# Opposition Brief — Steinbeck v. Penguin Group Group (USA), Inc. (No. 08-1039)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

Supreme Court, U.S
FILED

\j0 { 4 APR 1 7 2009

OFFICE OF THE CLERK
No. 08-1039

IN THE

Supreme Cort of the Anited States

THOMAS STEINBECK AND BLAKE SMYLE,
Petitioners,

¥.

PENGUIN GROUP (USA) INC. ET AL.,
Respondents.

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

for the Second Circuit

—_— ——

BRIEF IN OPPOSITON

WILLIAM M. HOHENGARTEN SUSAN J. KOHLMANN

JENNER & BLOCK LLP Counsel of Record
1099 New York Ave. NW JOSHUA A. BLOCK
Suite 900 JENNER & BLOCK LLP
Washington, DC 20001 919 Third Avenue
(202) 639-6000 Floor 37

New York, NY 10022
(212) 891-1600

Attornevs for Estate Respondents

QUESTION PRESENTED

Whether the Second Circuit correctly held, in
agreement with the Ninth Circuit, that the power to
terminate pre-1978 copyright assignments under 17
U.S.C. § 304 does not bar an author or his heirs from
revoking a pre-1978 assignment and negotiating a
new post-1978 assignment that provides the author
and his heirs with greater rights but is not subject to
termination under § 304.

ll

TABLE OF CONTENTS
QUESTION Pape atrissriccceescccescss scr scsces ccs eesee 1
TABLE OF AU Riis pete te icici cesccenssncccccnccsesscoeses. 111
PW inp eee 1
REASONS FOR DENYING THE PETITION.......... 16
I. There fe Iie Cir Gtie Bee se cscckcssoseveccsccesccccecssccceess 16

il. The Test Employed By the Second and Ninth
Circuits Does Not “Turn Back the Clock” to

Fred Fie ee eicenvis seats ssc cccces 24
Ill.At Most, the Petition Raises a Fact-Bound
Question Concerning a Particular Contract. ...... 27

1V.This Dispute Between Two Factions of the
Steinbeck Family Is a Poor Vehicle for
Interpreting § 304’s ‘Termination Provisions......30

CO NCL ce ee yee icinescssivccesss.cece 31

111

TABLE OF AUTHORITIES

CASES

Automation By Design, Inc. v. Raybestos
Products Co., 463 F.3d 749 (7th Cir.
2006)

SEHR HEE EHEHEEEHEEEREHETE SD E HT HEHEHEHHHH SESH HS ESET HEHEHE HHH HEE EME

Broadcast Music, Inc. v. Roger Miller Music,
Inc., 396 F.3d 762 (6th Cir. 2005)

Classic Media, Inc. v. Mewhorn, 532 F.3d
978 (9th Cir. 2008).............0.0... 16, 20, 21,

Fred Fisher Music Co. v. M. Witmark &

22, 20

SION, BU UE Be. ES URGE iv vincvs vccvciccevscoceesccsapsaces 5
Marvel Characters, Inc. v. Stmon, 310 F.3d

PI Te Ge De oa inc ok stv eee ~%3
Mills Music, Inc. v. Snyder, 469 U.S. 153

eesti he eae ae 5-6, 25
Milne v. Stephen Slesinger, Inc., 430 F.3d

1036 (Sth Cir. 2006) .............00000se0s.: 15, 16, 17, 18
Venegas-Hernandez vv. Asociacion De

Compositores, Kditores De Musica

Latinoamericana (ACEMLA) 424 F.3d

50 (let Cr. ZOOS) .......<..cccsoces. 4
Wharf (Holdings) Ltd. V. United

International Holdings, Inec., 532 U.S

NSS (ZOO 1). ER

STATUTES

BE Sy. ie Pe whence eee 2

lV

17 U.S.C. § 304........ Pe ea re ee 31
ee Rae” > nee 2, 5, 6, 12, 30
PF Re. BS ikiccenvinssacsave ctor eeciccands 6, 7
OF UF Ba, oi oaks feeeccacsecitcncnssbicscacemtecacn 6
DT UG, Braces ve sco eesvascssactdasnscescensss 11
RF Re. © reesei i benicar 4
Fe ae ee oi oiins ss okosts cdeceuscacinern 7
BF RB, Be Seca chests svca coco epssencctens 6, 15,17
EF TSEC. BI osc vnckceiivevseecscnseaccivsiamtba sss 6
PT Boise vk ccepeenvisesrverdectowes 2, 10, 12, 30
ee fae tS: anne etka rere 11
Copyright Act of 1947, Pub. L. No. 80-281,

61 Stat. G2 ............00 eR Ree Ree Wate teen Ma

Sonny Bono Copyright ‘erm Extension Act,
Pub. L. No. 105-298, 112 Stat. 2827

Sat eoee ganda rons er nee eens 10
OTHER AUTHORITIES
WE Re OS Sg NID ogics iv suv ckavidadebaentadadey cidcaocsccveees 13
H.R. Rep. No. 94-1476 (1976), as reprinted
In ISTG U.S.U.C.ALN. BBOB ..0..cscessecssese. 1d, 29, 30

Allison M. Scott. OA Bother: Milne,
Steinbeck. and an Emerging Circuit Split
Over the Alenabilitvy§ of Copyright
Termination Rights, 14 J. of Intell. Prop.
L.. 357 (2007) ....

Sup. Ct. R. 10

STATEMENT

1. This is primarily a dispute between two
branches of the Steinbeck family, not a dispute
between a publisher on the one hand and an author’s
family on the other. Respondents are the estate of
John Steinbeck’s widow, Elaine Anderson Steinbeck,
and members of John Steinbeck’s step-family (the

“Estate Respondents”).! Petitioners are John
Steinbeck’s son from a previous marriage, Thom
Steinbeck, and a previously unknown

granddaughter, Blake Smyle.

John Steinbeck (“Steinbeck”) married Elaine
Anderson in 1950, and the couple lived together for
eighteen years until Steinbeck’s death in 1968. In
his will, Steinbeck bequeathed all his intellectual
property rights, including his copyrights, to his
widow Elaine. Pet. App. 3a. Steinbeck’s will also
named Elaine executor of his estate and empowered
her “with the fullest power and authority to deal in
and with rights in liferary properties, realizing the
complexity and difficulty of exploiting the same
advantageously and desiring that they shall be
unhampered in any respect in turning to account the
rights therein and making or amending contracts
with respect thereto.” 2d Cir. J.A. 571.

