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8/20/2019 IHeartMedia Inc. - ABS Entertainment Inc. Missapproriation - Conversion Class Action - USDC CDCA - 8.17.15
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CLASS ACTION COMPLAINT 1116420v1
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M C K O O L S M I T H H E N N I G A N , P . C .
8
6 5 S . F I G U E R O A S T R E E T , S U I T E 2 9 0 0
L O S A N G E L E S , C A 9 0 0 1 7
McKOOL SMITH HENNIGAN, P.C.RODERICK G. DORMAN (SBN 96908)[email protected] ROBERT E. ALLEN (SBN 166589)[email protected] LAWRENCE M. HADLEY (SBN 157728)[email protected] ALAN P. BLOCK (SBN 143783)[email protected] 865 S. Figueroa St., Suite 2900Los Angeles, CA 90017T: (213) 694-1200; F: (213) 694-1234
MILLER LAW LLCMARVIN A. MILLER ( pro hac vice application pending)[email protected] SZOT ( pro hac vice application pending)[email protected] KATHLEEN BOYCHUCK ( pro hac vice application pending)[email protected] 115 S. LaSalle Street, Suite 2910Chicago, IL 60603T: (312) 332-3400; F: (312) 676-2676
Attorneys for PlaintiffABS ENTERTAINMENT, INC.
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
ABS ENTERTAINMENT, INC., anArkansas corporation, each individuallyand on behalf of all others similarlysituated.
Plaintiff,
v.
iHEARTMEDIA, INC., a Delawarecorporation;iHEARTCOMMUNICATIONS, INC.,a Texas corporation; IHEARTMEDIA+ ENTERTAINMENT, INC., a Nevadacorporation; and DOES 1 through 10,
Defendants.
Case No. 2:15-cv-6252
CLASS ACTION COMPLAINT
1.
VIOLATION OF CALIFORNIACIVIL CODE § 980(a)(2);
2. MISAPPROPRIATION;3. VIOLATION OF CALIFORNIA
BUSINESS AND PROFESSIONSCODE § 17200; and
4.
CONVERSION.
DEMAND FOR JURY TRIAL
Case 2:15-cv-06252 Document 1 Filed 08/17/15 Page 1 of 20 Page ID #:1
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1 Plaintiff, ABS Entertainment, Inc. ( ABS ) ( Plaintiff'), individually and on
2 behalf of all other similarly situated owners of sound recordings, hereby complains
3 and alleges as follows:
4 PRELIMIN RY ST TEMENT
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1
This is a class action on behalf of owners
of
sound recordings to obtain
injunctive relief and monetary damages sustained by Plaintiff and the Class because
the Defendants delivered music content through broadcast radio channels,
HD
radio
channels, satellite radio, the Internet and mobile devices without consent of or
licenses from the Plaintiff and the Class. As a result
of
their pernicious, improper and
illegal conduct, Defendants have reaped hundreds ofmillions of dollars that rightfully
belong to Plaintiff and the Class.
2
Defendant iHeartMedia, Inc. (through itself and its subsidiaries
iHeartCommunications, Inc. and iHeartMedia +Entertainment, Inc.) (collectively,
iHeart ) is one of the leading operators in the United States ofmedia and
entertainment services via broadcast and digital delivery. Specifically, iHeart
delivers music content through broadcast (AM and FM) radio channels, the Internet
at iHeartRadio.com and its stations' websites, and through one or more iHeartRadio
mobile applications on smart phones, tablets and gaming consoles. According to
iHeart, as ofDecember 31,2014, it owned
858
domestic radio stations, servicing
more than 150 U.S. markets, including 44 of the top 50 markets and 84 of the top 100
markets. (Delivery by iHeart ofmusical content through AM and FM radio stations
shall hereafter be described as the Broadcast Service ). Many
of
its stations in the
Broadcast Service are the most popular music stations in the applicable market,
including in Los Angeles, where iHeart owns and operates KIIS 102.7-FM, KBIG
104.3-FM, KOST 103.5-FM, KYSR 98.7-FM and KRRL 92.3-FM.
26
3 iHeart utilizes the Internet to give users instant access to thousands of live
27 radio stations from across the country. In addition, iHeart uses the Internet to provide
28
1
CLASS ACTION COMPLAINT
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1
7
Because iHeart has chosen to operate the Music Service without licenses
2 for Pre-1972 Recordings, iHeart
is
now liable under California law for violation of
3 California Civil ode§ 980(a)(2), misappropriation, violation of California Business
4 Professions ode§ 17200, and conversion for its unauthorized reproduction,
5 distribution, and public performance
of
those recordings.
