INDEX NO.

653118/2014

FILED: NEW YORK COUNTY CLERK 03/19/2016 12:17 AM

NYSCEF DOC. NO. 503

RECEIVED NYSCEF: 03/19/2016

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
-----------------------------------------------------------LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ
MONEY, INC., and PRESCRIPTION SONGS,
LLC,

X
:
:
:
:
Plaintiffs,
:
:
-against:
:
KESHA ROSE SEBERT p/k/a KESHA,
:
:
Defendant.
:
------------------------------------------------------------- :
:
:
KESHA ROSE SEBERT p/k/a KESHA,
:
:
Counterclaim Plaintiff,
:
-against:
:
LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ :
MONEY, INC., PRESCRIPTION SONGS, LLC, :
KEMOSABE ENTERTAINMENT, LLC,
:
KEMOSABE RECORDS, LLC, and SONY
:
MUSIC ENTERTAINMENT,
:
:
Counterclaim Defendants.
:
X
-------------------------------------------------------------

1.

Index No 653118/2014

Justice Shirley Werner Kornreich

PRE-ARGUMENT STATEMENT

The title of the action is set forth in the caption.

2.
The full names of the current parties are set forth in the caption. All of those parties are also
the original parties to the action except as follows:
Plaintiff-Respondent Prescription Songs, LLC joined the action as a plaintiff on
December 22, 2014.
Kemosabe Entertaintment, LLC, Kemosabe Records, LLC, and Sony Music
Entertainment were added as Counterclaim Defendants on July 7, 2015.
Pebe Sebert, Jack Rovner, and Vector Management, LLC were dismissed as defendants
from this action by Order dated February 2, 2016, which was entered by the New York
County Clerk on February 3, 2016.

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3.

Counsel for Defendant-Appellant Kesha Rose Sebert p/k/a Kesha (Kesha):

Mark J. Geragos (pro hac vice)
Tina Glandian
Geragos & Geragos, APC
c/o 7 West 24th Street, Suite 2
New York 10010
(213) 625-3900

4.
Counsel for Plaintiffs-Respondents Lukasz Gottwald p/k/a Dr. Luke (Gottwald), Kasz
Money, Inc. (KMI), Prescription Songs, LLC (Prescription Songs), and Kemosabe
Entertainment, LLC (Kemosabe Entertainment) is:
Christine Lepera
Jeffrey M. Movit
Mitchell Silberberg & Knupp LLP
12 East 49th Street, 30th Floor
New York, New York 10017
(212) 509-3900
5.
Counsel for Counterclaim Defendants-Respondents Sony Music Entertainment (SME)
and Kemosabe Records, LLC (Kemosabe Records) is:
Gabrielle Levin
Gibson, Dunn & Crutcher LLP
200 Park Avenue, 48th Floor
New York, New York 10166
(212) 351-4000
Scott A. Edelman (pro hac vice)
Gibson, Dunn & Crutcher LLP
2029 Century Park East, Suite 4000
Los Angeles, California 90067
(310) 552-8500
6.

The Court and County from which the appeal is taken is Supreme Court, New York County.

7.
This appeal is taken from an Order dated February 19, 2016 by the Honorable Shirley
Werner Kornreich, entered in the above-captioned proceeding in the Office of the Clerk of the
County of New York on February 19, 2016, and served by Counterclaim Defendants SME and
Kemosabe Records upon Plaintiffs and Counterclaim Defendants Gottwald, KMI, and Prescription
Songs, Counterclaim Defendant Kemosabe Entertainment, and Defendant and Counterclaim
Plaintiff Kesha in a Notice of Entry dated February 19, 2016, which Order denied Kesha's Motion
for a Preliminary Injunction.
8.

There is no related action or proceeding now pending in any court of this or any other
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jurisdiction except the following:

