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U.S. v. AMERICAN SOC. OF COMPOSERS

January 31, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
v.
AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, ET AL., DEFENDANTS. IN THE MATTER OF THE PROTEST OF RICHARD LEWIS WARREN.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

OPINION AND ORDER

In 1941, the Government's civil action against the American Society of Composers, Authors and Publishers ("ASCAP" or the "Society") for alleged violations of the Sherman Antitrust Act, was settled by the entry of a consent decree (the "1941 Consent Decree"). See United States v. ASCAP, 1941 Tr. Cas. (CCH) ¶ 56,104 (S.D.N.Y. 1941). The 1941 Consent Decree was amended on March 14, 1950 (the Amended Final Judgment or "AFJ"), and again on January 7, 1960 (the "1960 Order"). The terms of these orders continue to regulate the manner in which ASCAP participates within the music industry. This Court has exclusive jurisdiction under Section XVII of the AFJ to oversee the implementation of these provisions. The membership agreements signed by the members of ASCAP, specify that they are subject to the provisions of ASCAP's Articles of Association, the AFJ and the 1960 Order. (Meltzer-Zahn Aff. ¶ 8, Ex. A.)

ASCAP member Richard Lewis Warren filed a Protest in January 1998 before the Board of Review (the "Board") pursuant to the internal grievance procedures set forth in the Articles of Association and the 1960 Order. Although Warren filed an appeal to the American Arbitration Association ("AAA") after the Board rendered its decision on October 18, 1999, he has failed to pursue this administrative remedy. He claims that he has been denied access to financial documents to which he is entitled under the 1960 Order and questions the structure of the AAA and the impartiality of its members. Further, he argues that the Protest was void as ASCAP's attorneys should have recused themselves because of a conflict of interest. Instead, Warren has filed a fourth state court action against ASCAP in California seeking substantially the same relief he requested in the Protest.

BACKGROUND

A. Protest

Warren, a writer of musical scores for television, previously a member of Broadcast Music, Inc. ("BMI"), became a member of ASCAP in 1983. (Meltzer-Zahn Aff. ¶ 9, Ex. A.) For over ten years, the parties have constantly argued over whether: (1) ASCAP failed to pay Warren for performances of works he claimed were transferred from the BMI repertory to the ASCAP repertory; (2) ASCAP failed to credit as feature performances approximately 234 musical cues he composed for two television series that aired in the mid-1980's, Dallas and Remington Steel; (3) Warren received adequate distributions of royalties for foreign performances of the same cues; (4) ASCAP's in-house and outside counsel, their staff, associates, consultants, friends, or partners should have recused themselves from representing ASCAP in Warren's Protest, events leading up thereto or the upcoming appeal to the AAA based upon a "conflict of interest;" and (5) Warren should be allowed unlimited access to ASCAP's membership list pursuant to Section V(B) of the 1960 Order and/or other members' financial records pursuant to Section V(C) of the 1960 Order.

Ultimately, in January 1998, Warren filed a Protest before the Board in accordance with Section V(D) of the 1960 Order and Article XIV, Section 4 of the Articles of Association, in order to determine whether ASCAP owed him certain royalties. (Meltzer-Zahn Aff. ¶ 12.) On August 3, 1999, the Board conducted a hearing in which all of the above-mentioned issues were raised. (Id. ¶ 13, Ex. C; ASCAP Mem. Supp. Mot. at 6-7.) On October 18, 1999, the Board, in an unanimous nineteen-page decision, held that: ASCAP owed no additional distributions to Warren for any works that he claimed may have been transferred from the BMI repertory; Warren did not establish that ASCAP had withheld money from him based upon foreign performances; Warren did not establish that he was underpaid by ASCAP for the feature performances at issue, but was in fact overpaid for such performances; and that ASCAP had provided Warren with all relevant documents prior to the date of the Protest and, because Warren had not established "good cause" pursuant to the 1960 Order, he was not entitled to any further records. (Meltzer-Zahn Aff., Ex. D.) Because the Board does not have the power to determine questions of law, it did not render a decision as to whether ASCAP's attorneys were subject to a conflict of interest and should have recused themselves. (Id.)

On October 19, 1999, Warren filed an appeal from the decision of the Board. On October 29, 1999, the matter was referred to the AAA in New York in accordance with the Articles of Association. On February 23, 2000, the AAA appointed an impartial three-member panel: The Honorable Marvin E. Frankel, former United States District Judge for the Southern District of New York; The Honorable Frederick B. Lacey, former United States District Judge for the District of New Jersey; and William L.D. Barrett, a New York City attorney. However, Warren has not proceeded with the appeal because of his claim of conflict of interest as well as his claim that he was denied the right to inspect ASCAP and other members' financial documents and the membership list. He has also asserted that New York was not the proper forum for the appeal, and that it should be conducted in California.

1. Production of Documents

For many years, Warren has strived to prove that ASCAP has cheated him out of royalties. In response to Warren's demands for the production of documents, ASCAP has supplied him with: (1) Warren's foreign and domestic distribution statements from 1984 to the time in question; (2) all documents within his file with the exception of those subject to an attorney-client privilege for communications between ASCAP and its attorneys; (3) copies of all available canceled checks paid to Warren and his former wife; (4) ASCAP's financial statements made available to members during the period in question; (5) copies of various iterations of the Weighting Formula and other internal documents which indicate the weights accorded various types of performances during the period at issue; (6) copies of original cue sheets and ASCAP's electronic cue sheets for the TV programs subject to the Protest; and (7) computer generated summaries of his "pay" file for the preceding five fiscal years showing the performances of compositions for which he was paid during the period, the type of performance, the number of credits, the royalties received for such performances and a list of writer credit values on a quarterly basis. (Meltzer-Zahn Aff., Ex. E.)

