Dandana, LLC v. MBC FZ-LLC

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-4386
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DANDANA, LLC,
Appellant
v.
MBC FZ-LLC,
a/k/a Middle East Broadcasting Services,
d/b/a/ MBC Group
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-08-cv-05592)
District Judge: Dickinson R. Debevoise
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 14, 2012
Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.
(Filed: December 21, 2012)
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OPINION OF THE COURT
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FUENTES, Circuit Judge:
Dandana, a television network and content distributor, filed a complaint in this
action seeking damages for breach of contract, unjust enrichment, and common law fraud
arising out of a television distribution deal with Middle East Broadcasting, a United Arab
Emirates company which is a satellite broadcaster in the Middle East. Dandana’s central
claim is that Middle East Broadcasting breached an oral agreement for revenue sharing.
Middle East Broadcasting contends that there was no oral agreement, and that it complied
with all obligations under the parties’ fully integrated written agreement. The District
Court granted Middle East Broadcasting’s motion for summary judgment and dismissed
Dandana’s complaint in its entirety. Dandana now appeals that ruling as well as the
denial of its motion to exclude expert testimony. We will affirm. 1
I. Factual and Procedural Background
Appellant Dandana, LLC (“Dandana”) is a limited-liability company
headquartered in Rochelle Park, New Jersey. It is a television network and content
distributor that serves as an agent between producers of English and Arabic-language
television stations and cable and satellite broadcasters in the United States. Appellee
MBC FZ-LLC (“Middle East Broadcasting”) is a limited-liability company established in
Dubai, United Arab Emirates, which owns the Arabic-language television channels
MBC1 and Al Arabiya.
Programming produced by Middle East Broadcasting was broadcast in the United
States to Dish Network (“Dish”) subscribers through Arab Digital Distribution (“Arab
Digital”) pursuant to a previous agreement between Middle East Broadcasting and Arab
Digital. Middle East Broadcasting licensed the broadcast rights to the MBC1 and Al
1
The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s summary
judgment ruling de novo, applying the same standard as the District Court. Ideal Dairy v.
Labatt, 90 F.3d 737, 743 (3d Cir. 1996).
2
Arabiya channels to Arab Digital, and Arab Digital negotiated placement of those
channels with Dish.
Around May 2007, a former Middle East Broadcasting consultant informed
Dandana CEO Amro Al Tahwi (“Al Tahwi”) that Middle East Broadcasting’s contract
with Arab Digital was set to expire in February 2008. The consultant proceeded to
introduce Al Tahwi to Mohammed Al Windawee (“Al Windawee”), the head of
distribution for Middle East Broadcasting. After the introduction, Al Windawee and Al
Tahwi began discussing the possibility that Dandana take over negotiations with Dish for
the redistribution of Middle East Broadcasting channels in the United States on Middle
East Broadcasting’s behalf after Middle East Broadcasting’s contract with Arab Digital
expired.
On July 29, 2007, Al Tahwi met with Al Windawee at Middle East Broadcasting’s
offices in Dubai to discuss a potential deal. 2 The next day, Al Windawee sent an email to
Al Tahwi containing the minutes of the meeting. That July 30, 2007 email stated: “It was
great meeting you and have [sic] such thorough discussion, below is the meeting minutes,
I will keep you updated and look forward to have [sic] an agreement in place.” App. 335.
The email also noted a proposed revenue split of 70%-30% between Middle East
Broadcasting and Dandana, respectively. 3 On the same day, Al Tahwi responded with
2
As Appellee correctly notes in its brief, the District Court’s Opinion inadvertently
referenced “July 27, 2007” as the date of this meeting. See Appellees’ Br. at 8 n.2. The
District Court endeavored to correct this mistake by its Order dated November 10, 2011.
See App. 3. The correct date is July 29, 2007, which we will use throughout this Opinion.
3
“Revenue split” refers to the division of licensing and advertising revenue that would
result from a deal with Dish.
3
comments indicating his agreement and disagreement with certain terms contained in the
email. Following this exchange, communications between the parties ceased for five
months.
In December 2007, Al Tahwi wrote Al Windawee requesting that their agreement
be reduced to writing. Al Tahwi also sought a letter of representation addressed to Dish
from Middle East Broadcasting, so that Dandana could negotiate with Dish on Middle
East Broadcasting’s behalf. Al Windawee responded two weeks later, stating, “I think the
time has come to move things forward, thus we need to discuss and confirm some of the
details that I have listed below . . . .” App. 351. Regarding the revenue split, Al
Windawee wrote: “Revenue sharing will be as follows; we need to agree on the
percentage with our CFO, we initially talked about 70%-30% [Middle East
Broadcasting]-Dandana respectively.” Id.