6
THE P RTIES
7 8 ABS is a corporation duly organized and existing under the laws of
8 Arkansas, with its principal place ofbusiness in West Memphis, Arkansas.
9
9
Through a series
of
transactions, ABS acquired the exclusive ownership
10 in the sound recordings
of
Al Green, Willie Mitchell, Ann Peebles, Syl Johnson, Otis
11
Clay, Bill Black Combo, and O.V Wright, a representative sample
of
the titles
of
12
which are specified on the attached Schedule A and incorporated herein by
13
reference (the Recordings ).
14 10 Plaintiffhas been and continues to be engaged in the business
of
15
distributing, selling, and/or licensing the reproduction, distribution, sale, and
16 performance
of
the Recordings including in records, audiovisual works, and for
17 streaming (i.e., performing) and downloading over the Internet.
18 11 iHeartMedia, Inc. is a corporation duly organized and existing under the
19 laws of Delaware, with its principal place ofbusines'3 in San Antonio, Texas, and
20 with its executive offices in New York, New York. iHeartMedia, Inc.
is
the parent
21 company of iHeartCommunications, Inc. and iHeartMedia +Entertainment, Inc., and
22 owns and operates the Music Service, which broadcasts music to its listeners and
23 delivers uninterrupted, high quality streams ofmusic tailored and customized to its
24 users' preferences.
25 12. iHeartCommunications, Inc. is a corporation duly organized and existing
26 under the laws ofTexas, with its principal place
of
business in San Antonio, Texas,
27 and with its executive offices in New York, New York. iHeartCommunications, Inc.
28
3
CLASS ACTION COMPLAINT
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Service, iHeart offers and advertises both (a) custom radio programming, which
allows a user to select one or more favorite artists and then iHeart s internal algorithm
selects other sound recordings that the user might enjoy, and (b) live radio simulcast,
which allows a user to select and listen to the live audio simulcast of hundreds of
radio stations throughout the United States and Mexico, inclusive of radio stations
either owned by iHeart or owned by third parties.
Many of
these radio stations are
dedicated to Pre-1972 Recordings. iHeart promotes these stations in order to
establish and increase its user base, popularity, and revenue.
23. Plaintiff is informed and believes, and on that basis alleges, that in order
to populate the Music Service s databases and in order to broadcast and stream
musical recordings to the public, iHeart has reproduced and copied and continues to
reproduce and copy Pre-1972 Recordings to one or more servers and storage devices,
and uses technology or systems that results in one
or
more copies ofPre-1972
Recordings being distributed to its users computers or storage devices.
24. iHeart knows that it does not have any license, right, or authority to
reproduce, perform, distribute or otherwise exploit
vi
the Music Service any Pre-
1972 Recordings (including the Recordings). iHeart also knows which of the
recordings its reproduces, performs, distributes or otherwise exploits vi the Music .
19 Service are Pre-1972 Recordings.
20 25. iHeart s entire business is built around selling access to music and selling
2 the music. iHeart delivers audio advertisements to its users in between songs and
22 displays visual ads while music is playing.
23 CL SS CTION LLEG TIONS
24 26. Plaintiff brings this action, pursuant to Fed. R. Civ. P. 23, on behalf
of
25 itself individually and on behalfof all other similarly situated owners
of
Pre-1972
26 recordings, which recordings were reproduced, performed, distributed or otherwise
27 exploited by iHeart via the Music Service in California. The proposed Class is
28
7
CLASS ACTION COMPLAINT
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1 comprised of and defined as follows:
2 All owners of sound recordings of musical performances that
3 initially were fixed
i.e.,
recorded) prior to February 15, 1972,
4 which sound recordings were reproduced, performed, distributed
5 and/or otherwise exploited by iHeart via any form or method
of
6 delivery or storage (e.g., terrestrial broadcast, satellite, Internet,
7 computer, server, etc.) in California (the Class ).
8 27. This action may be properly brought and maintained as a class action
9 because there is a well-defined community of interest in the litigation and the
1 members of the proposed Class are clearly and easily ascertainable and identifiable.
11 28. The Class for whose benefit this action is brought is so numerous and
12 geographically dispersed that joinder of all members of the Class is impracticable.
13 Plaintiff is informed and believes that there are hundreds or thousands of members of
14 the Class whose identity can be readily ascertained from third party, music industry
15 sources and from iHeart 's database files and records. Therefore, the Class can be
16 readily located and notified
of
this action.
