Flo & Eddie Filing

Case 2:13-cv-05693-PSG-GJS Document 498-1 Filed 10/07/16 Page 1 of 37 Page ID
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1 GRADSTEIN & MARZANO, P.C.
HENRY GRADSTEIN (89747)
2 hgradstein@gradstein.com
3 MARYANN R. MARZANO (96867)
mmarzano@gradstein.com
4 DANIEL B. LIFSCHITZ (285068)
dlifschitz@gradstein.com
5 6310 San Vicente Blvd., Suite 510
Los Angeles, California 90048
6
T: 323-776-3100
7
SUSMAN GODFREY L.L.P.
8 STEPHEN E. MORRISSEY (187865)
smorrissey@susmangodfrey.com
9 STEVEN G. SKLAVER (237612)

10 ssklaver@susmangodfrey.com
KALPANA SRINIVASAN (237460)
11 ksrinivasan@susmangodfrey.com
1901 Avenue of the Stars, Suite 950
12 Los Angeles, CA 90067-6029

13
T: 310-789-3100 F:310-789-3150
14 [Additional Counsel on Signature Page]

15
Co-Lead Class Counsel
16
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
17
18
19
FLO & EDDIE, INC., a California
20 corporation, individually and on behalf

21
of all others similarly situated,

Plaintiff,
22
23
24
v.
SIRIUS XM RADIO INC., a Delaware
corporation; and DOES 1 through 10,
25
Defendants.
Case No. 2:13-cv-05693-PSG-GJSx

PLAINTIFFS MEMORANDUM OF
CONTENTIONS OF FACT AND
LAW
Trial Date: November 15, 2016
Complaint Filed: August 1, 2013
Honorable Philip S. Gutierrez
26
REDACTED FILED UNDER SEAL
27
28
Plaintiffs Memorandum of Contentions of Fact and Law

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TABLE OF CONTENTS
Page
2
3 I.
INTRODUCTION ............................................................................................. 1
4 II.
CLAIMS AND DEFENSES ............................................................................. 3
A.
The Claims Plaintiffs Plans to Pursue..................................................... 3
B.
The Elements Required to Establish Plaintiffs Claims for

Damages, Prejudgment Interest, and Injunctive Relief .......................... 3
1.
Elements Required to Establish Plaintiffs Claim for

Damages for Sirius XMs Violation of Cal. Civ. Code
980(a)(2) and Cal. Bus. & Prof. Code 17200, Common
Law Misappropriation, and Common Law Conversion ............... 4
2.

Injunctive Relief ........................................................................... 5
3.
Elements Required to Establish Plaintiffs Entitlement to

Prejudgment Interest ..................................................................... 6
8
9
10
11
12
13
14
C.
Brief Description of the Key Evidence In Support of Plaintiffs

Claim for Damages ................................................................................. 7
D.
Summary Statement of the Counterclaims and Affirmative

Defenses Defendant Has Pleaded and Plans to Pursue ......................... 13
E.
The Elements Required to Establish Defendants Counterclaims

and Affirmative Defenses ..................................................................... 13
15
16
17
1.
Elements Required to Establish Defendants Affirmative

Defense of Laches....................................................................... 14
2.

Defense of Waiver ...................................................................... 14
3.

Defense of Estoppel .................................................................... 15
4.

Defense of Implied License ........................................................ 16
18
19
20
21
22
23
F.
24
Brief Description of the Key Evidence Relied on in Opposition

to Each Affirmative Defense................................................................. 16
25
1.
Laches ......................................................................................... 17
26
2.
Waiver ......................................................................................... 17
27
3.
Estoppel ...................................................................................... 18
28
4.
Implied License .......................................................................... 19

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1
2
G.
Anticipated Evidentiary Issues ............................................................. 19
H.
Issues of Law Which Are Germane to the Case and Plaintiffs

Position .................................................................................................. 23
1.
The appropriate measure of damages for Plaintiffs claims

for violation of Cal. Civ. Code 980(a)(2) and Cal. Bus.
& Prof. Code 17200, common law misappropriation, and
common law conversion ............................................................. 23
2.
The appropriate rate of prejudgment interest ............................. 24
3.
Whether injunctive relief is appropriate ..................................... 24
4.
Whether deficient opt outs are excluded from the class ............. 25
5.
Whether Plaintiffs are entitled to attorneys fees ....................... 25
6.
Whether Sirius XM is entitled to present evidence or

argument at trial in support of any classwide defense to
Sirius XMs liability ................................................................... 25
7.
Whether Plaintiffs Motions in Limine should be granted ......... 25
4
5
6
7
8
9
10
11
12
13
14
15
16
III.
BIFURCATION OF ISSUES.......................................................................... 26
IV.
JURY TRIAL .................................................................................................. 26
V.
ATTORNEYS FEES...................................................................................... 27
VI.
ABANDONMENT OF ISSUES ..................................................................... 29
17
18
19
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21
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23
24
25
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TABLE OF AUTHORITIES
1
2 Cases
3
A&M Records, Inc. v. Heilman,

75 Cal. App. 3d 554 (1977) ............................................................... 4, 5, 23, 24
4
5 A&M Records, Inc. v. Napster, Inc.,
6
7
239 F.3d 1004 (9th Cir. 2001) ......................................................................... 16

Adobe Sys. Inc. v. Alghazzy,
No. 15-CV-01443-BLF, 2015 WL 9478230 (N.D. Cal. Dec. 29, 2015) .......... 4
AirWair Intl Ltd. v. Schultz,

84 F. Supp. 3d 943 (N.D. Cal. 2015) .............................................................. 14
9
10 Arizona v. Tohono Oodham Nation,
11
12
818 F.3d 549 (9th Cir. 2016) ........................................................................... 14

Baghdasarian v. Amazon.Com, Inc.,
258 F.R.D. 383 (C.D. Cal. 2009) .................................................................... 22
13
Bangkok Broad. & T.V. Co. v. IPTV Corp.,

742 F. Supp. 2d 1101 (C.D. Cal. 2010)........................................................... 16
14
15 Bd. of Trs. v. Roche Molecular Sys.,
16
17
487 F. Supp. 2d 1099 (N.D. Cal. 2007) .......................................................... 15

Benson v. Kwikset Corp.,
152 Cal. App. 4th 1254 (2007) .......................................................................... 6
18
Blackie v. Barrack,
524 F.2d 891 (9th Cir. 1975) ........................................................................... 25
19
20 Burrows v. Orchid Island TRS, LLC,
21
22
No. 07CV1567-BEN WMC, 2008 WL 744735 (S.D. Cal. Mar. 18, 2008).... 27
City of S. Pasadena v. Dept of Transp.,
29 Cal. App. 4th 1280, 35 Cal. Rptr. 2d 113 (1994) ..................................... 5, 6
23
Danjaq LLC v. Sony Corp.,

263 F.3d 942 (9th Cir. 2001) ........................................................................... 14
24
25 Granite State Ins. Co. v. Smart Modular Techs., Inc.,
26
76 F.3d 1023 (9th Cir. 1996) ........................................................................... 15
Haas Automation, Inc. v. Denny,

No. 2:12-CV-04779 CBM,
2014 WL 2966989 (C.D. Cal. July 1, 2014) ........................................... 5, 6, 24
28
27

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iii

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Henderson v. J.M. Smucker Co.,

No. CV 10-4524-GHK VBKX, 2013
WL 3146774 (C.D. Cal. June 19, 2013).......................................................... 28
2
1
3 Hill v. U.S. Dept of Homeland Sec.,
570 F. Appx 667 (9th Cir. 2014).................................................................... 23
Hill v. United States,

Case No. CV 10-6327-ODW,
2012 WL 1901221, at *1 (C.D. Cal. Mar. 26, 2012) ...................................... 23
6
7 In re Conservatorship Whitley,
50 Cal. 4th 1206 (2010) ................................................................................... 28
5
8
9
10
In re Natl W. Life Ins. Deferred Annuities Litig.,

No. 3:05-cv-1018-GPC-WVG,
2013 U.S. Dist. LEXIS 20314, at *15-*16 (S.D. Cal. Feb. 14, 2013) ............ 21
11 In re Worlds of Wonder Sec. Litig.,

12
No. C-87-5491 SC (FSL),

1992 U.S. Dist. LEXIS 10503, at *12-14 (N.D. Cal. July 9, 1992)................ 22
13 Innovation Ventures, LLC v. Pittsburg Wholesale Grocers, Inc.,

14
15
No. C 12-05523 WHA, 2013 WL 1007666 (N.D. Cal. Mar. 13, 2013) ......... 24
Kacha v. Allstate Ins. Co.,
140 Cal. App. 4th 1023 (2006) ........................................................................ 15
16
Lawrence E. Jaffe Pension Plan v. Household Intl, Inc., No. 02 C 5893,

2005 U.S. Dist. LEXIS 8610, at *14 (N.D. Ill. Apr. 18, 2005) ...................... 22
17
18 Lone Ranger Television, Inc. v. Program Radio Corp.,
19
20
740 F.2d 718 (9th Cir. 1984) ....................................................................... 4, 24

Lucent Techs., Inc. Sec. Litig., No. 00 CV 621 (JAP),
2002 U.S. Dist. LEXIS 24973, at *5 (D.N.J. July 16, 2002) .......................... 22
21
MacDonald v. Ford Motor Co.,

