Flo & Eddie, Inc. v. Sirius XM Radio, Inc.
www.pre1972soundrecordings.com

Frequently Asked Questions

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1. How and when did the Court approve the Settlement?

The Final Approval Hearing for this proposed Settlement occurred on May 8, 2017.

At the hearing, the Court considered whether the proposed Settlement was fair, reasonable, and adequate, and whether it should be approved and, if so, what fees and expenses should be awarded to Class Counsel, and what service award, if any, should be awarded to the Plaintiff in this case, Flo & Eddie, and the planned allocation of the Settlement Fund.

The Court entered an order issuing final approval of the Settlement on May 8, 2017. The order is available here. Because the Court approved the proposed Settlement, Sirius XM will provide the benefits described above to the Settlement Class Members who did not properly exclude themselves from the Class.

Settlement Class Members are barred during the applicable term from pursuing their own lawsuits based on Sirius XM’s performance, distribution, reproduction, or other exploitation of their Pre-1972 Sound Recordings in the United States.

The Court entered final judgment on May 16, 2017. The final judgment is available here. The final judgment includes, and is binding on, all Settlement Class Members.

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2. Am I a member of the Settlement Class?

You qualify as a member of the Settlement Class if you are an owner of a pre-1972 recording(s) which has been performed, distributed, reproduced, or otherwise exploited by Sirius XM in the United States without a license or authorization to do so during the period from August 1, 2009 through November 14, 2016.

I’m not sure if I’m included in the Settlement?

If you have reviewed the Notice and information available on the website and are not sure whether you are included in the Settlement or you are unsure if the administrator has your current address, contact Class Counsel at info@pre1972soundrecordings.com. Additionally, beginning 15 days after the Effective Date of Settlement (or approximately June 30, 2017), you will be able to browse a database of Pre-1972 Sound Recordings to determine whether you own any of the recordings that are included in the Settlement.

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3. Will I get money from the Settlement?

If you are part of the Settlement Class, you are eligible to receive a share of a $25 million settlement fund, and a royalty rate of up to 3.5% on future performances for a period of 10 years. If Sirius XM loses certain appeals, Sirius XM will pay more money into the settlement fund (up to $10 million more to be distributed to Settlement Class Members); if Sirius XM wins those appeals, the royalty rate on future performances will be reduced, possibly to zero.

The Effective Date of the Settlement is June 15, 2017, if no appeal is filed. Beginning 15 days after the Effective Date of the Settlement, Settlement Class Members will be able to submit their claims on this site to claim ownership of their Pre-1972 Sound Recordings. Please check back to this website on June 30, 2017.

To monitor the status of the Settlement and to obtain claims forms, you may visit this website or call 1 (855) 720-2382.

SETTLEMENT BENEFITS

After the Effective Date, Sirius XM will provide the following benefits to members of the Settlement Class:

1. Payments from a Settlement Fund:

All members of the Settlement Class who have established their entitlement to participate in the Settlement will be entitled to a pro rata share of a $25 million settlement fund based on the number of historical plays of the Settlement Class Members’ Pre-1972 Sound Recordings. There will no reversion to Sirius XM of any payments made to the Settlement Fund.

2. Royalty payments and license:

Members of the Settlement Class will license to Sirius XM the right to publicly perform, reproduce, distribute, or otherwise exploit their Pre-1972 Sound Recordings through January 1, 2028, and will be eligible to receive monthly royalty payments from January 1, 2018 through January 1, 2028, at a royalty rate as high as 3.5% depending on certain appellate outcomes described next.

3. Additional payment terms contingent on appellate outcomes.

The Lawsuit, as well as a related lawsuit in Florida, Flo & Eddie Inc. v. Sirius XM Radio Inc., filed on September 3, 2013 in the United States District Court for the Southern District of Florida, Case No. 13-CV-23182, appealed to the United States Court of Appeals for the Eleventh Circuit, Appeal No. 15-13100, and certified to the Florida Supreme Court on June 29, 2016, Appeal No. SC16-1161, are predicated on the view that California and Florida law grant owners of Pre-1972 Sound Recordings a right to control performances of those recordings. However, this legal question remains unsettled and appellate courts are or will be considering that question and related questions. Absent this Settlement, depending on how the appellate courts rule, it is possible that Sirius XM would be required to pay members of the Settlement Class nothing ($0) for the public performance of any Pre-1972 Sound Recordings. In light of this uncertainty, the parties have agreed to additional payment terms contingent on the outcomes of those appeals.

