Reed Elsevier Response To Penske Variety Lawsuit

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION

VARIETY MEDIA, LLC,
Plaintiff and Counterclaim-
Defendant,
Index No.
651674/2013
-- against -- ANSWER &
COUNTERCLAIM
REED ELSEVIER, INC., et al.,
Defendants and
Counterclaim-Plaintiffs.
ANSWER
Defendants Reed Elsevier, Inc., Variety, Inc., Reed Elsevier Properties, Inc., and Reed
Business Information, Ltd. (collectively, Defendants), by and through their undersigned
attorneys, submit the following Answer to the Complaint of Plaintiff Variety Media, LLC
(Plaintiff), dated May 8, 2013 (the Complaint):
THE PARTIES
1. At all relevant times, Plaintiff was and is a limited liability company duly
organized under the laws of the State of Delaware with its principal place of business in the City
and County of Los Angeles.
RESPONSE: Defendants deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 1 of the Complaint.
2. Upon information and belief, Defendant Reed Elsevier, Inc. is a Massachusetts
corporation with its principal place of business in New York, New York.
RESPONSE: Defendants admit the allegations in Paragraph 2 of the Complaint.
3. Upon information and belief, Defendant Variety, Inc. is a Delaware corporation
with its principal place of business in New York, New York.
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NSWER & &
COUNTERCLAIM ERCLAIM
NSWER ER
Variety, Inc., Reed Elsevier Properties, Inc., and ariety, Inc., Reed Elsevier Properties,
vely, Defendants), by and through their unde y, Defendants), by and th
Answer to the Complaint of Plaintiff Variety M Answer to the Complaint of Plaintiff
2013 (the Complaint): 013 (the Complaint):
THE PARTIES THE PARTIES
At all relevant times, Plaintiff was and is a limit vant times, Plaintiff was and is
der the laws of the State of Delaware with its pr ws of the State of
y of Los Angeles. ngeles.
PONSE: Defendants deny knowledge or inform dants deny knowledge
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truth of the allegations in Paragraph 1 of the Co truth of the allegations in Paragraph 1 o
2. Upon information and b 2. Upon informati
corporation with its principal place o corporation with its principa
RESPONSE SE: Defendants adm : Defend
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3. Upon in
with its principal pla with its pr
RESPONSE SPO :
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4. Upon information and belief, Defendant Reed Elsevier Properties, Inc. is a
Delaware corporation with its principal place of business in New York, New York.
5. Upon information and belief, Defendant Reed Business Information, LTD is an
entity organized and existing under the laws of England.
6. Defendants Reed Elsevier, Inc.; Variety, Inc.; Reed Elsevier Properties, Inc.; and
Reed Business Information, LTD are sometimes collectively referred to herein as Reed.
RESPONSE: Defendants admit that Paragraph 6 of the Complaint purports to define the term
Reed for purposes of the Complaint and otherwise deny the allegations in Paragraph 6 of the
Complaint.
7. The true names or capacities, whether individual, corporate, associate, or
otherwise of defendants DOES 1 through 25, inclusive, and each of them, are unknown to
Plaintiff at this time and Plaintiff will amend this Complaint to show their true names or
capacities when learned.
8. Upon information and belief, DOES 1-25 aided and abetted and conspired with
Defendants to perform the illicit acts alleged herein.
RESPONSE: Defendants deny the allegations in Paragraph 8 of the Complaint.
9. Defendants, and each of them, were each the agents of the other in all the acts and
transactions hereinafter alleged, acting within the scope and course of said agency.
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s a
nt.
Information, LTD is an on, LTD is an
of the Complaint. mplaint.
, Inc.; Reed Elsevier Properties, Inc.; and ed Elsevier Properties, Inc.; a
lectively referred to herein as Reed. ctively referred to herein as Reed.
h 6 of the Complaint purports to define the term of the Complaint purports
d otherwise deny the allegations in Paragraph 6 otherwise deny the allegations in Para
es or capacities, whether individual, corporate, s or capacities, whether individual, co
DOES 1 through 25, inclusive, and each of them ES 1 through 25, inclusive, and each
d Plaintiff will amend this Complaint to show t ff will amend this Comp
ned.
Defendants deny knowledge or information su nts deny knowledge or informa
he allegations in Paragraph 7 of the Complaint. s in Paragraph 7 of th
8. Upon information and belief, DO Upon information and bel
Defendants to perform the illicit acts alleged h Defendants to perform the illicit acts a
RESPONSE RESPONSE: Defendants deny the alleg fendants den
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9. Defendants, and e . Defend
transactions hereinafter allege hereinaft
RESPONSE RESP : Defendan
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NATURE OF THE ACTION
10. This is an action for breach of contract and declaratory relief. Plaintiff purchased
certain assets of Defendants related to the well-known Variety publication pursuant to a written
asset purchase agreement that provided for Plaintiff to accept assignment of certain contracts that
were to be enumerated on a disclosure schedule. Only contracts that were disclosed on that
schedule were to be assigned and contracts not disclosed were excluded as were all liabilities
flowing from them.
RESPONSE: Defendants: (i) admit that Plaintiff purports to assert claims for breach of contract
and declaratory relief but deny that those claims have merit and deny that Plaintiff is entitled to
any relief; (ii) admit that Defendants entered into an asset purchase agreement with Plaintiff and
Daily Variety Media Ltd. on or about October 9, 2012 (the Asset Purchase Agreement or
APA) and refer to the APA for a complete and accurate account of its contents; and (iii)
otherwise deny the allegations in Paragraph 10 of the Complaint.
11. The asset purchase agreement provides that Defendants shall indemnify Plaintiff
against any liabilities flowing from undisclosed, excluded contracts.
RESPONSE: Defendants refer to the APA for a complete and accurate account of its contents
and otherwise deny the allegations in Paragraph 11 of the Complaint.
12. Plaintiff has been sued and has incurred and is continuing to incur costs and fees
in connection with contracts that Defendants withheld and failed to disclose in due diligence or
in the disclosure schedule.
RESPONSE: Defendants: (i) admit that Plaintiff has been sued by Beverly Hills Media Group,
LLC in the Superior Court of California, County of Los Angeles, Case No. BC507496 (Apr. 30,
2013); (ii) refer to the complaint filed by BHMG (BHMG Complaint) for a complete and
accurate account of its contents; and (iii) otherwise deny knowledge or information sufficient to
form a belief as to the truth of the allegations in Paragraph 12 of the Complaint.
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ff purchased sed
nt to a written itten
rtain contracts that racts that
sclosed on that n that
s were all liabilities lities
rt claims for breach of contract for breach of contra
and deny that Plaintiff is entitled to that Plaintiff is entitled to
set purchase agreement with Plaintiff and ase agreement with Plaintiff
2012 (the Asset Purchase Agreement or 012 (the Asset Purchase Agreement
and accurate account of its contents; and (iii) curate account of its content
graph 10 of the Complaint. aph 10 of the Complaint
ase agreement provides that Defendants shall in se agreement provides that Defendan
g from undisclosed, excluded contracts. from undisclosed, excluded contracts
ants refer to the APA for a complete and accura to the APA for a compl
ny the allegations in Paragraph 11 of the Compl gations in Paragraph 11 of the
2. Plaintiff has been sued and has incurred a ff has been sued and h
nection with contracts that Defendants withheld ntracts that Defendan
e disclosure schedule. dule.
RESPONSE RESPONSE: Defendants: (i) admit that Plain : Defendants: (i) admit t
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LLC in the Superior Court of California LLC in the Superior Court of C
2013); (ii) refer to the complaint fil 2013); (ii) refer to the comp
accurate account of its conten count of it
form a belief as to the tru form
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13. Despite due demand therefor, Defendants have failed and refused to indemnify
Plaintiff.
FACTUAL ALLEGATIONS
A. Reed and Variety
14. Reed is a global publisher and information provider operating in the science,
medical, legal, risk and business sectors. Reed Business Information (RBI) is Reeds business
division and produces industry-specific data services and tools, online community and job sites,
and business magazines. Among the titles owned by Reed and RBI was Variety, the famous
American entertainment-trade magazine, which it acquired in 1987.
15. In 2008, Reed sought to divest itself of the entire RBI division but was unable to
do so given the burgeoning financial crisis. Following those aborted sales efforts, Reed shifted
the focus of its RBI division away from print trade magazines and to paid content, data services
and online marketing solutions.
RESPONSE: Defendants admit that in 2008, Reed Elsevier Group announced its intention to
divest Reed Business Information Ltd. and later terminated discussions with potential bidders,
16. In July 2009, RBI announced its intention to sell most of its North American trade
publications and by April 2010, Reed had sold twenty-one U.S. trade magazines and announced
that an additional twenty-three would cease publication due to the weak economy.
RESPONSE: Defendants: (i) admit that on April 16, 2010, Reed Business Information issued a
press release titled Reed Business Information concludes the divestment of US controlled
circulation magazines; (ii) refer to that press release for a complete and accurate account of its
contents and for an account of Reed Business Informations July 2009 announcement and
subsequent divestitures; and (iii) otherwise deny the allegations in Paragraph 16 of the
Complaint.
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nify
perating in the science, in the science,
ion (RBI) is Reeds business I) is Reeds busine
online community and job sites, mmunity and job sites,
nd RBI was Variety Variety, the famous , the famous
d in 1987.
aragraph 14 of the Complaint. ragraph 14 of the Complaint.
st itself of the entire RBI division but was unab of the entire RBI division bu
s. Following those aborted sales efforts, Reed Following those aborted sales effort
m print trade magazines and to paid content, dat print trade magazines and to paid con
mit that in 2008, Reed Elsevier Group announce t that in 2008, Reed Elsevier Group a
ormation Ltd. and later terminated discussions w mation Ltd. and later terminated discu
the allegations in Paragraph 15 of the Complain Paragraph 15 of the
In July 2009, RBI announced its intention to 2009, RBI announ
ons and by April 2010, Reed had sold twenty-on April 2010, Reed had s
additional twenty-three would cease publicatio nty-three would cease
ESPONSE ESPONSE: Defendants: (i) admit that on Apr : Defendants: (i) admit that
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press release titled press release titled Reed Business Informa Reed B
circulation magazines; circulation magazines; (ii) refer to th (ii) re
contents and for an account of R and for an ac
subsequent divestitures; an subsequent divestit
Complaint. Complai
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17. In March 2012, Reed announced that, as part of RBIs efforts to shed U.S. print-
magazine holdings and focus more on data services, it would sell Variety. That announcement
was reported by various news outlets including the Los Angeles Times and the Wall Street
Journal.
RESPONSE: Defendants: (i) admit that on March 23, 2012, Reed Business Information, Ltd.
issued a press release titled Reed Business Information Announces Intention to Sell Variety;
(ii) refer to that press release for a complete and accurate account of its contents; (iii) admit that
RBIs announcement was reported by the Los Angeles Times, the Wall Street Journal, and other
news outlets; and (iv) otherwise deny the allegations in Paragraph 17 of the Complaint.
B. The Letter Agreement and Operating Agreement
18. Upon information and belief, on or about March 14, 2012, with Variety on the
auction block, Reed entered into a letter agreement (the Letter Agreement) with third party
Beverly Hills Media Group, LLC (BHMG) establishing a joint venture between the
contracting parties related to a contemplated Beverly Hills Entertainment Week, a planned
week-long festival focusing on film, television, new media and finance (the Festival).
RESPONSE: Defendants: (i) admit that defendant Variety, Inc. entered into a letter agreement
with BHMG on or about March 14, 2012 (the Letter Agreement); (ii) refer to the Letter
Agreement for a complete and accurate account of its contents; (iii) and otherwise deny the
allegations in Paragraph 18 of the Complaint.
19. The Letter Agreement was temporary; it provided that it would terminate on the
earlier of sixty days following the agreements effective date or the entry by the parties into a
definitive agreement related to the operation of the Festival.
RESPONSE: Defendants refer to the Letter Agreement for a complete and accurate account of
its contents and otherwise deny the allegations in Paragraph 19 of the Complaint.
20. Sometime thereafter, Reed and BHMG executed an undated agreement entitled
Limited Liability Company Agreement of BHEN Enterprises LLC (the Operating Agreement).
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print-
cement
Street
Information, Ltd. on, Ltd.
ention to Sell Sell Variety Variety; ;
of its contents; (iii) admit that tents; (iii) admit tha
, the Wall Street Journal reet Journal, and other , and other
Paragraph 17 of the Complaint. h 17 of the Complaint.
Agreement reeme
on or about March 14, 2012, with bout March 14, 2012, with Variety on
greement (the Letter Agreement) with third p reement (the Letter Agreement) wit
HMG) establishing a joint venture between the MG) establishing a joint venture betw
mplated Beverly Hills Entertainment Week, lated Beverly Hills Entert
m, television, new media and finance (the Fes vision, new media and fina
(i) admit that defendant Variety, Inc. entered in ) admit that defendant Variety, Inc. en
ut March 14, 2012 (the Letter Agreement); (i 14, 2012 (the Letter A
complete and accurate account of its contents; ( and accurate account of its con
n Paragraph 18 of the Complaint. ph 18 of the Comp
19. The Letter Agreement was temporar The Letter Agreement was
arlier of sixty days following the agreements e arlier of sixty days following the agreem
definitive agreement related to the operation o definitive agreement related to the ope
RESPONSE RESPONSE: Defendants refer to the L fendants refe
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its contents and otherwise deny the its contents and otherwise d
20. Sometime th Som
Limited Liability Compa Limit
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RESPONSE: Defendants refer to the Limited Liability Company Agreement of BHEN
Enterprises, LLC dated March 30, 2012 (the Operating Agreement) for a complete and
accurate account of its contents and otherwise deny the allegations in Paragraph 20 of the
Complaint.
21. The parties to the Operating Agreement are Variety, Inc. and BHMG. The
signatures on the Operating Agreement are not dated although the agreement states that it was
adopted and agreed to on March 30, 2012 -- sixteen days after RBI announced its intention to
sell Variety.
RESPONSE: Defendants refer to the Operating Agreement for a complete and accurate account
of its contents and otherwise deny the allegations in Paragraph 21 of the Complaint.
22. BHMG did not exist as an entity in March 2012. According to Secretary of State
records, BHMG was formed on April 26, 2012. BHEN Enterprises was formed in July 2012.
23. Upon information and belief, the Operating Agreement was not entered into in
March 2012 as the Operating Agreement purports to indicate. The Operating Agreement, to the
extent it was validly entered into at all, was formed after July 2012.
of its contents and otherwise deny knowledge or information sufficient to form a belief as to the
24. The Operating Agreement purports to grant BHMG a 50% share of gross
revenues achieved from sponsorships acquired in connection with the planned Festival with no
responsibility for the costs of the Festival, which are entirely to be borne by Variety, Inc.
Moreover, the Operating Agreement is also structured such that BHMG claims rights that are
much broader than just the Festival.
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and
h 20 of the e
y, Inc. and BHMG. The d BHMG. The
the agreement states that it was ment states that it was
after RBI announced its intention to announced its intention to
reement for a complete and accurate account eement for a complete and accurate ac
ns in Paragraph 21 of the Complaint. in Paragraph 21 of the Com
an entity in March 2012. According to Secreta n entity in March 2012. According to
il 26, 2012. BHEN Enterprises was formed in 6, 2012. BHEN Enterprise
y knowledge or information sufficient to form a knowledge or information sufficient
Paragraph 22 of the Complaint. ragraph 22 of the Complai
pon information and belief, the Operating Agree mation and belief, the Operatin
the Operating Agreement purports to indicate. rating Agreement purports to in
s validly entered into at all, was formed after Ju ntered into at all, w
ONSE: Defendants refer to the Operating Agre dants refer to the Ope
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f its contents and otherwise deny knowledge or f its contents and otherwise deny knowl
truth of the allegations in Paragraph 23 of t truth of the allegations in Pa
24. The Operating Agre 24. The Operati
revenues achieved from sponsor achieved fro
responsibility for the costs of ty for the
Moreover, the Operating A Moreover, the Ope
much broader than just t much
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RESPONSE: Defendants: (i) refer to the Operating Agreement for a complete and accurate
account of its contents; (ii) refer to the BHMG Complaint for a complete and accurate account of
its contents and otherwise deny knowledge or information sufficient to form a belief as to the
breadth of the rights claimed by BHMG; and (iii) otherwise deny the allegations in Paragraph 24
of the Complaint.
25. In that regard, while the terms of the Letter Agreement and Operating Agreement
are similar in certain respects, the Operating Agreement is significantly more onerous to Variety,
Inc. For example, the Letter Agreement provided that it would expire 60 days after its execution
if no Operating Agreement was entered into before that time. By contrast, the Operating
Agreement exists in perpetuity and can only be terminated by the agreement of all members.
RESPONSE: Defendants refer to the Letter Agreement and the Operating Agreement for a
complete and accurate account of their respective contents and otherwise deny the allegations in
Paragraph 25 of the Complaint.
26. Moreover, the Operating Agreement contains a Conflicts of Interest provision
that provides:
If a Member wishes to operate or be a party to a festival outside of Beverly Hills
that is similar to or otherwise achieves a similar purpose as the Festival, such
Member must not do so until it has first offered the Company an opportunity [to]
participate in such new festival on terms similar to those herein. For the removal
of doubt, neither Member may operate or be involved in a festival outside of
Beverly Hills, which is similar to the Festival without the Companys written
consent; provided, however, that if the Company is given an opportunity to
participate in such new festival on at least the same terms herein but chooses not
to do so, such consent shall be deemed given.
(Emphases supplied.)
of its contents and otherwise deny the allegations in Paragraph 26 of the Complaint.
27. Notably, the Conflicts of Interest provision of the Letter Agreement provided that
it would not apply in the event of a merger, consolidation or the acquisition by a third party of
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ate
te account of t of
belief as to the o the
gations in Paragraph 24 graph 24
greement and Operating Agreement t and Operating Agreement
s significantly more onerous to Variety, ntly more onerous to Variety
it would expire 60 days after its execution expire 60 days after its execu
hat time. By contrast, the Operating at time. By contrast, the Operating
rminated by the agreement of all members. minated by the agreement of all memb
r Agreement and the Operating Agreement for a ment and the Operating Agre
respective contents and otherwise deny the alle espective contents and otherwise deny
the Operating Agreement contains a Conflicts e Operating Agreement contains a C
ber wishes to operate or be a party to a festival to operate or be a party to a
similar to or otherwise achieves a similar pu o or otherwise achieves a sim
ber must not do so until it has first offered the not do so until it h
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rticipate in such new festival on terms similar such new festival on

