CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO.

INDEX NO. UNASSIGNED

NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2024

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

In the Matter of the Application of, FROZEN Index No.

MOMENTS, LLC,

Petitioner,

For an Order pursuant to Section 3102(c) of the Civil VERIFIED PETITION

Practice Law and Rules to compel pre-action disclosure
from:

UMG RECORDINGS, INC, and SPOTIFY USA INC.,

Respondents.

Petitioner, Frozen Moments, LLC (“Petitioner” or “Frozen Moments”), by and through its

undersigned attorneys, respectfully petitions the Court, pursuant to New York Civil Practice Law

and Rule (“CPLR”) 3102(c), for an Order granting limited pre-action disclosure from Respondents

UMG Recordings, Inc. (“UMG”) and Spotify USA Inc. (“Spotify”) and directing the preservation

of relevant evidence in the possession, custody, or control of UMG.

NATURE OF THE DISPUTE

0F
1. In his memo to staff reflecting on highlights of 2021, the CEO of UMG, Lucian

Grainge, remarked on it being “harder than ever for artists to break through the noise: sixty

thousand songs are added to Spotify every day.”1

2. Spotify is the world’s most popular audio streaming subscription service.2 As of

the end of the third quarter of 2024, Spotify boasted more than 640 million monthly active users

1
Jem Aswad, Read Universal Music Chief Lucian Grainge’s New Year’s Memo to Staff, Variety (Jan. 12, 2022, 8:15
AM), https://variety.com/2022/music/news/universal-music-lucian-grainges-new-years-memo-to-staff-1235152364/
[https://perma.cc/8Q7U-92BD].
2
About Spotify, Spotify Newsroom, https://newsroom.spotify.com/company-info/ [https://perma.cc/H4XK-G647]
(last visited Nov. 20, 2024).

This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 1 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2024

and 252 million subscribers.3 Spotify pays music companies, like UMG, for the right to license

songs so it can play them on its streaming and subscription platforms. In 2023 alone, Spotify paid

more than $9 billion in royalties to music labels and producers.4 Hip-hop is one of the most popular

genres on Spotify, amounting to nearly a quarter of all streams on Spotify globally in 2023.5

3. Spotify and UMG have a long-standing, symbiotic business relationship. As “one

of Spotify’s earliest supporters,” UMG entered into a multi-year global license agreement with

Spotify in 2020.6 UMG and Spotify collaborate on strategic marketing campaigns and products

and, in 2024, announced an expansion of their strategic partnership through which Spotify will

“amplify music discovery and social interaction and enhance fan experiences across the platform

for UMG’s family of artists and songwriters.”7 Based on UMG’s financial reporting, Spotify paid

UMG around $2.28 billion in 2023, which amounted to 19 percent of UMG’s total revenues in

2023.8

3
Press Release, Spotify Reports Third Quarter 2024 Earnings, Spotify Newsroom (Nov. 12, 2024),
https://newsroom.spotify.com/2024-11-12/spotify-reports-third-quarter-2024-earnings/ [https://perma.cc/G3KC-
TLJD].
4
Glenn Peoples, Spotify Paid $9 Billion to Labels & Publishers in 2023, Billboard (Feb. 8, 2024),
https://www.billboard.com/business/streaming/spotify-2023-royalties-payouts-9-billion-labels-publishers-
1235603302/ [https://perma.cc/7N6V-JVUV].
5
Press Release, Nearly a Quarter of All Streams on Spotify Are Hip-Hop. Spotify’s Global Editors Reflect on the
Genre’s Growth, Spotify Newsroom (Aug. 10, 2023), https://newsroom.spotify.com/2023-08-10/hip-hop-50-murals-
new-york-atlanta-miami-los-angeles/ [https://perma.cc/NZ9B-7B93].
6
Press Release, Spotify and Universal Music Group Announce Global, Multi-Year License Agreement, UMG (July
22, 2020), https://www.universalmusic.com/spotify-and-universal-music-group-announce-global-multi-year-license-
agreement-2/ [https://perma.cc/75QW-27TK].
7
Press Release, Universal Music Group and Spotify Expend Strategic Partnership, UMG (Mar. 28, 2024),
https://www.universalmusic.com/universal-music-group-and-spotify-expand-strategic-relationship/
[https://perma.cc/L9PP-JUTJ].
8
Tim Ingham, On…the delicate power balance between Spotify and Universal Music Group (and why UMG might
end up turning the screw on Spotify’s free tier), Music Business Worldwide (Aug. 6, 2024),
https://www.musicbusinessworldwide.com/power-balance-between-spotify-universal-music-group/
[https://perma.cc/H9W9-YPXF].

