STEVEN H. ROBINSON, ESQ.
320 West 89th Street, 9A
New York, NY 10024
212.501.8233
212.501.8234 (fax)
shrobinson@earthlink.net
December 21, 2003
BY TELECOPIER
Jeffrey A. Greenberg, Esq.
Beldock Levine & Hoffman, LLP
99 Park Avenue, Suite 1600
New York, NY 10016
Re: William Galison; Got You On My Mind
Dear Mr. Greenberg:
I have received your December 17, 2003 letter. Mr. Galison's response, which is made without prejudice to his rights and remedies in this matter, appears below, and is divided into three sections. The initial portion of the discussion clarifies the record with respect to your conduct, which is now at issue, in respects other than regarding Mr. Galison’s claims for defamation which have been already been addressed elsewhere. The second portion of the discussion addresses the substance of this matter. Finally, the letter concludes with a statement of Mr. Galison position and intentions.
Your Conduct in this Matter.
In our first conversation, you purported to speak for Rounder Records, Inc. (“Rounder”). When I questioned you as to your authority to do so, you admitted that had no such authority. Yet, in your letter, you again purport to speak for Rounder. This is improper and useless. Since we first spoke, I have learned that Mr. Willard represents Rounder, and I have had cordial, professional discussions with him. I am confident that I can inform myself fully as to Rounder’s legal position and intentions in this matter through communications with Mr. Willard. So as to avoid prejudice to any party, expedite my communications with Mr. Willard, and avoid confusion, I want to be clear that Mr. Galison has discounted and will continue to discount any and all statements or positions that you attribute to Rounder and any other statements that you may make without apparent authority. More generally, I remind you that when we first spoke, I informed you that you would not be permitted to mediate Mr. Galison’s discussions with Rounder, and I respectfully suggest that it will expedite the resolution of this matter if you take that statement seriously.
The record should also be clarified with respect to your attempts to ally yourself with Rounder and to characterize Mr. Galison as interfering with Madeleine Peyroux’s agreement with Rounder (the “MP-Rounder Agreement”). These portrayals are an ongoing effort to conceal two central facts in this matter: (a) it is apparent that the MP-Rounder Agreement contains one or more misrepresentations concerning the recording entitled “Got You on My Mind” (the “Recording”) that, without limitation, apparently concern the basic nature of that recording, Ms. Peyroux’s legal interest in it and the extent of her legal right to control its distribution; for which (b) you are at least partly responsible. Whatever factual inaccuracies Ms. Peyroux may have inserted into the discussions that led up to the MP-Rounder Agreement, as her counsel, responsibility for the fact that those inaccuracies are reflected in the agreement and that Rounder was led to rely on them in entering into the agreement is yours. Depending on how this situation arose, your acts or omissions in that negotiation may constitute a violation of the Code of Professional Responsibility (“CPR”). DR 7-102. In any event, your personal involvement in and responsibly for this matter has escaped no one. Your attempt to deflect attention from your role in this matter by portraying Mr. Galison as the cause of a state of affairs that was, in fact, created solely by you and Ms. Peyroux, has failed. Every attempt you or Mr. Peyroux make to blame Mr. Galison for this situation erodes your credibility further.
In other portions of your December 17, 2003 letter progresses, you appear to both: (a) act as a fact witness as to material, disputed issues of fact; and (b) threaten criminal prosecution in an attempt to cow Mr. Galison into forgoing pursuit of his legitimate and lawful economic interests by legitimate and lawful means. These are additional apparent violations of the CPR. DR 5-102 (attorney as fact witness) and DR 7-105 (prohibition of threats of prosecution to obtain advantage in a civil matter).
I have addressed the defamatory aspects of your letter elsewhere. I also note with regret your overly aggressive tone, persistent use of innuendo, multiple legal inaccuracies, the arguably tortious, factually baseless, and wholly irrelevant allegations as to Laura Minor, gratuitous musical comments, and representations of fact that are contradicted by either documents that are in your client’s possession, custody and control, the record of her actions, or both.
