Rupa Marya v. Warner Chappell Music Inc

Filing 322

NOTICE OF MOTION AND MOTION for Settlement Approval of Proposed Class Action Settlement Plaintiffs' Notice of Motion and Motion for Final Approval of Proposed Class Action Settlement; Memorandum of Points and Authorities in Support Thereof filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. Motion set for hearing on 6/27/2016 at 09:30 AM before Judge George H. King. (Attachments: # 1 Declaration of Norman Swett, # 2 Proposed Order) (Manifold, Betsy)

1 BETSY C. MANIFOLD (182450)
[e-mail]
2 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
3 750 B Street, Suite 2770
San Diego, CA 92101
4 Telephone: [phone]
Facsimile: 619/234-4599
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Lead Counsel for Plaintiffs
6 and the Settlement Class
7 [ADDITIONAL COUNSEL APPEAR
ON SIGNATURE PAGE]
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA 10
WESTERN DIVISION
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12 GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,
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Plaintiffs,
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v.
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WARNER/CHAPPELL MUSIC,
16 INC., et al.,
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Defendants.

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Lead Case No. CV 13-04460-GHK (MRWx)
PLAINTIFFS’ NOTICE OF MOTION
AND MOTION FOR FINAL
APPROVAL OF PROPOSED CLASS
ACTION SETTLEMENT;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
THEREOF
Date:
Time:
Room:
Judge:

June 27, 2016
9:30 a.m.
650
Hon. George H. King,
Chief Judge

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TO THE COURT, ALL PARTIES, AND THEIR RESPECTIVE

2 ATTORNEYS OF RECORD:
3

PLEASE TAKE NOTICE that on June 27, 2016, at 9:30 a.m., or as soon

4 thereafter as this matter may be heard before the Honorable George H. King in
5 Courtroom 650 at the Edward R. Roybal Federal Building, 225 E. Temple Street,
6 Los Angeles, California 90012, plaintiffs Good Morning To You Productions Corp.,
7 Robert Siegel, Rupa Marya d/b/a Rupa & The April Fishes, and Majar Productions,
8 LLC, will respectfully move the Court to grant final approval of the proposed
9 settlement (the “Settlement”) of this class action. Specifically, Plaintiffs respectfully
10 request that the Court: (a) enter the [Proposed] Final Order and Judgment submitted
11 herewith; (b) confirm certification of the Settlement Class (conditionally certified in
12 the Court’s Preliminary Approval Order; and (c) grant final approval to the
13 Settlement of the terms and conditions set forth in the Revised Class Action
14 Settlement Agreement entered into by the Parties on March 2, 2016, which was
15 preliminarily approved in the Preliminary Approval Order.
16

This Motion is made pursuant to the Court’s Preliminary Approval Order,

17 entered on March 7, 2016. Dkt. 316. Defendants Warner/Chappell Music, Inc. and
18 Summy-Birchard, Inc. and Intervenors the Association for Childhood Education
19 International and the Hill Foundation, Inc. do not oppose this Motion. This Motion
20 is based upon this Notice of Motion and Motion for Final Approval of Proposed
21 Class Action Settlement, Plaintiffs’ Memorandum of Points and Authorities in
22 Support Thereof, the Declaration of Mark C. Rifkin, the Revised Class Action
23 Settlement Agreement, the Fifth Amended Complaint, the accompanying
24 declarations of Plaintiffs and Plaintiffs’ Counsel, any reply in further support, oral
25 ///
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1 argument of counsel, the complete Court files and record in the above-captioned
2 matter, and such additional matters as the Court may consider.
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Respectfully submitted,

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Dated: April 27, 2016

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP

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By:

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/s/ Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
RANDALL S. NEWMAN (190547)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

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Lead Counsel for Plaintiffs
and the Settlement Class

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HUNT ORTMANN PALFFY
NIEVES DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]
Facsimile 626/796-0107
Facsimile: 212/797-3172

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DONAHUE FITZGERALD LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

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GLANCY PRONGAY &
MURRAY LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160
Attorneys for Plaintiffs

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TABLE OF CONTENTS

1
2 I. 
3 II. 
4
5
6

INTRODUCTION ............................................................................................. 1 
BACKGROUND AND SUMMARY OF THE LITIGATION ........................ 4 

III. 

MEDIATION EFFORTS .................................................................................. 8 

IV. 

REASONS FOR THE PROPOSED SETTLEMENT ....................................... 9 

V. 

FINAL APPROVAL SHOULD BE GRANTED ........................................... 10 

7

A. 

Standards for Final Settlement Approval.............................................. 10 

B. 

The Excellent Results Achieved Strongly Support Final
Approval................................................................................................ 12 

C. 

The Risk, Expense, Complexity, and Likely Duration of
Continued Litigation Strongly Supports Final Approval...................... 15 

12

D. 

The Extent of Discovery Completed and the Advanced Stage of
the Action Strongly Support Final Settlement Approval...................... 17 

13

E. 

The Experience and Views of Counsel Favor Approval ...................... 19 

F. 

The Reaction of the Class Also Favors Final Approval ....................... 21 

G. 

The Plan of Allocation is Fair and Reasonable .................................... 22 

8
9
10
11

14
15
16

VI. 

CONCLUSION ............................................................................................... 24 

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1

TABLE OF AUTHORITIES

2

Cases 
Boyd v. Bechtel Corp.,
3
485 F. Supp. 610 (N.D. Cal. 1979) ................................................................ 17, 19
4
Browning v. Yahoo! Inc.,
No. C04-01463 HRL, 2007 U.S. Dist.
5
LEXIS 86266 (N.D. Cal. Nov. 16, 2007) ............................................................ 11
6
Ellis v. Naval Air Rework Facility,
87 F.R.D. 15 (N.D. Cal. 1980), aff’d, 661 F.2d 939 (9th Cir. 1981) ............. 11, 19
7
8 Fisher Bros. v. Cambridge-Lee Indus., Inc.,
630 F. Supp. 482 (E.D. Pa. 1985) ........................................................................ 19
9
Girsh v. Jepson,
10
521 F.2d 153 (3d Cir. 1975) ................................................................................. 15
11 In re Heritage Bond Litig.,
No. 02-ML-1475 DT, 2005 U.S. Dist.
12
LEXIS 13555 (C.D. Cal. June 10, 2005) ............................................................. 10
13 In re MicroStrategy, Inc. Sec. Litig.,
148 F. Supp. 2d 654 (E.D. Va. 2001) .................................................................. 23
14
15 In re NVIDIA Corp. Derivative Litig.,
No. C-06-06110-SBA (JCS), 2009 U.S. Dist.
LEXIS 24973 (N.D. Cal. Mar. 18, 2009)............................................................. 15
16
17 In re Pac. Enters. Sec. Litig.,
47 F.3d 373 (9th Cir. 1995).................................................................................. 11
18
In re Patriot Am. Hospitality Inc. Sec. Litig.,
19
No. MDL C-00-1300 VRW, 2005 U.S. Dist.
LEXIS 40993 (N.D. Cal. Nov. 30, 2005) ............................................................ 23
20
Lyons v. Marrud, Inc.,
21
No. 66 Civ. 415, 1972 1972 U.S. Dist.
LEXIS (S.D.N.Y. June 6, 1972) .......................................................................... 19
22
Cal.
23 MWS Wire Indus., Inc. v.1986)Fine Wire Co.,
797 F.2d 799 (9th Cir.
................................................................................ 10
24
Officers for Justice v. Civil Serv. Comm’n,
688 F.2d 615 (9th Cir. 1982)......................................................................... passim
25
26 Protective Comm. for Indep. Stockholders of TMT
Trailer Ferry, Inc. v. Anderson,
390 U.S. 414 (1968) ............................................................................................. 19
27
28 Stanton v. Boeing Co.,
327 F.3d 938 (9th Cir. 2003).......................................................................... 11, 12

