Rupa Marya v. Warner Chappell Music Inc

Filing 335

REPLY in Further Support of NOTICE OF MOTION AND MOTION for Attorney Fees Plaintiffs' Notice of Motion and Motion for Award of Attorneys' Fees and Expenses and for Incentive Compensation Awards; Memorandum of Points and Authorities in Support Thereof 323 Reply Memorandum of Points and Authorities in Further Support of Plaintiffs' Counsel's Request for Attorneys' Fees and Expenses filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Declaration of Mark C. Rifkin, # 2 Declaration of Randall S. Newman, # 3 Declaration of Robert Brauneis, # 4 Declaration of Daniel J. Schacht)(Manifold, Betsy)

1 FRANCIS M. GREGOREK (144785)
[e-mail]
2 BETSY C. MANIFOLD (182450)
[e-mail]
3 RACHELE R. RICKERT (190634)
[e-mail]
4 MARISA C. LIVESAY (223247)
[e-mail]
5 BRITTANY N. DEJONG (258766)
[e-mail]
6 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
7 750 B Street, Suite 2770
San Diego, CA 92101
8 Telephone: [phone]
9 Facsimile: 619/234-4599
10 Lead Counsel for Plaintiffs and the Settlement Class
11

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA -

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WESTERN DIVISION

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

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v.

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19 WARNER/CHAPPELL MUSIC,
INC., et al.
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Defendants.
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Lead Case No. CV 13-04460-GHK (MRWx)
REPLY MEMORANDUM OF
POINTS AND AUTHORITIES IN
FURTHER SUPPORT OF
PLAINTIFFS’ COUNSEL’S
REQUEST FOR ATTORNEYS’ FEES
AND EXPENSES
Room:
Judge:
Date:
Time:

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

TABLE OF CONTENTS

1
2 I.
3

THE SPECTACULAR RESULTS ACHIEVED IN THE ACTION FULLY
SUPPORT PLAINTIFFS’ COUNSEL’S FEE REQUEST............................. 1

4

A.

The Settlement Ends Defendants’ Wrongful Practices
and Achieves a Complete Victory for the Class .................................... 3

B.

The Total Settlement Value Includes the $14 Million
Settlement Fund Plus $15 Million in Future Savings ...........................5

C.

The Novelty and Complexity of the Action Fully
Supports Plaintiffs’ Counsel’s Fee Request ..........................................8

5
6
7
8
9
10
11

II.

THE EXHAUSTIVE WORK DONE BY PLAINTIFFS' COUNSEL
FULLY SUPPORTS THEIR FEE REQUEST ..............................................10

12
13

A.

Plaintiff’s Counsel’s Meticulous Pre-Suit Investigation
Was Necessary, Reasonable, and Appropriate ...................................12

B.

The Song’s Long and Convoluted History and Paucity of
Formal Discovery, Required Plaintiffs’ Counsel to Conduct
Exhaustive Independent Factual Research..........................................15

C.

Lead Counsel Supervised Plaintiffs’ Counsel to Ensure
Efficient Effort Commensurate With the Work Required ..................16

D.

Defendants’ Own Aggressive Conduct Accounted for Much
of the Work Done by Plaintiffs’ Counsel ...........................................18

E.

Plaintiffs’ Counsel’s Hourly Rates are Reasonable,
And Well Below Defendants’ Counsel’s Own Hourly Rates .............22

F.

Plaintiffs’ Counsel Have Offered to Provide Their
Detailed Time Billing Records to the Court .......................................24

G.

Plaintiffs’ Counsel’s Out-of-Pocket Expenses Were
Entirely Reasonable ............................................................................25

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15
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28 III. CONCLUSION

........................................................................................25
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5

TABLE OF AUTHORITIES
Cases
Bergstein v. Stroock & Stroock & Lavan,
No. BC483164, 2013 Cal. Super. LEXIS 593
(L.A. Super. Ct. Feb. 14, 2013), aff’d, 236 Cal. App. 4th 793 (2015) ............... 23-24

6
7

Campos v. City of Blue Springs,
289 F.3d 546 (8th Cir. 2002) .................................................................................... 12

8
9
10
11
12
13
14
15
16
17
18
19

Chalmers v. City of Los Angeles,
796 F.2d 1205 (9th Cir. 1986) .................................................................................... 2
David v. City & Cnty. of San Francisco,
976 F.2d 1536 (9th Cir. 1992) .................................................................................... 5
Fernandez v. Vict. Secret Stores LLC,
No. CV 06-04149 MMM (SHx), 2008 U.S. Dist.
LEXIS 123546 (C.D. Cal. July 21, 2008) .................................................................. 5
Fischel v. Equitable Life Assur. Soc’y of the United States,
307 F.3d 997 (9th Cir. 2002) ................................................................................ 5, 11
Garcia v. Gordon Trucking, Inc.,
No. 1:10-CV-0324 AWI SKO, 2012 U.S. Dist.
LEXIS 160052 (E.D. Cal. Oct. 31, 2012) .................................................................. 5

20
21
22
23
24

Hensley v. Eckerhart,
461 U.S. 424 (1983) ................................................................................................... 1
In re American Apparel, Inc S’holder Litig.,
No. CV-10-06352 MMM (JCGx), 2014 U.S. Dist.
LEXIS 184548 (C.D. Cal. July 28, 2014) .................................................... 12, 18, 23

25
26
27
28

In re Bluetooth Headset Prods. Liab. Litig.,
654 F.3d 935 (9th Cir. 2011) .............................................................................. 1, 2, 6
In re Cadence Design Sys., Inc. Sec. & Derivative Litig.,
No. C-08-4966 SC, 2012 U.S. Dist.
LEXIS 56785 (N.D. Cal. Apr. 23, 2012) ................................................................... 6
- ii -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In re CytRx Corp. Sec. Litig.,
No. CV 14-1956-GHK (JPWx) (Dkt. 161) (C.D. Cal. May 18, 2016) .............. 17-18
In re Energy Future Holdings Corp.,
No. 14-10979 (CSS) (D. Del. Bankr.) ................................................................ 17, 24
In re Omnivision Technologies, Inc.,
559 F. Supp. 2d 1036 (N.D. Cal. 2007) ..................................................................... 5
Intel Corp. v. Terabyte Int’l, Inc.,
6 F.3d 614 (9th Cir. 1993) ........................................................................................ 11
Jankey v. Beach Hut,
No. CV 05-3856 SVW (JTx), 2006 U.S. Dist.
LEXIS 96365 (C.D. Cal. Dec. 19, 2006) ................................................................. 11
Ko v. Natura Pet Prods.,
No. C 09-02619 SBA, 2012 U.S. Dist.
LEXIS 128615 (N.D. Cal. Sept. 10, 2012) .............................................................. 11
MacDougal v. Catalyst Nightclub,
58 F. Supp. 2d, 1101 (N.D. Cal. 1999) .................................................................... 17
Masters v. Wilhelmina Model Agency, Inc.,
473 F.3d 423 (2d Cir. 2007) ....................................................................................... 3
Muehler v. Land O’Lakes, Inc.,
617 F. Supp. 1370 (D. Minn. 1985) ......................................................................... 17
O’Bannon, Jr, v. N.C.A.A.,
114 F. Supp. 3d 819 (N.D. Cal. 2015) ..................................................................... 17
Roberti v OSI Systems, Inc.,
No. 2:13-cv-09174-MWF, 2015 U.S. Dist.
LEXIS 164312, (C.D. Cal. Dec. 8, 2015) ............................................................... 23
Staton v. Boeing Co.,
327 F.3d 938 (9th Cir. 2003) ...................................................................................... 6
Weeks v. Kellogg Co.,
No. CV 09-08102 (MMM) (RZx), 2011 U.S. Dist.
LEXIS 155472 (C.D. Cal. Nov. 23, 2011) ................................................................. 7
- iii -

