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Pompano Helicopters Inc. versus Westwood One, Inc.

According to an Associated Press story dated October 29, 2007 Pompano Helicopters has filed two separate suits against media giant Westwood One alleging the defendant and its subsidiary Metro Networks Communications, Inc. Pompano alleges the defendant “conspired to take over Pompano’s contracts to provide broadcast stations with helicopters” (AP 1). The second lawsuit alleges defendant “tortuous interference with contracts that Pompano ultimately to Westwood’s subsidiary” (Transmedia 1). Pompano also alleges the defendants also gained access to confidential Pompano documents as part of a broader scheme to prevent Pompano’s planned merger with another company.

These are civil actions filed in the Florida 17th Circuit Court in Broward County. The plaintiff will be required to prove the various elements of the allegations by the “preponderance of the evidence” standard, a lesser standard than the criminal trial burden of proving the case “beyond a reasonable doubt”.

These elements include establishing the Pompano contracts, Westwood’s knowledge of the contracts, and action(s) taken by Westwood to damage Pompano’s contractual obligations. Pompano will also have to show Westwood gave out information regarding Pompano that defendant knew was not true, that the recipients of the information were involved with Pompano and relied on the information to Pompano’s detriment, and

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Westwood did so with knowledge and intent to harm Pompano’s business relationships.

This action will fit in well with the typical civil action legal and court procedures. The defendants must file an answer to Pompano’s petition, and then the parties will begin the discovery phase of the proceedings, as well as begin filing and arguing any relevant motions. It is very likely the court will hold a series of pre-trial conferences with the parties in an effort to bring about a settlement. Due to the nature of the action, this case could be extremely complex, lengthy and expensive. As the courts prefer the simple to the complex, particularly if a jury is involved, as well as brevity and economy the parties can expect a great deal of pressure from the court to settle the matter.

To that effect the court may also offer alternative dispute resolution instead of a trial. If the case goes to trial it will be up to the defendant to request a jury trial, although it is conceivable Florida rules of practice may allow for either party to demand a jury trial, with motions to argue accordingly.  The jury would be given jury instructions and required to determine if the allegations were proven by the preponderance of the evidence. They may also be required to determine what, if any damages defendant is required to pay plaintiff, according to Florida rules of procedure. The judge may also have the authority to set aside the jury’s decision as well as alter any monetary damages determined by the jury.

As stated above this action is civil in nature. However, if there was the possibility of any criminal action it would have to be based on Florida statutory criminal code pertaining to business transactions. If a case has both civil and criminal components then two procedures can result. The civil court action will determine allegations have been proven according the “preponderance” action. The criminal court action will determine if the defendants are guilty as charged, beyond a reasonable doubt.

Both civil and criminal will have very similar discovery, motion, and pretrial conference procedures. However, in the criminal action there will be no pressure from the court to “settle” as a settlement in a criminal action is a plea bargain and involvement of the court is prohibited. The judge can only accept or not accept the plea bargain agreed to by the prosecuting attorney and defendant and defendant’s attorney.

The civil action will have the possibility of an award for damages due to it’s’ “tortuous” conduct. There will be no such component in criminal law. Depending on state statute the criminal court may impose fines, recoupment of money expended by the state for the trial, and restitution to the victim. There are also a variety of constitutional rights enjoyed by the defendant in a criminal case which may or may not have a parallel in the civil court system.

Notably a criminal defendant cannot be forced to testify at trial, while in a civil procedure his testimony could be compelled by the court. Additionally, the criminal defendant is entitled to legal counsel, which is not the case for the civil case defendant. The criminal court may have a “preliminary hearing” to determine if the standard of “probable cause” is met, in order to proceed to trial. No such hearing is set in a civil case, although the plaintiff may move for a “summary judgment” if there are no factual disputes in the light most favorable to the defendant.

Although parallels exist in the actions, they are not bound together and the result in one will usually not carry any weight in the other. However, certain actions that occurred in one but not the other could cause a profoundly different result, such as a witness testifying to certain things in one case and then gives conflicting statements in the other.

Therefore, the plaintiff could prevail in the civil suit, in both, or in the criminal case alone. If the plaintiff wins in the civil action but there is no criminal conviction it is often due to the less-stringent burden of proof in the civil action. If it is the other way around it may be a result of the jury instructions. In either case the appeals process if available.

References

Associated Press: “Westwood One Target of Lawsuit”. October 29, 2007.

http://money.aol.com/news/articles/_a/westwood-one-target-of-lawsuit/n

            Transmedia Group: “Pompano Helicopters Retains PR Firm in Connection With its $362 Million Lawsuit Against Westwood One, America’s Largest Radio Network”.

October 29, 2006. http://www.prnnewswire.con/cgi-bin/stories

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