Click any image to enlarge.

You can read more about all this here.

Thomas first sent Heene an email in February of this year asking about possibly collaborating on a web site Thomas had started. Here is Heene's reply from about a month later.

The next day, Heene sent Thomas a copy of the music video he had made with his sons, "Not Pussified," three days before Heene uploaded it to Youtube.

A couple weeks later, they were getting back to work on developing their reality series. Here's a note that Heene sent after a UFO hunting trip.

By April, they were hard at work on the show. Here is some notes Thomas sent to Heene shortly before a conference call to pitch the show.

Heene's wife Mayumi, whose name inspired the name of Heene's production company, kept track of how many hours Thomas was putting into the show.

She also asked Thomas to help babysit their kids.

Of particular note is item 16, proposing an episode buit around a publicity stunt involving a "homemade flying saucer."

More on all this here.

Richard Heene
05/08/2009
ABC Reality Series Proposal
Breakdown of Experiments

1. Why does water go down the drain clockwise in Australia and counter-clockwise in America? We will explain and demonstrate the Coriolis Effect (Coriolis Effect Info: http://en.wikipedia.org/wiki/Coriolis_effect) through various experiments with rotating fluids as well as the movement of physical objects. One such physical device that we will build and demonstrate is the Foucault Pendulum (Foucault Pendulum Info: http://en.wikipedia.org/wiki/Foucault_pendulum).

2. Can we intensify a dust devil, using a lawnmower alone? We will attempt to create/amplify various dust devils by way of dragging a group of running lawn mowers over loose topsoil. The hypothesized result of this will be the formation of a dust cloud full of charged particles (the charge is induced when the mower blades collide with the small particles of dust). These charged particles provide the proper conditions for vortices to form.

3. Can we make a dust devil inside of a two-liter bottle? Yes, we can and will create a dust devil inside of a two-liter bottle, with the use of a small Van De Graff generator and various types of charged particles (iron shavings, sand, etc.).

4. Can we make clouds in the back yard, using a 1,000,000 volt Van De Graff Generator? We will lay out a large sheet of aluminum foil and with aid of a powerful Van De Graff Generator (Van De Graff Info: http://en.wikipedia.org/wiki/Van_de_Graaff_generator)

5. Rocket Experiments: The kids will each make a highly unusual rocket, and we'll see which one can fly the highest. For example, we will build a spherical rocket out of paper machete and an array of model rocket engines.

6. Ghost Hunting: We will experiment with new methods of detecting Ghosts/Inter-dimensional entities. We will combine a high-powered Laser, a Mirror and a Chaladni Plate (Video about Chaladni Plates and Resonance: ). The Chaladni plate will cause the mirror to resonate, which will in turn, cause the laser to reflect the resonance pattern throughout our immediate environment. With aid of steam/fog (from humidifiers and fog machines), we will be able to create an illuminated grid of bright laser light. We will experiment with the frequency and will utilize various harmonics to investigate the potential of inter-dimensional entities or other bizarre phenomenon.

7. Long Drive: How long can we drive before having to pee? This experiment will be mostly for laughs, but will demonstrate the possibility of solving this widespread issue with the help of a clever invention.

8. Detecting Magnetic Fields in Tornados, Dust Devils, and Hurricanes. We will actively pursue meso-cyclones and will analyze these vortices with various scientific instruments (magnetometer, EMF Receiver, etc).

9. Balloon Launch: Message in a Bottle- Helium 1(normal, consumer grade helium) vs. Helium 3 (Used in weather balloons-they could end up in China!).

10. Homemade Tornado in a glass jar using a welder. We will place a large speaker magnet in a glass jar and will attach positive and negative electrodes in their proper place. We will then fill the jar with saltwater and will apply sufficient electrical current to hopefully induce a vortex in the saltwater with no moving parts.

11. What happens to a house in a 100-mph wind? We will build a scale-model of a real house and will rent a trailer for our truck. We will then tow the house and trailer at 100-mph to see how the structure holds up.

12. Can we successfully videotape the inside of a tornado? We will place a camera in a weighted box made of bulletproof plexi-glass and will place the device in the path of several large tornados. The footage will be nothing short of extraordinary.

13. Motorized Gyroscopic Flying Ball (Magnus Effect).

14. Why do the rocks move at Racetrack Playa? We have soil samples in Colorado that we can experiment with. We will attempt to prove/disprove various theories relating to the phenomena, including Electromagnetic Fields, Vibration and Wind.

15. Can human thought frequencies manipulate the Electricity/Plasma output of a Teslacoil? We will attach an EKG Brainwave Monitoring Device to an amplifier and a Tesla Coil. The individual wearing the EKG device will meditate and attempt to send his/her thoughts into space through the high-frequency Tesla Coil.

16. Can we attract UFO's with a homemade flying saucer? We will modify a weather balloon, so that it resembles a UFO and will electrically charge the skin of the craft (Biefield-Brown Effect). We will capture the footage on film, and will utilize the media as a means with which to make our presence known to the masses. This will not only provide us with incredible footage, but will also generate a tremendous amount of controversy among the public, as well as publicity within the mainstream media. This will be the most significant UFO-related news event to take place since the Roswell Crash of 1947, and the result will be a dramatic increase in local and national awareness about The Heene Family, our Reality Series, as well as the UFO Phenomenon in general.

17. Why do fish swim in perfectly synchronized schools, and does this behavior relate to electromagnetic phenomenon? We will observe schools of fish in a controlled environment, and then will modify the local electromagnetic field to see if their schooling patterns change.

