CBS Complaint

MCKOOL SMITH HENNIGAN, P.C.
865 S. FIGUEROA STREET, SUITE 2900

LOS ANGELES, CA 90017
Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 1 of 17 Page ID #:1
1 McKOOL SMITH HENNIGAN, P.C.

RODERICK G. DORMAN (SBN 96908)
2 rdorman@mckoolsmithhennigan.com
3 ROBERT E. ALLEN (SBN 166589)
rallen@mckoolsmithhennigan.com
4 LAWRENCE M. HADLEY (SBN 157728)
ldadley@mckoolsmithhennigan.com
5 ALAN P. BLOCK (SBN 143783)
ablock@mckoolsmithhennigan.com
6 865 S. Figueroa St., Suite 2900
7 Los Angeles, CA 90017
T: (213) 694-1200; F: (213) 694-1234
8
MILLER LAW LLC
9 MARVIN A. MILLER (pro hac vice application pending)
10 mmiller@millerlawllc.com
ANDREW SZOT (pro hac vice application pending)
11 aszot@millerlawllc.com
KATHLEEN BOYCHUCK (pro hac vice application pending)
12 kboychuck@maillerlawllc.com
115 S. LaSalle Street, Suite 2910
13 Chicago, IL 60603
14 T: (312) 332-3400; F: (312) 676-2676
Attorneys for Plaintiff
15 ABS ENTERTAINMENT, INC.
16
UNITED STATES DISTRICT COURT
17
FOR THE CENTRAL DISTRICT OF CALIFORNIA
18 ABS ENTERTAINMENT, INC., an

Arkansas corporation, each individually
19 and on behalf of all others similarly
20 situated.
21
Plaintiff,
22
v.
23
CBS CORPORATION, a Delaware

24 corporation; CBS RADIO INC., a
Delaware corporation; and DOES 1
25 through 10,
26
Case No.: 2:15-cv-6257

CLASS ACTION COMPLAINT
1. VIOLATION OF CALIFORNIA
CIVIL CODE 980(a)(2);
2. MISAPPROPRIATION;
3. VIOLATION OF CALIFORNIA
BUSINESS AND PROFESSIONS
CODE 17200; and
4. CONVERSION.
DEMAND FOR JURY TRIAL
Defendants.
27
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1116422v2
Plaintiff, ABS Entertainment, Inc. (ABS) (Plaintiff), individually and on
2 behalf of all other similarly situated owners of sound recordings, hereby complains
3 and alleges as follows:
4
5
PRELIMINARY STATEMENT
1.
This is a class action on behalf of owners of sound recordings to obtain
6 injunctive relief and monetary damages sustained by Plaintiff and the Class because
7 the Defendants have delivered music content through broadcast radio channels, HD
8 radio channels, the Internet and mobile devices without consent of or licenses from
9 the Plaintiff and the Class. As a result of their pernicious, improper and illegal

10 conduct, Defendants have reaped hundreds of millions of dollars that rightfully

11 belong to Plaintiff and the Class.
12
2.
Defendant CBS Corporation (through itself and its subsidiaries, including
13 CBS Radio Inc.) (collectively, CBS) is one of the leading operators in the United
14 States of media and entertainment services via broadcast and digital delivery.
15 Specifically, CBS delivers music content through broadcast (AM and FM) radio
16 channels, the Internet and its stations websites, and through one or more CBS mobile
17 applications on smart phones, tablets and consoles. According to CBS, as of
18 February 10, 2015, it owned 117 domestic radio stations, servicing 26 U.S. media
19 markets, including 77% of the top 25 markets. (Delivery by CBS of musical content
20 through AM and FM radio stations shall hereafter be described as the Broadcast
21 Service). Many of its stations in the Broadcast Service are the most popular music
22 stations in the applicable market, including in Los Angeles, where CBS owns and
23 operates KROQ 106.7 FM, KAMP 97.1 FM, KCBS 93.1 FM, KRTH 101.1
24 FM and KTWV 94.7 FM.
25
3.
CBS also streams to listeners the digital simulcast of the sound recordings
26 being performed on its radio stations through the Internet and mobile application.
27 (Delivery by CBS of musical content through the Internet shall hereafter be described
28
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1116422v2
1 as the Internet Service). The Broadcast Service and the Internet Service are
2 sometimes referred to collectively as the Music Service.
3
4.
CBS has not obtained performance rights licenses or paid public
4 performance royalties to copyright owners of sound recordings of musical

