     13-4134(L)
     Spanksi Enters., Inc. v. Telewizja Polska S.A.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of October, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROBERT D. SACK,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Spanski Enterprises, Inc.,
13                Plaintiff-Appellee and
14                Cross-Appellant,
15
16                    -v.-                                        13-4134 (Lead)
17                                                                13-4219 (XAP)
18
19       Telewizja Polska, S.A.,
20                Defendant-Appellant and
21                Cross-Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                        Stanley McDermott III, David S.
25                                             Wenger, DLA Piper LLP (US), New
26                                             York, New York.
27


                                                  1
 1   FOR APPELLEE:              Jonathan Zavin, John A. Piskora,
 2                              Loeb & Loeb LLP, New York, New
 3                              York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Southern District of New York (Carter, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Defendant-Appellant Telewizja Polska, S.A. (“TVP”)
13   appeals from the judgment of the United States District
14   Court for the Southern District of New York (Carter, J.),
15   granting partial summary judgment in favor of Plaintiff-
16   Appellee Spanski Enterprises, Inc. (“SEI”). SEI cross
17   appeals. We assume the parties’ familiarity with the
18   underlying facts, the procedural history, and the issues
19   presented for review.
20
21        This appeal arises from prolonged disputes between TVP,
22   a public broadcasting corporation wholly owned by the
23   Republic of Poland, and SEI, which has been TVP’s exclusive
24   distributor of television programming content to the Polish
25   diaspora in the Americas. The dispute, over which party can
26   broadcast certain programming and for how long, is governed
27   by a handful of written contracts.
28
29        We review a district court’s decision to grant or deny
30   summary judgment de novo. Smith ex rel. Estate of Smith v.
31   Fed. Reserve Bank of N.Y., 346 F.3d 264, 267 (2d Cir. 2003).
32   And “[t]he interpretation of a contract is generally a
33   question of law,” also “subject to our de novo review.”
34   Network Publ’g Corp. v. Shapiro, 895 F.2d 97, 99 (2d Cir.
35   1990).
36
37        1. SEI became the exclusive distributor of TV Polonia
38   in 1994 and of TVP Info in 2002. Prior litigation between
39   SEI and TVP ended in a Settlement Agreement, executed in
40   2009, that provides, in section II.A: “SEI is and shall
41   remain the exclusive distributor of TV Polonia and TVP Info
42   programming content in the territory of North and South
43   America by any and all means of distribution . . . .” It is
44   undisputed that, as to TV Polonia, SEI’s exclusivity extends
45   until 2019. TVP argues that it nonetheless is entitled to
46   broadcast on TVP Info a small percentage of TV Polonia


                                  2
 1   programming content, which it characterizes as de minimis.
 2   We disagree.
 3
 4        There has been a 2-3% overlap in the TV Polonia content
 5   broadcast on TVP Info. TVP characterizes this overlap as
 6   “negligible” or “de minimis.” However, the relevant
 7   contracts contain no exception for de minimis infringement
 8   of SEI’s exclusivity rights. And under New York law,
 9   “courts may not by construction add or excise terms, nor
10   distort the meaning of those used and thereby make a new
11   contract for the parties under the guise of interpreting the
12   writing.” Reiss v. Fin. Performance Corp., 764 N.E.2d 958,
13   961 (N.Y. 2001) (internal quotation marks omitted).
14
15        TVP argues that Section II.A. of the Settlement
16   Agreement--the provision that confirms SEI’s exclusivity
17   rights for all programming content rather than for the
18   channels only–-should be discounted as “general” and
19   “prefatory.” However, “the fundamental rule of contract
20   interpretation [is] that a court must strive to give meaning
21   to every sentence, clause, and word.” N.Y. Marine & Gen.
22   Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 116 (2d Cir.
23   2010) (internal quotation marks and citation omitted).
24   Section II.A is no more “general” or “prefatory” than any
25   other provision of the Settlement Agreement.
26
27        Finally, TVP emphasizes that TVP Info (mainly news) and
28   TV Polonia (mainly entertainment) do not compete with each
29   other. But SEI’s exclusivity rights are not made to depend
30   on considerations of competition.
31
32        In sum, TVP is prohibited by the Settlement Agreement
33   from distributing TV Polonia’s programming content on TVP
34   Info, or elsewhere, until 2019.1
35
36        2. SEI cross appeals, contending that any distribution
37   of TVP Info--regardless of whether any content overlaps with


         1
              The district court reached the same conclusion,
     but also relied on Section II.E of the Settlement Agreement,
     which prohibits TVP from distributing “any other channels
     . . . that contain any of the same programming that is
     contained, has been contained, or will be contained in
     either TV Polonia or TVP Info.” (emphasis added). Because
     we conclude that Section II.A is dispositive, we need not
     address the district court’s construction of Section II.E.
                                  3
 1   TV Polonia--is prohibited until 2019. The district court
 2   rejected this interpretation as “stretch[ing] beyond any
 3   reasonable construction of the text as written.” We agree.
 4
 5        Section II.A of the Settlement Agreement provides that
 6   “SEI is and shall remain the exclusive distributor of . . .
 7   TVP Info programming content.” The Section specifies no end
 8   date; nor does any other provision in the Settlement
 9   Agreement. But the parties’ other contracts do. The 1994
10   Agreement sets 2019 as the end date for SEI’s exclusivity
11   rights to TV Polonia, and the 2002 Addendum sets 2012 as the
12   end date for SEI’s exclusivity rights to TVP Info. Because
13   the Settlement Agreement does not deal with end dates, the
14   terms set in the 1994 Agreement and its 2002 Addendum remain
15   valid. Hence, all of SEI’s rights to TVP Info expired in
16   2012.
17
18        Any reference to the 1994 Agreement in the Settlement
19   Agreement necessarily includes the relevant provisions of
20   the 2002 Addendum that modified it. See 2002 Addendum (“The
21   following amendments shall be made to the Agreement
22   concluded between the Parties on 14 December 1994 . . . .”);
23   Settlement Agreement § II.N (“All other terms of the
24   Agreement of 1994, as subsequently amended, shall remain in
25   full force and effect, except in the event of any conflict
26   between such prior agreements and this agreement, this
27   agreement shall control.”) (emphasis added). The references
28   to the 1994 Agreement in the Settlement Agreement are
29   references to the 1994 Agreement as amended by the 2002
30   Addendum. Hence, the 2012 end date for SEI’s exclusivity
31   rights to TVP Info--laid out clearly in the 2002 Addendum--
32   controls.2
33




         2
              At oral argument, SEI pressed the argument that
     Section II.A was intended to grant it a new right, requiring
     that TVP use SEI as its exclusive TVP Info distributor in
     North and South America should TVP wish to distribute TVP
     Info following the expiration of the 2002 Addendum.
     However, the plain language of Section II.A does not create
     any new right. By asserting that SEI “shall remain” TVP’s
     “exclusive distributor,” Section II.A makes clear that the
     exclusive distribution rights to TVP Info programming
     content are those granted in the 2002 Addendum.
                                  4
1        For the foregoing reasons, and finding no merit in the
2   parties’ other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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