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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

FLO & EDDIE, INC., individually and on behalf of all others similarly situated,

Plaintiff, CIVIL ACTION No. 13-CV-5784 (CM) v.

SIRIUS XM RADIO INC., and DOES 1 through 10,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF SIRIUS XM’S PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT

R. Bruce Rich Benjamin E. Marks Todd Larson WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Tel: (212) 310-8000 Fax: (212) 310-8007 [email protected] [email protected] [email protected]

and

Michael S. Oberman KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 Tel: (212) 715-9294 Fax: (212) 715-8294 [email protected]

Attorneys for Defendant Sirius XM Radio Inc. Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 2 of 25

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ...... 1

ARGUMENT ...... 7

THERE IS NO PUBLIC PERFORMANCE RIGHT FOR PRE-1972 RECORDINGS UNDER NEW YORK COMMON LAW ...... 7 A. The History of Failed Efforts by the Recording Industry To Obtain a Right of Public Performance for Sound Recordings ...... 8 B. New York’s Cause of Action for Common Law Copyright Infringement Does Not Cover Public Performances of Sound Recordings ...... 12 C. Plaintiff Does Not State a Claim for Unfair Competition By Alleging That Sirius XM Publicly Performs Its Sound Recordings Without Permission ...... 14 1. New York’s Cause of Action for Unfair Competition Does Not Cover Public Performances of Sound Recordings ...... 14 2. Plaintiff Has Failed to Plead Competition Between It and Sirius XM as Needed To State a Common Law Unfair Competition Claim ...... 15 3. Plaintiff Has Failed To Plead a Competitive Injury Adequate To Support a Common Law Unfair Competition Claim ...... 18

CONCLUSION ...... 20

Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 3 of 25

TABLE OF AUTHORITIES

CASES PAGE(S)

Agee v. Paramount Commc’ns, Inc., 59 F.3d 317 (2d Cir. 1995)...... 18, 19

Apple Corps Ltd. v. The Adirondack Grp., 476 N.Y.S.2d 716 (Sup. Ct. 1983) ...... 15

Arista Records, LLC v. Launch Media, Inc., 578 F.3d 148 (2d Cir. 2009)...... 4, 5

Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d 398 (S.D.N.Y. 2011)...... 12, 15

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...... 16, 17

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...... 16

Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 4 (1979) ...... 4

Capitol Records, Inc. v. Greatest Records, Inc., 252 N.Y.S.2d 553 (Sup. Ct. 1964) ...... 12, 15

Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657 (2d Cir. 1955)...... 12

Capitol Records, Inc. v. Naxos of America, Inc., 4 N.Y.3d 540, 830 N.E.2d 250 (2005) ...... passim

In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y. 2001)...... 8

Edelman v. Starwood Capital Grp., LLC, No. 0601077, 2008 WL 2713489 (Sup. Ct. June 27, 2008) ...... 17

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., et al., No. 1:13-cv-23182 (KMM) (S.D. Fla. Sept. 3, 2013) ...... 6

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. BC 517032 (Cal. Super. Ct. L.A. Cnty. Aug. 1, 2013) ...... 6

Gaughan v. Nelson, No. 94 CIV. 3859(JFK), 1997 WL 80549 (S.D.N.Y. Feb. 26, 1997) ...... 8

Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 4 of 25

TABLE OF AUTHORITIES (continued)

PAGE(S)

Hill v. Opus Corp., 841 F. Supp. 2d 1070 (C.D. Cal. 2011) ...... 7, 8

ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 880 N.E.2d 852 (2007) ...... 16

Metro. Opera Ass’n v Wagner-Nichols Recorder Corp., 101 N.Y.S.2d 483 (Sup. Ct. 1950), aff’d, 107 N.Y.S.2d 795 (App. Div. 1951) (per curiam) ...... 13, 15

Parker v. Time Warner Entm't Co., 98 CV 4265 (ERK), 1999 WL 1132463 (E.D.N.Y. Nov. 8, 1999) ...... 8

Roy Export Co. v. Columbia Broad. Sys., Inc., 672 F.2d 1095 (2d Cir. 1982)...... 16

Schuloff v. Queens Coll. Found., Inc., 994 F. Supp. 425 (E.D.N.Y. 1998), aff’d, 165 F.3d 183 (2d Cir. 1999) ...... 8

Tarcher v. Penguin Putnam, Inc., No. 01 CIV 6754 DLC, 2001 WL 1646453 (S.D.N.Y. Dec. 20, 2001) ...... 8

Yantha v. Omni Childhood Ctr., Inc., 13-CV-1948 ARR JMA, 2013 WL 5327516 (E.D.N.Y. Sept. 20, 2013) ...... 15, 18, 19

Zinter Handling, Inc. v. Gen. Elec. Co., 956 N.Y.S.2d 626 (App. Div. 2012) ...... 17

Statutes

17 U.S.C. § 102 ...... 4

17 U.S.C. § 106 ...... 4, 5, 9, 11

17 U.S.C. § 114 ...... 5, 9

17 U.S.C. § 301 ...... 4, 5

Act of Jan. 6, 1897, 29 Stat. 481 ...... 4

Pub. L. No. 104-39, 109 Stat. 336 (1995) ...... 5, 11

Pub. L. No. 92-140, 85 Stat. 391 (1971) ...... 4, 9

iii

Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 5 of 25

TABLE OF AUTHORITIES (continued)

PAGE(S)

Other Authorities

117 Cong. Rec. 2002 (Feb. 8, 1971) ...... 9

141 Cong. Rec. S945-02 (Jan. 13, 1995) ...... 12

Authorizing A Composer’s Royalty in Revenues from Coin-operated Machines and to Establish a Right of Copyright in Artistic Interpretations: Hearings Before Subcomm. on Patents, Trade-marks, and Copyrights of the Comm. on the Judiciary on H.R. 1269, H.R. 1207, and H.R. 2570, 80th Cong., 1st Sess. 6 (Comm. Print 1947) ...... 10

Economic Conditions in the Performing Arts: Hearings Before the Select Subcomm. on Ed. of the Comm. on Ed. and Labor, 87th Cong., 1st 2d Sess. 64-65 (Comm. Print 1962) ...... 10, 11

Fed. R. Civ. P. 12 ...... 1, 8

Fed. R. Civ. P. 56 ...... 8

H.R. Rep. No. 92-487 (1971) ...... 9

H.R. Rep. No. 104-274 (1995) ...... 5, 10

Revision of Copyright Laws: Hearings Before the Comm. on Patents, 74th Cong., 2d Sess. 622 (Comm. Print 1936) ...... 10

S. Rep. No. 92-72 (1971) ...... 9

Second Supplementary Register’s Report on the General Revision of the U.S. Copyright Law (1975) ...... 11

Statement on S. 227 of ASCAP (Mar. 9, 1995), 1995 WL 552160 (Westlaw) ...... 12

Supplementary Register’s Report on the General Revision of the U.S. Copyright Law, 89th Cong., 1st Sess. (Comm. Print 1965) ...... 11

Testimony of Jason S. Berman Chairman and CEO of RIAA Before the Judiciary Subcomm. on Counts & Intellectual Property: Hearing on H.R. 1506, (June 21, 1995) 1995 WL 371088 (Westlaw) ...... 11

Testimony of the NAB Before the House Judiciary Comm. Subcomm. on Courts & Intellectual Property on H.R. 1506 (June 21, 1995), 1995 WL 371107 (Westlaw) ...... 11, 12

Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 6 of 25

Defendant Sirius XM Radio Inc. (“Sirius XM”) respectfully submits this memorandum in support of its Partial Motion to Dismiss the Complaint of Flo & Eddie, Inc. (“Plaintiff”) under

Rule 12(b)(6) of the Federal Rules of Civil Procedure.

PRELIMINARY STATEMENT

By this action, Plaintiff, the owner of sound recordings made nearly fifty years ago and publicly performed widely ever since by myriad broadcast and other outlets, asks the Court to radically transform the scope of protection accorded to sound recordings under New York common law. Plaintiff asks the Court to recognize a right of public performance for sound recordings under New York common law in the absence of any supporting precedent—indeed, in the face of the New York Court of Appeals’ definitive statements of the elements of common law copyright infringement and unfair competition causes of action in New York, which make no mention of any such right. See Capitol Records, Inc. v. Naxos of America, Inc., 4 N.Y.3d

540, 830 N.E.2d 250 (2005). The result Plaintiff seeks would dramatically expand New York law and unravel a century of contrary understandings between the music and broadcasting industries.

Plaintiff alleges that it has owned some 100 master recordings of songs by the rock group

The Turtles since 1971. Compl. ¶ 2. It concedes that none of these sound recordings is entitled to protection under federal copyright law, as the Copyright Act only affords protection to sound recordings made on or after February 15, 1972, and each of the sound recordings at issue here was made before that date. Id. Deliberately left without rights under federal law, Plaintiff asserts that Sirius XM’s broadcasts of sound recordings created before February 15, 1972 (“Pre-

1972 Recordings”) infringe a purported performance right under New York common law and alleges that the performances at issue support a recovery of more than $100 million in damages supposedly sustained by Plaintiff and members of a putative class of similarly situated owners of

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Pre-1972 Recordings. Id. ¶¶ 25, 26. Underscoring the lack of legal foundation for Plaintiff’s performance right claim, the Complaint leaves unanswered why, if a state-law performance right in Pre-1972 Recordings in fact exists, Plaintiff waited more than four decades to assert it, let alone why Plaintiff has asserted this supposed right against just one broadcaster out of many thousands of music users. Nothing about Sirius XM’s scale of operations or its ability to deliver digital-quality music and other offerings to subscribers nationwide suffices to fill the legal vacuum in which Plaintiff’s performance right-based claims were fashioned.

As we demonstrate herein, New York common law has afforded relief to owners of Pre-

1972 Recordings solely to combat copying and distribution of sound recordings by record pirates or other commercial competitors. It has never provided a means for record companies to collect enormous sums of money from broadcasters or other music users arising out of performances of

Pre-1972 Recordings. A determination by this Court that New York law provides a performance right in such older recordings would immediately turn every radio and television broadcaster, webcaster, nightclub, retail establishment, fitness center, and the like that performs such recordings within the State of New York into a serial copyright infringer. The Court should reject Plaintiff’s invitation to disrupt industry practices that have prevailed over a century and informed countless transactions involving sound recordings during that time.

While the Complaint contends that the claimed injury to Plaintiff and the putative class derives from multiple asserted unauthorized acts on the part of Sirius XM—to wit, the

“unauthorized reproduction, performance, distribution, or other exploitation” of Pre-1972

Recordings (id. ¶ 1)—it is unquestionably the asserted performance right that is central to this action. See id. ¶ 2 (adverting to Sirius XM’s performances of Turtles recordings “every hour of every day” to subscribers in New York); id. ¶ 3 (describing the various platforms by which Sirius

2 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 8 of 25

XM programming allegedly is transmitted). Sirius XM therefore brings this motion for partial dismissal of the Complaint at the threshold of this action because there is no performance right for sound recordings under New York common law. A ruling in Sirius XM’s favor would materially narrow this dispute, resulting in more efficient litigation of the case and conservation of judicial resources, impacting, among other matters, the propriety of class treatment, the identity of prospective class members should class treatment be determined appropriate, as well as the scope of fact and putative damages discovery more generally. What would remain is the balance of Plaintiff’s claims premised on alleged reproductions made by Sirius XM. Sirius XM intends to seek disposition of that part of Plaintiff’s claims on a motion for summary judgment on the basis that Sirius XM only makes non-actionable server copies of sound recordings in aid of its broadcast transmissions (and not copies for sale or distribution via download as Plaintiff alleges), but recognizes that limited discovery must first be completed before it addresses those claims.

BACKGROUND

Terminology and Statutory Background

Plaintiff alleges in the preamble to the Complaint that it owns “sound recordings of musical performances that initially were ‘fixed’ (i.e., recorded) prior to February 15, 1972,” and later alleges that it engages in the business of licensing, inter alia, the “performance of its Pre-

1972 Recordings.” Id. ¶ 5. Although the Complaint asserts claims only under New York common law, the allegations of the Complaint as well as the arguments made below addressing those allegations are best understood in relation to certain definitions and rights found in the federal Copyright Act, which we briefly summarize here.

The Copyright Act recognizes two separate copyrights associated with recorded music— one copyright in the music and lyrics (together, a “musical composition”) and another in a

3 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 9 of 25

recorded rendition of that song, e.g., when it is recorded by a particular singing group or orchestra (a “sound recording”). See 17 U.S.C. § 102(a)(2), (7). While musical compositions have enjoyed copyright protection since 1897, sound recordings—the category of works at issue in this case—were not covered by the federal Copyright Act until February 15, 1972, the effective date of the Sound Recording Act of 1971. See Act of Jan. 6, 1897, 29 Stat. 481; Pub. L.

No. 92-140, 85 Stat. 391 (1971) (“Sound Recording Act”). The Sound Recording Act afforded only prospective protection—only recordings created on or after the effective date would be protected under federal law—and limited that protection to the right “[t]o reproduce and distribute” “tangible” copies of sounds recordings. Sound Recording Act, 85 Stat. 391; see also

Naxos, 4 N.Y.3d at 555-56, 830 N.E.2d at 260.

The upshot of the Sound Recording Act was twofold. First, Pre-72 Recordings like those at issue in this case remained subject to state law and whatever protections such law did (or did not) provide. See Naxos, 4 N.Y.3d at 555-56, 830 N.E.2d at 260; see also 17 U.S.C. § 301(c)

(preserving unspecified state law remedies for Pre-1972 Recordings). Second, even as to those post-72 recordings granted federal copyright protection for the first time, the copyright owners

(usually record companies) received no right of public performance, and therefore “no right to extract licensing fees from radio stations and other broadcasters of recorded music.” Arista

Records, LLC v. Launch Media, Inc., 578 F.3d 148, 152 (2d Cir. 2009). Congress thus put sound recordings on a distinctly different footing than musical compositions, which had long enjoyed a public performance right. See 17 U.S.C. § 106(4); Broad. Music, Inc. v. Columbia Broad. Sys.,

Inc., 441 U.S. 4 (1979) (“Since 1897, the copyright laws have vested in the owner of a copyrighted musical composition the exclusive right to perform the work publicly for profit. . .”)

