Conan/Leno madness: parsing the legal ramifications

By Eriq Gardner and Matthew Belloni

Does Conan O'Brien's contract give NBC the right to bump him to 12:05 to make room for Jay Leno at 11:35?

That's the $40 million legal question hovering over O'Brien's open defiance of NBC's plan to move his "Tonight Show" 30 minutes later. Despite all the hoopla, it's really a simple query. If Conan's deal says his "Tonight" will be broadcast at 11:35pm (or the equivalent post-local news slot in the few markets like Phoenix that air him earlier), then NBC would be in violation of his contract by attempting to bump him. If there isn't any time-slot language in his deal, Conan's refusal to take the 12:05 slot would put him in breach if he doesn't do his show, presumably allowing NBC to void his deal without paying him off. 

NBC already has staked its position in today's NY Times:

The contract, NBC is arguing, guaranteed Mr. O'Brien would be installed as host of 'The Tonight Show' — and unlike many other deals for late-night stars, Mr. O'Brien's contract contains no specific language about the time period the show would occupy, NBC executives said.

David Letterman, for instance, has time-slot language in his deal, so some are already blaming O'Brien's lawyers for not thinking ahead and specifying his slot. But it's likely not that cut-and-dried a legal issue.

If the breach-of-contract claim ever got to court, perhaps O'Brien could argue that specifying a timeslot was not necessary because "Tonight" has aired in essentially the same time period for decades. Conan already suggested in today's missive that moving "Tonight" essentially makes it a different program; in other words, he's saying the essence of "The Tonight Show" is that it follows the local news. NBC would ask where in his deal language it says that, but the history of the show is on Conan's side on that issue.

Also, the name implies a show at night, not during the early morning. NBC could counter that its "Late Night" airs in the morning hours, but a "Tonight Show" that doesn't air, you know, tonight, would be a good fact for Conan.

O'Brien also could argue that by replacing his show with something starring the former host of "The Tonight Show," NBC effectively breached his agreement because viewers would believe that Leno is hosting the "real" "Tonight Show," regardless of its name. NBC's move seems slippery at best and, at worst, in violation of the state's requirement that parties negotiate deals in good faith. Again, NBC would likely point to Conan's deal and ask where it specifies that it can't hire Leno to do another show.

Would a court side with Conan or NBC? It's probably not a clear case, which is why we hear Conan has brought in litigator Patty Glaser to help negotiate a deal (read: pound NBC into submission). 

Related: 

The legal case for Conan

Conan O'Brien monologue mocks NBC

Conan pushes back: Now what?

Comments

[Colin]

Just to clarify something in your second paragraph, The Tonight Show is actually aired at 10:35 pm throughout the entire Central Time Zone.

[Colin]

And 10:35 pm across the Mountain Zone too. So more than just a few markets.

[Joe Schleimer]

Your analysis is spot on. Since "The Tonight Show" has been on the air right after the evening news for so long, the "intent of the parties" would be a triable issue of fact in any lawsuit by Conan. Jurors would "get it" and favor Conan, since his reasonable expectations are being frustrated by putting Leno back into his time slot. Hence, the absence of a provision requiring that the program air in a specific time slot means only that the network would be prudent to pay Conan off.

[NRC]

One also has to consider that the proposed line-up change would also shrink the Tonight Show from an hour to a half hour. So, not only does the Tonight Show, essentially, become the "Tomorrow Show" with a 12:05 a.m. start, the show also gets cut in half. For that, and other reasons, I think Conan has the much better argument here. As a commentator above indicated, assuming there is not a time designation in the contract, as reported, and further assuming the "Tonight Show" is not a defined term in the contract, a court (or jury) would look to the parties' intent, which would be gleaned from the 60+ years precedent of the Tonight Show being defined as a one hour show airing immediately after the late local news. By changing the time and reducing the time allotted, it's likely that NBC will violate the contract in two separate material ways.

[DaJi]

Conan's lawyers dropped the ball in not inserting "time slot" language in the agreement but the authors make some good arguments for Conan. What I want to know is what were the business motivations that led to this move because it's like egg on everyone's faces and (if Conan moves or leaves) I don't see how NBC or Jay benefit from this.

[just sayin]

These arguments only work if the failure to include a time-slot was not a negotiated item. If NBC can show a draft where there was a time-slot proposed and then stricken all of the above becomes worthless and Coco loses.

[Anthony]

A judge would have to glean what the parties had in mind five years ago, when this promise was made. And five years ago, NOBODY would have imagined moving the Tonight Show to 12:05. We're only talking about it now because NBC is in full meltdown mode. Conan's got plenty of ammo here.

NBC should not let this get to court and further compound their troubles. Jay's TTS might have had the better ratings but Conan's followers are young, diehard, and can work the internet like nobody's business.

[Dave]

I assume that the contract has restrictive covenants which preclude Conan from working somewhere else during the restriction period. If Conan seeks his entire benefit of the bargain, NBC could assert that the covenant applies. I assume that any settlement would be for something less than the entire benefit of the bargain so as to effectively dilute the value of the restrictive covenant.