[email protected] [email protected] … · 2018. 2. 8. · Hannibal Pictures, Inc. v. Sonja Productions LLC, 432 F. App’x. 700 (9th Cir. 2011) ... made any overture

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Peter L. Haviland (SBN 144967)[email protected] Scott S. Humphreys (SBN 298021) [email protected] Tanya M. Taylor (SBN 312881) [email protected] BALLARD SPAHR LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067-2909 Telephone: 424.204.4400 Facsimile: 424.204.4350 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CENTURY OF PROGRESS PRODUCTIONS; CHRISTOPHER GUEST; ROB REINER PRODUCTIONS; UNITED HEATHEN; SPINAL TAP PRODUCTIONS; HARRY SHEARER; ROB REINER; and MICHAEL MCKEAN

Plaintiffs,

v.

VIVENDI S.A.; STUDIOCANAL; RON HALPERN, an individual; UNIVERSAL MUSIC GROUP, INC.; UMG RECORDINGS, INC.; and DOES 1 through 10, inclusive,

Defendants.

)))))))))))))))))))))))))

Case No. 2:16-cv-07733-DMG (AS) PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS [Declaration of Scott Humphreys filed concurrently herewith] Hearing: March 16, 2018

Time: 9:30 a.m.

Place: Courtroom 8C, 350 West 1st Street Los Angeles, CA

Before: Honorable Dolly M. Gee

)

Case 2:16-cv-07733-DMG-AS Document 51 Filed 02/01/18 Page 1 of 30 Page ID #:566

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

TABLE OF CONTENTS

Page

I. PRELIMINARY STATEMENT ..................................................................... 1

II. INTRODUCTION ........................................................................................... 2

III. FACTUAL BACKGROUND .......................................................................... 5

IV. ARGUMENT ................................................................................................... 8

A. The Economic Loss Rule Does Not Preclude Plaintiffs’ Fraud Claim ........................................................................................... 8

1. The “Intentional Tort” Exception ................................................ 9

2. California Public Policy Strongly Favors Recognition of an Independent Cause of Action for Intentional Fraud .............. 12

3. The “Special Relationship” Exception ...................................... 14

4. The Unpublished District Court Opinion Cited by Vivendi Does Not Compel a Different Result ......................................... 15

B. UMG’s Motion to Dismiss Fails .......................................................... 18

1. Plaintiffs Have Properly Alleged Their Breach of Contract and Accounting Claims against UMG. ...................................... 18

2. UMG Is Liable for Fraud Because It Directed False Statements to Vivendi and StudioCanal Intending That Those False Statements be Communicated to Plaintiffs ............ 22

3. Reversion of Copyrights of Vivendi, StudioCanal and UMG Should Be Decided Together ................................... 23

V. CONCLUSION .............................................................................................. 24


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

TABLE OF AUTHORITIES

Page(s) Cases

Abu-Lughod v. Calis, No. CV 13-2792 DMG (RZx), 2014 WL 12589324 (C.D. Cal. Oct. 9, 2014) ........................................................ 22

Alexsam Inc. v. Green Dot Corp., No. 2:15-cv-05742-CAS (PLAx), 2017 WL 2468769 (C.D. Cal. June 5, 2017) .................................................... 15, 16

Bentham v. Bingham Law Group, No. 13-cv-1424-MMA (WVG), 2013 WL 12186171 (S.D. Cal. Nov. 11, 2013) ...................................................... 11

Bullock v. Philip Morris USA, Inc., 159 Cal. App. 4th 655 (2008) ................................................................................. 23

Crystal Pier Amusement Co. v. Cannan, 219 Cal. 184 (1933) ................................................................................................ 22

El Dorado Irrigation Dist. v. Traylor Bros., Inc., No. CIVS03949-LKK-GGH, 2006 WL 306914 (E.D. Cal. Feb. 7, 2006) ............................................................ 11

Embotelladora Electropura S.A. De C.V. v. Accutek Packaging Equip. Co., Inc., No. 3:16-CV-00724-GPC-DHB, 2016 WL 4943049 (S.D. Cal. Sept. 15, 2016) ........................................................ 11

Erlich v. Menezes, 21 Cal. 4th 543 (1999) .............................................................................. 3, 9, 10, 13

Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal. 4th 85 (1995) ........................................................................................ 13, 16

Gerritsen v. Warner Bros. Entertainment Inc., 112 F.Supp. 3d 1011 (C.D. Cal. 2015) (“Gerritsen I”), .................................... 20, 21

Gerritsen v. Warner Bros. Entertainment Inc., 116 F. Supp. 3d 1104 (C.D. Cal. 2015) (“Gerritsen II”) ......................................... 21

Goonewardene v. ADP, LLC, 5 Cal. App. 5th 154 (2016) (review granted Feb. 15, 2017) ............................... 4, 20

Hannibal Pictures, Inc. v. Sonja Productions LLC, 432 F. App’x. 700 (9th Cir. 2011) ...................................................................... 3, 10

J’Aire Corp. v. Gregory, 24 Cal. 3d 799 (1979) ............................................................................................. 14

Kalitta Air, LLC v. Central Texas Airborne Sys. Inc., 315 F. App’x. 603 (9th Cir. 2008) .................................................................... 10, 14


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iii PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Lusinyan v. Bank of America, N.A., No. CV-14-9586-DMG (JCx), 2015 WL 12777225 (C.D. Cal. May 26, 2015) ........................................................ 9

Melchior v. New Line Productions, Inc., 106 Cal. App.4th 779 (2003) .................................................................................. 19

Mirkin v. Wasserman, 5 Cal. 4th 1082 (1993) ............................................................................................ 22

No Cost Conference, Inc. v. Windstream Commc’ns, Inc., 940 F.Supp.2d 1285 (S.D. Cal. 2013) ..................................................................... 19

North American Chemical Co. v. Superior Court, 59 Cal. App. 4th 764 (1997) ............................................................................. 14, 15

R Power Biofuels, LLC v. Chemex LLC, No. 16-CV-00716-LHK, 2016 WL 6663002 (N.D. Cal. Nov. 11, 2016) ...................................................... 15

Ray Charles Foundation v. Robinson, 795 F.3d 1109 (9th Cir. 2015) ................................................................................ 24

Robinson Helicopter Co., Inc. v. Dana Corp, 34 Cal. 4th 979 (2004) .......................................................... 9, 10, 11, 12, 13, 14, 17

Roddenberry v. Roddenberry, 44 Cal. App. 4th 634 (1996) ................................................................................... 11

Shahinian v. Kimberly-Clark Corp., No. CV 14-8390-DMG (SHx), 2015 WL 4264638 (C.D. Cal. July 10, 2015) ........................................................... 9

Spinks v. Equity Residential Briarwood Apartments, 171 Cal. App. 4th 1004 (2009) ............................................................................... 21

Teselle v. McLoughlin, 173 Cal. App. 4th 156 (2009) ................................................................................. 22

Varwig v. Anderson-Behel Porsche/Audi, Inc., 74 Cal. App. 3d 578 (1977) .................................................................................... 23

Western Emulsions, Inc. v. BASF Corp., No. CV 05-5246 CBM (SSx) 2007 WL 1839718 (C.D. Cal. Jan. 19, 2007) ........................................................ 12

Statutes

California Civil Code § 1559 ..................................................................................... 19

California Civil Code § 1589 ............................................................................... 19, 21

California Civil Code § 3521 ............................................................................... 19, 21


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iv PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Other Authorities

Federal Rule of Civil Procedure 9(b) ........................................................................... 4

Federal Rules of Appellate Procedure, 32.1 .............................................................. 11

Ninth Circuit Rule 36-3 ............................................................................................. 11

Restatement Second of Torts § 533 ............................................................................ 22


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Plaintiffs hereby submit this consolidated opposition to Defendants’ two

motions to dismiss. The first motion was filed by Vivendi’s music subsidiary,

Universal Music Group, Inc. a/k/a UMG Recordings, Inc. (“UMG”) (Doc. # 44).