17 29. Plaintiff's claims are typical
of
the claims
of
the members of the Class,
18 and Plaintiff's interests are consistent with and not antagonistic to those of the Class
19
it seeks to represent. Plaintiff and all members of the Class have sustained actual
20 pecuniary loss and face irreparable harm arising out ofiHeart s continued course
of
21 conduct as complained ofherein.
22 30. Plaintiff does not have any interests that are adverse to, or which conflict
23 with, the interests of the absent members
of
the Class and it is able to fairly and
24 adequately represent and protect the interests of such Class. Plaintiff has raised
25 viable statutory, misappropriation, unfair business practices, and conversion claims of
26 the type reasonably expected to be raised by members
of
the Class, and will
27 vigorously pursue those claims. Plaintiff is represented by experienced, qualified and
28
8
CLASS ACTION COMPLAINT
111642 vl
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(H) Whether iHear t s conduct is continuing thereby entitling the
members of the Class to injunctive or other relief.
32. A class action is superior to other available methods for the fair and
efficient adjudication
of
this controversy since individual litigation
of
the claims
of
all class members is impracticable. Thus, for the vast majority
of
the members of the
Class, the expense and burden of individual litigation would not justify pursuing the
claims individually. Even if every member of the Class could afford to pursue
individual litigation, the Court system could not. It
would
be unduly burdensome to
the courts
in
which individual similar litigation of numerous cases would proceed.
Individualized litigation would also present the potential for varying, inconsistent, or
contradictory judgments and would magnify the delay
and
expense to all parties and
to the court system resulting from multiple trials of the same factual issues. By
contrast, the maintenance of this action
as
a class action presents few,
if
any,
management difficulties, conserves the resources of
the parties and
of
the court
system,
and
protects the rights
of
each member of the Class. Plaintiff does not
anticipate any difficulty in the management
of
this action as a class action.
FIRST CLAIM FOR RELIEF
For Violation
of
California Civil
ode§
980 a) 2) Against All Named
Defendants and Does 1 through 10)
33. Plaintiff hereby incorporates the allegations set forth above in paragraphs
1 through 32 above, as though fully set forth herein.
34. Pursuant to California Civil Code§ 980(a)(2), Plainti ff and the members
of the Class possess exclusive ownership interests in and to the Pre-1972 Recordings,
including the artistic performances embodied in those recordings.
35. Through its unauthorized reproduction, performance, distribution, or other
exploitation via the Music Service of Pre-1972 Recordings (including the
1
CLASS ACTION COMPLAINT
111642 vl
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Recordings) in California, iHeart has infringed the exclusive ownership interests in
and to the Pre-1972 Recordings in violation of California Civil
Code§
980(a)(2).
36. As a direct and proximate consequence
ofiHeart's
violation
of
California
Civil
Code§
980(a)(2), iHeart has received and retained money and value that
rightfully belongs to Plaintiff and the members of the Class.
37. As a direct and proximate consequence
ofiHeart's
violation
of
California
Civil
Code§
980(a)(2), Plaintiff and the Class have been damaged in an amount that
is not
as
yet fully ascertained but which Plaintiff will ascertain and present through
competent evidence at trial, but which is no less than 5 million.
38. iHeart s conduct is causing, and unless enjoined and restrained by this
Court will continue to cause Plaintiff and the Class great and irreparable injury that
cannot fully be compensated or measured in money. Plaintiff and each member of
the Class do not have an adequate remedy at law. Plaintiff and each member of the
Class are entitled to temporary, preliminary and permanent injunctions, prohibiting
further violation of the ownership interests
of
Plaintiff and each member
of
the Class
in the Pre-1972 Recordings.
SECOND CLAIM
FOR R LI F
For Misappropriation Against All Named Defendants and Does 1 Through 10)
39. Plaintiff hereby incorporates the allegations set forth above in paragraphs
1 through 32 above, as though fully set forth herein.
40. Pursuant to California Civil Code§ 980(a)(2) and California common
law, Plaintiff and the Class possess exclusive ownership interests in and to the Pre-
1972 Recordings, including the artistic performances embodied in those recordings.
24
41. Plaintiff and its predecessors in interest invested substantial time and
25
money in developing the Recordings.
26 42. Because iHeart does not obtain licenses, it does not incur any of the costs
27 that a licensee is otherwise obligated to pay in order to reproduce, perform, distribute
28
11
CLASS ACTION COMPLAINT
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1 or otherwise exploit via the Music Service Pre-1972 Recordings (including the
2 Recordings).
3 43. iHeart has misappropriated, and continues to misappropriate, for its own
4 commercial benefit, the exclusive ownership interests in and to the Pre-1972
5 Recordings reproducing, performing, distributing or otherwise exploiting via the
6 Music Service Pre-1972 Recordings (including the Recordings).
7 44. As a direct and proximate consequence ofiHeart s
misappropriation,
8 iHeart has received and retained money and value that rightfully belongs to Plaintiff
9 and the Class.
