NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 24 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: RICHARD L. PRIDDIS, No. 22-15457

Debtor, D.C. No. 2:21-cv-01053-JJT ______________________________

SONY MUSIC PUBLISHING (US) LLC, MEMORANDUM*

FKA Sony/ATV Music Publishing LLC, a Delaware limited liability company; COLGEMS-EMI MUSIC, INC., a Delaware corporation; COMBINE MUSIC CORPORATION, a Delaware corporation; EMI APRIL MUSIC, INC., a Connecticut corporation; EMI BLACKWOOD MUSIC, INC., a Connecticut corporation; EMI FEIST CATALOG, INC., a New York corporation; EMI ROBBINS CATALOG, INC., a New York corporation; EMI CONSORTIUM SONGS, INC., a New York corporation; EMI MILLER CATALOG, INC., a New York corporation; EMI U CATALOG, INC., a New York corporation; EMI UNART CATALOG, INC., a New York corporation; JOBETTE MUSIC COMPANY, INC., a Michigan corporation; SCREEN GEMS-EMI MUSIC, INC., a Delaware corporation;

STONE DIAMOND MUSIC

CORPORATION, a Michigan corporation,

Appellants,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.

RICHARD L. PRIDDIS,

Appellee.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Argued and Submitted December 7, 2022 Phoenix, Arizona

Before: WARDLAW and BUMATAY, Circuit Judges, and ZOUHARY,** District Judge. Dissent by Judge ZOUHARY.

Sony Music Publishing (US) LLC and 13 other music publishers

(collectively, Sony or Petitioning Creditors) appeal the bankruptcy court’s grant of

summary judgment in favor of debtor Richard L. Priddis. Sony filed a petition for

involuntary bankruptcy against Priddis to collect a $3 million judgment entered

pursuant to a settlement agreement. The bankruptcy court dismissed the case on

the grounds that the Petitioning Creditors failed to satisfy the numerosity

requirement for involuntary petitions prescribed by 11 U.S.C. § 303(b). The

district court affirmed.

A bankruptcy court’s decision to grant summary judgment is reviewed de

** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.

2 novo. In re Lane, 959 F.3d 1226, 1229 (9th Cir. 2020).1 In the context of

bankruptcy appeals, de novo review means “applying the same standards applied

by the district court, without deference to the district court.” Harkey v. Grobstein

(In re Point Ctr. Fin., Inc.), 890 F.3d 1188, 1191 (2018) (citation omitted).

Exercising jurisdiction under 28 U.S.C. §§ 158(d)(1) and 1291, we reverse.

The district court erred in holding that Sony failed to satisfy the numerosity

requirement. Section 303(b)(1) provides that, where a putative debtor has 12 or

more creditors, involuntary bankruptcy proceedings may be initiated against a

debtor only by three or more creditors each holding “noncontingent, undisputed

claims” in the amount of at least $16,750. 2 See 11 U.S.C. § 303(b)(1). Because

the parties do not dispute that Priddis has 12 or more creditors, the only question is

whether three or more of those creditors hold separate claims.

Here, each of the 14 Petitioning Creditors has a claim to the $3 million

judgment, and therefore the Creditors satisfy the numerosity requirement. A claim

is a “right to payment, whether or not such a right is reduced to judgment.” 11

1 The district court improperly applied the clearly erroneous standard to its review of the bankruptcy court’s grant of summary judgment. However, because we conduct an independent de novo review, this error does not affect our analysis. 2 The per claim dollar amount is adjusted by the Judicial Conference of the United States every three years. During 2020, the year this involuntary petition was filed, the adjusted dollar amount for § 303(b)(1) was $16,750. See Judicial Conference of the United States, Revision of Certain Dollar Amounts in the Bankruptcy Code Prescribed Under Section 104(a) of the Code, 84 F.R. 3488 (2019).

3 U.S.C. § 101(5)(A). Thus, under the text of § 303(b) and § 101(5), the Petitioning

Creditors have “noncontingent, undisputed claims” because the $3 million amount

is not in dispute, and, as counsel for Priddis admitted at oral argument, they each

have a “right to payment” of some portion of the judgment.

