, 2018, this Court entered an Order permitting Comcast to file a brief in support of its Motion to Set a Briefing Schedule and in opposition to Viamedia's Cross-Motion, which contends that all proceedings relating to attorneys' fees and Comcast's bill of costs should be deferred pending a decision on Viamedia's appeal of the judgment in favor of Comcast. Dkt. 368. In the interim, Comcast filed its bill of costs and supporting papers within the time provided by Federal Rule of Civil Procedure 54(d) and Local Rule 54.1. See Dkt. 369, 370, 371. ARGUMENT I. Comcast's Motion to Set a Briefing Schedule Should Be Granted and Viamedia's Cross-Motion to Defer Proceedings Should Be Denied. A. Fee Disputes Should Be Resolved Expeditiously Following Judgment. Parallel briefing of fee- and cost-related issues in the district court and merits-related issues in the court of appeals is permitted under Federal Rule of Civil Procedure 54(d) and Local 1 Capitalized terms used but not defined herein shall have the meaning set forth in the Motion. 1 Case: 1:16-cv-05486 Document #: 372 Filed: 09/28/18 Page 3 of 8 PageID #:17807 Rule 54.3. The weight of the authority in this circuit suggests that a party's entitlement to fees should be decided as soon as possible after judgment is entered, even if a merits appeal is pending. See, e.g., Anheuser-Busch, Inc. v. Schnorf, No. 10-CV-1601, 2011 WL 9798, at *2 (N.D. Ill. Jan. 3, 2011) ("Even in cases where an appeal could affect or moot some questions at issue in the district court, the Seventh Circuit has expressed a clear preference for timely adjudication of attorneys' fee motions."); Frey v. Fraser Yachts, No. 89 C 9109, 1994 WL 87512, at *3 (N.D. Ill. Mar. 15, 1994) ("[T]he pending appeal in this case is simply no reason not to proceed with the award of attorney's fees and costs to defendant."); see also Furgason v. Furrer, No. 1:12-CV-00738, 2014 WL 5704693, at *1 (S.D. Ind. Nov. 5, 2014) ("[T]he Court may, and in fact must, rule on Plaintiffs' petition for attorney's fees and expenses in spite of Defendants' appeal of the Court's findings of fact and conclusions of law upon which the petition for fees is based."). As Viamedia itself recognizes, "district courts are encouraged to promptly resolve attorneys' fees motions and have jurisdiction to do so while merits appeals are pending." Opp./Cross-Motion at 2 (quoting GS CleanTech Corp. v. Adkins Energy LLC, 2018 WL 1469001, at *7 (N.D. Ill. Mar. 26, 2018)). Viamedia's contention that work related to the fee briefing would be "premature" or "wasted" does not, therefore, distinguish this case from any other case where the merits judgment is appealed. Contra Opp./Cross-Motion at 7. The possibility of "wasted" work has not stopped courts in this district from routinely ordering briefing on fee issues while an appeal is pending. 2 2 In arguing in favor of a stay, Viamedia hypothesizes that its merits appeal "is likely to be submitted to the Seventh Circuit before any resolution is reached" concerning Comcast's entitlement to fees. See, e.g., Opp./Cross-Motion at 2. But, as Viamedia itself recognizes, this is mere speculation. The Seventh Circuit has ordered this case to mediation, CA7 Dkt. 3, and the initial mediation has not yet occurred. The Seventh Circuit mediator could order additional mediation sessions, which may result in delays of the current briefing deadlines. Moreover, it is possible that the parties will seek additional time to file their 2 Case: 1:16-cv-05486 Document #: 372 Filed: 09/28/18 Page 4 of 8 PageID #:17807 B. Viamedia Would Not Be "Unfairly Burdened" By Parallel Briefing. Viamedia's suggestion that being forced to litigate the fee issue prior to the disposition of the appeal would impose an "unfair burden" (Opp./Cross-Motion at 8) is unsupported. There can be little doubt that the two law firms representing Viamedia are capable of responding to Comcast's motion for attorney's fees while also prosecuting Viamedia's appeal. 3 Moreover, Viamedia's contention that its "resources are constrained" (id. at 7, 8) is belied by (1) record evidence suggesting that, cf. Dkt. 155 at 2; and (2) the fact that Viamedia has a billion-dollar private equity investor, Lake Capital, which controls this litigation at least in part. 4 Viamedia filed antitrust and tort claims case against Comcast; aggressively pursued those claims through multiple depositions, discovery, and expert testimony; and lost in every respect, as reflected in Judge St. Eve's meticulous Order grating summary judgment to Comcast and excluding Viamedia's experts. Viamedia should not now be heard to argue that it is somehow "constrained" to pay the attorneys' fees and costs that Comcast is entitled to recover as a result of its failed litigation positions. Viamedia is also wrong to complain that it will be forced to "simultaneously" brief the merits appeal and Comcast's entitlement to fees. Opp./Cross-Motion at 4, 8. Under the schedule proposed by Comcast and the current Seventh Circuit briefing schedule, Viamedia will need to respective merits briefs in the Seventh Circuit, and the Seventh Circuit could delay the oral argument at its discretion. In short, there is ample time for this Court to resolve the fee-related issues in a manner that may permit consolidation of any fee-related appeal with the appeal on the merits, which is the preferred practice in this circuit. 