NIRVANA INCORPORATED. Part I.
- An article by Rasmus Holmen for The Internet Nirvana Fan Club. January 2002.
In May of 2001, Courtney Love Cobain filed a lawsuit against Krist Novoselic and David Grohl to essentially obtain control of Kurt Cobain’s legacy and estate. ” The proper management and revitalization of the Kurt Cobain legacy is what is at issue; the individual Defendants’ current shares of song and recording royalties are not at issue. “ At the same time, Love wanted to get an injunction to prohibit Krist and Dave from releasing a Nirvana boxed set containing the song “You Know You’re Right”. Courtney wants to be fully involved with decisions about the band and contends that she was left out of the making of the box set (a piece that Krist and Dave had been working on for several years). In order to get control of Nirvana’s assets, Courtney seeks to dissolve a company named Nirvana, L.L.C. The limited liability company “owns and controls all the band’s assets, including unreleased Nirvana songs, images and demo tapes” (quote: The Seattle Times).
Courtney loosely stated her reasons for going forward with the lawsuit, in a July 2, 2001 post on the Hole.com discussion board; “I went into court not simply for the bogus’partnership’ (which gives Krist and Dave pretty much not much of anything), and remember these guys have a net worth of 10-15 million bucks a piece for their ‘contribution’. I went there because Universal [Music] is a mess, and I need to be able to protect and serve the legacy [of Kurt Cobain], and the songs …”
To give a more detailed insight into the case, here is a rundown of some of the most important complaints set forth by the Plaintiff (Courtney Love Cobain individually and on behalf of Frances Bean, the child she had with Kurt Cobain). Included with the allegations made by the Plaintiff are the answers by the Defendants (Krist Novoselic and David Grohl, representing Nirvana, L.L.C.). These answers were filed on December 12, 2001 in a Washington court. Everything from the Plaintiff’s side is written with a green font, and everything by the Defendants is written with a gray font. I have added several comments of my own, concerning the various allegations – these are written with this blue font color. In some places, I have also quoted from a statement that Krist Novoselic released on his website, in late June 2001.
Be aware that, since this article largely consists of quotes from court documents, there are a lot of legal terms and phrases that may be difficult to understand. I have tried to ”translate” and explain some of them as they occur. Also note that certain things may seem incomplete, while other issues are repeated several times.
First off, the Plaintiff’s case involves the following aspects;
· complaint for declaratory judgment. This meaning behind this is “A court decision in a civil case that tells the parties what their rights and responsibilities are, without awarding damages or ordering them to do anything. Unlike most court cases, where the plaintiff asks for damages or other court orders, the plaintiff in a declaratory judgment case simply wants the court to resolve an uncertainty so that it can avoid serious legal trouble in the future” The complaints that the Plaintiff want resolved are listed in part, later in this article.
· breach of fiduciary duty. The Plaintiff feels that the Defendants have violated their fiduciary duty in respect to Nirvana, L.L.C. by “failing to give her [the Plaintiff] opinions due consideration prior to making material decisions regarding the L.L.C. and its business.”
· oppression of minority shareholder. As the Defendants have (according to the Plaintiff) failed to live up to their end of the L.L.C. agreement, they have oppressed the Plaintiff, who is a minority shareholder in the company. The alleged threat made by the Defendants of destroying master recordings is one example of the oppression.
· breach of the duty of good faith and fair dealing, rescission and breach of contract. These points again deal with the lack of cooporation between the shareholders of Nirvana, L.L.C, and with the Defendants’ alleged breach of the L.L.C. contract.
· judicial dissolution. As mentioned before, the Plaintiff seeks to dissolve Nirvana, L.L.C.
· and preliminary injunction. An injunction is basically a court decision that is “intended to prevent harm”. “Injunctions are orders that one side refrain from or stop certain actions”.
In the case of a preliminary injunction, the injunction is only temporary, as the issue is to be considered later at a trial. So, in other words, an injunction is to prevent a party from doing something unwanted. In this case the Plaintiff wants (among other things) to currently prevent Krist and Dave from releasing the boxed set with “You Know You’re Right”, and from destroying or altering master recordings.
The following goes over most of the aspects of the Plaintiffs’ case. The various court documents are only quoted in part.
I. BACKGROUND FACTS.
9. After playing in several bands in Washington State in the 1980s, musician and songwriter Kurt Cobain formed a band in 1987 ("Nirvana"), whose members included, at various times, Aaron Burckhard, Chad Channing, Dale Crover, John Duncan, Jason Everman, David Foster, Lori Golston, David Grohl, Krist Novoselic, Danny Peters, and Pat Smear. Nirvana was conceived, created and sustained by Kurt Cobain. He gave the band its name, wrote the songs, played lead guitar and was lead singer.
