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Case 2:13-cv-06004-JAK-AGR Document 345 Filed 03/17/15 Page 1 of 10 Page ID #:9588

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Paul H. Duvall (SBN 73699)


E-Mail: pduvall@kingballow.com
KING & BALLOW
6540 Lusk Blvd., Suite 250
San Diego, CA 92121
(858) 597-6000
Fax: (858) 597-6008
Attorneys for Defendants and CounterClaimants Frankie Christian Gaye and
Nona Marvisa Gaye

Richard S. Busch (TN BPR 014594)


(pro hac vice)
E-Mail: rbusch@kingballow.com
Sara R. Ellis (TN BRP 030760) (pro hac vice)
Email: sellis@kingballow.com
KING & BALLOW
315 Union Street, Suite 1100
Nashville, TN 37201
(615) 259-3456 Fax: (615) 726-5417
Attorneys for Defendants and CounterClaimants Frankie Christian Gaye and Nona
Marvisa Gaye

Mark L. Block (SBN 115457)


E-Mail: mblock@wargofrench.com
WARGO & FRENCH LLP
1888 Century Park East; Suite 1520
Los Angeles, CA 90067
(310) 853-6355 Fax: (310) 853-6333
Attorneys for Defendants and CounterClaimants Frankie Christian Gaye and
Nona Marvisa Gaye

Paul N. Philips (SBN 18792)


E-Mail: pnp@pnplegal.com
The Law Offices of Paul N. Philips
9255 West Sunset Boulevard
West Hollywood, CA 90069
(323)813-1126 Fax: (323) 854-6902
Attorney for Defendant and Counter-Claimant
Marvin Gaye III

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION


PHARRELL WILLIAMS, an
individual; ROBIN THICKE, an
individual; and CLIFFORD HARRIS,
JR., an individual,

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Plaintiffs,
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vs.

Case No. CV13-06004-JAK (AGRx)


Hon. John A. Kronstadt
COUNTER-CLAIMANTS JOINT
MOTION TO CORRECT THE JURYS
VERDICT

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BRIDGEPORT MUSIC, INC., a


Michigan corporation; FRANKIE
CHRISTIAN GAYE, an individual;
MARVIN GAYE III, an individual;
NONA MARVISA GAYE, an
individual; and DOES 1 through 10,
inclusive,

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Defendants.
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_______________________________
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AND RELATED COUNTERCLAIMS


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Action Commenced: August 15, 2013


Trial Date: February 24, 2015

Case 2:13-cv-06004-JAK-AGR Document 345 Filed 03/17/15 Page 2 of 10 Page ID #:9589

Pursuant to Federal Rule of Civil Procedure 59(e), Counter-Claimants Nona Marvisa

2 Gaye, Frankie Christian Gaye and Marvin Gaye III (hereinafter the Gayes) respectfully
3 move this Court to alter or amend the jurys verdict to impose liability for direct copyright
4 infringement on Plaintiffs and Counter-Defendants Interscope Records, UMG Recordings,
5 Inc., Universal Music Distribution, and Star Trak Entertainment (the Interscope Parties)
6 and Clifford Harris, Jr . The jury found that the song Blurred Lines infringes upon the
7 musical copyright Got to Give it Up but imposed liability only on Plaintiffs Robin Thicke,
8 Pharrell Williams and Williams publishing entity, More Water From Nazareth Publishing,
9 Inc. As a matter of law, all members of the distribution chain are liable for copyright
10 infringement, including co-writer of the song Blurred Lines, Clifford Harris, Jr. and the
11 Interscope Parties, who manufactured, licensed, distributed, and sold the infringing song,
12 both as a single and as part of the album Blurred Lines. Accordingly, the Gayes request that
13 the Court amend the jurys verdict to impose liability as required by the Copyright Act on
14 Clifford Harris, Jr. and the Interscope Parties, for their infringement of the musical
15 composition Got to Give it Up. Indeed, this post-trial motion was not only contemplated
16 by the Court during the trial, but the Court stated that, based upon agreement by counsel for
17 the Thicke Parties upon questioning by the Court that Universal distributed Blurred Lines,
18 the motion would be appropriate if the Thicke Parties were found to be liable, but the jury
19 did not find the Interscope Parties liable even though they distributed Blurred Lines. (See
20 Trial Tr., March 4, 2015 at 164:24-165:2, attached to Busch Decl. as Exhibit A; see also
21 Trial Tr., March 5, 2015 at 38:14-18, attached to Busch Decl. as Exhibit B). That is the
22 case now.
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I. Introduction
Robin Thicke, Pharrell Williams and Clifford Harris, Jr. are credited as the