18. Can we make an Antigravity Levitator using poor-man's Liquid Nitrogen? We have already built an array of solenoid coils, which could potentially demonstrate electro-gravitic levitation, when cooled to the proper temperature and fed the proper frequency of direct current. (Video and Explanation of the Device: ).

19. Can we launch a model rocket into space using a weather balloon and a remote launch pad? The weather balloon and attached rocket (with cameras attached) will ascend to 110,000 feet and will burst at the exact moment that the attached Rocket is launched. Onboard rocket-cameras and a GPS locator will capture the action. (To give you an idea of the incredible view that this experiment will capture, here is a video: ).

20. Build giant, rotating magnet, to determine if a miniature tornado can be produced with the proper rotational velocity and magnetic flux. We have already successfully carried out and documented this experiment, with fantastic results.

21. Where does the human spirit go at the time of a person's death? At the time of death, humans lose an average of 8-grams. We'll get a terminally ill and willing volunteer, who is ready to depart, and who is willing to provide their passing as a means with which to better understand the human spirit through scientific analysis of Electromagnetic Phenomena.

22. Can we make a battery that charges itself out of rock crystals? (We will be working with John Hutchinson [Hutchinson Effect Explained: http://www.geocities.com/ResearchTriangle/Thinktank/8863/HEffect1.html].

23. Can we change the Physical Properties/Levitate/Render Invisible various objects, with the use of high frequency, Electromagnetic Harmonics? (http://video.google.com/videoplay?docid=-5722629372257156662).

24. Can we catch fish with a remote controlled boat and attached fishing line? This experiment will be just for laughs, but could prove to be quite successful. (Video of RC Boat Fishing: ).

25. We will demonstrate what it feels like to be in the eye of a storm, using a semi-clear, round, livestock water tank, and high-speed, rotating donut floor. We will rotate the floor, which has fins attached, and the result will be a massive vortex in the water tank. We will then lower a chair into the middle of the vortex and allow the team to take turns sitting in the middle of the vortex, without getting wet. We will illuminate the water with various LED lights for aesthetic improvement. (Here is a video demonstrating a water vortex. Just imagine one with faster rotation and a chair in the middle: ).

26. Can we detect magnetic/electrical impulses from the human brain, as we try to read each other's minds? We will experiment with binaural beats (http://en.wikipedia.org/wiki/Binaural_beats) and attempt to synchronize our brainwave patterns, so that we can try to communicate telepathically with one another. (NewScientist Article on Mind-Reading Headsets: http://www.newscientist.com/article/dn17009-innovation-mindreading-headsets-will-change-your-brain.html).

27. Can we replicate Benjamin Franklin's Electricity Experiment, by launching a balloon, connected to the ground with a wire and solenoid (remotely controlled for safety) in a lightning storm? Various theories suggest that Franklin never carried out his famous lightning kite experiment, so we will be the first to successfully carry out this experiment and capture it on film for the world to enjoy.

28. Can we illuminate a light bulb and various other electronic devices, by wirelessly transmitting electricity through the earth itself? Nikola Tesla successfully carried out this experiment in Colorado Springs in 1899.

29. Laser Paint Brush: With the clever combination of a video projector, a laptop, and a powerful laser, we will build a laser paintbrush and will paint the side of a dark Colorado mountain. Here is an example of a similar device:

30. Laser signal to the International Space Station: We will contact NASA regarding a controlled experiment with high-powered lasers and the international space station. Basically, the crew of the ISS will be informed that we will be shining a bright green laser at the space station, at nighttime when it passes overhead. The ISS crew will report whether or not the green beam was visible from their orbiting vantage point. The laser we will be using has a range of over 500-miles, so the result has the potential of being successful. This will also be a tremendous opportunity for the kids to talk to NASA astronauts who are actually in space.

31. The Infamous Double Slit Experiment: We will prepare and demonstrate just how strange the quantum world really is. (Here is a video explaining the experiment: ).

32. Super cooling Experiment: We will create instant ice by super cooling pressurized water down to -6 Fahrenheit. When the water is poured out, it will freeze instantly, an effect that is very entertaining to watch. (Video of the Experiment: ).

33. Clouds in a Bottle: With nothing more than household materials, we will successfully create clouds in a bottle. (Video of the experiment: ).

34. Superconductive Levitating Hoverboard: We will build a small Hoverboard out of superconductive ceramic disks and will build a magnetic skate park for the device to levitate over. The model will not be to scale, but will definitely demonstrate the possibilities of this unique technology. (Video of a Superconductive Levitating Train: ).

35. Diet Coke & Mentos Effect: When Diet Coke and Mentos mix, the result is explosive (and we're not talking about flavor). We will build an array of Mentos Rockets and will launch them in unison. (Video of Diet Coke & Mentos in action: ).

36. Resonating Corn Starch: When Corn Starch and Water are mixed, the result is a strange substance called Non-Newtonian Fluid (Non-Newtonian Fluid: http://en.wikipedia.org/wiki/Non-Newtonian_fluid). This special fluid demonstrates very interesting characteristics when placed in a vibrating medium, such as a speaker. We will prepare non-newtonian fluid and will demonstrate the result of various harmonic frequencies on the substance. We will then add drops of food coloring to demonstrate the fluid motion and fractal forms found within the resonance. (Videos of vibrating Non-Newtonian Fluid: and ).

37. Cymatics: We will demonstrate how various materials react to harmonic tones induced by a Chaladni plate. This experiment will demonstrate how different substances and objects respond to vibration, along with the sacred geometric forms that certain harmonic tones produce within each substance. We will expand upon this concept by adding food coloring to follow the micro-vortices as they transform into larger-scale fractal forms. (Video demonstrating Cymatics: ).

