Ericmany, Ltd. v. Agu et al
TEMPORARY RESTRAINING ORDER: For the reasons stated in the attached Memorandum, plaintiff's request for a Temporary Restraining Order is granted in part and denied in part. Ordered by Judge Kiyo A. Matsumoto on 6/3/2016. (Fletcher, Camille)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstDOUGLAS JACK AGU D\B\A RUNTOWN, BUGU
ANETO OKEKE, BUG MEDIA LIMITED, BUG
ENTERTAINMENT & MEDIA LIMITED, NIYI
FATOGUN, VIBESLAND ENTERTIANMENT, LLC,
SAVOY ENTERTAINMENT CENTER, LEVEL 13
MATSUMOTO, United States District Judge:
Plaintiff EricMany Ltd. (“Plaintiff” or “EricMany”), a
Nigerian music label, brings this action, based upon a contract
between plaintiff and defendant, Douglas Jack Agu (“Runtown”), a
Nigerian recording artist and resident, seeking injunctive
relief against Runtown and Bugu Aneto Okeke, a Nigerian
resident, Nigerian corporations, Bug Media Limited and Bug
Entertainment and Media Limited, 1 Niyi Fatogun, a resident of
Brooklyn, New York, and his corporation Vibesland Entertainment, 2
1 Hereinafter, references to the “Mr. Okeke” or “Bugu defendants” include Bugu
Aneto Okeke, Bug Media Limited and Bug Entertainment and Media Limited.
2 Hereinafter, references to the “Mr. Fatogun” or the “Vibesland defendants”
include Niyi Fatogun and Vibesland Entertainment, LLC.
LLC, a New York entity. 3 Presently before the court is
plaintiff’s request for a temporary restraining order (“TRO”) to
enjoin Runtown from appearing, performing or participating in
any live show, performance or concert in the United States.
Further, plaintiff seeks to enjoin the other named defendants
from scheduling, promoting, advertising or arranging any shows,
performances or concerts, featuring and/or including Runtown.
Plaintiff alleges breach of its agreement between
EricMany Ltd. and defendant Runtown, dated August 7, 2015 (“the
Agreement”). See Affidavit of Prince Okwudili Umenyiora
(“Umenyiora Aff.”) ¶ 9-10, ECF No. 2 at 17-18 and Agreement, ECF
No. 2 at 27-32. 4 Runtown is the sole act signed to EricMany. See
Umenyiora Aff. ¶ 2, ECF No. 2 at 16. The exclusive Agreement is
applicable “worldwide” and provides, inter alia, for a renewal
by mutual consent for sixty-months, and the parties’ mutual
agreement to produce, promote, market, perform and release three
albums. See Agreement ¶¶ 1, 4, ECF No. 2 at 27-29, Umenyiora
3 Plaintiff also named Savoy Entertainment Center and Level 13 Ultra Lounge as
defendants in this action. Those parties, however, were dismissed on consent
of plaintiff at the June 2, 2016 Show Cause Hearing.
Hereinafter, page number cites refer to pagination assigned by the court’s
electronic filing system, ECF.
Aff. ¶ 3, ECF No. 2 at 17. The Agreement also provides that it
is terminable by either party upon three months written
notification, and that any disputes be governed by the laws and
processes of the Federal Republic of Nigeria.
Id. ¶¶ 9-10, ECF
No. 2 at 14. Plaintiff alleges that it invested over $600,000
into Runtown’s recording and musical career, including a debut
album entitled “Ghetto University” and that Runtown has breached
their Agreement by planning a “world tour” with the other
defendants, but without EricMany’s consent or involvement.
Umenyiora Aff. ¶¶ 5, 9, ECF No. 2 at 17. Runtown, with the
assistance of his manager, defendant Bugu Aneto Okeke, allegedly
entered into agreements with Niyi Fatogun, via his music
promotion company Vibesland Entertainment, to promote Runtown’s
U.S. tour. Umenyiora Aff. ¶¶ 9-10, ECF No. 2 at 17-18; Complaint
¶¶ 22-23. The U.S. tour was to begin on June 3, 2016 in
California where Runtown was to perform at two clubs. Umenyiora
Aff. ¶ 22, ECF No. 2 at 21. Further, plaintiff has alleged that
Runtown and the Bugu defendants have made defamatory statements
about EricMany via social media. Id. at ¶ 21, ECF No. 2 at 21.
