Cumulus Complaint

Case 2:15-cv-06269-PA-AGR Document 1 Filed 08/18/15 Page 1 of 19 Page ID #:1
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McKOOL SMITH HENNIGAN, P.C.

RODERICK G. DORMAN (SBN 96908)
rdorman@mckoolsmithhennigan. com
ROBERT E. ALLEN (SBN 166589)
rallen@mckoolsmithhennigan.com
LAWRENCE M. HADLEY (SBN 157728)
ldadley@mckoolsmithhennigan. com
-ALAN P. BLOCK (SBN 143783)
ablock@mckoolsmithhennigan.com
865 S. Figueroa St., Suite 2900
Los Angeles, CA 90017
T: (213) 694-1200; F: (213) 694-1234
MILLER LAW LLC
MARVIN A. MILLER (pro hac vice application pending)
mmiller@millerlawllc.com
ANDREW SZOT (pro hac vice application pending)
aszot@millerlawllc.com
KATHLEEN BOYCHUCK (pro hac vice application pending)
kboychuck@maillerlawllc.com
115 S. LaSalle Street, Suite 2910
Chicago, IL 60603
T: (312) 332-3400; F: (312) 676-2676
Attorneys for Plaintiff
ABS ENTERTAINMENT, INC.
UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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ABS ENTERTAINMENT, INC., an

Arkansas corporation, each individually
and on behalf of all others similarly
situated.
Plaintiff,
v.
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CUMULUS MEDIA INC., a Delaware

corporation; CUMULUS
BROADCASTING LLC, a Nevada
limited liability company; and DOES 1
through 10,
Case No. 2: 15-cv-6269

CLASS ACTION COMPLAINT
1. VIOLATION OF CALIFORNIA
CIVIL CODE 980(a)(2);
2. MISAPPROPRIATION;
3. VIOLATION OF CALIFORNIA
BUSINESS AND PROFESSIONS
CODE 17200; and
4. CONVERSION.
DEMAND FOR JURY TRIAL
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Defendants.
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Plaintiff, ABS Entertainment, Inc. ("ABS") ("Plaintiff'), individually and on
behalf of all other similarly situated owners of sound recordings, hereby complains and
alleges as follows:
PRELIMINARY STATEMENT
1.
This is a class action on behalf of owners of sound recordings to obtain
injunctive relief and monetary damages sustained by Plaintiff and the Class because
the Defendants have delivered music content through broadcast radio channels, HD
radio channels, the Internet and mobile devices without consent of or licenses from the
Plaintiff and the Class. As a result of their pernicious, improper and illegal conduct,
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Defendants have reaped hundreds of millions of dollars that rightfully belong to
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Plaintiff and the Class.
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Defendant Cumulus Media Inc. (through itself and its subsidiaries,
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including Cumulus Broadcasting LLC) (collectively, "Cumulus") is one ofthe leading
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operators in the United States of media and entertainment services via broadcast and
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digital delivery. Specifically, Cumulus delivers music content through broadcast (AM
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and FM) radio channels, the Internet and its stations' websites, and through one or
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more Cumulus mobile applications on smart phones, tablets and consoles. According
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to Cumulus, as of December 31, 2014, it owned approximately 460 domestic radio
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stations, servicing about 90 U.S. media markets, including 8 of the top 10 markets.
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(Delivery by Cumulus of musical content through AM and FM radio stations shall
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hereafter be described as the "Broadcast Service"). Many of its stations in the
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Broadcast Service are the most popular music stations in the applicable market,
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including in Los Angeles, where Cumulus owns and operates 95.5 KLOS.
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3.
Cumulus also streams to listeners the digital simulcast of the sound
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recordings being performed on its radio stations through the Internet and mobile
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application. (Delivery by Cumulus of musical content through the Internet shall
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hereafter be described as the "Internet Service"). The Broadcast Service and the
Internet Service are sometimes referred to collectively as the "Music Service."

