Case 23-194, Document 1, 02/10/2023, 3468760, Page1 of 58
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`23-
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`United States Court of Appeals
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`for the
`Second Circuit
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`
`
`In re
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`JOHN WAITE et al.,
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`– v. –
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`UMG RECORDINGS, INC. et al.,
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`Petitioners,
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`Respondents.
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`––––––––––––––––––––––––––––––
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`FED. R. CIV. P. 23(f) PETITION FOR PERMISSION TO
`APPEAL ORDER DENYING CLASS CERTIFICATION
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`ROY W. ARNOLD
`ANDREW HAMBELTON
`BLANK ROME LLP
`1271 Avenue of the Americas
`New York, NY 10020
`(212) 885-5000
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`Counsel for Petitioners
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page2 of 58
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`TABLE OF CONTENTS
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`D.
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`Page
`JURISDICTIONAL STATEMENT ....................................................... 1
`QUESTIONS PRESENTED ................................................................. 1
`RELIEF REQUESTED ........................................................................ 2
`INTRODUCTION............................................................................... 2
`RELEVANT FACTS AND CLASS-WIDE EVIDENCE .......................... 5
`A. Defendants’ Systematic and Uniform Scheme to Disregard
`Notices of Copyright Termination and Vested Terminations ......... 8
`B. Defendants’ Systematic and Uniform Mischaracterizations of
`the Plaintiffs’ and Class Members’ Sound Recordings as
`“Works Made for Hire”............................................................ 9
`C. Class-wide Proof of Defendants’ “Work Made for Hire”
`Artifice .................................................................................10
`D. Defendants’ “Evidence” in Opposition to Class Certification .......11
`IMMEDIATE RULE 23(f) REVIEW IS WARRANTED.........................12
`A. Applicable Standard of Review ................................................12
`B.
`The District Court’s Opinion Is Highly Questionable and
`Manifestly Erroneous, Implicating Fundamental and
`Important Class Certification and Federal Copyright Act
`Issues as to Which There Is a Compelling and Immediate
`Need for Appellate Disposition. ...............................................14
`C. Rule 23(b)(3)’s Predominance of Common Issues
`Requirement ..........................................................................15
`The District Court Fundamentally Erred by Misapplying
`Reid, Aymes and Their Progeny Instead of Performing the
`Requisite Rigorous Analysis of the Evidentiary Record. ..............16
`Defendants’ Sham Work-Made-for-Hire Defense Is a
`Common, Overriding Class-wide Issue That Predominates. ......16
`None of the Plaintiffs or Class Members Were Employees
`Creating Sound Recordings Within the Scope of An
`Employment Relationship. ...................................................19
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`1.
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`2.
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`3.
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`4.
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`Plaintiffs and the Classes Rebutted Any Purported
`Presumption under Section 410(c) and Thereafter
`Defendants Failed to Adduce Any Evidence to Support
`Their Common Work-Made-for-Hire Defense.........................22
`Defendants Failed to Adduce Evidence Showing That Any
`of the Sound Recordings at Issue Were Specially Ordered
`or Commissioned for Use as a Part of a Collective Work or
`Compilation........................................................................24
`CONCLUSION .................................................................................25
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Cases
`Amchem Prods., Inc. v. Windsor,
`521 U.S. 591 (1997) .......................................................................16
`Augustin v. Jablonsky,
`461 F.3d 502 (2d Cir. 2006) ............................................................13
`Aymes v. Bonelli,
`980 F.2d 857 (2d Cir. 1992) ..............................................4, 16, 20, 21
`Ballas v. Tedesco,
`41 F. Supp. 2d 531 (D.N.J. 1999).....................................................18
`Estate of Burne Hogarth v. Edgar Rice Burroughs, Inc.,
`342 F.3d 149 (2d Cir. 2003) ............................................................23
`Comcast Corp. v. Behrend,
`569 U.S. 27 (2013) ........................................................................15
`Community for Creative Non-Violence v. Reid,
`490 U.S. 730 (1989) ................................................................ passim
`Cuevas v. Citizens Fin. Goup, Inc.,
