Kesha Case Notes

8/18/2019 Kesha Case Notes

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Assume the New York Supreme Court here is our RTC. Kesha goes to CA via Rule 65of Rules of Court. Decide, you being the CA.

KESHA ALLEGING FAILURE TO PROMOTE HER BY KEMOSABE

sexual assault, sexual harassment and gender violence

Kesha's mother induced Kesha to blackmail Dr. LukeMother circulated false letters

2 arguments of kesha: likelihood ofsuccess on the merits, to irreparable harm, to balance ofthe equities (judge)

Gottwald is the president and CEO of Kemosabe Records,

THE COURT: Your argument is that she cannotphysically work with Gottwald because she has all of theseissues.

Even though you claim she has all kinds of physicalproblems, trauma, nothing, nothing, under seal orotherwise. There are no hospital records.

But thereal issue here, and throughout the case, this has been athread, is that she says she cannot work with Gottwald.Now she's being given the opportunity to work withouthim. I don't understand why I have to take theextraordinary measure of issuing an injunction.

LEPERA: She's asked for a preliminary injunction essentially denuding and rewriting a multitude ofcontracts which Kasz Money entered into starting with herup through RCA, all of which was assigned to a new Sonylabel, Kemosabe Records.

There is absolutely no basis for the rewritingof any contracts to terminate a relationship in amulti-contract, commercially sound and appropriatebusiness relationship when the only issue is really aboutproduction. (THIS!!!)

COURT: Would there be a problem with herrecording at Sony under the Kemosabe label and permittingSony to take over promotion, et cetera, with -- all underthe tent of Kemosabe?they're asking for thesupervision of people at Sony rather than at Kemosabe.

LEPERA: without any legal basis, without any legal authority,without any breach of contract claim, is that somehow oranother Sony, Kemosabe Records is not going to do a job inpromoting recordings that are delivered simply because theyhave a CEO. Ultimately he has legal obligations to Sony tofulfill. And there are multiple contractual relationshipsthat are not even part of this record which involve --which if dismantled in that fashion would create disruptionand irreparable harm to my clients and Sony.There would be effectively breach of


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contract. (THIS OMG)

LEPERA: Also by Miss Sebert, if herrecordings are basically thrown in the toilet. That's notwhat's been happening and it's ludicrous to suggest it.you can't sue for specific performance of a personal service contract in New York. (THIS) There's no election of remedy that we didn'tsue for specific performance, so, therefore, we've givenup the exclusivity obligation.THE COURT: You can't force someone to work --MS. LEPERA: Right.THE COURT: -- in a situation in which they don'twant to work.MS. LEPERA: Right.THE COURT: It's slavery. You can't. do that.

LEPERA: And we never sought that.We simply sought that, and we continue to maintain, thatthe exclusivity obligation maintained is in force andeffect from her to KMI, KMI then entered into obligationsthat it has to fulfill with the Sony company and thatultimately there were additional contracts going up toKemosabe Records, and he has obligations to fulfill that.And, you know, so all of these very commercially reasonable

contracts must remain in place. There's absolutely zerobasis for any effort to rewrite a single thing here, andit's simply a completely speculative conclusion thatsomething is going to go awry.

LEPERA: There's not a breach of contract claim byMiss Sebert in the entire case in anyplace in any court.Okay? So any time there's ever been -- and the casesthat are cited by plaintiff's counsel -- by Miss Sebert'scounsel for -- you know, challenging of exclusivityprovisions are only when there's been a breach by theother party failing to account, refusing to want todeliver (two cases plaintiffs cite: Milstead and Then)

the entire underpinning for likelihood of success on the meritsof this case is that we sued for damages and therebyrelinquished our exclusivity provision, which is, ofcourse, not true. They basically say we had to sue forspecific performance in order to have not waived that, butyou can't sue for specific performance to require someoneto go do something. So what we did is we said the contractremains in full force and effect, we sued for damages forbreach to date, including for failure to deliver certainroyalties that are due on merchandising and performances onan ancillary basis, for failing to deliver songs toPrescription.