9. Defendants admit that Cobain played lead guitar and was lead singer for Nirvana. Defendants deny the remaining allegations of paragraph 9. Defendants affirmatively state that Cobain and Novoselic formed Nirvana.
9. It should be noted that all of the above members did indeed play with the band Nirvana at some point. However, people such as John Duncan and Danny Peters only did one live performance with the band. Mr. Peters also appears on a studio recording of the song ”Sliver”.
10. In January 1989, the then-current members of the band entered into a recording agreement with the Seattle recording label Sub Pop Records, and shortly thereafter recorded the album "Bleach." "Bleach" received sufficient attention that the band began to tour both in the United States and, in the fall of 1989, in Europe. During this time the band experienced significant changes in membership, including the loss of Jason Everman and Chad Channing.
10. Defendants admit the allegations of Paragraph 10.
10. Concerning the loss of Chad Channing, Krist stated the following; ” In the Summer of 1990, for personal and musical reasons, Chad Channing and the band parted ways. It was an amicable split and the good intentions were reflected in Mr. Channing leaving the business with what all parties agreed was a fair settlement.”
11. On or about April 30, 1991, the then current members of the band signed a recording contract with Geffen. In the fall of 1991 the band released the album "Nevermind" and began to receive significantly increased publicity and subsequently, substantial record royalties, which Kurt Cobain shared equally with Grohl and Novoselic.
11. Defendants admit the allegations of Paragraph 11 except for the allegation that "Cobain shared record royalties equally with Grohl and Novoselic." Defendants affirmatively state that Grohl, Novoselic and Cobain equally shared record royalties.
11. In Krist’s statement, he writes; ” During this period Nirvana signed a recording contract with Geffen records and a publishing contract with EMI. The structure of these contracts was reflective of our own business agreement. Assets and liabilities were split equally. We also gained professional management by Mr. John Silva, then of Gold Mountain Entertainment. We obtained Mr. Lee Johnson of Voldahl - Wartelle accounting to represent our finances. Both of these individuals have extensive experience in the entertainment field. By taking the time to interview several prospects in each field (accountant, music publisher, record label, and personal manager) and making good decisions, Nirvana was able to create a business team that has remained almost wholly intact for over eleven years.”
12. "Nevermind" and its first single "Smells Like Teen Spirit" was an immediate worldwide sensation and fundamentally changed the course of rock music. "Nevermind" became the number one album in America and sold over six million copies in its first six months of release. In late 1991 the band toured with nationally renowned bands such as "Pearl Jam" and "Red Hot Chili Peppers." By the beginning of 1992, the band recorded in the MTV studios and played on the television program "Saturday Night Live." In January 1992 Nirvana began a world tour.
12. Defendants admit the factual allegations of Paragraph 12. Expressions of opinion such as "worldwide sensation" and "fundamentally changed the course of rock music," require no response and Defendants lack sufficient knowledge or information to form a belief as to their truth.
12. Here, it should be noted that the song ”Smells Like Teen Spirit” was authored by all three band members; ” That November [in 1991], ’Smells Like Teen Spirit’, a song that Cobain, Grohl and I [Krist] co-authored, began enjoying tremendous success on radio stations and music video channels throughout the world.”
14. Kurt Cobain wrote essentially all of Nirvana's music. In 1993, he reclaimed full control of the publishing rights and income for those songs, except for relatively small interests he gave to Grohl, Novoselic and others. The percentage he shared with Grohl and Novoselic amounted to less than 2% each. Former drummer Chad Channing, who did not play with Cobain on any of the Geffen albums, received almost 5%. Kurt Cobain retained approximately 91%.
14. Defendants admit Cobain wrote most of Nirvana's songs. Defendants deny the other allegations of Paragraph 14.
14. That Chad didn't play on a Geffen album is incorrect. Chad does a drum part on the Nevermind version of the song ’Polly’. Furthermore, Chad does the drumming for several of the songs on the Geffen album 'Incesticide' that collects material from assorted sessions. Krist wrote;
” Mr. Cobain proposed an amendment to the structure of our agreement with EMI Publishing to allow him a greater share of the revenue from the publishing of the Nirvana catalogue. As it had become quite clear by this time that Kurt was to be the primary writer in the group, Mr. Grohl and I both agreed to the amendment. All other aspects of our business partnership remained untouched.”
15. Thereafter, under pressure from Grohl and Novoselic and with the cooperation of John Silva and Danny Goldberg (the band's managers), Rosemary Carroll, the wife of Danny Goldberg and the attorney for Cobain, Grohl, Novoselic and Love, drafted an agreement that would have given Cobain, Novoselic and Grohl equal partnership interests in certain other assets associated with Nirvana. A copy of that draft was provided to Kurt Cobain, who upon viewing it, threw it into the trash. It was never signed by anyone.
