Unraveling the Complex World of Equitable Remedies in Radio Station Disputes

In today’s evolving legal landscape, radio stations, as significant players in the media and entertainment industry, are often at the epicenter of intricate legal battles. From ownership tussles to allegations of fraudulent activities, these disputes not only shape the future of the broadcasting entities involved but also have far-reaching implications for the industry as a whole. Delving deeper into this labyrinth, one might wonder: What are the equitable remedies available in disputes concerning radio station ownership and alleged fraud, especially when the broadcasting license hangs in the balance?

Legal Authorities and Case Law: A Guiding Beacon

The world of jurisprudence offers a plethora of equitable remedies that can be invoked in situations enveloped by radio station ownership conflicts and fraud allegations. Let’s explore some of these remedies:

  1. Injunctive Relief: An essential tool in the legal arsenal, injunctions can be pivotal in halting or mandating certain actions, especially when there’s a looming threat of ongoing damage1.
  2. Return of Physical Assets: Equitable orders can also direct the restitution of assets that have been unlawfully appropriated or withheld2.
  3. Sanctions for Bad-faith Conduct: Courts have the discretion to penalize parties that exhibit malice or deceitful behavior during proceedings3.

However, the plot thickens. The Federal Communications Commission (FCC) exclusively governs broadcasting licenses, creating a nuanced intersection of federal regulatory authority and state court jurisdiction4.

Case Law Insights

In re Pacific Land Sales, Inc., 187 B.R. 302 (B.A.P. 9th Cir. 1995) provides a fascinating perspective on this subject1. Here, the court evaluates the authority of a bankruptcy court to enjoin actions in other tribunals, including the FCC, in a dispute encapsulating the ownership of a radio station and its associated broadcast license.

Moreover, Newport Inv. Grp. v. Phila. Television Network, 1954 EDA 2022 (Pa. Super. Ct. Sep. 7, 2023) sheds light on the state court’s jurisdictional boundaries, especially when the return of physical assets, like broadcasting equipment, is sought4.

Final Thoughts

As we traverse the multifaceted terrains of radio station disputes, it’s evident that a blend of industry-specific nuances and overarching legal principles dictate the outcomes. While equitable remedies pave the way for justice, the FCC’s overarching authority on broadcasting licenses introduces a layer of intricacy. In such turbulent waters, armed with a deep understanding of case law and regulatory mandates, expert legal guidance becomes indispensable.

In re Pacific Land Sales, Inc., 187 B.R. 302 (B.A.P. 9th Cir. 1995)

In this case, the court it discusses the bankruptcy court’s authority to enjoin conduct before other tribunals, including the FCC, in a dispute over the ownership of a radio station and its broadcast license. However, the case does not specifically address equitable remedies, and it is not clear whether the bankruptcy court’s authority would extend to a non-bankruptcy context.

**”In 1986, the Debtor acquired a radio station (“KLHI”) known as FM-101, call letters KLHI, together with the FCC broadcast license. Kenneth S. Hayashi (“Hayashi”) was the former president and sole shareholder of the Debtor. ~~~~~~~~Hayashi incorporated an entity known as Pacific Isle Broadcasting, Inc. (“Pacific Isle”).”**

“Despite the transfer, the Debtor at all times considered KLHI to be one of its assets.”

**”The sale was concluded on April 23, 1991, for a total purchase price of $500,000, plus the assumption of KLHI’s liabilities.”**

Newport Inv. Grp. v. Phila. Television Network, 1954 EDA 2022 (Pa. Super. Ct. Sep. 7, 2023)

**The case is relevant to the research request because it discusses the authority of a state court to order the return of physical assets in a dispute over a radio station, while also addressing the exclusive jurisdiction of the FCC over the license to broadcast. However, the case does not directly address equitable remedies, and the citator status is unknown, so it is difficult to assess the weight of the authority.**

“PTNI contends that the trial court should have required Bernstein and Newport to exercise good faith to proactively return the assets to PTNI following the vacatur of the receivership, judgment, and assignment. See id. at 42. PTNI stresses that the harm it suffers is significant because it cannot develop programming, market, or sell the station, or construct new facilities without return of the license. See id. at 43.”

