Form 1. Notice of Appeal Tax, Superior Court Case Caption; 78 Media, nev. Publi Broa Superior Court Case No.: 2018 CA 901247 B Filed D.C. Superior Court 09/04/2020 10:29AM |, Family Court - (Except Juvenile Cases), agiletolattcthe Court SUPERIOR COURT OF THE DISTRICT OF COLUMBIA NOTICE OF APPEAL ( CROSS APPEAL) ‘TAX, CIVIL, FAMILY COURT - (EXCEPT JUVENILE CASES), AND PROBATE, is given that (person appeati appealing an ordenfjudgment from the: {ssa ns tay Png ne sod Th Sosa Gs eg 5) Vax Division Civil Division © Family Court “= Probate Division . Dato of entry of judgment or order appealed from (if more than one judgment or order appeated, fist all): May 15, 2018 Order; August 5, 2020 Judgment Filing date of any post-judgment mot Date of entry of post-judginent order: Superi Court Judge: Is the order final (/.c., disposes of all claims and has been entered by a Superior Court Judge, not a Magistrate Judge)? 41! NO Ino, state the basis for jurisdiction: Mas there been any other noti of appeal filed in this case: Hf 0, list the other appeal numbers: IF this case was consolidated with another case in this court, tist the parties? names and the Superior Count ease number: Type of Case: S Civil] = BCivit HED Landlord and Tenant. Negleet 2 Termination of Parental Rights i Ado; jwardianship © Mental Health :Probate —“Jintervention —_) Domestic Relations © Mental Retardation /Patemity & Child Support Other: Indicate Status of Case; Paid {Hin Forma Pauperis ChCCAN Was counsel appointed in the trial court? YES “NO- (COMPLETE REVERSE SIDE) Revised 12809D, Provide the names, addresses, and telephone numbers of all parties to be served, For persons represented by counsel, identify counsel and whom the counsel represents. For cach person, state whether the person was a plaintiff or defendant in the Superior Court. *attach additional pages if necessary. Name Address Party Status Telephone No. (Plaintiff, Defendant) _See attached page E, _ fdentify the portions of the transcript needed for appeal, including the date of the proceeding, the name of the Court Reporter (or state that the matter was recorded on tape if no Court Reporter was present), the courtroom number where the proceeding was held, and the date the transcript was ordered, or a motion was filed for preparation of the transcript. *Attech additional pages if needed. Date of Procecding/Portion _—_-Reporter/Courtroom No. Date ordered Be. © Cheek this box if no transcript is needed for this appeal. F. Person filing appeal: 2 Plaintiff Pro Se ~ Defendant Pro Se OThied Pany/intervenor #4 Counsel for Plaintiff 2 Counsel for Defendant ATTACH A COPY OF THE ORDER, JUDGMENT OR POCKET ENTRY FROM WHICH THIS APPEAL IS TAKEN 1 Peo ee Mea Bar No, of Appellanv/Atorney sh ne Se nde OA 213-618-7060, Address : Telephone Number “Appellant is responsible for ordering and paying the fee for transeript(s) in the Court Reporting and Recording Division, Room $500. {f appellant has been granted In Forms Pauperis status, oF had an attorney appointed by the Family Court, and transcript is needed for this appeal, appellant must file a Motion for Transcript in Court Reporting and Recording Division, Room 5500. That office number is (202) 879-1009, if that motion is granted, transeript will be prepared at no cost to appellant,ATTACHMENT TO NOTICE OF APPEAL Grace E, Speights (DC Bar No. 392091) W. Brad Nes (DC Bar No. 975502) Amanda B, Robinson (DC Bar No. 1017689) Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 739-3000 Facsimile: (202) 739-3001 grace. speights@morganlewis.com brad.nes@morganlewis.com amanda.robinson@morganlewis.com Kevin E. Gaut (pro hac vice) Hayward J. Kaiser (pro hae vice) Mitchell Silberberg & Knupp LLP 2049 Century Park East, I8Floor Los Angeles, CA 90067 Telephone: (310) 312-2000 Facsimile: (310) 312-3100 keg@msk.com hjk@msk.com Attorneys for Public Broadcasting ServiceFiled D.C. Superior Court 05/15/2018 16:49PM Clerk of the Court SUPERIOR COURT OF THE DISTRICT OF COLUMB! CIVIL DIVISION TS MEDIA, INC., et al v Case No, 2018 CA 001247 B PUBLIC BROADCASTING SERVICE ORDER Invoking the D.C. Anti-SLAPP Act, D.C. Code §§ 16-5501 to -5505, defendant Public Broadcasting Service (“PBS”) filed a special motion to dismiss two tort claims of plaintiffs TS Media, Inc. (“TSM”), The Smiley Group, Inc., and Tavis Smiley Presents, Inc. (collectively “Plaintiffs”), The Court grants the motion. Dismissal with prejudice is required by a straightforward application of the Anti-SLAPP Act: PBS has made a prima facie, and indeed compelling, showing