U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Spinal Tap Survives Dismissal: 'England's Loudest Band Will Be Heard'

After a four-month wait, the Central District Court of California has finally issued its ruling on the motion to dismiss in the Spinal Tap v. Vivendi lawsuit. While the band's fraud claim has been dismissed, along with three of the four band members, the breach of contract claims and plaintiff Christopher Guest (a.k.a. Nigel Tufnel) still remain.

Fortunately for the band, the dismissal of both members and the fraud claim were without prejudice. Additionally, the members appear to have been dismissed on a technicality as their "loan-out" companies were not parties to the original contract, and therefore do not have standing as third party beneficiaries. Even though the case was dismissed, District Court Judge Dolly Gee left the door wide open for the members and the fraud claim to be amended back in properly.

Dismissals Without Prejudice Make the Legal World Go Round

The dismissed members of the band were basically invited by the court to amend their complaint so as to add the band members as individuals, rather than through their respective companies. Additionally, the court advised that the fraud claim could be re-plead, if the band could come up with more particularized facts that meet the heightened pleading standard. However, even the dismissed members have not lost their resolve for taking Vivendi to task.

In typical Derek Smalls style, Harry Shearer was quoted saying, in response to the order: "Vivendi thought we would be made to go away. Well, not today, not tomorrow, nor the next day. England's Loudest Band Will be Heard." The members have 21-days to file an amended complaint. And then, as you probably already expect, Vivendi will likely be filing another 12(b)(6) because they'll be able to, and that's what defense attorneys do.

What's This Case About? Merchandising! Merchandising!

As the great Yogurt once said, "Merchandising! Merchandising! Where the real money from the movie is made." For nearly two decades, the band made less than $200 total in both royalties and merchandising, which is simply unbelievable given the movie and music's popularity.

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