Rupa Marya v. Warner Chappell Music Inc

Filing 316

ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT by Judge George H. King granting 301 MOTION for Settlement: A Final Approval Hearing shall be held before this Court on June 27, 2016 at 9:30 A.M. The Court also sets the following dates and deadlines: (see document for further details). (bm)

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MAR 07, 2016

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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)
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Plaintiffs,
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v.
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Warner/Chappell Music, Inc., et al. )
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Defendants.
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_______________________________ )
Good Morning to You Productions
Corp., et al.

CASE NO. CV 13-4460-GHK
(MRWx)
ORDER GRANTING MOTION FOR
PRELIMINARY APPROVAL OF
CLASS ACTION SETTLEMENT

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WHEREAS, a putative class action captioned Good Morning to You Productions

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Corp., et al. v. Warner/Chappell Music, Inc., et al., Case No. CV 13-04460-GHK

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(MRWx), relating to the copyright to the musical work entitled Happy Birthday to You!

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with the lyrics, “Happy Birthday to you, Happy Birthday to you, Happy Birthday dear

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____, Happy Birthday to you!” (referred to as “the Song”), is pending before the Court,

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and

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WHEREAS, Good Morning to You Productions Corp., Robert Siegel, Rupa Marya

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d/b/a Rupa & The April Fishes, and Majar Productions, LLC (collectively, the

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“Plaintiffs” or “Class Representatives”), individually and on behalf of the Settlement

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Class (defined below); Defendants Warner/Chappell Music, Inc., and Summy-Birchard

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Inc. (jointly, “Defendants” or “Warner/Chappell”); and Intervenors the Association for

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Childhood Education International and the Hill Foundation, Inc. (jointly, “Intervenors”)

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(Plaintiffs, Defendants and Intervenors, collectively, the “Parties”) have entered into a

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Settlement Agreement (“Settlement Agreement”), which, together with the exhibits

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attached thereto, sets forth the terms and conditions for a proposed settlement and

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dismissal of the Action with prejudice as to Defendants for the claims of the Settlement

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Class upon the terms and conditions set forth in the Settlement Agreement, and the Court

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having read and considered the Settlement Agreement and exhibits attached thereto;

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This matter coming before the Court upon the agreement of the Parties and the

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motion of Plaintiffs seeking preliminary approval of the Settlement Agreement, good

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cause being shown, and the Court being fully advised in the premises,

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IT IS HEREBY ORDERED, DECREED, AND ADJUDGED AS FOLLOWS:

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1. Terms and phrases in this Order shall have the same meaning as ascribed to

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them in the Settlement Agreement.

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Settlement Class Certification for Settlement Purposes Only

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2. A class (the “Settlement Class”) is certified for settlement purposes only.

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a. The Settlement Class is defined to mean:

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(a) all Persons who, at any time since September 3, 1949, directly paid Defendants,

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Intervenors, any of their predecessors-in-interest (or any of the Affiliates of any of the

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foregoing) for each such Person’s use of the Song;

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(b) all Persons who, at any time since September 3, 1949, directly paid HFA,

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Alfred or Faber as agents for Defendants or their predecessors-in-interest for each such

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Person’s use of the Song; or

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(c) the American Society of Composers, Authors and Publishers (ASCAP), foreign

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collecting societies (such as, for example, SACEM and GEMA), and any other Person

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who at any time since September 3, 1949 has issued blanket licenses covering the Song,

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but only for the amounts allocated to the Song by such Persons and directly paid to

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Defendants or their predecessors-in-interest (or either’s Affiliates) pursuant to such

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blanket licenses; or

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(d)(i) digital rights aggregation services (such as, for example, Music Reports,

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Inc.), (ii) foreign sub-publishers (such as, for example, EMI Music Publishing Ltd.), and

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(iii) Persons not enumerated in sub-paragraph (b), (c), or items (i)-(ii) of this

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sub-paragraph (d) who directly paid Defendants, Intervenors, any of their

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predecessors-in-interest (or any of the Affiliates of any of the foregoing) on behalf of

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other Persons for such other Persons’ use of the Song at any time since September 3,

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1949, but only to the extent that the Persons listed in items (i)-(iii) of this sub-paragraph

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(d) directly paid Defendants, Intervenors, any of their predecessors-in-interest (or any of

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the Affiliates of any of the foregoing) amounts that were comprised of payments by or on

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behalf of other Persons for such other Persons’ use of the Song.

