Karen Kidd May 10, 2016, 9:28am


SAN FRANCISCO (Legal Newsline) - An attorney and social media blogger says the music streaming service Tidal would welcome a quick resolution of a class action lawsuit filed by a disgruntled Kanye West fan.

Californian Justin Baker-Rhett earlier this month filed the proposed class action lawsuit in U.S. District Court in San Francisco, accusing West of duping fans into buying Tidal subscriptions. West, the lawsuit alleges, promised that his seventh studio album, The Life of Pablo, would be available only on Tidal, which the lawsuit also alleges was on the verge of failure until West made those claims.

Whatever the merits of the suit, the wealth of the named defendants (Tidal was purchased by Jay-Z and West is part-owner) could well influence what settlement, if any, to which might be agreed, Carolyn Toto, an attorney with Pillsbury Winthrop Shaw Pittman in New York City, told Legal Newsline. .

"One would hope that settlement of a case would be on the merits and not whether a party has 'deep pockets', she said. "Practically speaking, most cases do settle. Whether the case settles and how early will depend on different factors.

"Here, Tidal is a new business so we do not have a track record of their litigiousness. Also, as a new company, the executives would probably prefer focusing on expanding the business and not have the appetite to engage in a high-profile and protracted ongoing litigation.

"These factors would favor an early resolution, especially if they can settle for a nuisance value. However, it is difficult to predict at this juncture. If the plaintiffs maintain an unreasonable position and the company feels the need to fight to deter other claimants, this could draw out the litigation."

Toto said the case is, at its heart, about people who feel misled.

"Social media is speech and, just like any speech, has been the source of false advertising and misrepresentation claims," Toto said.

"That is essentially what plaintiffs are claiming here, that they were misled by the representation that the album was only going to be available on one streaming service."

Toto, who, along with her colleague Kimberly Buffington, has blogged about the case as part of Pillsbury’s Social Media & Games Law Blog, said even if the plaintiff class proves its case, compensation remains murky.

"The surge in memberships to Tidal does seem to suggest some reliance on Kanye's statements," she said. "Damages may be the trickier issue. Plaintiffs wanted the album and got the album.

"They also have the option to cancel the service. And as noted in the post, many users use multiple streaming services. The stronger argument might be that the users shared private data with Tidal in the sign-up process and that Tidal may use for marketing.

"However, there is the possibility that Tidal subsequently agrees to destroy all such data."

The alleged deception occurred in February when West posted on his Twitter account about his album's availability. "My album will never never never be on Apple," the tweet said. "And it will never be for sale... You can only get it on Tidal."

That, the lawsuit claims, sent a throng of fans to the music streaming service, translating into a reported 250 million streams of the album in its first 10 days. Soon after, the album began to stream at other music outlets, including Spotify and Apple Music. The album also now is for sale on West's website.

West's deception probably saved Tidal, the lawsuit alleges. "By early 2016, Tidal was quietly teetering on the brink of collapse," the lawsuit said. "Many industry experts predicted its imminent demise absent a significant swell in users and a new round of publicity."

West's declaration on Twitter did just that, the lawsuit said. "Mr. West’s unequivocal declaration of Tidal’s exclusive access to his album had a profound impact on Tidal’s business," the lawsuit said.

Baker-Rhett's class action is not unique, Toto said, pointing to similar cases involving 50 Cent and Rolls-Royce.

"As you can see from these two cases, what one posts on social media can implicate various legal claims from violation of privacy to trademark infringement," Toto said.

Toto speculated the next move will be Tidal's.

"Tidal will likely file a motion to dismiss to start," she said. "However, these motions are not often granted and plaintiffs need only show they have a claim that is plausible on its face assuming that all facts alleged in the complaint are true. Ultimately, the case will probably settle as most do."

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