Steinbeck also had two sons from a_ previous
marriage: Thom and John IV. In his will, Steinbeck
left Thom and John IV a sum certain of $50,000 each

! Penguin Group (USA), Inc. (“Penguin”) is also a respondent
and 1s separately represented. The Estate Respondents include
all respondents other than Penguin.

2

but excluded them from any other beneficial
ownership in his estate or his copyrights or other
intellectual property. Jd. at 566-68.

John IV died in 1991. Pet. App. 29a. Although
John IV had no acknowledged children at the time of
his death, Blake Smyle subsequently filed a claim in
probate court asserting that she was John IV’s
previously unknown and unacknowledged daughter
(and, by extension, Steinbeck’s granddaughter). 2d
Cir. J.A. 242. Thom and Blake are the Petitioners in
this action.

Elaine Steinbeck died in 2003. Pet. App. 4a. In
her will, Elaine passed all of her copyright interests
in both her own works and those authored by
Steinbeck to the Estate Respondents: her daughter
(Steinbeck’s step-daughter) and executor Waverly
Scott Kaffaga; her sister (Steinbeck’s sister-in-law)
Jean Anderson Boone; and her’ grandchildren
(Steinheck’s step-grandchildren) David Scott Farber,
Anderson Farber Runkle, Jebel Kaffaga, and Bahar
Kaffaga.

2. The Copyright Act generally allows authors to
transfer their copyrights by will to whomever the
author chooses. Sce 17 U.S.C. § 201(d) “ownership
of a copyright ... may be bequeathed by will”); 7d.
§ 304(c), (d) (sta. atory heirs’ power to terminate pre”
1978 copyright assignments does not apply to
transfers “by will”). Notwithstanding this general
policy of testamentary freedom, however, the
Copyright Act vests certain narrowiv circumscribed
interests in so-called “statutory heirs,’ or persons

3

named in the statute, regardless of the author’s
testamentary intent. Steinbeck’s statutory heirs
included not only his widow Elaine, but also his two
sons, Thom and John IV (or, if either son were
deceased, the son’s own offspring).

As statutory heirs, Thom and John IV each
obtained a contingent interest in the “renewal terms”
for Steinbeck’s copyrights. The Copyright Act of
1947, Pub. L. No. 80-281, 61 Stat. 652, which was in
effect at the time of Steinbeck’s death, provided an
initial copyright term of 28 years and a renewal term
of an additional 28 years. If an author died before
the initial copyright term expired, then the renewal
term automatically vested in the author’s “widow,
widower, or children”’—here, Elaine, Thom, and John
IV. /d. § 24, 61 Stat. at 659.

At the time of his death in 1968, Steinbeck had
already renewed the copyrights for thirteen of his
earlier works (the “Early Works”). Pet. App. 27a
n.12. Thus, full ownership over these thirteen Early
Works passed directly to Elaine in accordance with
Steinbeck’s will. /d. at 27a-28a. But fifteen of
Steinbeck’s other works that were first published in
or after 1942 were still in their initial copyright term
when Steinbeck died and had not yet been renewed
(the “Late Works”). Jd. at 28a & n.13. The
Copyright Act thus vested joint ownership over the
renewal terms of those fifteen Late Works jointly in
Elaine, Thom, and John [V. Elaine, Thom, and John
IV agreed in 1974 that the royalty proceeds from the
fifteen Late Works would be distributed with a 50°

share to Elaine and a 25% share each to Thom and
John IV. 2d Cir. J.A. 461.?

The renewal terms for the Late Works
represented a substantial windfall for Thom and
John IV. Had Steinbeck lived a few years longer, he
would have renewed all the copyright terms himself,
and 100% of the ownership rights of all of his works
would have passed to Elaine through his will. But
because Steinbeck died before he could renew the
copyright terms of the Late Works, Thom and John
IV became co-owners of those works, including
several of Steinbeck’s best-known works such as Hast
of Edenand The Pearl. Pet. App. 28a & n.13.

Unsatisfied with this substantial override of
Steinbeck’s will, Thom and John IV sued Elaine in
1981 to repudiate their 1974 agreement and seek an
even greater percentage of the royalties from the
Late Works they co-owned with her. 2d Cir. J.A.
461. The district court in that suit granted summary
judgment to Elaine and upheld the validity of the
1974 distribution agreement. /d. Despite prevailing,

2 The 1947 Act did not specify how shares of renewal rights
should be allocated among statutory heirs, but more recent
appellate decisions confirmed that, when a renewal term is
automatically vested jointly in an author’s surviving spouse and
childrer the spouse receives a 50% share of ownership and the

remainin; ‘tion is divided among the children on a per
stirpes | See Venegas-Hernandez v. Asociacion De
Composiieres, Kditores De Musica Latinoamericana

(ACEMLAY. 424 F.3d 50, 54-55 (st Cir. 2005): Broad. Music,
Inc. v. Roger Miller Music, I[nc., 396 F.3d 762, 781-82 (6th Cir
2005).

} 4
~

Elaine entered into a 1983 settlement agreement
with Thom and John IV in which she agreed to
reduce her royalty share to one-third; in exchange,
Thom and John IV agreed to execute irrevocable
powers of attorney in her favor vesting Elaine with
“complete power and authority to negotiate,
authorize and take action with respect to the
exploitation and/or termination of rights in the
works of John Steinbeck in which John Steinbeck IV
and Thom Steinbeck have or will have renewal or
termination rights.” /d. at 466-68. To this day,
Thom and John TY (or their heirs) continue to receive
enhanced royalty payments pursuant to the 1983
settlement agreement. Pet. App. 29a n.15.

3. Thom and John TV received a second windfall
when Congress created a new interest called
“termination rights” as part of the Copyright Act of
1976. 17 U.S.C. § 304(c). Congress designed these
termination rights to respond to a specific problem
that had developed in the wake of this Court’s
decision in Fred Fisher Music Co. v. M. Witmark &
Sons, 318 U.S. 643 (1943), which held that authors
and family members could sell their contingent
interests in a copyright’s renewal term in advance,
before the renewal term even began Publishers
exploited Fred Fisher to demand that authors
immediately assign both the first and = second
copyright terms to the publisher when a work was
initially published. Pet. App. 6a. “Thus, assignees
were able to demand the assignment of both terms at
the time when the value of the copyrighted work was
most uncertain.” Afi//s Music, Inc. v. Snyder, 469

6

U.S. 153, 186 (1985) (White, J., dissenting). The
termination provisions added in the Copyright Act of
1976 “were designed to correct this situation,” /d., by
allowing authors and family members to repudiate
these “ill-advised and unremunerative grants that
had been made before the author had a fair
opportunity to appreciate the true value of his work
product,” sd. at 172-73 (majority opinion).