As Mr. Willard and I have now discussed, and as I understand he discussed with you, we are in the process of constructing a framework for the negotiated resolution of this matter that will not impact Ms. Peyroux’s agreement with Rounder, but will also permit Mr. Galison to recover his investment in the Recording. Why you chose to respond to such a positive development with a letter of the sort you sent is, frankly, beyond me. The fact that you did so raises serious concerns about your willingness to negotiate in good faith.
Ms. Peyroux’s Legal Position is Unsound.
The entire purpose of the discussions between Laura Minor and Troy Hansboro and between Mr. Willard and me is to develop a way that MP-Rounder Agreement can be discharged according to its terms, that is, in a manner that both leaves Rounder’s original understanding as to the costs and potential benefits of that agreement intact and entirely undisturbed and permits Mr. Galison to commercialize the Recording. Mr. Galison’s actions make it less likely that Rounder will feel compelled to cancel or withdraw from the MP-Rounder Agreement on the basis of the misrepresentations as to Got You on My Mind for which you and Ms. Peyroux are responsible, as I assume it has the right to do.
This means that there is simply no basis for any allegation that Mr. Galison is attempting to procure a breach of the agreement in any manner, much less that he is doing so solely to harm Ms. Peyroux by means that are dishonest, unfair or improper, as a claim for tortious interference with contract requires. Ms. Minor raised the Recording with Rounder when it became clear that Rounder had been misinformed with respect to the Recording, and only after it became clear that you were ignoring my attempt to explore the issues with you in my December 3, 2003 letter. Since that time, the only thing standing in the way of working this matter out amicably and in a manner that is wholly consistent with that MP-Rounder Agreement is your preference for threatening correspondence. On such a record, the prospect that you could establish a likelihood of success on the merits on an allegation that Mr. Galison has tortiously interfered with the MP-Rounder Agreement is remote.
In fact, Mr. Galison has offered Ms. Peyroux and Rounder the easiest path possible to resolving the problem that you and Ms. Peyroux created. You may well be embarrassed by the manner in which this issue came to light, but that hardly makes it actionable. Ms. Peyroux owes Mr. Galison a debt of gratitude. You might consider how your recent discussions of this matter with Rounder would have gone if they had occurred only after “Got You on My Mind” had been released to the public, as Mr. Galison is and has been entitled to do.
Similarly, there is nothing remarkable, much less actionable, about Mr. Galison’s prospective truthful identification of Ms. Peyroux as the vocalist on all or part of “Got You on My Mind.” To the extent that your objections pertain to the prospective future use of the photograph that the Recording now employs, the response is quite straightforward. Ms. Peyroux has, as I understand it, used the image in question to sell at least 500 copies of the Recording, conduct that constitutes unambiguous consent to the use of that image in the context of the Recording.
Ms. Peyroux may attempt to revoke her permission for future uses of that photograph by Mr. Galison, but she may be estopped from doing so. However, Ms. Peyroux’s revocation, if effective, would expose her to additional claims for detrimental reliance and liability for substantial additional damages. Accordingly, if Ms. Peyroux is taking the position that she revoked her permission to use her name and likeness with respect to the Recording, please inform me at to when, how and in what manner her revocation was communicated to Mr. Galison.
I hope and expect that an accounting with respect to “Got You On My Mind” would reflect the expenses incurred by Ms. Peyroux and Mr. Galison in creating the Recording as well as the revenue they have each received and may hereafter receive from its sale. At the appropriate time, I will be pleased to examine the pertinent records with you in detail to ensure that that occurs. For the moment, the references in your letter to Ms. Peyroux’s expenditures only reinforce the nature of the Recording as a jointly authorized work, which as you admitted when we first spoke, is not in dispute.
Your references to Rounder’s alleged “pre-approval” of the Recording and to Mr. Galison’s knowledge of the negotiations and subsequent agreement between Ms. Peyroux and Rounder can be discussed together. First, I note that no one representing Rounder has ever mentioned to Mr. Galison or anyone representing his interests, either a “pre-approval” of the Recording or any process that could be so characterized. So, it is not clear what you mean by that term.
Mr. Galison was, of course, generally aware that Ms. Peyroux was negotiating with Rounder, as he was of her discussions with other record companies. When the negotiations between Ms. Peyroux and Rounder progressed and the MP-Rounder Agreement arose, Mr. Galison and Ms. Peyroux developed an understanding with regard to when and how the Recording would be sold that reflected the prospect that a Rounder recording would be released pursuant to that Agreement. Ms. Peyroux abrogated that understanding months ago.