142 F. Supp. 3d 884 (N.D. Cal. 2015) ............................................................ 28
22
23 Nitsch, et al. v. Dreamworks Animation SKG Inc., et al.,
24
25
315 F.R.D. 270 (N.D. Cal. 2016) .................................................................... 13

Oakland Raiders v. Oakland-Alameda Cty. Coliseum, Inc.,
144 Cal. App. 4th 1175 (2006) ........................................................................ 15
26
On the House Syndication, Inc. v. Fed. Express Corp.,

203 F.R.D. 452 (S.D. Cal. 2001) ..................................................................... 22
27
28
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Padres Hacia Una Vida Mejor v. Davis,

96 Cal. App. 4th 1123, 117 Cal. Rptr. 2d 727 (2002) ..................................... 14
People v. Toomey,
157 Cal. App. 3d 1, 203 Cal. Rptr. 642 (1984) ................................................. 6
3
4 Petrella v. MGM,
5
6
134 S. Ct. 1962, 188 L. Ed. 2d 979 (2014) ..................................................... 14

Plascencia v. Lending 1st Mortg., No. C 07-4485 CW,
2011 U.S. Dist. LEXIS 136078, at *7-8 (N.D. Cal. Nov. 28, 2011) .............. 21
R&R Sails, Inc. v. Ins. Co. of Penn.,

673 F.3d 1240 (9th Cir. 2012) ......................................................................... 23
8
9 Russo v. Bank of Am., N.A.,
10
11
No. D067623, 2016 WL 2937028 (Cal. Ct. App. May 17, 2016) .................. 28
Sessions v. Owens-Illinois, Inc., No. 1:07-CV-1669,
2011 U.S. Dist. LEXIS 62670, at *5-9 (M.D. Pa. June 13, 2011) .................. 22
12
Tyson Foods v. Bouaphakeo,

136 S. Ct. 1036 (2016) ............................................................................. 25, 26
13
14 United States v. Amwest Sur. Ins. Co.,
15
16
54 F.3d 601 (9th Cir. 1995) ............................................................................. 14

Vaquero v. Ashley Furniture Indus.,
824 F.3d 1150 (9th Cir. 2016) ......................................................... 2, 13, 25, 26
17
Waters v. Intl Precious Metals Corp.,

172 F.R.D. 479 (S.D. Fla. 1996) ..................................................................... 21
18
19 Wells Fargo Bank v. Bank of America,
20
21
32 Cal. App. 4th 424 (1995) ............................................................................ 14

Statutes
22 Cal. Bus. & Prof. Code 17200 ......................................................................... passim

23 Cal. Bus. & Prof. Code 17203 .................................................................................. 6
24 Cal. Civ. Code 980(a)(2) ................................................................................. passim
25 Cal. Civ. Code 3287-3288 ................................................................................ 6, 24
26 Cal. Const. Art. XV 1 ............................................................................................... 6
27
Section 1021.5 of the California Code of Civil Procedure........................................ 27
28
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Other Authorities
2 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, 1778 .... 25
3 Rules
4 Fed. R. Civ. P. 26 ....................................................................................................... 22
5
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8
9
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13
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Pursuant to Civil L.R. 16-4, Plaintiff Flo & Eddie Inc. (Flo & Eddie or
2 Plaintiff) and the Class (collectively, Plaintiffs) respectfully submit the

3 following Memorandum of Contentions of Fact and Law. As required by L.R. 16-4,
4 this Memorandum provides a brief description of the key evidence in support of
5 each of the claims asserted, and does not purport to be exhaustive or to address
6 every fact Plaintiffs may seek to establish at trial or every point of law on which
7 Plaintiffs may rely. Plaintiffs reserve the right to amend or supplement this
8 Memorandum and to supplement the evidence referenced below with additional
9 evidence at trial.
10 I.
INTRODUCTION
11
Plaintiffs bring claims against defendant Sirius XM Radio Inc. (Sirius XM
12 or Defendant) based on Sirius XMs unlicensed performance of Plaintiffs pre13 1972 recordings. The certified class consists of:
14
The owners of sound recordings fixed prior to February 15, 1972 (pre-
15
1972 recordings) which have been reproduced, performed, distributed,
16
or otherwise exploited by Defendant Sirius XM in California without a
17
license or authorization to do so during the period from August []1,
18
2009 to the present.

1
19 Dkt. 225 at 2.
Trial is Damages-Only.
20
This Court has ordered and confirmed
21 multiple times that it made a liability finding against Sirius XM and that the trial
22 will be damages-only. See Dkt. 117 (Sept. 22, 2014 Order) (holding that by
23 performing pre-1972 recordings without obtaining licenses from or paying royalties
24
25
1
The Courts order states that August 21, 2009 is the beginning date of the class
26 period, but that appears to be a typographical error as the complaint was filed on
27 August 1, 2013 and four years beforehand is August 1, 2009, which is also the
beginning of the class period alleged in the Complaint. Dkt. 1-1 ( 9).
28
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1 to owners of the recordings, Sirius XM violated California Civil Code 980(a)(2),

2 committed common law misappropriation and common law conversion, and
3 engaged in unfair competition in violation of California Business & Prof. Code
4 17203); Dkt. 225 (May 27, 2015 Order) at 17-18 ([L]iability has been determined
5 and the trial in this case will be damages-only.); Dkt. 317 (June 16, 2016
6 Order) at 5 (Court Order approving class notice: In granting Class certification
7 the Court noted that [l]iability has already been determined in this case and that
8 the trial in this case will be damages-only[.]). The Court rejected all classwide
9 liability defenses.
Dkt. 225 (May 27, 2015 Order) at 18-19. ([I]t is clear from
10 Sirius XMs testimony that these alleged licenses were never sought out or relied
11 upon by Sirius XM in its practice of performing pre-1972 recordings without formal
12 licensing because Sirius XM decided not to formally license these recordings for
13 performance based on its interpretation of the law, not an understating that owners
14 had already implied authorized performance. . . . The waiver and equitable estoppel
15 arguments are likewise implausible.). Evidence in support of any defense to
16 individual class membersand there are noneare to be handled in post-trial
17 proceedings. See Vaquero v. Ashley Furniture Indus., 824 F.3d 1150, 1156 (9th Cir.
18 2016) (approving the use of individual claim forms or the appointment of a special
19 master to handle individualized issues in a class of approximately 600 known
20 members, which plainly would allow Defendants to raise any defenses they may
21 have to individual claims.). Thus, the November 15, 2016 classwide jury trial in
22 this case is limited to the issues of damages, and Plaintiffs need only establish
23 damages across the Class for each Claim.
24
Damages. Plaintiffs seek monetary damages in the amount of
25 plus prejudgment interest, based on Sirius XMs gross revenues from California
26 subscribers attributable to Sirius XMs unauthorized performance of the Classs pre27 1972 recordings. As described below and will be proven at trial, Sirius XMs gross
28 revenues from California subscribers attributable to pre-1972 recordings for the
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1 period of August 1, 2009 to October 31, 2016 totals
. Of that amount,
2 Sirius XMs gross revenues from California subscribers attributable to pre-1972

3 recordings for class members not excluded by reason of opt-out or licenses totals
Injunction and Attorneys Fees.
Plaintiffs also seek an injunction
6 prohibiting further violation of Plaintiffs right to exclusive ownership of their pre7 1972 recordings in California and requiring Defendant to pay for its future
8 exploitation of Plaintiffs pre-1972 recordings. Plaintiffs seek attorneys fees as
9 well.
10 II.
CLAIMS AND DEFENSES
11
A.
12
Plaintiffs seek damages under California law for Defendants violations of the
The Claims Plaintiffs Plans to Pursue
13 following, which have been found as a matter of law by this Court based on Sirius
14 XMs unlicensed performance of pre-1972 recordings, see Dkt. 117:
15
Claim 1:
Defendant Violated California Civil Code 980(a)(2)
16
Claim 2:
Defendant Committed Common Law Misappropriation
17
Claim 3:
Defendant Engaged in Unfair Competition in Violation of

California Business & Prof. Code 17203
18
19
Claim 4:
Defendant Committed Common Law Conversion
20
Because liability has already been found as to these four claims on the basis
21 of public performance conduct, at trial, Plaintiffs are not pursing their alternative
22 theory of relief for the four claims that Sirius XM improperly duplicated,
23 reproduced, and copied Plaintiffs pre-1972 recordings.
25
The Elements Required to Establish Plaintiffs Claims for

Damages, Prejudgment Interest, and Injunctive Relief
26
The Court has already granted summary judgment against Defendant on
24
B.
27 liability on all of the above-stated causes of action, finding Sirius XM liable for its
28 unlicensed performance of pre-1972 recordings. See Dkt. 117, 225, and 317. At trial,
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1 Plaintiffs need only establish damages for each claim. Plaintiffs also seek injunctive
2 relief and attorneys fees.
Plaintiffs contend that the appropriate measure of damages is the same for all
4 claims, as follows:
1.
Damages for Sirius XMs Violation of Cal. Civ. Code 980(a)(2)
and Cal. Bus. & Prof. Code 17200, Common Law
Misappropriation, and Common Law Conversion
As the Court has already held, one who misappropriates the property of
5
6
9 another, commits conversion, or engages in unfair competition is liable for the gross
10 proceeds attributable to the wrongful conduct, without a deduction of costs.2
As stated more fully below, see infra Part II.C., to establish Sirius XMs gross
11
12 proceeds attributable to its unlicensed performance of pre-1972 recordings in

