Flo & Eddie, Inc. v. Sirius XM Radio, Inc.


If You Are An Owner Of A Sound Recording(s) Fixed Prior To
February 15, 1972 Which Have Been Performed, Distributed, Reproduced, Or Otherwise Exploited By Sirius XM In the United States Without A License Or Authorization To Do So From August 1, 2009 through November 14, 2016, You Could Get Benefits From a Class Action Settlement.

On August 1, 2013, Plaintiff Flo & Eddie, Inc. (“Flo & Eddie”) filed a lawsuit against Defendant Sirius XM Radio Inc. (“Sirius XM”), alleging on behalf of itself and a putative class of owners of pre-1972 sound recordings that Sirius XM, without a license or authorization, was performing, distributing, and reproducing those pre-1972 recordings as part of its satellite and internet radio services (the “Lawsuit”). Sirius XM denies any wrongdoing and contends that no state law, including California, New York, and Florida law, provides owners of pre-1972 sound recordings a right to control performances of those recordings.

What is this case about?
In the Lawsuit, Flo & Eddie alleged that Sirius XM has violated California Civil Code Section 980(a)(2) and is liable for conversion, misappropriation, and unfair competition. Flo & Eddie sought damages, restitution, and injunctive relief on behalf of itself and the putative class.

On September 22, 2014, the Court found Sirius XM liable to Flo & Eddie for the unauthorized public performance of Pre-1972 Sound Recordings in California. On May 27, 2015, the Court certified a class of owners of pre-1972 sound recordings which have been performed, distributed, reproduced, or otherwise exploited by Sirius XM in California without a license or authorization to do so from August 21, 2009 to August 24, 2016.

On November 13, 2016, the parties entered into a settlement to resolve the Lawsuit, and any and all actual and potential claims by members of the Settlement Class. To view the Settlement in its entirety click here.

On January 27, 2017 the Court issued an Order Granting Preliminary Approval of Class Action Settlement.

Has the Court Approved the Settlement?
A Final Approval Hearing took place on May 8, 2017. The Civil Minutes of the May 8, 2017 hearing are available here.

On May 8, 2017, the Court entered an Order Granting Plaintiffs’ Motions for Final Approval of Class Action Settlement and for Attorneys’ Fees, Costs, and Incentive Awards which approved the Stipulated Class Action Settlement (“Settlement”). On May 16, 2017 the Court entered Final Judgment.

The Effective Date of the Settlement is June 15, 2017, if no appeal is filed. Because the Court entered final approval of the Settlement, Sirius XM will provide the benefits described below to the Settlement Class Members who have not properly excluded themselves from the Class.

Settlement Class Members are barred during the applicable term from pursing their own lawsuits based on Sirius XM’s performance, distribution, reproduction, or other exploitation of their Pre-1972 Sound Recordings in the United States. The final judgment entered includes, and is binding on, all Settlement Class Members.

What are the Settlement Benefits?
Members of the Settlement Class are eligible to receive a share of a $25 million Settlement Fund and a royalty rate of up to 3.5% on future performances for a period of 10 years. If Sirius XM loses certain appeals, Sirius XM will pay more money into the Settlement Fund (up to $10 million more to be distributed to Settlement Class Members); if Sirius XM wins those appeals, the royalty rate on future performances will be reduced, possibly to zero. At a minimum, the $25 million payment for past performances will still be paid. See FAQ 3 for more information on the Settlement benefits.

Am I a Member of the Settlement Class?
You qualify as a member of the Settlement Class if you own a pre-1972 recording(s) that was performed, distributed, reproduced, or otherwise exploited by Sirius XM in the United States without a license or authorization to do so during the period from August 1, 2009 through November 14, 2016. The deadline for exclusion and objecting to the Settlement has passed.

How do I Participate in the Settlement Distribution?
Beginning 15 days after the Effective Date of the Settlement, Settlement Class Members will have until December 31, 2017 to make a claim of ownership of their Pre-1972 Sound Recordings. Please check back to this website on June 30, 2017 for a link to the Royalty Claims Website and more information on how to submit their claims of ownership.

How do I Qualify for a Payment from the Settlement once the Claiming Period begins on
June 30, 2017?
Settlement Fund Eligibility

A Settlement Class Member must timely and validly submit a completed claim form by following the steps below:

  1. Visit this site to click on a link to the claim filing website and complete the online claim filing process. You may also complete your submission by downloading a PDF version of the claim form and mailing to the appropriate Claims Administrator.
  2. Part of the claim filing process will require the Settlement Class Member to do the following:
    1. Identify each Pre-1972 Sound Recording owned by provided the (i) title, (ii) artist, and (iii) album and/or label; and
    2. Represent and warrant that the Settlement Class member owns all right, title, and interest in such recording(s).

All members of the Settlement Class who establish their entitlement to participate in the Settlement will be entitled to a pro rata share of the Settlement Payment based on the number of historical plays of the Settlement Class Members’ Pre-1972 Sound Recordings.

Settlement Class Members will have until December 31, 2017 to make a claim

See FAQ 3 For more information on eligibility of a share of the Settlement Fund.

Royalty Program Eligibility

To qualify for a payment from the Royalty Program, a Settlement Class Member must properly submit an uncontested claim to the Royalty Administrator for specific Pre-1972 Sound Recording(s) it claims to own or control by identifying each Pre-1972 Sound Recording owned by providing the (i) title, (ii) artist, (iii) album, (iv) label, (v) ISRC (if known), and (vi) date first fixed, in each case for each applicable Pre-1972 Sound Recording owned, and must represent and warrant that it owns all right, title, and interest in such recording(s).

Class Counsel retained Music Reports, Inc. to serve as the future Royalty Administrator which will facilitate the overall Royalty Program, including the Royalty Claims Website. For more information, you may view the Services Agreement between Class Counsel and Music Reports, Inc. here.