that Plaintiffs’ tort claims arise from its constitutionally protected statements to the public about matters of public interest involving a public figure; Plaintiffs have not provided evidence that they are likely to succeed on the merits of claims that arise from speech protected by the First Amendment; and Plaintiff’ have not demonstrated that targeted discovery will enable them to defeat PBS’s motion L BACKGROUND On February 20, 2018, Plaintiffs filed their four-count complaint alleging (1) breach of PBS's November 2016 agreement with TSM, (2) breach of PBS’s November 2017 agreement with TSM, (3) intentional interference with contract, and (4) tortious interference with business. expectancy. In the contract counts, Plaintiffs claim that the breach of contract was that PBS indefinitely suspended distribution of the Zavis Smiley show to PBS member stations after former co-workers accused Mr. Smiley of sexual harassment. The tort counts arise out of PBS'sstatements to the media in December 2017 that “multiple credible’ allegations of sexual misconduct” by Mr. Smiley caused it to stop distributing the show. Compl. §§ 60, 69 On April 16, 2018, PBS filed a special motion to dismiss the tort counts (Counts Three and Four) pursuant to the Anti-SLAPP Act (“Motion”). On April 30, 2018, Plaintiffs filed an opposition (“Opp.”). On May 7, 2018, PBS filed a reply (“Reply”) I LEGAL STANDARD “A ‘SLAPP” (strategic lawsuit against public participation) is an action ‘filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view.” Competitive Emerprise Institute v. Mann, 150 4.34 1213, 1226 (D.C, 2016) (quoting legislative history). The Anti-SLAPP Act tries “to deter SLAPPs by ‘extend[ing] substantive rights to defendants in a SLAPP, providing them with the ability to file a special motion to dismiss that must be heard expeditiously by the court.” Jd. at 1235 (quoting legislative history). “Consistent with the Anti-SLAPP Act’s purpose to deter meritless claims filed to harass the defendant for exercising First Amendment rights, true SLAPPs can be screened out quickly by requiring the plaintiff to present her evidence for judicial evaluation of its legal sufficiency early in the litigation.” Jd. at 1239. “Under the District’s Anti-SLAPP Act, the party filing a special motion to dismiss must first show entitlement to the protections of the Act by ‘makfing] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.”” Competitive Enterprise Institute, 150 A.3d at 1227 (quoting D.C. Code § 16- 5502(b)). “Once that prima facie showing is made, the burden shifts to the nonmoving party, usually the plaintiff, who must ‘demonstratef] that the claim is likely to succeed on the merits Id. (quoting § 16-5502(b)). “If the plaintiff cannot meet that burden, the motion to dismiss mustbe granted, and the litigation is brought to a speedy end.” /d. at 1227, Section 16-5502(d) provides, “If the special motion to dismiss is granted, dismissal shall be with prejudice.” Section 16-5502(d) also requires the Court to hold an “expedited hearing” on the motion and to issue a ruling “as soon as practicable after the hearing,” “[O]nce the burden has s! ed to the claimant, the statute requires more than mere reliance on allegations in the complaint, and mandates the production or proffer of evidence that supports the claim.” Competitive Emerprise Institute, 150 A.3d at 1233. “[I]n considering a special motion to dismiss, the court evaluates the likely success of the claim by asking whether a jury properly instructed on the applicable legal and constitutional standards could reasonably find that the claim is supported in light of the evidence that has been produced or proffered in connection with the motion.” Jd. at 1232. “This standard achieves the Anti-SLAPP Act’s goal of weeding out meritless litigation by ensuring early judicial review of the legal sufficiency of the evidence, consistent with First Amendment principles, while preserving the claimant's constitutional right to a jury trial.” Jd, at 1232-33 Under D.C. Code § 16-5502(c)(1), the filing of a motion to dismiss generally results in an automatic stay of discovery “until the motion has been disposed of.” Section 16-5502(c)(2) provides for an exception: “When it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted.” TL. DISCUSSION The Court grants PBS’s special motion to dismiss because (a) PBS has made a prima facie showing that the tort counts arise from “an act in furtherance of the right of advocacy on issues of public interest” within the meaning of § 16-5501(1), (b) Plaintiff's have not providedevidence establishing that they are likely to succeed on the merits of these claims, and (¢) Plaintiffs have not shown that any targeted discovery will enable them to defeat the special motion to dismiss A. Prima facie showing PBS has made a prima facie showing that Plaintiffs’ tort claims arise from an act in furtherance of the right of advocacy on issues of public interest. Indeed, there is no genuine dispute that Plaintiffs" tort claims are based on PBS’s expressive conduct about an issue of public interest involving a public figure D.C. Code § 16-5501(1) defines an “act in furtherance of the right of advocacy on issues of public interest” to include “[a]ny written or oral statement made ... [i]n a place open to the public or a public forum in connection with an issue of public interest, or any other expression or expressive conduct that involves ... communicating views to members of the public in connection with an issue of public interest.” D.C. Code § 16-5501(3) defines an “issue of public interest” to include “an issue related to ... a public figure.” Plaintiffs’ tort claims are based on PBS’s statements to the media that “‘multiple credible’ allegations of sexual misconduct” caused it to stop distributing Mr. Smiley’s show to its member stations, See Compl. §§ 60, 69; see id. § 10 (discussing reported statements by PBS to Variety). These statements are expression that involves communicating views to members of the public. These statements also plainly concern an “issue of public interest” within the meaning of § 16-5501(3) because they relate to a public figure: Plaintiffs’ complaint includes allegations establishing that Mr. Smiley is a public figure; and Plaintiffs concede as much in their opposition. See Compl. $4] 10 (“Mr. Smiley has never shied away from controversy.”) & 21 (descr ing Mr. Smiley as “one of America’s most well-known and respected mepersonalities” who has “interviewed and worked with many of the top entertainment and political personalities in the United States and around the world”), Opp. at 11 (“Mr, Smiley is, to some extent, a public figure.”), Moreover, PBS made the statement at a time of extraordinary public interest in alleged sexual misconduct by men in positions of power, particularly in news and entertainment, Plaintiffs themselves recognize this fact in the section of their complaint entitled “Sexual Harassment and the #metoo Movement in America”: “beginning in approximately October 2017, sexual harassment in the workplace became a major topic of conversation throughout the United States. Many famous and successful men have rightfully been outed for their improper, and in many cases, criminal behavior. Hosts on network television ... voluntarily left their jobs in scandal as a result of allegations against them concerning sexual harassment.” See Compl. 28 Plaintiffs’ primary contention is that the Anti-SLAPP Act does not apply to PB statements to the media about this issue of public interest because PBS made the statements primarily to protect its commercial interests. See Opp. 7-8. Section 16-5501(3) provides, “The term ‘issue of public interest’ shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker's commercial interests rather than toward commenting on or sharing information about a matter of public significance.” Plaintif{s” argument is effectively foreclosed by Doe No. I v. Burke, 91 A.3d 1031 (D.C. 2014). Burke rejected the argument that to establish a prima facie case, the speaker must “disprove commercial motivation, even where such motivation is not apparent from the content of the speech.” See 91 A.3d at 1043. Burke pointed out that “such a presumption is inappropriate in the context of a prima facie showing, for which we have held the burden of proof is not onerous.” /d. (quotation and citation omitted). The statements by PBS that form the basis of Plaintiffs’ tort claims do noton their face discuss or further any commercial interest of PBS, which is a non-profit entity. See Simpson v. Johnson & Johnson, Case No. 2016 CA 001931 B, Tr. at 39 (D.C. Super. Ct. Jan. 13, 2017) (Reply Ex. 1). Excluding PBS’s statements from the protection of the Anti-SLAPP Act ‘would conflict with its purpose to protect “the constitutional interests of the defendant who can make a prima facie claim to First Amendment protection.” Competitive Enterprise Institute, 150 A3d at 1239, B. Likelihood of success on the merits Plaintiffs have not offered evidence that makes their tort claims likely