15. Defendants deny the allegations of Paragraph 15.
16. Nirvana was not and could never be a partnership because it was the living manifestation of the creative vision, personal will and life force of a single unique individual. Although he chose to compensate other musicians with equal shares of certain Nirvana income, such as record royalties-which Plaintiffs do not contest-the artistic and commercial output of Nirvana was the creation of Kurt Cobain; and the general public and audience for Nirvana make no distinction between Nirvana and Kurt Cobain.
16. Defendants deny the allegations of Paragraph 16 and affirmatively state that the band Nirvana was a valid legal partnership among Grohl, Novoselic and Cobain.
17. For several months proceeding Kurt Cobain's death, the band was dormant. The breakup of the band-which had never been established as a legal entity-was anticipated and there was little chance that Cobain, Grohl and Novoselic would ever perform together again.
17. Defendants deny the allegations of Paragraph 17.
18. In April 1994, in Seattle, Washington, Kurt Cobain ended his life and the band dissipated. Intestate proceedings were commenced in King County, Washington. A guardian ad litem was appointed to represent the interests of Frances Bean Cobain.
18. Defendants admit that Cobain died in April 1994. Defendants Grohl and Novoselic admit the remaining allegations of Paragraph 18.
18. Ad litem is Latin for ”during the litigation.” The ”guardian ad litem” is a person appointed by a probate court to represent an estate during a lawsuit. A probate court is ”A specialized court or division of a state trial court that considers only cases concerning the distribution of deceased persons' estate.” The deceased person in this case is, of course, Kurt Cobain.
19. At that point, except for certain assets such as the record royalties which Kurt Cobain had agreed to share with Grohl, Novoselic and others, the assets of Nirvana (which practically speaking was the alter ego of Kurt Cobain), were indistinguishable from Kurt Cobain assets.
19. Defendants deny the allegations of Paragraph 19.
20. For a considerable period after the death of Kurt Cobain, Courtney Love was emotionally overwrought and distraught.
20. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 20, and therefore deny the same.
21. Rosemary Carroll was also incapacitated for a period of time; and Grohl and Novoselic hired Jill Berliner to represent them in their negotiations with Courtney Love, who continued to rely on Rosemary Carroll.
21. Defendants admit that Grohl and Novoselic hired Jill Berliner to represent them in conjunction with the formation of the L.L.C. Defendants are without knowledge or information sufficient to form a belief as to the truth of the other allegations of Paragraph 21, and therefore deny the same.
22. Courtney Love signed the L.L.C. agreement under the mistaken impression that if she did not sign it, Grohl and Novoselic could force a "buy out" of her community property or other interests in her husband's publishing rights, and acquire other rights, including rights to Nirvana recording royalties, Nirvana merchandising rights, Nirvana publicity rights and the rights to issue further Nirvana records such as a boxed set.
22. Defendants deny the allegations of Paragraph 22.
22. Concerning the partnership agreement, Krist writes; ”While Cobain’s death meant an end to the musical collaboration of Nirvana, the business issues were still at hand. According to Washington’s Uniform Partnership Act, Dave and I could have bought out our deceased partners share in Nirvana. How do you value an asset like Nirvana? Would it be fair to us? Would it be fair to the estate? We decided that the best course would be to negotiate a partnership agreement between us all. I refer to it as the Nirvana constitution. It lays down rules for us to function. The formula is simple. On administrative matters there needs to be a majority vote. In regards to assets, there needs to be a unanimous vote. Courtney controls any Kurt Cobain indicia, (That’s morally part of the estate anyway.). This was a fair deal to us all. The negotiations for this agreement continued for three years. I can’t recall the exact number but there were at least seven attorneys working on this agreement.”
23. Courtney Love was also shown incomplete and inaccurate financial records reflecting the band's purported assets. Relying on misrepresentations, and clear, bona fide mistakes as to both fact and law, and at a time when Courtney Love's judgment had been significantly impaired, as was known by Defendants and their agents, Courtney Love executed the L.L.C. agreement on or about September 24, 1997.
23. Defendants deny the allegations of Paragraph 23.
24. After Kurt Cobain's death, Novoselic formed a new band called "Sweet 75," that is managed by John Silva and Gary Gersh. Grohl formed a new band called "Foo Fighters," that is also managed by John Silva and Gary Gersh, as is the Nirvana, L.L.C.
24. Defendants admit the allegations of Paragraph 24.
26. Silva and Gersh manage essentially all aspects of the professional careers and individual affairs of Grohl and Novoselic, including publicity, contractual arrangements, trouble shooting, travel and financial arrangements. Consequently, Grohl and Novoselic are highly dependent on Silva and Gersh. The financial well being of Silva and Gersh is in turn largely dependent upon their continued relationship with Grohl and Novoselic.