Kesha Rose Sebert v. Lukasz Sebastian Gottwald, et al., Superior Court of California,
County of Los Angeles, Case Number BC 560466 (hereafter the California action)
Lukasz Gottwald p/k/a Dr. Luke, and Kasz Money, Inc. v. Pebe Sebert, United States
District Court for the Middle District of Tennessee, Nashville Division, Case Number 3:14cv-02039
Lukasz Gottwald p/k/a Dr. Luke v. Mark Geragos and Geragos & Geragos, A
Professional Corporation, New York Supreme Court, Index Number 162075/2014
9.
The nature and object of the action is as follows: On October 14, 2014, world-renowned
platinum-selling artist (and California resident) Kesha filed a lawsuit against her producer (also a
California resident) Gottwald and several of his companies including KMI and Prescription Songs
in Los Angeles Superior Court alleging various causes of action including sexual assault and
battery, harassment, violation of Californias unfair business laws, and the intentional and negligent
infliction of emotional distress. Her claims arise from her allegation that during the course of their
ten-year relationship, Gottwald has sexually, physically, and emotionally abused her, including
drugging and raping her on one occasion, ultimately leading Kesha to have an eating disorder and
be admitted to a rehabilitation facility.
Several hours after Kesha filed the California action, Gottwald and KMI, one of the
companies he controls, filed the instant action in New York court against Kesha, her mother Pebe
Sebert (Pebe), and her managers Jack Rovner ( Rovner) and Vector Management LLC
(Vector) alleging defamation (against Kesha and Pebe only), breach of contract (against Kesha
only), and tortious interference with contractual relations (against Pebe, Vector, and Rovner only)
(hereafter the New York action). Plaintiffs Gottwald, KMI, and Prescription Songs (which was
added as a plaintiff on December 22, 2014) only sought money damages as relief. Based on
Plaintiffs' arguments that mandatory forum selection clauses in their contracts designated New York
as the exclusive forum to adjudicate disputes arising out of said contracts, the California court
ultimately stayed that action pending a decision in the New York action. By Order dated February
2, 2016, which was entered by the New York County Clerk on February 3, 2016, the Court
dismissed the New York action against Pebe, Vector, and Rovner based on lack of personal
jurisdiction.
Kesha filed Counterclaims in the New York action against Gottwald, KMI, Prescription
Songs, Kemosabe Entertainment, Kemosabe Records, and SME for violation of the New York State
Human Rights Law, bias-related violence under New York Civil Rights Law 79-n, sexual
harassment in violation of New York City Administrative Code 8-107(1)(a), sexual harassment in
violation of New York City Administrative Code 8-107(13)(b) (1) & (2), gender-motivated
violence in violation of New York City Administrative Code 8-904, intentional infliction of
emotional distress, and declaratory relief that the contracts at issues are void. Kesha sought money
damages as well as declaratory and injunctive relief, enjoining the Counterclaim Defendants from
interfering with her right to record and publish music.
On September 18, 2015, when it became apparent that the litigation would be more
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protracted than anticipated and that such protraction would irreparably harm her career, Kesha filed
a Motion for a Preliminary Injunction requesting the Court enjoin Gottwald, KMI, and all related
individuals and entities from interfering with her career until resolution of the New York action.
10.
In the Order dated February 19, 2016 from which Kesha now appeals (hereafter the
Order), the Court denied Keshas Motion for a Preliminary Injunction because it found that there
had been no showing of irreparable harm to Kesha or that the equities favored her. The Court based
its finding on the representation that Kesha could record without having any interference with
Gottwald in the recording or producing process. The Court noted that on the other hand, there
would be irreparable harm to Sony if she granted the injunction because it is part of the ultimate
relief requested in the case.
11.
Plaintiff seeks reversal of the Order on the following grounds. First, the Court erred in
basing its decision on its finding that Kesha could record without interference from Gottwald.
Although it recognized that "slavery was done away with a long time ago" and that "[y]ou can't
force someone to work . . . in a situation in which they don't want to work," the Court's ruling
requiring Kesha to work for Gottwald's companies, purportedly without his involvement, does just
that. As the Court itself recognized, "[i]t's slavery. You can't do that."
12.
The Court also erred in concluding that there had been no showing of irreparable harm to
Kesha. In support of her Motion for a Preliminary Injunction, Kesha submitted affidavits by
individuals with over 100 years of collective personal experience in the music industry, each of
whom attested to the fact that a young pop stars fame will fade quickly, and permanently, due to a
loss of momentum. Indeed, New York courts have found irreparable harm to the careers of young
musicians like Kesha where those careers are fleeting and in danger of destruction if not timely
pursued. For instance, in Milstead v. O Records & Visuals, Ltd., 1984 WL 433, at *3 (S.D.N.Y.
June 5, 1984), the court determined that a recording artist would be irreparably harmed if the record
company was not restrained from interfering with the recording artists negotiations and contractual
relations with others during the pendency of the lawsuit. Similarly, in Then v. Navarro, 2015 WL
1878624, the court held that irreparable harm was established by the damage to the goodwill of
the band within the music industry and among their fans as they were prevent[ed] from exploiting
their current youth in a market that particularly values such fleeting commodity. Id. at *2. The
court stated that as the band was forced to sit on their hands . . . the urban bachata music market
ask[ed], Where is Grupo 24 Horas? What happened to those guys? Werent they supposed to be
the next big thing? Indeed, moment by moment . . . results in lost opportunity for status and fame
for [the band], which cannot be recouped, and which cannot adequately be compensated by
money. Id. Notably, the court determined that the equities surely weigh in favor of young
musicians being enabled to use their talents to their fullest extent. Id.
13.
Finally, the Court erred in finding that the balance of equities favored SME. The Court did
not explain, nor could it, why any potential harm to SME could not adequately be compensated by
money damages if it were to prevail in the litigation. Indeed, SME, Gottwald, and all the related
entities are each free to make music (and money) with other young talent. In the event they prevail
in the litigation, they can recover money damages from Kesha for her breach of contract.

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14.

There is no additional appeal in this action.

Dated: New York, New York

March 18, 2016

Respectfully submitted,
GERAGOS & GERAGOS, APC
By:

________________________
Mark J. Geragos, Esq. (pro hac vice)
Tina Glandian, Esq.
c/o 7 West 24th Street, Suite 2
New York, New York 10010
(213) 625-3900
geragos@geragos.com
Attorneys for Defendant and
Counterclaim Plaintiff Kesha Rose
Sebert

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