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Intermediate Date Used for Prejudgment Interest in Digital Downloads Fees Suit

A magistrate for the U.S. District Court for the Southern District of New York adopted an intermediate date for determining prejudgment interest for breach of a digital music distribution contract. Orchard Enterprises NY Inc. v. Megabop Records Ltd., 09-9607. Orchard Enterprises had obtained a default judgment in a suit it filed against the U.K.-based Megabop for payment of $175,039.69 that Megabop allegedly owed Orchard for digital download sales of sound recordings. Magistrate Gabriel W. Gorenstein initially noted: “The Second Circuit [in which the Southern District of New York resides] has held that an inquest into damages may be held on the basis of documentary evidence alone, 'as long as [the court has] ensured that there was a basis for the damages specified in [the] default judgment.' ' Orchard Enterprises' submissions include an affidavit and attached documentary evidence. Because these submissions provide a basis for an award of damages, no hearing is required.” In Orchard's request for the nine percent pre-judgment interest allowed under New York law, Magistrate Gorenstein found: “Because the record is not clear as to when Megabop paid Orchard Enterprises $20,000 [of a total $195,039.69 owed], it cannot be determined when Orchard Enterprises began to incur damages from each individual invoice [Orchard submitted to Megabop]. Thus, the Court will compute prejudgment interest upon all of the damages from a single reasonable intermediate date. Orchard Enterprises has proposed [Dec.] 31, 2007 as such a date, as that is the date 'when approximately half of the amount claimed had already been invoiced.' Megabop has not challenged plaintiff's proposal of [Dec.] 31, 2007. Accordingly, we will accept that date as reasonable.” However, the magistrate denied Orchard's request for attorney fees and costs by noting that “Orchard Enterprises provides no admissible evidence to support its claim for these categories.”

Magistrate Quashes Bid to Depose Norman Lear in “Soul Men” Litigation

A magistrate for the U.S. District Court for the Middle District of Tennessee has quashed a bid by singer Sam Moore, of “Sam and Dave” fame, and his wife Joyce Moore to depose Concord Music Group CEO Norman Lear in the Moores' suit over the movie and soundtrack album Soul Men. Moore v. The Weinstein Co. LLC, 3:09-cv-166. The Moores allege, among other things, violation of right of publicity, unfair competition and trademark dilution. Federal magistrate Joe B. Brown noted: “Plaintiffs claim that because Lear is the owner of Concord and a long time leader in the entertainment industry [e.g., as producer of the hit TV shows All in the Family, Sanford and Son and The Jeffersons], he would have knowledge of the 'work and reputation' of Sam Moore.” ' Magistrate Brown went on to note that in the Sixth Circuit, within which the Middle District of Tennessee resides, “the 'apex doctrine' has been used to shield high-level corporate officials from unnecessary or burdensome depositions '.” In the Moores' case, the magistrate found: “What Plaintiffs have overlooked regarding the apex doctrine is the need for an executive to possess unique and personal knowledge of facts relating to the events at issue. Lear has declared, and Concord has emphasized, that Lear had no involvement with the production, marketing, advertising, or licensing of the movie 'Soul Men.' ' [Instead,] Concord has identified four of its employees likely to have specific personal knowledge of the Soundtrack and its production, marketing, advertising, and licensing.”

New York Laws Not Violated by Resales of Sports Game Tickets

The U.S. District Court for the Southern District of New York found no violations of New York's ticket-sale statutes by the New York Yankees, secondary-ticket seller StubHub, or StubHub owner eBay. Weinstein v. eBay Inc., 10 Civ. 8310. Plaintiff Andrea Weinstein had been redirected by the New York Yankees website to StubHub's ticket-resale website, where she purchased tickets for a Yankees game for above the face value at which the baseball team sold them. Weinstein then filed a proposed class action alleging violations of New York's Arts and Cultural Affairs Law, as well as the state's General Business Law '349(a) for deceptive practices. District Judge John F. Keenan granted the defendants' motion to dismiss the complaint. The district judge noted in part: “Plaintiff alleges that eBay, StubHub and the Yankees are each directly liable under [N.Y. Arts & Cult. Aff. Law] '25.07 for omitting the $20 face value from her electronic Yankees tickets. By its own terms, '25.07 only applies to 'operators.' An operator is 'any person who owns, operates, or controls a place of entertainment or who promotes or produces an entertainment.' N.Y. Arts & Cult. Aff. Law '25.03(5). There is no allegation, nor could there be, that Defendants eBay or StubHub own, operate, or control Yankee Stadium or promote or produce Major League Baseball games.” Judge Keenan added: “Plaintiff's claim against the Yankees is legally deficient as well. Plaintiff concedes that tickets purchased directly from the online box office, issued by Ticketmaster on behalf of the Yankees, reflect their face value. Thus, the Yankees' direct sales comply with '25.07.”

