13‐1753‐cv
Keiler et al. v. Harlequin Enterprises LTD et al.
1 In the
2 United States Court of Appeals
3 For the Second Circuit
4 ________
5
6 AUGUST TERM 2013
7 No. 13‐1753‐cv
8
9 BARBARA KEILER, MONA GAY THOMAS, AND LINDA BARRETT, ON
10 BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
11
12 Plaintiffs‐Appellants,
13
14 v.
15
16 HARLEQUIN ENTERPRISES LIMITED, HARLEQUIN BOOKS S.A.,
17 HARLEQUIN ENTERPRISES B.V.,
18 Defendants‐Appellees.1
19 ________
20
21 Appeal from the United States District Court
22 for the Southern District of New York.
23 No. 12‐cv‐5558 ― Harold Baer, Jr., Judge.
24 ________
25
26 ARGUED: NOVEMBER 21, 2013
27 DECIDED: MAY 1, 2014
28 ________
29
30 Before: KEARSE, JACOBS, AND PARKER, Circuit Judges.
31 ________
1
The Clerk of Court is respectfully directed to amend the official caption in this case to
conform with the caption above.
No. 13‐1753‐cv
1 Appeal from a judgment of the United States District Court for
2 the Southern District of New York (Baer, J.) dismissing a complaint
3 alleging breach of publishing agreements for failure to state claims.
4 We AFFIRM the dismissal of plaintiffs’ first, second, and third
5 claims. We hold that the fourth claim alleged sufficient facts to
6 plead a breach of the publishing agreements on the theory that
7 defendants calculated plaintiffs’ e‐book royalties based on an
8 unreasonable license fee. Accordingly, we REVERSE the dismissal
9 of the fourth claim and REMAND the case to the district court for
10 further proceedings consistent with this Opinion.
11 ________
12 DAVID B. WOLF (Michael J. Boni & John E.
13 Sindoni, Boni & Zack LLC, Bala Cynwyd, PA, on
14 the brief), DavidWolfLaw PLLC, New York, NY,
15 for Plaintiffs‐Appellants.
16 DANIEL J. LEFFELL (Jay Cohen, on the brief), Paul,
17 Weiss, Rifkind, Wharton & Garrison LLP, New
18 York, NY, for Defendants‐Appellees.
19 JOHN R. TANDLER (F. BRITTIN CLAYTON III, on the
20 brief), Ryley Carlock & Applewhite, Denver, CO,
21 for Amici Curiae, Romance Writers of America and
22 The Authors Guild, supporting Plaintiffs‐Appellants.
23 ________
24 BARRINGTON D. PARKER, Circuit Judge:
25 Plaintiffs‐Appellants Barbara Keiler, Mona Gay Thomas, and
26 Linda Barrett are authors of romance novels who bring putative
27 class action claims against publishing house Defendants‐Appellees
28 Harlequin Enterprises Limited (“Harlequin Enterprises”) and its
2
No. 13‐1753‐cv
1 subsidiaries Harlequin Enterprises B.V. (“HEBV”) and Harlequin
2 Books S.A. (“HBSA,” and together with HEBV, “Harlequin
3 Switzerland”). Plaintiffs contend that the Harlequin entities
4 breached agreements with them and other authors (the “Publishing
5 Agreements”) by paying them artificially low royalties on the sales
6 of digitized versions of their books.
7 The United States District Court for the Southern District of
8 New York (Baer, J.) concluded that plaintiffs’ allegations failed to
9 state claims and dismissed the amended complaint pursuant to
10 Federal Rule of Civil Procedure 12(b)(6). See Keiler v. Harlequin
11 Enters. Ltd., No. 12‐5558, 2013 WL 1324093 (S.D.N.Y. Apr. 2, 2013).
12 For the reasons set forth below, we hold that plaintiffs’ claims based
13 on agency, assignment, and alter ego theories cannot serve to modify
14 the terms of the Publishing Agreements and were properly
15 dismissed. We also conclude that the amended complaint set forth
16 sufficient facts to plead a breach of the Publishing Agreements on
17 the theory that defendants calculated their e‐book royalties based on
18 an unreasonable license fee. Accordingly, we affirm the judgment in
19 part, reverse it in part, and remand for further proceedings
20 consistent with this Opinion.