The second was subsequently filed by Vivendi S.A., Vivendi’s film subsidiary

StudioCanal S.A.S. and Ron Halpern (“Vivendi”) (Doc. # 49).

I. PRELIMINARY STATEMENT

In its November 8, 2017 Order, this Court ordered that “[t]o the extent possible,

each side shall file a consolidated brief rather than multiple briefs for separate parties.”

(Doc. # 43). Cynically, the Vivendi Defendants disregarded this instruction.

The gravamen of Vivendi’s motion is a renewed challenge to Plaintiffs’ claim

for fraud, based on Vivendi’s assertion, repeated from its prior motion to dismiss,

that the economic loss rule should bar fraud and punitive damages in lieu of narrower

contract damages given Vivendi’s contract with Plaintiffs. Vivendi’s chosen separate

counsel for UMG now “joins in” Vivendi’s economic loss rule argument (Munger

Mot. at p. 10, fn. 8), even though, as the Court’s docket reflects, UMG filed its own

motion to dismiss prior to Vivendi’s, and even though UMG asserts, despite its own

acknowledged responsibility for collecting music royalties payable to the Plaintiffs,

that it has no contractual or other obligation whatsoever to the Plaintiffs. It appears

that these coordinated motions were submitted separately, irrespective of the Court’s

Order, to create the misimpression of separateness in this matter between the Vivendi

entities which have in fact collaborated for years to defraud Plaintiffs.

Vivendi’s fraud has minimized and understated the value of the film, music,

merchandising, intellectual property and related rights in This Is Spinal Tap.

This devaluation has injured Plaintiffs far beyond the loss of accounting royalties.

It has led to unauthorized and widespread use of their Spinal Tap characters’ and the

Plaintiffs’ own names and likenesses; has frustrated Plaintiffs’ ability to market

related creative projects; has, by promulgating the fiction that This Is Spinal Tap was

a commercial failure, blocked a host of related opportunities which these artists,


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

notwithstanding their success in other areas, would otherwise have developed.

As the Court is aware, Vivendi’s prior motion to dismiss raised a number of

technical and procedural challenges to Plaintiffs’ complaint. In its current motion

from Irell & Manella, Vivendi has now acknowledged that those challenges are

appropriately resolved in factual discovery, and stakes its motion on a single

argument: that Plaintiffs’ fraud claim should be stricken – no longer for lack of

specificity, but solely because of the economic loss rule.

Vivendi writes that “because plaintiffs’ wildly inflated damages demand is

based predominantly on punitive damages, any prospect for a reasonable resolution

short of judgment will be impossible until this pleading defect is resolved.” (Irell

Mot. at p. 1:21-24). None of this is true. Particularly offensive is the implication that

Vivendi has at any time, over the nearly 15 months since this lawsuit was filed,

made any overture for a constructive resolution of this matter.

Rather than seek such resolution, Vivendi now repeats its litigation playbook

through its wholly owned and controlled subsidiary UMG. UMG brings a new series

of procedural challenges to every cause of action on matters again properly resolved

in discovery. Plaintiffs respectfully request that the Court deny these challenges so

that this case can proceed toward resolution on the merits. In the alternative,

Plaintiffs respectfully request leave to amend their complaint to satisfy any remaining

pleading concerns of this Court.

II. INTRODUCTION

In the Second Amended Complaint, This Is Spinal Tap co-creators Harry

Shearer, Rob Reiner and Michael McKean joined Christopher Guest in their

individual capacities, while clarifying the standing of their loan-out companies to sue.

Plaintiffs also added as defendants Vivendi’s co-conspirators and subsidiaries UMG

for their part in fraudulent accounting of music royalties, alleging in detail the

intentional misrepresentations and active concealment supporting their fraud claim.

Plaintiffs further amended to answer Vivendi’s threats of retaliation for their filing of


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

copyright termination notices to reclaim their creative ownership of Spinal Tap.

Vivendi has now withdrawn all of its challenges with one exception: that the

fraud claim is barred by the economic loss rule. That rule does not apply here.

Plaintiffs have properly alleged a scheme in which Defendants intentionally defrauded

them through active concealment and knowingly false representations of material fact.

This fraud goes beyond mere failure to account for royalties as required by contract:

it involves defendants’ anti-competitive and unfair business practices, including

improper self-dealing and cross-collateralization of revenues between Vivendi’s

integrated and related subsidiaries. This fraud has caused Plaintiffs to suffer

additional damages separate from those recoverable for breach of contract. Under

California law, the economic loss rule does not bar such intentional fraud claims.

See, e.g., Erlich v. Menezes, 21 Cal. 4th 543, 553-54 (1999) (“a tortious breach of

contract may be found when (1) the breach is accompanied by a traditional common

law tort, such as fraud or conversion; [or] (2) the means used to breach the contract

are tortious, involving deceit or undue coercion ….”) (emphasis added); Hannibal

Pictures, Inc. v. Sonja Productions LLC, 432 F. App’x. 700, 701 (9th Cir. 2011)

(“The California Supreme Court has declined to apply the economic loss rule to fraud

and misrepresentation claims where, as here, one party has lied to the other.”)

UMG, in its motion to dismiss, makes three arguments, all meritless.

First, UMG argues that it cannot be liable for breach of contract because Plaintiffs

do not “plausibly allege that UMG is a party to the [Spinal Tap Productions] (“STP”)

-Embassy Agreement.” (Munger Mot. at p. 6:12-13.) But UMG concedes that it

acquired, through its predecessors, the sound recording rights and obligations

memorialized in the Embassy Agreement. (Id. at pp. 3, 6 n. 6.) UMG is responsible

for providing the revenues it collects from these sound recordings, through Vivendi,

to Plaintiffs. (SAC ¶¶ 53, 72.) UMG admits in its briefing that it is the successor-in-

interest to Polygram Records and that it “controls copyrights in [Spinal Tap] sound

recordings.” (Munger Mot. at pp. 3, 6, 15:9-10.) UMG indisputably remains


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

responsible for collecting the sound recording revenues owed to Plaintiffs as

articulated in the Embassy Agreement. The accounting statements sent to STP

confirm this: the line items for “Gross Receipts -- Music” and “Grantor’s Share of

Net Receipts -- Music 50%” are the same as provided in the Embassy Agreement.

Furthermore, STP, as a signatory to the Embassy Agreement, and the other plaintiffs,

as intended third-party beneficiaries of that agreement, have standing to sue UMG

directly for its failure to properly account to Plaintiffs pursuant to any third-party

contracts with Embassy (now Vivendi). See Goonewardene v. ADP, LLC, 5 Cal.

App. 5th 154, 171 (2016) (review granted Feb. 15, 2017). UMG is also directly

responsible for accounting to Shearer, Guest and McKean pursuant to a September 9,

1991 agreement for the Spinal Tap album “Break Like the Wind,” which was

released in 1992 by another of UMG’s predecessors, MCA Records, Inc.

