FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 Exhibit A to Affirmation of Jeffrey M. Movit INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 RECEIVED NYSCEF: 01/30/2017 SUPREME COURT FOR THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------x : LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ : MONEY, INC., and PRESCRIPTION SONGS, LLC, : : Plaintiffs, : : -against: : KESHA ROSE SEBERT p/k/a KESHA, : : Defendant. : -------------------------------------------------------------------------x Index No. 653118/2014 Justice Kornreich [PROPOSED] SECOND AMENDED COMPLAINT Jury Trial Demanded Plaintiffs Lukasz Gottwald p/k/a Dr. Luke (“Gottwald”), Kasz Money, Inc. (“KMI”) and Prescription Songs, LLC (“Prescription Songs”) (collectively, “Plaintiffs”), by and through their undersigned attorneys, as and for their Second Amended Complaint against Defendant Kesha Rose Sebert p/k/a Kesha (“Kesha”), allege, with personal knowledge of their own actions, and upon information and belief as to the actions of others, as follows: PRELIMINARY STATEMENT 1. Kesha is a recording artist and songwriter. Gottwald is a Grammy-nominated songwriter and producer of smash hit musical recordings. KMI and Prescription Songs are, respectively, a production company and a publishing company which are both owned by Gottwald. 2. Beginning in 2012, Kesha, her mother Pebe Sebert (“Pebe”), and her manager Vector Management, LLC (“Vector”) hatched a campaign which was expressly and admittedly designed to ruin Gottwald’s business and reputation. Kesha, through her management, has admitted that this campaign was undertaken as retaliation after Plaintiffs would not agree to enter into so-called “renegotiated” contracts with Kesha containing terms that would be far less 8498699.4 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 favorable to Plaintiffs than those in their currently binding agreements with Kesha. Even though Kesha and her representatives had no right or basis to insist that Plaintiffs enter into such “renegotiated” contracts, they were greatly angered that Plaintiffs would not agree to do so. 3. Kesha, her mother Pebe, and Kesha’s other representatives thus embarked on a vicious campaign to destroy Gottwald employing vicious tactics including defamation, blacklisting, and extortion. In violation of her contractual agreements with Plaintiffs, Kesha refused to comply with her ongoing obligations to deliver sound recordings and compositions to Plaintiffs, to allow Gottwald to produce her work, or to account for or pay substantial royalties to KMI. 4. As part of their coordinated effort to ruin Plaintiffs’ business and reputation, Kesha and Pebe spread to the public false, disgusting and highly damaging statements about Plaintiffs to numerous third parties which constitute defamation per se. Among other things, they revived an utterly baseless claim – which Kesha and Pebe previously acknowledged under oath to be false – that Gottwald purportedly raped Kesha nearly a decade ago, as well as other false and baseless accusations of purported abuse. 5. After Kesha’s initial defamatory smear campaign did not succeed in obtaining business concessions from Plaintiffs, she commenced a lawsuit against them in California Superior Court on October 14, 2014, asserting meritless claims arising from false allegations of purported abuse. Kesha and her representatives anticipated wrongly that Plaintiffs would quickly settle the California action and did not expect them to vigorously oppose her baseless claims. In the face of Plaintiffs’ opposition, Kesha eventually dismissed her California lawsuit voluntarily, thereby acknowledging that it entirely lacked merit. 8498699.4 2 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 6. RECEIVED NYSCEF: 01/30/2017 Plaintiffs commenced this action later on that same day of October 14, 2014. In September 2015, Sebert filed a motion for a preliminary injunction in this action seeking, inter alia, to terminate her contractual relationships with Plaintiffs, and allow Kesha to sign a new, lucrative agreement with a third-party record label. Plaintiffs opposed that motion, and on February 19, 2016, this Court denied it. 7. Kesha and her representatives were surprised and angered that Plaintiffs had defeated her injunction motion. Kesha and her representatives decided that she would purportedly resume performing under her contracts with Plaintiffs (as she always had the ability to do), but that they would redouble their malicious efforts to utterly ruin Gottwald and his business. They organized a campaign to blacklist Plaintiffs from the entire music industry. 8. In furtherance of her scheme to blacklist Plaintiffs from the music industry, Kesha also spread a knowingly false and wholly defamatory accusation that Gottwald had purportedly raped another female recording artist. Kesha and her team also promoted boycotts and social media harassment of third parties who continued to work with Gottwald in order to pressure them to stop doing so. Kesha’s management even went so far as to develop a plan for “leaking” to the public the cell phone numbers and email addresses of top-level executives from Sony Music Entertainment and its related entities (collectively, “Sony”). 