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`OPINION & ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`IN RE PETITION OF PANDORA MEDIA, INC.
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`-------------------------------------- :
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`Related to
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`UNITED STATES OF AMERICA,
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` Plaintiff
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` v.
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`AMERICAN SOCIETY OF COMPOSERS,
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`AUTHORS,
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`AND PUBLISHERS,
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` Defendant.
`X
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`For Pandora Media, Inc.:
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`Kenneth L. Steinthal
`Joseph R. Wetzel
`King & Spalding, LLP
`101 Second Street, Suite 2300
`San Francisco, CA 94105
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`For the movant Publishers Sony/ATV Music Publishing, LLC, and
`the EMI Music Publishing Companies:
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`Donlad S. Zakarin
`Frank P. Scibilia
`Erich C. Carey
`Pryor Cashman LLP
`7 Times Square
`New York, NY 10036
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`DENISE COTE, District Judge:
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`On September 30, 2013 Sony/ATV Music Publishing LLC and the
`EMI Music Publishing Companies filed a motion to intervene in
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`12 Civ. 8035 (DLC)
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`41 Civ. 1395 (DLC)
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`the above captioned matter nunc pro tunc to September 13, 2013.
`For the reasons that follow, the motion is granted with the
`restrictions described below.
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`BACKGROUND
`Sony/ATV Music Publishing LLC and the EMI Music Publishing
`Companies (collectively, the “Publishers”) are business entities
`that own catalogues of copyrighted music compositions. Pandora
`is a company that provides streaming internet radio services
`using songs licensed from artists and their agents and
`licensees. The Publishers are not parties to this underlying
`rate court action, In Re Petition of Pandora Media Inc., 12 Civ.
`8035 (DLC). The parties to the action are Pandora and the
`American Society of Authors and Composers (“ASCAP”). ASCAP is a
`performing rights organization (“PRO”) composed of voluntary
`writer and publisher-members, which exists in part to facilitate
`licensing of artists’ works to third parties. Since 1941, ASCAP
`has been operating under a consent decree stemming from a
`Department of Justice antitrust lawsuit that alleged
`monopolization of performance rights licenses. The most recent
`iteration of the consent decree is called the Second Amended
`Final Judgment (“AFJ2”), which restricts how ASCAP may issue
`licenses in a variety of ways. One such restraint is that AFJ2
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`provides a mechanism whereby a judge on the United States
`District Court for the Southern District of New York (the “rate
`court”) will determine a reasonable fee for ASCAP licenses when
`ASCAP and an applicant for a license cannot reach an agreement.
`See AFJ2 § IX(D). Trial to set a rate for Pandora’s use of the
`ASCAP repertory is set for January 21, 2014.
`AFJ2 also contains other restraints on ASCAP’s freedom to
`license song rights. This motion for intervention arises out of
`a summary judgment opinion issued on September 17, 2013 in which
`this Court held that AFJ2 prevented ASCAP from withholding from
`Pandora the rights to compositions in its repertory while
`licensing those compositions to other users. In re Pandora
`Media, Inc., 12 Civ. 8035 (DLC), 2013 WL 5211927 (S.D.N.Y. Sept.
`17, 2013) (“September 17 Opinion”). The summary judgment
`practice was precipitated by putative publisher partial
`withdrawals of rights from ASCAP.
`In April 2011, ASCAP adopted a Compendium Modification
`which allowed music publisher members like the petitioners here
`to withdraw from ASCAP the right to license certain compositions
`in “New Media” outlets, while allowing ASCAP to retain the right
`to license those works to other outlets. The modified
`Compendium defined “New Media” outlets as:
`[A]ny standalone offering by a ‘Music User’ by which a New
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`Media Transmission of musical compositions is made
`available or accessible (i) exclusively by means of the
`Internet, a wireless mobile telecommunications network,
`and/or a computer network and (ii) to the public, whether
`or not, in exchange for a subscription fee, other fee or
`charge.
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`In practice, New Media outlets include entities like Pandora.