5 performances that initially were fixed (i.e., recorded) prior to February 15, 1972
6 (Pre-1972 Recordings). Sound recordings initially fixed on or after February 15,
7 1972 are subject to federal copyright protection under the United States Copyright
8 Act and are not the subject of this lawsuit.
9
5.
Pre-1972 recordings comprise the historical backbone of the music

10 industry. From Tin Pan Alley to the Big Band era to the Summer of Love, those
11 recordings have defined generations and include the recordings of legendary artists
12 such as Al Green, Elvis Presley, Frank Sinatra, The Turtles and The Beatles.
13
6.
CBS understands the value of Pre-1972 Recordings to its Music Service
14 but has ignored the obligation to obtain licenses to exploit those recordings. Instead,
15 CBS has chosen to copy tens of thousands of Pre-1972 Recordings to its servers and
16 to transmit, copy, perform, broadcast and stream them to its millions of users on a
17 daily basis without any authorization. By selling advertisements and through other
18 means, CBS profits handsomely from its exploitation of Pre-1972 Recordings.
19
7.
Because CBS has chosen to operate the Music Service without licenses
20 for Pre-1972 Recordings, CBS is now liable under California law for violation of
21 California Civil Code 980(a)(2), misappropriation, violation of California Business
22 & Professions Code 17200, and conversion for its unauthorized reproduction,
23 distribution, and public performance of those recordings.
24
25
THE PARTIES
8.
ABS is a corporation duly organized and existing under the laws of
26 Arkansas, with its principal place of business in West Memphis, Arkansas.

27
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9.
Through a series of transactions, ABS acquired the exclusive ownership
2 in the sound recordings of Al Green, Willie Mitchell, Ann Peebles, Syl Johnson, Otis
3 Clay, Bill Black Combo, and O.V Wright, a representative sample of the titles of
4 which are specified on the attached Schedule A and incorporated herein by
5 reference (the Recordings).
6
10. Plaintiff has been and continues to be engaged in the business of
7 distributing, selling, and/or licensing the reproduction, distribution, sale, and

8 performance of the Recordings including in records, audiovisual works, and for
9 streaming (i.e., performing) and downloading over the Internet.

10
11. CBS Corporation is a corporation duly organized and existing under the
11 laws of Delaware, with its principal place of business in New York, New York. CBS
12 Corporation is the parent company of CBS Radio Inc., and owns and operates the
13 Music Service, which broadcasts music to its listeners and delivers high quality
14 streams of music to its users.
15
12. CBS Radio Inc. is a corporation duly organized and existing under the
16 laws of Delaware, with its principal place of business in New York, New York. CBS
17 Radio Inc. is a wholly-owned subsidiary of Defendant CBS Corporation.
18
13. The true names and capacities, whether individual, corporate, associate or
19 otherwise, of Defendants named herein as Does 1 through 10, inclusive, are unknown
20 to Plaintiff who therefore sues said Defendants by such fictitious names. Plaintiff
21 will amend this Complaint to allege their true names and capacities when such have
22 been ascertained. Upon information and belief, each of the Doe Defendants is
23 responsible in some manner for the occurrences herein alleged, and Plaintiffs injuries
24 as herein alleged were proximately caused by such Defendants acts or omissions.
25
14. Plaintiff is informed and believes, and on that basis alleges, that at all
26 times mentioned in this Complaint, CBS and each of the Doe Defendants was the
27
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1116422v2
1 agent of each other and, in doing the things alleged in this Complaint, was acting
2 within the course and scope of such agency.
3
4
JURISDICTION AND VENUE

15. Jurisdiction exists pursuant to 28 U.S.C. 1332(d)(2) because the matter
5 in controversy exceeds the sum or value of $5 million (exclusive of interest and

6 costs), it is a class action in which a member of a Class (defined in paragraph 24
7 below) is a citizen of a State different from CBS, and the number of members of the
8 proposed Class exceeds 100.
9
16. This Court has personal jurisdiction over CBS because: (a) CBS is