38. Liquid Magnets: We will demonstrate the process of synthesizing Ferrofluid (Ferrofluid: http://en.wikipedia.org/wiki/Ferrofluid) and will then demonstrate how this amazing substance responds to magnetic fields. In order to fully demonstrate the capabilities of this substance, we will build a magnetic sculpture that will fascinate our viewers. (Video of a Ferrofluid Fountain: ).

39. Levitating Water Fountain: We will build a fountain, which utilizes properly timed strobe lights and falling water, to create the illusion of levitating droplets of water. (Video demonstrating the concept: ).

40. Diamagnetic Antigravity Chamber: We will build an electromagnetic resonance chamber, which comprises of a concentrated array of highly concentrated electromagnetic waves. These EMF waves levitate diamagnetic objects placed within the chamber. (Videos demonstrating the effect: and ).

41. Magnetic Super Crystals: We will utilize the previously mentioned Diamagnetic Antigravity Chamber to grow crystals in a simulated microgravity environment. We will also diamagnetically levitate a sphere of water and will freeze it in its levitating form. (NewScientist Article About Magnetic Crystal Growth: http://www.newscientist.com/article/dn12467-magnetic-gravity-trick-grows-perfect-crystals.html).

42. The Weightless Guinea Pig: Scientists have already successfully demonstrated that creatures such as frogs and grasshoppers levitate within a diamagnetic levitation chamber. Thus far, they have yet to levitate a guinea pig. Fortunately for us, we have a cute and willing participant named Gizmo, who has agreed to be the Guinea Pig in this experiment (pun intended). Gizmo will be equipped with a custom space suit (complete with a bubble helmet) and will be the first Guinea Pig in history to experience the feel of a true spacewalk. No animals will be harmed in this experiment, but we can't guarantee that Gizmo will still find her exercise ball entertaining after the fact. (An article about levitating animals: http://findarticles.com/p/articles/mi_qn4188/is_20031020/ai_n11421813/).

43. Telekinesis-Fact or Fiction? In this experiment, we will attempt to demonstrate the movement of physical objects by way of mind power alone. We will use a multitude of scientific equipment to record and document the data (if any result is successful). We will build a psi-wheel (Info about psi Wheels: http://psiwheelmindpowered.blogspot.com/). , In order to eliminate the risk of wind currents being the cause of any movement. (Video of purported telekinesis being performed: ).

44. The Power of Steam: This experiment (the Campfire Generator) is going to be a hands-on approach to re-inventing steam-driven technology, so that it can be applied to modern technological applications. In this experiment, we will build a device, which will generate electricity with a campfire and water alone. Normally the two don't mix too well, but this device will be sure to empower (literally) a multitude of outdoor activities.

45. Tesla CD Turbine: In this experiment, we will demonstrate how common household items (such as a cd case) can be utilized to create a powerful turbine. The Tesla CD Turbine is a miniaturized version of the bladeless, centrifugal flow expander, invented by Nikola Tesla. (Tesla Turbine Info: http://en.wikipedia.org/wiki/Tesla_turbine). The Tesla CD Turbine is capable of producing upwards of 18,000 RPM (that's 300-revolutions per second!). This device could easily be used as a method of generating a tremendous amount of electricity, and can be built for very little money. (Video demonstration of a Tesla CD Turbine: ).

46. Studying Solar Flares and Sunspots: In this experiment, we will utilize special optical experiments and telescopes to observe the sun. We will explain how the sun works, and what it is made of. We will also discuss the potential of a powerful solar flare and how it could affect our electronics here on Earth. (Video clip showing rotating sun and flares: ).

47. Astronomy Observations: In this experiment, we will observe the heavens through powerful telescopes, and will explain how scientists theorize the universe began, where our solar system is located within the milky way, and what the universe might look like on a much larger scale. (Video demonstrating the true structure of our Universe: ).

48. The Constellations: In this experiment, we will study the heavens and will outline the main constellations. Once the constellations have been described, we will explain where each name/character came from and the underlying symbolism involved.

49. Does The Moon Have an Atmosphere? In this experiment, we will attempt to prove or disprove the alleged existence of thin clouds above the surface of the moon. We will then explain why only one side of the moon faces the Earth, along with scientific theories behind the creation of our celestial neighbor.

50. The Theory of Everything: In this experiment, we will explain Garrett Lisi's Theory of Everything (Ted Video about The Theory of Everything: http://www.ted.com/index.php/talks/garrett_lisi_on_his_theory_of_everything.html). We will then attempt to prove/disprove the validity of his theory by studying natural phenomena and applying our observations to the Theory of Everything.

51. The Large Hadron Collider- Atom Smasher, or Black Hole Factory? In this experiment, we will describe the inner workings of CERN Laboratory's Large Hadron Collider. We will explain how the device operates, what it is attempting to discover, and potential catastrophic results of running the colossal 6-billion dollar machine. (Video about the Large Hadron Collider: http://www.ted.com/index.php/talks/brian_cox_on_cern_s_supercollider.html). (Video describing the potential downfalls of this device: ). We will build a small-scale particle accelerator and will attempt to analyze the influence that such a device has on its surrounding environment (such as the middle of the ring).

52. Bee-on-a-leash: In this experiment, we will capture several bumblebees, and will place them in freezer for 10-minutes. This is not enough time for the bees to die, but will temporarily render them unable to move. During this precious timeframe, when the bees are frozen, we will tie dental floss to them. This floss will act like a leash and will be quite the shock for the bumblebees when the thaw out. This should be a hilarious experiment. (Video of a Bee on a Leash: ).

* We have plenty of more experiments to offer, but for the time being we wanted to provide you with enough for a calendar year.