to succeed on the merits, PBS’s speech is unquestionably protected by the First Amendment, and Plaintiffs offer no evidence PBS made its statements with knowledge that they were false or with reckless disregard for their falsity Because PBS peech concemed a matter of public concern and a public figure, Plaintiffs must show that PBS acted with actual malice — that is, Plaintiffs must prove by clear and convincing evidence “that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not.”” Thompson v. Armstrong, 134 A.3d 305, 311 (D.C. 2016) (quoting New York Times Co v. Sullivan, 376 U.S. 254, 279-80 (1964)). “First Amendment restrictions apply to suits for intentional interference with contractual relations,” and “a plaintiff may not use related causes of action to avoid the constitutional requisites of a defamation claim, Thompson, 134 A.3d at 310-11 (quotations and citation omitted). Mr, Smiley admitted to PBS that he had sexual relationships with workplace colleagues during the course of his 30-year career, Compl. 40, and Plaintiffs do not provide any evidence that PBS knew that these relationships were purely consensual, or that PBS had serious doubts about the credibility of any of his accusers. PBS’s alleged hostility towards Mr. Smiley (Compl$9 4-5, 24-25) is legally irrelevant to whether it knew its statements were false or made them with reckless disregard for the truth, See Thompson, 134 A.3d at 311 (“And ‘actual malice’ must be shown regardless of the speaker’s motives.”). Plaintiffs also do not provide evidence establishing a likelihood of success in proving that PBS stated falsely or recklessly that it had engaged an outside law firm to conduct an investigation of the allegations against Mr, Smiley; indeed, Plaintiffs admit that members of a law firm representing PBS interviewed Mr. Smiley, (Compl. 96-7) Plaintiffs argue that they have “no burden to show that the interference [with its contracts and business expectancies] was, in fact, wrongful” and that PBS has the burden to prove its speech is privileged. Opp. 9 n.5. Here again, Competitive Emterprise Institute resolves the issue: “The standards against which the court must assess the legal sufficiency of the evidence are the substantive evidentiary standards that apply to the underlying claim and related defenses and privileges,” and a party opposing a special motion to dismiss under the Anti-SLAPP Act must provide evidence that meets “the requirement to prove actual malice by clear and convincing evidence when the claimant is a public official or ... a limited public figure with respect to the issue that is the subject of speech claimed to be defamatory.” Competitive Enterprise Institute, 150 A.3d at 1236 (emphasis added). If PBS has any burden, it has established, including through Plaintiffs’ admissions, that the speech from which their tort claims arise is protected by the First Amendment. In light of this ruling, the Court need not decide whether PBS’s assessment of the credibility of Mr. Smiley’s accusers was a non-actionable opinion. See Def. Motion at 9-10; compare Thompson, 134 A.3d at 314 (“a statement of opinion relating to matters of public concern which does not cont n will receive full a provably false factual connoticonstitutional protection.”) (quotation and citation omitted) with Competitive Enterprise Institute, 150 A.3d at 1241 (“[S]tatements of opinion can be actionable if they imply a provably false fact, or rely upon stated facts that are provably false.”) (quotation and citation omitted), Plaintiffs’ lack of evidence of knowledge of falsity or reckless disregard for truth also makes it unnecessary to decide whether Plaintiffs offered evidence establishing a likelihood of success on other elements of their tort claims, C. Targeted discovery Plaintiffs contend that if the Court concludes that PBS has made a prima facie showing that its speech is constitutionally protected and that they have not provided evidence sufficient to show that their tort claims are likely to succeed, the Court should permit two types of “targeted discovery” under § 16-5502(c)(2). Plaintiffs have not shown that either type of discovery will enable them to defeat PBS’ pecial motion to dismiss. Plaintiffs contend that targeted discovery will enable it to obtain evidence that PBS's statements affect its contractual relationships with third parties, Opp. 13, However, as the Court explained in Section IILB above, Plaintiffs have not produced evidence that PBS’s speech is not constitutionally protected, so its speech