`526 Fed. Appx. 19 (2d Cir. 2013) ....................................................15
`Horror Inc. v. Miller,
`335 F. Supp. 3d 273 (D. Conn. 2018), aff’d, 15 F.4th 232
`(2d Cir. 2021) .................................................................... 19, 20, 23
`In re IPO Sec. Litig.,
`471 F.3d 24 (2d Cir. 2006) ..............................................................15
`Johnson v. Nextel Commc’ns Inc.,
`780 F.3d 128 (2d Cir. 2015) ............................................................16
`Kesey, LLC v. Francis,
`No. CV 06-540-AC, 2009 WL 10693885 (D. Or. Aug. 17,
`2009), aff’d, 433 F. App’x 565 (9th Cir. 2011) ..................................23
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`Langan v. Johnson & Johnson Cons. Cos., Inc.,
`897 F.3d 88 (2d Cir. 2018) ..............................................................15
`Marvel Characters, Inc. v. Simon,
`310 F.3d 280 (2d Cir. 2002) ...................................................... 18, 19
`Oliver v. Johanson,
`357 F. Supp. 3d 758 (W.D. Ark. 2018) .............................................22
`Scott v. Chipotle Mexican Grill, Inc.,
`954 F.3d 502 (2d Cir. 2020) ............................................................14
`In re Sumitomo Copper Litig.,
`262 F.3d 134 (2d Cir. 2001) ...................................................... 12, 13
`Sykes v. Mel S. Harris & Assocs.,
`780 F.3d 70 (2d Cir. 2015) ..............................................................16
`TD Bank N.A. v. Hill,
`928 F.3d 259 (3d Cir. 2019) ...................................................... 18, 19
`Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc.,
`618 F.3d 417 (4th Cir. 2010), as amended (Aug. 24, 2010) .................22
`Waite v. UMG Recordings, Inc.,
`450 F. Supp. 3d 430 (S.D.N.Y. 2020) ................................................ 3
`Wal-Mart Stores, Inc. v. Dukes,
`564 U.S. 338 (2011) .......................................................................15
`Statutes
`17 U.S.C.A. § 102 ..............................................................................17
`17 U.S.C. § 101(1) ....................................................................... 17, 22
`17 U.S.C. § 101(2) .................................................................. 17, 24, 25
`17 U.S.C. § 201(a)..............................................................................16
`17 U.S.C. § 203(a)(5) .........................................................................19
`17 U.S.C. § 203(b)(2) .......................................................................... 8
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`17 U.S.C. § 410(c).......................................................................... 4, 22
`28 U.S.C. § 1292(e) ............................................................................. 1
`28 U.S.C. §1331.................................................................................. 1
`28 U.S.C. §1338(a).............................................................................. 1
`Copyright Act ................................................................................ 9, 20
`Copyright Act Section 101 ............................................................ 17, 25
`Federal Copyright Act.........................................................................14
`United States Copyright Act of 1976 Section 203, 17 U.S.C. §
`203 ....................................................................................... passim
`Other Authorities
`Fed. R. App. 5(a)................................................................................. 1
`Fed. R. Civ. P. 23(f) .............................................................. 1, 2, 12, 13
`H.R. Rep. No. 94-1476, 124, 1976 U ..................................................... 2
`Notice of Termination on Defendants. A-1401-15 ................................... 8
`Order ................................................................................................. 2
`Rule 23 ................................................................................ 4, 7, 14, 15
`Rule 23(b)(2) ...................................................................................... 4
`Rule 23(b)(2)’s ................................................................................... 5
`Rule 23(b)(3) ................................................................................. 5, 15
`Rule 23(b)(3) and Rule 23(b)(2) ............................................................ 4
`Rule 23(b)(3)’s ..................................................................................15
`United States Copyright Office, Notices of Termination:
`https://www.copyright.gov/recordation/termination.html
`(last accessed April 5, 2022) ............................................................ 2
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page7 of 58
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`Pursuant to Fed. R. Civ. P. 23(f) and Fed. R. App. 5(a), Petitioners seek
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`permission to appeal the Opinion and Order of the United States District Court
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`for the Southern District of New York (Hon. Lewis A. Kaplan) entered on
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`January 27, 2023, denying their Motion for Class Certification (the “Order”).