3 Viamedia was initially represented by Mayer Brown LLP, briefly by Kasowitz Benson Torres LLP, and now by Kellogg, Hansen, Todd, Figel & Frederick P.L.L.C. in Washington, DC and Richard J. Prendergast, Ltd. in Chicago. 4 See, e.g., Viamedia Receives Additional Capital Investment From Private Equity Owner Lake Capital To Fuel Continued Growth, Viamedia (Oct. 12, 2015), available at https://viamediatv.com/viamedia- receives-additional-capital-investment-from-private-equity-owner-lake-capital-to-fuel-continued-growth/. 3 Case: 1:16-cv-05486 Document #: 372 Filed: 09/28/18 Page 5 of 8 PageID #:17807 work on only one brief at a time. Between now and October 25, Viamedia can concentrate on its opening brief in the appeal; between October 25 and November 26, it can prepare a brief concerning Comcast's entitlement to fees; and between November 26 and December 10, it can draft its reply brief in the appeal. C. Viamedia's Attempt to Raise Fact Issues Is Unwarranted and Provides No Basis to Delay Briefing of Comcast's Entitlement to Attorneys' Fees. Viamedia's suggestion that the Court should not consider Comcast's entitlement to fees now because discovery may "potentially" be necessary to determine the meaning of the fee- shifting provision in the 2003 Agreement rests on mere speculation. Opp./Cross-Motion at 2. Viamedia does not identify any facts that must be discovered before the fee provision of the contract can be interpreted. Nor could it: Because the contract is unambiguous, "no evidence outside the contract itself may be considered and construction of its terms is a question of law." In re Convenient Food Mart, Inc., No. 89 B 14063, 1990 WL 115797, at *3 (N.D. Ill. Aug. 7, 1990). D. Viamedia Misstates the Record By Arguing that the "2003 Agreement Was Never at Issue in This Case." Viamedia next attempts to put off its responsibility to pay Comcast's attorneys' fees by misstating the record of prior proceedings in this action. Viamedia now asserts that the 2003 Agreement "was never at issue in this case and. . . was never addressed by the Court" and "was never before the basis for any claim in this litigation." Opp./Cross-Motion at 2, 8. On the contrary, the 2003 Agreement was always a critical document in this case. 5 5 See, e.g., 4 Case: 1:16-cv-05486 Document #: 372 Filed: 09/28/18 Page 6 of 8 PageID #:17807 and Judge St. Eve addressed that Agreement in her summary judgment Order (Dkt. 356 at 9, 49). Indeed,; Motion ¶ 3. Thus, Viamedia's position that the 2003 Agreement is somehow unrelated to this action is incorrect. In any event, Viamedia will have the opportunity to contest Comcast's entitlement to attorney's fees under the 2003 Agreement in its opposition brief. Viamedia's argument is premature and the Court need not decide the issue now. E. Viamedia's Request to Stay Resolution of the Bill of Costs Should Be Denied. Comcast's Motion did not request any relief with respect to its bill of costs and noted that Comcast would submit its bill of costs in the time set forth in the Federal Rules of Civil Procedure and the Local Rules. Comcast has now done so. There is no dispute that Comcast is entitled to costs, which were expressly awarded in the judgment. Dkt. 357. Viamedia's request to defer decision on Comcast's bill of costs, which has now been timely submitted, is untimely, improper, and unfair. Cf. Opp./Cross-Motion at 5 n.1. Comcast therefore respectfully requests that this Court require Viamedia to submit its opposition, if any, to Comcast's bill of costs in an expeditious manner—within ten days from this Court's order—in order to avoid any prejudice to Comcast. CONCLUSION For the reasons stated above and in Comcast's Motion, Comcast respectfully requests the Court grant the Motion, deny Viamedia's Cross-Motion, and order Viamedia to submit any response to Comcast's bill of costs within ten days from the date of this Court's order. 5 Case: 1:16-cv-05486 Document #: 372 Filed: 09/28/18 Page 7 of 8 PageID #:17807 Dated: September 28, 2018 Respectfully submitted, COMCAST CORPORATION AND COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC /s/ Ross B. Bricker Ross B. Bricker Sally K. Sears Coder Daniel T. Fenske JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654-3456 Tel: (312) 222-9350 Fax: (312) 527-0484 rbricker@jenner.com ssearscoder@jenner.com dfenske@jenner.com Arthur J. Burke (pro hac vice) David B. Toscano (pro hac vice) Christopher P. Lynch (pro hac vice) DAVIS POLK & WARDWELL LLP 450 Lexington Avenue New York, New York 10017 Tel: (212) 450-4000 Fax: (212) 701-5800 Arthur.Burke@davispolk.com David.Toscano@davispolk.com Christopher.Lynch@davispolk.com Attorneys for Defendants Comcast Corporation and Comcast Cable Communications Management, LLC 6 Case: 1:16-cv-05486 Document #: 372 Filed: 09/28/18 Page 8 of 8 PageID #:17807 CERTIFICATE OF SERVICE I, Ross B. Bricker, an attorney, certify that on September 28, 2018, I caused the foregoing Defendants' Combined (1) Reply Brief in Support of Their Motion to Set Schedule for Briefing Defendants' Entitlement to Attorneys' Fees and for Exchange of Fee-Related Information and (2) Opposition to Plaintiff's Motion to Defer Proceedings on Attorneys' Fees and Costs Pending Appeal to be served on all counsel of record listed via the Court's ECF system. /s/ Ross B. Bricker 7