Second, UMG argues that Plaintiffs’ fraud claim fails because it is not pled

with specificity under Rule 9(b) and because UMG did not make any direct

statements to Plaintiffs. (Munger Mot. at pp. 10-13.) These arguments are equally

specious. UMG, as Vivendi’s subsidiary responsible for accounting for revenue

streams associated with the soundtrack music rights, is directly liable for fraudulent

statements made by Vivendi and its other subsidiary StudioCanal to Plaintiffs.

Plaintiffs’ complaint contains specific, factual allegations outlining Vivendi’s and

UMG’s hidden, fraudulent accounting practices and repeated, knowingly false

statements including that they were providing “accurate and reliable accountings to

Plaintiffs.” (SAC ¶ 84-92.) These allegations are more than sufficient to state a

claim for fraud against all Defendants, particularly where more expansive evidence

of the fraud is in Vivendi’s and UMG’s possession and control and can only be

obtained through legally compelled discovery.

Finally, UMG argues that the declaratory relief claim for copyright reversion

against it, as opposed to its parent and co-conspirator Vivendi, is “not ripe” because

“UMG has taken no position … with respect to its sound recording copyrights.”


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

(Munger Mot. at p. 14:9-10.) UMG attempts to distance itself from its corporate

parent, and its related subsidiary StudioCanal, which threatened to file suit against

plaintiffs to resolve this live controversy. Even if credence were given to the

implausible assertion that UMG would take a different position from Vivendi on

copyright reversion, judicial economy supports joint adjudication of the validity of

termination notices to related parties with identical effective dates.

III. FACTUAL BACKGROUND

In 1982, Plaintiffs, through STP, entered into an agreement with Embassy for

production, financing and distribution of the motion picture This Is Spinal Tap.

(SAC ¶¶ 38, 72.) Under that agreement, Embassy (or its successors or assigns) is

required to account for and pay to Plaintiffs, inter alia, 40% of all net receipts

related to the film, 50% of all gross receipts from any music for the film, and a 6%

performers’ royalty plus a 3% producer royalty of the retail price of any soundtrack

albums. (SAC ¶ 47; see also Embassy Agreement pp. 5-8, ¶¶ 4-6, Exhibit A hereto.)

The four co-creators and their loan-out companies are all intended third-party

beneficiaries of the Embassy Agreement with standing to sue to enforce it.

(SAC ¶¶ 74-75.)

The catalogue of Embassy, including unsuccessful films “bundled” with

This Is Spinal Tap, was subsequently acquired several times in a succession of

transactions until Vivendi and its subsidiaries StudioCanal and UMG ultimately

acquired pertinent rights and obligations under the Embassy Agreement. (SAC ¶¶

50-53.) Vivendi and its subsidiaries are responsible for accounting under the Embassy

Agreement: StudioCanal administers and has a duty to account for revenue streams

associated with the movie rights, and UMG administers and has a duty to account for

revenue streams associated with the soundtrack movie rights. (SAC ¶ 53.) UMG is

also required to account for royalties from another Spinal Tap album, “Break Like the

Wind” which UMG’s predecessor-in-interest MCA Records, Inc. released pursuant

to a September 9, 1991 agreement between MCA Records (now UMG) and Plaintiffs


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Shearer, Guest and McKean. (See Sept. 9, 1991 Agreement and Oct. 15, 1999

“Certificate of Merger of MCA Records, Inc. with and into UMG Recordings, Inc.,”

Exhibits B & C hereto.)

There is a complete unity of interest between Vivendi, StudioCanal and UMG.

Vivendi touts itself as “an integrated media and content group” which “operates

businesses throughout the media value chain, from talent discovery to the creation,

production and distribution of content” through its “main subsidiaries” StudioCanal

and UMG. (SAC ¶ 63.) Vivendi’s subsidiaries do not have interests independent

from Vivendi with respect to the exploitation of media and accounting obligations

owed to Plaintiffs. They operate in practice as arms or divisions of Vivendi,

responsible for administering Vivendi’s accounting obligations under the direction

and control of Vivendi. As reported in November 2015, StudioCanal and UMG both

“boosted Vivendi’s results … as the French conglomerate continues its transformation

into a global media and entertainment company.” (SAC ¶ 64.) Vivendi also exercises

direct control over its subsidiaries through the appointment of overlapping executives.

For example, Vivendi’s Chief Executive Officer, Arnaud de Puyfontaine, who serves

as Chairman of Vivendi’s Management Board, also serves as a Member of the

Supervisory Board for both the Canal+ Group and StudioCanal. In 2011, Vivendi

appointed Lucian Grainge as the new Chairman and Chief Executive Officer of

Universal Music Group, who Vivendi announced would continue to report to

Vivendi’s Chief Executive Officer and serve as a member of the Vivendi

Management Board. (SAC ¶ 66.)

Since acquiring all pertinent rights in This Is Spinal Tap, Vivendi, StudioCanal,

and UMG have issued periodic profit participation statements to STP c/o Creative

Artists Agency (“CAA”) representing to Plaintiffs that the gross receipts, expenses

and net profits specifically identified therein were truthful and accurate. (SAC ¶ 84.)

Vivendi, StudioCanal and UMG have abused the corporate form to defraud Plaintiffs

by, inter alia, engaging in anti-competitive and unfair self-dealing between Vivendi


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

subsidiaries; cross-collateralizing unsuccessful films bundled with This Is Spinal Tap

in their accounting; failing to remit accounting statements; failing to respond to

inquiries and information requests; failing to include revenues in accounting

statements; claiming undocumented and false expenses as part of a fraudulent scheme

to deprive Plaintiffs of their contractual rights; and failing to diligently exploit

available revenue streams. (SAC ¶ 65.)

Despite repeated requests made by Plaintiffs’ agents from approximately

2009 to 2012, Defendants failed to deliver to Plaintiffs numerous accounting

statements, with gaps for years that would have significantly enhanced revenue,

intentionally concealing material facts regarding the actual gross receipts, expenses

and profits owed to Plaintiffs. (SAC ¶ 85.) In the accounting statements that

Defendants did deliver to Plaintiffs, Defendants intentionally concealed and/or

omitted material facts that were known only to Defendants and that Plaintiffs could

not have reasonably discovered. (SAC ¶ 85.)

At the same time, Defendants also affirmatively represented that the

accounting statements were truthful and accurate, both in affirmative representations

made by the persons responsible for affirming their accuracy on behalf of both

StudioCanal and UMG, namely Vivendi’s agents, including Ron Halpern, and

through Defendants’ continued delivery of cumulative accounting statements without

correction or amendment by their agent Barbara DiNallo. (SAC ¶ 88.) Defendants

through their agents further affirmatively represented that they were using all

available means to promote Spinal Tap assets and enforce Spinal Tap intellectual

property to maximize revenue for the creators. (SAC ¶ 88.) These representations

were made on behalf of Vivendi, StudioCanal and UMG, which are all responsible

for exploitation of pertinent Spinal Tap rights and for accounting under the Embassy

Agreement. (SAC ¶ 90.)

It was not until in or about November 2013, when CPP and Shearer learned

the results of a study that they had commissioned regarding the accounting


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

statements and revenue streams associated with This Is Spinal Tap, that CPP and

Shearer first discovered Defendants’ fraudulent accounting practices. The other

plaintiffs did not discover the bases for their claims until after the initial complaint in

this lawsuit was filed on October 17, 2016. (SAC ¶ 91.)

Had Defendants disclosed to Plaintiffs these concealed material facts, Plaintiffs

would have acted differently, including by, without limitation, shifting control of the

exploitation of these assets away from Vivendi and seeking to recover and enforce

trademarks and other intellectual property rights many years earlier. (SAC ¶ 91.)

