Absolutely. I have no doubt that most of the voom channels were mostly unwatched. Monsters, World Sport, and Equator may have been exceptions, but I'm sure hardly anyone watched most of the channels. I have no doubt the Dish receivers we had could report back out viewing habits. I seem to recall someone at Dish even showing Scott the data, with one channel having viewership as low as two dozen people over an hour.
No doubt some of the Voom channels were not very popular. And yes, Dish receivers were cable of generating activity reports. However, I did not believe the data they forwarded to Scott. As I recall, Dish compiled a spreadsheet and forwarded a PDF copy of it to Scott. There was no independent verification and validation of the data so it was of "questionable" accuracy. Based on recent events, I feel reasonably confident the numbers were complete fiction. Who know? What we do know is these Voom activity reports are not a trusted source.
There is no doubt that AMC/Rainbow/Cablevision (call 'em what you wish) is partly culpable in this failed business relationship. However, I always suspected they improperly terminated the affiliation agreement (i.e., everything Voom proported in their Amended Complain in May 2008 made perfect logical sense) and they backed up their motion with evidence with nary a sensible argument/defense nor evidence from Dish. Not they're going to get whacked with the full Arm & Hammer of the law for a plethora of monkeyshines and shenanigans.At the very least the spirit of the agreement. I believe Voom stated to devalue the service by inflating its overhead, funneling AMC overhead to Voom, and overpaying for programming. Anyone who watched Voom has to admit in 2007, the programming got progressively worse (except for perhaps Monsters) even as Voom continued to spend the same amount. Wasting money is the only logical explanation.
I think they chose a poor way of arguing the case. Yes, Dish realized typical overhead was included. But the overhead Voom charged, well conforming to accounting standards, was not part of the Dish understanding. Charlie is a bit of a handshake deal kind of guy. He just let Voom's lawyers write a bad deal that didn't reflect Charlie's understanding of the overhead to be included.
Now you're spinning. Dish's ONLY point of contention is that the 100M spend requirement (although it may be only 82M according to Voom) was for programming only. Period. Dish said this was their understanding of the agreement. As the evidence has demonstrated---and later reconfirmed by the deleted emails---Dish knew that all of Voom's customary business expenses and overhead counted toward meeting the 100M spend requirement. After all, this wasn't a carriage agreement, the collective agreements were part of a business partnership in which all the details, to include Dish being given a 20% equity share, were covered in the April 2005 LLC Agreeement. Besides, Annex A detailed the 11 authorized expense catetories (don't quote me on that number) and Dish's own audit (November 2007) concluded that Voom spent 102.94M (rounded up to 103M) on the 'service'. Besides, if Charlie was a handshake kind of guy, as you suggest, that would imply he was negligent in his responsibilities to fully understand the terms and conditions of the agreement he signed. Moreover, the recovered emails paint a very different picture...an ugly one in which Ergen know full well (in 2005 and again in 2007) that Voom spending included overhead.
What the heck does double delete mean, anyway? That they moved it to the deleted items box, then emptied it? Big deal. And they were perfectly allowed to delete emails in 2005. That was long before there needed to be any litigation hold.
It is a big deal...it shows that Dish was aware of the terms and conditions and, made a choice, to purposefully delete (not merely accidentally nor through email policy) evidence that was supposed to have been legally retained. I may be wrong, but I believe these 2005 and 2007 emails were deleted in 2008 after the legal hold was in place. I will assume they attempted wipe/overwrite the file using a 3rd party tool, but I have no information on how it was deleted nor how this information was recovered.
It goes a long way toward proving damages and penalties. For example, if somebody were to be kissing Charlie's boots while he was standing in the street and I accidentally struck the man and killed him which driving...well, I could potentially be going to jail for manslaughter. However, if I were to later make utterances that I aimed my vehicle at one of Charlie's boot lickers, well...I could be going to prison for murder (that or fined for littering ). The double deleted emails demonstrate knowledge and intent
Huh? This is the first I've heard an allegation that they altered the report. There may have been changes to a draft version, but Voom needs some strong evidence to convince me they changed the report.
CV/AMC claims to have forensic data that the final 2007 Audit report (Excel Spreadsheet) was altered shortly before being submitted to the court via discovery, and that major portions of the document were removed. Voom believes the missing sections denote that Dish's auditor was using Annex A of the LLC (authorized spend catagories) to verify and validate expenses. In other words, even Dish's auditor used the aforemetioned document (the one Dish claims no knowledge of regardless of how many times they agreed to it) as the basis for conducting his audting and reporting his or her findings.
I would agree, except this case is based on preponderance of the evidence, there is no guilt or innocence to establish. I believe everything Voom has stated been supported by the evidence...and then some. I've seen enough to assume Dish is lying unless they prove their honesty.Innocent until proven guilty is what I prefer to go with.