26. Defendants admit that John Silva ("Silva") and Gary Gersh ("Gersh") are involved in managing the professional careers of Grohl and Novoselic. Defendants deny the other allegations of Paragraph 26.
27. The interests of Grohl, Novoselic, Silva, Gersh and Berliner in their own careers can reasonably be expected to influence their decisions regarding management of Nirvana recordings, and other matters that come before the L.L.C. Thus, as a result of using the same manager and attorney for the L.L.C. as for their own bands and individual careers, Grohl and Novoselic face-as do Silva, Gersh and Berliner-irreconcilable conflicts of interests on all matters brought before the L.L.C.
27. Defendants deny the allegations of Paragraph 27.
28. The parties have fundamentally different concepts of how to manage the musical and artistic legacy of Kurt Cobain, resulting in a stalemate of decision-making that threatens existing recordings; has stopped new releases from the Nirvana catalog; curtailed the marketing and promotion of material that has already been released; and has prevented the creation of a movie about Kurt Cobain's life:
a. Without objection from Grohl, Novoselic has asserted his ability to destroy existing Nirvana studio recordings.
b. Without Courtney Love's approval, Grohl and Novoselic have threatened to authorize the release of a boxed set of songs written by Kurt Cobain and recorded by Cobain, Novoselic and Grohl. This material includes "You Know You're Right," an unpublished, potential "hit" of extraordinary artistic and commercial value that was written by Kurt Cobain and recorded by Cobain, Novoselic and Grohl in January 1994. Under the copyright laws, Courtney Love has exclusive ownership of the right of publication for all unpublished songs of Kurt Cobain.
c. Novoselic and Grohl insist on final approval rights for any movie about the life of Kurt Cobain, or use of Cobain's name, likeness and image because they claim-under the very confusing L.L.C. agreement-that they control any material that combines indicia of Kurt Cobain with any indicia of Nirvana, themselves or anyone else. In contrast, Courtney Love has common-law rights to the life story of Kurt Cobain and a statutory right to exclusive ownership of his name, likeness and image.
28. Defendants deny the allegations of Paragraph 28.
29. Given the parties' recognized inability to exchange ideas on how to maximize the artistic and economic value of the legacy (or even meaningfully discuss the management of alleged L.L.C. assets), it is no longer practicable to carry on the essential purpose of the L.L.C. in conformity with the consultation, fiduciary, and other requirements of the L.L.C. agreement.
29. Defendants deny the allegations of Paragraph 29.
30. As a result, the legacy is languishing and Universal has de facto control of most Nirvana music and exploits the Nirvana legacy for its own purposes.
30. Defendants deny the allegations of Paragraph 30.
31. This situation is harmful to the best interests of the family of Kurt Cobain, all former band members, including Grohl and Novoselic and Nirvana fans throughout the world.
31. Defendants deny the allegations of Paragraph 31.
32. To remedy this unfortunate and unacceptable situation, the L.L.C. should be terminated and responsibility for the management of the Cobain legacy should be centralized within his family, who already control his life story, name, likeness and image and the songs he wrote, which are the sina qua non of Nirvana.
32. Defendants deny the allegations of Paragraph 32.
32. The term ”sina qua non” basically means ”a necessity”. So, the above sentence means that the essense, and most important aspects of Nirvana, are Kurt’s life story, name, likeness and image and the songs he wrote.
II. CLAIM FOR RELIEF.
II. I have only quoted some of the segments in this section. It is basically concerned with the company Nirvana L.L.C. that Courtney seeks to dissolve, and goes over the L.L.C. agreement and a contract made between the parties. The following explains why the L.L.C. should be terminated. It also goes over the Defendants’ failing to consult the Plaintiff with important decisions in the L.L.C.
A. Declaratory Judgment.
36. Courtney Love requests that this Court declare that the L.L.C. was not properly formed, or that the L.L.C. agreement is rescinded, void, voidable, terminated or unenforceable, on the grounds of misrepresentation, mistake, frustration of purpose, illusory promise, estoppel, lack of consideration, failure of consideration, indefinite terms, failure of mutual assent, lack of capacity of a party, breach of the duty of good faith and fair dealing, and undue influence. At the time of Kurt Cobain's death, the band was not a partnership either legally or artistically. Afterwards, both Courtney Love and her attorney were for a time incapacitated. The L.L.C. should not be enforced as a successor entity to a non-existent partnership. The L.L.C. should also be terminated because the consultation mechanism in the L.L.C. agreement is so indefinite that the parties failed to reach a meeting of the minds regarding consultation; or in the alternative, Grohl and Novoselic's promises with respect to consultation were illusory. The failures of consultation have substantially frustrated a principal purpose of the L.L.C., which was a basic assumption on which the L.L.C. was formed. The failures of consultation also constitute a lack or failure of consideration.