`Following the Compendium Modification, several publishers,
`including Sony/ATV and some EMI Music Publishing companies,
`purported to withdraw from ASCAP their rights to license their
`copyrighted compositions to New Media outlets like Pandora while
`allowing ASCAP to retain the right to license those same songs
`to other outlets. Following the publisher withdrawal of rights
`from ASCAP, Pandora then entered into separate licensing
`agreements with some publishers. On June 11, 2013, Pandora
`moved for summary judgment seeking a determination that the
`ASCAP Compendium Modification did not affect the scope of the
`ASCAP repertory of songs subject to Pandora’s license.
`The Publisher’s Actions Subsequent to Pandora’s June 11 Filing
`of its Summary Judgment Motion
`After Pandora moved for summary judgment on June 11, the
`Publishers expressed concern that arguments in Pandora’s
`briefing might implicate an anticipatory repudiation of the
`direct licenses that Pandora had negotiated following the
`Publishers’ withdrawals from ASCAP. Following email
`correspondence with counsel for Pandora, the Publishers wrote a
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`letter to the Court dated June 27 in which they indicated that
`they were “gravely concerned because the motion appeared to
`directly challenge our clients’ rights, including the validity
`of their direct licenses with Pandora and their withdrawal of
`certain rights from ASCAP.” The Publishers asserted that
`counsel for Pandora had refused to clearly answer whether its
`motion implicated the Publishers’ rights and they argued that
`Pandora’s motion constituted an anticipatory repudiation of the
`direct licenses. They further contended that
`We do not understand, as a matter of jurisdiction and
`procedure, in a rate proceeding in which our clients are
`not parties [how] Pandora can seek to invalidate direct
`licenses and adjudicate the consequences of our clients’
`withdrawal of rights from ASCAP. . . we do not believe it
`can be done in a proceeding in which our clients are not
`parties.
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`By letter also dated June 27, Pandora responded that it was
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`“not seeking here to repudiate or void the prior licenses
`entered into with EMI or Sony.” And that “Pandora’s motion does
`not seek to ‘secure a declaration that [the Publishers’]
`withdrawal of certain new media rights from ASCAP is a nullity .
`. . .’ Rather . . . the relief requested by Pandora’s motion is
`limited to the scope of Pandora’s Consent Decree License.”
`
`By letter to the Court dated June 28, the Publishers
`replied that they “[did] not understand [Pandora’s argument as
`to] . . . how [the Publishers’] catalogues can be subject to
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`[Pandora’s] supposed Consent Decree License if, as [Pandora]
`states, Pandora is not seeking to repudiate or void the direct
`licenses with [the Publishers].” The Publishers reiterated that
`“to the extent that Pandora is seeking relief that impacts our
`clients’ rights and would adjudicate their rights in a
`proceeding in which they are not parties, we think it is
`improper.” Pandora replied to that letter, also on June 28,
`with an inquiry as to whether any further letters would be
`necessary in light of Pandora’s view that there was “no ripe
`issue presented for [the Court’s] determination.”
`
`In response to the above described letters, on July 1, the
`Court ordered Pandora, ASCAP and the Publishers to make
`submissions to the Court “regarding whether Sony/EMI should
`formally participate in the ongoing summary judgment motion
`practice between Pandora and [ASCAP], or in any other way in
`this litigation.” By letter of July 8 the Publishers stated
`that
`[B]ased on [Pandora’s] representation that Pandora is not
`seeking to repudiate or disavow the direct licenses with
`[the Publishers] and is not challenging their withdrawal of
`certain rights from ASCAP, we accept [Pandora’s]
`representation that the rate proceeding is not intended to
`and will not affect our clients’ rights . . . as such, even
`assuming that [the Publishers] had the right to intervene
`(and we believe there are jurisdictional impediments to
`their doing so), it appears that their rights are not at
`risk in this rate proceeding and intervention or
`participation is inappropriate and unnecessary.
