A recent decision out of the Federal Central District Court of California in the Spinal Tap v. Vivendi lawsuit is making headlines as the case will be allowed to continue. The band is alleging that Vivendi failed to pay them royalties on the film and merchandising to the tune of over $ 400 million. From the mid-eighties to the mid-2000s, the band received less than $ 200 in royalties and merchandising combined, total; which is a complete and utter shock given the immense popularity of the movie and soundtrack, and merch.
Unfortunately for the band, their claim of fraud has been dismissed, along with three of the four members of the band. Only Christopher Guest (a.k.a. Nigel Tufnel) remains as a plaintiff in the lawsuit for now, as the other three sued under their business enterprises rather than as individuals. Federal judge Dolly Gee will allow the band to amend their lawsuit so that the other band members can get back on board as individuals, and will even allow the band to try to make their fraud claim again as well.
Fraud Requires More Specific Facts
A common problem that plaintiffs have when alleging claims of fraud is putting enough facts to substantiate that claim in their complaint. In legalese, fraud claims must be “pleaded with particularity.” This usually means including specifics as to the date of, nature of, and people involved in the fraud.
The lack of particularized facts is exactly the flaw that led to Spinal Tap’s fraud claim against Vivendi being dismissed. They were claiming that the distributor intentionally cooked their books in order to not pay the band what they were owed. In short, the judge explained that the band could re-file that claim, but would need to make sure they included sufficient factual allegations of fraud.
“England’s Loudest Band Will Be Heard”
As Shearer, a.k.a. Derek Smalls, stated in response to the ruling: “England’s loudest band will be heard.” The band is rather pleased with the decision as it provides clear guidance on what they need to do to proceed. Even though three of the four members were dismissed, they will easily be able to get back into the lawsuit, as the door was left wide open by Judge Dolly Gee.
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