9. These wrongful actions did not further any financial interests of Kesha or her representatives. (Indeed, since losing the injunction motion, Kesha’s representatives have repeatedly stated that Kesha is no longer seeking more money or more favorable business terms.) Instead, these actions have been solely intended as revenge and retaliation against Plaintiffs for defeating Kesha’s injunction motion and refusing to acquiesce to Kesha’s and her representatives’ prior threats. 8498699.4 3 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 10. INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 While Kesha and her representatives have self-servingly characterized their malicious actions against Plaintiffs as an altruistic crusade for women’s rights, their private communications reflect that it is nothing of the sort. Indeed, these communications demonstrate their utter contempt for the activists they have induced to further their campaign to destroy Plaintiffs. As Kesha’s manager cynically stated in an email dated February 20, 2016: “What worries me is that [i]t [i.e., Kesha’s smear campaign] can quickly become yesterday’s news. Are there any feminist groups that can jump in? They always get results. We need the female Al Sharpton.” 11. Thus, contrary to the statements put out by Kesha’s sophisticated PR operation, it is Kesha and her team—and not Gottwald—who are the bullies here. As set forth in detail herein, they have engaged in a vicious campaign of social media and other harassment and have cunningly circulated vile falsehoods about Gottwald, with the specific and admitted intent of destroying him. 12. This type of malicious, destructive and vengeful conduct serves no legitimate purpose and should not be countenanced. Gottwald has upheld his end of his bargain with Kesha, devoting the better part of a decade to transforming Kesha from an unknown entity into a well-known recording star. Kesha’s contractual breaches, and her admitted campaign to ruin Plaintiffs’ business and reputation, have caused tremendous damage as set forth herein. PARTIES 13. Gottwald is a California resident. 14. KMI is incorporated in the State of New York. 15. Prescription Songs is a California limited liability company. 16. Kesha is a California resident who is a singer-songwriter doing business in New York. 8498699.4 4 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 JURISDICTION AND VENUE 17. This Court has personal jurisdiction over Kesha pursuant to New York Civil Practice Law and Rules §§ 301 and 302 because she is transacting business in the State of New York, has engaged in acts in violation of Plaintiffs’ rights in the State of New York, and/or has been and is causing injury to Plaintiffs in the State of New York. 18. The Court also has personal jurisdiction over Kesha because she consented to same in the “KMI Agreement” and the “Prescription Publishing Agreement,” both of which are defined below. 19. Venue is proper in the County of New York pursuant to the KMI Agreement and the Prescription Publishing Agreement, which provide for sole jurisdiction in New York for any controversies regarding those agreements. 20. Venue is also proper in the County of New York pursuant to New York Civil Practice Law and Rules § 503. STATEMENT OF FACTS A. Gottwald Discovers Kesha and Signs Her to an Exclusive Recording Deal 21. Gottwald – who is professionally known as “Dr. Luke” – is a Grammy-nominated songwriter and producer of smash hit musical recordings by artists including Katy Perry, Britney Spears, and Kelly Clarkson, among others. Gottwald has written the most Number One songs of any songwriter ever. He was named by Billboard as one of the top ten producers of the decade in 2009 and the Producer and Songwriter of the Year for 2010, and was the 2010 ASCAP Songwriter of the Year. Gottwald is also the principal and owner of KMI, a company which furnishes the services of certain individuals in the entertainment industry. 22. In or about 2005, Gottwald discovered an unknown and unsigned musical artist named Kesha Rose Sebert when he listened to her “demo” tape. Recognizing her potential, 8498699.4 5 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 RECEIVED NYSCEF: 01/30/2017 Gottwald called Kesha at her home in Nashville, Tennessee and expressed interest in working with her. Kesha, in turn, was excited to be provided with an opportunity to work with Gottwald and record his songs. Thus, the parties’ working relationship began. 23. In order to further their working relationship, Kesha entered into an exclusive recording agreement with Gottwald’s company KMI, effective as of September 26, 2005 (the “KMI Agreement”). Kesha hired a sophisticated and experienced entertainment lawyer to negotiate the KMI Agreement on her behalf. 24. Under the terms of the KMI Agreement, Kesha agreed, among other things, that: (a) she would provide her exclusive recording services to KMI for a specified term, which at KMI’s election could be extended through the release of Kesha’s sixth album (which was later modified to her fifth album); (b) Gottwald would be engaged to provide production services for at least six recordings on each Kesha album; and (c) Gottwald would be provided with a specified percentage of the sales of each such recording he produced. Gottwald is an expressly intended third-party beneficiary of the KMI Agreement. 25. The KMI Agreement expressly requires that any disputes regarding the agreement be litigated in the courts of New York – and not elsewhere. Specifically, Section 10(f) provides as follows: THE NEW YORK COURTS (STATE AND FEDERAL), SHALL HAVE SOLE JURISDICTION OF ANY CONTROVERSIES REGARDING THIS AGREEMENT; ANY ACTION OR OTHER PROCEEDING WHICH INVOLVES SUCH A CONTROVERSY SHALL BE BROUGHT IN THOSE COURTS IN NEW YORK COUNTY AND NOT ELSEWHERE. THE PARTIES WAIVE ANY AND ALL OBJECTIONS TO VENUE IN THOSE COURTS AND HEREBY SUBMIT TO THE JURISDICTION OF THOSE COURTS. 