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of doubt, neither Member may operate or b ther Member may op
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Beverly Hills, which is similar to the Fes which is similar to
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consent sent; provided, however, that if the ; provided, however, tha
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participate in such new festival on at articipate in such new festiva
to do so, such consent shall be deem to do so, such conse
(Emphases supplied.) (Emphases supplied.)
RESPONSE NSE: Defendants refer : Defend
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of its contents and otherwi of its contents and
27. Not 27
it would not ap would
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all or substantially all of the assets of Variety. (Emphasis supplied). Thus, if the Operating
Agreement were deemed binding upon Variety, Inc., it would be subject in perpetuity to a broad
conflicts of interest provision requiring it to offer to BHMG the opportunity to participate in any
festival or other similar event worldwide on the same onerous and financially disadvantageous
terms as those set forth in the Operating Agreement. Those obligations do not exist under the
terms of the Letter Agreement.
RESPONSE: Defendants: (i) refer to the Letter Agreement and the Operating Agreement for a
complete and accurate account of their respective contents; (ii) aver that the second and third
sentences of Paragraph 27 state legal conclusions as to which no response is required; and (iii)
otherwise deny the allegations in Paragraph 27 of the Complaint.
28. The Operating Agreement contains no indication that Variety, Inc. was
represented by counsel in connection with the agreement. According to BHMG, Variety, Inc,
was represented in the agreement by the personal attorney of an officer of Variety, Inc. and not
Reeds counsel.
of its contents and otherwise deny the allegations in the first sentence of Paragraph 28, and deny
knowledge or information sufficient to form a belief as to the truth of the allegations in the
second sentence of Paragraph 28 of the Complaint.
C. The Asset Purchase Agreement
29. Reeds efforts to sell Variety eventually culminated in an agreement with
Penske Media Corporation (PMC) to purchase the assets of Variety, Inc., and PMC formed
Plaintiff for the purposes of the acquisition.
RESPONSE: Defendants: (i) refer to the APA for a complete and accurate account of its
contents; (ii) deny knowledge or information sufficient to form a belief as to why PMC formed
Plaintiff; and (iii) otherwise deny the allegations in Paragraph 29 of the Complaint.
30. On or about October 9, 2012, Plaintiff entered into an Asset Purchase Agreement
(the APA) with Defendants in which Plaintiff purchased certain assets owned by Defendants --
namely, the Variety publications and related intellectual property and other tangible assets (the
Transaction).
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o a broad
ipate in any ny
dvantageous ous
exist under the er the
perating Agreement for a greement for a
er that the second and third e second and third
h no response is required; and (iii) onse is required; and (iii)
Complaint. .
ains no indication that Variety, Inc. was no indication that Variety,
he agreement. According to BHMG, Variety, In ement. According to BHMG
personal attorney of an officer of Variety, Inc. a rsonal attorney of an officer of Variet
o the Operating Agreement for a complete and perating Agreement for a c
e deny the allegations in the first sentence of Pa deny the allegations in the first senten
ion sufficient to form a belief as to the truth of cient to form a belief as t
of Paragraph 28 of the Complaint. ph 28 of the Complaint.
Asset Purchase Agreement rchase Agreemen
29. Reeds efforts to sell s efforts to sel Variety Variety eventua
ske Media Corporation (PMC) to purchase th Corporation (PMC) to pur
laintiff for the purposes of the acquisition. laintiff for the purposes of the acquisitio
RESPONSE RESPONSE: Defendants: (i) refer to the A : Defendants:
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contents; (ii) deny knowledge or infor contents; (ii) deny knowledge
Plaintiff; and (iii) otherwise den and (iii) othe
30. On or abo
(the APA) with Def (the AP
namely, the namely, th Variety
Transaction). Transac
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RESPONSE: Defendants: (i) admit that they entered into the APA on or about October 9, 2012;
(ii) refer to the APA for a complete and accurate account of its contents; and (iii) otherwise deny
the allegations in Paragraph 30 of the Complaint.
31. As part of the APA, Defendants assigned, and Plaintiff accepted the assignment
of, various contracts to which Defendants were parties in connection with their ownership of the
Variety publications and the related intellectual property and other assets.
32. The scope of the assets and liabilities conveyed to and accepted by Plaintiff under
the APA is defined by Article II. Specifically regarding contractual liabilities, under Section
2.1(d), only those Contracts identified on Section 2.1(d) of the Sellers Disclosure Schedule were
included as Assigned Contracts. All other contracts of Defendants not disclosed to Plaintiff on
Section 2.1(d) of the Sellers Disclosure Schedule are Excluded Contracts and were not
transferred or conveyed to Plaintiff under the APA. Among the Excluded Liabilities, which
remain with the Sellers, are all Liabilities arising out of, relating to or in connection with the
Excluded Contracts and other Excluded Assets.
RESPONSE: Defendants refer to the APA and the Sellers Disclosure Schedule for a complete
and accurate account of their respective contents and otherwise deny the allegations in Paragraph
32 of the Complaint.
33. The contracts assigned to Plaintiff that were identified in a Sellers Disclosure
Schedule were also provided to Plaintiff for its review and consideration as part of Plaintiffs due
diligence efforts prior to the close of the Transaction.
RESPONSE: Defendants: (i) refer to the APA and the Sellers Disclosure Schedule for a
complete and accurate account of their respective contents; (ii) admit that certain contracts were
provided to Plaintiff prior to the execution of the APA; and (iii) otherwise deny the allegations in
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r 9, 2012; ;
otherwise deny deny
ff accepted the assignment ed the assignment
ion with their ownership of the heir ownership of th
other assets. s.
e and accurate account of its contents urate account of its contents
of the Complaint. the Complaint.
abilities conveyed to and accepted by Plaintiff s conveyed to and accepted b
cally regarding contractual liabilities, under Sec ally regarding contractual liabilities, un
on Section 2.1(d) of the Sellers Disclosure Sche n Section 2.1(d) of the Sellers Disclos
All other contracts of Defendants not disclosed other contracts of Defenda
losure Schedule are Excluded Contracts and w chedule are Excluded Co
ntiff under the APA. Among the Excluded Li tiff under the APA. Among the Ex
all Liabilities arising out of, relating to or in co all Liabilities arising out of, relating to
ther Excluded Assets. er Excluded Assets.
ndants refer to the APA and the Sellers Disclos APA and the Selle
ccount of their respective contents and otherwis f their respective contents and o
Complaint.
33. The contracts assigned to Plaintif The contracts assigned to
Schedule were also provided to Plaintiff for it Schedule were also provided to Plaint
diligence efforts prior to the close of the Tr diligence efforts prior to the
RESPONSE RESPONSE: Defendants: (i) refer to : Defendants: (i)
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complete and accurate account o e and accurate
provided to Plaintiff prior t provided to Plaintif
Paragraph 33 of the C Paragrap
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34. The Sellers Disclosure Schedule discloses the existence of the Letter Agreement,
which by that time had expired pursuant to its terms. The Operating Agreement was not
disclosed to Plaintiff as part of Plaintiffs due diligence by Defendants or otherwise and is not
listed on the Sellers Disclosure Schedule. The Operating Agreement is therefore an Excluded
Liability under the APA and was not assumed by Plaintiff as part of the Transaction.
RESPONSE: Defendants: (i) refer to the Letter Agreement and the Sellers Disclosure Schedule
for a complete and accurate account of their respective contents; (ii) aver that the first sentence
of Paragraph 34 states a legal conclusion concerning the expiration of the Letter Agreement as to
which no response is required; (iii) refer to the Sellers Disclosure Schedule for a complete and
accurate account of its contents and otherwise deny knowledge or information sufficient to form
a belief as to the truth of the allegation in the second sentence of Paragraph 34; (iv) aver that the
third sentence of Paragraph 34 states legal conclusions as to which no response is required; and
(v) otherwise deny the allegations in Paragraph 34 of the Complaint.
35. No other agreement or contract with Defendant BHMG apart from the Letter
Agreement was assigned to Plaintiff as part of the APA with Defendants or otherwise.
RESPONSE: Defendants aver that Paragraph 35 states a legal conclusion as to which no
response is required and otherwise deny knowledge or information sufficient to form a belief as
to the truth of the allegations in Paragraph 35 of the Complaint.
36. The Letter Agreement has expired under its own terms.
RESPONSE: Defendants: (i) aver that Paragraph 36 states a legal conclusion as to which no
response is required; (ii) refer to the Letter Agreement for a complete and accurate account of its
contents; and (iii) otherwise deny the allegations in Paragraph 36 of the Complaint.
37. Plaintiff is not a party to the undisclosed Operating Agreement.
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ement,
ot
and is not
an Excluded ded
ction.
rs Disclosure Schedule Schedule
aver that the first sentence the first sentence
tion of the Letter Agreement as to Letter Agreement as to
sclosure Schedule for a complete and chedule for a complete and
knowledge or information sufficient to form nowledge or information sufficient to f
econd sentence of Paragraph 34; (iv) aver that t nd sentence of Paragraph 3
l conclusions as to which no response is require conclusions as to which no response i
Paragraph 34 of the Complaint. ragraph 34 of the Complai
eement or contract with Defendant BHMG apar ment or contract with Defendant BHM
to Plaintiff as part of the APA with Defendants Plaintiff as part of the APA with Def
ndants aver that Paragraph 35 states a legal con aragraph 35 states a
uired and otherwise deny knowledge or inform d otherwise deny knowledge or
th of the allegations in Paragraph 35 of the Com gations in Paragraph 3
36. The Letter Agreement has expired The Letter Agreement has
RESPONSE RESPONSE: Defendants: (i) aver that Par : Defendants:
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response is required; (ii) refer to the L response is required; (ii) refer
contents; and (iii) otherwise den and (iii) othe
37. Plaintiff i
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D. The BHMG Claim
38. Following the close of the Transaction, BHMG forwarded to Plaintiff a copy of
the Operating Agreement, which Defendants had withheld from Plaintiff and which Plaintiff
never before had seen.
RESPONSE: Defendants deny the allegation that they withheld the Operating Agreement from
Plaintiff and otherwise deny knowledge or information sufficient to form a belief as to the truth
of the allegations in Paragraph 38 of the Complaint.
39. BHMG claimed the Operating Agreement was entered into at the end of March
2012.
40. BHMG further claimed that the Operating Agreement and certain other
undisclosed actions gave BHMG the exclusive right to activate multi-event, year-round
sponsorships for Variety well beyond the single Festival contemplated in the Letter Agreement.
41. BHMG further claimed that BHMGs rights extend beyond the proposed Festival