As a direct result of Defendants’ intentional misrepresentations and active

concealment of material facts, Plaintiffs have been harmed and have suffered damages

in amounts to be proven at trial. The damages suffered by Plaintiffs as a result of

Defendants’ fraud are different from and in addition to those suffered under their

breach of contract claims, including but not limited to the out-of-pocket expenses

incurred to commission a study to discover the fraud and the lost time-value of money

and interest on the monies wrongfully withheld from Plaintiffs. Plaintiffs are also

entitled to punitive damages to punish and deter future fraudulent conduct both in this

action and in the entertainment industry at large. (See SAC ¶¶ 91-92.) To the extent

the Court requires further allegations establishing personal injury to the Plaintiffs

apart from these damages as described in this opposition, Plaintiffs respectfully

request leave to amend.

IV. ARGUMENT

A. The Economic Loss Rule Does Not Preclude Plaintiffs’ Fraud Claim

As recognized by this Court: “‘California’s economic loss rule has exceptions

that fall into two broad categories.’ The first category applies to product liability

cases, inapplicable here, and the second category applies to breaches of a

noncontractual duty. ‘California courts have found exceptions to the economic loss

rule in the noncontractual duty context where the conduct also (1) breaches a duty

imposed by some type of ‘special’ or ‘confidential’ relationship; (2) breaches a ‘duty’


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

not to commit certain intentional torts; or (3) was committed ‘intending or knowing

that such a breach will cause severe, unmitigable harm in the form of mental anguish,

personal hardship, or substantial consequential damages.’” Shahinian v. Kimberly-

Clark Corp., No. CV 14-8390-DMG (SHx), 2015 WL 4264638, *8 (C.D. Cal.

July 10, 2015) (internal citations omitted).

1. The “Intentional Tort” Exception

California courts have long recognized an exception to the economic loss rule

for intentional torts. As this Court recently explained, the California Supreme Court

in Erlich v. Menezes 21 Cal. 4th 543, 553-54 (1999) clarified that “a tortious breach

of contract may be found when ‘(1) the breach is accompanied by a traditional

common law tort, such as fraud or conversion; (2) the means used to breach the

contract are tortious, involving deceit or undue coercion or; (3) one party

intentionally breaches the contract intending or knowing that such a breach will

cause severe, unmitigable harm in the form of mental anguish, personal hardship,

or substantial consequential damages.’” Lusinyan v. Bank of America, N.A., No. CV-

14-9586-DMG (JCx), 2015 WL 12777225 at *4 (C.D. Cal. May 26, 2015) (emphasis

added). The Erlich court explained that “[f]ocusing on intentional conduct gives

substance to the proposition that a breach of contract is tortious only when some

independent duty arising from tort law is violated.” 21 Cal. 4th at 554. The Erlich

court ultimately found that the plaintiff’s claim for negligent breach of contract was

“not sufficient to support tortious damages for violation of an independent tort duty”

because the jury found that the defendant “did not act intentionally; nor was he guilty

of fraud or misrepresentation.” Id.

The California Supreme Court confirmed the intentional fraud exception in

Robinson Helicopter Co., Inc. v. Dana Corp, 34 Cal. 4th 979 (2004). Robinson was

a product liability case where the Court held that the economic loss rule did not bar

the plaintiff’s claims for fraud and intentional misrepresentation based on the

defendant manufacturer’s provision of false certificates of conformance for the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

products purchased by plaintiff. Id. at 990-91. The California Supreme Court

confirmed its prior holding in Erlich that a breach of contract may be separately

actionable in tort when accompanied by fraud or deceit. Id. at 990. The Robinson

Court explained that “California’s public policy also strongly favors this holding”:

In pursuing a valid fraud action, a plaintiff advances the public interest in punishing intentional misrepresentations and in deterring such misrepresentations in the future. … In addition, California also has a legitimate and compelling interest in preserving a business climate free of fraud and deceptive practices. Needless to say, [defendant’s] fraudulent conduct cannot be considered a ‘socially useful business practice.’ … Allowing [plaintiff’s] claim for [defendant’s] affirmative misrepresentations discourages such practices in the future while encouraging a ‘business climate free of fraud and deceptive practices.’

Id. at 991-92 (citations omitted).

The Ninth Circuit has relied on Erlich and Robinson in holding that the

economic loss rule does not bar fraud or intentional misrepresentation claims.

In Hannibal Pictures, Inc. v. Sonja Productions LLC, 432 F. App’x. 700, 701

(9th Cir. 2011) the Ninth Circuit rejected the argument that the economic loss rule

barred a jury verdict finding defendants liable for fraud and negligent

misrepresentation in addition to breach of contract. The Ninth Circuit explained:

Under California law, tort damages may accompany contract claims when “the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm.” [quoting Erlich, 21 Cal. 4th 543]. The California Supreme Court has declined to apply the economic loss rule to fraud and misrepresentation claims where, as here, one party has lied to the other. [citing Robinson, 34 Cal. 4th 979].

In Kalitta Air, LLC v. Central Texas Airborne Sys. Inc., 315 F. App’x. 603, 607

(9th Cir. 2008) the Ninth Circuit affirmed a district court’s order denying a motion

for JMOL with respect to a negligent misrepresentation claim, stating: “We hold

that California law classifies negligent misrepresentation as a species of fraud … for

which economic loss is recoverable.” (citing Robinson, 34 Cal. 4th 979 n. 7).1 1 These Ninth Circuit decisions may be considered as persuasive authority.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Consistent with these decisions, California courts have held that fraud

claims are permissible where the defendant had an obligation to pay royalties, but

knowingly concealed and/or misrepresented the amount of those royalties to the

recipient’s detriment. For example, in Roddenberry v. Roddenberry, 44 Cal. App.

4th 634, 665 (1996) the California Court of Appeal affirmed a jury’s finding of

fraud when the defendant represented that it was paying plaintiff one half (1/2)

of all royalties when it was actually paying only one third (1/3) of royalties and

concealed this fact:

[Defendant] was under a duty to disclose because it was handling money belonging to [plaintiff]. Even if a fiduciary relationship is not involved, a nondisclosure claim arises when the defendant makes representations but fails to disclose additional facts which materially qualify the facts disclosed, or which render the disclosure likely to mislead. The evidence amply supported the finding that [defendant] concealed the true facts in the hope that [plaintiff] would accept [defendant’s] payments and never discover that she was receiving only a third.

Federal district courts applying California law have likewise held that claims

for fraud or intentional misrepresentation are not barred by the economic loss rule.

See, e.g., Embotelladora Electropura S.A. De C.V. v. Accutek Packaging Equip. Co.,

Inc., No. 3:16-CV-00724-GPC-DHB, 2016 WL 4943049, at *4 (S.D. Cal. Sept. 15,

2016) (“the Robinson court made clear that tort damages are permitted in cases where

the contract was fraudulently induced or otherwise accompanied by a traditional

common law tort, such as fraud”); Bentham v. Bingham Law Group, No. 13-cv-1424-

MMA (WVG), 2013 WL 12186171 at *11-12 (S.D. Cal. Nov. 11, 2013) (“As to

[plaintiff’s] claim for fraudulent concealment, the Robinson court specifically

acknowledged that where fraud or conversion accompanies a breach of contract, the

economic loss rule does not bar the tort claim.”)2

(See FRAP 32.1, Ninth Circuit Rule 36-3.)

