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Al Jazeera’s Defense to DirecTV Is Too Weak

LOS ANGELES (CN) - A state court judge Tuesday ordered Al Jazeera America to provide supporting facts to its defenses against DirecTV's $28 million damages claim against the flagging news network.

DirecTV claims the Qatar-based network breached an agreement the satellite service brokered with the network's predecessor, Current TV, to air more than just traditional news programming. Last year, it asked a trial court to allow it to drop Current TV from its channel lineup.

In 2013, Al Jazeera America took Current TV's place on DirecTV's channel lineup after the news channel's $500 million acquisition of the network owned by former Vice President Al Gore's company.

Two weeks ago, attorneys for both parties were taken by surprise when the court reassigned the case to Judge Samantha P. Jessner to the case.

At a Jan. 6 hearing, Jessner agreed to postpone a hearing on DirecTV's demurrer to Al Jazeera's answer after the news network asked for time to decide whether or not to move to disqualify her from hearing the case.

On Tuesday morning, the parties were given the opportunity to respond to Jessner's tentative ruling regarding Al Jazeera America's answer - to which DirecTV in an unusual move had objected as lacking supporting facts.

In the tentative order, Jessner ruled that of Al Jazeera's 21 defenses, 11 were lacking in sufficient information.

The judge noted that it is not unusual for attorneys to file boilerplate answers, calling the practice "widespread." But she said that did not mean the court would "countenance that practice."

"Here, defendant's affirmative defenses consist mostly of boilerplate legal conclusions which are devoid of supporting facts," Jessner wrote. "Given that it appears that discovery has been conducted, defendant is in a position to provide additional facts to support affirmative defenses that are actually viable."

At the hearing, Al Jazeera attorney Andrew L. Deutsch said that the network needed more responses from DirecTV to round out its answer, and asked the court for more time to conduct discovery.

"There are a few [defenses] for which we are still not in possession of the facts," the attorney told Jessner. This failed to persuade the judge, who said she would make the tentative order final.

"If you're saying there are facts you need the plaintiff to submit, I don't understand how that would relate, for example, to failure to mitigate damages," she said. "If you're going to plead that as a defense, you have something in mind. Something in mind would get you over this hurdle."

Al Jazeera has 30 days to file an amended answer.

The judge also ordered the parties to file stand-alone, unredacted copies of the complaint and cross-complaint.

In November, Judge Elizabeth Allen White denied DirecTV's motion to keep its $28 million lawsuit against Al Jazeera America secret.

"There is a huge, huge right for the public to be aware of what's going on in the litigation," White said at the time.

DirecTV's original July filing against Al Jazeera was heavily redacted. But on Nov. 3, 2014 it partially withdrew its motion to seal the complaint.

The attached complaint said DirecTV was suing Al Jazeera because the news channel broke promises to air more diverse content. According to DirecTV, before the network - based in Doha, Qatar - bought out Current in 2013, Current had agreed to air more lighthearted fare that had previously included "Current Hottie" and "Current Gigs."

"The programming on Al Jazeera America has remained a steady line-up of traditional-style news programs," the July 11, 2014 complaint states.

DirecTV's court filing adds that Al Jazeera breached provisions in a 10-year old affiliation agreement between DirecTV and Al Gore's Current TV to provide the cable provider with the best terms it offers to other distributors.

Current co-founders Gore and Democratic politician and businessman Joel Hyatt sued Al Jazeera in Delaware court last year for $65 million, claiming news network had unlawfully kept millions of dollars in escrow after the buyout.

In a September counterclaim, Al Jazeera said it needed to keep the money in reserve to defend against claims that arose after the sale, including the current dispute with DirecTV in Los Angeles.

Calling Gore's and Hyatt's lawsuit a "sham," the news network argued that Current had failed to comply with distribution agreements.

Deutsch appeared at Tuesday's hearings at the Stanley Mosk courthouse with Jeffery Rosenfeld. They are both with the firm DLA Piper.

Kirkland & Ellis attorneys Shaun Paisley and Melissa Ingall represent DirecTV.

Even though it is distributed in 60 million homes, Al Jazeera America has struggled since its 2013 debut. After 14 months on the air, its ratings had fallen by almost 50 percent compared with its predecessor, The Wrap reported in late October.

Last week, the New York Post reported that the network had cut jobs and abandoned much of its daily news programming in favor of content from its worldwide news channel Al Jazeera English.

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