21 I. BACKGROUND
22 This case arises in the context of a meteoric rise in e‐book sales
23 over the last several years.2 Defendant Harlequin Enterprises is the
24 world’s largest publisher of romance novels. Prior to 1983,
25 Harlequin Enterprises directly contracted with authors for the
26 publication of their works under the Harlequin (and related) imprints
27 using a standard agreement which Harlequin Enterprises signed as
28 the “Publisher.” (Am. Compl. ¶ 34).
2
Amici note that from 2008 to 2012, e‐book sales grew from $64 million annually to over
$3.0 billion annually—an increase of over 4,700 percent. Amici Curiae Br. at 5, Dkt. No. 51.
3
No. 13‐1753‐cv
1 Beginning in 1983, Harlequin Enterprises changed this
2 arrangement, ostensibly “for tax and related purposes.” (Id. ¶ 31). It
3 registered a subsidiary HEBV, a Dutch company, in Fribourg,
4 Switzerland. Thereafter, Harlequin Enterprises required authors to
5 enter into publishing agreements substantially similar to its previous
6 agreements, but with HEBV signing the agreements as the
7 “Publisher” and with Harlequin Enterprises included in the
8 agreements’ definition of a “related licensee.” (See id. ¶ 35).
9 Notwithstanding this change, Harlequin Enterprises continued to
10 draft, negotiate, and administer the publishing agreements, as well
11 as to edit, publish, and promote the authors’ novels. (See id. ¶¶ 3, 40,
12 41). HEBV, however, sent out royalty statements and payments to
13 the authors. (See id. ¶¶ 41, 42). Harlequin Enterprises advised
14 authors that the purpose of the change was to “rationalize business
15 procedures.” (Id. ¶ 35).
16 In 1994, Harlequin Enterprises registered HBSA, a Swiss
17 company, as the successor of HEBV, again “for tax and related
18 purposes.” (See Am. Compl. ¶ 31). Thereafter, HBSA signed the
19 agreements as the “Publisher” and Harlequin Enterprises continued
20 to be defined in the Publishing Agreements as a “related licensee.”
21 Harlequin Enterprises continued to publish, and promote the
22 authors’ novels while HBSA sent out royalty statements and
23 payments. (Id.¶ 36). Harlequin Enterprises advised authors that the
24 change to having HBSA sign as the “Publisher” was a name change
25 that “would not affect” them. (Id.).
26 Under the terms of the Publishing Agreements, the authors
27 granted to the “Publisher” on a “sole and exclusive basis all the
28 rights in and to [their Works] in any country throughout the world
29 under various imprints and trade names during the full term of
30 copyright.” (Id. ¶ 49 (brackets in original)). The Publishing
31 Agreements additionally provided that HEBV or HBSA as the
4
No. 13‐1753‐cv
1 Publisher had “the sole and exclusive right to execute, sell, license or
2 sublicense . . . rights subject to the sharing of net proceeds.” (Id.).
3 The Publishing Agreements also detailed how authors were to be
4 compensated in connection with the sales of various editions of their
5 works. Specifically, author royalties on U.S. sales of mass market
6 paperback and hardcover copies were based on a percentage of the
7 cover price.
8 Moreover, the Publishing Agreements contained two umbrella
9 clauses covering the potential sale, license, or distribution of the
10 authors’ works in other media. Under the “All Other Rights” clause,
11 the Publishing Agreements provided that the authors’ royalties
12 would be calculated as follows:
13 On all other rights exercised by Publisher or its Related
14 Licensees fifty percent (50%) of the Net Amount Received by
15 Publisher for the license or sale of said rights. The Net
16 Amount Received for the exercise, sale or license of said rights
17 by Publisher from a Related Licensee shall, in Publisher’s
18 estimate, be equivalent to the amount reasonably obtainable
19 by Publisher from an Unrelated Licensee for the license or sale
20 of the said rights.