**”Therefore, we reverse this portion of the trial court’s order and direct the trial court to return the physical assets to PTNI. However, we also instruct the trial court to stay the execution of this transfer to allow the FCC to decide the license issue. See Johnson, 326 U.S. at 132 (concluding that “State power is amply respected if it is qualified merely to the extent of requiring it to withhold execution of that portion of its decree requiring retransfer of the physical properties until steps are ordered to be taken, with all deliberate speed, to enable the [FCC] to deal with new applications in connection with the station.”); In re Merkley, 94 F.C.C.2d at 838-39 (stating that “if an assignment application’s related contract of sale violated existing rules or policies, we would withhold our approval until the problem was corrected.”**

Tiab Communications Corp. v. Keymarket of Nepa, Inc., 263 F. Supp. 2d 925 (M.D. Pa. 2003)

**In this case, the court it discusses a dispute over the ownership of a radio station and the FCC operating license, and includes allegations of fraud. However, the case does not specifically address equitable remedies, so it only partially answers the research request.**

“Entry 77 (“Stip.”), ¶ 25.) 10. On April 10, 1995, an Asset Purchase Agreement for the WKRF-FM radio station, the FCC operating license, and related items was executed between Crystal and Keymarket. (PX-3.) 11.”

**”The FCC approved the assignment of the license from Crystal to Keymarket on June 2, 1995. (Id., Finding of Fact No. 14.) 18. Shortly after this approval, Keymarket’s Donald Alt wrote a memo to Kerby Confer, the President of Keymarket, and Robert Wright, Keymarket’s counsel.”**

“Crystal was subsequently forced into bankruptcy by its creditors and has consented to an order for relief under the provisions of 11 U.S.C. § 701 et seq. (Id., Finding of Fact No. 23.) 26.”

**Chambers v. Nasco, Inc., 501 U.S. 32 (1991)**

Chambers v. Nasco, Inc. is relevant to the research request because it discusses the inherent power of a court to impose sanctions for bad-faith conduct, which could include fraud. However, the case does not specifically address the issue of a broadcast license, so it is only partially relevant.

**”Trial had been set for February, 1985, but in January, Gray, on behalf of Chambers, filed a motion to recuse the judge. The motion was denied, as was the subsequent writ of mandamus filed in the Court of Appeals.”**

“The District Court entered judgment on the merits in NASCO’s favor, finding that the transfer of the properties to the trust was a simulated sale and that the deeds purporting to convey the property were “null, void, and of no effect.” 623 F. Supp., at 1385.”

**”Undeterred, Chambers convinced CTR officials to file formal oppositions to NASCO’s pending application for FCC approval of the transfer of the station’s license, in contravention of both the District Court’s injunctive orders and its judgment on the merits.”**

“Id., at 123. At the end of an extensive opinion recounting what it deemed to have been sanctionable conduct during this period, the court imposed sanctions against Chambers in the form of attorney’s fees and expenses totaling $996,644.65, which represented the entire amount of NASCO’s litigation costs paid to its attorneys.”

**State Street Bank Trust v. Arrow Comm., 833 F. Supp. 41 (D. Mass. 1993)**

This case discusses the FCC’s policy on security interests in broadcast licenses, and the extent to which a lien on a license is permissible. It is relevant to the research request insofar as it addresses the question of ownership and rights in a broadcast license. However, the case does not specifically address equitable remedies or fraud.

**”The Commission cited KDAN for the prohibition against reversions, and its refusal to grant licenses “where a former owner or licensee has retained . . . a right or power to regain the status of licensee through a reversion of stock control or the reassignment of the station license.” 94 FCC 2d at 831 (citation omitted). The Commission summarized its holding as follows: While the Commission has a general policy of not questioning the appointment of a receiver or trustee in bankruptcy by state and federal courts [or his request for temporary acquisition of a license], where such an appointment involves the enforcement of a reversionary interest in a broadcast license and the recognition of a security interest in that license by creditors, the application seeking consent to assign the broadcast license to the receiver or trustee is unacceptable for filing. [ Id. at 829.] In making this ruling, the Commission reiterated that a broadcast license “is not an owned asset or vested property interest so as to be subject to a mortgage, lien, pledge, attachment, seizure, or similar property right.” Id. at 830.”**

“The rationale for the Commission’s policy against security interests is not implicated by the Banks’ lien. This is not a circumstance in which “hypothecation endangers the independence of the licensee who is and who should be at all times responsible for and accountable to the Commission in the exercise of the broadcasting trust.””

**Waring v. WDAS Broadcasting Station, Inc., 327 Pa. 433 (Pa. 1937)**

The case discusses equitable remedies in the context of a dispute over the unauthorized broadcasting of a phonograph record. While the case does not directly address the research request, it may be relevant for its discussion of the common law right to privacy and the concept of unfair competition. However, the case is from 1937, so it is possible that the law has evolved significantly since then.

