Rupa Marya v. Warner Chappell Music Inc

Filing 198

DECLARATION of BETSY C. MANIFOLD in Support of MOTION for Order for to Exclude Evidence 197 filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit A-B, 23, 44, # 2 Exhibit 48, 67-68, 71, 72, 87, 92, # 3 Exhibit 99-104, 106, 119)(Manifold, Betsy)

EXHIBIT A

Ex. A
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CONFIDENTIAL
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

3

WESTERN DIVISION

4
5

------------------------------------------x

6

GOOD MORNING TO YOU PRODUCTIONS CORP.,

7

et al.,

8

Plaintiffs,

9

vs.

10

WARNER/CHAPPELL MUSIC INC., et al.,

11

Defendants.

12

------------------------------------------x

13

Lead Case No. CV 13-04460-GHK (MRWx)

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15
16
17

DEPOSITION OF THOMAS B. MARCOTULLIO

18
19

New York, New York
Tuesday, June 3, 2014

20

CONFIDENTIAL

21
22
23
24

Reported by:

25

David Henry

JOB NO. 80120

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2
3

June 3, 2014

4

9:00 a.m.

5
6
7

Videotaped 30(b)(6) Deposition of

8

THOMAS B. MARCOTULLIO, held at the

9

offices of Wolf Haldenstein Adler Freeman

10

& Herz, 270 Madison Avenue, New York, New

11

York, pursuant to Notice, before David

12

Henry, a Certified Court Reporter and

13

Notary Public of the State of New York.

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A P P E A R A N C E S:

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3
4
5

WOLF HALDENSTEIN ADLER FREEMAN
& HERZ
Attorneys for Plaintiffs
270 Madison Avenue
New York, NY 10016
BY: MARK RIFKIN, ESQ.
AND: BETH LANDES, ESQ.

6
7
8
9

RANDALL S. NEWMAN
Attorneys for Plaintiffs
37 Wall Street
New York, NY 10005
BY: RANDALL NEWMAN, ESQ.

10
11
12
13

MUNGER ROLLES & OLSON
Attorneys for Defendants and
the Witness
355 South Grand Avenue
Los Angeles, CA 90071
BY: KELLY KLAUS, ESQ.

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15
16
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18
19
20

ALSO PRESENT:
ELLEN HOCHBERG, ESQ.,
Warner Music Group

21
22

ALI TOUMADJ, Summer Associate,
Wolf Haldenstein Adler & Herz

23

MANUEL GARCIA, Videographer

24
25

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THE VIDEOGRAPHER:

This is the

2

start of the tape labelled number one

3

in the videotaped deposition of Mr.

4

Thomas B. Marcotullio in the matter of

5

Good Morning To You Productions versus

6

Warner/Chappell Music, on June 3rd,

7

2014, at approximately 9:06 a.m.

8

name is Manuel Garcia for TSG

9

Reporting, Inc, and I am the legal

My

10

video specialist.

11

is David Henry in association with TSG

12

Reporting.

13

introduce yourselves.

14

MR. RIFKIN:

15
16
17
18

The court reporter

Counsel, will you please

Mark Rifkin for the

plaintiffs.
MR. NEWMAN:

Randall Newman, for

the plaintiffs.
MS. LANDES:

Beth Landes for the

19

plaintiffs, and with us is our summer

20

associate Ali Toumadj.

21

MR. KLAUS:

Kelly Klaus for the

22

defendants, and with me is Ellen

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Hochberg from the Warner Music Group.

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25

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T H O M A S

M A R C O T U L L I O,

2

called as a witness, having first been duly

3

sworn, was examined and testified as

4

follows:

5

EXAMINATION BY MR. RIFKIN:

6

Q.

Mr. Marcotullio, good morning.

7

My name is Mark Rifkin, we met a few

8

moments ago, but for the record I represent

9

the plaintiffs in a lawsuit that has been

10

brought concerning the copyright to the

11

song Happy Birthday To You.

12

be asking you a series of questions today

13

which you will be answering under oath.

14

The court reporter will be transcribing

15

what happens today, and there is a

16

videographer here who is also making a

17

videotape record of the deposition.

18

any point in time you have not heard a

19

question, or you think you don't understand

20

the question, please let me know, and I

21

will either repeat the question or have the

22

court reporter read it back or rephrase the

23

question so that the answers you give are

24

the best and most truthful answers to the

25

questions I ask, okay?

I'm going to

If at

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A.

I did.

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Q.

You did.

Before you spoke with

3

all of those people, Mr. Klaus,

4

Ms. Hochberg, Mr. Blietz, Mr. Meade and

5

Mr. Osher, did you know anything about the

6

copyright applications for the song Happy

7

Birthday To You?

8
9
10

A.

Not a lot of information, but

some passing information.
Q.

Is it fair to say that everything

11

you know about the copyright applications

12

for the song Happy Birthday To You, you

13

learned from others?

14

MR. KLAUS:

15

of the question.

16

A.

Object to the form
You may answer.

It was a combination of reviewing

17

the materials themselves as well as

18

discussions with the aforementioned

19

individuals including Jeremy Blietz.

20

Q.

Okay.

And before you began to

21

prepare for giving testimony at this

22

deposition, did you know anything about the

23

basis for Warner/Chappell's claim of

24

copyright ownership for the song Happy

25

Birthday To You?

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application which is now the bottom half of

2

Marcotullio 11, what does it say the new

3

matter for which copyright was claimed?

4
5

A.

As I mentioned earlier, it's

arrangement as easy piano solo with text.

6

Q.

And what exactly was the text?

7

A.

I'm sorry?

8

Q.

What was the text?

9

A.

Oh, my reading the face of it,

10

whatever that was referred to as the

11

musical composition there registering for

12

the new copyright matter.

13

obviously they were registering it.

14

Q.

Okay.

So there is --

Turn back if you would to

15

the document we marked for identification

16

as Marcotullio Exhibit 5.

17

deposit copy for 51988, right?

This is the

18

A.

Yes.

19

Q.

Did you find -- and we talked

20

about the fact that there was a stamp on it

21

from the Copyright Office with 51988 on it,

22

right?

23

document like that with a stamp on it from

24

the Copyright Office for 51990, correct?

25

On Marcotullio 5.

MR. KLAUS:

You don't have a

I think it's been

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asked and answered, but you can answer

2

again.

3

A.

4

I have not received a copy of a

deposit copy.