13 California, Plaintiffs will establish:
14
15
2
16
17
18
19
20
21
22
23
24
25
26
27
See Dkt. 411 (Sept. 8, 2016 Order) at 6 (The Court . . . has already concluded that
Plaintiffs damages model [of gross proceeds] is appropriate in this case.); Dkt. 225
(May 27, 2015 Order) at 23 (determining that damages in this case are well-suited
to streamlined determination via application of a mechanical formula and will not
require factual investigation beyond reviewing Sirius XMs records). See also
Plaintiffs Motion in Limine No. 12 (Dkt. 468); A&M Records, Inc. v. Heilman
(Heilman), 75 Cal. App. 3d 554, 570 & n.11 (1977) (affirming damages for unfair
competition in an amount equal to the gross proceeds attributable to the sale of
recorded performances which were the property of A & M Records, noting that
defendants inaccurate and incomplete books that made it impossible to verify
their alleged expenses provided an additional basis to disallow defendant to deduct
costs from plaintiffs recovery); Lone Ranger Television, Inc. v. Program Radio
Corp., 740 F.2d 718, 726 (9th Cir. 1984) (affirming gross proceeds measure of
damages for conversion under California law of intangible property rights in Lone
Ranger episode tapes); Adobe Sys. Inc. v. Alghazzy, No. 15-CV-01443-BLF, 2015
WL 9478230, at *2 (N.D. Cal. Dec. 29, 2015) (denying motion to dismiss claim for
damages under UCL for profits from sale of products that infringe the plaintiffs
trademark rights); Here, as in Adobe, Plaintiffs have a vested interest in the
recordings that Sirius XM performs, and each challenged performance of Plaintiffs
pre-1972 recordings involves a product embodying Plaintiffs intellectual property.
Adobe Sys. Inc., 2015 WL 9478230, at *2.
28
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x Sirius XMs gross revenue earned during the class period;
x the portion of that base that is attributable to Sirius XMs use of pre1972 recordings as identified by Sirius XM itself;
x the portion of the pre-1972 recording revenue attributable to California
subscribers; and
5
6
x the number of plays of those songs as identified in Sirius XMs
Consolidated Playlists, except where such recordings have been
licensed by Sirius XM or are the subject of a settlement, or the
recording has been identified as owned by a class member that has
10
opted out.
2.
Injunctive Relief
11
Plaintiffs seek an injunction prohibiting further violation of Plaintiffs right to
12
13 exclusive ownership of their pre-1972 recordings in California and requiring Sirius

14 XM to pay for its future exploitation of Plaintiffs pre-1972 recordings.3
15 Alternatively, Plaintiffs seek future damages based on a projection of future
16 revenues.
17
To obtain injunctive relief under California law, Plaintiffs must show:
18
(1) the elements of a cause of action involving the wrongful act sought
19
to be enjoined and
20
(2) the grounds for equitable relief, such as, inadequacy of the remedy
21
at law.4
22 Plaintiffs have already proven the first element because the Court granted summary
23
24
See Heilman, 75 Cal. App. 3d at 567-69 (upholding injunction prohibiting
25 defendant from advertising his products in California because the sale of his
products in California was illegal unfair competition).

4
Haas Automation, Inc. v. Denny, No. 2:12-CV-04779 CBM, 2014 WL 2966989, at
*9
(C.D. Cal. July 1, 2014) (quoting City of S. Pasadena v. Dept of Transp., 29 Cal.
27
App. 4th 1280, 1293, 35 Cal. Rptr. 2d 113 (1994)).
26
28
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1 judgment on liability with respect to Plaintiffs UCL cause of action (among

5
2 others).
Under the second prong, Plaintiffs must make a showing of threatened future
4 harm or continuing violation. Such a showing is established if there is a risk that

5 the defendant may commit the same wrong again.
Here, as discussed more fully below, infra Part II.C., Plaintiffs are able to
7 show that injunctive relief is appropriate because Sirius XM is continuing to play

8 Plaintiffs pre-1972 recordings and Sirius XMs continuing conduct demonstrates
9 that they do not plan to stop playing such recordings.
11
3.
Elements Required to Establish Plaintiffs Entitlement to
Prejudgment Interest
12
To establish the right to receive prejudgment interest at a rate of 7 percent per
10
13 annum, Plaintiffs must demonstrate: (1) damages are certain or are capable of being
14 made certain by calculation; and (2) the right to recover damages is vested in
15 Plaintiffs upon a particular day. Cal. Civ. Code 3287-3288; Cal. Const. Art. XV
16 1.
17
18
See id. A trial court has very broad discretion in formulating equitable relief in
19 unfair competition law actions. Haas 2014 WL 2966989, at *9 (quoting Benson v.
Kwikset Corp., 152 Cal. App. 4th 1254, 1277 (2007)). Cal. Bus. & Prof. Code
20 17203 provides:
21
22
23
24
25
26
27
Any person who engages, has engaged, or proposes to engage in unfair

competition may be enjoined in any court of competent jurisdiction.
The court may make such orders or judgments, including the
appointment of a receiver, as may be necessary to prevent the use or
employment by any person of any practice which constitutes unfair
competition, as defined in this chapter, or as may be necessary to
restore to any person in interest any money or property, real or
personal, which may have been acquired by means of such unfair
competition.
6
Hass, 2014 WL 2966989, at *9. (quoting People v. Toomey, 157 Cal. App. 3d 1,
20, 203 Cal. Rptr. 642 (1984)).
7
Id.
28
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Here, as discussed in detail below, infra Part II.C., Plaintiffs are able to
2 establish the right to receive prejudgment interest because Plaintiffs right to recover
3 damages that are capable of being made certain by calculation vested in Plaintiffs
4 upon the day Sirius XM played their pre-1972 recordings.
Brief Description of the Key Evidence In Support of Plaintiffs

Claim for Damages
As discussed above, because the Court has already granted summary
C.
8 judgment against Defendant on liability on all of the above-stated causes of action,

9 Plaintiffs need not establish liability at trial, but must only establish damages across
10 the Class for each claim. Plaintiffs will present through their damages expert and
11 limited documentary and fact witnesses evidence in the following general categories
12 to establish damages:
13
x Sirius XMs gross revenue earned during the class period;
14
x the portion of that base that is attributable to Sirius XMs use of pre1972 recordings as identified by Sirius XM itself;
15
16
x the portion of the pre-1972 recording revenue attributable to California

subscribers;
17
18
x the number of plays of those songs during the class period as identified
19
in Sirius XMs Consolidated Playlists, except where such recordings
20
have been licensed by Sirius XM, are the subject of a settlement, or the
21
recording has been identified by a class member that has opted out; and
22
x related calculations.
23 For Plaintiffs claim for prejudgment interest, Plaintiffs will demonstrate:

24
x damages are capable of being made certain by calculation; and
25
x the right to recover was vested in Plaintiffs upon Sirius XMs playing
of each pre-1972 recording.
26
27 For Plaintiffs claim for an injunction, which will be heard by the Court, Plaintiffs
28 will demonstrate:
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x Sirius XM continues to perform Plaintiffs pre-1972 recordings and
there is therefore a threat of continuing harm to Plaintiffs.
2
3
Specifically, Plaintiffs intend to present evidence in the form of documentary
4 evidence, including Sirius XMs business records, deposition testimony, the

5 testimony of Sirius XM employees and representatives, the testimony of Plaintiffs
6 and (possibly) class members (only if Sirius XM is permitted to introduce absent
7 class member testimony), and expert testimony to establish the following facts:
8
1.
The pre-1972 recordings that Sirius XM played during the class period
9 and the number of plays for each recording are reflected in the three separate
10 Consolidated Playlists Sirius XM produced covering the time periods August 2009
11 through May 2016, which can be used to project plays through trial. Evidence
12 includes:
SXM-F&E_00016511; SXM-F&E_00016540; SXM-F&E_00016572;
13 Sirius XMs Third Supplemental Responses and Objections to Flo & Eddie, Inc.s
14 Third Set of Interrogatories and Sirius XMs testimony concerning the same; the
15 testimony of Plaintiffs and (possibly) class members regarding pre-1972 recordings
16 they own that were played by Sirius XM; and expert testimony by Plaintiffs
17 damages expert, including projected plays through trial.
18
2.
Sirius XMs gross revenues related to pre-1972 recordings from
19 California subscribers can be calculated on a class-wide basis by multiplying, for

