Class Certification Granted In Turtles' Pre-'72 Copyright Case Against Sirius

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-5693 (C.D. Cal. 5/27/2015).

In the copyright infringement action against Sirius satellite radio alleging copyright infringement of pre-1972 sound recordings, the the District Court granted plaintiff's motion for class certification.  Under Fed. R. Civ. P. 23, the plaintiff must establish certain requirements that are often referred t as numerosity, commonality,
typicality, adequacy, predominance, and superiority.

As a threshold matter, the Court found Defendants' argument unpersuasive that class certification was improper because there had already been a finding of liability at summary judgment as to the named plaintiffs. Sirius argued that class certification would violate "the one-way intervention rule", which is the intervention
of a plaintiff in a class action after an adjudication favoring the class has taken place.  Such intervention is termed ‘one way’ because the plaintiff would not otherwise be bound by an adjudication in favor of the defendant occurring at that point in the litigation.  The Court found that Sirius had waived the protection of this rule because Sirius XM requested early summary judgment briefing, failed to raise a firm pre-judgment objection to Plaintiff's motion, and actually decided to adopt Plaintiff's motion as its own early liability decision vehicle.

The Court then turned to the Rule 23 class certification requirements.  First, it found that class members -- owners of pre-72 sound recordings -- were ascertainable by turning to a number of sources who license such sound recordings, and Sirius has a list of all of the songs it had played.  Next, the Court found that the proposed class of hundreds, if not thousands, of owners in sound recordings satisfied the numerosity requirement.  Typicality was also satisfied because the members of the proposed class will each claim injury based on Sirius performing their pre-1972 recordings without authorization. Sirius XM’s unauthorized
performance of plaintiff's recordings, the wrongful conduct at issue in this litigation, is not unique to these plaintiffs; rather, it is consistent with Sirius XM’s general practice as to pre-1972 recordings.  Next, the Court found commonality and adequacy of the named plaintiff's representation of the class.  The Court then considered the remainder of the Rule 23 requirements, and found them satisfied.  In short, the Court concluded that a class action is superior to individual litigation to the fair and efficient adjudication of the controversy.