Upon getting our Opinion and Order vacated for want of jurisdiction, Karmen plans to proceed to a New York state court in the hopes of obtaining an interpretation of ASCAP's Articles of Association and membership agreement that is directly contrary to the construction of the Consent Decree and the 1960 Order it is now apparent this Court would give them.
The ultimate relief sought by Karmen -- to have the Panel legislate a new weight for jingles or specifically direct ASCAP's Board of Directors do so, or to have a court set a new weight -- would directly interfere with the regime established under the Consent Decree and the Court's 1960 Order. One of the principal aims of the Consent Decree and the 1960 Order is to assure that royalty distributions are based on a scientific survey of performances and a fair set of distribution rules. See Consent Decree, Section XI; 1960 Order, § III(E) and Attachment C. Changes to the Weighting Rules created by the 1960 Order may only be made by way of amendment, effected with the approval of this Court. The Weighting Formula Karmen seeks to alter is the linchpin of the distribution system established pursuant to the issuance of the 1960 Order. While Karmen seeks only to increase the weight accorded to jingle performances, increasing the weight of one type of performance obviously diminishes the portion of the "pie" remaining to be distributed among the other surveyed performances.
The Consent Decree and 1960 Order, the Articles of Association, and the membership agreement vest in ASCAP's Board of Directors the power to make changes to the Weighting Formula, within the confines of the Weighting Rules. Objections by the Government to the changes proposed by the Board of Directors are to be heard in this Court. Thus, as ASCAP explains, all of ASCAP's members have the right to expect that changes to the weights accorded their compositions will be made by the Board of Directors, under the surveillance of the Government, and subject to review by this Court, not by an arbitration panel or by any other court, as Karmen would prefer. To permit another court or an arbitration panel to adjust performance weights on an ad hoc basis would frustrate the rights and expectations of ASCAP's members under the Consent Decree and 1960 Order, and interfere with the entire system implemented under this Court's jurisdiction.
Moreover, to hold that this Court lacked jurisdiction to hear Karmen's application would produce a peculiar result. Had Karmen obtained the relief he sought from the arbitration panel in the first instance, there is no doubt that this Court would have jurisdiction under Section XVII of the Consent Decree to hear ASCAP's application to vacate the arbitration panel's award. See Consent Decree, Section XVII (retaining this Court's jurisdiction over applications made by parties to the Consent Decree to construe, modify or enforce the Decree). To hold that the Court now lacks jurisdiction over the same subject matter because Karmen lost his plea before the Panel and must therefore be the party applying for vacatur, would be to exalt form over substance and create an anomaly incompatible with the realities of the jurisdiction retained in this Court to oversee the ongoing implementation of the Consent Decree.
We note that ASCAP maintains that this Court had jurisdiction over this matter directly under Section XVII of the Consent Decree because ASCAP joined Karmen in requesting the Court to hear Karmen's application. See ASCAP Supp. Memo. at 3-6. We choose not to decide now whether ASCAP's consent to Karmen's application in this Court constitutes as application by ASCAP within the province of Section XVII of the Consent Decree. Rather, we are content to hold that this Court obtained jurisdiction over Karmen's application by virtue of its exclusive jurisdiction to decide claims governed by the Consent Decree and the Court's subsequent Orders amending the Decree.
We also note that if Karmen had proceeded initially in state court, sufficient authority exists in this Circuit empowering us to enjoin and remove such a proceeding under the All Writs Act, 28 U.S.C. § 1651 (1988). See United States v. International Broth. of Teamsters, 907 F.2d 277 (2d Cir. 1990); United States v. City of New York, 972 F.2d 464 (2d Cir. 1992); Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855 (2d Cir. 1988), cert. denied, 489 U.S. 1077, 103 L. Ed. 2d 833, 109 S. Ct. 1527 (1989); Ludlow Park Homeowners Ass'n. v. County of Westchester, 741 F. Supp. 1126, 1129 (S.D.N.Y. 1990), aff'd, 930 F.2d 909 (2d Cir.), cert. denied, 116 L. Ed. 2d 37, 112 S. Ct. 61 (1991); cf. United States v. ASCAP (Zekley), 442 F.2d 601 (1971). As already indicated, the prospect of Karmen's application proceeding in state court poses a significant risk of subjecting the Consent Decree to inconsistent interpretation, thus interfering substantially with the Court's jurisdiction under the Decree. To the extent that the Court may have sought to effectuate its jurisdiction through the use of this extraordinary writ under different circumstances, we agree with ASCAP that the fact Karmen proceeded directly in this Court should not change this result.
For the reasons stated above, the Court holds that it had subject matter jurisdiction to hear petitioner's application.
William C. Conner
United States District Judge
Dated: New York, New York
September 7, 1993