**”There are three major questions involved: (1) Have performers — in this case an orchestra — any enforceable property rights in their artistic interpretation of the work of a composer? (2) If so, to what extent can such rights be reserved at the time of what the law designates as “publication”? (3) As ancillary to such rights, under what circumstances can performers be afforded equitable relief on the ground of unfair competition? The property rights claimed by plaintiff are admittedly not the subject of protection under existing copyright laws.”**

Coe v. Dist. of Columbia Dep’t of Human Servs., 281 A.3d 603 (D.C. 2022)

**This case is somewhat relevant to the research request. It discusses the authority of an administrative law judge to order equitable relief, such as an injunction, in certain circumstances. However, the case does not specifically address the issue of a broadcast license, and the court ultimately remands the case for further proceedings.**

“DHS concedes, however, that the ALJ “found that the misapplication of law was contained in a District ‘policy.’ ” The ALJ found a policy because DHS was aware of the problem but rather than “declining to issue the Medicaid termination notice—and continuing to provide benefits—until it was able to perform the legally required eligibility determination,” it instead “chose to issue a notice of termination in violation of federal law.” DHS argues that the ALJ here was limited to either “sustaining or reversing the challenged mayoral action aggrieving”

**”But Shuman does not bar ALJs from imposing declaratory or injunctive relief in all circumstances. It simply reinforces that ALJs must operate within the bounds prescribed by statute.”**

“See Paschall , 871 A.2d at 468–69 (drawing a similar conclusion based on language in D.C. Code § 44–1003.09(c) that “the Mayor shall facilitate” the return of a successful hearing applicant).”

**Hologic, Inc. v. Minerva Surgical, Inc., 163 F. Supp. 3d 118 (D. Del. 2016)**

This case is somewhat relevant to the research request, as it discusses equitable title and the availability of equitable relief in a patent infringement case. However, the case does not specifically address the issue of a broadcast license, and the research request does not mention patent infringement.

**”SUE L. ROBINSON, United States District Judge At Wilmington this 29th day of February, 2016, having reviewed the motions filed by defendant Minerva Surgical, Inc. (“Minerva”) to transfer venue and to strike plaintiffs’ preliminary injunction motion for lack of standing, and the papers filed in connection thereto; IT IS ORDERED that Minerva’s motion to transfer (D.l.35) is denied, for the reasons that follow: 1. Minerva moves to transfer this action to the Northern District of California, where it maintains its headquarters and sole place of business.”**

“Arachnid, Inc. v. Merit Industries, Inc., 939 F.2d 1574, 1579 (Fed.Cir.1991) (emphasis in original). In contrast, “[a]n owner of the equitable title may seek redress against an infringer in a court of equity” where he may only seek equitable relief.”

**”As is evident from the above recitation, the issue of standing is rooted in the facts of each case.”**

BioTE Med. v. Medcalf, No. 05-20-00661-CV (Tex. App. Dec. 30, 2022)

**This case discusses equitable remedies such as a constructive trust and an accounting, which may be relevant to the research request. However, the case is from Texas and the research request does not specify a jurisdiction, so it is unclear whether the case is directly applicable.**

“H. Equitable Remedies-Constructive Trust and Accounting (count 14) In the sixth category addressing BioTE’s issue on appeal, we address whether the trial court erred when it granted no-evidence summary judgment on BioTE’s equitable remedies of a constructive trust (count 14) and an accounting (count 14).”

**”However, we have concluded the trial court erred to the extent it granted noevidence summary judgment with respect to BioTE’s claims for statutory misappropriation of trade secrets under the Texas Uniform Trade Secrets Act (count 9), violations of the Texas Theft Liability Act (count 6), unfair competition by common law misappropriation, unfair competition by trade-secret misappropriation, or both (count 10), and conversion (count 11). To the extent BioTE’s requests for a constructive trust and an accounting are based on those claims, it would be premature to determine summary judgment on these equitable remedies before the claims have been resolved. Because the underlying claims have not been resolved, it cannot be determined whether a constructive trust or an accounting would be an appropriate equitable remedy.”**

Cordts-Auth v. Crunk, LLC, Case No. 09-CV-8017 (KMK) (S.D.N.Y. Sep. 26, 2011)

**The case discusses an equitable exception to the continuous ownership requirement for derivative suits in circumstances where a plaintiff was divested of ownership through fraud. This exception could be relevant to the research request, which asks about equitable remedies in a dispute involving fraud. However, the case does not specifically address the issue of a broadcast license, and it is not clear whether the exception would apply under New York law.**

“Indeed, no allegation in the Amended Complaint says that Plaintiff was a member at the time she initiated this action, and such a failure would ordinarily be fatal to her derivative claims. Nevertheless, Plaintiff counters that “New York and many other jurisdictions . . . recognize an ‘equity-based’ exception to the continuous ownership requirement for derivative suits in circumstances in which [a plaintiff] was divested of his or her ownership through fraud.” (Id.) Plaintiff is correct that courts in several jurisdictions, including New York, have recognized an equitable exception to the general rule requiring a plaintiff to have an ownership interest at the time of commencing suit, which may be invoked where the transaction itself is the subject of alleged fraud. See, e.g., In re Guidant Corp. S’holders Derivative Litig., No. 03-CV-955, 2008 WL 833502, at *6-7 (S.D. Ind.”

