Dish Network Corp. suffered another setback in its licensing battle with ESPN Inc. when an appeals court on April 2 shut the door on Dish’s claims that it overpaid by $56 million for rights to four ESPN-owned HD channels. In a brief order, the Appellate Division, First Department, affirmed a jury’s 2011 verdict that Dish isn’t entitled to the channels under a 2005 licensing agreement with ESPN. The court rejected Dish’s argument that a juror engaged in misconduct by disobeying orders not to take notes. The ruling is a win for longtime ESPN counsel David Yohai of Weil Gothsal & Manges, who squared off at oral argument against E. Joshua Rosenkranz of Orrick Herrington & Sutcliffe.
In hopes of keeping jurors focused, Manhattan Supreme Court Justice Jeffrey Oing (See Profile) instructed them not to take notes. Despite those instructions, one juror jotted down about six pages of notes at home after trial let out each day. During deliberations she shared them with at least one other juror, and after the verdict she told Dish’s lawyers about her note-taking habit. Rosenkranz sought to vacate the verdict on the grounds that Dish was prejudiced by the juror’s activities.
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