4.
performance royalties to copyright owners of sound recordings of musical
performances that initially were fixed (i.e., recorded) prior to February 15, 1972 ("Pre-
1972 Recordings"). Sound recordings initially fixed on or after February 15, 1972 are
subject to federal copyright protection under the United States Copyright Act and are
not the subject of this lawsuit.

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Cumulus has not obtained performance rights licenses or paid public
Pre-1972 recordings comprise the historical backbone of the music
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industry. From Tin Pan Alley to the Big Band era to the Summer of Love, those
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recordings have defined generations and include the recordings of legendary artists
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such as Al Green, Elvis Presley, Frank Sinatra, The Turtles and The Beatles.
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Cumulus understands the value ofPre-1972 Recordings to its Music
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Service but has ignored the obligation to obtain licenses to exploit those recordings.
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Instead, Cumulus has chosen to copy tens of thousands of Pre-1972 Recordings to its
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servers and to transmit, copy, perform, broadcast and stream them to its millions of
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users on a daily basis without any authorization. By selling advertisements and
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through other means, Cumulus profits handsomely from its exploitation of Pre-1972
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Recordings.
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Because Cumulus has chosen to operate the Music Service without licenses
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for Pre-1972 Recordings, Cumulus is now liable under California law for violation of
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California Civil Code 980(a)(2), misappropriation, violation of California Business
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& Professions Code 17200, and conversion for its unauthorized reproduction,
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distribution, and public performance of those recordings.

THE PARTIES
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8.
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ABS is a corporation duly organized and existing under the laws of
Arkansas, with its principal place of business in West Memphis, Arkansas.
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9.
Through a series of transactions, ABS acquired the exclusive ownership in
the sound recordings of Al Green, Willie Mitchell, Ann Peebles, Syl Johnson, Otis
Clay, Bill Black Combo, and O.V Wright, a representative sample of the titles of
which are specified on the attached Schedule "A" and incorporated herein by reference
(the "Recordings").
10. Plaintiff has been and continues to be engaged in the business of
distributing, selling, and/or licensing the reproduction, distribution, sale, and
performance of the Recordings including in records, audiovisual works, and for
streaming (i.e., performing) and downloading over the Internet.
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11. Cumulus Media Inc. is a corporation duly organized and existing under the
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laws of Delaware, with its principal place of business in Atlanta, Georgia. Cumulus
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Media Inc. is the parent company of Cumulus Broadcasting LLC, and owns and
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operates the Music Service, which broadcasts music to its listeners and delivers high
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quality streams of music to its users.
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12. Cumulus Broadcasting LLC is a limited liability company duly organized
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and existing under the laws ofNevada, with its principal place of business in Atlanta,
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Georgia. Cumulus Broadcasting LLC is a wholly-owned subsidiary of Defendant
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Cumulus Media Inc.
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13. The true names and capacities, whether individual, corporate, associate or
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otherwise, ofDefendants named herein as Does 1 through 10, inclusive, are unknown
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to Plaintiff who therefore sues said Defendants by such fictitious names. Plaintiff will
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amend this Complaint to allege their true names and capacities when such have been
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ascertained. Upon information and belief, each of the Doe Defendants is responsible
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in some manner for the occurrences herein alleged, and Plaintiffs injuries as herein
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alleged were proximately caused by such Defendants' acts or omissions.