20 each period during the damages period, (1) Sirius XMs gross revenues by (2) the
21 percentage of performances of pre-1972 recordings on its service; and (3)
22 multiplying the result by the percentage of Sirius XMs subscribers located in
23 California. Evidence includes: Sirius XMs First, Second, and Third Supplemental
24 Responses and Objections to Flo & Eddie Inc.s Second Set of Interrogatories &
25 Attachments B, F & G and Sirius XMs testimony concerning the same; Sirius
26 XMs own methodology for calculating revenues attributable to its performances of
27 pre-1972 recordings in paying royalties to SoundExchange and Sirius XMs
28 testimony concerning the same; expert testimony by Plaintiffs damages expert.
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3.
Sirius XMs gross revenues, as reflected in the revenue base against
2 which Sirius XM applied the deduction for pre-1972 recordings in paying royalties
3 to SoundExchange, are reflected in Schedule 1S to the Supplemental Expert Report
4 of Michael J. Wallace (Wallace Supplemental Report). Evidence includes: Sirius
5 XMs First, Second, and Third Supplemental Responses and Objections to Flo &
6 Eddie Inc.s Second Set of Interrogatories & Attachment G and Sirius XMs
7 testimony concerning the same; evidence discussed in the Expert Report of Michael
8 J. Wallace (Wallace Report) and the Wallace Supplemental Report & Schedule
9 1S; expert testimony by Plaintiffs damages expert, including projected gross
10 revenues through trial.
4.
11
The percentage of performances of pre-1972 recordings on Sirius XMs
12 service during the class period is reflected in Schedule 2S to the Wallace

13 Supplemental Report. Evidence includes: Sirius XMs First, Second, and Third
14 Supplemental Responses and Objections to Flo & Eddie Inc.s Second Set of
15 Interrogatories & Attachment F and Sirius XMs testimony concerning the same;
16 evidence discussed in the Wallace Report and the Wallace Supplemental Report &
17 Schedule 2S; expert testimony by Plaintiffs damages expert and projected average
18 monthly percentages through trial.
5.
19
The total number of Sirius XM subscribers in California during the
20 class period, the total number of Sirius XM subscribers during the class period, and
21 the corresponding percentage of Sirius XM subscribers located in California is
22 reflected in Schedule 3S to the Wallace Supplemental Report. Evidence includes:
23 Sirius XMs First, Second, and Third Supplemental Responses and Objections to
24 Flo & Eddie Inc.s Second Set of Interrogatories & Attachment B and Sirius XMs
25 testimony concerning the same; evidence discussed in the Wallace Report and the
26 Wallace Supplemental Report & Schedule 3S; expert testimony by Plaintiffs
27 damages expert and projected subscribers and average monthly percentages through
28 trial.
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6.
Using the methodology outlined above, the gross revenues from
2 California subscribers attributable to the pre-1972 recordings that Sirius XM played

3 from August 1, 2009 through October 31, 2016 totals
, as reflected in
4 Schedule 4S to the Wallace Supplemental Report. Evidence includes: Sirius XMs

5 First, Second, and Third Supplemental Responses and Objections to Flo & Eddie
6 Inc.s Second Set of Interrogatories & Attachments B, F & G and Sirius XMs
7 testimony concerning the same; the Wallace Report and the Wallace Supplemental
8 Report & Schedules 1S, 2S, 3S, and 4S; expert testimony by Plaintiffs damages
9 expert.
10
7.
The percentage of Sirius XMs plays of pre-1972 recordings that were
11 not identified as owned by class members that have opted out or for which Sirius
12 XM asserts it has a settlement agreement or written license is as follows:
13 (August 2009 to September 2011);
(October 2011 to December 2012);
14 (January 2013 to October 2016), as reflected in the Wallace Supplemental Report,

15 Schedule 6S and Table 1. Evidence includes: SXM-F&E_00016511; SXM16 F&E_00016540;
17 F&E_00015996;
SXM-F&E_00016572;
SXM-F&E_00015997;
SXM-F&E_00016505;
Sirius
XMs
Third
SXM-
Supplemental
18 Responses and Objections to Flo & Eddie, Inc.s Third Set of Interrogatories and
19 attachments thereto and Sirius XMs testimony concerning the same; Sirius XMs
20 First, Second, and Third Supplemental Responses and Objections to Flo & Eddie
21 Inc.s Second Set of Interrogatories & Attachments B, F & G and Sirius XMs
22 testimony concerning the same; exclusion forms submitted by Class members that
23 opted out on or before August 30, 2016, listing the song and artist for each pre-1972
24 recording they purport to own or control; evidence discussed in the Wallace Report
25 and the Wallace Supplemental Report & Schedules thereto; expert testimony by
26 Plaintiffs damages expert.
27
8.
Class damages through October 31, 2016, total
, which
28 represents Sirius XMs gross revenues from California subscribers attributable to the
4512360v4/015185
10

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1 pre-1972 recordings that Sirius XM played during the class period, less gross
2 revenue attributable to recordings identified as owned by class members that have
3 opted out or for which Sirius XM asserts it has a settlement agreement or written
4 license. Evidence in includes: SXM-F&E_00016511; SXM-F&E_00016540; SXM5 F&E_00016572;
SXM-F&E_00016505;
SXM-F&E_00015996;
SXM-
6 F&E_00015997; Sirius XMs Third Supplemental Responses and Objections to Flo

7 & Eddie, Inc.s Third Set of Interrogatories and attachments thereto and Sirius XMs
8 testimony concerning the same; Sirius XMs First, Second, and Third Supplemental
9 Responses and Objections to Flo & Eddie Inc.s Second Set of Interrogatories &
10 Attachments B, F & G and Sirius XMs testimony concerning the same; exclusion
11 forms submitted by Class members that opted out on or before August 30, 2016,
12 listing the song and artist for each pre-1972 recording they purport to own or
13 control; evidence discussed in the Wallace Report and the Wallace Supplemental
14 Report & Schedules thereto; expert testimony by Plaintiffs damages expert.
15
9.
Sirius XMs gross revenues attributable to pre-1972 recordings from
16 California subscribers has averaged approximately
million per month in the
17 most recent 12-month period for which Sirius XM has produced data. Evidence
18 includes: Sirius XMs First, Second, and Third Supplemental Responses and
19 Objections to Flo & Eddie Inc.s Second Set of Interrogatories & Attachments B, F
20 & G and Sirius XMs testimony concerning the same; evidence discussed in the
21 Wallace Report and the Wallace Supplemental Report & Schedules 1S, 2S, 3S, and
22 4S; expert testimony by Plaintiffs damages expert.
23
10.
million is a reasonable estimate of Sirius XMs gross revenues for
24 continued performances of pre-1972 recordings in California. Sirius XMs First,

25 Second, and Third Supplemental Responses and Objections to Flo & Eddie Inc.s
26 Second Set of Interrogatories & Attachments B, F & G and Sirius XMs testimony
27 concerning the same; evidence discussed in the Wallace Report and the Wallace
28 Supplemental Report & Schedules 1S, 2S, 3S, and 4S; expert testimony by
4512360v4/015185
11

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1 Plaintiffs damages expert.

2
11.
reasonable
estimate
of
damages
for
3 performances by Sirius XM of pre-1972 recordings is

4
future
unauthorized
million per month, or
million (Sirius XMs average gross revenue attributable to pre-1972 recordings
5 from California subscribers for the most recent 12-month period for which Sirius
6 XM produced data) multiplied by
(the most recent pro-rata play count
7 percentages for pre-1972 recordings for remaining class members). Evidence

8 includes: Sirius XMs First, Second, and Third Supplemental Responses and
9 Objections to Flo & Eddie Inc.s Second Set of Interrogatories & Attachments B, F
10 & G and Sirius XMs testimony concerning the same; evidence discussed in the
11 Wallace Report and the Wallace Supplemental Report & Schedules 1S, 2S, 3S, and
12 4S; expert testimony by Plaintiffs damages expert.
13
Sirius XMs conduct is causing, and unless enjoined and restrained by
12.
14 this Court, will continue to cause, Class Members great and irreparable injury that
15 cannot fully be compensated by or measured in money. Injunctive relief is
16 appropriate because Sirius XM is continuing to play Plaintiffs pre-1972 recordings
17 and Sirius XMs continuing conduct demonstrates that they do not plan to stop
18 playing
such recordings. Evidence includes: SXM-F&E_00016511; SXM-
19 F&E_00016540;
SXM-F&E_00016572;
Sirius
XMs
Third
Supplemental
20 Responses and Objections to Flo & Eddie, Inc.s Third Set of Interrogatories and
21 Sirius XMs testimony concerning the same; the testimony of Sirius XM that it
22 continues to play Plaintiffs pre-1972 recordings.
23
13.
Prejudgment interest is appropriate in this case because damages are
24 capable of being made certain by calculation, and the right to recover was vested in
25 Plaintiffs upon Sirius XMs playing of each Plaintiffs pre-1972 recording. Evidence
26 includes: Evidence discussed in the Wallace Report and the Wallace Supplemental
27 Report & attached schedules; expert testimony by Plaintiffs damages expert.
28
Plaintiffs may also present evidence related to any defenses or damagesPlaintiffs Memorandum of Contentions of Fact and Law
4512360v4/015185
12

#:20360
1 related evidence that Sirius XM may introduce.

2
Plaintiffs reserve the right to introduce evidence in response to the affirmative
3 defenses, if any, that Sirius XM is permitted to raise before the jury (see, e.g.,
4 Plaintiffs Motions in Limine Nos. 1-7, 9), and in response to any alternative
5 damages theories, if any, that Sirius XM is permitted to raise before the jury (see
6 Plaintiffs Motions in Limine Nos. 11, 12, 13).
7
D.
Summary Statement of the Counterclaims and Affirmative

Defenses Defendant Has Pleaded and Plans to Pursue
Defendant has pleaded the following affirmative defenses, see Dkt. 38, that it
10 has indicated it plans to pursue despite the Courts liability findings that constitute
11 the law of the case:
12
First Affirmative Defense: Plaintiffs claims are barred, in whole or in part,
13 by the doctrine of laches.