5

Q.

Okay.

And you are aware that

6

there was some effort to find out whether

7

there was a deposit copy or not, correct?

8
9
10

A.

I received a copy of a letter,

yes, in connection with a request for a
deposit copy.

11

(Marcotullio Exhibit 12, WC405,

12

marked for identification.)

13

Q.

Mr. Marcotullio, the court

14

reporter has marked for identification as

15

Exhibit Marcotullio 12 a one-page document

16

with the production WC405.

17

be a letter from William Lichtenwanger or

18

something like that from the Copyright

19

Office to Robert G. Olson of

20

Summy-Birchard Publishing Company dated

21

January 23, 1961.

22

were referring to just a moment ago when

23

you said you saw a letter about the deposit

24

copy?

25

A.

This appears to

Is this the document you

This is the letter I was

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referring to when I was referencing other

2

materials.

3

record of registration which identifies the

4

two deposit copies were provided.

5

Q.

I also was referencing the

Okay.

And in this letter the

6

acting head of the reference section of the

7

Copyright Office whose last name I won't

8

try to pronounce again says that the

9

Copyright Office does not have a copy of

10

the work that was deposited with 51990,

11

correct?

12

A.

That's what it says, correct.

13

Q.

When you made your inquiry in

14

December of 2013, did you ask again for a

15

deposit copy?

16

A.

Not that I am aware, but my

17

understanding is we asked for the letters

18

relating to the copyright registration

19

51990.

20

Q.

Okay.

What did you do if

21

anything to search the records of either

22

Warner/Chappell or Summy-Birchard or anyone

23

to see if somewhere there was a copy of the

24

work deposited with E51990?

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MR. KLAUS:

Object to the form,

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outside the scope.

2

testify to what your factual

3

investigation told you about the

4

search for documents in the case.

5

A.

Sure.

I believe you can

So as I mentioned, I spoke

6

with Jeremy Blietz and others at

7

Warner/Chappell.

8

believe we may have received this in

9

connection with our request from the

I understand, I think, I

10

Copyright Office.

11

conducted an extensive investigation of

12

their records, including microfiche files

13

that they had, hard copy files that were

14

retained by Warner/Chappell, and other

15

digital files that they had already copied

16

and pdf'd into a digital file.

17

went through a fairly extensive review of

18

those materials including with respect to

19

the copyrights, the Hills, Summy-Birchard

20

and otherwise, in addition as I mentioned

21

earlier the requests to the Copyright

22

Office.

23

Q.

Okay.

In any case they

So they

And as a result of all

24

that you were told, or you learned that you

25

do not have a copy of the deposit copy

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either, correct?

2

MR. KLAUS:

3

You can answer.

4

A.

5

My understanding is they could

not find a copy of it either.

6
7

Object to the form.

Q.

Okay.

Were you told what that

work was?

8

A.

What work was?

9

Q.

What the deposited work was.

10

MR. KLAUS:

11

You can answer.

12

A.

Object to the form.

I think we believe that the work

13

was the Happy Birthday To You, I think you

14

called it the familiar Happy Birthday To

15

You.

16
17
18

Q.

Well, why do you think -- what is

your basis for thinking that?
A.

Sure, so obviously we know from

19

both this letter and the record that there

20

were deposit copies received.

21

the registration that those were I think on

22

December 9th they were received.

23

that on the same day they registered --

24

they applied for and registered for the

25

51988, which as I mentioned earlier is

We know from

We know

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2

have any different information.
A.

I can only speak to what I've

3

read in my investigation, including the

4

responses in the interrogatories and such

5

that I have read also and I understand from

6

the plain language of them.

7

understand the legal implications and how

8

the process works, but as far as I've seen

9

on the face of the registration and on the

I don't

10

documents I reviewed, that it refers to

11

Mildred J. Hill and Preston Ware by Mildred

12

J. Hill, arrangement of the piano solo with

13

text, Mr. Preston Ware Orem.

14

information I have.

15

Q.

That's the

So do you now believe that

16

Preston Ware Orem did write the familiar

17

lyrics to the song Happy Birthday To You?

18

A.

Do I believe?

19

Q.

Yes, sir.

I'm asking you if

20

Warner/Chappell believes that.

21

very simple.

22

Warner/Chappell believes that Preston Ware

23

Orem wrote the familiar lyrics to the song

24

Happy Birthday To You.

25

A.

It's really

I'm asking you if

Again, what I do know is what I

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can see on the face of the documentation.

2

I can't really speak to anything further

3

than that.

4

Q.

And from the information that

5

you've seen on the face of the

6

documentation, do you now believe that

7

Preston Ware Orem wrote the familiar lyrics

8

to the song Happy Birthday To You?

9

MR. KLAUS:

10

of the question.

11

again.

12

A.

Object to the form
You can answer

Sure, I can tell you what I've

13

seen and what it says, and what the

14

documentation I've been provided indicate,

15

and the registration has, you know, the

16

information as I've stated.

17

Q.

Well, what indicates that Preston

18

Ware Orem wrote the familiar lyrics to the

19

song Happy Birthday To You?

20

indicates that?

21

MR. KLAUS:

22

of the question.

23

A.

What exactly

Object to the form
You can answer.

And again I'm not familiar with

24

the specifics of the Copyright Office

25

process and procedure, but the face of the

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registration clearly indicates that Preston

2

Ware Orem, you know, was identified on it.

3

So that's the information I have.

4

Q.

That he wrote what?

5

A.

All I know is that he is

6
7

identified on the face of the registration.
Q.

Does it say that he wrote the

8

familiar lyrics to the song on the face of

9

the registration?

10

MR. KLAUS:

11

of the question.

12

A.

Object to the form
You can answer.

Sure, I mean, I can only tell you

13

what I see, which is again, I don't know

14

how the process works or how the form is

15

interpreted, but I can tell you what the

16

statement is from the copyright certificate

17

as well.

18

as much as I am.

19

Birthday To You by Mildred J. Hill, Preston

20

Ware Orem employed for hire by Clayton F.

21

Summy Co. of US piano solo with words,

22

copyright is claimed on arrangement as easy

23

piano solo with text.

24
25

Q.

I'm sure you are familiar with it
But it says Happy

And which part of that says that

Preston Ware Orem wrote the familiar lyrics

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Happy birthday to you, happy birthday to

2

you, happy birthday dear blank, happy

3

birthday to you?