2
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 2 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2024

4. Streaming is essential to UMG’s current bottom line and its future business

strategy. In a report related to the third quarter of 2024, UMG noted a nearly 29 percent year-

over-year decrease in downloads and other digital revenue because of “the continued format shift

towards streaming” across the music industry.9 UMG’s long-term strategy relies on “[a]ccelerating

the growth of, and monetization from, streaming and subscription.”10 In October 2024, UMG

unveiled a new slogan––“Streaming 2.0”––which illustrates the importance UMG places on

saturating the streaming market.11

5. In 2024, UMG did not rely on chance, or even ordinary business practices, to “break

through the noise” on Spotify, and likely other music platforms. It instead launched a campaign

to manipulate and saturate the streaming services and airwaves with a song, “Not Like Us,” in

order to make that song go viral, including by using “bots” and pay-to-play agreements.

6. UMG released “Not Like Us” (or the “Song”) on May 4, 2024. Pursuant to various

contractual rights, UMG (via its division Interscope Records (“Interscope”)) has exclusive control

over the licensing of the Song.

7. On information and belief, UMG charged Spotify licensing rates 30 percent lower

than its usual licensing rates for “Not Like Us” in exchange for Spotify affirmatively

recommending the Song to users who are searching for other unrelated songs and artists. Neither

9
Press Release, Universal Music Group N.V. Reports Financial Results For The Third Quarter And Nine Months
Ended September 30, 2024, UMG (Oct. 31, 2024), https://www.universalmusic.com/universal-music-group-n-v-
reports-financial-results-for-the-third-quarter-and-nine-months-ended-september-30-2024/ [https://perma.cc/7XJV-
Q853].
10
Press Release, Universal Music Group N.V. Reports Financial Results for the Fourth Quarter and Full Year Ended
December 31, 2023, UMG (Feb. 28, 2024), https://www.universalmusic.com/universal-music-group-n-v-reports-
financial-results-for-the-fourth-quarter-and-full-year-ended-december-31-2023/ [https://perma.cc/MF4L-PBRA].
11
Id.; Ashley Carman, Universal Music's Grand Streaming Vision Requires Cooperation, Bloomberg (Sept. 19, 2024,
4:23 PM), https://www.bloomberg.com/news/newsletters/2024-09-19/universal-music-s-grand-streaming-vision-
requires-cooperation [https://perma.cc/JHJ9-S42N].

3
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 3 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2024

UMG nor Spotify disclosed that Spotify had received compensation of any kind in exchange for

recommending the Song. On information and belief, Spotify pays UMG licensing fees through

the wires or mails.

8. UMG, directly or through Interscope, also conspired with and paid currently

unknown parties to use “bots” to artificially inflate the spread of “Not Like Us” and deceive

consumers into believing the Song was more popular than it was in reality. Bots are software

programs designed to mimic human behavior to appear to be real social media accounts. One

individual unknown to Petitioner revealed publicly on a popular podcast that Mr. Kendrick Lamar

Duckworth’s “label” (i.e., Interscope) paid him via third parties to use “bots” to achieve

30,000,000 streams on Spotify in the first days of the release of “Not Like Us” with the goal of

“jumpstarting” the Song’s spread and turning it into “a crazy hit” on the platform.12 The

whistleblower described Spotify as the easiest platform “to bot” because it does not, like other

streaming platforms, have certain security measures “when it comes to bot protection.”13 The

whistleblower further revealed that, on May 6, 2024, an individual affiliated with Interscope sent

him a payment of $2,500 via the digital payments platform, Zelle, which is owned by a number of

banks, and that he was promised another $2,500 and a percentage of the Song’s total sales for this

initial push.14

12
Jambisco Don (@JambiscoDon), Kendrick Lamar EXPOSED by DJ Akademiks and HACKER Epic for BOT
streams, YouTube (June 18, 2024),
https://www.youtube.com/watch?si=PoazLqeHTyBePEiq&v=rcsW2wteW0c&feature=youtu.be
[https://perma.cc/8QKB-MX9V].
13
Id.
14
Id.

