Petition for Writ of Certiorari — Broadcast Music, Inc., Petitioner v. North American Concert Promoters Association

Supreme Court briefAug 20, 2026

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No.

In the Supreme Court of the United States

BROADCAST MUSIC, INC.,

PETITIONER,

NORTH AMERICAN CONCERT PROMOTERS ASSOCIATION,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SCOTT A. EDELMAN

ATARA MILLER

MILBANK LLP

55 Hudson Yards

New York, NY 10001

(212) 530-5000

LISA S. BLATT

Counsel of Record

AMY MASON SAHARIA

ANDREW V. TRASK

ANDREW T. GUIANG

ERIN M. SIELAFF

WILLIAMS & CONNOLLY LLP

680 Maine Avenue S.W.

Washington, DC 20024

(202) 434-5000

lblatt@wc.com

QUESTION PRESENTED

Fair-market valuations turn on nuanced and recordbound factual determinations. This case involves a quintessential example:

the rate paid to songwriters,

composers, and publishers for public performances of

their music at live concerts. Until now, the circuits have

uniformly applied deferential, clear-error review to district courts’ fair-market valuations. In the decision below,

however, the Second Circuit parted from its sister circuits

and reviewed a fair-market-value determination and the

individual components of that determination under an improperly stringent de novo standard.

As this Court made clear in U.S. Bank National Association ex rel. CWCapital Asset Management LLC v.

Village at Lakeridge, LLC, 583 U.S. 387 (2018), that approach to reviewing predominantly factual questions is

erroneous. Moreover, it splits with the D.C., First, Third,

Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits, all of which have appropriately applied deferential

standards of review to comparable fair-market-value determinations in various contexts.

The question presented is:

Whether a district court’s fair-market-value determination and its component parts, such as the selection of

benchmark agreements, should be reviewed de novo or

for clear error.

(I)

PARTIES TO THE PROCEEDING

Petitioner, Broadcast Music, Inc., is a performing

rights organization and was petitioner in the district court

and appellee/cross-appellant in the Second Circuit.

Respondent, North American Concert Promoters Association, is an industry association for concert promoters

and was respondent in the district court and appellant/cross-appellee in the Second Circuit.

III

CORPORATE DISCLOSURE STATEMENT

Petitioner Broadcast Music, Inc. hereby certifies that

Otis Parent, Inc. is its sole parent corporation. Otis Parent, Inc. owns 100% of petitioner’s stock. Otis Parent, Inc.

is not a publicly held company.

RELATED PROCEEDINGS

This case arises from these proceedings:



Broad. Music, Inc. v. N. Am. Concert Promoters

Ass’n, No. 18-cv-8749 (S.D.N.Y. Mar. 28, 2023)

(granting petitioner’s petition to determine a reasonable royalty rate that respondent must pay for

live performances of musical works)



Broad. Music, Inc. v. N. Am. Concert Promoters

Ass’n, Nos. 23-935, 23-1004 (2d Cir. Feb. 24, 2026)

(vacating and remanding the district court’s rate

determination)



Broad. Music, Inc. v. N. Am. Concert Promoters

Ass’n, Nos. 23-935, 23-1004 (2d Cir. Apr. 6, 2026)

(denying panel rehearing and rehearing en banc)

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly related

to this case within the meaning of this Court’s Rule

14.1(b)(iii).

TABLE OF CONTENTS

Page

OPINIONS BELOW ............................................................ 1

JURISDICTION................................................................... 1

FEDERAL RULE OF CIVIL PROCEDURE

INVOLVED ........................................................................... 2

STATEMENT ....................................................................... 2

Factual Background ........................................... 6

Procedural History ........................................... 11

REASONS FOR GRANTING THE PETITION.......... 15

The Circuits Are Divided Over the Standard of

Review for Fair-Market-Value Determinations

and Their Component Parts .................................. 17

II.

The Question Presented Is Exceptionally

Important, Recurring, and Squarely

Presented ................................................................. 23

III. The Decision Below Is Manifestly Incorrect ...... 31

IV.

Alternatively, the Court Should Hold the

Petition Pending RiseandShine Corp. ................. 33

CONCLUSION ................................................................... 34

TABLE OF AUTHORITIES

Page

Cases:

Broad. Music, Inc. v. Columbia Broad. Sys., Inc.,

441 U.S. 1 (1979) ...................................................... 3, 6, 7

Eateries, Inc. v. J.R. Simplot Co.,

346 F.3d 1225 (10th Cir. 2003) ..................................... 23

Exhibit Supply Co. v. Ace Patents Corp.,

315 U.S. 126 (1942) ........................................................ 25

Farm Cred. Servs. of Am. v. Topp (In re Topp),

75 F.4th 959 (8th Cir. 2023) .......................................... 26

Gross v. Comm’r, 272 F.3d 333 (6th Cir. 2001).......... 21, 22

Hechinger Litig. Tr. v. Bankboston Retail Fin.,

Inc. (In re Hechinger Inv. Co. of Del.),

147 F. App’x 248 (3d Cir. 2005).................................... 21

In re Application of MobiTv, Inc.,

712 F. Supp. 2d 206 (S.D.N.Y. 2010),

aff’d sub nom. MobiTV II,

681 F.3d 76 (2d Cir. 2012) ............................................. 30

In re Pandora Media, Inc.,

6 F. Supp. 3d 317 (S.D.N.Y. 2014) ......................... 14, 28

Intercollegiate Broad. Sys., Inc. v. Copyright

Royalty Bd., 574 F.3d 748 (D.C. Cir. 2009) ......... 18, 19

Interfaith Cmty. Org. v. Honeywell Int’l, Inc.,

726 F.3d 403 (3d Cir. 2013) ........................................... 26

La. Power & Light Co. v. Kellstrom,

50 F.3d 319 (5th Cir. 1995) ........................................... 26

Mark IV Pictures, Inc. v. Comm’r,

969 F.2d 669 (8th Cir. 1992) ......................................... 22

Microsoft Corp. v. Motorola, Inc.,

795 F.3d 1024 (9th Cir. 2015) ....................................... 20

Muncie Gear Works, Inc. v. Outboard, Marine &

Mfg. Co., 315 U.S. 759 (1942) ....................................... 25

VII

Page

Cases—continued:

Music Choice v. Copyright Royalty Bd.,

774 F.3d 1000 (D.C. Cir. 2014) ..................................... 19

Nat’l R.R. Passenger Corp. v. Certain Temp.

Easements Above R.R. Right of Way in

Providence, 357 F.3d 36 (1st Cir. 2004)...................... 21

Pandora Media, Inc. v. Am. Soc’y of Composers,

Authors & Publishers,

785 F.3d 73 (2d Cir. 2015) ............................................. 25

Pierce v. Underwood, 487 U.S. 552 (1988) ....................... 32

Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990) ................... 26

RiseandShine Corp. v. PepsiCo, Inc.

(U.S. No. 24-1016).......................................... 6, 17, 33, 34

Rush v. GreatBanc Tr. Co.,

182 F.4th 619 (7th Cir. 2026) ........................................ 22

Schriber-Schroth Co. v. Cleveland Tr. Co.,

305 U.S. 47 (1938) .......................................................... 25

SoundExchange, Inc. v. Copyright Royalty Bd.,

904 F.3d 41 (D.C. Cir. 2018) ......................................... 19

U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset

Mgmt. LLC v. Vill. at Lakeridge, LLC,

583 U.S. 387 (2018) ............................................ 31, 32, 33

United States v. 1,601.14 Acres of Land, More or

Less, in Stutsman Cnty.,

491 F.2d 700 (8th Cir. 1974) ......................................... 22

United States v. 124.84 Acres of Land, More or

Less, in Warrick Cnty.,

387 F.2d 912 (7th Cir. 1968) ......................................... 22

United States v. 269 Acres, More or Less, Located

in Beaufort Cnty.,

995 F.3d 152 (4th Cir. 2021) ............................. 19, 20, 25

United States v. Broad. Music, Inc.,

316 F.3d 189 (2d Cir. 2003) ................................. 8, 25, 30

VIII

Page

Cases—continued:

United States v. Certain Land Situated in the

City of Detroit, 450 F.3d 205 (6th Cir. 2006) ............. 22

United States v. Dove,

247 F.3d 152 (4th Cir. 2001) ......................................... 27

United States v. Haggerty,

997 F.3d 292 (5th Cir. 2021) ......................................... 26

United States v. Live Nation Ent., Inc.,

No. 1:24-cv-3973 (S.D.N.Y.) ......................................... 10

United States v. One Star Class Sloop Sailboat

Built in 1930 with Hull No. 721, Named

“Flash II”, 546 F.3d 26 (1st Cir. 2008) ....................... 26

United States v. Rodebaugh,

798 F.3d 1281 (10th Cir. 2015) ..................................... 27

Venus Lines Agency, Inc. v. CVG Int’l Am., Inc.,

234 F.3d 1225 (11th Cir. 2000) ..................................... 26

Villaneuva Compania Naviera, S.A. v.

