4th Circuit: Trademark Victory Affirmed

After considerable delay, an opinion has been issued by the Fourth Circuit Court of Appeals in the Trademark v. A&E Case:

Plaintiff Richard C. Davis approached Defendant A&E Television Networks with the concept that he maintains became the reality television series “Flip This House.” This dispute arises out of the parties’ disagreement over an alleged oral agreement to split equally net revenues of the show. Plaintiff sued Defendant in state court for breach of that oral contract in 2006, demanding approximately $7.5 million in damages, i.e., half of the net revenues from the three seasons that had completed filming prior to trial. … After five days of trial in South Carolina federal district court, a jury returned a verdict awarding Plaintiff a little over $4 million, essentially half of the first season’s net revenues. The district court subsequently denied Defendant’s motions for judgment as a matter of law and a new trial pursuant to Fed. R. Civ. P. 50(b) and Fed. R. Civ. P.59, respectively. Defendant argues we should reverse and direct judgment in its favor because the evidence was legally insufficient to support a finding of an oral contract under New York law or, alternatively, order a new trial because of claimed errors in jury instructions and evidentiary rulings. … After careful review of the record submitted on appeal, we affirm the district court’s denial of Defendant’s motions for judgment as a matter of law and a new trial.

There are some interesting excerpts from the transcript in the opinion, including details of the negotiation that resulted in the 50/50 deal (after expenses, which would be fronted by Trademark) between Trademark and A&E. It’s also fun reading about verbal contracts.

The dissent identifies one of the most critical issues that resulted in a Trademark win, “A&E bears significant responsibility for the failure to reduce a contract memorializing its understanding to writing.” If there is anything to be learned from this event, it’s that reducing an agreement to writing is a very good thing.

The agreement still balances on the shaky assertion that “Okay, okay, I get it,” during a phone call indicated A&E’s agreement to the 50/50% split, but the overwhelming weight of the other evidence and the fact that the parties seemed to act as if they had an agreement seems to have pushed the decision in favor of Trademark.

Hopefully this is the end of the case. A&E should take their licking and move on. I have a feeling that Richard Davis will put the money to good use, but that he probably would have preferred to keep making television.

I personally would like to see some follow up on the people involved in Flip This House – including the new casts. An interesting show could be made explaining how the various casts have handled the bubble crashing. A special episode could focus on people taken in by some of the hucksters like Armando Montelongo. The stories I’ve received and things posted in the comments over the past few years make it clear that there are many hardworking people out there who are easily led down unwise financial paths. I’m sure there are some successes, but the disasters make for interesting lessons too.

[Hat Tip to the Entertainment Law Update Podcast]

7 Comments on “4th Circuit: Trademark Victory Affirmed”

  1. Mike Voss says:

    To think that A&E could have not only avoided losing an expensive lawsuit but also having inflicted Armando Montelongo, Sam Leccima and Angie Wilford on countless unsuspecting people if they’d just had the sense to commit a written contract. Amazing.

    I’ve developed a well received presentation over the past few years that I give on occasion that includes material on what frauds these people were and how everyone seemed to miss it until it was too late – A&E most notably. It is fitting that A&E wound up penalized since they did apparently no due diligence on the replacement casts. They were out to teach Richard Davis a lesson and, instead, produced a terrible show that gave a pulpit to con artists who are still ripping off anyone they can. I still receive thank you emails weekly from people who found this website and narrowly avoided losing their money to these frauds. If anyone in the media ever wants to make a special on the matter, feel free to contact me.

    It’s hard to believe it’s been 5+ years since this all started. Mark Lyon did a great job and service with this website – I hope it lives on in some fashion.

    Mike Voss

  2. Marino396 says:

    Bravo Mark! for bringing this most excellent and in depth website together, I totally share the same sentiment as Mr Mike Voss as his post pretty much mirrors what I feel.
    To Mr Richard Davis a big Hurrah! may you continue to prosper as I know that you will always give back to the community unlike those petty pretenders that followed up on the series.

  3. Kim says:

    Excellent! Now if only I could get them back on my TV

  4. rsmith5 says:

    Excellent! Now if we can only get some new episodes of Flip This House. I just noticed a Flipping Boston show on AE for those of you who like flip shows. Flipping Vegas was good just minus the Flip This House name.

  5. […] Properties V. A&E Television Networks 4th Circuit: Trademark Victory Affirmed […]

  6. Jay says:

    Finally! I have beem searching for hours, to find the status of this lawsuit. Congrats to Richard. Now, who can “we the people” sue to eliminate “Montelongo” from taking advantage of people?? I too think a documentary on Real Estate rip-offs, would be a great public service!!

  7. Nancy phelps says:

    Yay!!! I have been so curios about Richard and Trademark, I’m so glad that they won their suit, but I sure would like to see them back on TV maybe Bravo would be a good fit? Just saying!!!

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