8498699.4 6 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 B. Dissatisfied With the Progress of Her Career, Kesha Makes Her First Attempt to Terminate the KMI Agreement by Making Extortionate Threats to Disclose False Allegations of Improper Conduct by Gottwald 26. Shortly following the entry of the KMI Agreement, Kesha began to express frustration that her recording career was not progressing as quickly as she had expected it would. Kesha had no experience in the music business and did not understand that the process of developing an artist does not occur overnight, but rather requires time, patience and hard work. 27. Thus, in late 2005, Kesha retained representatives who repudiated the KMI Agreement on her behalf. At Kesha’s behest, these representatives pressed a false and fictitious story on her behalf – that Gottwald had purportedly engaged in drug-related and other abuse of her. In their communications with Gottwald and his team, Kesha’s representatives made clear that they would make this fictitious story public if Gottwald did not agree to terminate the KMI Agreement. However, Gottwald simply refused to accede to extortion and would not compromise his clear contractual rights. C. Kesha Abandons Her First Extortion Campaign, Reaffirms the KMI Agreement, and Signs the Prescription Publishing Agreement 28. By 2008, Kesha had become deeply frustrated by her stalled career. No record company would or could sign her to a deal because she was already signed to KMI. At that time, Kesha disavowed her repudiation of the KMI Agreement, and reaffirmed that the agreement is valid and binding. Kesha and KMI executed amendments to the KMI Agreement in 2008 and 2009, continuing their working relationship. 29. In 2009, KMI also negotiated and executed an agreement with the RCA/JIVE record label to release and promote Kesha’s recordings. Sebert simultaneously executed an Assent, Guaranty, and Entertainment Rights Agreement (the “Assent”) whereby, inter alia, 8498699.4 7 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 RECEIVED NYSCEF: 01/30/2017 Sebert assented to the execution of the RCA/Jive recording agreement, and agreed to be bound by all grants and restrictions contained in that agreement. 30. On November 26, 2008, Kesha entered into a separate Co-Publishing and Exclusive Administration Agreement with Prescription Songs, Gottwald’s publishing company (the “Prescription Publishing Agreement”). Again, this contract was negotiated on behalf of Kesha by an experienced and sophisticated entertainment lawyer. 31. The Prescription Publishing Agreement states in Paragraph 21(b) that: “The prevailing party in any legal action (after all appeals have been taken or the time for taking such appeals has expired) brought by one party against the other and arising out of this agreement shall be entitled, in addition to any other rights and remedies available to it at law or in equity, to reimbursement for its costs and expenses (including court costs and reasonable fees for attorneys and expert witnesses) incurred with respect to bringing and maintaining any such action.” 32. Like the KMI Agreement, the Prescription Publishing Agreement includes a provision requiring that any disputes regarding the agreement be litigated in the courts of New York – and not elsewhere. Specifically, Section 21(a) provides: The state courts of the State of New York, County of New York and/or the Federal District Courts for the Southern District of New York, shall have jurisdiction and venue of any controversies regarding this agreement. Any action or other proceeding which involves such a controversy will be brought in the enumerated courts, and not elsewhere. In addition to accepting such jurisdiction, each party hereby waives any objection based upon forum non conveniens or any similar ground. 33. Kesha was represented by a sophisticated and experienced entertainment lawyer in connection with the negotiation of the 2008 and 2009 amendments to the KMI Agreement, the Assent and the Prescription Publishing Agreement. 8498699.4 8 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 RECEIVED NYSCEF: 01/30/2017 D. Thanks to Plaintiffs, Kesha Enjoys Enormous Success, and Kesha and Pebe Repeatedly Express Their Gratitude to Gottwald for Same 34. Gottwald and KMI produced and promoted Kesha’s debut album for KMI entitled Animal and follow-up EP for KMI entitled Cannibal, both of which were released in 2010. Both of these works feature extensive songwriting and production contributions from Gottwald along with the team he assembled and oversaw, have sold millions of copies worldwide, and have spawned numerous Number 1 singles, including “Tik Tok” and “We R Who We R.” As he had done for numerous other artists, Gottwald put substantial energy into taking Kesha – a previously unknown singer – and transforming her into the well-known artist that she now is. 35. In addition to making Kesha a star, Gottwald also provided Pebe with valuable songwriting opportunities. Indeed, in 2009, Gottwald provided Pebe with her first major songwriting opportunity in decades (a co-write for a famous third-party artist), knowing that doing so would allow Pebe to obtain a publishing deal. Pebe expressly acknowledged this to Gottwald, writing: “Thank you for keeping me on this song and changing my life.” 36. This was far from the only favor which Gottwald graciously provided to Kesha’s family. Pebe would regularly ask Gottwald to provide favors that would advance the entertainment-industry careers of herself and her other children; Gottwald often obliged. Kesha and Pebe both repeatedly expressed their gratitude and admiration for all that Gottwald had done for their careers and families. 