4
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 4 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2024

9. On information and belief, UMG hired other unknown third parties to use “bots” to

promote “Not Like Us” and also to inflate the streams of the “Not Like Us” music video (the

“Video”), which UMG first published on July 4, 2024.

10. UMG appears to have used similar tactics with other streaming services. On

information and belief, UMG paid, or approved payments to, Apple Inc. to have its voice-activated

digital assistant “Siri” purposely misdirect users to “Not Like Us.”15 Online sources reported that

when users asked Siri to play the album “Certified Loverboy” by recording artist Aubrey Drake

Graham d/b/a Drake, Siri instead played “Not Like Us,” which contains the lyric “certified

pedophile,” an allegation against Drake.16

11. UMG engaged in similar pay-to-play schemes to increase the air play of “Not Like

Us” on the radio. Petitioner has obtained information from a third party indicating that at least one

UMG employee made payments to an independent radio promotor, serving as an intermediary,

who had agreed to transfer those payments to certain radio stations and/or radio station employees.

These radio stations subsequently played (or caused to be played) “Not Like Us” without

disclosing that they had been paid to do so. This practice, known as “payola,” is prohibited by the

Communications Act of 1934 (see 47 U.S.C. §§ 317, 508), and has been the subject of regulatory

scrutiny by a number of Executive agencies.17 In 2006, UMG agreed to pay $12 million in a

15
See Armon Sadler, Fans Discover Siri Plays Kendrick Lamar’s “Not Like Us” On Spotify When They Ask For
Drake’s ‘Certified Lover Boy’, VIBE (July 11, 2024, 2:14 PM), https://www.vibe.com/news/entertainment/siri-not-
like-us-spotify-certified-lover-boy-1234895147/ [https://perma.cc/N9Y7-G5BA].
16
Id.
17
Payola in the music industry remains a top priority for the federal government. For example, in January 2020, the
Federal Communications Commission sent a letter to three music companies, including Universal Music Group,
seeking prompt information regarding each company’s practices to prevent payola, any payola violations, and
arrangements for promoting music on the radio. Letter from Comm’r of Fed. Comm. Comm’n to Sony Music Ent.,
Warner Music Grp. & Universal Music Grp. (Jan. 16, 2020), https://docs.fcc.gov/public/attachments/DOC-
361998A1.pdf.

5
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 5 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2024

settlement with the New York Attorney General following an investigation involving accusations

that UMG executives had used a broad array of “pay for play” tactics to secure radio airplay for

music.18 In connection with UMG’s settlement, then-New York attorney general Eliot Spitzer

explained “Consumers have a right not to be misled about the way in which the music they hear

on the radio is selected.”19 He continued to say that “Pay-for-play makes a mockery of claims that

only the ‘best’ or ‘most popular’ music is broadcast.”20 Separately, in 2005, UMG was sued by

two radio promotion companies alleging fraudulent pay-to-play practices.21

12. While historically payola has been thought of in terms of paying radio stations to

play songs, in February 2020, the Federal Trade Commission released guidance stating that “by

paying an influencer to pretend that their endorsement or review is untainted by a financial

relationship, this is illegal payola.”22 On information and belief, UMG employed a similar scheme

by paying social media influencers to promote and endorse the Song and Video. For example,

Petitioner understands that UMG paid the popular NFR Podcast—which has nearly 300,000

subscribers on YouTube23 and over 330,000 followers on X24—to promote “Not Like Us” and its

18
Jeff Leeds, Universal Music Settles Big Payola Case, N.Y. Times (May 12, 2006),
https://www.nytimes.com/2006/05/12/business/12payola.html?smid=url-share
[https://web.archive.org/web/20240131004539/https://www.nytimes.com/2006/05/12/business/12payola.html].
19
Universal Music Group settles payola case, NBC News (May 11, 2006, 12:00 PM),
https://www.nbcnews.com/id/wbna12740147
[https://web.archive.org/web/20220501154735/https://www.nbcnews.com/id/wbna12740147].
20
Id.
21
UMG Sued For Fraud, Pollstar (Apr. 28, 2005, 2:20 AM), https://news.pollstar.com/2005/04/28/umg-sued-for-
fraud/ [https://perma.cc/6QH7-T8K2].
22
Fed. Trade Comm’n, Comm’n File No. P204500, Statement Of Comm’r Rohit Chopra Regarding The Endorsement
Guide Review (Feb, 12, 2020), https://www.ftc.gov/system/files/documents/public_statements/1566445/p204500_-
_endorsement_guides_reg_review_-_chopra_stmt.pdf [https://perma.cc/2W58-Y8SK].
23
NFR Podcast (@NFRPodcast), YouTube https://www.youtube.com/c/nfrpodcast [https://perma.cc/P6F4-Q7U6]
(last visited Nov. 20, 2024).
24
NFR Podcast (@nfr_podcast), X, https://x.com/nfr_podcast (last visited Nov. 20, 2024).