Bethlehem Steel Corp. (In re Bankers Tr. Co.),

658 F.2d 103 (3d Cir. 1981) ........................................... 21

Waddell v. Comm’r, 841 F.2d 264 (9th Cir. 1988) ........... 20

Walsh v. Vinoskey, 19 F.4th 672 (4th Cir. 2021) ............. 26

Wells Fargo Bank Nat’l Ass’n v. Tex. Grand

Prairie Hotel Realty, LLC (In re Tex. Grand

Prairie Hotel Realty, LLC),

710 F.3d 324 (5th Cir. 2013) ......................................... 27

Constitution, Statutes, and Rule:

U.S. Const. art. I, § 8, cl. 8.................................................... 6

15 U.S.C. § 1114 ............................................................... 6, 33

17 U.S.C.

§ 106 ................................................................................... 6

§ 114 ................................................................................. 18

§ 201 ................................................................................... 6

Page

Constitution, Statutes, and Rule—continued:

28 U.S.C. § 1254 ..................................................................... 2

Fed. R. Civ. P. 52 ....................................................... 2, 11, 13

Other Authorities:

About BMI, BMI, https://www.bmi.com/about ................. 8

About Us, ASCAP,

https://www.tinyurl.com/y7ecuav9 .............................. 24

The ASCAP Story, ASCAP,

https://tinyurl.com/c8buudw4 ........................................ 8

BMI Member FAQs, BMI,

https://tinyurl.com/2tdh5sy9 .......................................... 8

Steven J. Burton, A Lesson on Some Limits of

Economic Analysis: Schwartz and Scott on

Contract Interpretation,

88 Ind. L.J. 339 (2013)................................................... 31

Mitch Carter, Wild Thing: Hendrix at Monterey,

Picturing Black History (2021),

https://tinyurl.com/ttjckw7t ........................................... 7

History of Commercial Radio, FCC

(Oct. 17, 2023), https://tinyurl.com/mvecva8y ......... 7, 8

Steve Knopper, Get Ready for Ticket Prices to

Keep Rising, Rolling Stone (Apr. 14, 2026),

https://tinyurl.com/y8hcmaxv ........................................ 4

Live Nation Entertainment Full Year and

Fourth Quarter 2025 Results,

Live Nation Newsroom (Feb. 19, 2026),

https://tinyurl.com/3mfrv8aa ......................................... 9

Petition, RiseandShine Corp. v. PepsiCo, Inc.,

No. 24-1016 (U.S. Mar. 19, 2025) ................................. 33

Page

Other Authorities—continued:

Alan Schwartz & Robert E. Scott, Contract

Theory and the Limits of Contract Law,

113 Yale L.J. 541 (2003) .......................................... 30, 31

Ben Sisario, What’s Next Now That Live Nation

Has Been Found to Act as a Monopoly,

N.Y. Times (June 3, 2026) ............................................ 10

Statement of the Dep’t of Justice on the Closing of

the Antitrust Division’s Review of the ASCAP

and BMI Consent Decrees, DOJ

(Aug. 4, 2016), https://tinyurl.com/mryp9c5r............... 7

U.S.S.G. § 2B1.5 ................................................................... 26

In the Supreme Court of the United States

BROADCAST MUSIC, INC.,

PETITIONER,

NORTH AMERICAN CONCERT PROMOTERS ASSOCIATION,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioner Broadcast Music, Inc., respectfully petitions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Second Circuit in

this case.

OPINIONS BELOW

The opinion of the court of appeals is available at 168

F.4th 86 (2d Cir. 2026). Pet.App.2a-57a. The opinion of

the district court is available at 664 F. Supp. 3d 470

(S.D.N.Y. 2023). Pet.App.58a-89a.

JURISDICTION

The judgment of the court of appeals was entered on

February 24, 2026, and the petition for rehearing was denied on April 6, 2026. On June 25, 2026, Justice

Sotomayor extended the deadline to file a petition for a

(1)

writ of certiorari to and including August 20, 2026. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

FEDERAL RULE OF CIVIL PROCEDURE INVOLVED

Federal Rule of Civil Procedure 52(a) provides, in relevant part:

(a) Findings and Conclusions.

(1) In General. In an action tried on the facts without

a jury or with an advisory jury, the court must find the

facts specially and state its conclusions of law separately.

The findings and conclusions may be stated on the record

after the close of the evidence or may appear in an opinion

or a memorandum of decision filed by the court. Judgment must be entered under Rule 58.

(6) Setting Aside the Findings. Findings of fact,

whether based on oral or other evidence, must not be set

aside unless clearly erroneous, and the reviewing court

must give due regard to the trial court’s opportunity to

judge the witnesses’ credibility.

STATEMENT

This case presents a question of exceptional importance to the music industry, the millions of

songwriters and composers whose creative genius fuels it,

and litigants in all other industries involving royalty rates.

For more than a century, performing rights organizations

(PROs), such as petitioner Broadcast Music, Inc. (BMI),

have connected songwriters and their music with all of us.

PROs offer blanket licenses for the works in their repertoires to concert venues, bars, radio and television

stations, streaming platforms, and other music users.

Blanket licenses ensure songwriters get paid for performances of their copyrighted songs at concerts and for

other music uses, without having to individually manage

and license performance of their works. Without blanket

licenses, music users would have to navigate a nearly impossible task: negotiating licenses with each and every

performed, or face copyright liability. The impact on the

live-concert industry would be profound; artists would be

unable to adapt setlists to perform fan-requested songs or

otherwise improvise—ingredients that make concerts

magical.

Given the quagmire that individualized negotiations

would produce, PROs are “an obvious necessity.” Broad.

Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 20

(1979). Their role in the music industry has occasionally

raised antitrust questions, however. The two largest

PROs—BMI and American Society of Composers, Authors and Publishers (ASCAP)—therefore entered into

voluntary consent decrees with the federal government.

At BMI’s request, its consent decree was amended in 1994

to authorize the U.S. District Court for the Southern District of New York to resolve royalty-rate disputes

between BMI and licensees by setting a reasonable rate.

ASCAP’s consent decree includes a similar rate-setting

mechanism.

This case arises from a dispute between BMI and respondent North American Concert Promoters

Association (NACPA), which represents mega concert

promoters Live Nation Entertainment and AEG Presents, among others. NACPA obtains licenses through

BMI and other PROs so its member-promoters can host

live performances of copyrighted songs at concerts.

Three decades ago, when concert promoters were

struggling mom-and-pop businesses, BMI and NACPA

agreed that BMI’s songwriters would receive royalties

calculated at 0.15% or 0.3% of gross ticket revenues, depending on venue size. Much has changed since then.

Today, the live-concert industry is a multi-billion-dollar

business comprising many different revenue streams, including ticketing fees, secondary-market sales, and VIP

packages. As a result, the cost of attending a concert has

skyrocketed. Steve Knopper, Get Ready for Ticket Prices

to Keep Rising, Rolling Stone (Apr. 14, 2026), https://tinyurl.com/y8hcmaxv.

Fans now pay substantial

premiums, fees, and surcharges on top of elevated ticket

prices.

Given these radical changes in the industry, BMI

sought to negotiate a higher rate to fairly compensate the

individual songwriters whose music fills arenas, drives

ticket sales, and makes concerts possible. After a fiveweek trial featuring twelve fact witnesses, competing experts, and hundreds of exhibits, the district court found

that changes in the industry warranted a higher royalty

rate of 0.5% and an incremental expansion of the revenue

base to which that rate applies.