1
2

Williams v. MGM-Pathe Communs. Co.,
129 F.3d 1026 (9th Cir. 1997) .................................................................................... 3

3
4

Zucker v. Occidential Petroleum Corp.,
968 F. Supp. 1396 (C.D. Cal. 1997) ................................................................... 11, 16

5
6

Statutes

7

17 U.S.C.
§ 9 ............................................................................................................................. 10

8
9

Other

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11
12

Julie Triedman,
Billing $2K an Hour? Study Says Clients Will Pay If Lawyers Deliver,
AMERICAN LAWYER (May 12, 2016) ........................................................................... 24

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Even with the widespread notice and extensive media coverage given to the

1

2 Action and to the Settlement, no Settlement Class Member has objected to any part
3 of the Settlement, including Plaintiffs’ Counsel’s request for attorneys’ fees and
4 reimbursement of their out-of-pocket expenses, and only three foreign rights
5 societies have requested exclusion from Settlement Class. See Reply Declaration of
6 Mark C. Rifkin in Further Support of Plaintiffs’ Motion for Final Approval of
7 Settlement and Request for Attorneys’ Fees and Expenses (“Rifkin Reply Decl.”), ¶¶
8 3-4. Defendants alone oppose the request for fees and expenses. Fee requests “should
9 not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437
10 (1983). Having obtained “exceptional results” here, including the historic vindication
11 of significant individual rights to use Happy Birthday at the risk of not prevailing or
12 recovering any attorneys’ fees, Plaintiffs’ Counsel “should recover a fully
13 compensatory fee,” and even an “enhanced award may be justified.” Id. at 435. In
14 fact, Plaintiffs’ Counsel welcome the scrutiny that Defendants’ opposition invites
1
15 because Plaintiffs’ request appears even more reasonable after such scrutiny.
16 I.
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18
19
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THE SPECTACULAR RESULTS ACHIEVED IN THE ACTION
FULLY SUPPORT PLAINTIFFS’ COUNSEL’S FEE REQUEST
In their effort to reduce Plaintiff’ Counsel’s fees, Defendants attempt to

downplay the successful outcome in the Action. That is pure nonsense. Plaintiffs
sought to achieve three goals here: (1) a judicial determination that the Song is in the
public domain; (2) an end to Defendants’ and the Intervenors’ demand for payment
for the Song; and (3) a cash payment to Class members who paid for the Song in the

23
24

1

Defendants’ opposition makes clear that the fee request in this case does not
25 present the additional risk of “a package deal,” where counsel structure the
26 settlement around an advance understanding on the plaintiff’s attorneys’ fees. Cf. In
re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 943 (9th Cir. 2011)
27
(questioning such an arrangement in that case).
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past.2 Through the tireless efforts of Plaintiffs’ Counsel over three long years of

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arduous litigation, the Settlement accomplishes all three goals. By any objective

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measure, this Action was an “extraordinary” case and a complete success for

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Plaintiffs.

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The attorneys’ fees awarded to Plaintiffs’ Counsel should take into

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consideration the resounding victory they achieved through their hard-fought efforts.

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See Bluetooth, 654 F.3d at 942 (“Foremost” among considerations for an fee award is

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“the benefit obtained for the class.”) This case, and the Court’s historic summary

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judgment ruling – the finality of which is fully preserved by the Settlement – have

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been widely acclaimed around the world. See Declaration of Mark C. Rifkin in

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Support of Final Approval of Class Action Settlement and Request for Attorneys’

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Fees and Expenses (“Rifkin Decl.”) (Dkt. 324), ¶¶ 43-46. Defendants’ denial

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notwithstanding, the extraordinary results achieved in the Action easily support

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Plaintiffs’ Counsel’s fee request.

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While some may have wanted Defendants to return even more of the money

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they took from the public under their bogus copyright claim for a song they never

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owned, the fact is that $14 million is a substantial settlement payment. In fact, based

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upon the Settlement Administrator’s current estimate, it appears that all Period One

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Settlement Class Members will receive approximately 87% of their claims and that

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all Period Two Settlement Class Members will receive 100% of their discounted

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2

As noted in Chalmers v. City of Los Angeles, 796 F.2d 1205 (9th Cir. 1986)
(the case relied upon by Defendants for this point) (Defendants’ Opposition to
Plaintiffs’ Motion for Award of Attorneys’ Fees and Expenses (“Def. Br.”) at 20
(Dkt. 332)), the vindication of any significant individual rights, the complexity of the
litigation, the ‘great benefit’ to the class, the ‘riskiness of the lawsuit,’ and the
contingent nature of the action all strongly suggest an enhanced fee award and are
considered “extraordinary” circumstances. Chalmers, 796 F.2d at 1211-13 (business
owner challenged application of municipal ordinance to its business of selling Tshirts). All of these “extraordinary” circumstances are present here.

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claims, even after Plaintiffs’ Counsel are paid in full. It also appears that the Net

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Settlement Fund will be almost completely exhausted by the payment of those

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claims. See Rifkin Reply Decl., ¶¶ 7-8.3
A.
The Settlement Ends Defendants’ Wrongful Practices and
Achieves a Complete Victory for the Class

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5

Defendants argue that the results achieved in the Action do not justify

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Plaintiffs’ Counsel’s request for $4.62 million in attorneys’ fees. In a stunning
display of arrogance, Defendants oppose the fee request by denying that this case
exposed (and now ends) their decades of wrongdoing, arguing that the Court’s
summary judgment decision – the finality of which is assured by the Settlement in
the face of Defendants’ motion for reconsideration and alternative request for
interlocutory appeal – “did not address the propriety of Summy’s or anyone else’s
actions.” Def. Br. at 6. Defendants demonstrate a profound disregard for reality.4
In its historic summary judgment ruling, based upon the wealth of evidence

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uncovered by Plaintiffs’ Counsel, the Court found as a matter of fact that Defendants

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Even if some small portion of the Settlement Fund were unclaimed, the Court
should consider the entire sum of $14 million (plus the $15 million in future savings)
in awarding attorneys’ fees to Plaintiffs’ Counsel. In Williams v. MGM-Pathe
Communs. Co., 129 F.3d 1026 (9th Cir. 1997), the Ninth Circuit held that the district
court “abused its discretion by basing the fee on the class members’ claims against
the fund rather than on a percentage of the entire fund or on the lodestar.” Id. at 1027
(emphasis added). In Williams, as here, any unclaimed portion of the settlement fund
would be returned to the defendants. Likewise, in Masters v. Wilhelmina Model
Agency, Inc., 473 F.3d 423 (2d Cir. 2007), the Second Circuit held that the district
court committed reversible error by “calculat[ing] the percentage of the Fund on the
basis of the claims made against the Fund, rather than on the entire Fund created by
the efforts of counsel.” Id. at 436-37 (emphasis added).
4
Not coincidentally, that same disregard for reality explains how Defendants
and their predecessors could demand and collect millions of dollars from thousands
of innocent victims – sometimes as much as $100,000 for a single use – for a Song
they never owned.

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do not own, and their predecessors (including Summy) never owned, a copyright to

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the Song. Through Plaintiffs’ Counsel’s diligent efforts, the entire world now knows

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that Defendants and their predecessors, exploiting the draconian penalties for willful

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infringement recoverable under the Copyright Act, demanded payment for use of the

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Song – which they never owned – since 1935. Of course Defendants engaged in

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wrongful conduct: demanding licensing fees for rights they and their predecessors

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never owned. Defendants’ misconduct – selling what you don’t own – is the very

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essence of wrongdoing. Perhaps even more importantly, the Settlement preserves the

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finality of the Court’s summary judgment decision. Defendants’ argument that the

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Settlement does not end any “‘wrongful practice” pushes credibility past the breaking

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point, and the Court should swiftly reject it.