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1

Stewart v. Wachowski,
574 F. Supp. 2d 1074 (C.D. Cal 2005) ................................................................ 17

2 Torrisi v. Tucson Elec. Power Co.,
8 F.3d 1370 (9th Cir. 1993).................................................................................. 11
3
4 Van Bronkhorst v. Safeco Corp.,
529 F.2d 943 (9th Cir. 1976)................................................................................ 11
5
Vinh Nguyen v. Radient Pharms. Corp.,
No. CV 11-00406 DOC (MLGx), 2014 U.S. Dist.
6
LEXIS 63312 (C.D. Cal. May 6, 2014) ............................................................... 23
7
Weinberger v. Kendrick,
8
698 F.2d 61 (2d Cir. 1982) ................................................................................... 19
9 Welles v. Turner Entm’t. Co.,
503 F.3d 728 (9th Cir. 2007)................................................................................ 17
10
Statutes 
8 U.S.C.
11
§ 1292(b) ................................................................................................................ 6
12 17 U.S.C.
§§ 502-505 ........................................................................................................... 14
13
§507 ...................................................................................................................... 17
14

28 U.S.C.
§ 1711 et seq. ....................................................................................................... 22
15
§ 2201 ............................................................................................................... 4, 17
§ 2202 ..................................................................................................................... 5
16
17 Bus. & Prof. Code
§§ 17200 et seq....................................................................................................... 5
18
§§ 17500 et seq....................................................................................................... 5
19
20

Other Authorities 

21

MANUAL FOR COMPLEX LITIGATION (FOURTH)
§§ 21.632-21.634 (2004) ...................................................................................... 12

22

Rules 

23 Fed. R. Civ. P.
23 ....................................................................................................................... 10
24
23(e) ..................................................................................................................... 10
25
26
27
28

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1

Plaintiffs Good Morning to You Productions Corp. (“GMTY”), Robert

2 Siegel (“Siegel”), Rupa Marya d/b/a Rupa & The April Fishes (“Marya”), and
3 Majar Productions, LLC (“Majar”) (collectively, “Plaintiffs”) hereby submit this
4 Memorandum of Points and Authorities in support of their motion for final
5 approval of the proposed settlement (the “Settlement”) of this action (the
6 “Action”), and entry of the [Proposed] Final Order and Judgment (“Judgment”)
7 submitted herewith. When entered by the Court, the Judgment will: (i) confirm
8 certification of the Settlement Class (conditionally certified in the Court’s
9 Preliminary Approval Order entered on March 7, 2016) for purposes of
10 implementing the Settlement; and (ii) grant final approval to the Settlement on the
11 terms and conditions set forth in the Revised Class Action Settlement Agreement
12 entered into by the Parties on March 2, 2016 (the “Revised Settlement
13 Agreement”), which was preliminarily approved in the Preliminary Approval
14 Order. Dkt. 316.
15 I.

INTRODUCTION

16

After nearly three years of intensive litigation, the Parties reached an

17 agreement to settle this class action against Defendants Warner/Chappell Music,
18 Inc. (“Warner”) and Summy-Birchard Inc. (“Defendants”) over the disputed
19 copyright to Happy Birthday to You (“Happy Birthday” or the “Song”), the world’s
20 most popular song. The Settlement also resolves the disputed copyright claim
21 recently asserted by the Association for Childhood Education International and
22 The Hill Foundation, Inc. (“Intervenors”).
23

The Parties and their counsel executed the Class Action Settlement

24 Agreement on February 8, 2016.1 Declaration of Mark C. Rifkin in Support of
25 Motion for Final Approval of Proposed Class Action Settlement (“Rifkin Decl.”),
26

1

The “Parties” are Plaintiffs, Defendants, and the Intervenors, each of whom is
27 identified supra. Unless otherwise defined herein, this Memorandum of Points and
Authorities incorporates by reference the defined terms set forth in the Revised
28 Settlement Agreement, and all such terms shall have the same meaning herein.

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1 ¶¶ 5, 65. Plaintiffs presented the proposed Settlement to the Court for preliminary
2 approval on February 29, 2016. At the preliminary approval hearing, the Court
3 directed the Parties to make certain changes to the original Settlement Agreement
4 and necessary conforming changes to the Notice, Publication Notice, [Proposed]
5 Preliminary Approval Order, and [Proposed] Final Order and Judgment. Rifkin
6 Decl., ¶ 70.
7

The Parties made the changes as directed by the Court and promptly

8 submitted the Revised Settlement Agreement to the Court. Rifkin Decl., ¶ 70. On
9 March 7, 2016, the Court entered the Preliminary Approval Order. Thereafter, the
10 Settlement Administrator, Rust Consulting, Inc. (approved by the Court in the
11 Preliminary Approval Order), mailed the Notice to more than 4,600 Class members
12 and published the Publication Notice in The Hollywood Reporter, in the U.S.
13 edition of Variety, in Billboard, and on the Settlement Website in accordance with
14 the Preliminary Approval Order. See Declaration of Norman Swett of Rust
15 Consulting, Inc. (“Swett Decl.”), ¶¶ 6, 8, 9, 12.
16

The Settlement accomplishes all three of Plaintiffs’ objectives in this Action.

17 First, the Settlement includes an agreement by Defendants and the Intervenors to
18 forego collecting any more fees for use of the Song. Second, the Settlement
19 provides a mechanism for the Court to declare the Song to be in the public domain,
20 ending more than eighty years of uncertainty regarding the disputed copyright.
21 And third, the Settlement provides a substantial recovery of $14 million for the
22 Settlement Class: thousands of people and entities who paid millions of dollars to
23 Defendants and their predecessors-in-interest to use the Song since 1949.
24

As previously explained to the Court, the Settlement is the product of

25 lengthy and arduous litigation, followed by extensive arm’s-length negotiations
26 between experienced and knowledgeable counsel, facilitated by David A. Rotman,
27 Esquire, a highly accomplished and well-respected mediator. Rifkin Decl., ¶ 62.
28 By the time the Settlement was reached, Plaintiffs and Plaintiffs’ Counsel had: (i)

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1 conducted an exhaustive investigation of the Song’s history, including a detailed
2 review of records of the Copyright Office and the Library of Congress, original
3 historical source materials, old court filings in multiple jurisdictions, various news
4 reports, other publicly available information, and formal discovery from
5 Defendants and non-parties; (ii) filed three original complaints and four successive
6 amended complaints, with several rounds of motion practice and extensive briefing
7 on those pleadings; (iii) defeated Defendants’ motion to dismiss the Second
8 Consolidated Complaint; (iv) obtained partial summary judgment against
9 Defendants declaring that they do not own (and their predecessors never owned) a
10 copyright to the Song’s lyrics; (v) conducted exhaustive research of the applicable
11 law for the claims in this Action and the potential defenses thereto; (vi) consulted
12 with multiple experts; (vii) reviewed damages documents and information
13 provided informally by Defendants and obtained from non-parties through
14 discovery; (viii) fully prepared for the trial of the remaining issues on Claim One;
15 and (ix) participated in the lengthy, hard-fought mediation and settlement
16 negotiation process. Id., ¶¶ 14, 61, 62.
17

Based on their well-informed evaluation of the facts and governing legal

18 principles, the advanced stage of the litigation, and their recognition of the
19 substantial risk and expense of continued litigation, Plaintiffs’ and Plaintiffs’
20 Counsel believed and continue to believe that the Settlement is fair, reasonable and
21 adequate under Federal Rule of Civil Procedure 23. Rifkin Decl., ¶ 62. To date, no
22 Class member has objected to the Settlement, and those Class members who have
23 contacted Plaintiffs’ Counsel have expressed overwhelming praise for the
24 Settlement. The Settlement also has received extremely favorable review by the
25 worldwide media.
26

Accordingly, Plaintiffs respectfully request final approval of the Settlement

27 and submit this memorandum of points and authorities in support thereof.
28

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1 II.

