Free Trial Brief - District Court of Connecticut - Connecticut

Case 3:00-cv-00706-SRU

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

BROADWAY THEATRE CORP.

V.

BUENA VISTA PICTURES DISTRIBUTION, ET AL.

) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO: 3:00~-CV--00706 (SRU)

NOVEMBER 14, 2003

PARTIES' JOINT PRE-TRIAL MEMORANDUM
The Defendants have based all components of this pre-trial memorandum upon their understanding ofPlaintiff's claims based upon thefacts and evidence developed to date. Should circumstances require, Defendants respectfully reserve their right to modify any and allportions of thispre-trial memorandum.

TRIAL

COUNSEL: Peter C. Spodick 592 Central Avenue New Haven, Connecticut 06515 Tel.: (203) 785 9628 Fax: (203) 773 3104 [email protected] Richard W. Bowerman ct 04181 Benjamin A. Solnit ct 00292 Elizabeth K. Andrews ct 20986 Tyler Cooper & Alcom, LLP 205 Church Street Post Office Box 1936 New Haven, Connecticut 06509-1910 Tel.: (203) 784-8200 Fax.: (203) 865-7865 bowerman@tylercooper. corn [email protected] [email protected]

Plaintiff:

Defendants:

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Jeffrey A. Rosen Sargoy, Stein, Rosen & Shapiro 1790 Broadway New York, NY 10019 2. JURISDICTION: This Court has original jurisdiction over this action pursuant to 28 U.S.C.

§

1332.

Jurisdiction exists because the parties are citizens of different states and the amount in controversy, exclusive of costs, exceeds $75,000. 3. JURY/NON-JURY: This case will be tried to the Court.
4.

LENGTH OF TRIAL:

Plain t~fft

The Plaintiff anticipates six (6) full days of evidence to present its case.
Defendants:

The Defendants anticipate nine (9) full days of evidence to present their case.
5. Plaint

FURTHER PROCEEDINGS:

The Plaintiff has scheduled the deposition ofDefendants' expert, George Priest, for November 17, 2003 and the deposition of Defendants' expert, Bany Reardon, for December 2, 2003. As a convenience to counsel and the deponents, one of whom is located out-of-state, the Defendants have no objection to these dates.

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Defendants:

The Defendants do not anticipate the need for further proceedings, other than those noted above, at this time. 6. NATURE OF CASE:

Plaintiff's Claims:

Plaintiffasserts that the manner of licensing motion pictures for exhibition by the Defendants to exhibitors in the New Haven area violates Conn. Gen. Stat. seq., the Connecticut Unfair Trade Practices Act.
Defendants' Defrnses and Claims:

§ 42-1 l0a et

The manner of licensing of motion pictures by the Defendants for exhibition in the New Haven area is lawful and, more specifically, does not violate the requirements of the Connecticut Unfair Trade Practices Act. The Complaint fails to state a claim upon which relief can be granted; Plaintiff's claims are barred or preempted by the Copyright Act, 17 U.S.C.

§

101 et seq., and legal principles based thereon; a Defendant's unilateral

refusal to license a motion picture to Plaintiff is presumptively valid; Plaintiff's claims are barred by the applicable statutes of limitations; Plaintiff's claims are barred by the doctrine of laches; Plaintiff's claims are barred by the doctrine of waiver; Plaintiff failed to mitigate its damages, if any; Plaintiff's claims are barred by the doctrine of estoppel. 7. TRIAL BY MAGISTRATE JUDGE: The parties do not agree to a trial by a Magistrate Judge.

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8.

LIST OF WITNESSES:

Plaintiff's Witness List

Witnesses Plaintiff expects to call at trial (1) Robert Spodick Plaintiff President York Square Cinemas 55 Broadway New Haven, CT 06511 203-865-3015 Peter Spodick Plaintiff Manager York Square Cinemas 55 Broadway New Haven, CT 06511 203-865-3015 (2) Christopher Schuck Yale University Disability Assistant 109 Bishop Street New Haven, CT 06511 203-752-9497

Chris Schuck is a former Yale student and University Disability Aide. His anticipated testimony will concern helping blind and physically limited Yale students to achieve levels of independence while living at Yale. (3) Ernst Weber Photographs, measure distances 625 Orange St. New Haven, CT 06511 203-787-4518

Mr. Weber lives in Downtown and is an artist and movie-goer. His anticipated testimony will concern the presentation of Elms at the York Square and at National Amusements.