in Beverly Hills in that the Festival became a platform to activate existing Variety events year
round. BHMG asserted that as a result of the APA and Transaction, Plaintiff became a party to
the Operating Agreement, an agreement it claimed has no expiration date and can only be
canceled by both parties.
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the
to Plaintiff a copy of opy of
ff and which Plaintiff ch Plaintiff
ld the Operating Agreement from rating Agreement from
fficient to form a belief as to the truth form a belief as to the truth
g Agreement was entered into at the end of Ma ement was entered into at the
wledge or information sufficient to form a beli edge or information suffici
graph 39 of the Complaint. aph 39 of the Complaint.
further claimed that the Operating Agreement a laimed that the Operatin
s gave BHMG the exclusive right to activate e exclusive right to
Variety well beyond the single Festival contem well beyond the single Festiva
E: Defendants deny knowledge or information dants deny knowle
f the allegations in Paragraph 40 of the Compla s in Paragraph 40 of t
41. BHMG further claimed that BH 1. BHMG further claimed
in Beverly Hills in that the Festival becam in Beverly Hills in that the F
round. BHMG asserted that as a result round. BHMG asserted that a
the Operating Agreement, an agreeme the Operating Agreement, an
canceled by both parties. canceled by both parties.
RESPONSEE: Defendants de : Defend
$
truth of the allegations in truth o
12
42. BHMG further claimed that the Operating Agreement is a general template, but
the actual written correspondence, and Variety approved decks further clarify our relationship.
43. Following an exchange of communications between Plaintiff and BHMG in late
2012 and early 2013 regarding the terms of the Operating Agreement, BHMG, through its
principal Bert Bedrosian, asserted that Plaintiff had repudiated the Operating Agreement through
its actions and was therefore in breach of the Operating Agreement. BHMG demanded that
Plaintiff participate in the dispute resolution proceedings set forth in the Operating Agreement.
44. Out of an abundance of caution, and in the spirit of compromise, Plaintiff agreed
to mediate the claim asserted by BHMG. Plaintiff and BHMG participated in two mediation
sessions with a JAMS mediator on February 21 and April 26, 2013. No resolution was reached
during the course of the mediation sessions.
45. On April 30, 2013, BHMG filed suit against Plaintiff in the Los Angeles Superior
Court, Case No. 507496 based upon its allegations that Plaintiff had repudiated the Operating
Agreement. BHMG alleged claims for Breach of Fiduciary Duty, Conversion, Breach of
Contract, Breach of Duty of Good Faith and Fair Dealing and Declaratory Relief. BHMG
alleged $10 million in damages and a right to recover punitive damages.
RESPONSE: Defendants refer to the BHMG Complaint for a complete and accurate account of
its contents and otherwise deny the allegations in Paragraph 45 of the Complaint.
46. On May 1, 2013, Plaintiff filed an Answer to BHMGs Complaint generally
denying the allegations thereof and asserting various affirmative defenses and a counterclaim
alleging claims for Fraud, Declaratory Relief, Interference, Trademark Infringement, Common
Counts and Unfair Competition.
$
!
,
te, but
onship.
lief as to the the
Plaintiff and BHMG in late nd BHMG in late
ment, BHMG, through its MG, through its
the Operating Agreement through ing Agreement through
eement. BHMG demanded that BHMG demanded that
set forth in the Operating Agreement. n the Operating Agreement.
mation sufficient to form a belief as to the ation sufficient to form a belief as to t
Complaint. mplaint.
caution, and in the spirit of compromise, Plaint aution, and in the spirit of compromis
MG. Plaintiff and BHMG participated in two m G. Plaintiff and BHMG pa
n February 21 and April 26, 2013. No resolutio ary 21 and April 26, 2013.
tion sessions. on sessions.
s deny knowledge or information sufficient to f deny knowledge or information suffic
ns in Paragraph 44 of the Complaint. 4 of the Complaint.
On April 30, 2013, BHMG filed suit against ril 30, 2013, BHM
ase No. 507496 based upon its allegations that P 96 based upon its alle
ment. BHMG alleged claims for Breach of Fidu alleged claims for Bre
tract, Breach of Duty of Good Faith and Fair D ch of Duty of Good Faith an
lleged $10 million in damages and a right to rec lleged $10 million in damages and a righ
RESPONSE RESPONSE: Defendants refer to the BHM : Defendants r
$
its contents and otherwise deny the al its contents and otherwise den
46. On May 1, 201 On Ma
denying the allegations the denying the allegat
alleging claims for Frau allegi
Counts and Unfair Co Counts a
13
RESPONSE: Defendants: (i) admit that on or about May 1, 2013, Plaintiff filed an Answer to
the BHMG Complaint; (ii) refer to that Answer for a complete and accurate account of its
contents; and (iii) otherwise deny the allegations in Paragraph 46 of the Complaint.
47. Upon information and belief, as a result of the terms of the Operating Agreement
between BHMG and Variety, Inc., BHMG markets and holds itself out as a partner of Plaintiff
and an authorized user of the Variety marks, which Plaintiff owns. BHMG now also continues
to disparage Plaintiff in the marketplace and interfere with Plaintiffs business by making false
representations to potential sponsors that BHMG is exclusively authorized to activate
sponsorships on Plaintiffs behalf pursuant to the Operating Agreement. BHMG also has sought
to register certain trademarks containing the phrase Power of, which are confusingly similar to
trademarks owned by Plaintiff as a result of the Transaction.
and otherwise deny the allegations concerning Plaintiffs ownership of trademarks as a result of
the APA, and deny knowledge or information sufficient to form a belief as to the truth of the
remaining allegations in Paragraph 47 of the Complaint.
48. BHMG obtained a single sponsor for the planned Festival. Upon information and
belief, that sponsor paid Variety, Inc. $500,000 in sponsorship money.
RESPONSE: Defendants: (i) admit that Variety Inc. processed receipts totaling $500,000 from
one entity in connection with the planned Festival; (ii) aver that those receipts were then paid to
BHEN Enterprises LLC; and (iii) otherwise deny knowledge or information sufficient to form a
belief as to the truth of the allegations in of Paragraph 48 of the Complaint.
49. Upon information and belief, Defendants paid to BHMG $162,500 and the
remaining $175,000 to BHEN Enterprises, LLC -- the entity formed by the Operating Agreement
-- to offset the costs of activation of the sponsorship. Of that $175,000, $50,000 was paid to an
affiliate of BHMG as a commission for obtaining the sponsor. The remaining $125,000 remains
in a bank account owned and controlled by BHMG.
$
!
,
wer to
of its
aint.
the Operating Agreement ing Agreement
out as a partner of Plaintiff artner of Plaintiff
ns. BHMG now also continues G now also continu
ntiffs business by making false iness by making false
ely authorized to activate rized to activate
ng Agreement. BHMG also has sought ment. BHMG also has sought
ower of, which are confusingly similar to which are confusingly simila
nsaction. act
r a complete and accurate account of its content complete and accurate acco
rning Plaintiffs ownership of trademarks as a r ing Plaintiffs ownership of trademark
formation sufficient to form a belief as to the tr mation sufficient to form a
raph 47 of the Complaint. ph 47 of the Complaint.
obtained a single sponsor for the planned Festi a single sponsor for the
paid Variety, Inc. $500,000 in sponsorship mon $500,000 in sponso
Defendants: (i) admit that Variety Inc. process nts: (i) admit that Variety Inc.
y in connection with the planned Festival; (ii) av on with the planned F
EN Enterprises LLC; and (iii) otherwise deny k ises LLC; and (iii) otherwis
belief as to the truth of the allegations in of Pa belief as to the truth of the allegations
49. Upon information and 49. Upon informat
remaining $175,000 to BHEN Ente remaining $175,000 to BH
-- to offset the costs of activation et the costs o
affiliate of BHMG as a comm BHMG as
in a bank account owned an in a bank account o
14
RESPONSE: Defendants deny the first sentence of Paragraph 49 and otherwise deny
knowledge or information sufficient to form a belief as to the truth of the allegations in
50. Since Variety, Inc. and BHMG elected, prior to the close of the APA Transaction,
not to pursue the Festival, Plaintiff has been forced to accommodate the sponsor by providing
alternative sponsorship opportunities and activations at Plaintiffs sole cost and expense.
51. Although BHMG has represented that the $125,000 currently maintained by it
would be paid to Plaintiff to reimburse it for the expense of accommodating the sponsor, it has
failed and refused to remit the money to Plaintiff. Plaintiff has incurred well more than $125,000
in expenses in connection with said sponsor.
E. The COP Claim
52. Plaintiff was recently provided with the following amendments in respect of that
certain Printing Agreement made as of January 1, 2002, by and between Variety, Inc. and
California Offset Printers (collectively, the COP Amendments): (1) Amendment to Printing
Agreement entered into as of July 1, 2005; (2) Letter Amendment to Printing Agreement
between California Offset Printers, Inc. and Variety, Inc. dated September 23, 2011; and (3)
Letter Amendment to Printing Agreement dated July 31, 2012.
RESPONSE: Defendants: (i) admit that Variety, Inc. and California Offset Printers entered into
an agreement on or about January 1, 2002 that was subsequently amended, including by
amendments on or about July 1, 2005, September 23, 2011, and July 31, 2012 (the COP
Agreement); (ii) refer to the COP Agreement for a complete and accurate account of its
contents; and (iii) otherwise deny knowledge or information sufficient to form a belief as to the
truth of the remaining allegations in Paragraph 52 of the Complaint.
$
!
,
in
e of the APA Transaction, PA Transaction,
the sponsor by providing sor by providin
sole cost and expense. and expense.
ufficient to form a belief as to the to form a belief as to the
nt.
ed that the $125,000 currently maintained by it hat the $125,000 currently
the expense of accommodating the sponsor, it pense of accommodating the
Plaintiff. Plaintiff has incurred well more than $ aintiff. Plaintiff has incurred well mo
onsor. nsor.
knowledge or information sufficient to form a b dge or information sufficien
ragraph 51 of the Complaint. agraph 51 of the Complaint.
m
aintiff was recently provided with the following s recently provided with the fo
g Agreement made as of January 1, 2002, by an ment made as of January 1, 200
Offset Printers (collectively, the COP Amendm ters (collectively, t
nt entered into as of July 1, 2005; (2) Letter Am nto as of July 1, 2005;
en California Offset Printers, Inc. and Variety, I ffset Printers, Inc. and
er Amendment to Printing Agreement dated Ju ment to Printing Agreement
RESPONSE RESPONSE: Defendants: (i) admit that Vari : Defendants: (i) admit t
$
an agreement on or about January 1, 200 an agreement on or about Janu
amendments on or about July 1, 20 amendments on or about Ju
Agreement); (ii) refer to the ); (ii) refe
contents; and (iii) otherw conten
truth of the remain truth of th
15
53. Like with the BHMG Operating Agreement, none of the COP Amendments was
included within Section 2.1(d) (the Assigned Contract portion) of the Sellers Disclosure
Schedule. While certain other portions of the Sellers Disclosure Schedule did include a
reference to a July 2012 amendment to the COP printing agreement (with no reference to any
other amendments), no such amendments were ever provided by Defendants as part of Plaintiffs
due diligence in connection with the APA and were not included as assigned contracts on the
Sellers Disclosure Schedule. Indeed, Plaintiff never saw any of the COP Amendments until they
were forwarded to Plaintiff by COP after the closing of the acquisition transaction. The most
significant of the undisclosed amendments was the amendment dated in September 2011, which
purported to extend the term of the unsigned Printing Agreement until June 2016.