36. The first sentence of Paragraph 36, being a plea to the court, calls for no response from Defendants and is therefore denied. Defendants deny the other allegations of Paragraph 36.
B. Breach of Fiduciary Duty.
39. Despite the foregoing fiduciary duties, more specifically set forth at RCW 23B.08.300, Grohl and Novoselic and their managers or designated representatives breached their duty of good faith and failed to act with the care that an ordinary prudent person in a like position would have exercised under similar circumstances, and conducted themselves in a manner that was not reasonably in the best interest of the L.L.C., particularly as a result of their conflicts of interest and by their failure to consult meaningfully and in good faith with Courtney Love. Grohl and Novoselic also failed to recuse themselves while voting on L.L.C. matters even though their conflicts of interest were of such financial significance that they would reasonably be expected to exert an influence on their judgment. Such conflicts of interest include Grohl and Novoselic's employment of John Silva and Gary Gersh as managers for their new bands at the same time John Silva and Gary Gersh managed the L.L.C.
39. Defendants deny the allegations of Paragraph 39.
39. The RCW 23B.08.300 law concerns general standards for directors and reads as follows:
(1) A director shall discharge the duties of a director, including duties as member of a committee:
(a) In good faith;
(b) With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and
(c) In a manner the director reasonably believes to be in the best interests of the corporation.
(2) In discharging the duties of a director, a director is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by:
(a) One or more officers or employees of the corporation whom the director reasonably believes to be reliable and competent in the matters presented;
(b) Legal counsel, public accountants, or other persons as to matters the director reasonably believes are within the person's professional or expert competence; or
(c) A committee of the board of directors of which the director is not a member if the director reasonably believes the committee merits confidence.
(3) A director is not acting in good faith if the director has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (2) of this section unwarranted.
(4) A director is not liable for any action taken as a director, or any failure to take any action, if the director performed the duties of the director's office in compliance with this section.
40. Grohl and Novoselic, and each of their managers and designated representatives, bound themselves to certain disclosures and consultations pursuant to 7.2 of the L.L.C. agreement. Pursuant to such paragraph, Grohl and Novoselic agreed to give "due consideration" and "serious consideration" to the viewpoints of each other manager of the L.L.C., designated representative or member of the L.L.C., including Courtney Love, "with respect to material LLC decisions." Furthermore, "no Manager's or Designated Representative's opinion shall be disregarded and each shall be duly considered, weighed and understood prior to any vote being finalized." Nevertheless, Grohl and Novoselic and each of their managers and designated representatives breached these provisions by failing to consult with Courtney Love, and by failing to give her opinions due consideration prior to making material decisions regarding the L.L.C. and its business, and by disregarding such opinions.
40. The L.L.C. Agreement speaks for itself. Defendants deny the factual allegations of Paragraph 40.
42. Courtney Love has been threatened with the destruction of certain masters or demo tapes in direct contravention of the conservation of such materials as reflected in the business purpose clause of the L.L.C. agreement. Consequently, Grohl and Novoselic breached their fiduciary duties to Courtney Love.
42. Defendants deny the allegations of Paragraph 42.
42. According to Miss Love, Krist Novoselic once threatened that he would ”throw Nirvana tapes off a bridge” in a heat of passion. Naturally, Love opposes this and the above quote states that such an act would be a breach of their fiduciary duty, and violate a clause in the L.L.C. contract. As for the destruction of Nirvana master tapes – Krist commented as follows; ”Regarding Ms. Love’s assertion that I threatened to erase Nirvana master tapes, I can only say that my words were taken out of context as a means of attempting to distort my meaning for the purpose of a more potentially convincing legal brief. After listening to hours and hours of recordings for the box set project, I determined that there were some outtakes that sounded really bad. In this day and age of limited copyright protection in cyberspace, I was afraid that these recordings could leak out of our organization and hit the World Wide Web. I told Courtney that I felt we should erase some of these tapes because they are redundant and a poor representation of the group. Having worked so closely with Kurt Cobain, I know that he would feel the same as we occasionally practiced this while he was alive. Kurt had a very high level of discretion in regards to art. Artists do this, it’s no big deal. I would never threaten Courtney with destroying tapes. I asked her about it. Per our partnership agreement, issues regarding assets must have a unanimous vote.”
C. Oppression of Minority Shareholder.
45. Courtney Love holds a minority interest in the Nirvana, L.L.C and is effectively a minority shareholder. As a result of all wrongful conduct described herein, Grohl and Novoselic violated the reasonable expectations of Courtney Love when she entered into the L.L.C. agreement. Furthermore, Grohl and Novoselic have engaged in burdensome, harsh and wrongful conduct reflecting a lack of probity and fair dealing, to the prejudice of Courtney Love. Grohl and Novoselic are treating the L.L.C. as an alter ego whose actions are determined by their decisions alone, without any consultation with Courtney Love. Such conduct is a significant departure from the standards of fair dealing, and a violation of the expectation of fairness, on which every shareholder depends when entrusting assets to a limited liability company.