10 engaged in a continuing course of tortious conduct in California by publicly

11 performing, reproducing, and distributing Pre-1972 Recordings within the State of
12 California including, without limitation, through its broadcasting on its 58 owned and
13 operated radio stations in California; and (b) CBSs conduct causes injury to Plaintiff
14 and the Class and their intellectual property in California.
15
17. Venue in this District exists pursuant to 28 U.S.C. 1391(b) and (c)
16 because CBS is subject to personal jurisdiction in this District and because a

17 substantial part of the events or omissions giving rise to the claims occurred in this
18 District. Specifically, CBS owns and operates at least 10 radio stations in the Central
19 District of California that broadcast music to California residents and digitally
20 simulcasts the transmissions of at least 50 radio stations from the Central District of
21 California.
22
23
FACTS COMMON TO ALL CLAIMS FOR RELIEF

18. CBS provides the Broadcast Service to members of the public in
24 California and elsewhere, and broadcasts sound recordings through numerous radio
25 stations throughout California, including, without limitation, the following:
26
(a)
27
Los Angeles: (i) KROQ 106.7 FM; (ii) KAMP 97.1 FM; (iii)
KCBS 93.1 FM; (iv) KRTH 101.1 FM; and (v) KTWV 94.7
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1116422v2
FM;
(b)
Palm Springs: KEZN 103.1 FM;
(c)
Riverside: (i) KFRG 95.1 FM; (ii) KVFG 103.1 FM; and (iii)
4
5
KXFG 92.9 FM;

(d)
Sacramento: (i) KNCI 105.1 FM; (ii) KSFM 102.5 FM; (iii)
KYMX 96.1 FM; and (iv) KZZO 100.5 FM;
(e)
San Diego: (i) KEGY 103.7 FM; and (ii) KYXY 96.5 FM; and
(f)
San Francisco: (i) KITS 105.3 FM; (ii) KLLC 97.3 FM; and (iii)
KMVQ 99.7 FM.

10 Among the sound recordings that CBS publicly performs, reproduces and distributes
11 through the Broadcast Service are the Recordings.
12
19. The Internet Service is provided by CBS to members of the public in
13 California and elsewhere, and delivers and streams (and licenses others to deliver and
14 stream) music through its stations websites, and through smart phones and tablets
15 through its downloadable Android and iOS Apps. Among the sound recordings that
16 CBS publicly performs, reproduces, and distributes through the Internet Service are
17 the Recordings.
18
20. CBS understands that having a vast and complete range and array of
19 music is critical to the success of any music service, which is why Pre-1972
20 Recordings constitute a significant part of the Music Service. Through the Internet
21 Service, CBS offers and advertises live radio simulcast, which allows a user to select
22 and listen to the live audio simulcast of hundreds of radio stations throughout the
23 United States, inclusive of radio stations owned by CBS. Many of these radio
24 stations are dedicated to Pre-1972 Recordings. CBS promotes these stations in order
25 to establish and increase its user base, popularity, and revenue.
26
21. Plaintiff is informed and believes, and on that basis alleges, that in order
27 to populate the Music Services databases and in order to broadcast and stream
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1 musical recordings to the public, CBS has reproduced and copied and continues to
2 reproduce and copy Pre-1972 Recordings to one or more servers and storage devices,
3 and uses technology or systems that results in one or more copies of Pre-1972
4 Recordings being distributed to its users computers or storage devices.
5
22. CBS knows that it does not have any license, right, or authority to
6 reproduce, perform, distribute or otherwise exploit via the Music Service any Pre7 1972 Recordings (including the Recordings). CBS also knows which of the
8 recordings its reproduces, performs, distributes or otherwise exploits via the Music
9 Service are Pre-1972 Recordings.