cannot support a claim of tortious interference with contract even if its speech adversely affected Plaintiffs’ contractual relationships. Plaintiffs also argue that targeted discovery “concerning the veracity of the statements PBS made in its December 13, 2017 press release” will allow them to defeat the motion. Opp. 13. However, Plaintiffs do not show that any discovery (much less discovery that is targeted and not unduly burdensome) will enable them to prove by clear and convincing evidence that, for example, PBS did not have a reasonable basis to believe that any of the multiple allegations of sexual misconduct by Mr. Smiley was credibleIV. CONCLUSION For these reasons, the Court orders that 1, PBS’s special motion to dismiss is granted 2. Counts Three and Four of the complaint are dismissed with prejudice Potten C Epslene ‘Anthony C. Epstei Judge Date: May 15, 2018 Copies to Ronald S. Sullivan Jr. John K. Rubiner Jeffrey D. Robinson Counsel for Plaintiffs Grace E. Speights W. Brad Nes Amanda B. Robinson P. David Larson Counsel for DefendantFiled D.c. Superior Court 08/05/2020 09:22AM Clerk of the Court IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION INC., et al, Plaintiffs, 2018 CA 001247 B v. PUBLIC BROADCASTING SERVICE, Defendant. Judge Yvonne Williams ORDER GRANTING MOTION IN LIMINE NO. 7 AND GRANTING MOTION FOR LIQUIDATED DAMAGES Before the Court is Counter-Plaintiff Public Broadcasting Service’s (“PBS”) Opposed Motion in Limine No. 7 to Exclude Arguments and Evidence Regarding the Remaining Affirmative Defenses of Counter-Defendant TS Media, Inc. (“Motion in Limine No. 7”), filed on December 23, 2019, Counter-Defendant TS Media, Inc. (“TS Media’) filed an Opposition to the Motion in Limine No. 7 on January 2, 2020.' On March 20, 2020, TS Media filed an additional Brief Concerning Equitable Defenses. PBS filed an Opposition to the Brief on April 24, 2020. Also before the Court is PBS's Motion for Liquidated Damages and Entry of Judgment (“Motion for Liquidated Damages”), filed on March 20, 2020. TS Media filed an Opposition to the Motion for Liquidated Damages on May 29, 2020. On June 6, 2020, PBS filed its Reply. For the following reasons, the Motion in Limine No. 7 shall be GRANTED, and the Motion for Liquidated Damages shall be GRANTED. 1. BACKGROUND ‘TS Media and PBS entered into an agreement in 2002 to produce and distribute the television show Tavis Smiley, a ightly television show featuring Tavis Smiley as its host. TS On January 13, 2020, the Court entered the Omnibus Order on Motions in Limine, inter alia, holding Motion in Limine No. 7 in abeyance.Media Compl. #{ 4-5. In November of each year, the parties entered into negotiations to renew their contractual agreement. The final contract was entered in November 2017, renewing Tavis Smiley for a 15" season to commence in January 2018 (“Season 15 Contract”). PBS Am. Counterel. 49 4-8 Around the time the parties entered into the Season 15 Contract, PBS received an anonymous complaint that alleged that Mr. Smiley had engaged in sexual misconduct. Id. {| 16- 18. PBS hired outside counsel, Mitchell, Silberberg & Knupp LLP (“MSK”) on November 22, 2017 to conduct an investigation (“MSK Investigation”) of the allegations, fd. 18. On December 13, 2017, PBS suspended the Tavis Smiley show pursuant to Paragraph 9.1 of the Season 15 Contract, which provides that “PBS shall have the right to schedule, reschedule, preempt or cancel the Program for any reason.” Id. 431. On February 20, 2018, TS Media filed this lawsuit (the “Complaint” against PBS alleging a claim for breach of contract based on the MSK Investigation. On March 20, 2018, PBS terminated the Season 13, 14, and 15 Contracts with TS Media pursuant to Paragraph 15.5 (the “Morals Clause”) through written notice provided to TS Media, /d. 450, Paragraph 15.5 provides: Producer shall not commit any act or do anything which might tend to bring Producer into public disrepute, contempt, scandal or ridicule, or which might tend to reflect unfavorably on PBS, any station broadcasting or scheduled to broadcast a program, any licensee of PBS, any sponsor of the program, or to injure the success of any use of the Program, Producer agrees that these same “morals” standards shall apply to all talent hired, retained or utilized by Producer to work on, or in connection with, the Program (“Program Personnel”), including but not limited to the talent to be featured in the Program. In the event the Producer or any Program Personnel violates this clause, PBS shall