14
Second Affirmative Defense: Plaintiffs claims are barred, in whole or in
15 part, by the doctrine of waiver.

16
Third Affirmative Defense: Plaintiffs claims are barred, in whole or in part,
17 by the doctrine of estoppel.

18
Fourth Affirmative Defense: Plaintiffs claims are barred, in whole or in
19 part, by an implied license conveyed by Plaintiff to Sirius XM or because Plaintiff

20 otherwise licensed, authorized, or consented to Sirius XMs alleged conduct.
21
E.
22
23
The Elements Required to Establish Defendants Counterclaims

and Affirmative Defenses
The Court has already granted summary judgment against Defendant on
24 liability on all Plaintiffs causes of action, finding Sirius XM liable for its unlicensed
25 performance of pre-1972 recordings. See Dkt. 117. Thereafter, the Court has
26 repeatedly held that the trial in this case is damages-only, and evidence in support
27 of any defense to individual class members (and there are none) can be handled in
28 post-trial proceedings, see Vaquero, 824 F.3d at 1156, as any such defenses would
4512360v4/015185
13

#:20361
1 be manageably addressed in individualized proceedings at a later phase of the case.

2 Nitsch, et al. v. Dreamworks Animation SKG Inc., et al., 315 F.R.D. 270, 313 (N.D.
3 Cal. 2016) (holding that issues unique to particular class members may be handled
4 in a manner similar to that used when individualized damages inquiries arise in class
5 action proceedings). Moreover, the Court has also held it is impossible that Sirius
6 XM will be able to satisfy any of the affirmative defenses it has pled as to any class
7 member:
1.
Defense of Laches
8
9
To prevail on a laches defense, a defendant must show:
10
(1)
11
claimant knew or should have known of the allegedly infringing
12
conduct; and;
13
(2)
14
15
The claimant unreasonably delayed in filing suit based on when the
As a result of the delay, the defendant suffered prejudice.8
However, this Court has already ruled that laches is unavailable in an action
at law for damages.9
16
17
2.
Defense of Waiver
18
To prevail on a waiver defense, a defendant must show intentional
19 relinquishment of a known right by a party with full knowledge of the facts.
10
20 Implied waiver requires clear, decisive and unequivocal conduct which indicates a
21 purpose to waive the legal rights or privileges involved, which mere silence does
22
23
24
25
26
27
AirWair Intl Ltd. v. Schultz, 84 F. Supp. 3d 943, 955 (N.D. Cal. 2015) (citing
Danjaq LLC v. Sony Corp., 263 F.3d 942, 95256 (9th Cir. 2001)).
9
Dkt. 117 at 15 (citing, inter alia, Wells Fargo Bank v. Bank of America, 32 Cal.
App. 4th 424, 439 (1995)); see aso Petrella v. MGM, 134 S. Ct. 1962, 188 L. Ed. 2d
979 (2014) (laches does not bar assertion of copyright infringement claims within
the statutory period).
10
Padres Hacia Una Vida Mejor v. Davis, 96 Cal. App. 4th 1123, 1136, 117 Cal.
Rptr. 2d 727, 736 (2002).
28
4512360v4/015185
14

#:20362
1 not satisfy.
11
Waiver may ordinarily be revoked absent a showing of prejudice.12
The Court has already ruled that Sirius XMs position throughout this
3 litigation has been that pre-1972 recording owners never knew or expected that they
4 had any control over the public performance of their recordings, and so would
5 have great difficulty establishing the known right portion of this defense.
13
6 Furthermore, because the Court ruled that Sirius XM was not induced by class
7 members conduct and instead relied entirely on its interpretation of the law, it
8 cannot demonstrate prejudice, and any waivers would thus be revocable.
14
3.
Defense of Estoppel
9
10
11
To prevail on an equitable estoppel defense, a defendant must show:
12
(1)
The party to be estopped must be apprised of the facts;
13
(2)
The party to be estopped must intend that his conduct shall be relied
14
upon, or must so act that the party asserting the estoppel had a right to
15
believe it was so intended;

(3)
16
The party asserting estoppel must be ignorant of the true state of facts;
and
17
(4)
18
The party asserting estoppel must rely upon the conduct to his injury. 15
19 An estoppel defense is, for practical purposes, indistinguishable from an implied

16
20 waiver defense.
The Court has already ruled that Sirius XM cannot claim it relied
21
22
23
24
25
26
27
11
Arizona v. Tohono Oodham Nation, 818 F.3d 549, 559-60 (9th Cir. 2016)
(quoting United States v. Amwest Sur. Ins. Co., 54 F.3d 601, 602-03 (9th Cir.
1995)).
12
Kacha v. Allstate Ins. Co., 140 Cal. App. 4th 1023, 1035 (2006).
13
Dkt. 225 at 19.
14
Id.
15
Bd. of Trs. v. Roche Molecular Sys., 487 F. Supp. 2d 1099, 1114 (N.D. Cal. 2007)
(citing Granite State Ins. Co. v. Smart Modular Techs., Inc., 76 F.3d 1023, 1027
(9th Cir. 1996)).
16
Oakland Raiders v. Oakland-Alameda Cty. Coliseum, Inc., 144 Cal. App. 4th
28
4512360v4/015185
15

#:20363
1 on class members conduct, and so cannot satisfy equitable estoppel, because its
2 practice of performing pre-1972 recordings without first seeking licenses or paying
3 royalties was based on its interpretation of the applicable law.
4
4.
17

Defense of Implied License
To prevail on an implied license defense, a defendant must show:
(1) The licensee requested the creation of the work;
(2) The licensor expressly created the work at the licensees request;
(3) The licensor handed the work over to the licensee; and
(3) The licensor intended for the licensee to copy and distribute the work.18
10
11 The Court has already rejected Sirius XMs arguments for a broader standard of
12 implied license, finding that binding Ninth Circuit precedent supplies the standard
13 here, and as class members own recordings created over four decades ago, they did
14 not create those recordings at Sirius XMs direction; therefore, Sirius XM will not
15 have credible implied license arguments as to any class members.
16
F.
17
19
Brief Description of the Key Evidence Relied on in Opposition to

Each Affirmative Defense
As discussed above, because the Court has already granted summary
18
19 judgment against Defendant on liability on all of the above-stated causes of action,

20 Defendants affirmative defenses are barred by the law of the case and need not be
21 addressed at trial, which is a damages-only trial.
To the extent Defendant attempts to nonetheless assert any affirmative
22
23 defenses at trial, however, Plaintiff will rely on the following key evidence, in
24
25 1175, 1190 (2006).
17
Dkt. 225 at 19.

Bangkok Broad. & T.V. Co. v. IPTV Corp., 742 F. Supp. 2d 1101, 1113 (C.D. Cal.
2010);
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001).
27 19
Dkt. 225 at 18-19.
26
18
28
4512360v4/015185
16

#:20364
1 addition to the Courts Orders:
1.
2
3
Laches
As to the first element of laches, Plaintiffs will rely on Defendants various
4 statements over the course of litigation that this case was the first to establish class
5 members right to control public performances of their pre-1972 recordings. See,
6 e.g., Dkt. 335 at 1. Accordingly, Defendant cannot simultaneously claim that that
7 class members knew or should have known to assert the very same right it argues
8 was unknown to all prior to these proceedings. Evidence includes: the deposition
9 testimonies of David J. Frear and Steven Blatter.
10
As to the second element of laches, Plaintiffs will rely on Defendants
11 deposition testimony and discovery responses stating that its decision to perform
12 pre-1972 recordings without first seeking licenses or paying royalties was based on
13 its interpretation of the applicable law, and not as a result of any action or inaction
14 taken by any particular class members. Evidence includes: the deposition testimony
15 of David J. Frear; Sirius XMs Responses and Objections to Flo & Eddie, Inc.s
16 First Set of Interrogatories; Sirius XMs Responses and Objections to Flo & Eddie,
17 Inc.s First Set of Requests for Production.
2.
18
19
Waiver
As to waiver, Plaintiffs will rely on Defendants various statements over the
20 course of litigation that this case was the first to establish class members right to
21 control public performances of their pre-1972 recordings. See, e.g., Dkt. 335 at 1.
22 Accordingly, Defendant cannot simultaneously claim that there was intentional
23 relinquishment of a known right by [absent class members] with full knowledge of
24 the facts at the same time it has argued that the right allegedly being relinquished
27
Plaintiffs will additionally rely on Defendants deposition testimony and
28 discovery responses stating that its decision to perform pre-1972 recordings without
4512360v4/015185
17

#:20365
1 first seeking licenses or paying royalties was based on its interpretation of the
2 applicable law, and not as a result of class members conduct, which renders any
3 waivers revocable due to lack of prejudice. Evidence includes: the deposition
4 testimony of David J. Frear; Sirius XMs Responses and Objections to Flo & Eddie,
5 Inc.s First Set of Interrogatories; Sirius XMs Responses and Objections to Flo &
6 Eddie, Inc.s First Set of Requests for Production.
3.
7
8
Estoppel
As to the first element of estoppel, Plaintiffs will rely on Defendants various
9 statements over the course of litigation that this case was the first to establish class
10 members right to control public performances of their pre-1972 recordings. See,
11 e.g., Dkt. 335 at 1. Accordingly, Defendant cannot simultaneously claim that that
12 class members were apprised of the facts regarding the very same right it argues
15
As to the second element of estoppel, Plaintiffs will rely on Defendants
16 deposition testimony and discovery responses stating that that it had no knowledge
17 of who owned any pre-1972 recordings beyond its existing direct licenses, and
18 therefore had no reason to believe any particular class members conduct allowed it
19 to exploit any particular pre-1972 recordings. Evidence includes: the deposition
21 Inc.s First Set of Interrogatories; Sirius XMs Responses and Objections to Flo &
22 Eddie, Inc.s First Set of Requests for Production.
23
As to the third element of estoppel, Plaintiffs will rely on Defendants failure
24 to disclose all advice that informed its state of mind when deciding not to license or
25 pay royalties for pre-1972 recordings, which precludes it from claiming it was
26 ignorant of the true state of facts. See Dkt. 449. Evidence includes: the deposition
28 Inc.s First Set of Requests for Production; Sirius XMs Responses and Objections
4512360v4/015185
18

#:20366
1 to Flo & Eddie, Inc.s Second Set of Requests for Production.