6
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 6 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2024

Video without disclosing the payment. As part of its deal with UMG, the NFR Podcast published

podcast episodes,25 tweets,26 and other content publicly about the Song. And in a sea-change for

UMG’s internal policy, UMG removed the Song’s copyright restrictions on YouTube and Twitch,

thereby “whitelisting” the Song (for the first time in UMG history), which further incentivized

influencers to spread the Song.

13. UMG’s scheme to ensure “Not Like Us” “broke through” on Spotify (and

elsewhere) worked. “Not Like Us” broke Spotify records, as Interscope posted on its X account:27

ope reposted
NFRPodcast
nfr_podcast

Us'
Kendrick Lamars 'Not Like becomes the FASTESTrap song to reach
300M Spotify streams

It only took 35 days.

25
See NFR Podcast (@nfr_podcast), X (May 4, 2024, 7:59 PM),
https://twitter.com/nfr_podcast/status/1786908506731262241 [https://perma.cc/9Q3V-PHGF]; NFR Podcast
(@nfr_podcast), X (June 12, 2024, 10:53 PM), https://x.com/nfr_podcast/status/1801085351097704834
[https://perma.cc/3PM3-ECGZ]; NFR Podcast (@nfr_podcast), X (July 4, 2024, 7:05 PM),
https://x.com/nfr_podcast/status/1809000553487143066 [https://perma.cc/CS9U-782J].
26
See NFR Podcast (@NFRPodcast), DRAKE & KENDRICK DROP NUKES, YouTube (May 6, 2024),
https://www.youtube.com/watch?v=QlVau4fia2U [https://perma.cc/M74N-QZLT]; NFR Podcast, Our Final
Thoughts on Drake v. Kendrick Lamar, Spotify (May 14, 2024),
https://podcasters.spotify.com/pod/show/nfrpodcast/episodes/Our-Final-Thoughts-on-Drake-vs--Kendrick-Lamar-
Battle-e2jl9jo [https://perma.cc/6PX4-DWNK].
27
Interscope (@interscope), X (June 9, 2024, 6:22 PM), https://x.com/Interscope/status/1800258394382614977
[https://perma.cc/4W9P-8N5N]; Interscope (@interscope), X, https://x.com/Interscope [https://perma.cc/3AX3-
NRGH] (last visited Nov. 20, 2024); Papa Keith, Kendrick Lamar Continues To Break Spotify Records with “Not Like
Us,” 103.5 The Beat (June 10, 2024), https://1035thebeat.iheart.com/featured/papa-keith/content/2024-06-10-
kendrick-lamar-continues-to-break-spotify-records-with-not-like-us/
[https://web.archive.org/web/20241120194639/https://1035thebeat.iheart.com/featured/papa-keith/content/2024-06-
10-kendrick-lamar-continues-to-break-spotify-records-with-not-like-us/].

7
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 7 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2024

14. To date, “Not Like Us” has almost 900 million streams on Spotify28 and holds the

record for the biggest single day streams of a hip-hop song and the most streamed “diss track” in

Spotify history.29 “Not Like Us” has spent 27 weeks on Spotify’s City Chart for New York City,

which ranks the weekly streaming popularity of songs by users in New York, New York.30

15. Within a week of its initial release, “Not Like Us” broke the record for the most

streamed song in a seven-day period, with 96 million streams.31 After UMG published the Video,

“Not Like Us” returned to the No. 1 spot on the Billboard Hot 100 and, in the same week, the Song

was streamed an additional 53.8 million times and played on the radio an additional 40 million

times.32 From July 4 to August 8, 2024, the Video ranked first on YouTube’s Weekly Top Music

Videos chart. 33 On November 13, 2024, the iHeartRadio Leaderboard reported that “Not Like Us”

was the second most popular song on the platform.34 On New York radio, “Not Like Us” remains,

as of the date of this filing, a top 40 hit on popular music and hip hop stations, including Z100,