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(4)

Christopher Skiest Photographs, measure distances Edgewood Avenue New Haven, CT 06515 203-387-5300

Christopher Skiest is a New Haven resident and college student who is also a York Square cashier. His anticipated testimony will concern travel distances between Connecticut cinemas. (5) Brian Loder Divinity student and Plaintiff employee 300 Orange Street New Haven, CT 06511 203-785-0070

Brian Loder is a Downtown resident, Yale graduate, Divinity student and York Square employee. Anticipated testimony will concern the relationship between the York Square and Yale students living Downtown.
(6)

Johnes Ruta Plaintiff gallery curator 22 Willard Street New Haven, CT 06515 203-387-4933

Johnes Ruta has for many years been the curator at the York Square Cinema Gallery, the oldest operating private gallery in New Haven. His anticipated testimony will concern the relationship between the New Haven arts community and the York Square. (7) Nina Adams Film Fest New Haven Director 205 Church Street New Haven, CT 06511 203-776-6789

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Ms. Adams is founder of FilmFest New Haven, an industry recognized annual event, presented primarily at the York Square. Anticipated testimony will concern the quality of presentation at the York Square, comments of film makers about the York Square, and the relationship of the cinema to Downtown. (8) Susan Hart Administrator Yale University Film Studies Department 53 Wall St. New Haven, CT 06520 203-436-4668

Susan Hart is an administrator with the Yale Film Studies Department. Her anticipated testimony will focus on the relationship between the York Square and Yale University. (9) Ronald Wanless Expert Plaintiff Marketing Consultant 733 Huntley Drive Los Angeles, CA 310-659-6331
-

Mr. Wanless is a retired Marketing Consultant based in Los Angeles, California. He is a film industry veteran, whose career was in film marketing. Mr. Wanless was an executive with various film companies and advertising agencies. He has provided marketing advice to the Plaintiff for many years, and was retained in 2002 to provide a marketing study/survey ofthe York Square audience. His anticipated testimony will be similar to the results of the 1998 Yale University survey: the York Square audience consists primarily of Yale students, who live Downtown, do not have automobiles, and who walk to the York Square. Mr. Wanless' curriculum vitae is attached to this memorandum at Tab A.

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(10)

Michael Bailey Expert Plaintiff Accountant Bailey Schaeffer and Errato 1224 Main St. Branford, CT 203-481-1121
-

Michael Bailey is a Certified Public Accountant, employed with Bailey, Schaeffer and Errato. The Bailey firm, and its predecessor, Bailey, Moore, Glazer, Schaeffer and Proto, have performed accounting services for Broadway Theatre Corporation since the Plaintiff commenced business in 1970. Mr. Bailey has been asked to present records and returns necessary to compute Plaintiffs estimate of damages. (11) Lee Vogel Branford Theatre former owner 124 Burban Drive Branford, CT 06477 203-488-0014

Anticipated testimony includes the unfairness of Defendants' clearance practices to a now-closed, distant, suburban independent cinema. (12) Daniel A. Gilbert
New Haven resident

167 Wooster Street
New Haven, CT 06511

203-624-5765 Anticipated testimony from New Haven resident concerns York Square's support ofunion and York Square's relationship to Downtown. (13) Vilashini Coopan Yale University
Literature Faculty Department of Comparative Literature Yale University

P.O. Box 908299 New Haven, CT 06520 203-432-4750 7

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Anticipated testimony concerns the relationship between York Square and Yale University faculty and students who attend classes at the York Square as an alternative to crossing lines during labor strike. (14) Matan Koch Former Yale student, disabled Harvard Law School Cambridge, MA

Disabled recently graduated Yale student. Anticipated testimony concerns unfairness of turnpike travel away from New Haven for a disabled student. (15) Ben Healey Yale student, New Haven Alderman 165 Church Street New Haven, CT 06510 203-436-0885, 203-946-6483