10
23. CBSs entire business is built around selling access to music and selling
11 the music. CBS delivers audio advertisements to its users in between songs and
12 displays (through the Internet Service, including mobile apps) visual ads while music
13 is playing.
14
15
CLASS ACTION ALLEGATIONS

24. Plaintiff brings this action, pursuant to Fed. R. Civ. P. 23, on behalf of
16 itself individually and on behalf of all other similarly situated owners of Pre-1972
17 recordings, which recordings were reproduced, performed, distributed or otherwise
18 exploited by CBS via the Music Service in California. The proposed Class is
19 comprised of and defined as follows:
20
All owners of sound recordings of musical performances that
21
initially were fixed (i.e., recorded) prior to February 15, 1972,
22
which sound recordings were reproduced, performed, distributed
23
and/or otherwise exploited by CBS via any form or method of
24
delivery or storage (e.g., terrestrial broadcast, Internet, computer,
25
server, etc.) in California (the Class).
26
25. This action may be properly brought and maintained as a class action
27 because there is a well-defined community of interest in the litigation and the

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1 members of the proposed Class are clearly and easily ascertainable and identifiable.
2
26. The Class for whose benefit this action is brought is so numerous and
3 geographically dispersed that joinder of all members of the Class is impracticable.

4 Plaintiff is informed and believes that there are hundreds or thousands of members of
5 the Class whose identity can be readily ascertained from third party, music industry
6 sources and from CBSs database files and records. Therefore, the Class can be
7 readily located and notified of this action.
8
27. Plaintiffs claims are typical of the claims of the members of the Class,
9 and Plaintiffs interests are consistent with and not antagonistic to those of the Class

10 it seeks to represent. Plaintiff and all members of the Class have sustained actual
11 pecuniary loss and face irreparable harm arising out of CBSs continued course of
12 conduct as complained of herein.
13
28. Plaintiff does not have any interests that are adverse to, or which conflict
14 with, the interests of the absent members of the Class and it is able to fairly and
15 adequately represent and protect the interests of such Class. Plaintiff has raised
16 viable statutory, misappropriation, unfair business practices, and conversion claims of
17 the type reasonably expected to be raised by members of the Class, and will
18 vigorously pursue those claims. Plaintiff is represented by experienced, qualified and
19 competent counsel, who are experienced in complex commercial litigation, class
20 action procedures, and the legal subject matter of this dispute. Plaintiff and their
21 counsel are committed to prosecuting this action vigorously.
22
29. Common questions of fact or law exist as to all members of the Class that
23 predominate over any questions affecting only individual members of the Class.
24 These common legal or factual questions, include but are not limited to, the
25 following:
26
27
(A)
Whether CBS reproduced, performed, distributed or otherwise
exploited via the Music Service Pre-1972 Recordings in California;
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1116422v2
(B)
exploitation via the Music Service of Pre-1972 Recordings in California
constitutes a violation of California Civil Code 980(a)(2);
(C)
constitutes an unfair business practice in violation of California Business &
Professions Code 17200;
9
10
Whether CBSs reproduction, performance, distribution or other

(D)

constitutes misappropriation;
11
(E)
12
13
constitutes conversion;
14
15
(F)
The basis and method for determining and computing damages
and/or restitution and disgorgement;
16
(G)
Whether, pursuant to California Civil Code 3294, CBS is guilty
17
of oppression, fraud, or malice thereby entitling the members of the Class to an
18
award of punitive damages; and
19
(H)
Whether CBSs conduct is continuing thereby entitling the
20
members of the Class to injunctive or other relief.
21
30. A class action is superior to other available methods for the fair and
22 efficient adjudication of this controversy since individual litigation of the claims of

23 all class members is impracticable. Thus, for the vast majority of the members of the
24 Class, the expense and burden of individual litigation would not justify pursuing the
25 claims individually. Even if every member of the Class could afford to pursue
26 individual litigation, the Court system could not. It would be unduly burdensome to
27 the courts in which individual similar litigation of numerous cases would proceed.
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1 Individualized litigation would also present the potential for varying, inconsistent, or
2 contradictory judgments and would magnify the delay and expense to all parties and
3 to the court system resulting from multiple trials of the same factual issues. By
4 contrast, the maintenance of this action as a class action presents few, if any,
5 management difficulties, conserves the resources of the parties and of the court
6 system, and protects the rights of each member of the Class. Plaintiff does not

7 anticipate any difficulty in the management of this action as a class action.

8
FIRST CLAIM FOR RELIEF
(For Violation of California Civil Code 980(a)(2) Against All Named
10
Defendants and Does 1 through 10)
11
31. Plaintiff hereby incorporates the allegations set forth above in paragraphs
12 1 through 30 above, as though fully set forth herein.