ASCAP, however, has refused to disclose several sets of documents: (1) any publisher distribution statements or publisher correspondence information, based upon the fact that they were confidential in nature and contained wholly irrelevant information; but ASCAP did advise Warren to contact the publisher concerning these items; (2) members' performance records, on the asserted ground that Warren did not demonstrate "good cause" as required by the 1960 Order; (3) ASCAP's own financial documents; and (4) the membership list which includes members' names and addresses. (Id.)

In connection with his own financial documents, Warren sought the production of cue sheets for 30 television shows. (Meltzer-Zahn Aff. ¶ 17 n. 2, Ex. E.) ASCAP did not comply with this request. On November 2, 1999, after the Board rendered its decision, Warren also sought all financial documents that would demonstrate that he did in fact receive feature credit for 51 cues that were deemed by the Board to be feature performances. (Meltzer-Zahn Aff. ¶ 17, Ex. E.) ASCAP complied with this request with respect to five cues, but refused to comply with the remaining request because of its impracticality. (Id., Ex. F.) However, ASCAP has offered Warren the opportunity to inspect his financial records in the New York City office. (Id., Ex. E.) To date, this offer remains unaccepted.

2. Conflict of Interest

Warren has also made several demands that "ASCAP's counsel, in-house and outside counsel, their staff, associates, consultants, friends, or partners" recuse themselves from the proceedings because of a claimed conflict of interest. (Reimer Aff. ¶ 2, Ex. D.) Warren alleged that ASCAP's counsel purportedly represents the members and therefore, could not represent ASCAP against him in grievance proceedings. (Id.) ASCAP's attorneys did not recuse themselves and represented ASCAP in the Protest.

B. Lawsuits Filed

Warren has filed a series of suits against ASCAP in California. On April 6, 1998, Warren filed suit against ASCAP in California Superior Court alleging breach of contract resulting from ASCAP's failure to pay proper royalties. ASCAP moved for summary judgment on the ground of lack of subject matter jurisdiction based upon this Court's exclusive jurisdiction over the proceedings and the case was ultimately dismissed on December 11, 1998 due to Warren's failure to appear at a show cause hearing. (Meltzer-Zahn Aff. ¶ 23 n. 1.)

Although, on October 19, 1999, Warren filed an appeal from the decision of the Board, he has failed to go forward with the appeal. Instead, on February 17, 2000, Warren commenced another action in the Superior Court, County of Los Angeles, seeking the production of the same documents pursuant to CAL. CIVIL PROC. § 2035(a)-(b) by claiming that such documents may be destroyed by ASCAP. He further requested the imposition of sanctions against ASCAP for failure to comply with discovery pursuant to CAL. CIVIL PROC. § 2023(a)-(b). (Reimer Aff., Ex. A.) Judge Anthony J. Mohr denied the petition on March 30, 2000, stating that there was no indication that the documents Warren sought would be destroyed by ASCAP. He also referred to this Court's jurisdiction and stated that it would be the best court in which to hear the claims. Warren's motion for rehearing was denied on May 24, 2000. (Meltzer-Zahn Aff. ¶ 24; Reimer Aff. ¶ 2, Ex. A.)

On March 29, 2000, Warren filed an action for declaratory judgment in the United States District Court for the Central District of California that: (1) plaintiff is not required to appeal his protest to the AAA, but that in the event that he is required to do so, the AAA proceeding must be held in California; (2) ASCAP must supply its membership list and all financial documents in connection with plaintiff and other members; (3) ASCAP counsel must be recused from further participation; and (4) California law should control. (Meltzer-Zahn Aff. ¶ 25; Reimer Aff. ¶ 2, Ex. B.) On May 10, 2000, United States District Judge J. Spencer Letts granted ASCAP's motion to dismiss. (Meltzer-Zahn Aff. ¶ 25; Reimer Aff. ¶ 2, Ex. B.)

On May 24, 2000, Warren filed his third state court action against ASCAP in the Superior Court, County of Los Angeles, alleging unfair and deceptive business practices and false and misleading advertising because of ASCAP's failure to provide him with the requested financial documents and the membership list. (Reimer Aff. ¶ 2, Ex. C.) On August 28, 2000, Judge Mohr sustained ASCAP's demurrer and dismissed the complaint as well as denying Warren's motion to disqualify Richard Reimer, one of ASCAP's attorneys, from appearing pro hac vice. (Reimer Reply Aff. ¶ 2, Exs. A, B.)

Finally, on October 31, 2000, while the instant motion was pending before this Court, Warren filed yet another action in the Superior Court, County of Los Angeles, alleging, inter alia, breach of contract, fiduciary duties, conversion, and good faith and fair dealing. On November 30, 2000, the case was removed to the United States District Court for the for the Central District of California. On January 3, 2001, Warren filed a motion to remand to state court. On January 25, 2001, Warren's motion was granted.

DISCUSSION

I. Disclosure of Documents

B. Financial Records

Section V(C) of the 1960 ...


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