have the right to immediately terminate this Agreement upon giving written notice to Producer of same. In the event of any such termination, Producer shall promptly return to PBS any amounts paid by PBS to Producer hereunder.Joint Trial Exs, 7, 24. The Standard Terms and Conditions provides that “[the Agreement is governed by the law of the Commonwealth of Virginia applicable to contr s performed entirely therein.” PBS Am. Countercl. § 15. On October 12, 2018, PBS countersued, alleging that TS Media breached the Morals Clauses in the Season 13, 14, and 15 Contracts and engaged in financial misconduct. /d. §f] 44-62. On December 23, 2019, PBS filed Motion in Limine No. 7, seeking to exclude TS Media’s affirmative defenses, TS Media filed an Opposition to the Motion in Limine No. 7 on Fanuary 2, 2020, asserting that it should be able to plead its affirmative defenses under Virginia law. Before trial, on January 13, 2020, the Court entered an Omi Order ruling on the parties’ fourteen motions in limine, holding Motion in Limine No. 7 in abeyance until after trial Trial in this matter began on February 10, 2020 and concluded on March 4, 2020. Upon deliberation, the jury found: (1) PBS did not breach the Season 15 Contract; (2) TS Media breached the Morals Clause in both the Season 13 and Season 14 Contraets; and (3) TS Media breached the Savings and Underwriting provisions of the Season 13 and Season 14 Contracts. See Verdict Form Questions 1, 3-5, 7. For the Season 13 Contract, the jury awarded PBS $366,757 in Cost Savings and $577,956 in Net Corporate Underwriting, for a total of $944,713 in damages, For the Season 14 Contract, the jury awarded PBS $417,051 in Cosi ings and $124,942 in Net Corporate Underwriting, or a total of $541,993 in damages. TS Media asserts that Virginia law allows it to plead the affirmative defenses of unclean hands and laches to reduce the damages owed to PBS. See generally TSM Br. PBS argues that these affirmative defenses are not available to TS Media because PBS’s claims are purely legal breach of contract claims, PBS's Motion for Liquidated Damages asserts that, since the affirmative defenses are not available to TS Media, PBS is entitled to $1,900,000 in liquidateddamages under the Season 13 and 14 Contracts plus the jury’s award of $702,898 for Net Corporate Underwriting under the Season 13 and 14 Contracts. Mot. for Liquidated Damages at 4, PBS further explains that the jury award for Cost Savings is subsumed in the $1,900,000 liquidated damages amount, but the award for Net Corporate Underwriting is not, /d. at 3 IL, DISCUSSION The aforementioned facts establish the basis of this Court’s analysis, With these facts in consideration, the Court now turns to the applicability of the equitable defenses and the Motion for Liquidated Damages. A. APPLICABILITY OF EQUITABLE DEFENSES TS Media alleges that, despite the jury’s findings, Virginia law permits TS Media to plead the equitable defenses of unclean hands and laches to defeat PBS’s breach of contract claims. TS Media Br. at 1. PBS argues that equitable defenses do not apply to actions at law for contract damages; and even if they did apply, TS Media has failed to prove that the defenses apply in this case. See generally PBS Opp'n to TS Media Br. TS Media relies on Va. Code. Ann. § 8.01-422 to assert that the equitable defenses of unclean hands and laches apply to PBS’s breach of contract claims. TS Media Br. at 2-4. Section 8.01-422 provid Inany action on a contract, the defendant may filea pleading, alleging any matter which would entitle him to relief in equity, in whole or in part, against the obligation of the contract; or, if the contract be by deed, alleging any such matter arising under the contract, existing before its execution, or any such mistake therein, or in the execution thereof, or any such other matter as would entitle him to such relief in equity; and in either case alleging the amount to which he is entitled by reason of the matters contained in the pleading. /f the amount claimed by the defendant exceed the amount of the plaintiff's claim the court may, in a proper case, give judgment in favor of the defendant for such excess.Va. Code Ann. § 8.01-422 (emphasis added). This statute details the recoupment defense, or the off-setting of damages. See Rosenbloom v. Integrated Sec. Sys., Inc., 73 Va. Cir. 71, 75 (Va. Ct. 2007). Recoupment is an equitable defense that serves to reduce or eliminate a plaintiff's claim where “it would be inequitable for the debtor to enjoy the