2
As to the fourth element of estoppel, Plaintiffs will rely on Defendants
3 deposition testimony and discovery responses stating that its decision to perform
4 pre-1972 recordings without first seeking licenses or paying royalties was based on
5 its interpretation of the applicable law, and not as a result of any action or inaction
6 taken by any particular class members. Representative evidence includes: the
7 deposition testimony of David J. Frear; Sirius XMs Responses and Objections to
8 Flo & Eddie, Inc.s First Set of Interrogatories; Sirius XMs Responses and
9 Objections to Flo & Eddie, Inc.s First Set of Requests for Production.
4.
10
11
Implied License
As to implied license, Plaintiffs will rely on evidence demonstrating that
12 Defendant came into existence decades after the creation of class members pre13 1972 recordings, and therefore could not have requested their creation, nor could
14 have any class members created their recordings at Defendants request.
15
G.
Anticipated Evidentiary Issues
16
The key disputed evidentiary issues in the case are addressed in the parties
17 motions in limine and are likely to be resolved in advance of trial. As liability has
18 already been established in favor of the Class, the principal evidentiary issue for trial
19 is the amount of damages that should be awarded to the Class. Notably, the parties
20 agree on much of the key data that is relevant to the issue of damages. The parties
21 agree on the amount of Sirius XMs revenues during the relevant time period, and
22 the portion of its revenues attributable to California. The parties and their experts
23 also are working from a common, and agreed upon, master playlist identifying the
24 pre-1972 recordings at issue, and data showing the number of each time each
25 recording was performed by Sirius XM, during the class period. The parties do not
26 agree on the total amount of revenues attributable to pre-1972 recordings. This is a
27 disputed fact issue for the jury.
28
Sirius XM also asserts various offsets and deductions from the Classs
4512360v4/015185
19

#:20367
1 claimed damages based on the costs associated with operating its business and
2 benefits that it claims Plaintiff and the Class received as a result of Sirius XMs
3 wrongful exploitation of their recordings. As detailed in Plaintiffs Motion in Limine
4 Nos. 11 and 12, Plaintiffs do not believe that these offsets and deductions are
5 appropriate or consistent with the Courts prior rulings regarding the measure of
6 damages in this case. Sirius XM would have incurred the cost of operating its
7 business regardless of its wrongful conduct, and it should not be able to reduce the
8 damages caused by its conduct by arguing to the jury that a portion of those costs
9 should be paid by the Class. Likewise, any incidental benefit that Plaintiff or other
10 artists may have received from the public performance of their recordings on Sirius
11 XM is irrelevant and is not legally cognizable as a basis for any offset to damages.
12
Sirius XM also has asserted various affirmative defenses to Plaintiffs claims.
13 As detailed in Plaintiffs motions in limine, there are disputes concerning whether

14 these defenses are viable at all in light of the Courts prior rulings, see Pls. Motion
15 in Limine No. 1 (Dkt. 444); whether they should be tried to the jury or the Court
16 insofar as the defenses are equitable rather than legal (and, if equitable, whether the
17 jury issues should proceed before or after the equitable issues for the Court), see
18 Pls. Motion in Limine No. 2 (Dkt. 445); and the evidence that Sirius XM has
19 offered in support of its defenses, see, e.g,, Pls. Motions in Limine Nos. 3-9.
20 Plaintiffs believe that Sirius XMs affirmative defenses are foreclosed by the
21 Courts prior rulings on the parties motions for summary judgment and Sirius XMs
22 motion for decertification, and that Sirius XM does not have any evidentiary basis
23 for asserting any of its defenses on a class-wide basis.
24
As for any ownership issue that Sirius XM claims remains in the case, as
25 explained in Plaintiffs Motion in Limine No. 4 (Dkt. 447), Plaintiffs believe that
26 these are simply issues for claims administration that may be resolved after trial.
27 Any owner of a pre-1972 recording who is in the Class will need to submit a claim
28 to a portion of any recovery, and in doing so will need to certify ownership of
4512360v4/015185
20

#:20368
1 specific recordings, as this Court outlined in its class certification order. See Dkt.
2 225. If there are multiple claims to ownership of the same recording that the owners
3 cannot resolve, a mini proceeding can be held to address that dispute. But that would
4 not affect the total amount of damages unless the claimant who prevails has licensed
5 its recordings to Sirius XM, and if it has, Sirius XM could seek an offset on that
6 basis in a post-trial proceeding.
7
To the extent that any of Sirius XMs affirmative defenses remain viable,
8 there are disputes regarding the admissibility of its evidence. Sirius XM seeks to
9 rely on evidence that Plaintiff and the absent class members it deposed did not
10 object to Sirius XMs performance of their recordings. Sirius XM claims that the
11 mere fact of a non-objection constitutes authorization or an implied license. But to
12 establish any such defense, Sirius XM would need to show knowledge of both the
13 right to payment for the performance and of Sirius XMs failure to make
14 requirement payments. As the Court recently noted in granting summary judgment
15 on the issue of punitive damages, its prior summary judgment ruling in this case
16 addressed novel issues under California law. Dkt. 411 (September 8, 2016 Order) at
17 3-6 (Section III.A.I. First Impression Argument). Thus, Sirius XM cannot show
18 the knowledge required to establish these defenses, whether on an individual basis
19 with respect to Flo & Eddie or on a class-wide basis. See Pls. Mot. in Limine No. 3,
20 Dkt. 446. Moreover, the testimony of absent class members is, by definition, not
21 representative of the Class as a whole, and Sirius XM has made no effort to establish
22 that it is (whether through expert testimony or otherwise).
23
Class member testimony is irrelevant where it is not properly generalized to
24 the class as a whole. In re Natl W. Life Ins. Deferred Annuities Litig., No. 3:05-cv25 1018-GPC-WVG, 2013 U.S. Dist. LEXIS 20314, at *15-*16 (S.D. Cal. Feb. 14,
26 2013) (citing Plascencia v. Lending 1st Mortg., No. C 07-4485 CW, 2011 U.S. Dist.
27 LEXIS 136078, at *7-8 (N.D. Cal. Nov. 28, 2011)). Indeed, many courts have found
28 absent class members irrelevant to common issues. See, e.g., Waters v. Intl
4512360v4/015185
21

#:20369
1 Precious Metals Corp., 172 F.R.D. 479, 486, 489 (S.D. Fla. 1996) (excluding opt2 outs and class members in light of decision to restrict the trial to common issues
3 only); In re Worlds of Wonder Sec. Litig., No. C-87-5491 SC (FSL), 1992 U.S.
4 Dist. LEXIS 10503, at *12-14 (N.D. Cal. July 9, 1992) (class members not
5 relevant to classwide reliance, knowledge of falsity, or materiality); see also, e.g.,
6 On the House Syndication, Inc. v. Fed. Express Corp., 203 F.R.D. 452, 456 (S.D.
7 Cal. 2001) (class members not relevant to common questions nor . . . necessary for
8 the resolution at trial), later decision on unrelated issues, affd in part and revd in
9 part, 79 F. Appx 247 (9th Cir. 2003); Sessions v. Owens-Illinois, Inc., No. 1:0710 CV-1669, 2011 U.S. Dist. LEXIS 62670, at *5-9 (M.D. Pa. June 13, 2011) (class
11 members irrelevant to common issues); Baghdasarian v. Amazon.Com, Inc., 258
12 F.R.D. 383, 387 (C.D. Cal. 2009) (no reliance required for UCL); Lawrence E. Jaffe
13 Pension Plan v. Household Intl, Inc., No. 02 C 5893, 2005 U.S. Dist. LEXIS 8610,
14 at *14 (N.D. Ill. Apr. 18, 2005) (class member reliance irrelevant to any class-wide
15 liability issues); In re Lucent Techs., Inc. Sec. Litig., No. 00 CV 621 (JAP), 2002
16 U.S. Dist. LEXIS 24973, at *5 (D.N.J. July 16, 2002) (41 class members not
17 helpful). While many of these decisions were in the discovery or class certification
18 context, the standard for relevance there is far broader than at trial. It thus would be
19 unfairly prejudicial to permit Sirius XM to offer testimony from individual absent
20 class members to support any class-wide inference supporting any of its affirmative
21 defenses.
22
Sirius XM has also included on its witness list Karyn Ulman of Music Report,
23 Inc. (MRI). This witness is improper because Sirius XM never disclosed Ms.
24 Ulman in its Rule 26 disclosures or in discovery responses and the Court barred
25 discovery of MRI. See Dkt. 373 (Jan. 25, 2016 Order). Rule 26 required Sirius XM
26 to identify for Plaintiffs the name and, if known, the address and telephone number
27 of each individual likely to have discoverable informationalong with the subjects
28 of that informationthat the disclosing party may use to support its claims or
4512360v4/015185
22

