Case 23-194, Document 17, 02/21/2023, 3472195, Page1 of 30
`
`United States Court of Appeals
`for the
`Second Circuit
`
`In re
`
`JOHN WAITE et al.,
`
`- v. -
`
`UMG RECORDINGS, INC. et al.,
`
`Petitioners,
`
`Respondents.
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`RESPONDENTS’ OPPOSITION TO FED. R. CIV. P. 23(f) PETITION
`
`Ariel Atlas
` Sidley Austin LLP
` New York, New York 10019
` (212) 839-5300
`Rollin Ransom
`Lisa Gilford
` 555 West Fifth Street
` Los Angeles, CA 90013
` (213) 896-6047
`
` Counsel for Respondents
`
`

`

`Case 23-194, Document 17, 02/21/2023, 3472195, Page2 of 30
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`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned
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`counsel for the Respondents in the above captioned action certifies that:
`
`Respondents UMG Recordings, Inc. and Capitol Records, LLC, by and
`
`through their undersigned counsel, hereby certify that they are wholly-owned
`
`indirect subsidiaries of Universal Music Group, N.V., a Netherlands public limited
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`company. No other publicly-held company owns 10% or more of the stock of UMG
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`Recordings, Inc. or Capitol Records, LLC. Vivendi SE and Compagnie de
`
`Cornouaille SAS are publicly-traded companies organized under the laws of France
`
`and own more than 10% of Universal Music Group N.V.’s stock. No other publicly-
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`held company owns 10% or more of Universal Music Group N.V.’s stock.
`
`i
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`TABLE OF CONTENTS
`
`INTRODUCTION ..................................................................................................... 1
`STATEMENT OF THE CASE .................................................................................. 3
`COUNTERSTATEMENT OF THE QUESTION PRESENTED ............................. 8
`ARGUMENT ............................................................................................................. 8
`I.
`PETITIONERS FAIL TO DEMONSTRATE THAT THE DISTRICT
`COURT’S ORDER EFFECTIVELY TERMINATES THE LITIGATION,
`LET ALONE MAKE A SUBSTANTIAL SHOWING THAT THE ORDER
`IS QUESTIONABLE. ................................................................................... 10
`The Order Denying Certification Is Not The “Death Knell” Of Petitioners’
`Individual Cases......................................................................................... 11
`Petitioners Have Not Made A “Substantial Showing” That The Order Is
`“Questionable.” .......................................................................................... 14
`THE DISTRICT COURT’S ORDER DOES NOT IMPLICATE A LEGAL
`QUESTION OF FUNDAMENTAL IMPORTANCE, OR ONE LIKELY TO
`ESCAPE REVIEW. ....................................................................................... 20
`
`A.
`
`B.
`
`II.
`
` ii
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`

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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Aymes v. Bonelli,
`980 F.2d 857 (2d Cir. 1992) ............................................................................... 16
`Baldwin v. EMI Feist Catalog, Inc.,
`989 F. Supp. 2d 344 (S.D.N.Y. 2013), rev’d and remanded, 805
`F.3d 18 (2d Cir. 2015) ........................................................................................ 13
`Barnes v. Am. Tobacco Co.,
`161 F.3d 127 (3d Cir. 1998) ............................................................................... 19
`Berni v. Barilla S.p.A.,
`964 F.3d 141 (2d Cir. 2020) ............................................................................... 19
`Blair v. Equifax Check Servs., Inc.,
`181 F.3d 832 (7th Cir. 1999) .............................................................. 9, 10, 11, 12
`Chamberlan v. Ford Motor Co.,
`402 F.3d 952 (9th Cir. 2005) (per curiam) ......................................................... 10
`Champlin v. Music Sales Corp.,
`604 F. Supp. 3d 224 (S.D.N.Y. 2022) ................................................................ 13
`Community for Creative Non-Violence v. Reid,
`490 U.S. 730 (1989) ............................................................................ 7, 16, 17, 18
`In re Delta Air Lines,
`310 F.3d 953 (6th Cir. 2002) (per curiam) ......................................................... 11
`Ebert v. Gen. Mills, Inc.,
`823 F.3d 472 (8th Cir. 2016) .............................................................................. 19
`Gianniello v. ALM Media, LLC,
`726 F.3d 106 (2d Cir. 2013) ........................................................................... 2, 15
`Huebbe v. Oklahoma Casting Co.,
`663 F. Supp. 2d 1196 (W.D. Okla. 2009) ........................................................... 16
`
`iii
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`

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`Innovative Networks, Inc. v. Sattelite Airlines Ticketing Ctrs., Inc.,
`871 F. Supp. 709 (S.D.N.Y. 1995) ..................................................................... 16
`JAH IP Holdings, LLC v. Mascio,
`No. 13-cv-62195-MSK, 2014 WL 6477923 (D. Colo. Nov. 19,
`2014) ................................................................................................................... 16