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`ASCAP’s letter in response to the July 1 Order similarly stated
`that it saw no reason for the Publishers to intervene,
`explaining that:
`Because Pandora has now represented to the Court that it is
`not seeking to repudiate the prior licenses it entered into
`with [the Publishers] and is not challenging Sony/EMI’s
`withdrawal of their new media rights from ASCAP, there does
`not appear to be any need for [the Publishers] to
`participate in the summary judgment motion. Moreover, to
`the extent that Pandora attempts to change its position, we
`understand that [the Publishers] would seek to resolve such
`a dispute in a separate state court action, not in this
`proceeding.
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`The Publishers’ Actions Subsequent to the September 11 Oral
`Argument
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`On September 5, 2013, the Court issued an order scheduling
`oral argument on Pandora’s summary judgment motion and
`certifying certain questions to be addressed at argument. The
`questions made clear that the Court was considering a ruling
`that would prevent ASCAP from licensing works to certain
`licensees but not others. At oral argument on September 11, the
`Court indicated that it found the text of AFJ2 clear in
`prohibiting ASCAP’s Compendium Modification. On September 12,
`the Publishers sent a letter to the Court which said that:
`[B]ased on yesterday’s argument, contrary to [Pandora’s]
`representations, it now appears that [the Court] is
`considering a decision that most dramatically would affect
`our clients’ rights without our clients having any
`opportunity to be heard. To be clear, our clients, not
`ASCAP are the copyright owners of the songs in question,
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`possessed of exclusive rights under Section 106 of the
`Copyright Act, which include, under Section 106(4) the
`exclusive right to publically perform the songs or to
`authorize others to do so.
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`The Publishers did not, by that letter, request to intervene in
`the summary judgment practice. In response to the letter, the
`Court issued a Memo Endorsement which read:
`If counsel wish to be heard in connection with the pending
`summary judgment motion, they should identify the relief
`they seek no later than Friday, September 13, at noon.
`
`On September 13, 2013, the Publishers responded by letter, in
`which they argued that the order the Court was considering:
`[W]ould deprive our clients of exclusive rights provided
`them under Section 106 of the Copyright Act. We therefore
`seek to intervene for the limited purpose of addressing
`those issues and also believe that the DOJ should be heard
`on those issues.
`
`That same day, the Court subsequently responded by Memo
`Endorsement dated as follows:
`[The Publishers] having requested the opportunity to
`intervene in order for the Court to consider the argument
`presented in this letter in connection with the pending
`summary judgment motion, any opposition shall be filed by
`Monday, September 16.
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`Also on September 13, music publisher Universal Music Publishing
`Group (“Universal”)1
` sent a letter requesting the Court to
`consider the views of the Department of Justice and that “if the
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`1 Universal has filed a parallel motion to intervene in this
`action on substantially the same grounds as are invoked in this
`motion.
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`Court is going to hold any further proceedings on this issue we
`respectfully request the opportunity to present our views.”
`That same day the Court responded to Universal’s letter with the
`following Memo Endorsement:
`This letter is construed as an application to intervene for
`the purpose of making the two requests in this letter. Any
`opposition to the application to intervene is due Monday,
`September 16, 2013.
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` In response to the September 13 Memo Endorsement setting a
`deadline for opposition to Universal and the Publishers’
`requests, Pandora then wrote a letter of September 16 in which
`it disputed the notion that any music publisher Section 106
`rights were implicated by the summary judgment motion practice.
`Pandora also argued that the music publishers’ requests to
`intervene were untimely. For these reasons, Pandora argued that
`the music publishers lacked the right to intervene in this
`action under Federal Rule of Civil Procedure 24.
`
`The Publishers responded to Pandora’s letter on September
`17. In that response, they spent most of the letter making an
`argument to the Court as to why the pending summary judgment
`motion implicated their Section 106 rights. They also explained
`that they did not understand themselves to have been ordered to
`fully brief a motion to intervene. The Publishers stated that:
`[Pandora’s] assertion that our letter fails to satisfy FRCP
`24 . . . fails for two obvious reasons. First our
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`September 13, 2013 letter was written in response to Your
`Honor’s direction to indentify the relief we sought. We
`did not view Your Honor’s direction as an invitation to
`submit a full blown motion to intervene . . . .