The termination rights in 17 U.S.C. § 304(c)
enable authors and their families to cancel licenses
and assignments made before 1978. When an author
has died, the Copyright Act allocates the termination
rights among the author’s spouse, children, and
grandchildren. J/d. § 304(c)(2)(A). If the holders of a
majority percentage of the termination rights agree
to serve a termination notice, they can recapture
rights granted in licenses and assignments made
before 1978. Jd. § 304(c)(1). Termination rights may
be exercised “notwithstanding any agreement to the
contrary.” Jd. § 304(c)(5). Those recaptured rights
are then automatically distributed in proportion to
the percentage of termination rights held by each
statutory heir. Jd. § 304(c)(6)(C).

There is no guarantee that statutory heirs will be
able to exercise this termination right, because
Congress placed four critical restrictions on its use:
First, the termination right applies only to lceenses
and assignments executed before 1978. Jd. § 304(c).*

=

* A separate provision, 17 U.S.C. § 203, creates different
termination rights for agreements entered into after 1978.
Petitioners do not contend that § 203 termination rights apply
here

7

Second, the termination right does not apply to any
transfers “made by will.” /d. Third, the termination
right may be exercised only in specific time periods:
during a “window” of time between 56 and 61 years
after the work was originally published, with service
of the notice of termination between two and ten
years before the termination will take effect. /d.
§ 304(c)(3), (4)(A). Fourth, the termination rights
may be exercised only by agreement among holders
of more than 50% of the rights. /d. § 304(c)(1).

As with renewal rights, if Steinbeck had lived
long enough to exercise the termipation rights
himself, he would have been able to transfer all of
the recaptured rights to Elaine. But because
Steinbeck died before any of his termination rights
were created, the Copyright Act allocated 50% of the
termination rights to Elaine, 25% to Thom, and 25%
to John 1V. Pet. App. 28a. These new termination
provisions applied to all of Steinbeck’s works,
including the thirteen Early Works owned entirely
by Elaine. Even though Elaine owned 100% of the
copyright over these Early Works, § 304(c) allocated
25% of the termination rights to Thom and John IV.
As long as Elaine was alive, however, she held the
other 50% of the termination rights and could
prevent notices of termination from being served
without her consent. Pet. App. 28a° 29a.

4. In 1938, Steinbeck executed an agreement
transferring publication rights in all of his works to
The Viking Press. /d. at 2a. Viking subsequently
assigned its rnghts under the 1938 Agreement to
Respondent Penguin. /d. at 3a: see supra note 1.

8

In 1994, Elaine negotiated two new agreements
with Penguin that cancelled and superseded all
previous licenses and secured significantly greater
returns in exchange for the right to publish the
Steinbeck works. Pet. App. 3a. At the time Elaine
negotiated the two 1994 Agreements, the windows
had already closed for serving termination notices for
Steinbeck’s three oldest works, Cup of Gold (© 1929),
The Pastures of Heaven (© 19382), and To a God
Unknown (© 1933). But the windows for serving
termination notices were then open for all of
Steinbeck’s works created between 1935 and 1948,
including the remaining ten Early Works and seven
of the Late Works. Pet. App. 27a n.12, 28a n.13.

Armed with the possibility that she would join
Steinbeck’s sons or their offspring in exercising their
§ 304(c) termination rights as leverage in bargaining
with Penguin—and with knowledge of the immense
popularity and commercial success of many of
Steinbeck’s works--Elaine negotiated two new
publishing agreements that greatly enhanced the
returns to family members for all of Steinbeck’s
works. /d@. at 3a-4a & n.1. One agreement covered
the thirteen Early Works owned exclusively by
Elaine: the other agreement covered the fifteen Late
Works jointly owned by Elaine, Thom, and John IV's
heirs. 2d Cir. J.A. 482, 498.

By their terms, the 1994 Agreements cancelled
the 1988 Agreement, Pet. App. 4a, and transferred to
Penguin the publishing rights tor the Early Works
and the Late Works, respectively, with significantly
improved financial terms for the benefit of Elaine,

9

Thom, and the heirs of John IV (who died in 1991).
Pet. App. 3a-4a.4- For example, where the 1938
Agreement provided for an annual royalty calculated
as a percentage of sales, the 1994 Agreements
guarantee minimum yearly payments of hundreds of
thousands of dollars, plus additional royalties above
that amount based on yearly sales. J/d.; 2d Cir. J.A.
483-84, 499-500.

The two 1994 Agreements are inextricably related
and cross-reference each other. They each require
Penguin to keep a// of Steinbeck’s works in print,
thereby enhancing the family’s opportunity to earn
royalties from less popular works that might
otherwise be taken out of print. The agreement for
the thirteen Eariy Works owned exclusively by
Elaine thus provides that Penguin must keep in
print not only those thirteen works, but also the
fifteen Later Works “which are the subject of a
separate agreement with Elaine Steinbeck and
Thomas Steinbeck.” 2d Cir. J.A. 493. Likewise, the
agreement for the fifteen Later Works requires
Penguin to keep in print not only those works, but
also the Early Works “which are the subject of a
separate agreement with Elaine Steinbeck.” /d. at
509.

Elaine executed both agreements simultaneously
on October 24, 1994. Pet. App. 3a-4a & n.1. She
executed the first agreement for the thirteen Early

4 The 1994 Agreement for Steinbeck’s Early Works also covers a
work authored by Elaine (Stenbeck: A Life in Letters), and
both Agreements include cellections of certain Steinbeck works

as well

10

Works 1n her capacity as the 100% owner of those
works. She executed the second agreement for the
fifteen Late Works both in her capacity as co-owner
of those works and using the irrevocable power of
attorney that Thom and John IV had transferred to
her as part of the 1983 settlement agreement. /d. at
4an.1. Thom then signed an acknowledgement, both
on his own behalf and on behalf cf the executor of the
estate of then-deceased John IV, ratifying the 1994
Agreement for the Late Works, including the
provision explicitly referencing the companion
agreement for the thirteen Early Works owned
separately by Elaine. /d.; 2d Cir. J.A. 509, 514.

