# Opposition Brief — Cusano v. Klein (No. 05-1492)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

FILED
1) JUL 2.4 2006
No.05-1492 3 UPREME COURT, U.S.
In the

Supreme Court of the Anited States

VINCENT CuSANO, p/k/a Vinnie Vincent and
d/b/a Streetbeat Music and d/b/a Vinnie Vincent Music,

Petitioner,
V.

GENE KLEIN, Paut STANLEY nee STANLEY EISEN,
Tue Kiss Company, GENE SIMMONS WoRLDWIDE, INC.,
SIMSTAN Music Ltp., KISStory Ltp.,
and POLYGRAM ReEcorps, INC.,

Respondents.

On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

Lesuit A. COHEN Brian G. WoLF
LineR YANKELEVITZ SUNSHINE Counsel of Record
& REGENSTREIF, LLP Henry L.. Secr Il
1100 GLENDON AVENUE KRISTINA BRITTENHAM
14™ FLoor Lave.y & SinGer, P.C.
Los ANGELES, CA 90024 2049 Century Park East
(310) 500-3560 Surre 2400

Los ANGetes, CA 90067
Counsel for Respondents (310) 556-3501

Counsel for Respondents
Dated: July 24, 2006

Becker Gallagher Legal Publishing, Inc. 800 890. 5001

1.

i
QUESTIONS PRESENTED

Whether the November 15, 2005 decision by the Ninth
Circuit Court of Appeals affirming the district court’s
entry of judgment on the merits in favor of Respondents
as a result of Petitioner’s failure to present any competent
evidence in support of his claims presents a compelling
reason to justify review by this Court.

. Whether an unsettled factual dispute regarding whether a

1983 agreement between Petitioner and one or more
Respondents was “executory,” and thereby rejected in
Petitioner's 1989 bankruptcy, presents an issue of
importance to successful bankruptcy administration.

CORPORATE DISCLOSURE STATEMENT
PURSUANT TO RULE 29.6

Respondents The KISS Company, Gene Simmons
Worldwide, Inc., Simstan Music Ltd., and KISStory Ltd.
have no parent corporations, nor does a publicly held
company own ten percent (10%) or more of the stock of any
of said Respondents.

Respondent Polygram Records, Inc. (renamed UMG
Recordings, Inc., as of November 30, 1999) is a wholly-
owned subsidiary of Vivendi Universal S.A., a publicly held
company.

“ee

TABLE OF CONTENTS
Chansians Premeneel: ook. hee bs eh ie ee Be I
Corporate Disclosure Pursuant to Rule 29.6 ........ ii
pro Lt REE EEC PURE CCE er roe ee ill
po erat ore oe Sure aur ee vii
Summary of Reasons to Deny the Petition ......... l
Rg OPED We eee Pe ree 5

I. The Proceedings Below Concluded In Favor of

PIE ose 6.3 i Ske tse ee ea 5

A. Petitioner Did Not Challenge Findings That He
Signed the 1983 Agreement .............. 5

B. The Circuit Court’s Prior Opinions ......... 6

1. On Remand, the District Court Dismissed
Petitioner’s Claims Regarding the Creatures
CONE 5 554 8 ci eae ee ee 7

2. On Remand, the District Court Dismissed
Petitioner’s Claim for Open Book Account .. 8

3. On Remand, the District Court Dismissed
Petitioner’s Claims Regarding the Lick It Up
RUIN 0b 8'55 5s Geos Bice ee eee 8

Il. Petitioner’s 1989 Bankruptcy Action........... 9

iV

lif. | Whether The 1983 Purchase Option Was
Timely Exercised Presents A Disputed Issue
SEN eo ee ERR EER ED Ce eee es

Reasons for Denying the Petition ...............

I. Petitioner Raises No Disputed Issue of Law

Regarding Application of the Bankruptcy Code

A. Respondents’ Ownership Interest In the Lick It
Up Compositions Never Became a Part of
Petitioner’s Bankruptcy Estate ..........

1.

Because Petitioner Had Conveyed His
Property Interest In the Lick It Up
Compositions to KISS Co. In 1984, No
Property Interest In Those Compositions
Became Part of Petitioner’s Bankruptcy
UNE OE PROF os Ss ei i a ees

Petitioner Failed to Avoid the Conveyance
of His Property Interests In the Lick It Up
Compositions During His Bankruptcy Case
and He Is Now Time-Barred From Doing
DR cosas sian a be eh oie the ae aa

Because the Lick It Up Compositions
Never Became Property of the Bankruptcy
Estate, the Bankruptcy Court Lacked
Jerisdiction Over the Compositions .. .

B. Confirmation of Petitioner’s Chapter 11 Plan
Did Not Extinguish Respondents’ Property
Interests in the Lick It Up Compositions

Rf

13

13

14

. 16

. 16

Il.

Ill.

IV.

Vv

C. Petitioner’s Principal Argument Is Based on a
Fundamental Misunderstanding of What
Constitutes a “Claim” Against a Bankruptcy
RNG i oe eS ei i a ae ee

a es a et oe ees RU cae Bos ee 1a

A. Whether the Purchase-Option Provision Was
Timely Exercised Raises a Disputed Issue of
PUR sade i es a I ne OE he

B. Whether the 1983 Agreement Was Executory
Raises a Disputed Issue of Fact .........

C. Misstatements of Factand Law .........
The Circuit Court’s Decision Was Correct ....

A. The Ninth Circuit’s Decision In Cusano |
Merely Reinstated Petitioner’s Right to Assert
Cortes Rovers CIRUS oe oe a en

B. The Ninth Circuit in Cusano II Rejected
Petitioner’s Interpretation of the Court’s Prior
SR Foe oo Pe OER Nw ES

No Basis Exists for the Court to Exercise Its
UOEVIEY FES oo ss PA eee es

A. Petitioner Has Raised No Issue of Bankruptcy
Law Requiring Resolution ............

B. There Is No Basis For the Court to Issue
DN NN ig a es kee Re

I nn eg a ate ley
Appendix

Appendix A - Ninth Circuit Order,
ST EE SS eee Care ¥ ee ee wa b's

Appendix B - Statement of Executory Contracts,
SE UREN Oe ik GSR COE Wat ee heRe es

Appendix C - Bankruptcy Court Order Denying
Motion to Reopen, Dated 4/23/99 ............

Vil
TABLE OF AUTHORITIES

Cases

Begier v. IRS,
496 U.S. 53, 110 S. Ct. 2258 (1990) .......... 13

Boldt v. Crake (In re Riverside-Linden Inv. Co.),
945 F.2d 320 (9th Cir. 1991) ............ 11-12

Bracewell v. Kelly (In re Bracewell), No. 05-11951,
2006 WL 1814367 (11th Cir. June 30, 2006) ..... 14

Brown v. Dellinger (In re Brown),
Fe ee POO Ra BOD 6 ook be wise eee ha 14

Brown v. Pitzer (In re Brown),
Ae es Sas ee BP vc tetas 19

Caliaway v. Benton,
320 U.S; 132, 3. Ct. 5 CSR) 2. ee cce ns 28

City of Memphis v. Greene,
451 U.S. 100, 101 S. Ct. 1584 (1981) ......... 29

City of New York v. Saper,
336 U.S. 328,
og ee Se ae aye 3, 4, 10, 12, 23

Coleman v. Community Trust Bank (In re Coleman),
426 F.3d 719 (4th Cir. 2008) ......... we eeee i5

Cooper Indus., Inc. v. Aviall Serv., Inc.,
543 U.S. 157, 1258. Ct. 377 (206. ww ee 9,11

Vili

CPT Holdings, Inc. v. Indus. & Allied Employees
Union Pension Plan, Local 73,
162 F368 465 (6G Che. 19D) oo ok eK SS 19

Cusano v. Klein,
264 F.3d 936 (9th Cir. 2001) ............ passim

Cusano v. Klein,
196 F. Supp. 2d 1007 (C.D. Cal. 2002) ........ 7

Cusano v. Klein,
280 F. Supp. 2d. 1035 (C.D. Cal. 2003)
Bs i ar ee 2 do Gi Os Me he BO

FCC v. NextWave Personal Commc’ns, Inc.,
537 WS. 203; 423 3. Ch. BF Gee ke i es 18-19

Fed. Trade Comm’n v. Standard Oil Co..,
259: U5; FO; 70 O.G4. 508 OS 6 RE EGRESS 20

Florida v. Rodriguez,
BS B42, Fas ao lv De a ieee ks cee 29

Gendreau v. Gendreau (In re Gendreau),
52 Fe ek Ce Re es eh ck we ee 13, 19

Graziadei v. Graziadei (In re Graziadei),
52 FS OR OO CN I. ik Oo OE ewe 16

Griffel v. Murphy (In re Wegner),
BSP FA Ss Oe ob oe eh Ge eee 22

Lowenschuss v. Selnick (In re Lowenschuss),
170 F.3d 923 (9th Cir. 1999) ......... 13, 17, 19

ix

Maggio v. Zeitz,
Bae Wiss OO; OO ot, GOL CIDSG) 6 ee cee eve 28

In re Merchants and Mfrs., Inc.,
166 B.R. 234 (Bankr. D. Del. 1994) .......... 19

