Citing Springsteen

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Springsteen 2
Continuing with a Bruce Springsteen themed week as I return to regular blogging . . .

A few years ago, I wrote an article — Courts Can Make Better Use of 'The Boss" — about judges citing Bruce Springsteen's music. Here are the opening paragraphs:

Springsteen usually comes in third — behind Bob Dylan and the Beatles and slightly ahead of Paul Simon — on the list of musicians whose lyrics are most frequently cited in legal articles and judicial opinions. Several law review articles, and at least one symposium, have been dedicated to the characters in his songs, particularly those on the margins, living in the darkness on the edge of town.

These individuals are appealing to law professors and commentators, particularly those interested in social justice, because, as professor Abbe Smith noted in her article “The Dignity and Humanity of Bruce Springsteen’s Criminals,” Springsteen “takes the least popular, least sympathetic among us, and offers up their stories to teach us something about ourselves.” However, when judges cite Springsteen, something seems to get a little lost along the way.

The article then noted how one judge used the lyrics to "No Surrender" to describe a party's approach to discovery and another quoted "Badlands" in an insurance dispute about bags of coffee. Since I wrote this article, a few more judges have quoted Springsteen in their opinions, with mixed results.

One of the recent cases involved a repeat player! In my article, I noted that, in a 2011 decision, a Florida federal court judge had compared a party’s aggressive approach to discovery to the song "No Surrender" from "Born in the U.S.A.": “A ‘no surrender’ mentality may be perfectly appropriate for a Bruce Springsteen rock and roll song, but it is frequently unhelpful in litigation, as illustrated by the unfortunate scenario here.” Four years later, the same judge made a similar comparison in a different case: 

In the well-known “No Surrender” song released on his “Born in the U.S.A.” album, Bruce Springsteen noted, “Well, we made a promise we swore we'd always remember, no retreat, baby, no surrender.” Springsteen's “no surrender” philosophy may be fine for a rock and roll song about the importance of being true to one's own dreams and beliefs, but it is frequently unhelpful in litigation. It is particularly inapplicable and inappropriate here.

Miami Yacht Charters, LLC v. Nat'l Union Fire Ins. Co. of Pittsburgh Pennsylvania, 2015 WL 520846 (S.D. Fla. Feb. 9, 2015). Kudos to the judge for citing Springsteen, but I am still not sure if the comparison fits. 

In several other recent cases, however, the references to Springsteen were a better fit:

  • a California judge referred to "57 Channels (And Nothin' On)" when sympathizing with cable customers in a putative class action against the cable companies, among others, over licensing fees that increased the customers' bills: "With apologies to Bruce Springsteen, we appreciate the lament of cable television subscribers who feel that although they now receive 10 times 57 channels or more, mostly nothing's on that they wish to view." Fischer v. Time Warner Cable Inc., 234 Cal. App. 4th 784, 798 (2015); and
  • a federal judge in Pennsylvania cited "Glory Days" as an example of "a middle-aged man's wistful recollection of his youthful vigor." Flood v. Nat'l Collegiate Athletic Ass'n, 2015 WL 5785801 (M.D. Pa. Aug. 26, 2015).

As I was a few years back, however, I remain surprised at the lack of references to Springsteen's music from New Jersey state or federal court judges.

Ain’t No Stoppin’ Us Now . . . Third Circuit Affirms Arbitrators’ Ruling In Favor of Song Writing Duo

Aint no stoppin us now (pd)"Singer-songwriters John Whitehead and Gene McFadden were an integral part of the Philadelphia music scene in the 1970s." So begins the decision by the U.S. Court of Appeals for the Third Circuit in Whitehead v. The Pullman Group, LLC. (For the uninitiated, click here for a summary of the "Philadelphia Sound" to which this sentence refers and of which plaintiffs Whitehead and McFadden were a part.)

At issue in that case was Whitehead and McFadden's song catalog, which includes, among other things, the publishing rights to their biggest hit, "Ain't No Stoppin' Us Now." In 2002, defendant entered  into a contract with Whitehead and McFadden that gave him the exclusive right to purchase the catalog following a 180-day due diligence period. After this period, defendant had the right to terminate the contract upon written notice to Whitehead and McFadden. Defendant claimed that his due diligence revealed several tax liens that  diminished the value of the catalog. He claimed that he communicated this to Whitehead and McFadden over the phone. They responded that they would get back to him with more information, but instead contacted him and told him that they did not want to consummate the transaction, which defendant claimed was a breach of the agreement.

Several years later, after both Whitehead and McFadden died, their estates received an offer from Warner Chappell Music to purchase Whitehead and McFadden's song catalog. Shortly before the deal was completed, however, defendant wrote the estates and notified them of the existence of the 2002 agreement. (The estates were unaware of the deal with defendant prior to receiving this letter.) Shortly thereafter, Warner Chappell Music withdrew its offer. The estates then sued in state court seeking (1) a declaratory judgment that the 2002 contract was void, and (2) damages for defendant's alleged tortious interference with their deal with Warner Chappell Music. Defendant removed the lawsuit to federal court and counterclaimed for his own declaratory judgment and damages for the alleged breach of the 2002 contract. Both sides eventually agreed to arbitrate their disputes. 

 

Continue reading “Ain’t No Stoppin’ Us Now . . . Third Circuit Affirms Arbitrators’ Ruling In Favor of Song Writing Duo”