Full opinion text
COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW A. HOWARD MATZ, Senior District Judge. INTRODUCTION Resolution of the dispute that is at the core of this case should not have required a trial. It is a contract dispute over who has the right to license the Golden Globes Award Show for television broadcast. The parties could have settled their differences even before the complaint was filed. Certainly by the autumn of 2011, after discovery had been completed and the main legal issues fully briefed, they were in a position to promote and protect their respective interests by entering into a reasonable compromise. Indeed, they had preliminarily explored some key concepts that could serve their main objectives. (See Findings of Fact ¶¶ 134-146.) Yet sometimes it does take a trial to enable litigants to reach a compromise, and presiding over the trial was a pleasure for this Court: excellent lawyers on both sides, some colorful witnesses and numerous issues of law. The Court concludes that the defendants, who will be referred to as “dcp” (dick dark productions), are entitled to a declaration that their interpretation of the parties’ agreement is correct, dcp has the right to license the Golden Globes Award Show to NBC (but not to others) so long as NBC commits to broadcast that show, and dcp may do so even without the approval of the Hollywood Foreign Press Association (“HFPA”). What led to this conclusion? The Court specifies the most important factors and principles in the detailed findings of fact and conclusions of law that follow. What the Court is compelled to note here is that there is an overriding feature of the lengthy relationship between dcp and HFPA that helps explain how it came to pass that HFPA granted such sweeping rights to dcp. That feature is simply this: HFPA suffered from the absence of sound, business-like practices. See, e.g., ¶¶ 83, 91 and 156-170. It also lacked consistent leadership. It elected a new President every year for a one year term, with a maximum of two consecutive terms. Some elections triggered bitter feelings. HFPA members have always been dedicated to the success of the Golden Globes Award Show. But often they succumbed to bouts of pronounced turmoil and personal feuds. (See, e.g., Findings of Fact ¶ 356 and fn. 2) In contrast, dcp acted in a consistently business-like fashion, and for almost all of the 27 year relationship it had with HFPA before this suit was filed dcp was represented by one experienced executive who was adept at dealing fairly and effectively with the often amateurish conduct of HFPA. Because HFPA functioned in such an unusual fashion, the emphasis devoted at trial to expert testimony about industry custom and practice proved to be of little, if any, value to the Court. Given that the legal principles applied in this ruling are well-established, it would be surprising if the outcome of this ruling is viewed as a legal precedent. For the story that follows is sui generis. FINDINGS OF FACT I.BACKGROUND 1. Plaintiff Hollywood Foreign Press Association (“HFPA”) is a registered not-for-profit association in California that comprises approximately 80 foreign journalists who cover the entertainment industry. Intellectual property and contractual rights associated with the Golden Globes awards for excellence in film and television are the principal assets of HFPA. The presentation of the Golden Globes Award has generated millions of dollars in annual revenues for the HFPA since the mid-1990s, which are used to fund its operations and charitable giving. (Ex. 789) (Soria Decl. ¶¶ 5-9.) The HFPA and its members expend substantial time and resources to make the Golden Globes Awards Shows successful. (Id., ¶¶ 19-22.) 2. Defendant dick dark productions, inc. (“dcp”) is an independent producer of television programming. It produces shows such as the “American Music Awards,” “So You Think You Can Dance,” and the “Golden Globe Awards.” In that role, dcp produces an event or a program to be broadcast on television and secures a contract with a network or other outlet to broadcast the event or program to viewers. In February 2002, dcp was sold to Mosaic Media Group. In June 2007 the Red Zone defendants purchased dcp from Mosaic Media Group. (In these findings and conclusion, the defendants collectively shall be referred to as “dcp” or “Defendants.”) 3. The Golden Globe Awards show aired on the National Broadcasting Company (“NBC”) in the 1960s, but NBC declined to renew its license. The show aired again on NBC in 1977 and 1978, and again NBC declined to renew its license. The show aired on CBS in 1981 and 1982; CBS declined, however, to renew its license following the 1982 broadcast, and the Golden Globe Awards show was in peril of not being televised in 1983. 4. dcp agreed to become the producer of the Golden Globe Award show after CBS declined to renew its license for the show in 1982. Shortly thereafter, dcp was able to secure a syndication deal for the Golden Globe Awards and the show was televised on local stations throughout the country in 1983. Under agreements with HFPA, dcp has produced and distributed the Golden Globe Awards show and licensed that production for television ever since. The parties split the net profits 50-50. (Soria Decl, Ex. 789, ¶¶ 30, 32; RT 29:14-30:6 (La Maina 1/24/12).) Since 1996, the Golden Globe Awards show has aired on NBC under a long-term license agreement that dcp and NBC entered into in 1993, which dcp and NBC extended in 2001 and 2010. 5. dcp is responsible for the television-production aspects of the show, including writing the script, providing a television director, and managing the technical aspects of the production such as the stage, cameras, lighting, and sound, dcp and HFPA have mutual control in connection with creative matters, but HFPA has final script approval and creative control over the Awards live presentation. (Ex. 789 (Soria Decl. ¶23); RT 77:8-79:23 (La Maina 1/24/12); RT 1661:24-1662:917 (TaklaO’Reilly 2/7/12); Ex. 1; Ex. 5.) 6. HFPA’s bylaws require that all material contracts be approved by the Board of Directors and General Membership. (Ex. 333.0040; Ex. 415:0038; RT 1538:12-21, 1540:16-1541:7 (Van Blaricom 2/3/12).) 7. The principal terms of every production agreement between HFPA and dcp prior to 1993 were discussed and approved by the HFPA Board and/or Membership. (RT 34:16-38:16 (La Maina 1/24/12); RT 485:22-25; 489:8-490:21; 492:1-11 (La Maina 1/26/12); 1983 Agreement: Ex. 100; Ex. 254; 1987 Agreement: Ex. 560.0006; Ex. 328; Ex. 326; Ex. 496.0002; Ex. 322; Ex. 448; Ex. 321; Ex. 319; Ex. 318; Ex. 104.0001, 0003; Ex. 311; Ex. 103; 1989 Agreement: Ex. 154; Ex. 153.) 8. In August 2001, in connection with what became the first extension of the dcpNBC license, dcp executed an exercise of options, directed to HFPA, to produce and distribute the Golden Globe Awards through 2011. Ex. 4. In October 2010, dcp again executed another exercise of options directed to HFPA, which was identical but for the date to the 2001 document, to produce and distribute the Golden Globe Awards through 2018. (Ex. 20.) 9. HFPA claims that dcp had no right to enter into a broadcast license agreement with NBC for any year after 2011 and that the 2010 exercise of options by dcp to extend its agreement with HFPA is invalid. Defendants disagree. They contend that the parties’ agreement, as amended in 1993, permitted both the 2010 extension of the dcp-NBC license and the 2010 exercise of options, just as it permitted the 2001 extension and exercise of options. 