Plaintiff seeks to temporarily restrain and enjoin
defendants from singing, performing, promoting and permitting
the performance of Runtown at any venue until a hearing on its
request for a preliminary injunction. See generally ECF No. 2.
On June 1, 2016, this court issued an Order to Show Cause and
ordered service on all defendants by email or facsimile no later
than 10:00 a.m. EDT on June 2, 2016, but reserved decision on
the TRO until the Show Cause Hearing. On June 2, 2016 at 2:00
p.m., the court held a Show Cause Hearing. At the hearing
plaintiff’s counsel and Niyi Fatogun in his individual capacity,
and on behalf of his company Vibesland Entertainment, appeared.
Runtown nor the Bugu defendants appeared.
At the hearing, plaintiff’s counsel represented and
Mr. Fatogun agreed that Runtown has since expressed his intent,
via social media and by letter, to leave the EricMany label. 5
Mr. Fatogun provided the following testimony which the court
found credible: Runtown and Mr. Bugu traveled to Brooklyn, New
York to engage Mr. Fatogun’s promotion services. As a result of
that meeting, the parties agreed that Mr. Fatogun would organize
a promotional tour in the U.S. for Runtown’s debut album “Ghetto
University,” and post Runtown’s appearances on Vibesland’s
social media pages. The first leg of the tour would be focused
on club appearances where Runtown would not receive compensation
Because of the expedited nature of the proceedings, the transcript is not
for his appearances. The parties expected that the publicity
created by the first leg of the U.S. tour would lead to more
YouTube views and iTunes purchases of Runtown’s music, and
ultimately to paid performances at concerts and festivals. Mr.
Fatogun spoke with EricMany about his plans to promote Runtown
and received what he thought was approval from EricMany.
EricMany’s counsel responded that EricMany was not involved in
Runtown’s engagement with Vibesland and learned of the
relationship from social media.
After Mr. Fatogun learned of the dispute between
Runtown, the Bugu defendants and EricMany, Mr. Fatogun told all
parties that he wanted no involvement and canceled Runtown’s
appearances at the two clubs in California. Further, Mr. Fatogun
stated his intention to end his engagement with Runtown and the
Bugu defendants unless and until plaintiff and Runtown confirm
in writing that he and Vibesland may promote Runtown. In the
meantime, Mr. Fatogun stated that, the planned U.S. tour will be
cancelled and Mr. Fatogun will remove all promotional materials
relating to Runtown’s tour from all mediums within his control.
Mr. Fatogun has not posted any negative information on social
media regarding plaintiff or Runtown. Mr. Fatogun requested that
he and Vibesland be dismissed from this action.
“[T]he standard for relief applicable to a temporary
restraining order is the same as for a preliminary injunction.”
19 Fed. Proc., L. Ed. § 47:80 (2016).
In order to prevail on a
motion for a preliminary injunction and, therefore, on a TRO, a
party must establish: “(1) irreparable harm in the absence of
the injunction and (2) either (a) a likelihood of success on the
merits or (b) sufficiently serious questions going to the merits
to make them a fair ground for litigation and a balance of
hardships tipping decidedly in the movant’s favor.’”
MyWebGrocer, LLC v. Hometown Info., Inc., 375 F.3d 190, 192 (2d
Cir. 2004) (quoting Merkos L'Inyonei Chinuch, Inc. v. Otsar
Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir. 2002)).
The irreparable harm requirement is “the single most
important prerequisite for the issuance of a preliminary
injunction.” Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.
1999) (per curiam) (internal quotations omitted). “Irreparable
injury is one that cannot be redressed through a monetary award.