Thus, Elaine’s cancellation of the 19388 Agreement
and renegotiation of improved terms from Penguin
under the 1994 Agreement covering the Early Works
was part of a single, interrelated transaction that
significantly benefited Petitioners through their
partial interests in the Late Works. Thom has
received enhanced royalties for the past fifteen years
for Penguin’s continued publication of Steinbeck’s
Late Works. J/d. Blake also receives royalties from
the 1994 Agreement for the Late Works under a
confidential settlement she entered into with other
heirs of John IV. See sd. at 29a n.15.

5. Four years after Elaine cancelled the 1938
Agreement and executed the 1994 Agreements with
Penguin, Congress enacted the Sonny’ Bono
Copyright Term Extension Act, Pub. L. No. 105-298,
112 Stat. 2827 (1998). As part of that enactment,
Congress created new § 304(d), which opened a
second window for termination during the period

1]

between 75 and 80 years after a work was originally
published. Because John IV died before § 304(d) was
enacted, the new termination rights were distributed
50% to Elaine, 25% to Thom, and 25% to Blake. 17
U.S.C. § 304(c)(2)B), (d)Q1). Like the termination
rights in § 304(c), the termination rights in § 304(d)
apply only to agreements made before 1978.

6. This litigation began shortly after Elaine died
in 2003. In her will, Elaine passed all her copyright
interests to her daughter, sister, and
grandchildren—the Estate Respondents in this
action. Pet. App. 4a. But Elaine’s 50% share in the
termination rights could not be transferred by will
and expired on her death. ‘Thus, for the first time,
Thom and Biake held a majority of the termination
rights. Jd.

With Elaine out of the picture, Thom and Blake
quickly tried to recapture for themselves the
publishing rights for the Early Works owned
exclusively by Elaine’s heirs. Even though
termination rights apply only to agreements made
before 1978, Thom and Blake served would-be
termination notices purporting to terminate and
recapture the publishing rights for several of the
Early Works that Elaine reassigned to Penguin in
1994, including Of Mice and Men and The Grapes of
Wrath. Id. at 4a, 29a-32a. Thom and Blake
apparently believe that if they are successful in
terminating Penguin’s publishing rights for the
Karly Works, those rights will revert to Thom and
Blake, not te the members of Steinbeck’s step-family
who have inherited the underlying copyrights. Thus,

Thom and Blake are not seeking to use the
termination rights simply to recapture rights from
Penguin. Rather, their primary motivation is to use
the termination rights to override Steinbeck’s will
and seize ownership over rights that passed to
Steinbeck’s step-family by will. But see 17 U.S.C.
§ 304(c), (d) (providing that termination rights may
not be used to terminate assignments “by will”). In
short, Thom and Blake seek to _ substantively
reallocate ownership of rights in the Early Works
within the Steinbeck family.®

Thom and Blake then filed this lawsuit asserting
an assortment of claims against the Estate
Respondents and others. 2d Cir. J.A. 12-53. The
Estate Respondents asserted counterclaims seeking
a declaratory judgment that the termination notices
served by Thom and Blake were invalid because they

5 Whether the Copyright Act would actually permit one family
member to seize another family member’s publishing rights in
contravention of the author’s will is far from clear. As noted,
the termination provisions do not apply to transfers made “by
will.” 17 U.S.C. § 304(c), (d). It is therefore uncertain whether
the termination rights may be used by Thom and Blake to
effectively nullify Steinbeck’s will and appropriate for
themselves the copyright interests that Steinbeck bequeathed
to Elaine. Because the Second Circuit held that Petitioners’
attempt to exercise the termination rights failed tn any event,
the intrafamily-ownership issue has never been htigate tn this
case.

The Petition in this case concerns only claims related to
termination rights. In a recent decision dated March 31, 2009,
the district court dismissed Thom and Blake's remaining

claims

13

purported to terminate an agreement made after
1978. Pet. App. 10a.

Penguin also filed a separate action against Thom
and Blake for a declaratory judgment holding the
termination notices invalid. Jd. The district court
consolidated the two actions for purposes of ruling on
summary judgment motions related to the validity of
the attempted terminations. /d.

1. Ruling on cross motions for summary
judgment, the district court upheld the validity of the
termination notices. In a one-paragraph discussion
that cited no legal precedent, the district court
concluded that Steinbeck’s original 1938 Agreement
with Viking remained in effect and could therefore be
terminated by Thom and Blake. J/d at 32a-33a.
Based on the incorrect premise that under the 1994
Agreement for the Early Works Penguin did not “lose
or gain any rights other than those originally
granted to it under the 1938 Agreement,” rd. at 33a,
the district court held that the 1994 Agreement for
the Early Works did not replace the original 1938
Agreement, which still remained in effect. Thus, the
district court held, Thom and Blake could use their
termination rights to cancel assignments under that
pre 1978 agreement. /d.’

The Second Circuit reversed. Construing the
1994 Agreement for the Early Works under New
York contract law, the Second Circuit concluded that
the intent of that agreement was to cancel and

’ The district court entered judgment on the termination claims
under Fed. R. Civ. P. 54(b). 2d Cir. JA. 942-44.

14

revoke the 1938 Agreement with Viking. The court
explained that “parties to an agreement can
mutually agree to terminate it by expressly
assenting to its rescission while simultaneously
entering into a new agreement dealing with the
same subject matter.” Pet. App. 12a (citing Jones v.
Trice, 202 A.D.2d 394, 395, 608 N.Y.S.2d 688, 688
(2d Dep’t 1994)). Because the 1994 Agreement had
cancelled and replaced the 1938 Agreement, there
was no pre-1978 agreement left to be terminated.

The Second Circuit explained that the district
court erred both factually and legally in concluding
that the 1994 Agreement did not revoke the 1938
one. As a factual matter, the district court erred in
asserting that the 1994 Agreement did not
materially alter the 1938 Agreement with Viking.
The 1994 Agreement obligated Penguin to pay larger
guaranteed advanced payments, modified’ the
geographic limits of the publication rights, and
required Penguin to keep all the Steinbeck works in
print. /d. at 12a 13a. Asa legal matter, the Second
Circuit held that the district court erred in
concluding that, because the 1938 Agreement had
not yet expired in 1994, it could not be revoked and
renegotiated. The Second Circuit explained that “lal
contract that remains in force may _ still be
terminated and renegotiated in exchange for, among
other things, one party’s forbearance of her legal
right, such as a statutory right to terminate a
previous grant of a copyright transfer or license.” /d.
at ldéa (eiting Vrans-Orient Mar. Corp. v. Star

15

Trading & Mar. Ind., 925 F.2d 566, 573 (2d Cir.
1991)).