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`There was no response to this letter from Pandora because the
`summary judgment opinion was issued that same day.
`The September 17 Opinion
`On September 17, this Court granted Pandora’s motion for
`summary judgment. As is explained in greater detail in the
`September 17 Opinion, this Court held that AFJ2 prohibited ASCAP
`from withdrawing from Pandora the rights to perform any
`compositions over which ASCAP retained any licensing rights.
`That result was predicated principally on two provisions of
`AFJ2: Section VI, which provides that: “ASCAP is hereby ordered
`and directed to grant to any music user making a written request
`therefor a non-exclusive license to perform all of the works in
`the ASCAP repertory,” and Section II(C), which defines “ASCAP
`repertory” as “those works the right of public performance of
`which ASCAP has or hereafter shall have the right to license at
`the relevant point in time.” AFJ2 § II(C) (emphasis supplied).
`The Court reasoned that
`[B]ecause it is undisputed that the terms of ASCAP's
`Compendium Modification of April 2011 permit ASCAP to
`retain the right to license the works of the withdrawing
`publishers for non-New Media purposes, those compositions
`remain ‘works in the ASCAP repertory’ within the meaning of
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`Sections VI and IX(E) of AFJ2” and that ASCAP could not
`withhold those works from Pandora while licensing them to
`other applicants.
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`September 17 Opinion, 2013 WL 5211927, at *7. In the Opinion,
`the Court noted that “ASCAP and non-party publishers EMI, Sony,
`and Universal have asked that the Court invite the participation
`of the Department of Justice (“DOJ”) before resolving this
`motion,” but rejected the suggestion given that the text of AFJ2
`was unambiguous. Id. at *11.
`The Publishers’ Actions Subsequent to the Summary Judgment
`Opinion
`After the Summary Judgment Opinion was issued, the
`Publishers sent a letter dated September 25 in which they
`indicated their belief that the Court had granted, sub silentio,
`a motion for them to intervene, given the Court’s consideration
`and rejection of their request to solicit the input of the
`Department of Justice. The Court responded by Memo Endorsement
`that same day that:
`The Court considered [the Publishers’] arguments in
`rendering the September 17 decision. Any application to
`intervene in this lawsuit/proceeding must be made on
`consent or through formal motion. If [the Publishers] seek
`to intervene through a motion, [they] should file such
`motion promptly.
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`The Publishers submitted their motion to intervene on September
`30. Pandora submitted its opposition on October 11, and the
`motion was fully submitted on October 17.
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`DISCUSSION
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`Rule 24(a) of the Federal Rules of Civil Procedure provides
`that:
`On timely motion, the court must permit anyone to intervene
`who:
`(1) is given an unconditional right to intervene by a
`federal statute; or
`(2) claims an interest relating to the property or
`transaction that is the subject of the action, and is so
`situated that disposing of the action may as a practical
`matter impair or impede the movant's ability to protect its
`interest, unless existing parties adequately represent that
`interest.
`
`Fed. R. Civ. P. 24(a). The Second Circuit has explained that a
`party seeking to intervene as of right under Rule 24(a)(2) must
`fulfill the following requirements:
`(1) the motion is timely; (2) the applicant asserts an
`interest relating to the property or transaction that is
`the subject of the action; (3) the applicant is so situated
`that without intervention, disposition of the action may,
`as a practical matter, impair or impede the applicant's
`ability to protect its interest; and (4) the applicant's
`interest is not adequately represented by the other
`parties.
`
`MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d
`377, 389 (2d Cir. 2006) (citation omitted). “Failure to satisfy
`any one of these requirements is a sufficient ground to deny the
`application.” Farmland Dairies v. Comm'r of New York State
`Dep't of Agric. & Markets, 847 F.2d 1038, 1043 (2d Cir. 1988).
