Documente Academic
Documente Profesional
Documente Cultură
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vs.
SPOTIFY USA INC., a Delaware
corporation,
Defendant.
SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
TABLE OF CONTENTS
Page
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TABLE OF AUTHORITIES.....................................................................................ii
INTRODUCTION .............................. ERROR! BOOKMARK NOT DEFINED.
BACKGROUND ................................ ERROR! BOOKMARK NOT DEFINED.
ARGUMENT...................................... ERROR! BOOKMARK NOT DEFINED.
I.
Plaintiffs Filed This Motion Despite Spotifys Willingness To
Provide Them With Most Of The Communications In Spotifys
Possession That They Have Requested.Error! Bookmark not defined.
II.
Plaintiffs Improperly Seek Relief Directed At, And Based On
The Alleged Conduct Of, The NMPA, Which Is Not A Party To
This Litigation....................................Error! Bookmark not defined.
III. Plaintiffs Demand To Review And Approve Future
Communications By Spotify Violates The First Amendment.Error! Bookma
A.
Plaintiffs Allege No Improper Communications By
Spotify......................................Error! Bookmark not defined.
B.
Spotifys Communications With Publishers Regarding
The NMPA Agreement Have Been Extremely Limited
And Are Not Coercive.............Error! Bookmark not defined.
CONCLUSION................................... ERROR! BOOKMARK NOT DEFINED.
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i
SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
TABLE OF AUTHORITIES
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Page
CASES
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Camp v. Alexander,
300 F.R.D. 617 (N.D. Cal. 2014) ....................................................................... 16
Castaneda v. Burger King,
2009 WL 2382688 (N.D. Cal. July 31, 2009) .................................................... 11
Chase Natl Bank v. City of Norwalk,
291 U.S. 431 (1934) ............................................................................................. 9
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ii
SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
TABLE OF AUTHORITIES
(continued)
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Page
Jenifer v. Delaware Solid Waste Auth.,
1999 WL 117762 (D. Del. Feb. 25, 1999) ......................................................... 15
Keystone Tobacco Co., Inc. v. U.S. Tobacco Co.,
238 F. Supp. 2d 151 (D.D.C. 2002) ................................................................... 15
Kleiner v. First National Bank,
751 F.2d 1193 (11th Cir. 1985).................................................................... 16, 17
In re McKesson HBOC, Inc. Securities Litigation,
126 F. Supp. 2d 1239 (N.D. Cal. 2000) ............................................................... 9
Microsystems Software, Inc. v. Scandinavia Online AB,
226 F.3d 35 (1st Cir. 2000) .................................................................................. 9
New York v. Operation Rescue Natl,
80 F.3d 64 (2d Cir. 1996) ..................................................................................... 7
Parks v. Eastwood Ins. Servs., Inc.,
235 F. Supp. 2d 1082 (C.D. Cal. 2002).................................................... 2, 11, 13
Quezada v. Schneider Logistics Transloading & Distribution,
2013 WL 1296761 (C.D. Cal. Mar. 25, 2013) ................................................... 16
Singer v. Live Nation Worldwide,
2012 WL 123146 (C.D. Cal. Jan. 13, 2012)......................................................... 7
Talamantes v. PPG Indus., Inc.,
2014 WL 4145405 (N.D. Cal. Aug. 21, 2014)................................................... 11
Talavera v. Leprino Foods Co.,
2016 WL 880550 (E.D. Cal. Mar. 8, 2016) ....................................................... 16
Valdovinos v. County of Los Angeles,
2008 WL 2872648 (C.D. Cal. Jul. 23, 2008) ....................................................... 7
Weight Watchers of Phila., Inc. v. Weight Watchers Intl, Inc.,
455 F.2d 770 (2d Cir. 1972) ............................................................................... 12
Wright v. Adventures Rolling Cross Country, Inc.,
2012 WL 2239797 (N.D. Cal. June 15, 2012) ................................................... 16
Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100 (1969) ............................................................................................. 8
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iii
SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
TABLE OF AUTHORITIES
(continued)
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Page
Zepeda v. I.N.S.,
753 F.2d 719 (9th Cir. 1983)................................................................................ 7
RULES
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
INTRODUCTION
initial matter, Plaintiffs fail to mention that Spotify has agreed to disclose to them
both the agreement it has reached with the National Music Publishers Association
protections and processes of a protective order. But rather than see that common-
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filed just hours after this motionoffers some clues. The lead counsel motion
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describes this motion at length, specifically asserting that it bolsters their claim to
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Any such motivation would be unfortunate, especially given that Spotify had
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already agreed to provide much of the information Plaintiffs sought, rendering the
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motion unnecessary.
