Kesha's Management Team Emails Filed by Dr. Luke

FILED: NEW YORK COUNTY CLERK 02/21/2017 01:49 PM INDEX NO.
653118/2014
NYSCEF DOC. NO. 701 RECEIVED NYSCEF: 02/21/2017
SUPREME COURT FOR THE STATE OF NEW YORK

COUNTY OF NEW YORK
--------------------------------------------------------------------------x
LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ :
MONEY, INC., and PRESCRIPTION SONGS, LLC, : Index No. 653118/2014
:
Plaintiffs, : Judge Shirley Kornreich
:
-against- : Motion Seq. No. 27
:
KESHA ROSE SEBERT p/k/a KESHA, PEBE SEBERT, :
VECTOR MANAGEMENT, LLC, and JACK ROVNER, :
:
Defendants. :
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PLAINTIFFS SUR-REPLY IN FURTHER OPPOSITION TO

KESHA ROSE SEBERTS MOTION FOR LEAVE
TO AMEND HER FIRST AMENDED COUNTERCLAIMS
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FILED: NEW YORK COUNTY CLERK 02/21/2017 01:49 PM INDEX NO. 653118/2014
Kesha1 improperly raises for the first time new arguments and purported facts in her
Reply, which are not responsive to Plaintiffs Opposition. First, Kesha submits documents
allegedly demonstrating Plaintiffs abuse to prop up her proposed counterclaim for breach of
the covenant of good faith and fair dealing; the documents are intentionally misleading, show no
abuse, by Plaintiffs and in no way support her claims. Second, Kesha belatedly argues that the
New York choice-of-law clauses in the KMI Agreement and the Prescription Publishing
Agreement do not bar her claim under Californias Seven Year Rule due to a purported
employment policy in California. This argument is unsupported by the law or the facts.
I. The Emails Kesha Filed on Reply Do Not Substantiate Her False Factual Assertions
Keshas attempt to bolster her false claims of purported abuse with three emails falls so
flat that it demonstrates how far she will go to purposefully misrepresent the truth. These emails
do not remotely reflect any abuse by Plaintiffs, or any other type of behavior that could ever
justify voiding her contracts. When viewed in the context of other emails that Kesha failed to
provide the Court, it becomes crystal clear that Keshas accusations against Plaintiffs are false.
First, Kesha falsely contends that two emails (NYSCEF Doc. Nos. 688-689) reflect Dr.
Lukes criticism of Keshas weight and appearance despite the fact that she had been starving
herself on a juice cleanse. Reply at 9. The emails reflect no such thing. At most, they reflect a
purported concern by one of Keshas managers that Kesha overheard a private conversation
about Keshas diet. Kesha and her managers know full well that they are mischaracterizing this
conduct as abuse because Kesha, her managers, and others in Keshas life, frequently
discussed her weight and dieting practices and not in the most flattering of terms. For
1
Plaintiffs respectfully submit this sur-reply pursuant to the Courts Order dated February 16,
2017 (NYSCEF No. 698). Unless otherwise stated, the defined terms in this memorandum have
the same meaning as ascribed to them in Plaintiffs Opposition (NYSCEF No. 668).
1
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example, close in time to the above email, Keshas managers not Plaintiffs were discussing
putting Kesha on a meal plan and restricting her access to junk foodi.e., the very same
conduct Kesha now tries to falsely ascribe to Gottwald as abuse. Movit Aff., Ex. 24. In
another email, her managers suggest that Kesha return[] to rehab for a Tune up, airing
concerns about her weight. Id., Ex. 25. Kesha also fails to give the Court an email
demonstrating that Gottwald in fact complemented Kesha on her appearance when she voiced
concerns about it. Id., Ex. 26.
Second, Kesha falsely claims that a third email (NYSCEF Doc. No. 690) reflect[s] that
Dr. Luke made various threats toward Kesha in an attempt to get her to sing particular lyrics for
the song Crazy Kids. Reply at 9. This self-serving and false characterization intentionally
omits the highly relevant fact that Gottwald asked a prominent third-party writer to provide
alternative lyrics specifically to address Keshas concerns. See Movit Aff, Ex. 34.