37. For example, in a September 26, 2009 email to Gottwald, Pebe wrote: “You are part of our family, and I hope you know, as much as you have been there for Kesha and me, that we will always be there for you, as family, and friends, if you need anything.” And, in a June 4, 2010 email to Gottwald, Pebe stated: “Thank you Luke[]. You have changed our lives 8498699.4 9 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 RECEIVED NYSCEF: 01/30/2017 forever. I love you !! Pebe”. Similarly, in a July 16, 2011 email to Gottwald, Pebe wrote: “I know you are going to be a great dad.” See Exs. A, B and C hereto. 38. Moreover, Kesha sent Gottwald a birthday card, with a handwritten note stating the following: To the foxxy-est producer EVER! Ur just getting better with time! Thank you 4 helping me make my WILDEST dreams come true! I love you! See Ex. D hereto. 39. Kesha also rightly praised Gottwald in her 2012 autobiography My Crazy Beautiful Life, writing, among other things: “I had so many great songs that I had already done by myself, but Luke brought something new and fresh to my sound, and he encouraged me to be bold”; and “Luke is like a good coach. He is always pushing me and challenging me to get better.” E. Kesha and Pebe Truthfully Testify in 2011 That Gottwald Never Made Any Sexual Advance at Kesha 40. On or about May 25, 2010, Kesha’s former manager DAS Communications Ltd. (“DAS”) commenced a litigation against Kesha and Gottwald. In its Complaint, DAS alleged that Kesha purportedly breached her management agreement with plaintiff dated January 27, 2006, and that Gottwald had allegedly tortiously interfered with that contract. Gottwald filed an Answer in which he denied those allegations, and asserted counterclaims against DAS for inducing Kesha to breach the KMI Agreement by repudiating it. The action was resolved amicably, and a Stipulation of Discontinuance was entered on November 21, 2012. 8498699.4 10 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 41. RECEIVED NYSCEF: 01/30/2017 Prior to the resolution of the action, both Kesha and her mother were deposed. At their respective depositions, Kesha and Pebe were represented by a prominent national law firm. Moreover, one of Kesha’s managers from Vector, Jack Rovner, personally attended Kesha’s deposition. Gottwald was not present at either deposition. During the depositions, DAS’s counsel asked each of these witnesses whether the accusations of purported abuse by Gottwald against Kesha were true. Both witnesses testified that they were false. 42. Specifically, Kesha testified that she never had an intimate relationship with Gottwald, that he had never given her a “date rape drug,” and that he had never made a sexual advance toward her – let alone raped her. Q. Dr. Luke never gave you coke or drugs? A. Dr. Luke never gave me coke. Q. Did he give you drugs? A. What kind of drugs? Q. Any kinds of drugs that are not purchasable at the pharmacy. [Kesha’s attorney]: If you know. A: I don’t know. * * * [Q]: Do you know what a roofie is? A. Yes. Q. What is that? A. It’s a drug. Q. Which does what? A. It’s like a date rape drug. * 8498699.4 * * 11 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 RECEIVED NYSCEF: 01/30/2017 Q. Did Dr. Luke ever give you a roofie? A. No. * * * Q. Okay, when – did you ever have an intimate relationship with Gottwald? [Gottwald’s counsel]: Objection as to form. A. No. * * * Q. Were you ever with Gottwald at a time when you thought he was high? [Gottwald’s counsel]: Objection to form. A. He may or may not do drugs. Q. You don’t know if he does drugs? A. I don’t know if he does drugs. * * * Q. Did you ever sleep with Mr. Gottwald in the same bed? A. Yes. Q. And you didn’t have an intimate relationship while you were sleeping with him in the same bed? A. No. * * * Q. Did your mother complain [to DAS] about Dr. Luke having made sexual advances to you? * * * A. I don’t know what my mother told to [DAS]. I know that I’ve – Dr. Luke never made sexual advances at me, so – See Ex. E hereto (emphasis added). 8498699.4 12 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 43. RECEIVED NYSCEF: 01/30/2017 Pebe similarly testified neither her daughter nor anyone else ever told her that Gottwald had given Kesha a date rape drug and that she did not believe that Gottwald and Sebert had a sexual relationship: Q. … Before that first meeting with – with [DAS], had anyone told you that Gottwald had slipped Kesha a date rape drug? A. No. Q. Did anyone ever tell you that at any time? A. No. * * * Q. Are you aware of whether he had had any kind of sexual relationship with your daughter prior to the time you met with DAS at the Chateau Marmont? A. I don’t believe there was, no. See Ex. F hereto (emphasis added). F. Kesha Has Repudiated and Otherwise Breached Her Contracts with Plaintiffs 44. Despite the fact that the parties have had a tremendously successful business relationship, commencing in 2013, Kesha refused to provide services under, and otherwise breached, the KMI Agreement and the Prescription Publishing Agreement. 