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Original complaint file : http://www.scribd.com/doc/229471634/MJ-Fan-vs-Sony-MJ-Estate-Cascio-Porte

New documents: https://www.scribd.com/doc/293196230/Fan-v-Cascio-Sony-Estate-Joint-Report

and https://www.scribd.com/doc/293196236/Fan-v-Cascio-Sony-Estate-Schedule

In June 2014 a MJ Fan sued Sony, MJ Estate, Cascio and Porte (Defendants) over the “Cascio Songs” used at the “Michael” posthumous album. The case had been on hold for all this time, only showing regular status hearings. Recent documents have shown us what has been happening with this case in the last 1+ year and what to expect for the future.

First information we learn is that parties have engaged in mediation and settlement talks but the settlement talks came to a deadlock. With no possibility of settlement, parties restarted the case process.

Ivy’s note: Although settlement discussions can come as shocking news to some, personally I think an attempt for settlement was expected given cost expectations to settle versus to pursue a trial.  To elaborate - This case at the moment is a class action lawsuit limited to California residents. Even if we assume it covers all of the US residents, “Michael” sold 600,000 copies in USA. 3 songs at $1.29 is $3.87 - let's round up to $4. So if you assume everyone asks for refunds the total cost of settlement would be $2.4 Million. However in previous Milli Vanilli example they expected 15-20% of the consumers to ask for refunds but only 5% of the people asked refunds. Using 5% to 20% refund request rate, a settlement could cost $120,000 to $480,000. If we assume the class action only covers the CA residents, these numbers would be lower. In short, for defendants from financial perspective settling the case might have been cheaper than to legal fees they would incur over years for this case.  

As the attempts to settle the case has failed, the next step by the defendants is to try to get the case dismissed.This is known as the demurrer process. In this instance the defendants is planning to file a demurrer and a special motion to strike the case under California’s Anti-SLAPP. I also want to note that the class action part hasn’t been certified yet. It is highly probable that the defendants will also attack the class action part of the lawsuit and will try to keep it as a single plaintiff.

We have experienced demurrers before in several other cases but anti-SLAPP is something new. So what is SLAPP and anti-SLAPP? Lawsuits brought to scare, harass and intimidate defendants or restraint of business is called SLAPP.  The motions filed by the defendants against such cases are called anti-SLAPP.In this instance it means that the defendants are planning to argue that the MJ fan who brought this case doesn’t really expect to win the case but brought this case in attempt to silence and intimidate the defendants in order to prevent them from saying that the Cascio songs are performed by MJ. It is possible that the defendants will argue that saying MJ sang these songs are their constitutional right under freedom of speech. [If you look to the original complaint, you will see the MJ fan complained about some of the statements made by the parties. Anti-SLAPP motions also aim to protect such statements under freedom of speech law. ]

Once the defendants file their demurrer and anti-SLAPP motion, Plaintiff MJ fan would be required to file her reply to fight against these requests of dismissal the case. In order to show the case has merit, the Plaintiff MJ Fan wants to do discovery which will involve depositions and documents. Defendants is planning to argue against this discovery request stating that discovery is normally stayed during the anti-SLAPP motion and only limited discovery is allowed if there is a good cause for it.

With the recent documents we also learn about the upcoming schedule for this case.  Defendants will file their anti-SLAPP motion by January 20th 2016. Parties will file a joint statement regarding discovery by February 1st.  There will be a hearing on February 3rd to address discovery and hearing of the anti-SLAPP motion.

Ivy’s note: I imagine some fans might be excited about the prospects of discovery in this case. However I want to remind that this case also has a protective order.  It means any discovery or deposition classified as confidential wouldn’t be easily accessible to the public. Even such discovery happens and is used in the reply to the anti-SLAPP motion; public documents would be redacted and/or sealed depending on the situation. So personally I wouldn’t expect much discovery to become public knowledge until trial phase – if the case survives the demurrer and/or anti-SLAPP of course.