Preview
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
EXHIBIT 11
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
FILED: APPELLATE DIVISION - 1ST DEPT 03/11/2022 02:58 PM 2021-03250
NYSCEF DOC. NO. 21 To beRECEIVED
argued by:
NYSCEF: 03/11/2022
DAVID LEICHTMAN
(Time requested: 15 minutes)
Case No. 2021-03250
New York Supreme Court
Appellate Division—First Department
CHAPMAN ROBERTS,
Plaintiff-Appellant,
-against-
RODGERS & HAMMERSTEIN HOLDINGS LLC, THE RODGERS &
HAMMERSTEIN ORGANIZATION, CONCORD THEATRICALS CORP.,
MIKE STOLLER, THE ESTATE OF JEROME LEIBER a/k/a THE JEROME I.
LEIBER 1997 FAMILY TRUST, LEIBER STOLLER PRODUCTIONS, INC.,
and BROADWAY ASIA COMPANY, L.L.C.,
Defendants-Respondents.
Appealed from Index No. 650698/2019
PLAINTIFF-APPELLANT’S REPLY BRIEF
LEICHTMAN LAW PLLC
David Leichtman
Tatsuya Adachi
Pranav Katti
228 East 45th Street, Suite 605
New York, New York 10017
(212) 419-5210
dleichtman@leichtmanlaw.com
tadachi@leichtmanlaw.com
pkatti@leichtmanlaw.com
Attorneys for Plaintiff-Appellant
Chapman Roberts
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
TABLE OF CONTENTS
PRELIMINARY STATEMENT ............................................................................ 1
REPLY STATEMENT OF FACTS ....................................................................... 1
I. The record is devoid of any evidence that Mr. Roberts agreed to arbitrate
disputes with any of the parties in this case. ................................................... 1
II. The record is devoid of any evidence that the L&S Defendants received an
assignment of the Vocal Arranger Agreement’s arbitration provision. .......... 5
III. The L&S Defendants’ mischaracterization of the reasons for Mr. Roberts
amending his original Complaint is unfounded. ............................................. 7
IV. The record is devoid of any evidence of a meeting of the minds between Mr.
Roberts and the R&H Defendants as to the arbitration of disputes. ............. 11
ARGUMENT ......................................................................................................... 14
I. It was the Respondents’ burden to prove Mr. Roberts agreed to arbitrate with
them; it was not Mr. Roberts’ burden to prove the opposite......................... 14
II. There is no legal basis for compelling Mr. Roberts to arbitrate with
contractual strangers such as the Respondents. ............................................ 16
III. The R&H Agreement does not bar Mr. Roberts’ claims against the R&H
Defendants. ................................................................................................... 19
IV. Mr. Roberts is not estopped from pursuing his claims against either set of
Respondents pursuant to the direct benefits theory of estoppel or any other
doctrine barring his claims based on the source of the remedy sought......... 20
CONCLUSION ...................................................................................................... 27
i
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
N.Y. Const. Art. I, § 2 ............................................................................................. 16
U.S. Const. Amend. 7 .............................................................................................. 16
CASES
2004 Parker Family LP v. BDO USA LLP, 2020 N.Y. Misc. LEXIS 2353 (N.Y.
Cty. May 29, 2020) .............................................................................................. 22
Arrowhead Golf Club, LLC v. Bryan Cave, LLP, 59 A.D.3d 347 (1st Dep’t 2009)
.............................................................................................................................. 17
Choctaw Generation L.P. v. Am. Home Assur. Co, 271 F.3d 403 (2d Cir.
2001) .................................................................................................................... 26
Deloitte v. Noraudit A/S v. Deloitte Haskins & Sells, U.S., 9 F.3d 1060 (2d Cir.
1993) .................................................................................................................... 23
Fuller v. Uber Techs. Inc., 2020 N.Y. Slip. Op. 33188(U) (N.Y. Cty. Sep. 25,
2020) .............................................................................................................. 24, 26
Gen. Elec. Capital Corp. v. Pacheco & Lugo, P.L.L.C, 300 A.D.2d 185 (1st Dep’t
2002) ...................................................................................................................... 5
God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, 6
N.Y.3d 371 (2006) ............................................................................................... 18
Hoffman v. Finger Lakes Instrumentation, LLC, 2005 N.Y. Slip. Op. 25037
(Monroe Cty. Jan. 26, 2005) .......................................................................... 24, 25
HRH Constr. LLC v. Metro. Transp. Auth., 33 A.D.3d 568 (1st Dep’t
2006) .............................................................................................................. 19, 20
In re Lowenthal, 199 A.D. 39 (1st Dep’t 1921) ...................................................... 16
Layton-Blumenthal, Inc. v. Jack Wasserman Co., 280 A.D. 135 (1st Dep’t
1952) .................................................................................................................... 14
ii
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
Lipman v. Haeuser Shellac Co., 289 N.Y. 76 (1942).............................................. 16
Matter of Belzberg v. Verus Invs. Holdings Inc., 21 N.Y.3d 626 (2013) .......... 21, 24
Matter of SSL Int’l, PLC v. Zook, 44 A.D.3d 429 (1st Dep’t 2007)........................ 22
McAlley v. Boise-Griffin S.S. Co., 81 A.D.2d 771 (1st Dep’t 1981) ....................... 17
Oxbow Calcining USA Inc. v. Am. Indus. Partners, 96 A.D.3d 646 (1st Dep’t
2012) .................................................................................................................... 14
People v. Coventry First LLC, 13 N.Y.3d 108 (2009) ...................................... 14, 16
Rosenbaum v. Am. Sur. Co., 11 N.Y.2d 310 (1962)................................................ 15
Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003) ........... 5
Shaughnessy v. Baron, 151 A.D.2d 561 (2d Dep’t 1989) ......................................... 5
St. John’s Univ. v. Skanksa USA Bldg. Inc., 2011 N.Y. Slip. Op. 30457(U)
(Queens Cty. Mar. 1, 2011) ................................................................................. 18
State of Cal. Pub. Employees’ Ret. Sys. v. Shearman & Sterling, 269 A.D.2d 221
(1st Dep’t 2000) ..................................................................................................... 5
Variblend Dual Dispensing Sys., LLC v. Seidel GmbH & Co., KG, 970 F. Supp. 2d
157, 162 (S.D.N.Y. 2013) .................................................................................... 17
Vitrano v. N.A.R., Inc., No. 18-CV-06754 (KAM) (RLM), 2020 U.S. Dist. LEXIS
54019, at *5 (E.D.N.Y. Mar. 27, 2020) ............................................................... 17
Waldron v. Goddess, 61 N.Y.2d 181 (1984) ..................................................... 15, 17
Williams v. Progressive Ne. Ins. Co., 41 A.D.3d 1244 (4th Dep’t 2007) ......... 19, 20
RULES
C.P.L.R. § 1001 ......................................................................................................... 5
C.P.L.R. § 1003 ......................................................................................................... 5
C.P.L.R. § 3025 ......................................................................................................... 7
iii
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
OTHER AUTHORITIES
Siegel, N.Y. Prac. § 133 ............................................................................................ 5
iv
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
PRELIMINARY STATEMENT
The present appeal relates to a 78-year old African American artist’s ability
to seek redress for years of non-payment of royalties due to him for his work on the
hit Broadway show, Smokey Joe’s Café (the “Musical”). Effectively, if the appeal
is denied, it will end his efforts to correct years of wrongdoing because, in large part
due to the Respondents’ actions, he cannot afford to pay an arbitrator to decide the
important issues raised in his First Amended Complaint. The lower court’s decision
is unjust, and should be reversed.
REPLY STATEMENT OF FACTS
I. The record is devoid of any evidence that Mr. Roberts agreed to arbitrate
disputes with any of the parties in this case.
