Ke$ha and Preliminary Injunctions

Over the past few months Kesha Sebert (“Kesha”) has garnered much attention in the news, not for her music, but rather lawsuits in California and New York between the popstar and her record label and music producer Lukasz Gottwald (“Dr. Luke”).  In these proceedings, Kesha seeks to be released from her contract with Dr. Luke and his label’s parent company, Sony Music Entertainment.
    The lawsuit filed in Los Angeles Superior Court asserts causes of action for sexual assault and battery, sexual harassment, gender violence, civil harassment, unfair business, and intentional and negligent infliction of emotional distress (a copy of her complaint can be found here).  In that lawsuit, Kesha seeks to void her recording agreements so that she can freely enter into recording contracts with other companies.  Dr. Luke, apparently several hours after Kesha’s filing of her California suit, filed a suit against Kesha for defamation and breach of contract in New York Supreme Court, citing mandatory forum selection clauses in their contracts.  Dr. Luke alleges that Kesha’s accusations are defamatory, and designed to harm his reputation within the industry.  Kesha counterclaimed for sexual harassment, gender-based violation and intentional infliction of emotional distress. The California proceeding was eventually stayed pending resolution of the New York proceeding.
    In the New York proceeding, Kesha sought a preliminary injunction arguing that if her music career stalled any further, she would suffer irreparable harm to her commercial potential given the fleeting nature of pop stardom success.  Justice Shirley W. Kornreich ultimately denied Kesha’s request, describing Kesha’s contracts with Plaintiffs “heavily negotiated and typical for the industry” where both sides were represented by counsel.  Kesha’s legal team argued that allegations of abuse were not relevant for purposes of the motion because Dr. Luke and his label’s decision to sue for damages constituted an election of remedies for damages (as opposed to specific performance) and, as a result, the contracts were terminated as a matter of law.  In other words, the exclusivity provisions are no longer in force (Kesha had sought a declaratory judgment that the agreements are no longer in force).  More generally, Kesha’s legal team argued that because of Dr. Luke’s “total control over all aspects of Kesha’s relationship with Sony” and the alleged mental and physical abuse, Kesha is unable to have any meaningful career. 
    Preliminary injunctions are notoriously difficult to get, and in most instances, fairly easy to oppose.  Pursuant to CPLR 6301, a party seeking a preliminary injunction must establish: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor.  A preliminary injunction is a “drastic remedy and will only be granted if the movant establishes a clear right to it under the law and the undisputed facts found in the moving papers.” Koultukis v. Philips, 285 A.D.2d 433 (1st Dep’t 2001).  “The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court.”  County of Suffolk v. Givens, 106 A.D.3d 943 (2d Dep’t 2013).
    A preliminary injunction is essentially a mini trial where the movant is expected to show that she will not only succeed on the merits of her case, but that unless the relief is granted, she will be harmed irreparably.  This irreparable harm requires a movant to demonstrate that no amount of money damages would make a movant whole.  As a result, any delay in seeking a preliminary injunction tends to show to the court that the sense of urgency is artificial, or that a preliminary injunction is not truly warranted because the harm is either not imminent or serious enough to warrant court intervention.
    In Kesha’s case, Justice Kornreich was unimpressed by her arguments because Plaintiffs offered Kesha the opportunity to record and produce her music without Dr. Luke’s presence or participation.  Kesha’s legal team argued that such a promise was illusory in that it was virtually impossible for Kesha to record and produce her work without Dr. Luke’s involvement since he is the person to whom anyone working with Kesha would have to report to.  They further argued that because Defendants were vested in Dr. Luke’s financial success to a greater extent than Kesha, they would prefer him over her, and therefore her six record deal would never amount to anything more than a dormant project.  The court ultimately found these arguments “conclusions and speculations” and denied the request for a preliminary injunction.
    In an interesting exchange between Kesha’s counsel and the Court, Mark Geragos argued that Plaintiffs “elected” the remedy of damages, and by doing so, Plaintiffs could not request specific performance (i.e. that Kesha record with Dr. Luke).  In other words, by filing their lawsuits claiming Kesha anticipatorily breached her agreements, and seeking damages rather than specific performance, Plaintiffs terminated the agreements between Plaintiffs and Kesha.  “Under New York law, an anticipatory breach, like any other breach, gives the non-breaching party two mutually exclusive options.  It may elect to treat the contract as terminated and exercise [its] remedies, or continue to treat the contract as valid.’  Viacom Outdoor, Inc. v. Wixon Jewelers, Inc., 25 Misc. 3d 1230(A)(1st Dep’t 2009); seealsoInter–Power of New York, Inc. v. Niagara Mohawk Power Corp., 259 A.D.2d 932, 934 (3d Dept 1999) (although a party can either “treat the entire contract as broken and sue immediately for the breach or reject the proposed breach and continue to treat the contract as valid,” the party must “make an election and cannot at the same time treat the contract as broken and subsisting” because “[o]ne course of action excludes the other”).
    To this argument, Justice Kornreich responded that Plaintiffs could not have sought specific performance anyway because “slavery was done away with a long time ago” and that “[y]ou can’t force someone to work . . . in a situation in which they don’t want to work.”  The Court ultimately found that because Plaintiffs offered Kesha the opportunity to record “without Dr. Luke,” the problem had been properly addressed, and no preliminary injunction was warranted.
    Kesha subsequently filed a notice of appeal and pre-argument statement, appealing the Court’s decision on the grounds that she will be irreparably harmed if she were to record with Plaintiffs.   Citing to Justice Kornreich’s slavery comment, Kesha appears to base her appeal on the fact that the Court’s ruling does exactly that: subject Kesha to an agreement that amounts to nothing more than slavery.  
    This is an interesting case, particularly with respect to the election of remedies argument.  Kesha’s biggest hurdle will be to demonstrate that an offer to record “without Dr. Luke” is in fact illusory, and that no such offer could be made by Plaintiffs because Dr. Luke is so entrenched with Plaintiffs.  In other words, Kesha’s argument on appeal appears to be that forcing her to perform under these agreements, even “without Dr. Luke,” amounts to “slavery.”  Query why Kesha’s legal team would focus on an issue of fact (i.e. whether Plaintiffs and Dr. Luke are one and the same), when the legal argument of election of remedies might address her predicament more fully and cleanly.  In other words, if Plaintiffs did indeed “elect their remedies,” as Kesha argues, then specific performance does not lie.  It remains to be seen how Kesha’s team will flesh out their appellate argument, and of course, how the Appellate Division will rule on it.