**Securities Exchange Commission v. Credit Bancorp, Ltd., 99 Civ. 11395 (RWS) (S.D.N.Y. Aug. 21, 2003)**

“SECO contends that in the context of an SEC enforcement action in which a federal equity receivership has been created, equitable principles apply, and the Receiver, or the Court on behalf of the receiver, may set aside “at law” claims such as Deutsche Bank if necessary. Deutsche Bank and the Receiver, on the other hand, argue that the validity and extent of Deutsche Bank’s margin lien are governed by Revised Article 8 of the U.C.C. See Credit Bancorp III, 2000 WL 1752979, at *33 (“There appears to be no dispute that the broker-dealers’ interest are governed by the terms of the margin agreement between Credit Bancorp and the given institution and by Article 8 of the U.C.C.”).”

**”See Credit Bancorp III, 2000 WL 1752979, at *33 (noting that summary proceedings “have been held to satisfy the requirements of procedural due process in adjudicating claims of both parties and non-parties to assets held in a federal equity receivership.” (citingCommodity Futures Trading Comm’n v. Topworth Int’l, Ltd., 205 F.3d 1107, 1113 (9th Cir. 2000); S.E.C. v. Elliot, 953 F.2d 1560, 1567 (11th Cir. 1992))). SECO cites no caselaw for the proposition that “the Receiver’s equitable powers may trump claims for specific `at law’ relief made by the victims of a fraudulent scheme.” SECO Brief, at 3.”**

“Deutsche Bank’s argument that SECO’s unclean hands prevent it from prevailing under equitable principles will therefore not be considered.”

**Ordosgoitti v. Werner Enters. , 8:20-CV-421 (D. Neb. Mar. 4, 2021)**

“Ordosgoitti alleges Werner violated three specific provisions of the SAMP Act in conjunction with the leasing and operating agreements. First, Ordosgoitti alleges Werner violated the disclosure requirements of Neb. Rev. Stat. § 59-1732.”

**”Finally, Ordosgoitti claims Werner violated the SAMP Act by misrepresenting key facts in violation of Neb. Rev. Stat. § 59-1729 which provides any statements about earning potential must be substantiated by sufficient data.”**

“Therefore, both the leasing agreement and the operating agreement constitute seller-assisted marketing plans under Nebraska law.”

**”The Court thus agrees the Complaint states a claim in this regard.”**

Securities and Exchange Commission v. Credit Bancorp, 99 Civ. 11395 (RWS) (S.D.N.Y. Nov. 29, 2000)

**”B. The Law Governing The 33CC Intervenors’ Claims The SECO Intervenors maintain that their claims are governed by contract law, the Uniform Commercial Code (“U.C.C.”), and the law of bailment. The Receiver maintains that these claims are governed by the law of federal equity receiverships and, more specifically, the law governing the distribution of assets to defrauded investors in such receiverships.”**

“There Is No Right To Tracing In Equity It is typical in cases involving a receivership imposed on a corporate defrauder that the resources of the receivership estate are insufficient to allow all the victims of the fraud to recoup their losses, as is the situation here.”

**”LiButti v. United States, 178 F.3d 114, 120 (2d Cir. 1999) (“Restitution is not of mere right.”**

“The SECO Intervenors object that the rationale for disallowing tracing does not apply here because the existing case law does not address a situation “where the customer provided identifiable property and the receiver’s predecessor expressly agreed, and the applicable law independent of the agreement also provided, that it would have no ownership interest in such identifiable property.””

**Trenton v. Infinity Broadcasting Corp., 865 F. Supp. 1416 (C.D. Cal. 1994)**

“Plaintiff’s 20 causes of action are pled as follows: (1) Breach of Express Contract; (2) Breach of Implied Contract; (3) Quantum Meruit; (4) Quantum Valebant; (5) Unfair Competition; (6) Copyright Infringement (State Law); (7) Breach of Employment Contract; (8) Wrongful Constructive Termination; (9) Failure to Pay Wages; (10) Fraud; (11) Conspiracy to Commit Fraud; (12) Conversion; (13) Conspiracy to Commit Conversion; (14) Slander of Title I — Property; (15) Slander of Title II — Services; (16) Interference with Prospective Economic Advantage; (17) Breach of Fiduciary Duty; (18) Rescission or Reformation; (19) Declaratory Relief re (A) Infinity’s Standard Employment Contract and (B) Ownership of Trade Names and Format; and (20) Injunctive Relief re (A) Infinity’s Standard Employment Contract and (B) Ownership of Trade Names and Format.”