Where money damages are adequate compensation a preliminary
injunction should not issue.” JSG Trading Corp. v. Tray–Wrap,
Inc., 917 F.2d 75, 79 (2d Cir. 1990). “To establish irreparable
harm, plaintiffs must demonstrate an injury that is neither
remote nor speculative, but actual and imminent.” Tucker Anthony
Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)
(internal quotations omitted).
Based upon the complaint, affirmations of plaintiff
and plaintiff’s counsel, supporting exhibits, the testimony and
arguments at the Show Cause Hearing on June 2, 2016, and for the
reasons stated herein, the court grants plaintiff’s request for
a TRO against Runtown and the Bugu defendants and the court
denies plaintiff’s requests for a TRO against Mr. Fatogun and
Vibesland Entertainment. The terms of the TRO are provided
herein. The parties shall appear for a preliminary injunction
hearing before the assigned Judge, the Honorable Margo Brodie,
on June 14, 2016 at 11:00 a.m. in Courtroom 6F North at the
United States Courthouse, 225 Cadman Plaza East, Brooklyn, N.Y.
A. Plaintiff has provided specific facts establishing that it
will suffer immediate and irreparable harm.
EricMany Ltd. seeks a temporary restraining order to
prevent imminent irreparable harm that will occur before the
hearing on the preliminary injunction scheduled for June 14,
2016. Plaintiff’s CEO, Prince Okwudili Umenyiora (a/k/a “Dili”)
has provided specific facts establishing that irreparable harm
is imminent: Plaintiff has invested approximately $600,000 into
producing Runtown’s debut album “Ghetto University” and
developing Runtown’s career; Runtown is the sole artist signed
to EricMany. Umenyiora Aff. ¶¶ 2, 5, 8, ECF No. 2 at 16-17.
Vibesland announced, on its Instagram page, that Runtown was
participating in a U.S. tour. Umenyiora Aff. ¶¶ 9-10, ECF No. 2
at 17-18. The tour was scheduled to begin on June 3, 2016 in
California. See id. ¶ 22, ECF No. 2 at 22. Although plaintiff is
under an exclusive worldwide contract with Runtown, plaintiff
was excluded from planning the tour and is not mentioned in
Runtown’s U.S. tour materials. Umenyiora Aff. ¶¶ 9-10, ECF No. 2
at 17-18 and Agreement ¶ 1 ECF No. 2 at 27-32. Plaintiff’s CEO,
Mr. Umenyiora, further asserts that Runtown’s exclusion of
plaintiff when participating in “industry activity” 6 will cause
irreparable harm to EricMany’s reputation, goodwill and
professional standing, and will be viewed, by the Nigerian music
industry and others as a departure by Runtown from the
plaintiff’s label. Id. ¶¶ 13-17, ECF No. 2 at 19-20. Further,
Runtown’s departure will likely discourage other artists from
The term “industry” is defined by the Agreement as the “music and
entertainment industry.” See Agreement ¶ 1, ECF No. 2 at 28.
signing with EricMany in the future. Id. ¶ 17, ECF No. 2 at 20.
Plaintiff further asserts that Runtown is the only artist signed
to EricMany, and that Runtown’s departure will effectively
bankrupt and render EricMany a defunct entity. Id. ¶ 14, ECF No.
2 at 19. Plaintiff has no other revenue streams and Runtown’s
departure and continued exclusion of plaintiff from his
“industry activity” is likely to prevent plaintiff from
recouping its $600,000 investment. Umenyiora Aff. ¶¶ 4, 5, 13,
14, ECF No. 2 at 17, 19.
“[W]hen courts cannot establish and measure the injury
in terms of money, courts have found irreparable harm.”
Distrib., LLC v. Town of Babylon, No. 05 CV 2032 JS ETB, 2006 WL
270252, at *3 (E.D.N.Y. Jan. 31, 2006), aff’d as modified, 216
F. App’x 97 (2d Cir. 2007) (citing Register.com, Inc. v. Verio,
Inc., 356 F.3d 393, 404 (2d Cir. 2004)). “Loss of goodwill and
injury to reputation are injuries that are difficult to measure
in dollars, and thus, these types of injuries are irreparable
harm.” Coastal Distribution, 2006 WL 270252, at *3 (citing
Wright, Miller & Kane, supra § 2948.1).