13
32. Pursuant to California Civil Code 980(a)(2), Plaintiff and the members
14 of the Class possess exclusive ownership interests in and to the Pre-1972 Recordings,
15 including the artistic performances embodied in those recordings.
16
33. Through its unauthorized reproduction, performance, distribution, or other
17 exploitation via the Music Service of Pre-1972 Recordings (including the

18 Recordings) in California, CBS has infringed the exclusive ownership interests in and
19 to the Pre-1972 Recordings in violation of California Civil Code 980(a)(2).
20
34. As a direct and proximate consequence of CBSs violation of California
21 Civil Code 980(a)(2), CBS has received and retained money and value that
22 rightfully belongs to Plaintiff and the members of the Class.
23
35. As a direct and proximate consequence of CBSs violation of California
24 Civil Code 980(a)(2), Plaintiff and the Class have been damaged in an amount that
25 is not as yet fully ascertained but which Plaintiff will ascertain and present through
26 competent evidence at trial, but which is no less than $5 million.
27
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36. CBSs conduct is causing, and unless enjoined and restrained by this
2 Court will continue to cause Plaintiff and the Class great and irreparable injury that
3 cannot fully be compensated or measured in money. Plaintiff and each member of
4 the Class do not have an adequate remedy at law. Plaintiff and each member of the
5 Class are entitled to temporary, preliminary and permanent injunctions, prohibiting
6 further violation of the ownership interests of Plaintiff and each member of the Class

7 in the Pre-1972 Recordings.

8
SECOND CLAIM FOR RELIEF
(For Misappropriation Against All Named Defendants and Does 1 Through 10)
10

12
38. Pursuant to California Civil Code 980(a)(2) and California common
13 law, Plaintiff and the Class possess exclusive ownership interests in and to the Pre14 1972 Recordings, including the artistic performances embodied in those recordings.
15
39. Plaintiff and its predecessors in interest invested substantial time and
16 money in developing the Recordings.

17
40. Because CBS does not obtain licenses, it does not incur any of the costs
18 that a licensee is otherwise obligated to pay in order to reproduce, perform, distribute

19 or otherwise exploit via the Music Service Pre-1972 Recordings (including the
20 Recordings).
21
41. CBS has misappropriated, and continues to misappropriate, for its own
22 commercial benefit, the exclusive ownership interests in and to the Pre-1972

23 Recordings reproducing, performing, distributing or otherwise exploiting via the
24 Music Service Pre-1972 Recordings (including the Recordings).
25
42. As a direct and proximate consequence of CBSs misappropriation, CBS
26 has received and retained money and value that rightfully belongs to Plaintiff and the
27 Class.
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43. As a direct and proximate consequence of CBSs misappropriation,
2 Plaintiff and the Class have been damaged in an amount that is not as yet fully
3 ascertained but which Plaintiff will ascertain and present through competent evidence
4 at trial.
5
44. Plaintiff is informed and believes, and on that basis alleges, that in
6 engaging in the conduct described herein, CBS acted with oppression, fraud and/or
7 malice. CBSs conduct has been despicable and undertaken in conscious disregard of
8 the rights of Plaintiff and the Class. Accordingly, Plaintiff and the Class are entitled
9 to an award of punitive damages against CBS in an amount sufficient to punish and

10 make an example of it.

11
12 Court, will continue to cause, Plaintiff and the Class great and irreparable injury that
13 cannot fully be compensated or measured in money. Plaintiff and the Class do not
14 have an adequate remedy at law. Plaintiff and the Class are entitled to temporary,
15 preliminary and permanent injunctions, prohibiting further violation of the ownership
16 interests of Plaintiff and the Class in the Pre-1972 Recordings.
17
THIRD CLAIM FOR RELEIF
18
(For Unfair Business Practices Against All Named Defendants and Does 1
19
Through 10)
20

22
25
48. CBSs conduct in reproducing, performing, distributing, or other
26 exploitation via the Music Service Pre-1972 Recordings (including the Recordings)
27
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1116422v2
1 constitutes a misappropriation of the property rights of the Plaintiff and the Class in
2 the Pre-1972 Recordings and a violation of California Civil Code 980(a)(2).
3
49. By misappropriating the property rights of the Plaintiff and each member
4 of the Class in the Pre-1972 Recordings and by violating California Civil Code
5 980(a)(2), CBS has engaged in unfair business practices in violation of California
6 Business & Professions Code 17200.
7
50. As a direct and proximate consequence of its violation of California
8 Business & Professions Code 17200, CBS has received and retained money and
9 value that rightfully belongs to Plaintiff and the Class.