Moreover, their right to payment is individually enforceable because the

judgement is “easily divisible,” Richard A. Turner Co., Inc., 209 B.R. 177, 179

(Bankr. D. Mass. 1997), and the allocated portion is “traceable to each creditor.”

Huszti v. Huszti, 451 B.R. 717, 722 (E.D. Mich. 2011). Because merger into a

judgment does not alter debt obligations, Boynton v. Ball, 121 U.S. 457, 466

(1887), the court may “look[ ] behind the judgment to determine the nature of the

debt.” Turner, 209 B.R. at 180. The music publishers’ complaint in the

underlying suit contains a detailed list of each Petitioning Creditor’s ownership

interests in the copyrights Priddis infringed. The $3 million judgment can be

readily divided according to those established interests, as shown in Section 13 of

the petition for involuntary bankruptcy. See In re Mid-America Indus., Inc., 236

B.R. 640, 645 (Bankr. N.D. Ill. 1999) (finding that shares of a judgment were

separate claims based off interests alleged in a complaint).

Priddis and the dissent argue that this is not the kind of divisibility the courts

are looking for because this sharing arrangement is not necessarily tied to the

Petitioning Creditors’ original claims in the underlying lawsuit. Diss. 3. Priddis

4 further contends that the absence of a formal agreement of the distribution in

writing inhibits the judgment from being reliably divisible. We disagree. The

proposed division reflects the Petitioning Creditors’ original claims because they

stipulated to statutory damages in the underlying suit. Under the Copyright Act,

when a copyright owner elects statutory damages for infringement, they receive a

fixed amount according to their ownership interests “for all infringements involved

in the action.” 17 U.S.C. § 504(c)(1). The distribution of the judgment here

operates the same way it would have for any judgment in the original action: Each

Petitioning Creditor is entitled to a portion of the judgment based on its ownership

interests, and only that portion. See Manno v. Tenn. Produc. Ctr., Inc., 657 F.

Supp. 2d 425, 433 (S.D.N.Y. 2009). And because a copyright owner is only

entitled to recover up to the amount owed, see id., a written agreement is not

required to make the judgment readily divisible.

The bankruptcy court’s hypothetical also does not prove Sony failed to

satisfy the numerosity requirement. The bankruptcy court hypothesized that if

Priddis were to make a payment to one of the 14 Petitioning Creditors, the

judgment would not indicate how the payment should be allocated. But even if—

as the dissent emphasizes—the judgment is silent as to the apportionment, Diss. 4,

the list of copyright interests attached to the complaint makes clear what each

individual Creditor is owed in total. Moreover, Sony has clarified—in its brief and

5 at oral argument—that a single Petitioner would have the absolute right to collect

its proper share of damages. Because a “right to payment” means “nothing more

nor less than an enforceable obligation,” Johnson v. Home State Bank, 501 U.S. 78,

83 (1991) (citation omitted), an absolute right to collect indicates each Petitioning

Creditor has an individual claim.

REVERSED AND REMANDED.

6

FILED

FEB 24 2023

Sony Music Publishing (US) LLC, et al. v. Priddis, No. 22-15457

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ZOUHARY, District Judge, dissenting:

In 2016, 21 music publishers sued Priddis for copyright infringement. The

parties signed a settlement agreement, which “provided that: (1) [Priddis] would

execute and abide by licensing agreements moving forward; (2) [Priddis] would pay

$400,000 to plaintiffs’ counsel, a single payee; (3) if [Priddis] failed to make the

payments, the plaintiffs could refile the lawsuit; and (4) in the refiled lawsuit, the

plaintiffs could seek a judgment of $3,000,000.”

Priddis defaulted. Fourteen of the publishers (collectively, “Petitioning

Creditors”) sued and submitted the stipulated Judgment, which read: “Pursuant to

the Agreement of the parties . . . judgment is hereby entered in favor of the Plaintiffs

and against [Priddis] herein, for willful copyright infringement, in the amount of

$3,000,000.”