The affidavits don't reveal much new information, and recount the story as it is known: Halderman allegedly placed a packet in Letterman's car with a screenplay treatment and note threatening to reveal private details about his life:

The cops seized Halderman's computer, and seemed to suspect that he communicated about the plot via e-mail—they sought any data related to a redacted screen name and e-mail address that could be Halderman's or could be someone else's. They were also careful to seek a warrant to seize any e-mails or notes related to Halderman and "any and all Public figures," suggesting they may have suspected that Halderman had a sideline going with other targets.

The warrants also give a sense of Letterman's—referred to as "Client #1" in documents—state of mind as the sting unfolded:

The revelation that the FBI had destroyed its records on Cronkite in 2007 came in response to Freedom of Information Act requests sent in after his death in July (everybody FOIAs the FBI files of public figures after they die, because dead people don't have privacy rights and the FBI must turn them over). The bureau routinely destroys files, but it's supposed to hold on to records that may have historical value—and Walter Cronkite certainly qualifies as a historical figure.

We filed a FOIA request to find out everything we could about the destroyed file—and got denied. But then USA Today piped up with a story on Cronkite's disappearing paper trail, and lo and behold, the bureau reconsidered and we got a packet in the mail with some pages (embedded below) indicating both the date of the file—it was opened in January 1974—and its number in the FBI's filing system. From that number—9-57023—we can deduce that it was an extortion investigation, because the first number corresponds to the bureau's code system for classifying crimes. A "9" means "Extortion, Extortion — Racial Matters, [and] Extortion — Nuclear."

So there you have it! Cronkite's name came up in a 1974 extortion investigation, and the FBI destroyed the file. Was Cronkite himself the victim? We don't know, but it appears from a screen printout from a search of the FBI's filing system turned over by the bureau that Cronkite was one of three subjects of the file (the other two names are redacted).

Bill Carter, an FBI spokesman, says Cronkite's name merely came up in the missing file, that he wasn't the subject of it, and that it had no historical value. Not to get too much further into the weeds here than we already are, but Carter admits that he has no idea how he knows that—"That's my understanding from records management," he says, referring to the FBI's division for handling FOIA requests. The problem is, if there is information somewhere that confirms whether or not Cronkite was indeed the subject of the missing file, and how tangential or central he was to its contents, we should have it, since we FOIA'd those records and the FBI says it has turned over everything it found. So if Carter knows something we don't about that file—e.g., whether or not Cronkite was the subject—it means the bureau is holding out on us. All this would have been much simpler and less confusing if they had simply not destroyed the file.

We called CBS News and Cronkite's son Chip to see if anyone recalled an extortion attempt against Cronkite in the 1970s; a CBS News spokesman declined to comment, and Chip Cronkite didn't return a phone call.

The FBI's Carter also says the bureau has "at least two or three" other files on Cronkite that it is currently processing for release. That was news to us, since the bureau's Records Management Division told us back when we first got news of the file's destruction that it was the only thing they had on Cronkite. But a "search slip" released by the bureau to us seems to back Carter up, mentioning at least one other file in which Cronkite's name appeared. That file's number begins with 145, which is code for "Interstate Transportation of Obscene Matter." You can bet we'll be FOIAing that one.

UPDATE: Chip Cronkite did call us back to say he has no knowledge of any extortion plots, but looks forward to hearing about anything else we find, "obscene or otherwise."

This page appears to show the search results in the FBI's system for the destroyed file, indicating that it was created in January of 1974 and also involved two unnamed individuals.

This says 9-57023 was "DESTROYED" in October 2007.

This is the FBI's numerical code for different varieties of crimes—the number in the left-hand column begins each file number for investigations into the corresponding crime.

Go back to: See the Toxic Dumping Memos an Extremely Stupid Company Tried to Censor in Britain

Go back to: See the Toxic Dumping Memos an Extremely Stupid Company Tried to Censor in Britain

Go back to: See the Toxic Dumping Memos an Extremely Stupid Company Tried to Censor in Britain

Go back to: See the Toxic Dumping Memos an Extremely Stupid Company Tried to Censor in Britain

Go back to: See the Toxic Dumping Memos an Extremely Stupid Company Tried to Censor in Britain

Go back to: See the Toxic Dumping Memos an Extremely Stupid Company Tried to Censor in Britain

Go back to: See the Toxic Dumping Memos an Extremely Stupid Company Tried to Censor in Britain

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Decided on September 29, 2009

SUPREME COURT, APPELLATE DIVISION
First Judicial Department
Luis A. Gonzalez, P.J.
John T. Buckley
James M. Catterson
James M. McGuire
Dianne T. Renwick, JJ.
475-475A-475B-475C
603121/07

[*1]Dan Rather, Plaintiff-Respondent-Appellant,

v

CBS Corporation, Defendant-Appellant-Respondent, Viacom, Inc., et al.,
Defendants-Respondents.

Plaintiff Dan Rather appeals from a judgment of the Supreme Court, New
York County (Ira Gammerman, J.H.O.), entered April 14, 2008, dismissing
the complaint as against the individual defendants, and bringing up for
review an order, same court and J.H.O., entered April 11, 2008, which,
inter alia, granted defendants' motion to dismiss the complaint to the
extent of dismissing the causes of action for fraud, breach of the
implied covenant of fair dealing, and tortious interference with
prospective business relations, and denied the motion to the extent it
sought to dismiss the causes of action for breach of contract and breach
of fiduciary duty, and from a judgment, same court and J.H.O., entered
September 30, 2008, dismissing the amended complaint as against Viacom,
Inc. and dismissing the causes of action for fraud and tortious
interference with contract as against CBS Corporation, and bringing up
for review [*2]an order, same court and J.H.O., entered September 23,
2008, which granted CBS and Viacom's motion to the extent it sought to
dismiss the causes of action for fraud and tortious interference with
contract and denied the motion to the extent it sought to dismiss the
cause of action for breach of fiduciary duty. Cross appeals from the
aforesaid orders.