(citing Act of Jan. 6, 1897, 29 Stat. 481); Arista Records v. Launch Media, 578 F.3d at 152

4 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 10 of 25

(“Notably, unlike the copyright of musical works, the sound recording copyright created by the

[Sound Recording Act] did not include a right of performance.”).

Finally, effective on February 1, 1996, the Digital Performance Right in Sound

Recordings Act of 1995 granted owners of sound recordings created on or after February 15,

1972 the right “to perform the copyrighted work publicly by means of a digital audio transmission.” Pub. L. No. 104-39 § 2(3), 109 Stat. 336 (1995) (codified at 17 U.S.C. §§ 106(6),

114); see also Arista Records v. Launch Media, 578 F.3d at 154 (the Act gave “sound recording copyright holders an exclusive but ‘narrow’ right to perform—play or broadcast—sound recordings via a digital audio transmission”) (citing H.R. Rep. No. 104-274, at 12, 13-14 (1995)).

Pursuant to section 106(6), Sirius XM is required to pay royalties for its digital audio transmissions of copyrighted sound recordings protected by federal law. Because Congress has never afforded copyright protection to Pre-72 Recordings, they remain protected, if at all, under state law.

The Complaint

Plaintiff’s principals have been performing together as The Turtles since 1965. Compl. ¶

2. Plaintiff has owned the entire catalog of 100 master recordings made by The Turtles since approximately 1971. Id. Each of these master recordings was made prior to February 15, 1972, and therefore each falls outside of the scope of federal copyright protection. Id.; 17 U.S.C. §

301(c). While the Complaint includes allegations that Sirius XM has copied Plaintiff’s Pre-1972

Recordings onto central servers and enables subscribers to download streams of sound recordings for later or multiple listenings, Compl. ¶ 3, the focus of the Complaint is that Sirius

XM performs Turtles recordings “every hour of every day” to subscribers in New York. Id. ¶ 2.

Apart from the bare allegation that Plaintiff “is engaged in the business of distributing, selling, and/or licensing the reproduction, distribution, sale, and performance of its Pre-1972

5 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 11 of 25

Recordings,” id. ¶ 5, and notwithstanding its contention that its recordings include “numerous iconic hits,” id. ¶ 2, Plaintiff fails to allege a single instance in which it has licensed the public performance of its recordings, that any radio broadcaster, webcaster, bar, restaurant, retail establishment or other third party that publicly performs music has ever requested such a license from it, or that any third party has refused to take a license from Plaintiff because of Sirius XM’s use of the recordings.

Plaintiff also alleges that Sirius XM’s “use of the Pre-1972 Recordings is likely to cause confusion, mistake or deception as to the source, sponsorship, affiliation or connection between

Plaintiff and the other Class Members, and Defendants.” Id. ¶ 31. Even though Sirius XM

(together with its predecessors) has been offering its service continuously since 2001, Plaintiff neither identifies a single instance of actual confusion by anyone, nor alleges how Sirius XM’s inclusion of Plaintiff’s songs among the millions of tracks it performs each year by thousands of recording artists could possibly deceive or confuse the public into the mistaken belief that

Plaintiffs are somehow sponsoring or affiliated with Sirius XM.

Related Actions

Plaintiff has filed a nearly identical suit against Sirius XM in California, on behalf of the same putative class, the only meaningful difference being that Plaintiff there seeks relief under

California law rather than New York. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. BC

517032 (Cal. Super. Ct. L.A. Cnty. Aug. 1, 2013) (subsequently removed to the federal district court for the Central District of California). Shortly after filing this action, Plaintiff filed a third action in Florida, again identical save for pressing claims under Florida law. Flo & Eddie, Inc. v.

Sirius XM Radio, Inc., et al., No. 1:13-cv-23182 (KMM) (S.D. Fla. Sept. 3, 2013). Sirius XM has filed motions to transfer those cases to the Southern District of New York.

6 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 12 of 25

ARGUMENT

THERE IS NO PUBLIC PERFORMANCE RIGHT FOR PRE-1972 RECORDINGS UNDER NEW YORK COMMON LAW

The Complaint hinges on the mistaken notion that New York common law affords to the owner of a Pre-1972 Recording the exclusive right of public performance. Because no such right exists, no liability arises out of Sirius XM’s broadcasting of Pre-1972 Recordings. This conclusion is compelled by:

(i) Longstanding, consistent customs and practices that for over a century

have recognized the absence of a performance right for sound recordings. This is

reflected in the largely unsuccessful, decades-long efforts of the record industry

(of which Plaintiff and the putative class members are a part) to secure a first-ever

performance right for sound recordings in any venue, which yielded in 1995 only

the limited grant under federal copyright law of such a right, confined to digital

audio transmissions of post-1972 recordings (see Point A infra). This legislative

history confirms the utter absence of pre-existing New York (or any other state)

law conferring upon sound recording owners the right to license public

performances of their sound recordings of any vintage.

(ii) The authoritative construction given to New York’s common law of

and lower court decisions interpreting these bodies of New York common law

(see Points B and C infra).

Those portions of the Complaint premised on a public performance right for Pre-1972

Recordings fail to state a claim upon which relief may be granted, and partial dismissal of the

Complaint is warranted. See, e.g., Hill v. Opus Corp., 841 F. Supp. 2d 1070, 1082 (C.D. Cal.

7 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 13 of 25

2011) (granting motion to dismiss parts of plaintiff’s claims); Gaughan v. Nelson, No. 94 CIV.

3859(JFK), 1997 WL 80549, at *6 (S.D.N.Y. Feb. 26, 1997) (granting motion to dismiss part of claim); Tarcher v. Penguin Putnam, Inc., No. 01 CIV 6754 DLC, 2001 WL 1646453, at *3

(S.D.N.Y. Dec. 20, 2001) (denying plaintiff’s motion for reconsideration of the court’s partial dismissal of breach of contract claim). In the alternative, pursuant to Rules 12(d) and 56(a) of the Federal Rules of Civil Procedure, the Court could convert this motion to a partial motion for summary judgment addressed to that part of each claim premised on an exclusive right of public performance.

A. The History of Failed Efforts by the Recording Industry To Obtain a Right of Public Performance for Sound Recordings

For nearly a century, the recording industry tried, and failed, to obtain a public performance right for sound recordings. The legislative history of those efforts to amend the

Copyright Act to provide this sought-after right reflects the widespread and uniform understanding, shared by Congress, the United States Copyright Office, the recording industry, and broadcasters alike, as to its historic absence under state law, whether in New York or elsewhere. The Court may consider such legislative history on a motion to dismiss for failure to state a claim. See, e.g., In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497 (S.D.N.Y.

2001); Schuloff v. Queens Coll. Found., Inc., 994 F. Supp. 425 (E.D.N.Y. 1998), aff’d, 165 F.3d

183 (2d Cir. 1999); Parker v. Time Warner Entm't Co., 98 CV 4265 (ERK), 1999 WL 1132463

(E.D.N.Y. Nov. 8, 1999).

As introduced above, the words “sound recording” appeared for the first time in the

Copyright Act in 1971, when Congress granted a new copyright for sound recordings previously left unprotected under federal law. This new grant of rights was limited: Federal copyright protection was afforded only to recordings created on or after February 15, 1972, and the scope

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of that protection was circumscribed and much narrower than that already afforded to musical compositions. See Sound Recording Act §§ 1, 3; 17 U.S.C. § 106(4)-(5) (public performance and display rights for musical compositions). The limitations on the scope of the right were intentional. The stated goal of the Sound Recording Act was to address the problem of rampant record piracy, which had “rapid[ly] increase[d]” in preceding years due to technological advances. 117 Cong. Rec. 2002 (Feb. 8, 1971); see also H.R. Rep. No. 92-487, at 2 (1971)

(explaining that the Act was intended to combat the problem of “record pirates” and the

“widespread unauthorized reproduction of phonograph records and tapes”); S. Rep. No. 92-72, at

1 (1971) (the Act’s purpose was “protecting against unauthorized duplication and piracy of sound recordings”); S. Rep. No. 92-72, at 7 (1971) (“Neither the present Federal copyright statute nor the common law or statutes of the various States are adequate [to combat record piracy].”). In furtherance of those goals, owners of qualifying sound recordings were granted exclusive rights of reproduction and commercial distribution of their works. See 17 U.S.C. §

106(1), (3).

At the same time, however, Congress determined not to extend to owners of sound recordings the right to prevent others from publicly performing those recordings without license authority. See Sound Recording Act §§ 1(a), 3; 17 U.S.C. § 114(a) (stating that sound recording rights “do not include any right of performance under section 106(4)”); see also H.R. Rep. No.

92-487, at 14 (1971) (“[T]he exclusive right accorded by this bill does not extend to the reproduction of the sounds themselves, as, for example, by playing a sound recording over the radio.”). The record industry’s advocacy for a performance right was viewed by Congress as an unnecessary augmentation of the rights needed to accomplish the main goal of the legislation.

See H.R. Rep. No. 104-274, at 11 (1995) (explaining that sound recordings “were not granted the

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rights of public performance, on the presumption that the granted rights would suffice to protect against record piracy”).

The denial of a federal performance right comported with the uniform understanding that, unlike for the rights of reproduction and distribution, where a patchwork of state laws had existed to address record piracy, there was no existing protection for public performance of sound recordings at the state level. Indeed, it was clearly recognized that the prospect of creating a performance right for the first time would have been so novel, and so vehemently opposed by broadcasters (which for the first time ever would have become subject to licensing and performance royalty obligations in respect of sound recordings) that legislation embodying that right could not have passed. As early as the 1930s, during congressional hearings on one such piece of proposed legislation, record producers acknowledged that “the law up to date has not granted” protection against radio stations’ “indiscriminate use of phonograph records.” Revision of Copyright Laws: Hearings Before the Comm. on Patents, 74th Cong., 2d Sess. 622 (Comm.

Print 1936). This lament was repeated during 1947 hearings on similar bills, with record industry representatives noting that “use of records . . . has become standard practice with hundreds of radio stations,” concerning which the performing artist “has no rights at all beyond an original agreement with the manufacturer.” Authorizing A Composer’s Royalty in Revenues from Coin-operated Machines and to Establish a Right of Copyright in Artistic Interpretations:

Hearings Before Subcomm. on Patents, Trade-marks, and Copyrights of the Comm. on the

Judiciary on H.R. 1269, H.R. 1207, and H.R. 2570, 80th Cong., 1st Sess. 6 (Comm. Print 1947).

Similarly, during 1961 and 1962, performing artists complained to Congress as to the absence of royalties “from repeated use” of “[p]laying [records] on radios.” Economic Conditions in the

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Performing Arts: Hearings Before the Select Subcomm. on Ed. of the Comm. on Ed. and Labor,

87th Cong., 1st & 2d Sess. 64-65 (Comm. Print 1962).

The Register of Copyrights observed in a 1965 report to Congress that the proposed

addition of a public performance right for sound recordings was “explosively controversial” and noted the heavy opposition from music users. Supplementary Register’s Report on the General

Revision of the U.S. Copyright Law, 89th Cong., 1st Sess. 51 (Comm. Print 1965). A decade later, the Register reported to Congress that a sound recording performance right had yet again been removed from the proposed general revision of federal copyright law because of the concern that it would “impose severe financial burdens on broadcasters.” Second Supplementary

Similar recognition of the absence of a sound recording public performance right under state law was expressed during the enactment of the Digital Performance Rights in Sound

Recordings Act of 1995. Pub. L. No. 104-39 § 3(3), 109 Stat. 336 (creating limited right in

“digital audio transmissions” of sound recordings at 17 U.S.C. § 106(6)). In the lead-up to the legislation, the Recording Industry Association of America (“RIAA”) acknowledged that,

“[u]nder existing law, record companies and performers . . . have no rights to authorize or be compensated for the broadcast or other public performance of their works.” Testimony of Jason

S. Berman Chairman and CEO of RIAA Before the Judiciary Subcomm. on Counts & Intellectual

Property: Hearing on H.R. 1506, (June 21, 1995) 1995 WL 371088 (Westlaw) (emphasis added). For its part, the broadcast industry’s major trade association, the National Association of

Broadcasters, testified that “public performance rights” in sound recordings are “essentially alien to ways we have conducted our business for over 60 years” and that their imposition “would be enormously disruptive and harmful.” Testimony of the NAB Before the House Judiciary Comm.

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Subcomm. on Courts & Intellectual Property on H.R. 1506, § C (June 21, 1995), 1995 WL

371107 (Westlaw). The American Society of Composers, Authors and Publishers (“ASCAP”) echoed this recognition, testifying that “established user industries” such as broadcasters “have fully developed in an economic context which does not call for payment for performing rights in sound recordings [and] should not incur payments for those rights now.” Statement on S. 227 of

ASCAP, § II(C) (Mar. 9, 1995), 1995 WL 552160 (Westlaw) (emphasis added). The Senate co- sponsors of the legislation were in accord. See 141 Cong. Rec. S945-02 at S949 (Jan. 13, 1995)

(statement of Sen. Feinstein) (noting that performers and record companies still “ha[d] no legal right to control or to receive compensation for [a] public performance of their work[s]”); id. at

S947 (statement of Sen. Hatch).

B. New York’s Cause of Action for Common Law Copyright Infringement Does Not Cover Public Performances of Sound Recordings

There is not now, and there never has been, any public performance right for sound recordings under New York law. No New York court has ever held that unlicensed public performances of Pre-1972 Recordings constitute copyright infringement. Nothing in the history or controlling body of New York law in any way cuts against the common understanding that no such performance right exists. To the contrary, the only common law copyright claims upheld by New York courts have involved defendants—most often record pirates or digital file-sharing sites trafficking in pirated song files and, at least, competitors for sale of records—which made and distributed copies of sound recordings owned or licensed by the plaintiffs. See, e.g., Capitol

Records, Inc. v. Mercury Records Corp., 221 F.2d 657 (2d Cir. 1955); Arista Records LLC v.