The Second Circuit reversed, privileging its own review of a cold record over the district court’s front-row

seat to the evidence and witnesses. According to the Second Circuit, the building blocks of the district court’s rate

determination—its selection of benchmark agreements

and calculation of the appropriate revenue base to which

the rate is applied—present questions of law reviewed de

novo. Applying de novo review, the Second Circuit rejected aspects of the district court’s benchmarking

analysis and implied that the court should have set the

rate based on the average or weighted average of the

benchmark rates. Then, relying on an academic article on

the concept of “contract surplus” that no party cited, the

Second Circuit rejected the district court’s expansion of

the revenue base.

The likely effect of the Second Circuit’s de novo review will be to diminish songwriters’ hard-earned

compensation when their work is performed in live concerts and to further enrich multi-billion-dollar promoters

that dominate NACPA, like Live Nation and AEG. If

nothing else, the Second Circuit’s decision to remand will

generate delay, expense, uncertainty, and repeated litigation of inherently factual issues. BMI initiated this

proceeding in 2018; eight years later, the case is now back

before the district court. Moreover, the Second Circuit’s

approach would make a protracted process the norm in all

rate-setting proceedings, depriving BMI and music users

alike of an efficient mechanism for resolving rate disputes.

The Second Circuit’s decision to apply de novo review

to quintessential factual questions is also a complete outlier. Across myriad contexts involving rate-setting and

fair-market-value determinations, nine circuits apply

clear-error review to both the building blocks of those determinations—such as selection of benchmark rates—and

the ultimate determinations themselves. That is as it

should be. Fair-market-value determinations are inherently factual and should be made by the judge with a

front-row seat to live evidence—not by a panel of appellate judges applying extra-record academic contract

theories on which no expert opined.

Because the BMI and ASCAP consent decrees both

submit rate disputes exclusively to the U.S. District Court

for the Southern District of New York, the Second Circuit’s application of de novo review to this and future ratesetting disputes is critically important to the entire music

industry, including the nearly 3 million songwriters, composers, and publishers whom BMI and ASCAP represent.

Moreover, the decision could have devastating application

across many other kinds of fair-market-value determinations made by district courts in the Second Circuit. Only

this Court can fix the Second Circuit’s egregious error

and bring it back in line with its sister circuits.

At a minimum, the Court should hold this petition

pending a decision in RiseandShine Corp. v. PepsiCo, Inc.

(U.S. No. 24-1016). RiseandShine similarly addresses the

Second Circuit’s application of de novo review to a factladen inquiry—there, the issue of trademark strength in

a likelihood-of-confusion analysis under 15 U.S.C. § 1114.

The Court’s guidance on the appropriate standard of review in RiseandShine may very well affect the Second

Circuit’s application of de novo review to a similarly factbound question here.

Factual Background

1. Every song starts with a songwriter’s or composer’s creative idea. Before an artist records a song and

before artists perform songs in concerts, a songwriter or

composer must first create the musical work. This creative process involves significant effort. Accordingly, in

order to “promote the … arts,” U.S. Const. art. I, § 8, cl. 8,

their assignees) have the exclusive right to publicly perform the work for profit and to license the work for others

to perform. 17 U.S.C. §§ 106(4), 201(d)(2). Those rights

are “not self-enforcing.” Broad. Music, 441 U.S. at 4. Individual copyright owners face immense obstacles to

negotiating licenses with individual users. Id. at 20.

Moreover, live music performances are often fleeting, so

detecting violations is all but impossible for many individual copyright owners. Id. at 4-5.

Music users—that is, the businesses that build their

businesses on these songs—in turn face similar difficulties in securing licenses for every song that an artist may

wish to perform at a concert or that a DJ may wish to play

on air. See id. at 20-22. Indeed, when a musician performs

a live cover of another artist’s work—like Jimi Hendrix’s

rendition of “Like a Rolling Stone” by Bob Dylan at the

1967 Monterey International Pop Festival1—the concert

venue would face copyright liability if it had failed to secure a license for that surprise cover ahead of time. If a

DJ plays a new single, the radio station would face copyright liability if it failed to secure a license first. Before

any concert or broadcast, therefore, music users must secure the rights to play whatever songs they choose. Pet.

CA2 Br. 11.

PROs solve this problem. They “provide a valuable

service to both music users and PRO members” by offering blanket licenses to music users for all the copyrighted

musical works in their repertoires. Statement of the Dep’t

of Justice on the Closing of the Antitrust Division’s Review of the ASCAP and BMI Consent Decrees 10, DOJ

(Aug. 4, 2016), https://tinyurl.com/mryp9c5r (2016 DOJ

Statement). PROs’ blanket licenses ensure that songwriters get paid for public performances of their copyrighted

works and allow music-intensive businesses like concert

promoters to have a wide repertoire of copyrighted music

at the ready. Broad. Music, 441 U.S. at 21-22. As the

Department of Justice has recognized, the “licensing and

payment benefits” from PROs are “significant,” and “the

current system has well served music creators and music

users for decades.” 2016 DOJ Statement 3.

Given the upsides to the songwriters and the businesses that play their music, PROs have long been a

feature of the American music industry—even predating

the advent of commercial radio. Cf. History of Commercial

Radio,

FCC

(Oct.

17,

2023),

Mitch Carter, Wild Thing: Hendrix at Monterey, Picturing Black

History (2021), https://tinyurl.com/ttjckw7t.

https://tinyurl.com/mvecva8y. The first PRO, ASCAP,

formed in 1914. The ASCAP Story, ASCAP, https://tinyurl.com/c8buudw4. Petitioner BMI followed suit in

1939, seeking to represent the jazz, country, and blues

musicians who were at that time excluded from ASCAP’s

ranks. D. Ct. Dkt. 172-5 at 2. In the early days, BMI’s

affiliates ranged from Buddy Holly to Hank Williams to

Miles Davis. Id. Other PROs include SESAC Performing

Rights, LLC (formerly the Society of European Stage Authors and Composers), and Global Music Rights (GMR).

Pet.App.60a.

Today, BMI represents more than 25 million musical

works and 1.5 million songwriters, composers, and music

publishers.

About

BMI,

https://www.bmi.com/about. Songwriters and composers

create songs, scores, and musical compositions; typically,

publishers own or administer a work’s copyright after it

has been assigned to them. BMI Member FAQs, BMI,

https://tinyurl.com/2tdh5sy9.

2. BMI has never been found to have engaged in anticompetitive behavior. However, given the role PROs

play in this industry, and the “unique conditions recognized as potentially anti-competitive,” BMI and ASCAP

are regulated by separate voluntary, court-approved consent decrees with the U.S. Department of Justice. United

States v. Broad. Music, Inc., 316 F.3d 189, 190 (2d Cir.

2003) (emphasis added).

BMI’s first consent decree originated from a 1941

lawsuit and was replaced after the government filed a second antitrust lawsuit in 1964. D. Ct. Dkt. 172-5 at 3-4.

Although the government admitted that it initiated the

1964 lawsuit “without first obtaining any hard facts,” the

government settled in 1966, and BMI voluntarily entered

into a new consent decree. Id. at 4, 15 n.8 (citation omitted). ASCAP’s consent decree—created in 1941 and

modified in 1950—included a procedure for the district

court to set a reasonable rate for licenses. Id. at 3. BMI’s

1941 and 1966 consent decrees lacked that feature.

Notwithstanding BMI’s 1966 consent decree, and the

fact that BMI was and has never been found to be in violation of the decree, music users continued to bring

antitrust litigation against BMI. Id. at 4. Although BMI

successfully defeated these antitrust suits, BMI eventually had enough and petitioned the district court in 1994

to modify the consent decree, with the Department of Justice’s consent. Id. at 1. The court modified the consent

decree to include a rate-setting procedure along the lines

of ASCAP’s. D. Ct. Dkt. 124-1 ¶ 4. Under the rate-setting

procedure, when BMI and a music user are unable to negotiate a license rate themselves, either can petition the

district court to “determine a reasonable fee based upon

all the evidence.” CA2 A.46; see Pet.App.58a. Both the

BMI and ASCAP consent decrees confer exclusive jurisdiction for rate disputes upon the U.S. District Court for

the Southern District of New York.