21 (Id. ¶ 52). The Other Rights clause provided:
22 If Publisher licenses, sublicenses or sells to an Unrelated
23 Licensee any of the following rights to the Work anywhere in
24 the world, in any language, Author’s and Publisher’s share of
25 net amount received by Publisher for said license, sublicense
26 or sale shall be apportioned as follows . . .
27 [Author’s share] 50% [Publisher’s Share] 50%.
5
No. 13‐1753‐cv
1 (Am. Compl. ¶ 53 (brackets in original)). In addition, the Publishing
2 Agreements provided that the Publisher could “assign this
3 Agreement to any related legal entity,” and could “delegate any of
4 its editorial, administrative and/or other responsibilities pursuant to
5 this Agreement to its parent company or to an affiliate, subsidiary or
6 other related legal entity.” (Id.¶ 49). Consistent with this provision,
7 Harlequin Enterprises performed many of the responsibilities of the
8 Publisher under the agreements. (See, e.g., id.¶¶ 3, 39, 41‐48).
9 As the market for e‐books expanded, Harlequin Enterprises
10 sold and licensed e‐books and e‐book rights directly to consumers
11 on its website and to e‐book licensees such as Amazon. (Id. ¶ 55). In
12 2011, Harlequin Enterprises informed authors that it believed that
13 author royalties for e‐books were covered by the All Other Rights
14 clause in the Publishing Agreements and accordingly advised the
15 authors that their royalty payments would be calculated based on
16 the net amount received by Harlequin Switzerland from a license to
17 publish e‐books that Harlequin Switzerland purportedly granted to
18 Harlequin Enterprises. Harlequin Enterprises claimed that the net
19 amount received by Harlequin Switzerland was 6 percent to 8
20 percent of the cover price of the e‐books, and that, consequently, the
21 royalties owed to the authors were 50 percent of that amount, or 3
22 percent to 4 percent of the cover price of the e‐books. (Id. ¶ 56).
23 Plaintiffs commenced this putative class action seeking to
24 represent authors who entered into Publishing Agreements with
25 Harlequin Switzerland between 1990 and 2004. In their amended
26 complaint, plaintiffs asserted three claims for breach of contract
27 grounded in agency, assignment, and alter ego liability. The
28 common contention was that, under the Publishing Agreements,
29 Harlequin Enterprises rather than Harlequin Switzerland should be
30 recognized as the “Publisher” when calculating royalty payments.
31 (Id. ¶ 11). Under this reading, plaintiffs contended they are entitled
6
No. 13‐1753‐cv
1 to 50 percent of the amount received on e‐books by Harlequin
2 Enterprises (which is upwards of 50 percent of the cover price),
3 rather than the far lower 50 percent of the “Net Amount Received”
4 by Harlequin Switzerland. (Am. Compl. ¶¶ 6, 55).
5 In addition, the amended complaint asserted a claim for
6 breach of contract on the theory that the license fees paid to
7 Harlequin Switzerland did not comply with the“All Other Rights”
8 clause requiring that the net amount received from a related licensee
9 be equivalent to the “amount reasonably obtainable” from an
10 unrelated licensee. Finally, the amended complaint asserted a claim
11 for unjust enrichment against Harlequin Enterprises.
12 Defendants moved under Rule 12(b)(6) to dismiss the
13 amended complaint and the district court granted the motion. The
14 court held that the first three claims failed because the contractual
15 definition of “Publisher” under the Publishing Agreements was
16 binding, and therefore, plaintiffs’ theories of agency, assignment,
17 and alter ego could not recast the obligations in the contracts.