In their statements of fact, the L&S Defendants1 (see Doc. No. 18 (“L&S
Br.”), at 8) and the R&H Defendants2 and Broadway Asia3 (see Doc. No. 17 (“R&H
Br.”), at 3-7) point to the presence of arbitration provisions in two agreements,
referred to as the Vocal Arranger Agreement (dated in 1994)4 and the R&H
1I.e., Defendants-Respondents the Estate of Jerome Leiber a/k/a Jerome I. Leiber 1997
Family Trust, Mike Stoller, Leiber Stoller Productions, Inc., collectively.
I.e., Defendants-Respondents Rodgers & Hammerstein Holdings LLC, The Rodgers &
2
Hammerstein Organization, Concord Theatricals Corp., collectively.
3 I.e., Defendant-Respondent Broadway Asia Company, L.L.C. The parties referenced in
n.1-3, supra, may be referred to hereinafter collectively as the “Respondents.”
4 I.e., Mr. Roberts’ 1994 agreement with the L&S Broadway Company (the “Broadway
Producers”) for the creation of the vocal arrangements (the “Vocal Arrangements”) the Musical,
as further amended by the Broadway Producers and Mr. Roberts in 1996. (R. 261-70, July 9, 2021,
1
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
Agreement (dated in 1999)5 as justification for the arbitration of Plaintiff-Appellant
Chapman Roberts’ (“Mr. Roberts”) claims. But they ignore the material fact that
neither of those agreements, respectively, from 28 and 22 years ago, are between
the parties to this case. The lower court also ignored that fact in its Order (Doc. No.
9, Appendix (“R.”) 40-45 (the “Order”)). As the case law shows, and as will be
discussed below, that is why the lower court’s decision and the holding the
Respondents ask this Court to adopt are not only unfair, but also legally
impermissible.
The record shows that in 1994, Mr. Roberts agreed to arbitrate disputes with
the original Broadway Producers of the Musical, but no one else. (R. 265, Vocal
Arr. Agmt., at § 11).
The record also shows that in 1999, the R&H Defendants and the L&S
Defendants agreed to arbitrate disputes with each other, but no one else. (R. 124,
R&H Agmt., at § 13.1).
Affirmation of David Leichtman (“Leichtman Aff.”), at Ex. U (“Vocal Arr. Agmt.”); see R. 66,
First Amended Complaint (“FAC”), at ¶ 22).
5 I.e., the 1999 agreement by which the L&S Defendants authorized the R&H Defendants
and Broadway Asia to license the Musical, including Mr. Roberts’ Vocal Arrangements, to live
theatrical companies and venues around the world. (R. 93-145, Affidavit of Victoria G. Traube
(“Traube Aff.”), Ex. A (“R&H Agmt.”); see R. 67, FAC, at ¶ 27).
2
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
The record is devoid of any evidence that Mr. Roberts agreed to arbitrate
disputes with any of the R&H Defendants or with the L&S Defendants. That is an
undisputable fact.
In the Vocal Arranger Agreement between Mr. Roberts and the Broadway
Producers (a single-purpose entity which no longer exists), Mr. Roberts agreed to
arbitrate disputes with the Broadway Producers, who are not parties to this case. As
the case law shows, absent an assignment of the Vocal Arranger Agreement’s
arbitration provision from the Broadway Producers to the L&S Defendants, just
because Mr. Roberts agreed to arbitrate with someone in 1994 does not mean he
agreed to arbitrate with the L&S Defendants, or anyone who received some form of
rights from the Broadway Producers but not a total assignment of the Vocal Arranger
Agreement or the arbitration clause itself.
The Broadway Producers are not the wrongdoers in this case, nor are they the
party who benefitted from L&S Defendants’ license to the R&H Defendants which
permitted the R&H Defendants to license the Musical (with Mr. Roberts’ Vocal
Arrangements) to theatre companies and venues during the six years preceding the
Complaint in this action which give rise to the claims in this case. Furthermore, the
Broadway Producers represented to Mr. Roberts, in the 1996 amendment to the
Vocal Arranger Agreement at Section 3.1, that they would advise the L&S
Defendants of Mr. Roberts’ rights to payment and credits, which they evidently did
3
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
since the L&S Defendants passed on at least the payment obligation to the R&H
Defendants. (R. 268, Vocal Arr. Agmt., 1996 Amendment, at § 3.1; R. 117, R&H
Agmt., at §7.1.A.).
Exactly what happened to the original Broadway Producers’ rights and
obligations to produce the Musical and under the Vocal Arranger Agreement
remains a mystery, because the L&S Defendants have refused to disclose the
contours of their transactions with the Broadway Producers. The only thing that is
known is that the entity appears to have been dissolved.
During a 1995 arbitration with the Broadway Producers on a different issue,
the Broadway Producers disclosed that the original contracting party under the Vocal
Arranger Agreement (named the L&S Broadway Company) had assigned its rights
to an entity called the “L&S Broadway Company Limited Partnership.” (R. 267
Vocal Arr. Agmt., 1996 Amendment, at preamble). The original Broadway
production of the Musical closed in 1999. Later, in an April 5, 2010 letter from the
Paul Weiss law firm to the R&H Defendants, Paul Weiss advised the R&H
Defendants that the “Broadway Partnership [i.e., the Broadway Producers] is no
longer entitled to a share” of the proceeds from the R&H licenses, directing the R&H
Defendants to instead make payments previously designated for the Broadway
4
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
Producers directly to the L&S Defendants. (R. 96, Traube Aff., Ex. A, April 5, 2010
Letter, at 2).6
II. The record is devoid of any evidence that the L&S Defendants received
an assignment of the Vocal Arranger Agreement’s arbitration provision.
The only thing that would affirmatively show that any of the Respondents
inherited from the Broadway Producers the right to arbitrate Mr. Roberts’ claims
under the Vocal Arranger Agreement would be either: (1) a document showing the
total and complete assignment of the entire Vocal Arranger Agreement from the
Broadway Producers to the L&S Defendants; or (2) a document showing a partial
assignment of the particular obligation to arbitrate Mr. Roberts’ claims within the
6 As Mr. Roberts only seeks damages for the six year period prior to the filing of the original
Complaint in this action, there is therefore no Broadway Producer entity who could possibly be
responsible for compensation from the R&H licenses, and thus no Broadway Producer entity to
join in this case. To the extent the L&S Defendants sought dismissal for failure to name that entity,
therefore, dismissal would not have been appropriate, and in any event, dismissal in such
circumstances is a drastic, unfavored remedy. See Saratoga County Chamber of Commerce v.
Pataki, 100 N.Y.2d 801, 821 (2003) (“Dismissal of the action for nonjoinder of a given person is
a possibility under the CPLR, but it is only a last resort.” (quoting Siegel, N.Y. Prac. § 133). New
York law is clear that where certain rights under an agreement are transferred from one of the
original contracting parties to a third party to the original transaction, the original contracting party
is not a necessary party. See Gen. Elec. Capital Corp. v. Pacheco & Lugo, P.L.L.C, 300 A.D.2d
185, 185 (1st Dep’t 2002) (assignor of contract rights not deemed to be a necessary party under
C.P.L.R. § 1001 in case where assignee was a party to the case; denial of motion under C.P.L.R.
§ 1003 affirmed); Shaughnessy v. Baron, 151 A.D.2d 561, 562-63 (2d Dep’t 1989) (under C.P.L.R.
§ 1001, former husband of plaintiff was not required to be joined because he transferred his interest
under the relevant contract, and therefore had relinquished standing to invoke such rights; mere
knowledge underlying the relevant transactions insufficient grounds for joinder); see also State of
Cal. Pub. Employees’ Ret. Sys. v. Shearman & Sterling, 269 A.D.2d 221, 221-22 (1st Dep’t 2000)
(as a matter of law, assignment of contract rights removed contractual relationship between
plaintiff and defendant, the original contracting parties and parties to the litigation).