3. This case involves the multi-billion-dollar market

for live performances of copyrighted music. Respondent

NACPA is an association of Live Nation, AEG, and a few

smaller concert promoters. Pet.App.61a. NACPA negotiated and litigated rates with BMI and other PROs on

behalf of its members. Pet.App.60a-61a. Live Nation and

AEG are the largest concert promoters in the United

States; are “conglomerates” of “concert promotion, venue

ownership, and ticket servicing”; and collectively bring in

over $25 billion in cash annually. See Pet.App.61a-62a;

Live Nation Entertainment Full Year and Fourth Quarter 2025 Results, Live Nation Newsroom (Feb. 19, 2026),

https://tinyurl.com/3mfrv8aa. Live Nation and AEG organize live music events and, through subsidiaries

Ticketmaster (Live Nation’s) and AXS (AEG’s), sell tickets to those events, creating a secondary revenue stream

from ticketing fees. Pet.App.10a.

Live Nation and AEG’s supremacy over the live-concert industry is a recent phenomenon. In the 1990s, the

industry was “composed of small independent promoters

operating in regional markets on slim margins.”

Pet.App.62a. Ninety percent of shows operated at a loss.

Pet.App.62a. Over time, “regional promoters began consolidating until the modern landscape … dominated by

Live Nation and AEG emerged.” Pet.App.62a. The concert-promotion industry has become so consolidated that

earlier this year, a federal jury declared Live Nation to

have acted as an illegal monopoly. See Ben Sisario, What’s

Next Now That Live Nation Has Been Found to Act as a

Monopoly, N.Y. Times (June 3, 2026); United States v.

Live Nation Ent., Inc., No. 1:24-cv-3973 (S.D.N.Y.).

The license fee paid by NACPA members to BMI’s

affiliates for live concerts was last negotiated more than

three decades ago, in 1992. Pet.App.62a-63a. At that

time, BMI proposed a 1% rate, but “NACPA protested

that the concert industry was in economic distress and

could not afford to pay BMI’s requested rate.”

Pet.App.62a-63a. In 1998, the parties ultimately settled

on “a rate of 0.3% of ‘Gross Ticket Revenues’ for concerts

with under 10,000 seats and a rate of 0.15% for those with

over 10,000 seats.” Pet.App.63a. Put differently, songwriters received only 15 cents for every $100 in ticket

sales at the biggest venues. The license rate was so low

that expenses for catering, drapes in dressing rooms, and

walkie-talkies all exceeded the license fees paid to BMI’s

songwriters, composers, and publishers whose works

were performed. D. Ct. Dkt. 160 at ¶¶ 26-27.

The 1998 rates remained in place until 2013, when the

license was terminated. Pet.App.63a-64a. “The parties

[had] been on an interim agreement and [had] engaged in

protracted negotiations for a new license without success.”

Pet.App.64a.

In 2018, after the parties’

negotiations stalled, BMI petitioned the district court to

set a reasonable rate under the consent decree.

Pet.App.58a-59a; CA2 A.22-A.35.

Procedural History

1. In its petition, BMI asked the court to set the rate

for a retroactive period (from January 1, 2014 until June

30, 2018) and a then-current period (from July 1, 2018 to

December 31, 2022). Pet.App.59a. For the retroactive period, BMI requested a tiered rate structure, with rates

from 0.15% to 0.8% depending on the venue size.

Pet.App.65a. BMI requested a unified rate of 0.8% for the

then-current period for all venues and sought to expand

the revenue base from the face value of concert tickets to

include revenues from ticket fees, VIP packages and box

suites, sponsorships, and certain secondary-market ticket

sales. Pet.App.64a. NACPA, for its part, sought a rate

between 0.21% and 0.275% for the then-current period

and a rate of 0.23% for the retroactive period, with each

rate applied only to the face value of a ticket. Pet.App.52a,

65a.

The district court held a five-week trial, with live testimony from twelve fact witnesses and two economic

experts, along with over 300 exhibits. In 2023, after assessing the witnesses and exhaustively reviewing the

record, the district court issued a 37-page opinion that rejected aspects of both BMI’s and NACPA’s proposed rate

and revenue base. Pet.App.88a-89a; see Fed. R. Civ. P.

52(a).

Regarding the then-current rate, the court rejected

BMI’s proposed rate of 0.8%. The court instead selected

a 0.5% rate by considering a range of benchmarks, including licenses between PROs (BMI, ASCAP, SESAC, and

GMR) and promoters or their representatives (NACPA,

Live Nation and AEG, and promoters other than NACPA

members). Pet.App.79a-87a. Those benchmarks had

rates ranging from 0.21% to 0.54%, with the ASCAP and

older BMI agreements on the low end and the more recent SESAC and GMR agreements on the high end.

Pet.App.79a-83a, 86a.

Starting with the lower-end rates in the BMI license,

the district court cautioned that “[t]here have been significant market changes since the [BMI] rate was first set in

1998.” Pet.App.81a. The court had previously noted how

the “small independent promoters” of the 1990s had given

way to the “domina[nt]” and “consolidat[ed]” promoters

of today. Pet.App.62a. Thus, the district court found that

while the BMI license was a “proper benchmark[],” it

merely “set[] the floor from which to determine the reasonableness of the new license.” Pet.App.81a. Along

similar lines, the district court found that the ASCAP license was a “valid benchmark” too. Pet.App.81a-82a.

The court also determined that the SESAC and GMR

licenses were valid benchmarks since these licenses were

“between similar parties, for similar rights, and were negotiated

similar

economic

circumstances.”

Pet.App.83a. Accepting the opinion of BMI’s economic

expert, the court noted that because they are unconstrained by consent decrees, SESAC and GMR enjoy the

“freedom to terminate a negotiation, a capability which

approximates the dynamics of a direct licensing negotiation between a music user and the individual music

publisher.” Pet.App.84a. Further, the court noted that “a

direct license with the copyright holder” is “the next best

alternative to a blanket license with a PRO,” and

SESAC’s and GMR’s “market sizes are more comparable

to those of the large music publishers that music users

would have to negotiate with directly in the absence of

PROs.” Pet.App.84a.

As to the gross revenue base, the court included the

face value of tickets, revenues for initial sales on the secondary market, ticket fees, box suites, and VIP packages.

Pet.App.76a-77a. The court explained that the payment

customers make to “receive the product or service in

question” is a core indicator of fair market value.

Pet.App.77a (citation omitted). The court credited testimony that certain NACPA members already included

secondary-market sales, VIP packages, and box suites in

the proceeds they report to NACPA for purposes of calculating licensing fees under the prior BMI licensing

agreement. See Pet.App.77a. As to ticketing fees, the

court highlighted testimony from a NACPA member that

ticketing fees are included in the “amount that the fan is

willing to pay to attend the concert.” Pet.App.78a (citation omitted). However, the court rejected BMI’s request

to include sponsorship revenues in the gross revenue base

based on the record before it, reasoning that these revenues “do[] not affect the ultimate price the customer has

to pay to attend the show.” Pet.App.69a.

Finally, the court adopted BMI’s proposal for the retroactive period, which retained “the historical tiered rate

structure and narrow revenue base.” Pet.App.88a. The

historical rate structure aligned with BMI’s licenses with

other concert promoters, which the court deemed valid

benchmarks. Pet.App.88a.

2. NACPA appealed, and a two-judge Second Circuit

panel vacated and remanded, the third judge having

recused herself after oral argument. Pet.App.2a, 19a.

Although Federal Rule of Civil Procedure 52(a)(6) notes

that fact-findings “must not be set aside unless clearly erroneous,” Fed. R. Civ. P. 52(a)(6), the Second Circuit held

that “the selection and weighing of benchmarks and the

definition of an appropriate revenue base” were all legal

issues subject to de novo review, Pet.App.22a.

Reviewing de novo, the Second Circuit rejected the

0.5% rate. Pet.App.39a-40a. The Second Circuit secondguessed the district court’s assessment of benchmarking

evidence, faulting the court for “fail[ing] to assign weights

to the benchmarks and implicitly accord[ing] greater

weight to the SESAC and GMR benchmarks than to the

BMI and ASCAP benchmarks.” Pet.App.40a. In support

of this idea, the Second Circuit cited observations about

SESAC from another district court twelve years earlier in

a case with different parties and a different record.