Montana v. Kennedy,
366 U.S. 308, 81 S. Ct. 1336 (1961) .......... 29

Moody v. Amoco Oil Co.,
Toe Fae tae Cite Cr. 1968) 0c ce cc cece 14

Office of Personnel Mgmt. v. Richmond,
46 U.S. 414, 110:S. Ct. 2465. (1990) .......... 30

New York City Transit Auth. v. Beazer,
Oe es oe, eee. GR. ISSO CISTS) oe ewes 29

NLRB v. Bildisco and Bildisco,
465 U.S. 513, 104S. Ct. 1188 (1983) ......... 21

NLRB v. Manley Truck Line, Inc..,
ee ee FE AA EEE 9 0 aise 80 018 9 Bie es 22

NLRB vy. Pittsburgh S.S. Co.,
Ba te. aoe, 7h oe. CR. 459 CI9S)) . oe es 20

Resare v. Resare,
on Gs Mi fi oe BS, |. | SS ie are mea 19

Schweiker v. Hansen,
450 U.S. 785, 101 S. Ct. 1468 (1981) ......... 30

Singleton v. Wulff,
428 U.S. 106, 96 S. Ct. 2868 (1976) .......... 9

x

Tennessee Student Assistance Corp. v. Hood,

541 U.S. 440, 124 S. Ct. 1905 (2004) ......... 16
United States v. Hale,

472 U.S. 173, HS CY ZIBB CGT? | kein he NS 29
United States v. Ruzicka,

329 U.S. 287, 67 S. Ct. 207 (1946) ........ 28-29
United States v. Whiting Pools, Inc.,

462 U.S. 198, 103 S. Ct. 2309 (1983) ......... 14
Wilkerson v. McCarthy,

Se as cs ea el SS CD ea ass ee 28
Wolf v. Weinstein,

372 U.S. 633, 83 S. Ct. 969 (1963) ........... 15
Statutes
PEE © POCO oo os Oe ORO ON we ee 18
SE Re CE 6 oh eS bee ee Bee 21, 22
OS UF oe NE So. So ancy eee eee ee 13
BE eek. a LIED. 4c 6 doo etn be wea en ene 15
iS a). aL ose aie Sa oreo 15
SE TESS Bree. ok oo tee ee ee 16, 23
Se Re eee C2 Se iy gon aw eee aes 2
SF EEE SO Pea Cee So aces xt a oe eos 17

Se an CE os Hae ho hod be ee 16
Rules

Os Ss ee POE aia ea eee Cabana eee 15
ee Sy OE ee KS RRR ieee 20
ey Re Pre war eee Pre eee ee 17
DAs tes SD iv 066 8 Fb a ehh se bot EWS ee ]
A Rae 5h 6 ee eb Tce A RO 22
Other Authority

Bankruptcy Amendments and Federal Judgeship Act of 1984,
Pub. L. No. 98-353, Title Il, § 541(a),
Peet TG, 19S, SO ONO Fi 6s ee eek eawiv ds 22

l

SUMMARY OF REASONS TO DENY THE PETITION

The Ninth Circuit Court of Appeals found that “Cusano’s
entire appeal is frivolous; ‘the result is obvious [and] the
arguments of error are wholly without merit.’ Further,
Cusano has repeatedly misrepresented the facts of the case to
this court.” (Ninth Circuit Memorandum decision dated
November 15, 2005 at 2-3 4 5; Petr.’s App. A2-A3 (citations
omitted) (alteration in original).)

By this Petition, Cusano presents to this honorable Court
many of the same frivolous arguments and misstatements of
fact that the Ninth Circuit rejected.

The Petition should be denied because it presents no
“compelling reasons” to justify review by this Court. See
Sup. Ct. R. 10. Specifically, Petitioner fails to demonstrate
that the Ninth Circuit’s Memorandum decision dated
November 15, 2005 (Petr.’s App. A) affirming the judgment
of the United States District Court for the Central District of
California in favor of Respondents and against Petitioner is in
conflict with a decision of this Court or another court of
appeals, or that the Ninth Circuit’s decision otherwise decided
an important federal question that has not been settled by this
Court, or that the decision answered an important federal
question in a way that conflicts with relevant decisions of this
Court. See Sup. Ct. R. 10(a)-(c).

At most, the Petition raises one or more disputed issues of
fact and relates solely to the rights of and between the parties.
Petitioner argues that a purchase-option clause found in a
December 8, 1983 employment agreement between Petitioner
and KISS Co. (the “1983 Agreement”) was not timely
exercised. (Petr.’s Br. 6.) Petitioner did not seek or obtain
a determination of that factual issue in the lower courts, and
the district court found, without objection from Petitioner,
that the 1983 Agreement was valid and its terms were

2

enforceable. The 1983 Agreement “gave KISS Co. one
hundred percent ownership rights of Cusano’s compositions
on the ‘Lick it Up’ album.” Cusano v. Klein, 280 F. Supp.
2d. 1035, 1038 (C.D. Cal. 2003).

Petitioner also argues that the 1983 Agreement was an
“executory contract” and, consequently, was rejected upon
approval of Petitioner’s 1990 bankruptcy plan. (Petr.’s Br.
7.) However, Petitioner did not claim that the 1983
Agreement was “executory” in 1989 (when Petitioner filed
for bankruptcy); nor is the 1983 Agreement listed in
Petitioner’s bankruptcy schedules as an “executory contract;”
nor is the 1983 Agreement referenced in Petitioner’s 1990
bankruptcy plan as a rejected “executory contract.”

Petitioner then applies the aforesaid disputed facts to a
noncontroversial aspect of bankruptcy law—that non-contested
assets of the estate revert to a debtor under 11 U.S.C.
§ 1141(c) upon confirmation of a debtor’s bankruptcy plan.
For the reasons stated below, Petitioner’s application of this
principle of bankruptcy law to the disputed facts of this case
presents no compelling reason for this Court to grant review,
nor does it otherwise present an issue of importance in the
administration of bankruptcy law.

First, Petitioner did not raise or argue application of
bankruptcy law in opposition to Respondents’ motion for
summary adjudication on which Petitioner’s appeal in Cusano
iI was based.' The district court ruled on the merits of that
motion without any argument or reference by the parties to
bankruptcy law: “Defendants are entitled to summary
judgment on all six claims because Cusano has failed to show

' ‘The Ninth Circuit’s decision in Cusano v. Klein, 264 F.3d 936 (9th
Cir. 2001) is referred to as “Cusano 1/1,” while the Ninth Circuit's
unreported decision dated November 15, 2005 (Petr.’s App. A) following
remand is referred to as “Cusano //.”

3

genuine issues for trial.” Cusano v. Klein, 280 F. Supp. 2d
at 1039.

Second, Petitioner fails to establish any erroneous
application of bankruptcy law by the Ninth Circuit.
Petitioner’s effort to create a conflict between the Ninth
Circuit’s opinions in Cusano I and Cusano II lacks any
support in the record. Cusano I was based, in part, on an
uncontroversial application of bankruptcy law. In his
subsequent appeal in Cusano II, Petitioner misapplied the
facts to that law—arguing that the fully-performed 1983
Agreement was “executory” and rejected over fifteen years
earlier upon confirmation of his bankruptcy plan. The Ninth
Circuit in Cusano II flatly rejected Petitioner’s argument,
finding that Cusano “misreads our opinion” in Cusano 1.
(Petr.’s App. A2 at ¢ 2.) This hardly presents a matter of
“importance in the administration of the Bankruptcy Act.”
See City of New York v. Saper, 336 U.S. 328, 329, 69 S. Ct.
554, 555 (1949) (footnotes omitted).

Third, Petitioner never sought or received an order from
the bankruptcy court or the district court that the 1983
Agreement was rejected upon confirmation of Petitioner’s
bankruptcy plan in 1990. Petitioner’s bankruptcy plan lists 19
rejected “executory” contracts. (ASE 76 at 1498.) The 1983
Agreement is not listed as one of those rejected contracts.

Fourth, when Petitioner filed a motion to reopen his
bankruptcy case in 1998 (after commencement of the action in
the district court), he did not-seek an order from the

For the convenience of the Court, Respondents will adopt
Petitioner's abbreviations of the record excerpts in the court of appeals:
Appellant's original excerpts of record are abbreviated ~AE;” Appellant's
supplemental excerpts of record are abbreviated “ASE;" and Appellees’
supplement excerpts of record are abbreviated “Appelices’ SE.”

