Flo & Eddie v. Pandora - CD Ca.pdf

8/11/2019 Flo & Eddie v. Pandora - CD Ca.pdf

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2'

GRADSTEIN

&

MARZANO,

P.C.

HENRY GRADSTEIN (State Bar No

[email protected]

MARYANNR.

MARZANO

(State

Bar

[email protected]

HARVEY

W^

GELLER

(State

Bar

No

[email protected]

6310 San

Vicente

Blvd., Suite 510

Los Angeles, California 90048

Telephone:

323-776-3100

89747)

No. 96867)

123107)

e n n

-< or

EVAN S. COHEN (State Bar No. 119^01)

[email protected]

1180 South Beverly Drive, Suite 510

Los Angeles, California 90035

Telephone: 310-556-9800 Facsimile:

Attorneys for Plaintiff

FLO

&

EDDIE,

INC.

310-556-9801

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UNITED

S TA TE S D IS TRIC T

COURT

CENTRA L

DIST

ICT

OF CAL IFORN IA

FLO

& EDDIE INC., a California ,

corporation, individually andonbehal:

of all others similarly situated,

Plaintiff,

U CV

14

07 64

8-o*aKH*)

Case No

V .

PANDORA

MEDIA, INC,

a

Delaware

corporation; and DOES 1 through 100

Defendants .

CLA S S

ACT ION COMPLA INT

1.

V IOLAT ION OF CALIFORNIA

CIVIL

CODE

980(a)(2);

2. MISAPPROPRIATION;

3. V IOLAT ION

OF

CAL IFORN IA

BUS INESS

AND

PROFESS IONS

CODE 8 17200; and

4 .

CONVER S ION

D EM A ND FOR

JURY

TR IAL

ACT ION COMPLAINT


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business but has ignored the obligation

Instead, Pandora has simply chosen to

recordings to its servers and transmit

of

users on a daily basis without any

handsomely from its exploitation o

fees to its users and by selling

, Inc. ( Pandora ) is one of the leading

the United States, offering a personalized

million registered users wherever and

a wide range of smart phones, tablets,

and a range of other internet-connected

111

en

acknowledges that to secure the rights to

[it] must obtain licenses from, and pay

sound recordings and musical works, it

from one large category of copyright

ings ofmusical performances that initially

15, 1972 ( pre-1972 recordings ),

the historical backbone

o f

t he mus ic

ig Band era to the Summer ofLove, those

include the recordings of legendary artists

Williams, Billie Holliday, and The

recordin

February

c om p r i s e

Bi

and

Hank

the value ofpre-1972 recordings to its

to obtain licenses to exploit those recordings

copy tens of thousands of pre-1972

^nd perform them via streaming

to

its

millions

authorization whatsoever. Pandora profits

1972 recordings by charging subscription

fpre

advert isements.

CLASS

A

ZTION COMPLAINT


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5. Because Pandora has choslen

licenses for pre-1972 recordings, Pandora

violation

of

California Civil Code

Cal i fornia Business & Professions

unauthorized reproduction, distributior

THE

Flo & Eddie is a

^A

98 0(.

to operate the Music Service without

is now liable under California law for

a)(2), misappropriation, violation of

17200,

and

conversion

for i ts

, and public performance of those recordings.

PART IE S

Code

6.

corporation

duly organized and existing under the

ace of business in

Los

Angeles, California,

ioward

Kaylan and Mark Volman, two of the

popular band The

Turtles.

The

Turtles are

influential bands

o f

the 1960s and

are

notable

It Ain 't Me

Babe,

You Baby, Happy

Elenore, and

You

Showed Me.

, Flo & Eddie acquired the exclusive

ings, the titles of which are specified on the

herein by reference ( The Turtles'

laws

of

California,

with

its principal pi

7. Flo & Eddie is owned by

founding members

of

the enormously

widely recognized as one

of

the most i

fortheir string of Top40 hits, including

Together,

She'd

Rather Be With Me

8. Through a series

of

ownership in all ofThe Turtles'

Recor


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unknown

to Flo & Eddie who therefore sues said Defendants by such fictitious

names. Flo & Eddie will amend this Complaint to allege their true names and

capacities when such have been ascertained. Upon information and belief, each of

the Doe defendants herein is responsible in some manner for the occurrences herein

alleged, and Flo &Eddie's injuries as Ijierein alleged were proximately

caused

by

such defendan t s'

acts

or

omissions.

12.