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beyond Spotify to target the NMPA. Indeed, Plaintiffs focus largely on alleged
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communications made by the NMPA, not Spotify. E.g., Mot. 7-12. But their
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attempt to obtain discovery from and injunctive relief against the NMPA via this
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motion is improper for the simple reason that the NMPA is not a party to this
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lawsuit. Plaintiffs attempt to bridge that gap by treating Spotify and the NMPA
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interchangeably, but these assertions are contrary to common sense as well as the
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facts. Spotify and the NMPA are independent and separately-represented entities
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who are, after all, counterparties to the NMPA Agreement. What is more, the
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months before this lawsuit was filed. See Decl. of Natalie Margulies 4-6. The
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Federal Rules of Civil Procedure foreclose Plaintiffs bait and switch: Rule 65
does not authorize the Court to enjoin communications by nonparty NMPA, and if
Plaintiffs wish to acquire any documents that are in NMPAs possession, their
members about the NMPA Agreement have been exceedingly limitedthey urge
the Court to impose a broad prior restraint on any future speech by Spotify
concerning the NMPA Agreement or any settlement. The Court should reject that
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settlementsare not only permitted, but protected by the First Amendment. See
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Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). As the Supreme Court made clear in
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any such order must be narrowly drawn to limit[] speech as little as possible. Id.
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their counsel should not be required to obtain prior judicial approval before
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serious misconduct. Parks v. Eastwood Ins. Servs., Inc., 235 F. Supp. 2d 1082,
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1084 (C.D. Cal. 2002) (emphasis added) (citing Gulf Oil, 452 U.S. at 94-95, 101-
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02). There has been no misconduct at all by Spotify heremuch less serious
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substitute for the clear record and specific findings required for judicial
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intervention.
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
1
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BACKGROUND
Plaintiffs description of the events leading up to this motion (see Mot. 4-6)
because Spotify has not agreed to provide a copy of the agreement [with the
the unremarkable condition that the parties first enter into a protective order to
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information. Rather than take Spotify up on that offer, Plaintiffs moved the goal-
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posts, demanding for the first time shortly before the filing of this motion that
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Spotify produce documents in the NMPAs possession rather than just those in
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Spotifys possession.
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now claiming that Spotify . . . refused to cooperate with Plaintiffs in resolving this
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issue. Mot. 3.
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The actual timeline of events surrounding the NMPA Agreement and the
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parties correspondence thus tells a far different story than the one Plaintiffs tell in
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their motion. Those events begin well before this lawsuit or the related Ferrick
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action were filed: Spotify and the NMPA began arms-length negotiations and
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unmatched works in June 2015; the parties exchanged proposed terms for an
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Spotify and the NMPA reached a final, bilateral agreement in March 2016. Id. 4.
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Although the specific terms of the NMPA Agreement are confidential, an overview
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of the Agreement was announced to the public in a press release on March 17,
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2016, jointly issued by the NMPA and Spotify. Id. 4 & Ex. 1.
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
On Thursday, March 24, 2016, a week after that press release, Plaintiffs
counsel sent Spotify (through its counsel) a letter seeking a copy of the settlement
agreement between NMPA and Spotify, as well as any notifications that have been
sent to NMPA members (to the extent Spotify possesses them) regarding their
ability to opt-in or opt-out of the settlement. Hanna Decl. Ex. F. The letter
independent entity, Plaintiffs counsel sent the NMPA a similar letter requesting
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the NMPA Agreement and any notifications that have been sent to NMPA
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Id.
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The NMPA, through separate outside counsel, sent Plaintiffs a letter the next
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day denying their request for documents, pointing out the indisputable facts that
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the NMPA is not a party to this case and that Plaintiffs counsel does not currently
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represent any publishers or songwriters besides the named Plaintiffs. Hanna Decl.
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Ex. H.
