Remember Flo & Eddie are the artists famous for being The Turtles and working with Frank Zappa who are the pioneer avengers seeking internet radio royalties for artists who made great pre-1972 recordings. Federal judge Philip S. Gutierrez in Los Angeles ruled last year they were correct that California’s state copyright statute filled the huge federal copyright gap running from the first sound recordings to 1972 and covered streaming services like defendant SiriusXM’s. He ruled again last week that Flo & Eddie’s class action has been “certified.” This is another big deal.
I’ve written about me-too lawsuits filed with the same arguments Flo & Eddie are making. Many of them also were filed as class actions, but they’ve been quickly settled and the classes the other artists wanted to represent were not certified. The settlements are confidential, but common sense says the plaintiffs received enough money to make them want to end the litigation. Common sense also says the settlements had a small price tag compared with what a successful class action would cost.
A class action certification is a process with several technical requirements plaintiffs often fail to meet. Judge Guttierez’ decision goes through the requirements in a 25 page decision that also covers an unusual extra issue.
The normal sequence is class certification > decision on the merits of the plaintiff’s claim. In this case it was summary judgment in favor of Flo & Eddie on the merits of their state copyright claim > class certification. SiriusXM objected to the backwards proceedings, and the objection was received like most of their arguments so far. The court denied it because they were the party that wanted a ruling on the merits of the claim first.
One of the technical requirements for a class action to be certified is called “numerosity.” The idea of a class action is that there are so many individual plaintiffs with basically the same claim against the same defendants that it makes sense to have a single lawsuit instead of one lawsuit per plaintiff. The decision says in the Ninth Circuit which includes the California federal courts, over 40 plaintiffs is usually enough.
Flo & Eddie submitted evidence identifying 273 separate owners of pre-1972 recordings who could file the same lawsuit, and it is probably a number in the thousands.
Two very different roads will now be taken. Flo & Eddie will go through identifying class members and putting a number on the damages claimed . SiriusXM will be responding to those efforts, but most likely its eyes will be on the road to courts of appeal—Ninth Circuit and U.S. Supreme.
The class certification has one more interesting effect. If Flo & Eddie settled the lawsuit with SiriusXM before the certification, it could have been another confidential deal announced by a nondescript public statement. Like “the parties have mutually agreed to resolve the litigation.” But now any settlement must be presented to the court which is bound to determine if the settlement is “fair, reasonable, and adequate.” The whole world, especially owners of pre-1972 recordings, will learn most if not 100% of the terms of the settlement.