  • For each of the remaining appellate courts in which Plaintiff prevails on the performance right issue, Sirius XM will pay the Settlement Class an additional $5 million dollars. In other words, if Plaintiff prevails on this issue in both appeals, Sirius XM will pay a total of $35 million dollars (the original $25 million plus an additional $10 million). If Plaintiff prevails on this issue in one appeal, Sirius XM will pay a total of $30 million dollars (the original $25 million plus an additional $5 million). Even if Sirius XM prevails in both appeals, the Settlement Class will still receive the original $25 million.
  • For each of the two appellate courts in which Sirius XM prevails on the performance right issue, the 3.5% royalty rate will be reduced going forward. If Sirius XM prevails in the California appeal, the royalty rate will be reduced by 2% points (e.g., from 3.5% to 1.5%); if Sirius XM prevails in the Florida appeal, the royalty rate will be reduced by 1.5% points (e.g., if not previously reduced, from 3.5% to 2.0%). If Sirius XM prevails in both appellate courts, Sirius XM will not be required to make any prospective royalty payments to members of the Settlement Class, and the Settlement Class will keep all royalties previously paid.
  • Sirius XM has also challenged these lawsuits based on the Commerce Clause of the United States Constitution. If Sirius XM prevails on this Commerce Clause issue in the U.S. Courts of Appeal for the Ninth or Eleventh Circuits, or in the United States Supreme Court, Sirius XM will not be required to make any prospective royalty payments to members of the Settlement Class, and the Settlement Class will keep all royalties previously paid.
  • Sirius XM will pay for the reasonable costs of administering the Settlement Fund and this Notice up to $500,000. Sirius XM will not be responsible for paying other costs, including the costs of ascertaining ownership of each Pre-1972 Sound Recording or administering and distributing any royalty payments.
  • The Settlement agreement also provided an additional $5 million contingent on Plaintiff prevailing on the performance rights issue in a New York Appeal, Flo & Eddie Inc. v. Sirius XM Radio Inc., filed on August 16, 2013, in the United States District Court for the Southern District of New York, Case No. 13-CV-5784 (CM), appealed to the United States Court of Appeals for the Second Circuit, Appeal No. 15-1164, and certified to the New York Court of Appeals on April 13, 2016, Appeal No. CTQ-2016-00001. On December 20, 2016, the New York Court of Appeals issued a decision in the New York appeal providing: “We hold that New York common law does not recognize a right of public performance for creators of pre-1972 sound recordings.” Flo & Eddie, Inc. v. Sirius XM Radio Inc., 2016 N.Y. Slip. Op. 08480, at 16 (Dec. 20, 2016). On February 16, 2017, the Second Circuit Court of Appeals, relying on the decision by the New York Court of Appeals, reversed the decision of the district court denying Sirius XM’s motion for summary judgment. The Second Circuit, finding the “certified question being determinative of the other claims,” remanded the case with instructions for the district court to grant Sirius XM’s motion for summary judgment and dismiss the case with prejudice. In light of the Second Circuit’s ruling, which eliminates the $5 million bonus recovery from the New York appeal, the maximum cash recovery for the class is $35 million and the ongoing future royalty rate will now be a maximum of 3.5%. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 15-1164-cv, slip op. (2d Cir. Feb. 16, 2017) (per curiam).

4. Participating in the Benefits of the Settlement:

Beginning 15 days after the Effective Date of the Settlement, or June 30, 2017, you will be able to submit a claim on this site for your Pre-1972 Sound Recordings. You will be able to browse a database of Pre-1972 Sound Recordings and claim ownership of your recordings from the database. The database will be hosted by Music Reports, Inc. (“Music Reports”). Please check back on this website on June 30, 2017 to view the database and submit a claim.

To participate in the benefits of the Class Settlement as to the Settlement Fund, you will be required to identify all of the Pre-1972 Sound Recordings that you own. You will be required to provide, among other information, the title, artist, album and/or label. You will have until December 31, 2017 to make a claim.

To participate in the Royalty Program, you will be required to provide title, artist, album, label, ISRC (if known), and date first fixed, in each case for each applicable Pre-1972 Sound Recording and a representation and warranty that you own all right, title, and interest in such recording(s).

After an ownership claim has been made for a Pre-1972 Sound Recording, any challenge to that claim of ownership or a competing claim of ownership must be made within 120 days. Following the expiration of 120 days after ownership has been claimed to a Pre-1972 Sound Recording, ownership will be deemed undisputed.

Competing claims of ownership to a Pre-1972 Sound Recording will be handled in the following manner: Music Reports will attempt to resolve the competing claims informally. Any unresolved disputes over ownership and control will be determined by a Special Master appointed by the Court, with a right to appeal the Special Master’s ownership determination to the District Court.