2 See also El Dorado Irrigation Dist. v. Traylor Bros., Inc., No. CIVS03949-LKK-GGH, 2006 WL 306914, at *5 (E.D. Cal. Feb. 7, 2006) (“Since the Court is satisfied that Robinson does not limit tort recovery to fraud involving potential personal injury and there appears to be issues of fact about whether there were affirmative


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Here, Plaintiffs’ fraud claim is based on intentional misrepresentations and

affirmative deceit that are separate and distinct from Vivendi’s contractual breaches.

The breach of contract and accounting claims are based on Vivendi’s failure to

perform its contractual obligations, including to properly account for and remit to

Plaintiffs all royalties and other monies owed them under the Embassy Agreement.

(See SAC ¶¶ 72-78.) These claims only require evidence that the contractual

obligations were not met, and are cognizable regardless of whether Vivendi made

any false statements or otherwise intended to defraud Plaintiffs. By contrast, the

fraud claim is based on Vivendi’s malicious, tortious conduct designed to defraud

Plaintiffs. Specifically, Vivendi’s knowingly false statements, both through

affirmative misrepresentations that they were providing accurate and reliable

accountings to Plaintiffs, and through active concealment of accurate gross-receipts,

expenses and net profits in each of the profit participation statements as well as of

Vivendi’s improper self-dealing by sharing of revenues between different Vivendi

subsidiaries, including the disproportionate allocation of costs and bundling of

unsuccessful films in the Embassy catalogue. (See SAC ¶¶ 84-93.) Vivendi and its

subsidiaries StudioCanal and UMG breached this independent tort duty to not

knowingly deceive or make affirmative false representations to Plaintiffs.

2. California Public Policy Strongly Favors Recognition of an Independent Cause of Action for Intentional Fraud

The California Supreme Court has consistently held that the economic loss

rule must not be applied mechanically. As Justice Mosk of the California Supreme

Court explained: “Perhaps the most reliable manner to differentiate between actions

misrepresentations … the motion for summary judgment must be denied.”); Western Emulsions, Inc. v. BASF Corp., No. CV 05-5246 CBM (SSx) 2007 WL 1839718 at * 9-10 (C.D. Cal. Jan. 19, 2007) (Robinson holds that “the economic loss rule does not bar [plaintiff’s] fraud and intentional misrepresentation claims because they were independent of [Defendant’s] breach of contract”… Plaintiff “has offered sufficient evidence to support its fraud and intentional misrepresentation claims; therefore, the economic loss rule does not bar its claim for punitive damages.”).


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

that are purely contract breaches and those that are also tort violations is the

following abstract rule: courts will generally enforce the breach of a contractual

promise through contract law, except when the actions that constitute the breach

violate a social policy that merits the imposition of tort remedies.” Freeman & Mills,

Inc. v. Belcher Oil Co., 11 Cal. 4th 85, 106 (1995) (J. Mosk, conc. & dis. opinion);

see also Erlich, 21 Cal. 4th at 551-52 (“Whereas contract actions are created to

enforce the intentions of the parties to the agreement, tort law is primarily designed

to vindicate ‘social policy.’”)

At its core, the economic loss rule is meant to protect a party who intentionally

chooses to breach a contract -- a so-called “efficient breach” -- from tort damages

related to that decision. See Freeman & Mills, Inc., 11 Cal. 4th at 106 (J. Mosk,

conc. & dis. opinion). That policy is not implicated where intentional fraud is

involved. As the California Supreme Court explained in Robinson: “A breach of

contract remedy assumes that the parties to a contract can negotiate the risk of loss

occasioned by the breach. … The parties to the contract in essence create a mini-

universe for themselves, in which each … trusts the other’s willingness to keep his

word and honor his commitments, and in which they define their respective

obligations, rewards and risks …. However, ‘[a] party to a contract cannot rationally

calculate the possibility that the other party will deliberately misrepresent critical

terms to that contract … No rational party would enter into a contract anticipating

that they are or will be lied to.’” 34 Cal. 4th at 992-93 (citations omitted).

For this reason, allowing a separate claim for fraud does not “tortify” a party’s

decision, without more, to intentionally breach a contract. The California Supreme

Court explained in Robinson that “[a] decision to breach a contract and then

acknowledge it has different consequences than a decision to defraud, and we fail to

see how [defendant’s] actions could be deemed ‘commercially desirable.’” Id. at

993 n.8. The Robinson Court also explained that California “has a legitimate and

compelling interest in preserving a business climate free of fraud and deceptive


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

practices.” Id. at 992. Thus “[i]n pursuing a valid fraud action, a plaintiff advances

the public interest in punishing intentional misrepresentations and in deterring such

misrepresentations in the future.” Id. Allowing claims for intentional fraud,

“discourages such practices in the future while encouraging a ‘business climate free

of fraud and deceptive practices.’” Id.

The strong public policy in favor of preventing intentionally fraudulent

accounting and anti-competitive practices among related subsidiaries of a media

conglomerate to advance fraud is clear.

3. The “Special Relationship” Exception

There also exists a “special relationship” between Plaintiffs and Defendants.

In J’Aire Corp. v. Gregory, 24 Cal. 3d 799, 804 (1979), the California Supreme Court

held that the economic loss rule does not bar recovery in tort for foreseeable economic

loss where a “special relationship” exists between the parties. See also Kalitta Air,

L.L.C., 315 F. App’x. at 606 (9th Cir. 2008) (“If the district court finds that a ‘special

relationship,’ as articulated in J’Aire, exists … then the economic loss rule will not

preclude recovery of purely economic loss in this case.”) In recognizing this

exception, the J’Aire Court explained that it had “repeatedly eschewed overly rigid

common law formulations of duty in favor of allowing compensation for foreseeable

injuries caused by a defendant’s want of ordinary care.” Id. at 805. Six criteria are

applied to determine whether a special relationship exists: “(1) the extent to which

the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to

the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the

closeness of the connection between the defendant’s conduct and the injury suffered,

(5) the moral blame attached to the defendant’s conduct and (6) the policy

of preventing future harm.” Id. at 804.3

3 The special relationship exception applies to contracts for services, as opposed to the sale of goods, even where privity of contract exists. In North American Chemical Co. v. Superior Court, 59 Cal. App. 4th 764, 781-85 (1997) the California Court of Appeals discussed the difference between contracts for the performance of services


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Here, a “special relationship” plainly exists between Plaintiffs and Defendants

in that Defendants had complete control over the publication, distribution, royalty

collection and accounting, and intellectual property enforcement related to Spinal Tap

and their intentional fraud in the course of that relationship breached an independent

duty created by this special relationship. Specifically: (1) the Embassy Agreement

was made expressly for the benefit of Plaintiffs; (2) the harm to Plaintiffs from

Defendants’ fraudulent accounting practices was plainly foreseeable; (3) there is no

question that Plaintiffs have suffered injury; (4) Plaintiffs’ injuries have resulted

directly from Defendants’ conduct; (5) Defendants’ anti-competitive accounting

practices, active concealment and intentionally false representations are morally

blameworthy; and (6) future harm to Plaintiffs and other artists can readily

be avoided by enforcement of a rule that imposes a duty of due care and honesty in

the performance of Defendants’ obligations to Plaintiffs.

