December 19, 2017

Milbank Victory on Behalf of BMI Against DOJ in Consent Decree Battle Affirmed


Antitrust victory impacts the more than $2 billion music performing rights industry

Milbank secured a significant victory on behalf of music performing rights licensing company BMI against the US Department of Justice in the Court of Appeals for the Second Circuit. The Second Circuit affirmed Judge Louis L. Stanton’s September 16, 2016 decision that the BMI consent decree allows for the practice of fractional licensing.

The decision, closely watched by the music industry and national press, follows a multi-year review of the BMI consent decree by the Department of Justice, including two rounds of public comment, after which the DOJ stated that BMI was prohibited from licensing co-written works only partially controlled by BMI.  The DOJ’s position was inconsistent with the BMI consent decree and has now been summarily rejected by the Second Circuit. 

“We are pleased that Judge Stanton and the Second Circuit agreed with our position that BMI is allowed to continue licensing all of the music it has rights for,” said Litigation partner and Chairman of Milbank, Scott A. Edelman. “This is a victory that impacts more than 750,000 songwriters, composers and music publishers in the music performing rights industry.”

The Milbank team was led by Litigation partners Scott A. Edelman and Atara Miller with Antitrust partner Fiona Schaeffer, special counsel Rachel Penski Fissell, and associate Eric Weiss.