benefits of that transaction without also meeting its obligations.” /d, at 76. To plead a recoupment defense, Section 8.01- 422 requires a defendant to specify a dollar amount he is entitled to, as against the plaintiff's monetary obligation. Va, Code Ann. § 8.01-422. While TS Media argues that the purpose of Section 8.01-422 is to enlarge the number of defenses available to a defendant, it fails to sufficiently show that recoupment is applicable in this case, particularly when it has plead unclean hands and laches instead. TS Media Br. at 3. TS Media does not claim that it is entitled to an amount in damages. Moreover, the jury found that TS Media did not suffer damages because PBS did not breach its agreement with TS Media. Verdict Form Questions 1-2. As such, there is no balance to offset and the Court cannot apply the recoupment defense. TS Media also fails to provide any case law to support it proposition that Section 8.01- 422 negates the cases which hold that unclean hands and laches are inapplicable to breach of contract actions at law. Under Virginia law, the equitable defenses of unclean hands and laches generally are not available in actions at law for breach of contract damages. Vienna Metro LLC v. Pulte Home Corp, 786 F. Supp. 2d 1076, 1084 (E.D. Va. 2011) (finding both unclean hands and laches inapplicable to legal claim of breach of contract); see also Grenco Real Estate Inv. Trust v. Nathaniel Greene Dey. Corp., 218 Va. 228, 233 (1977) (ruling that an action to enforce a purely legal claim, as opposed to an equitable right, was not subject to the equitable defense of laches).As noted above, PBS alleged, and the jury found, that TS Media breached the Morals Clause, Savings, and Underwriting provisions of both the Season 13 and Season 14 Contracts See Verdict Form Questions 3-5, 7. PBS’s claims are purely legal breach of contract claims, and PBS is not seeking equitable relief, This Court is unconvinced by TS Media’s position that the Virginia Courts in Vienna Metro LLC and Grenco were simply unaware of the existence of Va Code Ann, S jon 8,01-422, as the principles of recoupment differ from those of unclean hands and laches. TS Media’s Br. at 4. As such, the equitable defenses of unclean hands and laches are inapplicable to PBS’s contract damages, and the Court grants PBS’s Motion in Limine No. 7. See Vienna Metro LLC, 786 F. Supp. 2d at 1084, Because the Court determines that the equitable defenses of unclean hands and laches cannot be applied to the circumstances in this case, it is not necessary to determine whether TS Media has sufficiently proved these defenses. B. LiQuipaTeD DAMAGES ‘The Court now tums to PBS's request for liquidated damages and its entitlement to the jury’s award. Parties to a contract may agree in advance about the amount to be paid as compensation for loss or injury which may result from a breach of the contract “when the actual damages contemplated at the time of the agreement are uncertain and difficult to determine with exactness and when the amount fixed is not out of all proportion to the probable loss.” O'Brian v. Langley Sch., 256 Va. 547, 551 (1998). A liquidated damages clause will be construed as an unenforceable penalty “when the damage resulting from a breach of contract is susceptible of definite measurement, or where the stipulated amount would be grossly in excess of actual damages.” Brooks v. Bankson, 248 Va. 197, 208, 445 8.E.2d 473, 479 (1994) (citing Taylor, 233 Va. at 75, 353 S.E.2d at 747). The party opposing the validity of the liquidated damages clause bears the burden of proof on the issue of whether the damages resulting from the breach aresusceptible of definite measurement or that the stipulated damages are grossly in excess of the actual damages suffered by the nonbreaching party. O Brian, 256 Va. at $51 Here, the Morals Clause included in the Season 13 and 14 Contracts provides that, “In the event the Producer or any Program Personnel violates this clause, PBS shall have the right to immediately terminate this Agreement upon giving written notice to Producer of same. In the event of any such termination, Producer shall promptly return to PBS any amounts paid by PBS to Producer.” Joint Trial Exs. 7, 24 (emphasis added). The jury found that TS Media violated the Morals Clause in both the Season 13 and 14 Contracts. Verdict Form Questions 3~4. PBS paid $1,000,000 to TS Media under the Season 13 Contract and $900,000 under the Season 14 Contract, See Hague Trial Testimony 177:12-178:25, 182:11-185:18. Therefore, PBS