`JustMed, Inc. v. Byce,
`600 F.3d 1118 (9th Cir. 2010) ............................................................................ 16
`In re LIBOR-Based Fin. Instruments Antitrust Litig.,
`299 F.Supp.3d 430 (S.D.N.Y. 2018) .................................................................. 21
`In re Lorazepam & Clorazepate Antitrust Litig.,
`289 F.3d 98 (D.C. Cir. 2002) ........................................................................ 15, 21
`Mitchell v. 3PL Sys., Inc.,
`No. SACV 11-534 AG, 2012 WL 12886845 (C.D. Cal. Apr. 9,
`2012) ................................................................................................................... 16
`In re Nifedipine Antitrust Litig.,
`No. 08-8014, 2009 U.S. App. LEXIS 3643 (D.C. Cir. Feb. 23,
`2009) ................................................................................................................... 11
`Prado-Steiman,
`221 F.3d at 1274-75 ...................................................................................... 14, 15
`In re Rezulin Prods. Liability Litig.,
`210 F.R.D. 61 (S.D.N.Y. 2002) .......................................................................... 19
`Sasnett v. Convergent Media Sys., Inc.,
`No. C.A. 95-12262-NG, 1997 WL 33142149 (D. Mass. Aug. 29,
`1997). .................................................................................................................. 16
`Scorpio Music S.A. v. Willis,
`No. 11-cv-1557 BTM (RBB), 2012 WL 1598043 (S.D. Cal. May
`7, 2012) ............................................................................................................... 13
`Sumitomo Copper Litigation v. Credit Lyonnais Rouse, Ltd.,
`262 F.3d 134 (2d Cir. 2001) ........................................................................passim
`Teamster Loc. 445 Freight Div. Pension Fund v. Bombardier, Inc.,
`546 F. 3d 196 (2d Cir. 2008) .............................................................................. 17
`iv
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`

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`Trek Leasing, Inc. v. United States,
`62 Fed. Cl. 673 (Fed. Cl. 2004) .......................................................................... 16
`Vallario v. Vandehey,
`554 F.3d 1259 (10th Cir. 2009) .......................................................................... 10
`Walthal v. Rusk,
`172 F.3d 481 (7th Cir. 1999) .............................................................................. 13
`Waste Mgmt. Holdings, Inc. v. Mowbray,
`208 F.3d 288 (1st Cir. 2000) ......................................................................... 10, 15
`Weber v. U.S. Trustee,
`484 F.3d 154 (2d Cir. 2007) ................................................................... 11, 15, 20
`Yoakam v. Warner Music Grp. Corp.,
`No. 2:21-cv-01165-SVW-MAA, 2021 WL 3774225 (C.D. Cal.
`July 12, 2021)...................................................................................................... 13
`Statutes
`17 U.S.C. § 101 .......................................................................................................... 4
`17 U.S.C. § 203(a) ..................................................................................................... 4
`17 U.S.C. § 410(c) ................................................................................................... 17
`17 U.S.C. §§ 504(c), 505 ......................................................................................... 13
`Other Authorities
`Fed. R. App. P. 5(c) ................................................................................................. 24
`Fed R. App. P. 32 ..................................................................................................... 24
`Federal Rule of Appellate Procedure 26.1 ................................................................. 1
`Federal Rule of Civil Procedure 23(f) ..............................................................passim
`H.R. REP. No. 94-1476 (1976), available at
`https://www.copyright.gov/history/law/ ........................................................... 4, 5
`
` v
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`

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`INTRODUCTION
`
`Respondents UMG Recordings, Inc. and Capitol Records, LLC (collectively,
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`“Defendants” or “Respondents”) respectfully oppose Petitioners’ petition for
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`permission to appeal pursuant to Federal Rule of Civil Procedure 23(f). In a
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`detailed opinion, the District Court set forth the legal standards applicable to
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`Petitioners’ motion for class certification; addressed at length the numerous
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`individualized issues that demonstrate a lack of predominance and cohesion among
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`the putative class members; and, applying the relevant legal standards, exercised
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`his discretion to deny Petitioners’ motion. Nothing in the District Court’s opinion
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`warrants or can support this Court’s intervention. Sumitomo Copper Litigation v.
