news 2011

Firm retained by jazz great's heirs in dispute over legendary catalog of recordings

December 23, 2011 -- PE&G has filed a multi-million dollar lawsuit against record label Concord Music Group on behalf of the children of Bay Area recording artist and jazz legend Vince Guaraldi. The clients' Alameda County Superior Court complaint alleges, among other misconduct, a deliberate pattern and practice of misreporting in the sales of Guaraldi's works. It also seeks to right various other discrepancies in Concord Music's royalty accounting, including in the treatment of income derived from Concord Music's licenses with digital music providers. Guaraldi's body of recorded musical work, made over a period stretching from the mid-1950s (as a member of the Cal Tjader Quartet) to the time of his untimely death in 1976 (at the age of 47), includes scores to a dozen animated Charlie Brown television specials as well as the jazz standard "Cast Your Fate to the Wind," which won the 1963 GRAMMY for Best Original Jazz Composition. To this day, his Charlie Brown Christmas album -- which includes the iconic "Christmastime is Coming" and the "Peanuts Theme (Linus & Lucy)" -- remains one of the best-selling (and most beloved) holiday albums of all time.

Firm concludes song royalty deal for FILTER hit "Hey Man Nice Shot"

December 7, 2011 -- PE&G attorney David Given recently helped to resolve a long-simmering dispute between Richard Patrick, front-man of the multi-platinum selling band FILTER, and client Nils Teig, relating to royalties derived from the band's hit song "Hey Man, Nice Shot." The matter arose in connection with Patrick's obligation to account to and pay Teig a portion of those royalties, an obligation founded in an agreement the parties made shortly after the release of the song in 1995. The firm first commenced an action on Teig's behalf in the Alameda County Superior Court, succeeding in obtaining an order for prejudgment writ of attachment for almost $300,000, and subsequently fought off an attempt to avoid the obligation to pay in Patrick's ensuing bankruptcy proceeding. Following mediation, the parties entered into a stipulation intended as a "complete and final settlement" of the dispute. Among other things, the stipulation calls for payment of the client's monetary claim in the amount of $400,000, as well as acknowledgment of the client's ongoing entitlement to song royalties on "Hey Man, Nice Shot" and four other FILTER songs, to be paid directly from the sources of those royalties. A motion to confirm the parties' settlement is pending in the bankruptcy court in Los Angeles.

Firm launches case against Sony Music Entertainment on behalf of folk-rock legends The Lovin' Spoonful

November 14, 2011 -- PE&G was recently retained to bring an action on behalf of Rock 'n Roll Hall of Fame inductees The Lovin' Spoonful and its record producer, Erik Jacobsen, against Sony Music Entertainment, relating to the label's royalty accounting practices. In a period of less than three years during the mid-1960's, the band, with Jacobsen at the producing helm (he is often credited as the "Fifth Spoonful"), recorded and released one classic single after another, including "Do You Believe in Magic?," "You Didn't Have to Be So Nice," and the band's biggest hit, "Summer in the City." Taken together, the band's output during this period constituted a run of ten Top 40 hits, including seven consecutive singles that placed inside Billboard's Top 10. A royalty examination conducted on behalf of the band and Jacobsen recently revealed several irregularities in the label's accounting practices; many of those irregularities relate to the treatment of digital music.

Court approves $410 million settlement in firm's case challenging bank's debit card overdraft fee charges

November 7, 2011 -- Following a full-day hearing in which he cited the "high level of dedication, ability, talent and hard work" of the lawyers involved in the case, federal district court judge James Lawrence King, Jr. granted the parties' joint request for final approval of the $410 million proposed class settlement of claims by Bank of America customers over the bank's debit card overdraft fee practices. The settlement followed over two years of active class action litigation in the matter, multiple depositions of bank personnel, and the production by the bank and review by the firm (and other lawyers involved in the case) of millions of pages of documents and transaction data. In addition to payment directly to aggrieved customers' accounts -- without those customers' having to do anything to receive any money -- the bank ceased the practice of charging overdraft fees on debit card accounts for certain transactions, including point-of-sale purchases. Judge King's order and final judgment in the matter is pending, but is expected soon.

