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Late Night Cage Match: Conan vs. NBC

His statement explaining why he wouldn't host the "Tonight Show" at 12:05 a.m. was addressed to the "People of the Earth," but it sure reads like Conan O'Brien was writing with a more specific audience in mind: the lawyers.

Conan drew a line in the sand yesterday, responding to NBC's decision to move a once-heralded, now-cratering "Jay Leno Show" from 10 p.m. to 11:35 p.m., immediately following the local news. That would push Conan's "Tonight Show" back a half hour, and as he outlined in his statement, that ain't gonna happen without a fight.

Just look at his statement, which all but screams, "I Am Going To Sue You Big-Time, You Morons at NBC." But in more nuanced language, of course.

Here's what Conan wrote: "For 60 years, the "Tonight Show" has aired immediately following the late local news. I sincerely believe that delaying the "Tonight Show" into the next day to accommodate another comedy program will seriously damage what I consider to be the greatest franchise in the history of broadcasting."

And then, he throws this down: "The 'Tonight Show' at 12:05 simply isn't the 'Tonight Show.'"

In other words, NBC, you are breaching my very lucrative contract by making me host an entirely different show at a different time, and I can sue your sorry corporate self for that. Oh, and I can sue Leno and his agents too.

But I'm no contracts lawyer, as I have been keenly aware in recent months, so I reached out to one of the sharpest attorneys I know, my friend and Madison Avenue litigator Mark W. Smith, of the aptly named Smith Valliere PLLC, for his take.

Are we looking at a legal battle royale in the works?

"It is certainly moving in that direction," Mark said.

Indeed, there are a bunch of possibilities, depending on the specific terms of the contracts, Mark said, and he ticked off a few.

For one, Conan could launch a preemptive attack (do not, I am always telling people, mess with a redhead) by suing NBC for breach of contract. He could ask for an injunction declaring NBC has no right to move his time slot and that he would suffer the dreaded "irreparable harm to his reputation" if NBC made such a move.

Conan might also be able to sue Leno and Leno's handlers for tortious interference with Conan's contract with NBC (talk about a family feud!).

Then there are the defamation claims—if someone spoke ill about Conan or Leno by making false statements about their work, then they might be able to hit NBC with that too, Mark pointed out.

But NBC has some options. If NBC moves the show and Conan refuses to go on air at midnight, NBC could sue HIM, Mark said. It also could presumably try to enforce a non-compete clause in Conan's contract that would make him sit on the media sidelines without pay. (Do not get me started on that.)

NBC also may be able to ask for money back, Mark said, on the ground that NBC invested money into him and now he's refusing to perform to NBC's detriment.

In other words, a big ol' legal battle may be brewing—which may be bad for NBC's business, but in the funny ways of the legal world, is not necessarily a bad thing for Conan or Leno.

"Lawsuits can be PR weapons regardless of outcome," Mark said. "Remember, Al Gore LOST the Bush v. Gore lawsuit, but this made Gore more famous and popular with many Americans than ever before. This is the sort of thing Conan should be thinking about now."

And maybe even getting a chuckle out of it.

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