10
51. As a direct and proximate result of CBSs conduct, Plaintiff and each
11 member of the Class are entitled to restitution and disgorgement under California
12 Business & Professions Code 17200 in an amount that is not as yet fully ascertained
13 but which Plaintiff will ascertain and present through competent evidence at trial.
14
16 malice. The conduct of CBS has been despicable and undertaken in conscious
17 disregard of the rights of Plaintiff and the Class. Accordingly, Plaintiff and the Class
18 are entitled to an award of punitive damages against CBS in an amount sufficient to
19 punish and make an example of it.
20
21 Court, will continue to cause Plaintiff and the Class great and irreparable injury that
26
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1116422v2
FOURTH CLAIM FOR RELIEF
(For Conversion Against All Named Defendants and Does 1 Through 10)

5
8
56. By reproducing, performing, distributing or otherwise exploiting via the
9 Music Service Pre-1972 Recordings (including the Recordings), CBS has converted

10 for its own use Plaintiffs and the Classs property rights in the Pre-1972 Recordings
11 and has dispossessed each of their of property rights.
12
57. As a direct and proximate consequence of its conversion, CBS has
13 received and retained money and value that rightfully belongs to Plaintiff and the
14 Class.
15
58. As a direct and proximate consequence of CBSs conversion, Plaintiff and
16 the Class have been damaged in an amount that is not as yet fully ascertained but
17 which Plaintiff will ascertain and present through competent evidence at trial.
18
20 malice. CBSs conduct has been despicable and undertaken in conscious disregard of
21 the rights of Plaintiff and each member of the Class. Accordingly, Plaintiff and the
22 Class are entitled to an award of punitive damages against CBS in an amount
23 sufficient to punish and make an example of it.
24
25 Court, will continue to cause Plaintiff and the Class great and irreparable injury that
28
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1116422v2

3
4
PRAYER
WHEREFORE, Plaintiff, on behalf of themselves and all other members of the
5 Class, pray for Judgment against CBS and the Doe defendants, and each of them, as
6 follows:
7
A.
Determining that this is a proper class action maintainable pursuant to
8 Rule 23 of the Federal Rules Civil Procedure, and certifying Plaintiff as a Class
9 Representative, and appointing Plaintiffs counsel as Class Counsel.

10
B.
On all claims other than the Third, compensatory damages in excess of $5
11 million according to proof.

12
C.
On the third claim, restitution and disgorgement of CBSs unlawful
13 proceeds and revenues, including CBSs gross profits, in excess of $5 million.

14
D.
On all claims other than the first, punitive and exemplary damages
15 according to proof at trial.

16
E.
On all claims, a temporary, preliminary, and permanent injunction
17 enjoining and restraining CBS, and their respective agents, servants, directors,
18 officers, principals, employees, representatives, subsidiaries and affiliated companies,
19 successors, assigns, and those acting in concert with them or at their direction, from
20 infringing, misappropriating, or converting, directly or indirectly, in California the
21 exclusive ownership interests in and to the Pre-1972 Recordings, including the artistic
22 performances embodied in those recordings, including without limitation by directly
23 or indirectly copying, reproducing, downloading, distributing, communicating to the
24 public, uploading, linking to, transmitting, publicly performing, or otherwise
25 exploiting in any manner any of the Pre-1972 Recordings, via the Music Service or
26 otherwise.
27
F.
On all claims, pre- and post-judgment interest.
28
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G.
For such fees and costs (including reasonable attorneys fees) incurred
2 herein as permitted by law.

3
H.
For such other and further relief as the Court deems just and proper.
4
5
McKOOL SMITH HENNIGAN, P.C.

MILLER LAW LLC
DATED: August 17, 2015
6
7
By:
/s/ Robert E. Allen

Robert E. Allen
ABS ENTERTAINMENT, INC.