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`JURISDICTIONAL STATEMENT
`The district court had jurisdiction pursuant to 28 U.S.C. §§1331 and
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`1338(a) based on the copyright termination claims asserted under Section 203
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`of the United States Copyright Act of 1976 (the “Copyright Act”), 17 U.S.C.
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`§ 203. A-0004. This Court has jurisdiction under 28 U.S.C. § 1292(e) and Fed.
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`R. Civ. P. 23(f).
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`QUESTIONS PRESENTED
`Did the district court abuse its discretion by failing to conduct
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`1.
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`the requisite rigorous analysis of the substantial evidentiary record in denying
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`Petitioners’ class certification motion and concluding that individual, rather
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`than common issues, predominate based on Defendants’ alleged work-made-
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`for-hire defense when the record demonstrated the complete absence of any
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`indicia of any “employment” relationships with any Plaintiff or Class
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`Member?
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`2.
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`Did the district court commit clear legal error by misapplying
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`this Court’s work-made-for-hire
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`jurisprudence and
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`ignoring
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`the
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page8 of 58
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`preponderance of evidence showing that Defendants uniformly and
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`systematically rejected copyright termination notices based on the fictitious
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`defense?
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`RELIEF REQUESTED
`Petitioners seek permission under Fed. R. Civ. P. 23(f) to appeal the
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`Order. Ex. A.
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`INTRODUCTION
`This is a case of first impression involving important federal copyright
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`termination rights under Section 203 of the Copyright Act, 17 U.S.C. § 203
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`(“Section 203”), granted to recording artists as a “second chance” by the
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`United States Congress.1 This is the first decision to consider whether to
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`certify Section 203 claims as a class action to vindicate and protect these
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`inalienable statutory termination rights of hundreds of recording artists whose
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`copyrights are being held hostage by Defendants.
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`The stated Congressional purpose of Section 203 – including its termination
`1
`provisions – is “to protect authors and their heirs against unremunerative
`agreements by giving them an opportunity to share in the later economic success
`of their works by allowing authors or their heirs, during particular periods of time
`long after the original grant, to regain the previously granted copyright or
`copyright rights.” H.R. Rep. No. 94-1476, 124, 1976 U.S.C.C.A.N. 5659, 5740
`(Sept. 3, 1976). See also United States Copyright Office, Notices of Termination:
`https://www.copyright.gov/recordation/termination.html (last accessed April 5,
`2022).
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page9 of 58
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`Petitioners and the Class Members seek to expose Defendants’ “work-
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`made-for-hire” artifice for what it is and remedy an injustice that has been
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`inflicted upon recording artists since at least 1972. The class action
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`mechanism is well-suited to vindicate these rights in an efficient, economical,
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`and cost-effective manner, and critically important as a means to combat the
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`massive financial and legal resources being deployed by Defendants against
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`these artists.
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`Petitioners’ claims are straightforward, and proof is uncomplicated: a
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`legally cognizable copyright infringement claim exists when a “valid and
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`timely termination notice is sent,” “a termination right vests,” the termination
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`notice “is ignored,” and “the copyright’s grantee continues to distribute the
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`work.” Waite v. UMG Recordings, Inc., 450 F. Supp. 3d 430, 437 (S.D.N.Y.
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`2020).
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`The central, overriding, and predominant issue in this class action is
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`whether the sound recordings created by the artists are “works made for hire.”
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`Defendants – not Petitioners – bear the burden of proving this alleged defense
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`and substantial record evidence demonstrates that the alleged defense – being
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`asserted as to every Class Member – is a sham.
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`The district court made four clear errors that make the Order highly
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`questionable and manifestly erroneous.
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page10 of 58
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`First, the court misapplied Community for Creative Non-Violence v.
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`Reid, 490 U.S. 730, 737 (1989), Aymes v. Bonelli, 980 F.2d 857, 860 (2d Cir.
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`1992), and their progeny in analyzing the predominance of common issues.
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`A-5481-84.
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`Second, the court erred by requiring Petitioners to disprove the alleged,
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`but unsubstantiated, work-made-for-hire defense at the Rule 23 class
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`certification stage. This would effectively make the rebuttable presumption
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`under 17 U.S.C. § 410(c) irrebuttable based on “work made for hire” language
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`in recording agreements and copyright registrations, contrary to existing law
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`and the substantial evidentiary record in this case. A-5484.