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Defendants argue as well that Plaintiffs’ Counsel did not achieve a complete

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victory because the Court’s summary judgment decision did not resolve the

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Intervenors’ claim to own the Song’s copyright. Def. Br. at 6-7. That argument is

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simply wrong. No one disputes that the Court’s decision left unresolved whether the

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Intervenors, as successors to the Hill Sisters, owned the copyright. But the

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Settlement forever resolves that question as well. Under the Settlement, Defendants

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and the Intervenors “relinquish their ownership claims to the Song and all their

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rights to the Song.” Settlement Agreement (Dkt. 302) § 2.2.1. Thus, whatever claim

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the Intervenors may have had is extinguished for all time by the Settlement. In their

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zeal to oppose Plaintiffs’ Counsel’s fee request, Defendants apparently would have

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the Court ignore this very important aspect of the Settlement.

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Defendants also argue that Plaintiffs’ Counsel are not entitled to $4.62 million

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in fees because they did not consent to the Song being declared in the public domain.

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Defendants’ argument is merely an exercise in hyper-technical hair-splitting. As an

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integral part of the Settlement, the Court will declare that the Song is in the public

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domain. Settlement Agreement § 2.2.2. Defendants and the Intervenors – the only

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parties who ever claimed to own any rights to the Song – expressly agreed not to

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oppose entry of a declaratory judgment that the Song is in the public domain. Id.5

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Defendants’ desperate argument that they did not consent to the Song being declared

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in the public domain simply misses the point that, as a result of the Settlement, the

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Song will be in the public domain.
B.
The Total Settlement Value Includes the $14 Million
Settlement Fund Plus $15 Million in Future Savings

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Defendants also argue that Plaintiffs are not entitled to a fee award above the

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Ninth Circuit’s 25% “benchmark” for attorneys’ fees in common fund cases.6
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In addition, despite worldwide notice and extensive media coverage of the
Settlement, no one else has come forward to claim an ownership interest in any
Happy Birthday copyright. See Rifkin Reply Decl., ¶ 4. Defendants even questioned
whether such media coverage even related to Plaintiffs’ Counsel’s representation of
Plaintiffs. Def. Br. at 17 (citing David v. City & Cnty. of San Francisco, 976 F.2d
1536, 1545 (9th Cir. 1992). As the Court noted in David, a civil rights case on
behalf of female and minority firefighters, press conferences and public relations
work “is directly and intimately related to the successful representation of a client”
and civil rights attorneys may do the same and be compensated. Id. at 1545. Media
coverage here did “contribute, directly and substantially, to the attainment” of
Plaintiffs’ litigation goals. Id.
6

In “most common fund cases, the award exceeds that [25%] benchmark.” In re
Omnivision Technologies, Inc., 559 F. Supp. 2d 1036, 1047 (N.D. Cal. 2007)
(citations omitted). In Garcia v. Gordon Trucking, Inc., No. 1:10-CV-0324 AWI
SKO, 2012 U.S. Dist. LEXIS 160052 (E.D. Cal. Oct. 31, 2012), cited by Defendants
(Def. Br. at 11), the district court noted that “the typical range of acceptable
attorneys’ fees in the Ninth Circuit is 20% to 33 1/3% of the total settlement
value.” In another case cited by Defendants (Def. Br. at 11), In Fernandez v. Vict.
Secret Stores LLC, No. CV 06-04149 MMM (SHx), 2008 U.S. Dist. LEXIS 123546
(C.D. Cal. July 21, 2008), the Court awarded a fee of $2.89 million (equal to 34% of
an $8.5 million settlement fund, for a multiplier of 1.8 times the lodestar of
approximately $1.6 million.
Defendants’ so-called ‘windfall’ cases, applying a downward adjustment to the
percentage of the fund requested (Def. Br. at 5), are not applicable. For example, in
Fischel v. Equitable Life Assur. Soc’y of the United States, 307 F.3d 997, 1011 (9th
Cir. 2002), the district court awarded a fee based on lodestar alone, rather than value
of settlement fund. The district court was concerned about a windfall for plaintiffs’

(continued…)

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Defendants’ argument ignores the fact that the Settlement achieves not just the $14

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million Settlement Fund, but also ends the demand for payment for the Song (which

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adds approximately $15 million more to the value of the Settlement – based upon the

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uncontroverted calculation submitted by a respected intellectual property valuation

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expert, Daniel R. Roche), ends Defendants’ bogus copyright claim, and declares the

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Song to be in the public domain.7 Leaving apart the inestimable value of the judicial

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declaration that the Song belongs to the public, the total cash value of the Settlement

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is actually $29 million, not just the $14 million Settlement Fund. Plaintiffs’

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Counsel’s request for $4.62 million in fees is just 15.9% of the total cash value of

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the Settlement, substantially below the 25% benchmark.8

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Defendants assert that Mr. Roche’s calculations do not take into consideration

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how the change will affect the cost for ASCAP’s blanket license. Def. Br. at 7. That

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assertion is patently false. As Mr. Roche stated clearly in his declaration, he

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________________________
(…continued)

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counsel because the settlement was reached early in the litigation, with no discovery
and before any protracted litigation of any kind. The Ninth Circuit reversed for a
determination as to whether it provided “adequate compensation” because the district
court failed to consider an appropriate risk multiplier for non-payment and delay. See
also In re Cadence Design Sys., Inc. Sec. & Derivative Litig., No. C-08-4966 SC,
2012 U.S. Dist. LEXIS 56785 (N.D. Cal. Apr. 23, 2012) (fee request of $9.54
million, which was 25% of a $38 million common fund, was reduced as
unreasonable based on a lodestar of just $2.5 million in fees and was adjusted to $7.2
million with a risk multiplier of 2.88) (Def. Br. at 5).

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Defendants do not dispute the fundamental legal principle that injunctive or
non-monetary relief may be considered in setting attorneys’ fees in a common fund
case. See Staton v. Boeing Co., 327 F.3d 938, 973 (9th Cir. 2003).
8

In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011),
which Defendants cite five times (Def. Br. at 5, 6, 20), is easily distinguishable. In
that case, there was no monetary benefit to the class at all, and the degree of success
was dubious. Here, Plaintiffs have obtained a $14 million cash payment, a direct
savings of another $15 million (based upon an expert valuation), and a declaration
that the Song is in the public domain.

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calculated the value of future payments both with and without ASCAP: “Because

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Plaintiffs do not know whether [ASCAP] will or will not continue to charge and

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collect for the Song, I estimated the projected future earnings with and without

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ASCAP earnings.” Declaration of Daniel R. Roche, CPA/ABV, ASA in Support of

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Approval of Proposed Class Action Settlement (Dkt. 801-2), ¶ 9 (emphasis added).

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The range of savings Mr. Roche calculated – $14 million to $16.5 million – reflects

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eliminating the ASCAP earnings from the calculation. Plaintiffs’ Counsel simply

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used $15 million (slightly below the mid-point of that range) for convenience.9

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Defendants urge the Court to ignore the additional $15 million benefit because

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it supposedly will not go to the Settlement Class. Def. Br. at 7-8. They cite Weeks v.