14. Plaintiff is informed and believes, and on that basis alleges, that at all times
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mentioned in this Complaint, Cumulus and each of the Doe Defendants was the agent
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of each other and, in doing the things alleged in this Complaint, was acting within the
course and scope of such agency.
JURISDICTION AND VENUE
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15. Jurisdiction exists pursuant to 28 U.S.C. 1332(d)(2) because the matter in
controversy exceeds the sum or value of $5 million (exclusive of interest and costs), it
is a class action in which a member of a Class (defined in paragraph 24 below) is a
citizen of a State different from Cumulus, and the number of members of the proposed
Class exceeds 100.
16. This Court has personal jurisdiction over Cumulus because: (a) Cumulus is
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engaged in a continuing course of tortious conduct in California by publicly
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performing, reproducing, and distributing Pre-1972 Recordings within the State of
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California including, without limitation, through its broadcasting on its 58 owned and
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operated radio stations in California; and (b) Cumulus's conduct causes injury to
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Plaintiff and the Class and their intellectual property in California.
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17. Venue in this District exists pursuant to 28 U.S.C. 1391(b) and (c)
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because Cumulus is subject to personal jurisdiction in this District and because a
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substantial part of the events or omissions giving rise to the claims occurred in this
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District. Specifically, Cumulus owns and operates at least 10 radio stations in the
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Central District of California that broadcast music to California residents and digitally
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simulcasts the transmissions of at least 50 radio stations from the Central District of
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California.
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FACTS COMMON TO ALL CLAIMS FOR RELIEF
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18. Cumulus provides the Broadcast Service to members of the public in
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California and elsewhere, and broadcasts sound recordings through numerous radio
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stations throughout California, including, without limitation, the following:
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(a)
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Fresno: (i) KSKS- 93.7 FM; (ii) KMGV- 97.9 FM; and (iii) KWYE
- 101.1 FM;
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(b)
Los Angeles: KLOS- 95.5 FM;
(c)
Modesto/Stockton: (i) KATM- 103.3 FM; (ii) KHKK- 104.1 FM;
(iii) KHOP- 95.1 FM; (iv) KJOY- 99.3 FM; (v) KWIN- 97.7 FM;
and (vi) KWNN- 98.3 FM;
(d)
KHAY- 100.7 FM; and (iv) KRRF -106.3 FM; and
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Oxnard/Ventura: (i) KVYB- 103.3 FM; (ii) KBBY- 95.1 FM; (iii)
San Francisco/San Jose: (i) KFOG- 104.5 FM; (ii) KSJO- 92.3 FM;
(iii) KFFG- 97.7 FM; and (iv) KSAN- 107.7 FM.
Among the sound recordings that Cumulus publicly performs, reproduces and
distributes through the Broadcast Service are the Recordings.
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19. The Internet Service is provided by Cumulus to members of the public in

California and elsewhere, and delivers and streams (and licenses others to deliver and
stream) music through its station's websites, and through smart phones and tablets
through its downloadable Android and iOS Apps. Among the sound recordings that
Cumulus publicly performs, reproduces, and distributes through the Internet Service
are the Recordings.
20. Cumulus understands that having a vast and complete range and array of
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music is critical to the success of any music service, which is why Pre-1972
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Recordings constitute a significant part of the Music Service. Through the Internet
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Service, Cumulus offers and advertises live radio simulcast, which allows a user to
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select and listen to the live audio simulcast of hundreds of radio stations throughout the
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United States, inclusive of radio stations owned by Cumulus. Many of these radio
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stations are dedicated to Pre-1972 Recordings. Cumulus promotes these stations in
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order to establish and increase its user base, popularity, and revenue.
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21. Plaintiff is informed and believes, and on that basis alleges, that in order to
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populate the Music Service's databases and in order to broadcast and stream musical
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recordings to the public, Cumulus has reproduced and copied and continues to
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reproduce and copy Pre-1972 Recordings to one or more servers and storage devices,
and uses technology or systems that results in one or more copies of Pre-1972
Recordings being distributed to its users' computers or storage devices.
22. Cumulus knows that it does not have any license, right, or authority to
reproduce, perform, distribute or otherwise exploit via the Music Service any Pre-1972
Recordings (including the Recordings). Cumulus also knows which of the recordings
its reproduces, performs, distributes or otherwise exploits via the Music Service are
Pre-1972 Recordings.
23. Cumulus's entire business is built around selling access to music and
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selling the music. Cumulus delivers audio advertisements to its users in between songs
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and displays (through the Internet Service, including mobile apps) visual ads while
music is playing.
CLASS ACTION ALLEGATIONS