45. Defendants deny the allegations of Paragraph 45.
E. Judicial Dissolution Under RCW 25.15.275.
54. Courtney Love entered into the L.L.C. agreement on the basis of misrepresentations of both fact and law and mistakes of both fact and law. These mistakes were clear and bona fide and formed an essential basis of the bargain between the parties. Grohl and Novoselic have abandoned the consultation and decision-making processes set forth in the L.L.C. agreement and have transformed the L.L.C. into a vehicle for the pursuit of their own interests, in direct contravention of the very purpose of the L.L.C. Moreover, Grohl and Novoselic have failed to account for alleged L.L.C. assets and have failed to render an inventory of such assets to Courtney Love. Under such circumstances, it is impossible for the business of the L.L.C. to be effectively and fairly conducted in the interest of all its members.
54. Defendants deny the allegations of Paragraph 54.
54. The RCW 25.15.275 law concerns Judicial dissolution and reads as follows; On application by or for a member or manager the superior courts may decree dissolution of a limited liability company whenever: (1) It is not reasonably practicable to carry on the business in conformity with a limited liability company agreement; or (2) other circumstances render dissolution equitable.
55. In addition, the parties possess fundamentally different conceptions of how to manage the musical and artistic legacy of Kurt Cobain. Given the parties' demonstrated inability to exchange ideas on how to maximize the artistic and economic value of the legacy (or even meaningfully discuss the management of alleged L.L.C. assets), it is no longer practicable to carry on the essential purpose of the L.L.C. in conformity with the consultation, fiduciary, and other requirements of the L.L.C. agreement. Accordingly, judicial dissolution is warranted under RCW 25.15.275.
55. Defendants deny the allegations of Paragraph 55.
55. As for the L.L.C. agreement, Krist wrote this; ”The Nirvana L.L.C. agreement provides Ms. Love with more than adequate control over the assets of her husband’s estate and, even, the lion’s share of profits (given her increased income from Mr. Cobain’s publishing catalogue). The L.L.C. affords complete respect for Ms. Love’s role as my ex-partner’s widow and has never made any claim over anything that would not be a collective asset of the band. Everything that Mr. Cobain had is now in her hands.”
G. Preliminary Injunction.
62. On or about April 30, 1991, the band members entered into a contract with Geffen. This agreement had been modified numerous times both before and after Kurt Cobain's death. Pursuant to an amendment dated July 2, 1996, Grohl, Novoselic and the Estate of Kurt Cobain agreed to deliver to Geffen a boxed set of Nirvana recordings by no later than June 2001. This amended agreement is confusingly drafted and requires the parties to further negotiate to reach an agreement with respect to certain advances and record royalties applicable to this boxed set as well as the contents of the set.
62. Defendants admit the allegations of the first three sentences of Paragraph 62. Defendants deny the other allegations of Paragraph 62.
63. As a result of the deadlock experienced by the L.L.C., the L.L.C. has not agreed on the contents of the boxed set or on any of the terms and conditions for its delivery. If the amended agreement is enforced, Universal, the assignee of Geffen, may assert certain remedies that would be harmful to the Kurt Cobain legacy. Consequently, Courtney Love and Frances Bean Cobain request an equitable stay of enforcement of any alleged contractual rights that Universal may have with respect to the delivery of a boxed set, until such time as the rights and obligations of the other parties in this case are judicially determined.
63. Defendants deny the allegations of Paragraph 63.
III. PRAYER FOR RELIEF.
III. Basically, the following states the essense of the lawsuit, and the reasoning behind it. The following points are thus essentially the things that the Plaintiff hope to achieve by going to court.
1. Courtney Love and Frances Bean Cobain request that the Court enter a declaratory judgment in her favor and against Defendants Novoselic, Grohl and the L.L.C. as set forth in paragraph 36 above, including all necessary or proper ancillary relief, including without limitation an award of reasonable attorneys' fees and costs pursuant to the L.L.C. agreement and statute, and distribution of all former L.L.C. assets to Courtney Love and Frances Bean Cobain, except for the one-third share of record royalties previously given to Grohl and Novoselic, respectively, by Kurt Cobain.