4

bankruptcy court that the 1983 Agreement had been rejected
upon confirmation of his bankruptcy plan in 1990.

Finally, Petitioner fails to demonstrate that the decision
appealed from is in conflict with a decision of this Court or any
other circuit court, nor does the Petition present any unsettled
issues of law.

In short, nothing in the Petition presents a basis for this
Court to grant review. Petitioner’s claims in the district court
lacked any legal or factual support. The district court rightfully
dismissed the claims on the merits and the court of appeals
affirmed. Petitioner’s only grievance is that he lost. Petitioner
has sorely abused the judicial process for the past nine years
without going to trial on a single issue raised by his complaint.
That is because the district court either rejected Petitioner’s
claims as a matter of law (and the Ninth Circuit affirmed those
decisions) or because Petitioner failed to offer any evidence to
support his claims despite having repeated opportunities and
numerous years to do so. Upon review of the record, the court
of appeals in Cusano II found Petitioner’s second appeal to be
so frivolous that it awarded attorneys’ fees to Respondents
(Petr.’s App. A3) and issued an order barring Petitioner from
filing any additional papers with the court of appeals in this
matter (Respondents’ Appendix “Resp. App.” A). Petitioner’s
abuse of the judicial process continues with his Petition to this
Court: Petitioner now argues for the first time that this case
presenis an issue of extreme “ ‘importance in the administration
of the Bankruptcy’ laws,” yet Petitioner failed to raise this issue
before the district court or the bankruptcy court upon his
motion to reopen his bankruptcy case. (Petr.’s Br. 14 (quoting
Saper, 336 U.S. at 329).)

The Court should deny the Petition because the case does
not qualify for or otherwise meet the standard of review by this
Court.

5

STATEMENT OF THE CASE

I. The Proceedings Below Concluded In Favor of
Respondents.

Petitioner filed his complaint in the District Court for the
Central District of California on July 7, 1997.’ Petitioner
claimed that one or more of the Respondents failed to pay
Petitioner royalties due from certain songs that Petitioner co-
authored with members of the musical group KISS during
Petitioner’s brief association with the band in 1982 through
1984.4

A. Petitioner Did Not Challenge Findings That He
Signed the 1983 Agreement.

Petitioner and the KISS Partnership (the predecessor in
interest to Respondent The KISS Company) executed a written
employment agreement dated September 23, 1982 (Appellees’
SE 79 at 1565- 85), which was subsequently amended by the
1983 Agreement (Appellees’ SE 79 at 1560-64). Paragraph
5(b) of the 1983 Agreement includes the purchase-option
provision regarding Petitioner’s interest in the Lick It Up
Compositions.

* Petitioner alleged claims for open book account, breach of fiduciary
duty, fraud, constructive fraud, negligent misrepresentation, conversion,
imposition of a constructive trust, breach of contract, open book account,
right of publicity and defamation. (AE 1.) Petitioner never filed an
amended complaint. (Docket passim; AE 69.)

4

Only the musical compositions on the KISS album Lick it Up
released in 1983 were at issue in the court of appeals in Cusano Il. Those
compositions are entitled: “A Million to One,” “All Hell’s Breakin’
Loose,” “And On The Eighth Day,” “Exciter,” “Gimme More,” Lick It
Up,” “Young and Wasted” and “Not for the Innocent” (the “Lick It Up
Compositions”). (Complaint, {4 47, 48; AE 1 at 15.)

6

The district court found on several occasions that Petitioner
had signed the 1983 Agreement.° Petitioner did not object to
or appeal those findings.

B. The Circuit Court’s Prior Opinions.

This Petition arises from Petitioner’s second appeal in the
underlying civil action. In 1999, the district court dismissed
Petitioner’s claims. With respect to the claims regarding the
Lick It Up Compositions, the district court ruled that, as a
result of Petitioner’s failure to adequately schedule his rights in
those songs in his 1989 bankruptcy, he lacked standing to seek
royalties owed both before and after the fliiing of the
bankruptcy petition. (AE 2 at 82- 83.)

The court of appeals in Cusano | agreed with half of the
district court’s 1999 ruling. The Ninth Circuit held in Cusano
/ that Petitioner lost his right to claim any royalties that may
have accrued prior to his 1989 bankruptcy filing but that
Petitioner failed to adequately schedule. Cusano, 264 F.3d at
947-48. “His failure to do so vests the claim in the bankruptcy
estate, where it remains.” /d. at 948. The court in Cusano |
held that only claims accruing post-petition may be pursued
because Petitioner “retains standing to sue for any royalty
payments coming due post-petition.” /d. (emphasis added).

> “(Plaintiff admitted executing the December 8, 1983 Agreement
[and] it is, therefore, apparent that the 1983 contract was entered into by
the parties.” (Order, filed June 16, 1998, at 2:18-19, 5:3-4; Appellees’
- SE 79 at 1769-72); (Order, filed Sept. 15, 1998, at 2:14-19; Appellees’
SE 79 at 1775). “Unless otherwise noted, the following facts are
undisputed . . . . [iJnm December 1983, Defendant KISS Company (“KISS
Co.”), the KISS partnership's successor in interest, entered into an
agreement with Cusano (‘Employment Agreement’) . . . . The
Employment Agreement gave KISS Co. one hundred percent ownership
rights of Cusano’s compositions on the ‘Lick It Up’ album.” Cusano, 280
F. Supp. 2d at 1038 (emphasis added).

7

Accordingly, the court of appeals in Cusano I reinstated
and remanded for further proceedings Petitioner’s claims for
post-bankruptcy royalties generated by the Lick It Up
Compositions. /d.° The court of appeals in Cusano J did not
make any findings that the 1983 Agreement was rescinded or
that any copyright interest in the Lick It Up Compositions
reverted to Petitioner.

After remand, Respondents filed motions for summary
adjudication demonstrating the lack of merit to Petitioner’s
remaining claims. Each of those motions was granted by the
district court.

1. On Remand, the District Court Dismissed
Petitioner’s Claims Regarding the Creatures
Compositions.

On February 14, 2002, Respondents filed a motion for
summary adjudication with respect to a separate group of
musical compositions referred to as the Creatures
Compositions (the “Creatures Motion”). (Appellees’ SE 79
at 1511-43.) In opposing that motion, Petitioner did not
allege that the 1983 Agreement was abrogated or that any
copyright interest was reconveyed to Petitioner as a result of
his discharge from bankruptcy. (Appellees’ SE 84 at
2291-2307.)

In a published decision, the district court dismissed
Petitioner’s claims regarding the Creatures Compositions.
Cusano v. Klein, 196 F. Supp. 2d 1007, 1016 (C.D. Cal.
2002).

® Specifically, the Court reinstated Petitioner’s post-petition claims for
open book account (claim 1), breach of fiduciary duty (claim 2), fraud
(claim 3), constructive fraud (claim 4), negligent misrepresentation (claim
5), conversion, (claim 9) and imposition of constructive trust (claim 10).

8

2. On Remand, the District Court Dismissed
Petitioner’s Claim for Open Book Account.

On February 25, 2002, Respondents filed a motion for
summary adjudication on Petitioner’s claim for open book
account (the “Open Book Motion”). (Appellees’ SE 82 at
1835-68.) In opposing that motion, Petitioner did not allege
that the 1983 Agreement was abrogated or that any copyright
interest was reconveyed to Petitioner upon his discharge from
bankruptcy. (Appellees’ SE 88 at 2580-96.)

The district court granted the motion, dismissing the claim
for open book account. (Civil Minutes, dated April 9, 2002,
at 2-4; Appellees’ SE 97 at 2727-32.)

3. On Remand, the District Court Dismissed
Petitioner’s Claims Regarding the Lick It Up
Compositions.

On June 2, 2003, Respondents filed a motion for summary
adjudication with respect to the remaining claims regarding
the Lick It Up Compositions (the “Lick It Up Motion”).
(Appellees’ SE 119 at 3047-79). The Lick it Up Motion
alleged that the 1983 Agreement conveyed 100% of all right,
title, and interest, including the copyrights, in the Lick it Up
Compositions to the KISS Co. (Appellees’ SE 119 at 3062.)

Petitioner’s opposition to the Lick It Up Motion made no
reference to bankruptcy law, nor was there any argument that
the 1983 Agreement was abrogated or that any copyright
interest was reconveyed to Petitioner upon Petitioner’s
discharge from bankruptcy. (Appellees’ SE 126 at 3231-38.)

In a published decision, the district court granted the Lick
It Up Motion and ended the trial-level litigation in this case.
Cusano v. Klein, 280 F. Supp. 2d at 1037 n.1. The district
court granted the Lick It Up Motion on the merits:
“Defendants are entitled to summary judgment on all six

9

claims because Cusano has failed to show genuine issues for
trial. Each of his claims is premised on Defendants’ allegedly
false royalty statements, but he has utterly failed to produce
any evidence whatsoever of inaccuracies in_ the
accounting... .” /d. at 1040.