4

MR. KLAUS:

Object to the form,

5

calls for a legal conclusion.

6

answer the question.

7

A.

Sure.

You can

Again, I can't interpret

8

this document for you or the processes of

9

the Copyright Office.

I can just tell you

10

what this says, and it just -- it

11

references Preston Ware Orem as part of the

12

copyright registration.

13

Q.

Did you ask anybody if it meant

14

that, if the certificate of copyright

15

registration, and now I'm reading directly

16

from Marcotullio 10, if the copyright

17

registration means that Preston Ware Orem

18

wrote the lyrics Happy birthday to you,

19

happy birthday to you, happy birthday dear

20

blank, happy birthday to you.

21

MR. KLAUS:

Objection, calls

22

for a legal conclusion.

23

answer the question.

24

A.

25

You can

Yeah, again, was there anything

in our investigations, did you say?

I'm

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A C K N O W L E D G M E N T

2
3

STATE OF NEW YORK

4
5

)
: ss

COUNTY OF

)

6
7

I, THOMAS B. MARCOTULLIO, hereby

8

certify that I have read the transcript of

9

my testimony taken under oath in my

10

deposition of June 3, 2014; that the

11

transcript is a true, complete and correct

12

record of my testimony, and that the

13

answers on the record as given by me are

14

true and correct.

15
16

__________________________

17

THOMAS B. MARCOTULLIO

18
19

Signed and subscribed to before

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me, this

day

21

of

, 2014.

22
23
24

________________________

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Notary Public, State of New York

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C E R T I F I C A T E

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3

STATE OF NEW YORK

4
5

)
) ss.:

COUNTY OF NEW YORK

)

6
7

I, DAVID HENRY, a Notary Public within

8

and for the State of New York, do hereby

9

certify:

10

That THOMAS B. MARCOTULLIO, the

11

witness whose deposition is hereinbefore

12

set forth, was duly sworn by me and that

13

such deposition is a true record of the

14

testimony given by such witness.

15

I further certify that I am not

16

related to any of the parties to this

17

action by blood or marriage; and that I am

18

in no way interested in the outcome of this

19

matter.

20

IN WITNESS WHEREOF, I have hereunto

21

set my hand this 13th day of June, 2014.

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23
24

-------------------------

25

DAVID HENRY

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E R R A T A

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PAGE

LINE

EMENDATION

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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_____ _____ _______________________________

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____________________

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Signature of Deponent

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SUBSCRIBED AND SWORN BEFORE ME

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THIS _____ DAY OF ____________, 2014.

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23

_______________________________

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(Notary Public)

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MY COMMISSION EXPIRES: ____________

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EXHIBIT B

Ex. B
24

Page 1
1
2
3

UNITED STATES DISTRICT COURT CENTRAL
DISTRICT OF CALIFORNIA
WESTERN DIVISION

4
5

6

7

8

9

10

GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,

)
)
)
Plaintiffs,
)
)
VS.
)
)
WARNER/CHAPPELL MUSIC INC., )
et al.,
)
)
Defendants.
)
_____________________________)

Lead Case Number
CV 13-04460-GHK
(MRWx)

11
12
13
14
15
16

DEPOSITION OF JEREMY BLIETZ
Los Angeles, California
Thursday, July 10, 2014

17
18
19
20
21
22
23
24
25

Job No: 81817
Reported by: NIKKI ROY
CSR No. 3052
Ex. B
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1

Deposition of JEREMY BLIETZ, taken on behalf of

2

the Plaintiffs, at 355 South Grand Avenue,

3

35th Floor, Los Angeles, California, on Thursday,

4

July 10, 2014 at 10:36 a.m., before NIKKI ROY,

5

CSR No. 3052.

6
7
8

APPEARANCES OF COUNSEL:

9
10

FOR THE PLAINTIFFS:

11

WOLF HALDENSTEIN ADLER FREEMAN & HERZ
BY:

12

BETSY C. MANIFOLD, Attorney at Law

Symphony Towers
750 B Street

13

San Diego, California 92101

14
15

DONAHUE FITZGERALD ATTORNEYS
BY:

16

DANIEL SCHACHT, Attorney at Law

1999 Harrison Street
Oakland, California 94612

17
18
19
20
21
22
23
24
25

///
Ex. B
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APPEARANCES OF COUNSEL (CONTINUED):

2
3
4

FOR THE DEFENDANTS:
MUNGER TOLLES & OLSON
BY:

5

MELINDA EADES LeMOINE, Attorney at Law

355 South Grand Avenue
Los Angeles, California 90071

6
7
8

MUNGER TOLLES & OLSON
BY:

9

ADAM KAPLAN, Attorney at Law

560 Mission Street
San Francisco, California 94105

10
11
12
13
14

ALSO PRESENT:
NATHAN OSHER
Vice President Legal & Business Affairs

15

Warner/Chappell Music, Inc.

16
17
18
19
20
21
22
23
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25

Ex. B
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I N D E X

2
3

WITNESS

4

JEREMY BLIETZ

EXAMINATION

PAGE

5

MS. MANIFOLD

6, 111, 160

6

MS. LeMOINE

157

7
8

E X H I B I T S

9
10

NUMBER

11

Exhibit

DESCRIPTION
42

PAGE

Plaintiffs' Second Amended

8

Notice Continuing the Taking of
12

Deposition of Jeremy Blietz
Pursuant to Fed. R. Civ. P.

13
14

30(b)(1)
Exhibit

43

Color photocopy of Application

89

for Copyright
15

Exhibit
16

44

Letter from William

137

Lichtenwanger to Robert Olsen,
January 23, 1961

17
18
19

(Exhibits previously marked for identification:
Exhibit 2, Exhibit 3, Exhibit 4, Exhibit 5, Exhibit 6,

20

Exhibit 7, Exhibit 9, Exhibit 10, Exhibit 12,
Exhibit 13, Exhibit 17, Exhibit 19, Exhibit 21,

21

Exhibit 39, Exhibit 40, and Exhibit 41)

22
23
24
25

Ex. B
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I N D E X (CONTINUED):

2
3

QUESTIONS INSTRUCTED NOT TO ANSWER

4

Page

Line

5

86

18

6
7
8
9

INFORMATION REQUESTED
None

10
11
12
13
14
15
16
17
18
19
20
21
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25

Ex. B
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2

MS. LeMOINE:

Objection to the extent it

calls for a legal conclusion.