2. In the alternative, Courtney Love and Frances Bean Cobain request that this Court enter judgment in her favor against Defendants Novoselic, Grohl and the L.L.C. by rescinding the L.L.C. agreement, or finding and concluding that the agreement is void, voidable, terminated or unenforceable and awarding Courtney Love and Frances Bean Cobain relief as specifically described in paragraph 36 above, including an award of reasonable attorneys' fees and costs pursuant to the L.L.C. agreement and statute, with distribution of all former L.L.C. assets to Courtney Love and Frances Bean Cobain, except for the one-third share of record royalties previously given to Grohl and Novoselic, respectively, by Kurt Cobain.
3. In the further alternative, to enter judgment in favor of Courtney Love and Frances Bean Cobain and against Defendants Novoselic, Grohl and the L.L.C. for breach of contract and tortious conduct resulting in damages to Courtney Love and Frances Bean Cobain in the amounts proved at trial, along with an award of reasonable attorneys' fees and costs pursuant to the L.L.C. agreement and statute, with distribution of all former L.L.C. assets to Courtney Love and Frances Bean Cobain, except for the one-third share of record royalties previously given to Grohl and Novoselic, respectively, by Kurt Cobain.
4. Or in the final alternative, to judicially dissolve the L.L.C. and enter judgment in favor of Courtney Love and Frances Bean Cobain and against Defendants, together with an award to Courtney Love and Frances Bean Cobain of reasonable attorneys' fees and costs pursuant to the L.L.C. agreement and statute, with distribution of all former L.L.C. assets to Courtney Love and Frances Bean Cobain, except for the one-third share of record royalties previously given to Grohl and Novoselic, respectively, by Kurt Cobain.
5. Courtney Love and Frances Bean Cobain respectfully request that this Court enter a preliminary injunction restraining Grohl, Novoselic and all other persons from destroying, degrading, exploiting, publishing, selling, leasing, encumbering, sequestering, altering, modifying, adding to or subtracting from any of the recordings of Kurt Cobain or Nirvana, until further order of the Court. Courtney Love and Frances Bean Cobain further request that the Court preliminarily enjoin such parties from the sale of all, or substantially all, of the purported assets of the L.L.C.; from the sale, exploitation, creation or modification of any rights with respect to such recordings; from any other transaction not in the usual course of business; from changing the physical location of the recordings; from publishing, exploiting, or interfering with Courtney Love's and Frances Bean Cobain's plenary rights to the life-story or name, likeness or image of Kurt Cobain and/or Nirvana; or from entering into or performing any contract or arrangement to directly or indirectly accomplish the same; until further order of the Court.
6. Courtney Love and Frances Bean Cobain additionally request that the Court preliminarily enjoin Universal, and any of its parent, subsidiary, affiliated, predecessor, or successor entities from taking any action to enforce the agreement with Geffen, dated April 30, 1991, as amended, with respect to the delivery of a boxed set, the negotiation of future terms relating to such boxed set (including advances and record royalties), and any remedies thereto, until such time as the Court enters an interlocutory order or final judgment respecting same. Courtney Love and Frances Bean Cobain request reasonable attorneys' fees, expenses, and costs incurred with respect to any remedy or claim brought pursuant to RCW 63.60.010 et seq.
7. Courtney Love and Frances Bean Cobain request such further and additional relief as the Court deems just and equitable.
Here are parts of the Motion for Preliminary Injunction that the Plaintiff filed:
Courtney Love Cobain ("Courtney Love") and Frances Bean Cobain, the minor child of Courtney Love and Kurt Cobain, move the Court for a preliminary injunction against Defendants. Plaintiffs request that the status quo ante be maintained by all parties to the litigation, and all parties having actual notice of the Court's Order granting Plaintiffs' motion for preliminary injunction, so that the last, actual, peaceable, non-contested conditions which preceded the controversy regarding the management of Nirvana, L.L.C. (the "L.L.C."), and alleged L.L.C. assets, can be maintained until this Court renders interlocutory order or final judgment determining the rights and obligations of the parties in and to the Kurt Cobain legacy.
Plaintiffs request that the Court preliminarily restrain Defendants David Grohl ("Grohl"), Krist Novoselic ("Novoselic"), the L.L.C., and Universal Music Group. Inc. ("Universal") and all other persons acting in concert with them from destroying, degrading, sequestering, altering, modifying, adding to or subtracting from any of the recordings of Kurt Cobain or Nirvana, until further order of the Court.
Plaintiffs additionally request that the Court preliminarily enjoin Novoselic, Grohl, the L.L.C., and Universal, and its parent, subsidiary, affiliated, predecessor, or successor entities from taking any action to perform or enforce the agreement with The David Geffen Company ("Geffen"), dated April 30, 1991, as amended (the "Geffen Recording Contract"), with respect to the delivery of a "Boxed Set" of Nirvana or Kurt Cobain recordings by June 30, 2001; from the negotiation of future terms relating to such "Boxed Set" (including advances and record royalties), from exploiting, publishing, selling, leasing or encumbering any Kurt Cobain or Nirvana recordings; and from the pursuit of any remedies for non-delivery of the "Boxed Set," including but not limited to release of a Boxed Set without the song, "You Know You're Right," until such time as the Court enters interlocutory order or final judgment respecting same.