BACKGROUND AND SUMMARY OF THE LITIGATION

2

Plaintiffs GMTY, Siegel, Marya, and Majar, each paid Defendants for a

3 license to perform or use the Song. Declaration of Jennifer Nelson in Support of
4 Final Approval of Class Action Settlement and Request for Incentive
5 Compensation Award, ¶ 6; Declaration of Robert Siegel in Support of Final
6 Approval of Class Action Settlement and Request for Incentive Compensation
7 Award, ¶ 3; Declaration of Rupa Marya in Support of Final Approval of Class
8 Action Settlement and Request for Incentive Compensation Award, ¶ 3;
9 Declaration of James Chressanthis in Support of Final Approval of Class Action
10 Settlement and Request for Incentive Compensation Award, ¶ 3.
11

The classic Happy Birthday melody is the same melody as another song

12 called Good Morning to All (“Good Morning”). Mem. and Opinion on Cross13 Motions for Summary Judgment (Dkt. 244), at 2. Mildred Hill and her sister Patty
14 Hill1 wrote Good Morning sometime prior to 1893; “Mildred composed the music
15 with Patty’s help, and Patty wrote the lyrics.” Id.
16

On June 13, 2013, Plaintiff GMTY filed the first class action complaint

17 against Defendants in the United States District Court for the Southern District of
18 New York, alleging that Defendants did not own a copyright to the Song. Rifkin
19 Decl., ¶ 16. Plaintiffs Siegel, Marya, and Majar filed similar class action
20 complaints in this Court on June 19, 2013, June 20, 2013, and July 17, 2013,
21 respectively. Id., ¶ 16, 17. The actions in this Court were consolidated, and on
22 September 4, 2013, all four Plaintiffs filed a Second Amended Consolidated
23 Complaint on behalf of a proposed class of all persons or entities (other than
24 Defendants’ directors, officers, employees, and affiliates) who entered into an
25 agreement with Defendants or paid them for the use of the Song at any time since
26 June 18, 2009. Rifkin Decl., ¶ 20. The Second Amended Consolidated Complaint
27 asserted claims for: (1) declaratory judgment, 28 U.S.C. § 2201; (2) declaratory
28 and injunctive relief and damages, 28 U.S.C. § 2202; (3) violation of California’s

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1 unfair competition law, Bus. & Prof. Code §§ 17200 et seq.; (4) breach of contract;
2 (5) money had and received; (6) rescission; and (7) violation of California’s false
3 advertising law, Bus. & Prof. Code §§ 17500 et seq. Dkt. 59. Plaintiffs allege that
4 Defendants do not own, and that Defendants and their predecessors did not own, a
5 copyright to the Song. Throughout the litigation, Plaintiffs have sought to obtain a
6 judicial determination that Defendants’ copyrights covered only specific piano
7 arrangements for the Song, not the words and music themselves, and to recover
8 damages for themselves and all others who paid licensing fees to Defendants for
9 the Song under Defendants’ allegedly false claim of copyright ownership.
10 Plaintiffs and Defendants vigorously disagree as to whether Defendants own a
11 copyright to the Song.
12

Defendants moved to dismiss the Second Amended Consolidated Complaint

13 or strike Plaintiffs’ proposed class definition. Dkt. 52. On October 16, 2013, the
14 Court granted in part and denied in part Defendants’ motions to dismiss,
15 bifurcating Plaintiffs’ first claim (for a declaratory judgment) from their remaining
16 claims for purposes of discovery through summary judgment and granting
17 Plaintiffs leave to file an amended complaint. Dkt. 71. Plaintiffs filed a Third
18 Amended Consolidated Complaint on November 6, 2013, asserting the same seven
19 claims as set forth above, which Defendants answered as to Claim One only on
20 December 11, 2013. Dkt. 75.

On April 21, 2014, Plaintiffs filed a Fourth

21 Amended Consolidated Complaint, asserting the same seven claims as set forth
22 above, which Defendants answered as to Claim One only on May 6, 2014. Dkt.
23 95, 99.

Thereafter, Plaintiffs and Defendants engaged in extensive written,

24 document, and deposition discovery between February and July 2014. Rifkin
25 Decl., ¶ 26.2
26

2

Among other things, Plaintiffs deposed Warner’s designated corporate
27 representative and its Vice President of Administration. Plaintiffs and Defendants
each answered numerous interrogatories and requests for admissions. Plaintiffs and
28 Defendants each produced thousands of pages of documents. Plaintiffs produced
(footnote continued on following page)

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1

On November 25, 2014, Plaintiffs and Defendants filed cross-motions for

2 summary judgment. Dkt. 179. The cross-motions were filed with an extensive
3 factual record, comprised of more than 125 exhibits and more than 300 statements
4 of uncontroverted fact. Dkts. 183, 187. The Court heard argument on the cross5 motions on March 23, 2015. See Dkt. 207. On May 18, 2015, the Court directed
6 Plaintiffs and Defendants to submit a supplemental joint brief addressing whether
7 Patty Hill had abandoned the copyright to the Happy Birthday lyrics, which they
8 filed on June 15, 2015. (Dkts. 215, 219). The Court heard argument on the
9 question of abandonment on July 29, 2015. See Dkt. 229.
10

On September 22, 2015, the Court issued its historic Memorandum and

11 Opinion on Cross-Motions for Summary Judgment granting in part and denying in
12 part Plaintiffs’ motion for summary judgment and denying Defendants’ cross13 motion for summary judgment in its entirety. Dkt. 244. The Court found there
14 was no dispute that Defendants and their predecessors never owned a copyright to
15 the Song’s lyrics. Id. at 43. However, the Court found disputed questions of fact as
16 to whether Patty Hill wrote the Song’s lyrics (id. at 19); whether there was a
17 divestive publication of the Song’s lyrics (id. at 22); and whether Patty Hill
18 abandoned any copyright to the Song’s lyrics (id. at 25). Thus, the Court’s decision
19 left open the potential question of whether anyone else might own a copyright to
20 the Song’s lyrics.3 The Court set a bench trial for December 15 and 16, 2015, on
21 the disputed questions of fact identified above. See Dkt. 248.
22

On October 29, 2015, Plaintiffs moved for leave to file a Fifth Amended

23 an expert report, and Defendants deposed Plaintiffs’ expert. Plaintiffs also
24 subpoenaed documents from a number of third parties. The efforts of Plaintiffs’
Counsel in this litigation are more fully described in the accompanying
25 Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Award
of Attorneys’ Fees and Expenses and Incentive Compensation Awards, and in the
26 supporting declarations of Plaintiffs’ Counsel.
3
On October
Defendants moved for
27 summary judgment15, 2015, for certification of that reconsideration of the Court’s
order or
order for interlocutory appeal
under 8 U.S.C. § 1292(b).
28