45. Kesha’s Breaches of the KMI Agreement. Kesha has breached at least three material terms of the KMI Agreement. First, as modified by subsequent amendment, Section Two of the KMI Agreement requires Kesha to deliver five albums of her musical recordings to KMI. In breach of the agreement, and in order to pressure Plaintiffs to agree to business concessions, Kesha refused to deliver her recordings to KMI for years, even though she only previously delivered two albums to KMI. Kesha has only recently resumed providing her recording services. 8498699.4 13 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 46. INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 Second, pursuant to Section Six of the KMI Agreement, Gottwald is entitled to produce no few than six (6) recordings on each of her albums. In breach of the agreement, Kesha now refuses to allow Gottwald to produce any recordings. (As Gottwald previously informed the Court, he is only seeking money damages as a remedy for this refusal, and does not seek injunctive relief to enforce his right to produce recordings.) 47. Third, pursuant to an amendment to the KMI Agreement dated May 18, 2009, Kesha is required, on a regular basis, to account to and pay KMI specified percentages of her revenues from merchandising, touring and other enumerated ancillary income streams on a periodic basis, and to “meaningfully consult” with KMI regarding all opportunities for such ancillary income. Kesha has breached the terms of this amendment by failing to account for or pay large amounts of ancillary income to which KMI is contractually entitled. Specifically, Kesha has not paid a substantial sum of ancillary royalties for which she previously accounted. There are also large amounts of ancillary royalties due and owing for which Kesha has never accounted – let alone paid. Indeed, Kesha has not paid KMI any ancillary royalties whatsoever in more than four (4) years. Kesha has also breached this amendment by failing to consult at all with KMI – let alone meaningfully consult – regarding her touring opportunities, merchandising opportunities, and other opportunities to earn ancillary income. 48. Kesha’s Breach of the Prescription Publishing Agreement. In addition to her outright repudiation of the Prescription Publishing Agreement, Kesha has breached the duty of good faith and fair dealing inherent in that agreement. The Prescription Publishing Agreement provides for a term of three consecutive contractual periods: an “Initial Period,” a “First Option Period” and a “Second Option” period. During each contractual period, Kesha is required to deliver to Prescription Songs a specified number of compositions written by her (the “Minimum 8498699.4 14 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 RECEIVED NYSCEF: 01/30/2017 Delivery Commitment”). Although there is no explicit deadline in the Prescription Publishing Agreement to fulfill the Minimum Delivery Commitment, the duty of good faith and fair dealing requires Kesha to fulfill it within a commercially reasonable period of time. In order to pressure Plaintiffs to agree to business concessions, Kesha refused to deliver any compositions for years – even though she was regularly writing new songs – and thereby breached the duty of good faith and fair dealing by failing to deliver any compositions to Prescription Songs within a commercially reasonable period of time. G. Kesha and Pebe Engage in a Campaign of Defamation and Extortion to Pressure Plaintiffs to Accept the Termination of Their Agreements 49. Kesha and Pebe have orchestrated a campaign of publishing false and calculatedly shocking accusations against Gottwald to extort Plaintiffs into letting Kesha out of the KMI Agreement and the Prescription Publishing Agreement; and destroy Plaintiffs’ business and reputation. Pebe and Kesha have discussed – and thus published – these accusations about Gottwald to one another. Kesha is the source of these accusations that Pebe has more broadly disseminated to third parties. These accusations are false, were published with malice, and constitute defamation per se. 50. The Defamatory Pebe Emails. The defamation and extortion campaign began on October 29, 2013, when Pebe emailed Gottwald’s longtime entertainment lawyer, stating the following: Tomorrow I am going to start making public how Dr. Luke blackmailed me into giving him and Circuit publishing credit, on all songs I wrote on [the Kesha album entitled] [W]arrior, with Kesha and other writers and producers …. Luke date raped Kesha when she was 18. Nicky Hilton’s birthday? Paris Hiltons house? Luke gave Kesha pills? She ended up naked in his hotel room 2 days later, no longer a virgin? 8498699.4 15 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 RECEIVED NYSCEF: 01/30/2017 Do we want all this to come out? [E]ither … Luke releases Kesha from all legal contracts, and gives me back all my publishing, or we, Kesha and I tell the truth …. These accusations against Gottwald are all false – as Kesha and Pebe themselves both know and have stated under oath. 51. The next day, October 30, 2013, Pebe sent a follow-up email to Gottwald’s entertainment lawyer, stating: “ps I am sending all of this to the blogger who has started the whole "Free Kesha" thing, sorry about the trail of truth you fucking criminals!” Again, Kesha and Pebe knew this defamatory accusation against Gottwald and his representatives was false. 