Conan/Leno madness: the legal case for Conan

By Matthew Belloni

RELATED: The case for NBC.

In the 36 hours since Conan O'Brien dropped his "People of Earth" neutron bomb on NBC, the network has been very effective in getting its message out: Conan's deal doesn't say "The Tonight Show" must air at 11:35, we keep reading in outlets as diverse as NYT and TMZ. Conan's reps screwed up, we're told. Letterman and Leno's deals have specific timeslot language, O'Brien's doesn't, so he better move his show to 12:05 or get fired and forfeit his handsome salary. 

But we're not so sure CoCo is in the wrong here, legally speaking (we'll leave the wisdom of declaring war on an employer to others to debate). We've talked to people who have seen O'Brien's deal and say NBC either isn't being totally accurate in spinning its side of the dispute or hasn't fully reviewed O'Brien's complex series of contracts (which would suprise us given that this fracas has become a full-fledged news event). NBC's simple argument is that Conan's "The Tonight Show" is still "The Tonight Show" even if it doesn't air directly after the late local news, but a full reading of the O'Brien deal might not necessarily support that interpretation.  

Without reviewing the deal ourselves, we can't say who's right. Most likely the answer isn't definitive. But the fact that NBC hasn't outright threatened to sue O'Brien if he doesn't take the 12:05 slot does suggest the network isn't 100% confident in its legal position. And, as we analyzed yesterday, even if the deal is completely silent on the timeslot issue, a compelling argument could be made that specifying a timeslot wasn't necessary because "The Tonight Show" had aired after the local news for decades.  

We've been trying to take a step back and predict how a jury might evaluate this situation. If the deal is indeed not clear, the court would look at the "intent of the parties" and the "totality of the circumstances" surrounding the negotiation. If that happens, the facts could favor Conan.  

Think about it. For years, O'Brien hosted a comedy show that was characterized (either explicitly in his deal or implicitly by anyone who has watched TV) as the second network show following the local news. In 2004, he agreed to wait five years and forgo the 11:35 timeslot and a hefty raise offered by other networks in order to be promoted in 2009 to the first show after the news. That was key to the deal, and there is tons of evidence showing Conan wanted "The Tonight Show" because it aired at a specific time. After fulfilling its promise five years later and signing O'Brien to the promotion he was promised, NBC seven months later decided to switch the first show into second position--and replace it with a show hosted by the exact guy who used to host the first show.

Even if NBC is right that "The Tonight Show" would still be "The Tonight Show" at 12:05, bumping Conan doesn't really give him the benefit of the bargain he negotiated, does it? 

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Comments

[Bill Weber]

Exactly. What if NBC never moved Leno out at 11:35 pm? What if they just renamed Leno's Tonight to "The Jay Leno Show" and renamed Conan's Late Nite to "The Tonight Show?" That would obviously be a breach of contract.

[Dena]

This is a publicity stunt by NBC, nothing more.

[William]

Sounds like an estoppel argument Conan has if the contract is devoid of a particular timeslot. I'd say he (and the rest of the crew who relied moving from NYC) would have lots of detrimental damage. Also you can make an implied covenant of good faith bargaining allegation. Go Conando Go!