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1 Consolidated Complaint to extend the class period to September 3, 1949, the latest
2 date on which the 1893 copyright to Good Morning to All, the musical composition
3 from which Happy Birthday was derived, expired. Dkt. 258. Plaintiffs proposed
4 to add allegations that the statute of limitations on their claims was equitably tolled
5 under the delayed discovery rule and because Defendants concealed material facts
6 regarding the scope of the copyright they owned. On December 7, 2015, the Court
7 granted Plaintiffs’ motion for leave to amend, holding that the question of whether
8 Plaintiffs adequately alleged equitable tolling or fraudulent concealment was better
9 resolved by motion to dismiss. Dkt. 289. On December 9, 2015, Plaintiffs filed a
10 Fifth Amended Consolidated Complaint, asserting the same seven claims set forth
11 above on behalf of a class of persons or entities (other than Defendants’ directors,
12 officers, employees, and affiliates) who entered into a license with Defendants or
13 their predecessors-in-interest or paid Defendants or their predecessors-in-interest
14 for use of the Song at any time since September 3, 1949. Dkt. 291.
15

On November 9, 2015, the Intervenors moved to intervene, which Plaintiffs

16 and Defendants did not oppose. Dkt. 266. The Intervenors claimed to own a
17 common law copyright to the Song through a series of testamentary transfers from
18 Mildred Hill and Patty Hill, who wrote Good Morning to All. The Court granted
19 the Intervenors’ unopposed motion on December 7, 2015, but did not decide
20 whether they owned any copyright to the Song. Dkt. 288.
21

By that date, the Parties had nearly completed preparation of their trial briefs

22 and the Joint Exhibit List in advance of the bench trial scheduled for December 15
23 and 16, 2015. Rifkin Decl., ¶ 50. Those trial preparations were substantially
24 completed on December 8, 2015, on which date the Parties contacted the Court and
25 advised the Court that a settlement in principle had been reached between the
26 Parties. On the same date, the Court issued a Minute Order which relieved the
27 Parties of their obligation to file the trial brief and Joint Exhibit List and vacated
28 the bench trial because the Parties advised the Court that the Action had been

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1 settled. Dkt. 290.
2 III.

MEDIATION EFFORTS

3

During a status conference on October 19, 2015, the Court directed counsel

4 for Plaintiffs and Defendants to pursue mediation. Counsel met in person on
5 October 29, 2015, to discuss mediation, and thereafter agreed to retain Mr. Rotman
6 to assist them as a settlement mediator. See Dkt. 248. On December 1, 2015,
7 counsel for the Parties held an all-day, in-person mediation with Mr. Rotman.
8 Rifkin Decl., ¶ 57. Representatives of Defendants and their insurer and the
9 Intervenors also attended the mediation. Id. The mediation lasted late into the
10 evening. Id. Substantial progress was made during the mediation session, but no
11 settlement was reached at that time. Id., ¶ 58.
12

After the in-person mediation session, Mr. Rotman engaged in a series of

13 telephone discussions with counsel for the various Parties, and counsel for the
14 Parties also communicated directly with each other by telephone over the ensuing
15 few days. Rifkin Decl., ¶ 58. As a result of those additional communications, on
16 December 6, 2015, after a series of telephone and email communications with
17 counsel for the parties following the in-person mediation on December 1, 2015,
18 Mr. Rotman made a confidential mediator’s proposal to counsel for the Parties of
19 the material terms on which to settle the Action. Id., ¶ 59.
20

Plaintiffs and their counsel determined that the settlement terms proposed by

21 Mr. Rotman were fair and reasonable because they achieved all three of Plaintiffs’
22 objectives in the Action: (i) an end to Defendants’ and the Intervenors’ claims to
23 own the Song; (ii) a judicial determination that the Song is in the public domain;
24 and (iii) substantial compensation to Plaintiffs and the other Settlement Class
25 Members who had paid Defendants to use the Song in the past. More importantly,
26 Plaintiffs and their counsel believed that the mediator’s proposed settlement terms
27 were the best possible terms on which a settlement would or could be reached.
28 Rifkin Decl., ¶ 60.

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1

On December 8, 2015, after the Court granted Plaintiffs’ motion for leave to

2 amend and granted the Intervenors’ motion for leave to intervene, and after the
3 Parties had substantially completed their preparation for the bench trial on the
4 remaining factual issues on Claim One, counsel for all the Parties advised Mr.
5 Rotman that their clients had accepted the terms of the mediator’s proposal. Rifkin
6 Decl., ¶¶ 59, 63. Counsel for the Parties promptly notified the Court of the
7 settlement in principle and began the process of preparing and executing the
8 Settlement Agreement. See Dkt. 290. During the process of negotiating the
9 Settlement Agreement, substantial disputes arose among the Parties which required
10 Mr. Rotman’s ongoing, active participation to resolve. Rifkin Decl., ¶ 64. All
11 Parties executed the Settlement Agreement on February 8, 2016, and Plaintiffs
12 immediately filed their unopposed motion for preliminary approval of the
13 Settlement.
14 IV.

REASONS FOR THE PROPOSED SETTLEMENT

15

Plaintiffs agreed to this Settlement with a solid understanding of the

16 strengths and weaknesses of their claims. This understanding is based upon
17 Plaintiffs’ Counsels’ meticulous preparation of the case, including their exhaustive
18 investigation of the Song’s history, including a detailed review of records of the
19 Copyright Office and the Library of Congress, original historical source materials,
20 old court filings in multiple jurisdictions, various news reports and other publicly
21 available information, and formal and informal discovery from Defendants and
22 non-parties. Plaintiffs’ understanding also is informed by the Court’s decision
23 granting partial summary judgment in their favor against Defendants, declaring
24 that Defendants do not own (and their predecessors never owned) a copyright to
25 the Song’s lyrics as well as the Court’s finding of factual disputes which left open
26 whether anyone else (such as the Intervenors) might own a copyright to the Song’s
27 lyrics. Plaintiffs also considered the substantial risk the Court might not toll the
28 statute of limitations. Plaintiffs were aware of their counsel’s preparations for trial

-9-

1 and were advised by their counsel of the risk of continued litigation, including the
2 risk posed by the Intervenors’ recent claim, and the risk, expense, and unavoidable
3 delay of an appeal or appeals.
4

Based on a careful review of all these factors, as well as the substantial

5 expense and length of time necessary to prosecute this Action through the
6 completion of merits and expert discovery, trial, and appeals, and the considerable
7 uncertainties in predicting the outcome of any complex litigation, Plaintiffs have
8 concluded that substantial risk exists that the Song might not be declared to be in
9 the public domain and the Settlement Class might recover far less than the
10 Settlement provides or nothing at all if the Action were to continue. Mr. Rotman
11 also recommended and endorsed the Settlement and, indeed, the Settlement is the
12 result of and embodies his mediator’s proposal, made only after extensive arm’s13 length negotiations.
14

Accordingly, Plaintiffs respectfully request that the Court grant final

15 approval of the Settlement.
16 V.
17
18

FINAL APPROVAL SHOULD BE GRANTED
A.
Standards for Final Settlement Approval
Rule 23 requires judicial approval of any class action settlement. See Fed. R.