In January 2008, Al Tahwi and Al Windawee spoke by telephone, and Al
Windawee informed Al Tahwi that he would prepare a temporary authorization letter to
allow Al Tahwi to negotiate with Dish on Middle East Broadcasting’s behalf. 4 Al
4
Dandana produced a letter that Al Windawee allegedly sent to Al Tahwi dated January
6, 2008, which states that it “formally confirm[s] that Dandana LLC is the sole
distributor/agent for [Middle East Broadcasting] channels in the United States.” App.
362. The letter also notes the agreement to split revenue 70%-30% and states that the
parties should formalize their long format agreement after February 29, 2008. Middle
East Broadcasting disputes that Al Windawee ever sent this letter, claiming that it is a
fraud. Middle East Broadcasting’s forensic expert testified that the letter was not sent by
Al Windawee or Middle East Broadcasting, and that the letter did not appear on
Dandana’s computer systems until July 9, 2010, approximately one week after Middle
East Broadcasting served its document requests on Dandana. Dandana provided its own
expert testimony supporting the veracity of the letter.
4
Windawee provided a draft of the authorization letter, which stated that Al Tahwi was a
“temporary representative” of Middle East Broadcasting for the purpose of negotiating
the broadcast rights of Middle East Broadcasting channels with Dish. App. 427. The
authorization letter specified that any deals signed by Dandana “shall be considered null
and void.” Id. Al Tahwi requested that the restrictions be attached as an exhibit, so that
Al Tahwi could “use the letter without the Exhibit,” but Middle East Broadcasting
rejected this request. App. 426.
Instead, Al Windawee invited Al Tahwi to submit a formal bid for the distribution
rights to MBC1 and Al Arabiya. Soon thereafter Al Tahwi submitted a bid, proposing a
75%-25% revenue split and exclusive distribution rights of Middle East Broadcasting in
North America and Latin America. Al Tahwi also requested a formal bid invitation letter
in order to indicate to Dish that Middle East Broadcasting intended to end its relationship
with Arab Digital. Al Windawee provided the formal bid invitation letter, which Al
Tahwi presented to Dish.
Al Tahwi arranged for a meeting between Middle East Broadcasting and Dish in
March 2008. Al Tahwi attended this meeting but did not participate in the negotiations
between Middle East Broadcasting and Dish. Ultimately, Middle East Broadcasting and
Dish entered into a written agreement which provided that Middle East Broadcasting
channels would be carried on Dish. This agreement did not contemplate the use of or
compensation of a middleman or distributor. Dish signed a separate agreement with Al
Tahwi’s company Sarasat to provide signal transmission for the MBC1 channel from the
Middle East to the United States.
5
Al Tahwi claims that Al Windawee informed him that Middle East Broadcasting
would not honor the agreement to pay Dandana a share of the revenue from the Middle
East Broadcasting-Dish agreement but offered to pay a lump sum commission instead. In
an email to Al Windawee and Sam Barnett (“Barnett”), the Chief Operating Officer and
General Manager of Middle East Broadcasting, Al Tahwi stated that “all I am looking for
is some sort of just and reasonable recognition, which I felt that I didn’t get until now,
however, I will leave it up to you and Mohammed.” App. 543. At this point, Barnett took
over negotiations with Al Tahwi.
On May 27, 2008, Middle East Broadcasting and Dandana entered into a written
agreement regarding the revenue share. The agreement states that: “In consideration of
the ‘CashCommission’ [sic], [Dandana] agrees to provide non-exclusive Services to
[Middle East Broadcasting] as per the terms and conditions of this Agreement.” App.
611. “Cash Commission” is defined by the agreement, and includes two lump sum
payments of $250,000, as well as a percentage of advertising revenues in the United
States and Canada over a two-year period. The agreement also defines “Services” as “the
services that [Dandana] shall provide to [Middle East Broadcasting] under this
Agreement which includes [Dandana] introducing [Middle East Broadcasting] to
distribution operators in the United States for the purpose of distribution of the Middle
East Broadcasting Channels and therefore acting as an introducer between [Middle East
Broadcasting] and these distribution operators.” App. 610. In addition, the agreement
contained an integration clause which provides: “This Agreement supersedes all previous
agreements, representations or promises and sets out all the terms agreed between the
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parties. Any amendment or alteration to this Agreement must be in writing and signed by
an authorized signatory of each party.” App. 612. Al Tahwi signed the agreement on May
27, 2008 and emailed it to Middle East Broadcasting along with an invoice for the first
payment of $250,000. Middle East Broadcasting never signed the agreement.