Lime Grp. LLC, 784 F. Supp. 2d 398 (S.D.N.Y. 2011); Capitol Records, Inc. v. Greatest

Records, Inc., 252 N.Y.S.2d 553 (Sup. Ct. 1964).

12 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 18 of 25

New York’s tort of copyright infringement is thus directed at unauthorized reproduction and not at public performance. This recognition is confirmed by the New York Court of

Appeals’ 2005 opinion in Naxos, a case involving a record company defendant which restored and sold copies of certain recordings made in the 1930s. Capitol Records sued Naxos in federal court claiming that Capitol alone owned the exclusive rights to make and distribute the recordings in New York and elsewhere in the U.S. The Second Circuit certified several questions to the New York Court of Appeals, including whether “a cause of action for common law copyright infringement include[s] some or all of the elements of unfair competition?” 4

N.Y.3d at 546, 830 N.E.2d at 254. To answer the questions, the Court of Appeals first engaged in a comprehensive and scholarly analysis of Anglo-American copyright history dating to the

15th century, culminating in an exhaustive review of the protections afforded to sound recordings in New York over the past 100 years. 4 N.Y.3d at 546-62, 830 N.E.2d at 254-65.

The court also examined New York sound recording cases asserting claims of unfair competition rather than common law copyright (which was commonly understood to expire upon publication and was thus not typically available as a cause of action for sound recordings sold to the public).

See, e.g., Metro. Opera Ass’n v Wagner-Nichols Recorder Corp., 101 N.Y.S.2d 483, 492 (Sup.

Ct. 1950), aff’d, 107 N.Y.S.2d 795 (App. Div. 1951) (per curiam) (finding that defendants who made and sold recordings of Met performances engaged in “piratical conduct” that injured the

Opera’s own sale of records). The court held that a claim for common law copyright infringement under New York law contains the following elements: “(1) the existence of a valid copyright; and (2) unauthorized reproduction of the work protected by copyright.” 4 N.Y.3d at

550, 563, 830 N.E.2d at 257, 266 (emphasis added) (citing, inter alia, New York’s original

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The court made no mention of a right of public performance.

Thus, as defined by the New York Court of Appeals following its review of hundreds of years of history, a New York common law copyright claim does not reach unlicensed public performances of Plaintiff’s Pre-1972 Recordings. Although Plaintiff’s Complaint begins with the bald assertion that New York “common law” protects its recordings from unauthorized

“performance,” Plaintiff acknowledges just one sentence later that a common law copyright infringement claim in New York consists of the two elements identified in Naxos: “(1) the existence of a valid copyright; and (2) unauthorized reproduction of the work protected by copyright.” Compl. ¶ 1 (emphasis added). The conclusion is inescapable: to the extent

Plaintiff’s common law copyright claim is predicated on Sirius XM’s public performances of its recordings in New York, it should be dismissed.

C. Plaintiff Does Not State a Claim for Unfair Competition By Alleging That Sirius XM Publicly Performs Its Sound Recordings Without Permission

Plaintiff’s unfair competition claim, to the extent directed at Sirius XM’s broadcasts, fails to state a claim upon which relief may be granted for at least three reasons. First, New York’s tort of unfair competition does not prohibit the unauthorized public performance of a sound recording. Second, Plaintiff does not allege the requisite competition in the marketplace between itself and Sirius XM or any other marketplace activity that could give rise to such a claim. Third,

Plaintiff does not allege any competitive injury, as required to state a claim for unfair competition under New York law.

1. New York’s Cause of Action for Unfair Competition Does Not Cover Public Performances of Sound Recordings

The New York Court of Appeals made clear in Naxos that a claim under New York law for unfair competition with the owner of a sound recording requires “unauthorized copying and

14 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 20 of 25

distribution” of a plaintiff’s work, as well as “competition in the marketplace or similar actions designed for commercial benefit … or deception of the public.” Naxos, 4 N.Y.3d at 563-64, 830

N.E.2d at 266 (citations omitted); see also Compl. ¶ 1 (acknowledging that unauthorized reproduction is an element of a claim for unfair competition under New York law). Consistent with this holding, the cause of action has been applied in the context of record piracy or its digital file-sharing equivalent. See, e.g., Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d at 437; Apple Corps Ltd. v. The Adirondack Grp., 476 N.Y.S.2d 716, 719 (Sup. Ct. 1983);

Capitol Records v. Greatest Records, 252 N.Y.S.2d 553; Metro. Opera Ass’n, 101 N.Y.S.2d 483.

No New York case has ever found the unlicensed public performance of sound recordings to be unfair competition. To the extent that Plaintiff’s claim for unfair competition is based on public performance, rather than unauthorized reproduction, see Compl. ¶¶ 1, 2, 16(C), it should be dismissed.

2. Plaintiff Has Failed To Plead Competition Between It and Sirius XM as Needed To State a Common Law Unfair Competition Claim

The New York Court of Appeals has made clear that a claim for unfair competition under

New York law requires “competition in the marketplace or similar actions designed for commercial benefit … or deception of the public.” Naxos, 4 N.Y.3d at 563-64, 830 N.E.2d at

266 (citations omitted). This requirement was recently discussed at length in Yantha v. Omni

Childhood Ctr., Inc., 13-CV-1948 ARR JMA, 2013 WL 5327516 (E.D.N.Y. Sept. 20, 2013).

There, the district court dismissed the plaintiff’s unfair competition claim for failing to adequately allege competition between the parties, explaining that unfair competition does not simply mean that the defendant benefits by getting something without paying, but that it does so to gain an unfair competitive advantage over the plaintiff. Id. at *7 (noting lack of allegation of defendant “obtaining business that should rightfully be plaintiff’s or in any other way usurping

15 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 21 of 25

her commercial advantage”); see also ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 478-79, 880

N.E.2d 852, 859 (2007) (“[M]isappropriation theory . . . prohibits a defendant from using a plaintiff’s property right or commercial advantage . . . to compete unfairly against the plaintiff in

New York.” (emphasis added)); Roy Export Co. v. Columbia Broad. Sys., Inc., 672 F.2d 1095,

1105 (2d Cir. 1982) (“An unfair competition claim involving misappropriation usually concerns the taking and use of the plaintiff’s property to compete against the plaintiff’s own use of the same property.” (emphasis added)).

Plaintiff’s allegations on this element of the claim do not come close to satisfying the pleading standards established by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009).

There, the Supreme Court explained:

[T]he pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”

Id. at 678-79 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)). Thus,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are insufficient and courts “‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Id. at 678 (quoting Twombly, 550 U.S. at 555). The

Complaint contains only the conclusory statement that Sirius XM “unfairly and directly compet[es]” with Plaintiff and other members of the putative class, Compl. ¶ 30, without a single factual allegation to support this “threadbare recital of the elements of [the] cause of action.” Id.

The Complaint does not, for example, allege that Sirius XM competes with the Plaintiff as a creator, seller, or licensor of sound recordings, nor does it allege that Plaintiff offers a satellite radio broadcast service (or any other broadcast service) in competition with Sirius XM. The

16 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 22 of 25

Complaint is devoid of even any allegations that Plaintiff has ever licensed a competitor of Sirius

XM to make public performances of Pre-1972 Recordings, or that Sirius XM has paid another record company (that is, one of Plaintiff’s competitors) for the right to publicly perform its Pre-

1972 Recordings. Although each of the 100 works at issue was recorded more than 40 years ago, Plaintiff does not point to a single broadcaster, webcaster, bar, restaurant, retail establishment or other third party that has ever taken a license from it for the right to perform any of its “numerous iconic hits.” These shortcomings are fatal to the pleading. See, e.g., Edelman v. Starwood Capital Grp., LLC, No. 0601077, 2008 WL 2713489 (Sup. Ct. June 27, 2008)

(granting motion to dismiss because unfair competition “requires competition in the marketplace”); Zinter Handling, Inc. v. Gen. Elec. Co., 956 N.Y.S.2d 626, 630 n.6 (App. Div.

2012) (dismissing claim because “Plaintiff failed to plead . . . that it was in competition with GE for commercial benefit” (citing Edelman v. Starwood Capital Grp., LLC, 892 N.Y.S.2d 37, 39

(App. Div. 2009)).

Plaintiff fares no better by alleging that Sirius XM’s “unauthorized use of the Pre-1972

Recordings is likely to cause confusion, mistake or deception as to the source, sponsorship, affiliation or connection between Plaintiff and the other Class Members, and Defendants.”

Compl. ¶ 31. As Iqbal makes clear, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” 556 U.S. at 678. Plaintiff does not allege any facts to support the legal conclusion concerning confusion it hopes this Court will reach. Plaintiff does not allege a single instance of actual confusion, even though it alleges that Sirius XM has been playing its sound recordings “every hour of every day.” Compl. ¶ 2. Moreover, there is no factual allegation that even attempts to explain how anything Sirius XM does might cause confusion or deception as to an affiliation between Sirius XM and Plaintiff and the owners of other Pre-1972

17 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 23 of 25

Recordings broadcast on the Sirius XM service. The Complaint simply gives no basis on which this Court could credit Plaintiff’s naked assertion about a purported likelihood of confusion as to source, sponsorship or affiliation.

Plaintiff’s unfair competition claim with respect to Sirius XM’s performances boils down to a claim that Sirius XM is broadcasting its sound recordings without paying for them. But this contention is insufficient to state a claim for unfair competition under New York law.

3. Plaintiff Has Failed To Plead a Competitive Injury Adequate To Support a Common Law Unfair Competition Claim

Plaintiff’s Complaint also fails to “allege a commercial or competitive injury cognizable under New York law.” Yantha, 2013 WL 5327516, at *6 (granting motion to dismiss). This deficiency is also fatal. In Yantha, the court probed at length the requirement to plead

“competitive injury”:

The complaint is deficient . . . in stating a competitive injury as a result of any unfair competition by defendants. Although the law of unfair competition has been broadly construed to provide protection from any form of commercial immorality, the tort is not all-encompassing. Not every act, even if taken in bad faith, constitutes unfair competition. Instead, to state a claim for unfair competition, a plaintiff must allege either a direct financial loss, lost dealings, or lost profits resulting from the anticompetitive acts at issue, or, at the very least, that defendant diverted plaintiff's customers and business to defendant. . . . Plaintiff . . . cannot claim that she lost profits to which she was entitled, or that defendants diverted her business, or that defendants otherwise deprived her of proceeds she would have been able to reap but for defendants’ unfair competition. Consequently, plaintiff cannot allege a direct competitive injury.

Id. at *7 (internal quotation marks and citations omitted).

Similarly, in Agee v. Paramount Commc’ns, Inc., 59 F.3d 317 (2d Cir. 1995), the defendants, a television network and the local stations through which it distributed programming, synchronized portions of sound recordings to video without a license to create a feature for the

Hard Copy program. The plaintiff, who owned the copyrights in the sound recordings, alleged unfair competition under New York law. The court dismissed the unfair competition claim as

18 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 24 of 25

“baseless” because the plaintiff “failed to plead facts indicating that his record sales or licensing revenues have in any way been affected by Paramount’s use of the recording.” Id. at 327.

Consequently, “[t]here is no reasonable ground for believing that [plaintiff] has suffered economic losses as a result of appellees’ actions, or that consumers think less of the recording.”

Id.

The Complaint here fails for similar reasons. Plaintiff alleges that Sirius XM has

“impaired [its] ability to sell, lawfully exploit, or otherwise control [its] Pre-1972 Recordings,”

Compl. ¶¶ 4, 25, and done “enormous and irreparable harm,” id. ¶ 4. The Complaint also alleges that Plaintiff and other putative class members have been “damaged” in an amount exceeding

$100 million, id. ¶¶ 26, 33, and suffered “great and irreparable injury,” id. ¶¶ 28, 35. But these conclusory and unsupported allegations fail to describe any actual financial losses or lost dealings Plaintiff has suffered due to Sirius XM’s broadcasting of the Pre-1972 Recordings. Just as in Agee, Plaintiff has “failed to plead facts indicating that [its] record sales or licensing revenues have in any way been affected by [Sirius XM’s] use of the recordings – or that Plaintiff

“has suffered economic losses . . . or that consumers think less of the recording[s].” 59 F.3d at

327. And just like the plaintiff in Yantha, Flo & Eddie cannot claim that Sirius XM has

“diverted [its] business” or “otherwise deprived [it] of proceeds [it] would have been able to reap but for defendants’ unfair competition.” 2013 WL 5327516, at *7. Again, Plaintiff’s claimed injury is merely that Sirius XM (like every other broadcaster) does not pay license fees to perform Plaintiff’s recordings. This is not legally cognizable injury under New York unfair competition law. There were no “proceeds” the company failed to “reap” on account of Sirius

XM’s activities; “but for” Sirius XM’s unlicensed use, Flo & Eddie would have been in the exact same position they find themselves now.

19 Case 1:13-cv-05784-CM Document 16 Filed 10/28/13 Page 25 of 25

CONCLUSION

For the foregoing reasons, the Complaint should be dismissed with prejudice to the extent its claims are premised on a common law public performance right for Pre-1972 Recordings under New York law.

Dated: New York, New York Respectfully submitted, October 28, 2013 By: __/s/ R. Bruce Rich______R. Bruce Rich Benjamin E. Marks Todd Larson WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Tel: (212) 310-8000 Fax: (212) 310-8007 [email protected] [email protected] [email protected]

and

Michael S. Oberman KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 Tel: (212) 715-9294 Fax: (212) 715-8294 [email protected]

Attorneys for Defendant Sirius XM Radio Inc.