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`Third, the court failed to conduct the requisite rigorous analysis of the
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`class certification record showing that Defendants have uniformly and
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`systematically rejected Class Members’ Notices of Termination and
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`mischaracterized the sound recordings at issue as works-made-for-hire. A-
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`5481-85.
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`Fourth, the court failed to conduct a rigorous analysis and conflated
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`the Rule 23(b)(3) and Rule 23(b)(2) requirements, effectively importing the
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`predominance requirement into Rule 23(b)(2) even though there is no such
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`requirement for purposes of certifying a Rule 23(b)(2) class for injunctive
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`and declaratory relief. A-5492, n. 84. See 2 Newberg on Class Actions
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page11 of 58
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`§ 4:33 (6th ed.) ("Rule 23(b)(2)'s text explicitly does not embody the further
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`criteria that define Rule 23(b)(3) classes—namely, that common issues
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`predominate and that proceeding as a class action is superior to other forms
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`of adjudication.").
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`RELEVANT FACTS AND CLASS-WIDE EVIDENCE
`This class action was filed on behalf of Plaintiffs-Petitioners Kasim
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`
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`Sulton (“Sulton”), Susan Straw Harris p/k/a Syd Straw (“Straw”), Leonard
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`Graves Phillips (“Phillips”), Stan Sobol a/k/a Stan Lee (“Lee”), Joel David
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`Pellish (“Pellish), Dennis Mehaffey (“Mehaffey”), and Steve Wynn (“Wynn”)
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`(collectively, “Plaintiffs-Petitioners”) and two classes of similarly situated
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`recording artists asserting Section 203 copyright termination claims against
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`Defendants. A-0004 at ¶1. Defendants are UMG Recordings, Inc. and Capitol
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`Records, LLC, two subsidiaries of Universal Music Group, which is the
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`largest record label in the world.
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`Plaintiffs-Petitioners sought to certify a class of recording artists
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`represented by Sulton, Phillips, Lee, Pellish, Mehaffey and Wynn seeking
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`recovery of actual and/or statutory damages for Defendants’ willful copyright
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`infringement (“Class A”) and a class of recording artists represented by Straw
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`seeking declaratory and injunctive relief (“Class B”). A-0006 at ¶ 11.
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`Plaintiffs-Petitioners assert claims on behalf of themselves and other similarly
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page12 of 58
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`situated recording artists who are victims of Defendants’ systematic and
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`uniform refusal to honor Notices of Termination (the “Notices”) served by the
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`artists to reclaim their rights to their sound recordings. A-1507-10. In
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`rejecting the Class Members’ Notices, Defendants consistently assert a “work
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`made for hire” defense premised on boilerplate “work-made-for-hire”
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`language in the artists’ recording contracts and general descriptions in the
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`copyright registrations. A-1508. Defendants also attempt to create a maze of
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`technical objections to the Notices that are antithetical to both the statutory
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`text and governing federal regulations. A-1591-97.
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`On March 31, 2020, the district court substantially denied Defendants’
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`motion to dismiss. A-0626-51. Discovery initially was scheduled to close on
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`March 31, 2020. A-0575. The parties agreed to extend the deadline to July 1,
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`2020. A-0576. On June 24, 2020, Plaintiffs filed a letter Motion to Compel
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`Discovery seeking to require Defendants to produce documents in support of
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`their work-made-for-hire defense. A-0577. Defendants were ordered to
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`produce documents related to the work-made-for-hire defense on a class-wide
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`basis. A-0578-79.
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`On September 29, 2021, after the parties had stipulated to multiple
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`extensions due to Covid-19 and other issues, the district court required
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`Defendants on a class-wide basis to produce by December 10, 2021, “all
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page13 of 58
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`documents supporting Defendants' work-made-for-hire defense or other
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`defense upon which they intend to rely.” A-0607. Plaintiffs subsequently
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`agreed to another extension and the court permitted Defendants to have until
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`April 15, 2022 to comply with its directive. A-0615.