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In the case of payments referenced in sub-paragraphs (c) and (d), the Persons

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enumerated in sub-paragraphs (c) and (d) who made the direct payments to Defendants,

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Intervenors, any of their predecessors-in-interest (or any of the Affiliates of any of the

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foregoing) are part of the Settlement Class, whereas the Persons on whose behalf such

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Persons obtained the rights to use the Song (whether through a blanket license or

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otherwise) are not part of the Settlement Class.
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For purposes of this definition, the term “directly paid” includes payments made by

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a Person’s accountant, attorney, business manager or similar agent acting for such Person

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solely in the capacity of remitting payment and not for the purpose of providing licensing

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services to other Persons. In the case of a direct payment by a Person’s accountant,

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attorney, business manager or similar agent as described in the preceding sentence, said

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Person on whose behalf the payment is made is the Person in the Settlement Class

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(subject to all other requirements of this definition), and that Person’s accountant,

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attorney, business manager or similar agent as described in the preceding sentence is not

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in the Settlement Class by virtue of that payment.

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Excluded from the Settlement Class are the following: (I) Defendants, their

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Affiliates, and HFA, and their respective officers, directors and employees; (II)

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Intervenors, their subsidiaries, and Affiliates and their respective officers, directors,

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employees; and (III) Class Counsel, Defendants’ Counsel, and Intervenors’ Counsel. For

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the avoidance of doubt, Alfred and Faber are part of the Settlement Class under

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sub-paragraph (a) with respect to their own direct licenses of the Song from Defendants

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or their predecessors-in-interest (or either’s Affiliates), but only the sublicensees of

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Alfred and Faber are part of the Settlement Class under sub-paragraph (b).

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b. The Settlement Class consists of thousands of persons or entities, there

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are questions of law or fact common to the Settlement Class, Plaintiffs’ claims are typical

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of those of the Settlement Class, and Plaintiffs will fairly and adequately protect the

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interests of the Settlement Class. Accordingly, the requirements for class certification

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under Fed. R. Civ. P. 23(a) are satisfied.

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c. In addition, the questions of law or fact common to the Settlement Class

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predominate over any individual questions, and the class action mechanism is superior to

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other available methods for the fair and efficient adjudication of this controversy.

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Consequently, the Settlement Class satisfies the requirements of Fed. R. Civ. P. 23(b)(3).

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3. The Court hereby appoints Plaintiffs Good Morning to You Productions Corp.,

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Robert Siegel, Rupa Marya d/b/a Rupa & The April Fishes, and Majar Productions, LLC

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as Class Representatives.

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4. The Court hereby appoints Wolf Haldenstein Adler Freeman & Herz LLP

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(“Wolf Haldenstein”); Randall S. Newman PC; Hunt, Ortmann, Palffy, Nieves, Darling

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& Mah, Inc.; Donahue Fitzgerald, LLP; and Glancy Prongay & Murray, LLP as Class

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Counsel and Wolf Haldenstein as Lead Class Counsel.

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Preliminary Approval

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5. Plaintiffs have moved the Court for an order approving the settlement of the

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Action in accordance with the Settlement Agreement, which, together with the documents

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incorporated therein, sets forth the terms and conditions for a proposed settlement and

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dismissal of the Action with prejudice against Defendants, and the Court having read and

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considered the Settlement Agreement and having heard from the Parties and being fully

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advised in the premises, hereby finds and concludes as follows:

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6. This Court has jurisdiction over the subject matter of this action and over all
Parties to the Action, including all members of the Settlement Class.

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7. Subject to the Final Approval Hearing, the Settlement Agreement falls within

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the range of possible approval as fair, reasonable, adequate, and in the best interests of

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the Settlement Class. The Settlement Agreement substantially fulfills the purposes and

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objectives of the class action, and provides beneficial relief to the Settlement Class. The

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Settlement Agreement: (a) is the result of serious, informed, noncollusive arm’s length

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negotiations involving experienced counsel familiar with the legal and factual issues of

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this case and made with the assistance of mediator David Rotman, Esq., of Gregorio,

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Haldeman & Rotman; (b) is sufficient to warrant notice of the Settlement Agreement and

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the Final Approval Hearing to the Settlement Class; (c) meets all applicable requirements

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of law, including Federal Rule of Civil Procedure 23, and the Class Action Fairness Act

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(“CAFA”), 28 U.S.C. § 1715; and (d) is not an admission of liability by Defendants or

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Intervenors.
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Notice and Administration

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8. Rust Consulting, Inc., is hereby appointed as Settlement Administrator and shall

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perform all the duties of the Settlement Administrator as set forth in the Settlement

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Agreement and this Order.

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9. The Notice and Notice Plan as set forth in the Settlement Agreement are

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reasonably calculated to, under all circumstances, apprise the members of the Settlement

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Class of the pendency of this action, certification of the Settlement Class for settlement

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purposes only, the terms of the Settlement Agreement, and their right to object to the

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Settlement or to exclude themselves from the Settlement Class. The Notice and Notice

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Plan are consistent with the requirements of Rule 23 and due process, and constitute the

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best notice practicable under the circumstances.