Petitioner did not argue the application of bankruptcy law
in Opposition to the Lick It Up Motion, nor did the district
court consider or make any reference to the application of
bankruptcy law in rendering its decision. Wherefore,
Petitioner’s subsequent effort to interject his new bankruptcy
law argument before the court of appeals in Cusano I] lacked
merit. “It is the general rule, of course, that a federal
appellate court does not consider an issue not passed upon
below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S. Ct.
2868, 2877 (1976).

Accordingly, Petitioner’s bankruptcy argument—which
forms the principal basis for his seeking review by this
Court—was not preserved on appeal and does not present a
compelling reason for review by this Court. See Cooper
Indus., Inc. v. Aviall Serv., Inc. , 543 U.S. 157, 168-69, 125
S. Ct. 577, 585 (2004) (Supreme Court ordinarily does not
decide in the first instance issues not decided below).

II. Petitioner’s 1989 Bankruptcy Action.

On or about March 7, 1989, Petitioner filed a Chapter 11
bankruptcy petition in the United States Bankruptcy Court for
the Central District of California. Attached to Petitioner’s
bankruptcy schedules and statements of affairs dated March
21, 1989 is a “Statement of Executory Contracts.” (Resp.
App. B, 4b) The 1983 Agreement was not listed by Petitioner
as an “executory contract.”

On or about April 27, 1990, Petitioner filed a Chapter 11
plan, which was subsequently confirmed by the bankruptcy
court on or about September 18, 1990. (ASE 76.) Likewise,

10

the bankruptcy plan does not list the 1983 Agreement as an
“executory contract.”

Eight years later, in December 1998, Petitioner filed a
motion to reopen his bankruptcy case. That motion was made
by Petitioner as a result of an order entered by the district
court dated December 3, 1997, whereby the court found that,
absent approval of the bankruptcy court, Petitioner lacked
standing to pursue his claims in the district court. (AE 2 at
59.)

In seeking to reopen his bankruptcy case, Petitioner did
not argue or request an order from the bankruptcy court that
the 1983 Agreement was rejected. On or about April 27,
i999, the bankruptcy court entered its order denying
Petitioner’s motion to reopen his bankruptcy case. (Resp.
App. C.)

In sum, when Petitioner was before the bankruptcy court
in 1990 and again in 1998, he failed to make the very
argument that he now claims presents such an important issue
with respect to the “‘administration of the Bankruptcy’
laws” —that the issue should be considered for the first time
by this Court. (Petr.’s Br. 14 (quoting Saper, 336 U.S. at
329) (footnote omitted).)

III. Whether The 1983 Purchase Option Was Timely
Exercised Presents A Disputed Issue Of Fact.

The 1983 Agreement grants all right, title, and interest in
the Lick It Up Compositions to the KISS Partnership,
predecessor-in-interest to Respondent The KISS Company.’

’ Paragraph 5(a) of the 1983 Agreement states:

The Partnership shall exclusively own and control one hundred
percent (100%) of all right, title and interest, including the
copyrights, all rights under such copyrights and all rights to the
so-called “publisher’s share” of income derived from the

11

Petitioner fas. to present any evidence in the district court
to support his claim that the copyright interests in the Lick it
Up Compositions reverted to him in or around 1984 because
KISS failed to timely exercise the purchase-option provision
of Paragraph 5(b) of the 1983 Agreement.

Moreover, when Respondents brought their motions for
summary adjudication after remand, Petitioner did not present
the district court with evidence to support this argument.
Indeed, the district court affirmed that KISS owns 100% of
the Lick It Up Compositions:

Defendants are entitled to summary judgment since
Cusano cannot establish that he has ownership rights
in the royalties allegedly due him. KISS Co.
“exclusively own[s] and control[s] one hundred
percent (100%) of all right, title and interest [in the
Compositions], including the copyrights, all rights
under such copyrights, and all rights to the so-called
‘publisher’s share’ of income derived from the
worldwide exploitation of such copyrights. ”

Cusano, 280 F. Supp.2d at 1043 (alternations in original)
(quoting the 1983 Agreement).

Petitioner did not appeal! that finding by the district court.
Thus, Petitioner failed to preserve this argument on appeal in
Cusano I], and it should not be considered by the Court. See
Cooper, 543 U.S. at 168-69 (Supreme Court ordinarily does
not decide in the first instance issues not decided below);
Boldt v. Crake (In re Riverside-Linden Inv. Co.), 945 F.2d

worldwide exploitation of such copyrights, in and to your musical
compositions (or, where applicable, your share of co-written
musical compositions) which are included in the album heretofore
recorded by KISS entitled “Lick It Up” (the “Current LP”).

(Appellees’ SE 79 at 1561.)

12

320, 24 (9th Cir. 1991) (issue waived on appeal when
appellant did not argue it in opening brief).

REASONS FOR DENYING THE PETITION

I. Petitioner Raises No Disputed Issue of Law Regarding
Application of the Bankruptcy Code.

The principal basis on which Petitioner seeks review by
this Court amounts to little more than application of an
uncontroversial aspect of bankruptcy law. Petitioner argues
that a confirmed reorganization plan constitutes a final
judgment that is res judicata as to any claims that were or
could have been raised in the bankruptcy proceeding. (Petr.’s
Br. 15.) Respondents do not dispute that basic proposition.
However, the application of that proposition of bankruptcy
law to the facts of this case does not present a compelling —
reason for this Court to grant review, nor does it present any
issue of “importance in the administration of the Bankrupicy
Act.” See Saper, 336 U.S. at 329 (footnotes omitted).

The record is undisputed that, as a matter of contract,
Petitioner did not have any copyright interests in the Lick It
Up Compositions at the time he filed for bankruptcy in 1989.
The 1983 Agreement expressly states that KISS Co. owns the
entire copyright to the Lick It Up Compositions. Paragraph
5(a) of the 1983 Agreement states: “The Partnership [KISS
Co.] shall exclusively own and control one hundred percent
(100%) of all right, title and interest, including the copyrights
{in the Lick It Up Compositions].” (1983 Agreement;
Appellees’ SE 79 at 1561 (emphasis added).)*

* The district court made a judicial finding that Petitioner admitted
signing the 1983 Agreement and that the KISS and Petitioner entered into
the 1983 Agreement. (Order, filed June 16, 1998, 2:18-19, 5:3-4;
Appellees’ SE 79 at 1769, 1772.)

13

A. Respondents’ Ownership Interest In the Lick It Up
Compositions Never Became a Part of Petitioner’s
Bankruptcy Estate.

1. Because Petitioner Had Conveyed His Property
Interest In the Lick It Up Compositions to KISS
Co. In 1984, No Property Interest In Those
Compositions Became Part of Petitioner’s
Bankruptcy Estate in 1989.

“The commencement of a case under section 301 . . . of
this title creates an estate.” 11 U.S.C. § 541(a) (1988).?
Property of the estate “includes all of the debtor’s legal or
equitable interests in property as of the commencement of the
case.” Begier v. IRS, 496 U.S. 53, 59, 110 S. Ct. 2258,
2260 (1990). Because Petitioner conveyed his interest in the
Lick It Up Compositions to KISS Co. in 1984, he did not hold
any legal or equitable interest in those compositions to
become property of his bankruptcy estate when he filed his
bankruptcy petition in 1989:

In his Petition, Petitioner incorrectly argues that by
placing “songrights in . . . Songs written while in the band
known as ‘KISS’” on Schedule B of his bankruptcy schedules
he obtained or revived a property interest in the Lick It Up
Compositions. (Petr.’s Br. 16-18.) “Bankruptcy recognizes
estate property rights, and filing bankruptcy cannot give a
debtor a greater interest in an asset than that which he owned
pre-bankruptcy.” Lowenschuss v. Selnick (in re
Lowenschuss), 170 F.3d 923, 930 (9th Cir. 1999) (quoting
Gendreau v. Gendreau (In re Gendreau), 122 F.3d 815, 819
(9th Cir. 1997)).

* All Title Il citations are to the 1988 official version of the United
States Code, the Bankruptcy Code in effect when Petitioner filed his
bankruptcy petition (March 7, 1989).

14

It is well-settled that a debtor cannot use his bankruptcy
filing to augment his property interests beyond what they were
on the day before he filed his bankruptcy petition. Bracewell
v. Kelly (In re Bracewell), No. 05-11951, 2006 WL 1814367,
at *1 (11th Cir. June 30, 2006) (“[A] debtor’s estate cannot |
be greater than the property rights the debtor had at the
commencement of the case”); Moody v. Amoco Oil Co. , 734
F.2d 1200, 1213 (7th Cir. 1984) (“[W]hatever rights a debtor
has in property at the commencement of the case continue in
bankruptcy—no more, no less”); Brown v. Dellinger (In re
Brown), 734 F.2d 119, 124 (2d Cir. 1984) (“It is true of
course that upon the filing of a petition in bankruptcy, the
bankruptcy estate can have not greater interest in property
included in it than the debtor had when the petition was
filed”).

