• Music Choice vs Stingray Settlement – Accurate Analysis by EGLA

    Music Choice vs Stingray Settlement arrives right before trial. This case has been analyzed as a case by our experts from two angles:
    • ♠ Technology
    • ♠ Damages
    On February 4th, 2020,  Music Choice announced that has settled the case for $13.3M right before an important hearing and a potential trial date set for March 3rd, 2020.  Obviously, there is no more hearing and no more trial. ...
  • IPR Consultants

    IPR Consultants We assist our clients and law firms crafting strong arguments for a Patent Owner or a Petitioner in IPRs. We consider infringement, estoppel issues, and provide a strategic technical value to your IPR process. ...
  • Case Opinions – Music Choice v. Stingray Digital

    Introduction

    I will start quoting, MultiChannel article that describes the genesis of this dispute..

    Stingray and Music Choice have a long history. In 2015, Music Choice sued Stingray for patent infringement after AT&T U-verse dropped Music Choice in favor of the Canadian company. Music Choice had claimed that Stingray’s service included digital audio music and video-on-demand features that infringed on its patents, features that Stingray enhanced after getting access to confidential information during talks about possibly buying Music Choice in 2015. Stingray counter-sued, asserting “claims of unfair competition, defamation, trade libel, tortious interference with existing and prospective contractual relationships, and unfair competition.” (Source: Multichannel)

    It was very interesting that in 2017, Stingray made a $120M offer to Music Choice, that was, rejected, not publicly, simply ignored. The offer was sweet basically no strings attached, and likely this case in dispute completely dismissed.

    “Canadian digital and music video company Stingray Digital Group said it has made an unsolicited offer to purchase pay TV stalwart Music Choice for $120 million. (Id) “

    As  consequence of this lawsuit, multiple other litigation steps have followed this case: IPR,  Counter Claims, Daubert challenges, and much more. I have been tracking this case I have a portfolio in the same are as “Music Choice” & “Stingray Digital”

    Now all my observations resulted accurate, and in other words, the analysis of this cases that I made in 2017 is now a reality.

    In summary, I concluded, and you can confirm at [1]. [2]. [3]. and at edwinhernandez.com  that:

    • ♠ Stingray IPRs was not going to be super successful, as the PTAB judges were not fully convinced with the arguments.
    • ♠ I still believe that Music Choice’s slashed patents by PTAB might have some light in appeal.
    • ♠ Damages Report, challenged by Stingray, with a multi-million dollar award was going to be accepted by the court
    • ♠ Alice defenses were futile by Stingray
    • ♠ Trial was going to be conducted and all other defenses denied

    Now this case is scheduled for trial  Dec 9th, 2019 in Marshall, TX.

    Opinions

    Several rulings have gone unfavorable to Stingray Digital, which includes adoption of the Magistrate judge opinions followed by  an order denying the Daubert challenge made to Dr. Keith Ugone. What this means is that Mr. Ugone’s damages report is safe and sound, in other words the damages expert, Dr. Ugon representing Music Choice,  will be able to tell the jury his story about this case.

    Clearly, this was a big reverse to Stingray ,specially when Dr. Ugone has testified that a “non-infringing alternative” presented by Stingray was not suitable and hence, the damages model was at least $23M from the numbers released in a court ruling.

    Dr. Ugone’s testified that in absence of a non-infringement alternative, loss profits need to be used to compute damages, instead of a reasonable royalty. Assuming $23M in loss profits, that means revenues could have been $75M. If, an expert applies a royalty of 10% that’s $7M and 1%, 700k in reasonable royalties.  Potentially saving $23M in loss profits, or even higher at $75M for treble damages, if the judge considers necessary to punish Stingray.

    As you know, already, I completely disagree as my patents when in use in Cable TV systems are a non-infringing alternative to Music Choice’s.

     

     For that reason and the other reasons stated within the Order, the Court agrees with the conclusion reached within the Order. The Magistrate Judge’s Recommendation is therefore ADOPTED. 

    On second adverse ruling, Judge Payne has provided to Judge Gilstrap its report and recommendations regarding the Alice challenge that Stingray has made against Music Choice, Inc patents. The adverse ruling indicates that as a matter of law, Alice Step One, fails and there is no need to conduct any further steps,

    The Court concludes that each of the remaining asserted claims are not directed to an abstract idea at Alice Step One. Because the Court resolves the Alice inquiry at Step One, the Court need not proceed to Alice Step Two. Thus, the Court recommends that Music Choice’s cross-motion be GRANTED and that Stingray’s motion for judgment on the pleadings be DENIED. 

    As jury selection is due December 9th, 2019, clearly Stingray has a low chance of surviving a trial, and in my opinion, Stingray has increase its chances to be found guilty of infringement and pay a hefty amount, likely a multi-million dollar judgment and a potential injunction relief favorable to stingray.

    What will happen?

    Stingray digital has to find a way to now settle this case or, maybe even better, Stingay can discuss a way to present a license to my patents and technology. My patents and technologiss are clearly as a non-infringing alternative to Music Choice, and my patents are new, and will last for a longer time as a protection.

    Either way, this is not good to be in this position for Stingray.

    Stingray could take a license to my portfolio and present it to Music Choice and the court, and avoid all infringement claims.

    Besides that, Stingray Digital made an offer for $120M to purchase Music Choice, and Music Choice rejected the offer, risked a trial and now their position has been getting more solid day after day.  I would assume that it will have to make an offer around that to settle? That means that Stingray’s revenues in the US, which totals $9M per Quarter or $36M/year are now at risk.

    The current damages report shows a $23M loss profits made by Music Choice as of this date, however a full report is only REDACTED and unavailable to the public.

     

    “Revenues in the United States increased 12.2% to $9.4 million (12.9% of total revenues) and in Other Countries, revenues increased by 31.3% to $16.1 million (22.1% of total revenues)” (Source: Globenewswire).

    Greenberg and Trauig is defending Stingray and Dechert Law, LLP is Music Choice’s plaintiff.

    Licensing of My Patent Portfolio

    There are several ways to find out about my portfolio of patents and software implementation, you can contact me via email to sales@eglacorp.com or call me.   My innovations are covered by US Patents 10,123,074 and 10,524,002 and other continuation patents, including European Patent filings, plus the technology and software platform:

     

     




     

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