Team Code: 010A

MEMORANDUM OF APPEAL PREFERRED UNDER SUBSECTION (1) OF

IN THE BINTIN LAND COMPANY LAW APPELLATE TRIBUNAL

AT BINTIN LAND

APPELLATE JURISDICTION

APPEAL NO. BA 2222/23 & BA 2191/23

NOVAK STUDIOS
LLP…………………………………………………………….APPELLANTS

V.

COMMPETITION COMMISSION OF BINTIN LAND &

CLUBBED WITH

APPEAL NO. BA 2323/23

MR. SAMESH RIPPY………………………………………………………………

V.

COMPETITION COMMISSION OF BINTIN LAND & NOVAK……………………..RESPONDENTS

Written submissions on behalf of the respondents.

Counsels for appellants.

i|Page
 TABLE OF ABBREVIATIONS

S. NO. ABBREVIATIONS EXPANSION

1. & And

2. AAEC Appreciable Adverse Effect on Competition

3. CCB Competition Commission of Bintin Land

4. AIR All India Reporter

5. BCLT or BCLAT Bintin Land Company Law Appellate Tribunal

6. Art. Article

7. CCI Competition Commission of India

8. CJ Court of Justice

9. Cl Clause

10. Cls Clauses

11. Co Company

12. UK United Kingdom

13. COMPAT Competition Appellate Tribunal

14. Corp Corporation

15. DG Director General

16. EC European Commission

17. Edn Edition

18. EU European Union

ii | P a g e
 19. OTT Over The Top

20. Ibid Ibidem

21. Inc Incorporation

22. Ltd Limited

23. No Number

24. OP Opposite Party

25. OP’s Opposite Parties

26. Ors Others

27. Para Paragraph

28. Pvt Private

29. SCC Supreme Court Cases

30. r/w Read with

31. S Section

32. SCI Supreme Court of India

33. S Sections

34. US United States

35. FY Financial Year

36. USCC Supreme Court of the United States

37. V Versus

38. Vol Volume

39. YoY Year on Year

40. i.e. That is

iii | P a g e
iv | P a g e
 INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

In the instant matter Appeal [I] has been filed by Novak Studios LLP against CCB and
Appeal [II] has been filed by Mr. Samesh Rippy against CCB, Owing to the nature of the
appeals, common parties and inter-related issues, the BCLT decided to club these appeals
together.

APPEAL NO. BA 2222/23 [I]

&

APPEAL NO. BA 2192/23 [II]

The Appellants have approached this Hon’ble Vormirian Company Law Tribunal under sub-
section (2) of Section 53B of the Competition Act of Vormir 2002. The Respondents hereby
accept the said jurisdiction of the Hon’ble Tribunal.

SECTION 53B OF COMPETITION ACT, 2002:

Appeal to Appellate Tribunal:

53B. (1) The Central Government or the State Government or a local authority or enterprise
or any person, aggrieved by any direction, decision or order referred to in clause (a) of
section 53A may prefer an appeal to the Appellate Tribunal.

v|Page
 All of which respectfully submitted

STATEMENT OF FACTS

BACKGROUND

BinTin Land, a middle-income country in Asia, introduced its competition law, the BinTin
Land Competition Act, in 2002. The CCB considers decisions from antitrust regulators
globally, including the Competition Commission of India, the European Union, Germany, the
United Kingdom, among others, as having significant persuasive value.

Rambo, Rocky, and Swathe dominate the film industry in BinTin Land, collectively holding
an impressive 69% market share. In terms of exhibition, they commonly form partnerships
with exhibitors, receiving 40% of the total ticket sales revenue from multiplexes/exhibitors
through a revenue-sharing agreement.

In 2021, BinTin Land faced the impact of the Novid-14 pandemic, leading to a year-long
lockdown in the country. During this period, the market witnessed a surge in the prominence
of Over The Top (OTT) Platforms. Initially, the segment was dominated by two OTT
Platforms, Bart Entertainment LLP (‘Bart’) and Novak Studios LLP (‘Novak’), both owned
by entities incorporated outside India.

However, it underwent a change with the emergence of local Over The Top (OTT) Platforms
like Velar Entertainment (‘Velar’), Mickey Film (‘Mickey’), and TV (‘MFTV’), introduced
by traditional broadcasting entities that were conventionally involved in satellite television
channel distribution.

CO-PRODUCTION AGREEMENT

Capsicum approached Novak for collaboration and showcasing on its platform. In a mutually
beneficial deal, Novak offered Capsicum a 4-movie agreement spanning 5 years. As per
Clause 5(a) of the Co-Production Agreement, the movies would be exclusively showcased on
Novak's OTT platform(s). Clause 5(b) guaranteed Capsicum Productions remuneration per
stream at 3000 BinTin Land Rupees, with an additional 5% bonus based on the total streams
achieved. According to Clause 6 of the Co-Production Agreement, Novak retains the

vi | P a g e
authority to review and approve the movie script, select lead actors, and, if necessary,
nominate one actor for the film before the commencement of shooting. Clause 10 of the Co-
Production Agreement specifies that movies featuring 3D and 4D technology will be released
in compatible multiplexes and streamed on Novak's platform 12 weeks after the theatrical
release.

In response to perceived market issues, multiplexes formed a group called "Orion" and filed a
complaint with the CCB against Novak. The complaint alleged that Novak's standard
contracts with production houses, including Capsicum, constituted an abuse of dominance,
served as a vertical restraint for production houses, and restricted market access for
multiplexes.