Petitioner fails to cite any legal authority in support of his
conclusion that by scheduling “songrights” on his bankruptcy
schedule he revived or reconveyed his interest in the Lick It
Up Compositions back to himself or his bankruptcy estate.
By contrast, it is black letter bankruptcy law that Petitioner
could not increase his property interests merely by filing for
bankruptcy.

2. Petitioner Failed to Avoid the Conveyance of
His Property Interests In the Lick It Up
Compositions During His Bankruptcy Case and
He Is Now Time-Barred From Doing So.

Property of the estate also includes property which may be
recovered by the trustee or debtor-in-possession utilizing the
Bankruptcy Code’s avoidance powers. United States v.
Whiting Pools, Inc., 462 U.S. 198, 205, 103 S. Ct. 2309,
2313-14 (1983) (describing avoidance provisions such as
section 543 (turnover of property by a custodian), section 547

15

(avoidance of preferences), and section 548 (avoidance of
fraudulent transfers)).

Therefore, when Petitioner filed his bankruptcy petition in
1989, his bankruptcy estate also included property interests
which could be returned to the estate pursuant to sections 543,
544, 547, or 548 of the Bankruptcy Code. These sections
give a bankruptcy trustee certain powers to recover property
belonging to the bankruptcy estate which is being held by
another party or which was impermissibly transferred by the
debtor to another party. As a debtor in possession, Petitioner
enjoyed the same avoidance powers as a bankruptcy trustee.
11 U.S.C. § 1107(a) (1988); Wolf v. Weinstein, 372 U.S.
633, 649-50, 83 S. Ct. 969, 979-80 (1963) (debtor in
possession has a fiduciary duty to the estate); Coleman v.
Community Trust Bank (In re Coleman), 426 F.3d 719, 729
(4th Cir. 2005).

If Petitioner actually believed in 1989 that his conveyance
of rights to the Lick It Up Compositions was avoidable in his
bankruptcy case, he should have filed an adversary
proceeding to avoid that conveyance’. He did not do so.
The statute of limitations for Petitioner to file avoidance
actions ran out at the time his bankruptcy case was closed
(April 15, 1994). 11 U.S.C. § 546(a) (1988) (“An action or
proceeding under section 544 . . . 547, 548 . . . of this title
may not be commenced after the earlier of (1) two years after
the appointment of a trustee . . . or (2) the time the case is
closed or dismissed”). Therefore, Petitioner’s current claim
that his conveyance of his interest in the Lick It Up
Compositions in 1984 is avoidable was time-barred long ago.

'© Federal Rule of Bankruptcy Procedure 7001(1) requires the filing
of a complaint to initiate an adversary proceeding “to recover money or
property...” Fr. R. Bnkr. P. 7001(1).

16

3. Because the Lick It Up Compositions Never
Became Property of the Bankruptcy Estate, the
Bankruptcy Court Lacked Jurisdiction Over the
Compositions.

“(T]he district court in which a case under title 11 is
commenced or pending shall have exclusive jurisdiction (1) of
all property, wherever located, of the debtor as of the
commencement of such case.” 28 U.S.C. § 1334(e) (1988);
Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440,
447, 124S. Ct. 1905, 1910 (2004). If property falls outside
of the bankruptcy estate, the bankruptcy court has no
jurisdiction over that property. Graziadei v. Graziadei (In re
Graziadei), 32 F.3d 1408, 1410 n.2 (9th Cir. 1994).

Because the Lick It Up Compositions never became part
of Petitioner’s bankruptcy estate, the bankruptcy court lacked
jurisdiction over the compositions under Section 1334(e) and
Graziadei. See 28 U.S.C. § 1334(e); 32 F.3d at 1410 n.2.

B. Confirmation of Petitioner’s Chapter 11 Plan Did
Not Extinguish Respondents’ Property Interests in
the Lick It Up Compositions.

Petitioner incorrectly argues that confirmation of his
bankruptcy plan revested in him the Lick It Up Compositions.
(Petr.’s Br. 17-18, 22-23.) However, by the express
language of the Bankruptcy Code, only property of the estate
may revest in the debtor. 11 U.S.C. § 1141(b) (1988)
(“confirmation of a plan vests all of the property of the estate
in the debtor”). Because the Lick It Up Compositions never
became property of the Cusano bankruptcy estate, they could
not have vested in Petitioner upon confirmation of his plan.

Petitioner also incorrectly argues that confirmation of his
plan somehow terminated Respondents’ “claims” to the
compositions. (Petr.’s Br. 17-18.) However, as discussed
below, Respondents held a property interest in the

17

compositions and did not hold a claim against the estate.
While confirmation of Petitioner’s plan discharged Petitioner
from debts and claims under section 1141, confirmation did
not, and could not, extinguish Respondents’ property interests
in the Lick It Up Compositions. § 1141(d)(1) (1988) (“. . .
confirmation of a plan (A) discharges the debtor from any
debt that arose before the date of such confirmation... .”).
Because an ownership interest is not a “claim” or a “debt,”
it cannot be discharged or extinguished by confirmation of the
debtor’s chapter 11 plan. Lowenschuss, 170 F.3d at 930-31.

In addition, by the bankruptcy plan’s own words, a
“rejection” of a contract simply means that “the Debtor is
then released from all further liability and obligations.” (ASE
76 at 1498.) Thus, even if the 1983 Agreement had been
rejected in bankruptcy, that would only mean that Petitioner
was released from any obligations he had thereunder (which
were none, in any event).

C. Petitioner’s Principal Argument Is Based on a
Fundamental Misunderstanding of What
Constitutes a “Claim” Against a Bankruptcy
Estate.

Petitioner acknowledges that there is no circuit split with
respect to the bankruptcy issue presented: “the current
Petition does not involve a “split” as do many of this Court’s
cases.” (Petr.’s Br. 15.) However, in an effort to fabricate
an issue that “so far departed from the accepted course of
judicial proceedings” to merit review by this Court under
Supreme Court Rule 10(a), Petitioner argues that Respondents
were obligated to present a claim in Petitioner’s 1989
bankruptcy proceeding with respect to the 1983 Agreement
and, because they did not, the 1983 Agreement was rejected
upon confirmation of the bankruptcy plan in 1990. (Petr.’s
Br. 15-17.) This argument is factually and legally baseless.

18

As previously stated, Respondents have a property interest in
the Lick It Up Compositions, not a claim.

Petitioner’s argument is based on the faulty assumption
that because Respondents acquired all right, title and interest
to the Lick It Up Compositions in 1984, Respondents must
have had a “claim” against his bankruptcy estate in 1989.
The fundamental flaw in this argument is that Respondents
held a property interest in the Lick It Up Compositions; they
did not hold a “claim” within the meaning of the Bankruptcy
Code against the Cusano bankruptcy estate. See 11 U.S.C.
§ 101(4) (1988).

A property interest is not a “claim.” A property interest
belonging to a third party does not become property of the
bankruptcy estate and therefore cannot vest in the debtor upon
confirmation. Confirmation only discharges debts—it does not
extinguish property interests.

A “claim” is a bankruptcy term of art and is defined by
section 101 of the Bankruptcy Code as a:

(A) right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured, or unsecured; or

(B) right to an equitable remedy for breach of
performance if such breach gives rise to a right to
payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or
unsecured.

ld.

The “plain meaning of a ‘right to payment’ is nothing
more nor less than an enforceable obligation... .” FCC v.

19
NextWave Personal Commc’ns, Inc. , 537 U.S. 293, 303, 123
S. Ct. 832, 834 (2003).

Unless a legal relationship gives rise to an asserted right
to payment from the debtor, the third party does not hold a
“claim” against the debtor within the meaning of section 101.
CPT Holdings, Inc. v. Indus. & Allied Employees Union
Pension Plan, Local 73, 162 F.3d 405, 408-09 (6th Cir.
1999) (pension plan did not hold a “claim” against employer’s
bankruptcy estate based on withdrawal liability as pension
plan had no enforceable right to payment); Jn re Merchants
and Mfrs., Inc., 166 B.R. 234, 237 (Bankr. D. Del. 1994)
(same).

Here, while the 1983 Agreement created a legal
relationship between Petitioner and KISS Co., that agreement
did not create any right to payment from Petitioner to KISS
Co. Rather than creating a debt of Petitioner in favor of the
KISS Co., the 1983 Agreement created an ownership interest
in the Lick It Up Compositions in favor of KISS Co. In other
words, the 1983 Agreement created a property interest, not a
“claim” within the meaning of section 101 of the Bankruptcy
Code. See Gendreau, 122 F.3d at 818-19 (ex-husband’s
bankruptcy case could not eliminate the ex-wife’s property
interests and filing a bankruptcy case cannot give a debtor
greater property rights than he would have outside of
bankruptcy); Lowenschuss, 170 F.3d at 930-31 (citing
Gendreau, 122 F.3d at 818-19).