20 Case 1:13-cv-05784-CM Document 15 Filed 10/28/13 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

FLO & EDDIE, INC., individually and on behalf of all others similarly situated,

Plaintiff, CIVIL ACTION No. v. 13-CV-5784 (CM)

SIRIUS XM RADIO INC., and DOES 1 through 10,

Defendants.

NOTICE OF SIRIUS XM’S PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT

PLEASE TAKE NOTICE that Defendant Sirius XM Radio Inc. (“Sirius XM”) hereby

moves this Court, before the Honorable Colleen McMahon, United States District Judge, United

States District Court for the Southern District of New York, Daniel Patrick Moynihan United

States Courthouse, 500 Pearl Street, Room 14C, New York, New York, for an order pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure to partially dismiss Plaintiff Flo & Eddie,

Inc.’s Complaint with prejudice. In support of this motion, Sirius XM relies upon and expressly

adopts and incorporates by reference the contemporaneously filed Memorandum of Law in

Support of Sirius XM’s Partial Motion to Dismiss Plaintiff’s Complaint.

Case 1:13-cv-05784-CM Document 15 Filed 10/28/13 Page 2 of 3

Dated: New York, New York October 28, 2013 By: /s/ R. Bruce Rich R. Bruce Rich Benjamin E. Marks Todd Larson

WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Tel: (212) 310-8000 Fax: (212) 310-8007 [email protected] [email protected] [email protected]

and

Michael S. Oberman KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 Tel: (212) 715-9294 Fax: (212) 715-8294 [email protected]

Attorneys for Defendant Sirius XM Radio Inc.

TO: Henry Gradstein MaryAnn R. Marzano Robert E. Allen GRADSTEIN & MARZANO, P.C. 6310 San Vicente Blvd., Suite 510 Los Angeles, CA 90048 Tel: (323) 776-3100 Fax: (323) 931-4990 and

Evan S. Cohen 1800 South Beverly Drive, Suite 510 Los Angeles, CA 90035 Tel: (310) 556-9800

Case 1:13-cv-05784-CM Document 15 Filed 10/28/13 Page 3 of 3

Fax: (310) 556-9801 and

Kathryn L. Crawford Rajika L. Shah Kristen L. Nelson SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd., Suite 360 Los Angeles, CA 90048 Tel: (323) 302-9488 Fax: (323) 931-4990

Attorneys for Plaintiff Flo & Eddie, Inc.

Case 1:13-cv-05784-CM Document 31 Filed 11/12/13 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

FLO & EDDIE, INC., a California corporation, individually and on behalf of all Civil Action No.: 13-CV-5784(CM)(HP) others similarly situated,

Plaintiff, PLAINTIFF’S OPPOSITION TO DEFENDANT SIRIUS XM RADIO, v. INC.’S PARTIAL MOTION TO DISMISS PLAINTIFF’S COMPLAINT SIRIUS XM RADIO, INC., a Delaware corporation; and DOES 1 through 10,

Defendants.

Pending before the Court is the motion of defendant SIRIUS XM Radio, Inc. (“Defendant”), made pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss partially Plaintiff FLO & EDDIE, INC.’s (“Plaintiff” or “Flo & Eddie”) Complaint of August 16, 2013. Plaintiff shall be filing an amended complaint as of right pursuant to Fed. R. Civ. P. 15(a)(1)(B).1 The filing of the amended complaint supercedes the original and renders it a nullity. Dluhos v. Floating & Abandoned Vessel, 162 F.3d 63, 68 (2d Cir. 1998) (“[I]t is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.") (citations omitted). Castro v. Covenant Aviation Sec., LLC, 2013 U.S. Dist. LEXIS 102972, at *2 n.2 (S.D.N.Y. July 22, 2013) (Amended Complaint superseded the original and "render[ed] it of no legal effect”); Gonzalez v. Paine, Webber, Jackson & Curtis, Inc., 493 F. Supp. 499, 501 (S.D.N.Y. 1980) (“Since the original complaint has been superseded by the amended complaint, the motion to dismiss the original complaint has been rendered moot”). As a necessary consequence, Defendant’s Partial Motion to Dismiss Plaintiff’s Complaint shall be moot and must be denied upon Plaintiff’s filing of the first amended complaint pursuant to Fed. R. Civ. P.

1 Rule 15(a)(1) was amended in 2009 to allow a plaintiff to amend its complaint “as a matter of course” within 21 days of the service of a motion under Fed. R. Civ. P. 12(b), (e) or (f). Plaintiff intends to file its first amended complaint tomorrow, November 13, 2013, well within the 21-day period for amending its complaint as a matter of course after service of Defendant’s motion on October 28, 2013.

1 Case 1:13-cv-05784-CM Document 31 Filed 11/12/13 Page 2 of 2

15(a)(1)(B). CONCLUSION For the foregoing reasons, Plaintiff respectfully request that the Court deny Defendant’s partial motion to dismiss Plaintiff’s Complaint as moot.

DATED: November 12, 2013

By: /S/ Robert E. Allen HENRY GRADSTEIN (pro hac vice) [email protected] MARYANN R. MARZANO (pro hac vice) [email protected] ROBERT E. ALLEN (pro hac vice) [email protected] GRADSTEIN & MARZANO, P.C. 6310 San Vicente Blvd., Suite 510 Los Angeles, California 90048 T: 323-776-3100 F: 323-931-4990 and EVAN S. COHEN (pro hac vice pending) [email protected] 1180 South Beverly Drive, Suite 510 Los Angeles, California 90035 T: 310-556-9800 F: 310-556-9801 and KATHRYN L. CRAWFORD (KC5593) [email protected] RAJIKA L. SHAH (pro hac vice) [email protected] KRISTEN L. NELSON (pro hac vice) [email protected] SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd., Suite 360 Los Angeles, California 90048 T: 323-302-9488 F: 323-931-4990

Attorneys for Plaintiff FLO & EDDIE, INC.

2 Case 1:13-cv-05784-CM Document 32 Filed 11/13/13 Page 1 of 19

HENRY GRADSTEIN (pro hac vice) [email protected] MARYANN R. MARZANO (pro hac vice) [email protected] ROBERT E. ALLEN (pro hac vice [email protected] GRADSTEIN & MARZANO, P.C. 6310 San Vicente Blvd., Suite 510 Los Angeles, California 90048 T: 323-776-3100 F: 323-931-4990 and EVAN S. COHEN (pro hac vice pending) [email protected] 1180 South Beverly Drive, Suite 510 Los Angeles, California 90035 T: 310-556-9800 F: 310-556-9801 and KATHRYN L. CRAWFORD (KC5593) [email protected] RAJIKA L. SHAH (pro hac vice) [email protected] KRISTEN L. NELSON (pro hac vice) [email protected] SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd., Suite 360 Los Angeles, California 90048 T: 323-302-9488 F: 323-931-4990

Attorneys for Plaintiff FLO & EDDIE, INC.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

FLO & EDDIE, INC., a California Civil Action No.: 13-CIV-5784(CM)(HP) corporation, individually and on behalf of all others similarly situated, FIRST AMENDED Plaintiff, CLASS ACTION COMPLAINT

SIRIUS XM RADIO, INC., a Delaware [DEMAND FOR JURY TRIAL] corporation; and DOES 1 through 10,

Defendants.

Case 1:13-cv-05784-CM Document 32 Filed 11/13/13 Page 2 of 19

Plaintiff FLO & EDDIE, INC. (“Plaintiff” or “Flo & Eddie”) files this first amended class action complaint (the “Complaint”) pursuant to Fed. R. Civ. P. 15(a)(1)(B) on behalf of itself and on behalf of all other similarly situated owners of sound recordings of musical performances that initially were “fixed” (i.e., recorded) prior to February 15, 1972 (the “Pre-1972 Recordings”) against Defendants SIRIUS XM RADIO, INC. (“Defendant” or “SiriusXM”) and DOES 1-10, and alleges as follows: NATURE OF THE ACTION 1. New York common law provides protection for Pre-1972 Recordings from unauthorized reproduction, performance, distribution or other exploitation, and provides the owners of Pre-1972 Recordings the right to bring a claim for common law copyright infringement and a separate claim for unfair competition against parties who engage in such unauthorized actions. A common law copyright infringement claim in New York consists of two elements: (1) the existence of a valid copyright; and (2) unauthorized use, reproduction or other exploitation of the work protected by the copyright. In addition to these two elements, a claim for unfair competition in New York requires competition in the marketplace or similar actions designed for commercial benefit or deception of the public. 2. The principals of Flo & Eddie, Mark Volman and Howard Kaylan, have been performing together as The Turtles since 1965 and have recorded numerous iconic hits including “Happy Together,” “It Ain’t Me Babe,” “She’d Rather Be With Me,” “You Baby,” “She’s My

Girl,” “Elenore,” and many others. Since approximately 1971, Flo & Eddie has owned the entire catalog of 100 original master recordings by The Turtles, all of which were recorded prior to February 15, 1972, and which have been and remain popular and valuable, notwithstanding changes in how recordings are made, distributed and performed. Plaintiff’s Pre-1972 Recordings are the product of a significant investment of time, effort, money and creative talent in creating, manufacturing, advertising, promoting, selling, and licensing its recordings. In return, Plaintiff receives revenues, royalties and other compensation from its ongoing licensing and exploitation of these works.

1 Case 1:13-cv-05784-CM Document 32 Filed 11/13/13 Page 3 of 19

3. Plaintiff receives payments for, among other uses, the distribution, reproduction and digital public performance of its Pre-72 Recordings, including by offering for sale (directly or though licenses) compact discs and digital music files for download, by licensing them to digital services (including for digital streaming to the public), and licensing them for use in motion pictures, television programs and commercials. The payments that Plaintiff receives are a main source of revenue used to pay Plaintiff’s ongoing investment and expenses, and to compensate its principals, employees and representatives for their talent and work in creating the Pre-72 Recordings and for administering and collecting revenue generated by such works. 4. Digital music streaming is becoming integral to the dissemination of music. As technology changes and greater numbers of people listen to music via digital transmissions in lieu of purchasing music on CDs or digital music files, Plaintiff relies increasingly on revenues from the digital public performance of music, including Pre-72 Recordings. It is extremely important to Plaintiff’s business that those who make a commercial use of Plaintiff’s Pre-72 Recordings obtain licenses and pay Plaintiff for their use of Pre-72 Recordings. 5. Defendant SiriusXM is the sole provider of satellite radio service in the United States, known as “Sirius Satellite Radio,” “XM Satellite Radio” and “SiriusXM Satellite Radio” (individually and collectively, the “Service”). SiriusXM uses satellite technology to transmit the Service to its subscribers. SiriusXM’s channels are beamed from the ground to satellites, which then transmit digital audio files to SiriusXM receivers possessed by its subscribers. Over the past few years, SiriusXM has expanded into Internet-based digital streaming transmissions, increasing the number of its subscribers to over 25 million and earning billions of dollars in revenue. 6. The Service is distributed in New York to its subscribers through (a) satellite digital transmission directly to subscribers via digital radios manufactured or licensed by SiriusXM; (b) satellite digital transmission to subscribers of other services, such as DIRECTV Satellite Television Service and Dish Network Satellite Television Service via digital set top boxes manufactured or licensed by DIRECTV or Dish; and (c) the Internet, by way of (i) digital media

2 Case 1:13-cv-05784-CM Document 32 Filed 11/13/13 Page 4 of 19

streaming devices, such as Roku, digital radios and home audio systems, such as Sonos; (ii) its website at www.SiriusXM.com; or (iii) computer, smart phone and other mobile applications for various operating systems, including Apple iOS, Android, Windows, Blackberry and HP webOS. As part of the Service, many subscribers in New York are also able to: (A) download the stream of a selected channel on the Service, allowing later or multiple listenings of the sound recordings previously streamed during the selected time period; (B) download particular sound recordings, allowing later or multiple listenings of such sound recordings; (C) download particular programs incorporating sound recordings as part of the Service’s “On Demand” feature, allowing later or multiple listenings of such sound recordings; and (D) allow subscribers to pause, rewind and replay sound recordings using the Service’s “Replay” feature or its “My SXM” feature. 7. SiriusXM sells the Service to subscribers for $14.49 per month for its “Select” package and $17.99 per month for its “Premier” package. The “Select” package provides over 165 satellite radio channels to its subscribers, including around-the-clock “commercial-free music, sports, talk, and entertainment.” Of the seven categories into which SiriusXM characterizes its channels (for example, “Sports Talk/Play-by-Play,” “News & Issues,” and “Comedy”), by far the largest category is “Commercial-Free Music,” which SiriusXM claims has 72 channels (The second-largest category, “Talk & Entertainment,” has only 22 channels.). 8. The significant value of Pre-72 Recordings to SiriusXM’s business and the popularity of Pre-72 Recordings among its paying subscribers is evidenced by, among other things, its advertising and promotion of the availability of Pre-72 Recordings on the Service. A significant portion of SiriusXM’s channels feature classic recordings, including channels exclusively devoted to continuous public performances of the most popular Pre-72 Recordings by well-known recording artists. 9. SiriusXM uses Plaintiff’s Pre-72 Recordings by distributing, reproducing and then publicly performing them to millions of SiriusXM subscribers. Additionally, SiriusXM has copied Plaintiffs’ Pre-72 Recordings without Plaintiff’s consent. Plaintiff is informed and believes, and on that basis alleges, that SiriusXM has done so, among other ways, by obtaining

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Plaintiff’s recordings and copying them to its servers and to its satellites. SiriusXM then uses those unauthorized copies of Plaintiff’s Pre-72 Recordings to transmit the performances embodied thereon to its subscribers. Plaintiff is informed and believes, and on that basis alleges, that in such way, SiriusXM has distributed, reproduced and publicly performed Plaintiff’s Pre-72 Recordings numerous times throughout the United States, including in the state and county of New York. 10. SiriusXM has never been licensed or authorized to duplicate, distribute, reproduce or publicly perform any of Plaintiff’s Pre-72 Recordings. Although a significant portion of SiriusXM’s $3.4 billion in revenue earned in 2012 is attributable to Pre-72 Recordings, and though SiriusXM capitalizes on its customers’ desire to listen to these recordings, SiriusXM refuses to seek licenses from Plaintiff or pay to Plaintiff any royalties or other compensation. Conversely, SiriusXM pays digital public performance royalties for the performance of post- 1972 sound recordings that are covered by the federal Copyright Act. 11. By its conduct, SiriusXM not only deprives Plaintiff of the revenues to which it and others are entitled, but also places those streaming services that do obtain licenses from, account to, and pay Plaintiff for the performance of Plaintiff’s Pre-72 Recordings in a competitive disadvantage. SiriusXM’s refusal to pay for its continued use of Pre-72 Recordings directly contravenes New York law and policy, which always have provided equal, if not greater, rights to owners of sound recordings than the federal Copyright Act.