Pet.App.43a-44a (citing In re Pandora Media, Inc., 6 F.

Supp. 3d 317, 362 (S.D.N.Y. 2014)). The Second Circuit

also rejected the district court’s reliance on benchmarks

from non-NACPA concert promoters because the court of

appeals disagreed with the district court’s finding that

those licenses were comparable. Pet.App.44a-46a.

Ignoring the contrary testimony of BMI’s expert, the

Second Circuit further found that the 0.5% rate was too

high, despite falling within the range of benchmarks determined to be comparable by both the district court and

the Second Circuit. See Pet.App.48a-49a, 51a. Instead,

the Second Circuit held that the district court should have

based its analysis on the “BMI/NACPA license, the

ASCAP/NACPA license, the SESAC/NACPA license,

and possibly the GMR/Live Nation and GMR/AEG licenses.” Pet.App.51a. Based on its view of the rate

generated by an average or weighted average of the

benchmark rates, the Second Circuit observed that the

rate “would be significantly lower” than the district

court’s rate, “but it may be higher” than the old rate.

Pet.App.51a.

The Second Circuit also rejected the district court’s

rate for the retroactive period because the retroactive

rate also relied on benchmarks from non-NACPA promoters. Pet.App.52a.

Again applying de novo review, the Second Circuit

disagreed with the district court’s findings as to the revenue base. Pet.App.26a-28a. The court emphasized that

the revenue base “historically” included only the ticket’s

face value. Pet.App.27a (cleaned up). Although the district court had credited testimony that certain NACPA

members were already reporting a wider revenue base,

the Second Circuit rejected that finding with a footnote

recharacterizing some of the record as “unclear.” See

Pet.App.36a-37a & n.19.

The Second Circuit also relied heavily on an article on

contracting principles—which no party had cited—to conclude that parties in a hypothetical negotiation would not

expand the revenue base because it would create administrative costs for NACPA without any corresponding

benefits to the contractual “surplus.” Pet.App.30a-31a.

Although the district court had determined that its expanded revenue base would be workable, the Second

Circuit rejected the court’s finding, substituting its own

opinion that the expanded revenue base would be commercially impracticable. Pet.App.28a-29a, 37a-39a.

The Second Circuit thus vacated the judgment and

remanded for further proceedings. Pet.App.57a.

3. On April 6, 2026, the Second Circuit denied BMI’s

petition for rehearing. Pet.App.1a.

REASONS FOR GRANTING THE PETITION

This case is a clean vehicle to resolve a lopsided circuit

split and presents a question of exceptional importance to

millions of songwriters, composers, and publishers, as

well as other parties litigating rate disputes.

Because the Second Circuit departed from an otherwise unanimous and appropriate approach, the circuits

have now split over whether fair-market-value determinations and their component parts, such as the

determination whether proposed benchmark agreements

are comparable to the target agreement, are reviewed

deferentially or under a stringent de novo standard.

Three circuits—the D.C., Fourth, and Ninth—hold that

the benchmarks a district court uses in making a valuation

determination should be reviewed deferentially. The Second Circuit, however, distorted the benchmark analysis

into a legal question reviewed de novo. Six other circuits

have held that the final valuation decision in a fair-marketvalue determination is inherently factual, reviewed under

the deferential clear-error standard. But the Second Circuit effectively split with those courts too, transforming

almost every facet of its review of the district court’s ratesetting into a legal issue subject to plenary appellate scrutiny.

The question presented impacts the livelihood of millions of musical copyright holders and could affect

litigants in numerous other types of rate disputes. The

Second Circuit’s erroneous standard of review now controls all future review of royalty-rate decisions for BMI

and ASCAP with respect to live concerts, television, radio,

streaming platforms, and more. That standard creates

massive judicial inefficiencies by increasing the number of

potential remands. This case is illustrative—with songwriters already waiting eight years for a resolution. The

Second Circuit’s flawed reasoning also could infect the

standard of review in a range of other contexts involving

fair-market valuations. Additionally, because the application of de novo review was outcome-determinative, this

case presents a clean vehicle for resolving the question

presented.

The Second Circuit’s stringent standard was manifestly wrong on the merits, too. It defies this Court’s

teaching that fact-intensive questions should be reviewed

for clear error even if they include legal components.

For these reasons, this Court should grant the petition and decide it on the merits. At the very least, the

Court should hold this petition pending resolution of

RiseandShine Corp. There, too, the Second Circuit

parted ways with every other circuit by applying de novo

review to a fact-bound district-court determination.

RiseandShine thus could affect the selection of the appropriate standard of review here.

The Circuits Are Divided Over the Standard of Review for

Fair-Market-Value Determinations and Their Component Parts

The Second Circuit stands alone in treating fair-market-value determinations and their component parts as

legal questions subject to de novo review. Nine other circuits recognize the fact-intensive nature of these decisions

and accordingly defer to the district court.

1. Below, the Second Circuit held that de novo review

applies to critical components of a fair-market-value determination.

Although the court “analogized the

determination of fair market value to an evidentiary ruling,” it “nevertheless accord[ed] plenary review to the

legal issues involved in the determination.” Pet.App.21a.

The court then saw a legal issue in nearly every component part despite the inherently factual nature of these

issues. See Pet.App.22a-23a. Those components included

“the selection and weighing of benchmarks and the definition of an appropriate revenue base” to which the

royalty rate applied, Pet.App.22a, as well as “the decision[] … to depart from the rates previously negotiated,”

Pet.App.20a. Each of those decisions, said the Second

Circuit, “can fairly be isolated as determining an issue of

law.” Pet.App.23a.

Thus, while the court said it would review the ultimate

fair-market-value determination (the royalty rate) for

“reasonableness,” Pet.App.19a, the court defined reasonableness review to mean de novo review of every

component part of the rate itself, see Pet.App.22a-23a.

The result: the Second Circuit offered its own benchmarks and revenue base, allowing its fair-market-value

determination to supersede the district court’s exhaustive

consideration of the evidence.

2. Nine other circuits recognize that fair-marketvalue determinations and their component parts are inherently factual, warranting deferential review. Three of

those circuits deferentially review the choice of benchmarks that underlie fair-market-value determinations.

Another six circuits review the fair-market-value determination itself for clear error.

a. Three circuits—the D.C., Fourth, and Ninth Circuits—deferentially review the choice of benchmarks or

comparators underlying a fair-market-value determination in addition to deferentially reviewing the final rate.

The D.C. Circuit applies a “highly deferential” standard of review in the analogous context of copyrightroyalty-rate determinations for music licensing. Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574

F.3d 748, 759 (D.C. Cir. 2009). There, the Copyright Royalty Board—a creature of statute—“set[s] ‘reasonable

rates and terms’ for royalty payments from digital performances.” Id. at 754 (quoting 17 U.S.C. § 114(f)). The D.C.

Circuit recognizes that these “administratively determined rates” are “highly technical,” warranting a

“particularly deferential” standard of review. Id. at 755

(citation omitted).

That deference “extends to” not just the rate itself,

but also whether rates in other agreements “could be considered ‘comparable’ to the ratesetting the [Copyright

Royalty] Judges were undertaking.” Id. at 759 (citation

omitted). Thus, appellants “face[] an uphill battle in challenging the Board’s selection of its benchmarks,” given

the Board’s discretion “to assess evidence of an agreement’s comparability and to decide whether to look to its

rates and terms for guidance.” SoundExchange, Inc. v.

(citation omitted); see also Music Choice v. Copyright

Royalty Bd., 774 F.3d 1000, 1009 (D.C. Cir. 2014) (noting

the Board’s “broad discretion to discount [a party’s preferred] benchmarks”).

