The Football Association Premi v. Youtube, Inc.

Filing 402

LETTER, dated 09/09/2011, on behalf of Appellee Google, Inc., Youtube, Inc. and Youtube, LLC, RECEIVED. Service date 09/09/2011 by CM/ECF.[387300] [10-3342]

No. 10-3342
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
THE FOOTBALL
ASSOCIATION PREMIER
LEAGUE LTD., et al.,
Plaintiffs-Appellants,
v.
YOUTUBE, INC., et al.,
DefendantsAppellees.

)
)
)
)
)
)
)
)
)
)
)

On Appeal from the United
States District Court for the
Southern District of New York
No. 1:07-CV-03582
The Honorable Louis L. Stanton,
United States District Judge.

JOINT SUBMISSION IN RESPONSE TO
SEPTEMBER 2, 2011 ORDER
Appellees YouTube, Inc., YouTube LLC, and Google Inc.
(collectively, “YouTube”), together with Appellants the National Music
Publishers Association and music publishers Edward B. Marks Music
Company, Freddy Bienstock Music Company, Alley Music Corporation,
and

The

Rodgers

&

Hammerstein

Organization

(collectively,

“Withdrawing Appellants”) submit this joint response to the Court’s
September 2, 2011 Order requesting that the parties provide “comments

1

on the projected dismissal that is the subject of the stipulation” entered
between YouTube and the Withdrawing Appellants.
YouTube and the five Withdrawing Appellants have entered into
an agreement resolving the litigation between them. As a result, the
Withdrawing Appellants have agreed to release their claims against
YouTube and dismiss their appeal with prejudice.
The parties are aware of no legal grounds that would allow the
remaining appellants to oppose or otherwise challenge the stipulated
dismissal between YouTube and the Withdrawing Appellants. In its
letter to the Court dated August 29, 2011, the Football Association
Premier League claimed that under Fed. R. App. P. 42(b) a stipulation
to dismiss an appeal requires “consent of all parties.” That is incorrect.
Rule 42(b) provides simply that an “appeal may be dismissed on the
appellant’s motion on terms agreed to by the parties or fixed by the
court.” That is precisely what has happened here. The absence of any
requirement that “all parties” consent to a dismissal involving only
some of the appellants is underscored by comparison to Fed. R. App. P
42(a), which addresses pre-docketing dismissals (not at issue here).
Rule 42(a) conditions dismissal of a not-yet-docketed appeal “on the

2

filing of a stipulation signed by all parties or on the appellant’s motion
with notice to all parties.” (Emphases added.) Rule 42(b), by contrast,
includes no such “all parties” language or requirement. In short, the
stipulation by which the Withdrawing Appellants seek dismissal of
their claims is entirely proper—with or without the consent of the
remaining appellants.
In any event, despite our requests, the remaining appellants have
articulated no substantive objection to the projected dismissal. Should
the remaining appellants make such an objection in their comments to
the Court, YouTube and the Withdrawing Appellants respectfully
request an opportunity to respond.

Otherwise, YouTube and the

Withdrawing Appellants request that the Court enter the stipulation
filed on August 24 and order the dismissal of the Withdrawing
Appellants’ appeal with prejudice.
Respectfully submitted,
/s/ David S. Stellings
David S. Stellings
Lieff, Cabraser, Heinmann & Bernstein, LLP
8th Floor
250 Hudson Street
Telephone: [phone]
Facsimile: [phone]
3

Attorneys for Plaintiffs-Appellants
The National Music Publishers Association,
The Rodgers & Hammerstein Organization,
Edward B. Marks Music Company,
Freddy Bienstock Music Company
d/b/a/ Bienstock Publishing Company,
and Alley Music Corporation

/s/ Andrew H. Schapiro
Andrew H. Schapiro
Mayer Brown LLP
1675 Broadway
New York, New York 10019-5820
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants-Appellees
Google Inc., YouTube LLC, and YouTube,
Inc.
September 9, 2011

4