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1 defenses. Fed. R. Civ. P. 26(a)(1)(A)(i). If a party fails to . . . identify a witness as

2 required by Rule 26(a) or (e), the party is not allowed to use that witness to
3 supply evidence at trial, unless the failure was substantially justified or is
4 harmless. Fed. R. Civ. P. 37(c)(1). Sirius XM bears the burden of proving that its
5 failure to disclose Ms. Ms. Ulman in a timely manner is neither justified nor
6 harmlessand, on the eve of trial, it cannot meet this burden. See R&R Sails, Inc. v.
7 Ins. Co. of Penn., 673 F.3d 1240, 1246 (9th Cir. 2012); Hill v. United States, Case
8 No. CV 10-6327-ODW, 2012 WL 1901221, at *1 (C.D. Cal. Mar. 26, 2012)
9 ([T]heir testimony is excluded from trial because like the other lay witnesses [],
10 Plaintiff failed to file any initial disclosures required under Fed. R. Civ. P.
11 26(a)(1)(A)(i) identifying them as witnesses.), aff'd sub nom. Hill v. U.S. Dept of
12 Homeland Sec., 570 F. Appx 667 (9th Cir. 2014).
13
H.
14
15
Issues of Law Which Are Germane to the Case and Plaintiffs

Position
The following issues of law are relevant:
18
1.
The appropriate measure of damages for Plaintiffs claims
for violation of Cal. Civ. Code 980(a)(2) and Cal. Bus. & Prof.
Code 17200, common law misappropriation, and common law
conversion
19
The appropriate measure of compensatory damages as a remedy under
16
17
20 California law for Sirius XMs violation of Civil Code 980(a)(2) and California
21 common law misappropriation and conversion of pre-1972 recordings is Sirius
22 XMs gross proceeds generated by Sirius XMs tortious conduct, without deductions
23 for costs. See Dkt. 411 (Sept. 8, 2016 Order) at 6 (The Court . . . has already
24 concluded that Plaintiffs damages model [of gross proceeds] is appropriate in this
25 case.); Dkt. 225 (May 27, 2015 Order) at 23 (determining that damages in this
26 case are well-suited to streamlined determination via application of a mechanical
27 formula and will not require factual investigation beyond reviewing Sirius XMs
28 records); Heilman, 75 Cal. App. 3d at 570 (affirming damages for unfair
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1 competition in an amount equal to the gross proceeds attributable to the sale of

2 recorded performances which were the property of A & M Records, noting that
3 defendants inaccurate and incomplete books that made it impossible to verify
4 their alleged expenses provided an additional basis to disallow defendant to deduct
5 costs from plaintiffs recovery); Lone Ranger Television, 740 F.2d at 726 (affirming
6 gross proceeds measure of damages for conversion under California law of
7 intangible property rights in Lone Ranger episode tapes); Adobe, WL 9478230, at *2
8 (denying motion to dismiss claim for damages under UCL for profits from sale of
9 products that infringe the plaintiffs trademark rights). Here, as in Adobe, Plaintiffs
10 have a vested interest in their pre-1972 recordings that Sirius XM performs, and
11 each challenged performance of Plaintiffs pre-1972 recordings involved a
12 product embodying Plaintiffs intellectual property. Adobe, 2015 WL 9478230,
13 at *2 (quoting Innovation Ventures, LLC v. Pittsburg Wholesale Grocers, Inc., No.
14 C 12-05523 WHA, 2013 WL 1007666, at *8 (N.D. Cal. Mar. 13, 2013)). See
15 Plaintiffs Motions in Limine Nos. 11-13, Dkts. 468, 469, & 487.
2.
16
17
The appropriate rate of prejudgment interest
Prejudgment interest is appropriate at a rate of 7 percent per annum under
18 California Civil Code 3287-88.
3.
19
20
Whether injunctive relief is appropriate
Because Defendant Sirius XMs violation of California Civil Code
21 980(a)(2), California Business & Professions Code 17200, and Californias

22 common law of conversion and misappropriation is continuing, Plaintiffs are
23 entitled to injunctive relief in the form of an injunction restraining such exploitation
24 and requiring Defendant to pay for its future exploitation of Plaintiffs pre-1972
25 recordings, or, in the alternative, requiring Sirius XM to pay damages based on a
26 projection of future revenues. See Heilman, 75 Cal. App. 3d at 567-69; Hass, 2014
27 WL 2966989, at *9.
28
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4.
1
2
Whether deficient opt outs are excluded from the class
Class members who failed to timely comply with the requirements of the
3 Court approved class notice procedures remain members of the class, and their
4 deficient exclusion requests should be treated as invalid. See Plaintiffs Motion in
5 Limine No. 10, Dkt. 460.
5.
6
7
Whether Plaintiffs are entitled to attorneys fees
Plaintiffs entitlement to attorneys fees for their successful claim under the
8 UCL is addressed infra, Part V.
10
6.
Whether Sirius XM is entitled to present evidence or
argument at trial in support of any classwide defense to Sirius
XMs liability
11
Because the Court has confirmed multiple times that it made a liability
12 finding against Sirius XM and that the trial will be damages-only, see Dkt. 117,
13 Dkt. 225 at 17-18, Dkt. 317 at 5, and the United States Supreme Court and the Ninth
14 Circuit have held that a defendant should raise individualized defenses to class
15 members in post-trial proceedings, see, e.g., Tyson Foods v. Bouaphakeo, 136 S. Ct.
16 1036, 1045 (2016) (affirming jury verdict and recognizing that common questions
17 predominate even though other important matters will have to be tried separately,
18 such as damages or some affirmative defenses peculiar to some individual class
19 members (quoting 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and
20 Procedure, 1778, pps. 123-24 (3d ed. 2005)); Vaquero, 824 F.3d at 1156, Blackie
21 v. Barrack, 524 F.2d 891, 906 n.22 (9th Cir. 1975) (We think procedures can be
22 found and used which will provide fairness to the defendants and a genuine
23 resolution of disputed issues while obviating the danger of subverting the class
24 action with delaying and harassing tactics.), Sirius XM should not be permitted to
25 present evidence or argue issues at the jury trial that seek to undo this Courts
26 finding of classwide liability. See Plaintiffs Motion in Limine No. 1 (Dkt. 444).
7.
27
28
Whether Plaintiffs Motions in Limine should be granted
Plaintiffs filed 13 motions in limine to seek exclusion of, inter alia, a number
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#:20373
1 of irrelevant, liability-related issues that Sirius XM has informed Plaintiffs that it

2 seeks to interject into the trial, despite this Courts clear direction that the trial will
3 be damages-only. Plaintiffs position on these issues is set forth in the pending
4 motions and will not be repeated here.
5 III.
BIFURCATION OF ISSUES
The Court has already ordered that this will be a damages-only trial. See
7 Dkt. 225 (May 27, 2015 Order) at 17-18 ([L]iability has been determined and the
8 trial in this case will be damages-only.); Dkt. 317 (June 16, 2016 Order) at 5
9 (Court Order approving class notice: In granting Class certification the Court
10 noted that [l]iability has already been determined in this case and that the trial in
11 this case will be damages-only[.]).
Sirius XM has no classwide defense to liability available as a matter of law
12
13 that has not already been addressed in the Courts prior orders, or that cannot
14 otherwise be addressed by the Court in a bench trial on any equitable claims or
15 defense permitted to be tried, but to the extent those defenses survive and Sirius XM
16 still seeks to raise them as to individual class members, that should be handled post17 trial. See Vaquero, 824 F.3d at 1156; Tyson Foods, 136 S.Ct. at 1045.
18 IV.
JURY TRIAL
19
A timely demand for jury has been made. As set forth in Plaintiffs Motion in
20 Limine No. 1 to Exclude Evidence Relating to Sirius XMs Defenses to Liability

21 (Dkt. 444), the Court has confirmed multiple times that it made a liability finding
22 against Sirius XM and that the trial will be damages-only. See Dkt. 117; Dkt. 225
23 at 17-18; Dkt. 317 at 5. The Court has already approved on multiple occasions
24 Plaintiffs damages model. See Dkt. 411 (Sept. 8, 2016 Order) at 6 (The Court . . .
25 has already concluded that Plaintiffs damages model [of gross proceeds] is
26 appropriate in this case.); Dkt. 225 (May 27, 2015 Order) at 23 (determining that
27 damages in this case are well-suited to streamlined determination via application of
28 a mechanical formula and will not require factual investigation beyond reviewing
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#:20374
1 Sirius XMs records).
The issues triable to the jury are the following:
x the total amount of revenues attributable to pre-1972 recordings.
Depending on how the Court rules on pending motions in limine and/or
5 otherwise amends any prior orders of the Court on classwide liability and damage
6 methodologies, the issue triable to the jury may also include:
7
x what damages Plaintiffs are owed for Sirius XMs unauthorized
performances of Plaintiffs pre-1972 recordings from August 1, 2009 to
the present;
10
x whether Sirius XM has any classwide defenses; and
11
x the amount of prejudgment interest Plaintiffs should be awarded.