10. The crux of the parties’ dispute is whether the 1993 Amendment should be interpreted: (a) to permit dcp to exercise options beyond the eight options specified for the years 1998-2005 upon any “extensions, renewals, substitutions or modifications” of the dcp-NBC license agreement only if HFPA approves of any such “extensions, renewals, substitutions or modifications,” as HFPA contends; (b) to permit dcp to exercise only the eight options specified for the period 1998-2005 during that time or thereafter only in the event of a force majeure event, as HFPA alternatively contends; (c) to permit HFPA to revoke any options granted in the 1993 Amendment, as HFPA alternatively contends; or instead (d) to permit dcp to exercise options beyond the eight specified for the years 1998-2005 upon any “extensions, renewals, substitutions or modifications” of the dcp-NBC license agreement even without HFPA’s approval, as Defendants contend. 11. This action was commenced by HFPA on November 17, 2010 (Dkt. No. 1), and an amended complaint was filed on March 9, 2011 (Dkt. No. 50). Defendant dcp filed counterclaims for declaratory relief on March 28, 2011. (Dkt. No. 53.) 12. Pursuant to Court order (Dkt. No. 38), the case was bifurcated on February 21, 2011. Phase I is limited to: “[ijnterpretation of and declaratory relief or equitable relief (e.g., reformation) as to who has the rights and/or options under the parties’ 1987 ‘Golden Globe Awards’ Agreement, as amended, to produce and license the television broadcast of the Golden Globe Awards Show after 2011.” 13. Both parties filed motions for summary judgment. On August 8, 2011, Judge Fairbank granted Defendants’ motion with respect to HFPA’s reformation claim, ruling that the claim is barred by the statute of limitations. (See Dkt. No. 182 at 1-2, 5.) 14. Based on these findings of fact and conclusions of law, HFPA’s claim for declaratory relief is denied, and Defendants’ claim for declaratory relief is granted. The Court finds that, pursuant to the 1993 Amendment of the 1987 Agreement, (a) dcp has the rights to produce and distribute the Golden Globe Awards show through the current term of the dcp-NBC Agreement (2018) and (b) dcp also has irrevocable options granted by HFPA to do so for any further “extensions, renewals, substitutions or modifications of the NBC Agreement,” with or without HFPA’s approval. (See Exs. 3, 576.) II. THE SURROUNDING CIRCUMSTANCES AND THE PARTIES’ COURSE OF DEALING PRIOR TO EXECUTION OF THE 1993 AMENDMENT A. The 1983 Agreement Between dcp And HFPA 15. At the commencement of the HFPA/dcp relationship, the parties shared the objective of getting the Golden Globe Awards show back onto, and maintaining it on, a national broadcast network. (RT 367:13-368:23, 382:14-23, (La Maina 1/25/12); RT 1188:1-8 (Berk 2/1/12); RT 1078:20-25 (Orlin 2/1/12); RT 1568:10-15, 1618:2-1619:6, 1631:13-1632:1 (Van Blarieom 2/3/12).) 16. In January and February 1983, HFPA and dcp entered into and documented an agreement in which HFPA granted dcp the right to produce and distribute the January 1983 Golden Globe Awards show and four (4) consecutive, exclusive, and irrevocable options to produce and distribute the 1984, 1985, 1986, and 1987 Awards shows. The agreement is dated “as of’ January 7, 1983, revised January 19, 1983, January 27, 1983, and February 28,1983 (the “1983 Agreement”). (Exs. 5 (agreement), 203; RT 361:12-364:2 (La Maina 1/25/12).) dcp did not receive what the parties referred to as “end-of-the-deal protection,” such as rights of first negotiation and first refusal. (RT 357:21-360:6 (La Maina 1/25/12).) (These terms are defined or described below, in ¶ 18.) B. The 1987 Agreement Between dcp And HFPA 17. On July 20, 1987, HFPA and dcp entered into an agreement by which HFPA granted dcp five (5) consecutive, exclusive, and irrevocable options to produce and distribute the Golden Globe Awards show for the years 1988 through 1992. The agreement is dated “as of’ March 13, 1987, revised July 15, 1987 (the “1987 Agreement”). (Ex. 1 (agreement); RT 370:15-372:4 (La Maina 1/25/12).) 18. In the 1987 Agreement, dcp sought and obtained end-of-the-deal protection in the form of rights of first negotiation and first refusal. Specifically, Paragraph 1(a) of the 1987 Agreement provides that, if dcp has exercised all of its options under the agreement, dcp and HFPA must enter a 30-day exclusive Negotiating Period 30 days “after the date of first broadcast of the 1992 Awards Presentation.” (Ex. 1.) This is the “right of first negotiation.” Paragraph 1(b) of the 1987 Agreement provides that if the parties do not reach an agreement during the Negotiating Period HFPA could offer rights to the show to another party, but not on terms less favorable than dcp’s last offer, and only after it gives dcp a right to accept those terms. This is referred to as dcp’s right of first refusal and it was to be “applicable until such time as HFPA shall have entered into an agreement with a third party pursuant to all of the foregoing provisions or July 15, 1992, whichever first occurs.” (Ex. 1.) These two provisions were the subject of negotiations between dcp and HFPA prior to the execution of the 1987 Agreement. (Exs. 81, 103, 316; RT 372:6-13 (La Maina 1/25/12).) 19. Paragraph 6 of the 1987 Agreement addresses “creative control” over the show and provides that HFPA shall have creative control unless dcp licenses the show for national television network broadcast, in which case “dcp and HFPA shall have mutual creative control .... ” (Ex. 1; RT 372:14-18 (La Maina 1/25/12).) 20. (a) Paragraph 7 of the 1987 Agreement — which relates to “television production aspects” of the Golden Globe Awards and identifies dcp’s rights with respect to distribution and exploitation of its “television production(s)” — provides that dcp alone shall “have control over all matters relating to the distribution and exploitation of the rights granted to it pursuant to this agreement.” (Ex. 1; RT 372:19-373:7 (La Maina 1/25/12).) (b) Paragraph 9 of the 1987 Agreement provides that dcp will “provide copies of all contracts relating to the exercise of its rights pursuant to this agreement to a designated representative of HFPA for informational purposes ____” (Ex. 1; RT 373:8-374:3 (La Maina 1/25/12).) 21. The 1987 Agreement expressly provides HFPA a right of “prior approval” in Paragraph 10, but that approval right is limited to dcp’s issuance of publicity relating to the show. (Ex. 1; RT 374:4-11 (La Maina 1/25/12).) 22. Paragraph 19 of the 1987 Agreement states: “This agreement contains the entire agreement of the parties, supersedes all prior negotiations and/or agreements, and may only be or amended or modified by written instrument signed by the party to be charged. Neither party has entered into this agreement in reliance upon any promise or representation not contained in this agreement.” (Ex. 1.) 23. In 1988, dcp secured an agreement with the national cable network TBS for a significantly higher license fee than had been available during the years of syndication. In that agreement, dcp granted TBS rights to televise the Golden Globes Award Show for two additional years (1991 and 1992). The agreement is dated June 17, 1988. (Ex. 150.) 