Papers Sealed In Class Action Against RIAA

NewYorkCountryLawyer writes "In Andersen v. Atlantic Recording, the Oregon class action brought by Tanya Anderson against the RIAA, MediaSentry, and others, the plaintiff's motion for class action certification has been sealed by the Court. Also, the Court conducted an 'in camera' conference with the defendants' attorneys — meaning the Judge met with the defendants' attorneys alone — in connection with a discovery motion, and the record of that conference has been sealed as well. The RIAA has made a motion to dismiss the class action; that has not been sealed. In case you're wondering what's going on here, so am I."

Comments

My guess is the Noerr-Pennington doctrine

[tlambert]

IANAL, but I do read a heck of a lot.

My guess is the Noerr-Pennington doctrine. I expect that Anderson tried to define "all recipients of demand letters" as a class, and RIAA argued that that can not constitute a class because it has immunity under Noerr-Pennington, per Sosa v. DIRECTV, Inc. 1684 (2006):

http://www.ca9.uscourts.gov/datastore/opinions/2006/02/14/0455036.pdf

Probably, the specific interpretation of BE&K Construction Co. v. NLRB, 536 U.S. 516, 525 (2002). The argument would be that if the lawsuit was able to impose RICO liability on RIAA for sending the demand letter, then it would burden RIAA's ability to settle legal claims short of filing a lawsuit. RICO specifically provides for private enforcement and treble damages.

This is all predicated on the demand letters being specifically for no more than treble actual damages, so it may not apply if RIAA was asking for statutory damages (which they were). There is also some question as to whether the demand letters were objectively baseless and thus fall within the doctrine's sham exception. So I see at least two ways to fight a dismissal on direct.

-- Terry

Similar(?) History

[DynaSoar]

I similar set of events occurred during the big tobacco lawsuits. Some testimony was sealed and later opened, some remains sealed. Some of the former was from the tobacco comany researcher Dr. Jeffery Wigand. His story is the basis for the movie "The Insider". NYT has an archive of articles from throughout the course of the suits at: http://topics.nytimes.com/top/reference/timestopics/people/w/jeffrey_wigand/index.html

Some of the latter was from another tobacco company researcher named Pele, who worked out the biochemical mechanism of nicotine addiction. After his employer quashed news of the results, he leaked the details to a news magazine (either Time or Newsweek, I forget which), Subsequently all his testimony and work was sealed, he was fired and prevented from working in that field any more.

After these and similar testimonies that were greatly damaging to the companies' claims, the lawsuits suddenly sped up and concluded with the companies paying out US$280Bn. It was speculated that had the testimony been public and the suits based on the claims therein (ie. they themselves had the proof of nicotine addiction, something they'd denied existed), the companies would have been fined a great deal more, or possibly forced to sell out.

We can only hope that what's been sealed and discussed is so damaging to the RIAA that the judge is telling them to defend against it would require perjury, and he's giving them a chance to back off, settle before it gets a lot worse for them, and go lick their wounds.

One thing you can be sure of, and happened in the tobacco suits, if the companies lose and are fined, the amount they pay out will be made up by price increases. All buyers will end up paying the fine. And once they've covered the cost of the fines, they'll leave the price where it was moved up to, and rake in even more.