The Second Circuit also rejected Thom and
Blake’s argument that, if the 1994 Agreement
indirectly prevented them from exercising their
termination rights, it should be voided under the
Copyright Act as an ‘agreement to the contrary.” 17
U.S.C. § 304(c)(5). The court noted that Congress
specifically intended that “parties to a transfer or
license’ would retain under [§ 304(c) and (d)] the
continued right to ‘voluntarily agrcel] at any time to
terminate an existing grant and negotiatle] a new
one.” Pet. App. 18a-19a (quoting H.R. Rep. No. 94-
1476, at 127 (1976), as reprinted in 1976
U.S.C.C.A.N. 5659, 5743). Otherwise, Congress’s
creation of the termination right would have
substantially restricted the ability of an author or his
heirs to renegotiate an assignment for better terms,
except during the narrow window and under the
rigid conditions required for termination under
§ 304. Jd at 18a-19a. Accordingly, the Second
Circuit explained, “provided that a_ post-1978
agreement effectively terminates a pre-1978 grant,
Congress did not manifest any intent for the earlier
agreement to survive simply for purposes of
exercising a termination right in the future.” Jd. at
19a (citing approvingly to Milne v. Stephen
Slesinger, Inc., 430 F.3d 1036 (9th Cir. 2005)). The
Second Circuit concluded that, far from entering into
an “agreement to the contrary,” Elaine had engaged
in a renegotiation process that “appears to be exactly
what was intended by Congress.” /d. at 15a.

16

REASONS FOR DENYING THE PETITION
I. There Is No Circuit Split.

In holding that the 1994 Agreements negotiated
by Elaine superseded Steinbeck’s pre-1978 license
grant and thus prevented exercise of § 304
termination rights with respect to such grant, the
Second Circuit adhered to precisely the same rule of
law that the Ninth Circuit applied in Milne v.
Stephen Slesinger, Inc., 430 F.3d 10386 (9th Cir.
2005), and Classic Media, Inc. v. Mewborn, 532 F.3d
978 (9th Cir. 2008). In all three cases, the courts
asked whether a pre-1978 agreement was still in
effect. Where the pre-1978 agreement was still in
place, the courts held that termination rights could
still be exercised. But when the pre-1978 agreement
had already been revoked and renegotiated, the
courts held that no pre-1978 agreement remained to
be terminated. All three decisions reflect a
consistent avplication of the same legal rule to
different factual circumstances.

Far from creating a split with the Ninth Circuit,
the Second Circuit’s decision closely parallels the
Ninth Circuit’s decision in Mi/ne, which involved the
merchandising rights for the “Winnie the Pooh”
character created by Alexander Milne. Milne
transferred the merchandising rights in 1930 and
those rights were subsequently retransferred to the
Walt Disney Company. Mr/ne, 430 F.3d at 1039-40.
When Congress enacted the Copyright Act of 1976,
Milne had already died, and his son, Christopher
Robin Milne, received 100°. of the newly created

17

termination rights. J/d at 1040. Rather than
directly exercise the termination rights, however, in
1983 Christopher Milne negotiated a new agreement
with Disney for the merchandising rights, which
revoked the original 1930 assignment = and
simultaneously reassigned the same rights to Disney
in exchange for substantial additional royalty
payments. 430 F.3d at 1040-41.

In 2002, Christopher Milne’s daughter, Claire,
attempted to terminate the 1983 assignment of
merchandising rights to Disney. J/d. at 1041. The
Ninth Circuit held that Claire’s notice of termination
was invalid because the 1930 Agreement had been
revoked and superseded by the 1983 agreement,
leaving no _ pre-1978 agreement for Claire to
terminate under § 304. Jd. at 1042-43. The Ninth
Circuit also rejected Claire’s argument that the 1983
agreement negotiated by Christopher Milne should
be voided as an “agreement to the contrary.” 17
U.S.C. § 304(c)(5). The court explained that,
“lajlthough Christopher presumably could have
served a termination notice, he elected instead to use
his leverage to obtain a better deal for the Pooh
Properties Trust. His daughter, Claire, was a
beneficiary of this new arrangement, and her current
dissatisfaction provides no reason to discredit the
validity of the 1983 agreement and the rights
conferred thereby.” 430 F.3d at 1045.

The facts in Mi/ne closely parallel this case. Like
Christopher Milne, Elaine Steinbeck could have
joined with Steinbeck’s offspring to terminate the
agreements with Penguin, but instead = she

18

“renegotiateld] and cancelled] the 1938 Agreement
while wielding the threat of termination.” Pet. App.
15a. The 1994 Agreement extinguished the 1930
Agreement, leaving no pre-1978 agreement to he
terminated. In leveraging her termination rights for
a more favorable deal, Elaine, like Christopher
Milne, engaged in a “renegotiation” process that
“appears to be exactly what was intended by
Congress.” /d.

In an attempt to distinguish Wi/ne, Petitioners
argue that—unlike Claire Milne—Thom and Blake
received no benefit from the 1994 Agreement
negotiated by Elaine for the thirteen Karly Works.
As a purely factual matter, that is incorrect. The
1994 Agreement for the thirteen Early Works was
part of an integrated deal that obtained similarly
favorable terms with respect to the fifteen Late
Works that were partially owned by Thom and John
IV. Supra at 8-10. Thom ratified the companion
agreement for the Late Works and has benefited
from it for the past 15 years. Pet. App. 4a n.1. Blake
has also collected royalties from the companion
agreement pursuant to an agreement she entered
into with John IV’s heirs. Pet. App. 29a n.15.
Further, as Petitioners’ own amici point out, Claire
Milne did not receive the entire benefit of
Christopher Mulne’s’ renegotiated contract with
Disney—she benefited only indirectly through the
Pooh Properties ‘Trust, which also benefited “various
charities along with [Milne’s] family members.” Prof.
Br. 16 n.5.

