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Tesla founder Elon Musk might be this month’s poster boy for inviting legal trouble with a single tweet, but don’t forget Kanye West, who in February 2016, told his followers, “My album [The Life of Pablo] will never never never be on Apple. And it will never be for sale…. You can only get it on Tidal.”
Six weeks later, after Tidal’s subscription numbers tripled from 1 million to 3 million, The Life of Pablo became available for free streaming on Apple Music and Spotify.
Justin Baker-Rhett, who forked over $9.99 to hear West’s album on Tidal, is now suing the hip-hop artist and Tidal’s owner Aspiro, and in June, a New York federal judge allowed him to move forward with a claim of fraudulent inducement. Now the question is whether Baker-Rhett’s attorneys have any hopes of obtaining the big bucks with class certification.
How to properly define the class of consumers who subscribed to Tidal based on that single tweet? Here’s the attempt by his attorneys at Edelson and Kurzman Eisenberg:
“All persons in the United States who both (1) subscribed to the Tidal streaming service between February 15, 2016 and April 1, 2016, and (2) streamed any track from The Life of Pablo within the first 24 hours after initiating his or her subscription.”
Defendants will surely fight it, but regardless, it won’t end the case. The memorandum in support of class certification also highlights some of the questions that will be material as the lawsuit moves forward:
“Was the at-issue Tweet false at the time it was made? Did the post-release changes West made to The Life of Pablo render the widely released album different, such that the album’s eventual release rendered West’s statements immaterial? What was Mr. West’s intent when he told the world that The Life of Pablo would only ever be available on Tidal? Was it reasonable to rely on that representation? Can Aspiro be held liable for West’s statements?”
U.S. District Court Gregory Woods chimed in with his opinion about West’s argument of innocent intent when making his tweet back in June.
“Mr. West’s argument is tenuous, and certainly does not pass muster in the context of a motion to dismiss, when the Court is required to draw all inferences in favor of the non-moving party,” wrote the judge. “After all, Mr. West tweeted that ‘My album will never never never be on Apple. And it will never be for sale’ (emphasis added). He did not commit that a particular version, or mix, or master of his album would not be on Apple—his commitment was that the ‘album,’ ‘it,’ would not be. And the album was made available on Apple Music shortly after the Tweet. Regardless of whether or not Mr. West’s argument will persuade a jury at a later stage in the case, the Court has little difficulty concluding that the complaint plausibly pleads that Mr. West’s statement that his album would never never never be available on Apple Music or for sale was false.”
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