Weil, Gotshal & Manges LLP, New York (James W.
Quinn, Mindy J. Spector and
Yehudah L. Buchweitz of
counsel), and CBS Law
Department, New York (Anthony
M. Bongiorno and Mary
Catherine Woods of counsel),
for appellant-respondent and
respondents.
Sonnenschein Nath & Rosenthal LLP, New York
(Martin R. Gold, Gary
Meyerhoff, Edward J. Reich, Daniel
Pancotti, and Zhubin Parang
of counsel), for respondent-
appellant.

CATTERSON, J.

This action asserting breach of contract and related tort claims arises
out of a September 8, 2004 broadcast that plaintiff Dan Rather narrated
on the CBS 60 Minutes II television program about then President George
W. Bush's service in the Texas Air National Guard. Rather alleges that
CBS disavowed the broadcast after it was attacked by Bush supporters,
and fraudulently induced him to apologize personally for the broadcast
on national television as well as to remain silent as to his belief that
the broadcast was true. Rather alleges that, following President Bush's
re-election, CBS informed him that he would be removed as anchor of the
CBS Evening News. Rather claims that although his employment agreement
required that, in the event he was removed as anchor, CBS would make him
a regular correspondent on 60 Minutes or immediately pay all amounts due
under the agreement and release him to work elsewhere, CBS kept him on
the payroll while denying him the opportunity to cover important news
stories until May 2006 when it terminated his contract, effective June
2006.

Rather commenced this action against CBS Corporation, Viacom Inc., and
individual defendants Leslie Moonves, Sumner Redstone and Andrew Heyward
in September 2007. He asserted, inter alia, claims of breach of contract
and breach of fiduciary duty against CBS; claims of fraud against CBS
and the individual defendants and a claim of tortious inducement of
breach of contract against Viacom and the individual defendants.

Now, Rather appeals and defendants CBS Corporation and Viacom Inc.
cross-appeal from orders entered by Supreme Court on April 11, 2008 and
September 25, 2008, which granted defendants' motion to dismiss the
claims for fraud, breach of the implied covenant of good faith and fair
dealing and tortious interference with contract, and denied defendants'
motion to dismiss the claims for breach of contract and breach of
fiduciary duty.

For the reasons set forth below, this Court finds that the motion court
erred in denying the defendants' motion to dismiss the claims for breach
of contract and breach of fiduciary duty, and [*3]therefore we find the
complaint must be dismissed in its entirety.

As a threshold matter, we find that Rather's appeal from the portion of
the April 11, 2008 order that dismissed his fraud claims against the
individual defendants was not rendered academic by his service of an
amended complaint against the remaining defendants. See Velez v.
Feinstein, 87 A.D.2d 309, 312-313, 451 N.Y.S.2d 110, 113 (1982), lv.
dismissed in part, denied in part, 57 N.Y.2d 737, 454 N.Y.S.2d 987, 440
N.E.2d 1334 (1982). Moreover, for reasons set forth below, we find that
Rather's service of a second amended complaint does not render moot his
cross appeal from that portion of the September 25, 2008 order that
dismissed his fraud claim. On the record before us, we assume, without
deciding, that Rather's claim of breach of the implied covenant of good
faith and fair dealing asserted as against CBS in the original complaint
may also properly be reviewed. cf. O'Ferral v. City of New York, 8 AD3d
457, 459, 779 N.Y.S.2d 90, 91 (1st Dept. 2004) (since court granted
leave to file amended complaint that superseded original complaint,
issue of disposition of claim included in original but not in amended
complaint is academic).

At the outset, we find that Supreme Court erred in declining to dismiss
Rather's breach of contract claim against CBS. Rather alleges that he
delivered his last broadcast as anchor of the CBS Evening News on March
9, 2005, and that, since he was only nominally assigned to 60 Minutes II
and then 60 Minutes, he should have received the remainder of his
compensation under the agreement in March 2005. Rather claims that, in
effect, CBS "warehoused" him, and that, when he was finally terminated
and paid in June 2006, CBS did not compensate him for the 15 months
"when he could have worked elsewhere." This claim attempts to gloss over
the fact that Rather continued to be compensated at his normal CBS
salary of approximately $6 million a year until June 2006 when the
compensation was accelerated upon termination, consistent with his
contract.

Contractually, CBS was under no obligation to "use [Rather's] services
or to broadcast any program" so long as it continued to pay him the
applicable compensation. This "pay or play" provision of the original
1979 employment agreement was specifically reaffirmed in the 2002
Amendment to the employment agreement.

That Amendment also provided, in subparagraph 1(g), that if CBS removed
Rather as anchor or co-anchor of the CBS Evening News and failed to
assign him as a correspondent on 60 Minutes II or another mutually
agreed upon position, the agreement would be terminated, Rather would be
free to seek employment elsewhere, and CBS would pay him immediately the
remainder of his weekly compensation through November 25, 2006.

We agree that subparagraph 1(g) must be read together with the
subparagraph 1(f), which provided that if CBS removed Rather from the
CBS Evening News, it would assign him to 60 Minutes II "as a full-time
Correspondent," and if 60 Minutes II were canceled, it would assign him
to 60 Minutes as a correspondent "to perform services on a regular
basis." However, this construction does not render any language of the
agreement inoperative, since, consistent with the "pay or play" clause,
neither subparagraph 1(g) nor 1(f) requires that CBS actually use
Rather's services or broadcast any programs on which he appears, but
simply retains the option of accelerating the payment of his
compensation under the agreement if he is not assigned to [*4]either
program.