19 Civ. P. 23(e) (“claims . . . of a certified class may be settled . . . only with the
20 court’s approval”). “In deciding whether to approve a proposed settlement, the
21 Ninth Circuit has a ‘strong judicial policy that favors settlements, particularly
22 where complex class action litigation is concerned.’” In re Heritage Bond Litig.,
23 No. 02-ML-1475 DT, 2005 U.S. Dist. LEXIS 13555, at *9 (C.D. Cal. June 10,
24 2005) (citations omitted); see also Officers for Justice v. Civil Serv. Comm’n, 688
25 F.2d 615, 625 (9th Cir. 1982). As the Ninth Circuit has held more than once,
26 “[t]here is an overriding public interest in settling and quieting litigation.” MWS
27 Wire Indus., Inc. v. Cal. Fine Wire Co., 797 F.2d 799, 802 (9th Cir. 1986)). See
28 also Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir. 1976) (general

-10-

1 policy is “particularly true in class action suits”); Browning v. Yahoo! Inc., No.
2 C04-01463 HRL, 2007 U.S. Dist. LEXIS 86266, at *39 (N.D. Cal. Nov. 16, 2007)
3 (“public and judicial policies strongly favor settlement of class action law suits”).
4

The district court must exercise “sound discretion” in approving a

5 settlement. Ellis v. Naval Air Rework Facility, 87 F.R.D. 15, 18 (N.D. Cal. 1980),
6 aff’d, 661 F.2d 939 (9th Cir. 1981); see also Torrisi v. Tucson Elec. Power Co., 8
7 F.3d 1370, 1375 (9th Cir. 1993). Therefore, in exercising its discretion, “the
8 court’s intrusion upon what is otherwise a private consensual agreement negotiated
9 between the parties to a lawsuit must be limited to the extent necessary to reach a
10 reasoned judgment that the agreement is not the product of fraud or overreaching
11 by, or collusion between, the negotiating parties, and that the settlement, taken as a
12 whole, is fair, reasonable and adequate to all concerned.” Officers for Justice, 688
13 F.2d at 625. Recognizing that “[p]arties represented by competent counsel are
14 better positioned than courts to produce a settlement that fairly reflects each party’s
15 expected outcome in [the] litigation,” courts favor approval of settlements. In re
16 Pac. Enters. Sec. Litig., 47 F.3d 373, 378 (9th Cir. 1995).
17

The Ninth Circuit has identified several factors that may be considered in

18 evaluating the fairness of a class action settlement. These factors are:
19
20
21
22
23

the strength of plaintiffs’ case; the risk, expense, complexity, and
likely duration of further litigation; the risk of maintaining class action
status throughout the trial; the amount offered in settlement; the extent
of discovery completed, and the stage of the proceedings; the
experience and views of counsel; the presence of a governmental
participant; and the reaction of the class members to the proposed
settlement.

24 Stanton v. Boeing Co., 327 F.3d 938, 959 (9th Cir. 2003) (internal citation and
25 quotations omitted). See also Officers for Justice, 688 F.2d at 625 (citations
26 omitted); Torrisi, 8 F.3d at 1375 (9th Cir. 1993).
27

“The relative degree of importance to be attached to any particular factor

28 will depend upon and be dictated by the nature of the claims advanced, the types of

-11-

1 relief sought, and the unique facts and circumstances presented by each individual
2 case.” Officers for Justice, 688 F.2d at 625. “It is the settlement taken as a whole,
3 rather than the individual component parts, that must be examined for overall
4 fairness, and the settlement must stand or fall in its entirety.” Staton, 327 F.3d at
5 960 (quotations, citation and brackets omitted).
6

Review of a proposed settlement typically proceeds in two stages, with

7 preliminary approval followed by a final fairness hearing. See MANUAL FOR
8 COMPLEX LITIGATION (FOURTH) §§ 21.632-21.634 (2004). At this final approval
9 stage, the Court is required to make a final determination as to whether the
10 proposed Settlement is fair, reasonable and adequate. The Ninth Circuit has
11 cautioned, however, that:
12
13
14
15
16
17

[T]he settlement or fairness hearing is not to be turned into a trial or
rehearsal for trial on the merits. Neither the trial court nor this court is
to reach any ultimate conclusions on the contested issues of fact and
law which underlie the merits of the dispute, for it is the very
uncertainty of outcome in litigation and avoidance of wasteful and
expensive litigation that induce consensual settlements. The proposed
settlement is not to be judged against a hypothetical or speculative
measure of what might have been achieved by the negotiators.

18 Officers for Justice, 688 F.2d at 625 (emphasis added).
19
20
21

All these factors easily and convincingly support final approval here.
B.
The Excellent Results Achieved Strongly Support Final
Approval
It is no exaggeration to say that this Action – believed to be the first of its

22 kind – has achieved historic results. Until now, no court has ever ruled whether
23 Happy Birthday was protected by a copyright. The Action was commenced to end
24 what is surely the most infamous copyright dispute of all time, and it does so
25 unquestionably in favor of Plaintiffs and the Settlement Class. Under the
26 Settlement, Defendants and the Intervenors have agreed to abandon their copyright
27 claims forever. The Court will declare Happy Birthday to be in the public domain.
28 Furthermore, Defendants have agreed to return up to $14 million to thousands of

-12-

1 people and entities who paid millions of dollars to Defendants and their
2 predecessors-in-interest to use the Song since 1949.
3

Thus, the Settlement unquestionably achieves all three goals of this Action:

4 ending the disputed copyright claim; a judicial determination that the Song is in the
5 public domain; and a substantial cash payment to Settlement Class Members.
6

Arguably, the most important parts of the Settlement are the termination of

7 Defendants’ demand for payment for use of the Song and a judicial determination
8 that the Song is in the public domain. These parts of the Settlement should not be
9 overlooked or undervalued. Under the current copyright law, Defendants’
10 copyright – assuming it covered the Song’s words and music – would have lasted
11 until 2030 at the earliest.

Defendants’ and Intervenors’ agreement to forego

12 collecting any fees for use of the Song for the remaining 15 years it would be
13 covered by the existing copyright (again, assuming it covered the Song) is
14 significant. An expert in intellectual property valuation retained by Plaintiffs
15 estimates that the present value of the revenue likely to be generated from that
16 copyright, assuming it covered the Song’s words and music, is approximately $15
17 million. See Declaration of Daniel Roche in Support of Settlement Approval, ¶ 15.
18 Dkt. 301-2. A judicial determination that Happy Birthday is in the public domain
19 has at least that much value. Because the public will be able to use the Song in the
20 future without fear of copyright infringement or having to pay Defendants to use
21 the Song – ending the chilling effect of the copyright dispute – the actual value of
22 this part of the Settlement is likely much higher.
23

Significantly, this Settlement – in which public notice has been given before

24 the Court will enter its Final Order and Judgment – may be the only way for the
25 Court to be certain that anyone claiming to own the Happy Birthday copyright may
26 be heard before the Song is declared to belong to the public.4 Thus, anyone
27

4

Sections 502 to 505 of the Copyright Act, 17 U.S.C. §§ 502 to 505, provide
28 various means for a copyright owner to enforce his, her, or its copyright through
(footnote continued on following page)

-13-

1 claiming to own a copyright to the Song will have the opportunity to come forward
2 and be heard. In a private action, the Court cannot be certain that a non-party does
3 not claim ownership of a disputed copyright. As a practical matter, this factor alone
4 overwhelmingly supports approval of the Settlement.
5

