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investigation later revealed, many of the distribution rights had
expired or were set to expire shortly after CLIS contributed them
to SMHC. We do not believe that the failure to define more
specifically the EBD film rights in the LLC agreement consistent
with Mr. Lerner’s stated purpose was simply an oversight. The
Ackerman group was well represented in the transaction with CDR.
Presumably, such important matters would have been addressed if
the Ackerman group were in fact focused on starting a film
library with the EBD film rights.
Responding to Mr. Peters’s testimony that the films selected
for the EBD library were films of no significant value,
petitioner seems to suggest that the banks may have conspired to
defraud the Ackerman group. The bulk of the evidence in the
record, however, suggests strongly that the selection of the EBD
film rights was not a product of any fraud by the banks. On the
contrary, for the reasons described below, we are led to the
conclusion that the Ackerman group was either fully aware of the
nature of the film titles that CLIS contemplated contributing to
SMHC or simply did not care about the nature of those film
rights.
First, although the parties exchanged numerous drafts of
various documents between October 16, 1996, and December 10,
1996, none of those drafts alludes to any film rights, generally,
or the EBD film rights, specifically. The first listing of the
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