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1116422v2
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DEMAND FOR JURY TRIAL

Plaintiff, ABS ENTERTAINMENT, INC., demands a trial by jury of the claims
3 for relief so triable as alleged in this Complaint.

4
McKOOL SMITH HENNIGAN, P.C.

MILLER LAW LLC
DATED: August 17, 2015
5
6
By:
/s/ Robert E. Allen

Robert E. Allen
ABS ENTERTAINMENT, INC.
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CBS Complaint

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MCKOOL SMITH HENNIGAN, P.C.

865 S. FIGUEROA STREET, SUITE 2900

Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 1 of 17 Page ID #:1

1 McKOOL SMITH HENNIGAN, P.C.

FOR THE CENTRAL DISTRICT OF CALIFORNIA

18 ABS ENTERTAINMENT, INC., an

CBS CORPORATION, a Delaware

Case No.: 2:15-cv-6257

Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 2 of 17 Page ID #:2

Plaintiff, ABS Entertainment, Inc. (ABS) (Plaintiff), individually and on

This is a class action on behalf of owners of sound recordings to obtain

MCKOOL SMITH HENNIGAN, P.C.

865 S. FIGUEROA STREET, SUITE 2900

10 conduct, Defendants have reaped hundreds of millions of dollars that rightfully

Defendant CBS Corporation (through itself and its subsidiaries, including

Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 3 of 17 Page ID #:3

CBS has not obtained performance rights licenses or paid public

4 performance royalties to copyright owners of sound recordings of musical

Pre-1972 recordings comprise the historical backbone of the music

MCKOOL SMITH HENNIGAN, P.C.

865 S. FIGUEROA STREET, SUITE 2900

CBS understands the value of Pre-1972 Recordings to its Music Service

ABS is a corporation duly organized and existing under the laws of

26 Arkansas, with its principal place of business in West Memphis, Arkansas.

Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 4 of 17 Page ID #:4

Through a series of transactions, ABS acquired the exclusive ownership

10. Plaintiff has been and continues to be engaged in the business of

7 distributing, selling, and/or licensing the reproduction, distribution, sale, and

MCKOOL SMITH HENNIGAN, P.C.

865 S. FIGUEROA STREET, SUITE 2900

Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 5 of 17 Page ID #:5

JURISDICTION AND VENUE

5 in controversy exceeds the sum or value of $5 million (exclusive of interest and

MCKOOL SMITH HENNIGAN, P.C.

865 S. FIGUEROA STREET, SUITE 2900

10 engaged in a continuing course of tortious conduct in California by publicly

16 because CBS is subject to personal jurisdiction in this District and because a

FACTS COMMON TO ALL CLAIMS FOR RELIEF

Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 6 of 17 Page ID #:6

Palm Springs: KEZN 103.1 FM;

KXFG 92.9 FM;

KMVQ 99.7 FM.

MCKOOL SMITH HENNIGAN, P.C.

865 S. FIGUEROA STREET, SUITE 2900

19. The Internet Service is provided by CBS to members of the public in

Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 7 of 17 Page ID #:7

MCKOOL SMITH HENNIGAN, P.C.

865 S. FIGUEROA STREET, SUITE 2900

CLASS ACTION ALLEGATIONS

All owners of sound recordings of musical performances that

initially were fixed (i.e., recorded) prior to February 15, 1972,

which sound recordings were reproduced, performed, distributed

and/or otherwise exploited by CBS via any form or method of

delivery or storage (e.g., terrestrial broadcast, Internet, computer,

server, etc.) in California (the Class).

27 because there is a well-defined community of interest in the litigation and the

Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 8 of 17 Page ID #:8

3 geographically dispersed that joinder of all members of the Class is impracticable.

MCKOOL SMITH HENNIGAN, P.C.

865 S. FIGUEROA STREET, SUITE 2900

Whether CBS reproduced, performed, distributed or otherwise

exploited via the Music Service Pre-1972 Recordings in California;

Case 2:15-cv-06257-PA-AGR Document 1 Filed 08/17/15 Page 9 of 17 Page ID #:9