**”Plaintiff’s allegations can be summarized as follows: (1) he conceived and remains the owner of the program format for the Loveline radio program (“Loveline”), and that (2) by broadcasting the program without him, defendants have (a) misappropriated, infringed and converted plaintiff’s concept and (b) breached implied and express oral promises made to him.”**

“Defendants respond that: (1) plaintiff’s purported property interest in the radio program format is prohibited by Section 102(b) of the federal Copyright Act, and (2) Section 301(a) of the Act preempts all of plaintiff’s causes of action in that they are predicated upon a non-existent copyright interest in Loveline. a)”

**”Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).”**

“First, this Court must assess whether plaintiff’s Sixth Cause of Action for copyright infringement arises under federal or state law.”

**Scandinavian Satellite System, AS v. Prime TV Ltd., 291 F.3d 839 (D.C. Cir. 2002)**

“HARRY T. EDWARDS, Circuit Judge: Appellant Scandinavian Satellite System (“SSS”) claims rights under an exclusive copyright license to broadcast programming created by Pakistan Television Corporation (“PTV”), a government-owned enterprise based in Pakistan that produces news and entertainment programs. On May 25, 1998, PTV granted Sports Star International (“SSI”), a Pakistani company, an exclusive license to broadcast PTV programming. On July 1, 1998, SSI, in turn, granted SSS, a Norwegian company, the exclusive rights to broadcast PTV programming outside of Pakistan.”

**”SSS also contends that the SSS/SSI Joint Venture Agreement is null and void because it was executed under duress.”**

“It does not matter that appellees may interpose a contract defense based on the Joint Venture Agreement; rather, the important point here is that SSS’s claim rests solely on its asserted copyright license.”

**Cordts-Auth v. Crunk, LLC, 815 F. Supp. 2d 778 (S.D.N.Y. 2011)**

“Therefore, because no member of Crunk shares Plaintiff’s citizenship, and Plaintiff sues only Crunk, its members, and other diverse Parties, the Court finds that there is diversity jurisdiction over Plaintiff’s derivative claims. Article IX of the Crunk Operating Agreement sets forth the procedure through which an individual may acquire membership in Crunk. (Am. Compl. Ex. B art. IX.)”

**”Nevertheless, Plaintiff counters that “New York and many other jurisdictions … recognize an ‘equity-based’ exception to the continuous ownership requirement for derivative suits in circumstances in which [a plaintiff] was divested of his or her ownership through fraud.” ( Id.) Plaintiff is correct that courts in several jurisdictions, including New York, have recognized an equitable exception to the general rule requiring a plaintiff to have an ownership interest at the time of commencing suit, which may be invoked where the transaction itself is the subject of alleged fraud. See, e.g., In re Guidant Corp. S’holders Derivative Litig., No. 03–CV–955, 2008 WL 833502, at *6–7 (S.D.Ind. Mar. 27, 2008) (discussing the “fraud exception” recognized by Delaware courts); Kolancian v. Snowden, 532 F.Supp.2d 260, 262 (D.Mass.2008) (same); In re Mercury Interactive Corp. Derivative Litig., 487 F.Supp.2d 1132, 1137 (N.D.Cal.2007) (discussing the “equitable merger exception” recognized in Miller v. Steinbach, 268 F.Supp. 255, 266–67 (S.D.N.Y.1967)); Arnett v. Gerber Scientific, Inc., 566 F.Supp. 1270, 1273 (S.D.N.Y.1983) (same); Lewis v. Ward, 852 A.2d 896, 905 (Del.2004) (outlining the Delaware fraud exception); Lewis v. Anderson, 477 A.2d 1040, 1046 & n. 10 (Del.1984) (same); see also Price v. Upper Chesapeake Health Ventures, 192 Md.App. 695, 995 A.2d 1054, 1065–67 (Md.Ct.Spec.App.2010) (discussing both the Miller and Lewis lines of cases).”**

Figgie v. Figgie, 2021 Ohio 1195 (Ohio Ct. App. 2021)

**””Conclusions not supported by factual allegations in the complaint cannot be deemed admitted and are insufficient to withstand a motion to dismiss.” Krohn v. Ostafi, 6th Dist. Lucas No. L-19-1002, 2020-Ohio-1536, ¶ 10, citing State ex rel.”**

“Constructive Trust {¶ 23} In their first assignment of error, appellants contend that the probate court improperly dismissed their constructive trust claim against the Trust Defendants because it believed, incorrectly, that a constructive trust is an equitable remedy that could not survive independently of their fraud or unjust enrichment claims against the Trust Defendants. Appellants assert that a constructive trust claim is “an independent claim for relief” that “remedies ill-gotten gains when equity dictates the recipient should not hold and enjoy certain benefits” regardless of whether the property holder committed any wrongdoing or was otherwise unjustly enriched.”