5
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
Vocal Arranger Agreement from the Broadway Producers to the L&S Defendants.
The record contains neither.
The Respondents attempt to obscure the issue by mischaracterizing Mr.
Roberts’ allegations. For example, the R&H Defendants and Broadway Asia in their
brief state that the R&H Defendants “are alleged to be the ‘successors-in- interest’
to the Vocal Arranger Agreement by virtue of what Plaintiff-Appellant characterizes
as the ‘R&H Agreement.’” (R&H Br., at 3). That is not what Mr. Roberts alleged.
Mr. Roberts did not allege that the L&S Defendants are the successors-in-
interest to the entire Vocal Arranger Agreement. Instead, he alleged that “the L&S
Broadway Company [the Broadway Producers] transferred the payment and credit
obligations” in the Vocal Arranger Agreement to the L&S Defendants. (R. 67, FAC,
at ¶ 26 (emphasis added)).
This is the same mistake the trial court made in its Order. (See, e.g., R. 43,
Order, at 4). The difference between a total and partial assignment of the Vocal
Arranger Agreement is material to this appeal. And because there is no evidence of
an assignment beyond the payment and credit obligations, evidenced by the L&S
license agreement with R&H, there is no evidence that shows that any of the
Respondents inherited from the Broadway Producers the right to arbitrate Mr.
Roberts’ claims under the Vocal Arranger Agreement, or any rights and obligations
6
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
other than the payment and credit obligations. That is fatal to the lower court’s
decision and the Respondents’ position on appeal.
III. The L&S Defendants’ mischaracterization of the reasons for Mr. Roberts
amending his original Complaint is unfounded.
The L&S Defendants have put forth a false narrative concerning the reasons
why Mr. Roberts pursued this state court litigation and the reasons why Mr. Roberts
amended his original Complaint. (L&S Br., at 6-8).
First, in doing so, the L&S Defendants ignore that Mr. Roberts amended his
Complaint as a matter of right pursuant to C.P.L.R. § 3025.
But more importantly, they also ignore the wealth of record evidence that
shows that Mr. Roberts tried to learn the nature of the L&S Defendants’ transaction
with the Broadway Producers multiple times in order to determine what the L&S
Defendants “inherited,” if anything, from the Broadway Producers. But he was
thwarted at every turn. The correspondence in the record between counsel for Mr.
Roberts, the L&S Defendants, and the R&H Defendants shows that the L&S
Defendants’ version of the facts is misleading.
At the time Mr. Roberts initially filed suit on February 1, 2021, Mr. Roberts
had never been provided with anything showing an assignment from the Broadway
Producers to the L&S Defendants of any of the rights or obligations of the Broadway
Producers’ Vocal Arranger Agreement with Mr. Roberts that would evidence any
requirement to arbitrate. (R. 177-79, Leichtman Aff., Ex. B). Instead, the only
7
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
information that he was provided with was an oral statement from L&S Defendants’
counsel. (Id.). While Respondents had acknowledged that they were the proper
parties for suit with respect to Mr. Roberts’ claims for royalties in the preceding six
years, Mr. Roberts was not provided any documentation showing that any rights or
obligations other than the payment and credit obligations in the Vocal Arranger
Agreement had been transferred to anyone by the Broadway Producers, including
the arbitration provision. (Id.). Mr. Roberts was not a party to any of the transactions
subsequent to the Vocal Arranger Agreement, and therefore there was no basis for
any of the Defendants to assert that Mr. Roberts had any agreement with the L&S
Defendants or the R&H Defendants to arbitrate his claims, or any knowledge of any
obligation on his part to do so.
While Respondents pointed Mr. Roberts to Paragraph 11 of the Vocal
Arranger Agreement, which states that all disputes arising under that agreement as
between the Broadway Producers and Mr. Roberts are subject to arbitration (see R.
180-83, Leichtman Aff., Ex. C), they ignored completely the very next paragraph in
the Vocal Arranger Agreement. That paragraph provides that the Broadway
Producers “shall have the right to assign all or any part of its rights” under the Vocal
Arranger Agreement. (R. 265, Vocal Arr. Agmt., at § 12 (emphasis added)). Thus,
as pointed out to Respondents by Mr. Roberts, none of the Respondents in this case
are parties to the Vocal Arranger Agreement, and without documentation showing
8
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
the nature of the “transfers” or “reversion” of rights to the various Defendants of all
of the rights and obligations under the Vocal Arranger Agreement, Mr. Roberts had
no basis to conclude that any of the Respondents had received the benefit of the
arbitration provision in particular. (R. 184-87, Leichtman Aff., Ex. D). And again,
Respondents steadfastly refused to provide a single document that would evidence
a complete assignment of the Vocal Arranger Agreement, which expressly
contemplates the possibility of a partial assignment of rights and obligations.
Because Section 3.1 of the 1996 amendment to the Vocal Arranger Agreement
expressly contemplates the reversion of “[the Broadway Producers’] rights to
produce the Show [the Musical]” to “the authors of the Show [the Musical],” (i.e.,
the L&S Defendants), Mr. Roberts believes that there was never any actual
assignment of the right of the Broadway Producers to arbitrate, because a mere
“reversion” of rights to produce the Musical would not include all of the rights and
obligations as between the Broadway Producers and Mr. Roberts. (R. 268, Vocal
Arr. Agmt., at 1996 Amendment, § 3.1). Indeed, Section 3.1 of the 1996
Amendment expressly states that any such “reversion” would not effect a total
assignment of the Vocal Arranger Agreement, because it contemplates the need for
the “authors” (the L&S Defendants) to obtain separate rights from Mr. Roberts in
certain circumstances, which the Broadway Producers would not have needed. (Id.).
And, despite numerous requests, Respondents never provided any documentation of
9
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
a complete assignment of all rights and obligations under the Vocal Arranger
Agreement.
Mr. Roberts made clear to the Respondents that if he was going to voluntarily
discontinue this action due to the purported applicability of the arbitration provision
in the Vocal Arranger Agreement to disputes with non-parties to that agreement, he
would only do so if there was factual support that such provision had indeed been
assigned to any of the Respondents. Mr. Roberts requested such documentation
numerous times and each time was stonewalled. (R. 193-98, 201-02, 220-24, 230-
34, 241-260, Leichtman Aff., Exs. F, H, N, P, R, S, T). Counsel for the L&S
Defendants stated, “[T]he free discovery train has left the station.” (R. 248,
Leichtman Aff., Ex. S). That is, of course, their prerogative, but it can only lead to
one conclusion: Respondents cannot meet their burden to show that either the entire
agreement or the arbitration provision was assigned to them. That is a consequence
of the Respondents’ own unwillingness to factually support their position with a
single document showing they received an assignment of the right to deprive Mr.
Roberts of a jury and to compel arbitration.
During the exchanges among counsel, the L&S Defendants continually
mischaracterized the allegations of the original Complaint by claiming that Mr.
Roberts was alleging a complete assignment of the Vocal Arranger Agreement had
occurred. (R. 188-92, 225-29, 230-53, Leichtman Aff., Exs. E, O, P, Q, R, S). The
10
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
L&S Defendants criticize Mr. Roberts’ amendment of his Complaint as an effort to
“plead around” the arbitration provision and cure a defect in his original Complaint,
but that is not the case. (L&S Br., at 6-7).
What the above-referenced correspondence shows instead is that Mr. Roberts
attempted in good faith to resolve the factual issue of whether the arbitration right in
the Vocal Arranger Agreement was transferred to any of the Respondents for several
months. In response, Respondents never put forth a document or made any effort to
close the above-referenced gap in the chain of authorizations from the Broadway
Producers to the L&S Defendants and never provided factual support for a total
assignment of the rights and obligations or of the arbitration burden under the Vocal
Arranger Agreement to any of the Respondents.