`The task now is to apply the test.
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`A. Whether the Publishers’ motion was timely
`As made clear in the foregoing description of the factual
`background underlying this motion, the timeliness issue here is
`clouded by some confusion on the part of the Publishers as to
`whether they perceived their rights to be implicated by the
`summary judgment practice at issue, as well as a lack of clarity
`on their part as to the relief they sought in the various
`letters they sent to the Court. The legal standard for
`determining timeliness, however, is clear. “Whether a motion to
`intervene is timely is determined within the sound discretion of
`the trial court from all the circumstances. Timeliness defies
`precise definition, although it certainly is not confined
`strictly to chronology.” United States v. Pitney Bowes, Inc.,
`25 F.3d 66, 70 (2d Cir. 1994).
`Factors to consider in determining timeliness include: (a)
`the length of time the applicant knew or should have known
`of its interest before making the motion; (b) prejudice to
`existing parties resulting from the applicant's delay; (c)
`prejudice to the applicant if the motion is denied; and (d)
`the presence of unusual circumstances militating for or
`against a finding of timeliness.
`
`MasterCard Int'l Inc, 471 F.3d at 390 (citation omitted).
`
`Applying the first factor -- the length of time that the
`Publishers knew or should have known of their interest -- yields
`mixed results. On one hand, following the exchange of letters
`described above, the Publishers expressed their belief that
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`their right to use ASCAP to license compositions to some, but
`not other, purchasers was not implicated by the summary judgment
`motion practice at issue. Even if there were no reason to doubt
`the sincerity of that belief, there is reason to doubt its
`reasonableness. The reasoning underlying this Court’s September
`17 Opinion was informed by many of the arguments from Pandora’s
`briefing submitted on June 11. It is difficult to understand
`how the Publishers did not know that the adoption of that
`reasoning was a possibility, and that ASCAP’s ability to accept
`partial withdrawals of rights was implicated. The risk existed
`even if Pandora did not seek to terminate its license with the
`Publishers and only sought the most narrow of rulings from the
`Court. Of course it is courts, not parties, that set the
`parameters of rulings.
`Application of the second factor -- prejudice to any
`parties by allowing intervention -- cuts against denying
`intervention on the ground of untimeliness. There is no
`prejudice to Pandora in allowing the Publishers to appeal so
`long as the Publishers do not advance any arguments on appeal
`that were not advanced by ASCAP in its summary judgment
`practice. The ASCAP-Pandora rate court trial schedule is not
`implicated by an appeal that would be brought after its
`conclusion.
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`Applying the third factor -- prejudice to the Publishers if
`their application is denied -- also weighs against finding the
`Publishers’ motion to intervene untimely. As is described
`below, the Publishers have a direct and substantial interest in
`this motion practice.
`Finally, application of the fourth factor -- the presence
`of any unusual circumstances mitigating for or against a finding
`of timeliness –- counsels in favor of denying intervention on
`the basis of untimeliness. After Pandora’s summary judgment
`motion was filed, the Publishers wrote to the Court expressing
`concern about their rights being implicated. They were invited
`at that time to seek to intervene, and they declined to do so.
`They were also aware from the written questions circulated by
`the Court in advance of oral argument that their interests might
`well be affected by the Court’s decision, but again they took no
`steps to intervene. Thus, one can criticize the Publishers for
`their delay in bringing this motion to intervene.
`In sum, an examination of the timeliness of this motion
`yields mixed results. Moreover, the Publishers’ failure to
`intervene earlier deprived the Court of the ability to evaluate
`any new arguments they might bring so as to create a record for
`appeal. Consequently, it would be unfair to Pandora and to the
`efficient administration of the judicial system to permit the
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`Publishers to raise new arguments on appeal which were not
`raised by ASCAP in this Court.2
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`B. Whether the Publishers possess an interest related to the
`subject of the action
`
`For an interest in the underlying action to be cognizable
`by Rule 24(a)(2), “it must be direct, substantial, and legally
`protectable.” Bridgeport Guardians v. Delmonte, 602 F.3d 469,
`473 (2d Cir. 2010) (citation omitted). “An interest that is
`remote from the subject matter of the proceeding, or that is
`contingent upon the occurrence of a sequence of events before it
`becomes colorable, will not satisfy the rule.” Brennan v.