52. The Defamatory Pebe Letter. On December 30 and 31, 2013, Pebe sent a letter via email in which she claim claimed, among other things, that “Dr. Luke abused Kesha, both physically and mentally.” Again, as Kesha and Pebe are well aware, these accusations are false. Pebe sent this letter to a substantial number of recipients, including individuals named Emily Wright, Beka Tischker, Benny Blanco, Kool Kojak, Matt Squire, David Gamson, and Mike Eisele. 53. Despite the patent falsity of these accusations, Pebe has made clear that extortion is the ultimate goal of this defamatory campaign. In communications with Gottwald and his representatives, Pebe has threatened to further disseminate accusations of the type above unless Gottwald lets Kesha out of her agreements with Plaintiffs, and provides Pebe with a larger financial interest in the certain songs which Pebe claims to have co-authored. 54. Plaintiffs have been informed that Pebe also published some or all of the aforementioned false accusations of fact to representatives of her music publisher Sony/ATV Music Publishing. 8498699.4 16 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 55. RECEIVED NYSCEF: 01/30/2017 The Defamatory Kesha Letters. Thereafter, in January of 2014, Kesha sent handwritten letters to her fans setting forth additional knowingly false factual assertions regarding Gottwald. These false assertions included: “Yes, Dr. Luke has tortured me + my family … he did do what people know about + so much more terrible shit”; “I’m here working out some emotional trauma + abuse, there is someone I work with that is so abusive”; and “Someone I work with has literally driven me into this disease, tortured me, and fucked with me and my family ….” When Kesha sent these letters, she knew that they would be widely disseminated on the Internet by her fans and thereafter published in the press. 56. The Defamatory So-Called “Draft Complaint.” Then, in the Summer of 2014, attorneys representing Kesha held a meeting in New York City with the general counsel of a major record label with which Gottwald does substantial business. At this meeting, Kesha’s attorneys showed the general counsel a purported “draft complaint” against Gottwald which contained false and scurrilous accusations against Gottwald of, among other things, having raped Kesha, given her drugs against her will, and engaged in other purported acts of physical, sexual and emotional abuse of her. Kesha and her attorneys knew that all of the allegations of purported misconduct by Gottwald in this so-called “draft complaint” were wholly false, and made these accusations to the general counsel with malicious intent. 57. In yet another blatant act of extortion, Kesha’s attorneys informed the general counsel that if Gottwald did not agree to let Kesha out of her recording agreement, they would file the “draft complaint,” thereby tarnishing Gottwald’s reputation. Obviously cognizant of the unlawful nature of this conduct, Kesha’s attorneys refused to let the general counsel retain a copy of the “draft complaint,” and refused to allow Gottwald or his representatives to even look at it. Although Kesha claims to have produced a copy of this “draft complaint,” in discovery, 8498699.4 17 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 Plaintiffs have reason to believe that it is not the actual document that was shown to the general counsel. Plaintiffs reserve the right to amend their pleading to add additional allegations regarding the content of the “draft complaint” after they receive a copy of the actual document that was shown to the general counsel. H. Kesha and Her Team Expand Their Defamatory Scheme in an Attempt to Blacklist Plaintiffs from the Music Industry 58. Following Plaintiffs’ defeat of her preliminary injunction motion, Kesha and her team embarked on a conscious and coordinated effort to “blacklist” Plaintiffs from the music industry. 59. This campaign has included, but has not been limited to, using Kesha’s knowingly false and defamatory accusations about Gottwald to encourage famous recording artists and other celebrities to publicly condemn Gottwald and to refrain from working with him, and promoting Kesha’s false accusations of abuse to as many press outlets as possible. In doing so, Kesha and her representatives recognized that the more widely these accusations were circulated, the more tarnished Gottwald’s name would become, and as a result artists would not agree to work with him. 60. Kesha and her representatives also closely coordinated with social media accounts, including one run by a close family friend of the Seberts, to further spread Kesha’s defamatory statements and tarnish Plaintiffs’ reputation. 61. Kesha and her representatives have also encouraged and assisted with the creation of bogus Internet “petitions” to, inter alia, pressure Sony to terminate its business with Plaintiffs. Multiple of these “petitions” have been claimed to be the independent work of a 46-year old woman named Rebecca Pimmel who is purportedly unrelated to the Seberts. However, as Kesha and her team is well aware, Rebecca Pimmel is not a real person; rather, these “petitions” were 8498699.4 18 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 actually created in direct coordination with the Seberts by the aforementioned family friend of the Seberts. 