In sum, the actual record shows that Keshas effort to paint Plaintiffs as abusive is a
damaging fiction and conceals what was really going on. It is particularly outrageous given that
Keshas own managers repeatedly called Keshas behavior crazy and abusive, going to far as
to call her nuts, mental and off her rocker. Id., Exs. 27-33.
II. The Agreements Choice-of-Law Provisions Bar Keshas Proposed Seven Year Rule
Claim
There is no merit to Keshas new argument that her proposed claim is valid because the
Agreements New York choice-of-law provisions should be voided under Californias Seven
Year Rule based upon Californias alleged public policy. As a threshold matter, Keshas Reply
misstates New Yorks standard for enforcement of choice-of-law provisions. To be clear, [i]t is
well-settled policy of the courts of [New York] to enforce contractual provisions for choice of
law. Boss v. Am. Express Fin. Advisors, Inc., 15 A.D3d 306, 307 (1st Dept 2005), affd, 6
2
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N.Y.3d 242 (2006). [T]he issue [must be] of such overriding concern to the public policy of
another jurisdiction as to override the intent of the parties and the interest of [New York] in
enforcing its own policies, including New Yorks strong policy of protecting its interest in
maintaining and fostering its undisputed status as the preeminent commercial and financial nerve
center of the Nation and the world. Marine Midland Bank, N.A. v. United Missouri Bank, N.A.,
223 A.D.2d 119, 123-24 (1st Dept 1996) (quotation omitted); accord Marsh USA v. Doerfler,
46 Misc.3d 1208[A], 1208[A] (Sup. Ct. N.Y. Cnty. 2015). As such, choice-of-law provisions
may only be set aside when application of the law of the chosen state would be contrary to a
fundamental policy of a state which has a materially greater interest than the chosen state.2
Rest. (2d) of Conflict of Laws 187 (2010) (emphasis added); accord Finucane v. Interior
Corp., 264 A.D.2d 618, 620 (1st Dept 1999).
Next, Kesha has not demonstrated and cannot demonstrate that California has a
materially greater interest in this dispute than New York. Kesha wholly ignores New Yorks
strong policy of maintaining preeminent status as a commercial center by predictably and
consistently applying New York choice-of-law clauses. New Yorks strong interest is
particularly applicable here, given that Kesha, represented by sophisticated entertainment
counsel practicing in the New York area, agreed upon New York choice of law repeatedly
when signing (1) the KMI Agreement, (2) two amendments to the KMI Agreement and (3) the
Prescription Publishing Agreement. Kesha also disregards the parties numerous New York
2
Kesha mistakenly relies on federal cases to claim that a choice-of-law clause can be defeated by
a violation of a fundamental public policy of any more-interested jurisdiction. Reply at 3. But
as recognized by the sole New York state court case cited by Kesha, Zomba Recording LLC v.
Williams, New York follows section 187(2) of the Rest. (2d) of Conflict of Laws, which requires
a conflict with a fundamental public policy of another jurisdiction with materially greater
interests in the dispute. 15 Misc. 3d 1118(A) (Sup. Ct. N.Y. Cnty. 2007) (emphasis added)
(enforcing New York choice-of-law clause to preclude claim under Seven Year Rule).
3
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contacts. Instead, Kesha presents a litany of purported California contacts, almost all of which
are without factual support,3 and that lack alone is enough to defeat her argument. Barry v.
Clermont York Assoc. LLC, 144 A.D.3d 607, 608 (1st Dept 2016) (motion for leave to amend
properly denied where the motion was unsupported by evidentiary proof). Even if these
purported contacts existed, they would be insufficient to establish California has a materially
greater interest than New York. Marsh USA Inc. v. Hamby, 28 Misc. 3d 1214(A), 1214(A)
(Sup. Ct. N.Y. Cnty. 2010) (California did not have a materially greater interest despite
allegations that defendants lived and worked in California, and that the entertainment business
is focused in California); Zomba Rec. LLC, 15 Misc. 3d 1118(A) at 1118(A) (grouping of