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Kellogg Co., No. CV 09-08102 (MMM) (RZx), 2011 U.S. Dist. LEXIS 155472, at

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*100-104 (C.D. Cal. Nov. 23, 2011) (emphasis added), in which the Court declined

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to include the value of a cy pres donation that did not benefit any class members in

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calculating the attorneys’ fee percentage in that case, finding “no indirect benefit to

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the class from the defendant’s giving the money to” a charity. Here, by sharp

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contrast, as Defendants surely know, the $15 million savings will be shared by many

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Settlement Class Members. A large number of Settlement Class Members (such as

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motion picture, television, and recording studios) paid Defendants or their

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predecessors to use the Song many times over the years, and undoubtedly would

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have continued to do so in the future but for the resounding success achieved in this

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case. All those Settlement Class Members will receive a direct financial benefit – a

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Defendants offer no alternative calculations or expert declaration of their own,
just mere speculation that the cost for the blanket license will be the same 10 or 15
years from now as it is today. While it is extremely unlikely that ASCAP will
continue to charge for the Song after it enters the public domain, no one knows what
part of the cost of the blanket license is attributable to Happy Birthday (or to any
song for that matter). Nor does anyone know what ASCAP will charge for its blanket
license next year, five years from now, or 20 years from now. Absent any factual
support, the Court should disregard Defendants’ sham hypothesis entirely.

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dollar-for-dollar saving – from the $15 million that Defendants will not charge for

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the Song in the future. In addition, many more Settlement Class Members will

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receive an indirect financial benefit, in that they will be encouraged to use the Song

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more often in the future because they will not be required to pay for it. Accordingly,

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Defendants’ argument is just plain wrong.

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Significantly, in Weeks, the Court elected to award plaintiffs’ counsel 30

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percent of the direct cash payment to class members as their fee. In doing so, the

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Court justified the upward departure from the 25% benchmark by noting the value of

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the cy pres payment. The Court also noted that the fee award, which equaled 16.2%

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of the total value of the settlement (including the cy pres contribution) was an

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appropriate discount given that half of the settlement value was not going to any

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class members. Thus, Weeks fully supports Plaintiff’s Counsel’s fee request in this

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case, in which Plaintiffs’ Counsel seek a fee of just 15.9% of the total Settlement

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value, and the Court should swiftly reject Defendants’ misplaced argument.

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C.

The Novelty and Complexity of the Action Fully Supports
Plaintiffs’ Counsel’s Fee Request

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Defendants also deny that this case was novel and complex. Defendants’

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argument is absurd. As the Court well knows, this Action raised many issues that

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were novel and extremely complicated. Several legal issues had no clear answer and

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required creative research and argument. For example, on the issue of abandonment,

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the Court observed: “both Parties have cited numerous cases in support of their

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respective positions regarding abandonment. Unfortunately, we can discern no clear

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rule for what does or does not constitute abandonment.” Dkt. 244 at 23. The case also

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was extremely complicated factually because of its age and the lack of any percipient

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witnesses. Many of the most important documents (including the deposit copy for

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E51990 and the written transfers from Jessica Hill to Summy Co.) were missing, and

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other documents were practically impossible to find (such as the complaints filed by

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Summy Co. in the 1940s).

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The factual and legal disputes were made far more complicated because

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Defendants could not produce any of the most important documents in the case,

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including the original copyright certificate, the deposit copy for E51990, and the

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agreements transferring rights from Jessica Hill to Summy Co. In place of those

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fundamental documents – which the owner of a property right as important and

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valuable as the Happy Birthday copyright would be expected to possess – Defendants

7

offered hypothetical copies of the work they theorize was covered by E51990, and

8

even went so far as to submit an ersatz copyright “certificate,” Ex. 101, falsely

9

insisting (without any legal or factual basis) that the actual, certified copyright

10

certificate that Plaintiffs’ Counsel obtained from the Register of Copyrights was not

11

the genuine certificate.

12

Plaintiffs’ Counsel’s task was made infinitely more difficult and time-

13

consuming by Defendants’ misplaced, “scorched-earth” defense of its bogus

14

copyright claim. In addition to raising every conceivable legal defense (many of

15

which were nothing more than faulty, hyper-technical legal arguments), they also

16

offered a plethora of convoluted, often conflicting, baseless factual defenses of the

17

copyright. Defendants’ Answer to the Fourth Amended Complaint asserted ten

18

affirmative defenses along with a reservation of rights to assert additional legal

19

defenses.10 Dkt. 99 at 29-31. Each of those defenses required a thorough

20

investigation and response from Plaintiffs’ Counsel.

21

Most importantly, throughout the litigation, taking advantage of missing

22

copyright records, Defendants variously insisted – without any factual support

23

whatsoever – that the Song’s lyrics were written by Mildred Hill, by Patty Hill, by

24

Preston Ware Orem, by Mildred and Patty together, and by Mildred (and/or Patty)

25
26
27
28

10

Defendants’ affirmative defenses included lack of particularity, statute of
limitations, laches, waiver, estoppel, lack of standing, lack of damages, unjust
enrichment, and unconstitutional. Dkt. 99 at 29-31.

-9-

1

together with Mr. Orem. Apparently, Defendants offered all those various (and

2

constantly shifting) factual hypotheses to support their copyright ownership claim,

3

falsely arguing that the copyright registration covered any and all work done by

4

Mildred (based upon their fallacious assertion that her name was on the missing

5

copyright certificate), by Mr. Orem (based upon his status as Summy Co.’s

6

employee), and by Patty (based upon Defendants’ unsubstantiated assertion that her

7

name was on the missing deposit copy). Eventually, after insisting throughout the

8

litigation that Mr. Orem wrote the lyrics, Defendants admitted he did not do so,

9

refuting their own unsubstantiated factual argument. Mr. Orem was the only one of

10

the three would-be “authors” connected in any way to the copyright by any evidence,

11

and his contribution was limited to the piano arrangement he composed.

12

In addition, the Court will recall that Defendants inexplicably withheld a

13

crucial document – the illegible copy of the authorized 1927 publication of Happy

14

Birthday in The Everyday Song Book without a copyright notice11 – until seven

15

months after the cross-motions for summary judgment were filed. Defendants’ 11th-

16

hour production of that illegible document – which they simply say was “mistakenly”

17

not produced – prompted even more investigation by Plaintiffs’ Counsel, who

18

eventually located several prior publications of The Everyday Song Book, including a

19

1922 publication without a copyright notice.

20
21

All these factors made this case novel and highly complex.
II.

22

THE EXHAUSTIVE WORK DONE BY PLAINTIFFS’ COUNSEL
FULLY SUPPORTS THEIR FEE REQUEST

23

Defendants next argue that Plaintiffs’ Counsel are not entitled to $4.62 million

24

in attorneys’ fees because they have overstated the amount of work they actually

25

performed and because their hourly rates may be excessive. Both of those arguments

26
27
28

11

That publication without a copyright notice would have extinguished any
copyright under Section 9 of the 1909 Copyright Act, 17 U.S.C. § 9.

- 10 -

1

are entirely baseless.12

2

As the Court already knows, the Action was actively litigated for three years

3

before the Settlement was achieved. The Court observed first-hand the excellent

4

quality of Plaintiffs’ Counsel’s written work and of their oral advocacy as well. That

5

work was the result of Plaintiffs’ Counsel’s exhaustive and meticulous preparation,

6

representing just a small fraction of the time they invested in the Action to achieve

7

this overwhelming success: the proverbial tip of the iceberg.