RESPONSE: Defendants refer to the Sellers Disclosure Schedule and the COP Agreement for a
complete and accurate account of their respective contents and otherwise deny the allegations in
the first and second sentences of Paragraph 53, and deny knowledge or information sufficient to
form a belief as to the truth of the remaining allegations in Paragraph 53 of the Complaint.
54. As a result of Defendants withholding of the COP Amendments, they were not
assigned to or assumed by Plaintiff in connection with the APA and, to the extent the COP
Amendments constitute valid agreements and/or binding obligations, they are Excluded
Liabilities, which remain with Defendants.
55. California Offset Printers has contended that the COP Amendments are
obligations binding upon Plaintiff and has threatened legal action against Plaintiff for alleged
breaches of the COP Amendments.
A. Defendants Indemnity Obligation
56. The APA provides that:
[T]he Sellers shall jointly and severally indemnify and defend the Purchaser and
its Affiliates, directors, officers, partners, members, equity holders, employees,
agents and representatives, and their respective successors and permitted assigns
(collectively, the Purchaser Indemnified Group) against, and shall hold the
Purchaser Indemnified Group harmless from, any and all loss, Liability, claim,
action, suit, proceeding, damage or expense (including reasonable attorneys fees,
$
!
,
ents was
osure
lude a
ference to any o any
as part of Plaintiffs Plaintiffs
ned contracts on the n the
P Amendments until they ments until they
on transaction. The most ction. The mo
ated in September 2011, which ptember 2011, whic
nt until June 2016. ne 2016.
Schedule and the COP Agreement for a and the COP Agreement for a
ntents and otherwise deny the allegations in tents and otherwise deny the allegation
and deny knowledge or information sufficient d deny knowledge or inform
ng allegations in Paragraph 53 of the Complain g allegations in Paragraph 53 of the C
endants withholding of the COP Amendments, withholding of the COP A
ntiff in connection with the APA and, to the ex tiff in connection with the APA and,
d agreements and/or binding obligations, they a agreements and/or binding obligation
with Defendants. th Defendants.
ndants deny the allegations in Paragraph 54 of legations in Paragra
California Offset Printers has contended tha nia Offset Printers
ns binding upon Plaintiff and has threatened leg pon Plaintiff and has t
es of the COP Amendments. Amendments
ESPONSE ESPONSE: Defendants deny knowledge or in : Defendants deny knowled
$
truth of the allegations in Paragraph 55 of t truth of the allegations in Pa
A. Defendants Indemnity Obli A. Defendants Indemn
56. The APA provide 6. The AP
[T]he Sellers shall j Seller
its Affiliates, dir
agents and rep a
(collectively (co
Purchase P
action
16
court costs and other out-of-pocket expenses) (collectively, Losses) incurred by
any member of the Purchaser Indemnified Group resulting from, arising out of or
in connection with . . . any Excluded Liabilities.
57. Plaintiff is a member of the Purchaser Indemnified Group as that phrase is defined
by the APA. The claims asserted by BHMG and COP arise from the Operating Agreement and
COP Amendments -- Excluded Liabilities under the APA. Defendants therefore owe Plaintiff
indemnification obligations in connection therewith.
58. On March 19, 2013, Plaintiff made demand upon Defendants that Defendants
indemnify Plaintiff and hold Plaintiff harmless from all Losses and other expenses incurred by
Plaintiff in connection with the Operating Agreement and COP Amendments, including in
connection with the BHMG mediations and further proceedings.
RESPONSE: Defendants: (i) admit that Michael N. Steuch of Mangels Butler & Mitchell LLP,
purportedly on behalf of Plaintiff, sent a letter dated March 19, 2013 to counsel for Defendants;
(ii) refer to that letter for a complete and accurate account of its contents; and (iii) otherwise
deny the allegations in Paragraph 58 of the Complaint.
59. On April 5, 2013, Defendants rejected Plaintiffs indemnification demand.
Defendants refusal to acknowledge and adhere to their clear indemnification obligations arising
from their failure to disclose the existence of the Operating Agreement and COP Amendments
amount to a breach of the APA.
RESPONSE: Defendants: (i) admit that Sybella Stanley, Corporate Finance Director of Reed
Elsevier, Inc. sent a letter to Paul Woolnough of Variety Media, LLC dated April 5, 2013 in
response to Mr. Steuchs March 19, 2013 letter; (ii) refer to Ms. Stanleys April 5 letter for a
complete and accurate account of its contents; and (iii) otherwise deny the allegations in
f or
t of its contents ntents
Group as that phrase is defined that phrase is defined
m the Operating Agreement and rating Agreement and
efendants therefore owe Plaintiff herefore owe Plaintiff
mplete and accurate account of its contents plete and accurate account of its conte
h 57 of the Complaint. 7 of the Complaint.
intiff made demand upon Defendants that Defe ntiff made demand upon Defendants th
f harmless from all Losses and other expenses i armless from all Losses an
perating Agreement and COP Amendments, inc g Agreement and COP Am
diations and further proceedings. iations and further proceedings.
s: (i) admit that Michael N. Steuch of Mangels (i) admit that Michael N. Steuch of M
lf of Plaintiff, sent a letter dated March 19, 201 nt a letter dated Marc
letter for a complete and accurate account of it r a complete and accurate acco
allegations in Paragraph 58 of the Complaint. n Paragraph 58 of the
59. On April 5, 2013, Defendants reje On April 5, 2013, Defenda
Defendants refusal to acknowledge and adher Defendants refusal to acknowledge an
from their failure to disclose the existence o from their failure to disclos
amount to a breach of the APA. amount to a breach of the APA
RESPONSE RESPONSE: Defendants: (i) adm : Defendants:
$
Elsevier, Inc. sent a letter to P c. sent a le
response to Mr. Steuchs respo
complete and accur complete a
Paragraph 59
17
60. Plaintiff has incurred and anticipates that it will continue to incur liability for
Losses resulting from the Excluded Liabilities described above in an amount not yet
ascertainable including, but not limited to attorneys fees, including in connection with the
BHMG mediations and lawsuit, as well as any potential award made against Plaintiff therein.
RESPONSE: Defendants deny that Plaintiff has incurred liabilities resulting from Excluded
Liabilities and otherwise deny knowledge or information sufficient to form a belief as to the truth
of the allegations in Paragraph 60 of the Complaint.
FIRST CAUSE OF ACTION
(Breach of Contract Against All Defendants)
61. Plaintiff realleges and incorporates herein by this reference each and every
foregoing paragraph as though fully set forth herein.
RESPONSE: Defendants repeat and reallege their responses to Paragraphs 1 through 60 of the
Complaint as if fully set forth herein.
62. Plaintiff and Defendants are parties to the APA, a validly existing contract under
New York law.
63. Pursuant to the terms of the APA, Defendants are obligated to defend and
indemnify Plaintiff against and to hold Plaintiff harmless from all losses, liabilities and claims
resulting from, arising out of or in connection with any Excluded Liabilities.
64. The Operating Agreement and COP Amendments, as defined above, are Excluded
Liabilities under the APA. Plaintiff has incurred losses and liabilities and is subject to claims
arising from those Excluded Liabilities as alleged above. Accordingly, Defendants owe Plaintiff
indemnification obligations pursuant to the terms of the APA. Plaintiff has demanded that
Defendants recognize and honor such obligations but Defendants refuse to do so.
y for
with the
aintiff therein. rein.
ting from Excluded uded
o form a belief as to the truth belief as to the truth
ACTIONN
inst All Defendants) nst All Defendants)
tes herein by this reference each and every herein by this reference ea
herein. n
allege their responses to Paragraphs 1 through llege their responses to Paragraphs 1 t
ein.
nd Defendants are parties to the APA, a validly Defendants are parties to the APA, a
fendants admit the allegations in Paragraph 62 o dmit the allegations in Paragr
. Pursuant to the terms of the APA, Defend ant to the terms of the
nify Plaintiff against and to hold Plaintiff harml gainst and to hold Plai
lting from, arising out of or in connection with g out of or in connect
RESPONSE RESPONSE: Defendants refer to the APA fo : Defendants refer to the
$
and otherwise deny the allegations in Par and otherwise deny the allegat
64. The Operating Ag 64. The O
Liabilities under the APA. Pl under the A
arising from those Exclude arising from those E
indemnification obligatio indem
Defendants recognize Defenda
RESPONSE RESPO : D
18
65. Defendants have breached the APA by failing and refusing to honor and satisfy its
indemnification obligation. In addition, Defendants breached the APA by failing to disclose the
existence of the Operating Agreement and COP Amendments as alleged above.
66. Plaintiff has complied with all of its obligations under the APA, except as excused
by Defendants acts or omissions.
67. As a proximate result of Defendants failure to perform as described above,
Plaintiff has suffered damages in an amount to be proven at trial, which amount includes the
principal sum of $10 million.
SECOND CAUSE OF ACTION
(Declaratory Relief Against All Defendants)
68. Plaintiff realleges and incorporates herein by this reference each and every
foregoing paragraph as though fully set forth herein.
RESPONSE: Defendants repeat and reallege their responses to Paragraphs 1 through 67 of the
Complaint as if fully set forth herein.
69. A justiciable controversy has arisen between Plaintiff and Defendants in that
Plaintiff contends that (1) Defendants are obligated to defend and indemnify Plaintiff against and
to hold Plaintiff harmless from all losses, liabilities and claims resulting from, arising out of or in
connection with any Excluded Liabilities; (2) the Operating Agreement and COP Amendments
are Excluded Liabilities under the APA; (3) Defendants are obligated to defend and indemnify
Plaintiff against and to hold Plaintiff harmless from all losses, liabilities and claims resulting
from, arising out of or in connection with the Operating Agreement and COP Amendments; and
(4) Plaintiff is not a party to the Operating Agreement or COP Amendments and the contractual
obligations arising therefrom remain with Defendants.
RESPONSE: Defendants: (i) admit that Plaintiff purports to enumerate its contentions in this
case; (ii) aver that Paragraph 69 of the Complaint constitutes a legal conclusion as to which no
satisfy its s
disclose the he
laint.
r the APA, except as excused A, except as excused
66 of the Complaint. e Complaint.
failure to perform as described above, ailure to perform as described above,
proven at trial, which amount includes the roven at trial, which amount includes
ations in Paragraph 67 of the Complaint. ions in Paragraph 67 of the Complain
ECOND CAUSE OF ACTION D CAUSE OF ACTION
claratory Relief Against All Defendants) aratory Relief Against All Defendan
alleges and incorporates herein by this referenc eges and incorporates herein by this r
though fully set forth herein. fully set forth herein.
fendants repeat and reallege their responses to epeat and reallege their respo
s if fully set forth herein. et forth herein.
69. A justiciable controversy has arisen ciable controversy ha
laintiff contends that (1) Defendants are obligat laintiff contends that (1) Defendants are
to hold Plaintiff harmless from all losses, liabi to hold Plaintiff harmless from all loss
connection with any Excluded Liabilities; ( connection with any Exclud
are Excluded Liabilities under the APA; are Excluded Liabilities under
Plaintiff against and to hold Plaintiff h Plaintiff against and to hold P
from, arising out of or in connection from, arising out of or in co
(4) Plaintiff is not a party to the O ntiff is not a p
obligations arising therefrom r arising the
RESPONSE RES : Defendan
case; (ii) aver that P case; (ii) a