`N.Y.C. Bd. of Educ., 260 F.3d 123, 129 (2d Cir. 2001) (citation
`omitted).
`1. The Publishers’ argument that their Section 106 rights
`were impacted by the Opinion and Order is incorrect.
`
`The Publishers frame their interest in this action as the
`protection of the “exclusive rights provided . . . under Section
`106 of the Copyright Act” to divide their copyrights as they
`choose. They argue that the September 17 Opinion “ha[d] the
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`2 The one exception is the Publishers’ argument -- raised in this
`motion to intervene -- about the purported impact of the
`September 17 Opinion on their rights under Section 106 of the
`Copyright Act. Because that argument was also raised by the
`Publishers in the letters preceding the September 17 Opinion
`described in the foregoing, and because the Court considered
`those arguments in rendering the September 17 Opinion, the
`Publishers may make that argument on appeal.
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`effect of” “divest[ing] copyright owners of their exclusive
`[Section 106] rights through an anti-trust regulation of ASCAP
`to which they are not parties.” In support of the argument that
`the September 17 Opinion infringes the Publishers’ Section 106
`rights, the Publishers construe the holding as “provid[ing]
`that, under AFJ2, if a copyright owner grants ASCAP any rights
`in any compositions, ASCAP has all rights in the compositions.”
`Pandora disputes that the Publishes’ Section 106 rights are
`implicated in any way by this motion practice.
`Pandora is correct. Nothing in the September 17 Opinion
`reduced the Publishers’ Section 106 rights in the slightest.
`AFJ2 does not regulate publishers. It only regulates ASCAP. It
`is true that AFJ2’s restriction on ASCAP means that the
`Publishers cannot use ASCAP to grant and withhold certain rights
`selectively. But an ancillary effect on third party’s ability
`to use an entity is present anytime an entity is restricted from
`doing something. As Pandora correctly notes, the Publishers’
`decision to grant licensing rights to ASCAP is an exercise of
`their Section 106 rights. And in deciding to exercise those
`rights by granting ASCAP licensing authority over compositions
`the Publishers acknowledge that they are aware that AFJ2 places
`restrictions on ASCAP’s ability to license their music in
`certain ways.
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`The restrictions AFJ2 imposes on ASCAP’s ability to act as
`a licensing agent to facilitate the division of the Publishers’
`Section 106 copyright rights do not reduce the Section 106
`rights of the Publishers themselves. As an analogous example,
`AFJ2 prohibits ASCAP from licensing publishers’ copyrights to
`movie theaters. AFJ IV(G). Yet the Publishers do not contend
`that their Section 106 rights to divide their copyrights have
`been infringed by this prohibition. That is because the
`Publishers are in fact free to license their copyright public
`performance rights to movie theaters. They just cannot do it
`through ASCAP because ASCAP is regulated by AFJ2. The same
`principle holds here.
`2. The Publishers’ interest is their financial interest in
`avoiding licensing fees to ASCAP in licensing works to
`large New Media outlets.
`Although the Publishers have no Section 106 interest
`implicated by the September 17 Opinion, they do have a potential
`financial interest. The Publishers note that licensing
`compositions to New Media entities through ASCAP leaves them
`with less money than they would receive by licensing those works
`independently –- even if the rates are the same -- because of
`the administrative fees paid to ASCAP. Here, the Publishers
`have persuasively stated a direct and substantial interest.