4. The Unpublished District Court Opinion Cited by Vivendi Does Not Compel a Different Result

Defendants’ economic loss rule argument relies primarily on an unpublished

district court decision, Alexsam Inc. v. Green Dot Corp., No. 2:15-cv-05742-CAS

(PLAx), 2017 WL 2468769 (C.D. Cal. June 5, 2017). That case, however, is

fundamentally different from the instant action.

and contracts for the sale of goods, and held that where the contract is for services the plaintiff may recover in tort for any foreseeable economic loss if there is a “special relationship” between the plaintiff and the defendant. Id. at 781-785; see also R Power Biofuels, LLC v. Chemex LLC, No. 16-CV-00716-LHK, 2016 WL 6663002 at *5 (N.D. Cal. Nov. 11, 2016) (“In North American Chemical … the California Court of Appeal held that when the parties are in privity of contract, the [special relationship] exception applies if the contracts are for services.”) Here, the Embassy Agreement is a contract for services: Plaintiffs provided their creative services as the film’s writers, composers/songwriters, actors, and director of This Is Spinal Tap, and Defendants provided services for financing, production and distribution of the film and accounting for royalty payments due to Plaintiffs. (SAC ¶¶ 46-48.)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Alexsam involved a dispute over enforcement of a settlement agreement.

Id. at *1. The plaintiff alleged that defendant’s counsel made misrepresentations as

to whether certain products were “covered by” licensed patents subject to the

settlement agreement, such that royalties were owed to the plaintiff. See id. at *3.

Those statements reflected nothing more than defense counsel’s legal opinions

concerning application of the terms of settlement agreement, i.e. that defendant “has

not engaged in any activities that are covered by any claims of the licensed patents”

and that defendant “did not believe it owed any royalties because its products were

not covered by the [licensed] patents.” Id. In one of the letters, defense counsel

explained: “If you wish to make your contentions more specific, and indicate why

the use of BINS is relevant to the question of royalties … [defendant] of course will

consider them in good faith. As things stand, however, we do not see a basis to

believe that royalties are owed.” Id. Given these statements, the district court

ultimately concluded that the “plaintiff’s claim for intentional misrepresentation is

predicated upon [defendant’s] alleged bad faith denials of liability under the

[Settlement] Agreement” a tort that is not recognized in California except in

exceptional and rare circumstances. Id. at *6 (citing Freeman & Mills, 11 Cal. 4th

at103 (disallowing tort liability for bad faith denial of liability under a contract).

In the instant case, the misrepresentations go far beyond mere opinions by

legal counsel as to why Defendants “believed” they had complied with their

accounting obligations. The fraud here involves active concealment of material facts

concerning the specific amounts of gross receipts, expenses and net profits set forth

in the accounting statements (SAC ¶ 86), and false representations to Plaintiffs that

Defendants were collecting all royalties owed and accurately accounting for them,

when in fact Defendants had falsely accounted for a number of specific items,

including a $1.6 million settlement payment from MGM and millions of dollars in

improper expense deductions. (SAC ¶ 88.) Defendants flatly lied about these

material facts not due to a good faith belief that the royalties were not owed to


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Plaintiffs for some legal reason, but to intentionally deceive Plaintiffs and deprive

them of monies actually collected and owed to them.

Additionally, Plaintiffs here have alleged extra-contractual damages, including

the out-of-pocket expenses incurred to commission a study to discover Vivendi’s

fraud, refraining from seeking to shift control of the enforcement and exploitation of

valuable Spinal Tap intellectual property rights, and the lost time-value of money and

interest payments on unpaid royalties. Plaintiffs are also entitled to punitive damages

to punish and deter future conduct both by Defendants and in the entertainment

industry at large. (See SAC ¶¶ 91-92.) These extra-contractual damages are

permitted under Robinson Helicopter: “But for [defendant’s] affirmative

misrepresentations” plaintiff “would not have incurred the cost of investigating the

cause of the faulty clutches.” 34 Cal.4th at 990-91. “Because of the extra measure of

blameworthiness inhering in fraud, and because in fraud cases we are not concerned

about the need for ‘predictability about the costs of contractual relationships’

[citation], fraud plaintiffs may recover ‘out-of-pocket’ damages in addition to

benefit-of-the bargain damages.” Id. at 992.

Plaintiffs have also suffered personal damages. Those damages include:

reputational harm directly caused by Defendants’ intentional misrepresentations,

fraudulent accounting and non-enforcement of Spinal Tap intellectual property

which proclaimed, as Defendants still do today, that This Is Spinal Tap was a

commercial failure. The public slander of commercial failure has caused significant

injury to Plaintiffs in the marketplace independent of the accounting royalties due.

Again, Plaintiffs respectfully request leave to further amend their Complaint to allege

these facts with greater specificity if the Court so requires.

////

////

////

////


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

B. UMG’s Motion to Dismiss Fails

1. Plaintiffs Have Properly Alleged Their Breach of Contract and Accounting Claims against UMG.

UMG argues that Plaintiffs’ breach of contract, implied covenant of good faith

and fair dealing, and accounting claims fail because Plaintiffs “do not plausibly allege

that UMG is a party to the STP-Embassy Agreement.” (Munger Mot. at pp. 6-10.)

UMG is wrong.

Plaintiffs allege that UMG acquired all pertinent sound recording rights and

obligations under the Embassy Agreement and that UMG is responsible for providing

the revenues it collects, through Vivendi, to Plaintiffs. (SAC ¶¶ 53, 72.) In its

briefing, UMG admits that it is the successor-in-interest to Polygram Records, which

indisputably was responsible under its own agreement with Embassy to collect and

account for the sound recording revenues due to Plaintiffs as set forth in the Embassy

Agreement. (See Munger Mot. at pp. 3, 6 n. 6.) This is confirmed by the accounting

statements sent to STP: they include line items for “Gross Receipts -- Music” and

reflect the “Grantor’s Share of Net Receipts -- Music 50%” as required by the Embassy

Agreement. (See Exh. A ¶ 6.) UMG also admits that it currently “controls copyrights

in [Spinal Tap] sound recordings.” (Munger Mot. at 15:10-11.) UMG is additionally

responsible as the successor-in-interest by merger to MCA Records, Inc. for

accounting to Plaintiffs under the terms of a September 9, 1991 Agreement between

Shearer, Guest and McKean and MCA Records for production of the Spinal Tap album

“Break Like the Wind” which was released in 1992. (See Exhibits B & C hereto).4

Accordingly, UMG is directly liable to Plaintiffs as the successor-in-interest to

MCA Record’s accounting obligations under the 1991 Agreement and as the

undisputed successor-in-interest to Polygram Record’s contractual assumption of the

4 UMG is the surviving corporation from a merger with MCA Records, Inc. and its parent corporation PolyGram Holding, Inc. effective on or about October 15, 1999 as set forth in the attached Certificate of Merger filed with the California Secretary of State on or about April 21, 2000. (See Exhibit C hereto.)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

rights and obligations to account to Plaintiffs, through Vivendi, for music royalties

under the Embassy Agreement. See, e.g., No Cost Conference, Inc. v. Windstream

Commc’ns, Inc., 940 F.Supp.2d 1285, 1299 (S.D. Cal. 2013) (“Under California law,

‘a successor company has liability for a predecessor’s actions if: (1) the successor

expressly or impliedly agrees to assume the subject liabilities …[;] (2) the transaction

amounts to a consolidation or merger of the successor and the predecessor[;] [or]

(3) the successor is a mere continuation of the predecessor…”) UMG, by accepting

the benefits of the Embassy Agreement and the 1991 MCA Agreement -- including

UMG’s asserted ownership of copyrights in the Spinal Tap sound recordings -- is

further estopped under California law from attempting to disclaim its obligations to

account to Plaintiffs under those agreements. See Cal. Civ. Code § 1589

(“A voluntary assumption of the benefit of a transaction is equivalent to a consent to

all the obligations arising from it, so far as the facts are known, or ought to be known,

to the person accepting.”); Cal. Civ. Code § 3521 (“He who takes the benefit must

bear the burden.”); Melchior v. New Line Productions, Inc., 106 Cal. App.4th 779,

787 (2003) (defendant film company was liable to account to plaintiff artist under the

terms of original contract assigned to the film company).