18 Harlequin, 2013 WL 1324093, at *2. The court dismissed the fourth
19 claim on the ground that the amended complaint failed to allege
20 sufficient facts supporting plaintiffs’ assertion that the licensing fees
21 Harlequin Enterprises paid to its subsidiaries were not equivalent to
22 “the amount reasonably obtainable from an Unrelated Licensee.” Id.
23 at *3. Finally, the district court held that plaintiffs’ contention that
24 they were entitled to a larger share of e‐book royalties fell within the
25 scope of a written contract (the Publishing Agreement) and therefore
26 precluded an unjust enrichment claim. Id. The district court entered
27 judgment in favor of the defendants and this appeal followed.
28 II. DISCUSSION
29 To survive a motion to dismiss under Rule 12(b)(6), a
30 complaint must allege sufficient facts which, taken as true, state a
7
No. 13‐1753‐cv
1 plausible claim for relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
2 555–56 (2007). We review de novo the dismissal of a complaint under
3 Rule 12(b)(6), accepting all factual allegations (but not legal
4 conclusions) as true and drawing all reasonable inferences in favor
5 of the plaintiffs. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); N. J.
6 Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d
7 109, 119 (2d Cir. 2013).
8 Plaintiffs contend that the district court erred in dismissing
9 their breach claims because, under principles of agency, assignment,
10 and alter ego, their amended complaint plausibly alleged that
11 Harlequin Enterprises was the “Publisher.” They also contend that
12 they plausibly alleged that the intra‐company licensing fees were not
13 “equivalent to the amount reasonably obtainable” from an unrelated
14 licensee.3 We consider these matters in turn.
15 Under New York law, which governs the Publishing
16 Agreements, the best evidence of what parties to a written
17 agreement intend is what they say in their writing. Greenfield v.
18 Philles Records, Inc., 98 N.Y.2d 562, 569 (2002). Consequently, a
19 written agreement that is complete, clear, and unambiguous must be
20 enforced according to its terms. Id.
21 A contract is unambiguous when the contractual language has
22 a definite and precise meaning about which there is no reasonable
23 basis for a difference of opinion. Law Debenture Trust Co. of N. Y. v.
24 Maverick Tube Corp., 595 F.3d 458, 467 (2d Cir. 2010). By contrast,
25 ambiguity exists where a contract’s term could objectively suggest
26 more than one meaning to one familiar with the customs and
27 terminology of the particular trade or business. See id. at 466; Fox
28 Film Corp. v. Springer, 273 N.Y. 434, 436 (1937). Whether a contract is
3
In their briefs, plaintiffs also challenged the district court’s dismissal of their unjust
enrichment claim. At oral argument, plaintiffs withdrew this claim.
8
No. 13‐1753‐cv
1 ambiguous is a question of law. See Bailey v. Fish & Neave, 8 N.Y.3d
2 523, 528 (2007); Greenfield, 98 N.Y.2d at 569.
3 Based on our review of the Publishing Agreements, we
4 conclude that plaintiffs’ first through third claims are not viable
5 because the Publishing Agreements unambiguously provide that
6 HEBV or HBSA is the “Publisher” and Harlequin Enterprises is a
7 “Related Licensee” for purposes of computing royalty payments.
8 The fact that Harlequin Switzerland may have delegated certain
9 publishing and administrative duties to Harlequin Enterprises does
10 not modify this relationship. The Publishing Agreements expressly
11 contemplate that the “Publisher” could assign or delegate
12 publishing duties “to any related legal entity,” including “to its
13 parent company or to an affiliate [or] subsidiary.” (See Am. Compl.
14 ¶ 49). These provisions are unambiguous and enforceable.