25 songwriters of Blurred Lines and co-own the copyright in the musical composition
26 Blurred Lines. (Dkt. No. 303 at 1). Star Trak LLC, a joint venture between Star Trak
27 Entertainment LLC and Interscope Records, a division of UMG Recordings, Inc., released
28 the recording and song Blurred Lines. (Id. at 3, 6). Star Trak LLC and Interscope jointly

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Case 2:13-cv-06004-JAK-AGR Document 345 Filed 03/17/15 Page 3 of 10 Page ID #:9590

1 own the sound recording of Blurred Lines. (Id. at 7).


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During trial, when asked And under your agreement with Star Trak/Interscope,

3 they manufacture and sell the records through their distributor, Robin Thicke responded
4 Yes. (See Trial Tr., Feb. 25, 2015 at 80:2-5, attached to Busch Decl. as Exhibit C).
5 Thereafter, when he was asked Star Trak/Interscope receives money for those sales of
6 those records when theyre sold, Robin Thicke again testified, Yes. (See id. at 80: 67 9). When asked Do you know who the manufacturer and distributor is identified on your
8 label copy for Blurred Lines, Thicke ultimately answered, That would be Universal
9 Music, I believe. (See id. at 80:20-81:2). Jason Gallien, the Senior Vice President of
10 UMG Recordings, Inc. (UMG), testified that Interscope, the entity that released the
11 single Blurred Lines and the album Blurred Lines, is a record label under UMGs
12 umbrella. (See Trial Tr., March 3, 2015 at 57:15-20, attached to Busch Decl. as Exhibit
13 D). Mr. Gallien further testified that the Profit and Loss Statement for the album Blurred
14 Lines included all the revenues directly related to sales of the album. (See id. at 72:315 9). The Profit and Loss Statement discussed by Mr. Gallien was entered as Trial Exhibit
16 82-4. (See id. at 71:16-21).
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During the trial, on March 4, 2015, counsel for the Gayes and Plaintiffs and

18 Counter-Defendants Pharrell Williams, Robin Thicke, Clifford Harris, Jr., and More Water
19 than Nazareth, along with the Interscope Parties (collectively, Plaintiffs) disagreed about
20 inclusion of jury instructions explaining contributory and vicarious infringement and
21 corresponding questions on the verdict form. (See Ex. A at 160:9-161-3). The Gayes
22 argued that any or all of the Interscope Parties may be found liable of both direct
23 infringement, contributory infringement and/or vicarious infringement. (See id. at 160:924 161-4). Plaintiffs argued that any or all of the Interscope Parties are liable for either
25 direct infringement or contributory infringement or vicarious infringement. (See id. at
26 161:2-3). When specifically asked by the Court if it was disputed that Universal
27 distributed the recording of Blurred Lines, Plaintiffs counsel responded with No, I
28 dont think so. (See id. at 164:16-18). The Court continued, [I]f the jury finds theres

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1 infringement and if Universal distributed the recording, then according to what I heard
2 Mr. Miller say, they would be liable. (See id. at 164:24-165:2). After the parties further
3 explained their positions, the Court stated, [I]f you establish infringement and its
4 undisputed that a Universal entity or entities distributed the recording, then there would
5 be liability. (See id. at 165:6-8). The Court went on to state, If Star Trak distributed,
6 then Star Trak would be directly liable. (See id. at 166:21-22).
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During trial, on March 5, 2015, the Gayes and Plaintiffs entered into a joint

8 stipulation outlining the distribution chain for the single Blurred Lines and the album
9 Blurred Lines. (Dkt. No. 303 at 1-13). The parties agreed, in part, to the following:
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1.