`
`Credit Lyonnais Rouse, Ltd., 262 F.3d 134 (2d Cir. 2001) sets forth two categories
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`of cases in which Rule 23(f) review is appropriate, but Petitioners fail to satisfy
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`this Court’s requirements for an interlocutory appeal as to either category.
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`First, Petitioners fail to demonstrate “that the certification order will
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`effectively terminate the litigation and [make] a substantial showing that the
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`district court’s decision is questionable.” Id. at 139 (emphasis added). As to the
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`former element, Petitioners’ conclusory statement that putative class members
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`“will be left in legal limbo” and their “rights will continue to be held hostage . . .
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`until after the disposition of an appeal as a matter of right” (Pet. at 14) does not
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`meet the “effective termination” standard, which requires a showing that the
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`1
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`District Court’s denial of class certification will be the “death knell” of Petitioners’
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`own claims and, thus, the litigation. Petitioners do not deny that they can and still
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`intend to litigate their individual claims through trial. Indeed, in the event
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`Petitioners prevail, the Copyright Act provides for statutory damages and
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`attorneys’ fees, giving Petitioners every incentive to litigate.
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`As to the latter element, Petitioners fail to make any showing that the
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`District Court abused its discretion by denying class certification, or that the
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`District Court’s decision is otherwise “questionable.” Critically, Petitioners fail to
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`address one of three separate and independent grounds that the District Court
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`found weighed against certification: individualized questions as to whether
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`Notices of Termination served by putative class members pursuant to Section 203
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`of the Copyright Act suffer from fatal deficiencies (A-5471 at A-5488-5489).
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`Because the District Court’s decision may be affirmed on any ground supported in
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`the record, and Petitioners have waived a ground supporting the denial of class
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`certification, their Petition necessarily fails. See Gianniello v. ALM Media, LLC,
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`726 F.3d 106, 109 (2d Cir. 2013).
`
`But even as to the grounds Petitioners do address, Petitioners merely
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`regurgitate arguments and misstatements of the record that the District Court
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`considered and rejected. Petitioners suggest the District Court “misapplied” the
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`caselaw concerning whether their works are exempt from termination under
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`2
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`Section 203 because they are “works made for hire.” This argument misses the
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`point. The District Court did not set out to substantively resolve the work made for
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`hire issues; rather, the District Court asked whether individualized evidence bears
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`on the multi-factor work made for hire tests in the applicable precedent. Because
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`the answer is “yes,” the District Court acted well within its discretion in denying
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`class certification.
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`Second, and likewise, Petitioners fail to meet the other Sumitomo standard
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`for appeal, namely, that this is a case in which “the certification order implicates a
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`legal question about which there is a compelling need for immediate resolution.”
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`Sumitomo, 262 F.3d at 139. They do not demonstrate a misstatement in the Order
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`of applicable standards for class certification. Nor do Petitioners claim that an
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`immediate appeal would resolve disagreements among District Courts over class
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`action practice, or even copyright law. In short, Petitioners do not identify
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`anything special or unique about this case that warrants the extraordinary remedy
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`of an interlocutory appeal under Rule 23(f). The Petition should therefore be
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`denied.
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`STATEMENT OF THE CASE
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`Petitioners bring this action under Section 203 of the Copyright Act of 1976,
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`17 U.S.C. § 203, which permits an author (or the author’s statutory successors) to
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`terminate certain grants of U.S. copyright, effective beginning thirty-five to forty
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`3
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`years after execution of the grant, if specific conditions are met. Section 203
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`specifically excludes “work[s] made for hire” from its scope. 17 U.S.C. § 203(a).