After the December 31, 2017 claim deadline passes, and the 120 days permitted to dispute a claim of ownership has expired, claimants will be paid their pro rata share of the net settlement fund based on the number of plays of their Pre-1972 Sound Recordings as compared to the overall number of plays of all Pre-1972 Sound Recordings in the Music Reports, Inc. database of class recordings.

To monitor the status of the Settlement distribution, and to obtain claims forms, you may visit www.pre1972soundrecordings.com or call 1 (855) 720-2382. (Claim forms may not be available unless and until the Settlement is approved.)

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4. How and when do I make a claim to an Identified Pre-1972 Sound Recording?

Beginning 15 days after the Effective Date of the Settlement, or June 30, 2017, you will be able to submit a claim on this site for your Pre-1972 Sound Recordings. You will be able to browse a database of Pre-1972 Sound Recordings and claim ownership of your recordings from the database. The database will be hosted by Music Reports, Inc. (“Music Reports”). Please check back on this website on June 30, 2017 to view the database and submit a claim.

To participate in the benefits of the Class Settlement as to the Settlement Fund, you will be required to identify all of the Pre-1972 Sound Recordings that you own. You will be required to provide, among other information, the title, artist, album and/or label. You will have until December 31, 2017 to make a claim.

To participate in the Royalty Program, you will be required to provide title, artist, album, label, ISRC (if known), and date first fixed, in each case for each applicable Pre-1972 Sound Recording and a representation and warranty that you own all right, title, and interest in such recording(s).

Please be patient and check back to this website periodically to find out more information on payments and the Royalty Claims Website.

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5. When will I get money?

After the December 31, 2017 claim deadline passes, and the 120 days permitted to dispute a claim of ownership has expired, claimants will be paid their pro rata share of the net settlement fund based on the number of plays of their Pre-1972 Sound Recordings as compared to the overall number of plays of all Pre-1972 Sound Recordings in the Music Reports, Inc. database of class recordings.

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6. Are there any tax consequences for money received as a member of the Settlement Class?

A Settlement Class Member should consult their own tax advisors regarding the tax consequences of the Settlement, including but not limited to, any payments, credits, royalties, and payment periods provided hereunder, and any tax reporting obligations they may have with respect thereto.

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7. What if someone claims ownership or control of the Pre-1972 Sound Recording that I own?

After a claim has been made for ownership of a Pre-1972 Sound Recording, a challenge to that claim of ownership or a competing claim of ownership can be made within 120 days. Following the expiration of 120 days after an ownership claim has been made to a Pre-1972 Sound Recording without a competing claim, ownership will be deemed undisputed.

Competing claims of ownership to a Pre-1972 Sound Recording will be handled in the following manner: Music Reports will attempt to resolve the competing claims informally. Any unresolved disputes over ownership and control will be determined by a Special Master appointed by the Court, with a right to appeal the Special Master’s ownership determination to the District Court.

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8. What is this Settlement about?

On August 1, 2013, Plaintiff Flo & Eddie, Inc. (“Flo & Eddie” or “Plaintiff”) filed a lawsuit against Defendant Sirius XM Radio Inc. (“Sirius XM”), alleging on behalf of itself and a putative class of owners of Pre-1972 Sound Recordings that Sirius XM, without a license or authorization, was performing, distributing, and reproducing those Pre-1972 Sound Recordings as part of its satellite and internet radio services (the “Lawsuit”). The Lawsuit is known as Flo & Eddie, Inc. v. Sirius XM Radio Inc., Case No. CV13- 05693, and is pending in the United States District Court for the Central District of California before the Honorable Philip S. Gutierrez. You can read Flo & Eddie’s Class Action Complaint on the Court Documents page.

The Lawsuit alleges that Sirius XM performed, distributed, reproduced, or otherwise exploited sound recordings that were fixed (i.e., recorded) prior to February 15, 1972 (“pre-1972 recordings”) in California without a license or authorization to do so in violation of California Civil Code § 980(a)(2), and engaged in misappropriation, unfair competition, and conversion. The Lawsuit seeks damages, restitution, and injunctive relief on behalf of the Class.

Sirius XM answered Flo & Eddie’s Class Action Complaint by denying any wrongdoing and contending that California law does not provide pre-1972 recording owners a right to control performances of recordings that have been sold to the public. Sirius XM also asserted the following defenses: laches, waiver, estoppel, license, fair use, statute of limitations, lack of harm, and lack of ownership. Sirius XM also asserts that disgorgement and punitive damages are unavailable.

On June 9, 2014, Flo & Eddie, on behalf of the Class, filed a motion for summary judgment claiming that owners of pre- 1972 recordings had the right to exclude Sirius XM from using or exploiting that performance without a license, including by way of public performance (i.e., broadcast or stream). Sirius XM contended that the ownership of the artistic performance in a pre-1972 recording did not include a right of public performance.