Power 105.1, and WQHT (97.1 FM, Hot 97).35 From May 9, 2024 to August 15, 2024, the Song

was among the Top 10 of all songs streamed in New York City.36

28
Spotify Chart History – “Not Like Us,” Kworb.net,
https://kworb.net/spotify/track/6AI3ezQ4o3HUoP6Dhudph3.html#google_vignette (last visited Nov. 20, 2024).
29
Sophie Caraan, Kendrick Lamar's “Not Like Us” Breaks Drake's Spotify Record, Hypebeast (May 8, 2024),
https://hypebeast.com/2024/5/kendrick-lamar-not-like-us-breaks-drake-spotify-record
[https://web.archive.org/web/20241003184921/https://hypebeast.com/2024/5/kendrick-lamar-not-like-us-breaks-
drake-spotify-record]; Prezzy Brown, Kendrick Lamar’s “Not Like Us” Becomes Most Streamed Diss Track On
Spotify, Surpassing This Classic, VIBE (Aug. 12, 2024 11:44 AM), https://www.vibe.com/music/music-
news/kendrick-lamar-not-like-us-most-streamed-diss-track-all-time-1234904668/
[https://web.archive.org/web/20241008154105/https://www.vibe.com/music/music-news/kendrick-lamar-not-like-
us-most-streamed-diss-track-all-time-1234904668/]; Kendrick Lamar, Not Like Us, Spotify (May 4, 2024),
https://open.spotify.com/album/5JjnoGJyOxfSZUZtk2rRwZ [https://perma.cc/CBD9-AEP2].
30
Charts - New York City, Spotify (Nov. 14, 2024), https://charts.spotify.com/charts/view/citytoptrack-newyorkcity-
weekly/2024-11-14 (chart only available to Spotify users).
31
Cedric Thornton, Kendrick Lamar’s ‘Not Like Us’ Breaks Streaming Record, Passes Cardi B and Taylor Swift,
Black Enterprise (May 16, 2024), https://www.blackenterprise.com/kendrick-lamar-not-like-us-streaming-record/
[https://perma.cc/3PU3-WPDD].

8
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 8 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/25/2024

16. UMG touted the record-breaking success. On July 16, 2024, Interscope reposted

on X that the Song had become “the best selling rap song of 2024 in the US.”37 On July 24, 2024,

UMG posted on its X account about the Song charting as the “most-streamed song” of the week.38

On August 29, 2024, UMG posted on X with a link to a “Summer Hits 2024 playlist” by Spotify

and the caption “Song of the Summer? UMG fam lands 4 out of 5 on @Spotify. ‘Birds of a

Feather’ - @billieeilish[;] ‘HOT TO GO’ - @ChappellRoan[;] ‘Not Like Us’ -

@KendrickLamar[;] ‘Espresso’ - @SabrinaAnnLynn.”39

17. UMG’s schemes to artificially inflate the popularity of “Not Like Us” were

motivated, at least in part, by the desire of executives at Interscope to maximize their own profits.

UMG executives have an annual incentive program pursuant to which they are rewarded for