8

Plaintiffs and Defendants vigorously disputed many legal and factual issues,

9

there was active motion practice, and discovery was often contentious. The summary

10

judgment proceedings were lengthy and extremely complex. Plaintiffs and

11

Defendants submitted two rounds of briefing, as well as supplemental briefing, on

12

the cross-motions for summary judgment, and the factual record they compiled was

13

12

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In Fischel, 307 F.3d at 1007, cited by Defendants (Def. Br. at 5), the Ninth
Circuit held that there is a “strong presumption” that the lodestar represents a
reasonable fee. The other cases Defendants cite in support of their argument that
Plaintiffs’ Counsel’s hours are not reasonable (Def. Br. at 15-18) are easily factually
distinguishable. In Jankey v. Beach Hut, No. CV 05-3856 SVW (JTx), 2006 U.S.
Dist. LEXIS 96365, at *11-12 (C.D. Cal. Dec. 19, 2006), the district court noted that
it need not “examine and assess the validity of each billed task,” but refused to
compensate plaintiffs’ counsel for travel time for his repeated inspections of a raised
concrete pad which prevented reasonable wheelchair access after informing counsel
that such inspections were not recoverable travel time. In Zucker v. Occidental
Petroleum Corp., 968 F. Supp. 1396, 1402 (C.D. Cal. 1997), the Court found class
counsel’s hours were reasonable “for the necessary tasks that accompany litigation
such as this,” but criticized their practice of billing by the quarter-hour (which did
not occur here) rather than in tenths (as Plaintiffs’ Counsel did here). In Ko v. Natura
Pet Prods., No. C 09-02619 SBA, 2012 U.S. Dist. LEXIS 128615, at *33 (N.D. Cal.
Sept. 10, 2012), the plaintiffs’ counsel claimed to have interviewed more than 100
factual witness and reviewed 12,000 pages of documents, but provided no billing
entries or records reflecting whether the work was actually done. In Intel Corp. v.
Terabyte Int’l, Inc., 6 F.3d 614, 623 (9th Cir. 1993), the Ninth Circuit reversed a feeshifting award because the district court “merely awarded the fees without
elaboration.”

- 11 -

1

enormous. Two hearings were held before the Court ruled on the cross-motions for

2

summary judgment. The Court is well-aware of the meticulous preparation of

3

Plaintiffs’ Counsel for the summary judgment hearings –Plaintiffs’ success could not

4

have been achieved without their counsel’s exhaustive preparation.13 In addition, all

5

the preparations necessary for a bench trial on Claim One were completed before the

6

Parties entered into the Settlement Agreement on December 8, 2015, the same day on

7

which the all the pre-trial filings were due. See Rifkin Reply Decl., ¶ 20.
A.
Plaintiff’s Counsel’s Meticulous Pre-Suit Investigation Was
Necessary, Reasonable, and Appropriate

8
9

First, Defendants complain that Plaintiffs’ Counsel’s work on the initial

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

complaints “seems excessive” or “appears excessive.” See Def. Br. at 17-18. Their
half-hearted criticism is misplaced. To the contrary, the 1,296 hours spent on their
extensive pre-suit investigation and drafting was commensurate with the difficulty of
the task they undertook.14
13

By comparison, Campos v. City of Blue Springs, 289 F.3d 546, 549 (8th Cir.
2002), cited by Defendants (Def. Br. at 10), was a routine individual employment
discrimination case. The district court found that the hours billed for a simple
summary judgment motion, which the plaintiff lost, in part, in that case did not
generate anything like the complex summary judgment record in this case (consisting
of over 120 exhibits and a voluminous statement of facts covering a detailed history
of over 100 years), and did not require anything like the sophisticated research and
analysis required here. Judge Morrow in American Apparel also found Campos to be
inapplicable for the same reasons in her analysis of a securities class action fee
award. In re American Apparel, Inc S’holder Litig., No. CV-10-06352 MMM
(JCGx), 2014 U.S. Dist. LEXIS 184548, at *86-87 (C.D. Cal. July 28, 2014).
14

Plaintiffs’ Counsel spent 1,568 hours in this phase of the litigation. Lead
Counsel and Mr. Newman spent 1,294 hours investigating potential claims and
drafting initial complaints for Plaintiffs GMTY and Siegel. Unbeknownst to them,
Plaintiff Rupa’s counsel was doing a concurrent investigation of her claim based on a
live performance and recording of HBTY. Plaintiff Rupa’s investigation was 234.8
hours and focused on the different aspects of her claim and utilized different research
tools. See Reply Declaration of Daniel R. Schacht in Support of Motion for
(continued…)

- 12 -

1

Before the first complaint was filed, Plaintiffs’ Counsel were aware of the

2

historical significance of the litigation as an unprecedented copyright challenge to the

3

world’s most famous song. Recognizing the worldwide attention the case was certain

4

to receive, and anticipating the vigorous defenses that Defendants were certain to

5

mount, an exhaustive pre-suit investigation

6

previously submitted to the Court) was not only reasonable and appropriate, but was

7

necessary under these circumstances. See Rifkin Reply Decl., ¶¶ 9-16. Plaintiffs’

8

Counsel’s expectations were spot-on: media around the world took note, reporting

9

extensively on the Action from the day it was filed. That media attention has

10

continued to this day. And Defendants, represented by one of the country’s premier

11

and most experienced copyright law firms, left virtually no issue undisputed and

12

spared virtually no expense in defense of their copyright claim. Plaintiffs prevailed

13

only because of the diligent preparation and exhaustive work by Plaintiffs’ Counsel.

(as documented in the declarations

14

Plaintiffs’ Counsel were especially mindful of the historic nature of the

15

analysis and ruling they would ask the Court to make (to rule that the Song belongs

16

to the public). The history of Happy Birthday began more than a century ago and was

17

factually complex not merely because of this substantial passage of time but due to

18

the Song’s complicated “paper” trail as well. No other litigant had ever gathered all

19

of this material into one action and, as a result, no court had ever ruled on the scope

20

or validity of the Happy Birthday copyright. Plaintiffs’ Counsel were keenly aware

21

that, in an exercise of the utmost care, the Court would rightly demand scrupulous

22

proof before resolving the copyright dispute over the famous song. Therefore,

23

Plaintiffs’ Counsel completed a comprehensive pre-filing investigation and used their

24

maximum efforts to conduct the litigation in a manner befitting the significance of

25

the Action and of the request Plaintiffs would make of the Court. See Rifkin Reply

26
27
28

________________________
(…continued)

Attorneys’ Fees, ¶ 7.

- 13 -

1

Decl., ¶¶ 9-28.

2

Most of the pre-suit investigation was done by Randall S. Newman and Mark

3

C. Rifkin. Mr. Newman, a solo practitioner at the time, spent 928 hours conducting

4

extensive historical research and drafting the initial complaint. See Rifkin Reply

5

Decl., ¶¶ 9-16; Reply Declaration of Randall S. Newman in Support of Final

6

Approval of Class Action Settlement and Request for Attorneys’ Fees and Expenses

7

(“Newman Reply Decl.”), ¶¶ 3-4. Because of the Song’s long history, many of the

8

relevant records were not readily available. Consequently, to complete the research

9

necessary to mount the challenge, Mr. Newman spent several months scouring

10

records of the Copyright Office, from the Library of Congress, in the National

11

Archive, the New York Courts, several public libraries, and other public sources of

12

information. Newman Reply Decl., ¶¶ 16-26. The result of Mr. Newman’s efforts,

13

supplemented by additional research conducted by Lead Counsel, was a meticulously

14

prepared initial complaint, setting forth Plaintiffs’ claims in detail.

15

Reflecting Plaintiffs’ Counsel’s diligent preparation, the basis of those claims

16

– neither Mildred Hill nor Mr. Orem wrote the Happy Birthday lyrics; Mr. Orem,

17

Summy Co.’s employee-for-hire, composed only a specific piano arrangement of

18

Happy Birthday; the copyright application for E51990 never claimed that Mildred

19

Hill or Mr. Orem wrote the lyrics; in the copyright application, Summy Co. claimed

20

to own only a copyright in the new work done by Mr. Orem (i.e., the piano

21

arrangement he composed); the copyright covered only the piano arrangement

22

composed by Mr. Orem; and the copyright did not cover the Song’s lyrics – has been

23

remarkably consistent throughout the litigation. Ultimately, the Court agreed, ruling

24

that Defendants and their predecessors never owned a copyright in the Song’s lyrics,

25

and owned at most only a copyright in the piano arrangement that Mr. Orem

26

composed. Dkt. 244 at 42-43.