24. Plaintiff brings this action, pursuant to Fed. R. Civ. P. 23, on behalf of
itself individually and on behalf of all other similarly situated owners of Pre-1972
recordings, which recordings were reproduced, perfonned, distributed or otherwise
exploited by Cumulus via the Music Service in California. The proposed Class is
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comprised of and defined as follows:
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All owners of sound recordings of musical performances that
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initially were "fixed" (i.e., recorded) prior to February 15, 1972,
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which sound recordings were reproduced, performed, distributed
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and/or otherwise exploited by Cumulus via any form or method of
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delivery or storage (e.g., terrestrial broadcast, Internet, computer,
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server, etc.) in California (the "Class").
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25. This action may be properly brought and maintained as a class action
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because there is a well-defined community of interest in the litigation and the members
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of the proposed Class are clearly and easily ascertainable and identifiable.
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26. The Class for whose benefit this action is brought is so numerous and
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geographically dispersed that joinder of all members ofthe Class is impracticable.
Plaintiff is informed and believes that there are hundreds or thousands of members of
the Class whose identity can be readily ascertained from third party, music industry
sources and from Cumulus's database files and records. Therefore, the Class can be
readily located and notified of this action.

27. Plaintiffs claims are typical of the claims of the members of the Class, and
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Plaintiffs interests are consistent with and not antagonistic to those of the Class it
seeks to represent. Plaintiff and all members of the Class have sustained actual
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pecuniary loss and face irreparable harm arising out of Cumulus's continued course of
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conduct as complained of herein .
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28. Plaintiff does not have any interests that are adverse to, or which conflict
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with, the interests of the absent members of the Class and it is able to fairly and
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adequately represent and protect the interests of such Class. Plaintiff has raised viable
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statutory, misappropriation, unfair business practices, and conversion claims of the
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type reasonably expected to be raised by members of the Class, and will vigorously
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pursue those claims. Plaintiff is represented by experienced, qualified and competent
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counsel, who are experienced in complex commercial litigation, class action
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procedures, and the legal subject matter of this dispute. Plaintiff and their counsel are
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committed to prosecuting this action vigorously.
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29. Common questions of fact or law exist as to all members of the Class that
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predominate over any questions affecting only individual members of the Class. These
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common legal or factual questions, include but are not limited to, the following:
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(A)
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Whether Cumulus reproduced, performed, distributed or otherwise
exploited via the Music Service Pre-1972 Recordings in California;
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(B)
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Whether Cumulus's reproduction, performance, distribution or
other exploitation via the Music Service ofPre-1972 Recordings in California
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constitutes a violation of California Civil Code 980(a)(2);
(C)
other exploitation via the Music Service of Pre-1972 Recordings in California
constitutes an unfair business practice in violation of California Business &
Professions Code 17200;
(D)
other exploitation via the Music Service ofPre-1972 Recordings in California
constitutes misappropriation;
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other exploitation via the Music Service of Pre-1972 Recordings in California
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constitutes conversion;
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The basis and method for determining and computing damages
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and/or restitution and disgorgement;
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(G)
Whether, pursuant to California Civil Code 3294, Cumulus is
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guilty of oppression, fraud, or malice thereby entitling the members of the Class
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to an award of punitive damages; and
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Whether Cumulus's conduct is continuing thereby entitling the
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members of the Class to injunctive or other relief.
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30. A class action is superior to other available methods for the fair and
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efficient adjudication of this controversy since individual litigation of the claims of all
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class members is impracticable. Thus, for the vast majority of the members of the
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Class, the expense and burden of individual litigation would not justify pursuing the
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claims individually. Even if every member of the Class could afford to pursue
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individual litigation, the Court system could not. It would be unduly burdensome to
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the courts in which individual similar litigation of numerous cases would proceed.
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Individualized litigation would also present the potential for varying, inconsistent, or
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contradictory judgments and would magnify the delay and expense to all parties and to
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the court system resulting from multiple trials of the same factual issues. By contrast,
the maintenance of this action as a class action presents few, if any, management
difficulties, conserves the resources of the parties and of the court system, and protects