It is clear that subparagraph 1(g) applies only to a situation where CBS
removed Rather as anchor of CBS Evening News and then failed to assign
him "as a Correspondent on 60 Minutes II." The amended complaint alleges
that when Rather no longer performed anchor duties at CBS, he was
assigned to 60 Minutes II. Thus, Rather implicitly concedes that CBS
fully complied with subparagraph 1(g).

Supreme Court erred in finding that subparagraph 1(g) modified the "pay
or play" provision when it ignored the initial prefatory clause to the
rest of that subparagraph, which states "[e]xcept as otherwise specified
in this Agreement." As the defendants correctly assert, the seven words
are crucial because they require subparagraph 1(g) to be read together
with the "pay or play" provision, and thus, subparagraph 1(g) cannot
modify the "pay or play" provision to mean that CBS must utilize Rather
in accordance with some specific standard by featuring him in a
sufficient number or types of broadcasts. As the defendants aptly
observed, "the notion that a network would cede to a reporter editorial
authority to decide what stories will be aired is absurd."

Rather's claim for lost business opportunities due to CBS's failure to
release him to seek other employment is insufficiently supported. Since,
according to Rather's own allegations, an immediate result of the
September 8, 2004 broadcast was criticism that he was biased against
Bush, it would be speculative to conclude that any action taken by CBS
would have alone substantially affected his market value at that time.
Rather's claim for damages for loss of reputation arising from the
alleged breach of contract is not actionable. Dember Constr. Corp. v.
Staten Is. Mall, 56 A.D.2d 768, 392 N.Y.S.2d 299 (1st Dept. 1977).

Rather's cause of action for breach of fiduciary duty must also be
dismissed. Supreme Court held that the issue of "whether a fiduciary
duty has been created in the course of the long relationship between
Rather and CBS is really a question of fact." Previously, the court
determined that "the length of [Rather's] contractual relationship with
[CBS], and the nature of the service that [Rather] performed under his
contracts" created an issue of fact that could not be resolved on
motion. This was error.

Rather claims that his "four-decade history" with CBS constituted a
"special relationship that imposed fiduciary duties upon CBS toward
[Rather]." The law in this Department, and indeed enunciated in every
reported appellate-division-level case, is that employment relationships
do not create fiduciary relationships. Simply put, "[the employer] did
not owe plaintiff, as employee, a fiduciary duty." Angel v. Bank of
Tokyo-Mitsubishi, Ltd., 39 AD3d 368, 370, 835 N.Y.S.2d 57, 60 (1st Dept.
2007), citing Weintraub v. Phillips, Nizer, Benjamin, Krim & Ballon, 172
A.D.2d 254, 568 N.Y.S.2d 84 (1st Dept. 1991); see Schenkman v. New York
Coll. Of Health Professionals, 29 AD3d 671, 672, 815 N.Y.S.2d 159, 161
(2d Dept. 2006) ("[employees] failed to plead any facts demonstrating
how the arm's-length, employer-employee relationship [...] gave rise to
any fiduciary duty."); Cuomo v. Mahopac Natl. Bank, 5 AD3d 621, 622, 774
N.Y.S.2d 779, 780 (2d Dept. 2004), lv. denied, 3 NY3d 607, 785 N.Y.S.2d
25, 818 N.E.2d 667 (2004).

The length of Rather's tenure at CBS is irrelevant to, and does not
support, this claim of a [*5]fiduciary relationship (see e.g., Michnick
v. Parkell Prods., 215 A.D.2d 462, 626 N.Y.S.2d 265 (2d Dept. 1995)),
nor does Rather's status as "the public face of CBS News after Walter
Cronkite retired [...]." See e.g. Maas v. Cornell Univ., 245 A.D.2d 728,
666 N.Y.S.2d 743 (3d Dept. 1997).

Supreme Court's reliance on Apple Records v. Capitol Records (137 A.D.2d
50, 529 N.Y.S.2d 279 (1st Dept. 1988)) and Wiener v. Lazard Freres & Co.
(241 A.D.2d 114, 672 N.Y.S.2d 8 (1st Dept. 1998)), was also error.
Unlike in Apple Records, where fledgling musicians ultimately became a
worldwide music phenomenon known as the Beatles, Rather was an
established correspondent represented by a leading talent agent, who
negotiated a contract that was extensively amended several times, that
paid Rather a lucrative salary, and that detailed, in 50 pages,
everything from his assignments and on-air work at CBS Evening News to
requirements that he attend rehearsals and join the union. See Faulkner
v Arista Records LLC, 602 F.Supp.2d 470, 484 (S.D.N.Y. 2009) ("there are
no facts here to suggest that the dealings between the Rollers and
Arista were anything other or more than garden-variety arm's length
transactions").

The Apple Records court also made plain that the defendant was not only
the exclusive distributor of and manufacturer of the Beatles' recordings
but also that the Beatles "entrusted their musical talents" to the
defendant over a period of many years commencing when the Beatles were
"still unacclaimed." Apple Records, supra, 137 A.D.2d at 57, 529
N.Y.S.2d at 283. No such exclusive distributor relationship exists in
the instant case. (See e.g. Zimmer-Masiello, Inc. v. Zimmer, Inc., 159
A.D.2d 363, 552 N.Y.S.2d 935 (1st Dept. 1990)), nor can Rather argue
that he "entrusted" his particular talents to CBS. Indeed, it may well
be that Apple Records will remain a singular holding because of its
application to a phenomenon (unacclaimed artists who were also
unsophisticated businessmen thrust to the pinnacle of success at warp
speed) that's not likely to be seen again, not even on American Idol.

