Universal Music Group is claiming three of the four artists still named in a class action lawsuit against the company did not lose original master recordings in a 2008 fire on the Universal Studios backlot.
According to a declaration filed late Wednesday (Aug. 21) by UMG attorney Scott Edelman of Gibson, Dunn & Crutcher LLP, neither Steve Earle nor Tom Petty nor Tupac Shakur suffered irreparable damage in the fire, calling their standing in the class action lawsuit into question. An investigation into the loss of material by Soundgarden, the only other current plaintiff, is ongoing.
On June 21, Soundgarden, Hole, Steve Earle, Jane Petty (Tom Petty’s ex-wife) and Tom Whalley (on behalf of the Afeni Shakur Trust, which oversees the estate of Tupac Shakur) filed a putative class action lawsuit seeking half of UMG’s proceeds from a legal settlement and a reported insurance payment relating to the fire, plus half of whatever value they didn’t cover. The suit followed a June 11 investigative report in the New York Times Magazine called “The Day the Music Burned” that claimed UMG downplayed losses from the fire publicly, while behind the scenes in litigation and company documents claimed as many as 500,000 song titles destroyed in the blaze. UMG has consistently asserted the losses have been overstated.
Last Friday, Aug. 16, the plaintiffs’ attorneys at law firms King, Holmes, Paterno & Soriano, LLP, McPherson LLP and Susman Godfrey LLP filed an amended complaint dropping Hole from the lawsuit based on information from UMG that none of the band’s masters were destroyed. According to an email included in Edelman’s declaration, this information was first presented on June 20, a day before the original class action filing.
Edelman additionally provided emails from late July and August showing that the attorneys had also been told none of Earle, Petty and Shakur’s original masters were lost in the blaze. The emails state UMG worked with the Petty estate (which is separately represented) and determined no original album master recordings were lost in the fire. Earle and Shakur did lose some assets, such as secondary production tapes and video products, of which UMG claims to possess viable alternate copies. (A “generic master” of Shakur’s derived from a compilation was lost, but UMG also claims to have a copy of this.) Still, those three artists remain plaintiffs on the amended lawsuit.
At the end of Edelman’s declaration, he suggests the plaintiffs are using the laborious discovery work — tasking UMG to determine specific artists’ losses in the fire — as a tactic against the company and a possible means to recruit more members to the class. As proof, he included an email from the plaintiffs requesting information on 125 artists and their losses — the majority of whom they do not represent.
“Plaintiffs have propounded broad discovery and refused to agree to a stay of discovery pending this Court’s ruling on UMG’s motion to dismiss the Complaint and forthcoming motion to dismiss the First Amended Complaint,” he wrote. “In particular, Plaintiffs have served discovery seeking voluminous materials that go well beyond materials related to Plaintiffs and their claims.”
In a statement, UMG slammed the lawsuit as “meritless” and and questioned the plaintiffs’ attorneys’ motives.
“The plaintiffs’ attorneys have already been informed that the original masters for virtually every artist named in their meritless lawsuit are safe in our storage facilities or theirs,” said UMG in a statement. “The fact that they still pursue legal action, and even try to drum up additional bogus claims, makes clear that their true motivation is something other than concern for artist masters.”
Responding to the declaration, attorney for the plaintiffs Howard King of King, Holmes, Paterno & Soriano, LLP directed attention back on UMG’s allegedly deceptive practices over the past decade to conceal the fire’s actual damage.
“UMG claims in their press releases they now want to be transparent with the artist community, after 10 years of concealment and deception,” he said in a statement. “Their true motives are revealed by their efforts to thwart the artists’ attempts to obtain actual proof of which master recordings were destroyed. The proof that UMG has denied the artists includes the sealed, sworn testimony given by UMG in lawsuits it brought against NBC Universal and its own insurance carrier, in which UMG claimed massive damages for loss of master recordings.”
Ed McPherson of McPherson LLP added that UMG’s claims on the damages are not good enough on their own, calling the declaration a PR tactic.
“It is ironic that, in the same motion that UMG is filing to avoid having to respond to any of the Plaintiffs’ inquiries under oath, they attach e-mails from UMG lawyers, who have never seen any of the masters, assuring our team that none of the Plaintiffs’ masters was lost,” he said in a statement. “This is just more of the same, playing to the press, while carefully avoiding providing the artists with anything under oath from a non-lawyer.”
UPDATE: This article was updated at 1:25 p.m. EST to include McPherson’s statement.