the rights of each member of the Class. Plaintiff does not anticipate any difficulty in
the management of this action as a class action.
FIRST CLAIM FOR RELIEF
(For Violation of California Civil Code 980(a)(2) Against All Named Defendants
and Does 1 through 10)
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31. Plaintiff hereby incorporates the allegations set forth above in paragraphs 1
through 30 above, as though fully set forth herein.
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32. Pursuant to California Civil Code 980(a)(2), Plaintiff and the members of
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the Class possess exclusive ownership interests in and to the Pre-1972 Recordings,
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including the artistic performances embodied in those recordings.
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33. Through its unauthorized reproduction, performance, distribution, or other
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exploitation via the Music Service of Pre-1972 Recordings (including the Recordings)
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in California, Cumulus has infringed the exclusive ownership interests in and to the
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Pre-1972 Recordings in violation of California Civil Code 980(a)(2).
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34. As a direct and proximate consequence of Cumulus's violation of
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California Civil Code 980(a)(2), Cumulus has received and retained money and
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value that rightfully belongs to Plaintiff and the members of the Class.
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3 5. As a direct and proximate consequence of Cumulus's violation of
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California Civil Code 980(a)(2), Plaintiff and the Class have been damaged in an
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amount that is not as yet fully ascertained but which Plaintiff will ascertain and present
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through competent evidence at trial, but which is no less than $5 million.
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36. Cumulus's conduct is causing, and unless enjoined and restrained by this
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Court will continue to cause Plaintiff and the Class great and irreparable injury that
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cannot fully be compensated or measured in money. Plaintiff and each member of the
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Class do not have an adequate remedy at law. Plaintiff and each member of the Class
are entitled to temporary, preliminary and permanent injunctions, prohibiting further
violation of the ownership interests of Plaintiff and each member of the Class in the
Pre-1972 Recordings.
SECOND CLAIM FOR RELIEF
(For Misappropriation Against All Named Defendants and Does 1 Through 10)
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38. Pursuant to California Civil Code 980(a)(2) and California common law,
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Plaintiff and the Class possess exclusive ownership interests in and to the Pre-1972
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Recordings, including the artistic performances embodied in those recordings.
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39. Plaintiff and its predecessors in interest invested substantial time and
money in developing the Recordings.
40. Because Cumulus does not obtain licenses, it does not incur any of the
costs that a licensee is otherwise obligated to pay in order to reproduce, perform,
distribute or otherwise exploit via the Music Service Pre-1972 Recordings (including
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the Recordings).
41. Cumulus has misappropriated, and continues to misappropriate, for its own
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commercial benefit, the exclusive ownership interests in and to the Pre-1972
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Recordings reproducing, performing, distributing or otherwise exploiting via the Music
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Service Pre-1972 Recordings (including the Recordings).

42. As a direct and proximate consequence of Cumulus's misappropriation,
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Cumulus has received and retained money and value that rightfully belongs to Plaintiff
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and the Class.

43. As a direct and proximate consequence of Cumulus's misappropriation,
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Plaintiff and the Class have been damaged in an amount that is not as yet fully
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ascertained but which Plaintiff will ascertain and present through competent evidence
at trial.
44. Plaintiff is informed and believes, and on that basis alleges, that in
engaging in the conduct described herein, Cumulus acted with oppression, fraud and/or
malice. Cumulus's conduct has been despicable and undertaken in conscious disregard
of the rights of Plaintiff and the Class. Accordingly, Plaintiff and the Class are entitled
to an award of punitive damages against Cumulus in an amount sufficient to punish
and make an example of it.
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Court, will continue to cause, Plaintiff and the Class great and irreparable injury that
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cannot fully be compensated or measured in money. Plaintiff and the Class do not
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have an adequate remedy at law. Plaintiff and the Class are entitled to temporary,
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preliminary and permanent injunctions, prohibiting further violation of the ownership
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interests of Plaintiff and the Class in the Pre-1972 Recordings.
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THIRD CLAIM FOR RELEIF
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(For Unfair Business Practices Against All Named Defendants and Does 1
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Through 10)
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48. Cumulus's conduct in reproducing, performing, distributing, or other
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exploitation via the Music Service Pre-1972 Recordings (including the Recordings)
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constitutes a misappropriation of the property rights of the Plaintiff and the Class in the
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Pre-1972 Recordings and a violation of California Civil Code 980(a)(2).
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49. By misappropriating the property rights of the Plaintiff and each member
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of the Class in the Pre-1972 Recordings and by violating California Civil Code
980(a)(2), Cumulus has engaged in unfair business practices in violation of California
Business & Professions Code 17200.
50. As a direct and proximate consequence of its violation of California
Business & Professions Code 17200, Cumulus has received and retained money and
value that rightfully belongs to Plaintiff and the Class.