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`Ultimately, after completing class-wide merits and Rule 23 discovery,
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`Petitioners filed their Motion for Class Certification supported by extensive
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`evidentiary submissions. A-0910-1570. This evidence included, among other
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`things, Plaintiffs’ declarations, deposition testimony from Plaintiffs and
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`Defendants’ corporate representatives, and a detailed summary exhibit of the
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`Class Members’ Notices, Defendants’ response letters, if any, and the
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`underlying recording agreements. Id. Plaintiffs also filed a Motion for Partial
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`Summary Judgment on Defendants’ Work Made for Hire Defense due to
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`Defendants’ failure to meet their burden of production on this defense, despite
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`being afforded every opportunity to do so by Plaintiffs and the court. A-0694-
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`1571. 2
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`Petitioners asked the district court to defer ruling on their Motion for Partial
`2
`Summary Judgment until after ruling on their class certification motion to avoid any
`one-way intervention problem. A-0704.
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page14 of 58
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`A. Defendants’ Systematic and Uniform Scheme to Disregard
`Notices of Copyright Termination and Vested Terminations
`In accordance with Section 203, the “future rights that will revert upon
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`termination of the grant become vested on the date the notice of termination”
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`is served. 17 U.S.C. § 203(b)(2). Every Class Member in Classes A and B
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`has served a valid and timely Notice of Termination on Defendants. A-1401-
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`15. Thus, every Class Member affirmatively terminated the original grant and
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`reclaimed their rights. As to every Class A Member, the effective date of
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`termination has passed, and as to Class B, the effective dates of termination
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`extend until October 1, 2031. Id.
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`Defendants have systematically refused to honor these Notices of
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`Termination. As to Class A Members, Defendants continued to exploit their
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`sound recordings and/or violate Section 203 beyond the applicable effective
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`dates of termination in violation of their ownership rights. Id. Defendants
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`likewise have systematically refused to honor Notices served by Class B
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`Members, although the effective dates of termination have not yet occurred.
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`Defendants have violated Section 203 with impunity. Defendants failed
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`to produce any documents showing that they had honored any recording
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`artists’ Notice of Termination. Instead, Defendants rejected Notices on a
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`wholesale basis, and are willfully holding artists’ rights hostage, while
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page15 of 58
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`continuing to control and exploit Class Members’ sound recordings for their
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`own benefit.
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`B. Defendants’ Systematic and Uniform Mischaracterizations
`of Sound Recordings as “Works Made for Hire”
`As the district court and all parties recognize, the central, common and
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`overriding issue in this case centers on whether the sound recordings subject
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`to the termination notices are “works-made-for-hire.” A-5480. Petitioners
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`have submitted a substantial record establishing that Defendants have falsely
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`characterized the sound recordings at issue as “works-made-for-hire” through
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`self-serving boilerplate language in the recording agreements and in copyright
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`registrations prepared by Defendants. A-0910-1494; A-4394-5333.
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`Petitioners further established that Defendants have consistently and
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`uniformly used this language as a basis to reject Plaintiffs’ and Class
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`Members’ Notices even though none of the sound recordings qualify as a
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`“work-made-for-hire” under the Copyright Act. Id.
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`Tellingly, each recording agreement executed by Class A and Class B
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`Members contained “back-up” assignment language whereby the recording
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`artists assigned their rights to Defendants (or Defendants’ predecessors), in
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`the event the works were not deemed “for hire.” A-1401-84. The inclusion of
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`this equivocal assignment language by Defendants (commonly referred to as
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`a “belt and suspenders” approach), undercuts the validity of the “work-made-
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page16 of 58
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`for-hire” provisions, and highlights what the drafters of those agreements have
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`anticipated – for decades – that the work-made-for-hire provision likely would
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`not survive scrutiny.
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`Even more importantly, Defendants have no evidence that any Class
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`Member was an employee acting within the scope of his or her employment
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`at the time of the creation of the sound recordings. Defendants failed to
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`produce any indicia of employment, such as records of wages or salaries, tax
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`withholding, social security deductions, or unemployment insurance. And
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`Defendants’ counsel conceded during oral argument that Defendants have no
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`W-2’s for any Class Member. A-5484, n. 50; A-5457, Tr. at 21:10-21:13. This
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`concession – combined with the complete lack of any evidence of a bona fide
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`employment relationship – must be fatal to Defendants’ work-made-for-hire
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`defense.