On September 22, 2014, Judge Gutierrez ruled that under California law, the ownership of the artistic performances in pre-1972 recordings includes the rights of public performance, distribution, and reproduction. He also found that Sirius XM’s unauthorized public performance of pre-1972 recordings violated California Civil Code §980(a)(2) and constituted misappropriation, conversion, and unfair competition under California Business & Professions Code § 17200.

The Motion for Summary Judgment and the Court’s Order Granting Plaintiff’s Motion for Summary Judgment can be viewed on the Court Documents page.

On May 27, 2015, the Court certified a class of owners of pre-1972 sound recordings which have been performed, distributed, reproduced, or otherwise exploited by Sirius XM in California without a license or authorization to do so from August 21, 2009 to August 24, 2016. To view the Order Granting Class Certification click here

On November 13, 2016, the parties entered into a settlement to resolve the Lawsuit, and any and all actual and potential claims by members of the Settlement Class. To view the Settlement in its entirety click here.

On January 27, 2017 the Court issued an Order Granting Preliminary Approval of Class Action Settlement.

A Final Approval Hearing took place on May 8, 2017. The Civil Minutes of the May 8, 2017 hearing are available here.

On May 8, 2017, the Court entered an Order Granting Plaintiffs’ Motions for Final Approval of Class Action Settlement and for Attorneys’ Fees, Costs, and Incentive Awards which approved the Stipulated Class Action Settlement (“Settlement”). On May 16, 2017 the Court entered Final Judgment.

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9. What is a class action and who is involved?

In a class action lawsuit, one or more people called “Class Representatives” (in this case, Flo & Eddie, which is a corporation that owns the rights to certain sound recordings of “The Turtles”) sue on behalf of other people or entities who have similar claims. Those people and entities together are a “Class” or “Class Members.” The named Plaintiff who sued, Flo & Eddie, and all of the Class Members like them, are called the “Plaintiffs”. The company they sued (in this case, Sirius XM) is called the Defendant. One court resolves the issues for everyone in the Class—except for those who choose to exclude themselves from the Class.

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10. How do I exclude myself from the Settlement Class?

The deadline for requesting exclusion from the Settlement Class has passed. You can no longer request exclusion from the Settlement Class.

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11. How do I object to the proposed Settlement or Attorney’s fees?

The deadline for objecting to the Settlement or Attorney’s fees has passed. The Court has entered final judgment and approved the request for attorney’s fees.

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12. Do I have a lawyer in this case?

The Court has appointed the law firms of Gradstein & Marzano, P.C. and Susman Godfrey L.L.P. to represent the Plaintiff and all Settlement Class Members as “Class Counsel.” More information about these law firms and their experience is available on the Class Counsel page. You have the right to retain an individual attorney, though you may need to pay for that attorney.

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13. Should I get my own lawyer?

You do not need to hire your own lawyer because Class Counsel is working on your behalf. But, you have the right to retain an individual attorney, though you may need to pay for that attorney.

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14. How are the lawyers paid?

The Court awarded Class Counsel 30% of the total settlement amount in attorneys’ fees and $1,679,587.55 in costs. A copy of the Court’s order is available here. A copy of Class Counsel’s motion asking for the award of fees, expenses, and an incentive award is available here, and the reply is support of Class Counsel’s motion is available here.

You are not personally responsible for the payment of these fees and expenses. The fees and expenses will be deducted from any money obtained for the Settlement Class.

Class Counsel has pursued the Lawsuit on a contingent basis, meaning Class Counsel has not been paid at all or recovered any of their expenses during the duration of the litigation. As part of the proposed Settlement, Class Counsel was authorized to seek an award of attorney’s fees of up to one-third from the Settlement Fund and royalty payments, reimbursement of expenses, and service award payments not to exceed $25,000 for each for the two principals of the Plaintiff to be paid from the Settlement Fund for their services as representatives on behalf of the Class; their deadline to do so was December 30, 2016, and Class Counsel sought an award of 30% from the Settlement Fund rather than one-third. The Court approved the requested fee, expense, and service award after the Final Approval Hearing. The payments will reduce the benefits that you, as a member of the Settlement Class, will receive because they will be deducted from the Settlement Fund and, where applicable, the royalties you receive. If you wish to retain your own attorney for any reason, then you will be individually responsible for that attorney’s fees and costs.

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15. Are more details available?

Pertinent information and documents, including pleadings and orders of the Court, are available on this site.

You may also call 1 (855) 720-2382 for additional information, or contact Class Counsel by
e-mail at: info@pre1972soundrecordings.com or by writing to:

Flo & Eddie v. Sirius XM
c/o GCG
P.O. Box 35131
Seattle, WA 98124-5131

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