ARTIST AGREEMENT

Clause 13 of the agreement outlines terms and conditions for the Artist, requiring their
participation in at least 6 seasons of the show "Girlfriends" for fixed remuneration. It
stipulates that all rights related to the character Ms. Sonika will be retained by Novak, and the
Artist must be available for the shoot as per the communicated schedule. Exclusivity is
mandated during the 6 seasons, preventing the Artist from collaborating with another
OTT/streaming platform or producer without prior consent from Novak.

The CCB, upon reviewing the Assistant Director's complaint, identified a prima facie
violation of Section 3 and Section 4 of the Competition Act. The DG investigation confirmed
that Novak had engaged in anti-competitive agreements with the Artists, characterized as
vertical restraints. Following hearings, the CCB determined Novak's violation of Section 3
and Section 4, imposing a suitable penalty. While Novak intended to appeal to the BinTin
Land Company Law Tribunal (BCLT), the process was delayed due to the company's plans
for expanding its business operations.

ACQUISITION

Novak acquired a 28% equity shareholding in another OTT platform called Sierra. The
acquisition was notified to the CCB under Section 6(2) of the Competition Act, with a
disclosure that Sierra was a small player in the market, surrounded by multiple small OTT

vii | P a g e
Platforms. The notification argued that the Sierra Acquisition would not lead to any
appreciable adverse effect on competition (AAEC). The CCB approved the acquisition on
May 26, 2023. However, Mr. Samesh Rippy, a majority shareholder of Bart (another
streaming platform), has requested a detailed review of the transaction and challenged the
CCB's approval with the BCLT under Section 53B of the Competition Act.

CCB’S DECISION

The CCB, responding to a complaint by Orion, identified a prima facie violation of Section 3
and Section 4 of the Competition Act against Novak. Following a DG investigation, which
found Novak had abused its dominant position and engaged in anti-competitive agreements,
the CCB conducted hearings and confirmed Novak's violation. As a result, the CCB imposed
an appropriate penalty on Novak.

APPEALS FILED

Aggrieved by the orders of CCB, Novak has now filed two separate appeals at the BCLT:

APPEAL 1

i) Appeal number BA 2222/23, against the CCB order in the Information filed by Orion; and
ii) Appeal number BA 2192/23, against the CCB order in the Information filed by the
Assistant Director.

APPEAL 2

Mr. Samesh Rippy filed an appeal with the BCLT with referenced Appeal number
BA2323/23, against the approval order of CCB providing clearance to the Sierra Acquisition.

viii | P a g e
 ISSUES FOR CONSIDERATION

ISSUE I

WHETHER NOVAK IS IN VIOLATION OF SECTION 3 OF THE COMPETITION ACT?

ISSUE II

WHETHER NOVAK IS IN VIOLATION OF SECTION 4 OF THE COMPETITION ACT?

ISSUE III

WHETHER MR. SAMESH RIPPY HAS LOCUS TO CHALLENGE THE ORDER OF THE CCB
DATED MAY 26, 2023 WITHIN THE MEANING OF SECTION 53B OF THE COMPETITION ACT,
2002.

ISSUE IV

WHETHER THE SIERRA ACQUISITION CAUSES AAEC IN THE MARKET IN LIGHT OF

ix | P a g e
 SUMMARY OF ARGUMENTS

ISSUE I

WHETHER NOVAK IS IN VIOLATION OF SECTION 3 OF THE COMPETITION ACT?

The respondents respectfully contend that Novak has violated § 3 of the Competition Act
because firstly, the Co-Production Agreements entered by Novak are in the form of horizontal
arrangements and they are under the ambit of § 3(3)(b) of the Act. They limit the supply of
new content in the market of multiplexes by their exclusive Novak content, produced under
the Co-Production Agreements. Secondly, the Artist Agreement entered by Novak are in the
form of vertical arrangements between Artists and Novak. These agreements are under the
purview of § 3(4)(d). Lastly, These anti-competitive agreements collectively caused AAEC
within the meaning of § 19(3) of the Act.

ISSUE III

WHETHER MR. SAMESH RIPPY HAS LOCUS TO CHALLENGE THE ORDER OF THE CCB
DATED MAY 26, 2023 WITHIN THE MEANING OF SECTION 53B OF THE COMPETITION ACT,
2002.

It is humbly submitted to this Hon’ble tribunal that Mr. Samesh Rippy does not has the locus
to challenge the order of the CCB dated May 26, 2023 as it is not preferred by ‘aggrieved
person’ within the meaning of §53B of the act, against the orders referred to in clause (a) of
§53A passed by the CCB.

ISSUE IV

WHETHER THE SIERRA ACQUISITION CAUSES AAEC IN THE MARKET IN LIGHT OF VARIOUS
FACTORS UNDER SECTION 20(4) OF THE COMPETITION ACT?

It is most humbly submitted before the Hon’ble Tribunal that Sierra acquisition by Novak is
not in contravention of §5 and §6 of the act and does not cause appreciable adverse affect on
competition in the relevant market for “exhibition of films through OTT platforms”. Because
of various other competitors present in the relavant market and insignificant increase in

x|Page
market share of proposed combination, the concern of AAEC in the instant matter does not
arise.

xi | P a g e