Cases from other circuits reaching the same result that
property rights of third parties do not constitute a claim are
abundant. See, e.g., Brown v. Pitzer (In re Brown), 249 B.R.
303, 308-09 (S.D. Ind. 2000) (separate property interest in
the pension fund “is neither a debt owed by [Debtor] nor a
part of his bankruptcy case subject to discharge”); Resare v.
Resare, 154 B.R. 399, 403 (D. R.I. 1993) (ex-wife's interest

20

in her former husband’s pension is her sole and separate
property, and not a part of the bankruptcy estate).

Here, because Petitioner had fully performed all of his
obligations under the 1983 Agreement prior to the filing of his
1989 bankruptcy petition, KISS Co. did not have a claim—a
right to payment from Petitioner—when Petitioner filed his
1989 bankruptcy petition within the meaning of section 101 of
the Bankruptcy Code.

II. The Petition Is Based On Disputed Issues of Fact.

A. Whether the Purchase-Option Provision Was
Timely Exercised Raises a Disputed Issue of Fact.

The Petition is based on a disputed issue of fact.
Petitioner argues that Respondents did not timely exercise the
purchase-option provision of the 1983 Agreement while, on
the other hand, Respondents claim that the purchase-option
provision was timely exercised. That disputed fact does not
raise any issue affecting the administration of the bankruptcy
courts, nor does it constitute a compelling reason for this
Court to grant review. Rather, the dispute in this case relates
solely to the rights of and between the parties.

A factual dispute in the lower court does not constitute a
basis for the Supreme Court to grant a writ of certiorari. Sup.
Ct. R. 10 (writ of certiorari rarely granted when the asserted
error consists of erroneous factual findings); Fed. Trade
Comm'n v. Standard Oil Co., 355 U.S. 396, 400, 78 S.Ct.
369, 371 (1958) (explaining that the Court will “adhere to the
usual rule of noninterference” when there is a factual dispute);
NLRB v. Pittsburgh S.S. Co., 340 U.S. 498, 503, 71 S. Ct.
453, 456 (1951) (clarifying that the Supreme Court “is not the
place to review a conflict of evidence”).

21

B. Whether the 1983 Agreement Was Executory
Raises a Disputed Issue of Fact.

Petitioner’s 1990 bankruptcy plan did not reject the 1983
Agreement. (ASE 76 at 1498.) In fact, the relevant section
of the bankruptcy plan lists 19 contracts which were
rejected—and the 1983 Agreement is not one of them."'

The 1983 Agreement was not “executory” because, at the
time of Petitioner’s bankruptcy in 1989, Petitioner had no
further obligations under the 1983 Agreement. A bankruptcy
trustee may assume or reject any executory contract of the
debtor. 11 U.S.C. § 365(a) (1988). An “executory contract”
is one “on which performance is due to some extent on both
sides.” NLRB v. Bildisco and Bildisco, 465 U.S. 513, 522-23
n.6, 104 S. Ct. 1188, 1194 n.6 (1983) (legislative history to

'' Petitioner’s 1990 bankruptcy plan states in relevant part:
5.1 Executory Contracts.

(a) Allexecutory contracts or unexpired leases of the Debtor
which have not been specifically assumed by the Debtor as
authorized by order of the Bankruptcy Court either prior to the
date of confirmation of the Plan or after a hearing for which
notice is given within forty-five days after the Effective Date of
the Plan will, be deemed rejected. These include Debtor's
executory contracts, to the extent they are cxecutory contracts and
have not already been rejected, with Axic Worldwide, Lid.;
Excalibur, Nigel Thomas, International Talent Group, Wayne
Forte, Brockum Company; Carvin Guitars, Chrysalis Records;
Nadysystems, Inc., New Image, P.B. Serbin, Parks, Palmer,
Turner & Yemendjian, Pro- Mark Corp., Sound Castle Recording
Studio, Sound Design Studios, Inc., Bruce Mancinelli, George
Sewitt, Siegel & Feldstein, Washburn International. In the event
that an executory contract or unexpired lease is rejected, the
Debtor is then released from all further liability and obligations.

(ASE 76 at 1497-98.)

22

§ 365(a) supports this definition), superceded by statute on
other grounds, Bankruptcy Amendments and Federal
Judgeship Act of 1984, Pub. L. No. 98-353, Title II,
§ 541(a), July 10, 1984, 98 Stat. 390, as recognized in NLRB
v. Manley Truck Line, Inc., 779 F.2d 1327, 1332 n.7 (7th
Cir. 1985). More precisely, a contract is executory if “the
obligations of both parties are so unperformed that the failure
of either party to complete performance would constitute a
material breach and thus excuse the performance of the
other.” Griffel v. Murphy (In re Wegner), 839 F.2d 533, 536
(9th Cir. 1988).

Here, Petitioner had no further obligations under the 1983
Agreement at the time of his bankruptcy filing in 1989.
Petitioner was not obligated to perform on stage, write new
songs, or do anything. Because Petitioner had fully
performed under the 1983 Agreement, that agreement was not
an executory contract that confirmation of Petitioner’s
bankruptcy plan in 1990 could have been deemed to “reject”.
In any case, at most, this argument presents little more than
a disputed issue of fact.

C. Misstatements of Fact and Law.

Pursuant to Supreme Court Rule 15.2, the Petition
contains the following misstatements of fact and law that
might bear on the issues before this Court if certiorari were
granted. '?

'? Misrepresenting the record is nothing new for Petitioner. Prior to
the initial appeal, the district court admonished Petitioner and his then-
counsel at length for a lack of veracity when presenting arguments to the
court. “[T]he record reflects that counsel for plaintiff ‘clearly and
unequivocally’ misrepresented to Magistrate Judge Jones ‘that there were

no additional responsive documents in plaintiff's possession responsive to
any of defendant’s document requests."” (Order Granting Defendants’
Motions for Summary Adjudication, Etc., entered April 14, -1999 at 9; AE

23

1. Petitioner misstates the law in arguing that, upon his
discharge from bankruptcy in 1990, a copyright interest in the
Lick It Up Compositions reverted to Petitioner. Only
“property of the estate” vests in the debtor upon confirmation
of the bankruptcy plan. 11 U.S.C. § 1141(b). Petitioner had
conveyed all of his right, title, and interest in the Lick It Up
Compositions five years earlier pursuant to the 1983
Agreement. Accordingly, Petitioner had no ownership
interest in the Lick It Up Compositions when he commenced
his bankruptcy action in 1989.

2. Petitioner misstates the fact that the purchase-option
provision of the 1983 Agreement was not timely exercised by
KISS in 1984. (Petr.’s Br. 14.) Petitioner presents no facts
to support this allegation.

3. Petitioner misstates that the district couri’s opinion
granting the motion for summary adjudication with respect to
the Lick It Up Compositions implicates a matter of
“‘importance in the administration of the Bankruptcy’ laws”
(Petr.’s Br. 14 (quoting Saper, 336 U.S. at 329).) The motion
for summary adjudication granted by the district court with
respect to the Lick It Up Compositions was not based on any
application of bankruptcy law. It was based on the merits and
Petitioner’s failure to present any evidence to support his
claims. Cusano v. Klein, 280 F. Supp. 2d at 1040.

4. Petitioner misstates that the decision of the court of
appeals in Cusano | “revived the 1983 Employment
Agreement.” (Petr.’s Br. 11.) This is a fundamental
misstatement of fact. Nothing in Cusano / or in the 1990
bankruptcy plan rejected the 1983 Agreement. Accordingly,

18 at 428 (citation omitted) (emphasis added).) “And, perhaps most
egregious of all his misconduct, plaintiff submitted a false affidavit to this

Court challenging the genuineness of his signatures on the Revenge
Agreements... .” (/d. (emphasis added))

24

the court in Cusano I did not “revive” the 1983 Agreement,
because it remained extant.

5. Petitioner misstates the fact that, as of the purchase-
option payment date of September 19, 1984, there was a
“dispute concerning Respondents’ rights under the
Employment Agreement.” (Petr.’s Br. 14.) Atno time from
that date until the filing of the complaint in the district court
in 1997 did Petitioner ever “dispute” the fact or validity of the
timeliness of the purchase-option payment.

6. Petitioner misstates that there were competing claims
to the Lick It Up Compositions at the time of Petitioner’s
1989 bankruptcy proceeding. (Petr.’s Br. 27.) In fact, in
1989 there were no competing claims with respect to the Lick
It Up Compositions. Petitioner never objected to KISS’s
ownership of the copyright in and to the Lick It Up
Compositions, nor did Petitioner ever seek to raise a
competing claim with respect to those compositions in the
bankruptcy court.