24. In a letter to the HFPA Board dated August 30,1988, Philip Berk, a longtime and key member of HFPA, wrote, in relevant part: “Of course we are indebted to Dick Clark for rescuing the Golden Globe Show in its darkest hours, but by the same token we shouldn’t allow ourselves to be taken advantage of. Perhaps we acted too hastily in giving Dick Clark a blanket endorsement of the Turner agreement. We might have asked for tentative approval and additional time to study the deal before we gave them carte blanche. I trust that our unanimous vote is not legal and binding.” (Ex. 641.) Although there is no evidence that Berk or the HFPA actually took further steps to repudiate HFPA’s consent to the TBS-dcp agreement, this communication is an early example of the unorthodox manner in which some of HFPA’s key representatives sometimes acted in their dealings with dcp. C. The 1989 Agreement Between dcp And HFPA 25. In November 1989 dcp and TBS arranged to enter into another agreement. The 1989 dcp-TBS Agreement provided TBS with rights to televise the show through 1995. Under the 1987 Agreement, however, dcp had options to produce and distribute the Golden Globe Awards only through 1992. To allow dcp to enter into and execute the 1989 TBS Agreement, HFPA and dcp entered into an amendment to the 1987 Agreement, dated November 18, 1989, by which HFPA granted dcp five (5) additional options to produce and distribute the Golden Globe Awards show for the years 1993 through 1997. The amendment is dated November 13, 1989 (the “1989 Amendment”). (Ex. 2 (agreement); RT 380:21-382:23 (La Maina 1/25/12).) 26. On November 6, 1989, a meeting of the HFPA Membership was held, dcp representatives were present, and HFPA’s agreement with dcp was discussed. (Ex. 154.) At that meeting, HFPA’s President stated that “[t]he [1989] agreement would essentially be the same terms as the last contract,” and a vote was then taken by the Membership without the Membership having reviewed the written agreement. (Exs. 154, 789 (Soria Decl. ¶35 (“The members were not shown a copy of the 1989 amendment).”).) The members approved the agreement. 27. Consistent with HFPA’s usual practice, the membership approval of the 1989 Amendment took place outside the presence of dcp. (Ex. 154; RT 1261:13-1262:10 (Berk 2/2/12).) 28. In the 1989 Amendment, as in 1987, dcp secured end-of-the-deal protections. They provided that dcp would continue to have rights of first negotiation and first refusal. The 1989 Amendment modified the 1987 Agreement (and the rights of first negotiation and first refusal granted there) as follows: “This will also confirm that the reference in Paragraph 1(a) to '1992’ shall be changed to '1997’ and the reference to July 15, 1992 in Paragraph 1(b) of the Agreement shall be changed to ‘July 15, 1997.’ ” (Ex. 2.) In addition, ■ the 1989 Amendment provided dcp with options sufficient to cover dcp’s grant of rights to TBS under the 1989 TBS Agreement and two additional options for the years 1996 and 1997. (Ex. 2; RT 70:19-73:5 (La Maina 1/24/12); RT 380:21-382:23 (La Maina 1/25/12).) The 1989 Amendment provides: “Except as stated above, all of the terms of the [1987] Agreement shall remain in full force and effect.” (Ex. 2.) III. THE 1993 AMENDMENT AND THE EXTENSIONS CLAUSE A. dcp Secures An Agreement For The Golden Globe Awards To Air On NBC 29. In 1993, with four years still remaining on its contract with HFPA, dcp informed HFPA of an opportunity to secure a network broadcast license for the Golden Globe Awards show. (Ex. 157; RT 72:18-73:23, 76:15-77:7 (La Maina 1/24/12).) 30. In April 1993, dcp asked HFPA’s Board to grant it five additional annual options so it could pursue that opportunity. The HFPA declined to grant additional options up front (Ex. 160) but HFPA did authorize dcp to “go ahead with negotiations for the purpose of obtaining a multiyear contract for the Golden Globe Awards Show with a television network” and stated that, “if such a contract is achieved through [dcp’s] efforts, [dcp’s] contract with the Hollywood Foreign Press Association will be renewed to cover the number of years with the network.” (Exs. 105, 179.) 31. On May 3,1993, in a letter to active HFPA members, HFPA’s President asked those members to indicate their approval of the Board’s decision authorizing dcp to “research the possibilities of a more favorable deal for our Golden Globe Awards— and, if such a deal is made with a network, to extend the contract with the said production company [ie., dcp] to cover the network contract.” (Ex. 6.) 32. From April to September 1993, dcp and NBC negotiated the terms of a proposed broadcast license agreement whereby NBC would agree to license the rights to broadcast three Golden Globe Awards shows for the years 1996 through 1998, with an option in favor of NBC to broadcast three additional shows for the years 1999 through 2001, and, if that option were exercised, an additional option in favor of NBC to broadcast four additional shows for the years 2002 through 2005 (the “dcpNBC Agreement”). (Exs. 158, 177.) If NBC exercised both options, it would have a right of first negotiation and first refusal to seek to obtain continued broadcast rights to the Golden Globe Awards show beyond 2005. (Exs. 38, 575.) The proposed 3-3-4 broadcast license could be accelerated two years if TBS relinquished its rights to televise the 1994 and 1995 Shows. (RT 146:16-147:4 (La Maina 1/24/12); Ex. 177.0004.) Thus, the proposed broadcast license was subject to many permutations. It could begin in 1994 or 1996. It could run three years if NBC exercised no option, six years if NBC exercised only its first option, and 10 years if NBC exercised both of its options. (Exs. 110.0004-05, 177; RT 107:8-108:23 (La Maina 1/24/12).) Accordingly, NBC’s commitment to televise the show could expire as early as 1996 (if the contract was accelerated to 1994 and NBC did not exercise any options) and as late as 2005 (if the contract commenced in 1996 and NBC exercised both of its options). (Exs. 110.0004-05, 177; RT 146:16-147:4 (La Maina 1/24/12).) 33. On September 2, 1993, meetings of the HFPA Membership and Board were held. The status of the dcp-NBC negotiations regarding a proposed agreement was discussed. (Exs. 7 (“She [Mirjana Van Blaricom, who was HFPA’s President at the time] said NBC network is in negotiations with Dick Clark Productions ... Dick Clark and the board of directors will discuss the details and it will be brought to the membership” and reflecting that “[q]uite a number of members participated in the discussion of the NBC Golden Globe Award subject.”), 107 (“She said in the very near future there will be a meeting of the General Membership with Dick Clark Production to discuss the NBC network —- Golden Globe Award deal.”); RT 1554:15-1555:8, 1619:7-1621:12 (Van Blaricom 2/3/12).) The future meeting Van Blaricom referred to was held on September 22,1993. B. The September 22,1993 Meeting 34. A most unusual feature of this contract dispute is that there is an undisputed verbatim transcript of the September 22, 1993 HFPA Members meeting that La Maina attended. (Ex. 110.) Understandably, the parties attach critical importance to what was said — and not said — at that meeting, and they referred to the transcript in their extensive questioning of the several trial witnesses who were there: La Maina, Berk, Orlin, Soria and Van Blaricom. Both sides agree that what the transcript reflects is relevant to understanding the very language of the 1993 Amendment, the parties’ respective communicated intent, and the object and nature of the 1993 Amendment. 