Objection to form.

3

You can answer if you can.

4

THE WITNESS:

I mean, all I can say is I

5

could read this to you, but it looks fairly different

6

from how registrations look today, so I couldn't

7

testify as to the intent here.

8

that appears on the previous picture, but I can't --

9

can't speak to the content here.

10
11

I see the same number

BY MS. MANIFOLD:
Q.

Okay.

I notice in the upper right-hand

12

corner of Bates-stamped 386 of Plaintiffs' Exhibit 4

13

for identification, there's a number 27970.

14

know what that number means?

15

A.

I do not.

16

Q.

Okay.

Do you

17

And it says on this registration,

copy of registration for E51988, it says (reading):

18

Published musical composition by

19

Mildred J. Hill.

20

Do you see that?

21

A.

Yes, I do.

22

Q.

Do you have an understanding of what that

23

means on the registration?

24
25

MS. LeMOINE:
answered.

Objection; that's asked and

That's asked and answered.
Ex. B
30

TSG Reporting - Worldwide

877-702-9580

Page 93
1

THE WITNESS:

I don't know the intent of it.

2

I can read it, you know, here, but, as I said, this

3

looks fairly different from the forms that we fill

4

out today, so I can't truly confirm that I know the

5

intent of that.

6

BY MS. MANIFOLD:

7

Q.

8

do you mean?

9

A.

When you say "know the intent of that," what

Because there's no, you know, composer,

10

dash, or there's nothing in front of it.

11

say what, you know, the legal meaning is behind that.

12

Q.

I couldn't

I'm not asking you for the legal meaning.

13

As part of your duties, you review databases

14

to make determinations as to whether royalties are

15

owed, licensing issues.

16

have an understanding of what by Mildred J. Hill

17

means in this copy of the registration E51988.

18

MS. LeMOINE:

I'm just asking you if you

We're -- okay.

The witness

19

has testified he's not familiar with forms that look

20

like this.

21

copyright office.

22

times.

23

object to them.

This is a document he received from the
And that he does not know several

So your questions to him are unfair, and I

24

MS. MANIFOLD:

25

MS. LeMOINE:

Okay.
It lacks foundation, calls for

Ex. B
31

TSG Reporting - Worldwide

877-702-9580

Page 94
1

speculation.

2

here today.

3

He's reading the document as he sits

MS. MANIFOLD:

He obtained the document in

4

December of 2013, so he's not really reading the

5

document as he sits here today.

6

I'm asking him if he has an understanding of it.

7

He's the vice president of administration at

8

Warner/Chappell.

9
10

But with that said,

I'm not going to argue with you.

If you don't understand the question, you
can tell me.

11

THE WITNESS:

No, I understand the question

12

I just -- I can't speak to the intent here or the

13

meaning.

14

read it and tell you what it says.

15

BY MS. MANIFOLD:

16

Q.

I'd have to speculate.

All I can do is

So when you say I don't know the intent of

17

it, is -- are you telling me I'm not a lawyer, so I

18

don't know what this means?

19

telling me?

20

A.

21

Is that what you're

No.
MS. LeMOINE:

Objection; it's argumentative,

22

and he's asked and answered these line of questions,

23

Betsy.

24

BY MS. MANIFOLD:

25

Q.

What do you mean by intent?

Ex. B
32

TSG Reporting - Worldwide

877-702-9580

Page 121
1

BY MS. MANIFOLD:

2

Q.

Are you aware of any other evidence within

3

the archives of Warner/Chappell with regard to what

4

the deposit copy is for E51990?

5

A.

No.

6

Q.

I'm sorry.

7

bit.

I'm sorry.

I'm losing my voice a little

And your answer?

8

A.

No, I'm not aware of any.

9

Q.

Excuse me.

10

So pull Plaintiffs' Exhibit 9 for

11

identification which is the copy of registration of

12

51990.

13

is WC 389.

14

We're going to look at the second page, which

And to the best of your recollection, did

15

you receive a copy of this from the copyright office

16

with the handwriting on it?

17
18
19

A.

This was received from the copyright office.

I can't recall if the handwriting was on it.
Q.

Do you have any reason to believe that

20

someone at Warner/Chappell added the handwriting to

21

this document?

22

A.

No, I don't have any knowledge about that.

23

Q.

And you'll notice at the bottom there's a

24

C with a circle in it, and it says "C is claimed on

25

arrangement as Easy Piano Solo with text."

Ex. B
33

TSG Reporting - Worldwide

877-702-9580

Page 122
1

In the context of that statement, do you

2

have an understanding of what "arrangement" means?

3
4

MS. LeMOINE:
speculating.

Just object to the extent he's

He's reading the document.

5

But you can answer.

6

THE WITNESS:

Yeah.

I mean, the fact that

7

this was done in 1935, I don't have an understanding

8

as to what "arrangement" meant to them at that time,

9

so I can't -- I can't speak to the intent of what's

10

listed there.

11

BY MS. MANIFOLD:

12

Q.

So if this copyright had been from 2014 and

13

it had the same notation "Copyright is claimed on

14

arrangement as Easy Piano Solo with text," would it

15

make a difference if the copyright was recorded in

16

2013 -- 2014, today?

17

MS. LeMOINE:

Just objection on the same

18

grounds, it's incomplete hypothetical, but you can

19

answer.

20

THE WITNESS:

I think you would need to look

21

at the deposit copy.

22

the meaning is of that phrase, and without, you know,

23

knowing what the intent was here, I couldn't say.

24

BY MS. MANIFOLD:

25

Q.

You'd need to understand what

If you wanted to figure out what the intent

Ex. B
34

TSG Reporting - Worldwide

877-702-9580

Page 172
1

DECLARATION UNDER PENALTY OF PERJURY

2
3

I, JEREMY BLIETZ, do hereby certify under

4

penalty of perjury that I have read the foregoing

5

transcript of my deposition taken July 10, 2014; that

6

I have made such corrections as appear noted herein,

7

in ink, initialed by me; that my testimony as

8

contained herein, as corrected, is true and correct.

9
10
11

DATED this _______ day of ________________,
2014, at _____________________, California.

12
13
14
15
16
17
18
19
20
21

___________________________
JEREMY BLIETZ

22
23
24
25

Ex. B
35

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877-702-9580

Page 173
1

STATE OF CALIFORNIA

)
) ss.