1 45. As a direct and proximate consequence
ofiHeart s
misappropriation,
11 Plaintiff and the Class have been damaged in an amount that is not as yet fully
12 ascertained but which Plaintiff will ascertain and present through competent evidence
13 at trial.
14 46. Plaintiff is informed and believes, and on that basis alleges, that in
15 engaging in the conduct described herein, iHeart acted with oppression, fraud and/or
16
malice. iHeart s conduct has been despicable and undertaken in conscious disregard
17
of
the rights
of
Plaintiff and the Class. Accordingly, Plaintiff and the Class are
18 entitled to an award
of
punitive damages against iHeart in an amount sufficient to
19
punish and make an example
of
it.
20 47. iHeart s conduct is causing, and unless enjoined and restrained by this
21 Court, will continue to cause, Plaintiff and the Class great and irreparable injury that
22 cannot fully be compensated or measured in money. Plaintiff and the Class do not
23
have an adequate remedy at law. Plaintiff and the Class are entitled to temporary,
24 preliminary and permanent injunctions, prohibiting further violation
of
the ownership
25
interests
of
Plaintiff and the Class in the Pre-1972 Recordings.
26
27
28
12
CLASS ACTION COMPLAINT
111642 vl
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1
THIRD CLAIM FOR RELEIF
2
For Unfair Business Practices Against All Named Defendants and Does 1
3 Through 10)
4 48. Plaintiff hereby incorporates the allegations set forth above in paragraphs
5 1 through 32 above, as though fully set forth herein.
6 49. Pursuant to California Civil
Code§
980(a)(2) and California common
7 law, Plaintiff and the Class possess exclusive ownership interests in and to the Pre-
8 1972 Recordings, including the artistic performances embodied in those recordings.
9 50. iHeart s conduct in reproducing, performing, distributing, or other
10 exploitation via the Music Service Pre-1972 Recordings (including the Recordings)
11 constitutes a misappropriation
of
the property rights of the Plaintiff and the Class in
12 the Pre-1972 Recordings and a violation of California Civil
Code§
980(a)(2).
13
51. By misappropriating the property rights
of
the Plaintiff and each member
14 of the Class in the Pre-1972 Recordings and by violating California Civil Code §
15 980(a)(2), iHeart has engaged in unfair business practices in violation of California
16 Business Professions Code § 17200.
17 52. As a direct and proximate consequence of its violation of California
18 Business Professions Code § 17200, iHeart has received and retained money and
19 value that rightfully belongs to Plaintiff and the Class.
20 53. As a direct and proximate result
ofiHeart s
conduct, Plaintiff and each
21
member of the Class are entitled to restitution and disgorgement under California
22 Business Professions Code § 17200 in an amount that is not as yet fully ascertained
23 but which Plaintiff will ascertain and present through competent evidence at trial.
24 54. Plaintiff is informed and believes, and
on
that basis alleges, that in
25 engaging in the conduct described herein, iHeart acted with oppression, fraud and/or
26 malice. The conduct of iHeart has been despicable and undertaken in conscious
2 7 disregard of the rights of Plaintiff and the Class. Accordingly, Plaintiff and the Class
28
3
CLASS ACTION COMPLAINT
111642 vl
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1 malice. iHeart s conduct has been despicable and undertaken in conscious disregard
2 of the rights of Plaintiff and each member
of
the Class. Accordingly, Plaintiff and the
3 Class are entitled to an award
of
punitive damages against iHeart in an amount
4 sufficient to punish and make an example
of
it.
5 62. iHeart s conduct is causing, and unless enjoined and restrained by this
6 Court, will continue to cause Plaintiff and the Class great and irreparable injury that
7 cannot fully be compensated or measured in money. Plaintiff and the Class do not
8 have an adequate remedy at law. Plaintiff and the Class are entitled to temporary,
9 preliminary and permanent injunctions, prohibiting further violation
of
the ownership
10 interests
of
Plaintiff and the Class in the Pre-1972 Recordings.
11
PR YER
12 WHEREFORE, Plaintiff, on behalf of themselves and all other members of the
13 Class, pray for Judgment against iHeart and the Doe defendants, and each
of
them, as
14 follows:
15
A.
Determining that this is a proper class action maintainable pursuant to
16 Rule
23
of
the Federal Rules Civil Procedure, and certifying Plaintiff as a Class
17 Representative, and appointing
Plaintiffs
counsel as Class Counsel.