19
response is required; (iii) refer to the APA for a complete and accurate account of its contents;
and (iv) otherwise deny the allegations in Paragraph 69 of the Complaint.
70. Upon information and belief, Defendants deny those contentions.
RESPONSE: Defendants repeat and reallege their response to Paragraph 69 of the Complaint.
71. Accordingly, Plaintiff seeks a declaration to the effect that (1) Defendants are
obligated to defend and indemnify Plaintiff against and to hold Plaintiff harmless from all losses,
liabilities and claims resulting from, arising out of or in connection with any Excluded
Liabilities; (2) the Operating Agreement and COP Amendments are Excluded Liabilities under
the APA; (3) Defendants are obligated to defend and indemnify Plaintiff against and to hold
Plaintiff harmless from all losses, liabilities and claims resulting from, arising out of or in
connection with the Operating Agreement and COP Amendments; and (4) Plaintiff is not a party
to the Operating Agreement or COP Amendments and the contractual obligations arising
therefrom remain with Defendants.
RESPONSE: Defendants admit that Plaintiff purports to seek a declaration as described in
Paragraph 71 of the Complaint and deny that Plaintiff is entitled to, or that the Court should
grant, any such declaration.
DEFENSES
As and for their affirmative defenses, Defendants allege as follows, without assuming any
burden of pleading or proof that would otherwise rest with Plaintiff, and without waiving and
hereby expressly reserving the right to assert any and all additional defenses at such time and to
such extent as discovery and factual developments establish a basis therefore:
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
The Complaint fails to allege facts sufficient to state a cause of action against Defendants
upon which relief can be granted.
$
!
,
ents;
ions.
aph 69 of the Complaint. he Complaint.
effect that (1) Defendants are (1) Defendants are
old Plaintiff harmless from all losses, iff harmless from all losses,
onnection with any Excluded with any Excluded
endments are Excluded Liabilities under are Excluded Liabilities und
d indemnify Plaintiff against and to hold ndemnify Plaintiff against and to hold
laims resulting from, arising out of or in ims resulting from, arising out of or in
COP Amendments; and (4) Plaintiff is not a pa P Amendments; and (4) Pl
ments and the contractual obligations arising and the contractual obligation
at Plaintiff purports to seek a declaration as desc laintiff purports to seek a d
and deny that Plaintiff is entitled to, or that the nd deny that Plaintiff is entitled to, o
n.
DEFENSES EFENSES
!
and for their affirmative defenses, Defendants a ir affirmative def