UMG is also liable to Plaintiffs as third-party beneficiaries of the agreement

between Embassy (now Vivendi) and Polygram Records to which UMG succeeds.5

Under California law, “[a] contract, made expressly for the benefit of a third person,

may be enforced by him at any time before the parties thereto rescind it.” Cal. Civ.

Code § 1559. California courts have held that a non-party may enforce a contract as

a third-party creditor beneficiary if “the promisor’s performance of the contract will

5 This Court has already ruled that Christopher Guest is a third-party beneficiary with standing to enforce the Embassy Agreement. (See Sept. 28, 2017 Order at pp. 7-8, Doc. # 32.) The Court’s analysis applies equally to the other three co-creators -- Shearer, Reiner, and McKean -- and their respective loan-out companies, all of whom are properly alleged to be intended third-party beneficiaries of the Embassy Agreement. (SAC ¶¶ 1, 74-75.) Defendants no longer challenge the plaintiffs’ status as intended third-party beneficiaries.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

discharge some form of legal duty owed to the beneficiary of the promise.”

Goonewardene v. ADP, LLC, 5 Cal. App. 5th 154, 171 (2016) (petition for review

granted February 15, 2017).

Goonewardene is instructive. In that case, the Court of Appeal held that

plaintiff employee could bring a breach of contract claim against third-party payroll

company ADP which had been delegated payroll responsibilities by the employee’s

employer. Id. at 171-74. The Court explained that “when an employer enters into

a contract with a service provider by which the provider is to take over the

employer’s payroll tasks, including the preparation of the payrolls themselves, the

employees constitute third party creditor beneficiaries of the contract between the

employer and service provider.” Id. at 173. The Court reasoned that “[t]he gravamen

of [plaintiff’s] allegations is that [employer] engaged ADP to discharge [employer’s]

wage-related legal duties to its employees, that is, [employee’s] obligations … to

accurately calculate employees’ wages, fully distribute those wages in a timely

manner, and provide employees with accurate earnings statements.” Id.

Here, like the third-party payroll company in Goonewardene, UMG as

successor to Polygram Records, entered into an agreement with Embassy (now

Vivendi) which delegated to UMG the duty to collect and account for the music

sound recording revenues owed to Plaintiffs as set forth in the Embassy Agreement.

The notion that UMG could fraudulently account to Vivendi -- even if UMG had not,

as alleged, actively conspired with Vivendi to produce fraudulent accounting

statements -- without recourse by Plaintiffs whose income is dependent on UMG’s

statements, is absurd.

Gerritsen v. Warner Bros. Ent. Inc., 112 F.Supp. 3d 1011 (C.D. Cal. 2015)

(“Gerritsen I”), cited by UMG, does not vitiate UMG’s liability to the Plaintiffs.

In that case, the plaintiff sued three production companies, Katja, New Line and

Warner Bros. (“WB”) for breach of contract. Id. at 1017. The plaintiff author had

entered into a contract with Katja and New Line (but not WB) to purchase motion


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

picture rights to her book. Id. at 1017-18. WB subsequently acquired control of

those companies, and then separately purchased the rights to a screenplay titled

“Gravity” which WB then produced into a movie by the same name. Id. at 1018-19.

Plaintiff sued, claiming that the movie was actually “based on” her book and not the

screenplay, and that WB had breached the contract because it had assumed Katja’s

and New Line’s rights and duties under the contract. Id. The district court disagreed,

finding there was no plausible inference that Katja had produced the film, or that

WB was a party to the contracts between the plaintiff and Katja and New Line.

Id. at 1036. The district court’s decision was limited to plaintiff’s allegations that

WB could be held vicariously liable under three theories: (i) successor-in-interest,

(ii) alter ego and (iii) agency liability. See id. at 1036-1047. The district court did

not address whether WB could be held liable either directly under California Civil

Code §§ 1589 and 3521, or under a third-party beneficiary theory. Id.; see also

Gerritsen v. Warner Bros. Ent. Inc., 116 F. Supp. 3d 1104, 1123-1126 (C.D. Cal.

2015) (“Gerritsen II”). The district court also found that WB was not a successor-in-

interest to Katja or New Line because the plaintiff failed to establish that Katja and

New Line transferred all of their assets to WB, or that WB was the “mere

continuation” of Katja and New Line where both corporations continued to exist in

their prior form. See Gerritsen II, 116 F.Supp.3d at 1130-1134. Therefore, the

Gerritsen decisions have no bearing here, where Plaintiffs have sued UMG for

direct liability and as the undisputed successor-in-interest of MCA Record’s rights

and obligations under the 1991 Agreement and Polygram Records’ rights and

obligations under the Embassy Agreement, and/or because Plaintiffs are third-party

creditor beneficiaries of the contract between Embassy and Polygram Records to

which UMG succeeds.6

6 For the same reasons, Plaintiffs’ related claims for breach of the implied covenant of good faith and fair dealing and an accounting are properly alleged. See, e.g., Spinks v. Equity Residential Briarwood Apartments, 171 Cal. App. 4th 1004, 1033-34 (2009) (intended third-party beneficiary can assert a claim for breach of the implied covenant


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

2. UMG Is Liable for Fraud Because It Directed False Statements to Vivendi and StudioCanal Intending That Those False Statements be Communicated to Plaintiffs

UMG next argues that Plaintiffs’ fraud claim fails because UMG made no

direct statements to Plaintiffs, and the claim is not pled with specificity under

Rule 9(b). (Munger Mot. at pp. 10-13.) Both arguments are specious.

It has long been the law that “[i]n order for representations to be actionable,

it is not necessary in all cases that they be directly made to the parties seeking

recovery. ‘A representation made to one person with the intention that it shall reach

the ears of another, and be acted upon by him, and which does reach him, and is

acted upon by him to his injury, gives the person so acting upon it the same right to

relief or redress as if it had been made to him directly.’” Crystal Pier Amusement Co.

v. Cannan, 219 Cal. 184, 188 (1933); see also Mirkin v. Wasserman, 5 Cal. 4th 1082,

1098 (1993) (“The maker of a fraudulent misrepresentation is subject to liability for

pecuniary loss to another who acts in justifiable reliance upon it if the

misrepresentation, although not made directly to the other, is made to a third person

and the maker intends or has reason to expect that its terms will be repeated or its

substance communicated to the other, and that it will influence his conduct in the

transaction or type of transactions involved.” (quoting Restatement Second of Torts

§ 533 and collecting cases that have applied the principle). Moreover, “[a] plaintiff

of good faith and fair dealing with respect to the contract); Teselle v. McLoughlin, 173 Cal. App. 4th 156, 179 (2009) (“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting…. [A] fiduciary relationship between the parties is not required to state a cause of action for accounting. All that is required is that some relationship exists that requires an accounting.”) Plaintiffs have also alleged with specificity a claim for fraud against UMG based on its fraudulent accounting which further permits them to bring an accounting claim. See, e.g., Abu-Lughod v. Calis, No. CV 13-2792 DMG (RZx), 2014 WL 12589324, at *6-7 (C.D. Cal. Oct. 9, 2014) (granting plaintiff leave to amend its accounting claim provided he “can properly allege against [defendant] a claim that sounds in fraud.”)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

need not prove that he or she directly heard a specific misrepresentation or false

promise to establish actual reliance.” Bullock v. Philip Morris USA, Inc., 159 Cal.