“Furthermore, loss of
business opportunities and relationships with clients who could
‘produce an indeterminate amount of business over years to come’
are also hard to measure in dollars and are properly considered
irreparable harm.” Coastal Distrib., 2006 WL 270252, at *3
(quoting Register.com, Inc., 356 F.3d at 393).
Here, EricMany has shown that he is at risk of
significant financial and reputational damage which will likely
lead to a loss of business opportunities, relationships and
potentially even bankruptcy. EricMany is likely to suffer harm
because of the promotions relating to Runtown’s proposed U.S.
tour as EricMany was excluded from all the promotional
materials. Runtown, with the assistance of the Bugu defendants
have excluded EricMany from Runtown’s “industry activities” as
evidenced by their unilateral engagement of Vibesland. Such
exclusion appears to contravene the exclusivity provision of the
Agreement and will likely cause EricMany financial and
reputational losses. Further, Runtown has made defamatory
statements about EricMany on social media that are likely to
cause serious reputational harm to EricMany and may lead to a
loss of business opportunities.
The totality of potential losses that EricMany will
likely face from Runtown’s actions are incalculable on this
record. As plaintiff’s evidence indicates, Nigerian music is on
the verge of crossing over into North American popular music as
demonstrated by Nigerian musical artist WizKid’s performance on
the number one single “One Dance” by Drake, a recording artist
who is popular in Canada and the U.S. 7 As noted by plaintiff’s
submissions, WizKid and Runtown have collaborated on at least
two Runtown songs that plaintiff produced; these songs have
received over three million YouTube views to date. 8 Umenyiora
Aff. ¶¶ 7-8, ECF No. 2 at 10. WizKid’s rise into the
consciousness of North American popular culture will undoubtedly
raise Runtown’s profile in North America and in other markets.
It will be virtually impossible to quantify the losses that
EricMany will suffer if it is not affiliated with Runtown during
this critical time for Nigerian music.
The harm that Runtown’s actions may cause to EricMany
has already been recognized by the Federal High Court in Lagos,
Nigeria. The Nigerian court issued an interim injunction dated
May 20, 2016, that enjoins Runtown from, among other things,
“attending or participating at any musical, artistic shows or
concert as a singer, musical artiste or performer . . . without
7 Drake’s “One Dance” (ft. WizKid and Kyla) has been number one on the
Billboard Hot 100 chart for three straight weeks. See
http://www.billboard.com/articles/columns/chart-beat/7386139/drake-one-dancehot-100-ariana-grande-dangerous (last visited June 2, 2016 at 9:30 a.m.).
8 See LAGOS TO KAMPALA (Official Music Video) - Runtown ft. Wizkid,
https://www.youtube.com/watch?v=PLYotsLtw78 and BEND DOWN PAUSE (Official Music
Video) - Runtown ft. Wizkid & Walshy Fire,
the Plaintiff[’s] prior approval, during the duration of the
Artiste agreement between the Plaintiff and [Runtown].” Nigerian
Court Order, ¶ 1, ECF No. 2 at 37. Without determining whether
the Nigerian court’s order is binding on this court, this court
nonetheless finds that the Nigerian court’s injunction weighs in
favor of granting a temporary restraining order against Runtown
because another court of competent jurisdiction has already
enjoined defendant Runtown from performing as a singer, musical
artiste or performer, etc.
Therefore, plaintiff has established that it is at
risk for imminent and irreparable harm as a result of actions by
Runtown and the Bugu defendants. 9 See Ticor Title Ins. Co. v.
Cohen, 173 F.3d 63, 69 (2d Cir. 1999) (where the Second Circuit
affirmed the district court’s finding of irreparable harm,
noting that “it would be very difficult to calculate monetary
damages that would successfully redress the loss of a
relationship with a client that would produce an indeterminate
amount of business in years to come”); Coastal Distrib., 2006 WL
270252, at *3 (noting that “loss of business opportunities and
Based on credible testimony by Mr. Fatogun at the Show Cause Hearing, the
court finds that plaintiff failed to establish irreparable harm as to Mr.