Firm scores series of victories in Rick James digital download case

November 1, 2011 -- In a case likely to help determine the future of the digital music business, United States District Court Judge Susan Illston has sided with PE&G clients Rick James, Rob Zombie, Dave Mason and others and denied Universal Music Group's motions to dismiss or transfer the clients' action over UMG's treatment of income derived from its licensing to download music providers in its accounting to artists, producers and other royalty participants. In her nine-page order, Judge Illston ruled that the firm's clients properly stated a claim under California state statutory law arising from their allegations of a "broad scheme to underpay numerous royalty participants" in UMG's accounting for the licensing income it receives from digital music providers, and otherwise permitted the case to continue in San Francisco as a putative class action on behalf of the named plaintiffs and all other royalty participants similarly situated. The decision has prompted at least one other case brought by legendary Public Enemy front man, Chuck D, and well as a spate of publicity on this development as well as another on the subject of damages in a case involving Eminem's catalog of recorded music. Earlier, the judge allowed discovery to commence in the case, against the wishes of UMG. That discovery is now underway. For more information about the Rick James case, click here.

Firm helps long-time client John Gray complete deal to bring one-man show to U.S.

October 31, 2011 -- PE&G recently completed its representation of self-help author John Gray to bring the hit one-man show based upon his best-selling book "Men Are from Mars, Woman Are from Venus" to the United States. To be produced by Emery Entertainment (best known for its work with the Blue Man Group), the play has been a huge success in several European countries, including France, where it has run for more than four consecutive years before sold-out audiences. Emery intends to stage test performances of an English-language version of the play in three cities beginning this Fall, in anticipation of a full production of the show slated for the Spring of next year. Earlier this year, the firm helped secure a similar deal granting rights to the show for Mexico, to be produced by famed Mexican producer Ruben Lara.

Firm obtains million-dollar judgment in trade secrets case

September 9, 2011 -- Judge Ellen Chaitin of the San Francisco Superior Court entered judgment in the amount of $1,106,654.86 against defendant Matthew Jones in favor of PE&G's client, Potrero Media Corporation (PMC), a leading performance-based marketing agency specializing in search marketing, lead generation and online publishing services. PMC contended that Jones, a former employee, had misappropriated trade secrets to start a competing business. PMC previously settled with co-defendants Lead Consortium and Ryan Ousdahl. After repeated discovery violations by Jones, the court found him in contempt and issued terminating sanctions, finding him liable on all counts. A court trial was subsequently held on damages and the court awarded the above amount. The court also made its previously issued Preliminary Injunction permanent.

Firm helps client complete license deal for legendary Beach Boys SMiLE release

August 30, 2011 -- PE&G recently completed its representation of Beat-Pop artist Frank Holmes in a deal with Capitol/EMI Records for the right to use the client's original artwork in connection with a special-edition of the Beach Boys legendary SMiLE album, scheduled for release this Fall. Following the band's 1966 masterpiece, Pet Sounds, the Beach Boys recorded songs intended for the band's next album. Inspired by the music he heard at various studio sessions (to which he was invited by friend Van Dyke Parks, a collaborator on the SMiLE project), Frank created a series of whimsical images illustrating aspects of the album's songs. He later showed his illustrations to Brian Wilson, who was so taken with Frank's art that he insisted it become the visual centerpiece for the intended album. Called by Rolling Stone "the most famous unfinished rock and roll album in history," the master tapes for the unreleased SMiLE album were recovered, remixed and remastered with the Beach Boys' active participation and approval, with Frank's artwork taking the central role Brian Wilson and the band intended for it, over 40 years later.