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`The Copyright Act defines a “work made for hire” as either: “(1) a work prepared
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`by an employee within the scope of his or her employment; or (2) a work specially
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`ordered or commissioned for use as a contribution to a collective work . . . if the
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`parties expressly agree in a written instrument signed by them that the work shall
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`be considered a work made for hire.” 17 U.S.C. § 101 (emphasis added).
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`Even as to works that fall within its ambit, Section 203 is not self-
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`effectuating. “Instead of being automatic, . . . the termination of a transfer or
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`license under section 203 . . . require[s] the serving of an advance notice within
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`specified time limits and under specified conditions.” H.R. REP. No. 94-1476, at
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`124 (1976), available at https://www.copyright.gov/history/law/ clrev_94-
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`1476.pdf; see also 17 U.S.C. § 203(a). A Section 203 notice (“Notice of
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`Termination”) that does not comply with certain statutory conditions as to timing,
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`scope and content is not valid under the Copyright Act. Id.
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`This action was originally filed on February 5, 2019. A-0138. Notably, the
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`original plaintiffs in the lawsuit—recording artists John Waite and Joe Ely—are no
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`longer parties in this action. The District Court granted Respondents’ motion to
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`dismiss Waite’s claims on the ground that he did not execute the putative grants he
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`sought to terminate. A-0626-0649. The District Court held that because Waite
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`was not the grantor, “[t]he plain language of the statute precludes [him] from
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`effectuating termination.” Id. at 0645-646. The District Court dismissed Ely’s
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`claim in part on this basis as well, and Ely subsequently settled with Defendants.
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`Id.; A-0138. Similarly, plaintiff Kasim Sulton was dismissed from the case on
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`summary judgment after the District Court found that Respondents had not
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`exploited his work after the effective date of his putative Notice of Termination,
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`and therefore he had no claim for infringement. See A-0870-0879 at A-0873-A-
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`0878. The dispositions of the claims of Waite, Ely and Sulton demonstrate the
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`fact-intensive and individualized nature of the Section 203 questions before the
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`District Court on class certification. Only through an examination of the artists’
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`various recording agreements, the putative Notices of Termination, the underlying
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`factual record of those Notices, and the subsequent exploitation (or non-
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`exploitation) of the sound recordings at issue could the Court make a determination
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`as to the validity of their claims. See A-0626-0649 at 0645-0649; 247 at A-0870-
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`0879 at A-0873-A-0878.
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`In April 2022, Petitioners filed a motion to certify two putative classes. See
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`generally A-1500. Petitioners sought to represent and certify two classes of artists.
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`Putative Class A (a proposed damages class), was defined as follows:
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`All recording artists (and statutory heirs and personal
`representatives of those recording artists, if applicable)
`who have served Defendants with Notices of Termination
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`pursuant to § 203 of the Copyright Act describing an
`effective date of termination for a particular work (i)
`occurring on or after January 1, 2013 and (ii) occurring no
`later than the date that Court grants class certification of
`Class A.
`
`A-1496.
`Putative Class B, a purported declaratory and injunctive relief class, was
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`defined as follows:
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`All recording artists (and statutory heirs and personal
`representatives of those recording artists, if applicable)
`who have served Defendants with Notices of Termination
`pursuant to § 203 of the Copyright Act describing an
`effective date of termination for a particular work (i)
`occurring on or after the date that Court grants class
`certification of Class and (ii) occurring no later than
`December 31, 2031 [sic].
`
`Id.
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`In opposition, Respondents raised no fewer than fifteen individualized issues
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`that demonstrate a lack of predominance and cohesion among the putative class on
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`a voluminous record. Respondents also submitted substantial evidence going to
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`the heart of the work made for hire analysis under 17 U.S.C. Section 101(1) and
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`101(2), indicating both that putative class members had varying evidence regarding
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`whether they were employees for hire, and whether their works were “specially
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`ordered or commissioned” as “contributions to a collective work,” such that their
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`works are exempt from Section 203 altogether. See generally A-1572-1629.
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`In denying class certification, the District Court identified three independent
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`grounds for its decision. First, it considered the Supreme Court’s seminal decision
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`in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), and its
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`progeny, and analyzed Reid’s thirteen non-exhaustive employee-for-hire factors,
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`which “require[] evaluating evidence unique to each artist.” A-5471 at A-5482. In
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`thoroughly considering the Reid factors, the District Court concluded that the
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`individualized nature of the relevant inquiries and the evidence in the record
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`precluded certification of the proposed class. Id. at A-5482-5485.