Plaintiffs further request that the Court preliminarily enjoin all such persons from the sale of all, or substantially all, of the purported assets of the L.L.C.; from the sale, exploitation, creation or modification of any rights with respect to such recordings; from any other transaction not in the usual course of business; from changing the physical location of the recordings; from publishing, exploiting, or interfering with Courtney Love's and Frances Bean Cobain's plenary rights to the life-story, or name, likeness or image of Kurt Cobain and/or Nirvana; and from entering into or performing any contract or arrangement to directly or indirectly accomplish the foregoing acts; until further order of the Court.
Plaintiffs request that pending a hearing and determination of this action, all time limits and delivery dates set forth in the Geffen Recording Contract, as amended, be tolled and extended to provide sufficient time to permit Plaintiffs any related entity to comply with the obligations governed by said time limits, specifically, but not limited to, the time to deliver the "Boxed Set" under the Geffen Recording Contract.
Plaintiffs request reasonable attorneys' fees, expenses, and costs incurred with respect to any remedy or claim brought pursuant to Washington's Personality Rights Act, RCW 63.60.010 et seq.
In June 2001, ”Judge Robert H. Alsdorf of the Superior Court of Washington for King County ruled in favor of Love's request for a preliminary injunction, which also seeks to bar surviving Nirvana members Dave Grohl and Krist Novoselic from transacting any business on behalf of the band, effectively dissolving Nirvana L.L.C., the company that consists of Love (represented by a personal attorney), Grohl and Novoselic. The partnership had been formed in 1997 to manage the affairs of Nirvana.” (quote: Rolling Stone Magazine). The injunction thus halted the release of the Nirvana boxed set and the song ”You Know You’re Right”.
The June 11 2001 injunction by Judge Robert H. Alsdorf reads as follows:
1. Plaintiffs' Motion is GRANTED IN PART, as follows;
2. Plaintiffs Love and Cobain, and defendants Grohl, Novoselic and Nirvana, L.L.C., and Universal Music Group, Inc., together with the officers, agents, servants, employees and attorneys of each, and the subsidiaries, successors, assigns and affiliates of each, and all other persons and entities in active concert and participation with any of the above-named persons and entities who receive actual notice of this Order, are enjoined from destroying, degrading, altering, modifying, adding to or subtracting from any of the recordings of Kurt Cobain or Nirvana until further order of this Court;
3. Defendants Grohl, Novoselic and Nirvana, L.L.C. are specifically prohibited from releasing to defendants Geffen/Universal or any other person or entity, and from otherwise publishing, the song "You Know You're Right" without either the written consent of plaintiffs or further Court Order;
4. Plaintiffs shall file a bond in the sum of $100,000 for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained;
5. This Order takes effect immediately and shall remain in effect until modified, amended or vacated by further Order of this Court, provided that, if the foregoing bond is not posted by noon on Friday, June 15, 2001, this Court may upon Motion of any party dissolve this Order.
IT IS SO ORDERED this 11th day of June, 2001.
In the underlying ruling, the judge made the following conclusion:
On the present record, Courtney Love has the clear contractual power to prevent release of previously unreleased recordings of Kurt Cobain without her consent. An injunction will issue to prevent the irreparable injury that would flow if Grohl or Novoselic deliver or otherwise release previously unreleased masters to Geffen/Universal without her consent, including specifically any recording by Kurt Cobain of "You Know You're Right."
There is no need to enter an injunction against Geffen/Universal at this time with regard to the Boxed Set. There is no showing of wrongful acts in any negotiations over the Boxed Set, and no showing that they have possession of the disputed Cobain recording as to which an injunction might properly issue to prevent premature unauthorized release.
In the absence of evidence establishing the contrary, this Court presumes that both sides will negotiate in good faith about the inclusion of masters in the Boxed Set.
In other words, for now, the ruling means that Krist and Dave have temporarily been prevented from solely releasing a Nirvana boxed set containing the song “You Know You’re Right”. They have also been prohibited from destroying or altering Nirvana master recordings, and other things.
The legal documents that this article uses extensive quotes from were provided generously by Mr. Kelly Corr, attorney for Mr. Novoselic and Mr. Grohl. Documents were also provided generously by O. Yale Lewis, attorney for Miss Courtney Love. Also thanks to Christy A. Weaver and Sheila Romanovich for their assistance. The article also quotes documents from the King County Superior Court in Seattle, Washington, as well as various articles. Part II of this article (coming soon) deals with the Countersuit, launched by Mr. Novoselic and Mr. Grohl.