The Settlement also includes a payment by Defendants of up to $14 million

6 to be distributed (after the payment of attorneys’ fees, expenses, and incentive
7 awards approved by the Court) to Settlement Class members who timely submit
8 valid claims. Defendants informally provided information to Plaintiffs, which
9 Plaintiffs confirmed through their own investigation and analysis, that Period One
10 Class Members paid approximately $11 million and Period Two Class Members
11 paid approximately $35-$40 million for use of the Song. Rifkin Decl., ¶ 55.
12

The Net Settlement Fund is “reversionary,” meaning that any amount not

13 necessary to pay all Authorized Claims in full will be returned to Defendants.
14 However, nothing will be retained by Defendants unless all Authorized Claims are,
15 in fact, paid in full.5 One month remains for Settlement Class Members to submit
16 their claims against the Net Settlement Fund. To date, only a small number of
17 claims have been submitted. However, based upon their communications with
18 Settlement Class Members, including, in particular, ASCAP, Plaintiffs’ Counsel
19 anticipate that claims will be made in total equal to most, if not all, of the Net
20 Settlement Fund. More importantly, to date, no Settlement Class Member has
21 expressed any objection to or concern for the Settlement or any part thereof.
22

By any objective standard, Plaintiffs have achieved an outstanding victory in

23 this Action. The Settlement preserves the Court’s summary judgment ruling, it
24
25 civil litigation. There is no similar provision in the Copyright Act providing a civil
remedy against one who misuses or abuses a copyright, such as by wrongfully
26 claiming broader protection than that provided under the copyright.
5
Defendants agreed to pay the full Settlement Fund
27 only upon the express condition that any portion of theamount of $14 million
Net Settlement Fund
remaining after the payment of all Authorized Claims would be returned to them.
28

-14-

1 avoids expensive, time-consuming litigation, it saves the Parties’ and the Court’s
2 time and resources, and it does so on terms that are eminently fair and reasonable
3 to the Settlement Class. For these reasons, Plaintiffs and their Counsel
4 enthusiastically endorse the Settlement, and the Court should finally approve it.
C.
The Risk, Expense, Complexity, and Likely Duration of
5
Continued Litigation Strongly Supports Final Approval
6
In assessing the fairness, reasonableness and adequacy of the Settlement, the
7
Court should balance the benefits of the Settlement against the risk, expense,
8
burden, and duration of continued litigation. In re NVIDIA Corp. Derivative Litig.,
9
No. C-06-06110-SBA (JCS), 2009 U.S. Dist. LEXIS 24973, at *9 (N.D. Cal. Mar.
10
18, 2009); Officers for Justice, 688 F.2d at 625. Avoiding the “expense,
11
complexity, and likely duration of further litigation” is an important settlement
12
consideration. Officers for Justice, 688 F.2d at 625; see also Girsh v. Jepson, 521
13
F.2d 153, 157 (3d Cir. 1975). This Action is obviously and undoubtedly complex.
14
If not for this Settlement, the Action would have continued to be fiercely contested
15
by the Parties, no doubt for many more years of extremely hard-fought litigation.
16
Continued litigation here would be extremely complex, costly, and of substantial
17
duration, not just in this Court but certainly in the appellate courts as well.
18
No case is certain – even one in which the trial court has granted partial
19
summary judgment. While Plaintiffs firmly believe their case has merit, numerous
20
obstacles exist that could prevent them from prevailing at trial and on appeal. For
21
example, there is no certainty the Court would require Defendants to return all the
22
money they collected for the Song to Plaintiffs or the Settlement Class members. It
23
is particularly far from certain that the Court would permit any recovery for
24
Settlement Class members whose claims might be time-barred under the applicable
25
statutes of limitations. In addition, there is now at least some small risk the Court
26
might conclude that the Intervenors own a copyright to the Happy Birthday lyrics.
27
Whichever Party prevailed before this Court, an appeal (or multiple appeals)
28
would be certain. Although Plaintiffs are confident that they could and would

-15-

1 succeed in the Ninth Circuit, there is no certainty that the Court’s summary
2 judgment decision would be affirmed on appeal. Likewise, there is no certainty
3 that a verdict in favor of Plaintiffs and the Settlement Class would be affirmed on
4 appeal. And even if they were successful at trial and again on appeal, Plaintiffs
5 might face re-litigating the same issues raised by Defendants or the Intervenors in
6 this Court.
7

Importantly, the Settlement preserves for all time the Court’s historic

8 summary judgment ruling that Defendants do not own, and their predecessors
9 never owned, any rights to the Song’s lyrics (the melody having long ago become a
10 public work). Proving that fact was Plaintiffs’ major objective and the focus of a
11 great portion of the work done by Plaintiffs’ Counsel. The Court’s decision
12 received substantial media praise. For example, the Los Angeles and San Francisco
13 Daily Journal hailed it as the top Verdict of the Year in 2015. Rifkin Decl., ¶ 46
14 and Ex. K. Billboard magazine named it as the top Landmark Decision that Shook
15 Music in 2015. Id., ¶ 45 and Ex. J.
16

When the Settlement was reached, there was also some risk that the Court

17 might not have granted class certification, or might have certified a much shorter
18 class than the Settlement Class. Defendants and the Intervenors would likely
19 oppose certification on the ground that individual issues, such as whether any of
20 the class members had actual or constructive knowledge that the Song was in the
21 public domain and whether they knowingly paid Defendants to license the Song,
22 would predominate over common questions (including whether Defendants or the
23 Intervenors owned a copyright to the Song’s familiar lyrics). In addition,
24 Defendants and the Intervenors certainly would have argued that the class period
25 could begin no earlier than June 13, 2009, under the four-year statute of limitations
26 applicable to Plaintiffs’ California state law claims, and perhaps no earlier than
27 June 13, 2010, under the Copyright Act’s three-year statute of limitations
28

-16-

1 applicable to Plaintiffs’ Declaratory Judgment Act claims.6 If the Court accepted
2 that argument, the class period would be substantially shorter than provided for in
3 the Settlement.
4

Whatever else might be said of the risk, continued litigation would certainly

5 impose great expense and burden on the Parties and the Court, to say nothing of
6 the additional time it would require. The Settlement not only eliminates all that risk
7 and uncertainty, it also avoids the considerable expense, burden, and delay of
8 continued litigation as well. For these reasons, the Settlement warrants final
9 approval.
D.
10

The Extent of Discovery Completed and the Advanced
Stage of the Action Strongly Support Final Settlement
Approval
The stage of the proceedings and the amount of discovery completed is

11
12

13 another factor the Court should consider in determining the fairness,
14 reasonableness, and adequacy of the Settlement. Officers for Justice, 688 F.2d at
15 625; Boyd v. Bechtel Corp., 485 F. Supp. 610, 617 (N.D. Cal. 1979). Since the
16 Settlement was achieved only after extensive litigation – indeed, after the Court
17 granted partial summary judgment for the Plaintiffs – this factor strongly supports
18 final Settlement approval.
As the Court knows, the litigation had reached a very advanced stage before

19

20 the Settlement was reached – indeed, before any settlement discussions even had
21 taken place. Plaintiffs’ counsel conducted an exhaustive factual investigation of the
22 origin of the Song before commencing the Action, reviewing historical artifacts
23
24
25
26
27
28

6

The Declaratory Judgment Act, 28 U.S.C. § 2201, does not have its own
statute of limitations. Instead, it borrows the most closely analogous statute of
limitations; here, the three-year statute of limitations under the Copyright Act, 17
U.S.C. § 507. Welles v. Turner Entm’t. Co., 503 F.3d 728, 734 (9th Cir. 2007)
(applying three-year statute of limitations to declaratory claim for copyright
ownership; Stewart v. Wachowski, 574 F. Supp. 2d 1074, 1111 n.147 (C.D. Cal
2005) (“The three year statute of limitations governing copyright infringement
actions also governs claims for declaratory relief regarding copyright ownership or
infringement.”)