**”Ferguson v. Owens, 9 Ohio St.3d 223, 225, 459 N.E.2d 1293 (1984), quoting 76 American Jurisprudence 2d, Trusts, Section 221, at 446 (1975); see also Estate of Cowling v. Estate of Cowling, 109 Ohio St.3d 276, 2006-Ohio-2418, 847 N.E.2d 405, ¶ 18; Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 39.”**

 Northcom, Ltd. v. James, 694 So. 2d 1329 (Ala. 1997)

**”A covenant not to compete is included within the sales contract and another, in a substantially similar form, is appended to the contract as “Exhibit F.” By that covenant, R.E. James, Roberta Gwenn James, and Kathy James Pittman, as stockholders of the seller, agreed not to compete with Northcom within a 100-mile radius of the stations for a period of six years, in consideration of $250,000, payable in 72 monthly installments. This consideration was in addition to the contract price for the sale of the radio stations. In May 1994, R.E. James, Roberta Gwenn James, and Pittman (hereinafter “the plaintiffs”) brought a breach of contract action, alleging that Northcom had failed to make the monthly installment payments.”**

“If such default is not cured by Seller within ten (10) days of receipt of notice of default, Buyer may terminate this Agreement, receive a return of the escrow deposit and interest thereon, and bring an action for damages.”

**”In that event the escrow deposit will be forfeited to Seller as liquidated damages.””**

Caribbean Broadcasting System, Ltd. v. Cable & Wireless PLC, 148 F.3d 1080 (D.C. Cir. 1998)

**”To remand this case for the district court to consider the Second Amended Complaint would be a waste of judicial resources, however. In deciding that to amend the complaint would be futile, the district court acted in the belief that the fault it found with the First Amended Complaint — namely, that it did not allege an adverse effect upon the commerce of the United States sufficient to support subject matter jurisdiction over Counts II-XI [see JA at 129-131] — was not addressed by anything in the Second Amended Complaint, which more clearly alleged an effect upon U.S. commerce.”**

“CBS asserts that the district court has jurisdiction under the Sherman Act, see 15 U.S.C. § 1-2, and the Foreign Trade Antitrust Improvements Act of 1982, see 15 U.S.C. § 6a.”

**”The complaint does make such allegations.”**

“Indeed, CW virtually admits that CBS’s complaint alleges antitrust injury when it argues that “CBS described markets so narrowly configured that any commercial harm to CBS [is], ipso facto, harm to competition” in those markets and hence has a substantial effect upon U.S. commerce.”

**Arista Records LLC v. Gaines, 635 F. Supp. 2d 414 (E.D.N.C. 2009)**

“The court finds that Plaintiffs are entitled to injunctive relief. The Copyright Act provides that “[a]ny court having jurisdiction of a civil action arising under this title may . . . grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a).”

**”Consequently, the court finds that Defendant willfully disregarded copyrights held by Plaintiffs, and that a permanent injunction is appropriate.”**

“Specifically, the Act provides: “[T]he copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements . . . in a sum of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). Additionally, in the case of willful infringement, “the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.” 17 U.S.C. § 504(c)(2).”

**M.G. Dyess, Inc. v. Markwest Liberty Midstream & Res., 522 P.3d 204 (Colo. App. 2022)**

“Court of Appeals No. 20CA1742 09-15-2022 M.G. DYESS, INC., a Mississippi corporation, Plaintiff-Appellant, v. MARKWEST LIBERTY MIDSTREAM & RESOURCES, L.L.C., a Delaware limited liability corporation, Defendant-Appellee. Wheeler Trigg O’Donnell LLP, Edward C. Stewart, Frederick R. Yarger, Denver, Colorado; Moore Williams PLLC, Marie E. Williams, Golden, Colorado; Kilpatrick Townsend & Stockton LLP, Adam H. Charnes, Dallas, Texas, for Plaintiff-Appellant Snell & Willmer L.L.P., Michael E. Lindsay, James Kilroy, Ellie Lockwood, Denver, Colorado; Snell & Willmer L.L.P., Kelly H. Dove, Las Vegas, Nevada for Defendant-Appellee Opinion by JUDGE RICHMAN Wheeler Trigg O’Donnell LLP, Edward C. Stewart, Frederick R. Yarger, Denver, Colorado; Moore Williams PLLC, Marie E. Williams, Golden, Colorado; Kilpatrick Townsend & Stockton LLP, Adam H. Charnes, Dallas, Texas, for Plaintiff-Appellant Snell & Willmer L.L.P., Michael E. Lindsay, James Kilroy, Ellie Lockwood, Denver, Colorado; Snell & Willmer L.L.P., Kelly H. Dove, Las Vegas, Nevada for Defendant-Appellee Opinion by JUDGE RICHMAN ¶ 1 In this construction contract dispute, plaintiff, M.G. Dyess, Inc. (Dyess), appeals post-trial orders reducing the amount of damages awarded on its quantum meruit claim and denying its motion for judgment notwithstanding the verdict (JNOV) on defendant’s counterclaim. Defendant, MarkWest Liberty Midstream & Resources, L.L.C. (MarkWest), and Dyess both appeal the trial court’s denial of their motions for pre- and post-judgment interest.”