35. Certain aspects of the September 22, 1993 meeting bear on the degree to which it supports or refutes each side’s contentions. (a) First, Dick Clark was present and he spoke enthusiastically (and with no small amount of pride) about the breakthrough dcp had achieved in the proposed NBC deal. Ex. 110, p. 9. It is highly likely that for many of the HFPA attendees, whose professional Uves revolved around the personalities and lives of celebrities, Clark’s very presence induced or fueled a sense of euphoria. The potential deal with NBC — a multi-year network commitment for the Golden Globes Award Show, after so many years of second-tier broadcasts — was extremely important and exciting to HFPA. (b) Second, both before and after the statements that the Court has summarized below were made, many of the HFPA members spent inordinate amounts of time focusing on trivial matters. They fussed about the start time for the broadcasts; the length of the show (2 v. 3 hours); the format (how much entertainment? dinner setting v. theatre?); what day of the week the show would be broadcast; and whether to serve soup or caviar (p. 19), etc. Moreover, they bickered about whether members were hogging the floor (p. 16). This unbusinesslike display of misplaced priorities was characteristic of how HFPA often functioned throughout the years, and it is consistent with the inference — which this Court draws — that on September 22, 1993 most of the HFPA members were far less interested in the terms of the dcp-HFPA contract that La Maina left behind for them to review than they were with the heady prospect of being on NBC. This is confirmed persuasively by the testimony of Van Blaricom, who stressed that — referring to the fact that HFPA’s previous deal with CBS had been cancelled — the members’ biggest concern was “not to be can-celled; that we behave.” (RT 1626:6 (Van Blaricom 2/3/12).) (c) Third, La Maina indicated that he understood that the HFPA members looked to him to provide full and accurate information. (RT 173:2-11; 183:22-184:11 (La Maina 1/24/12).) Although La Maina described the principal terms of the “NBC Agreement” he did not provide HFPA with a copy of the dcp-NBC agreement. (As is shown below, however, he did leave copies of the amendment to the dcp-HFPA Agreement that dcp sought.) (d) Fourth, although there are references to the 1993 Amendment in the transcript of the September 22, 1993 meeting, nowhere does any witness actually recite any of the language in that agreement. At trial, counsel sought to have the witnesses who were present on September 22, 1993 give testimony supportive of their respeetive side’s position on the meaning of the extensions clause. While that questioning was entirely appropriate, the September 22, 1993 meeting occurred more than 18 years ago. To the extent that witnesses were, in essence, being asked to go beyond the transcript and recount from their memories what they believed was “really going on,” the Court finds that such testimony is of limited value, especially the testimony of the HFPA witnesses (as opposed to La Maina throughout his stint on the stand, who was the most consistently credible witness). 36. In any event, the Court finds that in the transcript (Ex. 110) each side can point to statements that support its contentions about the 1993 Amendment. Here is a summary. Item Speaker Statement Original Transcript Page La Maina NBC contract not firm for 10 years. 3 + 3 + 11 4. “A ten year term if they [NBC] exercise all their options.” “Avik” You [dcp] negotiate [with NBC] and you tell us and we more or less deal with you. 15 La Maina And always subject to your approval. 15 4 La Maina I’m asking that the contract be extended for 18 the period of time necessary to fulfill the NBC agreement. Jean It sounds fair.18 Orlin The integrity of the show and the financial terms both sound very advantageous to us, but. . . “How long are we associated with Dick Clark Productions?” 20 6 Orlin “. . . how is our tie-in with Dick Clark working?” 20 La Maina . . we’re asking you to extend our contract 20 for as long as necessary to satisfy the NBC term and not longer than that... I hope it’s ten years.” 8 La Maina “Our deal with NBC is finished. This is as a 21 result of six months negotiation guaranteed so long as you say it’s a deal.” Berk “I’m 100% for it.” 21 Van Blarieom “What you should understand. Dick Clark is 21 us. We do share everything with them so whatever they sign; whatever they get we get half of it so it’s in their interest to achieve the best deal so you should understand it’s the same like (Inaudible). Their signing is like our signing.” La Maina ‘Tes.” 21 La Maina “The sequence of events that everyone 23 understands is you execute an amendment with us that says we extend Dick Clark for as long as necessary to fulfill the NBC deal. The minute that’s signed, I sign an NBC contract and we’re finished.” 10 Van Blarieom “Let’s — who approves of their presentation 26 can raise their hands so these guys can go ahead and — with the presentation. Who approves and that they go ahead and they _have to sign. Approve the contract.”_ 11 La Maina “We need a — all right. Let me do it again. We 26 need a — we need a verbal approval right now _to close onr deal with NBC.”_ 12 La Maina “So we — we now have a favorable approval to 26 close our deal with NBC. The second thing we have — unanimous. The second thing we need is a formal extension of our contract. The minute that’s signed, I sign the NBC deal and we’re finished so you now have the papers to discuss with your attorneys or whoever you’d like to _discuss them with.”_ 13 “Yani” “To make it for the record, could we have a 27 signed . . . instead of a verbal?” Van Blarieom “Everybody can just put a yes on a sign-in sheet by their name. Everybody put yes. _Okay?_ 14 The sign-in sheet (Ex. Ill) contained 31 outright “yes” votes and two “yes” votes with not entirely legible qualifications. No one _ voted “no.”_ 37. Items 1 and 7 of the foregoing summary support Plaintiffs contention that the separately-executed 1993 Amendment must be interpreted to have had a maximum ten year duration. In addition, items 4 and 9 could be viewed as consistent with that construction, given La Mama’s statements in items 1 and 7. Moreover, item 3 supports Plaintiffs contention that HFPA did not give up its right of approval over any deal with NBC (or any entity, for that matter) that dep may have negotiated. 38. On the other hand, items 2, 4 and 9 support dep’s view that so long as there was or would be an NBC deal, dep could not and would not be put out of or kept out of the picture. Moreover, items 5 and 8 reflect just how pleased HFPA was with the deal that dep had secured from NBC, and items 10 and 13 show that the huge benefits of that deal were far more important to almost all of the members than were the precise terms or duration of the “papers” that La Maina was leaving for them to discuss with their attorneys (item 12). In addition, that La Maina understood and accepted that the membership had to approve those papers, and that he was perfectly receptive to having the membership discuss those papers in his absence and with their own attorneys, utterly refutes the notion that he or dep were intent on deceiving HFPA or taking advantage of it. Finally, La Mama’s comments in items 11 and 12 indicate that the deal with NBC was approved orally before he left the meeting. 