Huffington Post covers Rick James case in major article on digital download royalties

July 7, 2011 -- The Huffington Post recently reported on the ongoing controversy over the major record labels' accounting practices for income they receive from their dealings with download music providers like Apple/iTunes. In an article entitled "Detroit Shakes Up the Music Industry," writer Jason Schmitt predicted an "avalanche" of potentially "billions of dollars" in claims against the major labels on this subject following the U.S. Supreme Court's decision to let stand the opinion of a federal appellate court in F.B.T. Productions v. Aftermath Records, 621 F.3d 958 (9th Cir. Sept. 3, 2010). That case established the right of recording artists, music producers and other royalty participants of legacy music catalog to receive up to half (instead of a much reduced "record" royalty) of the income Universal Music Group and its affiliated record labels receive from their licenses with download music providers. Schmitt identified PE&G's recently-filed Rick James case as an example of the "larger-scale implications" for the music industry (and in particular, Universal Music Group) of the F.B.T. case. The firm is now representing several well-known recording artists in a class action against Universal Music over its policies and practices in accounting for the digital download income it receives on its recorded music catalog. As of the time of this writing, the case is in its initial stages; discovery into these policies and practices is expected to begin soon.

Legal journal features front page coverage of firm's case for artist's royalties on digital music

May 31, 2011 -- California's leading daily legal newspaper featured a prominent article on PE&G's recent court filings challenging the accounting practices of the world's largest recorded music company, Universal Music Group, in its treatment of artist royalties payable from the label's licenses with third party digital music providers. The Daily Journal's front page article, entitled "Artists Claim Record Labels Owe Them More for Digital Music," reported on two cases brought by the firm in the federal district court in San Francisco. The first case, brought on behalf of the Rick James estate, was followed soon after by a case on behalf of several rock acts, including Rob Zombie, Whitesnake and Dave Mason, whose recording careers collectively span over 30 years. All of the firm's clients (who are each platinum or multi-platinum acts) contend that UMG has systematically underpaid them and others for their share of this income, and that UMG intends to continue to underpay them in the future. Both cases seek class action status to redress the injury from what the complaints allege are the pernicious and unfair policies and practices of UMG, as well as compensation for potentially thousands of royalty participants for past and future monies. For a copy of the article, click here.

Court grants preliminary approval of $410 million payment in firm's case challenging bank's debit card overdraft fee charges

May 16, 2011 -- In a case in which PE&G serves as co-team leader, the parties recently applied to a federal judge in Miami for preliminary approval of a $410 million settlement payment by Bank of America on claims made on behalf of that bank's customers over the bank's debit card overdraft fee practices. The settlement followed over two years of active class action litigation in the matter, multiple depositions of bank personnel (some taken by firm lawyers), and the production by the bank and review by the firm (and other lawyers involved in the case) of millions of pages of documents and transaction data. The application for preliminary approval is pending; should the court grant approval, the process will begin to notify the class and assemble the data to distribute settlement proceeds to the class members, which could number in the millions. In March 2010, following the firm's filing of its suit, Bank of America announced that it was ceasing the practice of charging overdraft fees on debit card accounts for certain transactions, including point-of-sale purchases.

-- UPDATE -- May 24, 2011-- 
Following a hearing in which he characterized the case as "historic" and the settlement the largest he had ever presided over in his 41 years on the bench, federal district court judge James Lawrence King, Jr. granted the parties' joint request for preliminary approval of the proposed class settlement. The order entered by Judge King set the process in motion for notice to the class and public comment, and scheduled a hearing on final approval of the proposed settlement on November 7th in Miami.

National Public Radio features program on firm's digital download case for Rick James Estate

May 10, 2011 -- National Public Radio featured a news segment on its May 4th broadcast devoted to the controversy over record company accountings to legacy recording artists and others for digital download income. Entitled "Download Sales: Will Money Stay with Labels or Go to Musicians," it included a reporter's interview with the manager of the Rick James Estate, Jeff Jampol, who discussed the issue as well as the case PE&G recently brought against Universal Music Group on the Estate's behalf. To listen to the radio broadcast, click here. To read the related news article posted to the NPR website, click here. For more information about the Rick James case, click here.