IV. The record is devoid of any evidence of a meeting of the minds between
Mr. Roberts and the R&H Defendants as to the arbitration of disputes.
As to the R&H Agreement between the L&S and R&H Defendants, which
Mr. Roberts had no knowledge of until 2020, more than two decades after it was
entered into (see R. 67, FAC, at ¶ 27), the R&H Defendants claim that Mr. Roberts
is bound to the arbitration provision contained within it because Mr. Roberts’ name
appears in the R&H Agreement in connection with his right to payment for use of
his Vocal Arrangements (an obligation they failed to meet), and therefore the
arbitration provision is “binding upon all the parties [to the R&H Agreement].”
11
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
(R&H Br., at 7). But Mr. Roberts is a not a party to that agreement, did not even
know about it until decades later, and has not received any benefits from it.
As noted, Mr. Roberts was not even aware of this transaction until 2020. It is
therefore disingenuous to purport that the R&H Agreement reflects a meeting of the
minds between Mr. Roberts and the R&H Defendants as to the arbitration of disputes
between them, as required to enforce the arbitration burden on him.
It is also disingenuous because it was not even raised by the R&H Defendants
for the majority of the discussions between the parties leading up to the amendment
of the original Complaint. Instead, the R&H Defendants initially only invoked the
Broadway Producers’ Vocal Arranger Agreement (to which they are not a party). It
was only several months later that they also asserted that Mr. Roberts’ claims are
arbitrable because the R&H Agreement contains a separate arbitration provision. (R.
199-200, Leichtman Aff., Ex. G). But as referenced above, and as pointed out by
Mr. Roberts’ counsel, Mr. Roberts was not a party to the R&H Agreement, never
saw the agreement until 2020, is not a direct beneficiary of that agreement, and was
two steps removed from it at the time that transaction occurred. (R. 212, Leichtman
Aff., Ex. L). Thus, Mr. Roberts had no basis to conclude that he was subject to the
arbitration provision in the R&H Agreement.
***
12
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
In summary, there is no basis whatsoever, other than the Respondents’ self-
serving, unverified, and undocumented say-so, showing either that: (1) as non-
parties to the Vocal Arranger Agreement, any of the Respondents have the right to
invoke the Vocal Arranger Agreement’s arbitration provision as to Mr. Roberts; nor
that (2) the R&H Defendants separately have the right to invoke the R&H
Agreement’s arbitration as to Mr. Roberts, who is not only a non-party to that
agreement, but is two steps removed from that transaction.
After trying to learn in earnest whether there was a legitimate basis for
Respondents’ efforts to invoke either of the arbitration clauses, Mr. Roberts clarified
the allegations in his original Complaint to reflect the facts of the case: to wit, that
it now appears that only the payment and credit obligations of the Vocal Arranger
Agreement “reverted” or were inherited by the L&S Defendants, who, in turn,
passed the payment obligations on to the R&H Defendants. There was simply never
an assignment of either the entire Vocal Arranger Agreement nor any right to force
Mr. Roberts to the burdensome obligation to arbitrate his claims, which he cannot
afford to do.
13
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
ARGUMENT
I. It was the Respondents’ burden to prove Mr. Roberts agreed to arbitrate
with them; it was not Mr. Roberts’ burden to prove the opposite.
The principle problem across both the lower court’s decision and the
Respondents’ briefs is their attempt to flip the burden of proof on their primary
affirmative defense in this case, i.e., the imposition of the burden to arbitrate on Mr.
Roberts. In the lower court, and here, it was the Respondents’ burden to prove Mr.
Roberts agreed to arbitrate with them. It was not Mr. Roberts’ burden to prove the
opposite. See Layton-Blumenthal, Inc. v. Jack Wasserman Co., 280 A.D. 135, 135
(1st Dep’t 1952) (“The burden is upon a party applying to compel another to
arbitrate, to establish that there was a plain intent by agreement to limit the parties
to that method of deciding disputes. No one is under a duty to resort to arbitration
unless by clear language he has so agreed.”); see also Oxbow Calcining USA Inc. v.
Am. Indus. Partners, 96 A.D.3d 646, 649 (1st Dep’t 2012) (“Where, as here, the
parties dispute not the scope of an arbitration clause but whether an obligation to
arbitrate exists, the general presumption in favor of arbitration does not apply.”).
The only manner by which Mr. Roberts may be deprived of his
constitutionally protected right to a trial by jury is if he has done so voluntarily. See
People v. Coventry First LLC, 13 N.Y.3d 108, 113 (2009) (“[T]he obligation to
arbitrate depends on an agreement to arbitrate; arbitration is a matter of consent, not
coercion.” (internal quotation marks and citations omitted) (emphasis in original)).
14
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
Indeed, “[n]o one is under a duty to resort to arbitration unless by clear language he
has so agreed.” Rosenbaum v. Am. Sur. Co., 11 N.Y.2d 310, 314 (1962). The
presumption may be overcome only by language that is “clear, explicit and
unequivocal.” Waldron v. Goddess, 61 N.Y.2d 181, 183-84 (1984). It cannot be
overcome by speculation about what may have happened in a mystery transaction
between the Broadway Producers and the L&S Defendants.
The Respondents bore a heavy burden which they did not meet. Rather than
meeting its burden, e.g., by producing a document showing the assignment of the
entire Vocal Arranger Agreement or its arbitration provision from the Broadway
Producers to any one of the Respondents, there is only the absence of any such
evidence. And because it is the Respondents’ burden to prove the right to arbitrate,
and it is not Mr. Roberts’ burden to prove the opposite, any factual omissions in the
record or lack of directly analogous case law should have been resolved in Mr.
Roberts’ favor, not in the Respondents’ favor as the lower court ruled. The lower
court’s Order fails to appreciate the nature of the Respondents’ burden, and for that
reason it erred and the Order should be reversed.
15
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
II. There is no legal basis for compelling Mr. Roberts to arbitrate with
contractual strangers such as the Respondents.
The case law cited by the Respondents in support of their positions have no
bearing on the proper forum for Mr. Roberts’ claims and the disposition of his
appeal.
The L&S Defendants cite to Lipman v. Haeuser Shellac Co., 289 N.Y. 76
(1942) and In re Lowenthal, 199 A.D. 39 (1st Dep’t 1921) to support the proposition
that an arbitration provision may be invoked not only by the original parties to the
agreement, but also by its assignees. (L&S Br., at 15). The reason why neither of
these cases applies is elementary: in each of those cases, the non-signatory party
being compelled to arbitrate fully stood in the shoes of a signatory to the agreement
to arbitrate. In Lipman, the non-signatory being compelled to arbitrate was a
signatory’s total assignee. Lipman, 289 N.Y. at 79. In Lowenthal, the non-signatory
being compelled to arbitrate was a signatory’s appointed receiver. In re Lowenthal,
199 A.D. at 43. Here, by contrast, there is no evidence of any such assignment,
written or otherwise.
That factual distinction is the difference between why it can be said that the
parties in those cases voluntarily waived their Constitutional right to a trial by jury,
and why in this case the same cannot be said. (See U.S. Const. Amend. 7; N.Y.
Const. Art. I, § 2); see People v. Coventry First LLC, 13 N.Y.3d 108, 113 (2009)
(“[A]rbitration is a matter of consent, not coercion.”). As noted above, the
16
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
presumption of a right to a trial by jury may be overcome only by language that is
“clear, explicit and unequivocal.” Waldron v. Goddess, 61 N.Y.2d 181, 183-84
(1984).