39.HFPA’s then-president Van Blaricom testified that on September 22, 1993 the HFPA members continued to meet after La Maina left, that the 1993 Amendment was read and explained to members, (it is not clear whether it was read “by” or read “to” them), and that a half-hour discussion ensued. (RT 1601:11-17; 1602:13-15 (Van Blarieom 2/13/12).) Van Blarieom further testified that while the specific scenario of dep extending the NBC deal without HFPA’s knowledge or consent was not then discussed, what was said did reflect an understanding by the members that as long as dcp kept the show on NBC, dcp had the rights to the show. (“It was like till death do us part. Nobody is — we’re all happy that we had a deal. We had nothing at that point.”) (RT 1605:17-1606:3 (Van Blaricom 2/3/12).) 40. Van Blaricom has a long history of animus towards and bias against HFPA stemming from her separation from HFPA in the mid-1990s. In 1994, the HFPA determined that Van Blaricom had violated HFPA rules and standards by taking HFPA funds without approval and by secretly invoicing and accepting payment from dcp without approval. (Exs. 346, 497, 629, 702; 789 (Soria Deck ¶ 51).) Van Blaricom was later expelled from the HFPA, unsuccessfully sued for reinstatement, established a rival international press organization, and threatened publicly to embarrass HFPA. (Exs. 348, 349, 350, 351, 626, 789 (Soria Deck ¶52).) (See ¶¶ 158-160.) 41. Van Blaricom’s grievances concerning HFPA were evident in her trial testimony, and her testimony about this membership discussion on September 22, 1993 was not corroborated by any other HFPA member who was present nor by any documentation. Nevertheless, her demeanor, the post-September 22, 1993 circumstances described below and the behavior of the HFPA members reflected in Exhibit 110 and discussed above make this portion of her testimony plausible. 42. Prior to or during the September 22, 1993 meeting, dcp provided HFPA three copies of the 1993 amendment to the 1987 Agreement that it had drafted. All were signed by La Maina on behalf of dcp and given to Van Blaricom. (Exs. 3, 110, 111, 506, 577; RT 395:24-396:5; 396:21-397:20 (La Maina 1/25/12); RT 1573:9-12; 1574:14-1575:24 (Van Blaricom 2/3/12).) As noted above, La Maina told the Membership at the September 22, 1993 meeting: “so you now have the papers to discuss with your attorneys or whoever you’d like to discuss them with.” (Ex. 110 at 26.) ■ 43. There is no evidence that at the September 22, 1993 discussion following La Mama’s departure that Van Blaricom testified about, she distributed copies of the 1993 Amendment that La Maina left behind at the meeting, either to the HFPA Board or to the Membership. But even if the document was not distributed at that time, it was viewed soon thereafter by some HFPA members and accessible to all of them, as the following findings demonstrate. C. 1993 Events Post-September 22 44. On September 24, 1993, La Maina and Van Blaricom spoke, and, at Van Blaricom’s request, La Maina recommended three experienced entertainment attorneys to Van Blaricom. (Ex. 344.) 45. On September 24, 1993, Van Blaricom, as President of HFPA, placed and dated her signature on the 1993 Amendment, “9241993.” (Exs. 3 (agreement), 577, 648; RT 1589:18-20 (Van Blaricom 2/3/12).) Van Blaricom returned the countersigned 1993 Amendment to dcp five days later, on September 29, 1993. (RT 1590:1-11, 1593:6-1601:10 (Van Blaricom 2/3/12); RT 400:2-16 (La Maina 1/25/12).) 46. Van Blaricom signed and dated two of the three copies of the 1993 Amendment. She returned one copy to dcp (Ex. 577) and kept one copy in HFPA’s flies (Ex. 3). 47. Before Van Blaricom returned an executed copy of the 1993 Amendment to dcp, she consulted with Eric Weissmann (who was not one of the lawyers recommended by La Maina) of the law firm of Weissmann, Wolff, Bergman, Coleman & Silverman. (Ex. 794 (4/26/11 Van Blaricom Decl., Dkt. No. 270-1, ¶ 6); RT 1590:1-11, 1592:2-14, 1593:6-1601:17, 1622:25-1624:15 (Van Blaricom 2/3/12).) On September 27, 1993, Van Blaricom left a message with a secretary of attorney Weissmann. (Ex. 502.) Then, on September 29, 1993, Weissmann and Van Blaricom met for approximately 30 minutes. (Ex. 503.) 48. Weissmann was a highly respected, sophisticated entertainment attorney. (RT 400:17-401:7 (La Maina 1/25/12); RT 1582:9-1583:6, 1622:25-1623:9 (Van Blaricom 2/3/12).) 49. At or before the September 29, 1993 meeting with Weissmann, Van Blaricom gave him the third copy of the 1993 Amendment, which was executed by dcp, but not HFPA. (Ex. 506 (copy of 1993 Amendment produced from files of Weissmann Wolff); RT 1598:19-1600:4, 1623:12-1624:15 (Van Blaricom 2/3/12).) 50. After meeting with Weissman, Van Blaricom returned the countersigned 1993 Amendment to dcp’s President (La Maina). (Ex. 180; RT 400:2-16 (La Maina 1/25/12); RT 1593:18-25, 1601:4-10 (Van Blaricom 2/3/12).) However, Weissmann did not testify at trial, and other than Van Blaricom’s testimony that she did not return the contract to La Maina until “when I got okay from Eric Weissman”, (RT 1593:10-20), (Van Blaricom 2/3/12), there is no evidence that he reviewed the 1993 Amendment with Van Blaricom before she returned it, with her signature affixed, to La Maina. 51. Prior to trial, La Maina had never seen HFPA’s bylaws. (RT 479:5-9 (La Maina 1/26/12).) Nevertheless, La Maina was aware that Board or Membership approval of contracts was required, but not how it was given. (RT 192:10-12 (La Maina 1/24/12).) 52. When La Maina received the countersigned 1993 Amendment (Ex. 180), he reasonably believed that all necessary conditions for Van Blaricom’s execution of the document had been satisfied and that she had authority to execute the document. RT 222:24-223:16 (La Maina 1/24/12); (La Maina 1/25/12); RT 492:25-494:13 (La Maina 1/26/12). Indeed, Van Blaricom’s actions in this instance (ie., signing the agreement in her capacity as President of HFPA) were consistent with La Maina’s prior dealings with HFPA, where he relied on the signature of the designated HFPA representative as confirmation that all necessary internal steps had been taken by HFPA to permit it to enter into an agreement with dcp. (RT 35:19-39:3, 154:22-155:16 (La Maina 1/24/12); RT 442:3-443:3 (La Maina 1/26/12).) At the time he received the countersigned 1993 Amendment from HFPA, La Maina also had reason to believe that Van Blaricom had consulted with counsel, given his recommendation that she do so. (Ex. 344; RT 396:15-401:13 (La Maina 1/25/12).) In any event, La Maina did not consider the 1993 Amendment “approved” until he received the signed copy of the amendment from Van Blaricom. (RT 492:25-495:5 (La Maina 1/26/12).) 53. After receiving the countersigned 1993 Amendment from Van Blaricom on September 29, 1993, La Maina sent a letter to Van Blaricom thanking her for sending the executed 1993 Amendment “as authorized by [HFPA’s] membership ----” He informed Van Blaricom that “based on that extension [i.e., the 1993 Amendment], we have executed the NBC agreement.” In this letter he also mentioned that he understood Weissmann was functioning as HFPA’s lawyer. (Ex. 180.) 54. There is no evidence that before 2002 — more than eight years later — any representative of HFPA ever contacted dcp to correct or contradict the statement in La Mama’s September 29, 1993 letter (Ex. 180) that the executed 1993 Amendment was “authorized by [HFPA’s] membership.” (RT 421:12-18 (La Maina 1/25/12).) 