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of liability and seeking more information about Plaintiffs request. Hanna Decl.
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Ex. I. Spotifys counsel offered to make ourselves available for a meet and
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There was no response on this issue for eleven days. Then, on April 8, 2016,
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Plaintiffs counsel sent an email expressing the inten[t] to bring the issue to the
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Courts attention via a motion, on the apparent belief that Spotify had declined
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in their March 24 letter. Hanna Decl. Ex. J, at 128. Spotifys counsel responded to
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that email on the same day, pointing out that Spotify had not declined the request
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
After further email exchanges, the parties agreed to a telephonic meet and
confer on April 14 and that the meet and confer would be considered timely for
See id. at 122-25. During that meet and confer, as memorialized by an email from
all documents made by either Spotify and/or NMPA to the NMPA members
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Spotify sent back a detailed response the next day (Friday, April 15, 2016),
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pointing out that Spotify has agreed to produce the[] documents initially
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and any notifications that have been sent to NMPA members regarding their ability
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to opt in or opt out of the Agreement to the extent Spotify possesses them
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provided that they are governed by an operative protective order that contains the
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protections required under the Agreement. Id. at 121. As for Plaintiffs new
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that it is not appropriate or even practicable for Spotify to agree to produce a third
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partys documents that are not in its own possession, custody or control, and that
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Plaintiffs were free to seek any documents from the NMPA through the subpoena
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procedure. Id. Spotify agreed not to object to such a subpoena based on Rule
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26(f) requirements, noting that that is the most Spotify can commit to do vis-a-
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vis third party documents that Spotify does not control. Id. Spotify made clear,
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however, that it had not waived any meet and confer requirements under the local
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rules with respect to Plaintiffs new request for third-party documents. Id.
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Plaintiffs spurned Spotifys offer to provide them with the documents that
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they had originally requested. It appears that their counsel was determined to get
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something on file in this Court in order to buttress their motion for appointment of
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
lead interim class counsel, which was filed later the same day. See Dkt. No. 47.
Indeed, their motion for appointment of interim class counsel touted the instant
class. Id. at 11-13; see also Hanna Decl., Dkt. No. 47-1, 3-7 & Exs. A-D.
ARGUMENT
further their bid for lead interim counsel status. As detailed above, Spotify has in
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fact agreed to produce to Plaintiffs everything that they were asking for (subject to
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a commonplace protective order), with the exception of their new request for
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documents in the possession of third-party NMPA. And that new request is legally
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improper. See pp. 7-10, infra. Thus, the present motion boils down to a pointless
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waste of the Courts time on an issue that Spotify was prepared to agree upon.
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Indeed, Spotify is filing the NMPA Agreement under seal along with this
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opposition (Decl. of A John P. Mancini Ex. 1), providing the same access to the
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Agreement, subject to the protections of confidentiality (if the Court agrees), that
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I.
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Avoiding burdening the Court and the parties with this kind of unnecessary
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motion practice is precisely what this districts Local Rules are designed to
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prevent. As Judge Gutierrez has put it, [t]he meet and confer requirements of
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Local Rule 7-3 are in place for a reason; if the parties had meaningfully met and
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conferred, then a motion could have been avoided and the Courts valuable time
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Indeed, Plaintiffs have failed to comply not only with the spirit of Local
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Rule 7-3s meet and confer requirement, but also its letter. In particular, Plaintiffs
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made their request that Spotify produce documents in NMPAs possession for the
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
first time on April 14, 2016four days before this motion was filed. As to that
new requestnever before madeSpotifys counsel had not waived Local Rule 7-
3s mandate that the parties conference shall take place at least ten (10) days
prior to the filing of the motion. And courts in this district routinely deny motions
when the filing party has not properly met and conferred under Local Rule 7-3.2
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II.