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`C. Class-wide Proof of Defendants’ “Work Made for Hire”
`Artifice
`As Plaintiffs’ Exhibit 23 demonstrates, Defendants inserted boilerplate
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`“work-made-for-hire” language in virtually all of the recording agreements,
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`and every Class Member will face the same fictitious and erroneous “defense”
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`asserted by Defendants that the sound recording was a “work-made-for-hire.”
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`A-1417; A-5477 (“All of them [the recording agreements] contain language
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`stating that the artists were ‘employees for hire’ of the record labels and/or
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page17 of 58
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`that the artists’ recordings were ‘works made for hire.’). This “work-made-
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`for-hire” defense is a sham.
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`D. Defendants’ “Evidence” in Opposition to Class Certification
` None of Defendants’ declarants dispute the receipt of service of the
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`Notices, or that the effective dates of termination have passed for all Class A
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`Members. Nor do they dispute that Defendants refused to relinquish the
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`copyrights upon the effective dates of termination for all the members of Class
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`A. Defendants submitted no exhibits supported by any relevant testimony,
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`instead they offered only their lawyers’ rhetoric. Nor is there any dispute that
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`Defendants rejected every Notice. And, while Defendants contend that they
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`engaged in analysis for their own purposes, no evidence supports that claim
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`and they rejected every Notice.
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` Regardless, adjudication of the work made-for-hire-defense does not
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`turn on unique, idiosyncratic evidence that varies from artist to artist. Instead,
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`the necessary rigorous analysis and application of this Court’s precedents
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`shows that the central, overriding and common work-made-for-hire defense
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`(or more properly, the lack of such a defense) can be adjudicated on a class-
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`wide, common proof basis. The most important aspect of the evidentiary
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`record here is what has not been produced by Defendants. They have failed
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`to produce a single knowledgeable witness who could testify under oath that
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page18 of 58
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`any Class Members was their employee at the time the sound recordings were
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`created. None of Defendants’ “witnesses” has any personal knowledge of any
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`purported employment relationships. Alasdair McMullan admitted that,
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`except for possibly retrieving the artist’s recording agreement, he conducted
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`no investigation and had no relevant, first-hand knowledge of the underlying
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`facts. 3 And, despite two years to do so, Defendants did not produce any
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`documents evidencing any of the indicia of any employment relationship with
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`any Plaintiffs or Class members.
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`After the parties completed extensive briefing, the district court held a
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`brief oral argument conducted remotely on January 11, 2023. A-1500; A-
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`1572; A-4394; A-5334; A-5366; A-5437. The district court issued an Order
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`denying Petitioners’ motion for class certification as to both proposed Class
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`A and Class B on January 27, 2023. A-5471. Judge Kaplan concluded that
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`the alleged work-made-for-hire and notice validity defenses asserted by
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`Defendants precluded a finding of predominance. A-5490-92.
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`IMMEDIATE RULE 23(f) REVIEW IS WARRANTED.
`A. Applicable Standard of Review
`This Court has “unfettered discretion” to permit a Rule 23(f) appeal. In
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`re Sumitomo Copper Litig., 262 F.3d 134, 138 (2d Cir. 2001). “Petitioners
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`
`A-0955 at 85:4-86:8; 94:3-102:16; 119:9-120:2; 152:19-154:6; 182:6-
`3
`185:25; A-0959 at 63:5-71:15; 75:22-77:14.
`-12-
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page19 of 58
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`seeking leave to appeal pursuant to Rule 23(f) must demonstrate either (i) that
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`the certification order will effectively terminate the litigation and there has
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`been a substantial showing that the district court’s decision is questionable, or
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`(ii) that the certification order implicates a legal question about which there is
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`a compelling need for immediate resolution.” Id. at 139. Here, the district
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`court failed to conduct a rigorous analysis of the record. This failure, and the
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`resulting Order, implicates substantial, important and controlling legal
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`questions that warrant immediate, interlocutory review by this Court.
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`“An appellate court reviews a district court’s denial of class
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`certification for abuse of discretion. However, an appellate court reviews de
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`novo a district court’s conclusions of law that informed its decision to deny
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`class certification. Further, an appellate court is noticeably less deferential
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`when a district court has denied class status than when it has certified a class.”