Flo &

Eddie

is informed

ajnd

believes, and on

that

basis alleges,

that

at

all times mentioned in this complaint, Pandora and each

of

the Doe Defendants was

the agent of each other and, in doing the things alleged in this complaint, was acting

within the course and scope

of

such

agi

jncy.

JUR I SD ICT ION

AND

VENUE

13. Jurisdiction exists pursuant to 28 U.S.C. 1332(d)(2) because the

matter in controversy exceeds the sum

and costs), is a class action in which a

or value

of

$25 million (exclusive

of

interest

nember of a class of plaintiffs is a citizen of a

state different from

Pandora,

and

the

njimber ofmembers ofthe

proposed

class

exceeds

100.

14. This Court has personal ji risdiction over Pandora because: (a) Pandora

is located and has its principal place of business in California, (b) Pandora is

engaged in tortious conduct in California by publicly performing, reproducing, and

distributing pre-1972 recordings within the state, and (c) Pandora's conduct causes

injury to Flo & Eddie and the class

anc

their intellectual property in California.

15. Venue in this District exists pursuant to 28 U.S.C. 1391(b) and (c)

to personal jurisdiction in this District and

or omissions giving rise to the claims

because Pandora resides and is subject

because a substantial part of the events

occu r red i n

this

District.

FACTS

COMMON

TO

A L L

CLA IM S FOR

REL IEF

16.

The

Music Service is provided by

Pandora

to paying and non-paying

members of the public in California and elsewhere and delivers and streams music

CLASS ACTION COMPLA INT


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through its website (www.pandora.con

downloadable Android and iOS App

publicly performs, reproduces, and

17. According to Pandora, as

200 million registered users and more

top 20 stations and networks in the

2013 alone, Pandora

streamed 15.31 bi

18.

Pandora under s tands that

critical to the success of any music sen

constitute a significant part

of

the Music

stations dedicated to pre-1972 recordin

Oldies, Motown, Doo-Wop, 70s

Soul, Jam Bands,

and Classic Rock

to

establish and

increase its user base,

19. Flo

&

Eddie

is

informed

order to populate the Music Service's

recordings to the public, Pandora has

reproduce and copy pre-1972 recordings

storage devices, and uses technology or

recordings being distributed to its users

20. Pandora

is

aware th at i t

reproduce, perform, distribute or

1972 recordings (including The Turtles

of the recordings its reproduces,

Music Service are pre-1972 recordings

biographical information about

each

the pre-1972 recordings that it is

exploiting, but Pandora analyzes each

) and to smart phones and tablets through its

jjVmong the sound

recordings

thatPandora

are The Turtles' Recordings.

fyf

December 31, 2013, it had

more

than

than a 70% share of internet radio among the

States.

In th e

first

eleven months o f

lion

hours

o f radio

time,

leaving a vast

range and

array ofmusic is

ice which is why pre-1972 recordings

Service.

Pandora

offers

and

advertises

is, such as 50s Rock 'n ' Roll, 60s

Folk, Early Jazz, Standards, Classic

Pandora

promotes these stations in order

popularity, and revenue.

believes, and on that basis alleges, that in

databases and in order to stream musical

uced

and copied

and

continues to

, including to one or more servers and

systems that results in a copy ofpre-1972

' computers or storage devices.

not have any license, right, or authority to

exploit via the Music Service any pre-

' Recordings). Pandora is also aware which

, distributes or otherwise exploits via the

Not only does Pandora provide

and the artwork for the albums containing

ing, performing, distributing or otherwise

individual songthat it streams. Pandora

United

reprodi

does

otherwise

performs

a r l i s t

reproc uc i n



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boasts of its Music Genome Project'

uniquely analyzed songs from over

10C

sub-genres, which we develop one

son^;

song's particular attributes. As

W e

believe

that each

i

music

-

no one else has

great radio experience to

incredibly broad and deep

Pandora

is

based on

the

sophisticated taxonomy

represents over ten years

musicologists, and spans

new releases all the way

music .

21.