**”It stated an intention to submit all the claims to the jury under C.R.C.P. 39(c), which permits courts to “try any issue with an advisory jury” in “all actions not triable by a jury.””**

“Quantum Meruit Claim A. Standard of Review and Law ¶ 12 Dyess asks us to decide whether the trial court erred when it partially rejected the jury’s verdict under C.R.C.P. 52, ultimately reducing the amount of damages awarded.”

**Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003)**

“Because the works were made for hire, Warren retains no rights of authorship and lacks standing to sue for infringement as a legal owner of the copyrights.”

**”Even if the contracts do evidence a work-for-hire relationship between himself and MTM, Warren argues that the contracts granting the copyrights to MTM should be rescinded because MTM failed to pay the full amount of the royalties to which he was entitled. Warren argues that this breach entitles him to reclaim the copyrights and sue for infringement, even if the music was originally created as a work for hire. He bases this conclusion primarily on a passage from the Nimmer treatise which states: “If . . . the employer’s claim of copyright is based upon the agreement . . . of the employee, then surely a material breach by the employer must under traditional principles of contract law entitle the employee to rescind the employment agreement and hence claim back the copyright which he had agreed to convey.” 2 M. D. Nimmer, Nimmer on Copyright, § 5.03E. However, we held in Rano v. Sipa Press, Inc., 987 F.2d 580 (9th Cir. 1993), that “[a] breach will justify rescission of a licensing agreement only when it is of so material and substantial a nature that [it] affect[s] the very essence of the contract and serve[s] to defeat the object of the parties. . . . [T]he breach must constitute a total failure in the performance of the contract.””**

Conway v. Epis, H032836 (Cal. Ct. App. Oct. 28, 2010)

**”NOT TO BE PUBLISHED ~~~~~~~~~Santa Clara County Super. Ct. No. CV014087. ~~~~~~~~~ RUSHING, P.J. ~~~~~~~~~I. Statement of the Case ~~~~~~~~~Terry Johns, the real party in interest, appeals from an order denying his motion to set aside the judgment in an action brought by Timothy Conway against Barbara Epis. Johns claims the court erred in treating his motion, which he brought under Code of Civil Procedure section 473, subdivision (d) (hereafter section 473(d)), as a motion to vacate under Code of Civil Procedure section 663.”**

“The action and cross-action involved legal and equitable claims.”

**”On October 1, Conway and Epis entered a stipulation, which the court adopted, dismissing all equitable claims except for certain specified claims, including Epis’s claim for cancellation of the 1999 grant deed on the San Antonio property.”**

“The court ruled that because real property is unique to the owner regardless of whether he or she lives there or owns it as an investment, injunctive relief is particularly appropriate to preserve the status quo, especially where there are claims of fraud concerning ownership.”

**Securities Exchange Commi. v. Kaleta, CIVIL ACTION NO. 4:09-3674 (S.D. Tex. Dec. 2, 2011)**

“Before the Court in this receivership proceeding are claims of individuals (“Investors”) asserting security interests in the proceeds of the sale of certain radio station assets held by a Court-appointed receiver, Thomas L. Taylor, III, Esq. (“Receiver”) to South Texas Broadcasting, Inc. (“STB”). The Investors claim security interests in the proceeds of the radio station assets through contractual and equitable subrogation to the secured status of two entities, Industrial Info Resources, Inc. (“IIR”) and STB, which entities made secured loans with the radio station assets as collateral.”

**”Prior to and after the Hearing, the Investors filed Objections in Support of Investor Objections to Sale (“Objections”) [Docs. ## 70, 71, 80, 82, 110, 111, 123, 132] and the Receiver filed responses [Docs. ## 81, 114, 121, 140].”**

“The Receiver contends that the Objecting Investors are not contractually or equitably subrogated to the interests of IIR or STB because (1) the Investors cannot trace their funds to payments of either IIR or STB’s loan, or their funds were commingled with tainted funds from Kaleta, Frishberg, and KCM; (2) equity disfavors tracing their funds; (3) the Investors lack perfected interests in BR Houston assets; (4) the Investors are not contractually subrogated to IIR or STB; and (5) the Investors are not equitably subrogated to IIR or STB. The threshold issues under contractual or equitable subrogation theories are whether the Investors have established that their funds paid the debts of BR Houston to IIR or STB and whether they hold duly enforceable secured interests in the radio station assets.”