15 Plaintiffs contend that they have set forth sufficient facts
16 regarding the parties’ course of dealing tending to show that
17 Harlequin Enterprises was actually the Publisher. But New York
18 law is well settled that a written agreement that is complete and
19 unambiguous is to be interpreted without the aid of extrinsic
20 evidence and that industry practice may not be used to vary the
21 terms of such a contract. See Law Debenture Trust Co. of N. Y., 595
22 F.3d at 467‐48; Croce v. Kurnit, 737 F. 2d 229, 238 (2d Cir. 1984).
23 Plaintiffs rely on Nolan v. Sam Fox Pub. Co., Inc., 499 F.2d 1394
24 (2d Cir. 1974) for the proposition that, in keeping with the course of
25 dealings between the parties, this Court could supplant the
26 definition of Publisher in the Publishing Agreements. This reliance,
27 however, is misplaced. In Nolan, the district court interpreted the
28 word “Publisher” to cover its assignee where the named publisher in
29 the agreement at issue had been dissolved. See Nolan v. Williamson
30 Music, Inc., 300 F. Supp. 1311, 1319 (S.D.N.Y. 1969). Accepting the
9
No. 13‐1753‐cv
1 defendant’s interpretation of the contract, the court reasoned, would
2 have meant that only the dissolved publishing company would have
3 been liable for the payment of royalties due to the plaintiff. Id. To
4 avoid this impossible situation, the district court elected to define
5 “Publisher” with reference to another provision of the contract
6 which referred to the duties of the “Publisher, its successors and
7 assigns.” Id. In affirming, we observed: “Our construction of the
8 contract [did] not reform the agreement in any way, but [wa]s more
9 likely in keeping with the intentions of the parties.” Nolan, 499 F.2d
10 at 1399.
11 Here, however, the Publishing Agreements explicitly provide
12 for the allocation of royalty payments between the Publisher
13 (Harlequin Switzerland) and the authors where the Publisher
14 engages the services of a related licensee such as Harlequin
15 Enterprises. Substituting Harlequin Enterprises as the Publisher, as
16 urged by the plaintiffs, would, in effect, require redrafting
17 significant provisions of the contract while ignoring other express
18 ones.
19 Moreover, as the district court observed, plaintiffs’ theories of
20 agency, assignment, and alter ego are not, strictly speaking, theories
21 of contract interpretation, but rather theories of vicarious liability.
22 Such theories, however, cannot displace the express terms of the
23 Publishing Agreement. Consequently, we hold that the first three
24 claims were properly dismissed.
25 The fourth claim alleged that defendants breached the
26 Publishing Agreements because the licensing fees Harlequin
27 Enterprises paid to Harlequin Switzerland—the figure on which
28 plaintiffs’ royalties were based—were not “equivalent to the amount
29 reasonably obtainable . . . from an Unrelated Licensee.” The district
10
No. 13‐1753‐cv
1 court dismissed this claim on the ground that the factual allegations
2 supporting it were insufficient. We disagree.
3 As we have previously observed, Federal Rule of Civil
4 Procedure 8(a)(2) requires only a short and plain statement of the
5 claim showing that the pleader is entitled to relief, in order to give
6 the defendant fair notice of what the claim is and the grounds upon
7 which it rests. See Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 323
8 (2d Cir. 2011); see also Twombly, 550 U.S. at 555. Consequently, to
9 survive a motion under Rule 12(b)(6), a complaint does not need to
10 contain detailed or elaborate factual allegations, but only allegations
11 sufficient to raise an entitlement to relief above the speculative level.
12 See Ideal Steel Supply Corp., 652 F.3d at 323‐24.
13 The amended complaint identified the specific contractual
14 provision at issue, (Am. Compl. ¶ 81), and alleged how defendants
15 breached that provision: “[t]he claimed “license” from Harlequin
16 Switzerland to Harlequin Enterprises, in the amount of 6% to 8% of
17 the cover price of the works, is not “equivalent to the amount
18 reasonably obtainable by Publisher from an Unrelated Licensee for
19 the license or sale of the said rights.” (Id. ¶ 82). Further, the
20 amended complaint alleged that “[t]he amount reasonably
21 obtainable by a publisher from an unrelated licensee for the license
22 or sale of the said rights is, upon information and belief, much
23 higher than 6% to 8% of cover price and is at least 50% of net
24 receipts.” (Id. ¶ 83).