Robin Thicke, Pharrell Williams, and Clifford Harris Jr. are credited as the

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songwriting (sic) of Blurred Lines and co-own the musical composition

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copyright in Blurred Lines in the following percentages: 22% Thicke,

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Williams 65% and Harris 13%.

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3.

Star Trak Entertainment, LLC and Interscope Records, a division of UMG

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Recordings, Inc. ("UMG") formed a venture doing business as Star Trak,

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LLC ("Star Trak");

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4.

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Hugo.
5.

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6.

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Star Trak/Interscope licenses the sound recording to UMG affiliates in


foreign territories to sell.

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Star Trak Entertainment, LLC and Interscope jointly own the sound
recording of Blurred Lines.

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Star Trak/Interscope released the recording and song "Blurred Lines"


and the album Blurred Lines.

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Interscope Records ("Interscope") is an unincorporated division of


UMG.

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Star Trak Entertainment, LLC is owned by Pharrell Williams and Chad

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Universal Music Distribution, a division of Universal Music Group


Distribution Corp., manufactured and distributed the single Blurred
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Case 2:13-cv-06004-JAK-AGR Document 345 Filed 03/17/15 Page 5 of 10 Page ID #:9592

Lines and album Blurred Lines.

2 (Dkt. No. 303). This stipulation was entered into evidence and read to the jury. (See Ex.
3 B. at 47:16-49:16).
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On March, 10, 2015, the jury returned its verdict. (Dkt. No. 320). The jury found

5 Robin Thicke, Pharrell Williams, and Williams publishing entity, More Water From
6 Nazareth Publishing, Inc.,1 liable for direct copyright infringement of Marvin Gayes
7 Got to Give it Up. (Id. at 1:15-21). The jury did not find Clifford Harris, Jr. and the
8 Interscope Parties liable for copyright infringement. (Id. at 1:22-28). The jury listed no
9 profits received by the Clifford Harris Jr., nor the Interscope Parties as attributable to the
10 infringement of Got to Give it Up. (Id. at 3:12-20). The Court specifically instructed
11 the Gayes to file this Motion to Correct the Verdict if there is a finding as to a particular
12 counterclaim defendant whom [the Gayes] contend has to be liable as a matter of law in
13 light of this finding (See Ex. B at 38:14-18).
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II.

Argument
a. Clifford Harris, Jr. and the Interscope Parties Infringed on the Gayes

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Exclusive Rights in Their Copyrights.

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Section 106 of the Copyright Act specifically grants certain exclusive rights to

18 copyright holders, including the right: (1) to reproduce the copyrighted work in copies
19 or phonorecords; (2) to prepare derivative works based upon the copyrighted work;
20 (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or
21 other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary,
22 musical, dramatic, and choreographic works, pantomimes, and motion pictures and other
23 audiovisual works, to perform the copyrighted work publicly; and (5) in the case of
24 literary, musical, dramatic, and choreographic works, pantomimes, and pictorial,
25 graphic, or sculptural works, including the individual images of a motion picture or other
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In conformity with the labeling on the verdict form, Pharrell Williams and his
publishing entity, More Water from Nazareth Publishing, Inc., will hereinafter be
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1 audiovisual work, to display the copyrighted work publicly. 17. U.S.C. 106. Copyright
2 owners also have the exclusive right to license their derivative works. See White v.
3 Samsung Electronics Am., Inc., 989 F.2d 1512, 1518 (9th Cir. 1993) (balancing the right
4 of fair use of parodies and copyright holders exclusive rights to license derivative
5 works of [their] shows.).

