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Surviving Survivors Sue
Highest Court N.D. Illinois
Year Ended 2010
Plaintiffs Band Member(s)
Survivor
Defendants Band Member(s)
Other Peterik, Jim
Scotti Brothers Records
Short Description Survivor is, without a doubt, best-known for their massive hit, "Eye of the Tiger," that functioned as the theme song to Rocky III. However, they had other hits, and have continued to perform as a band up until today. Plaintiffs in this lawsuit are the band's founder and the band's corporate entity, while Defendants are members of the band who had been with the band at the time "Eye" was recorded and released. In the early days of the band, the members formed a joint venture, which allowed for replacement members to become full venturers in the agreement. Plaintiffs joined the band sometime thereafter. Prior to this lawsuit, in the mid-1990s, members of the band Survivor, including Plaintiffs but not Defendants, realized they had not been tendered royalties or statements by Scotti Brothers, the record label with which they had previously signed. Plaintiffs brought suit, and the parties settled, with 20% of royalties paid to songwriter/producer Jim Peterik and 80% paid to Survivor. However, Plaintiffs represented to Defendants, when Defendants re-joined the band in the late 1990s, that no royalties were forthcoming, because the band was indebted to their record label. This court opinion, which does not state the reason for Plaintiff's lawsuit, addresses Defendants' counterclaims alleging that Plaintiffs committed various wrongs (see the attached list of legal issues) relating to the concealment of Plaintiffs' settlement for royalty payments and subsequent receipt of those royalties. On Plaintiff's motion to dismiss counterclaims, the court found that Defendants introduced evidence, beyond the speculative level, that they were full members of the band (pursuant to the joint venture agreement and subsequent record contracts), and were thus owed royalties, which were not paid by Plaintiffs. Furthermore, Defendants' fraud claims were properly stated, even under heightened pleading requirements, because they alleged that Plaintiffs intentionally misled Defendants into believing no royalties were forthcoming, despite the settlement. Last, because Defendants learned of the nonpayment of royalties in 2009, when Peterik told them of his 20% interest, the statute of limitations had not run. In a related subsequent ruling, the court held Defendants were not judicially estopped from asserting claims against Plaintiffs for royalties, despite not having claimed the royalties or cited the contracts amongst the band members and with Scotti Brothers in a previous bankruptcy proceeding. - LSW

Legal Issues
Business Associations Joint Ventures Fiduciary Duties
    Joint Venture Agreement
Contracts Breach Payment & Performance
General Affirmative Defenses Statutes of Limitation
  Equitable Actions Unjust Enrichment
  Equitable Defenses Waiver, Estoppel & Acquiescence
  Equitable Remedies Quantum Meruit
Torts Economic Torts Fraud, Misrepresentation & Inducement


Opinions Sullivan v. Jamison
2011 WL 856591
N.D. Illinois , March 08, 2011 ( No. 06 C 5240 )


Sullivan v. Jamison
2010 WL 4962211
N.D. Illinois , December 01, 2010 ( No. 06 C 5240 )


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Related Searches Parties
Band Member(s) ( Defendant )
Band Member(s) ( Plaintiff )
Peterik, Jim ( Other )
Scotti Brothers Records ( Other )
Survivor ( Plaintiff )

Legal Issues
Business Associations / Joint Ventures / Fiduciary Duties
Business Associations / Joint Ventures / Joint Venture Agreement
Contracts / Breach / Payment & Performance
General / Affirmative Defenses / Statutes of Limitation
General / Equitable Actions / Unjust Enrichment
General / Equitable Defenses / Waiver, Estoppel & Acquiescence
General / Equitable Remedies / Quantum Meruit
Torts / Economic Torts / Fraud, Misrepresentation & Inducement

Courts
N.D. Illinois (highest court)


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