App. 4th 655, 676 (2008). This theory of liability is broad enough that the maker of

the misrepresentation need not “have any particular person in mind.” Varwig v.

Anderson-Behel Porsche/Audi, Inc., 74 Cal. App. 3d 578, 581 (1977).

The Second Amended Complaint alleges Vivendi’s and UMG’s hidden,

fraudulent accounting practices and repeated, knowingly false statements that the

gross receipts, expenses and net profits identified therein -- including music royalties

-- were “truthful and accurate.” (SAC ¶¶ 84-88.) UMG directed those representations

to Plaintiffs through Vivendi, knowing that Vivendi, StudioCanal and their agents

would repeat those false representations to Plaintiffs. These false statements were not

made in isolation, but were part of a fraudulent scheme involving improper self-

dealing between UMG, Vivendi, and StudioCanal. These allegations are more than

sufficient to state a claim for fraud against UMG, particularly where more expansive

evidence of the fraud is in Vivendi, StudioCanal and UMG’s possession and control

and can only be obtained through legally compelled discovery.

3. Reversion of Copyrights of Vivendi, StudioCanal and UMG Should Be Decided Together

UMG’s last argument is that the declaratory relief claim for copyright

reversion against it, as opposed to its parent and co-conspirator Vivendi, is “not ripe”

because “UMG has taken no position … with respect to its sound recording

copyrights.” (Munger Mot. at 14.) UMG takes this position even though Vivendi

has publicly threatened to sue Plaintiffs for exercising their termination rights and

does not dispute the issue is ripe for determination. The notion that UMG will take a

position different from its corporate parent defies credulity. But in any case,

judicial economy supports joint adjudication of the validity of termination notices

which have identical effective dates and will terminate copyrights related to the same

property, This Is Spinal Tap. Vivendi’s public threats have also placed at issue the


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

future ownership of rights controlled by Vivendi entities. See, e.g., Ray Charles

Foundation v. Robinson, 795 F.3d 1109, 1117 (9th Cir. 2015) (holding that plaintiff’s

copyright reversion suit was ripe even where certain termination notices were not yet

effective because “[i]t would be an inefficient use of judicial resources to compel

[plaintiff] to file a different suit after each termination date has passed.”)

V. CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court deny

Defendants’ motions to dismiss in their entirety or, alternatively, grant Plaintiffs leave

to amend to cure any perceived deficiency with the Second Amended Complaint.

Dated: February 1, 2018 Respectfully submitted,

BALLARD SPAHR LLP

/s/ Peter L. Haviland Peter L. Haviland

Attorneys for Plaintiffs Century of Progress Productions; Christopher Guest; Rob Reiner Productions; United Heathen; Spinal Tap Productions; Harry Shearer; Rob Reiner; and Michael McKean


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

CERTIFICATE OF SERVICE

I hereby certify that on February 1, 2018, I caused to be electronically filed a

true and correct copy of the foregoing PLAINTIFFS’ CONSOLIDATED OPPOSITION

TO DEFENDANTS’ MOTION TO DISMISS AND DECLARATION OF SCOTT HUMPHREYS

IN SUPPORT THEREOF through the Court’s CM/ECF system, which will send a

notice of electronic filing to all interested parties in the action through their counsel

of record as follows:

Robert M. Schwartz Victor H. Jih Matthew O. Kussman IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067 Attorneys for Defendants Vivendi S.A.; StudioCanal; and Ron Halpern Glenn D. Pomerantz Anjan Choudhury Grant R. Arnow MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue, Fiftieth Floor Los Angeles, California 90071-3426

Attorneys for Defendants Universal Music Group, Inc. and UMG Recordings, Inc.

/s/ Peter L. Haviland Peter L. Haviland


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF SCOTT HUMPHREYS IN SUPPORT OF PLAINTIFFS’

CONSOLIDATED OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

Peter L. Haviland (SBN 144967)[email protected] Scott S. Humphreys (SBN 298021) [email protected] Tanya M. Taylor (SBN 312881) [email protected] BALLARD SPAHR LLP 2029 Century Park East, Suite 800 Los Angeles, CA 90067-2909 Telephone: 424.204.4400 Facsimile: 424.204.4350 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CENTURY OF PROGRESS PRODUCTIONS; CHRISTOPHER GUEST; ROB REINER PRODUCTIONS; UNITED HEATHEN; SPINAL TAP PRODUCTIONS; HARRY SHEARER; ROB REINER; and MICHAEL MCKEAN

Plaintiffs,

v.

VIVENDI S.A.; STUDIOCANAL; RON HALPERN, an individual; UNIVERSAL MUSIC GROUP, INC.; UMG RECORDINGS, INC.; and DOES 1 through 10, inclusive,

Defendants.

)))))))))))))))))))))))))

Case No. 2:16-cv-07733-DMG (AS) DECLARATION OF SCOTT HUMPHREYS IN SUPPORT OF PLAINTIFFS’ CONSOLIDATED OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS Hearing: March 16, 2018

Time: 9:30 a.m.

Place: Courtroom 8C, 350 West 1st Street Los Angeles, CA

Before: Honorable Dolly M. Gee

)

Case 2:16-cv-07733-DMG-AS Document 51-1 Filed 02/01/18 Page 1 of 2 Page ID #:596

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DECLARATION OF SCOTT HUMPHREYS IN SUPPORT OF PLAINTIFFS’

CONSOLIDATED OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS

Bal

lard

Spa

hr L

LP

20

29 C

entu

ry P

ark

Eas

t, S

uite

800

L

os A

ngel

es, C

alif

orni

a 90

067

Tel

epho

ne: 4

24.2

04.4

400

DECLARATION OF SCOTT HUMPHREYS

I, Scott S. Humphreys, declare as follows:

1. I am an attorney at the law firm of Ballard Spahr LLP, counsel of

record for Plaintiffs in the above-entitled action. I have personal knowledge of the

facts set forth in this Declaration and, if called as a witness, could and would testify

competently to such facts under oath.

2. Attached as Exhibit A is a true and correct copy of the eleven-page

letter agreement with Embassy Pictures dated May 7, 1982 referenced in the

Second Amended Complaint, excluding the inducement letters and other related

exhibits, a complete copy of which was attached to Vivendi’s motion to dismiss

filed with the Court on February 28, 2017 (Doc. # 24-2.)

3. Attached as Exhibit B is a true and correct copy of a September 9, 1991

agreement with MCA Records, Inc.

4. Attached as Exhibit C is a true and correct copy of a “Certificate of

Merger of MCA Records, Inc. with and into UMG Recordings, Inc.” executed as of

October 15, 1999 and recorded in the Office of the Secretary of State of the State of

California on or about April 21, 2000.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

Executed on February 1, 2018 /s/ Scott Humphreys

Scott Humphreys



Case 2:16-cv-07733-DMG-AS Document 24-2 Filed 02/28/17 Page 2 of 21 Page ID #:231Case 2:16-cv-07733-DMG-AS Document 51-2 Filed 02/01/18 Page 2 of 13 Page ID #:599










































Documents

[email protected] [email protected] … · 2018. 2. 8. · Hannibal Pictures, Inc. v. Sonja Productions LLC, 432 F. App’x. 700 (9th Cir. 2011) ... made any overture