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

Frequently Asked Questions

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1. What is this proposed 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.

The Court has not yet ruled on Sirius XM’s defenses. The Court has not yet determined an amount of damages (if any).

The parties have entered into this proposed settlement to resolve the Lawsuit, and any and all actual and potential claims by members of the Settlement Class.

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2. 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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3. 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 proposed Settlement?

If you have reviewed the Notice and information available on the website and are not sure whether you are included in the proposed Settlement or you are unsure if the administrator has your current address, contact Class Counsel at info@pre1972soundrecordings.com.

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4. What happens if I do nothing at all and remain in the Class?

By doing nothing, you will remain part of the Settlement, and do not need to take any immediate action.

If the Settlement is approved, you may receive the benefits of the Settlement if you submit a claim to the Administrator and it is valid, complete, and timely submitted.

In exchange for the benefits you receive, you will give up your rights during the applicable term to sue Sirius XM separately based on its performance, distribution, reproduction, or other exploitation of Pre-1972 Sound Recordings that you own or control.

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5. What happens if I ask to be excluded from the Class?

If you exclude yourself from the Settlement Class—which is sometimes called “opting-out” and the Settlement Class receives a recovery through judgment or settlement, you won’t be entitled to a share of the recovery. However, you will be able to separately sue or continue to sue Sirius XM, though if you retain an individual attorney, you may need to pay for that attorney. If you exclude yourself, you will not be legally bound by the Court’s Orders and judgments in this Lawsuit.

If you do not submit a clear and timely request for exclusion to the Administrator, you will be bound by the Settlement, entitled to receive the benefits of the Settlement, and covenant not to sue Sirius XM during the applicable term for any claims based on its performance, distribution, reproduction, or other exploitation of Pre-1972 Sound Recordings that you own or control.

If you do exclude yourself so you can start or continue your own lawsuit against Sirius XM, you should talk to your own lawyer soon, because your claims may be subject to a statute of limitations.

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

To exclude yourself from the Settlement Class, you must send a written request for exclusion that is received no later than March 8, 2017, to:

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

Your written request for exclusion must contain: (1) the name of this Lawsuit, “Flo & Eddie, Inc. v. Sirius XM Radio Inc., Case No. CV13-05693”; (2) your full name and current address; (3) a clear statement of intention to exclude yourself such as: “I wish to be excluded from the Class”; (4) your signature to the address above, and (5) a fully and properly completed exclusion request that identifies all of the Pre-1972 Sound Recording(s) that you own and other related information. That request will require, at a minimum, the following fields: title; artist; album; ISRC (if known); and date first fixed for all of the Pre-1972 Sound Recording(s) you own.

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7. What if I already submitted an Exclusion Form based on the first notice I received when the class was limited to owners of a pre-1972 recording which have been performed, distributed, reproduced, or otherwise exploited by Sirius XM in California without a license or authorization to do so from August 1, 2009 through August 24, 2016?

The Order Granting Preliminary Approval of this proposed settlement conditionally certified the Settlement Class to include owners of a pre-1972 recording which have been performed, distributed, reproduced, or otherwise exploited by Sirius XM in the United States without a license or authorization to do so from August 1, 2009 through November 14, 2016.

Because membership in the proposed settlement has been amended to include owners of pre-1972 recordings performed, distributed, reproduced, or otherwise exploited by Sirius XM throughout the United States, not just California, if you wish to be excluded from this proposed Settlement you should submit a new written exclusion request.

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

If you are a member of the Settlement Class, you may object to the proposed Settlement. If you wish to object to the proposed Settlement, you must do so in writing before March 24, 2017, i.e., 45 days before the Final Approval Hearing.

If you wish to object to Class Counsel’s request for attorney’s fees and expenses, you must do so in writing before March 24, 2017 i.e., 45 days before the Final Approval Hearing. Class Counsel’s application was filed on December 30, 2016 and is posted here.

You may, but need not, select an attorney to appear at the Final Approval Hearing on your behalf. If you do, you will be responsible for your own attorney’s fees and costs.

Class Members who do not make their objections in a timely manner will waive all objections, their right to comment at the Fairness Hearing, and their right to appeal approval of the Settlement.

Contents of Written Objection:
Your written objection must include:

  1. your full name, address, and telephone number;
  2. identification of the Pre-1972 Sound Recordings performed by Sirius XM without your permission, and a representation that you are the legal owner of those Sound Recordings;
  3. a written statement of all reasons for your objection accompanied by any legal support;
  4. copies of any papers, briefs, or other documents on which your objection is based;
  5. a list of other cases in which you or your counsel have filed or in any way participated in—financially or otherwise—objections to a class settlement in the preceding five years;
  6. the name, address, email address, and telephone number of all attorneys representing you;
  7. a statement indicating whether you and/or your counsel intend to appear at the Fairness Hearing, and if so, a list of any persons you will call to testify in support of the objection; and
  8. your signature (and your lawyer’s signature if you are represented by counsel).

Your Objection should be mailed to the following addresses:

Flo & Eddie v. Sirius XM
c/o GCG
PO Box 35131
Seattle, WA 98124-5131
Phone: 1 (855) 720-2382

Your written objection must also be filed with the Clerk of the U.S. District Court for the Central District of California, and served upon all three of: (1) Henry Gradstein, Esq. of Gradstein & Marzano, P.C. (Class Counsel), 6310 San Vicente Blvd., Suite 510, Los Angeles, CA 90048; (2) Steven G. Sklaver, Esq., of Susman Godfrey L.L.P. (Class Counsel), 1901 Avenue of the Stars, Suite 950, Los Angeles, CA 90067-6029 ; and (3) Daniel M. Petrocelli, Esq. of O’Melveny & Myers, LLP (Sirius XM Counsel), 1999 Avenue of the Stars, 8th Floor, Los Angeles, CA 90067-6035.