2

COUNTY OF LOS ANGELES

)

3
4

I, NIKKI ROY, Certified Shorthand Reporter,

5

certificate number 3052, for the State of California,

6

hereby certify:

7

The foregoing proceedings were taken before me

8

at the time and place therein set forth, at which

9

time the deponent was placed under oath by me;

10

The testimony of the deponent and all objections

11

at the time of the examination were recorded

12

stenographically by me and were thereafter

13

transcribed;

14
15
16

The foregoing transcript is a true and correct
transcript of my shorthand notes so taken;
I further certify that I am neither counsel for

17

nor related to any party to said action nor in any

18

way interested in the outcome thereof.

19
20

In witness whereof I have hereunto subscribed my
name this 12th day of July, 2014.

21
22

________________________________
NIKKI ROY

23
24
25

Ex. B
36

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877-702-9580

Page 174
1

ERRATA SHEET FOR THE TRANSCRIPT OF:

2

Case Name:

3

Depo. Date:

4

Deponent:

5

Reason codes:

6

1. To clarify the record.

7

2. To conform to the facts.

8

3. To correct transcription errors.

Good Morning to All vs. Warner/Chappell
July 10, 2014
JEREMY BLIETZ

9
10

Pg. Ln.

Now Reads

Should Read

Reason

11
12

___ ___

___________

__________

_____

13

___ ___

___________

__________

_____

14

___ ___

___________

__________

_____

15

___ ___

___________

__________

_____

16

___ ___

___________

__________

_____

17

___ ___

___________

__________

_____

18

___ ___

___________

__________

_____

19

___ ___

___________

__________

_____

20

___ ___

___________

__________

_____

21

___ ___

___________

__________

_____

22

___ ___

___________

__________

_____

23

___ ___

___________

__________

_____

24

___ ___

___________

__________

_____

25

___ ___

___________

__________

_____

Ex. B
37

TSG Reporting - Worldwide

877-702-9580

Ex. B
38

Ex. B
39

Ex. B
40

EXHIBIT 23
[Jt. App'x at 3:534-544, Dkt. 189-2]

Ex. 23
41

Case 2:13-cv-04460-GHK-MRW Document 189-2 Filed 12/17/14 Page 6 of 73 Page ID
#:5301

1 FRANCIS M. GREGOREK (144785)
gregorek~whafh.com

2 BETSY C:MANIFOLD (182450)
manifold~whafh.com

3 RACHEL'E R. RICKERT (190634)
rickert~whath.com

4 MARIS"'A C. LIVESAY (223247)
[e-mail]
5 WOLFIIALDENSTEIN ADLER
FREEMAN & HERZ LLP
6 750 B Stree~ Suite 2770
San Diego, cA 92101
7 Telephone: [phone]
8 FacsImile: 619/234-4599

9 Interim Lead Counsel for Plaintiffs and the [Proposed] Class
10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA -

12

WESTERN DIVISION

,

13
14 GOOD MORNING TO YOU
15 PRODUCTIONS CORP., et al.,
16

Plaintiffs,

17
18 v.
19 WARNERiCHAPPELL MUSIC,
20 INC., et al.,
21
22
23
24

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Lead Case No. CV 13-04460-GHK (MRWx)

[UNREDACTED] DECLARATION OF
RANDALL S. NEWMAN IN SUPPORT
OF PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT

Date:
Time:
Room:
Judge:

January 26, 2015
9:30 a.m.
650
Hon. George H. King,
Chief Judge

2S 1 + - - - - - - - - - - - - )

26
27
28

Ex. 23
42

Ex. 23
534

Case 2:13-cv-04460-GHK-MRW Document 189-2 Filed 12/17/14 Page 7 of 73 Page ID
#:5302

1

I, Randall S. Newman, hereby declare as follows:

2

1.

I am an attorney duly licensed to practice law in the State of California and I

3 am counsel for Plaintiffs in the above-entitled action. I have personal knowledge of the facts
4 stated herein based upon my review of the documents produced in this action and, if called
5 as a witness, I could and would testify competently thereto.

6 The Incorporation or Educational Music Bureau in Illinois in 1923
7

2.

A Certificate of Incorporation for a corporation known as Educational Music

8 Bureau ("EMB") was filed with the Illinois Secretary of State on or about August 11, 1923.
9 Evidentiary Appendix ("App 'x"), Exhibit ("Ex.") 17 at 503-507.
10
11
12

3.

Paragraph

("~")

9 of the Certificate of Incorporation of EMB lists 9

shareholders who were issued a total of200 shares of capital stock in EMB. Id. at 505.
4.

John F. Sengstack's ("John Sengstack") name does not appear in

~

9 of the

13 Certificate of Incorporation. Id. at 505.

14 The Incoporation or Clayton F. Summy Co. in Illinois in 1925
15

5.

Articles of Incorporation for a corporation known as Clayton F. Summy Co.

16 were filed with the Illinois Secretary of State on or about April 15, 1925. Ex. 20 at 518-523.

17 The 1931 Agreement between Clayton F. Summy and John Sengstack
18

6.

Clayton F. Summy ("Clayton Summy") and John Sengstack entered into an

19 agreement dated August 7, 1931. Ex. 92 at 1059-1068.
20
21

7.

Paragraph (b) of the "WHEREAS" clause of that Agreement stated that

"Summy intends to cause to be incorporated a new company under the laws of the State of

22 Delaware under the name of Clayton F. Summy Company... " Ex. 92 at 1060.
8.
Paragraph (b) of the "WHEREAS" clause of that Agreement stated that the
23
24 capitalization of the Delaware company would consist of 1,500 shares of Preferred Stock
25 with a par value of $100 per share ($150,000) and 50 shares of common stock of no par
26 value. Ex. 92 at 1060.
27

9.

Paragraph (b) of the "WHEREAS" clause of that Agreement stated that the

28 "Preferred Stock shall be entitled to dividends at the rate of six per cent per annum ... and that

Ex. 23 1 43

Ex. 23
535

Case 2:13-cv-04460-GHK-MRW Document 189-2 Filed 12/17/14 Page 8 of 73 Page ID
#:5303

1 said Preferred Stock shall be redeemable at any time at the option of the New Company [the
2

Delaware corporation], at par and accrued dividends upon thirty days' notice." Id.

3

10.

Paragraph (c) of the "WHEREAS" clause of that Agreement required Clayton

4

Summy to transfer all of the assets of Summy Co. (Illinois) to the Delaware company. Id. at

5

1061.