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instead is to treat Spotify and the NMPA interchangeably, and to seek an order
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nominally directed at Spotify for injunctive relief and discovery that they could not
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common sense. The NMPA, as a nonparty to this litigation, is not subject to any
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injunction issued by this Court. Rule 65(d) of the Federal Rules of Civil Procedure
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court cannot lawfully enjoin the world at large. New York v. Operation Rescue
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Natl, 80 F.3d 64, 70 (2d Cir. 1996) (quoting Alemite Mfg. Corp. v. Staff, 42 F.2d
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832, 832 (2d Cir. 1930) (Hand, J.)). It is well established that [a] federal court
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may issue an injunction if it has personal jurisdiction over the parties and subject
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matter jurisdiction over the claim; it may not attempt to determine the rights of
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persons not before the court. Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983)
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(E.D. Cal. Nov. 12, 2015) ([A]bsent a substantial relationship, not present here, a
court may not enter an injunction against persons who are not parties to the case
before it.). That limit makes sense; it is a basic rule of due process that one is
Hansberry v. Lee, 311 U.S. 32, 40 (1940). Accordingly, Rule 65 mandates that an
injunction can bind only a limited universe of entities: (1) the parties; (2) their
concert or participation with them. Fed. R. Civ. P. 65(d)(2); see also Zenith
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Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969) ([A] nonparty
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participation.).
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Order parrots the in concert language of Rule 65(d)(2). See Dkt. No. 46-2, 1,
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3. But they have no basis for their repeated assertions that the NMPA is acting in
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concert with Spotify. Mot. 1, 3, 7; see also, e.g., id. at 2 (asserting that the
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NMPA is Spotifys partner); id. at 15 (asserting that the NMPA has made
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footnote, without further explanation, that because the NMPA used to own the
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Harry Fox Agency, and because the Harry Fox Agency is currently Spotifys music
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licensing agent, the NMPA agreement could not be the result of a truly
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make that flimsy assertion themselves, but rather attribute it to unspecified and
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unsubstantiated vocal public criticism about the NMPA Agreement. Id. And
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they further suggest that the NMPA Agreement could not be the result of an arms-
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length transaction because it was finalized after this lawsuit was filed. Id. at 1.
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Agreement was not a response to this litigation, but rather the product of months of
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
conversations and negotiations which had begun by June 2015, several months
before this lawsuit was filed. Margulies Decl. 5. Indeed, the negotiations were
substantially underway well before December 10, 2015, which was the date on
which Plaintiffs counsel sent a letter to Spotify regarding the potential filing of
this suit. Id. For example, Spotifys records show that by November 2015, Spotify
and the NMPA had exchanged detailed sets of proposed terms for the Agreement.
Id. Moreover, these negotiations were conducted at arms length. Id. 6. Each
which many issues were contested, and a number of aspects of the negotiation
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Accordingly, Plaintiffs showing falls far short of the narrow active concert
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or participation standard codified by Rule 65(d). As the Supreme Court has long
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held, the relationship between the party and the nonparty must be that of associate
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or confederate. Chase Natl Bank v. City of Norwalk, 291 U.S. 431, 436-37
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(1934); see also Microsystems Software, Inc. v. Scandinavia Online AB, 226 F.3d
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35, 43 (1st Cir. 2000) ([A]ctive concert requires a close alliance with the
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enjoined defendant).3 Spotify and the NMPA are counterparties to the NMPA
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(see p. 5, supra) necessarily fails as well. The way to obtain discovery from a third
party is through a subpoena under Rule 45. Indeed, courts have made clear that
[a] Rule 45 subpoena is the only discovery method by which information may be
Cal. Mar. 27, 2014) (emphasis added) (collecting cases); see also Fed. R. Civ. P.
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Plaintiffs have not even attempted to serve and enforce a subpoena here, instead
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(understandable) inability to agree to that demand as a basis for filing this motion.4
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III.
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The final relief that Plaintiffs request in their motion is an order limiting any
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members of: (1) the pendency of this litigation; (2) the nature of the litigation and
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the claims; and (3) their right to contact class counsel or any attorney of their
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Spotify.
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Proposed Order 3.