Petitioning Creditors then moved to subject Priddis to an involuntary Chapter

7 bankruptcy. Priddis moved for summary judgment based on Section 303(b) of the

Bankruptcy Code, which provides that involuntary bankruptcy proceedings may

only be initiated by three or more entities, each holding unsecured, noncontingent

claims of at least $16,750. The bankruptcy court granted the motion, holding that

the stipulated Judgment constituted a single, joint claim. Petitioning Creditors appealed to the district court, and the district court similarly found they failed to

meet the numerosity requirement.

Under Section 303(b)(1), an involuntary petition must be filed “by three or

more entities, each of which is . . . a holder of a claim against [a debtor] that is not

contingent as to liability or the subject of a bona fide dispute as to liability or

amount.” A “claim” is defined as a “right to payment, whether or not such right is

reduced to judgment.” 11 U.S.C. § 101(5)(A). The purpose of requiring at least

three creditors holding noncontingent claims “is to necessitate some joint effort

between creditors.” Huszti v. Huszti, 451 B.R. 717, 719 (E.D. Mich. 2011) (quoting

In re Iowa Coal Mining Co., Inc., 242 B.R. 661, 670 (Bankr. S.D. Iowa 1999)). “[I]t

is for just that reason that Congress has long required strict criteria for qualification

to file and for allowance of involuntary petitions.” Id. (quoting In re McMeekin, 18

B.R. 177, 178 (Bankr. D. Mass. 1982)).

As the majority sets forth, the sole question in this case is whether Petitioning

Creditors retained individual claims against Priddis after entering the settlement

agreement. On appeal, Petitioning Creditors assert the district court erred in finding

the stipulated Judgment merged their claims into a single, conjunctive claim. Their

reasoning is simple: each of them retained an individual “right to payment” under

11 U.S.C. § 101(5)(A) and the Judgment is “easily divisible” under copyright law.

I disagree -- for the following two reasons.

2 First, because the settlement amount “bears no obvious relationship to the

separate claims,” Huszti, 451 B.R. at 722, the district court correctly held that the

stipulated Judgment merged the Petitioning Creditors’ claims. The majority relies

on In re Richard A Turner Co., Inc., 209 B.R. 177 (Bankr. D. Mass. 1997) and In re

Mid-America Indus., Inc., 236 B.R. 640 (Bankr. N.D. Ill. 1999) for the proposition

that the merger of several claims into a judgment does not necessarily extinguish the

individual rights of each creditor. Agreed, but the facts of those cases were different

from this case. Each creditor, in a single judgment, had an award in a specified

amount. There were no settlement agreements, and the judgments were entered in

the full amount of the identified claims. Because there was no question as to the

number of creditors or the amount of their individual claims, the merger into a single

judgment had no effect on the underlying debt. Something we do not have. Here,

the $3 million agreed-upon Judgment -- derived from the settlement

agreement -- bears no relation to the actual or statutory damages stemming from the

copyright violations.

Second, nothing in the judgment indicates how the money is to be

split -- meaning it is not “easily divisible.” See Turner, 209 B.R. at 179. Petitioning

Creditors’ argument, at bottom, is that copyright law mandates the $3 million be

split up according to the proportion of each creditors’ claims. But the $3 million

figure is not representative of the statutory damages of neither the 21 publishers in

3 the initial suit nor the 14 Petitioning Creditors that initiated the involuntary

bankruptcy petition. Moreover, nothing in the Judgment indicates how the $3

million should be apportioned among them. For instance, the Judgment could have

outlined that “each party retains the rights to its individual claims for damages in the

amount of their pro rata share of this Judgment, based on the statutory damages for

each violation.” Instead, the judgment was silent.

If the Petitioning Creditors wished to reserve their individual rights to

payment, they could have easily done so by utilizing additional language in the

settlement agreement. They failed to do so. Retaining those rights to payment was

the duty of counsel in the initial suit -- not the district court, and certainly not this

panel.

Because the requirements of Section 303(b) are not met, I respectfully dissent.

4