18
B. On all claims other than the Third, compensatory damages in excess
of
5
19 million according to proof.
20 C. On the third claim, restitution and disgorgement
ofiHeart's
unlawful
21 proceeds and revenues, including iHeart s gross profits, in excess
of 5
million.
22 D. On all claims other than the first, punitive and exemplary damages
23 according to
proof
at trial.
24 E. On all claims, a temporary, preliminary, and permanent injunction
25 enjoining and restraining iHeart, and their respective agents, servants, directors,
26 officers, principals, employees, representatives, subsidiaries and affiliated companies,
27 successors, assigns, and those acting in concert with them or at their direction, from
28
15
CLASS ACTION COMPLAINT
1116420vl
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1 infringing, misappropriating, or converting, directly or indirectly, in California the
2 exclusive ownership interests in and to the Pre-1972 Recordings, including the artistic
3 performances embodied in those recordings, including without limitation by directly
4 or indirectly copying, reproducing, downloading, distributing, communicating to the
5 public, uploading, linking to, transmitting, publicly performing, or otherwise
6 exploiting in any manner any o the Pre-1972 Recordings, via the Music Service or
7 otherwise.
8 F On all claims, pre- and post-judgment interest.
9 G For such fees and costs (including reasonable attorneys' fees) incurred
10
herein as permitted by law.
11
H
For such other and further relief as the Court deems just and proper.
12
3
DATED: August 17,2015
14
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22
23
24
25
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1 16420vl
McKOOL SMITH HENNIGAN, P.C.
MILLER LAW LLC
By:
Is
Robert
E
llen
6
Robert
E
Allen
Attorneys for Plaintiff
ABS ENTERTAINMENT, INC.
CLASS ACTION COMPLAINT
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1116424vl
Artist
Ace Cannon
Ace Cannon
Ace Cannon
Ace Cannon
I Green
I Green
I
Green
I Green
I
Green
I Green
I Green
I Green
Ann Peebles
Ann Peebles
Ann Peebles
Ann Peebles
Ann Peebles
Bill Black Combo
Bill Black Combo
Bill Black Combo
Bill Black Combo
Bill Black Combo
Bill Black Combo
Bill Black Combo
Bill Black Combo
Bill Black Combo
Bill Black Combo
Bill Black Combo
Otis Clay
Otis Clay
Otis Clay
Schedule A
Representative Sampling
o
Plaintiff s Pre-1972
Sound Recordings Infringed
Title
Tuff
Bllues (Stay Away From Me)
Cotton Fields
Search in
Want to Hold Your Hand
One Woman
You
Say
It
Right Now, Right Now
I Can t Get Next To You
Driving Wheel
Tired of Being Alone
Let s Stay Together
WalkAway
Give Me Some Credit
Generation Gap Between
Us
Part Time Love
I Pity The Fool
Smokie, Part 2
White Silver Sands
Josephine
Don t
Be
Cruel
Blue Tango
Hearts of Stone
Ole
Buttermilk
Sky
Movin
Twist Her
Do It -
Rat
Now
Money Shine
That s How It Is (When You re
In
Love
A Lasting Love
She s About A Mover
1
SCHEDULE A
Case 2:15-cv-06252 Document 1 Filed 08/17/15 Page 19 of 20 Page ID #:19
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O.V. Wright
O.V. Wright
O.V. Wright
O.V. Wright
O V
Wright
O.V. Wright
O.V.
Wright
O.V. Wright
Syl Johnson
Syl
Johnson
Syl Johnson
Syl Johnson
Syl
Johnson
Syl
Johnson
Syl
Johnson
Wilie Mitchell
Wilie Mitchell
Wilie
Mitchell
Wilie
Mitchell
Wilie
Mitchell
Wilie Mitchell
Wilie Mitchell
Wilie
Mitchell
Wilie
Mitchell
You re Gonna Make Me Cry
Eight
Men,
Four
Women
Heartaches, Heartaches
Oh
Baby
Mine
I ll Take Care
of
You
Ace
of
Spades
When You Took Your Love From
Me
A Nickel and a Nail
Come On Sock It To Me
Different
Strokes
Dresses Too Short
Is It Because I m Black
Concrete Reservation
One Way Ticket to Nowhere
Get Ready
20 75
Percolatin
Buster Browne
Bad Eye
Slippin and Slidin
Soul Serenade
Prayer
Meetin
30 60 90
My Babe
-2-
SCHEDULE A
Case 2:15-cv-06252 Document 1 Filed 08/17/15 Page 20 of 20 Page ID #:20