19

The parallels between this case and Mi/ne refute
Petitioners’ assertion that the Second Circuit and
Ninth Circuits are somehow “intractably divided” on
this question, Pet. 11 (heading). Just the opposite is
true. Before the Second Circuit issued its decision
here, the widespread assumption was that if it
affirmed the district court with a decision in favor of
Thom and Blake, that would create a circuit split
with Mi/ne that would require this Court’s review.
See Allison M. Scott, Oh Bother’ Milne, Steinbeck,
and an Emerging Circuit Split Over the Altenability
of Copyright Termination Fights, 14 J. of Intell.
Prop. L. 357 (2007). Thus, in reversing the decision
of the district court in this case, the Second Circuit
did not create a circuit split—it averted one.

Petitioners disregard Myi/ne and instead argue
that the Second Circuit’s decision conflicts with
another Ninth Circuit case, Mewborn. But Mewborn
applied precisely the same legal principles that the
Ninth Circuit applied in Mi/ne and that the Second
Circuit applied in this case. In this case and in
Milne, the courts concluded that the original
assignments had been revoked and _ superseded,
leaving no pre-1978 agreement in place to be
terminated. In Mewborn, however, the court
examined a post-1978 agreement with very different
terms and, on that basis, concluded that the pre-1978
agreement in that case had never been revoked, so
that termination rights could still be exercised.
Thus, Mewborn is simply an instance where the
same rule of decision was apphed to different facts,
resulting in a different outcome. ‘That kind of fact-

20

based difference obviously does not create a circuit
split.

The plaintiff in Mewhorn was Winifred Mewborn,
the daughter of the author of the children’s book
Lassie Come Home. Mewbhorn, 532 F.3d at 980. In
1976, Winifred Mewborn executed an agreement
assigning to Classic Media all her motion picture,
television, and radio rights in Lassie Come Home in
exchange for a one-time payment of $11,000. /d. In
1978, Mewborn signed a second agreement with
Classic Media assigning additional merchandising,
dramatic performance, recording, and publishing
rights in Lassie Come Home. Td. at 980°81. In
exchange for assigning these additional rights,
Mewborn received the nominal sum of $38,000. Jd. at
981. The second agreement did not purport to
rescind, revoke, or renegotiate the motion picture,
television, and radio rights Mewborn had assigned in
1976. Instead, the second agreement stated that the
new rights were being assigned “in addition to” the
rights that Mewborn had previously assigned in
1976. Jd.

When Mewborn served a notice of termination in
2005 to reclaim the rights she had assigned in 1976,
Classic Media asserted that the termination notice
was invalid because the 1978 agreement had
superseded the 1976 one. /d. The Ninth Circuit
rejected Classic Media’s argument and held, as a
matter of fact, that while Mewborn could not
terminate any of the additional rights’ she
transferred in the 1978 agreement, Mewborn
retained the ability to terminate the original rights

21

she transferred in 1976. Id. at 989 & n.8. The
Ninth Circuit explained that, “lulnlike Christopher
Milne’s 1983 assignment, which expressly revoked
the earlier 1930 and 1961 assignments and
simultaneously re-granted the same rights,
Mewborn’s 1978 Assignment explicitly stated that it
granted rights ‘in addition to’ the rights granted in
the 1976 Assignment.” /d. at 989. Accordingly,
because the 1976 agreement remained in effect,
Mewborn retained the ability to terminate rights
transferred pursuant to that agreement.®

In addition, the Ninth Circuit explained,
“Mewborn’s predicament is a far cry trom
Christopher Milne’s.” /d. Christopher Milne had
used his termination rights as leverage to negotiate a
more lucrative deal. In contrast, there was “no
evidence in the record that Mewborn was even aware
of her termination rights in March 1978,” much less
that she used them as negotiating leverage when she

® As background to its discussion of termination rights,
Mewborn cited the district court’s decision in this case (which
was then on appeal but had not yet been reversed) upholding
the validity of Thom and Bluke’s termination notices
Mewborn, 532 F.3d at 986. But Mewhorn's discussion was
based on the district court’s erroneous factua/ conclusion that
“at no point did Penguin lose or gain any rights other than
those originally granted to it under the 1938 Agreement.” /d.
at 986 (quoting Pet. App. 33a). On appeal, the Second Circuit
ruled that the district court's factual statement was incorrect
and that the 1994 Agreement did in fact replace the 1932
Agreement with matenally different terms. Pet. App. )2a-l3a
Nothing in Mewborn indicates that the Ninth Circuit would
have reached a different result than did the Second Circuit
based on a correct understanding of the underlying facts

22

had received only the paltry additiona) payment of
$3,000. Jd.

All of the facts that the Ninth Circuit relied on to
distinguish Mewborn from Mi/ne also distinguish
Mewborn from this case. First, the 1994 Agreements
negotiated by EKlaine—like the agreement signed by
Christopher Milne but unlike the agreement signed
by Winifred Mewborn—expressly revoked and re-
granted the pre-1978 assignment of rights. Pet. App.
4a. Second, at the time Elaine negotiated the 1994
Agreements, termination notices could have been
immediately served for ten of the Early Works and
seven of the Late Works. Supra at 8. Like
Christopher Milne, Elaine therefore held an
immediate power to terminate that she leveraged to
negotiate a more favorable deal. Pet. App. Lda.
Third, unlike Winifred Mewborn, who did _ not
renegotiate the pre-1978 grant for more generous
terms, Elaine negotiated a far more lucrative
agreement guaranteeing minimum yearly payments
of several hundreds of thousands of dollars and
requiring that all of Steinbeck's works be kept in
print. Supra at 8-10. The Petitioners dismiss these
distinctions as “unpersuasive,” Pet. 14, but they are
precisely the same factors the Ninth Circuit relied on
to distinguish “2/ne trom Mewborn.