Fatogun and Vibesland Entertainment. Therefore, the court denies plaintiff’s
request for a TRO as to Mr. Fatogun and Vibesland Entertainment.
relationships with clients who could ‘produce an indeterminate
amount of business over years to come’ are also hard to measure
in dollars and are properly considered irreparable harm”)
(quoting Register.com, Inc., 356 F.3d at 393).
B. With respect to Runtown and the Bugu defendants, plaintiff
has established (1) a likelihood of success on the merits
and (2) serious question going to the merits making them
fair ground for litigation and a balance of hardships
tipping deciding in plaintiff’s favor.
Second Circuit case law requires that a party show not
only irreparable harm but also either “(a) a likelihood of
success on the merits or (b) sufficiently serious questions
going to the merits to make them a fair ground for litigation
and a balance of hardships tipping decidedly in the movant’s
favor.” MyWebGrocer, LLC v. Hometown Info., Inc., 375 F.3d 190,
192 (2d Cir. 2004).
Given the facts presently before the court, it is
likely that plaintiff will be successful on the merits arising
from Runtown’s alleged breach, with the assistance of the Bugu
defendants, of Runtown’s agreement with plaintiff. The Agreement
contains a choice of law provision which states that Nigerian
law and processes govern disputes arising under the Agreement.
See Agreement ¶ 10, ECF No. 2 at 31-32. Notwithstanding the
present lack of submissions regarding Nigerian contract law and
the Agreement’s dispute resolution provision under Nigerian law,
plaintiff has presented evidence indicating that defendant
Runtown, assisted by the Bugu defendants, have taken actions
that appear to be in direct contravention of several provisions
in the Agreement, and that Runtown has engaged in “industry
activity” with the Bugu defendants without EricMany’s consent or
involvement. These actions may constitute a breach of the
Agreement. Some of the provisions that are likely to be crucial
to a breach of contract analysis are:
Para 1: The Agreement “shall apply worldwide in all
terrestrial environments and markets known and unknown. .
. . Artiste shall not enter into similar agreement, or
agreement dealing with the same subject-matter as is
provided for herein, with any third party, save and
except as . . . may be herein provided for.” Agreement,
ECF No. 2 at 27-32.
Para 2: “Parties also vouch to refrain and to abstain
from any and all activity or activities which reasonably
can result in the circumvention of and or competition
with the legal and personal interest(s) of the other
Para 3: “Professional, all-aspects management, promotion,
third party dealings and representation of the Artiste
and of work(s) of the Artiste either by the Label
personally or outsourced to an agreeable third party
promoter or other specialist agency. . . .” Id.
Para 3: “Securing live shows and performances, in public
or by private treaty, whereat the Artiste performs before
an audience or audiences. . . .” Id.
Para 4: “[I]n a situation wherein the Artiste favorably
considers industry activity or opportunity—including
press conferences and matters in the public domain—
nevertheless outside the Agreement, the Artiste shall
immediately notify the Label in sufficient detail. . . .”
Here, plaintiff asserts that Runtown, assisted by the
Bugu defendants, entered into agreements with other parties and
engaged promoters that organized and booked the U.S. tour
without EricMany’s consent or involvement. These actions appear
to be in violation of certain terms of the Agreement, and
therefore, plaintiff likely has a meritorious breach of contract
claim against Runtown.
The court has evaluated the current record and it
finds “sufficiently serious questions going to the merits to
make them a fair ground for litigation and a balance of
hardships tipping decidedly in the movant’s favor.” MyWebGrocer,
LLC v. Hometown Info., Inc., 375 F.3d 190, 192 (2d Cir. 2004).
As discussed above, plaintiff has presented evidence of a myriad
of actions taken by Runtown, assisted by the Bugu defendants,
which appear to run in direct contravention of the Agreement.