The federal cases cited by the L&S Defendants also have no bearing on this
case because they were decided pursuant to the Federal Arbitration Act, which is not
at issue in this state court case. (See L&S Br., at 15 (citing Vitrano v. N.A.R., Inc.,
No. 18-CV-06754 (KAM) (RLM), 2020 U.S. Dist. LEXIS 54019 (E.D.N.Y. Mar.
27, 2020) and Variblend Dual Dispensing Sys., LLC v. Seidel GmbH & Co., KG, 970
F. Supp. 2d 157 (S.D.N.Y. 2013))). Vitrano is further inapposite because in that
case the non-signatory to an agreement seeking to compel arbitration against a
signatory was a total assignee of another signatory to that agreement and therefore
stood in the shoes of the signatory. Vitrano, 2020 U.S. Dist. LEXIS 54019, at *8-9.
The L&S Defendants’ other cases are also inapplicable. In Arrowhead Golf
Club, LLC v. Bryan Cave, LLP, 59 A.D.3d 347 (1st Dep’t 2009) and McAlley v.
Boise-Griffin S.S. Co., 81 A.D.2d 771 (1st Dep’t 1981) (see L&S Br., at 16), the
parties entered into a written agreement that had an arbitration provision, but the
plaintiffs were attempting to write it out. See Arrowhead, 59 A.D.3d at 348
(plaintiffs claimed the arbitration provision was unconscionable but otherwise
acknowledged the existence of a valid and enforceable agreement with defendant);
McAlley, 81 A.D.2d at 771 (“[P]laintiffs rely upon the agreement evidenced in the
17
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
telex of June 22, 1977 but maintain that the particular provision requiring arbitration
is not binding upon them.”). The plaintiffs in these cases acknowledged that there
was otherwise a valid and enforceable agreement between the parties in the case.
That is not what Mr. Roberts is doing here. He does not have any agreement with
the Respondents, from which he is attempting to excise an arbitration provision. He
is just trying to get paid the royalties he is owed for his important work on the
Musical that is still being exploited by the Respondents without payment or credit.
In God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP,
6 N.Y.3d 371 (2006) (see R&H Br., at 9) and St. John’s Univ. v. Skanksa USA Bldg.
Inc., 2011 N.Y. Slip. Op. 30457(U) (Queens Cty. Mar. 1, 2011) (see L&S Br., at
16), the evidence clearly showed that the parties in each litigation intended to be
bound by an agreement to arbitrate with each other, and the question of the
enforceability of the arbitration agreement turned on the enforceability of an
unsigned contract. See God’s Battalion, 6 N.Y.3d at 373 (“[A]n arbitration clause
in a written agreement is enforceable, even if the agreement is not signed, when it is
evident that the parties intended to be bound by the contract.”).; St. John’s, 2011
N.Y. Slip. Op. 30457(U), ¶ 4 (“Although SJU did not sign the warranty, it is evident
that it intends to be bound by it[.]”). Mr. Roberts is not attempting to “pick and
choose” his obligations, rights, and liabilities with respect to parties with whom he
18
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023
negotiated an unsigned written agreement (or with whom he even chose to discuss a
transaction); these cases are therefore also inapposite.
III. The R&H Agreement does not bar Mr. Roberts’ claims against the R&H
Defendants.
The R&H Defendants and Broadway Asia’s cited cases seeking to impose an
arbitration obligation on Mr. Roberts under the R&H Agreement similarly fail to
reflect the factual circumstances of this case, and therefore do not merit a denial of
Mr. Roberts’ appeal.
The R&H Defendants cite to Williams v. Progressive Ne. Ins. Co., 41 A.D.3d
1244 (4th Dep’t 2007) and HRH Constr. LLC v. M
Preview
FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 EXHIBIT 11 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 FILED: APPELLATE DIVISION - 1ST DEPT 03/11/2022 02:58 PM 2021-03250 NYSCEF DOC. NO. 21 To beRECEIVED argued by: NYSCEF: 03/11/2022 DAVID LEICHTMAN (Time requested: 15 minutes) Case No. 2021-03250 New York Supreme Court Appellate Division—First Department CHAPMAN ROBERTS, Plaintiff-Appellant, -against- RODGERS & HAMMERSTEIN HOLDINGS LLC, THE RODGERS & HAMMERSTEIN ORGANIZATION, CONCORD THEATRICALS CORP., MIKE STOLLER, THE ESTATE OF JEROME LEIBER a/k/a THE JEROME I. LEIBER 1997 FAMILY TRUST, LEIBER STOLLER PRODUCTIONS, INC., and BROADWAY ASIA COMPANY, L.L.C., Defendants-Respondents. Appealed from Index No. 650698/2019 PLAINTIFF-APPELLANT’S REPLY BRIEF LEICHTMAN LAW PLLC David Leichtman Tatsuya Adachi Pranav Katti 228 East 45th Street, Suite 605 New York, New York 10017 (212) 419-5210 dleichtman@leichtmanlaw.com tadachi@leichtmanlaw.com pkatti@leichtmanlaw.com Attorneys for Plaintiff-Appellant Chapman Roberts FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................ 1 REPLY STATEMENT OF FACTS ....................................................................... 1 I. The record is devoid of any evidence that Mr. Roberts agreed to arbitrate disputes with any of the parties in this case. ................................................... 1 II. The record is devoid of any evidence that the L&S Defendants received an assignment of the Vocal Arranger Agreement’s arbitration provision. .......... 5 III. The L&S Defendants’ mischaracterization of the reasons for Mr. Roberts amending his original Complaint is unfounded. ............................................. 7 IV. The record is devoid of any evidence of a meeting of the minds between Mr. Roberts and the R&H Defendants as to the arbitration of disputes. ............. 11 ARGUMENT ......................................................................................................... 14 I. It was the Respondents’ burden to prove Mr. Roberts agreed to arbitrate with them; it was not Mr. Roberts’ burden to prove the opposite......................... 14 II. There is no legal basis for compelling Mr. Roberts to arbitrate with contractual strangers such as the Respondents. ............................................ 16 III. The R&H Agreement does not bar Mr. Roberts’ claims against the R&H Defendants. ................................................................................................... 19 IV. Mr. Roberts is not estopped from pursuing his claims against either set of Respondents pursuant to the direct benefits theory of estoppel or any other doctrine barring his claims based on the source of the remedy sought......... 20 CONCLUSION ...................................................................................................... 27 i FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 TABLE OF AUTHORITIES CONSTITUTIONAL PROVISIONS N.Y. Const. Art. I, § 2 ............................................................................................. 16 U.S. Const. Amend. 7 .............................................................................................. 16 CASES 2004 Parker Family LP v. BDO USA LLP, 2020 N.Y. Misc. LEXIS 2353 (N.Y. Cty. May 29, 2020) .............................................................................................. 22 Arrowhead Golf Club, LLC v. Bryan Cave, LLP, 59 A.D.3d 347 (1st Dep’t 2009) .............................................................................................................................. 17 Choctaw Generation L.P. v. Am. Home Assur. Co, 271 F.3d 403 (2d Cir. 2001) .................................................................................................................... 26 Deloitte v. Noraudit A/S v. Deloitte Haskins & Sells, U.S., 9 F.3d 1060 (2d Cir. 1993) .................................................................................................................... 23 Fuller v. Uber Techs. Inc., 2020 N.Y. Slip. Op. 33188(U) (N.Y. Cty. Sep. 25, 2020) .............................................................................................................. 24, 26 Gen. Elec. Capital Corp. v. Pacheco & Lugo, P.L.L.C, 300 A.D.2d 185 (1st Dep’t 2002) ...................................................................................................................... 5 God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, 6 N.Y.3d 371 (2006) ............................................................................................... 18 Hoffman v. Finger Lakes Instrumentation, LLC, 2005 N.Y. Slip. Op. 25037 (Monroe Cty. Jan. 26, 2005) .......................................................................... 24, 25 HRH Constr. LLC v. Metro. Transp. Auth., 33 A.D.3d 568 (1st Dep’t 2006) .............................................................................................................. 