32
Gary Trust, Kendrick Lamar’s ‘Not Like Us’ Returns to No. 1 on Billboard Hot 100, Billboard (July 15, 2024),
https://www.billboard.com/lists/kendrick-lamar-not-like-us-number-one-second-week-hot-100/
[https://perma.cc/8S56-42CT].
33
Weekly Top Music Videos, YouTube Charts, https://charts.youtube.com/charts/TopVideos/us/weekly/20240822
(Aug. 22, 2024) [https://perma.cc/ALX7-ZVDS].
34
iHeartRadio Leaderboard – Songs With The Most Plays on iHeartRadio Stations, iHeart Radio (Nov. 13, 2024),
https://www.iheart.com/playlist/iheartradio-leaderboard-312064750-2AL8dU5D7GquY5KGTcNwUm/
[https://perma.cc/6UUX-M59D].
35
As of Nov. 16, 2024, the Song has spent at least 17 weeks on the city’s top radio stations’ Top 40 charts. See TOP
40 - November 16, 2024, z100 NY (Nov. 16, 2024) https://z100.iheart.com/charts/top-40-238/november-16-2024/
[https://perma.cc/2QAU-QE5L]; TOP 40 - November 16, 2024, Power 105.1 (Nov. 16, 2024),
https://power1051.iheart.com/charts/top-40-238/november-16-2024/ [https://perma.cc/6Y4W-Y3L2]; Hot97
(@hot97), Instagram (May 4, 2024), https://www.instagram.com/hot97/reel/C6kPFnpr8s5/?hl=en (posting the full
Recording on Hot97’s Instagram page). WQHT (97.1 FM, Hot 97) is owned and operated by MediaCo Holding Inc.,
which is headquartered in New York, New York.
36
See Charts - New York City, Spotify (May 9, 2024), https://charts.spotify.com/charts/view/citytoptrack-
newyorkcity-weekly/2024-05-09; Charts - New York City, Spotify (August 15,
2024), https://charts.spotify.com/charts/view/citytoptrack-newyorkcity-weekly/2024-08-15 (charts only available for
Spotify users).
37
Interscope (@interscope), X (July 16, 2024, 12:32 PM), https://x.com/Interscope/status/1813282022753988707
[https://perma.cc/BB25-S2T9].
38
Universal Music Group (@umg), X (July 24, 2024, 1:13 PM), https://perma.cc/MY9M-QVD9.
39
Universal Music Group (@umg), X (Aug. 29, 2024, 1:46 PM), https://x.com/UMG/status/1829214002687381505
[https://perma.cc/PJ99-44TD].

9
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 9 of 17
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meeting and surpassing sales and profits projections, among other metrics. The incentives are

largely based on the specific UMG division, rather than the performance of UMG more generally.

For example, the annual incentive or bonus of Interscope’s CEO, John Janick, is based 90 percent

on the financial success of Interscope and only 10 percent on the financial success of UMG

generally. Thus, on information and belief, Mr. Janick and other executives at Interscope have

been incentivized to maximize the financial success of Interscope through the promotion of “Not

Like Us” and its revitalizing impact on the artist’s prior recording catalog, including his first five

studio albums, which are owned by Interscope.

18. Petitioner has received information that UMG has been taking steps in an apparent

effort to conceal its schemes, including, but not limited to, by terminating employees associated

with or perceived as having loyalty to Drake. Indeed, UMG has demonstrated that it has no

interest in taking responsibility for its misconduct. Over the past several months, Drake has

repeatedly sought to engage UMG in discussions to resolve the ongoing harm he has suffered as a

result of UMG’s actions. UMG refused to engage in negotiations, and insisted that UMG is not

responsible for its own actions. Instead, UMG has pointed the finger at Mr. Duckworth, insisted

that Drake should initiate legal action against Mr. Duckworth rather than UMG, and even

threatened to bring its own legal claims against Mr. Duckworth if Drake were to pursue claims

against UMG.

19. Streaming and licensing is a zero-sum game. Every time a song “breaks through,”

it means another artist does not. UMG’s choice to saturate the music market with “Not Like Us”

comes at the expense of its other artists, like Drake. As Drake is Petitioner’s sole owner, and

Petitioner owns the copyright to Drake’s entire catalogue, Petitioner suffered economic harm as a

result of UMG’s scheme.

10
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 10 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
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THE PARTIES
0F
20. Petitioner Frozen Moments, LLC, is a limited liability company registered in the

State of Florida. Frozen Moments is an entity wholly owned by Drake through which Drake

furnishes his recording services as a vocalist and musician and is the copyright holder of Drake’s

sound recordings, including music videos. As such, Petitioner competes with Interscope.

21. Respondent UMG is a wholly owned subsidiary of Universal Music Group N.V., a

publicly-owned limited liability company incorporated under the laws of the Netherlands. UMG

is a Delaware corporation, registered to do business in the State of New York. UMG has offices

at 1755 Broadway, New York, New York, 10019 and 250 West 57th Street, New York, New York

10107. UMG has divisions including, but not limited to, Interscope, which represents Mr.

Kendrick Lamar Duckworth, and Republic Records, which represents Drake. Interscope’s

publicity team operates out of the 1755 Broadway office.

22. Respondent Spotify USA Inc. is a Delaware corporation with headquarters in New

York City at 4 World Trade Center, 150 Greenwich Street, New York, New York, 10017. Spotify

is a digital music, podcast, and video service.