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`Augustin v. Jablonsky, 461 F.3d 502, 506 (2d Cir. 2006). “While the
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`application of the incorrect legal principle often necessitates reversal under
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`the ‘abuse of discretion’ standard, such reversal need not indicate any ‘abuse’
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`by a district court as that word is commonly understood.” Id. An abuse of
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`discretion exists when “the district court’s decision rests on an error of law or
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`a clearly erroneous factual finding, or its decision cannot be located within the
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`-13-
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page20 of 58
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`range of permissible decisions.” Scott v. Chipotle Mexican Grill, Inc., 954
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`F.3d 502, 506 (2d Cir. 2020).
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`B. The District Court’s Order Is Highly Questionable and
`Manifestly Erroneous, Implicating Fundamental and
`Important Class Certification and Federal Copyright Act
`Issues as to Which There Is a Compelling and Immediate
`Need for Appellate Disposition.
`This petition meets both standards for immediate interlocutory review.
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`The district court’s denial of class certification is highly questionable and,
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`indeed, manifestly erroneous. If not reversed, the decision will effectively
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`terminate this litigation and sound the death knell for the claims of hundreds
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`of recording artists within the Classes. Absent interlocutory appeal, hundreds
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`of Class Members (most of whom are more than 70 years old) will be left in
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`legal limbo as Plaintiffs litigate the merits of individual claims to final
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`judgment or resolution. Without an immediate, interlocutory appeal, these
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`artists’ rights will continue to be held hostage – for years -- until after the
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`disposition of an appeal as a matter of right. There is a clear, immediate need
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`for review to examine the court’s manifest legal errors as to the work-made-
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`for-hire defense and its related predominance analysis because of the Order’s
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`significance to the Class Members’ ability to reclaim their rights.
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`The Supreme Court has made clear that a district court must undertake
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`“a rigorous analysis” in analyzing the Rule 23 class certification requirements.
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page21 of 58
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`
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`Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011). Accord
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`Comcast Corp. v. Behrend, 569 U.S. 27, 32 (2013). Such determinations “can
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`be made only if the judge resolves factual disputes relevant to each Rule 23
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`requirement.” In re IPO Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006). Accord
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`Cuevas v. Citizens Fin. Goup, Inc., 526 Fed. Appx. 19, *21-*22 (2d Cir. 2013)
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`(vacating class certification ruling, including as to predominance, due to
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`district court’s failure to analyze rigorously the conflicting evidence and
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`resolve the material disputed facts). “Under Rule 23(b)(3), the district court
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`has a ‘duty’ … to ‘take a close look’ at whether the common legal questions
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`predominate over individual ones.” Langan v. Johnson & Johnson Cons.
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`Cos., Inc., 897 F.3d 88, 97 (2d Cir. 2018).
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`The rigorous analysis standard requires a careful examination of the
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`record, resolution of factual disputes and the making of findings by a
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`preponderance of the evidence. Id. Viewed through the proper legal
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`framework established by this Court’s precedents, Petitioners’ claims (and
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`those of the Class Members) readily satisfy the predominance requirement of
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`Rule 23(b)(3) and the other requirements of Rule 23.
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`C. Rule 23(b)(3)’s Predominance of Common Issues
`Requirement
`The purpose of Rule 23(b)(3)’s predominance requirement is to
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`“ensure[] that the class will be certified only when it would ‘achieve
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`-15-
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`Case 23-194, Document 1, 02/10/2023, 3468760, Page22 of 58
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`economies of time, effort, and expense, and promote uniformity of decision
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`as to persons similarly situated, without sacrificing procedural fairness or
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`bringing about other undesirable results.’” Cordes, 502 F.3d at 104 (quoting
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`Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997)).
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`
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`A court examining predominance must assess (1) “the elements of the
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`claims and defenses to be litigated,” (2) “whether generalized evidence could
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`be offered to prove those elements on a class-wide basis or whether
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`individualized proof will be needed to establish each class member's
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`entitlement to relief,” and (3) “whether the common issues can profitably be
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`tried on a class[-]wide basis, or whether they will be overwhelmed by
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`individual issues.” Johnson v. Nextel Commc'ns Inc., 780 F.3d 128, 138 (2d
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`