25 The amended complaint provided context for these
26 allegations, contending that after Harlequin Enterprises set up its
27 subsidiaries, ostensibly for tax purposes, it continued to control the
28 publication, marketing, and distribution of plaintiffs’ works. (See id.
29 ¶¶ 31, 35‐36, 38‐41, 45, 47, 48). Moreover, the amended complaint
30 went on to allege that these actions substantially lowered the
11
No. 13‐1753‐cv
1 plaintiffs’ royalties, despite Harlequin Enterprises’ assurances that
2 its inter‐affiliate licensing arrangements would not affect their rights.
3 (See id. ¶¶ 7‐8, 35‐36). These allegations, that the amount of
4 royalties they received were not equivalent to the amount
5 reasonably obtainable from an unrelated licensee, nudged plaintiffs’
6 claims across the line from conceivable to plausible. See Twombly,
7 550 U.S. at 570.
8 The defendants’ reliance on Astra Media Grp., LLC v. Clear
9 Channel Taxi Media, LLC, 414 F. App’x 334, 336 (2d Cir. 2011) is not to
10 the contrary. That case involved a predatory pricing claim, where
11 price information is more critical. Consequently, we found the price
12 allegations to be conclusory where “[plaintiff] provide[d] no facts to
13 support its contention that $170 is actually close to the standard
14 industry cost.” Id. Here, however, plaintiffs have provided a basis,
15 albeit “upon information and belief,” that defendants engaged in
16 self‐dealing because the industry standard is considerably higher
17 than the 6 to 8 percent of net receipts that Harlequin Enterprises
18 remits to its subsidiary Harlequin Switzerland (i.e. at least 50 percent
19 of net receipts). We have observed in the past that pleading on the
20 basis of information and belief may be appropriate under such
21 circumstances. See Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d
22 Cir. 2010) (noting the Twombly plausibility standard does not
23 prevent a plaintiff from pleading facts “upon information and
24 belief” where the facts are peculiarly within the control of the
25 defendant); see also Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008).
26 We reach this conclusion in a context where discovery had
27 apparently begun to adduce additional information supportive of
28 plaintiffs’ claim.4 In Ideal, we reasoned that Twombly would not
4
In their opposition to defendants’ motion to dismiss, plaintiffs cited a survey of
royalty rates paid by romance publishers. Harlequin, 12 Civ. 5558, Dkt. 22, at 23 (S.D.N.Y.).
At the motion hearing, plaintiffs also purported to have discovered a sublicense agreement
12
No. 13‐1753‐cv
1 require that a complaint be dismissed if evidence had already been
2 produced during discovery that would fill the perceived gaps in the
3 complaint because pleadings may be amended. 652 F.3d at 324‐25.
4 We underscore that Twombly does not impose a probability
5 requirement at the pleading stage. See Arista Records LLC, 604 F.3d at
6 120 (citing Twombly, 550 U.S. at 556). It simply requires factual
7 allegations sufficient to raise a reasonable expectation that discovery
8 is likely to generate evidence of liability. See id. For these reasons,
9 we conclude that the fourth claim should not have been dismissed.
10 III. CONCLUSION
11 For all the foregoing reasons, we AFFIRM the district court’s
12 dismissal of the first, second, and third claims. We REVERSE the
13 dismissal of the fourth claim, and we REMAND the case to the
14 district court for further proceedings consistent with this Opinion.
between Harlequin Enterprises and another subsidiary, Harlequin Digital Sales Corporation,
that showed a license rate of 40 percent of the cover price, significantly higher than the 6 to
8 percent license fee purportedly paid to Harlequin Switzerland. Joint App’x at 162.
13