27

Defendants also argue that in commencing the Action, Plaintiffs’ Counsel

28

merely relied upon work done by Robert Brauneis, Professor of Law and Co-Director

- 14 -

1

of the Intellectual Property Program at the George Washington University Law

2

School, and author of “Copyright and the World’s Most Popular Song,” 56 JOURNAL

3

OF THE

4

entirely baseless. To be sure, Plaintiffs’ Counsel have the utmost respect for Prof.

5

Brauneis and his excellent scholarship, which helped inform them of the copyright

6

dispute. In fact, Plaintiffs’ Counsel worked with Prof. Brauneis to investigate the

7

case and worked with him during the prosecution of the Action. However, it is

8

simply untrue that Plaintiffs’ Counsel merely used Prof. Brauneis’s work to

9

commence this Action.

COPYRIGHT SOCIETY OF THE U.S.A. 335 (2009). That superficial argument is

10

In fact, as Prof. Brauneis readily admits, many of the facts in Plaintiffs’ initial

11

complaints, many of the facts litigated throughout the Action, and many of the facts

12

supporting the Court’s summary judgment decision, were not part of his copyright

13

analysis. See Declaration of Robert Brauneis in Support of Plaintiffs’ Motion for

14

Award of Attorneys’ Fees (“Brauneis Decl.”), ¶¶ 6-17. For example, Prof. Brauneis

15

was unaware of the three lawsuits filed by Summy Co. in the 1940s after registering

16

E51990, none of which even mentioned the copyright. See Brauneis Decl., ¶ 8. Mr.

17

Newman, through his own diligent efforts, located them. See Newman Reply Decl., ¶

18

18-25. Those actions were important to the Court in granting partial summary

19

judgment for Plaintiffs. See Dkt. 244 at 37.
B.
The Song’s Long and Convoluted History and Paucity of
Formal Discovery, Required Plaintiffs’ Counsel to Conduct
Exhaustive Independent Factual Research

20
21
22
23
24
25
26
27
28

Next, Defendants argue that the 2,751 hours Plaintiffs’ Counsel spent on
discovery “appears excessive . . . given that the document productions were small,
there was limited written discovery, and there were only a few depositions and a few
discovery-related motions.” Def. Br. at 18. That argument completely misconstrues
the work Plaintiffs’ Counsel were required to do during the discovery phase of the
litigation to achieve victory for the Class.
It is true that Defendants produced little formal discovery – in fact, they
- 15 -

1

produced less than half the number of documents that Plaintiffs produced – and their

2

designated fact witnesses claimed to know virtually nothing about the Song.

3

Defendants’ written discovery responses were often inaccurate or incomplete. See pp.

4

20-21 infra. Because Defendants provided little formal discovery, Plaintiffs were

5

required to conduct extensive informal discovery on their own. That extensive

6

informal discovery – much of which required inventive historical research of obscure

7

ancient documents – required significant time, and accounts for most of the 2,751

8

hours Plaintiffs’ Counsel spent on discovery in this case.

9

Of course, the extensive independent factual research done by Plaintiffs’

10

Counsel enabled them to achieve complete success in the Action. Without the

11

detailed knowledge they obtained through their own significant efforts, Plaintiffs’

12

Counsel would not have been able to prevail on the cross-motions for summary

13

judgment, proving that Defendants and their predecessors-in-interest never owned a

14

copyright to the Happy Birthday lyrics.

15

Moreover, Plaintiffs’ Counsel expended that massive discovery effort, with no

16

assurance of payment, to achieve success against powerful corporate defendants with

17

deep pockets, who were fully committed to defending their disputed copyright claim

18

and were represented by one of the country’s premier defense firms.
C.
Lead Counsel Supervised Plaintiffs’ Counsel to Ensure
Efficient Effort Commensurate With the Work Required

19
20
21
22
23
24
25
26
27
28

Defendants also argue that Plaintiffs’ Counsel’s lodestar appears inflated
because it was impossible for them to determine whether Class Counsel properly
delegated tasks between partners and associates. They cite Zucker v. Occidential
Petroleum Corp., 968 F. Supp. 1396 (C.D. Cal. 1997), as support for their argument.
In that case, the plaintiff’s counsel requested a multiplier of 2.13 times their
combined lodestar. The Court refused to apply a multiplier on the lodestar in that
case because, quite unlike the Settlement here, that settlement provided no cash
benefit to the class. Id. at 1401-02. The Court reduced plaintiff’s counsel’s lodestar

- 16 -

1

by $10,237.50, from $1,223,677 to $1,213,439.50 – by less than one percent – after

2

finding that some of the work done by partners could have been done by associates.

3

Id. at 1402.15

4

Defendants’ complaint that they were unable to decide for themselves whether

5

the work was properly delegated between partners and associates is unavailing. It is

6

hardly their place to second-guess how Plaintiffs’ Counsel allocated work to achieve

7

the clear victory here. “Competent plaintiffs’ counsel are in the best position to

8

determine how their time and the time of their associates can best be allocated.”

9

Muehler v. Land O’Lakes, Inc., 617 F. Supp. 1370, 1379 (D. Minn. 1985). See also

10

O’Bannon, Jr, v. N.C.A.A., 114 F. Supp. 3d 819, 836 (N.D. Cal. 2015) (“Court does

11

not see why such integral litigation tasks cannot be reasonably assigned to partners as

12

well as associates”).

13

The work in this case was extremely complex, and the issues were

14

groundbreaking. And the division of hours – 78.7% partners and 21.3% associates –

15

is not unusual in a case as novel and complex as this one.16 Those percentages are not

16

out of line with other cases in this district.17 For example, in In re CytRx Corp. Sec.

17

15

18
19
20
21
22
23
24
25
26
27
28

Even if the Court were to similarly reduce Plaintiffs’ Counsel’s partner and
associate lodestar by one percent (i.e., $48,289.45), the fee request would be virtually
unaffected. Plaintiffs’ Counsel’s total lodestar would be reduced to $5,130,553.35,
which still yields a negative multiplier of 0.90 times their lodestar if their fee request
of $4.62 million is granted in full.
16

By way of comparison, in In re Energy Future Holdings Corp., No. 14-10979
(CSS) (D. Del. Bankr.), as between partners and associates, partners of Munger,
Tolles & Olson LLP (“Munger”), which firm represented Defendants in this Action,
billed 71.3% of the lodestar.
17

Defendants’ reliance on MacDougal v. Catalyst Nightclub, 58 F. Supp. 2d,
1101, 1106 (N.D. Cal. 1999) (Def. Br. at 18) on this issue is misplaced. In
MacDougal, the highest billing partner (with 30 years of trial experience) billed for
clerical work which could have been done by paralegals or clericals, made multiple
site inspections, and billed for filing, service and faxing of documents. Id. at 1105.
Here, Mr. Rifkin exercised “billing judgment” and such tasks were done by either

(continued…)

- 17 -

1

Litig., No. CV 14-1956-GHK (JPWx) (Dkt. 161) (C.D. Cal. May 18, 2016), partners

2

accounted for 76.9% of the total lodestar of plaintiff’s counsel. Although the Court

3

found some excessive and inefficient billing in that case, the Court used the full

4

$1,419,225 lodestar as a cross-check in awarding a fee of $2,125,000, “represent[ing]

5

a lodestar multiplier of approximately 1.5.”18 Here, Plaintiffs’ Counsel request a

6

negative multiplier of just 0.89 times their lodestar.19 Undoubtedly, given all the

7

relevant factors, the requested fee (actually less than the lodestar) is eminently

8

reasonable even if the Court determines that some of the billing was excessive or

9

inefficient in this case.
D.
Defendants’ Own Aggressive Conduct Accounted for Much of
the Work Done by Plaintiffs’ Counsel

10
11

Defendants’ denial notwithstanding, as the Court is well aware, Defendants’

12
13

own aggressive conduct during the litigation necessitated much of the work done by

14

________________________
(…continued)

15

paralegals or secretaries as appropriate with nominal supervision.
Decl., ¶ 31.