Three weeks later, Al Tahwi emailed Barnett seeking Middle East Broadcasting’s
executed agreement. Barnett responded that the money would be sent and that he would
try to have the agreement signed. Five days after that, Al Tahwi’s lawyer sent a letter to
Barnett threatening suit if the first lump sum payment of $250,000 was not paid. Soon
thereafter, Dandana received the first lump sum payment of $250,000, which it retained.
In November 2008, Dandana filed suit in the District Court for the District of New
Jersey, seeking damages for breach of contract, unjust enrichment, and common law
fraud. Dandana claims that an oral contract was entered into with Middle East
Broadcasting on July 29, 2007, which required Middle East Broadcasting to pay Dandana
30% of revenue, and that Middle East Broadcasting breached the agreement by failing to
pay. In November 2011, the District Court granted summary judgment in favor of Middle
East Broadcasting. The District Court held that (1) an oral contract was not reached on
July 29, 2007; (2) even if a contract had been reached on July 29, 2007, the subsequent
agreement reached on May 27, 2008 was an unambiguous, fully integrated written
contract between the parties concerning the same subject matter, which prohibited
recourse to prior oral representations; (3) a claim of unjust enrichment as a quasi-contract
remedy cannot stand when there is an existing contract in place on the identical subject;
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and (4) Dandana failed to properly plead fraud with particularity pursuant to Fed. R. Civ.
P. 9(b). Dandana timely filed this appeal.
II. Discussion
Dandana argues that the District Court erred in granting summary judgment in
favor of Middle East Broadcasting because there were numerous issues of material fact
regarding whether the parties entered into an oral contract on July 29, 2007. Dandana also
argues that the District Court ignored issues of material fact regarding whether the parties
entered into an enforceable contract on May 27, 2008. It contends that the May 27, 2008
agreement is unenforceable since it was never signed by Middle East Broadcasting, and
even if the agreement was an enforceable contract, it covers a different subject matter
than the July 29, 2007 contract.
A party is entitled to summary judgment where “the contract language is
unambiguous and the moving party is entitled to judgment as a matter of law.” Arnold M.
Diamond, Inc. v. Gulf Coast Trailing Co., 180 F.3d 518, 521 (3d Cir. 1999). In order to
grant summary judgment, the court must find “that the contractual language is subject to
only one reasonable interpretation.” Id. 5
A. The July 29, 2007 Agreement
Dandana argues that it entered into a binding oral agreement with Middle East
Broadcasting on July 29, 2007. The District Court found that no enforceable oral contract
was formed at the July 2007 meeting, as there was no manifestation of mutual assent to
the essential terms of the contract. Dandana contends that the existence of a valid and
5
The parties agree that New Jersey law applies to the interpretation of their agreement.
8
binding oral agreement is a question of intent for a jury and is not to be decided on
summary judgment. It finds support for this proposition in McBarron v. Kipling Woods,
LLC, 838 A.2d 490, 492 (N.J. Super. Ct. App. Div. 2004). However, unlike McBarron, in
which an agreement was reached over the telephone, the evidence in the present case
consists of documented emails, which clearly indicate that the essential terms of the
contract were not agreed upon. While Dandana argues that Al Windawee’s email from
July 30, 2007 reflects the parties’ agreement on critical terms, both the email from Al
Windawee and Al Tahwi’s response indicate ongoing negotiations over essential terms of
the agreement. Al Windawee’s email explicitly states that he “looked forward to hav[ing]
an agreement in place,” App. 335, which indicates that the discussions between the
parties were ongoing. Furthermore, Al Tahwi replied to this email with numerous
comments, demonstrating that several outstanding terms had not been agreed upon.
Dandana further argues that the email sent on December 23, 2007 by Al
Windawee to Al Tahwi demonstrates that an oral contract was reached on July 29, 2007.
However, that email states that “we need to discuss and confirm some of the details that I
have listed below,” App. 351, again indicating that certain essential terms, including the
revenue sharing, had not been agreed upon. Lastly, Dandana argues that a letter allegedly
sent by Al Windawee on January 6, 2008 demonstrates that an oral contract was reached
on July 29, 2007. While the parties dispute the authenticity of this letter, see supra note 4,
its authenticity is immaterial, as the letter indicates that the agreement had not been
finalized. See App. 362 (stating “we should finalize our long format agreement after
9
February 29, 2008.”). Thus, the District Court did not err in finding that no enforceable
oral agreement had been entered into on July 2007.