6

11.

In Paragraph 2 of that Agreement Clayton Summy agreed to sell and John

7

Sengstack agreed to purchase the 50 shares of common stock in the Delaware company. Id.

8

at 1063.

9

12.

In Paragraph 3 of that Agreement John Sengstack agreed that immediately after

10

he purchased the 50 shares of the common stock in the Delaware company, he would cause

11

the capitalization of the Delaware company to be increased to 1,500 shares of common stock

12

and John Sengstack agreed to purchase the additional 1,450 shares. Id.

13

13.

Therefore, pursuant to the Agreement, after the Delaware corporation was

14

formed the parties agreed that Clayton Summy would own 1,500 shares of Preferred Stock

15

and John Sengstack would own 1,500 shares of common stock in the Delaware corporation.

16

Id. at 1059-1063.

17

14.

Pursuant to the terms of the Agreement, the Delaware corporation could

18

redeem Clayton Summy's Preferred Shares at any time by paying Clayton Summy $150,000

19

plus accrued dividends. Id. at 1060.

20

The Incorporation orClarton F. Summy Co. in Delaware in 1931

21
22
23
24

15.

It is undisputed that Clayton F. Summy Co. was incorporated in the State of

Delaware on or about August 31, 1931. ("Summy (DE)"). Ex. 1 at ~ 68, Ex. 2 at ~ 68.
16.

It is undisputed that Summy (DE) is the corporation that filed the Copyright

Applications for E51988 and E51990. 1

25
26
27
28

In fact, the Summy (DE) was the only "Summy" corporation in existence in 1935
because the previous two Summy Corporations were dissolved in 1920 and 1933
respectively.

Ex. 23
- 244

Ex. 23
536

Case 2:13-cv-04460-GHK-MRW Document 189-2 Filed 12/17/14 Page 9 of 73 Page ID
#:5304

1

17.

As discussed above, pursuant to the August 7, 1931 Agreement between

2

Clayton Summy and John Sengstack, the parties agreed that Clayton Summy owned 1,500

3

shares of Preferred Stock and John Sengstack owned 1,500 shares of common stock in

4

Summy (DE). Ex. 92 at 1059-1063.

5
6
7

18.

Clayton

S~mmy

died on February 10, 1932, shortly after the incorporation of

Summy (DE). Ex. 93 at 1070.
19.

There is no documentation in the record that proves Summy (DE) paid Clayton

8

Summy $150,000 plus accrued dividends to redeem Clayton Summy's Preferred Shares prior

9

to Clayton Summy's death on February 10, 1932 or at any time thereafter.

10
11
12
13
14
15
16
17

The Amendment to EMB in 1948
20.

Articles of Amendment to EMB were filed with the Illinois Secretary of State

on or about June 2, 1948. Ex. 59 at 744-748.
21.

Article Third of the Articles of Amendment states that 400 shares of common

in EMB were outstanding at the time of the 1948 Amendment. ld. at 746.
22.

However, as discussed in

~

2 supra, only 200 shares of EMB' s common stock

were issued at the time of EMB ' s incorporation.
23.

There is no documentation in the record that proves who was issued the

18

additional 200 shares of common stock ·between EMB' s 1923 incorporation and the 1948

19

amendment.

20

24.

There is no documentation in the record that proves when the additional 200

21

shares of EMB common stock were issued between EMB' s 1923 incorporation and the 1948

22

amendment.

23

25.

There is no documentation in the record that proves that any of the original

24

EMB shareholders transferred any of their shares between EMB' s 1923 incorporation at the

25

1948 amendment.

26

26.

There is no documentation in the record that proves who owned the 400 shares

27

ofEMB's common stock outstanding at the time of the 1948 amendment.

28

The Summy (DE) Name Changes

Ex. 23
-345

Ex. 23
537

Case 2:13-cv-04460-GHK-MRW Document 189-2 Filed 12/17/14 Page 10 of 73 Page ID
#:5305

1
2
3
4
5
6
7
8
9
10
11

27.

On January 23, 1956, Summy (DE) filed a Certificate of Amendment of

Certificate of Incorporation with the Delaware Secretary of State. Ex. 62 at 760-762.
28.

The Certificate of Amendment changed the name of Summy Co. to Summy

Publishing Company ("SPC"). Id. at 760.
29.

On September 27, 1957, SPC filed a Certificate of Amendment of Certificate of

Incorporation with the Delaware Secretary of State. Ex. 65 at 800-802.
30.

The Certificate of Amendment changed the name of SPC to Summy-Birchard

Publishing Company (SBPC). Id. at 800.
31.

On December 22, 1961, SBPC filed a Certificate of Amendment of Certificate

of Incorporation with the Delaware Secretary of State. Ex. 66 at 804-806.
32.

The Certificate of Amendment changed the name of SBPC to Summy

12

("Summy"). Id. at 804.

13

The Death of John Sengstack on October 11.1970

14

33.

John F. Sengstack died on October 11, 1970. Ex. 69 at 816.

15

34.

There is no documentation in the record that proves who inherited John

16

Sengstack's property, including any shares of stock that he may have owned in any

17

corporation, including Summy, the Delaware corporation originally incorporated in 1931 as

18

the Clayton F. Summy Co.

19

The Amendment to EMB in 1973

20
21
22
23
24

35.

On July 31, 1973, EMB filed Articles of Amendment to the Articles of

Incorporation ofEMB with Illinois Secretary of State. Ex. 70 at 818-820.
36.

Article Third of the Articles of Amendment states that 367 shares of common

stock in EMB were outstanding at the time of the amendment. Id. at 820.
37.

Article Third of the Articles of Amendment also states that "[p]reviously there

25

were 400 shares issued and outstanding, 33 of which were reacquired by the corporation,

26

held as treasury stock, and subsequently retired." Id.

27
28

38.

There is no documentation in the record that proves who owned the 367

outstanding shares of common stock in EMB at the time of the 1973 amendment.

Ex. 23
-446

Ex. 23
538

Case 2:13-cv-04460-GHK-MRW Document 189-2 Filed 12/17/14 Page 11 of 73 Page ID
#:5306

1

39.

There is no documentation in the record that proves when and which

2

shareholder(s) EMB acquired'the 33 retired shares from.

3

The 1973 Merger between Summy (Delaware) and EMB (Illinois)

4
5
6

40.