55. Van Blaricom had kept the HFPA membership apprised of developments regarding both the proposed dcp deal with NBC and the HFPA/dep relationship, including dcp’s desire to continue to produce and distribute the Golden Globe Awards so long as it remained on NBC, both before and after September 22, 1993. (RT 1554:2-1556:3, 1564:10-1565:15, 1566:9-18, 1577:18-1578:9, 1596:24-1597:4, 1601:4-1608:21 (“... and members understood it perfectly — as long as Dick Clark keep us on NBC, he have right to show. It was like till death do us part ....”), 1617:14-1621:12, 1624:24-1626:6 (Van Blaricom 2/3/12).) The Membership’s primary concern at the time was to remain on the network. (RT 1578:15-25, 1618:18-1619:6, 1625:24-1626:6 (Van Blaricom 2/3/12).) 56. Van Blaricom reasonably believed she was authorized to execute the 1993 Amendment based on the meetings on September 22, 1993 (RT 1569:20-1572:22, 1589:1-10, 1609:6-1610:13 (Van Blaricom 2/3/12)), and on the communications she had with HFPA members that preceded September 22, 1993 (RT 1554:2-1556:3, 1564:10-1565:15, 1566:9-18, 1577:18-1578:9, 1596:24-1597:4 1601:4-1608:21, 1624:24-1626:6, 1617:14-1621:12 (Van Blaricom 2/3/12)). 57. On October 1, 1993, NBC delivered to dcp an executed copy of the dcp-NBC Agreement, which granted NBC rights to broadcast three Golden Globe Awards shows for the years 1996 through 1998, an option to broadcast three additional shows for the years 1999 through 2001, and, if that option were exercised, an additional option to broadcast four additional shows for the years 2002 through 2005. The agreement provided that, if NBC exercised both options (for a 10-year commitment), it would have rights of first negotiation and first refusal for continued broadcast rights to the Golden Globe Awards beyond 2005. (Ex. 575.) The dcp-NBC Agreement is dated “as of’ September 9, 1993, as revised September 24, 1993. (Ex. 575.) 58. Unbeknownst to dcp, on October 5, 1993, HFPA member Ika Panajotovic, who now is deceased, wrote to Van Blaricom, expressing concerns about the 1993 Amendment and suggesting that “the entire membership should be given a copy of the written proposal to evaluate, agree and/or not agree by voting, or to improve on the deal by saying ‘yes’ or ‘no’ or by a legal fax” and that “HFPA should not sign a one sided long term deal unless it is irrevocably guaranteed for three years.” (Ex. 8.) Given that this document is the only piece of written evidence from 1993 reflecting a concern by an HFPA member about the terms of the 1993 Amendment, it is telling that what Panajotovic was concerned about was not the duration of the agreement, but whether HFPA could obtain an assurance that NBC would not pull out. 59. On October 5, 1993, HFPA’s attorney, Weissmann, met with HFPA representatives. Panajotovic was unable to attend the meeting. (Exs. 8, 504; RT 1587:16-1589:10 (Van Blaricom 2/3/12).) 60. On October 7, 1993, a meeting of the HFPA Membership was held. This time Panajotovic was there. The dcpNBC Agreement and HFPA’s agreement with dcp were discussed among other things, and “a detailed explanation” of the relationship with dcp was given. No one from HFPA questioned or disaffirmed the 1993 Amendment. (Ex. 263-2; RT 1624:16-1626:6 (Van Blaricom 2/3/12).) 61. On October 12, 1993, dcp sent HFPA’s attorney (Weissmann) executed copies of the 1993 Amendment, the 1989 Amendment, the 1987 Agreement, the dcpNBC Agreement, and the dcp-TBS agreements. (Ex. 676; RT 421:19-422:21. (La Maina 1/25/12).) D. The Negotiation, Drafting And Execution Of The 1993 Amendment 62. In conjunction with dcp’s negotiations with NBC in 1993, dcp and HFPA agreed on an amendment to the 1987 Agreement (as amended by the 1989 Amendment). The entire text of the 1993 Amendment (Ex. 3) is attached to this document as Exhibit 2. 63. (a) The 1993 Amendment provides, in relevant part: “This will confirm that the Agreement [between dcp and HFPA] is hereby further amended to provide that HFPA grants to dcp eight (8) additional, consecutive, exclusive, and irrevocable options to acquire the exclusive right to produce a live television broadcast of and to produce on tape or film the Awards for each of the years 1998 through and including 2005, and/or any extensions, renewals, substitutions or modifications of the NBC Agreement, and to exploit such productions in all media throughout the world in perpetuity.” The emphasized language is referred to as the “extensions clause.” (b)The 1993 Amendment also modified Paragraph 1(a) of the 1987 Agreement, as amended by the 1989 Amendment, as follows: “This will also confirm that the reference to '1997’ in Paragraph 1(a) of the Agreement as amended shall be changed to, '2005, or the date of the broadcast of the last Awards under the NBC Agreement, whichever is later ... ’ ” (Exs. 3, 577.) Paragraph 1(a) of the 1987 Agreement had originally provided that, if dcp has exercised all of its options under the agreement, dcp and HFPA would enter a 30-day exclusive Negotiating Period 30 days “after the date of first broadcast of the 1992 Awards Presentation.” (Ex. 1; RT 386:11-387:13 (La Maina 1/25/12).) (c) The 1993 Amendment also modified Paragraph 1(b) of the 1987 Agreement, as amended by the 1989 Amendment, as follows: “This will also confirm that the reference to ‘July 15, 1997’ in Paragraph 1(b) of the Agreement as amended shall be changed to read: ‘July 15, 2005, or July 15 after the last broadcast of the Awards under the NBC Agreement, whichever is later.’ ” (Exs. 3, 577.) Paragraph 1(b) of the 1987 Agreement had originally provided that, after the Negotiating Period, dcp’s right of first refusal “shall be applicable until such time as HFPA shall have entered into an agreement with a third party pursuant to all of the foregoing provisions or July 15, 1992, whichever first occurs.” (Ex. 1; RT 386:11-387:13 (La Maina 1/25/12).) (d) The 1993 Amendment provides that “[e]xcept as stated above, all of the terms of the [1987 Agreement, as amended] shall remain in full force and effect.” (Exs. 3, 577.) 64. Unlike in 1983, 1987 and 1989, although La Maina and Van Blaricom discussed the 1993 amendment with each other (see below), the parties did not exchange drafts or written communications about the specific language of the 1993 Amendment, dcp drafted that document. (RT 134:1-138:7) (La Maina 1/24/12). 65. La Maina told Van Blaricom (in his words): “Hey Mirjana, you know, if we’re successful on NBC, we don’t — we don’t— we do not want to be cut out of the deal. We want to be part of the future of the show.” (RT 122:4-24 (La Maina 1/24/12); see also RT 155:22-156:15 (La Maina 1/24/12).) La Maina could not remember dates or provide other specific details concerning what he said to Van Blaricom or what she said to him. When asked whether he could remember anything more about their conversation beyond what he described, La Maina indicated he did not recall anything else. La Maina admitted that, whatever was said, he did not understand his conversation with Van Blaricom to have resulted in a binding contract. (RT 122:4-123:2, 124:2^ (La Maina 1/24/12).) 66. La Maina and Van Blaricom both testified that the extensions clause was put in the 1993 Amendment to ensure that dcp would remain the producer and distributor of the Golden Globe Awards show on the terms set forth in the 1987 Agreement for as long as the show was broadcast on NBC. (Ex. 794 (4/26/11 Van Blaricom Decl., Dkt. No. 270-1, ¶¶ 6-7); RT 122:4-123:11, 123:21-25; 155:22-156:15 (La Maina 1/24/12); RT 1605:17-1606:3, 1607:18-1608:2, 1616:22-1617:8 (Van Blaricom 2/3/12).) 