Intermediate Date Used for Prejudgment Interest in Digital Downloads Fees Suit

A magistrate for the U.S. District Court for the Southern District of New York adopted an intermediate date for determining prejudgment interest for breach of a digital music distribution contract. Orchard Enterprises NY Inc. v. Megabop Records Ltd., 09-9607. Orchard Enterprises had obtained a default judgment in a suit it filed against the U.K.-based Megabop for payment of $175,039.69 that Megabop allegedly owed Orchard for digital download sales of sound recordings. Magistrate Gabriel W. Gorenstein initially noted: “The Second Circuit [in which the Southern District of New York resides] has held that an inquest into damages may be held on the basis of documentary evidence alone, 'as long as [the court has] ensured that there was a basis for the damages specified in [the] default judgment.' ' Orchard Enterprises' submissions include an affidavit and attached documentary evidence. Because these submissions provide a basis for an award of damages, no hearing is required.” In Orchard's request for the nine percent pre-judgment interest allowed under New York law, Magistrate Gorenstein found: “Because the record is not clear as to when Megabop paid Orchard Enterprises $20,000 [of a total $195,039.69 owed], it cannot be determined when Orchard Enterprises began to incur damages from each individual invoice [Orchard submitted to Megabop]. Thus, the Court will compute prejudgment interest upon all of the damages from a single reasonable intermediate date. Orchard Enterprises has proposed [Dec.] 31, 2007 as such a date, as that is the date 'when approximately half of the amount claimed had already been invoiced.' Megabop has not challenged plaintiff's proposal of [Dec.] 31, 2007. Accordingly, we will accept that date as reasonable.” However, the magistrate denied Orchard's request for attorney fees and costs by noting that “Orchard Enterprises provides no admissible evidence to support its claim for these categories.”

Magistrate Quashes Bid to Depose Norman Lear in “Soul Men” Litigation

A magistrate for the U.S. District Court for the Middle District of Tennessee has quashed a bid by singer Sam Moore, of “Sam and Dave” fame, and his wife Joyce Moore to depose Concord Music Group CEO Norman Lear in the Moores' suit over the movie and soundtrack album Soul Men. Moore v. The Weinstein Co. LLC, 3:09-cv-166. The Moores allege, among other things, violation of right of publicity, unfair competition and trademark dilution. Federal magistrate Joe B. Brown noted: “Plaintiffs claim that because Lear is the owner of Concord and a long time leader in the entertainment industry [e.g., as producer of the hit TV shows All in the Family, Sanford and Son and The Jeffersons], he would have knowledge of the 'work and reputation' of Sam Moore.” ' Magistrate Brown went on to note that in the Sixth Circuit, within which the Middle District of Tennessee resides, “the 'apex doctrine' has been used to shield high-level corporate officials from unnecessary or burdensome depositions '.” In the Moores' case, the magistrate found: “What Plaintiffs have overlooked regarding the apex doctrine is the need for an executive to possess unique and personal knowledge of facts relating to the events at issue. Lear has declared, and Concord has emphasized, that Lear had no involvement with the production, marketing, advertising, or licensing of the movie 'Soul Men.' ' [Instead,] Concord has identified four of its employees likely to have specific personal knowledge of the Soundtrack and its production, marketing, advertising, and licensing.”

New York Laws Not Violated by Resales of Sports Game Tickets

The U.S. District Court for the Southern District of New York found no violations of New York's ticket-sale statutes by the New York Yankees, secondary-ticket seller StubHub, or StubHub owner eBay. Weinstein v. eBay Inc., 10 Civ. 8310. Plaintiff Andrea Weinstein had been redirected by the New York Yankees website to StubHub's ticket-resale website, where she purchased tickets for a Yankees game for above the face value at which the baseball team sold them. Weinstein then filed a proposed class action alleging violations of New York's Arts and Cultural Affairs Law, as well as the state's General Business Law '349(a) for deceptive practices. District Judge John F. Keenan granted the defendants' motion to dismiss the complaint. The district judge noted in part: “Plaintiff alleges that eBay, StubHub and the Yankees are each directly liable under [N.Y. Arts & Cult. Aff. Law] '25.07 for omitting the $20 face value from her electronic Yankees tickets. By its own terms, '25.07 only applies to 'operators.' An operator is 'any person who owns, operates, or controls a place of entertainment or who promotes or produces an entertainment.' N.Y. Arts & Cult. Aff. Law '25.03(5). There is no allegation, nor could there be, that Defendants eBay or StubHub own, operate, or control Yankee Stadium or promote or produce Major League Baseball games.” Judge Keenan added: “Plaintiff's claim against the Yankees is legally deficient as well. Plaintiff concedes that tickets purchased directly from the online box office, issued by Ticketmaster on behalf of the Yankees, reflect their face value. Thus, the Yankees' direct sales comply with '25.07.”