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9. 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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10. Should I get my own lawyer?

If you choose to remain in the Settlement Class, 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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11. How will the lawyers be paid?

Class Counsel has filed a motion asking for an award of fees, expenses, and an incentive award to the class representatives. A copy of that motion is available here. You will not be personally responsible for the payment of these fees and expenses. If the Court grants Class Counsel’s request, the fees and expenses may be deducted from any money obtained for the Settlement Class, which could reduce the amount of your individual recovery.

The Court will determine how much Class Counsel will be paid for fees and expenses. 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. 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 will decide the amount of the fee, expense, and service award at the Final Approval Hearing. These 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, including to represent you at the final Fairness Hearing, then you will be individually responsible for that attorney’s fees and costs.

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12. How and when will the Court approve the proposed Settlement?

The Final Approval Hearing for this proposed Settlement is scheduled for May 8, 2017.

At the hearing, the Court will hear argument about whether the proposed Settlement is 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 time, date, and location of the hearing may change without further notice to you. If you plan to attend the hearing, you should confirm its time, date, and location before making any plans.

Any relief to Settlement Class Members is contingent on the Court’s final approval of the proposed Settlement. If the Court approves the proposed Settlement, Sirius XM will provide the benefits described above to the Settlement Class Members who have not properly excluded themselves from the Class.

Settlement Class Members will be 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. Therefore, if you want to bring your own lawsuit against Sirius XM, you must properly exclude yourself from this Settlement Class.

Any judgment entered, whether favorable or unfavorable to the Settlement Class, shall include, and be binding on, all Settlement Class Members, even if they object to the proposed Settlement.

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13. Do I have to come to the Final Approval Hearing?

While Class Members are not typically required to participate, you may be required to do so if you receive a subpoena or other notification authorized by the Court which requires you to appear. Class Counsel will present the case for the Class Members, and Sirius XM will present its defense. You are welcome to come at your own expense. If you are not required to participate at trial but wish to do so, you should contact Class Counsel.

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14. Will I get money, after the Final Approval Hearing?

If the Court approves the proposed Settlement, you will be eligible to receive a share of a $25 million settlement fund, and a royalty rate 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 $15 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. All Settlement Class Members who do not properly exclude themselves from the Settlement Class will be barred from pursuing lawsuits against Sirius XM for claims arising from its performance, reproduction, distribution, or other exploitation of their pre-1972 recordings during the Class Period.

If the Settlement Class obtains money or benefits as a result of the proposed Settlement, you will be notified about how to participate in any recovery.

You will receive these benefits only if the Court approves the proposed Settlement following the Final Approval Hearing on May 8, 2017, and only if you remain a member of the Settlement Class. If you exclude yourself from the Settlement Class, you will not receive any benefits.

To monitor the status of the proposed Settlement, to learn if and when it is approved, and to obtain claims forms, you may visit this website or call 1 (855) 720-2382. (Claim forms may not be available unless and until the Settlement is approved.)

PROPOSED SETTLEMENT BENEFITS

If the Court approves the proposed Settlement at the Final Approval Hearing that is scheduled for May 8, 2017, 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. If a substantial number of members of the Settlement Class or a substantial number of historical plays that members of the Settlement Class own opt out of the Settlement, both parties will have the option to terminate the Settlement no later than ten days after the close of the opt-out period.
  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 5.5% depending on certain appellate outcomes described next.
  3. Additional payment terms contingent on appellate outcomes.
    The Lawsuit, as well as related lawsuits in New York, 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, and 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, New York, 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 three 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 all three appeals, Sirius XM will pay a total of $40 million dollars (the original $25 million plus an additional $15 million). If Plaintiff prevails on this issue in two 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 all three appeals, the Settlement Class will still receive the original $25 million.
    • For each of the three appellate courts in which Sirius XM prevails on the performance right issue, the 5.5% royalty rate will be reduced going forward. If Sirius XM prevails in the California and New York appeals, the royalty rate will be reduced by 2% points each (e.g., from 5.5% to 3.5%); 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 5.5% to 4%). If Sirius XM prevails in all three 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 Second, 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.
    • 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). The parties dispute whether, as a result of this ruling, Sirius XM has prevailed on the performance right issue in New York—meaning the royalty rate has been reduced by 2% points (to a maximum of 3.5%) and no additional $5 million payment is required (meaning the maximum amount of additional payments is $10 million)—or Plaintiff has prevailed on that issue in New York—meaning the royalty rate has not been reduced and an additional $5 million payment is required. In the event the parties are not able to resolve this dispute, it will be adjudicated in subsequent proceedings.
    • 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:
    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 able to visit a website to complete a form to identify any and all Pre-1972 Sound Recordings you represent and warrant that you own or control. You will be required to provide, among other information, the title, artist, album and/or label. 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). 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. To monitor the status of the proposed Settlement, to learn if and when it is approved, 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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15. When will I get money after the Final Approval Hearing?

The Final Approval Hearing is scheduled for May 8, 2017. The Court’s Order will become final and payments distributed once any appeals of the Court’s Final Approval Order have been resolved by the Court. We will update this site and provide more information as it becomes available.

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16. 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 proposed 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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17. 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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18. How and when do I make a claim to an Identified Pre-1972 Sound Recording?

The Court will decide whether to approve the proposed Settlement. Proposed payments, including royalties, to Settlement Class Members who did not exclude themselves from the proposed Settlement will be made if the Court approves the Settlement. 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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