The issues triable to the Court are the following:
12
13
x whether any equitable defenses are legally cognizable for Sirius XM to
14
assert against any individual class member in post-trial proceedings;
15
x whether Plaintiffs are entitled to injunctive relief requiring Defendant
16
to refrain from exploiting Plaintiffs pre-1972 recordings or to pay for
17
its future exploitation of Plaintiffs pre-1972 recordings, or, in the
18
alternative, requiring Sirius XM to pay damages based on a projection
19
of future revenues; and

x whether Plaintiffs are entitled to attorneys fees, and if so, the amount
20
of attorneys fees to be awarded.
21
22 V.
ATTORNEYS FEES
23
Plaintiffs are entitled to attorneys fees for their successful UCL claim and
24 will request an award of attorneys fees in a post-trial motion. Cal. Bus. & Prof.
25 Code 17200 specifically provides for attorneys fees under Section 1021.5 of the
26 California Code of Civil Procedure. Under 1021.5, the court may award attorneys
27 fees to a successful party in an action which (a) enforces an important right
28 affecting the public interest, and (b) confers a significant benefit (pecuniary or
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#:20375
1 nonpecuniary) upon the general public or a large class of persons, if (c) the necessity
2 and cost to plaintiff in bringing its private enforcement action outweighs its stake in
3 the action. Burrows v. Orchid Island TRS, LLC, No. 07CV1567-BEN WMC, 2008
4 WL 744735, at *4 (S.D. Cal. Mar. 18, 2008). The section acts as an incentive for
5 the pursuit of public interest-related litigation that might otherwise have been too
6 costly to bring. Russo v. Bank of Am., N.A., No. D067623, 2016 WL 2937028, at
7 *7 (Cal. Ct. App. May 17, 2016).
8
Plaintiffs meet all elements here. First, Plaintiffs claim for unfair competition
9 under 17200 qualifies as an important right affecting the public interest. See
10 MacDonald v. Ford Motor Co., 142 F. Supp. 3d 884, 895 (N.D. Cal. 2015) (The
11 enforcement of the California consumer protection laws qualifies as an important
12 right affecting the public interest.) (quoting Henderson v. J.M. Smucker Co., No.
13 CV 10-4524-GHK VBKX, 2013 WL 3146774, at *10 (C.D. Cal. June 19, 2013)).
14
Plaintiffs meet the final two elements as well. [T]he necessity and financial
15 burden requirement really examines two issues: whether private enforcement was
16 necessary and whether the financial burden of private enforcement warrants
17 subsidizing the successful partys attorneys. Henderson v. J.M. Smucker Co., No.
18 CV 10-4524-GHK VBKx, 2013 WL 3146774, at *12 (C.D. Cal. June 19, 2013)
19 (quoting In re Conservatorship Whitley, 50 Cal. 4th 1206, 1214 (2010)). California
20 courts have specifically recognized the significant role ... private consumer
21 enforcement plays for many categories of unfair business practices, Henderson,
22 2013 WL 3146774, at *11.
23
Here, Plaintiffs seek damages on behalf of a class of owners of pre-1972
24 recordings for Sirius XMs unauthorized performance of pre-1972 recordings.

25 Private enforcement was necessary because no government agency sought to
26 enforce Californias unfair competition laws against Sirius XM. Id. at 12. The
27 financial burden of bringing this lawsuit against a billion dollar company would
28 have been overwhelming for class members. From the outset of this litigation, Sirius
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#:20376
1 XM has steadfastly denied all responsibility, even after the Court granted summary
2 judgment against it on liability. Sirius XM has heavily litigated this case at every
3 stage, including an (unsuccessful) request to seek leave to appeal to the Ninth
4 Circuit. As this Court observed, Sirius XM has re-raised the exact arguments the
5 Court addressed multiple times, and has left no stone unturned. Dkt. 432 (In the
6 words of Yogi Berra, its dj vu all over again.). Sirius XM is currently
7 attempting to re-assert and interject those same issues at trial.
8 VI.
ABANDONMENT OF ISSUES
At trial, Plaintiffs are not pursing for each cause of action their alternative
10 theory of relief that Sirius XM improperly duplicated, reproduced, and copied

11 Plaintiffs pre-1972 recordings.
12
13
DATED: October 7, 2016
14
15
16
GRADSTEIN & MARZANO, P.C.

Henry Gradstein
Maryann R. Marzano
Daniel B. Lifschitz
Stephen E. Morrissey
Steven G. Sklaver
Kalpana Srinivasan
17
18
19

Rachel S. Black, Admitted PHV
1201 Third Avenue, Suite 3800
Seattle, WA 98101
Telephone: (206) 516-3880
Fax: (206) 516-3883
rblack@susmangodfrey.com
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21
22
23
24

Brian Hogue, Admitted PHV
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: (713) 651-9366
Fax (713) 654-6666
25
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27
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4512360v4/015185
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#:20377
bhogue@susmangodfrey.com
1
2

Michael Gervais, Admitted PHV
1301 Avenue of the Americas, 32nd Fl.
New York, NY 10019
Telephone: (212) 729-2015
Fax (212) 336-8340
mgervais@susmangodfrey.com
3
4
5
6
7
8
By: /s/ Steven G. Sklaver

Steven G. Sklaver
9
10
Attorneys for Plaintiff FLO & EDDIE,

INC. and the Certified Class
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4512360v4/015185
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Case 2:13-cv-05693-PSG-GJS Document 498-1 Filed 10/07/16 Page 1 of 37 Page ID

1 GRADSTEIN & MARZANO, P.C.

HENRY GRADSTEIN (89747)

3 MARYANN R. MARZANO (96867)

SUSMAN GODFREY L.L.P.

8 STEPHEN E. MORRISSEY (187865)

9 STEVEN G. SKLAVER (237612)

KALPANA SRINIVASAN (237460)

1901 Avenue of the Stars, Suite 950

12 Los Angeles, CA 90067-6029

14 [Additional Counsel on Signature Page]

Co-Lead Class Counsel

UNITED STATES DISTRICT COURT

FLO & EDDIE, INC., a California

20 corporation, individually and on behalf

of all others similarly situated,

Case No. 2:13-cv-05693-PSG-GJSx

REDACTED FILED UNDER SEAL

Plaintiffs Memorandum of Contentions of Fact and Law

Case 2:13-cv-05693-PSG-GJS Document 498-1 Filed 10/07/16 Page 2 of 37 Page ID

CLAIMS AND DEFENSES ............................................................................. 3

The Claims Plaintiffs Plans to Pursue..................................................... 3

The Elements Required to Establish Plaintiffs Claims for

Elements Required to Establish Plaintiffs Claim for

Elements Required to Establish Plaintiffs Claim for

Elements Required to Establish Plaintiffs Entitlement to

Brief Description of the Key Evidence In Support of Plaintiffs

Summary Statement of the Counterclaims and Affirmative

The Elements Required to Establish Defendants Counterclaims

Elements Required to Establish Defendants Affirmative

Elements Required to Establish Defendants Affirmative

Elements Required to Establish Defendants Affirmative

Elements Required to Establish Defendants Affirmative

Brief Description of the Key Evidence Relied on in Opposition

Implied License .......................................................................... 19

Case 2:13-cv-05693-PSG-GJS Document 498-1 Filed 10/07/16 Page 3 of 37 Page ID

Anticipated Evidentiary Issues ............................................................. 19

Issues of Law Which Are Germane to the Case and Plaintiffs

The appropriate measure of damages for Plaintiffs claims

The appropriate rate of prejudgment interest ............................. 24

Whether injunctive relief is appropriate ..................................... 24

Whether Plaintiffs are entitled to attorneys fees ....................... 25

Whether Sirius XM is entitled to present evidence or

Whether Plaintiffs Motions in Limine should be granted ......... 25

JURY TRIAL .................................................................................................. 26

ABANDONMENT OF ISSUES ..................................................................... 29

Case 2:13-cv-05693-PSG-GJS Document 498-1 Filed 10/07/16 Page 4 of 37 Page ID

A&M Records, Inc. v. Heilman,

239 F.3d 1004 (9th Cir. 2001) ......................................................................... 16

AirWair Intl Ltd. v. Schultz,

818 F.3d 549 (9th Cir. 2016) ........................................................................... 14

Bangkok Broad. & T.V. Co. v. IPTV Corp.,

487 F. Supp. 2d 1099 (N.D. Cal. 2007) .......................................................... 15

Danjaq LLC v. Sony Corp.,

76 F.3d 1023 (9th Cir. 1996) ........................................................................... 15

Haas Automation, Inc. v. Denny,

Plaintiffs Memorandum of Contentions of Fact and Law

Case 2:13-cv-05693-PSG-GJS Document 498-1 Filed 10/07/16 Page 5 of 37 Page ID

Henderson v. J.M. Smucker Co.,

3 Hill v. U.S. Dept of Homeland Sec.,

570 F. Appx 667 (9th Cir. 2014).................................................................... 23

Hill v. United States,

In re Natl W. Life Ins. Deferred Annuities Litig.,

11 In re Worlds of Wonder Sec. Litig.,

Flo & Eddie Filing

Flo & Eddie Filing