Similarly, Supreme Court improperly relied on Wiener, where we found
that the plaintiff specifically alleged that employees of the defendant
acted on the plaintiff's behalf in conducting negotiations with a bank,
and that they relied on the defendant's "expertise and reputation" as
well as certain connections inside the management of the bank. 241
A.D.2d at 123, 672 N.Y.S.2d at 15. It simply cannot be argued that CBS
acted as Rather's agent when Rather employed his own agent to negotiate
with CBS for Rather's benefit. Any claim to the contrary is belied by
both the evidence and common sense.

We affirm dismissal of Rather's fraud claims against CBS and the
individual defendants although we find that Supreme Courterred in its
rationale for the dismissal as it also erred in rejecting the
defendants' other challenges to the fraud claim.

We take judicial notice of Rather's second amended complaint
(hereinafter referred to as "SAC") filed by leave of Supreme Court on
July 27, 2009, and by separate order, as a matter of discretion in the
interest of judicial economy, we deny Rather's motion to withdraw that
portion of his appeal relating to the dismissal of his fraud claim.

The SAC repleads the fraud claim in an attempt to remedy the defects to
which Supreme Court pointed in its dismissal of the claim in its
September 25, 2008 order. However, Supreme [*6]Court erred in its
rationale for the dismissal in holding that Rather "failed to allege
[...] that his financial compensation at HDNet [...] is less than he
would have received had his contract been renewed." Thus, the mere
inclusion of Rather's actual annual compensation at HDNet is not helpful
to his case, and would not be helpful to his case before this Court at
any future date.

Rather alleges that various misrepresentations ( e.g., promises to
publicly defend his reputation and to conduct an independent
investigation into the 2004 broadcast, and assurances that CBS intended
to use his talents fully and to extend his contract, which was due to
expire on November 25, 2006) induced him to remain silent about his role
in the broadcast and to remain with CBS, where he was allegedly
"warehoused" until thecompletion of his contract. As a result, he
alleges he suffered money and reputation damages. Relying on Rather's
well-footnoted appellate brief, this Court was already cognizant of his
argument that, following the completion of his CBS contract, his
compensation at HDNet was less than the $4 million a year established as
an approximate market rate for comparable journalists. However, for
reasons set forth here, this information was not required for our
analysis, and the lack of it was not the reason for affirming dismissal.

It is hornbook law that,

"In an action to recover damages for fraud, the plaintiff must prove a
misrepresentation or a material omission of fact which was false and
known to be false by defendant, made for the purpose of inducing the
other party to reply upon it, justifiable reliance of the other party on
the misrepresentation or material omission, and injury."

Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76,
80, 668 N.E.2d 1370, 1373 (1996), citing Channel Master Corp v. Aluminum
Ltd. Sales, 4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833 (1958).
Supreme Court properly dismissed Rather's fraud claims for failure to
allege pecuniary loss.
"The true measure of damage is indemnity for the actual pecuniary loss
sustained as the direct result of the wrong or what is known as the
out-of-pocket rule. Under this rule, the loss is computed by
ascertaining the difference between the value of the bargain which a
plaintiff was induced by fraud to make and the amount or value of the
consideration exacted as the price of the bargain. Damages are to be
calculated to compensate plaintiffs for what they lost because of the
fraud, not to compensate them for what they might have gained. Under the
out-of-pocket rule, there can be no recovery of profits which would have
been realized in the absence of fraud." Lama, 88 N.Y.2d at 421, 646
N.Y.S.2d at 80 (internal quotation marks and citations omitted).
Thus, under Lama Holding Co. and its progeny, Rather was required to
plead that he had something of value, was defrauded by CBS into
relinquishing it for something of lesser value, and that the difference
between the two constituted Rather's pecuniary loss.

Rather's claim that, but for CBS' fraud, he could have had more
remunerative employment than that which he ultimately obtained at HDNet
is unavailing. "[T]he loss of an alternative contractual bargain [...]
cannot serve as a basis for fraud or misrepresentation damages because
the loss of the bargain was undeterminable and speculative.'" Lama, 88
N.Y.2d at 422, [*7]646 N.Y.S.2d at 80, quoting Dress Shirt Sales v.
Hotel Martinique Assoc., 12 N.Y.2d 339, 344, 239 N.Y.S.2d 660, 664, 190
N.E.2d 10, 13 (1963); see Geary v. Hunton & Williams, 257 A.D.2d 482,
684 N.Y.S.2d 207 (1st Dept. 1999).

Rather claims, based on his value and the value of similar professionals
in the industry, that he would have been paid $4 million annually from
2005 through 2010. However, while claiming that he had an
"agreement-in-principle" with CBS in the summer of 2004 to extend his
contract, he alleges in the amended complaint that he had an unwritten
"proposal" that "contemplated" a contract extension, and the terms of
the proposal were compensation of $4 million for the first 19 months and
$2 million annually thereafter. Rather admits that, the broadcast and
its aftermath aside, CBS was already contemplating that he would step
down from the anchor position in 2006 and assume a reduced role.

As to lost opportunities in the trade, while Rather has shown his own
track record of earnings and the earnings of other trade professionals,
his future earnings are speculative, because there is no basis to
conclude that his employment status would not have changed, regardless
of CBS's actions, once he determined to make the broadcast. Rather never
identified a single opportunity with specified terms that was actually
available to him and which he declined to accept because of CBS'
actions.