16

Rifkin Reply

18

17
18
19
20
21
22
23
24
25
26
27
28

Recognizing that it was merely “conducting a cross-check, not a true lodestar
analysis,” the Court expressly declined to “fix a precise lodestar amount” or make
any specific adjustments to the plaintiff’s lodestar in that case. The Court “simply
note[d] that the lodestar appears inflated.” Id. at 1.
Likewise, in American Apparel, 2014 U.S. Dist. LEXIS 184548, a case heavily
relied upon by Defendants, the Court held that the “best practice” for assessing a
percentage fee is to make a “rough fee computation” through a “less exhaustive
cataloging and review of counsel’s hours,” which “need entail neither mathematical
precision nor bean-counting.” Id. at *75-76 (citations omitted). The Court concluded
that the “lodestar calculation need not be precise when it is being used as a crosscheck on a percentage-of-the-fund award,” as it is being used here. Id. at *87.
19

Curiously, without any explanation, Defendants argue that Plaintiffs’ Counsel
are not entitled to a “positive multiplier” on their lodestar. Def. Br. at 20 (emphasis
added). But Plaintiffs’ Counsel do not seek a positive multiplier on their time, they
seek a negative multiplier. That said, the factors discussed by Defendants would
support a positive multiplier in this case.

- 18 -

1

Plaintiffs’ Counsel. For example, throughout the litigation, Defendants relied upon a

2

presumption from the registration certificate for E51990 that Mildred Hill wrote the

3

Happy Birthday lyrics – leaving apart the fact that they offered no evidence of ever

4

acquiring any rights to the lyrics from Mildred. Plaintiffs had no way of knowing the

5

basis for that presumption until all their discovery efforts were complete. This is

6

because Defendants never produced the registration certificate for E51990 and the

7

document they relied upon for the presumption was, in fact, not a registration

8

certificate at all.

9

The Court will recall that Defendants offered Ex. 101, an unofficial photocopy

10

of a “Copy of Registration,” which they falsely asserted was the registration for

11

E51990. The Court also will recall that Plaintiffs vigorously disputed that Ex. 101

12

was the registration certificate for E51990, offering instead Ex. 48, the Certified

13

Registration Certificate signed and sealed by Maria A. Pallante, the Register of

14

Copyrights and Associate Librarian for Copyright Services, as the official

15

registration certificate for E51990. That should have ended the dispute, but

16

Defendants, with no factual or legal basis whatsoever, refused to accept the signed

17

and sealed registration certificate for what it was. Plaintiffs were forced to move to

18

exclude the ersatz certificate, and Defendants sheepishly conceded the point only

19

after making them file the motion to exclude. See Dkt. 244 at 12-13 n.4.

20

The dispute over Ex. 101 was not inconsequential. That document (which was

21

not a registration certificate) included Mildred Hill’s name, whereas the actual

22

registration certificate, Ex. 48, did not include her name. Since Defendants based

23

their case on a presumption that Mildred Hill wrote the Song’s lyrics, it was

24

imperative that they offer Ex. 101 as the registration certificate to justify the

25

presumption, even though they had no basis for doing so. To end the charade, not

26

only were Plaintiffs’ Counsel required to obtain an official, signed and sealed copy of

27

the registration certificate from the Register of Copyrights, but Defendants also made

28

them litigate which document was the “real” registration certificate even though

- 19 -

1

there was no basis for Defendants to dispute the genuineness of Ex. 48, any more

2

than there was a basis for them to insist that Ex. 101 was genuine.

3

Likewise, a significant fact in the Court’s summary judgment decision was

4

that Preston Ware Orem, Summy’s employee-for-hire, did not write the Happy

5

Birthday lyrics. Dkt. 244 at 12-14. As the Court observed in discussing the

6

registration certificate for E51990: “If, as Defendants assert, the new matter being

7

registered included the lyrics, then, contrary to the registration certificate, Mr. Orem

8

could not have been the author of the new matter. Conversely, if Mr. Orem were the

9

author of the new matter, then the lyrics could not have been a part of the

10

registration.” Id. at 14.

11

Although Defendants admitted in their Answer that Mr. Orem did not write the

12

Song’s familiar lyrics, they claimed throughout discovery that he did. For example,

13

in sworn answers to Plaintiffs’ First Set of Interrogatories, Interrogatory No. 4,

14

Defendants stated under oath as follows:

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Insofar as Warner/Chappell’s copyrights are concerned, copyright
registration certificates E51990 and E51988 attribute authorship of the
lyrics of Happy Birthday to You to either or both of Mildred J. Hill (in
the case of both registration certificates) or Preston Ware Orem (in the
case of registration certificate E51990). Warner/Chappell is aware of
historical evidence suggesting that Mildred Hill’s sister, Patty Hill, also
may have been involved in writing the lyrics in conjunction with
Mildred Hill. Warner/Chappell is not aware of any facts indicating that
any such involvement by Patty Hill would have rendered those lyrics in
any way not original to either Mildred Hill or Preston Ware Orem, or
that such involvement would have any effect on the validity of
Warner/Chappell’s copyrights. Warner/Chappell is not aware of any
facts indicating that the authorship of such lyrics was not original to any

- 20 -

1

or all of Mildred Hill, Patty Hill or Preston Ware Orem.

2

Warner/Chappell is not aware of the date of the writing of such lyrics by

3

any or all of Mildred Hill, Patty Hill, or Preston Ware Orem.

4

Plaintiffs’ Counsel did not know which story Defendants would tell at trial,

5

and Defendants would not clarify their convoluted position on authorship when

6

depositions were taken. On the basic question whether Mr. Orem wrote the lyrics,

7

their designated person most knowledgeable, Thomas Marcotullio, an attorney and

8

Vice President of Mergers and Acquisitions for Warner Music Group, gave the

9

following testimony:

10
11
12

Q. Do you agree that Orem did not write the familiar lyrics to Happy Birthday
To You?

13

A. I’m not sure what the question is, other than what I’ve responded to.

14

Q. If you agree with that allegation, that Orem did not write the familiar lyrics

15
16
17
18
19
20
21
22
23
24
25
26
27
28

to Happy Birthday To You.
A. I’m not sure that’s in the scope of our conversations. I’m not sure what the
legal conclusion is. I may understand what the words say and I can read. I
don’t know what the implications are from a legal perspective.
Tr. Marcotullio at 182:2-15 (June 3, 2014).
Confronted with that opaque testimony, Plaintiffs were compelled to
investigate and respond to all the various permutations of authorship offered in
Defendants’ contorted position on the simple question whether Mr. Orem in fact
wrote the Song’s lyrics. In the end, Defendants had no evidence that Mr. Orem
wrote the Song’s lyrics, and the Court accepted their admission that he did not. Dkt.
244 at 14. However, by obfuscating the question throughout discovery (and during
the summary judgment drafting process), Defendants forced Plaintiffs’ Counsel to
spend considerable time investigating and responding to their baseless contrary

- 21 -

1

factual assertions. Having put Plaintiffs’ Counsel to the task, Defendants can hardly

2

be heard to criticize them for doing so.

3

In addition, the Court will recall that Defendants concealed a “smoking gun,”

4

the 1922 publication of Happy Birthday in The Everyday Song Book without a

5

copyright notice. Defendants failed to produce that highly important evidence until

6

July 2015, seven months after Plaintiffs and Defendants cross-moved for summary

7

judgment. They offered no excuse for their failure, claiming only that it was not

8

timely produced by “mistake.” See Rifkin Decl., ¶ 41.