Pandora ' s en ti re bus ine ss

selling the music itself. Pandora does

adver t i sements to i ts users in between

actually playing. In addition, for a

service called Pandora One, which is

CLA S S

22. Flo & Eddie brings this ac

tiat

consists

of a

database

of

over 1,000,000

,000 artists, spanning over 500 genres and

at a time by evaluating and cataloging each

states

on

its websi te :

individual has a uniquerelationship with

tafctes exactly like yours. So delivering a

and every listener requires an

understanding of music. That's why

Music Genome Project, the most

of]

musical information ever collected. It

o|f

analysis

byourtrained team of

rything from this past Tuesday's

to

the Renaissance

and

Classical

Pandora

behalf

of

all other similarly situated owners

recordings

were

reproduced, performed

Pandora

v ia

th e Mu sic S er vic e in

and def ined a s fol lows:

All owners of sound recordlin

initially

were fixed i.e.,

which sound recordings were

each

ever

back

is built around selling access to music and

lis in two ways. Pandora delivers audio

gs

and

displays visual ads while music is

moijthly feeof $4.99, Pandora offers a premium

adver t i sement free.

ACTION

ALLEGATIONS

ion on

behalf

of itself individually and on

of

Pre-1972 recordings, which

, distributed or otherwise exploited by

California. The proposed class is comprised

of

gs

of

musical performances that

recorded)

prior

to February 15, 1972,

reproduced, performed, distributed

6



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with smaller claims, the expense and biirden

pursuing the claims individually. And

afford to pursue individual litigation,

unduly burdensome to the courts in which

would proceed. Individualized litigatioh

varying, inconsistent, or contradictory j)ud

expenseto all parties and to the court system

same factual issues. By contrast, the

presents few management difficulties,

the court system, and protects the right:

anticipates no difficulty in the management

FIRST

CLA IM

of

individual litigation may not justify

ven

if everymember of the classcould

Court system

could not. It

would

be

individual litigation

of

numerous cases

would also present the potential for

gments and would magnify the delay and

resulting from multiple trials of the

maintenance

of

this action as

a

class action

conserves the resources

of

the parties and of

o f

each

member

of

the

class.

Flo

&

Eddie

o f t hi s a cti on a s a

class

action.

FOR

REL IEF

the

(For

Violation

of

Calif

Drnia

As

Against

ia Civil

Code

980(a)(2)

All

Defendants)

29. Flo & Eddie hereby incorporates

paragraphs 1 through 28 above, as though

30. Pursuant to California Civil

members of the class possess exclusive

Recordings, including the artistic perfoi[mances

31. Through its unauthorized

otherexploitation via the

Music

Servic^

Turtles' Recordings) in California, Pandiora

interests in and to the pre-1972 recordir

980(a)(2).

32. As a direct and proximate

California Civil Code 980(a)(2), Pandora

value that rightfully belongs to Flo & Ekldie


California Civil Code 980(a)(2),

Flo

the allegations set forth above in

fully set forth herein.

Code

980(a)(2), Flo & Eddie

and

the

ownership interests in and to the pre-1972

embodied in those recordings,

reproduction, performance, distribution, or

of pre-1972 recordings (including The

has infringed the exclusive ownership

gs in violation ofCalifornia Civil Code

consequence ofPandora's violation

of

has received and retained money and

and the

members o f the class.

consequence

ofPandora's violation of

Edd ie and

t he membe rs o f the

class

have

9

11

CLASS AC ION

COMPLA INT


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o

^m

gs, including the artistic performances

nterests in and to the pre-1972Recordip:

embodied in those recordings.

46. Pandora's conduct in reprcjdu

exploitation via the Music Service pre

Recordings) constitutes a misappropriation

each

member

of the class in the pre-19

Civil Code 980(a)(2).

47. By misappropriating the

member

of

the class in the pre-1972

Code 980(a)(2), Pandora has engaged

California

Business & Professions

Code


Business & Professions Code

17200,

and value that rightfully belongs to Flo


each member of the class

are

entitled tc

California

Business & Professions Cod 2

fully ascertained but which Flo & Eddio

mill ion.

50. Flo & Eddie is

informed

engaging in the conductdescribed herein

and/or malice. The conduct o f Pandora

conscious disregard

of

the rights of Flo

Accordingly, Flo & Eddie and each

punitive damages against Pandora in an

example of it.

51. Pandora 's

conduct is

this Court, will continue to cause, Flo

cing, performing, distributing, or other

972 recordings (including The Turtles'

of the property rights ofFlo & Eddie and

2 recordings and a violation ofCalifornia

property rights ofFlo & Eddie and each

recordings and by

violating

California Civil

in unfair business practices in violation

of

17200.