62. This malicious campaign had no economic motive for Kesha—who has now decided to purportedly resume performing under her contracts with Plaintiffs and has repeatedly stated that she is no longer trying to obtain better financial terms. Instead, it was designed solely to ruin Plaintiffs’ reputation and business interests. I. Kesha Falsely Asserts that Gottwald Raped Another Recording Artist 63. On February 26, 2016—one week after losing her motion for preliminary injunction—Kesha initiated a text message conversation with Stefani Germanotta, the recording artist who is professionally known as “Lady Gaga.” 64. During this text message conversation, Kesha falsely and baselessly asserted that Kesha and another female recording artist (the “Other Recording Artist”) had both been raped by Gottwald. 65. Specifically, Kesha told Lady Gaga that “she [i.e., the Other Recording Artist] was raped by the same man” as Kesha. 66. The “man” to whom Kesha referred was Gottwald—as the surrounding context of the text message makes clear. 67. Kesha’s assertions to Lady Gaga were completely false. Gottwald did not rape Kesha, and he did not rape the Other Recording Artist. 68. Kesha was (and is) well aware Gottwald never raped Kesha. 69. Kesha has no basis or justification whatsoever to falsely assert that Gottwald raped the Other Recording Artist. 8498699.4 19 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 70. RECEIVED NYSCEF: 01/30/2017 Kesha made these false assertions for the malicious purpose of further damaging Plaintiffs’ reputation and business. Kesha did not stand to make any more money or obtain better business terms as a result of them. 71. Since this text message conversation, Lady Gaga has spread negative messages about Gottwald in the press. Indeed, Lady Gaga has gone so far as to suggest during a radio interview that she possesses secret information regarding Gottwald that is damaging to him. Lady Gaga’s statements during this radio interview were thereafter repeated and spread widely by many international media outlets. 72. Upon information and belief, Kesha’s false accusation that Gottwald raped the Other Recording Artist has been widely circulated throughout the music industry—just like her false accusation that Gottwald raped Kesha—thereby causing further grievous damage to Plaintiffs’ reputation and business, just as Kesha intended. 73. Kesha did not have any economic motivation for making these false assertions to Lady Gaga. Rather, Kesha made these statements as revenge for losing her injunction motion and for the purpose of furthering her malicious plan to destroy Plaintiffs. As Lady Gaga observed in this text message conversation, “it will NOT [b]e easy for” her [i.e., the Other Recording Artist] or any artist to work w[ith] him [i.e. Gottwald] after this.” COUNT I (Defamation In Connection With Statements Published Prior To The Commencement Of This Action) 74. Plaintiffs restate and incorporate by reference the allegations contained in paragraphs 1 through 73 as if fully stated herein. 75. The statements that Kesha made concerning Plaintiffs prior to the commencement of this action, as detailed above, are false. 8498699.4 20 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 76. RECEIVED NYSCEF: 01/30/2017 The false statements that Kesha made concerning Plaintiffs prior the commencement of this action were published to various third parties. 77. In making these false statements, Kesha acted with wanton dishonesty such that punitive damages are warranted. Kesha also acted with common-law and Constitutional malice. No privilege applies to the publication of these statements. 78. Kesha’s assertions are defamatory on their face, by subjecting Plaintiffs to, among other things, hatred, shame, contempt, ridicule, and disgrace. Kesha’s assertions have a tendency to injure Plaintiffs in their occupation, and damage their reputation. 79. The statements about Gottwald have injured, and were made with an intent to injure, Plaintiffs’ reputation, including Gottwald’s reputation in his business as a music producer/songwriter who works closely with a broad range of artists and writers. As a result, Kesha’s conduct rises to the level of defamation per se, and no proof of special harm or damages is necessary. 80. To the extent proof of special harm or damages is necessary, as a proximate cause of Kesha’s defamatory statements, Plaintiffs have suffered special damages to their reputations, and to existing and potential business relationships with other artists and record labels in an amount to be proven at trial, plus interest. COUNT II (Defamation In Connection With Statements To Lady Gaga) 81. Plaintiffs restate and incorporate by reference the allegations contained in paragraphs 1 through 73 as if fully stated herein. 82. The statements that Kesha made to Lady Gaga concerning Plaintiffs, as detailed above, are false. 8498699.4 21 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 83. INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 Kesha’s assertions are defamatory on their face, by subjecting Plaintiffs to, among other things, hatred, shame, contempt, ridicule, and disgrace. Kesha’s assertions have a tendency to injure Plaintiffs in their occupation, and damage their reputation. 84. In making these false statements, Kesha acted with wanton dishonesty such that punitive damages are warranted. No privilege applies to the publication of these statements. 