On December 28, 1973, EMB filed Articles of Merger with the Illinois

Secretary of State to merge with Summy, the Delaware corporation. Ex. 71 at 824-828.
41.

Article Three of the Articles of Merger stated that "[t]he name of the surviving

7

corporation shall be Summy-Birchard Company and it shall be governed by the laws of the

8

State of Illinois". Id. at 825.

9
10
11
12

42.

Article Four of the Articles of Merger stated that "[t]he plan of merger is as

follows: See Exhibit A attached hereto and made a part hereof." Ex. 71 at 825.
43.

The first sentence of the Plan and Agreement of Merger states that:

15

THIS PLAN and AGREEMENT OF MERGER is made and entered into this
21st day of December, 1973,by and between SUMMY-BIRCHARD
COMPANY, a Delaware corporation (hereinafter called "SUMMY") and
EDUCATIONAL MUSIC BUREAU, an Illinois Corporation (hereinafter called
"EMB"). Ex. 72 at 830.

16

44.

13
14

Paragraph 1 of the Plan and Agreement of Merger states, in relevant part, that

17

"SUMMY shall be merged into EMB as a single corporation which shall be the surviving

18

corporation." Id.

19

45.

20
21
22
23

Article Five of the Articles of Merger states that 367 shares of common stock in

EMB were outstanding at the time of the merger. Ex. 71 at 826.
46.

Article Five of the Articles of Merger states that 1,500 shares of common stock

in Summy were outstanding at the time of the merger. Id.
47.

As discussed in Paragraphs 13-14, supra, Summy (fka Clayton F. Summy Co.)

24

was originally capitalized with 1,500 shares of Preferred Stock with a par value of $10 each

25

($150,000 total) and 1,500 shares of common stock. According to the August 7, 1931

26

Agreement between Clayton F. Summy and John Sengstack, Summy owned the 1,500 shares

27
28

of Preferred Stock and John Sengstack owned the 1,500 shares of common stock.

Ex. 23
-547

Ex. 23
539

Case 2:13-cv-04460-GHK-MRW Document 189-2 Filed 12/17/14 Page 12 of 73 Page ID
#:5307

1

48.

There is no documentation in the record to prove that the Delaware corporation

2

paid, $150,000 plus accrued dividends to Clayton Summy to redeem the 1,500 shares of

3

Preferred Stock that were owned by Clayton Summy prior to or after Clayon Summy's death

4

on February 10, 1932, which was just a few months after Clayton F. Summy Co. (Delaware)

5

was incorporated.

6

49.

7
8

There is no documentation in the record to prove who owned the 367 shares of

EMB at the time of the merger.
50.

Even if the Defendants were able to prove that the Delaware corporation paid

9

Clayton F. Summy (or his estate) the $150,000 plus accrued dividends to redeem his

10

Preferred Shares, there is no documentation in the record to prove who owned the 1,500

11

shares of Summy, the Delaware corporation, at the time of the merger because John

12

Sengstack, who entered into the 1931 agreement with Clayton Summy to purchase the 1,500

13

shares of Clayton F. Summy Co. (Delaware), died in 1970 and there is no documentation in

14

the record to prove who inherited John Sengstack's shares of the Delaware corporation.

15

51.

Paragraph 6(a) of the Plan and Agreement of Merger ("Merger Plan") stated

16

that "on the effective date of the merger and without further act on the part of either the

17

corporation or its stockholders, 2.712 shares of the common stock, without par value, of

18

SUMMY issued and outstanding on the effective date of the merger shall be converted into

19

one share [illegible] ofEMB". Ex. 72 at 831.

20

52.

Pursuant to Paragraph 6(a) of the Merger Plan, the 1,500 shares of common

21

stock in Summy were converted into 553 shares of EMB common stock on the effective date

22

of the merger (1,500/2.712 = 553). Id.

23

53.

Therefore, after the effective date of the merger, 920 shares of common stock

24

in EMB were outstanding: 367 shares of common stock owned by the EMB shareholders

25

prior to the effective date of the merger and 553 shares of common stock in EMB that were

26

issued to the shareholders of Summy after the effective date of the merger.

27
28

54.

There is no documentation in the record to prove who owned any of the 920

outstanding shares of common stock in Summy (flk/a EMB) after the merger.

Ex. 23
- 648

Ex. 23
540

Case 2:13-cv-04460-GHK-MRW Document 189-2 Filed 12/17/14 Page 13 of 73 Page ID
#:5308

1
2
3

The 1976 Incor oration and Mer er
orporatlOn
55.

0

Illinois Cor oration into a W omin

New Summy-Birchard Company ("New Summy") was incorporated in the

State of Wyoming on March 8, 1976. Ex. 74 at 848, Ex. 75 at 855, Ex. 76 at 859.

4

56.

There is no documentation in the record to prove who owned New Summy.

5

57.

On March 19, 1976, New Summy filed Articles of Merger with the Wyoming

6
7
8
9

Secretary of State. Ex. 75 at 854-857.
58.

Article One of the Articles of Merger states that:

The names of the corporations proposing to merge and the names of the States under
the law of which such corporations are organized, are as follows:

10

SUMMY

Illinois

11

NEW SUMMY

Wyoming

12
13

Ex. 75 at 855.
59.

Article Three of the Articles of Merger states that "[t]he name of the surviving

14

corporation shall be SUMMY-BIRCHARD COMPANY and it shall be governed by the laws

15

of the State of Wyoming." ld.

16
17
18
19
20

60.

Article Five of the Articles of Merger states that 953 shares of common stock in

Summy (Illinois) were outstanding prior to the merger. ld. at 856.
61.

As discussed in Paragraphs 37-38, supra, after the effective date of the 1973

merger, 920 shares of common stock in Summy (Illinois) were outstanding.
62.

There is no documentation in the record that proves Summy (Illinois) issued 33

21

shares of common stock after the effective date of the 1973 merger until the time of the 1976

22

merger or to whom those shares were issued.

23
24
25

63.

Article Five of the Articles of Merger states that 10 shares of common stock in

New Summy (Wyoming) were outstanding prior to the merger. Ex. 75 at 856.
64.

There is no documentation in the record that proves who owned the 10 shares

26

of common stock in New Summy (Wyoming) that were outstanding prior to the merger or

27

what happened to those shares after the merger.