51. As a direct and proximate result of Cumulus's conduct, Plaintiff and each
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member of the Class are entitled to restitution and disgorgement under California
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Business & Professions Code 17200 in an amount that is not as yet fully ascertained
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but which Plaintiff will ascertain and present through competent evidence at trial.
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malice. The conduct of Cumulus has been despicable and undertaken in conscious
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disregard of the rights of Plaintiff and the Class. Accordingly, Plaintiff and the Class
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are entitled to an award of punitive damages against Cumulus in an amount sufficient
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to punish and make an example of it.
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Court, will continue to cause Plaintiff and the Class great and irreparable injury that
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FOURTH CLAIM FOR RELIEF
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(For Conversion Against All Named Defendants and Does 1 Through 10)
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56. By reproducing, performing, distributing or otherwise exploiting via the
Music Service Pre-1972 Recordings (including the Recordings), Cumulus has
converted for its own use Plaintiffs and the Class's property rights in the Pre-1972
Recordings and has dispossessed each of their of property rights.

57. As a direct and proximate consequence of its conversion, Cumulus has
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received and retained money and value that rightfully belongs to Plaintiff and the
Class.
58. As a direct and proximate consequence of Cumulus's conversion, Plaintiff
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and the Class have been damaged in an amount that is not as yet fully ascertained but
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which Plaintiff will ascertain and present through competent evidence at trial.
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malice. Cumulus's conduct has been despicable and undertaken in conscious disregard
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of the rights of Plaintiff and each member of the Class. Accordingly, Plaintiff and the
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Class are entitled to an award of punitive damages against Cumulus in an amount
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sufficient to punish and make an example of it.
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Court, will continue to cause Plaintiff and the Class great and irreparable injury that
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PRAYER
WHEREFORE, Plaintiff, on behalf of themselves and all other members of the
Class, pray for Judgment against Cumulus and the Doe defendants, and each of them,
as follows:
A.
Determining that this is a proper class action maintainable pursuant to Rule
23 of the Federal Rules Civil Procedure, and certifying Plaintiff as a Class
Representative, and appointing Plaintiffs counsel as Class Counsel.

B.
8
9
million according to proof.

C.
10
11
On all claims other than the Third, compensatory damages in excess of $5
On the third claim, restitution and disgorgement of Cumulus's unlawful
proceeds and revenues, including Cumulus's gross profits, in excess of $5 million.

D.
On all claims other than the first, punitive and exemplary damages
according to proof at trial.

E.
On all claims, a temporary, preliminary, and permanent injunction
enjoining and restraining Cumulus, and their respective agents, servants, directors,
officers, principals, employees, representatives, subsidiaries and affiliated companies,
successors, assigns, and those acting in concert with them or at their direction, from
18
infringing, misappropriating, or converting, directly or indirectly, in California the
19
exclusive ownership interests in and to the Pre-1972 Recordings, including the artistic
20
performances embodied in those recordings, including without limitation by directly or
21
indirectly copying, reproducing, downloading, distributing, communicating to the
22
public, uploading, linking to, transmitting, publicly performing, or otherwise
23
exploiting in any manner any of the Pre-1972 Recordings, via the Music Service or
24
otherwise.
25
F.
On all claims, pre- and post-judgment interest.
26
G.
For such fees and costs (including reasonable attorneys' fees) incurred
27
herein as permitted by law.
28
14
1116419vl
H.
For such other and further relief as the Court deems just and proper.
2
3
DATED: August 17, 2015