contacts analysis recommended application of New York law despite allegations that the party
seeking to avoid the choice of law provision was a California native and wrote, arranged,
recorded and produced almost all of his music in San Diego).
Further, Kesha has not cited and cannot cite a single authority stating that the Seven Year
Rule is a fundamental public policy of California.4 The one Seven Year Rule case Kesha does
cite, De Haviland v. Warner Bros. Pictures, 67 Cal. App. 2d 225 (1944), comes from an
3
This is unsurprising, as some of those claims are provably false based on publicly available
information. For example, Kesha claims that she wrote and recorded all 16 songs on Warrior in
California. Reply at 5. But even the liner notes from the album Warrior belie this statement.
Portions of at least two songs, Only Wanna Dance With You and Die Young, were recorded
in New York, and the album was mastered in New York. See Movit Aff, Ex. 35. Further,
portions of eight other songs on that album were recorded in Nashville, Tennessee. Id.
4
The authorities Kesha cites regarding Californias alleged public policy of employee mobility
concern an entirely different statute, Section 16600 of Californias Business and Professions
Code (not Californias Labor Code), which is intended to protect competition by prohibiting
enforcement of certain non-compete provisions that restrict an employees job options following
termination of an employment contract. See Reply at 6. At least one Court has recognized that
the policies underlying Section 16600 are immaterial to disputes over the application of the
Seven Year Rule. Radioactive, J.V. v. Manson, 153 F. Supp. 2d 462, 472 n.7 (S.D.N.Y. 2001)
(finding Section 16600 inapplicable because [th]ere is no non-compete clause in dispute .).
4
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intermediate-level appellate court, is not a choice-of-law case and nowhere states that the Seven
Year Rule is a fundamental public policy. It does not follow automatically that the Seven Year
Rule is a fundamental policy because all State Constitution[s], statutes, and judicial
decisions reflect a States public policy, and for that very reason, not every statute or opinion
can be read to express fundamental policy, [otherwise] choice of law principles would be
meaningless. Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66, 79 (1993). That is especially true
here, since in the over 70 years since De Haviland was decided, there has been a dearth of
caselaw interpreting the Seven Year Rule or analyzing its importance as a matter of California
policy. Radioactive, J.V., 153 F. Supp. 2d at 472 ([T]he overwhelming silence concerning
section 2855 is the strongest clue. (citation omitted)). To the contrary, New York courts
frequently emphasize New Yorks own strong interest in enforcing choice-of-law provisions, and
all that have considered the issue have enforced choice-of-law clauses in cases involving the
Seven Year Rule. See Opp. at 19 (collecting cases). There is no basis to conclude the Seven
Year Rule is a fundamental public policy, much less one of such overriding concern to the
public policy of another jurisdiction as to override the intent of the parties and the interest of
[New York] in enforcing its own policies. 5 Marine Midland Bank, N.A., 223 A.D.2d at 123-24.
CONCLUSION
Defendants motion for leave to amend her counterclaims simply regurgitates and
concocts further baseless arguments in a transparent and unavailing attempt to seek to avoid her
valid contracts. It should be denied in its entirety.
5
Keshas argument that New York has no analogous statute (Reply at 7) is also insufficient to
overcome the heavy burden of showing that enforcing the New York choice-of-law provisions
would violate Californias fundamental public policy. Cooney, 81 N.Y.2d at 79. Mere
differences in state legislative schemes are not enough to show that public policy forbids
enforcement of the parties choice of law. Id.
5
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New York, New York By: __/s/ Jeffrey M. Movit_________________________