These circumstances present serious questions that may require
further court intervention in order to reach a resolution. In
fact, the plaintiff and Runtown are litigating in two forums;
this court and in the Nigerian Federal High Court. Further, the
balance of hardships tips decidedly in plaintiff’s favor as it
is likely EricMany will suffer not only loss of his investment
and financial opportunities, but will likely suffer irreparable
harm due to reputational damage, insolvency and becoming a
record label without a recording artist because of Runtown and
the Bugu defendants’ actions. 10 Roso-Lino Beverage Distrib., Inc.
v. Coca-Cola Bottling Co. of N.Y., 749 F.2d 124, 125-26 (2d Cir.
1984) (finding that plaintiff’s loss of distributorship with
defendant, an ongoing relationship representing many years of
Because Runtown and the Bugu defendants failed to appear or submit
opposition papers, despite having notice of the plaintiff’s application, the
court considers a record devoid of their opposition.
effort and the livelihood of its husband and wife owners, tips
in favor of plaintiff). Thus, plaintiff has satisfied the second
prong of the Second Circuit’s test for establishing adequate
grounds for a temporary restraining order against Runtown and
the Bugu defendants.
C. Plaintiff’s attorney has certified in writing the efforts
made to give notice to the defendants.
Plaintiff’s counsel made several attempts to contact
and notify all named defendants regarding plaintiff’s intention
to seek an Order to Show Cause and application for a TRO.
Plaintiff’s counsel spoke to representatives for two of the
named defendants on May 28, 2016 and May 30, 2016 and put them
on notice that EricMany would be making the present application.
See ECF No. 2 at 7-8. On May 30, 2016, after several attempts to
reach the other defendants, but with no avail, plaintiff’s
counsel emailed all defendants and advised that the plaintiff
would be seeking a temporary restraining order. Id. Further
notice to, and service on, the defendants of the Order to Show
Cause by email or facsimile was approved by the Court’s June 1,
2016 Order because Runtown’s alleged June 3, 2016 performance
was only two days away, and the Show Cause hearing regarding the
TRO was scheduled for June 2, 2016 at 2 p.m. Plaintiff’s counsel
represented to the court at the Show Cause Hearing that on June
1, 2016, she served all defendants via email with the Order to
Nonetheless, the only defendants to appear on June 2,
2016 were the Vibesland defendants. They opposed the TRO as to
themselves and asked that they be dismissed from this action.
Based on Mr. Fatogun’s credible testimony at the Show Cause
Hearing and for the reasons set forth above, the court denies
plaintiff’s application for a TRO against Mr. Fatogun and
Vibesland Entertainment. The court advised the Vibesland
defendants that it would respectfully defer their requests for
dismissal for decision by the Honorable Judge Brodie.
Accordingly, it is hereby
ORDERED that sufficient reason having been shown,
therefore, pending the hearing of plaintiff’s application for a
preliminary injunction, pursuant to Fed. R. Civ. P. Rule 65 on
June 14, 2016 at 11 a.m. before the Honorable Margo Brodie in
Courtroom 6F North, Runtown and the Bugu defendants are
temporarily restrained and enjoined from singing, appearing,
hosting, performing, promoting, arranging, facilitating,
scheduling, advertising or permitting the performance of Douglas
Jack Agu “Runtown” at any venue on or after June 3, 2016; and it
ORDERED that because plaintiff had no knowledge of
scheduled performances or promotions by or involving Runtown,
other than the performances in the two California clubs and the
promotional tour organized by the Vibesland defendants, and
because the Vibesland defendants have canceled said tour and
agreed to cease all promotional activities on the Vibesland
defendants’ social media accounts and all other Vibesland
promotional vehicles relating to Runtown, the court orders that
plaintiff post a bond of $5,000 to cover the costs and damages
sustained by any party found to have been wrongfully restrained
pursuant to the Temporary Restraining Order, as provided in Fed.
R. Civ. P. 65(c); and it is further
ORDERED that actual notice by personal service or
otherwise of a copy of this order upon the defendants or their
counsel on or before June 7, 2016, be deemed good and sufficient
June 3, 2016
Brooklyn, New York
Kiyo A. Matsumoto
United States District Judge
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