JURISDICTION AND VENUE

0F
23. This Court has personal jurisdiction over UMG pursuant to CPLR 302. UMG

regularly transacts business within the State, including by doing business and entering into

contracts with New York-based Spotify, licensing and promoting music to streaming and radio

broadcasting services within the State, and supplying its music management and publicity services

in the State. The events at issue, including UMG’s licensing contract with Spotify and payments

to New York-based radio stations to inflate the popularity of the Song, occurred within the State.

24. UMG also owns, uses, or possesses real property at its 1755 Broadway office,

where it hosts offices for its catalog division and publishing arm, Universal Music Publishing

11
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 11 of 17
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Group. UMG employs numerous individuals within the State, as its marketing, partnerships,

media and properties, and publicity professionals groups operate out of its New York offices.

25. This Court has personal jurisdiction over Spotify pursuant to CPLR 302. Spotify

regularly transacts business within the State, including by doing business and entering into

contracts with paying and non-paying subscribers based in New York and promoting its streaming

services within the State. The events at issue, including Spotify’s licensing contract with UMG,

occurred within the State. Spotify uses its 4 World Trade Center, 150 Greenwich Street office as

its corporate headquarters in the United States and employs numerous individuals within the State.

26. Venue is proper pursuant to CPLR 503(c) because a foreign corporation authorized

to transact business in the State shall be deemed a resident of the county in which its principal

office is located. Additionally, pursuant to CPLR 503(a), a substantial part of the events or

omissions giving rise to the claims occurred in the County of New York.

PETITIONER REQUIRES PRE-ACTION DISCOVERY AND PRESERVATION

27. Frozen Moments has commenced this special proceeding pursuant to CPLR

3102(c) to seek pre-action discovery to allow Petitioner to (1) identify appropriate defendants and

frame a complaint for a claim under the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), and (2) identify appropriate defendants and frame a complaint for a claim under Section

349 of the New York General Business Law (the “NY Deceptive Business Act”) and Section 350

and 350-a of the New York General Business Law (the “NY False Advertising Act”).

28. Civil RICO: Petitioner has a viable cause of action for civil RICO, with predicate

acts of wire fraud, mail fraud, and/or bribery for UMG’s payments to unknown third parties in the

form of reduced licensing fees to Spotify. However, Petitioner requires additional information in

order to frame his complaint and satisfy the heightened Rule 9(b) pleading standard applicable to

12
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 12 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
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complaints sounding in fraud. Specifically, Petitioner requires information about the method by

which the third parties were paid in order to determine which underlying predicate act(s) to plead

and requires information about which benefits were conferred upon UMG in exchange for the

payments. Additionally, Petitioner lacks sufficient information to identify the third parties who

acted in conspiracy with UMG.

29. Deceptive Business Practices and False Advertising: Petitioner has information

that agents of UMG paid at least one third party to use bots to stream the Song on Spotify, and on

information and belief, this practice extended to multiple third parties to artificially stream the

Song and Video. UMG also gave financial benefits to Spotify and other unknown third parties to

promote and play the Song and Video without disclosing those payments. UMG then touted the

success of the Song and Video knowing the “success” was artificially inflated by its own

manipulation. These practices harm consumers. They also violate the NY Deceptive Business

Act and the NY False Advertising Act. Without the requested pre-litigation discovery, Petitioner

lacks sufficient information to identify the known, but anonymous, third-party streamer and to

identify any additional streamers whom UMG paid. Petitioner also lacks sufficient facts to frame

the complaint regarding what was exchanged for UMG’s payments.

30. Petitioner seeks the following limited pre-action disclosure from UMG (the “UMG

Requested Information”): (1) documents and communications sufficient to show the identities of

all third parties that UMG, its agents, or anyone working on behalf of UMG/Interscope paid

(without public disclosure) to promote, publish, or recommend the Song, its accompanying cover

image (the “Image”), or Video, including but not limited to, radio stations, influencers, music

platforms, and music publications, as well as the dates, methods, and amounts of those payments;

(2) documents and communications sufficient to show the identities of all third parties that UMG,

13
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 13 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
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its agents, or anyone working on behalf of UMG/Interscope paid to use bots or any other similar

technology to stream the Song or Video, as well as the dates, methods, and amounts of those

payments; and (3) documents and communications sufficient to show what the third parties agreed

to provide and did provide in exchange for these payments.