They come in and they say that we somehowwaived, you know, by failing to sue for specificperformance. The law in New York's very clear to thecontrary, we cited it extensively in our brief, they arenot inconsistent remedies, they are both, as the courtssay, in furtherance of promoting and validating thecontract.

there is no claim


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underpinning this preliminary injunction on the likelihoodof success on the merits but for a declaratory judgmentthat we waived something.

So once you remove likelihood ofsuccess on the merits, now you're dealing with irreparableharm. Irreparable harm -- the irreparable harm is that shesays she can't work with Dr. Luke, which I think iscompletely unsupported by the record, but, however, that'smooted, because ultimately there's no production required.The recording has to be delivered to a Sony-owned label,and he cannot be demoted or taken out of position, there'sno basis for doing so.

COURT: You're willing to allow her to producewithout him.And it would seem to undercut theirreparable harm argument.

LEPERA: this whole, "She's been puton ice for two years" is solely of her own choosing. (THIS)

LEPERA: what you've got is you've got defendants being put

the equities certainly favor Sony and the contracts in this case.

MOTIONSMOVIT (GOSSWALD): Assault and battery, two separatethey're two separate torts, but they, I believe, wouldrequire, it's a one-year statute of limitations and clearly would be barred.To try to avoid these statute of limitations ofone-year, instead the amended counterclaims assert thevariety of causes of action largely based on statutesthat are completely inapplicable to the alleged facts,such as these employment discrimination claims for whichthere needs to be either the plaintiff being a New York

resident the alleged acts happening in New York, whichI'll get to, or hate crime statute, even though no hatecrime is alleged here.

"Absent anallegation that a discriminatory act was committed inNew York or that a New York resident was discriminatedagainst, New York courts have no subject matterjurisdiction over the alleged wrong." And that'sIwankow v. Mobil Corp.

Miss Sebert has already stated in heraffidavit, which we attached to our motion to dismiss

papers, that she is not a New York resident. She's aCalifornia resident, formerlyTHE COURT: And these actions all occurred in California.

MOVIT: the only acts of violencealleged purportedly occurred in 2005 and 2008. (1 year statute of limitations; barred)COURT: Even if it was five years under the CPLR statute dealing with rape or criminal act, it would still be barred.MOVIT: while the New York City Council has purported to record a


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seven-year statute of limitations to this claim forgender-motivated violence, that that attempt is preemptedby the CPLR, as set forth by the New York Statelegislature. And that's set forth quite cogently in theCordero V. Epstein case, that when the New York Statelegislature has so comprehensively legislated a fieldsuch as the statute of limitations, New York City Councilcan't create their own subclass of a tort with a statuteof limitations that's seven times longer than it shouldbe by the judgment of the New York State legislature forassault.

no non-conclusory allegation in Miss Sebert's pleading thatMr. Gottwald's purported conduct was motivated byMiss Sebert's gender.

seventh cause of action: intentional inflictionCPLR provides a one-year statute oflimitations in Section 2153 for lIED

EDELMAN: the two acts, thealleged acts of misconduct on which Miss Sebert focuses,one occurred in 2005, one allegedly occurred -- they bothallegedly occurred in 2005, 2008.

COURT: And neither Sony nor Kemosabe hadany -- was even in the picture then. That's your argument.MR. EDELMAN: Not even in the picture. KemosabeRecords wasn't even formedTHE COURT: Until 2011.

EDELMAN: when you look at the types ofallegations that are made against Kemosabe Records andagainst Sony Music in these counterclaims, they're sogeneral, so devoid of any specific facts, so conclusorythat they can't adequately form the basis for any ofthese causes of action

Kemosabe had no knowledge of acts of Gottwald, highest official there

Kemosabe Records was formed three years after the alleged 2008 incidentit -- it can't be liable under any theory.

Father Belle caseheld, in the context of an employment relationship,

You have to have an employer. You know.And -- and Kemosabe Records was not an employer duringthese events

Miss Sebert did not have an

employment relationship with Kemosabe Records or Sonythat she, again, has not alleged impact within New YorkCity and that the claim is barred by the three-yearstatute.

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Kesha Case Notes