Ill. The Circuit Court’s Decision Was Correct.

Petitioner claims that, by virtue of the appellate court’s
decision in Cusano I, he now has a copyright interest in the
Lick It Up Compositions. (Petr.’s Br. 18.) This is incorrect.
The Court in Cusano | did not reconvey to Petitioner any
copyright interest in or to the Lick It Up Compositions. The
Court merely found that Petitioner had standing to pursue a
portion of Petitioner’s royalty claims regarding the Lick It Up
Compositions. “Cusano retains standing to sue for any
royalty payments coming due post-petition.” Cusano, 264 F.
3d at 948 (emphasis added). —

Further, even though Petitioner failed to raise his
reversion argument in the district court and, accordingly, it
was not preserved for appeal, the court of appeals in Cusano
/1 considered and flatly rejected this argument: “Cusano | did

25

not rule in favor of Cusano on the merits of any of his claims
to royalty rights or copyrights, and did not invalidate any of
the agreements between the parties.” (Petr.’s App. A2 at
4 2.)

The bad faith of Petitioner’s current argument is best
exemplified by his statements to the district court immediately
after the remand. The district court requested a status report
regarding, among other things, the “it act on this case of the
Ninth Circuit’s ruling” in Cusano J. (Order Setting Status
Conference Following Remand From The Ninth Circuit,
entered Dec. 13, 2001 at 1; Appellees’ SE 73 at 1484.)
Petitioner did not argue, explicitly or implicitly, in the joint
status report following remand that the court of appeals
decision in Cusano I reconveyed to him a copyright interest
in the Lick It Up Compositions. Petitioner responded:
“[C]Jonfirmation of Plaintiff's bankruptcy reorganization plan
caused all rights to post-petition royalties on Plaintiff's pre-
petition compositions and other damages accruing post-
petition to revert to Plaintiff.” (Joint Status Report, dated
Dec. 28, 2001, at 2; Appellees’ SE 74 at 1488.)

In other words, when the district court wanted to know
each party’s position regarding the effect of the Ninth
Circuit’s ruling in Cusano J, Petitioner stated clearly on the
record that only his claims for royalties had been remanded.
Petitioner’s new reversion argument is a post hoc fiction that
the court of appeals in Cusano II found to be “frivolous.”
(Petr.’s App. A2 at 4 5.)

A. The Ninth Circuit’s Decision In Cusano I Merely
Reinstated Petitioner’s Right to Assert Certain
Royalty Claims.

Contrary to Petitioner’s argument, nothing in the Ninth
Circuit’s decision in Cusano / altered the ownership of the
copyrights in the Lick It Up Compositions. The Ninth

26

Circuit’s opinion in Cusano / stated repeatedly that only
Petitioner’s royalty claims were being revived (in part):

@ “We conclude that Cusano’s scheduled
‘songrights’ asset reverted to him upon the
confirmation of his reorganization plan . . . and
vested in him all post-petition royalty rights to his
pre-petition compositions . . . . He thus reacquired
ownership of all claims to royalties derived from
these compositions post-petition . . . . Thus, we
reverse the district court in part, and reinstate

some of Cusano’s royalty claims.” Cusano, 264
F.3d at 945 (emphasis added).

@ “Weconclude, therefore, that [Cusano’s] listing of
the ‘songrights’ asset was a sufficient scheduling
of Cusano’s interest in his _pre-petition
compositions, which reverted to him upon
confirmation of his plan. The reversion vested in
Cusano the rights to post-petition royalties on his
pre-petition compositions . . ..” /d. at 947
(emphasis added).

Thus, in Cusano J] the Ninth Circuit stated repeatedly that
it was only reviving certain claims for royalties. Further, the
Court in Cusano / stated clearly that only “Cusano’s interest”
in the Lick It Up Compositions reverted to him through his
bankruptcy proceeding. In that, in 1989 when Petitioner filed
for bankruptcy, he had no remaining ownership interest in the
Lick It Up Compositions, he had no “interest” in those
compositions that could revert to him on confirmation of his
bankruptcy plan.

27

B. The Ninth Circuit in Cusano II Rejected
Petitioner’s Interpretation of the Court’s Prior
Decision.

The Ninth Circuit in Cusano II flatly rejected Petitioner’s
new argument that the court of appeals decision in Cusano |
reconveyed a copyright interest in the Lick It Up
Compositions to Petitioner. “Cusano misreads our opinion in
{Cusano I}, which held only that Cusano had standing to raise
some of his claims. Cusano I did not rule in favor of Cusano
on the merits of any of his claims to royalty rights or
copyrights, and did not invalidate any of the agreements
between the parties.” (Petr.’s App. A2 at { 2 (citation
omitted) (emphasis added).) “Cusano’s entire appeal is
frivolous .. . ‘{and] the arguments of error are wholly
without merit.’” (/d. at | 5 (citations omitted).)

What better court to know the intent of its prior opinion
than the court which rendered that opinion? Petitioner’s new
argument that a copyright interest in the Lick It Up
Compositions somehow reverted to him upon discharge from
bankruptcy finds no support in the record of the lower courts,
and presents no basis for review by this Court.

IV. No Basis Exists for the Court to Exercise Its
Supervisory Authority.

Recognizing that the Petition fails to satisfy any
conceivable basis for review by this Court, Petitioner argues
that the Court should, nonetheless, consider the Petition based
on its supervisory authority. (Petr.’s Br. 23.) However,
Petitioner raises no issue important to the administration of
bankruptcy law that would remotely warrant this Court
exercising supervisory authority. Indeed, Petitioner’s
argument raises no disputed issue of law regarding application
of the Bankruptcy Code. Petitioner merely disputes the fact
that Respondents timely exercised the purchase-option

28

provision of the 1983 Agreement. That disputed fact does not
raise any issue affecting the administration of bankruptcy law
or the bankruptcy courts.

A. Petitioner Has Raised No Issue of Bankruptcy Law
Requiring Resolution.

Petitioner suggests that because the Court has granted
certiorari in certain cases important to the administration of
bankruptcy law or other important federal statutes (even in the
absence of a circuit split), certiorari is appropriate here.
(Petr.’s Br. 23.) Petitioner, however, merely cites cases for
that broad and uncontroversial principle, conveniently
ignoring the circumstances of the cases cited—which raised
significant legal questions begging resolution, unlike the case
here. See Callaway v. Benton, 336 U.S. 132, 136, 69S. Ct.
435, 439 (1949) (granting certiorari to resolve a conflict
between state and federal courts on the issue of whether a
corporation can convey property without the unanimous
consent of shareholders in bankruptcy); Wilkerson v.
McCarthy, 336 U.S. 53, 55, 69 S. Ct. 413, 414 (1949)
(granting certiorari because the district court directed a
verdict in a negligence case under the Federal Employer’s
Liability Act, which necessitated weighing evidence and thus
usurped the statutory right to a jury trial); Maggio v. Zeitz,
333 U.S. 56, 61, 68 S. Ct. 401, 404 (1948) (granting
certiorari because the issue of fraudulent bankruptcy was
particularly important and subject to dispute within the Second
Circuit).

Neither the disputed facts nor the legal principle in this
case even remotely rise to the level of presenting a significant
legal question requiring resolution by this Court as did the
cases referenced above. Indeed, Petitioner cites narrowly
focused cases for propositions so general that the case itself is
actually irrelevant. See, e.g., United States v. Ruzicka, 329

29

U.S. 287, 288, 67 S. Ct. 207, 207 (1946) (involving specific
questions regarding the administration of the Agricultural
Marketing Act of 1937, but cited by Petitioner for the
unremarkable proposition that certiorari is granted to resolve
" important questions in the administration of major federal
Statutes).

Petitioner also argues that, because the Court may grant
review to correct clear errors below in an exercise of its
supervisory powers, it should do so here. (Petr.’s Br. 24.)
In the cases cited by Petitioner, however, there are significant
reasons why the Court felt compelled to exercise that
authority. Nearly all of the cases cited involve either
constitutional rights or other primary civil rights that the
Court found necessary to protect. See, e.g., Florida v.
Rodriguez, 469 U.S. 1, 5, 105 S. Ct. 308, 310 (1984)
(involving a misinterpretation of prior Fourth Amendment
search-and-seizure case law);'? United States v. Hale, 422
U.S. 171, 173, 95 S. Ct. 2133, 2135 (1975) (involving the
parameters of the Fifth Amendment right to remain silent);
Montana v. Kennedy, 366 U.S. 308, 309, 81 S. Ct. 1336,
1338 (1961) (involving the deportation of a fifty-five year
alien who had resided in the United States since infancy); see
also City of Memphis v. Greene, 451 U.S. 100, 102, 101 S.
Ct. 1584, 1587 (1981) (involving alleged racial discrimination
under the Civil Rights Act of 1866, 42 U.S.C. § 1982, and
the Thirteenth Amendment); New York City Transit Auth. v.
Beazer, 440 U.S. 568, 570-71, 99 S. Ct. 1355, 1358 (1979)
(involving alleged discrimination under the Civil Rights Act
of 1964 and the Equal Protection Clause of the Fourteenth
Amendment). - '

'® Petitioner cites the dissent in Rodriguez, rather than the opinion, for
the general proposition that sometimes the Court must perform “a pure
error-correcting function.” (Petr.’s Br. 24 (citing 469 U.S. at 7 (Stevens,
J., dissenting). )

30

Here, there is no crucial constitutional or civil right issue
at stake, nor is there any irregularity in the rulings of the
lower courts. Petitioner merely desires a different result
because all prior courts ultimately have ruled in Respondents’
favor.