Nor did Mewbhorn create a circuit conflict through
its discussion of whether the 1978 agreement in that
case was an “agreement to the contrary.” Because
the Mewhorn court found as a factual matter that
the 1976 assignment remained in effect, the court
concluded that if the 1978 agreement purported to

23

assign Mewborn’s termination rights, such an
assignment would be an “agreement to the contrary.”
Mewborn, 532 F.3d at 986. But Mewborn did not
hold or even suggest that the 1978 agreement would
have been an “agreement to the contrary” if (ike the
post-1978 agreements in this case and Mi/ne) it had
revoked and renegotiated the pre-1978 assignment,
thereby leaving nothing to terminate. Given the
facts of Mewborn, any such suggestion would have
been dicta. It also would have been contrary to
Milne, which Mewborn pointedly did not overrule.
Id. at 988. In fact, to the extent there might be any
conflict with Mewborn at all (which there is not), it
would be an intra-circuit conflict within the Ninth
Circuit that should be resolved by that court en banc
if necessary. Such an intra-circuit conflict is not a
proper basis for invoking this Court’s certiorari
jurisdiction. See Sup. Ct. R. 10.9

9° Petitioners implicitly concede as much when they claim the
case law within the Ninth Circuit is “confused and fractured,”
Pet. 16—which appears to be a euphemism for alleged (though
non-existent) intra-circuit splits. In that vein, Petitioners also
claim the decision below is somehow in tension with the Second
Circuit’s own earlier decision in Marvel Characters, Inc. v.
Simon, 310 F.3d 280 (2d Cir. 2002). Pet. 17. The Second
Circuit in Marve/ held that the author of Captain America
Comics could terminate a 1940 publishing agreement with
Marvel Comics notwithstanding a 1969 agreement the author
signed that retroactively re-characterized the comic as a “work
for hire.” The facts in Marve/ bear no resemblance to this case.
All the agreements in Marve/ took place before 1978, so there
was unquestionably a pre’ 1978 grant in place to be terminated.
And the author in .VMarve/ had clearly not used his termination
rights as leverage to negotiate a more favorable agreement

24

In short, the difference between this case and
Milne on the one hand and Mewborn on the other is
that Christopher Milne and Elaine Steinbeck
cancelled and renegotiated pre-1978 licenses while
Winifred Mewborn did not. The Mewborn decision
does not call into question the basic premise that a
copyright owner may use termination rights as
leverage to cancel a pre1978 agreement and
negotiate a new license with more favorable terms.
There is no circuit split for this court to resolve—just
different cases reaching different outcomes by
applying the same legal rule to different underlying
contracts.

Il. The Test Employed By the Second and Ninth
Circuits Does Not “Turn Back the Clock” to Fred
Fisher.

Effectively acknowledging that there is no circuit
split, Petitioners’ amici argue that both the Second
Circuit and the Ninth Circuit have misinterpreted
§ 304, which in amricrs view snould prohibit
copyright owners from revoking and renegotiating

because the second agreement had been entered into in 1969,
before those termination rights even existed. See Pet. App. 18a
(“Marvel concludes only that backward-looking attempts to
recharacterize existing grants of copyright so as to eliminate
the right to terminate under 304(c) are fobidden by 304(c)(5).
There was no such attempt at recharacterization here”). In any
event, even if the decision below could not be reconciled with an
earlier decision from the Second Circuit, that purported intra-
circuit conflict would be no basis for this Court’s intervention.
Petitioners’ reliance on Marve/ to support their petition for
certiorari simply underscores their inability to point to a true
circuit spht warranting this Court’s review

25

pre-1978 agreements without formally serving
termination notices. Amici admit that no appellate
decision, including Mi/ne and Mewborn, has ever
adopted that view. See Prof. Br. 15 (asserting that
“Inlone of these decisions follow [sic] the clear
dictates of the federal statute”).!° But amici
nevertheless assert that the test unanimously
adopted by the courts of appeals would “turn[] back
the clock to the Fisher regime, under’ which
publishers could contractually block authors and
their families from exercising copyright reversion.”
Prof. Br. 12.

These policy-based concerns are groundless. The
problem created by the Fred Fisher decision was that
publishers could use their superior bargaining power
to force unknown authors to assign their renewal
rights at the time the works were first pubiished,
jong before their value was known. See Mills Music,
469 U.S. at 172-73 (referring to “ill-advised and
unremunerative grants that had been made before
the author had a fair opportunity to appreciate the
true value of his work product”). But § 304 applies
only to grants made before 1978. Thus, all the
copyrights implicated by § 304 are at least 30 years
old, and the holders of termination rights for these

0 Indeed, amicus curiae Professor Nimmer served as counsel of
record to Claire Milne before the Ninth Circuit and in a petition
for a writ of certiorari to review the Ninth Circuit's decision.
Prof. Br. 2. Amue?s brief in support of Petitioners recapitulates
the same arguments that the Ninth Circuit considered and
rejected in Mi/ne and that this Court found insufficient to
justify granting Milne’s petition for certiorari.

26

copyrights already have had time to “appreciate the
true value of 'the] work product.” Jd Instead of
allowing the holders of termination rights to
capitalize on that value, amic’s proposed test would
lock copyright holders into pre-1978 agreements
until the termination rights could be formally
exercised. Indeed, if the holders of termination
rights for a work were deadlocked—as occurred for
decades in this case until Elaine passed away—
amicis theory would frequently have the perverse
result of freezing “ill-advised and unrenumerative”
agreements in place. Jd. The only beneficiaries of
amicis proposed straitjacket would be publishers
who had extracted unfavorable terms from authors
when the value of their works was unknown.

In recognition that all copyrights imphcated by
§ 304 are already 30 years’ old, amici assert that the
Second Cuircuit’s decision could have a_ broader
impact on a different set of termination rights for
post-1978 assignments under § 203. But the lower
courts’ test—Is there a pre-1978 transfer in place to
be terminated? - cannot possibly implicate
termination rights under § 203 because that section,
unlike § 304, is not limited to grants made before
1978. Because § 203 does not require that a pre-
1978 grant still be in effect, termination rights under
§ 203 could be exercised even if the original grant
has already been revoked and renegotiated. Nothing
in the Second Circuit’s decision is to the contrary.

The Second Circuit's decision will have no impact
on new authors or on the separate termination
provisions for post’ 1978 grants in § 203. Aunic/s dire

27

predictions are fundamentally misplaced § and
certainly provide no reason for granting certiorari.

Ill. At Most, the Petition Raises Fact-Bound
Questions Concerning a2 Particular Contract.

Every Court of Appeals to consider the issue has
held that copyright owners may, in principle, negate
a precondition for exercising termination rights by
leveraging those rights to cancel and renegotiate a
pre-1978 agreement for more favorable terms. The
question before the Second Circuit was therefore
whether Elaine’s 1994 Agreement with Penguin
cancelled and superseded the pre-1978 agreement
(as in Milne) or simply reaffirmed the previous
transfers leaving the pre-1978 agreement intact (as
in Mewborn). This is fundamentally a fact-bound
question concerning a particular contract, not a
broad question of — statutory interpretation
warranting this Court’s review.