**Leisure Resort Tech. v. Trading Cove, 2004 Ct. Sup. 11927 (Conn. Super. Ct. 2004)**

“The defendants have moved for summary judgment on the grounds that the undisputed evidence establishes that (1) the plaintiff knew of the negotiations between Trading Cove Associates and the Mohegan Tribe concerning a buy out of the Gaming Management Agreement; (2) the plaintiff knowingly waived through the Settlement Agreement its right to any further payments related to the buy out of the Gaming Management Agreement; and (3) the plaintiff can not satisfy its burden of proving the diminution in value of its beneficial interest caused by the defendants’ alleged non-disclosure. The plaintiff maintains that the entry of summary judgment is not appropriate because there exists genuine issues of material fact concerning each of the matters advanced by the defendants. I agree with the defendants that summary judgment should enter because the plaintiff has not submitted evidence establishing the amount of its damages.”

**”Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 683 CT Page 11927-es (1995).”**

“Harper v. Adametz, 142 Conn. 218, 225 (1955).”

**Berry v. Bowling, 2019 Ohio 898 (Ohio Ct. App. 2019)**

Statute (1)

**Section 714.16 – Consumer frauds, Iowa Code § 714.16**

“A civil action pursuant to this section shall be by equitable proceedings. If it appears to the attorney general that a person has engaged in, is engaging in, or is about to engage in a practice declared to be unlawful by this section, the attorney general may seek and obtain in an action in a district court a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the person from continuing the practice or engaging in the practice or doing an act in furtherance of the practice. The court may make orders or judgments as necessary to prevent the use or employment by a person of any prohibited practices, or which are necessary to restore to any person in interest any moneys or property, real or personal, which have been acquired by means of a practice declared to be unlawful by this section, including the appointment of a receiver in cases of substantial and willful violation of this section. If a person has acquired moneys or property by any means declared to be unlawful by this section and if the cost of administering reimbursement outweighs the benefit to consumers or consumers entitled to the reimbursement cannot be located through reasonable efforts, the court may order disgorgement of moneys or property acquired by the person by awarding the moneys or property to the state to be used by the attorney general for the administration and implementation of this section.”

**”In addition to the remedies otherwise provided for in this subsection, the attorney general may request and the court may impose a civil penalty not to exceed forty thousand dollars per violation against a person found by the court to have engaged in a method, act, or practice declared unlawful under this section; provided, however, a course of conduct shall not be considered to be separate and different violations merely because the conduct is repeated to more than one person.”**

Analyses (3)

**FCC Enforcement Monitor ~ June 2019**

“Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes: Investigation Into Undisclosed Radio Station Owner With a History of Felonies Leads to Hearing Designation Order FCC Settles With Alaskan Broadcaster After Disastrous Station Inspection FCC Reinstates Licenses for Tennessee and Alabama Radio Stations, Then Immediately Threatens to Revoke Them Troubled Past: Alleged Misrepresentations Lead FCC to Designate Applications for Hearing In a recent Hearing Designation Order (“HDO”), the FCC’s Media Bureau raised serious concerns over the control of several midwestern AM stations.”

**”Further complicating the investigation, the FCC noted that the trust had failed to provide significant documentary evidence for many of its claims, with the trust blaming this in part on the destruction of “a great majority of [the stations’] business records” that took place shortly after the son’s death. To resolve these questions and to determine whether the applications should be granted, the applications have been designated for a hearing before an Administrative Law Judge. It is not uncommon for such hearing proceedings to take years to be resolved.”**

FCC Enforcement Monitor ~ November 2019

**”Fortunately, the FCC has the discretion to reinstate a license that would otherwise be lost under Section 312(g) where it is appropriate as a matter of “equity and fairness.” On January 25, 2018, the AM station went silent due to the loss of its licensed transmitter site.”**

“While reminding the licensee of the importance of allowing sufficient time for Commission review of applications, the Media Bureau determined that the shutdown, in conjunction with the petitioner’s own behavior in securing an exclusive lease for the station’s licensed transmitter site, presented “compelling reasons” beyond the licensee’s control. To resolve the investigation, the licensee entered into a Consent Decree with the Media Bureau in which it agreed to pay a $5,000 civil penalty.”

**FCC Enforcement Monitor ~ June 2020**

“Section 73.1740(a)(4) of the FCC’s Rules permits a licensee to temporarily discontinue operations for up to 30 days provided that the licensee: (1) notifies the FCC by the tenth day of discontinued operations, and (2) requests authorization from the Commission to remain silent for any period beyond 30 days. However, Section 312(g) of the Communications Act of 1934 provides that a broadcast station’s license automatically expires if it does not transmit a broadcast signal for 12 consecutive months.”

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