Spanski Enterprises, Inc. v. Telewizja Polska, S.A.

13-4134(L)
Spanksi Enters., Inc. v. Telewizja Polska S.A.
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 A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of October, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 ROBERT D. SACK,
8 CHRISTOPHER F. DRONEY,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 Spanski Enterprises, Inc.,
13 Plaintiff-Appellee and
14 Cross-Appellant,
15
16 -v.- 13-4134 (Lead)
17 13-4219 (XAP)
18
19 Telewizja Polska, S.A.,
20 Defendant-Appellant and
21 Cross-Appellee.
22 - - - - - - - - - - - - - - - - - - - -X
23
24 FOR APPELLANT: Stanley McDermott III, David S.
25 Wenger, DLA Piper LLP (US), New
26 York, New York.
27
1
1 FOR APPELLEE: Jonathan Zavin, John A. Piskora,
2 Loeb & Loeb LLP, New York, New
3 York.
4
5 Appeal from a judgment of the United States District
6 Court for the Southern District of New York (Carter, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 AFFIRMED.
11
12 Defendant-Appellant Telewizja Polska, S.A. (“TVP”)
13 appeals from the judgment of the United States District
14 Court for the Southern District of New York (Carter, J.),
15 granting partial summary judgment in favor of Plaintiff-
16 Appellee Spanski Enterprises, Inc. (“SEI”). SEI cross
17 appeals. We assume the parties’ familiarity with the
18 underlying facts, the procedural history, and the issues
19 presented for review.
20
21 This appeal arises from prolonged disputes between TVP,
22 a public broadcasting corporation wholly owned by the
23 Republic of Poland, and SEI, which has been TVP’s exclusive
24 distributor of television programming content to the Polish
25 diaspora in the Americas. The dispute, over which party can
26 broadcast certain programming and for how long, is governed
27 by a handful of written contracts.
28
29 We review a district court’s decision to grant or deny
30 summary judgment de novo. Smith ex rel. Estate of Smith v.
31 Fed. Reserve Bank of N.Y., 346 F.3d 264, 267 (2d Cir. 2003).
32 And “[t]he interpretation of a contract is generally a
33 question of law,” also “subject to our de novo review.”
34 Network Publ’g Corp. v. Shapiro, 895 F.2d 97, 99 (2d Cir.
35 1990).
36
37 1. SEI became the exclusive distributor of TV Polonia
38 in 1994 and of TVP Info in 2002. Prior litigation between
39 SEI and TVP ended in a Settlement Agreement, executed in
40 2009, that provides, in section II.A: “SEI is and shall
41 remain the exclusive distributor of TV Polonia and TVP Info
42 programming content in the territory of North and South
43 America by any and all means of distribution . . . .” It is
44 undisputed that, as to TV Polonia, SEI’s exclusivity extends
45 until 2019. TVP argues that it nonetheless is entitled to
46 broadcast on TVP Info a small percentage of TV Polonia
2
1 programming content, which it characterizes as de minimis.
2 We disagree.
3
4 There has been a 2-3% overlap in the TV Polonia content
5 broadcast on TVP Info. TVP characterizes this overlap as
6 “negligible” or “de minimis.” However, the relevant
7 contracts contain no exception for de minimis infringement
8 of SEI’s exclusivity rights. And under New York law,
9 “courts may not by construction add or excise terms, nor
10 distort the meaning of those used and thereby make a new
11 contract for the parties under the guise of interpreting the
12 writing.” Reiss v. Fin. Performance Corp., 764 N.E.2d 958,
13 961 (N.Y. 2001) (internal quotation marks omitted).
14
15 TVP argues that Section II.A. of the Settlement
16 Agreement--the provision that confirms SEI’s exclusivity
17 rights for all programming content rather than for the
18 channels only–-should be discounted as “general” and
19 “prefatory.” However, “the fundamental rule of contract
20 interpretation [is] that a court must strive to give meaning
21 to every sentence, clause, and word.” N.Y. Marine & Gen.
22 Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 116 (2d Cir.
23 2010) (internal quotation marks and citation omitted).
24 Section II.A is no more “general” or “prefatory” than any
25 other provision of the Settlement Agreement.
26
27 Finally, TVP emphasizes that TVP Info (mainly news) and
28 TV Polonia (mainly entertainment) do not compete with each
29 other. But SEI’s exclusivity rights are not made to depend
30 on considerations of competition.
31
32 In sum, TVP is prohibited by the Settlement Agreement
33 from distributing TV Polonia’s programming content on TVP
34 Info, or elsewhere, until 2019.1
35
36 2. SEI cross appeals, contending that any distribution
37 of TVP Info--regardless of whether any content overlaps with
1
The district court reached the same conclusion,
but also relied on Section II.E of the Settlement Agreement,
which prohibits TVP from distributing “any other channels
. . . that contain any of the same programming that is
contained, has been contained, or will be contained in
either TV Polonia or TVP Info.” (emphasis added). Because
we conclude that Section II.A is dispositive, we need not
address the district court’s construction of Section II.E.
3
1 TV Polonia--is prohibited until 2019. The district court
2 rejected this interpretation as “stretch[ing] beyond any
3 reasonable construction of the text as written.” We agree.
4
5 Section II.A of the Settlement Agreement provides that
6 “SEI is and shall remain the exclusive distributor of . . .
7 TVP Info programming content.” The Section specifies no end
8 date; nor does any other provision in the Settlement
9 Agreement. But the parties’ other contracts do. The 1994
10 Agreement sets 2019 as the end date for SEI’s exclusivity
11 rights to TV Polonia, and the 2002 Addendum sets 2012 as the
12 end date for SEI’s exclusivity rights to TVP Info. Because
13 the Settlement Agreement does not deal with end dates, the
14 terms set in the 1994 Agreement and its 2002 Addendum remain
15 valid. Hence, all of SEI’s rights to TVP Info expired in
16 2012.
17
18 Any reference to the 1994 Agreement in the Settlement
19 Agreement necessarily includes the relevant provisions of
20 the 2002 Addendum that modified it. See 2002 Addendum (“The
21 following amendments shall be made to the Agreement
22 concluded between the Parties on 14 December 1994 . . . .”);
23 Settlement Agreement § II.N (“All other terms of the
24 Agreement of 1994, as subsequently amended, shall remain in
25 full force and effect, except in the event of any conflict
26 between such prior agreements and this agreement, this
27 agreement shall control.”) (emphasis added). The references
28 to the 1994 Agreement in the Settlement Agreement are
29 references to the 1994 Agreement as amended by the 2002
30 Addendum. Hence, the 2012 end date for SEI’s exclusivity
31 rights to TVP Info--laid out clearly in the 2002 Addendum--
32 controls.2
33
2
At oral argument, SEI pressed the argument that
Section II.A was intended to grant it a new right, requiring
that TVP use SEI as its exclusive TVP Info distributor in
North and South America should TVP wish to distribute TVP
Info following the expiration of the 2002 Addendum.
However, the plain language of Section II.A does not create
any new right. By asserting that SEI “shall remain” TVP’s
“exclusive distributor,” Section II.A makes clear that the
exclusive distribution rights to TVP Info programming
content are those granted in the 2002 Addendum.
4
1 For the foregoing reasons, and finding no merit in the
2 parties’ other arguments, we hereby AFFIRM the judgment of
3 the district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
5