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`Second, the District Court analyzed Petitioners’ motion for class certification
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`under the alternative work made for hire test, namely whether the sound recordings
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`at issue were “specially commissioned” within the meaning of Section 101(2) of
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`the Copyright Act, which this Court has held requires consideration of the so-
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`called “instance and expense test,” and whether the sound recordings were
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`“contributions to a collective work.” Id. at A-5485. The District Court determined
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`that these considerations, too, “require a highly individualized inquiry” as the
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`“‘instance and expense’ test turns on the parties’ creative and financial
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`arrangement as revealed by the record in each case,” and “whether a sound
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`recording qualifies as a contribution to a collective work or compilation is a fact-
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`intensive question,” and both would require analysis of the individualized facts in
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`the record. Id. at A-5485-5486 (emphasis added).
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`Third, in analyzing whether the validity of the putative Notices of
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`7
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`Termination could be adjudicated on common evidence, the District Court held
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`that “[t]he validity of an artist’s termination notice requires individualized
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`evaluation.” Id. at A-5489. “For each termination notice that contains defects, the
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`Court would need to assess whether those defects constitute harmless errors, which
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`may necessitate fact-finding as to the artist’s good faith and intent.” Id.
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`On this record, the District Court held that the issues that defeat
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`predominance under Rule 23(b)(3) are the same issues that counsel against
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`certifying a class pursuant to Rule 23(b)(2), on the grounds that the class is not
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`“cohesive.” Id. at A-5491-A-5493. The District Court found that Petitioners had
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`failed to offer any evidence demonstrating that Respondents have acted on
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`“grounds generally applicable to the class.” Id. at A-5492.
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`COUNTERSTATEMENT OF THE QUESTION PRESENTED
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`Whether leave to appeal under Rule 23(f) should be denied where
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`Petitioners: fail to address all of the multiple, independent grounds supporting the
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`denial of class certification, do not claim the order will effectively terminate
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`litigation as to their own claims, do not identify any deviation from controlling
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`Second Circuit precedent, and do not claim the decision will resolve a
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`disagreement among lower courts about class action practice or copyright law.
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`ARGUMENT
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`In “seeking leave to appeal pursuant to Rule 23(f),” a petitioner “must
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`8
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`demonstrate either (1) that the certification order will effectively terminate the
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`litigation and there has been a substantial showing that the district court’s decision
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`is questionable, or (2) that the certification order implicates a legal question about
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`which there is a compelling need for immediate resolution.” Sumitomo, 262 F.3d
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`at 139 (2d Cir. 2001) (emphasis added). Petitioners do not satisfy either
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`requirement. Indeed, Petitioners’ questions presented—which merely object to the
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`District Court’s rejection of certain of their merits arguments—make clear that
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`they simply seek to re-litigate the District Court's class certification decision. This
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`is not the sort of case that warrants immediate review under Rule 23(f).
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`In Sumitomo, this Court explained that the first category of cases in which
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`Rule 23(f) certification is proper are “the so-called ‘death knell’ cases and their
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`counterparts,” i.e., “cases in which the class certification order effectively
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`terminates the litigation.” 262 F.3d at 138 (citing Blair v. Equifax Check Servs.,
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`Inc., 181 F.3d 832, 834-35 (7th Cir. 1999)). Even where “the certification order
`
`would effectively terminate the litigation,” a Rule 23(f) petitioner must “further
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`demonstrate, at a minimum, that ‘the District Court's ruling on class certification is
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`questionable . . . taking into account the discretion the district judge possesses in
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`implementing Rule 23, and the correspondingly deferential standard of appellate
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`review.’” Id. (quoting Blair, 181 F.3d at 834-35); see id. at 139. This Court's
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`“determination of whether the district court’s decision is sufficiently questionable
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`to warrant interlocutory review will be tempered by our longstanding view that the
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`district court is often in the best position to assess the propriety of the class.” Id. at
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`139.
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`The second category of cases are those in which a “certification order
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`implicates a legal question about which there is a compelling need for immediate
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`resolution,” “an immediate appeal would contribute to the development of the law
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`of class actions,” and the legal issue is “‘important to the particular litigation as
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`well as important in itself.’” Id. at 138-39 (quoting Waste Mgmt. Holdings, Inc. v.
