Monday, February 22, 2016
I've gotten a lot of questions from readers about the order denying Kesha relief in her lawsuit against Dr. Luke (Lukasz Gottwald) and Sony. I haven't seen an actual copy of the order, but I have seen Kesha's motion, and the media seems to have missed an important part of the story: It has nothing to do with the abuse allegations against Dr. Luke.
The basics of the case are as follows: Kesha has recording contracts with Dr. Luke's Kemosabe Records label, housed under Sony, that include exclusivity clauses. In 2014, Kesha brought a lawsuit (1) alleging emotional and sexual abuse by Dr. Luke; and (2) asking that she be able to record with Sony, but under "a label other than Kemosabe Records and affiliate Dr. Luke, as well as his companies, KMI and Prescription Songs." Sony and Dr. Luke treated this as an anticipatory breach of Kesha's recording contract and sought damages against her.
In turn, Kesha sought declaratory relief indicating that Sony and Dr. Phil Luke could ask her to perform under her contract or treat the contract as breached but not both. Thereafter, Kesha filed a motion for a preliminary injunction on her declaratory relief cause of action. This motion makes clear that it only has to do with this contractual issue and has nothing to do with the allegations of abuse:
The task for the Court on this Motion is not to resolve whether Kesha is right or Dr. Luke is right about the abuse. It is simply to allow Kesha to record (even for Sony) without having to work with Dr. Luke and his affiliated companies.
Later, the motion reiterates that
Kesha is not asking the Court to decide whether she is likely to succeed on the allegations of abuse, but merely whether she is likely to succeed on her first cause of action for declaratory relief by applying one purely legal principle: A plaintiff can continue to perform on a contract and solicit performance, or treat it as breached and sue for damages. Not both. Dr. Luke and his companies chose to treat the Agreements as breached and sue for damages. As such, they can no longer hold Kesha to their terms.
This means that the judge's order had nothing to do with Kesha's abuse allegations; it also means that the judge's order was not a final adjudication of the contractual issue. Like all motions for preliminary injunctions, Kesha's motion sought temporary relief pending trial:
As explained in Kesha’s Motion, she is entitled to a preliminary injunction keeping Dr. Luke and his companies out of her career so she can record with other parties because (i) she will suffer irreparable harm absent an injunction; (ii) Dr. Luke and his companies will suffer none so the balance of equities favors the injunction; and (iii) she is likely to succeed on the merits of the declaratory relief cause of action.
In other words, Kesha claimed that she should be able to record music now under the assumption that her recording contract would be deemed a dead letter after trial. By rejecting this motion, the court ruled that such relief could not be given before trial, but this in no way forecloses the possibility that the judge will reach this decision after trial. And, again, the preliminary injunction motion was just about this "choice of remedies" issue, not the abuse issue.