n of pleading or proof that would otherwise res proof that would oth
hereby expressly reserving the right to assert an hereby expressly reserving the right to a
such extent as discovery and factual devel such extent as discovery and
FIRST
(Fa
The Complaint fails t Complai
upon which relief can b upon w
20
SECOND AFFIRMATIVE DEFENSE
(Breach of Agreement)
The relief sought in the Complaint is barred, in whole or in part, by Plaintiffs own
breach of its obligations under the Asset Purchase Agreement.
THIRD AFFIRMATIVE DEFENSE
(Lack of Causation)
The relief sought in the Complaint is barred, in whole or in part, because the harm
suffered by Plaintiff, if any, was caused by persons, facts, and circumstances other than those
alleged in the Complaint, including Plaintiffs own conduct.
FOURTH AFFIRMATIVE DEFENSE
(No Damage to Plaintiff)
The relief sought in the Complaint is barred, in whole or in part, because Plaintiff has not
suffered any damages or harm.
FIFTH AFFIRMATIVE DEFENSE
(Damages Speculative)
Plaintiffs damages, if any, are speculative, and thus are not recoverable.
SIXTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
The relief sought in the Complaint is barred, in whole or in part, because Plaintiff has
failed to mitigate damages, if any.
SEVENTH AFFIRMATIVE DEFENSE
(Set-Off)
Plaintiffs alleged damages must be set-off and/or reduced by amounts Plaintiff owes to
Defendants.
$
!
,
ffs own
r in part, because the harm ecause the harm
and circumstances other than those mstances other than those
onduct. nd
MATIVE DEFENSE ATIVE DEFENSE
mage to Plaintiff) Plaintiff
aint is barred, in whole or in part, because Plain nt is barred, in whole or in part, becau
FIFTH AFFIRMATIVE DEFENSE FIFTH AFFIRMATIVE DEFENSE
(Damages Speculative) (Damages Specul
amages, if any, are speculative, and thus are not speculative, and th
SIXTH AFFIRMATIVE DEF SIXTH AFFIRMATIV
(Failure to Mitigate (F
The relief sought in the Complaint is barred, in ght in the Complaint i
iled to mitigate damages, if any. iled to mitigate damages, if any.
SEVENTH AF
Plaintiffs alleged damages Plaintiffs alleged d
Defendants.
21
EIGHTH AFFIRMATIVE DEFENSE
(Equitable Estoppel)
The relief sought in the Complaint is barred, in whole or in part, by the doctrine of
equitable estoppel.
NINTH AFFIRMATIVE DEFENSE
(Waiver)
The relief sought in the Complaint is barred, in whole or in part, because Plaintiff, by its
own acts, errors, and omissions, has waived its rights, if any, to recover against Defendants.
TENTH AFFIRMATIVE DEFENSE
(Unclean Hands)
The relief sought in the Complaint is barred, in whole or in part, by the equitable doctrine
of unclean hands.
ELEVENTH AFFIRMATIVE DEFENSE
(Unjust Enrichment)
The relief sought in the Complaint is barred, in whole or in part, by the equitable doctrine
of unjust enrichment.
COUNTERCLAIM
Counterclaim-Plaintiffs Reed Elsevier, Inc., Variety, Inc., Reed Elsevier Properties, Inc.,
and Reed Business Information, Ltd. (collectively, Counterclaim-Plaintiffs or Reed), by and
through their attorneys, bring this counterclaim against Variety Media, LLC (Variety Media or
Counterclaim-Defendant), and allege as follows:
NATURE OF THIS COUNTERCLAIM
1. Using this suit as an apparent pretense, Variety Media defaulted on its obligation
to pay $1,300,000, plus interest, of the purchase price for Variety that it owes to Reed under the
$
!
,
ctrine of
r in part, because Plaintiff, by its ecause Plaintiff, by its
ny, to recover against Defendants. ver against Defendants.
VE DEFENSE VE DEFENSE
Hands) Hands)
barred, in whole or in part, by the equitable do , in whole or in part, by the e
ENTH AFFIRMATIVE DEFENSE AFFIRMATIVE DEFEN
(Unjust Enrichment) ust Enrichment)
in the Complaint is barred, in whole or in part, b the Complaint is barred, in whole or
t.
COUNTERCLAIM C
!
Counterclaim-Plaintiffs Reed Elsevier, Inc., V -Plaintiffs Reed Elsev