Even if Rather pled pecuniary loss sufficiently to satisfy the Lama
standard, his claim would nonetheless fail. Although allegations that
defendants made statements to the general public, for example, that they
falsely blamed Rather for alleged errors in the broadcast, may
constitute a defamation claim (see Morrison v. National Broadcasting
Co., 19 N.Y.2d 453, 458-459, 280 N.Y.S.2d 641, 644, 227 N.E.2d 572, 574
(1967)), they are time-barred. Furthermore, Rather's claim of under-use
merely recasts his breach of contract claim in terms of fraud. See
Wegman v Dairylea Coop., 50 A.D.2d 108, 113, 376 N.Y.S.2d 728, 734-735
(1975), lv. dismissed, 38 N.Y.2d 918, 382 N.Y.S.2d 979, 346 N.E.2d 817
(1976), and CBS's alleged promise to extend Rather's contract
constitutes a non-actionable statement of future intent. See Laura
Corio, M.D., PLLC v R. Lewin Interior Design, Inc., 49 AD3d 411, 412,
854 N.Y.S.2d 55, 56-57 (1st Dept. 2008).

Even if Rather had alleged "a breach of duty which is collateral or
extraneous to the contract between the parties" Krantz v Chateau Stores
of Canada, 256 A.D.2d 186, 187, 683 N.Y.S.2d 24, 25 (1st Dept. 1998)
(internal quotation marks and citations omitted), he failed to
adequately allege damages.

To the extent Rather claims that he should have been released from the
agreement earlier to pursue other opportunities, this claim is
duplicative of his breach of contract claim. See Non-Linear Trading Co.
v. Braddis Assoc., 243 A.D.2d 107, 118, 675 N.Y.S.2d 5, 13 (1st Dept.
1998). Similarly, Rather's claim for breach of the implied covenant of
good faith and fair dealing was properly dismissed by Supreme Court for
being duplicative of his breach of contract claim. See Canstar v. Jones
Constr. Co., 212 A.D.2d 452, 622 N.Y.S.2d 730 (1st Dept. 1995).

Finally, Supreme Court properly dismissed the claim of tortious
interference with a contract as against CBS and Viacom. First, CBS
asserts correctly that Viacom is not a proper party to this action.
Documentary evidence demonstrates that on December 31, 2005, Viacom
[*8](old Viacom) split into two publicly traded companies named Viacom
(new Viacom) and CBS Corporation, the latter retaining all of the
liabilities concerning CBS's broadcasting business. Thus, the motion
court correctly found that new Viacom carries no liability for old
Viacom's acts in this suit. Second, as to the claim against CBS, the
court correctly applied the economic interest doctrine to dismiss this
claim against the corporate defendant. See White Plains Coat & Apron
Co., Inc. v. Cintas Corp., 8 NY3d 422, 835 N.Y.S.2d 530, 867 N.E.2d 381
(2007). Rather's bare allegations of malice do not suffice to bring the
claim under an exception to the economic interest rule. See Ruha v.
Guior, 277 A.D.2d 116, 717 N.Y.S.2d 35 (1st Dept. 2000). Since on
appeal, Rather has not addressed his argument as to this cause of action
to the individual defendants, we deem the argument abandoned. In any
event, there is no particularized pleading of allegations that the acts
committed by the individual corporate employees were either beyond the
scope of their employment or motivated by their desire for personal
gain. See Petkanas v. Kooyman, 303 A.D.2d 303, 305, 759 N.Y.S.2d 1, 2
(1st Dept. 2003).

Accordingly, the judgment of the Supreme Court, New York County (Ira
Gammerman, J.H.O.), entered April 14, 2008, dismissing the complaint
asagainst the individual defendants, and bringing up for review an
order, same court and J.H.O., entered April 11, 2008, which, inter alia,
granted defendants' motion to dismiss the complaint to the extent of
dismissing the causes of action for fraud, breach of the implied
covenant of fair dealing, and tortious interference with prospective
business relations, and denied the motion to the extent it sought to
dismiss the causes of action for breach of contract and breach of
fiduciary duty, should be modified, on the law, to grant the motion to
dismiss the causes of action for breach of contract and breach of
fiduciary duty, and otherwise affirmed, with costs. Judgment, same court
and J.H.O., entered September 30, 2008, dismissing the amended complaint
as against Viacom, Inc. and dismissing the causes of action for fraud
and tortious interference with contract as against CBS Corporation, and
bringing up for review an order, same court and J.H.O., entered
September 23, 2008, which granted CBS and Viacom's motion to the extent
it sought to dismiss the causes of action for fraud and tortious
interference with contract and denied the motion to the extent it sought
to dismiss the cause of action for breach of fiduciary duty, should be
modified, on the law, to dismiss the remaining causes of action against
CBS, and otherwise affirmed, with costs. Plaintiff's appeals from the
aforesaid orders should be dismissed, without costs, as subsumed in the
appeals from the respective judgments. The Clerk is directed to enter
judgment in favor of [*9]defendant CBS dismissing the amended complaint
as against it.

All concur.
Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.),
entered April 14, 2008, modified, on the law, to grant the motion to
dismiss the causes of action for breach of contract and breach of
fiduciary duty. Judgment, same court and J.H.O., entered September 23,
2008, modified, on the law, to dismiss the remaining causes of action
against CBS. Appeals from the aforesaid orders unanimously dismissed, as
subsumed in the appeals from the respective judgments.

Opinion by Catterson, J. All concur.
Gonzalez, P.J., Buckley, Catterson, McGuire, Renwick, JJ.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2008

CLERK