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`Mowbray, 208 F.3d 288, 294 (1st Cir. 2000)); see id. at 140 (similar); accord
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`Vallario v. Vandehey, 554 F.3d 1259, 1263 (10th Cir. 2009); Chamberlan v. Ford
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`Motor Co., 402 F.3d 952, 959 (9th Cir. 2005) (per curiam).
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`Rule 23(f) must be strictly applied to “prevent the needless erosion of the
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`final judgment rule and the policy values it ensures, including efficiency and
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`deference.” Sumitomo, 262 F.3d at 140. Rule 23(f)’s standards are so demanding
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`that the Court “anticipate[d]” they “will rarely be met.” Id.; see Chamberlan, 402
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`F.3d at 959 (“[P]etitions for Rule 23(f) review should be granted sparingly.”). This
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`is not the rare case warranting review.
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`I.
`
`PETITIONERS FAIL TO DEMONSTRATE THAT THE DISTRICT
`COURT’S ORDER EFFECTIVELY TERMINATES THE
`LITIGATION, LET ALONE MAKE A SUBSTANTIAL SHOWING
`THAT THE ORDER IS QUESTIONABLE.
`
`10
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`A.
`
`The Order Denying Certification Is Not The “Death Knell” Of
`Petitioners’ Individual Cases.
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`This Court and its sister circuits have recognized that requiring a petitioner
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`to show that a class certification decision would effectively terminate the litigation
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`provides a vital protection against the overexpansion of Rule 23(f) review. See,
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`e.g., Sumitomo, 262 F.3d at 138 (approvingly quoting the Seventh Circuit’s
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`recognition in Blair, 181 F.3d at 834, that “the reviewing court ‘must be wary lest
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`the mind hear a bell that is not tolling’”); Weber v. U.S. Trustee, 484 F.3d 154, 159
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`(2d Cir. 2007) (recognizing that the “death-knell” standard is a limited exception to
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`the generally applicable “final[ity]” requirement).
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`The Sixth Circuit has clarified that: “[T]he discussion of [the death knell]
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`factor must go beyond a general assertion. A plaintiff should demonstrate to the
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`court of appeals why he or she could not pursue the individual claim . . . .” In re
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`Delta Air Lines, 310 F.3d 953, 960 (6th Cir. 2002) (per curiam) (emphasis added).
`
`Similarly, the D.C. Circuit has denied review where “petitioners offered no
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`evidence beyond mere assertions that [the certification decision] would sound the
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`death knell of the litigation.” In re Nifedipine Antitrust Litig., No. 08-8014, 2009
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`U.S. App. LEXIS 3643, at *2 (D.C. Cir. Feb. 23, 2009). A situation in which
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`review may be warranted is one in which the individual claim “is far smaller than
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`the costs of litigation.” Fed. R. Civ. P. 23(f) Adv. Comm. Note (emphasis added);
`
`see also Blair, 181 F.3d at 834 (certification denial may “sound[] the death knell”
`11
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`where “the representative plaintiff's claim is too small to justify the expense of
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`litigation”).
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`Despite the importance of this factor, Petitioners make no meaningful effort
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`to satisfy it. Instead, in its standard of review section, the Petition merely asserts
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`that “[i]f not reversed . . . hundreds of Class Members [] will be left in legal limbo
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`as Plaintiffs litigate the merits of individual claims to final judgment or resolution.”
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`Pet. at 14. This conclusory statement—about the putative classes’ claims, not their
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`own—is the only attempt Petitioners make to meet Sumitomo’s “death knell”
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`factor. This is woefully insufficient.
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`First, Petitioners’ reference to the “legal limbo” of “hundreds of recording
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`artists” (Pet. at 14) does not establish that the District Court’s denial of class
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`certification will effectively end their claims, and thus, the litigation. Their
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`individual claims, and arguments regarding their own work made for hire status,
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`can be litigated with reference to the unique, particularized facts and evidence
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`presented by each Petitioner. See A-5471 at A-5485.1 Indeed, Petitioners do not
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`claim that they will drop their claims, nor do they contend that the amounts of their
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`individual claims are far smaller than the costs of this litigation. The Copyright
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`1 Additionally, at oral argument, Petitioners’ counsel claimed to personally
`represent over 80 putative class members. A-5452. There has been no indication
`that counsel would drop their putative termination and infringement claims if they
`could only be pursued on an individual basis.