19, 20 In re Lowenthal, 199 A.D. 39 (1st Dep’t 1921) ...................................................... 16 Layton-Blumenthal, Inc. v. Jack Wasserman Co., 280 A.D. 135 (1st Dep’t 1952) .................................................................................................................... 14 ii FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 Lipman v. Haeuser Shellac Co., 289 N.Y. 76 (1942).............................................. 16 Matter of Belzberg v. Verus Invs. Holdings Inc., 21 N.Y.3d 626 (2013) .......... 21, 24 Matter of SSL Int’l, PLC v. Zook, 44 A.D.3d 429 (1st Dep’t 2007)........................ 22 McAlley v. Boise-Griffin S.S. Co., 81 A.D.2d 771 (1st Dep’t 1981) ....................... 17 Oxbow Calcining USA Inc. v. Am. Indus. Partners, 96 A.D.3d 646 (1st Dep’t 2012) .................................................................................................................... 14 People v. Coventry First LLC, 13 N.Y.3d 108 (2009) ...................................... 14, 16 Rosenbaum v. Am. Sur. Co., 11 N.Y.2d 310 (1962)................................................ 15 Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003) ........... 5 Shaughnessy v. Baron, 151 A.D.2d 561 (2d Dep’t 1989) ......................................... 5 St. John’s Univ. v. Skanksa USA Bldg. Inc., 2011 N.Y. Slip. Op. 30457(U) (Queens Cty. Mar. 1, 2011) ................................................................................. 18 State of Cal. Pub. Employees’ Ret. Sys. v. Shearman & Sterling, 269 A.D.2d 221 (1st Dep’t 2000) ..................................................................................................... 5 Variblend Dual Dispensing Sys., LLC v. Seidel GmbH & Co., KG, 970 F. Supp. 2d 157, 162 (S.D.N.Y. 2013) .................................................................................... 17 Vitrano v. N.A.R., Inc., No. 18-CV-06754 (KAM) (RLM), 2020 U.S. Dist. LEXIS 54019, at *5 (E.D.N.Y. Mar. 27, 2020) ............................................................... 17 Waldron v. Goddess, 61 N.Y.2d 181 (1984) ..................................................... 15, 17 Williams v. Progressive Ne. Ins. Co., 41 A.D.3d 1244 (4th Dep’t 2007) ......... 19, 20 RULES C.P.L.R. § 1001 ......................................................................................................... 5 C.P.L.R. § 1003 ......................................................................................................... 5 C.P.L.R. § 3025 ......................................................................................................... 7 iii FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 OTHER AUTHORITIES Siegel, N.Y. Prac. § 133 ............................................................................................ 5 iv FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 PRELIMINARY STATEMENT The present appeal relates to a 78-year old African American artist’s ability to seek redress for years of non-payment of royalties due to him for his work on the hit Broadway show, Smokey Joe’s Café (the “Musical”). Effectively, if the appeal is denied, it will end his efforts to correct years of wrongdoing because, in large part due to the Respondents’ actions, he cannot afford to pay an arbitrator to decide the important issues raised in his First Amended Complaint. The lower court’s decision is unjust, and should be reversed. REPLY STATEMENT OF FACTS I. The record is devoid of any evidence that Mr. Roberts agreed to arbitrate disputes with any of the parties in this case. In their statements of fact, the L&S Defendants1 (see Doc. No. 18 (“L&S Br.”), at 8) and the R&H Defendants2 and Broadway Asia3 (see Doc. No. 17 (“R&H Br.”), at 3-7) point to the presence of arbitration provisions in two agreements, referred to as the Vocal Arranger Agreement (dated in 1994)4 and the R&H 1I.e., Defendants-Respondents the Estate of Jerome Leiber a/k/a Jerome I. Leiber 1997 Family Trust, Mike Stoller, Leiber Stoller Productions, Inc., collectively. I.e., Defendants-Respondents Rodgers & Hammerstein Holdings LLC, The Rodgers & 2 Hammerstein Organization, Concord Theatricals Corp., collectively. 3 I.e., Defendant-Respondent Broadway Asia Company, L.L.C. The parties referenced in n.1-3, supra, may be referred to hereinafter collectively as the “Respondents.” 4 I.e., Mr. Roberts’ 1994 agreement with the L&S Broadway Company (the “Broadway Producers”) for the creation of the vocal arrangements (the “Vocal Arrangements”) the Musical, as further amended by the Broadway Producers and Mr. Roberts in 1996. (R. 261-70, July 9, 2021, 1 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 Agreement (dated in 1999)5 as justification for the arbitration of Plaintiff-Appellant Chapman Roberts’ (“Mr. Roberts”) claims. But they ignore the material fact that neither of those agreements, respectively, from 28 and 22 years ago, are between the parties to this case. The lower court also ignored that fact in its Order (Doc. No. 9, Appendix (“R.”) 40-45 (the “Order”)). As the case law shows, and as will be discussed below, that is why the lower court’s decision and the holding the Respondents ask this Court to adopt are not only unfair, but also legally impermissible. The record shows that in 1994, Mr. Roberts agreed to arbitrate disputes with the original Broadway Producers of the Musical, but no one else. (R. 265, Vocal Arr. Agmt., at § 11). The record also shows that in 1999, the R&H Defendants and the L&S Defendants agreed to arbitrate disputes with each other, but no one else. (R. 124, R&H Agmt., at § 13.1). Affirmation of David Leichtman (“Leichtman Aff.”), at Ex. U (“Vocal Arr. Agmt.”); see R. 66, First Amended Complaint (“FAC”), at ¶ 22). 5 I.e., the 1999 agreement by which the L&S Defendants authorized the R&H Defendants and Broadway Asia to license the Musical, including Mr. Roberts’ Vocal Arrangements, to live theatrical companies and venues around the world. (R. 93-145, Affidavit of Victoria G. Traube (“Traube Aff.”), Ex. A (“R&H Agmt.”); see R. 67, FAC, at ¶ 27). 2 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 The record is devoid of any evidence that Mr. Roberts agreed to arbitrate disputes with any of the R&H Defendants or with the L&S Defendants. That is an undisputable fact. In the Vocal Arranger Agreement between Mr. Roberts and the Broadway Producers (a single-purpose entity which no longer exists), Mr. Roberts agreed to arbitrate disputes with the Broadway Producers, who are not parties to this case. As the case law shows, absent an assignment of the Vocal Arranger Agreement’s arbitration provision from the Broadway Producers to the L&S Defendants, just because Mr. Roberts agreed to arbitrate with someone in 1994 does not mean he agreed to arbitrate with the L&S Defendants, or anyone who received some form of rights from the Broadway Producers but not a total assignment of the Vocal Arranger Agreement or the arbitration clause itself. The Broadway Producers are not the wrongdoers in this case, nor are they the party who benefitted from L&S Defendants’ license to the R&H Defendants which permitted the R&H Defendants to license the Musical (with Mr. Roberts’ Vocal Arrangements) to theatre companies and venues during the six years preceding the Complaint in this action which give rise to the claims in this case. Furthermore, the Broadway Producers represented to Mr. Roberts, in the 1996 amendment to the Vocal Arranger Agreement at Section 3.1, that they would advise the L&S Defendants of Mr. Roberts’ rights to payment and credits, which they evidently did 3 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 since the L&S Defendants passed on at least the payment obligation to the R&H Defendants. (R. 268, Vocal Arr. Agmt., 1996 Amendment, at § 3.1; R. 117, R&H Agmt., at §7.1.A.). Exactly what happened to the original Broadway Producers’ rights and obligations to produce the Musical and under the Vocal Arranger Agreement remains a mystery, because the L&S Defendants have refused to disclose the contours of their transactions with the Broadway Producers. The only thing that is known is that the entity appears to have been dissolved. During a 1995 arbitration with the Broadway Producers on a different issue, the Broadway Producers disclosed that the original contracting party under the Vocal Arranger Agreement (named the L&S Broadway Company) had assigned its rights to an entity called the “L&S Broadway Company Limited Partnership.” (R. 267 Vocal