Federal Court awards costs and fees in Roky Erickson copyright infringement case

April 4, 2011 -- United States Magistrate Judge Howard R. Lloyd issued an order on March 30, 2011, granting PE&G's motion and awarding costs and fees for the firm's collection efforts following entry of judgment in a case brought on behalf of legendary recording artist Roky Erickson and related entities. The firm's motion tested, successfully as it turned out, the proposition that a plaintiff in a copyright infringement case was entitled to an award of post-judgment costs and fees under the federal Copyright Act and California state law. For a copy of Judge Lloyd's order, click here.  Roky Erickson just finished several highly anticipated and capacity shows at this year's South by Southwest Music Conference in Austin, Texas, including an appearance with cult-favorite, the Meat Puppets.

Firm obtains key ruling in unsettled area of California evidence law: surveillance

April 4, 2011 -- PE&G's client was severely injured when she was ejected from a car driven by defendant. Hoping to disprove her claims of injury, defendant hired an investigator to conduct surveillance of plaintiff. The firm sought to obtain all surveillance footage, as well as the investigator's reports. Defendant refused to turn over the materials. In what appears to be a case of first impression in the State, Los Angeles Superior Court Judge Anthony J. Mohr agreed with the firm - and with the courts of other states which have addressed this issue - that the materials were not protected from disclosure and must be produced. In particular, Judge Mohr rejected defendant's contention that the materials were protected as "work product." He also found that requiring defendant to turn over the materials would serve the important goals of fairness and avoiding undue surprise at trial. On March 16, 2011, the California Court of Appeal summarily denied defendant's request for appellate review of the order. For a copy of Judge Mohr's well reasoned opinion, click here. The case is now in mediation.

Firm partner presents panel at SXSW Music Conference

April 2, 2011 -- David Given recently moderated a panel of legal experts at the 2011 SXSW Music Conference in Austin, Texas. Entitled "The Impact of Recent Big Music Cases," the panelists reviewed a clutch of recent cases involving the music industry, including the Kristin Hall/Sugarland leaving member dispute, the FBT/Eminem case involving the royalty treatment of income derived from digital downloads, and the Bob Marley case involving recovery by his estate of the copyrights in his invaluable sound recordings. To listen to the panel's discussion, click here.

Firm helps to vindicate clients in dispute over vintage songs and sound recordings

March 24, 2011 -- PE&G recently achieved total victory in a case brought against its clients by the estate of Sky Saxon, leader of the 1960's era band THE SEEDS, over the rights to that band's songs and sound recordings. On March 9, 2011, Los Angeles County Superior Court Judge Mel Red Recana granted the firm's motion for summary judgment, dismissing the case against the firm's clients in its entirety. According to Judge Recana, the estate administrator, Saxon's widow (his wife of less than two years), failed to show that her late husband's "buyout" agreements -- in which he received a series of lump sums in return for any future right to song and record royalties -- were unconscionable or otherwise unenforceable, and that the balance of her claims were stale and therefore time-barred. The evidence was uncontested that, for the over 35 years between those agreements and his death in 2009, Saxon lived with the deal he made with Gene Norman, a respected music business professional, who owned and operated the independent record label GNP-Crescendo. (Mr. Norman, one of the great jazz impresarios of his time, also owned and operated the Crescendo nightclub on the Sunset Strip, and later served as one of the first trustees of the Recording Industry Association of America.) Moreover, the estate's attorney conceded at oral argument that Saxon "wanted to do" the deal with Norman. Notwithstanding these facts, Saxon's widow sued GNP-Crescendo and its related music publishing company to undo those agreements and gain for Saxon's estate (in which she is in line to be a major beneficiary) all of the rights to the catalog of songs and recordings Norman's companies have for over 45 years owned and controlled. Judgment in the clients' favor is currently pending; upon its entry by the court, the clients expect to assert claims for recovery of costs, fees and other damages against the estate and its attorney.

