Pryor Cashman Wins Dismissal of Claims By Duke Ellington's Heirs Against EMI Mills Music, Inc.
Pryor Cashman has won dismissals on two separate cases against EMI Mills Music, Inc., which were brought by the heirs of Duke Ellington. Donald Zakarin, Chair of the firm's Litigation Group, and associates Bryan Mohler and Benjamin Akley represented EMI in the litigations.
Paul Ellington v. EMI Mill Music, Inc., et al., Index No. 651558/2010, Supreme Court, New York County (Fried, J.): Representing EMI Mills Music, Inc., Pryor Cashman on October 11, 2011 won dismissal of a putative class action complaint brought by Duke Ellington’s grandson in which, based on a theory that EMI Mills’ was improperly deducting the royalties of EMI-affiliated subpublishers before calculating the royalties due to songwriters (or their heirs) for exploitation of his compositions, sought damages for breach of contract and fraudulent concealment. The Court, rejecting Plaintiff’s theory and adopting each of EMI Mills’ arguments, declined to certify the class and dismissed the action in its entirety, finding that Ellington’s 1961 “net receipts” agreement unambiguously entitled Ellington’s heirs only to a percentage of the income derived from exploitation of his works based on the net income actually received by EMI Mills Music, Inc. from foreign subpublishers, regardless of whether the subpublisher was affiliated with EMI Mills.
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Gaye Ellington, et al. v. EMI Mills Music, Inc., Index No. 112368/2010, Supreme Court, New York County (Schweitzer, J.): Representing EMI Mills Music, Inc., Pryor Cashman on October 27, 2011 won dismissal of an action brought by other heirs of Duke Ellington for breach of contract and fraudulent concealment. Adopting each of EMI Mills’ arguments, the Court dismissed the complaint in its entirety, finding that Ellington’s 1961 “net receipts” agreement unambiguously entitled Ellington’s heirs only to a percentage of the income derived from exploitation of his works based on the net income actually received by EMI Mills Music, Inc. from foreign subpublishers, regardless of whether the subpublisher was affiliated with EMI Mills. In dismissing the fraudulent concealment claim, the Court also held that EMI Mills’ royalties statements “clearly identify” EMI’s method of accounting, belying any claim that EMI failed to disclose material information.
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