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
counsel any parties, the Supreme Court has mandated that any restrictions
infringement of the parties right to free speech. Gulf Oil, 452 U.S. at 100.
communications with putative class members must be based on a clear record and
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specific findings that reflect a weighing of the need for a limitation and the
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potential interference with the rights of the parties. Id. at 101; see also id. at 104
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(recognizing that the mere possibility of abuses does not justify routine adoption
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of a communication ban). Put another way, [t]o the extent that the district court
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of the policies of Rule 23, it may not exercise the power without a specific record
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or coercion. See, e.g., Hernandez v. Best Buy Stores, L.P., 2015 WL 7176352, at
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*15 (S.D. Cal. Nov. 13, 2015); Talamantes v. PPG Indus., Inc., 2014 WL
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4145405, at *3-5 (N.D. Cal. Aug. 21, 2014); Castaneda v. Burger King, 2009 WL
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2382688, at *5-7 (N.D. Cal. July 31, 2009); Gerlach v. Wells Fargo & Co., 2006
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WL 824652, at *7 (N.D. Cal. Mar. 28, 2006); Parks, 235 F. Supp. 2d at 1085;
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Babbitt v. Albertsons Inc., 1993 WL 128089, at *4 (N.D. Cal. Jan. 28, 1993). As
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Judge Friendly put it over four decades ago, we are unable to perceive any legal
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theory that would endow a plaintiff who has brought what would have been a
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
spurious class action under former Rule 23 with a right to prevent negotiation of
settlements between the defendant and other potential members of the class who
are of a mind to do this. Weight Watchers of Phila., Inc. v. Weight Watchers Intl,
Inc., 455 F.2d 770, 773 (2d Cir. 1972) (Friendly, C.J.). Plaintiffs have not come
close to meeting their heavy burden of showing that the extreme relief they seek is
justified here.
A.
putative class members have already been provided with distorted information.
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Mot. 7. Their use of the passive voice is telling; it obscures that all of the
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were distorted or notwere made by the NMPA, not Spotify. Id. at 7-12; Hanna
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Decl. Exs. C-E. As explained above, there is no basis for Plaintiffs intermingling
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of the two entities, and the Court cannot therefore cannot attribute these
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rights.
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inaccurate light, leaving out key pieces that undermine their narrative.
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instance, Plaintiffs take issue with a March 20, 2016 Q&A between Music
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Business Worldwide and NMPAs President and CEO, David Israelite. See Hanna
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Decl. Ex. E. But they leave out the fact that the same website had published a
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Q&A two days earlier with Plaintiffs counsel about the same Agreement. See id.
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about the NMPA Agreement, and urged putative class members to contact
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Plaintiffs Counsel on the Spotify class action lawsuit before opting in to that
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For
Agreement. Mancini Decl. Ex. 2.5 Plaintiffs position thus appears to be that they
should be free to make public comments disparaging the NMPA Agreement while
simultaneously prohibiting the NMPA (or Spotify) from commenting on the same
Agreement.
Even putting aside the marked inconsistency of that position, Plaintiffs also
about this lawsuit that Publishers will have a choiceopt in to our settlement, or
potentially be represented by one of the two class action lawsuits that have been
filed, assuming they achieve class status. Hanna Decl. Ex. E at 112. They
10
similarly fail to acknowledge that in another Q&A with Mr. Israelite that they
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claim was misleading, Mr. Israelite gave the following answer when asked about
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This agreement does not put an end to the class action suits that
have been filed against Spotify, does it?
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D.I.: Oh no! I mean, anyone who does not opt in to our settlement is
free to pursue their right in any way that they choose, including class
action. Each right owner should make the decision that is the best for
them about their own rights. This settlementand this is very
importantdoes not compromise anyones right who does not opt in.
So if you are a music publisher who does not opt in, your money will
not be given to someone else and you have all of your rights. This
settlement does not affect anyone negatively, and it only affects those
who opt in.
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argument that the NMPA has create[d] the erroneous impression that if potential
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class members choose not to opt into the Spotify Settlement, the royalties that
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belong to them will instead be paid to those who do opt in. Mot. 8. Moreover,
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the NMPA telling its members to make the decision that is best for them about
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their own rights (Hanna Decl. Ex. D at 108) is hardly encouraging individuals
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B.
As Plaintiffs would have discovered had they taken Spotify up on its offer to
produce Spotifys communications with publishers that are NMPA members rather
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with, there have been hardly any such communications at all. The only en masse
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communication regarding the NMPA Agreement that Spotify has made with the
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NMPA membership was the jointly issued press release announcing the
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Agreement. Margulies Decl. 4, 7 & Ex. 1. Plaintiffs take no issue with that
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publicly available document in their motion, nor could they. And, indeed, Spotify
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does not even have the capability to engage in such en masse communications
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itself, because it does not possess a list of the NMPAs members or their contact
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information. Id. 7.