`Because the 2011 ASCAP Compendium Modification allowed the
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`Publishers to permit ASCAP to license their works to the
`plethora of smaller New Media outlets under the “Standard
`Services” agreement, the Publisher withdrawals only required
`them to negotiate directly with large New Media services such
`as, for example, Pandora or Spotify –- an administratively
`manageable task, which might save the Publishers from paying
`administration fees to ASCAP on those license agreements. This
`financial interest is certainly “direct” and “legally
`cognizable.” It is not “contingent upon the occurrence of a
`sequence of events before it becomes colorable” because the
`Publishers would control whether to withdraw. Brennan, 260 F.3d
`at 129. There is no reason to second guess the Publishers’
`claim that partial withdrawal would provide administrative
`savings. It is also clear that withdrawing from ASCAP entirely,
`in order to allow for direct licensing, may not be feasible
`given the Publishers’ half-century reliance on ASCAP as a
`central licensing agent between them and the thousands of other
`entities ranging from radio stations to jukebox owners.
`A number of cases confirm that a financial interest, like
`the Publishers’ interest in avoiding ASCAP licensing fees with
`respect to the large New Media users, with whom they are
`administratively capable of engaging in direct licenses, is
`“direct, substantial, and legally protectable” for purpose of
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`the Rule 24(a) analysis. Bridgeport Guardians, 602 F.3d at 473.
`In New York Pub. Interest Research Grp., Inc. v. Regents of
`Univ. of State of N. Y., 516 F.2d 350 (2d Cir. 1975) (per
`curium), the Second Circuit held that a group of pharmacists had
`a sufficiently cognizable interest to intervene under Rule 24(a)
`to challenge a state regulation that prohibited the advertising
`of the price of prescription drugs. The court emphasized that
`the challenged regulation “affects the economic interests of
`members of the pharmacy profession,” which justified
`intervention. Id. at 351-52. And in Brennan, 260 F.3d at 129,
`a Second Circuit panel held cognizable under Rule 24(a) an
`employee’s interest in seniority rights, which is an interest
`with financial considerations as a core element. See also
`Bridgeport Guardians, 602 F.3d at 474 (holding that an
`employee’s promotion and the attendant financial benefits was
`cognizable under Rule 24(a)).
`C. The Publishers’ ability to protect their interest would be
`impaired absent intervention.
`
`The Mastercard test next requires a court to determine
`whether an applicant is “situated that without intervention,
`disposition of the action may, as a practical matter, impair or
`impede the applicant's ability to protect its interest.”
`MasterCard Int'l Inc, 471 F.3d at 389. This inquiry heavily
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`overlaps with the “substantial interest” and the “adequate
`representation” prongs of the test. A party whose interest is
`at stake in litigation and is not adequately represented is
`likely to suffer impairment in its ability to protect its
`interest. Because the Publishers have a cognizable interest, as
`described above, and because it is not certain that they will be
`adequately represented by ASCAP on any appeal, as is described
`below, this prong of the Mastercard test is satisfied.
`The adequacy of ASCAP’s representation of the
`D.
`Publishers’ interest on appeal is uncertain.
`
`“[T]he burden to demonstrate inadequacy of representation
`is generally speaking minimal.” Butler, Fitzgerald & Potter v.
`Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001) (citation
`omitted). The Second Circuit has, however,
`demanded a more rigorous showing of inadequacy in cases
`where the putative intervenor and a named party have the
`same ultimate objective. Where there is an identity of
`interest . . . the movant to intervene must rebut the
`presumption of adequate representation by the party already
`in the action.
`
`Id. at 179-80.
` The parties disagree as to whether ASCAP and the
`Publishers have the same “ultimate objective” with respect to
`the question of allowing partial withdrawals of rights in
`compositions from ASCAP. The Publishers contend, without any
`offer of supporting evidence, that the September 17 Opinion was
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`“cause for celebration” within ASCAP. They posit that “it may
`be in ASCAP’s interest to lose on Pandora’s motion for summary
`judgment” because that might lead to a higher number of works in
`ASCAP’s repertory to generate licensing and administrative fees.
`The crux of their argument is that ASCAP may therefore not
`appeal the summary judgment ruling and that the Pu