and SLC to apprise QVC that arbitration had resolved their dispute. In order to insure that in any event PVP would honor its obligations to SLC, the Arbitrator also retained jurisdiction to enforce that obligation should difficulties occur. It is clear that the intent of the Arbitrator was that PVP and Lucci market SLC's goods on cable marketing channels. The hope was that this performance would occur on QVC.
When that hope proved nugatory and performance by PVP on QVC proved impossible because of QVC's actions, the Arbitrator utilized his retained jurisdiction and sought other avenues for assuring PVP's performance for SLC.
All that was done was to enforce the thrust of Paragraph 4, i.e. that PVP was to honor its obligations to SLC. The form of honoring this obligation could be changed.
This modification was not directed to the substance of the December Award but only affected the method of achieving the relief previously granted in the December Award, i.e. that SLC is entitled to PVP's performance. The February Award embodies the recognition that QVC may prevent PVP's performance as contemplated under the December Award, and therefore there had to be a change in the form of the award. The method by which PVP would satisfy its obligations to SLC had to be altered in light of QVC's abrogation. The merits of the controversy -- what relief is owed SLC by PVP -- remain unchanged.
Here, the Arbitrator ruled that PVP and Lucci must perform. This became impossible due to QVC's actions. The February Award then orders performance to still take place but on a different channel if QVC does not agree to televise Lucci's endorsements. The Arbitrator ordered the parties to notify QVC that their dispute had been resolved, with the hope that this would induce QVC to continue televising Lucci's endorsements. If not, then the performance was still to take place but on another channel.
Both judgments of the Arbitrator were final and definite given the circumstances then in effect and were binding upon the parties. There is no ambiguity in the February Award which would justify this court's modification of the Award under either CPLR § 7511(b)(1)(iii) or 9 U.S.C. § 10(a)(4).
PVP's Assertion that February Award is Impossible to Obey Is In Error.
PVC argues that the February Award is impossible to obey since under P 13(B) of the QVC Agreement, which the Arbitrator ruled to be binding on the parties, SLC and Lucci may not market products covered by the QVC agreement on other direct marketing stations during the term of the QVC Agreement and for two years thereafter. (PVP's Motion to Vacate, 18).
PVP's contentions that the February Award is contradictory because the QVC Agreement forbids SLC and PVP from performing on a competing direct marketing station is wrong. The QVC Agreement's exclusivity provisions only applied if SLC or Lucci was in breach. Since it is instead QVC which abrogated the Agreement, the exclusivity provisions do not apply.
Paragraph 13(b) states, in relevant part: "For a period of two (2) years . . . from the date of termination or expiration of this Agreement as a result of the breach of this Agreement by SLC and/or Lucci, whichever is earlier, Lucci and SLC, and each of them, shall not market, promote, distribute, offer for sale and/or sell Products by television, telemarketing, or direct marketing, or cause, license or permit any third party to do the foregoing." In the Briggs Letter QVC notified SLC that QVC had "no present intention to promote the Sale of Susan Lucci Professional Hair Care Products."
Clearly, it was QVC that terminated the televised promotion of goods by Lucci. The clear language of paragraph 13(b) indicates that it applies only where breach is by Lucci or SLC, not by QVC. Therefore, there is no inconsistency in ordering PVP to perform on another direct marketing cable television station. Since QVC has by its statements prevented the appearance of Lucci on its station, it would have no standing to object to PVP honoring is obligation to SLC on another channel.
The Arbitrator considered and determined the issues underlying the Agreement between PVP and SLC. This decision must be honored by this court because there is no evidence that the Arbitrator exceeded his powers or in any way improperly decided the conflict before him. The December Award, as modified by the February Award, is confirmed. PVP is to honor its obligations to SLC under Draft # 6. If that obligation cannot be honored on QVC, then it is to be carried out on another direct marketing cable television station.
August 6, 1993
New York, New York
Constance Baker Motley