nd Reed Business Information, Ltd. (collectivel nd Reed Business Information, Ltd. (col
through their attorneys, bring this countercl through their attorneys, brin
Counterclaim-Defendant), and alleg Counterclaim-Defendant), a
NAT
1. Using this su Usin
to pay $1,300,000, plu to pay $
22
APA. Variety Media agreed to pay this sum as recently as March 15, 2013, long after its
disputes with BHMG and California Offset Printers arose.
2. Variety Media has no valid basis to withhold the remainder of the purchase price
for Variety and Reed respectfully requests that the Court award damages to Reed in the amount
including the agreed upon payment of $1,300,000, plus interest.
PARTIES
3. At all relevant times Counterclaim-Plaintiff Reed Elsevier, Inc. was and is a
Massachusetts corporation with its principal place of business in New York, New York.
4. At all relevant times Counterclaim-Plaintiff Variety, Inc. was and is a Delaware
corporation with its principal place of business in New York, New York.
5. At all relevant times Counterclaim-Plaintiff Reed Elsevier Properties, Inc. was
and is a Delaware corporation with its principal place of business in New York, New York.
6. At all relevant times Counterclaim-Plaintiff Reed Business Information, Ltd. was
and is an entity organized and existing under the laws of England.
7. Upon information and belief, Counterclaim-Defendant Variety Media, LLC is a
limited liability company duly organized under the laws of the State of Delaware with its
principal place of business in the City and County of Los Angeles.
JURISDICTION AND VENUE
8. This Court has jurisdiction over Variety Media by virtue of its filing its Complaint
in this action against Counterclaim-Plaintiffs.
9. Venue is properly laid in this Court under New York Civil Practice Law and
Rules 501.
$
!
,
he purchase price se price
o Reed in the amount amount
f Reed Elsevier, Inc. was and is a evier, Inc. was and is a
f business in New York, New York. business in New York, New York.
im-Plaintiff Variety, Inc. was and is a Delawar Plaintiff Variety, Inc. was
iness in New York, New York. ness in New York, New York.
Counterclaim-Plaintiff Reed Elsevier Propertie unterclaim-Plaintiff Reed E
with its principal place of business in New Yor ith its principal place of business in
vant times Counterclaim-Plaintiff Reed Busines nt times Counterclaim-Plaintiff Reed
nized and existing under the laws of England. under the laws of E
Upon information and belief, Counterclaim-De formation and belief, Counterc
ability company duly organized under the laws any duly organized un
cipal place of business in the City and County o of business in the City and
JURISDICT JURI
8. This Court has jurisdictio 8. This Court has j
in this action against Counterclaim in this action against Count
9. Venue is prope Venue
Rules 501. Rules
23
FACTUAL ALLEGATIONS
10. On or about October 9, 2012, Reed, as Sellers, entered into the Asset Purchase
Agreement with Variety Media, as Purchaser.
11. The price that Variety Media agreed to pay Reed to acquire the Variety assets was
based in part on the working capital of Reeds Variety business as of the closing date of the
APA. In order to facilitate the sale while allowing all parties an opportunity to conduct their own
calculation of the working capital, the APA provided for an initial payment at closing based in
part on Reeds estimate of working capital, followed by an adjustment payment to the extent the
closing working capital was later determined to be different than Reeds estimate.
12. Section 2.6 of the Asset Purchase Agreement sets forth the procedure by which
Reed and Variety Media were to come to an agreement regarding the Closing Working Capital
and any adjustment payment. Broadly speaking, that section provides that Reed would deliver
an estimate of Closing Working Capital shortly before closing (the Estimated Working
Capital), upon which the initial payment would be based; Variety Media would prepare its own
calculation within 90 days after closing; Reed would review that calculation in the following 30
days; and the parties would then attempt to reach a good faith agreement or, if that failed, retain a
third party to assist in the final determination of the Closing Working Capital.
13. Section 2.6 of the APA further provides that if the Closing Working Capital (as
finally determined) exceeds the Estimated Working Capital upon which the closing payment was
based, Variety Media shall pay an adjustment payment equal to the difference between the
two, plus interest, within three business days of the parties determination of Closing Working
Capital.
14. Specifically, Section 2.6 (e)(ii) of the Asset Purchase Agreement provides:
$
!
,
Purchase
e the Variety assets was ssets was
f the closing date of the ng date of the
n opportunity to conduct their own ity to conduct their own
an initial payment at closing based in ayment at closing based in
d by an adjustment payment to the extent the by an adjustment payment to the exten
o be different than Reeds estimate. e different than Reeds estim
urchase Agreement sets forth the procedure by w chase Agreement sets forth the proced
me to an agreement regarding the Closing Wor to an agreement regarding
Broadly speaking, that section provides that Re roadly speaking, that section provide
orking Capital shortly before closing (the Esti king Capital shortly before closing (th
ch the initial payment would be based; Variety ent would be based
hin 90 days after closing; Reed would review th ays after closing; Reed would r
the parties would then attempt to reach a good would then attempt to
d party to assist in the final determination of the ssist in the final determinati
13. Section 2.6 of the APA further 3. Section 2.6 of the APA
finally determined) exceeds the Estimate finally determined) exceeds the
based, Variety Media shall pay a based, Variety Media shal
two, plus interest, within thre terest, wit
Capital. Capita
14. Spe 14
24
Within three Business Days after Closing Working Capital has been finally
determined pursuant to this Section 2.6 . . . if the Closing Working Capital (as
finally determined) exceeds the Estimated Working Capital, the Purchaser
[Variety Media] shall pay to the Sellers [Reed], in the manner and with interest as
provided in Section 2.6(f), an amount of cash equal to the difference between the
Closing Working Capital and the Estimated Working Capital.
15. On March 9, 2013, Reed and Variety Media jointly determined that the Closing
Working Capital exceeded the Estimated Working Capital by $1,300,000 (the Agreed
Adjustment Amount) and agreed to settle all objections relating to the Closing Working Capital
in exchange for a payment from Variety Media to Reed of $1,300,000, plus interest, in
accordance with Section 2.6(f) of the APA.
16. Reed and Variety Medias agreement to the Agreed Adjustment Amount of
$1,300,000 was memorialized in correspondence dated March 9, 2013 between Paul Woolnough
on behalf of Variety Media and Alison Stanworth on behalf of Reed.
17. On March 12, 2013, pursuant to a request from Mr. Woolnough, Reed prepared a
draft settlement letter (the Settlement Letter) and delivered it via email to Variety Media.
18. On March 15, 2013, Mr. Woolnough provided Reed with comments to the
Settlement Letter. That same day, Reed accepted all of the requested changes and provided
Variety Media with a final Settlement Letter reflecting the final agreed-upon terms.
19. Thereafter, in blatant breach of Section 2.6 of the Asset Purchase Agreement, and
contrary to their agreement reflected in the March 9 and March 15 correspondence, Variety
Media failed to pay Reed the Agreed Adjustment Amount.
20. Reed provided Variety Media with updated final Settlement Letters, each revised
to reflect additional computed interest to account for the ongoing delay, on March 18, 2013,
March 22, 2013, March 28, 2013, April 5, 2013, April 12, 2013, April 19, 2013, and May 2,
2013. Variety Media failed to respond to these communications.
$
!
,
(as
haser
terest as
etween the he
rmined that the Closing at the Closing
300,000 (the Agreed the Agreed
ating to the Closing Working Capital he Closing Working Capital
d of $1,300,000, plus interest, in 0,000, plus interest, in
reement to the Agreed Adjustment Amount of t to the Agreed Adjustment A
spondence dated March 9, 2013 between Paul W pondence dated March 9, 2013 betwee
Alison Stanworth on behalf of Reed. tanworth on behalf of Reed
, 2013, pursuant to a request from Mr. Woolno 2013, pursuant to a request from Mr. W
the Settlement Letter) and delivered it via em ement Letter) and deliv
n March 15, 2013, Mr. Woolnough provided Re 5, 2013, Mr. Woolnough prov
Letter. That same day, Reed accepted all of the at same day, Reed
y Media with a final Settlement Letter reflecting final Settlement Lette
19. Thereafter, in blatant breach of Se Thereafter, in blatant brea
contrary to their agreement reflected in the contrary to their agreement r
Media failed to pay Reed the Agreed Media failed to pay Reed the
20. Reed provided V 0. Reed p
to reflect additional compu to reflect additiona
March 22, 2013, Mar March 22
2013. Variety M 013. V
25
21. Variety Medias failure to pay Reed the Agreed Adjustment Amount within three
Business Days after it was finally determined constitutes a breach of Section 2.6 of the Asset
Purchase Agreement.
22. Likewise, Variety Medias continued failure to pay Reed the Agreed Adjustment
Amount with interest constitutes a breach of Section 2.6 of the Asset Purchase Agreement.
23. As a proximate result of Variety Medias failure to perform as described above,
Counterclaim-Plaintiffs have suffered damages in an amount to be proven at trial, which amount
includes the Agreed Adjustment Amount of $1,300,000, together with accrued interest.
24. Counterclaim-Plaintiffs have complied with all of their obligations under the
Asset Purchase Agreement.
FIRST COUNTERCLAIM
(Breach of Contract)
25. Counterclaim-Plaintiffs reallege and incorporate herein by this reference
Paragraphs 1 through 24 of the Counterclaim as though fully set forth herein.
26. The Asset Purchase Agreement is a validly existing contract between
Counterclaim-Plaintiffs and Counterclaim-Defendant under New York law.
27. Pursuant to the terms of the Asset Purchase Agreement, Counterclaim-Defendant
was required to pay Counterclaim-Plaintiffs the Agreed Adjustment Amount, together with
interest as provided for in the Asset Purchase Agreement, within three Business Days after the
Agreed Adjustment Amount was finally determined.
28. Counterclaim-Plaintiffs and Counterclaim-Defendant reached an agreement on
March 9, 2012 that the Agreed Adjustment Amount was $1,300,000.
29. Counterclaim-Defendant has willfully breached the Asset Purchase Agreement by
its continued failure to pay Counterclaim-Plaintiffs the Agreed Adjustment Amount with interest.
$
!
,
n three
he Asset
he Agreed Adjustment ustment
t Purchase Agreement. e Agreement.
to perform as described above, m as described above,
unt to be proven at trial, which amount roven at trial, which amount
000, together with accrued interest. 00, together with accrued interest.
mplied with all of their obligations under the lied with all of their obliga
FIRST COUNTERCLAIM IRST COUNTERCLAIM
(Breach of Contract) (Breach of Contract)