Dated: February 21, 2017 MITCHELL SILBERBERG & KNUPP LLP
Christine Lepera (ctl@msk.com)
Jeffrey M. Movit (jmm@msk.com)
12 East 49th Street, 30th Floor
New York, New York 10017-1028
Tel.: (212) 509-3900; Fax: (212) 509-7239
Attorneys for Lukasz Gottwald p/k/a Dr. Luke, Kasz

Money, Inc. and Prescription Songs, LLC
6
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SUPREME COURT FOR THE STATE OF NEW YORK

COUNTY OF NEW YORK
-------------------------------------------------------------------------x
LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ :
MONEY, INC., and PRESCRIPTION SONGS, LLC, : Index No. 653118/2014
:
Plaintiffs, : Motion Seq. No. 27
:
-against- :
:
KESHA ROSE SEBERT p/k/a KESHA, :
:
Defendant. :
:
-------------------------------------------------------------------------x
SUPPLEMENTAL AFFIRMATION OF JEFFREY M. MOVIT IN SUPPORT OF

PLAINTIFFS SUR-REPLY IN FURTHER OPPOSITION TO KESHA ROSE SEBERTS
MOTION FOR LEAVE TO AMEND HER FIRST AMENDED COUNTERCLAIMS
JEFFREY M. MOVIT, an attorney duly admitted to practice law before the Courts of the State of
New York, affirms under penalty of perjury pursuant to CPLR 2106 as follows:
1. I am a partner, through my professional corporation, of the law firm of Mitchell
Silberberg & Knupp LLP, counsel to Plaintiffs Lukasz Gottwald, p/k/a Dr. Luke (Gottwald),
Kasz Money, Inc. (KMI) and Prescription Songs, LLC (Prescription Songs) (together,
Plaintiffs). I am admitted to practice law before the Courts of the State of New York.
2. I submit this Supplemental Affirmation in support of Plaintiffs Sur-Reply in
further opposition to the Motion of Defendant Kesha Rose Sebert (Kesha or Defendant) for
Leave to Amend Her First Amended Counterclaims.
A. Orders Granting Permission to File the Sur-Reply and Exhibits Thereto
3. Attached hereto as Exhibit 22 is a true and correct copy of this Courts
Compliance Conference Order dated February 16, 2017. This Order states, inter alia, that
1
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Gottwald may file said sur-reply of not more than five pages in response to evidence offered for
the first time in reply by Kesha in support of said motion, as well as to respond to Keshas public
policy argument that California Labor Code Section 2855(a) trumps the NY choice of law
provisions in the KMI and Prescription contracts.
4. Attached hereto as Exhibit 23 is a true and correct copy of this Courts Interim
Order dated February 17, 2017, which states, inter alia, that: Plaintiffs may submit all of the
proposed exhibits, that were emailed to the court on 2/16/17, as proposed exhibits to their sur-
reply papers. The court cannot make a finding of good cause for sealing them. 22 NYCRR
216.1(a). Exhibits 24 through 33 to this Affirmation are all documents that were emailed to the
Court by the undersigned on February 16, 2017, and referenced in the Interim Order. Email
addresses have been redacted from these Exhibits.
B. Emails Which Refute Defendants False Factual Assertions Regarding
Purported Abuse
5. Attached hereto as Exhibit 24 is a true and correct copy of an email chain dated
March 12, 2012 between Keshas personal assistant Tessa Schonder and her manager Monica
Cornia, discussing a meal plan for Kesha, which was produced by Defendants counsel in
discovery with the Bates numbers VECTOR0114088 through VECTOR0114090.
6. Attached hereto as Exhibit 25 is a true and correct copy of an email chain dated
July 9, 2015 between Ms. Schonder and Keshas manager Nicki Loranger, which was produced
by Defendants counsel in discovery with the Bates numbers VECTOR0199496 through
VECTOR0199497, stating, inter alia: must get her [i.e., Kesha] working out again, sticking to a
meal plan, discussing with her nutritionist the best ways to discuss weight gain or possibly her
returning to rehab for a Tune up.

2
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7. Attached hereto as Exhibit 26 is a true and correct copy of an email from
Gottwald to Kesha dated January 29, 2010, which was produced by Plaintiffs in discovery with
the Bates number PLTS016085. In the email, Gottwald stated, inter alia, that Kesha looked
radiant and beautiful and that Im proud of you and love you very much!
8. Attached hereto as Exhibit 27 is a true and correct copy of an email chain
between Keshas managers Jack Rovner and Ken Levitan dated November 26 and 27, 2009,
asserting complaints about Defendant, which was produced by Defendant in discovery with the
Bates numbers VECTOR0244754 through VECTOR0244756.
between Keshas managers Emily Burton, Ken Levitan, Jack Rovner and Nicki Loranger dated
May 31, 2010, which was produced by Defendant in discovery with the Bates number
VECTOR0236200. In the email chain, Ms. Burton refers to Defendant as, inter alia, abusive.
between, inter alia, Mr. Rovner and Mr. Levitan dated June 20, 2010, asserting complaints about
Defendant, which was produced by Defendant in discovery with the Bates number
VECTOR0239606.
between, inter alia, Mr. Rovner and Mr. Levitan dated July 5 and 6, 2010, asserting complaints
about Defendant, which was produced by Defendant in discovery with the Bates number
VECTOR0236655.
between Mr. Rovner and Mr. Levitan dated December 18, 2012, asserting complaints about
3
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Defendant, which was produced by Defendant in discovery with the Bates number
VECTOR0012496.
13. Attached hereto as Exhibit 32 is a true and correct copy of an email from Ms.
Loranger to Mr. Rovner dated June 17, 2016, asserting complaints about Defendant, which was
produced by Defendant in discovery with the Bates number VECTOR0192896.
14. Attached hereto as Exhibit 33 is true and correct copy of an email chain between
Mr. Rovner and Ms. Loranger dated July 6 and 7, 2016, asserting complaints about Defendant,
which was produced by Defendant in discovery with the Bates numbers VECTOR0003902
through VECTOR0003904.
C. Document Refuting Defendants False Assertions Regarding the Lyrics of the
Song Crazy Kids
between Gottwald and a third-party dated June 1, 2012.
D. Document Refuting Defendants Incorrect Arguments Regarding This
Actions California and New York Contacts
16. Attached hereto as Exhibit 35 is a true and correct copy of the album booklet for
Defendants album Warrior.
4
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DATED: New York, New York MITCHELL SILBERBERG & KNUPP LLP
February 21, 2017
By: /s/ Jeffrey M. Movit