67. La Maina also admitted he never discussed with Van Blaricom the actual words of the so-called “extensions clause” in the 1993 Amendment, nor did he disclose that, under his view, dcp would have the unilateral discretion to extend, renew, substitute, or modify the broadcast license with NBC on whatever terms and for whatever duration it deemed appropriate, without HFPA’s knowledge or participation, and even over HFPA’s strenuous objection. (RT 135:5-22; 151:17-153:20; 156:16-157:3; 192:10-193:4 (La Maina 1/24/12).) 68. The 1993 Amendment was drafted “in-house” by dcp, with the assistance of its outside counsel, Joel Behr, who was the source for the “extensions clause.” (Ex. 790 (Behr Decl. ¶7); RT 138:21-140:10, 143:4-23 (La Maina 1/24/12); RT 1770:4-1774:3 (Behr 2/7/12).) Behr was familiar with extensions clauses, as he had seen them in contracts between “talent” (e.g., actors, musicians, producers) and talent agents or talent agencies (e.g., William Morris, Creative Artists Agency, International Creative Management). The language Behr supplied for use in the 1993 Amendment (ie., the extensions clause) was taken from a talent agency contract that was located in the office of the law firm at which he was employed in 1993. (Ex. 790 (Behr Decl. ¶ 7).) 69. Behr’s understanding at the time he supplied the wording of the extensions clause for the 1993 Amendment and at all times thereafter was as follows: A talent agency contract enables a talent agency to negotiate and procure employment on behalf of the agency’s client. In return, the talent agency receives a commission on the employment contracts it secures on behalf of its client during the term of the talent agency contract. If there is an extensions clause in the talent agency contract, the talent agency receives a commission on monies earned under any extension, renewal, substitution, or modification of those employment contracts secured by the agency during the term of the talent agency contract, whether such extensions, renewals, substitutions, or modifications were entered into during or after the term of the talent agency contract. (Ex. 790 (Behr Decl. ¶ 8).) An extensions clause protects the talent agency and ensures that it enjoys the full benefit of the relationship that it generated for the client. Behr’s understanding was consistent with industry custom and practice with respect to the use of extensions clauses in talent agency contracts, as outlined below. (Ex. 790 (Behr Decl. ¶ 8); Ex. 792 (Brooks Decl. ¶¶ 11-13); RT 1851:12-1857:13, 1863:14-1865:7 (Brooks 2/7/12).) 70. Language substantially similar to the phrase “for any extensions, renewals, substitutions, or modifications” has been used in the entertainment industry in the context of agency agreements, including agency agreements to which dcp had been a party prior to 1993. (Exs. 550, 696, 697, 792 (Brooks Deck ¶¶ 11-13); RT 138:9-140:10, 143:4-23 (La Maina 1/24/12); RT 402:13-406:21 (La Maina 1/25/12); RT 1851:12-1857:13, 1863:14-1865:7 (Brooks 2/7/12).) In those agreements, the phrase was used to ensure that an agent receives commissions not only for any deal secured by the agency during the term of the agency relationship, but also for any extensions, renewals, substitutions, or modifications of those deals that are obtained after the termination of the agency relationship. (Ex. 792 (Brooks Deck ¶¶ 11-13); RT 1407:16-20 (Tenzer 2/2/12); RT 1851:12-1857:13 (Brooks 2/7/12).) 71.A producer that brokers (or “sources”) a deal with an exhibitor of a show, such as dcp did here when it secured a deal with NBC to broadcast the Golden Globe Awards, is acting in a manner somewhat similar to a talent agency that obtains a deal on behalf of a client. (RT 1863:14-1865:7 (Brooks 2/7/12).) There are, however, differences. Such a provision typically would not prevent the client from terminating the agent, nor grant the agency the ability to extend, renew, substitute or modify the client’s contracts without the client’s specific agreement. (Ex. 778 (Tenzer Deck ¶ 17); RT 1449:13-16 (Tenzer 2/2/12); RT 1486:17-1487:11 (Tenzer 2/3/12); RT 142:13-143:3 (La Maina 1/24/12).) Both sides’ experts testified that they have never seen the extensions clause, or language like it, used in a television contract or other contract for the purpose of granting additional, potentially perpetual, options or rights to produce a television program. (Ex. 778 (Tenzer Deck ¶ 18); RT 1447:7-13 (Tenzer 2/7/12); RT 1799:9-1800:10, 1817:13-19 (Brooks 2/7/12).) Because of the limitations of the talent agent analogy, and because the language of the extensions clause is not typical in television rights agreements, the Court places minimal weight on the expert testimony. 72. In the entertainment industry, ensuring that a party is not cut out of a deal after having devoted its resources to developing and securing opportunities for another party is not unique to talent agencies. Defendants introduced evidence that producers and exhibitors that devote substantial resources to the development, promotion and exploitation of a property (e.g., a film or television show) also desire contractual protection against being cut out of the deal at a later point in time, when the property may have increased in value. This may take various forms, including rights of first negotiation and first or last refusal, perpetual options or a grant of rights in perpetuity. (Ex. 792 (Brooks Deck ¶¶ 15, 16); RT 740:13-742:17 (Graboff 1/27/12); RT 1846:10-1849:9 (Brooks 2/7/12).) Thus, absent the extension clause and assuming compliance with the then-existing — ie., as of autumn 1993 — rights of first negotiation/refusal, HFPA could have jettisoned dcp after the end of the last option and entered into a new contract directly with NBC. 73. Cognizant of this risk, dcp also sought to protect its investment in other properties it developed and produced, including other recurring events programs such as the Academy of Country Music Awards and Family Friendly Programming, for so long as it continued to exploit those properties. (Exs. 753, 754; RT 431:17-432:2 (LaMaina 1/26/12).) dcp’s agreement with the Academy of Country Music grants dcp the right to produce and distribute the Awards show for so long as the show is presented by the Academy of Country Music. (Ex. 753.) 74. Of all the recurring event programming known to HFPA’s expert David Tenzer, the Academy of Country Music Awards and the Golden Globe Awards are the only two instances in which a rights holder has licensed its distribution rights to a production company such as dcp rather than broadcast rights directly to a network. (RT 1388:8-1389:8, 1422:11-1423:19 (Tenzer 2/2/12); 1488:10-1492:25 (Tenzer 2/3/12).) 75. There is no evidence of any industry custom or practice that the phrase “and for any extensions, renewals, substitutions or modifications,” or variants thereof, is limited to circumstances of force majeure. (See, e.g., Ex. 792 (Brooks Decl. ¶ 20); RT 423:4-10 (La Maina 1/25/12); RT 1407:16-20 (Tenzer 2/2/12).) IV. THE PARTIES’ COURSE OF PERFORMANCE SUBSEQUENT TO 1993 A. HFPA Representatives Review The 1993 Amendment And Operate Under It Without Objection Until 2002 76. The Golden Globe Awards show was televised on NBC from 1996 through 2011 under the dcp-NBC Agreement, as extended in 2001, and the 1987 Agreement between dcp and HFPA, as amended in 1989 and 1993. 