The jury clearly found that the song Blurred Lines infringes upon the Gayes

7 copyright in the musical composition of Got to Give it Up. Although the jury only
8 imposed financial liability on Robin Thicke and the Williams Parties for the
9 infringement, by virtue of their participation in the creation, manufacture and
10 distribution of the single Blurred Lines and the album Blurred Lines, Clifford Harris,
11 Jr. and the Interscope Parties also infringed upon the Gayess copyright in Got to Give
12 it Up.

Clifford Harris, Jr. violated the Gayes exclusive right to create a derivative work

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14 of their composition. It is irrelevant whether he knew Blurred Lines infringes when he


15 added his portion to the composition; he is credited as a songwriter of Blurred Lines,
16 he owns a portion of the copyright, and is within the distribution chain as a result with
17 respect to payment of royalties, all of which is contained within the stipulations of the
18 parties.2 [Dkt. No. 303 at 1; see Ex. D at 44:16-18; 45:1-3). Additionally, the
19 Interscope Parties, in the manufacture and distribution of the single Blurred Lines and
20 the album Blurred Lines containing the infringing work, violated the Gayes exclusive
21 right to create a derivative work and also violated their exclusive right to manufacture,
22 copy, license, sell, and distribute, or authorize others to do so.3

Liability should be

23 imposed on all parties who infringed on the Gayes copyright in Got to Give it Up.
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The Financial Stipulation was read to the jury on March 3, 2015 and was later admitted

26 into evidence as Trial Exhibit 1766. (See Ex. B at 159:9-15).


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UMG and Interscope, as the sound recording copyright owners, authorized Universal
Music Group Distribution (UMGD) to distribute Blurred Lines and therefore
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b. The Jurys Verdict Should be Amended to Include Liability for the

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Interscope Parties Direct Copyright Infringement.


It is a longstanding principle in American jurisprudence that the Court is

4 empowered to correct a jurys verdict. See Murphy v. Stewart, 43 U.S. 264, 281-82
5 (discussing cases in which verdicts have been amended to conform good counts with
6 bad counts). The motion to arrest a judgment is made upon purely legal grounds. Id.
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As discussed above, and with the Court during the trial, the Interscope Parties and

9 Mr. Harris are liable for copyright infringement as a matter of law. Courts have long
10 held that in patent, trademark, literary property, and copyright infringement cases, any
11 member of the distribution chain can be sued as an alleged joint tortfeasor. Lockheed
12 Martin Corp. v. Network Solutions, Inc., No. CV 96-7438 DDP ANX, 1997 WL 381967,
13 at *3 (C.D. Cal. Mar. 19, 1997) (citing Stabilisierungsfonds Fur Wein v. Kaiser Stuhl
14 Wine Distributors Pty. Ltd., 647 F.2d 200, 207 (D.C. Cir. 1981)) (emphasis added). It is
15 well established that a suit for infringement is analogous to other tort actions and
16 infringers are jointly and severally liable. Costello Pub. Co. v. Rotelle, 670 F.2d 1035,
17 1043 (D.C. Cir. 1981). Therefore, any party that is part of the distribution chain of the
18 infringed work can be held jointly and severally liable for the amount awarded as
19 damages, regardless of any innocent intent. See also Dish Network L.L.C. v. Sonicview
20 USA, Inc., No. 09-CV-1553-L WVG, 2012 WL 4339047, at *2 (S.D. Cal. Sept. 20,
21 2012) (holding no allocation of damages was necessary between co-defendants in a
22 copyright infringement case). Only the copyright holder has the right to determine
23 whether to enter the marketplace with a derivative work. Micro Star v. Formgen Inc.,
24 154 F.3d 1107, 1113 (9th Cir. 1998) (noting that the manufacture and distribution of a
25 derivate video game impinged on the [copyright holders] ability to market new
26 versions of its game).
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Nintendo of America, Inc., 963 F.2d 965, 970 (infringement by authorization is a form

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During trial, Plaintiffs and the Gayes stipulated that each of the Interscope Parties