;onsequence

of

its violation

of

California

Pandora

has

received and retained money

&

Eddi e a nd

the

members

o f the class,

result

of Pandora's

conduct, Flo &

Eddie

and

restitution and disgorgement under

17200 in an amount that is not as yet

is

informed

and

believes exceeds $25

ajidbelieves, and on that basis alleges, that in

, Pandora acted with oppression, fraud

has been despicable and undertaken in

&

Edd ie a nd e ac h membe r

o f

the

class,

meknber

o f the class

are

entitled to an

award of

amount

sufficient to punish

and

make an

causing, and unless enjoined and restrainedby

Eddie

and each

member of the class great

12

CLASS

ACTION

COMPLAINT


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o

and irreparable injury that cannot fully

& Edd ie a nd e ac h

member

o f the

class

Eddie and

each

membe r o f the class

are

permanent injunctions,

prohibiting

furtlier

&

Eddie and each membe r o f t he c la ss

FOURTH CLAIM

^B

3e compensated or measured in money. Flo

lave no adequate remedy at law. Flo &

entitled to temporary, preliminary and

violation

of

the ownership interests

of

Flo

in the pre-1972 recordings.

FOR REL IEF

(For

As

Against

Conversion)

All

Defendants)

52. Flo & Eddie hereby i

paragraphs 1 through 28 above, as

53.

Pursuant to

California

Civ

law, Flo & Eddie and the members

of tike

interests in andto thepre-1972 Recordijn

embodied in those recordings.

54. By reproducing, performiri

the Music Service pre-1972 recordings

Pando ra ha s conver ted for

its own use

property rights inthepre-1972

recordirj;

property rights.


received

and

retained money and value

the

members o f

the class.


Edd ie a nd th e members o f the class

ha\

yet fully ascertained but which Flo &

mill ion.

57. Flo & Eddie is informed

engaging in the conduct described herein

and/or malice.

The

conduct o f Pandora

though

a id

ncorpjorates the allegations set forth above in

fully

set

forth herein.

1

Code

980(a)(2)

and

California

common

class possess exclusive ownership

gs, including the artistic performances

g, distributing or otherwise exploiting via

(including The Turtles' Recordings),

Flo &

Edd ie and e ach membe r o f

the

class's

gs and has dispossessed

each

of their of

consequence of its conversion, Pandora has

that rightfully belongs to

Flo

& Eddie

and

consequence of Pandora's conversion,

Flo

&

e

been

damaged

in an

amount

that is

not

as

Fjddie

is informed and believes exceeds $25

believes, and on that basis alleges, that in

in, Pandora acted with oppression, fraud

has been

despicable

and undertaken

in

13

CLAS S AC HON COMPLA INT


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conscious disregard

of

the rights of Flo

Accordingly, Flo & Eddie and each mejnber

punitive damages against

Pandora

in an

example

of

it.

58.

Pandora's conduct

is

causib

this Court,

will

continue to cause, Flo

and irreparable injury that cannot fully

&

Eddie

and

each

member

o f

the class

Eddie and each membe r o f the class are

permanent injunctions,

prohibiting

furtllier

&

Edd ie a nd e ac h m embe r o f the class

i^S

&

Edd ie a nd e ac h member o f

the

class.

o f the c la ss a re

entit led

to

an

award o f

amount sufficient to punish and make an

:

g, and unless enjoined

and

restrained by

: Eddie and each member

of

the class great

3e compensated or measured in money. Flo

lave has no adequate remedy at law. Flo &

entitled to temporary, preliminary and

violation

of

the ownership interests

of

Flo

:.n the pre-1972 recordings.

P R A Y E R

WFIEREFORE, Flo

&

Eddie, on

class, prays for Judgment against

them,

as follows:

A. Determining that this is a

Rule

23

o f

t he Feder al

Rules

Civi l

representative, and Flo & Eddies'

B. On all claims except for

Code 17200, compensatory damages

C. On the

claim

fo r v iol a ti on

17200, restitution and disgorgement

excess

o f

$25 million.

D.

On the

second,

third, and

damages according to

proof

at trial.

E.