77. HFPA’s contracts, including the 1987 Agreement and the 1993 Amendment, have been kept in HFPA’s offices and were available for review by HFPA members at any time. (See, e.g., Exs. 3 (1993 Amendment produced from HFPA’s files), 116 (1995 letter from La Maina forwarding copy of 1993 Amendment to HFPA President Takla-O’Reilly), 576 (1993 Amendment produced from HFPA’s files)); 648 (redacted January 1997 letter from Weissmann forwarding copy of 1993 Amendment to HFPA President Berk, with extensions clause underlined). 78. On February 16, 1995, acting on behalf of dcp and in response to a request by HFPA’s then(and current) President Aida Takla-O’Reilly, La Maina provided to HFPA additional executed copies of the 1987 Agreement and all Amendments. His letter states that “originals and/or copies had been sent to the Hollywood Foreign Press Association and to the various attorneys for the Hollywood Foreign Press on a number of occasions previously.” (Exs. 116 (1995 letter from La Maina forwarding copy of 1993 Amendment to HFPA President Takla-O’Reilly), 755; RT 434:11-435:13 (La Maina 1/26/12); RT 1658:1-24 (Takla-O’Reilly 2/7/12).) 79. In or around 1997, HFPA’s outside counsel, Robert Yoshitomi reviewed the 1993 Amendment. (Exs. 10, 134 (1993 Agreement produced from the files of Yoshitomi’s law firm); 790 (Behr Decl. ¶ 9); RT 1151:19-1152:21 (Yoshitomi 2/1/12).) 80. On May 20, 1997, dcp and HFPA entered into a further amendment of the 1987 Agreement. The amendment is dated May 20, 1997 (the “1997 Amendment”). The 1997 Amendment provides that “[e]xcept for these amendments, all other terms of the Agreement remain in full force and effect.” (Exs. 10 (agreement), 134 (1993 Amendment produced from the files of Yoshitomi’s law firm); 790 (Behr Decl. ¶ 9); RT 435:16-436:16 (La Maina 1/26/12).) 81. The 1997 Amendment expressly refers to the 1993 Amendment, was drafted by Yoshitomi (with input from dcp) and was executed by Yoshitomi on behalf of HFPA. (Ex. 10; RT 1149:19-1151:8 (Yoshitomi 2/1/12).) 82. On March 3, 1998, NBC exercised its first option under the dcp-NBC Agreement, committing to broadcast the Golden Globe Awards from 1999 to 2001. (Ex. 498.) 83. On October 12, 1999, Helmut Voss, then-President of HFPA, wrote three HFPA representatives (including then-Secretary Dagmar Dunlevy and Managing-Director Chantal Dinnage) and asked that they “please try very hard to find the following Board and General Membership minutes in the office until Friday: July 1993, August 1993 and September 1993. If you cannot find them I want to be reasonably certain that they — like so many others — have been lost.” (Ex. 11; RT 818:21-820:24 (Dinnage 1/31/12).) 84. In response to Voss’s request, a partial transcript of the September 22, 1993 Extraordinary General Membership Meeting at which the 1993 Amendment was discussed was faxed to Voss on October 13, 1999. (Exs. Ill, 725.0022; RT 853:19-854:16 (Dinnage 1/31/12).) B. The 2001 Extension Of The NBC License 85. On May 18, 2001, NBC exercised its second option under the 1993 dcp-NBC Agreement, committing to broadcast the Golden Globe Awards from 2002 through 2005. (Exs. 186,187.) 86. In 2001, dcp saw an opportunity to extend the dcp-NBC Agreement and to secure an even higher license fee for the Golden Globe Awards from NBC. (RT 248:3-249:9 (La Maina 1/25/12).) 87. From April to July 2001, dcp and NBC negotiated the terms of a midterm amendment to and extension of the dcpNBC Agreement, pursuant to which NBC would broadcast the Golden Globe Awards through 2011 in exchange for substantially higher license fees. (Exs. 186, 194, 294; RT 248:3-249:9, 253:20-25 (La Maina 1/25/12).) 88. On June 11, 2001, after the principal terms of an agreement for NBC to broadcast the Awards show after 2005 had been settled between NBC and dcp (RT 450:9-20 (La Maina 1/26/12)); RT 739:11-740:12 (Graboff 1/27/12), a meeting of the HFPA Board was held. Representatives of dcp were present. La Maina was there, and according to Berk and Soria, so was Dick Clark. La Mama’s “talking points” internal memorandum prepared for the June 11, 2001 meeting reflect that he was planning to announce the NBC extension to HFPA’s Board and congratulate HFPA on the achievement. (Exs. 698, 699.) Nothing in La Maina’s notes suggests he was planning to seek approval, which is consistent with his testimony that he did not think approval was necessary. (Exs. 698, 699.) La Maina did not bring copies of any contracts or other legal documents and there was no discussion about any of the contract provisions related to dcp and HFPA nor of any term beyond 2011. (RT 253:4-7, 267:7-14 (La Maina 1/25/12).) 89. At the June 11, 2001 meeting, dcp made an “informal presentation” to the HFPA Board regarding the amendment and extension of the dcp-NBC Agreement. (RT 250:12-251:3 (La Maina 1/25/12); RT 449:21-450:14 (La Maina 1/26/12).) At the time, dcp already had annual options to produce the Golden Globes through 2005. Therefore, dcp needed six additional options — through 2011 — to ensure it could completely fulfill the proposed extended broadcast license with NBC. (Ex. 3.) Nevertheless, dcp did not ask for, and HFPA did not explicitly provide, approval of the amendment to and extension of the dcpNBC Agreement. (Exs. 513, 562, 698, 699; RT 267:15-269:6, 287:3-288:25 (La Maina 1/25/12); RT 453:24-454:22 (La Maina 1/26/12); RT 1700:3-1704:9, 1705:20-1706:13, 1744:8-1746:17 (Dunlevy 2/7/12).) 90. La Maina presented the term of the NBC agreement, what NBC was paying and the need for confidentiality. (RT 267:2-6 (La Maina 1/25/12).) He warned the Board that the proposed 10-year extension with NBC was not executed and could be at risk if it was made public. (RT 264:9-266:12 (La Maina 1/25/12); Exs. 79-11, 194-9, 195, 329.) The Board members were extremely enthusiastic and supportive of the news. (RT 252:25-253:3 (La Maina 1/25/12).) Berk, Soria and Orlin testified that the Board members voiced their approval. (Exs. 777 (Berk Deck ¶ 21)); 789 (Soria Deck ¶¶ 55-60); 776 (Orlin Deck ¶¶ 12-16.) 91. HFPA has not found or produced any transcript or minutes of this June 11, 2001 Board meeting. 92. In June and July 2001, other documented meetings of the HFPA Board (June 12, June 21, June 28, July 9, July 11) and Membership (July 11) were held. (Exs. 204, 513, 561, 562, 563, 564, 565, 566, 567, 568, 569, 570, 571, 644.) 93. The Minutes of the June 12, 2001 meeting of HFPA’s Board reflect that “the new dick dark productions contract informally introduced to the Board on June 11, 2001 was discussed.” In addition, the Board agreed to ask its outside counsel, Robert Yoshitomi, to “review all current and new contracts between the Hollywood Foreign Press Association, dick dark productions and NBC” and “to get back to us and advise.” (Exs. 204, 561, 562,-644; RT 1699:17-23 (Dunlevy 2/7/12).) 94. Soria testified that the new NBC deal was discussed repeatedly at other HFPA Board meetings. (Ex. 789 (Soria Deck ¶ 62).) There are minutes and agendas for the Board meetings on June 12, (Ex. 562), June 21 (Ex. 563), June 28 (Ex. 565), July 9 (Ex. 567), July 11 (Ex. 569) and for a general membership meeting on July 11 (Ex. 571). Although the agendas for the June 28 and July 9 meetings refer to the proposed NBC deal, there are no notations or references to the NBC deal in any of the minutes. 95. On June 21, 2001, dcp sent a fax to NBC acknowledging receipt of NBC’s “proposed draft of the new NBC/dick dark productions, inc. Golden Globes Agreement.” (Ex.