2 is a member of the distribution chain of the single Blurred Lines and the album Blurred
3 Lines. Therefore, each of the Interscope Parties is liable for direct copyright infringement.
4 The Court recognized that the undisputed facts showed as much. Specifically, the Court
5 stated, if you establish infringement and its undisputed that a Universal entity or
6 entities distributed the recording, then there would be liability. (Ex. A at 165:6-8). If
7 Star Trak distributed, then Star Trak would be directly liable. (See id. at 166:21-22).
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The Gayes have satisfied the Courts requirements. As the jury determined,

9 Blurred Lines infringed Got to Give it Up. (Dkt. No. 320 at 2:11-28). There is no
10 dispute as to the distribution chain of the single Blurred Lines and the album Blurred
11 Lines. Clifford Harris, Jr. is credited with writing Blurred Lines, maintains a copyright
12 ownership right in the song, and receives royalties from each sale and license of the song.
13 (Dkt. No. 303 at 1; See Ex. D at 44:16-18; 45:1-3). Star Trak/Interscope released the
14 recording and song Blurred Lines and the album Blurred Lines. (Dkt. No. 320 at 6).
15 Star Trak Entertainment, LLC and Interscope jointly own the sound recording of
16 Blurred Lines. (Dkt. No. 320 at 8). Star Trak/Interscope licenses the sound recording
17 to UMG affiliates in foreign territories to sell. (Dkt. No. 320 at 7). Those entities have
18 reaped a fortune from the sale of the single and album. (See Ex. D at 44:16-45:9; see also
19 Formgen Inc., 154 F.3d at 1113 (citing Sony Corp. of Am. V. Universal City Studios, Inc.,
20 464 U.S. 417, 451 (1984) (in discussing that the infringement was for purely financial
21 gain, the Court stated [e]very commercial use of copyrighted material is presumptively
22 an unfair exploitation of the monopoly privilege that belongs to the owner of the
23 copyright.). Universal Music Distribution, a division of Universal Music Group
24 Distribution Corp., was authorized to and, therefore, manufactured and distributed the
25 single Blurred Lines and album Blurred Lines. (Dkt. No. 320 at 9; see also Ex. C at
26 80:20-81:2).
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Clifford Harris, Jr. and each of the Interscope Parties participated in the creation

28 and distribution of the single Blurred Lines and the album Blurred Lines. Therefore,

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1 each is liable for direct copyright infringement as a matter of law. The jurys verdict must
2 be corrected to impose liability on all entities that infringed upon the Gayes copyright in
3 the musical composition of Got to Give it Up.
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III. Conclusion

Based on the foregoing, the Gayes respectfully request this Court alter or amend

6 the jurys verdict to impose liability for direct copyright infringement on Clifford Harris, Jr.
7 and the Interscope Parties.
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9 Dated: March 17, 2015
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Respectfully submitted,
KING & BALLOW

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By: /s/ Richard S. Busch


RICHARD S. BUSCH
PAUL H. DUVALL
SARA R. ELLIS

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WARGO & FRENCH, LLP

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By: /s/ Mark L. Block


MARK L. BLOCK
Attorneys for Defendants and Counter-Claimants
Nona and Frankie Gaye
THE LAW OFFICES OF PAUL N. PHILIPS

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By: /s/ Paul N. Philips


PAUL N. PHILIPS

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Attorney for Defendant and Counter-Claimant


Marvin Gaye III

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PROOF OF SERVICE

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#:9597

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The undersigned certifies that a copy of Counter-Claimants Joint Motion to

3 Correct the Jurys Verdict was served upon Howard E. King, Seth Miller and Paul N.
4 Phillips by electronic mail on March 17, 2015. I declare under the penalty of perjury that
5 the statement above is true to the best of my information, knowledge and belief.
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By: /s/ Richard S. Busch


RICHARD S. BUSCH (TN BPR 014594)
(pro hac vice)
KING & BALLOW
315 Union Street
Suite 1100
Nashville, Tennessee 37201
Telephone: (615) 259-3456
Attorneys for Defendants and CounterClaimants Nona and Frankie Gaye

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