12. In 1972, Congress amended the United States Copyright Act to add for the first time “sound recordings” to the list of works protected under federal copyright law. 17 U.S.C. § 102(a)(7) (2013). At the same time, Congress also preserved “any rights or remedies under the common law or statutes of any State” with respect to sound recordings “fixed” before February 15, 1972. 17 U.S.C. § 301(c) (2013). As a result, pre-existing New York protection for Pre-72 Recordings was left untouched and subject to evolution and refinement by the courts. Congress initially limited the federal sound recording copyright to include certain of the exclusive rights conferred on other works – namely, the rights of reproduction, adaptation, and distribution – and

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to exclude the right to publicly perform sound recordings. New York law has never delimited, either explicitly or implicitly, the scope of common law protection of Pre-72 Recordings, and did not exclude the right of public performance from the rights of owners in Pre-72 Recordings. 13. This broad protection afforded to Pre-72 Recordings is consistent with the recognition by New York courts of critical, important public policy interests in providing strong state law protection for sound recordings. These interests include ensuring that record companies receive compensation from their substantial expenditure of effort, skill and money in creating, marketing and exploiting recorded performances, as well as ensuring that the owners of sound recordings possess adequate remedies against those who misappropriate and profit from such performances. New York’s protections for sound recordings thus are complete, providing exclusive ownership and rights in Pre-72 Recordings that are not limited in any way, and that include any conduct by which individuals or entities seek to unfairly compete and profit from the skill and labor of Plaintiff by appropriating and exploiting Pre-72 Recordings for their own benefit, including by unauthorized and unlicensed reproduction and public performance of these recordings. 14. The need for effective state law protection of Pre-72 Recordings is especially great today. Pre-72 Recordings comprise a significant and important share of the overall body of existing musical recordings, and include some of the most popular and valued recordings in history. Many digital radio channels and services are dedicated entirely to the dissemination and performance of Pre-72 Recordings, such as classic rock, jazz, R&B, and classical recordings. The rise of digital media has made the threat to Pre-72 Recordings acute, as virtually anyone with a computer and an Internet connection can copy and then distribute and perform high- quality music instantaneously to millions. As digital technology has improved, the cost of digital services has diminished, and, as a result music consumption habits have changed. Music consumers increasingly obtain and enjoy music via online or satellite “radio” or digital streaming services instead of purchasing CDs or digital music files.

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15. To address the anticipated shift in music consumption habits and the rise of digital radio services and, therefore, the need to provide federal protection for the performance of copyrighted sound recordings, Congress passed the Digital Performance Rights in Sound Recordings Act (“DPRA”), granting owners of post-72 copyrighted sound recordings the right to “perform the copyrighted work publicly by means of a digital audio transmission.” 17 U.S.C. § 106(6) (2013). 16. New York’s protection for Pre-72 Recordings has never been less extensive than federal copyright protection for post-72 recordings. New York had provided common law protection for Pre-72 Recordings without any exclusions and including the right of public performance. Those, like SiriusXM, who build their business and make money from the copying, reproduction and public performance of Pre-72 Recordings must obtain the right under New York law to use them and must compensate their owners. 17. Plaintiff Flo & Eddie brings this class action on its own behalf and on behalf of all other similarly situated owners of Pre-1972 Recordings (the “Class” or “Class Members”) to put an end to SiriusXM’s wholesale infringement and misappropriation of their Pre-1972 Recordings and to obtain damages, including punitive damages, and injunctive relief. Simply stated, SiriusXM has disregarded the Plaintiff’s and other Class Members’ exclusive ownership of their Pre-1972 Recordings in New York, impaired their ability to sell, lawfully exploit, or otherwise control their Pre-1972 Recordings as permitted under New York law and misappropriated same for its own financial gain. SiriusXM’s conduct is causing, and will continue to cause, enormous and irreparable harm to Plaintiff and the other Class Members unless compensatory and punitive damages are awarded against SiriusXM and it is enjoined and restrained from engaging in further infringement and misappropriation of the Pre-1972 Recordings. THE PARTIES, JURISDICTION AND VENUE 18. Plaintiff Flo & Eddie is a corporation duly organized and existing under the laws of California, with its principal place of business in Los Angeles, California. Plaintiff is engaged in the business of distributing, selling, and/or licensing the reproduction, distribution, sale, and

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performance of its Pre-1972 Recordings in phonorecords, in audiovisual works, and for streaming (i.e., performing) and downloading over the Internet. Plaintiff invests substantial money, time, effort, and creative talent in creating, advertising, promoting, selling, and licensing its unique and valuable sound recordings. 19. Plaintiff possesses exclusive ownership rights in The Turtles Pre-1972 Recordings, the titles of which are specified on the schedule attached hereto as Exhibit A and incorporated herein by reference (“Plaintiff’s Recordings”). The United States Congress expressly has recognized that the states provide exclusive protection through various state law doctrines to recordings “fixed” before February 15, 1972, and that the federal Copyright Act does not “annul[] or limit[]those rights until February 15, 2067.” 17 U.S.C. § 301(c). Accordingly, as quoted above, New York law protects the exclusive ownership of Plaintiff and the other Class Members to their Pre-1972 Recordings in New York. 20. Upon information and belief, Defendant SiriusXM is a corporation duly organized and existing under the laws of Delaware, with its principal place of business in New York, New York. The Court has personal jurisdiction over Defendant in that Defendant’s principal place of business is in the County of New York, Defendant is engaged in tortious conduct in New York, and Defendant’s conduct causes injury to Plaintiff and the other Class Members in New York. 21. This court has subject matter jurisdiction over the subject matter of this class action pursuant to 28 U.S.C. § 1332(d). The amount in controversy exceeds Five Million Dollars

($5,000,000), there are more than one thousand (1,000) putative Class Members, and the requisite minimal diversity of citizenship exists because Plaintiff and Defendant are citizens of different States. 22. Venue of this action is proper in this jurisdiction under 28 U.S.C. § 1391(b) in that Defendant maintains its principal offices in the County of New York. 23. The true names and capacities, whether individual, corporate, associate or otherwise, of defendants named herein as Does 1 through 10, inclusive, are unknown to Plaintiff who therefore sues said defendants by such fictitious names (the “Doe Defendants”). Plaintiff

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will amend this Complaint to allege their true names and capacities when such have been ascertained. Upon information and belief, each of the Doe Defendants herein is responsible in some manner for the occurrences herein alleged, and Plaintiff’s injuries and those of the other Class Members as herein alleged were proximately caused by such defendants’ acts or omissions. (All of the Defendants, including the Doe Defendants, collectively are referred to as “Defendants”). CLASS ACTION ALLEGATIONS 24. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of itself and the other Class Members defined as the owners of Pre-1972 Recordings reproduced, performed, distributed or otherwise exploited by Defendants in New York without a license or authorization to do so during the period from August 10, 2009 to the present. Plaintiff reserves the right to modify this definition of the Class after further discovery; the Court may also be requested to utilize and certify subclasses in the interests of ascertainability, manageability, justice and/or judicial economy. 25. This action may be properly brought and maintained as a class action because there is a well-defined community of interest in the litigation and the Class Members are readily and easily ascertainable and identifiable from Defendant SiriusXM’s database files and records. Plaintiff is informed and believes, and on that basis alleges, that Defendants have engaged a third party to supply the metadata, including the metadata relating to Pre-1972 Recordings unlawfully streamed to subscribers in New York, and that such metadata contains the name and location of the owners thereof. The Class members are further ascertainable through methods typical of class action practice and procedure. 26. Plaintiff is informed and believes, and alleges thereon, that the Pre-1972 Recordings infringed and misappropriated in New York by Defendants number in the millions and are owned by many thousands of Class Members. It is therefore impractical to join all of the Class Members as named Plaintiffs. Further, the claims of the Class Members may range from

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smaller sums to larger sums. Accordingly, using the class action mechanism is the most economically feasible means of determining and adjudicating the merits of this litigation. 27. The claims of Plaintiff are typical of the claims of the Class Members, and Plaintiff’s interests are consistent with and not antagonistic to those of the other Class Members it seeks to represent. Plaintiff and the other Class Members have all been subject to infringement and misappropriation of their Pre-1972 Recordings in New York, have sustained actual pecuniary loss and face irreparable harm from Defendants’ continued infringement and misappropriation of their Pre-1972 Recordings. 28. Plaintiff has no interests that are adverse to, or which conflict with, the interests of the other Class Members and is ready and able to fairly and adequately represent and protect the interests of the other Class Members. Plaintiff believes strongly in the protection of artists’ rights in connection with their creative work. Plaintiff has raised viable claims for infringement and unfair competition of the type well established in New York and reasonably expected to be raised by Class Members. Plaintiff will diligently pursue those claims. If necessary, Plaintiff may seek leave of the Court to amend this Complaint to include additional class representatives to represent the Class or additional claims as may be appropriate. Plaintiff is represented by experienced, qualified and competent counsel who are committed to prosecuting this action. 29. Common questions of fact and law exist as to all Class Members that plainly predominate over any questions affecting only individual Class Members. These common legal and factual questions, which do not vary from Class Member to Class Member, and which may be determined without reference to the individual circumstances of any Class Member include, without limitation, the following: (A) Whether Defendant SiriusXM reproduced, performed, distributed or otherwise exploited Pre-1972 Recordings in New York; (B) Whether Defendant SiriusXM’s reproduction, performance, distribution or other exploitation of Pre-1972 Recordings in New York constitutes common law copyright infringement under New York law;

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(C) Whether Defendant SiriusXM’s reproduction, performance, distribution or other exploitation of Pre-1972 Recordings in New York constitutes unfair competition in violation of New York law; (D) The basis on which restitution and/or damages to all injured members of the Class can be computed; (E) Whether Defendant SiriusXM’s violation of New York common law for copyright infringement entitles the Class Members to recover punitive damages; (F) Whether Defendant SiriusXM’s violation of New York common law for copyright infringement is continuing, thereby entitling Class Members to injunctive or other equitable relief; (G) Whether Defendant SiriusXM’s violation of New York’s laws against unfair competition entitles the Class Members to recover punitive damages; and (H) Whether Defendant SiriusXM’s violation of New York’s laws against unfair competition is continuing, thereby entitling Class Members to injunctive or other relief. 30. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy, since individual litigation of the claims of all Class Members is highly impractical. Even if every Class Member could afford to pursue individual litigation, the Court system could not. It would be unduly burdensome to the courts in which individual litigation of numerous cases would proceed. Individualized litigation would also present the potential for varying, inconsistent or contradictory judgments and would magnify the delay and expense to all parties and to the court system resulting from multiple trials of the same factual issues. By contrast, maintenance of this action as a class action, with respect to some or all of the issues presented herein, presents few management difficulties, conserves the resources of the parties and of the court system, and protects the rights of each Class Member. Plaintiff anticipates no difficulty in the management of this action as a class action.

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31. Additionally, the prosecution of separate actions by individual Class Members may create a risk of adjudications with respect to them that would, as a practical matter, be dispositive of the interests of the other Class Members not parties to such adjudications or that would substantially impair or impede the ability of such nonparty Class Members to protect their interests. The prosecution of individual actions by Class Members could establish inconsistent results and incompatible standards of conduct for Defendant SiriusXM. 32. Defendants have engaged in common law copyright infringement and unfair competition, which has affected all of the Class Members such that final and injunctive relief on behalf of the Class as a whole is efficient and appropriate. FIRST CAUSE OF ACTION (Common Law Copyright Infringement) 33. Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 32, above, as though set forth in full herein. 34. The Pre-1972 Recordings are unique intellectual property subject to common law copyright protection under the law of the State of New York. 35. As the owners of valid common law copyrights or exclusive licensees in and to the Pre-1972 Recordings, Plaintiff and the other Class Members possess the exclusive rights to reproduce, perform, distribute or otherwise exploit the Pre-1972 Recordings, and license, or refrain from licensing, others to do so.

36. Plaintiff and the other Class Members have not authorized or licensed Defendants to reproduce, perform, distribute or otherwise exploit the Pre-1972 Recordings in any manner. 37. The distribution, reproduction, performance or other exploitation by Defendants of unauthorized copies of the Pre-1972 Recordings, including, without limitation, those listed in Exhibit A, constitute infringement of Plaintiff and the Other Class Member’s common law copyrights in such recordings and violation of their exclusive rights therein. The Plaintiff and Class Members have invested substantial time and money in the development of their Pre-1972 Recordings.

