When James “Bo” Pearl of O’Melveny & Myers joined recording artist Kesha’s legal team, her career had largely been on hold since an ongoing legal battle from 2013 with her former producer Dr. Luke. The two had exchanged charges in a series of lawsuits, with Kesha alleging Dr. Luke drugged and sexually abused her, and Dr. Luke claiming defamation and breach of their multi-release contract. Pearl and his team began representing Kesha after winning a full dismissal in February 2016 for her manager and management in a prong of the sprawling suits in New York state court. Since then, Pearl has helped clear the way for Kesha to release “Rainbow,” her first new album after the legal dispute with Dr. Luke.
Briefly explain the win you scored for Kesha’s manager and management company, which led to you representing the pop star herself. Unlike California, New York does not recognize a “manager’s privilege,” but arguing under general agency law, we prevailed on a motion to dismiss. We prevailed on the argument that as a talent manager, one should have the ability to provide contractual and strategic advice to your clients without threat of tortious interference claims.
How, in the face of extremely contentious litigation with her former producer Dr. Luke, were you able to clear the path for Kesha to release new music and push on with her career? When Kesha moved for a preliminary injunction, Dr. Luke argued in opposition that she was free to record without his involvement. It took many months of pushing and letter writing but eventually, she was able to record the album with the full support of RCA. Dr. Luke remained involved as the label (Kemosabe) and as to certain approvals, but was not involved in the writing or recording of the tracks. It should be noted, as an aside, that Dr. Luke has now sued Kesha for recording without his involvement as a producer. He also stands to profit handsomely from the success of the album.
How, if at all, does your approach change when you’re representing the little guy going up against better-resourced opponents in litigation? I have some experience in this regard in the AMD v. Intel case, where we were going against several different law firms and a team of hundreds of lawyers (when you count contract attorneys). We were able to obtain a settlement of $1.25 billion and it turned out to be a very sound investment for the company, both financially and in changing how business is done. Today the company is thriving. Ultimately you just need to stay committed and focused that you will prevail in the end, notwithstanding the financial challenges you face along the way. In this case, Kesha simply could not go on recording with Dr. Luke. So she had no choice other than to simply stop practicing her livelihood, which was not a viable option.
A prospective client with a crisis calls and asks why you and your team at O’Melveny should be retained. What is your answer? The answer is look at the results we have achieved in the toughest cases. We consistently deliver great results for clients facing threats to their most valuable assets. Just recently, we prevailed in an idea theft copyright suit brought against Disney regarding the movie “Zootopia.” We have had similar success for Warner Bros. for some of their [marquee] movies like “The Last Samurai.” On the non-entertainment side of the ledger, we have shown the ability to litigate both as plaintiffs and defendants and obtain industry-changing outcomes in the technology field, sports and, early in my career, the accounting world.
Who is a litigator outside your own firm that you admire and why? Early in my career, I did an antitrust case against the movie studios with Lee Godfrey of Susman Godfrey. Lee was a consummate gentleman, a brilliant strategist and a fantastic trial lawyer. He was a pleasure to work with and to watch.