m-Plaintiffs reallege and incorporate herein by th Plaintiffs reallege and incorporate her
24 of the Counterclaim as though fully set forth Counterclaim as though
he Asset Purchase Agreement is a validly existin urchase Agreement is a validl
m-Plaintiffs and Counterclaim-Defendant under fs and Counterclai
27. Pursuant to the terms of the Asset Purc ant to the terms of the
was required to pay Counterclaim-Plaintiffs the was required to pay Counterclaim-Plainti
interest as provided for in the Asset Purcha interest as provided for in th
Agreed Adjustment Amount was fina Agreed Adjustment Amount w
28. Counterclaim-Pla 8. Counte
March 9, 2012 that the Agr March 9, 2012 that
29. Counte 2
its continued fai s contin
26
30. As a proximate result of Counterclaim-Defendants failure to perform as
described above, Counterclaim-Plaintiffs have suffered damages in an amount to be proven at
trial, which amount includes the Agreed Adjustment Amount of $1,300,000, together with
accrued interest.
31. Counterclaim-Plaintiffs have complied with all of their obligations under the
Asset Purchase Agreement.
PRAYER FOR RELIEF
WHEREFORE, Defendants and Counterclaim-Plaintiffs respectfully request that the Court:
(A) Dismiss Plaintiffs Complaint;
(B) Award Defendants and Counterclaim-Plaintiffs the costs and attorneys fees
incurred in this action;
(C) Award Defendants and Counterclaim-Plaintiffs damages, together with interest as
allowed by law, on their Counterclaim in an amount to be determined at trial;
(D) Award Defendants and Counterclaim-Plaintiffs such other and further relief as the
Court deems just and proper.
Dated: June 18, 2013
New York, New York /s/ Dennis P. Orr
Dennis P. Orr
Kayvan B. Sadeghi
MORRISON & FOERSTER LLP
1290 Avenue of the Americas
New York, New York 10104
Telephone: (212) 468-8000
Facsimile: (212) 468-7900
Counsel to Defendants and Counterclaim-
Plaintiffs Reed Elsevier, Inc., Variety, Inc.,
Reed Elsevier Properties, Inc., and Reed
Business Information, Ltd.
$
!
,
proven at
gether with th
ir obligations under the ions under the
LIEF
.
aintiffs respectfully request that the Court: intiffs respectfully request that the C
t;
Counterclaim-Plaintiffs the costs and attorneys ounterclaim-Plaintiffs the costs and att
on;
ants and Counterclaim-Plaintiffs damages, toge ts and Counterclaim-Plaintiffs dama
y law, on their Counterclaim in an amount to be aw, on their Counterclaim in an amou
d Defendants and Counterclaim-Plaintiffs such nd Counterclaim-Plai
ourt deems just and proper. ms just and p
June 18, 2013 3
New York, New York ew York /s/ D
D

Reed Elsevier Response To Penske Variety Lawsuit

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Reed Elsevier Response To Penske Variety Lawsuit

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: COMMERCIAL DIVISION

rticipate in such new festival on terms similar such new festival on

case; (ii) aver that P case; (ii) a

and for their affirmative defenses, Defendants a ir affirmative def

Counterclaim-Plaintiffs Reed Elsevier, Inc., V -Plaintiffs Reed Elsev

(Breach of Contract) (Breach of Contract)

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