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Not every Kanye West fan is the same.
A largely uncontroversial statement, but also essentially the argument delivered in court on Wednesday by Tidal in a bid to stave off certification of a class action over West’s Feb. 15, 2016, tweet. You know, the one where West stated, “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.”
A judge has allowed Justin Baker-Rhett to move forward on a claim that he was fraudulently induced into forking over $9.99 to hear West’s album on Tidal when Life of Pablo quickly made it to other streaming venues. Now the question is whether Baker-Rhett will be joined in this legal action by others.
In August, Baker-Rhett’s lawyers gave arguments for certification, highlighting common questions that would exist for any consumer who bought a Tidal subscription thanks to West’s tweet.
“Was the at-issue Tweet false at the time it was made?” asked a court brief. “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?”
Now, attorneys for West and Tidal’s parent company, Aspiro, are stressing the “complex, individualized issues that necessarily will predominate and render class certification improper.”
The latest brief contends that not everyone is like Baker-Rhett, “a Kanye West super-fan who closely followed Mr. West’s social media feeds and routinely listened to podcasts regarding Mr. West.”
The defendants say that news articles had conflicting messages about the availability of West’s Life of Pablo with some reporting it would only be exclusive on Tidal for seven days.
So who saw what when making their decision to subscribe to Tidal?
“The only way to establish which, if any, of the class members were (1) aware of the Tweet; and (2) relied on its contents when subscribing to Tidal, is to conduct individualized inquiries of each class member’s subjective experiences and motivations,” states the memorandum. “That would outweigh any benefits of a class action, and is precisely why consumer fraud actions such as this are inappropriate for class certification.”
Tidal adds that a significant number of those who subscribed to its streaming service in the relevant time period may have cancelled before the trial period ended, and even if these folks incurred costs, many could have enjoyed the millions of other songs and videos available on Tidal. As the lawyers write, ” The varying degrees to which each class member took advantage of this other content necessarily impacts any claimed ‘damages’ they may allege to have suffered.”
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