On

all claims, a temporary

enjoining and restraining Pandora, and

officers, principals, employees,

behal f o f

i tself and all o the r membe rs

o f

the

Pandora

and the Doe defendants, and each o f

proper class action maintainable pursuant to

Procedure,

and

certifying

Flo

& Eddie as class

counkel as

class

counsel.

violation

of California Business &

Professions

in excess of $25 million according to proof;

of

California Business & Professions

Code

of IPandora's unlawful proceeds and revenues in

fourth claims, punitive and exemplary

, preliminary, and permanent injunction

their respective agents, servants, directors,

representatives, subsidiaries and affiliated

14



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UNITEDSTATES DISTRICTCOURT, CENTRAL DISTRICTOFCALIFORNIA

CIVIL COVEF

SHEET

I.

a) PLAINTIFFS

(

Check box if you

are

representing yourself

Q )

FLO

&

EDDIE, INC.,

a

California

corporation, individually and on behalfofallothers

similarly

situated

(b)County ofResidenceof

First

Listed Plaintiff Los Angeles

EXCEPT

INU.S.

PLAINTIFF

CASES

(c)

Attorneys irm

Name,

Address

and

Telephone

Number If

you are

representing yourself, provide the same information.

GRADSTEIN

&

MARZANO,

P.C;HenryGradstein,

SBN

89747

Maryann

R.

Marzano,

SBN

96867;HarveyGeller,

SBN

123107

6310San Vicente

Blvd.,

Suite 510, LosAngeles,California90048; (323)776-3100

Dl

FENDANTS (

Check box if you

are representing

yourself

Q]

PAiNDORA

MEDIA,

INC., a

Delaware corporation;

and

DOES

1through100

County of Residence of First Listed Defendant

IN

U.S.

PLAINTIFF

CASESONLY

At orneys { irm Name, Address and Telephone Number Ifyou are

representing yourself, provide

the

same information.

II. BASISOFJURISDICTION

(Place anXinone boxonly.) III.

CITIZENSHIP

(Place

Citizen o f

Citizen

of Ahothei

OF PRINCIPAL

PARTIES-For Diversity Cases Only

an Xin one box for plaintiff

and

one for

defendant)

PTF

DEF . . . . . .

Incorporated

or Principal Place

of Business in this

State

I 11 . U.S. Government

Plaintiff

| | 2.

U.S. Government

Defendant

Q 3.

Federal Question

U.S.

Government Not a Party)

[x]4.Diversity

(Indicate Citizenship

of

Parties

in

Item

III) qa pa

f Tit is Sta te

r

Sta te

Subject

ofa

itizen

or

Foreign

Coikntry

2

3

H 1

2

Incorporated

and

Principal Place

of Business

in

Another State

| | 3 ForeignNation

IV.ORIGIN (Placean X in one

box

only.)

rrri 1.

Original

2.

Removed

from |,

^ Proceeding

I

State Court II

3.

Remanded

f rom

Appellate Court

4 . Re in s ta

:e d

or

Reopen

sd

5.

Transferred from

Another

District (Specify)

6. Multi-

I I

District

Litigation

V. REQUESTED

IN

COMPLAINT: JURY

DEMAND:

[x] Yes No

CLASS

ACTION

under F.R.Cv.P.

23: [x]Yes

No

[x

(Check Yes only if demanded in complaint.)

MONEY

DEMANDED

IN COMPLAINT: $ 25 Million

PTF

4

5

6

OE F

4

5

6

VI. CAUSE OFACTION (Cite

the

U.S.

Civil Statute under

which you

arefiling and

writ

Class actioncomplaintbased on diversityarisingunder 28

U.S.C.

1332(d)(2) - damages in

recordings fixed priorto February15,1972, under California statutory and common law.

; a briefstatement ofcause. Donot citejurisdictional statutes unlessdiversity.)

excess of$5million andover 100classmembers --forviolation of rightsinsound

VII. NATUREOFSUIT (Placean X in

one

box only).


18/19

UNITED

STATES DISTRICT

COURT,

CENTRAL DISTRICT OFCALIFORNIA

CIVIL COVER SHEET

VIII. VENUE:

Your answers tothequestions

below

will

determine

thedivision ofthe

to change, in accordance with the

Court's

General

Orders,

upon review by the

Court

ofyoi

ility insurance benefits underTitle 2oftheSocial Security

Act,

as

amended;

plus

based on disability. (42U.S.C. 405(g))

All claims filed for widows or

widowers

in

amended. (42

U.S.C.

405 (g))

urance

benefits

basedon

disability

under

Title

2ofthe

Social Security Act,

as

All claimsforsupplemental security i

amended .

neone payments basedupon

disability

filed underTitle 16ofthe Social Security Act, as

All claimsfor retirement (oldage) and sun

(42

U.S.C.

405(g))

ivorsbenefitsunder Title2 of the Social SecurityAct,as amended.

Documents

Flo & Eddie v. Pandora - CD Ca.pdf