Federal Judge Once Again Dismisses Pandora Antitrust Countersuit Against Word Collections and Spoken Giants — This Time With Prejudice

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A federal judge has officially dismissed with prejudice Pandora’s countersuit against Word Collections and Spoken Giants, which are suing the SiriusXM-owned platform for allegedly failing to license a multitude of compositions.

This newest development in the high-profile legal battle just recently came to light in an almost 30-page-long order from Judge Mark C. Scarsi. As their names suggest, Word Collections and Spoken Giants, having in late 2021 kicked off a compensation-focused campaign targeting a variety of streaming services, represent the interests of spoken-word entertainment professionals including stand-up comedians.

(Continuing to expand on both the comedy and music sides, Jeff Price’s Word Collections now counts as clients Metallica, The Offspring frontman Dexter Holland, Jerry Seinfeld, and many others, per its website.)

And according to the entities, which are litigating on behalf of members such as Lewis Black, Andrew Dice Clay, the estate of Robin Williams, and Bill Engvall, Pandora has for some time offered a number of comedic works without licensing the underlying compositions (not the recordings themselves). Predictably, Pandora has fired back against the claims, including with a May of 2022 antitrust countersuit that was dismissed in October of the same year.

As mentioned at the outset, Pandora’s counterclaims have once again been dismissed, this time without leave to amend.

In explaining the most recent dismissal decision, Judge Scarsi determined that Word Collections and Spoken Giants hadn’t in fact violated the first section of the Sherman Antitrust Act by coordinating to fix prices or to restrain trade via a series of competition-limiting exclusive agreements.

“In essence, Pandora claims consolidating the right to license comedy routines harms competition because Spoken Giants and Word Collections effectively control the market for the rights to stream ‘superstar’ comedians’ performances,” the judge wrote.

“Without a ‘critical mass’ of these licenses, Pandora claims it cannot offer a viable streaming comedy service,” the court continued. “Pandora does not adequately explain who these ‘superstar’ comedians are, how many are necessary to form a ‘critical mass,’ or even the size of the relevant market.”

Shifting to the monopolization allegations from Pandora, Judge Scarsi indicated that the counterclaims do “not sufficiently allege direct or circumstantial evidence of Spoken Giants’ or Word Collections’ market power” or prove that the organizations are prohibiting rivals from entering the market.

“Even assuming the relevant market could be redefined as Pandora suggests, Pandora offers no reliable basis to determine who these ‘superstar’ comedians are,” the judge reiterated. “Pandora has therefore failed to plead enough ‘factual content that allows the court’ to conclude Spoken Giants or Word Collections is liable for a section 2 [Sherman Act] violation because either can restrict output or charge supracompetitive prices in the relevant market.”

Furthermore, “that there are two performing rights organizations involved in this suit strongly undermines the plausibility of any claim that a single monopoly presents an insurmountable barrier to entry,” according to the legal text. And a conspiracy to monopolize claim was said to come up short because “Pandora failed to adequately allege facts giving rise to a reasonable inference of anything but parallel conduct.”

Spoken Giants and Word Collections had also been pushing for sanctions over Pandora’s allegedly “baseless” counterclaims. But Judge Scarsi rejected the corresponding motion, finding that the entities “do not make a persuasive case that sanctions are warranted” and communicating that the counterclaims hadn’t been “filed in bad faith or based on any intentional misconduct my Pandora or its counsel.”

Nevertheless, Word Collections CEO Jeff Price reached out to DMN to weigh in on the counterclaims’ dismissal and the renewed focus on the overarching infringement allegations, emphasizing: “Pandora’s anti-trust lawsuit is dismissed again, this time with prejudice. Pandora is not permitted to refile. The infringement claims are now the open issue (as they were before).”

In comments of his own, longtime entertainment industry attorney Richard Busch told us that he’s eager to pursue “the infringement claims as should have been the case from the beginning.”

“Even when the Judge dismissed Pandora’s claims the first time and told them that he was skeptical that they could plead valid claims, they were undeterred and brazenly pressed forward with a new Complaint that we believed was just as bad if not worse than the first one,” Busch said to DMN.

“The Court has now agreed, and has rightfully dismissed Pandora’s claims again this time with prejudice and specifically and explicitly without any right to try again. We now look forward to pursuing the infringement claims as should have been the case from the beginning.

“I also should thank, on behalf of my clients, Jeff Price, the founder of Word Collections, and the copyright administrator for many of my clients, who at great expense would not be intimidated by Pandora’s tactics and deep pockets, and fought back and won,” concluded Busch.