`12
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`Case 23-194, Document 17, 02/21/2023, 3472195, Page19 of 30
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`Act has built-in economic incentives for plaintiffs and copyright owners to pursue
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`infringement claims individually.2 The Copyright Act provides for statutory
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`damages of up to $150,000 per work, and for attorneys’ fees and costs to the
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`prevailing party. 17 U.S.C. §§ 504(c), 505. Petitioners have alleged willful
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`infringement and made clear that they will seek statutory damages. A-1500 at A-
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`1531, A-1544-1545.
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`Second, Petitioners’ objection is that resolution of putative class members’
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`claims will be delayed, not effectively denied. And even if delay were the standard
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`or relevant to the analysis, Petitioners do not supply any evidence that artists in the
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`purported classes could not pursue their Section 203 claims and reach resolution
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`outside of this litigation. Indeed, substantial evidence presented to the District
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`Court demonstrated that numerous artists pursue and resolve Section 203 claims
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`routinely on their own, and that individual resolution is superior to class-wide
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`relief, which cannot account for the different facts and circumstances that
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`2 Indeed, there are numerous cases brought by individual claimants under Section
`203, further demonstrating that these cases can be, and are, litigated on an
`individual basis. See, e.g., Baldwin v. EMI Feist Catalog, Inc., 989 F. Supp. 2d
`344 (S.D.N.Y. 2013), rev’d and remanded, 805 F.3d 18 (2d Cir. 2015); Champlin
`v. Music Sales Corp., 604 F. Supp. 3d 224 (S.D.N.Y. 2022); Yoakam v. Warner
`Music Grp. Corp., No. 2:21-cv-01165-SVW-MAA, 2021 WL 3774225 (C.D. Cal.
`July 12, 2021); Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999); see also A-5471 at
`A-5472 (citing Scorpio Music S.A. v. Willis, No. 11-cv-1557 BTM (RBB), 2012
`WL 1598043, at *1 (S.D. Cal. May 7, 2012)).
`13
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`Case 23-194, Document 17, 02/21/2023, 3472195, Page20 of 30
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`undergird each claim.3 Petitioners have failed to demonstrate that this action fits
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`within the first, and most significant, factor under Sumitomo.
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`B.
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`Petitioners Have Not Made A “Substantial Showing” That The
`Order Is “Questionable.”
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`Petitioners cannot satisfy the next Sumitomo factor because they “fail[] to
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`make a substantial showing that the District Court’s decision is questionable.”
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`Sumitomo, 262 F.3d at 140. This Court and other circuits have recognized that a
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`certification order is not questionable simply because a petitioner disagrees with it.
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`Id. at 139 (finding that “whether the district court’s decision is sufficiently
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`questionable to warrant interlocutory review will be tempered by [its] longstanding
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`view” that the district court is the best arbiter of class certification issues). The
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`Court suggested that a “substantial showing” of “questionab[ility]” exists where
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`the order otherwise would be “‘inevitably reversed by this Court on appeal after
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`final judgment.’” Sumitomo, 262 F.3d at 139 (quoting Prado-Steiman, 221 F.3d at
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`1274-75).
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`In Weber, this Court endorsed the D.C. Circuit’s holding that Rule 23(f)
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`review should be exercised “‘[w]here a district court class certification decision is
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`3 While the District Court denied certification on predominance and cohesion
`grounds and did not reach other arguments, Respondents presented evidence of the
`disposition of Section 203 claims with individual artists in its arguments regarding
`the superiority factor under Rule 23(b)(3). A-1572 at A1-604, A-1621 (citing A-
`2686–A-2715; A-2716–A-2727; A-3752).
`14
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`Case 23-194, Document 17, 02/21/2023, 3472195, Page21 of 30
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`manifestly erroneous’” and the Fourth Circuit’s recognition that “‘Rule 23(f) was
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`explicitly promulgated to replace the use of mandamus in reviewing manifestly
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`erroneous class certifications.’” 484 F.3d at 160 (quoting In re Lorazepam &
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`Clorazepate Antitrust Litig., 289 F.3d 98, 10