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partners are members of the NMPA, given the NMPAs position as an industry
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trade group. Id. 8. Spotify has ongoing dialogs with its business partners about a
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variety of topics. Id. Accordingly, Spotify employees have discussed the NMPA
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members or more), primarily with the major publishers in the industry. Id.
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is needed to protect the rights of major publishers. They are highly sophisticated
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would strain all credulity for Plaintiffs to contend that these publishers are unaware
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
assessing the costs and benefits of whether to participate in the NMPA Agreement.
As courts have held, improper coercion occurs in this context when the
the potential class members. Keystone Tobacco Co., Inc. v. U.S. Tobacco Co.,
238 F. Supp. 2d 151, 158 (D.D.C. 2002) (quoting Jenifer v. Delaware Solid Waste
Auth., 1999 WL 117762, at *5 (D. Del. Feb. 25, 1999)). There is no danger of that
here; these major publishers are sophisticated business people and the
10
are free to reject if they decide the costs outweigh the benefits. Id. (quoting
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misinformation. See id. 9 & Exs. 2-3. Nor, contrary to Plaintiffs argument
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(Mot. 11-12), does the ongoing business relationship between Spotify and these
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publishers establish coercion. As one court has noted, the mere existence of a
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business relationship between the defendant and absent members of the putative
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class (here, Spotify and certain publishers) does not itself . . . justify an order
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putative class members (id. at 159)a record that is entirely absent in this case.
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Accord Burrell v. Crown Cent. Petroleum, Inc., 176 F.R.D. 239, 244 (E.D. Tex.
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Indeed, the cases on which Plaintiffs rely serve only to highlight the lack of
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coercion or abuse here. The vast majority of those cases involved an employer
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
discouraging its employees who were putative class members from participating in
a lawsuit and even threatening negative consequences if they did sothus they
involved both a coercive relationship between the defendant and the putative class
Talavera v. Leprino Foods Co., 2016 WL 880550, at *4-6 (E.D. Cal. Mar. 8, 2016)
included statements about perjury that had the potential to mislead employees
Alexander, 300 F.R.D. 617, 621 (N.D. Cal. 2014) (letter to employees seeking opt
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outs and making the repeated assertion that if the lawsuit continues because
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employees participate in it, the business will close and the employees will lose
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& Distribution, 2013 WL 1296761, at *2 (C.D. Cal. Mar. 25, 2013) (employer
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*1-5 (N.D. Cal. June 15, 2012) (multiple communications warning employees
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against participation in the class action, including claiming that the employer
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would go out of business if the class action were successful and warning plaintiffs
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that if they participate in the suit, their past transgressions will become very
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public and they will be left with tattered reputations and substantial legal bills).
See, e.g.,
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Others, like Kleiner v. First National Bank, 751 F.2d 1193 (11th Cir. 1985),
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troubling conduct. The facts in Kleinerwhere, unlike here, a class had already
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Kleiner, shortly before the class notice was to be mailed out, and while the judge
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was away on vacation, the defendant bank seized upon the idea of soliciting class
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
exclusion requests as a means to reduce its potential liability. Id. at 1197. The
banks marketing director instructed a force of 175 loan officers to begin calling
their customers to urge them to opt out by do[ing] the best selling job they had
ever done.
imposed harsh sanctions, including ruling that all opt-out requests would be
voidable at customers request upon the entry of judgment. See id. at 1199. The
district court determined that sanctions were warrantedand the Eleventh Circuit
largely upheld that rulingfor multiple reasons, including that the bank ignored
the district courts prior orders directing counsel for the Bank to refrain from
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contacting the plaintiff class, and their outside lawyer counselled the Bank to do
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so. Id. at 1207. None of these extraordinary circumstances are present here.
Id. at 1198.
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their rights are baseless. Gulf Oil accordingly precludes them from violating
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Spotifys free speech rights by obtaining an order that would allow them to
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monitor and curb all future communications between Spotify and putative class
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CONCLUSION
For all of the foregoing reasons, Spotify respectfully requests that the Court
deny Plaintiffs motion.
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO
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SPOTIFYS MEMORANDUM IN OPPOSITION TO MOTION FOR CORRECTIVE ACTION;
CASE NO. 2:15-CV-09929-BRO-RAO