Yale student, two-term New Haven Alderman. Anticipated testimony concerns fairness of Defendants' contracting practices to Yale students and New Haven residents. (16) Rob Lawinski Expert Plaintiff film buyer/agent 110 Greene Street New York, NY 212 925 4776
-

Plaintiff's film buyer/agent for all negotiations with film distribution companies. Rob Lawinski is an agent at Lesser Theater Service, which represents over 400 "screens" in five states. Their clients include the interstate chain Crown Theatres, which has a strong presence in Connecticut. Lawinski has 20+ years experience in the industry, and represents theatres in more Connecticut towns than anyone else. He is an expert in Independent and Foreign film, and will testify that the York Square is capable of immensely increasing its grosses, and the resulting revenues to the Defendant film $

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distributors, if he were allowed to book his choice of films. In deposition, he testified that he would simply wish to parallel the film selections he makes for the theatres he represents in Madison and Greenwich, Connecticut. (17) Jeffrey Jacobs Jacobs Entertainment Plaintiff former film buyer/agent 48 E. 43 Street New York, NY 10017 212-986-7488

Plaintiff's former film buyer/agent for negotiation with defendant film companies, specializing in representation of independent cinemas with specialized film. Anticipated testimony concerns Defendants' clearance practices, and relationship, if any, of the York Square to National Amusements. (18) Josh Mamis, Editor New Haven Advocate Newspaper 1 Long Wharf New Haven, CT 06511 203-789-0010

Anticipated testimony concerns York Square winning "Best ofNew Haven"/cinema survey. (19) Michael C. Bingham, Editor Business New Haven Magazine 1221 Chapel Street New Haven, CT 06511 203-781-3482

Anticipated testimony regards statistical reporting in annual "Book of Lists" (20) Robert Proto President, Local 35 Laura Smith President, Local 34 425 College Street

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New Haven, CT 06511 203-624-5161 Anticipated testimony from Yale University strike leaders, regarding York Square as a perennial alternative classroom site. (21) Sumner Redstone Chair/President Shari Redstone Chair/President National Amusements 200 Elm Street Dedham, MA 781-461-1600

Chair/President ofNational Amusements, privately held owner of cinema complexes and media giant Viacom. Anticipated testimony concerns relationship, if any, of the York Square to National Amusements.

The anticipated testimony of witnesses numbered 22 through 32 will concern the Connecticut Unfair Trade Practices Act, clearances, National Amusements and Plaintiffs York Square Cinema, as well as related areas. (22) Chuck Viane, President Buena Vista Pictures Distribution 350 S. Buena Vista St. Burbank, CA 91521 Main: (818) 560 1000 Fax: (818)972 3905 Steven Spielberg Jim Tharp, Head ofDistribution Matt Ball DreamWorks Pictures 1000 Flower St., Lakeside Bldg. 2nd Fl. Glendale, CA 91201 Main: (818) 695-5000 Fax: (818) 695-6322

(23)

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The anticipated testimony of Mr. Ball will concern the relationship between York Square Cinema, Defendant DreamWorks and Yale University. (24) Tom Ortenberg, President Lions Gate Film Releasing Lions Gate Films 4553 Glencoe Ave. Ste. 200 Marina Del Rey, CA 90290 Main: (310) 314-2000 Fax: (310) 452-2670
-

(25)

Erik Lomis, President Distribution MGM Distribution Co. 2500 Broadway St. Santa Monica, CA 90404 Main: (310) 449-3000 Fax: (310) 449-3100
-

(26)

Rick Sands, Chairman Worldwide Distribution Denise Battaglia Salesperson Carla Ornellas Salesperson Miramax Films Inc. 375 Greenwich St. New York, NY 10013 Main: (212) 941-3800 Fax: (212) 941-3949
-

(27)

David Tuckerman. President Domestic Theatrical Distribution New Line Distribution 116 N. Robertson Blvd. Ste. 200 Los Angeles, CA 90048 Main: (310) 854-5811 Fax: (310) 854-1824
-

(28)

Wayne Lewellen, President Motion Picture Distribution Paramount Pictures 5555 Melrose Ave. Hollywood, CA 90038 Main: (323) 956-5000 Fax: (323) 862-3429
-

(29)

Jeff Blake, President of Worldwide Marketing & Distribution Sony Pictures Releasing

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