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38. The Defendants have infringed the copyrights to the Pre-1972 Recordings at little or no cost and without license or authority. They have copied the Pre-1972 Recordings owned by Plaintiff and the other Class Members, and distributed and publicly perform these recordings in New York for their subscribers. Defendants have disregarded the Plaintiff’s and other Class Members’ copyrights in and exclusive ownership of their Pre-1972 Recordings, impaired their ability to sell, lawfully exploit, or otherwise control their Pre-1972 Recordings, all for their own financial gain. 39. As a direct and proximate consequence of Defendants’ copyright infringement of the Pre-1972 Recordings owned by Plaintiff and the Class Members, Plaintiff and the Class Members have been damaged in an amount that is not as yet fully ascertained but which Plaintiff is informed and believes, and alleges thereon, exceeds $100,000,000, according to proof. 40. Plaintiff is informed and believes, and alleges thereon, that in engaging in the conduct described above, the Defendants acted with oppression, fraud and/or malice. The conduct of the Defendants has been despicable and undertaken in conscious disregard of the Plaintiff’s and each Class Member’s rights. Accordingly, Plaintiff and the Class Members are entitled to an award of punitive damages against Defendants in an amount sufficient to punish and make an example of them according to proof. 41. Defendants’ conduct is causing, and unless enjoined and restrained by this Court, will continue to cause, Plaintiff and each Class Member great and irreparable injury that cannot fully be compensated or measured in money, and for which Plaintiff and each Class Member has no adequate remedy at law. Plaintiff and the other Class Members are entitled to temporary, preliminary and permanent injunctions, prohibiting further violation of Plaintiff’s and Class Members’ rights in and exclusive ownership of their Pre-1972 Recordings in New York. SECOND CAUSE OF ACTION (Unfair Competition) 42. Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 41, above, as though set forth herein.

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43. Plaintiff’s Pre-1972 Recordings are valuable assets to Plaintiff. Plaintiff is engaged in the selling and licensing of all forms of distribution, reproduction, performance or other exploitation of their Pre-1972 Recordings, including, without limitation, by selling physical compact discs and digital Phonorecord deliveries, licensing distribution and performances via digital streaming transmission and licensing the master use in audio-visual recordings, such as movies and commercials. From inception, such Pre-1972 Recordings have generated for Plaintiff millions of dollars in revenues from such selling and licensing activities. Plaintiff’s licensing the distribution of the Pre-1972 Recordings via digital streaming transmission has increased significantly over the past several years, and now represent a significant portion of the overall revenues received by Plaintiff. 44. Without a license or payment, SiriusXM copies, distributes, reproduces and performs the Pre-1972 Recordings, and allows its subscribers to: (a) listen to Pre-1972 Recordings via satellite or online digital audio transmissions without purchasing or licensing them; (b) replay, skip and remove (for such subscriber) sound recordings on certain channels through its “Replay” feature and its “MySXM” feature; and (c) download Pre-1972 Recordings to a subscriber’s device, including through its OnDemand feature. 45. Defendants have paid nothing to Plaintiff or the Other Class Members for distributing, reproducing and performing the Pre-1972 Recordings. Without expending any time, labor or money of its own, Defendants have simply appropriated the commercial qualities, reputation and salable properties of the Pre-1972 Recordings, including, without limitation those recordings listed on Exhibit A, by unfairly and directly competing with Plaintiff and the other Class Members’ use, sale, distribution and exploitation of the Pre-1972 Recordings. In so doing, Defendants have undermined Plaintiff and the other Class Members’ substantial creative and financial investment for Defendants’ own commercial benefit. 46. Defendants have usurped for itself the fruits of Plaintiff and the other Class Members’ financial and creative investments. Defendants are profiting from the results of Plaintiff and the other Class Members’ expenditures and skill without having to incur any

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expense or risk of its own in relation to the Pre-1972 Recordings. Furthermore, Defendants’ unauthorized use of the Pre-1972 Recordings is likely to cause confusion, mistake or deception as to the source, sponsorship, affiliation or connection between Plaintiff and the other Class Members, and Defendants. 47. Through its marketing, selling and licensing activities, Plaintiff is in the business of exploiting its Pre-1972 Recordings for Plaintiff’s commercial gain. Through marketing and operating the Service, Defendants are using and exploiting the Pre-1972 Recordings without license or payment for Defendants’ financial gain and commercial advantage. Defendants’ copying, distribution, reproduction and performance of Pre-1972 Recordings through the Service compete with Plaintiff in several ways. First, Defendants copying, distribution, reproduction and performance of the Pre-1972 Recordings without a license and without payment place a significant, unfair and anticompetitive downward pressure on the licensing fees Plaintiff is able to charge other services in the marketplace who do license and pay for such rights from Plaintiff, resulting in a direct financial loss to Plaintiff. Second, as digital transmissions are substituting over time for sales of sound recordings, Defendants are diverting to themselves income Plaintiff would have otherwise collected from sales of Plaintiff’s Pre-1972 Recordings, resulting in Defendants’ obtaining business that rightfully belongs to Plaintiff, and lost dealings and lost profits to Plaintiff from Defendants’ anticompetitive acts. Such actions by Defendants are designed for their commercial benefit to the detriment of Plaintiff and the other Class Members.

As a result, Plaintiff has been harmed by lost license fees and lost sales. 48. Defendants’ acts constitute a misappropriation of Plaintiff and the other Class Members’ property and rights in and to the Pre-1972 Recordings, and constitute misappropriation and unfair competition under New York law. 49. As a direct and proximate result of Defendants’ misappropriation and unfair competition, Plaintiff and the Class Members are entitled to recover all proceeds and other compensation received or to be received by Defendants from their misappropriation and unfair competition of the Pre-1972 Recordings. Plaintiff and the members of the Class have been

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damaged, and Defendants have been unjustly enriched, in an amount that is not as yet fully ascertained but which Plaintiff is informed and believes, and alleges thereon, exceeds $100,000,000, according to proof at trial. Such damages and/or restitution and disgorgement should include a declaration by this Court that Defendants are constructive trustees for the benefit of Plaintiff and the other Class Members, and an order that Defendants convey to Plaintiff and Class Members the gross receipts received or to be received that are attributable to Defendants misappropriation of the Pre-1972 Recordings. 50. Plaintiff is informed and believes, and alleges thereon, that in engaging in the conduct as described above, the Defendants acted with oppression, fraud and/or malice. The conduct of the Defendants has been despicable and undertaken in conscious disregard of Plaintiff’s rights. Accordingly, Plaintiff and the Class Members are entitled to an award of punitive damages against Defendants, and each of them, in an amount sufficient to punish and make an example of them according to proof at trial. 51. Defendants’ conduct is causing, and unless enjoined and restrained by this Court, will continue to cause, Plaintiff and the Class Members great and irreparable injury that cannot fully be compensated or measured in money. Plaintiff and the other Class Members are entitled to temporary, preliminary and permanent injunctions, prohibiting further violation of Plaintiff’s and the other Class Members right to exclusive ownership of their Pre-1972 Recordings and further acts of unfair competition and misappropriation.

PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of itself and the other Class Members, prays for Judgment against Defendants, and each of them, as follows: Regarding the Class Action: 1. That this is a proper class action maintainable pursuant to the applicable provisions of the Federal Rules of Civil Procedure; and 2. That the named Plaintiff is appropriate to be appointed representative of the respective Class.

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On The First Cause of Action For Common Law Copyright Infringement against all Defendants: 1. For compensatory damages in excess of $100,000,000 according to proof at trial; 2. Punitive and exemplary damages according to proof trial; and 3. A temporary, preliminary, and permanent injunction enjoining and restraining Defendants, and their respective agents, servants, directors, officers, principals, employees, representatives, subsidiaries and affiliated companies, successors, assigns, and those acting in concert with them or at their direction, from directly or indirectly infringing the copyrights in the Pre-1972 Recordings in New York in any manner, including without limitation by directly or indirectly copying, reproducing, downloading, distributing, communicating to the public, uploading, linking to, transmitting, publicly performing, or otherwise exploiting in any manner any of the Pre-1972 Recordings. On The Second Cause of Action For Unfair Competition against all Defendants: 1. For compensatory damages in excess of $ 100,000,000 according to proof at trial; 2. Punitive and exemplary damages according to proof at trial; 3. Imposition of a constructive trust; 4. Restitution of Defendants’ unlawful proceeds, including Defendants’ gross profits; and 5. A temporary, preliminary, and permanent injunction enjoining and restraining Defendants, and their respective agents, servants, directors, officers, principals,

employees, representatives, subsidiaries and affiliated companies, successors, assigns, and those acting in concert with them or at their direction, from directly or indirectly misappropriating in any manner the Pre-1972 Recordings, including without limitation by directly or indirectly copying, reproducing, downloading, distributing, communicating to the public, uploading, linking to, transmitting, publicly performing, or otherwise exploiting in any manner any of the Pre-1972 Recordings. On All Causes of Action: 1. For reasonable attorneys’ fees and costs as permitted by law;

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2. For prejudgement interest at the legal rate; and 3. For such other and further relief as the Court deems just and proper.

DATED: November 19, 2013

By: ______HENRY GRADSTEIN (pro hac vice application pending) [email protected] MARYANN R. MARZANO (pro hac vice application pending) [email protected] ROBERT E. ALLEN (pro hac vice application pending) [email protected] GRADSTEIN & MARZANO, P.C. 6310 San Vicente Blvd., Suite 510 Los Angeles, California 90048 T: 323-776-3100 F: 323-931-4990 and EVAN S. COHEN (pro hac vice pending) [email protected] 1180 South Beverly Drive, Suite 510 Los Angeles, California 90035 T: 310-556-9800 F: 310-556-9801 and KATHRYN L. CRAWFORD (KC5593) [email protected] RAJIKA L. SHAH (pro hac vice application pending) [email protected] KRISTEN L. NELSON (pro hac vice application pending) [email protected] SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd., Suite 360 Los Angeles, California 90048 T: 323-302-9488 F: 323-931-4990

Attorneys for Plaintiff FLO & EDDIE, INC.

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DEMAND FOR JURY TRIAL Pursuant to the Federal Rules of Civil Procedure, Rule 38(b), Plaintiff FLO & EDDIE, INC. hereby demands a jury trial on all issues so triable.

DATED: November 19, 2013

By: ______/s/______HENRY GRADSTEIN (pro hac vice) [email protected] MARYANN R. MARZANO (pro hac vice) [email protected] ROBERT E. ALLEN (pro hac vice) [email protected] GRADSTEIN & MARZANO, P.C. 6310 San Vicente Blvd., Suite 510 Los Angeles, California 90048 T: 323-776-3100 F: 323-931-4990 and EVAN S. COHEN (pro hac vice pending) [email protected] 1180 South Beverly Drive, Suite 510 Los Angeles, California 90035 T: 310-556-9800 F: 310-556-9801 and KATHRYN L. CRAWFORD (KC5593) [email protected] RAJIKA L. SHAH (pro hac vice) [email protected] KRISTEN L. NELSON (pro hac vice) [email protected] SCHWARCZ, RIMBERG, BOYD & RADER, LLP 6310 San Vicente Blvd., Suite 360 Los Angeles, California 90048 T: 323-302-9488 F: 323-931-4990

Attorneys for Plaintiff FLO & EDDIE, INC.

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

FLO & EDDIE, INC., individually and on behalf of all others similarly situated,

Plaintiff, CIVIL ACTION No. 13-CV-5784 (CM) v.

SIRIUS XM RADIO INC., and DOES 1 through 10,

Defendants.

DEFENDANT SIRIUS RADIO XM’S ANSWER TO THE FIRST AMENDED CLASS ACTION COMPLAINT

R. Bruce Rich Benjamin E. Marks Bruce S. Meyer John R. Gerba Todd Larson WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Tel: (212) 310-8000 Fax: (212) 310-8007 [email protected] [email protected] [email protected]

and

Michael S. Oberman KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 Tel: (212) 715-9294 Fax: (212) 715-8294 [email protected]

Attorneys for Defendant Sirius XM Radio Inc. Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 2 of 15

Defendant Sirius XM Radio Inc. (“Sirius XM” or “Defendant”), by its attorneys, Weil,

Gotshal & Manges LLP and Kramer Levin Naftalis & Frankel LLP, for its Answer to the First

Amended Class Action Complaint (the “First Amended Complaint”) of plaintiff Flo & Eddie,

Inc. (“Plaintiff”) states as follows:

INTRODUCTION

By this action, Plaintiff, the owner of sound recordings made nearly fifty years ago and publicly performed widely ever since by myriad broadcast and other outlets, asks this Court to radically transform the scope of protection accorded to sound recordings under New York law.

Plaintiff asks the Court to recognize an exclusive right of public performance under New York law for sound recordings created before February 15, 1972, as well as an exclusive right to create pre-broadcast server copies to facilitate such performances, in the absence of any authority recognizing such a right. The result Plaintiff seeks would dramatically expand New York law and unravel a century of contrary understandings between the music and broadcasting industries.

Worse, it would immediately turn each radio and television broadcaster, webcaster, nightclub, retail establishment, fitness center, and the like that performs such recordings in New York into a serial copyright infringer. Because no New York court has ever recognized the claim Plaintiff seeks to plead, the First Amended Complaint fails to state a claim upon which relief may be granted and should be dismissed in its entirety.

RESPONSES TO SPECIFIC ALLEGATIONS

1. The allegations contained in paragraph 1 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

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2. Sirius XM denies knowledge or information sufficient to respond to the allegations of paragraph 2 of the First Amended Complaint.

3. Sirius XM denies knowledge or information sufficient to respond to the allegations of paragraph 3 of the First Amended Complaint.

4. Sirius XM denies knowledge or information sufficient to respond to the allegations of paragraph 4 of the First Amended Complaint, except it admits that music users have enjoyed music on CDs in digital format since at least the 1980s and have accessed music via digital streaming since at least the mid-1990s.

5. Sirius XM denies the allegations of paragraph 5 of the First Amended Complaint, except it admits that Sirius XM (a) has over 25 million subscribers to its satellite radio service;

(b) operates the sole national satellite radio service in the United States, which makes digital audio transmissions via satellite technology; and (c) offers certain digital streaming services via the Internet.

