Beruflich Dokumente
Kultur Dokumente
______
In the
Supreme Court of the United States
________________
AFTERMATH RECORDS (D/B/A AFTERMATH
ENTERTAINMENT), INTERSCOPE RECORDS,
UMG RECORDINGS, INC.,
Petitioners,
v.
F.B.T. PRODUCTIONS, LLC,
EM2M, LLC,
Respondents.
________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
________________
QUESTIONS PRESENTED
In Ortiz v. Jordan, No. 09-737, this Court
granted certiorari and heard oral argument on
November 1, 2010 on the following question: “May a
party appeal an order denying summary judgment
after a full trial on the merits if the party chose not
to appeal the order before trial?”
This case presents the same basic questions as
Ortiz, outside the qualified-immunity context:
1. May a party obtain appellate review after
trial of the pretrial denial of summary judgment, or
must a party preserve the issues it argued at
summary judgment in the ways required by the rules
applicable at trial?
2. If appellate review after trial of the denial of
summary judgment is ever appropriate, is such
review limited to purely legal questions not tied to
the evidence, or does it also extend to mixed
questions of law and fact that require review of the
trial (or summary judgment) evidence?
3. In all events, is summary reversal required
where respondents explicitly disavowed in the
district court and on appeal the argument that the
district court erred by allowing the jury to interpret
the contract and did not argue in their opening or
reply brief on appeal that they sought review of the
denial of summary judgment, and the Ninth Circuit
simply ignored those forfeitures without suggesting
any legitimate basis to overlook them?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................................... i
CORPORATE DISCLOSURE STATEMENT .......... ii
TABLE OF AUTHORITIES.......................................v
OPINIONS BELOW...................................................1
JURISDICTION .........................................................1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .............................1
STATEMENT .............................................................1
REASONS FOR GRANTING THE PETITION ......12
I. THIS PETITION PRESENTS THE
SAME IMPORTANT ISSUE AS ORTIZ. .....14
A. The Court Should Hold This
Petition Pending Resolution Of
Ortiz.....................................................14
B. This Case Demonstrates The
Need For A Bright-Line Rule In
Ortiz.....................................................18
C. In The Alternative, This Court
Should Grant This Petition To
Consider The Question Presented
In Ortiz. ...............................................27
II. THIS COURT SHOULD SUMMARILY
REVERSE THE NINTH CIRCUIT’S
UNJUSTIFIED AND UNEXPLAINED
OVERLOOKING OF RESPONDENTS’
MULTIPLE FORFEITURES. .......................29
CONCLUSION .........................................................35
iv
APPENDIX
Opinion of the United States Court of Appeals
for the Ninth Circuit, dated Sept. 3, 2010 ........ 1a
Order of the United States District Court for
the Central District of California Denying
Plaintiffs’ Motion for New Trial, dated May
12, 2009 ............................................................ 16a
Order of the United States District Court for
the Central District of California Denying
Plaintiffs’ Motion for Summary Judgment,
dated Jan. 20, 2009 .......................................... 34a
Order of the United States Court of Appeals
for the Ninth Circuit Denying Appellees’
Motion to Defer Submission, dated Aug. 2,
2010 .................................................................. 52a
Order of the United States Court of Appeals
for the Ninth Circuit Denying Rehearing
En Banc, dated Oct. 21, 2010 .......................... 53a
Constitutional and Statutory Provisions
Involved ............................................................ 54a
Respondents’ Letter to the Court of Appeals
Pursuant to Fed. R. App. P. 28(j), dated
July 6, 2010 ...................................................... 56a
Excerpts from Trial Exhibit 5 (Mar. 9, 1998
Agreement), CA9 ER 837-846 ......................... 58a
Excerpts from Trial Exhibit 9 (Sept. 27, 2000
Novation), CA9 ER 879-883............................. 65a
Excerpt from Trial Exhibit 17 (Nov. 1, 2004),
CA9 ER 1011 .................................................... 69a
Proposed Jury Instruction 25 (A), CA9 ER 422 ... 72a
v
TABLE OF AUTHORITIES
Page(s)
CASES
OTHER AUTHORITIES
OPINIONS BELOW
The Ninth Circuit’s order and judgment, ___
F.3d ___, 2010 WL 3448098, is at App. 1a. The
district court’s decision denying respondents’ motion
for new trial is at App. 16a. The district court’s
decision denying summary judgment is at App. 34a.
JURISDICTION
The court of appeals issued its opinion on
September 3, 2010. Petitioners’ timely petition for
rehearing was denied on October 21, 2010. App. 53a.