is seeking a return of this $1,900,000 in liquidated damages. Mot. for Liquidated Damages at |. The Court determines that the amount sought by PBS in liquidated damages is reasonable because itis the amount it paid to produce Season 13 and Season 14 of the Tavis Smiley show. Additionally, such damages caused by Mr. Smiley’s breach of the Morals Clause would be difficult to determine with exactness. See O'Brian, 256 Va. at $51. As such, pursuant to the liquidated damages provision, TS Media is liable to PBS in the amount of $1,900,000 in liquidated damages for its breach of the Morals Clause in the Season 13 and 14 Contracts The Motion for Liquidated Damages also secks a final judgment regarding the amounts awarded by the jury. Mot. for Liquidated Damages at 3, While TS Media argues that an award of Cost Savings and Net Corporate Underwriting in addition to the liquidated damages would result in an unjustified windfall to PBS, the Court disagrees. PBS indicates that the jury award for Cost Savings, $366,757 for Season 13 and $417,051 for Season 14, is already subsumed in the $1,900,000 liquidated damages amount. /d. “Savings” is defined in paragraph 5.2 of the Season13 and 14 Contracts as the difference between PBS's approved budget for the Tavis Smiley show and the actual cost of production, See Joint Trial Exs. 7, 24. This excess paid by PBS in the approved budget is included in the liquidated damages amount because the liquidated damages provision mandates a return of “any amounts paid” by PBS. Joint Trial Exs. 7, 24. However, PBS explains that the award for Net Corporate Underwriting, $577,956 for Season 13 and $124,942 for Season 14, is not counted in the liquidated damages amount, Exhibit C of the Season 13 and 14 Contracts states that PBS is entitled to receive 50% of Net Corporate Underwriting from TS Media, which is defined as “any and all revenue received by or on behalf of the parties from any corporate Underwriter less only a ‘Finder’s Fee.”” Joint Trial Exs. 7, 24. Thus, TS Media received this amount from corporate underwriters, not from PBS. /d. As a result, the jury award for Net Corporate Underwriting is not included in the $1,900,000 TS Media received from PBS and owed under the liquidated damages provision. /d. PBS is entitled to $702,898 for Net Corporate Underwriting in addition to the $1,900,000 in liquidated damages. Ill. CONCLUSION Applying Virginia law, the Court concludes the equitable defenses of unclean hands and laches are not applicable to PBS’s purely legal breach of contract claims, Although Va, Code Ann, Section 8,01-422 may permit a defendant to plead recoupment in a breach of contract case, that provision is not applicable here. Thus, PBS’s Motion in Limine No. 7 shall be granted. Since TS Media’s equitable defenses must fail, the Court also concludes that PBS is entitled to $1,900,000 in liquidated damages, pursuant to Paragraph 15.5 of the Season 13 and 14 Contracts. While the jury award for Cost Savings is subsumed in the liquidated damages amount, the award for Net Corporate Underwriting is not. As such, The Court grants PBS’s Motion for LiquidatedDamages and awards PBS $1,900,000 in liquidated damages plus $702,898 for Net Corporate Underwriting; a total amount of $2,602,898. Accordingly, it is on this 5" day of August 2020, hereby. ORDERED that PBS's Motion in Limine No. 7 to Exclude Arguments and Evidence Regarding the Remaining Affirmative Defenses of Counter-Defendant TS Media, Ine. shall be GRANTED; and it is further ORDERED that PBS's Motion for Liquidated Damages and Entry of Judgment shall be GRANTED; and it is further ORDERED that judgment in the amount of $2,602,898 shall be awarded in favor of Counter-Plaintiff PBS and against Counter-Defendant TS Media. IT IS SO ORDERED. Date: August 5, 2020Copies to: Grace E. Speights Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Counsel for PBS W. Brad Nes Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Counsel for PBS Amanda B. Robinson Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Counsel for PBS Jeffrey D. Robinson Lewis Bach Kaufmann Middlemiss PLLC 1101 New York Ave. NW, Suite 1000 Washington, DC 20005 Counsel for TS Media Ronald S, Sullivan, Jr 6 Everett St., Suite 5116 Cambridge, MA 02138 Counsel for TS Media John K. Rubiner Freeman, Mathis & Gary LLP 50 South Hope Street, Suite 2200 Los Angeles, CA 90071 Counsel for TS Media Waleed Nassar Lewis Baach Kaufmann Middlemiss PLLC 1101 New York Ave. NW, Suite 1000 Washington, DC 20005 Counsel for TS Media