Firm participates in Copyright Society panel on copyright law and the music industry

February 21, 2011 -- David Given participated on a recent panel featuring several digital music business experts organized by the Northern California Chapter of the Copyright Society of the U.S.A. Entitled "Is Copyright Law Harming or Helping the Music Industry," the panel covered such topics as the workings of the Digital Millenium Copyright Act, the decisions in the Io v. Veoh Networks and Viacom v. YouTube cases, and the future of collective licensing regimes here and abroad. To view a webcast of the panel's discussion, click here.

Court sanctions Anthem Blue Cross for refusing to produce plaintiff's own claim file and other discovery abuse in balance billing case

February 10, 2011 -- Following a half-day hearing, San Francisco Superior Court Judge James McBride sanctioned Anthem Blue Cross Life & Health Insurance Co. for its unjustified refusal to produce certain documents in discovery, including plaintiff's own claim file. Plaintiff Gilles Combrisson, who is suing the City and County of San Francisco in a class action for "balance billing" ER patients at San Francisco General Hospital, had asked Anthem to produce documents relating to his treatment at SFGH, including his own claim file. Anthem refused to produce anything for over six months, offering various excuses such as that the information was a trade secret and that it contained private medical information, even though it was plaintiff's own information. Judge McBride would have none of it and ordered Anthem to turn the documents over and to pay monetary sanctions for its abuse of discovery. Anthem is a wholly owned subsidiary of Wellpoint, one of the largest health insurers in the country. After announcing a 39% rate increase in 2010, Anthem recently announced yet another 15% percent rate increase in California.

Magazine seeks commentary from firm on controversial copyright legislation

February 9, 2011 -- David Given recently gave his views on the Combating Online Infringement and Counterfeits Act in an article appearing in the February 2011 issue of Inside Counsel. The Act (also known as "COICA") seeks to attack the growing menace of rogue websites, essentially digital stores (many operating outside the U.S.) dedicated to selling illegal and counterfeit products. The Senate Judiciary Committee unanimously approved COICA during the lame-duck session of the last Congress. The Act contains many controversial provisions, including granting the federal government the ability to seize domain names and to block websites. Some commentators have suggested that COICA could eviscerate the protections afforded internet service providers under the safe harbor provisions of the Digital Millennium Copyright Act, which Mr. Given judges a serious risk. The legislation should be of interest to anyone operating in the online space as a content provider. For a copy of the article, click here.

Firm retained by famed Hollywood-based record label to defend against attack on rights to recordings

January 29, 2011 -- PE&G was recently retained by GNP-Crescendo Records, a small independent record label established in the mid-1950's by nightclub owner and broadcast media personality Gene Norman, to defend it against a lawsuit brought by the widow of Sky Saxon, the leader of the 1960's band THE SEEDS. Gene Norman was a patron of the jazz scene for many years; he featured all of the great acts of the day at his nightclub, the Crescendo on the Sunset Strip: Duke Ellington, Louis Armstrong, Count Basie, Ella Fitzgerald, the Dave Brubeck Quartet, June Christy and the Stan Kenton Band, all of whom he counted as friends. During this entire time, Gene was producing jazz albums, both in his club and in the studio, later starting his record label (and becoming one of the first trustees of the Recording Industry Association of America), and later still discovering, recording and promoting Saxon and THE SEEDS. By her lawsuit, Saxon's widow (acting as administrator of his estate) seeks to terminate a 40-year relationship between the label and the band. The firm has filed motions to dismiss the lawsuit; those motions are currently pending in the Los Angeles County Superior Court.