6. Sirius XM denies the allegations of paragraph 6 of the First Amended Complaint, except it admits that Sirius XM’s nationwide broadcasts can be received in New York: (a) via satellite radio by subscribers who receive the satellite broadcast on authorized Sirius XM receivers; (b) via the Internet by subscribers who may receive the transmission on computers (at www.siriusxm.com), smart phones and tablets (via the Sirius XM mobile applications), and/or home audio devices/systems, such as Roku and Sonos; and (c) via satellite television channels on

Dish Network. Sirius XM further admits that its Internet radio product has features identified as

“MySXM” and “On Demand” and that certain devices capable of receiving the Sirius XM satellite service offer a feature identified as “Replay.” Users of the “Replay” and “My SXM”

3 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 4 of 15

features are provided with limited pause, rewind and replay functionality depending upon the device, channel and delivery method.

7. Sirius XM denies the allegations of paragraph 7 of the First Amended Complaint, except it admits that Sirius XM (a) has a variety of packages it offers to subscribers at various prices, including the “Premier” and “Select” packages; and (b) has approximately 70 channels that are, at times, referred to as “Commercial-Free Music” channels, although the number of such channels may vary across time and subscriber platform.

8. Sirius XM denies the allegations of paragraph 8 of the First Amended Complaint, except it admits that Sirius XM’s service includes some channels that play sound recordings of musical performances that initially were “fixed” (i.e., recorded) prior to February 15, 1972 (“Pre-

1972 Recordings”).

9. Sirius XM denies the allegations of paragraph 9 of the First Amended Complaint, except it admits (a) that some Sirius XM servers located in New York state contain copies of certain Pre-1972 Recordings, including certain recordings by the Turtles, to facilitate broadcasts of those recordings; and (b) that recordings by the Turtles are among the thousands of recordings transmitted as part of Sirius XM’s nationwide broadcasts, which are available to subscribers in

New York state.

10. Sirius XM denies the allegations of paragraph 10 of the First Amended

Complaint, except it admits that Sirius XM (a) pays royalties for digital audio transmissions of sound recordings created on or after February 15, 1972 as required by federal copyright law; and

(b) does not pay royalties for performances of Pre-1972 Recordings because no such royalties are required by law.

4 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 5 of 15

11. Sirius XM denies the allegations in the first sentence of paragraph 11 of the First

Amended Complaint. The allegations contained in the second sentence call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

12. The allegations contained in paragraph 12 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

13. The allegations contained in paragraph 13 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

14. Sirius XM denies knowledge or information sufficient to respond to the allegations of paragraph 14 of the First Amended Complaint, except that Sirius XM admits that consumers enjoy music via satellite radio and Sirius XM Internet radio.

15. The allegations contained in paragraph 15 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required.

16. The allegations contained in paragraph 16 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

17. The allegations contained in paragraph 17 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

5 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 6 of 15

18. Sirius XM denies knowledge or information sufficient to respond to the allegations of paragraph 18 of the First Amended Complaint.

19. Sirius XM denies knowledge or information sufficient to respond to the allegations in the first sentence of paragraph 19 of the First Amended Complaint. The remaining allegations of paragraph 19 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

20. Sirius XM denies the allegations of paragraph 20 of the First Amended

Complaint, except it admits that Sirius XM is a Delaware corporation with its principal place of business in New York City, and that this Court has personal jurisdiction over Sirius XM.

21. Sirius XM denies knowledge or information sufficient to respond to the allegations in paragraph 21 of the First Amended Complaint, except it admits that this Court has subject matter jurisdiction over the subject matter of this class action pursuant to 28 U.S.C. §

1332(d).

22. The allegations contained in paragraph 22 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. Sirius XM admits, however, that venue is proper in this District.

23. Sirius XM does not respond to paragraph 23 of the First Amended Complaint, which contains no factual allegations about Sirius XM.

24. The allegations contained in paragraph 24 of the First Amended Complaint are not factual in nature; they merely characterize the basis on which Plaintiff purports to bring this action and purport to reserve certain rights to the Plaintiff. Accordingly, no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

6 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 7 of 15

25. The allegations contained in paragraph 25 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

26. The allegations contained in paragraph 26 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

27. The allegations contained in paragraph 27 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

28. The allegations contained in the first sentence of paragraph 28 of the First

Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies knowledge or information sufficient to respond to the allegations, as it does for the allegations in the second and last sentences of paragraph 28. Sirius XM denies the allegations in the third sentence of paragraph 28, and does not respond to the fourth and fifth sentences, which are not factual in nature.

29. The allegations contained in paragraph 29 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

30. The allegations contained in paragraph 30 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is

7 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 8 of 15

required, Sirius XM denies the allegations. Sirius XM denies knowledge or information sufficient to respond to the allegations in the last sentence of paragraph 30.

31. The allegations contained in paragraph 31 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

32. The allegations contained in paragraph 32 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

With Respect to the First Cause of Action

33. Sirius XM repeats and incorporates by reference its responses to paragraphs 1-32 of the First Amended Complaint.

34. The allegations contained in paragraph 34 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

35. The allegations contained in paragraph 35 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

36. The allegations contained in paragraph 36 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations.

37. The allegations contained in the first sentence of paragraph 37 of the First

Amended Complaint call for legal conclusions to which no responsive pleading is required. To

8 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 9 of 15

the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM. Sirius XM denies knowledge or information sufficient to respond to the allegations in the second sentence of paragraph 37 of the

First Amended Complaint.

38. The allegations contained in the first sentence of paragraph 38 of the First

Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM. Sirius XM denies the allegations contained in the remaining sentences of paragraph 38 of the First Amended Complaint, except it admits that (a) that some Sirius XM servers located in New York state contain copies made by

Sirius XM of certain Pre-1972 Recordings, including certain recordings by the Turtles, to facilitate broadcasts of those recordings; and (b) that recordings by the Turtles and certain other

Pre-1972 Recordings are among the thousands of recordings transmitted as part of Sirius XM’s nationwide broadcasts, which are available to subscribers in New York state.

39. The allegations contained in paragraph 39 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

40. The allegations contained in paragraph 40 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

9 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 10 of 15

41. The allegations contained in paragraph 41 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

With Respect to the Second Cause of Action

42. Sirius XM repeats and incorporates by reference its responses to paragraphs 1-41 of the First Amended Complaint.

43. Sirius XM denies knowledge or information sufficient to respond to the allegations of paragraph 43 of the First Amended Complaint.

44. Sirius XM denies the allegations contained in paragraph 44 of the First Amended

Complaint, except admits that (a) some Sirius XM servers located in New York state contain copies made by Sirius XM of certain Pre-1972 Recordings in order to facilitate broadcast of such recordings; (b) certain Pre-1972 Recordings are among the thousands of recordings transmitted as part of Sirius XM’s nationwide broadcasts and online digital audio transmissions, which are available to subscribers in New York state; (c) users of the “Replay” and “My SXM” features are provided with limited skip functionality depending upon the device, channel and delivery method. Sirius XM further admits that its Internet radio product has features identified as

“MySXM” and “On Demand” and that certain devices capable of receiving the Sirius XM satellite service offer a feature identified as “Replay.”

45. The allegations contained in paragraph 45 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM admits that Sirius XM does not pay royalties for Pre-1972 Recordings

10 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 11 of 15

because no such royalties are required by law, but otherwise denies all allegations of wrongdoing by Sirius XM.

46. The allegations contained in paragraph 46 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

47. Sirius XM denies knowledge or information sufficient to respond to the allegations in the first sentence of paragraph 47 of the First Amended Complaint. The remaining allegations of paragraph 47 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

48. The allegations contained in paragraph 48 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

49. The allegations contained in paragraph 49 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

50. The allegations contained in paragraph 50 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

11 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 12 of 15

51. The allegations contained in paragraph 51 of the First Amended Complaint call for legal conclusions to which no responsive pleading is required. To the extent a response is required, Sirius XM denies the allegations and, without limitation, expressly denies all allegations of wrongdoing by Sirius XM.

AFFIRMATIVE DEFENSES

52. Without assuming the burden of proof where such burden properly rests with

Plaintiff, and expressly reserving and not waiving the right to assert any and all such defenses at such time and to such extent as discovery and factual developments establish a basis therefor,

Sirius XM hereby asserts the following defenses to the claims asserted in the First Amended

Complaint.

First Affirmative Defense

(Failure to State a Claim)

53. The First Amended Complaint fails to state any claim upon which relief can be granted.

Second Affirmative Defense

(Laches)

54. Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches.

Third Affirmative Defense

(Waiver)

55. Plaintiff’s claims are barred, in whole or in part, by the doctrine of waiver.

Fourth Affirmative Defense

(Estoppel)

56. Plaintiff’s claims are barred, in whole or in part, by the doctrine of estoppel.

12 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 13 of 15

Fifth Affirmative Defense

(License)

57. Plaintiff’s claims are barred, in whole or in part, by an implied license conveyed by Plaintiff to Sirius XM or because Plaintiff otherwise licensed, authorized, or consented to

Sirius XM’s alleged conduct.

Sixth Affirmative Defense

(Fair Use)

58. Plaintiff’s claims are barred, in whole or in part, by the doctrine of fair use.

Seventh Affirmative Defense

(Statute of Limitations)

59. Plaintiff’s claims are barred, in whole or in part, by applicable statutes of limitations.

Eighth Affirmative Defense

(Lack of Harm)

60. Plaintiff’s claims are barred, in whole or in part, because Plaintiff has not suffered any harm from Sirius XM’s alleged conduct.

Ninth Affirmative Defense

(Failure to Mitigate Damages)

61. Plaintiff’s claims are barred, in whole or in part, because Plaintiff has failed to take appropriate and necessary steps to mitigate its alleged damages, if any.

13 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 14 of 15

Tenth Affirmative Defense

(Lack of Ownership)

62. Plaintiff’s claims are barred, in whole or in part, because Plaintiff does not own the purported rights at issue.

Eleventh Affirmative Defense

(Adequate Remedy at Law)

63. The injunctive relief sought by Plaintiff is barred, in whole or in part, because

Plaintiff has available an adequate remedy at law.

PRAYER FOR RELIEF

For the reasons set forth above, Sirius XM respectfully requests that the Court:

1. Dismiss Plaintiff’s First Amended Complaint in its entirety with prejudice;

2. Enter judgment in favor of Defendant Sirius XM and against Plaintiff on each and

every cause of action set forth in the First Amended Complaint;

3. Award attorneys’ fees and costs in favor of Defendant Sirius XM against Plaintiff

as permitted by applicable law; and

4. Award such other and further relief as the Court deems just and proper.

14 Case 1:13-cv-05784-CM Document 34 Filed 12/06/13 Page 15 of 15

Dated: New York, New York Respectfully submitted, December 6, 2013 By: /s/ R. Bruce Rich______R. Bruce Rich Benjamin E. Marks Bruce S. Meyer Todd Larson John R. Gerba WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, New York 10153 Tel: (212) 310-8000 Fax: (212) 310-8007 [email protected] [email protected] [email protected]

and

Michael S. Oberman Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, New York 10036 Tel: (212) 715-9294 Fax: (212) 715-8294 [email protected]

Attorneys for Defendant Sirius XM Radio Inc.

15 Case: 1:13-cv-05784-CM As of: 02/20/2014 03:19 PM EST 1 of 7

ECF U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:13−cv−05784−CM

Flo &Eddie, Inc v. Sirius XM Radio, Inc. et al Date Filed: 08/16/2013 Assigned to: Judge Colleen McMahon Jury Demand: Plaintiff Demand: $9,999,000 Nature of Suit: 820 Copyright Cause: 28:1332 Diversity−Account Receivable Jurisdiction: Federal Question Plaintiff Flo &Eddie, Inc represented by Robert L. Rimberg A california Corporation, individually Goldberg &Rimberg, PLLC and on behalf of all others similarly 115 Broadway, Suite 302 situated New York, NY 10006 (212) 697−3250 Fax: (212) 812−0696 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Evan S Cohen Evan S. Cohen 1180 South Beverly Drive, Suite 510 Los Angeles, CA 90035 (310) 721−5159 Email: [email protected] PRO HAC VICE ATTORNEY TO BE NOTICED Harvey Wayne Geller Gradstein &Marzano, P.C. 6310 San Vincente Blvd., Suite 510 Los Angeles, CA 90048 (323)−776−3100 Fax: (323)−931−4990 Email: [email protected] PRO HAC VICE ATTORNEY TO BE NOTICED Henry D. Gradstein Gradstein &Marzano, P.C. 6310 San Vicente Blvd., Suite 510 Los Angeles, CA 90048 (310) 489−6551 Fax: (310) 571−1717 Email: [email protected] PRO HAC VICE ATTORNEY TO BE NOTICED Joel Steven Schneck Goldberg &Rimberg, PLLC 115 Broadway, Suite 302 New York, NY 10006 (212)−697−3250 Fax: (212)−227−4533 Email: [email protected] ATTORNEY TO BE NOTICED Kathryn Lee Crawford Schwarcz Rimberg Boyd &Rader, LLP 115 Broadway, Suite 302 New York, CA 10066 Case: 1:13-cv-05784-CM As of: 02/20/2014 03:19 PM EST 2 of 7

(212) 697−3250 Fax: (212) 227−4533 Email: lboyd@srbr−law.com ATTORNEY TO BE NOTICED Kristen Leigh Nelson Schwartz & Perry 295 Madison Avenue New York, NY 10017 (323)−302−9488 Fax: (323)−931−4990 Email: knelson@srbr−law.com ATTORNEY TO BE NOTICED Larry Steven Castruita Gradstein &Marzano, P.C. 6310 San Vicente Blvd., Suite 510 Los Angeles, CA 90048 (213)−675−0650 Email: [email protected] ATTORNEY TO BE NOTICED Maryann Rose Marzano Gradstein &Marzano, P.C. 6310 San Vicente Blvd, Suite 510 Los Angeles, CA 90048 (323)−776−3100 Fax: 323−931−4990 Email: [email protected] PRO HAC VICE ATTORNEY TO BE NOTICED Rajika Lynn Shah Schwarcz, Rimberg, Boyd &Rader, LLP 6310 San Vicente Boulevard, Suite 360 Los Angeles, CA 90048 (323) 302−9488 Fax: (323) 931−4990 Email: rshah@srbr−law.com ATTORNEY TO BE NOTICED Robert Edward Allen Gradstein &Marzano, P.C. 6310 San Vicente Blvd, Suite 510 Los Angeles, CA 90048 (310)−895−8925 Email: [email protected] PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Sirius XM Radio, Inc. represented by Benjamin Ely Marks A Delaware Corporation Weil, Gotshal &Manges LLP (NYC) 767 Fifth Avenue, 25th Fl. New York, NY 10153 (212)−735−4566 Fax: (212)−310−8007 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Bruce S. Meyer Case: 1:13-cv-05784-CM As of: 02/20/2014 03:19 PM EST 3 of 7