B. The May 27, 2008 Agreement
Dandana argues the May 27, 2008 Agreement is not a valid agreement because
Middle East Broadcasting never signed it. Middle East Broadcasting responds that while
it inadvertently failed to sign, it nonetheless performed its obligation under the
agreement, thereby rendering it an enforceable contract.
Pursuant to New Jersey contract law, as long as the parties agree upon the
essential terms of a settlement, leaving the details to be “fleshed out” in a writing
thereafter, courts will enforce a settlement agreement notwithstanding the absence of a
future writing. Lahue v. Pio Costa, 623 A.2d 775, 788 (N.J. Super. Ct. App. Div. 1993)
(citation omitted). It has long been established that an offer may be accepted by
performance. See Noye v. Hoffman-LaRoche Inc., 570 A.2d 12, 14 (N.J. Super. Ct. App.
Div. 1990); see also United States ex rel. Worthington Pump & Mach. Corp. v. Johnson
Contracting Corp., 139 F.2d 274, 277 (3d. Cir. 1943) (holding that a binding contract
was created when a customer’s order constituting an offer was accepted by a
manufacturer’s performance in furnishing the equipment ordered).
Here, the parties negotiated an agreement over the telephone on May 27, 2008.
After the telephone conference on May 27, 2008, Middle East Broadcasting provided Al
Tahwi with a written agreement, which Al Tahwi signed after making modifications. Al
Tahwi then submitted the agreement along with an invoice for payment of the agreed
upon first lump sum payment of $250,000, noting that payment was based on the May 27,
10
2008 agreement. Middle East Broadcasting subsequently provided payment. Thus, the
performance of the parties demonstrates an acceptance of the written offer on May 27,
2008, and thus an enforceable contract.
Furthermore, the May 27, 2008 agreement contained an integration clause stating
that it supersedes all previous agreements and sets out all of the terms agreed to between
the parties. The agreement also indicates that Al Tahwi was receiving payment
specifically for introducing Dish to Middle East Broadcasting. Consequently, even if
Dandana and Middle East Broadcasting had entered into an enforceable oral agreement
on July 29, 2007, it would have been superseded by the May 27, 2008 agreement. See
Harker v. McKissock, 96 A.2d 660, 665 (N.J. 1953) (“The essence of voluntary
integration is the intentional reduction of the act to a single memorial; and where such is
the case the law deems the writing to be the sole and indisputable repository of the
intention of the parties.”).
C. Unjust Enrichment
Dandana argues that the District Court erred in finding that the May 27, 2008
contract forecloses Dandana’s recovery on claims sounding in contract theories such as
unjust enrichment.
Under New Jersey law, courts consider quasi-contract principles to prevent unjust
enrichment or unconscionable benefit or advantage. See Bergen Cnty. Sewer Auth. v.
Borough of Bergenfield, 361 A.2d 621, 629-30 (N.J. Super. Ct. 1976). Quasi-contract
liability will not be imposed by New Jersey courts, however, if an express contract exists
concerning the identical subject matter. See Van Orman v. Am. Ins. Co., 680 F.2d 301,
11
310 (3d Cir. 1982). The parties are bound by their agreement, and there is no ground for
implying a promise as long as a valid unrescinded contract governs the rights of the
parties. Id.
Under these principles, Dandana’s claim for quasi-contractual liability based on
unjust enrichment fails as a matter of law. The May 27, 2008 agreement between
Dandana and Middle East Broadcasting is a valid unrescinded contract, which sets out the
relative rights and responsibilities of the parties. The agreement states that the services
for which Dandana was being paid include “introducing [Middle East Broadcasting] to
distribution operators in the United States for the purpose of distribution of the Middle
East Broadcasting Channels.” App. 610. Accordingly, the first lump sum payment
Dandana received was compensation for Al Tahwi’s services in introducing Middle East
Broadcasting to Dish. Consequently, the District Court did not err in holding that
“acceptance of the May 27, 2008 contract forecloses recovery on claims sounding in
quasi-contract theories such as unjust enrichment or quantum merit.” App. 22.
Finally, having determined that the District Court did not err in granting Middle
East Broadcasting’s motion for summary judgment, we conclude that it properly
dismissed Dandana’s motion to exclude expert testimony as moot.
III. Conclusion
Accordingly, we will affirm the final judgment and order of the District Court.
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