Arr. Agmt., 1996 Amendment, at preamble). The original Broadway production of the Musical closed in 1999. Later, in an April 5, 2010 letter from the Paul Weiss law firm to the R&H Defendants, Paul Weiss advised the R&H Defendants that the “Broadway Partnership [i.e., the Broadway Producers] is no longer entitled to a share” of the proceeds from the R&H licenses, directing the R&H Defendants to instead make payments previously designated for the Broadway 4 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 Producers directly to the L&S Defendants. (R. 96, Traube Aff., Ex. A, April 5, 2010 Letter, at 2).6 II. The record is devoid of any evidence that the L&S Defendants received an assignment of the Vocal Arranger Agreement’s arbitration provision. The only thing that would affirmatively show that any of the Respondents inherited from the Broadway Producers the right to arbitrate Mr. Roberts’ claims under the Vocal Arranger Agreement would be either: (1) a document showing the total and complete assignment of the entire Vocal Arranger Agreement from the Broadway Producers to the L&S Defendants; or (2) a document showing a partial assignment of the particular obligation to arbitrate Mr. Roberts’ claims within the 6 As Mr. Roberts only seeks damages for the six year period prior to the filing of the original Complaint in this action, there is therefore no Broadway Producer entity who could possibly be responsible for compensation from the R&H licenses, and thus no Broadway Producer entity to join in this case. To the extent the L&S Defendants sought dismissal for failure to name that entity, therefore, dismissal would not have been appropriate, and in any event, dismissal in such circumstances is a drastic, unfavored remedy. See Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 821 (2003) (“Dismissal of the action for nonjoinder of a given person is a possibility under the CPLR, but it is only a last resort.” (quoting Siegel, N.Y. Prac. § 133). New York law is clear that where certain rights under an agreement are transferred from one of the original contracting parties to a third party to the original transaction, the original contracting party is not a necessary party. See Gen. Elec. Capital Corp. v. Pacheco & Lugo, P.L.L.C, 300 A.D.2d 185, 185 (1st Dep’t 2002) (assignor of contract rights not deemed to be a necessary party under C.P.L.R. § 1001 in case where assignee was a party to the case; denial of motion under C.P.L.R. § 1003 affirmed); Shaughnessy v. Baron, 151 A.D.2d 561, 562-63 (2d Dep’t 1989) (under C.P.L.R. § 1001, former husband of plaintiff was not required to be joined because he transferred his interest under the relevant contract, and therefore had relinquished standing to invoke such rights; mere knowledge underlying the relevant transactions insufficient grounds for joinder); see also State of Cal. Pub. Employees’ Ret. Sys. v. Shearman & Sterling, 269 A.D.2d 221, 221-22 (1st Dep’t 2000) (as a matter of law, assignment of contract rights removed contractual relationship between plaintiff and defendant, the original contracting parties and parties to the litigation). 5 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 Vocal Arranger Agreement from the Broadway Producers to the L&S Defendants. The record contains neither. The Respondents attempt to obscure the issue by mischaracterizing Mr. Roberts’ allegations. For example, the R&H Defendants and Broadway Asia in their brief state that the R&H Defendants “are alleged to be the ‘successors-in- interest’ to the Vocal Arranger Agreement by virtue of what Plaintiff-Appellant characterizes as the ‘R&H Agreement.’” (R&H Br., at 3). That is not what Mr. Roberts alleged. Mr. Roberts did not allege that the L&S Defendants are the successors-in- interest to the entire Vocal Arranger Agreement. Instead, he alleged that “the L&S Broadway Company [the Broadway Producers] transferred the payment and credit obligations” in the Vocal Arranger Agreement to the L&S Defendants. (R. 67, FAC, at ¶ 26 (emphasis added)). This is the same mistake the trial court made in its Order. (See, e.g., R. 43, Order, at 4). The difference between a total and partial assignment of the Vocal Arranger Agreement is material to this appeal. And because there is no evidence of an assignment beyond the payment and credit obligations, evidenced by the L&S license agreement with R&H, there is no evidence that shows that any of the Respondents inherited from the Broadway Producers the right to arbitrate Mr. Roberts’ claims under the Vocal Arranger Agreement, or any rights and obligations 6 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 other than the payment and credit obligations. That is fatal to the lower court’s decision and the Respondents’ position on appeal. III. The L&S Defendants’ mischaracterization of the reasons for Mr. Roberts amending his original Complaint is unfounded. The L&S Defendants have put forth a false narrative concerning the reasons why Mr. Roberts pursued this state court litigation and the reasons why Mr. Roberts amended his original Complaint. (L&S Br., at 6-8). First, in doing so, the L&S Defendants ignore that Mr. Roberts amended his Complaint as a matter of right pursuant to C.P.L.R. § 3025. But more importantly, they also ignore the wealth of record evidence that shows that Mr. Roberts tried to learn the nature of the L&S Defendants’ transaction with the Broadway Producers multiple times in order to determine what the L&S Defendants “inherited,” if anything, from the Broadway Producers. But he was thwarted at every turn. The correspondence in the record between counsel for Mr. Roberts, the L&S Defendants, and the R&H Defendants shows that the L&S Defendants’ version of the facts is misleading. At the time Mr. Roberts initially filed suit on February 1, 2021, Mr. Roberts had never been provided with anything showing an assignment from the Broadway Producers to the L&S Defendants of any of the rights or obligations of the Broadway Producers’ Vocal Arranger Agreement with Mr. Roberts that would evidence any requirement to arbitrate. (R. 177-79, Leichtman Aff., Ex. B). Instead, the only 7 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 information that he was provided with was an oral statement from L&S Defendants’ counsel. (Id.). While Respondents had acknowledged that they were the proper parties for suit with respect to Mr. Roberts’ claims for royalties in the preceding six years, Mr. Roberts was not provided any documentation showing that any rights or obligations other than the payment and credit obligations in the Vocal Arranger Agreement had been transferred to anyone by the Broadway Producers, including the arbitration provision. (Id.). Mr. Roberts was not a party to any of the transactions subsequent to the Vocal Arranger Agreement, and therefore there was no basis for any of the Defendants to assert that Mr. Roberts had any agreement with the L&S Defendants or the R&H Defendants to arbitrate his claims, or any knowledge of any obligation on his part to do so. While Respondents pointed Mr. Roberts to Paragraph 11 of the Vocal Arranger Agreement, which states that all disputes arising under that agreement as between the Broadway Producers and Mr. Roberts are subject to arbitration (see R. 180-83, Leichtman Aff., Ex. C), they ignored completely the very next paragraph in the Vocal Arranger Agreement. That paragraph provides that the Broadway Producers “shall have the right to assign all or any part of its rights” under the Vocal Arranger Agreement. (R. 265, Vocal Arr. Agmt., at § 12 (emphasis added)). Thus, as pointed out to Respondents by Mr. Roberts, none of the Respondents in this case are parties to the Vocal Arranger Agreement, and without documentation showing 8 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 the nature of the “transfers” or “reversion” of rights to the various Defendants of all of the rights and obligations under the Vocal Arranger Agreement, Mr. Roberts had no basis to conclude that any of the Respondents had received the benefit of the arbitration provision in particular. (R. 184-87, Leichtman Aff., Ex. D). And again, Respondents steadfastly refused to provide a single document that would evidence a complete assignment of the Vocal Arranger Agreement, which expressly contemplates the possibility of a partial assignment of rights and obligations. Because Section 3.1 of the 1996 amendment to the Vocal Arranger Agreement expressly contemplates the reversion of “[the Broadway Producers’] rights to produce the