Wu v. Pearson Education, Inc.
2011 U.S. Dist. LEXIS 112308
S.D.N.Y.2011Background
- Wu, a professional photographer, sues Pearson for widespread copyright infringement in two actions (Wu I and Wu II).
- Wu I alleges Pearson exceeded print runs specified in licensing agreements without notifying photographers or bureaus.
- Wu II alleges Pearson printed Wu’s photos without a license and later obtained licenses without informing rights holders.
- Class certification sought for both actions; Wu I class would cover those whose works exceeded print runs or were published before licensing.
- Pearson moved to stay or dismiss; the court previously stayed some state-law claims and denied dismissal of copyright claims, and later denied reconsideration and addressed class issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Class certification for Wu I and Wu II | Wu seeks predominance and typicality | Pearson argues contract variations defeat predominance | Wu I certified with modifications; Wu II denied. |
| Reconsideration and arbitration carve-outs | Wu argues no new grounds to alter ruling | Pearson claims stay and arbitration issues were overlooked | Reconsideration denied. |
| Effect of forum/arbitration clauses on class | Wu contends carve-outs may not bar class | Pearson argues clauses limit class membership | Exclusion of members with incompatible arbitration/forum clauses from class. |
| Potential predominance issues from form contracts and parol evidence | Common proof can show print-run term applies broadly | State-law variations and forms require individualized inquiries | Predominance generally satisfied for print-run terms; some subclasses created for conditions precedent. |
| Statute of limitations and registration considerations | Discovery and class-wide proof potential | Individual inquiries may be needed | Statute-of-limitations and registration issues do not defeat certification at this stage. |
Key Cases Cited
- Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D. 67 (E.D.N.Y. 2004) (breach-interpretation form contracts suitable for class treatment)
- Napster, Inc. v. Napster, LLC, 2005 WL 1287611 (N.D. Cal. 2005) (class treatment viable despite work-by-work issues)
- Graham v. James, 144 F.3d 229 (2d Cir. 1998) (parol evidence and contract interpretation governed by state law)
- In re Currency Conversion Fee Antitrust Litig., 230 F.R.D. 303 (S.D.N.Y. 2004) (state-law variations and common issues in class actions)
- Wood v. Houghton Mifflin Harcourt Publ’g Co., 589 F. Supp. 2d 1230 (D. Colo. 2008) (print-run provisions often define scope of licensing agreements)