Flo & Eddie’s California Dreams Still Alive

I’ve been writing since 2014 about the quest by Flo & Eddie, the former Turtles, to win copyright royalties under state law for their pre-1972 records which federal copyright law doesn’t protect. The latest chapter ended yesterday when Judge Gutierrez in California denied Sirius XM’s motion to stay Flo & Eddie’s certified class action there. Sirius wants the lawsuit frozen until the Ninth Circuit court of appeals decides Pandora’s appeal of Flo & Eddie’s victory against them.

Sirius asked for the stay last November arguing the Pandora appeal involved the same “class members, the same claims, the same law, and even the same pre-1972 recordings.” After Judge Gutierrez certified Flo & Eddie’s class action last year, however, Sirius was turned down by the Ninth Circuit in August on a request to review the certification.

An effort to get all the judges of the Ninth Circuit to review the class action certification failed in November. The Sirius stay motion denied yesterday was their next move. When a federal class action is certified, you’re off to the races of costly and time-consuming discovery.

Sirius emphasized all the judicial turbulence involving the questions of whether three state’s laws gave pre-1972 sound recording rights. They beat Flo & Eddie in Florida and that case is on appeal to the Eleventh Circuit. Sirius lost in New York, and that appeal to the Second Circuit has oral argument set for February 2. Sirius also cited nine Flo & Eddie copycat cases filed in California federal courts alone.

One of Sirius’ main arguments was that freezing the class action until a ruling possibly this year in the Pandora appeal would conserve judicial resources. Class actions can impose a great deal of work on a federal judge. A stay would also protect Sirius from the legal expense and disruption of the class action which could be a total loss if the Ninth Circuit rules in Pandora’s favor on the merits.

Flo & Eddie’s response early this month makes Sirius sound like an army using a ceasefire to quietly take back territory. They argued the stay request came from “SiriusXM’s desire for an unsupervised playing field upon which to continue its campaign of crippling the certified class by engaging in improper communications with class members and entering into piecemeal settlements outside of the purview of class counsel and the Court.”

Sirius wasn’t pleased, but its response doesn’t exactly deny they were talking to class members. They stressed there have been no improper communications and that record company licensors, apparently the people they’ve been talking to, are sophisticated businesses who know what they’re doing.

The court’s order yesterday says nothing beyond the stay motion is denied. The opportunity to conserve judicial resources wasn’t seized, but the court’s reasoning is a mystery. Sirius may try again for Ninth Circuit help while the Pandora case is pending.

But one event may have helped persuade the court to keep the class action moving ahead. Last June, Sirius filed a report with the Securities Exchange Commission saying it was paying $210 million to the three major record companies and ABKO records to settle their me-too Flo & Eddie lawsuit against it and get pre-1972 song rights to their catalogs.

I wrote at the time the “SiriusXM deal may mean that Flo & Eddie won’t try to settle and instead go for a jury trial on the amount of damages their class members are entitled to.” That seems to be playing out. And it’s not the worst place for Flo & Eddie to be. They’re in the judicial district where a jury awarded Marvin Gaye’s heirs $7.3 million against Pharrell Williams and Robin Thicke for “Blurred Lines.”



About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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2 Responses to Flo & Eddie’s California Dreams Still Alive

  1. bkeating51 says:

    As I have been following the news, or rather the usual lack of news, of the Second Circuit’s hearing of the interlocutory appeal by Sirius of Judge McMahon’s ruling that, by the common law of New York State, holders of performance copyrights on pre-1972 recordings are entitled to royalty payments when their protected song is performed, it occurred to me that I had read nothing concerning one of the major intrigues of the appeal. That is that the Second Circuit Court of Appeals can not determine pre-1972 New York State common law. It can only express its opinion as to how a New York court would rule in the matter.

    This was not lost to the parties at the time of the April hearing which resulted in the granting of the Sirius appeal. Flo & Eddie attorney Harvey Geller stated that he agreed with Sirius attorney Daniel Petrocelli that the Second Circuit could send Judge McMahon’s opinion to a New York appellate court for an in-depth analysis.

    Since nearly nine months have passed since the federal appellate court agreed to hear the appeal, what is the intention of the Second Circuit panel as it prepares to rule? After going through the briefs of the parties, in addition to many amicus briefs, will the court just issue its ruling as its interpretation of the state common law, knowing that New York’s highest court, the Court of Appeals, is going to have the last word on the matter as the issue inevitably reaches them through other litigation.

    Or will the Court give its opinion, and then announce that it is passing on everything to the state courts, possibly believing that the prestigious weight of the Federal Court ruling will hold sway before the state? Either disposition seems like a great deal of judicial waste of time.

    Or perhaps the Second Circuit has already asked the New York appellate courts for a determinate ruling, perhaps accompanied by the opinions of the federal judges. Is this permitted? Have I missed something here?


  2. Craig Pinkus says:

    Federal courts of appeals can “certify” a question to the relevant state’s highest court. When that is done, which is comparatively rare, there will be an order that will make news & if you’re following the issue you won’t miss it.


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