-17-

1 including original court records, books, manuscripts, papers, and periodicals.
2 Rifkin Decl., ¶ 14. Plaintiffs’ Counsel also met with Robert Brauneis, Esquire,
3 Professor of Copyright Law at George Washington Law School, who had written a
4 law review article challenging Defendants’ copyright claim, and they conducted
5 considerable independent legal research on the copyright issues. After the Action
6 was commenced, Plaintiffs’ Counsel continued to conduct exhaustive historical
7 research, often aided by volunteers from around the world who had learned of the
8 litigation from extensive media coverage. Id., ¶¶ 14, 27. Plaintiffs’ Counsel
9 retained Joel Sachs, Ph.D, Professor of Music History at the Juilliard School in
10 New York, to review certain historical evidence (such as the copyrights and sheet
11 music) and to review some of Defendants’ various defenses to Plaintiffs’ claims.
12 Id., ¶ 31. After the Court denied Defendants’ motion to dismiss in part and
13 bifurcated the Action, Plaintiffs’ Counsel also conducted formal written and
14 documentary discovery from Defendants and third-parties, including the American
15 Society of Composers, Authors and Publishers (“ASCAP”) and The Hill
16 Foundation, and several major motion picture studios. Id., ¶ 26. Plaintiffs’ Counsel
17 also deposed three witnesses from Defendants and a witness from ASCAP. Id.
18

At the conclusion of their investigation and formal discovery, Plaintiffs’

19 Counsel had a thorough – indeed, encyclopedic – knowledge of the Song’s origin
20 and history. Rifkin Decl., ¶ 37. Recognizing the significance of the Action, as well
21 as the difficulty of challenging an 80-year-old copyright, Plaintiffs’ Counsel
22 learned virtually all there was to know about Happy Birthday and the disputed
23 copyrights. Armed with that knowledge, Plaintiffs’ Counsel prepared Plaintiffs’
24 motion for summary judgment and opposed Defendants’ cross-motion for
25 summary judgment. Id., ¶ 34. That process was exhaustive, as Defendants left no
26 stone unturned in vigorously defending their copyrights. Id. However, Plaintiffs’
27 Counsel’s meticulous preparation enabled the Court to grant Plaintiffs’ summary
28 judgment motion in part, ruling that Defendants and their predecessors-in-interest

-18-

1 never owned a copyright to the Song’s familiar lyrics (the copyright to the famous
2 melody having expired no later than 1949).
3

Few class action settlements are reached at such an advanced litigation

4 stage, and even fewer are reached by counsel as knowledgeable and well-prepared
5 as Plaintiffs’ Counsel were in this Action. This factor militates strongly in favor of
6 final judicial approval of the Settlement.
E.
The Experience and Views of Counsel Favor Approval
7
Experienced counsel acting at arm’s-length weighed all the foregoing factors
8
9 and endorse the Settlement. Deciding whether to enter into a class action
10 settlement necessarily requires the exercise of judgment by the attorneys for the
11 parties based upon a comparison of “‘the terms of the compromise with the likely
12 rewards of litigation.’” Weinberger v. Kendrick, 698 F.2d 61, 73 (2d Cir. 1982)
13 (quoting Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v.
14 Anderson, 390 U.S. 414, 424-25 (1968)). As many courts have explained, the view
15 of the attorneys actively conducting the litigation is “entitled to significant
16 weight.” Fisher Bros. v. Cambridge-Lee Indus., Inc., 630 F. Supp. 482, 488 (E.D.
17 Pa. 1985); see also Weinberger, 698 F.2d at 74; Ellis, 87 F.R.D. at 18; and Boyd,
18 485 F. Supp. at 622. For example, in Lyons v. Marrud, Inc., No. 66 Civ. 415, 1972
19 1972 U.S. Dist. LEXIS, at *5 (S.D.N.Y. June 6, 1972), the court noted:
20 “Experienced and competent counsel have assessed these problems and the
21 probability of success on the merits. They have concluded that compromise is well22 advised and necessary. The parties’ decision regarding the respective merits of
23 their positions has an important bearing on this case.”
After granting Plaintiffs’ motion for summary judgment in part and denying
24
25 Defendants’ cross-motion for summary judgment on September 22, 2015, the
26 Court held a pre-trial status conference on October 19, 2015. At the status
27 conference, the Court directed counsel for Plaintiffs and Defendants to meet to
28 explore the possibility of a settlement. Rifkin Decl., ¶ 54. Counsel for Plaintiffs

-19-

1 and Defendants had not discussed settlement prior to the status conference. Id. A
2 preliminary settlement meeting took place in New York on October 28, 2015. Id.
3

Following the meeting in New York, counsel for the Parties selected David

4 Rotman, Esquire, a highly experienced and well-respected mediator, to help
5 facilitate further settlement negotiations. Rifkin Decl., ¶ 54. Plaintiffs’ Counsel
6 also obtained additional information from Defendants so that Plaintiffs could more
7 finely estimate the potential size of the Class and the value of Plaintiffs’ and the
8 Class members’ claims. Id., ¶ 55. Counsel for the Parties met with Mr. Rotman in
9 San Francisco on December 1, 2015, for an all-day settlement mediation. No
10 settlement was reached that day, and negotiations (both direct and through Mr.
11 Rotman) continued for the next five days. Id., ¶¶ 57, 58. Meanwhile, counsel for
12 the Parties simultaneously completed all the necessary detailed pre-trial
13 preparations for the trial of the remaining part of Claim One, set for December 15
14 and 16, 2015. Id., ¶¶ 50, 51.
15

The Parties remained unable to reach a settlement after five days of

16 negotiation. Rifkin Decl., ¶ 58. On December 6, 2015, Mr. Rotman made a
17 confidential mediator’s proposal of the material terms on which to settle the
18 Action. Id., ¶ 59. While his proposal was outstanding, on December 7, 2015, the
19 Court granted the Intervenors’ motion to intervene and also granted Plaintiffs’
20 motion for leave to amend and file a Fifth Amended Consolidated Complaint,
21 which was filed on December 9, 2015. Id. On December 8, 2015, counsel for all
22 the Parties notified Mr. Rotman that they had accepted the material terms of a
23 settlement contained in his confidential mediator’s proposal. Id., ¶ 63.
24

Over the ensuing two months, Plaintiffs’ Counsel diligently drafted and

25 negotiated the Settlement Agreement. Rifkin Decl., ¶ 64. Those negotiations were
26 long, arduous, and often highly contentious; nearly every material term, and many
27 ancillary terms, was hard-fought. Id. The settlement nearly fell apart twice. Id.
28 Both times, Mr. Rotman’s intervention was required to preserve the settlement. Id.