This Court has jurisdiction under 28 U.S.C. § 1254.
STATEMENT
This case presents the same basic appealability
issue that the Court is considering in Ortiz v.
Jordan, No. 09-737. This case also underscores two
important lessons about the issue in Ortiz: 1) The
issue is by no means limited to the qualified-
immunity context with its unique rules about
interlocutory appeals, and 2) anything other than a
bright-line approach — either precluding all post-
trial appeals of the denial of summary judgment
without additional steps to preserve the legal issue
2
CONCLUSION
The petition for certiorari should be granted or
held pending resolution of Ortiz v. Jordan, No. 09-
737. In the alternative, this Court should summarily
reverse the Ninth Circuit’s judgment.
Respectfully submitted,
PAUL D. CLEMENT
Counsel of Record
JEFFREY S. BUCHOLTZ
KING & SPALDING LLP
1700 Pennsylvania Ave. NW
Washington, D.C. 20006
(202) 737-0500
pclement@kslaw.com
GLENN D. POMERANTZ
KELLY M. KLAUS
MELINDA E. LEMOINE
MUNGER, TOLLES &
OLSON LLP
355 South Grand Avenue
Thirty-Fifth Floor
Los Angeles, CA 90071
December 2010
APPENDIX
APPENDIX
TABLE OF CONTENTS
v.
OPINION
BACKGROUND
F.B.T. signed Eminem in 1995, gaining exclusive
rights to his recordings. In 1998, F.B.T. signed an
agreement transferring Eminem’s exclusive
recording services to Aftermath. The “Records Sold”
provision of that agreement provides that F.B.T. is to
receive between 12% and 20% of the adjusted retail
price of all “full price records sold in the United
States . . . through normal retail channels.” The
DISCUSSION
I. F.B.T. Is Not Precluded from Arguing that
the Masters Licensed Provision
Unambiguously Applies to Permanent
Downloads and Mastertones.
[1] F.B.T. did not file a pre-verdict motion for
judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50, so it has not preserved “a
challenge to the sufficiency of the evidence to support
the verdict” in this case. Nitco Holding Corp. v.
Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007).
However, F.B.T.’s argument that the contracts are
unambiguous raises an issue of law that does not
rest on the sufficiency of the evidence to support the
jury’s verdict. See Wolf v. Superior Court, 8 Cal.
Rptr. 3d 649, 656 (Ct. App. 2004) (“The trial court’s
determination of whether an ambiguity exists is a
question of law, subject to independent review on
appeal.”). F.B.T. therefore did not have to present
that argument in a motion for judgment as a matter
of law. Rather, F.B.T. had to raise the argument at
some point before the judge submitted the case to the
jury, which it did. See Cochran v. City of L.A., 222
F.3d 1195, 1200 (9th Cir. 2000) (holding that an
issue of law that “does not concern the sufficiency of
the evidence presented to the jury” need not be
raised in a motion for judgment as a matter of law to
preserve the issue for appeal); Landes Constr. Co. v.
Royal Bank of Can., 833 F.2d 1365, 1370 (9th Cir.
1987) (“As long as a party properly raises an issue of
law before the case goes to the jury, it need not
6a
v.
I. Background
Plaintiffs F.B.T. Productions, LLC (“FBT”) and
Em2M, LLC are entities that receive royalties
payable for the use and exploitation of master
recordings by Marshall B. Mathers III, better known
as the rapper Eminem. Defendants are Aftermath
Records (“Aftermath”), a joint venture, and its
owners, Interscope Records, UMG Recordings, Inc.,
and Ary, Inc. The primary question presented by this
case is what royalty is due Plaintiffs when a
consumer downloads an Eminem song to her
computer or purchases an Eminem ringtone for her
mobile phone.
C. Procedural History
D. Jury Trial
III. Discussion
D. Evidentiary Rulings
IV. Conclusion
IT IS SO ORDERED.
34a
v.
I. Background
III. Discussion
A. Royalties Due on Permanent Downloads
and Mastertones (Counts 1 and 3)
IV. Conclusion
IT IS SO ORDERED.
52a
v.
ORDER
v.
___________
ORDER
***
56a
July 6, 2010
Respectfully,
JBF/pmm
58a
***
***
***
64a
***
65a
***
***
***
69a
AFTERMATH RECORDS
c/o Interscope Records
2220 Colorado Avenue
Santa Monica, CA 90404
As of November 1, 2004
***
72a
Modification: None