31. Petitioner seeks the following limited pre-action disclosure from Spotify (the

“Spotify Requested Information”): (1) documents and communications sufficient to show the

dates, methods, and amounts of financial benefit, whether in the form or direct payment or reduced

licensing fees, provided to Spotify by UMG/Interscope, its agents, or anyone working on its behalf

in exchange for the promotion, publication, or recommendation of the Song on Spotify and (2)

documents and communications sufficient to show what Spotify agreed to provide and did provide

in exchange for any such benefits.

32. Petitioner has further commenced this special proceeding pursuant to CPLR

3102(c) to seek an order requiring UMG, including Interscope and all other divisions, as well as

UMG’s directors, officers, and relevant employees, to preserve all documents and communications

regarding the Song, Image, and Video during the pendency of any litigation that Petitioner

commences against Respondent and/or any unknown third parties for the underlying causes of

action discussed herein.40 Petitioner expects that much of the relevant evidence will be in the form

of messages on social media platforms, payment applications, and text messages (including, but

not limited to, iMessage and WhatsApp), which may not be preserved in the usual course.

Petitioner is aware that Senior executives at UMG regularly communicate for business through

messaging platforms and applications.

40
UMG has been sanctioned on at least one occasion for discovery violations. See ABKCO Music & Recs., Inc. v.
Coda Publ'g, Ltd., No. 19 Civ. 11892 (KPF), 2022 WL 4536820 (S.D.N.Y. Sept. 28, 2022).

14
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 14 of 17
CAUTION: THIS DOCUMENT HAS NOT YET BEEN REVIEWED BY THE COUNTY CLERK. (See below.) INDEX NO. UNASSIGNED
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33. Exhibit A to the Verified Petition is a proposed subpoena duces tecum to UMG

commanding UMG to produce the UMG Requested Information.

34. Exhibit B to the Verified Petition is a proposed subpoena duces tecum to Spotify

commanding Spotify to produce the Spotify Requested Information.

35. Exhibit C to the Verified Petition is a Proposed Order, authorizing, pursuant to

CPLR 3102(c), the issuance of subpoenas duces tecum in the form of the subpoenas attached as

Exhibits A and B.

36. No previous application has been made for the relief requested herein.

WHEREFORE, Petitioner respectfully requests that the Court enter an order:

a. Pursuant to CPLR § 3102(c) compelling Respondent UMG to provide to

Petitioner within 14 days of service on UMG by overnight mail a copy of an Order

with Notice of Entry, documents and communications responsive to the requests in

Exhibit A;

b. Pursuant to CPLR § 3102(c) compelling Respondent Spotify to provide to

Petitioner within 14 days of service on Spotify by overnight mail a copy of an Order

with Notice of Entry, documents and communications responsive to the requests in

Exhibit B;

c. Pursuant to CPLR § 3102(c) compelling Respondent UMG to preserve all

documents and communications regarding the Song, Image, and Video during the

pendency of any litigation that Petitioner commences against Respondent and/or

any unknown third parties for the underlying causes of action discussed herein.

15
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 15 of 17
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d. Granting such other and further relief as the Court may deem just and

proper.

November 25, 2024 Respectfully Submitted,

By: /s/ Michael J. Gottlieb

Michael J. Gottlieb
Meryl C. Governski
WILLKIE FARR & GALLAGHER LLP
1875 K Street NW
Washington, DC 20006
Tel: (202) 303-1000
mgottlieb@willkie.com
mgovernski@willkie.com

M. Annie Houghton-Larsen
WILLKIE FARR & GALLAGHER LLP
787 Seventh Avenue
New York, NY 10019
Tel: (212) 728-8000
mhoughton-larsen@willkie.com

16
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 16 of 17
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VERIFICATION
Aubrey Drake Graham affirms the following to be true under the penalties of perjury,
pursuant to Civil Practice Law and Rules (CPLR) 2106:
1. I am the corporate officer of the Petitioner Frozen Moments, LLC in this proceeding,
and thus have personal knowledge of the facts herein.
2. I have read the foregoing petition and its factual contents are true to my personal
knowledge, except as to those matters alleged therein to be upon information and
belief, and as to those matters, I believe them to be true.
th
I affirm this 25 day of November, 2024, under the penalties of perjury under the laws of
New York, which may include a fine or imprisonment, that the foregoing is true, and I
understand that this document may be filed in an action or proceeding in a court of law.

_________________________________

Aubrey Drake Graham

This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 17 of 17