B. There Is No Basis For the Court to Issue Summary
Reversal.

Finally, Petitioner makes the wholly unsupported
argument that this case merits summary disposition by the
Court. (Petr.’s Br. 25-26.) The only authority cited by
Petitioner for this argument is Schweiker v. Hansen, 450
U.S. 785, 791, 101 S. Ct. 1468, 1472 (1981). Petitioner,
however, merely cites the dissent in that case for the
following language on the limited circumstances when
summary disposition may be appropriate: “[when] the law is
settled and stable, the facts are not in dispute, and the decision
below is clearly in error.” Id.

This Court has acknowledged that “[s]ummary reversals
of courts of appeals are unusual under any circumstances.”
Office of Personnel Mgmt. v. Richmond, 46 U.S. 414, 422,
110 S. Ct. 2465, 2470 (1990). Further, here, the facts are in
dispute, and error below is anything but clear; rather, there is
a consistent appellate record against Petitioner. Nothing in
the court of appeals’ decision in Cusano I] warrants the
extraordinary remedy of a summary reversal by the Court,
and the single case cited by Petitioner for its language alone
is utterly irrelevant.

CONCLUSION

For the foregoing reasons, Respondents respectfully
request that the Petition for Writ of Certiorari be denied.

Respectfully submitted,

Brian G. Wolf —

Counsel of Record
Henry L. Self Ill
Kristina Brittenham
LAVELY & SINGER, P.C.
2049 Century Park East
Suite 2400
Los Angeles, CA 90067
(310) 556-3501

Ib

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 03-56650
D.C. No. CV-97-04914-AHM

[Filed February 15, 2006]

VINCENT CUSANQO, individually d/b/a
Vinnie Vincent Music, d/b/a Streetbeat
Music f/k/a Vinnie Vincent,

Plaintiff- Appellant,

¥.

GENE KLEIN, an individual;
STANLEY EISEN, an individual;
THE KISS COMPANY, a New York Corporation;
GENE SIMMONS WORLDWIDE INC.,
a Delaware Corporation;
SIMSTAN MUSIC LTD., a Delaware Corporation;
KISSTORY LTD.; POLYGRAM RECORDS, INC.,
a Delaware Corporation;
HORIPRO ENTERTAINMENT GROUP,
a California Corporation;
PAUL STANLEY,
Defendants - Appellees.

ee ee

2b

ORDER

Before: KOZINSKI, Circuit Judge.

Appellant’s motion for reconsideration is construed as a
motion to recall the mandate, and is DENIED. No additional
filings from Appellant will be accepted.

3b

APPENDIX B

UNITED STATES BANKRUPTCY COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

Case No. LA 89-04620-CA

[Executed March 21, 1989]

In re

VINCENT J. CUSANO
aka “VINNIE VINCENT”

a

Debtors
Manatt, Phelps, Rosenberg & Phillips
Simon Aron.
Lisa E. Bittan
Todd W. Mathers
Name
Address 11355 West Olympic Boulevard
Los Angeles, California 90064
Telephone (213) 312-4000

Attorney for Debtor(s)

4b

STATEMENT OF EXECUTORY CONTRACTS
The debtor has the following executory contracts:

1. International Talent Group
729 7th Avenue
New York, NY 10019
(Booking Agency)

2. Brockum
850 7th Avenue, Room 301
New York, NY 10019
(Merchandising)

3. Nigel Thomas
c/o AXIS Worldwide, ;Ltd.
7 Gower Street
London, England
(Debtor contends contract was already terminated and is
not an executory contract. If it is, Debtor will reject
contract.)

I, VINCENT J. CUSANO, the debtor(s) named (or the
president or other officer or authorized agent of the
corporation named as debtor, or a member or an authorized
agent of the partnership named as debtor) in the forgoing
statement, do hereby declare, under penalty of perjury, that
the statements contained therein are true and correct. (and that
the filing of this statement on behalf of the corporation (or
partnership) has been authorized).

Executed on 3/21/1989 = /s/

~VINCENT J. CUSANO
Petitioner

Sb

APPENDIX C

UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION

Case No. LA 89-04620-ES
Chapter 11

[Filed April 23, 1999]

In re

VINCENT J. CUSANO

aka VINNIE VINCENT,
Debtor.

Se i A A a

ORDER DENYING DEBTOR’S MOTION TO
REOPEN BANKRUPTCY CASE

DATE: March 2, 1999
TIME: 10:30 a.m.
CTRM: Courtroom 1652

The “Motion For Order Reopening Case Pursuant To 11
§ U.S.C. § 350" (the “Motion”) filed by Vincent Cusano (the
“Debtor”) came on regularly for hearing on March 2 at 10:30
a.m. in Courtroom “1652” located at 255 E. Temple Street,
Los Angeles, CA 90012. The Debtor appeared through his
counsel of record, Valensi, Rose & Magaram by Darren
Martinez. Gene Klein p/k/a Gene Simmons, Paul Stanley,

6b

The Kiss Company, Gene Simmons Worldwide, Inc. , Simstan
Music, Ltd. Kisstory Ltd., and Polygram Records, Inc.
(collectively the “Kiss Parties”) appeared through their
attorneys of record, Leslie A. Cohen of Goldberg, Scott,
Belfield, Steinberg & Cohen, a Professional Law Corporation
and Brian G. Wolf of Lavely & Singer, a Professional
Corporation.

The Court, having considered the Motion, the Kiss
Parties’ Opposition and Supplemental Opposition (including
the declarations of Brian Wolf) thereto, the statements and
arguments of counsel at the hearing,

It is HEREBY ORDERED as follows:
A. The Motion is hereby denied.

B. The Bankruptcy Court will not reconsider the
findings that have already been made by the District Court in
the pending litigation in the United States District Court for
the Central District of California between the Debtor and the
Kiss Parties, including without limitation its findings that any
claims for unpaid royalties on _ prepetition musical
compositions did not revert to Debtor and that such claims
were never formally abandoned to Debtor.

C. To the extent the Debtor is seeking to reopen the
case so he can assert claims for unpaid royalties on pre-
petition musical compositions as claims of the Estate, that
request is denied.

D. To the extent the Debtor is seeking to reopen the
case so he can assert claims for unpaid royalties on pre-
petition musical compositions in his individual capacity, that
request is denied.

7b

clarms-abandoned-to-Debtor-

F. All claims based on facts predating Debtor’s
bankruptcy, including claims for unpaid royalties on pre-
petition musical compositions remain assets of the estate, and
the Estate is Closed;

G. The Debtor’s Plan was fully consummated in 1993
and therefore pursuant to 11 U.S.C. § 1127(b), this Court has
no authority to allow the Debtor to amend the Plan for any
purpose, including the administration of the estate assets
through such plan entered in the Debtor’s case and cause does
not exist for the reopening of Debtor’s Chapter 11 bankruptcy
case.

H—-Fhe-Piar_ts_fuity—consummated-and-may-not-be
amended-

I. The doctrine of laches constitutes a separate and
independent ground for denying the motion.

DATED: 4/23/99 Re
ERITHE SMITH
United States Bankruptcy Judge

Submitted by:

/s/

LESLIE A. COHEN

GOLDBERG, SCOTT, BELFIELD,
STEINBERG & COHEN

Attorneys for the Kiss Parties

8b

NOTICE OF ENTRY JUDGMENT OR ORDER
AND CERTIFICATE OF MAILING

TO ALL PARTIES IN INTEREST ON THE ATTACHED
SERVICE LIST:

1. You are hereby notified, pursuant to Local Bankruptcy
Rule 1 16(1)(a)(iv), that a judgment or order entitled (specify):

ORDER DENYING DEBTOR’S MOTION TO REOPEN
; BANKRUPTCY CASE

was entered on (specify date): Apr 27 1999

2. I hereby certify that I mailed a copy of this notice and a
true copy of the order or judgment of the persons and entities
attached service list on (specify date): Apr 27 1999
Dated: APR 27 1999

JON D. CERETTO
Clerk of the Bankruptcy Court

by:/s/___ Tina Johnson

Deputy Clerk

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0942%3A2. Public record. Not legal advice.