The Fourth Circuit similarly reviews deferentially

the benchmarks underlying valuation determinations. In

United States v. 269 Acres, More or Less, Located in

Beaufort County, 995 F.3d 152 (4th Cir. 2021), the court

reviewed a district court’s fair-market-value determination for property in a takings case. See id. at 162-63. “The

best evidence of property value,” the Fourth Circuit explained, “comes from comparable land sales, where the

more similar the land is the more probative the sale price

is.” Id. at 164. “Because identifying the relevant comparisons and making value adjustments often turns into a

battle of experts, [the Fourth Circuit] defer[s] to the district court in weighing the varying opinions those experts

offer, reversing only when the district court has made a

clear error.” Id. at 164. Thus, the appellant’s argument

that certain “land comparisons were inapplicable and

should not have been credited” by the district court in setting fair market value was “intensely factual and ask[ed]

[the court] to second guess … the district court’s credibility determinations and weighing of the evidence.” Id. at

165. The Fourth Circuit applied clear-error review to that

argument. Id.

As the Fourth Circuit further recognized, that deference “is vital to our judicial system.” Id. at 157.

“[D]eference respects the superior competence of local

fact finders in reviewing the evidence while also promoting judicial economy.” Id. When a case “turns on that

deference,” the standard of review “compels [the court of

appeals] to affirm,” even though it “might have decided

th[e] case differently in the first instance.” Id.

The Ninth Circuit applies a similarly deferential

standard to the choice of comparators underlying a district court’s fair-market-value determination.

Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024 (9th Cir.

2015), the Ninth Circuit reviewed a district court’s decision, following a bench trial, that set a reasonable and nondiscriminatory (RAND) royalty rate for standard-essential patent licenses. See id. at 1033, 1042-45. Like

respondents here, the appellants there challenged the district court’s choice of comparators and the “weight”

assigned to them. See id. at 1042. The Ninth Circuit reviewed those decisions only for clear error. See id. at

1043. It concluded that “it was not clear error to reject

the past licenses as too contextually dissimilar to be useful

to the RAND rate calculation.” Id.; see also Waddell v.

Comm’r, 841 F.2d 264, 268 (9th Cir. 1988) (applying clearerror review to fair-market-value determination in tax

valuation context, including to comparison to other products).

In the D.C., Fourth, and Ninth Circuits, the district

court’s benchmark analysis and selection of a rate from

those benchmarks would have been treated as findings of

fact and afforded deference. Because the Second Circuit

morphed benchmarking into a legal question, however, it

disregarded the district court’s analysis without identifying anything close to clear error.

b. When reviewing fair-market-value determinations

themselves, six circuits—the First, Third, Sixth, Seventh,

Eighth, and Tenth—apply a similarly deferential standard. Across myriad contexts, these circuits review those

determinations for clear error.

The First Circuit applies clear-error review to fairmarket-value determinations in the takings context. Nat’l

R.R. Passenger Corp. v. Certain Temp. Easements Above

R.R. Right of Way in Providence, 357 F.3d 36, 39 (1st Cir.

2004). Thus, after a district court determined the “fair

market fee value” of property taken by eminent domain,

the First Circuit deferred to the district court’s interpretation of expert testimony and other evidence supporting

its valuation. See id. at 39-41.

The Third Circuit takes the same approach. After a

district court determined a ship’s fair market value, the

Third Circuit rejected arguments that the valuation “was

clearly erroneous because it was based upon a contemporaneous sales market established by the sale of only one

ship.” Villaneuva Compania Naviera, S.A. v. Bethlehem

Steel Corp. (In re Bankers Tr. Co.), 658 F.2d 103, 106 (3d

Cir. 1981). “[O]ur role when reviewing a district court’s

factual findings,” the Third Circuit explained, “is not to

‘substitute findings we could have made had we been the

fact-finding tribunal.’” Id. (citation omitted). Instead, the

Third Circuit views its “function” as simply “to review the

record to determine whether the findings of the District

Court were clearly erroneous.” Id. (citation omitted); accord Hechinger Litig. Tr. v. Bankboston Retail Fin., Inc.

(In re Hechinger Inv. Co. of Del.), 147 F. App’x 248, 252

(3d Cir. 2005) (finding no clear error in “affording great

weight to [a] contemporaneous … valuation” for fair-market-value determination).

Similarly, the Sixth Circuit applies clear-error review

to valuations in the tax context. Gross v. Comm’r, 272

F.3d 333, 342-43 (6th Cir. 2001). Addressing a dispute

over “the fair market value of certain shares of corporate

stock,” id. at 335, the Sixth Circuit acknowledged that

“the question of whether the tax court used the correct

standard to determine the fair market value is a legal issue,” subject to de novo review, id. at 342. Yet “[t]he

choice of the appropriate valuation methodology for a particular stock is, in itself, a question of fact.” Id. at 343.

Thus, “a difference in opinion as to the methodologies

used to arrive at the valuation amount” is “review[ed] …

only for clear error.” Id.; see also United States v. Certain

Land Situated in the City of Detroit, 450 F.3d 205, 212

(6th Cir. 2006) (applying clear-error review to interest

awarded for just compensation in takings context).

The Seventh Circuit agrees. In the takings context,

for example, the court has clarified that a “[d]etermination of comparability rests within the discretion of the

trier of the facts, and ordinarily will not be disturbed on

review.” United States v. 124.84 Acres of Land, More or

Less, in Warrick Cnty., 387 F.2d 912, 915 (7th Cir. 1968);

see also Rush v. GreatBanc Tr. Co., 182 F.4th 619, 637-38

(7th Cir. 2026) (applying clear-error review to fair-market-value determination of damages in ERISA breach-offiduciary-duty cases).

The Eighth Circuit has followed suit. In takings

cases, the court has applied clear-error review to a “determination of the fair market value of [a] leasehold

interest.” United States v. 1,601.14 Acres of Land, More

or Less, in Stutsman Cnty., 491 F.2d 700, 701-02 (8th Cir.

1974). That standard, the Eighth Circuit recognized, respects “the right and duty of the trial court as the fact

finder … to determine the credibility of the witnesses, including expert witnesses, and the weight to be given to

their testimony.” See id. at 701; accord Mark IV Pictures,

Inc. v. Comm’r, 969 F.2d 669, 675 (8th Cir. 1992) (applying

clear-error review in tax-valuation context).

The Tenth Circuit hews to this line, too. Addressing

a commercial dispute where the damages rested on a business’s “fair market value,” the Tenth Circuit rejected an

attempt to frame attacks on the fair-market-value determination as legal questions. Eateries, Inc. v. J.R. Simplot

Co., 346 F.3d 1225, 1229-30 (10th Cir. 2003). The court

recognized such attacks are “not a challenge to the methodology itself” but “a challenge to the district court’s

factual findings of [the business’s] fair market value.” Id.

at 1230. Thus, the court reviewed for clear error, id., in

stark contrast to the decision below.

In these circuits, the district court’s determination

here would have received the deference it deserved, since

the parties agreed on the rate-setting methodology. E.g.,

Pet.App.81a (noting “both sides’ experts” used benchmarks). Parting ways with each of these circuits, the

Second Circuit chose instead to flyspeck the district

court’s valuation and fact-finding, setting aside key aspects of the district court’s analysis based solely on the

court of appeals’ preferred view of the record.

II. The Question Presented Is Exceptionally Important, Recurring, and Squarely Presented

The adverse effects of the decision below—and its

likelihood of recurring—cannot be overstated. Absent

this Court’s review, the decision will adversely affect

songwriters, composers, and publishers numbering in the

millions. It will infect the Second Circuit’s review of royalty-rate determinations for other licenses outside of live

concerts. It will undermine judicial economy. It also

could disrupt the standard of review in numerous other

contexts involving fair-market-value determinations and

royalty rates. This case presents a clean vehicle to review

the question presented and reunify the circuits.

1. Millions of songwriters, composers, and publishers

depend on royalties to receive fair compensation for performances of their copyright-protected works. Since

BMI’s rate for live concert performances was last negotiated in the 1990s, the music industry has radically

transformed. Some concert promoters are now mammoths operating with market power that has drawn

intense antitrust scrutiny and earning billions from live

music performances. Supra p. 10. In contrast, the creative minds whose musical works are the indispensable

foundation for the live-concert industry receive just a tiny

sliver of the proceeds.