The 1994 Agreement with Penguin clearly and
unambiguously stated that “this agreement, when
signed by Author and Publisher, will cancel and
supersede” all prior agreements for the Karly Works,
including the 1938 Agreement. Pet. App. 4a; 2d Cir.
J.A. 507. Petitioners nevertheless assert that, as a
matter of contract interpretation, the Second Circuit
erred in concluding that the 1994 Agreement revoked
the 1938 Agreement and the termination rights that
went with it because the 1994 Agreement “explicitly
contemplated the future exercise of termination
rights.” Pet. 23 (quoting Pet. App. 10a). In support
of their contract interpretation, Petitioners point to

28

section 9A of the 1994 Agreement, which gave
Penguin the ability to claw back the enhanced
payments it made pursuant to the 1994 Agreement
in the event that Elaine’s statutory termination
rights were ever exercised. Pet. 7.

The Second Circuit correctly held that section
9A’s oblique reference to the future exercise of
termination rights “does not abrogate the 1994
Agreement’s clear expression of intent to terminate
all prior grants of a transfer or license in the subject
copyrights.” Pet. App. 14a. And because the 1994
Agreement, as so construed under New York contract
law, cancelled the 1938 Agreement, there was no pre-
1978 agreement in place for Thom and Blake to
terminate. /d. at 12a-14a. Rather than evidencing
intent to preserve termination rights, section 9A
underlines that the parties intended to negotiate a
quid pro quo whereby Penguin was agreeing to more
generous payment terms in exchange for Elaine’s
decision to refrain from serving termination notices.
Section 9A is thus akin to a force majeur clause
addressing what would happen if, contrary to the
expectations of the parties, termination rights
somehow | survived. As a matter of contract
interpretation, the Second Circuit correctly conclude
that this belt-and-suspenders provision did not
somehow negate the 1994 Agreement’s express and
unambiguous intent to “cancel and supersede” the
1938 Agreement. /d. at 4a, 14a.

Ultimately, Thom and Blake’s petition boils down
to an assertion that the Second Circuit
misinterpreted the 1994 Agreement in hght of its

29

section 9A. But, even if Thom and_ Blake's
interpretation of the 1994 Agreement and its section
9A had merit, their Petition does not present a
question of federal statutory interpretation, much
less a question on which the courts of appeals are
divided. The petition for writ of certiorari to review
this fact-bound question should be denied.!!

11 The fact that this dispute turns on state law rules of contract
interpretation further counsels against granting certiorari.
“Although the United States Copyright Act, 17 U.S.C. §§ 101-
1332, grants exclusive jurisdiction for infringement claims to
the federal courts, those courts construc copyrights as contracts
and turn to the relevant state law to interpret them.”
Automation By Design, Inc. v. Raybestos Prods. Co., 463 F.3d
749, 753 (7th Cir. 2006); cf£ Wharf (Holdings) Ltd. v. United
Intl Holdings, Inc., 532 U.S. 588, 596 (2001) (declining to
review 10th Circuit’s application of Colorado contract law, even
thougn state law question would determine whether federal
statute applied to the contract). Petitioners’ amici seek to
elevate the petition above a state-law question of contract
interpretation by asking this Court to create a new federal
common law of contract interpretation for renegotiated
copyright licenses. Prof. Br. 13-14. But even if the renegotiated
agreement were interpreted under federal common law,
Congress specifically stated that “parties to a transfer or
license’ would retain under l[§ 304(c) and (d)] the continued
right to ‘voluntarily agreel] at any time to terminate an existing
grant and neyotiatle] a new one.” Pet. App. 18a-19a (quoting
H.R. Rep. No. 94-1476, at 127 (1976), as reprinted in 1976
U.S.C.C.A.N. 5659, 5743). As a result, whether the 1994
Agreement is interpreted in accordance with state law or
federal common law, a court must make an individualized
determination of whether the particular contract before it left a
pre- 1978 agreement in place. That is a fact-bound question
that does not warrant this Court’s review.

30

IV.This Dispute Between Two Factions of the
Steinbeck Family Is a Poor Vehicle for
Interpreting § 304’s Termination Provisions.

A final reason for declining exercise of this
Court’s discretionary jurisdiction is the distinctive
intrafamily character of the dispute here. This is
not primarily a dispute between a publisher on the
one hand and an author's family on the other. It is a
dispute between two different factions of the
Steinbeck family. Thom and Blake seek to use § 304
not to obtain a more lucrative publishing deal for
Steinbeck’s family, but to undo Steinbeck’s will and
seize for themselves the copyright interests that
Steinbeck intended to transfer to different family
members.

Thom and Blake’s efforts to use the termination
provisions to override Steinbeck’s will and seize
copyright ownership from other members of the
Steinbeck family are far afield from the central goals
Congress had in mind when it created the statutory
termination provisions. Congress created the
termination right to “safeguard[] authors against
unremunerative transfers,” H.R. Rep. No. 94-1476 at
124 (1976), as reprinted tn 1976 U.S.C.C.A.N 5659,
5740, not te privilege the author's “blood heirs” over
other family members. To be sure, Congress
designated certain statutory heirs who could exercise
termination rights. But Congress also sought to
honor the author’s own decisions about how to
allocate his or her inheritance by exempting
transfers made by will from the’ termination
provisions. 17 U.S.C. § 304(c), (da). Nothing in the

31

legislative history suggests that Congress’s purpose
was to create a birthright for biological offspring to
nullify the author’s will and disinherit the author’s
step-family.

This idiosyncratic, fact-bound dispute presents an
extremely poor’ vehicle for interpreting’ the
complicated statutory provisions in 17 U.S.C. § 304
and the interrelationship between rights recaptured
by termination and rights inherited by will, which
cannot be terminated. Petitioners have not cited any
other decision involving the use of termination
notices to nullify an author’s will or re-allocate
copyright ownership within an author’s family.
Petitioners have certainly not identified a circuit
split on this complex issue that might conceivably
warrant this Court's review.

CONCLUSION

For the foregoing reasons, the petition for writ of
certiorari should be denied.

Respectfully submitted,

WILLIAM M. HOHENGARTEN SUSAN J. KOHLMANN

JENNER & BLOCK LLP Counsel of Record
1099 New York Ave. NW JOSHUA A. BLOCK
Suite 900 JENNER & BLOCK LLP
Washington, DC 20001 919 Third Ave.

(202) 639-6000 Floor 37

New York, NY 10022
(212) 891-1600

Attorneys for Estate Respondents

April 17, 2009

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0184%3A2. Public record. Not legal advice.