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10. The Court therefore approves the Notice and the Notice Plan, including the

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Mail Notice and Publication Notice attached as Exhibits 1 and 2, respectively, to this

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Order. The Court also approves the Claim Form, attached as Exhibit 3 to this Order, and

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claims administration procedures set forth in the Settlement Agreement. The Parties may,

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by agreement, revise the Mail Notice, Publication Notice, and/or Claim Form in ways that

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are not material, or in ways that are appropriate to update those documents for purposes

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of accuracy or formatting.

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11. Pursuant to Section 5 of the Settlement Agreement, the Notice Plan shall be

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implemented as follows: Within five (5) days of the entry of this Order, Defendants shall

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provide the Settlement Class Member Address List to the Settlement Administrator.

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Within twenty-one (21) days of the entry of this Order,the Settlement Administrator shall

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mail the Mail Notice, substantially in the form of Exhibit 1 to this Order, and the Claim

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Form, substantially in the form attached to this Order as Exhibit 3, to each Settlement

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Class Member identified in the Settlement Class Member Address List.

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12. Within five (5) days after mailing the Mail Notice, the Settlement

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Administrator shall cause the Publication Notice, substantially in the form attached to this

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Order as Exhibit 2, to appear once each in The Hollywood Reporter (in one-eighth page
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size), the U.S. edition of Variety (in one-eighth page size), and Billboard (in one-eighth

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page size).

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13. Within five (5) days after entry of this Order, the Settlement Administrator

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shall publish the Website Notice, substantially in the form attached to this Order as

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Exhibit 1, through the Settlement Website. The Settlement Website shall be developed,

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hosted, and maintained by the Settlement Administrator through the Final Settlement

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Date.

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14. The Defendants shall have complied with the requirements of 28 U.S.C.

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1715 and served notice of the proposed Settlement Agreement upon the appropriate

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government officials within (10) days after the Settlement Agreement was filed with the

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Court.

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15. Settlement Class Members who wish to receive a payment under the

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Settlement Agreement must complete and submit a timely and valid Period One Claim

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Form and/or Period Two Claim Form. All Claims must be postmarked or received by the

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Settlement Administrator on or before the Claims Deadline, which is hereby set as sixty

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(60) days after the Notice Date.

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Exclusion

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16. Persons or entities who would otherwise be in the Settlement Class but who

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wish to exclude themselves from the Settlement Class for purposes of this Settlement

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may do so by submitting a request for exclusion to the Settlement Administrator on or

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before the Objection/Exclusion Deadline, which is hereby set assixty (60) days after the

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Notice referred to in Paragraph 22 of this Order. The request for exclusion must comply

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with the exclusion procedures set forth in the Settlement Agreement and include the case

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number of the Action; such person or entity’s name, address, email address (if

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applicable), phone number and signature (or the signature of an authorized representative

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of such person or entity); the date(s) of all direct payment(s) to Defendants or

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Defendants’ predecessors-in-interest or either’s Affiliates or HFA, Alfred or Faber for

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use of the Song, and the dollar amount(s) paid to Defendants or Defendants’
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predecessors-in-interest or either’s Affiliates or HFA, Alfred or Faber for use of the

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Song; and a statement that such person or entity wishes to be excluded from the

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Settlement Class for purposes of this Settlement. A request for exclusion may not request

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exclusion of more than one Settlement Class Member.

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17. Any member of the Settlement Class who timely requests exclusion consistent

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with these procedures shall not: (i) be bound by the Final Order and Judgment; (ii) be

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entitled to relief under the Settlement Agreement; (iii) gain any rights by virtue of the

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Settlement Agreement; or (iv) be entitled to object to any aspect of the Settlement

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Agreement. However, members of the Settlement Class who fail to submit a valid and

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timely request for exclusion shall be bound by all terms of the Settlement Agreement and

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the Final Order and Judgment, regardless of whether they have otherwise requested

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exclusion from the Settlement Class.

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Objections

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18. Any member of the Settlement Class who has not filed a timely and valid

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request for exclusion may object to the granting of final approval to the Settlement

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Agreement. Settlement Class Members may object on their own, or may do so through

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separate counsel at their own expense.

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19. Any Settlement Class Member who intends to object to this Settlement

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Agreement must present the objection in writing, which must be personally signed by the

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objector and include: (a) the objector’s name, address, email address, and contact phone

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number; (b) an explanation of the basis upon which the objector claims to be a Settlement

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Class Member; (c) all grounds for the objection, including any supporting law or

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evidence, if any; (d) the name and contact information of any and all attorneys

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representing the objector in connection with the preparation or submission of the (the

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“Objecting Attorneys”); and (e) a statement indicating whether the objector intends to

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appear at the Final Approval Hearing (either personally or through counsel who files an

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appearance with the Court in accordance with the Court’s Local Rules). An objector or

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the Objector’s counsel shall not be permitted to speak at the Final Approval Hearing
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unless notice of such intent (as described in (e) above) is either timely filed with or

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mailed to the Court.