Jeffrey M. Movit
12 East 49th Street, 30th Floor
New York, New York 10017-1028
Tel: (212) 509-3900; Fax: (212) 509-7239
Attorneys for Lukasz Gottwald p/k/a Dr.

Luke, Kasz Money, Inc. and Prescription
Songs, LLC
5
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FILED: NEW YORK COUNTY CLERK 02/21/2017
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Kesha's Management Team Emails Filed by Dr. Luke

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FILED: NEW YORK COUNTY CLERK 02/21/2017 01:49 PM INDEX NO.

SUPREME COURT FOR THE STATE OF NEW YORK

PLAINTIFFS SUR-REPLY IN FURTHER OPPOSITION TO

concerns about it. Id., Ex. 26.

Corp., 264 A.D.2d 618, 620 (1st Dept 1999).

strong policy of maintaining preeminent status as a commercial center by predictably and

particularly applicable here, given that Kesha, represented by sophisticated entertainment

is focused in California); Zomba Rec. LLC, 15 Misc. 3d 1118(A) at 1118(A) (grouping of

recorded and produced almost all of his music in San Diego).

valid contracts. It should be denied in its entirety.

New York, New York By: __/s/ Jeffrey M. Movit_________________________

Attorneys for Lukasz Gottwald p/k/a Dr. Luke, Kasz

SUPREME COURT FOR THE STATE OF NEW YORK

SUPPLEMENTAL AFFIRMATION OF JEFFREY M. MOVIT IN SUPPORT OF

1. I am a partner, through my professional corporation, of the law firm of Mitchell

2. I submit this Supplemental Affirmation in support of Plaintiffs Sur-Reply in

Leave to Amend Her First Amended Counterclaims.

A. Orders Granting Permission to File the Sur-Reply and Exhibits Thereto

3. Attached hereto as Exhibit 22 is a true and correct copy of this Courts

provisions in the KMI and Prescription contracts.

addresses have been redacted from these Exhibits.

B. Emails Which Refute Defendants False Factual Assertions Regarding

discovery with the Bates numbers VECTOR0114088 through VECTOR0114090.

by Defendants counsel in discovery with the Bates numbers VECTOR0199496 through

returning to rehab for a Tune up.

7. Attached hereto as Exhibit 26 is a true and correct copy of an email from

8. Attached hereto as Exhibit 27 is a true and correct copy of an email chain

Bates numbers VECTOR0244754 through VECTOR0244756.

9. Attached hereto as Exhibit 28 is a true and correct copy of an email chain

produced by Defendant in discovery with the Bates number VECTOR0192896.

C. Document Refuting Defendants False Assertions Regarding the Lyrics of the

Song Crazy Kids

between Gottwald and a third-party dated June 1, 2012.

D. Document Refuting Defendants Incorrect Arguments Regarding This

Actions California and New York Contacts

Defendants album Warrior.

By: /s/ Jeffrey M. Movit

Attorneys for Lukasz Gottwald p/k/a Dr.

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New York, New York By: /s/ Jeffrey M. Movit_______________________