MILLER LAW LLC
4
5
Bv:
Is/ Robert E Allen
Robert E. Allen
ABS ENTERTAINMENT. INC.
6
7
8
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10
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17
18
19
20
21
22
23
24
25
26
27
28
15
1116419vl
DEMAND FOR JURY TRIAL
Plaintiff, ABS ENTERTAINMENT, INC., demands a trial by jury ofthe claims
for relief so triable as alleged in this Complaint.
4
5
DATED: August 17,2015

MILLER LAW LLC
6
7
Bv:
Is! Robert E Allen

Robert E. Allen
ABS ENTERTAINMENT. INC.
8
9
10
11
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1!16419vl
Schedule A
Representative Sampling of Plaintiff's Pre-1972
Sound Recordings Infringed
Title
Artist
Ace Cannon
Tuff
Ace Cannon
Bllues (Stay Away From Me)
Ace Cannon
Cotton Fields
Ace Cannon
Search in
AI Green
Want to Hold Your Hand
AI Green
One Woman
AI Green
You Say It
AI Green
Right Now, Right Now
AI Green
I Can't Get Next To You
AI Green
Driving Wheel
AI Green
Tired of Being Alone
AI Green
Let's Stay Together
Ann Peebles
Walk Away
Ann Peebles
Give Me Some Credit
Ann Peebles
Generation Gap Between Us
Ann Peebles
Part Time Love
Ann Peebles
I Pity The Fool
Bill Black Combo
Smokie, Part 2
Bill Black Combo
White Silver Sands
Bill Black Combo
Josephine
Bill Black Combo
Don't Be Cruel
Bill Black Combo
Blue Tango
Bill Black Combo
Hearts of Stone
Bill Black Combo
Ole Buttermilk Sky
Bill Black Combo
Movin
Bill Black Combo
Twist Her
Bill Black Combo
Do It - Rat Now
Bill Black Combo
Money Shine
Otis Clay
That's How It Is (When You're In Love
Otis Clay
A Lasting Love
Otis Clay
She's About A Mover
-1SCHEDULE A
1116424vl
O.V. Wright
You're Genna Make Me Cry
O.V. Wright
Eight Men, Four Women
O.V. Wright
Heartaches, Heartaches
O.V. Wright
Oh Baby Mine
O.V. Wright
I'll Take Care of You
O.V. Wright
Ace of Spades
O.V. Wright
When You Took Your Love From Me
O.V. Wright
A Nickel and a Nail
Syl Johnson
Come On Sock It To Me
Syl Johnson
Different Strokes
Syl Johnson
Dresses Too Short
Syl Johnson
Is It Because I'm Black
Syl Johnson
Concrete Reservation
Syl Johnson
One Way Ticket to Nowhere
Syl Johnson
Get Ready
Wilie Mitchell
20-75
Wilie Mitchell
Percolatin
Wilie Mitchell
Buster Browne
Wilie Mitchell
Bad Eye
Wilie Mitchell
Slippin' and Slidin'
Wilie Mitchell
Soul Serenade
Wilie Mitchell
Prayer Meetin'
Wilie Mitchell
30-60-90
Wilie Mitchell
My Babe
-2SCHEDULE A
1116424vl

Cumulus Complaint

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Case 2:15-cv-06269-PA-AGR Document 1 Filed 08/18/15 Page 1 of 19 Page ID #:1

McKOOL SMITH HENNIGAN, P.C.