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20. All objections and any papers submitted in support of such objections must be

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submitted to the Court on or before the Objection/Exclusion Deadline either by mailing

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them to, or by filing them in person at, the United States District Court for the Central

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District of California, Western Division in Los Angeles, California, except that any

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objection made by a Settlement Class Member represented by counsel must be filed

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through the Court’s Case Management/Electronic Case Filing (CM/ECF) system.

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21. Any Settlement Class Member who fails to timely mail or file a written

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objection with the Court in accordance with the terms of this Settlement Agreement and

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as detailed in the Notice shall not be permitted to object to the Settlement at the Final

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Approval Hearing, and shall be foreclosed from seeking any review of the Settlement by

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appeal or other means and shall be deemed to have waived his, her or its objections and

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be forever barred from making any such objections in the Action or any other action or

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proceeding.

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Final Approval Hearing

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22. A Final Approval Hearing shall be held before this Court on June 27, 2016 at

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9:30 A.M. in Courtroom 650 of the United States District Court for the Central District of

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California, located at 255 East Temple Street, Los Angeles, CA 90012, to consider: (a)

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whether the proposed settlement of the Action on the terms and conditions provided for

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in the Settlement Agreement is fair, reasonable and adequate and should be given final

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approval by the Court; (b) whether a final judgment should be entered; (c) whether to

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award payment of attorneys’ fees and expenses to Class Counsel and in what amount; (d)

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whether to award administration costs to the Settlement Administrator and in what

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amount; and (e) whether to award payment of incentive awards to the Class

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Representatives and in what amount. The Court may adjourn the Final Approval Hearing

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without further notice to Class Members. The Court also sets the following dates and

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deadlines:
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Deadline for Dissemination of
Notice by Settlement
Administrator (21 days after
Preliminary Approval entered
by Court) (“Notice Date”)
Deadline for Class Counsel to
File Settlement and Fee Brief
for Final Approval
Deadline for Defendants to
Object to Class Counsel’s Fee
and Expense Petition
Deadline for Settlement Class
Members to Submit Claims
Deadline for Settlement Class
Members to Object to
Settlement or Opt Out of
Settlement Class
Deadline for Class Counsel to
File Reply Brief in Further
Support of Settlement and Fee
Brief for Final Approval
Hearing
Deadline for Settlement
Administrator to File
Declaration re: Claims
Administration
Final Approval Hearing

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March 28, 2016

April 27, 2016
May 27, 2016
May 27, 2016
May 27, 2016

June 13, 2016

June 20, 2016

June 27, 2016 at 9:30 A.M.

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Further Matters

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23. In order to protect its jurisdiction to consider the fairness of the Settlement

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Agreement and to enter a Final Order and Judgment having binding effect on all

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Settlement Class Members, the Court hereby enjoins all members of the Settlement Class,

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and anyone who acts or purports to act on their behalf, from pursuing any of the Released

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Claims.

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24. Settlement Class Members shall be bound by all determinations and judgments

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in the Action concerning the Action and/or Settlement Agreement, whether favorable or

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unfavorable.

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25. All discovery and pretrial proceedings and deadlines are stayed and suspended

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until further notice from the Court, except for such actions as are necessary to implement

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the Settlement Agreement and this Order.

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26. In the event that the Settlement Agreement is terminated pursuant to the

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provisions of the Settlement Agreement, then (a) the Settlement Agreement, this

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Preliminary Approval Order, and the Final Order and Judgment (if applicable) (including

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but not limited to the certification of the Settlement Class, the appointment of Plaintiffs as

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Class Representatives, and the appointment of Class Counsel) shall be vacated and shall

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be null and void, shall have no further force and effect with respect to any Party in this

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Action, and shall not be used in this Action or in any other proceeding for any purpose;

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(b) this action will revert to the status that existed before the Settlement Agreement’s

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execution date; (c)(i) no term or draft of the Settlement Agreement, (ii) nor any part of

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the Parties’ settlement discussions, negotiations, or documentation (including any

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declaration or brief filed in support of the motion for preliminary approval or motion for

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final approval), (iii) nor any rulings regarding class certification for settlement purposes

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(including the Preliminary Approval Order and, if applicable, the Final Order and

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Judgment), will have any effect or be admissible into evidence for any purpose in the

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Action or any other proceeding.

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27. The Court may, for good cause, extend any of the deadlines set forth in this

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Order without further notice to the Settlement Class Members. The Final Approval

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Hearing may, from time to time and without further notice to the Settlement Class

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Members, be continued by order of the Court.

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IT IS SO ORDERED.

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DATED: 3/7/16

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_______________________________

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GEORGE H. KING
Chief United States District Judge

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