Fri May 28, 2010 @ 10:21AM PST
By Eriq Gardner
Carly Simon isn't finished kicking up a storm over Starbucks' decision to get out of the music business just five days before her latest album was scheduled to be released in its stores.
In April, a Los Angeles District Court judge tossed on summary judgement
Simon's original lawsuit against the coffee chain, saying the singer failed to show how Starbucks made fraudulent misrepresentations or concealed facts that misled her. However, the judge gave Simon the opportunity to amend her complaint.
Simon is represented by star litigator David Boies, who has never been known to back down from a fight. So Simon filed an amended lawsuit in late April. Starbucks filed its response two weeks ago, and a ruling is expected soon on whether to proceed further in the case.
The original lawsuit hung on the question over what obligations Starbucks owed Simon. The singer didn't have any direct contractual relationship with the coffee chain. Instead, her deal was with Hear Music, a separate operating entity that provided Starbucks, its parent company, with albums to distribute in its stores. The singer previously argued that one could connect the dots easy enough
such that the parent company had a duty to disclose material decision-making that would have a big effect on the marketing and sales of her album.
The judge didn't buy it.
Now in the amended complaint, Simon goes back to basics. Instead of arguing disclosure obligations, she tries to show misrepresentations on behalf of Starbucks with slightly more specifics. She alleges that Alan Mintz, vp of content development at Starbucks, told her in a series of phone calls and in person that if she signed with Hear Music, Starbucks would aggressively promote and distribute her albums. She points to her contract with Hear that represented that the company was co-owned by Starbucks. And she trots out the marketing plan for her album that confirmed her album's placement in Starbucks stores.
In its response
, Starbucks says the singer still can't show any obligation on behalf of Starbucks, arguing that laws only allow a "corporate veil" to be pierced under extraordinary circumstances. Perhaps just as damaging to Simon's claims, Starbucks cites the singer's contract, negotiated at arm's-length by one of the industry's most respected music lawyers (Manatt's Lee Phillips), which specifically waived the right to hold Starbucks liable for alleged shortcomings of Hear Music. Finally, Starbucks says that even if the company was shown to have an obligation, Simon hasn't even attempted to show these representations were false at the time and made with the intent to deceive.
Simon has an up-hill battle ahead of her. The question now is whether the judge will allow more discovery in the matter.
Starbucks is represented by Orin Snyder at Gibson Dunn & Crutcher.