9

These are just a few examples of how Defendants’ defense of the bogus

10

copyright – showing little regard for the factual record and a willingness to obfuscate

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even the most obvious facts – made the task of Plaintiffs’ Counsel much more

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difficult than it should have been. Defendants cannot complain now that Plaintiffs’

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Counsel met these challenges and overcame all the obstacles thrown in their way to

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achieve this hard-fought and widely acclaimed victory.

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For Plaintiffs’ Counsel, prosecuting this Action was like putting together a

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massive jigsaw puzzle while Defendants turned some of the pieces over and took

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other pieces of the puzzle off the board. Having brought this litigation upon

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themselves by making a bogus copyright claim for decades, and having made

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Plaintiffs’ Counsel’s job monumentally more difficult by making specious, baseless

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arguments in defense of the bogus copyright, Defendants are in no position to blame

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Plaintiffs’ Counsel for working too hard to end the deception.
E.
Plaintiffs’ Counsel’s Hourly Rates are Reasonable, And Well
Below Defendants’ Counsel’s Own Hourly Rates

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Defendants also complain that Plaintiffs’ Counsel have not provided
comparative fee information for them to assess the reasonableness of their hourly
rates and collective lodestar. Def. Br. at 19. Plaintiffs’ Counsel devoted a total of
7,680.49 partner and associate hours to the case, with a combined total lodestar of
$4,828,944.80 (excluding paralegal time). The average partner billing rate for all

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Plaintiffs’ Counsel was $693.83 per hour. The average associate billing rate was only

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$383.76 per hour. Plaintiffs’ Counsel had a blended hourly billing rate of $627.71 per

3

hour for all the attorneys who worked on the case. See Rifkin Reply Decl., ¶ 22.

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The hourly rates of Plaintiffs’ Counsel compare favorably to rates recently

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approved in this Court. In Roberti v OSI Systems, Inc., No. 2:13-cv-09174-MWF,

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2015 U.S. Dist. LEXIS 164312, at *19-20 (C.D. Cal. Dec. 8, 2015), the Court

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recently approved partner rates between $700 and $975 per hour and associate rates

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of $525 per hour. Those rates are substantially higher than the rates Plaintiffs’

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Counsel have billed in this case. Moreover, the Court awarded attorneys’ fees in OSI

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Systems that were approximately 2.2 times the lodestar of plaintiff’s counsel, while

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Plaintiffs’ Counsel seek a negative multiplier in this case.20 Likewise, in American

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Apparel, 2014 U.S. Dist. LEXIS 184548, at *80-82, the company’s counsel had an

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average partner billing rate of $1,035 and an average associate rate of $620, and

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counsel for the individual defendants had an average partner billing rate of $715 – all

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well above the average rates billed by Plaintiffs’ Counsel here.

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Although Defendants did not provide any billing information for their own

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counsel, the billing rates of Defendants’ counsel are also quite informative. For

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example, in Bergstein v. Stroock & Stroock & Lavan, No. BC483164, 2013 Cal.

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Super. LEXIS 593, at *12 (L.A. Super. Ct. Feb. 14, 2013), aff’d, 236 Cal. App. 4th

20

793 (2015), the Superior Court approved as reasonable Munger’s billing rates

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ranging between $445 per hour for the most junior associates to $920 per hour for

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senior partners. The Superior Court noted, “Whether outrageous or not, in the Los

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According to a 2014 survey by the NATIONAL LAW JOURNAL, for the largest
firm in the Los Angeles market, average partner billing rates were $665 per hour, and
average associate billing rates were $401 per hour. See Rifkin Reply Decl., Ex. A.
Again, the average hourly rates charged by Plaintiffs’ Counsel in this case compare
favorably to those average rates. See American Apparel, 2014 U.S. Dist. LEXIS
184548, at *80-82.

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Angeles legal community, attorney billing rates of $1000 per hour and above are no

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longer unheard of.” Id. (emphasis added).

3

In a more recent fee application submitted by Munger on October 15, 2015, in

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the bankruptcy proceeding In re Energy Future Holdings Corp., No. 14-10979 (CSS)

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(Dkt. 6477) (D. Del. Bankr.) the firm billed $4,265,994.90 in fees over the four-

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month period from May 1 through August 31, 2015. Munger claimed an average

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partner billing rate of $901 per hour and average billing rates for of counsel and

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associates of $680 and $553 per hour, respectively. Plaintiffs’ Counsel’s average

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hourly rate for partners in this case ($693.83) is $217 lower than Munger’s average

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rate for partners, and Plaintiffs’ Counsel’s average hourly rate for associates

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($383.76) is $169 lower than Munger’s average rate for associates.21 This simple

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apples-to-apples comparison should end Defendants’ misplaced criticism.

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F.

14

Plaintiffs’ Counsel Have Offered to Provide Their Detailed
Time Billing Records to the Court

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While Plaintiffs’ counsel did provide Defendants and the Court with a

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breakdown of information as to the total time spent by all involved attorneys on the

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various phases of this litigation, Defendants complain that Plaintiffs’ Counsel failed

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to give them the underlying detailed time to review. Def. Br. at 15-17. Plaintiffs’

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Counsel will submit detailed records of the time spent by the partners, associates, and

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paralegals in the daily timesheets required to be filed and served by June 17, 2016

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pursuant to this Court’s June 10, 2016 Minute Order (Dkt. 334). See Rifkin Reply

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Decl., ¶ 28. At Defendants’ insistence, the Settlement is not final until all appeals –

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including any potential appeal from the Court’s fee and expense award – are

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21

This comparison is not meant to criticize Munger’s hourly rates. THE
AMERICAN LAWYER recently reported that the top hourly rates for partners at major
U.S. firms rose to $2,000 per hour in 2015. See Julie Triedman, Billing $2K an
Hour? Study Says Clients Will Pay If Lawyers Deliver, AMERICAN LAWYER (May 12,
2016). See Rifkin Reply Decl., Ex. B.

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exhausted. Plaintiffs’ Counsel would not ordinarily share detailed billing records

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with an adversary, particularly before the case is fully and finally resolved.

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G.

4

Plaintiffs’ Counsel’s Out-of-Pocket Expenses Were Entirely
Reasonable

5

Finally, Defendants argue that Plaintiffs’ Counsel have not adequately

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substantiated their request for $204,461.40 in litigation costs with detailed records.

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Def. Br. at 21. In particular, they question Plaintiffs’ Counsel’s copying and

8

reproduction costs and travel and meal costs. All these charges are supported by Lead

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Counsel’s detailed billing records. See Rifkin Reply Decl., ¶¶ 35-40. Plaintiffs’

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Counsel are prepared to furnish the Court with detailed billing records for all the

11

costs they incurred in prosecuting this Action (including photocopying and

12

reproduction costs as well as coach class airfare and business hotel accommodations

13

paid for Plaintiffs’ Counsel to attend hearings, the settlement mediation, and other

14

proceedings in the Central District, where the parties agreed this case would be

15

litigated, or in San Francisco, where the mediation took place). See Rifkin Reply

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Decl., ¶ 40; In light of the amount of work done in this Action over three years, these

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costs are extremely modest.

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III.

CONCLUSION

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For all these additional reasons, Plaintiffs respectfully request that the Court

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overrule Defendants’ opposition and grant Plaintiffs’ Counsel’s request for $4.62

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million in fees and $204,461.40 in out-of-pocket expenses in full.

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Dated: June 13, 2016
By:

Respectfully submitted,
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
/s/ Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]

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RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
BRITTANY DEJONG
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
RANDALL S. NEWMAN (190547)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753
Lead Counsel for Plaintiffs

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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]
KARA M. WOLKE
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160

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Attorneys for Plaintiffs
and the Settlement Class

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WARNER.CHAPPELL:22977

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