9:20am PT by Eriq Gardner
Appeals Court Rejects Kesha's Bid to Get Out of Dr. Luke Deal
Kesha Rose Sebert may eventually square off at trial against Lukas "Dr. Luke" Gottwald, the producer who she alleges raped her. But if she does, the jury won't be deciding whether the pop star can extradite herself from contracts. On Tuesday, a New York appeals court affirmed a judge's decision to reject Kesha's counterclaims.
Dr. Luke is suing her for smearing him through allegations of sexual abuse. In reaction, the pop star has attempted various ways to have her agreements with the producer declared terminated.
"You can get a divorce from an abusive spouse," began her proposed countersuit. "You can dissolve a partnership if the relationship becomes irreconcilable. The same opportunity — to be liberated from the physical, emotional, and financial bondage of a destructive relationship — should be available to a recording artist."
In March 2017, New York Supreme Court Justice Shirley Kornreich wouldn't allow Kesha to move forward with this countersuit.
Kesha had claimed that she was owed royalties and that it would be impossible to perform under the deals due to the acrimonious relationship.
Kornreich agreed with Dr. Luke's attorneys that Kesha should have provided notice of alleged contract breaches and that her allegation of the impossibility of performance was grounded upon speculation — especially given the possible expiration of deals, the involvement of Son, and attempts to at least allow her to work with producers other than Dr. Luke.
Indeed, after the decision came out, Kesha did release a new album, Rainbow, and is preparing for a tour this summer. While Kesha might prefer that Luke not benefit whatsoever from her work, her counterclaims have gone nowhere.
"Kesha's proposed amendments are palpably insufficient and devoid of merit," states a decision today (read here) by New York's First Department. "Her counterclaim seeking declaratory relief terminating the agreements on the ground of impossibility and impracticability of performance was speculative, contradicted by her own allegations that she had continued performing under the agreements and, as to at least one of the agreements, the impossibility was not produced by an unanticipated event that could not have been foreseen or guarded against."
Kesha also wanted the New York court to apply California's seven-year rule limiting personal service contracts, but the appellate decision continues, "The court also properly denied Kesha leave to assert a counterclaim for declaratory relief terminating the agreements on the ground that they violate California Labor Code § 2855, as the unambiguous New York choice-of-law provisions contained in the agreements preclude the application of that California statute."
And in yet another loss for Kesha, the appeals court also upholds Kornreich's decision to force Kesha to produce documents held by her PR firm and former attorney, Mark Geragos.
"The communications between her counsel and press agents do not reflect a discussion of legal strategy relevant to the pending litigation but, rather, a discussion of a public relations strategy, and are not protected under the attorney-client privilege," continues the decision.
Assuming the decision isn't touched upon any further appeal, that means that as this case moves forward, it will only be Dr. Luke's defamation claim being considered. The parties will soon be providing briefing related to defenses being raised. In the coming weeks, depositions and expert reports could be made public as Kornreich gears the case for trial.