Your attempt to blame Mr. Galison for Ms. Peyroux’s abandonment of that understanding not only depends on her wholly false allegations of physical abuse, but is thoroughly contradicted by the record of Ms. Peyroux’s conduct and her communications, evidence of which is, or should be known to you. When I wrote you on December 3, 2003, I requested a statement of Ms. Peyroux’s interests and concerns. She can have no legitimate interest in proceeding on the basis of any false, misleading or distorted statement of purported fact, and in any event, and she will not be permitted to do so. Ms. Peyroux should have no doubt that she will be held accountable for every statement she may make in this matter. I urge you to consider that the resolution of this matter can only be complicated and delayed by making statements that are demonstrably false.
Mr. Galison was not a party to any negotiations that took place between Rounder and your client, and he has no specific knowledge of what was said to or by either party. Similarly, he has not seen and has no knowledge of the contents of the MP-Rounder Agreement. In short, to whatever extent Rounder “pre-approved” the Recording in its negotiations with Ms. Peyroux, that process had nothing to do with Mr. Galison. Whatever conditions, limitations or restrictions Rounder may have placed on its “pre-approval” of the Recording apply, if at all, solely to Ms. Peyroux, and have no effect on Mr. Galison’s rights as a joint author of the Recording. Similarly, Mr. Galison has never seen the MP-Rounder Agreement and has no specific knowledge of its contents.
In sum, the suggestion Ms. Peyroux has the right to enjoin Mr. Galison’s prospective commercial distribution of the Recording lacks a sound basis in either fact or law. However, as I stated in my December 3, 2003 letter to you, Mr. Galison is prepared to voluntarily delay the commercialization of the Recording while the discussions with Rounder outlined above continue.
Mr. Galison’s Position and Intentions.
You have, as I have stated to you in my December 3, 2003 and letter and when we first spoke, my continuing assurance that Mr. Galison will proceed in an entirely lawful manner. Without limitation, that means that he has no intention of involving himself in, much less procuring the breach of, the MP-Rounder Agreement. Mr. Galison has repeatedly stated that he has no wish to harm Ms. Peyroux’s career. It is clear that doing so would in no way further his interests in the Recording.
As to your threats of litigation, if Ms. Peyroux would rather litigate this matter, notwithstanding that she has no clear incentive or basis for doing so, Mr. Galison obviously cannot stop her. If you actually believe that your client’s interests lie in having her prosecute a lawsuit while trying to make a record for a major label for the first time in seven (7) years, so be it.
It required only preliminary research to uncover clear, current authority to the effect that there is no good faith basis in law for the assertion that Mr. Galison has liability to Ms. Peyroux on any of any of the theories listed in your letter, even on the self-serving, selective, and distorted version of the facts set forth in your letter. Accordingly, if Ms. Peyroux elects to litigate this matter, Mr. Galison’s response will include a motion for sanctions for proceeding in demonstrable bad faith. If he is compelled to make such a motion, he will seek the most stringent penalties available.
I acknowledge that you offer Mr. Galison the chance to make proposals to you to resolve this matter. But in context, it is clear that rather than an invitation to good faith negotiations, you intend to threaten Mr. Galison to the table and once there, compel his agreement to terms of Ms. Peyroux’s choosing on pain of his being subjected to further acts of defamation, unsound civil litigation, and apparently, a baseless criminal prosecution. This is an easy invitation to resist, and of course, as I previously wrote you, there will no be direct negotiations until Mr. Galison’s claims for defamation are resolved.
I remind you that Mr. Galison proposes, as he has at all times, to act in a manner that is entirely within his rights, and that a more temperate approach from Ms. Peyroux and from you would in all likelihood have achieved more progress toward a resolution of this matter than we have to show to date.
Mr. Galison reserves his rights to respond further to the matter set forth in your letter, as he may deem appropriate.
Very truly yours,
Steven H. Robinson
cc: William Galison
Jon Waxman, Esq.
Marty Willard, Esq.