The district court recognized this unfair and outdated

valuation and adopted a reasonable rate to fairly compensate the songwriters whose talent and creativity make

concerts possible. The Second Circuit’s application of an

erroneously stringent standard of review affects the livelihood of those songwriters, ranging from Grammy

winners to burgeoning talent. The Second Circuit’s decision is particularly problematic for the significant portion

of BMI’s affiliates who are non-performing songwriters;

their “sole source of income is the royalties for uses of

their songs.” NMPA CA2 Amicus Br. 1.

The Second Circuit’s flawed methodology will directly

impact more than just BMI’s 1.5 million affiliates. The

Second Circuit also reviews royalty-rate decisions for

ASCAP, meaning that the 1.1 million songwriters, composers, and publishers represented by that PRO are now

subject to the Second Circuit’s standard too. See ASCAP

CA2 Amicus Br. 2; About Us, ASCAP, https://www.tinyurl.com/y7ecuav9. Likewise, music users could see

technical, fact-bound decisions undone at the whims of a

three-judge (or in this case, a two-judge) panel.

Additionally, the impact of the Second Circuit’s decision goes beyond the live-concert context. The Second

Circuit reviews all royalty-rate determinations for BMI

and ASCAP, which run the gamut from television broadcasters to streaming services, and everything in between.

E.g., Broad. Music, 316 F.3d 189 (cable and satellite television); Pandora Media, Inc. v. Am. Soc’y of Composers,

Authors & Publishers, 785 F.3d 73 (2d Cir. 2015) (internet-radio service). The flawed standard of review in the

decision below could now adversely affect those proceedings as well.

Since the Second Circuit oversees decisions under

both the BMI and ASCAP consent decrees, and the Circuit declined to review the decision below en banc, nearly

three million songwriters, composers, and publishers will

be stuck with the consequences of the decision below absent this Court’s intervention. As this Court has

recognized, when an industry is concentrated in one circuit such “that litigation in other circuits resulting in a

conflict of decision would not be likely to occur,” certiorari

is nevertheless warranted. Exhibit Supply Co. v. Ace Patents Corp., 315 U.S. 126, 128 (1942); accord SchriberSchroth Co. v. Cleveland Tr. Co., 305 U.S. 47, 50 (1938);

Muncie Gear Works, Inc. v. Outboard, Marine & Mfg.

Co., 315 U.S. 759, 766 (1942). Here, the grounds for certiorari are even more compelling because the Second

Circuit split with nine others. Supra Part I.

2. Setting aside the adverse effects on songwriters,

composers, and publishers, the decision below also creates massive inefficiencies, undermining “judicial

economy.” See 269 Acres, 995 F.3d at 157. The trial here

took five weeks and occurred four years ago. As the

Fourth Circuit has observed elsewhere, the district court

“oversaw the case from start to finish, developed the evidentiary record in the process and looked the witnesses in

their eyes while they gave their testimony.” Walsh v. Vinoskey, 19 F.4th 672, 680 (4th Cir. 2021). Applying de

novo review to the court’s rate determination vastly increases the chance of retrial in the mine-run case, likely

more than doubling the work, time, and expense for the

parties and judiciary alike.

3. The decision below has far-reaching consequences

outside of music licensing. Myriad contexts involve ratesetting and fair-market-value determinations, and courts

typically review those determinations for clear error. In

addition to the intellectual-property, tax, eminent domain,

and damages contexts identified above, supra Part I, the

decision below could infect the standard of review in multiple other contexts, including:



The fair market value of property wrongfully

seized by and forfeited to the government. United

States v. One Star Class Sloop Sailboat Built in

1930 with Hull No. 721, Named “Flash II”, 546

F.3d 26, 35 (1st Cir. 2008);



The “reasonable” rate for attorney’s fees. Plyler

v. Evatt, 902 F.2d 273, 277-78 (4th Cir. 1990); Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 726

F.3d 403, 416 (3d Cir. 2013); La. Power & Light

Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995);



The interest rate in calculating damages. Venus

Lines Agency, Inc. v. CVG Int’l Am., Inc., 234

F.3d 1225, 1231 (11th Cir. 2000);



The discount rate for deferred payments in bankruptcy. Farm Cred. Servs. of Am. v. Topp (In re

Topp), 75 F.4th 959, 963 (8th Cir. 2023);



The fair market value of “cultural heritage resources” under section 2B1.5 of the Sentencing

Guidelines. United States v. Haggerty, 997 F.3d

292, 303-04 (5th Cir. 2021);



The fair market value of wildlife sold in violation

of the Lacey Act, under the Sentencing Guidelines. United States v. Dove, 247 F.3d 152, 159

(4th Cir. 2001); United States v. Rodebaugh, 798

F.3d 1281, 1298-99 (10th Cir. 2015); and



The cramdown interest rate in bankruptcy. Wells

Fargo Bank Nat’l Ass’n v. Tex. Grand Prairie

Hotel Realty, LLC (In re Tex. Grand Prairie Hotel Realty, LLC), 710 F.3d 324, 330-31 (5th Cir.

2013).

4. This case provides an ideal vehicle for answering

the question presented because the Second Circuit’s application of a de novo standard was outcomedeterminative.

a. The Second Circuit’s review of the benchmarks

was outcome-determinative, flawed, and inefficient. The

district court examined numerous benchmarks that required parsing scores of record evidence and extensive

expert testimony. Based on the record, the court found

that the GMR and SESAC licenses were better benchmarks than the BMI and ASCAP licenses because they

more accurately “reflect[ed] the level of competition that

would be inherent in a direct licensing negotiation.”

Pet.App.84a. Although the BMI-NACPA license was a

“proper benchmark[],” it was of lesser value to the district

court because of the “significant market changes” that

had occurred since the rate was negotiated in the 1990s.

Pet.App.81a. The court also considered licenses with nonNACPA promoters to be valid benchmarks, because they

“arose in a market that reflects the same degree of competition and economic circumstances.” Pet.App.82a.

Finally, while the court deemed the ASCAP-NACPA license “a valid benchmark” given the expert testimony,

Pet.App.81a, the court ultimately found that the entire

record justified a higher rate, Pet.App.86a-87a.

Nevertheless, the Second Circuit brushed off those

fact-laden determinations because it favored its own set of

facts. Pet.App.40a-44a. Instead of deferring to the district court’s findings on the applicability of the SESAC

and GMR benchmarks, the Second Circuit favored

twelve-year-old findings of fact regarding SESAC licenses from a different district court, regarding different

parties, on a different record, in reversing the district

court here. Pet.App.43a-44a (citing In re Pandora, 6 F.

Supp. 3d at 362).

The Second Circuit also set aside the district court’s

finding that licenses with promoters unaffiliated with

NACPA constituted adequate comparators. Pet.App.44a48a. Although the district court found that these licenses

were adequately comparable, the Second Circuit rejected

that finding on plenary review because it disagreed with

how the district court parsed the evidence. Pet.App.45a.

At every point in the benchmarking analysis, the Second

Circuit second-guessed the district court’s careful findings of fact, effectively conducting a second trial on a cold

record and substituting its findings for those of the trial

court.

b. The Second Circuit also applied de novo review to

the district court’s ultimate selection of the 0.5% rate. The

district court selected the 0.5% rate based on its benchmarking analysis and additional testimony.

The

benchmark rates ranged from 0.21% to 0.54%.

Pet.App.86a. The district court selected a rate on the high

end of the range—in line with the SESAC and GMR licenses. Pet.App.86a. Based on testimony from BMI’s

head of licensing, the district court reasoned that the fair

market value for licenses in other music-intensive industries, such as commercial-radio stations or virtual-liveconcert streaming services, should influence the rate-setting inquiry. Pet.App.86a-87a. Those licenses had higher

rates than BMI’s past live-concert license with NACPA,

further supporting a rate on the higher end of the benchmark range. Pet.App.86a.

The Second Circuit reversed, finding the district

court failed to “justify its departure from the prior rates

negotiated by NACPA with BMI and ASCAP.”