FOR THE CENTRAL DISTRICT OF CALIFORNIA

ABS ENTERTAINMENT, INC., an

CUMULUS MEDIA INC., a Delaware

Case No. 2: 15-cv-6269

CLASS ACTION COMPLAINT

Case 2:15-cv-06269-PA-AGR Document 1 Filed 08/18/15 Page 2 of 19 Page ID #:2

Plaintiff, ABS Entertainment, Inc. ("ABS") ("Plaintiff'), individually and on

This is a class action on behalf of owners of sound recordings to obtain

Defendants have reaped hundreds of millions of dollars that rightfully belong to

Plaintiff and the Class.

Defendant Cumulus Media Inc. (through itself and its subsidiaries,

including Cumulus Broadcasting LLC) (collectively, "Cumulus") is one ofthe leading

to Cumulus, as of December 31, 2014, it owned approximately 460 domestic radio

(Delivery by Cumulus of musical content through AM and FM radio stations shall

hereafter be described as the "Broadcast Service"). Many of its stations in the

Cumulus also streams to listeners the digital simulcast of the sound

application. (Delivery by Cumulus of musical content through the Internet shall

Case 2:15-cv-06269-PA-AGR Document 1 Filed 08/18/15 Page 3 of 19 Page ID #:3

Internet Service are sometimes referred to collectively as the "Music Service."

performance royalties to copyright owners of sound recordings of musical

not the subject of this lawsuit.

Cumulus has not obtained performance rights licenses or paid public

Pre-1972 recordings comprise the historical backbone of the music

Cumulus understands the value ofPre-1972 Recordings to its Music

users on a daily basis without any authorization. By selling advertisements and

California Civil Code 980(a)(2), misappropriation, violation of California Business

distribution, and public performance of those recordings.

ABS is a corporation duly organized and existing under the laws of

Arkansas, with its principal place of business in West Memphis, Arkansas.

Case 2:15-cv-06269-PA-AGR Document 1 Filed 08/18/15 Page 4 of 19 Page ID #:4

Through a series of transactions, ABS acquired the exclusive ownership in

10. Plaintiff has been and continues to be engaged in the business of

distributing, selling, and/or licensing the reproduction, distribution, sale, and

performance of the Recordings including in records, audiovisual works, and for

streaming (i.e., performing) and downloading over the Internet.

quality streams of music to its users.

12. Cumulus Broadcasting LLC is a limited liability company duly organized

Georgia. Cumulus Broadcasting LLC is a wholly-owned subsidiary of Defendant

Cumulus Media Inc.

alleged were proximately caused by such Defendants' acts or omissions.

Case 2:15-cv-06269-PA-AGR Document 1 Filed 08/18/15 Page 5 of 19 Page ID #:5

course and scope of such agency.

JURISDICTION AND VENUE

15. Jurisdiction exists pursuant to 28 U.S.C. 1332(d)(2) because the matter in

is a class action in which a member of a Class (defined in paragraph 24 below) is a

Class exceeds 100.

engaged in a continuing course of tortious conduct in California by publicly

performing, reproducing, and distributing Pre-1972 Recordings within the State of

Plaintiff and the Class and their intellectual property in California.

because Cumulus is subject to personal jurisdiction in this District and because a

FACTS COMMON TO ALL CLAIMS FOR RELIEF

18. Cumulus provides the Broadcast Service to members of the public in

stations throughout California, including, without limitation, the following:

Case 2:15-cv-06269-PA-AGR Document 1 Filed 08/18/15 Page 6 of 19 Page ID #:6

Los Angeles: KLOS- 95.5 FM;

Modesto/Stockton: (i) KATM- 103.3 FM; (ii) KHKK- 104.1 FM;

and (vi) KWNN- 98.3 FM;

KHAY- 100.7 FM; and (iv) KRRF -106.3 FM; and

19. The Internet Service is provided by Cumulus to members of the public in

stations are dedicated to Pre-1972 Recordings. Cumulus promotes these stations in

Case 2:15-cv-06269-PA-AGR Document 1 Filed 08/18/15 Page 7 of 19 Page ID #:7

Recordings being distributed to its users' computers or storage devices.