-20-

1 As a result, the Parties sought extra time from the Court to complete negotiation of
2 the Settlement Agreement. Id. Ultimately, after exhaustive negotiations, the Parties
3 executed the Settlement Agreement on February 8, 2016.
4

There is no doubt that Plaintiffs’ Counsel were fully informed before

5 accepting the material settlement terms in Mr. Rotman’s mediator’s proposal. Nor
6 is there any doubt that the Settlement was the result of extensive arm’s-length
7 negotiations between counsel for the Parties.
8

The Parties were represented throughout the litigation by experienced and

9 well-respected counsel. Plaintiffs’ Counsel are highly experienced in complex
10 class action and intellectual property litigation. See, e.g., Rifkin Decl., ¶ 3 (setting
11 forth the considerable experience of Lead Counsel). The settlement process itself
12 confirms not just the judgment exercised by Plaintiffs’ Counsel, but their diligent
13 settlement efforts as well. For their part, Defendants’ counsel are among the best
14 and most well-respected attorneys in the country. They zealously raised vigorous
15 defenses to Plaintiffs’ claims, and their support for the Settlement likewise
16 confirms the reasonableness of the Settlement. Counsel for the Intervenors was
17 equally diligent in their representation, and likewise support the Settlement.
18

For these reasons, the experience and views of counsel for the Parties also

19 strongly support final judicial approval of the Settlement.
F.
The Reaction of the Class Also Favors Final Approval
20
The final factor, the reaction of the Class, also favors final judicial approval
21
22 of the Settlement. The Settlement Administrator mailed Notices by U.S. Mail or
23 via email to more than 4,500 potential Class Members. Swett Decl., ¶¶ 6, 8, 11.
24 Defendants provided the names and last known addresses of more than 1,500 Class
25 members to the Settlement Administrator from their internal records. Id. at ¶ 4.
26 Separately, Plaintiffs’ Counsel provided postal or email addresses for more than
27 3,000 more potential Class members to the Settlement Administrator. Most of
28 those potential Class members were movie studios, record companies, production

-21-

1 companies, performance rights societies, and other individuals and entities likely to
2 have used the Song over the past several decades. Although the date for Class
3 members to object has not yet passed, in the four weeks since the Notice was
4 mailed and the Published Notice was published, not one member or potential Class
5 member has objected to the Settlement or, indeed, voiced any opposition to it.
6 Rifkin Decl., ¶ 74; Swett Decl., ¶ 13. Quite to the contrary, those Class members
7 who have contacted the Settlement Administrator or Plaintiffs’ Counsel have done
8 so to request help filing claims, and those few Class members who have expressed
9 any view of the Settlement have had praise for it. Rifkin Decl., ¶ 74; Swett Decl.,
10 ¶ 13.
11

In addition, pursuant to Section 1715 of the Class Action Fairness Act, 28

12 U.S.C. § 1711 et seq. (“CAFA”), the Settlement Administrator also mailed notice
13 of

the

Settlement

to

the

U.S.

Attorney

General

and

the

attorney

14 generals/representatives of all 50 states, the District of Columbia and the U.S.
15 territories (Guam, Puerto Rico, Northern Mariana, American Samoa, Virgin
16 Islands). None of the attorney generals/representatives have opposed the
17 Settlement or expressed any opposition to it. Swett Decl., ¶ 14. Likewise, the
18 Settlement has achieved favorable review in newspapers and other media around
19 the world. Given the high profile of the Action, these facts also speak strongly in
20 favor of final judicial approval of the Settlement.
G.
The Plan of Allocation is Fair and Reasonable
21
Finally, the proposed plan of allocation is fair and reasonable. Payments to
22
23 Settlement Class Members who timely submit valid claims will be based on how
24 much they paid Defendants to use the Song. In addition, the amounts of those
25 claims are fairly and reasonably based upon when the Claimants paid Defendants
26 to use the Song: those who paid within the statute of limitations period will have
27 their claims valued in full, while those who paid outside the statute of limitations
28 period will have their claims discounted to account for the additional risk they face

-22-

1 that their claims would be untimely.
2

No Settlement Class Members, including Plaintiffs, will receive unduly

3 preferential treatment. All their claims (including Plaintiffs’ own claims) will be
4 evaluated under the same criteria and will be paid under the same formulas. See
5 Revised Settlement Agreement, Exs. A & B. The discount applicable to Period
6 Two Settlement Claims is equitable because the value of the claims of these earlier
7 Period Two Settlement Class Members is proportionately lower. Indeed, the risk
8 they face of having their claims dismissed as untimely is the greatest risk any
9 Settlement Class Member would face if this case were to proceed to a final
10 adjudication on the merits. See, e.g., In re Patriot Am. Hospitality Inc. Sec. Litig.,
11 No. MDL C-00-1300 VRW, 2005 U.S. Dist. LEXIS 40993, at *13 (N.D. Cal. Nov.
12 30, 2005) (granting final approval of a securities class action settlement that
13 provided for different recoveries depending upon when class members sold their
14 stock); Vinh Nguyen v. Radient Pharms. Corp., No. CV 11-00406 DOC (MLGx),
15 2014 U.S. Dist. LEXIS 63312 at *12-13 (C.D. Cal. May 6, 2014) (class action
16 settlement can make distinctions based upon relative strengths and weaknesses of
17 class members’ individual claims); In re MicroStrategy, Inc. Sec. Litig., 148 F.
18 Supp. 2d 654, 668-69 (E.D. Va. 2001) (approving settlement whereby class
19 members with stronger claims received a premium over other class members).
20 Indeed, failing to account for the unique risk faced by the early Settlement Class
21 Members would unfairly prejudice the later Period One Settlement Class Members,
22 whose claims are unquestionably timely.7
23
24
25
26
27
28

7

Because certain Settlement Class Members paid royalties for the Song more
than four years before the first complaint was filed, those earlier claims will be
discounted to reflect the unique risk they face that their claims would be barred as
untimely under the relevant statute of limitations. To reflect the risk that their
claims might be dismissed as untimely, the proposed plan of allocation limits the
allowed claims of Period Two Settlement Class Members (those Settlement Class
Members who paid for the Song prior to June 13, 2009) to 15% of the total amount
they paid prior to June 13, 2009. Because that risk does not exist for Settlement
Class Members who paid for the Song on or after June 13, 2009, their claims will
not be discounted under the proposed plan of allocation. Plaintiffs’ Counsel believe
(footnote continued on following page)

-23-

1

All Settlement Members, including Plaintiffs, are subject to the same notice

2 and claims procedures, are otherwise subject to the same settlement formulas, and
3 the same eventual release of claims. The Settlement formula varies only according
4 to the dollar amounts paid to Defendants and whether those payments were made
5 more or less than four years before the first-filed complaint; it does not vary
6 according to any improper variables unrelated to the relative strength of an
7 individual Settlement Class Member’s claim. See Rifkin Decl. at ¶ 66 and Revised
8 Settlement Agreement, Exs. A & B.
9 VI.
10

CONCLUSION
For all the foregoing reasons, the Court should grant final approval of the

11 Settlement, ending the infamous copyright dispute over the Song, declaring Happy
12 Birthday to be in the public domain, and returning up to $14 million to Settlement
13 Class members who paid Defendants for the right to use the Song.
14
Respectfully submitted,
15 Dated: April 27, 2016
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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By:

/s/ Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101

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Settlement Class Members
27 the discount applied to the claims of additional risk they would for the earlier time
period is reasonable in light of the
face if the Action
were adjudicated on the merits at trial. See Rifkin Decl. ¶ 56 & 57.
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Telephone: [phone]
Facsimile: 619/234-4599
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
RANDALL S. NEWMAN (190547)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753
Lead Counsel for Plaintiffs
and the Settlement Class
HUNT ORTMANN PALFFY
NIEVES DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
smith@ huntortmann.com
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone [phone]
Facsimile 626/796-0107
Facsimile: 212/797-3172
DONAHUE FITZGERALD LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor

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Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

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GLANCY PRONGAY &
MURRAY LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
KARA M. WOLKE
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160
Attorneys for Plaintiffs

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