Pet.App.48a. The Second Circuit inserted itself directly

into the details of determining a reasonable rate, opining

that the district court should have averaged the rates

from the “BMI/NACPA license, the ASCAP/NACPA license, the SESAC/NACPA license, and possibly the

GMR/Live Nation and GMR/AEG licenses,” or taken a

weighted average of these rates. Pet.App.51a. Either

methodology would have produced a lower rate than the

0.5% selected by the district court. Pet.App.51a. The Second Circuit’s approach overlooked the extensive evidence

presented at trial on the changes to the concert industry,

which caused the district court to place lesser weight on

the older BMI and ASCAP agreements and to emphasize

the GMR and SESAC licenses.

c. The Second Circuit’s plenary review of the revenue

base was also outcome determinative. The district court

considered extensive testimony and numerous exhibits in

deciding to expand the revenue base from a ticket’s face

value to include ticketing fees, secondary-market sales,

box suites, and VIP packages. Pet.App.68a-70a, 76a-79a.

The court heard evidence that this change was appropriate because concert promoters had artificially depressed

the face value of tickets by jacking up the cost of these

items. See Pet.App.61a-62a. As the district court recognized, fans “pay service fees on virtually all tickets.”

Pet.App.61a. Moreover, Live Nation and AEG executives

testified that they were already reporting many of these

cash flows to NACPA under the old agreement.

Pet.App.77a.

The district court thus found that the measure of what

fans pay to receive the product—including the ticket’s

face value, secondary-ticket sales, ticketing fees, box

suites, and VIP packages—appropriately indicated fair

market value. Pet.App.68a (citing Broad. Music, Inc., 316

F.3d at 195; In re Application of MobiTv, Inc., 712 F.

Supp. 2d 206, 234 (S.D.N.Y. 2010), aff’d sub nom. MobiTV

II, 681 F.3d 76 (2d Cir. 2012)). The court declined to add

sponsorship revenues to the gross revenue base because

that money only “reflect[s] the value of a large, captive

audience” to third parties that want to associate their

brand with the show. Pet.App.69a.

The Second Circuit reversed those factual findings

because, “[h]istorically,” the revenue base included only

the tickets’ face value. Pet.App.26a-27a. The Second Circuit believed there was no reason to depart from the

revenue base used in past agreements. Pet.App.28a. This

finding overlooked the extensive record evidence presented to the district court about how the concert

industry—including its ticketing practices—had transformed. See Pet.App.61a-62a, 76a-79a. Moreover, this

finding required the Second Circuit to reject testimony

credited by the district court that some NACPA members

already reported an expanded revenue base.

Pet.App.77a.

Rather than engage with the record, the Second Circuit instead wielded a 2003 journal article on contracting

principles and the concept of “surplus.” Pet.App.30a-31a

(quoting Alan Schwartz & Robert E. Scott, Contract Theory and the Limits of Contract Law, 113 Yale L.J. 541,

554 (2003)). Although the court leveraged the article’s

“surplus” concept seven times in its opinion, Pet.App.30a33a, 38a, the parties neither cited that article in their

briefs nor introduced it into the record. No expert opined

on the “surplus” concept. Indeed, the article’s underlying

theory is contested. See, e.g., Steven J. Burton, A Lesson

on Some Limits of Economic Analysis: Schwartz and

Scott on Contract Interpretation, 88 Ind. L.J. 339, 340 n.8

(2013) (collecting sources critiquing and discussing

Schwartz and Scott’s article). The Second Circuit effectively introduced its own, unsworn expert witness on a

contested factual issue and used that witness to usurp the

record before it. This defies basic principles of appellate

review.

Based on that article, the court concluded that the

goal of a contract negotiation is to increase the joint surplus created by the contract and then divide the surplus

between the contracting parties. Pet.App.30a-31a (discussing Schwartz & Scott, supra, at 554). The Second

Circuit believed that expanding the revenue base would

“reduce the surplus because it is costly to administer.”

Pet.App.32a-33a. Given its hypothesis about how the revenue base would affect the so-called “surplus,” the Second

Circuit concluded (based on no record evidence) that “[i]n

a real-world, arm’s-length negotiation, the PRO would

have no incentive to insist on a definition of the revenue

base that increases the administrative cost to music users

without a corresponding benefit—and that thereby reduces the total surplus value of the licensing

agreement.” Pet.App.33a. On that basis, the Second Circuit found the expanded revenue base unreasonable.

Because the Second Circuit’s application of de novo

review infected every aspect of its analysis, the question

presented is squarely presented and outcome-determinative, providing this Court with a clean vehicle for

resolution.

III. The Decision Below Is Manifestly Incorrect

In U.S. Bank National Association ex rel. CWCapital Asset Management LLC v. Village at Lakeridge, LLC,

583 U.S. 387 (2018), this Court established the framework

for determining the appropriate standard of review for

questions involving both legal and factual issues. When

an issue on appeal turns on “case-specific factual issues—

compelling [courts] to marshal and weigh evidence, make

credibility judgments, and otherwise address … ‘multifarious, fleeting, special, narrow facts that utterly resist

generalization,’” “deference” to the district court is required. Id. at 396 (quoting Pierce v. Underwood, 487 U.S.

552, 561-62 (1988)).

U.S. Bank confirms that the Second Circuit wrongly

applied an inflated standard of review to the fact-laden issues before it. The question before the Second Circuit

was, given all the facts, whether the district court set a

reasonable rate based on comparable benchmarks for licensing live performances of BMI affiliates’ works. “Just

to describe that inquiry is to indicate where it (primarily)

belongs: in the court that has presided over the presentation of evidence, that has heard all the witnesses, and that

has both the closest and the deepest understanding of the

record….” Id. at 398.

Each component of the district court’s reasonablerate determination required finely parsing the record evidence and trial testimony. The district court’s grossrevenue-base determination turned on testimony about

changes in the music industry and practices already being

undertaken by NACPA’s members. Supra pp. 13, 29-30.

The district court’s benchmarking analysis turned on dueling expert testimony and the careful examination of

over a dozen licensing agreements and the context in

which each was negotiated. Supra pp. 12-13, 27-28. The

district court’s ultimate rate selection turned on its factbound assessment of the relevant benchmarks and testimony about licenses in other music-intensive industries.

Supra pp. 11-12, 28-29. To turn these prototypical factual

issues into legal questions and subject them to plenary review, as the Second Circuit did here, defies the logic of

U.S. Bank.

In defense of its novel standard of review, the Second

Circuit offered that it had previously “articulated legal

standards that govern the selection and weighing of

benchmarks and the definition of an appropriate revenue

base.” Pet.App.22a. Thus, the court concluded, de novo

review had to apply. Pet.App.22a-23a. That reasoning

overlooks U.S. Bank’s mandate that fact-laden determinations must be reviewed deferentially, even if they

involve some legal components. 583 U.S. at 395-96.

IV. Alternatively, the Court Should Hold the Petition Pending RiseandShine Corp.

At the very least, the Court should hold this petition

pending resolution of RiseandShine Corp. v. PepsiCo,

Inc. That case asks “[w]hether trademark strength is a

question of fact in a likelihood-of-confusion analysis under

15 U.S.C. § 1114.” Pet. i, RiseandShine Corp. v. PepsiCo,

Inc., No. 24-1016 (U.S. Mar. 19, 2025). RiseandShine

raises similar questions about the distinction between legal and factual issues and the corresponding effect on the

standard of review.

Both RiseandShine and this case arise out of the Second Circuit. In RiseandShine, the Second Circuit treated

trademark strength as a question of law subject to de novo

review, a position at odds with that of twelve other circuits. Id. at 1-2. So too here, the Second Circuit

categorized fair-market-value determinations, and their

component parts, as legal questions subject to de novo review. The Second Circuit made the same fundamental

error in both cases—torturing archetypal factual questions into legal ones to apply de novo review.

Although the Court should grant this petition for all

the reasons stated above, at a minimum it should hold the

petition pending its decision in RiseandShine, vacate, and

remand to the Second Circuit for further consideration of

the appropriate standard of review after the Court issues

guidance in that case.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

SCOTT A. EDELMAN

ATARA MILLER

MILBANK LLP

55 Hudson Yards

New York, NY 10001

(212) 530-5000

AUGUST 20, 2026

LISA S. BLATT

Counsel of Record

AMY MASON SAHARIA

ANDREW V. TRASK

ANDREW T. GUIANG

ERIN M. SIELAFF

WILLIAMS & CONNOLLY LLP

680 Maine Avenue S.W.

Washington, DC 20024

(202) 434-5000

lblatt@wc.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.