85. Kesha’s assertions were made with common-law and Constitutional malice and wanton dishonesty. When she made her assertions, Kesha was aware they were false; or, at minimum, knew they were without any basis in fact and acted with reckless disregard of whether they were false or not. Kesha entertained, at minimum, serious doubts as to the truth of her defamatory statements and had a high degree of awareness of the probable falsity of the defamatory statements. 86. The statements about Gottwald have injured, and were made with an intent to injure, Plaintiffs’ reputation, including Gottwald’s reputation in his business as a music producer/songwriter who works closely with a broad range of artists and writers. As a result, Kesha’s conduct rises to the level of defamation per se, and no proof of special harm or damages is necessary. 87. To the extent proof of special harm or damages is necessary, as a proximate cause of Kesha’s defamatory statements, Plaintiffs have suffered special damages to their reputations, and to existing and potential business relationships with other artists and record labels in an amount to be proven at trial, plus interest. COUNT III (Breach Of The KMI Agreement) 88. Plaintiffs restate and incorporate by reference the allegations continued in paragraphs 1 through 73 as if fully stated herein. 8498699.4 22 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 89. RECEIVED NYSCEF: 01/30/2017 The KMI Agreement and its subsequent 2008 and 2009 amendments are a valid contract between Kesha, on the one hand, and KMI and Gottwald, on the other hand. Gottwald is expressly intended as a third party beneficiary of the KMI Agreement. 90. KMI and Gottwald have fully performed their obligations under the KMI Agreement. 91. Kesha repudiated the KMI Agreement. In violation of the terms of the KMI Agreement, Kesha refused to comply with her ongoing obligations to deliver sound recordings to Gottwald, or to allow Gottwald to produce her work. Kesha has also refused to account for or pay KMI ancillary revenues which she owes under that agreement. 92. Kesha also breached the duty of good faith and fair dealing inherent in the KMI Agreement by acting in bad faith in attempting to force KMI into a purported breach of its obligations to furnish Kesha’s services to Kemosabe Records. Kesha further breached the duty of good faith and fair dealing by attempting to establish a direct contractual relationship with Kemosabe Records, thereby forcing out KMI and depriving it of the benefit of its bargain as the contractual furnisher of Kesha’s recording services to Kemosabe Records. 93. Because of Kesha’s breach of contract, Gottwald and KMI are entitled to compensatory damages (including expectation damages and consequential damages) in an amount to be proven at trial, plus interest. COUNT IV (Breach Of The Prescription Publishing Agreement) 94. Plaintiffs restate and incorporate by reference the allegations continued in paragraphs 1 through 73 as if fully stated herein. 95. The Prescription Publishing Agreement is a valid contract between Kesha, on the one hand, and Prescription Songs, on the other hand. 8498699.4 23 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 96. INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 Prescription Songs has fully performed its obligations under the Prescription Publishing Agreement. 97. Kesha repudiated the Prescription Publishing Agreement. Kesha breached the duty of good faith and fair dealing inherent in the Prescription Publishing Agreement by refusing and failing to fulfill her Minimum Delivery Commitment within a commercially reasonable period of time, and by refusing to deliver compositions that she authored. Through these actions, and others, Kesha has breached her contractual duty to render her services exclusively to KMI during the contractual term. 98. Because of Kesha’s breach of contract, Prescription Songs is entitled to compensatory damages (including expectation damages and consequential damages) in an amount to be proven at trial, plus interest. 99. Pursuant to Paragraph 21(b) of the Prescription Publishing Agreement, Prescription Songs is entitled to its costs and expenses (including court costs and reasonable fees for attorneys and expert witnesses) incurred with respect to bringing and maintaining this action. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court grant them relief as follows: 1. On the first and second causes of action, direct, special, and/or punitive damages to Gottwald in an amount to be determined at trial. 2. On the third and fourth causes of action, compensatory damages (both direct and consequential) in an amount to be determined at trial. 3. That the Court award Plaintiffs pre-judgment interest, attorneys’ fees and costs, and such other and further relief as this Court deems proper. 8498699.4 24 INDEX NO. 653118/2014 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 RECEIVED NYSCEF: 01/30/2017 DEMAND FOR JURY TRIAL Plaintiffs demand trial by jury of all claims so triable. DATED: New York, New York January 30, 2017 MITCHELL SILBERBERG & KNUPP LLP By:/s/ Christine Lepera________ Christine Lepera Jeffrey M. Movit 12 East 49th Street, 30th Floor New York, New York 10017-1028 Telephone: (212) 509-3900 Facsimile: (212) 509-7239 Attorneys for Plaintiffs 8498699.4 25 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. NO. 624 INDEX NO. 653118/2014 RECEIVED NYSCEF: 01/30/2017 FILED: NEW YORK COUNTY CLERK 01/30/2017 10:48 PM NYSCEF DOC. 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