28

Ex. 23
-749

Ex. 23
541

Case 2:13-cv-04460-GHK-MRW Document 189-2 Filed 12/17/14 Page 14 of 73 Page ID
#:5309

1
2
3
4

5
6
7

8
9
10
11
12

65.

The Plan of Merger states that " ... the parties hereto agree that SUMMY-

BIRCHARD COMPANY, be merged into NEW SUMMY ... " Ex. 76 at 859-860.
66.

Paragraph C(l) of the Plan of Merger states that:

The shares of Common Stock of the surviving corporation, whether authorized
or issued on the effective date of the merger shall not be converted or
exchanged as a result of the merger, but upon said date all shares of Common
Stock of the surviving corporation theretofore authorized (whether issued or
unissued) shall be deemed to be shares of Common Stock of the surviving
corporation, and all such shares of the surviving corporation outstanding on the
effective date of the merger shall remain outstanding, shall be and be deemed
fully-paid and non-assessable and shall retain all rights to accrued and unpaid
dividends, if any.
[d at 860-861.
67.

Pursuant to Paragraph C(l) of the Plan of Merger, the owner(s) of the 10 shares

13

of common stock outstanding in New Summy (Wyoming) prior to the merger owned 10

14

shares of common stock of Summy (Wyoming) after the effective date of the merger. [d.

15

68.

16

Each share of Common Stock of the absorbed corporation issued and
outstanding on the effective date of the merger, and all rights in respect thereof,
shall, on said date, be converted into and exchanged for one share of the
presently authorized and unissued Common Stock of the surviving corporation.

17
18

Paragraph C(2) of the Plan of Merger states that:

19
20

Ex.76at861.

21

shares of common stock outstanding in Summy (Illinois) prior to the merger owned 953

22

shares of common stock of Summy (Wyoming) after the effective date of the merger. Id

23
24
25

69.

70.

Pursuant to Paragraph C(2) of the Plan of Merger, the owner(s) of the 953

There is no documentation in the record that proves who owned the 963 shares

of common stock in Summy (Wyoming) after the effective date of the merger.
71.

Summy (Wyoming) filed Articles of Amendment to Articles of Incorporation

26
27

with the Wyoming Secretary of State on November 9, 1978. Ex. 77 at 867-869

28

SUMCO Corporation. Id. at 867.

72.

The Articles of Amendment changed the name of Summy (Wyoming) to

Ex. 23
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1
2

73.

Paragraph Third of the Articles of Amendment state that 963 shares of common

stock were outstanding as of the date of the Amendment. Id. at 867.

3

74.

SUMCO Corporation (Wyoming) filed Articles of Amendment to Articles of

4

Incorporation dated May 1, 1979, with the Wyoming Secretary of State on an unknown date

5

in 1979. Ex. 78 at 871-872.

6
7

75.

(Wyoming) to Summy. Id. at 871.

8
9

76.
77.
78.

Pursuant to the Articles of Amendment, Summy changed its name to The Birch

Tree Group Ltd. Id. at 874.

14
15

Summy (Wyoming) filed Articles of Amendment to Articles of Incorporation

with the Wyoming Secretary of State on August 3, 1979. Ex. 79 at 874-875.

12
13

Paragraph Third of the Articles of Amendment state that 963 shares of common

stock were outstanding as of the date of the Amendment. Id.

10
11

The Articles of Amendment changed the name of SUMCO Corporation

79.

Paragraph Third of the Articles of Amendment state that 963 shares of common

stock were outstanding as of the date of the Amendment. Ex. 79 at 874.

16

80.

The Birch Tree Group Ltd. filed Articles of Amendment to Articles of

17

Incorporation with the Wyoming Secretary of State on October 12, 1979.

18

878.

19
20
21
22
23
24
25
26
27
28

81.

Ex. 80 at 877-

Pursuant to the Articles of Amendment, The Birch Tree Group Ltd. changed its

name to Birch Tree Group Ltd. Id. at 877.
82.

Paragraph Third of the Articles of Amendment state that 963 shares of common

stock were outstanding as of the date of the amendment. Id.
83.

Birch Tree Group Ltd. filed Articles of Amendment to Articles of Incorporation

with the Wyoming Secretary of State on December 27, 1988. Ex. 82 at 949-951.
84.

Pursuant to the Articles of Amendment, Birch Tree Group Ltd. changed its

name to Summy-Birchard, Inc. Id. at 949.
85.

Paragraph 4 of the Articles of Amendment state that 953 shares of common

stock were outstanding as of the date of the amendment. Id. at 949.

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86.

There is no documentation in the record that proves how the outstanding

2

common stock of the Wyoming corporation was reduced from 963 outstanding shares as of

3

October 12, 1979 to 953 outstanding shares as of December 27, 1988.

4

87.

In a Stock Power dated January 3, 1989, David K. Sengstack purported to

5

transfer 953 shares of Summy-Birchard, Inc. (formerly known as Birch Tree Group

6

Limited), a Wyoming corporation to Warner/Chappell Music, Inc. Ex. 84 at 955.
88.

7

The Stock Power was accompanied by a Stock Certificate dated February 12,

8

1986 that shows David K. Sengstack as the owner of 953 shares of common stock in Birch

9

Tree Group Limited. Ex. 83 at 953.

10
11

89.

State of Wyoming. Ex. 85 at 957.

12
13

90.

91.

On January 8, 2010, Summy-Birchard, Inc. filed Articles of Merger with the

Wyoming Secretary of State. Id. at 957-961.

16
17

On September 14,2009, Summy-Birchard, Inc. was incorporated in the State of

Wyoming. Ex. 85 at 957.

14
15

On May 31, 2006, Summy-Birchard, Inc. was administratively dissolved by the

92.

Pursuant to the Articles of Merger, the Summy-Birchard, Inc. dissolved in 2006

was merged into Summy-Birchard, Inc. that was incorporated on September 14,2009. Id.

18

I hereby declare under the penalty of perjury under the laws of the United States that

19

the foregoing statements are true and correct to the best of my knowledge, information, and

20

belief.

21

Executed this 25st day of Novembel{LI 4, at New York, NT Y ~rk.

.

BY:~~~·~~

22
23

RANDALL S. NEWMAN

24
25
26
27
28

WARNERlCHAPPELL:21350v3.RSN.decl.

Ex. 23
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Ex. 23
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EXHIBIT 44
[Jt. App'x at 3:652-653, Dkt. 189-3]

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Ex. 44
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Ex. 44
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