Weil, Gotshal &Manges LLP (NYC) 767 Fifth Avenue, 25th Fl. New York, NY 10153 2123108000 Fax: 2128333148 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Robert Bruce Rich Weil, Gotshal &Manges LLP (NYC) 767 Fifth Avenue, 25th Fl. New York, NY 10153 (212) 310−8000 Fax: (212) 310−8007 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED John Ryan Gerba Weil, Gotshal &Manges LLP (NYC) 767 Fifth Avenue, 25th Fl. New York, NY 10153 (212)−310−8190 Fax: (212)−310−8007 Email: [email protected] ATTORNEY TO BE NOTICED Michael Stewart Oberman Kramer Levin Naftalis &Frankel, LLP 1177 Avenue of the Americas New York, NY 10036 (212) 715−9294 Fax: (212)−715−8000 Email: [email protected] ATTORNEY TO BE NOTICED Todd Daniel Larson Weil, Gotshal &Manges LLP (NYC) 767 Fifth Avenue, 25th Fl. New York, NY 10153 (212)−310−8238 Fax: (212)−310−8007 Email: [email protected] ATTORNEY TO BE NOTICED

Defendant Does 1 through 10 TERMINATED: 11/13/2013

Defendant DOES 1 through 10

Date Filed # Docket Text 08/16/2013 1 COMPLAINT against Does, Sirius XM Radio, Inc. (Filing Fee $ 350.00, Receipt Number 465401074674)Document filed by Flo &Eddie, Inc.(jd) (jd). (Entered: 08/20/2013) 08/16/2013 SUMMONS ISSUED as to Does, Sirius XM Radio, Inc. (jd) (Entered: 08/20/2013) Case: 1:13-cv-05784-CM As of: 02/20/2014 03:19 PM EST 4 of 7 08/16/2013 Magistrate Judge Henry B. Pitman is so designated. (jd) (Entered: 08/20/2013) 08/16/2013 Case Designated ECF. (jd) (Entered: 08/20/2013) 08/20/2013 3 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Maryann R. Marzano to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8800462. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Flo &Eddie, Inc. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Marzano, Maryann) Modified on 8/20/2013 (bcu). (Entered: 08/20/2013) 08/20/2013 >>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice regarding Document No. 3 MOTION for Maryann R. Marzano to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8800462. Motion and supporting papers to be reviewed by Clerk's Office staff.. The filing is deficient for the following reason(s): Missing Certificate of Good Standing. Certificate of Good Standing must be issued from the State Court not from a State Bar Association. Re−file the document as a Corrected Motion to Appear Pro Hac Vice and attach a valid Certificate of Good Standing, issued within the past 30 days. (bcu) (Entered: 08/20/2013) 08/21/2013 4 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Flo &Eddie, Inc.(Crawford, Kathryn) (Entered: 08/21/2013) 09/18/2013 5 NOTICE OF APPEARANCE by Robert Bruce Rich on behalf of Sirius XM Radio, Inc.. (Rich, Robert) (Entered: 09/18/2013) 09/18/2013 6 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent Liberty Media Corporation for Sirius XM Radio, Inc.. Document filed by Sirius XM Radio, Inc..(Rich, Robert) (Entered: 09/18/2013) 09/18/2013 7 NOTICE OF APPEARANCE by Robert Bruce Rich on behalf of Sirius XM Radio, Inc.. (Rich, Robert) (Entered: 09/18/2013) 09/18/2013 8 NOTICE OF APPEARANCE by Bruce S. Meyer on behalf of Sirius XM Radio, Inc.. (Meyer, Bruce) (Entered: 09/18/2013) 09/18/2013 9 NOTICE OF APPEARANCE by Benjamin Ely Marks on behalf of Sirius XM Radio, Inc.. (Marks, Benjamin) (Entered: 09/18/2013) 09/18/2013 10 NOTICE OF APPEARANCE by Todd Daniel Larson on behalf of Sirius XM Radio, Inc.. (Larson, Todd) (Entered: 09/18/2013) 09/18/2013 11 NOTICE OF APPEARANCE by John Ryan Gerba on behalf of Sirius XM Radio, Inc.. (Gerba, John) (Entered: 09/18/2013) 09/18/2013 12 NOTICE OF APPEARANCE by Michael Stewart Oberman on behalf of Sirius XM Radio, Inc.. (Oberman, Michael) (Entered: 09/18/2013) 10/28/2013 13 FILING ERROR − DEFICIENT DOCKET ENTRY − FILER ERROR − MOTION to Dismiss Plaintiff's Complaint. Document filed by Sirius XM Radio, Inc..(Marks, Benjamin) Modified on 10/29/2013 (ka). (Entered: 10/28/2013) 10/28/2013 14 FILING ERROR − DEFICIENT DOCKET ENTRY − FILER ERROR − MEMORANDUM OF LAW in Support re: 13 MOTION to Dismiss Plaintiff's Complaint.. Document filed by Sirius XM Radio, Inc.. (Marks, Benjamin) Modified on 10/29/2013 (ka). (Entered: 10/28/2013) 10/28/2013 15 MOTION to Dismiss Plaintiff's Complaint. Document filed by Sirius XM Radio, Inc..(Rich, Robert) (Entered: 10/28/2013) 10/28/2013 16 MEMORANDUM OF LAW in Support re: 15 MOTION to Dismiss Plaintiff's Complaint.. Document filed by Sirius XM Radio, Inc.. (Rich, Robert) (Entered: 10/28/2013) 10/29/2013 17 MOTION for Maryann R. Marzano to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9025339. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Flo &Eddie, Inc. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Marzano, Maryann) (Entered: 10/29/2013) Case: 1:13-cv-05784-CM As of: 02/20/2014 03:19 PM EST 5 of 7 10/29/2013 >>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 17 MOTION for Maryann R. Marzano to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9025339. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 10/29/2013) 10/29/2013 18 MOTION for Robert Edward Allen to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9025517. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Flo &Eddie, Inc. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Allen, Robert) (Entered: 10/29/2013) 10/29/2013 19 MOTION for Henry Daniel Gradstein to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9025686. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Flo &Eddie, Inc. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Gradstein, Henry) (Entered: 10/29/2013) 10/29/2013 20 MOTION for Larry Steven Castruita to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9025753. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Flo &Eddie, Inc. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Castruita, Larry) (Entered: 10/29/2013) 10/29/2013 >>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 19 MOTION for Henry Daniel Gradstein to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9025686. Motion and supporting papers to be reviewed by Clerk's Office staff., 20 MOTION for Larry Steven Castruita to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9025753. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 10/29/2013) 10/29/2013 21 MOTION for Rajika L. Shah to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9026322. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Flo &Eddie, Inc. (Attachments: # 1 Exhibit Certificate, # 2 Text of Proposed Order)(Shah, Rajika) (Entered: 10/29/2013) 10/29/2013 22 MOTION for Kristen L. Nelson to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9026334. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Flo &Eddie, Inc. (Attachments: # 1 Exhibit Certificate, # 2 Text of Proposed Order)(Nelson, Kristen) (Entered: 10/29/2013) 10/30/2013 >>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 21 MOTION for Rajika L. Shah to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9026322. Motion and supporting papers to be reviewed by Clerk's Office staff., 22 MOTION for Kristen L. Nelson to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9026334. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 10/30/2013) 10/31/2013 23 ORDER FOR ADMISSION PRO HAC VICE granting 17 Motion for Maryann R. Marzano to Appear Pro Hac Vice. (Signed by Judge Colleen McMahon on 10/31/2013) (rjm) (Entered: 10/31/2013) 10/31/2013 24 ORDER FOR ADMISSION PRO HAC VICE granting 18 Motion for Robert E. Allen to Appear Pro Hac Vice. (Signed by Judge Colleen McMahon on 10/31/2013) (rjm) (Entered: 10/31/2013) 10/31/2013 25 ORDER FOR ADMISSION PRO HAC VICE granting 19 Motion for Henry Gradstein to Appear Pro Hac Vice. (Signed by Judge Colleen McMahon on 10/31/2013) (rjm) (Entered: 10/31/2013) 10/31/2013 26 ORDER FOR ADMISSION PRO HAC VICE granting 20 Motion for Larry S. Castruita to Appear Pro Hac Vice. (Signed by Judge Colleen McMahon on Case: 1:13-cv-05784-CM As of: 02/20/2014 03:19 PM EST 6 of 7

10/31/2013) (rjm) (Entered: 10/31/2013) 10/31/2013 27 ORDER FOR ADMISSION PRO HAC VICE granting 21 Motion for Rajika L. Shah to Appear Pro Hac Vice. (Signed by Judge Colleen McMahon on 10/31/2013) (rjm) (Entered: 10/31/2013) 10/31/2013 28 ORDER FOR ADMISSION PRO HAC VICE granting 22 Motion for Kristen L. Nelson to Appear Pro Hac Vice. (Signed by Judge Colleen McMahon on 10/31/2013) (rjm) (Entered: 10/31/2013) 11/04/2013 29 ENDORSED LETTER addressed to Judge Colleen McMahon from Robert E. Allen, Esq. dated 11/1/2013 re: Plaintiff seeks clarification from this Court as to whether: (1) the Court will be holding a conference after the motion pursuant to option (c) above; (2) if such a conference will not be held, whether Plaintiff may amend its Complaint to address the alleged deficiencies identified by Defendant in its Motion (either pursuant to Section III(A)(4) above or Fed. R. Civ. Proc. 15(a)(1)(B)); and (3) whether the time for opposing Defendant's Motion is stayed until after Plaintiff has an opportunity to file a First Amended Complaint. ENDORSEMENT: I do not require a pre−motion conference. I do not do any of the procedures listed below. "May" is not "must". Defendant has no obligation to consent with you before availing itself of Rule 12(b). Respond to the motion. If the federal rules allow you to amend as of right you may amend. (Signed by Judge Colleen McMahon on 11/4/2013) (ft) Modified on 11/6/2013 (ft). (Entered: 11/05/2013) 11/07/2013 30 ENDORSED LETTER addressed to Judge Colleen McMahon from R. Bruce Rich dated 11/4/2013 re: Counsel writes on behalf of Sirius XM Radio Inc. to respond to the letter to the Court submitted by Plaintiff Flo &Eddie, Inc. on Friday, 11/1/2013. ENDORSEMENT: This letter was not necessary. I have responded to plaintiff. (Signed by Judge Colleen McMahon on 11/7/2013) (tro) (Entered: 11/07/2013) 11/12/2013 31 RESPONSE in Opposition to Motion re: 15 MOTION to Dismiss Plaintiff's Complaint.. Document filed by Flo &Eddie, Inc. (Allen, Robert) (Entered: 11/12/2013) 11/13/2013 32 FIRST AMENDED COMPLAINT amending 1 Complaint against Sirius XM Radio, Inc., DOES 1 through 10 with JURY DEMAND.Document filed by Flo &Eddie, Inc. Related document: 1 Complaint filed by Flo &Eddie, Inc.(djc) (Entered: 11/19/2013) 11/25/2013 33 AMENDED CALENDAR NOTICE: Rule (16) Conference rescheduled for 1/10/2014 at 10:15 AM in Courtroom 14C, U.S. District Court, 500 Pearl Street, New York, NY 10007 before Judge Colleen McMahon. (Signed by Judge Colleen McMahon on 11/25/2013) (ft) (Entered: 11/25/2013) 12/06/2013 34 ANSWER to 32 Amended Complaint. Document filed by Sirius XM Radio, Inc..(Rich, Robert) (Entered: 12/06/2013) 01/07/2014 35 NOTICE OF APPEARANCE by Robert L. Rimberg on behalf of Flo &Eddie, Inc. (Rimberg, Robert) (Entered: 01/07/2014) 01/09/2014 36 NOTICE OF APPEARANCE by Joel Steven Schneck on behalf of Flo &Eddie, Inc. (Schneck, Joel) (Entered: 01/09/2014) 01/10/2014 Minute Entry for proceedings held before Judge Colleen McMahon: Initial Pretrial Conference held on 1/10/2014. Decision: Conference held. Limited discovery (on issues other than the amount of damages that may be owed) must be completed by Thursday, April 3, 2014. All other discovery is stayed. At 2:00 PM on April 3, 2014, the parties will conference with the Court to discuss the possibility of more discovery in this case.(Submitted by Zachary Vaughan). (mde) (Entered: 01/10/2014) 01/10/2014 Set/Reset Hearings: Conference set for 4/3/2014 at 2:00 PM in Courtroom 14C, 500 Pearl Street, New York, NY 10007 before Judge Colleen McMahon. (mde) (Entered: 01/10/2014) 01/29/2014 37 MOTION for Harvey Wayne Geller to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9306608. Motion and supporting papers to be reviewed Case: 1:13-cv-05784-CM As of: 02/20/2014 03:19 PM EST 7 of 7

by Clerk's Office staff. Document filed by Flo &Eddie, Inc. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Geller, Harvey) (Entered: 01/29/2014) 01/29/2014 >>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 37 MOTION for Harvey Wayne Geller to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9306608. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 01/29/2014) 01/30/2014 38 ORDER FOR ADMISSION PRO HAC VICE granting 37 Motion for Harvey Wayne Geller to Appear Pro Hac Vice. (Signed by Judge Colleen McMahon on 1/30/2014) (mro) (Entered: 01/30/2014)