Show [the Musical]” to “the authors of the Show [the Musical],” (i.e., the L&S Defendants), Mr. Roberts believes that there was never any actual assignment of the right of the Broadway Producers to arbitrate, because a mere “reversion” of rights to produce the Musical would not include all of the rights and obligations as between the Broadway Producers and Mr. Roberts. (R. 268, Vocal Arr. Agmt., at 1996 Amendment, § 3.1). Indeed, Section 3.1 of the 1996 Amendment expressly states that any such “reversion” would not effect a total assignment of the Vocal Arranger Agreement, because it contemplates the need for the “authors” (the L&S Defendants) to obtain separate rights from Mr. Roberts in certain circumstances, which the Broadway Producers would not have needed. (Id.). And, despite numerous requests, Respondents never provided any documentation of 9 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 a complete assignment of all rights and obligations under the Vocal Arranger Agreement. Mr. Roberts made clear to the Respondents that if he was going to voluntarily discontinue this action due to the purported applicability of the arbitration provision in the Vocal Arranger Agreement to disputes with non-parties to that agreement, he would only do so if there was factual support that such provision had indeed been assigned to any of the Respondents. Mr. Roberts requested such documentation numerous times and each time was stonewalled. (R. 193-98, 201-02, 220-24, 230- 34, 241-260, Leichtman Aff., Exs. F, H, N, P, R, S, T). Counsel for the L&S Defendants stated, “[T]he free discovery train has left the station.” (R. 248, Leichtman Aff., Ex. S). That is, of course, their prerogative, but it can only lead to one conclusion: Respondents cannot meet their burden to show that either the entire agreement or the arbitration provision was assigned to them. That is a consequence of the Respondents’ own unwillingness to factually support their position with a single document showing they received an assignment of the right to deprive Mr. Roberts of a jury and to compel arbitration. During the exchanges among counsel, the L&S Defendants continually mischaracterized the allegations of the original Complaint by claiming that Mr. Roberts was alleging a complete assignment of the Vocal Arranger Agreement had occurred. (R. 188-92, 225-29, 230-53, Leichtman Aff., Exs. E, O, P, Q, R, S). The 10 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 L&S Defendants criticize Mr. Roberts’ amendment of his Complaint as an effort to “plead around” the arbitration provision and cure a defect in his original Complaint, but that is not the case. (L&S Br., at 6-7). What the above-referenced correspondence shows instead is that Mr. Roberts attempted in good faith to resolve the factual issue of whether the arbitration right in the Vocal Arranger Agreement was transferred to any of the Respondents for several months. In response, Respondents never put forth a document or made any effort to close the above-referenced gap in the chain of authorizations from the Broadway Producers to the L&S Defendants and never provided factual support for a total assignment of the rights and obligations or of the arbitration burden under the Vocal Arranger Agreement to any of the Respondents. IV. The record is devoid of any evidence of a meeting of the minds between Mr. Roberts and the R&H Defendants as to the arbitration of disputes. As to the R&H Agreement between the L&S and R&H Defendants, which Mr. Roberts had no knowledge of until 2020, more than two decades after it was entered into (see R. 67, FAC, at ¶ 27), the R&H Defendants claim that Mr. Roberts is bound to the arbitration provision contained within it because Mr. Roberts’ name appears in the R&H Agreement in connection with his right to payment for use of his Vocal Arrangements (an obligation they failed to meet), and therefore the arbitration provision is “binding upon all the parties [to the R&H Agreement].” 11 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 (R&H Br., at 7). But Mr. Roberts is a not a party to that agreement, did not even know about it until decades later, and has not received any benefits from it. As noted, Mr. Roberts was not even aware of this transaction until 2020. It is therefore disingenuous to purport that the R&H Agreement reflects a meeting of the minds between Mr. Roberts and the R&H Defendants as to the arbitration of disputes between them, as required to enforce the arbitration burden on him. It is also disingenuous because it was not even raised by the R&H Defendants for the majority of the discussions between the parties leading up to the amendment of the original Complaint. Instead, the R&H Defendants initially only invoked the Broadway Producers’ Vocal Arranger Agreement (to which they are not a party). It was only several months later that they also asserted that Mr. Roberts’ claims are arbitrable because the R&H Agreement contains a separate arbitration provision. (R. 199-200, Leichtman Aff., Ex. G). But as referenced above, and as pointed out by Mr. Roberts’ counsel, Mr. Roberts was not a party to the R&H Agreement, never saw the agreement until 2020, is not a direct beneficiary of that agreement, and was two steps removed from it at the time that transaction occurred. (R. 212, Leichtman Aff., Ex. L). Thus, Mr. Roberts had no basis to conclude that he was subject to the arbitration provision in the R&H Agreement. *** 12 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 In summary, there is no basis whatsoever, other than the Respondents’ self- serving, unverified, and undocumented say-so, showing either that: (1) as non- parties to the Vocal Arranger Agreement, any of the Respondents have the right to invoke the Vocal Arranger Agreement’s arbitration provision as to Mr. Roberts; nor that (2) the R&H Defendants separately have the right to invoke the R&H Agreement’s arbitration as to Mr. Roberts, who is not only a non-party to that agreement, but is two steps removed from that transaction. After trying to learn in earnest whether there was a legitimate basis for Respondents’ efforts to invoke either of the arbitration clauses, Mr. Roberts clarified the allegations in his original Complaint to reflect the facts of the case: to wit, that it now appears that only the payment and credit obligations of the Vocal Arranger Agreement “reverted” or were inherited by the L&S Defendants, who, in turn, passed the payment obligations on to the R&H Defendants. There was simply never an assignment of either the entire Vocal Arranger Agreement nor any right to force Mr. Roberts to the burdensome obligation to arbitrate his claims, which he cannot afford to do. 13 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 ARGUMENT I. It was the Respondents’ burden to prove Mr. Roberts agreed to arbitrate with them; it was not Mr. Roberts’ burden to prove the opposite. The principle problem across both the lower court’s decision and the Respondents’ briefs is their attempt to flip the burden of proof on their primary affirmative defense in this case, i.e., the imposition of the burden to arbitrate on Mr. Roberts. In the lower court, and here, it was the Respondents’ burden to prove Mr. Roberts agreed to arbitrate with them. It was not Mr. Roberts’ burden to prove the opposite. See Layton-Blumenthal, Inc. v. Jack Wasserman Co., 280 A.D. 135, 135 (1st Dep’t 1952) (“The burden is upon a party applying to compel another to arbitrate, to establish that there was a plain intent by agreement to limit the parties to that method of deciding disputes. No one is under a duty to resort to arbitration unless by clear language he has so agreed.”); see also Oxbow Calcining USA Inc. v. Am. Indus. Partners, 96 A.D.3d 646, 649 (1st Dep’t 2012) (“Where, as here, the parties dispute not the scope of an arbitration clause but whether an obligation to arbitrate exists, the general presumption in favor of arbitration does not apply.”). The only manner by which Mr. Roberts may be deprived of his constitutionally protected right to a trial by jury is if he has done so voluntarily. See People v. Coventry First LLC, 13 N.Y.3d 108, 113 (2009) (“[T]he obligation to arbitrate depends on an agreement to arbitrate; arbitration is a matter of consent, not coercion.” (internal quotation marks and citations omitted) (emphasis in original)). 14 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 Indeed, “[n]o one is under a duty to resort to arbitration unless by clear language he has so agreed.” Rosenbaum v. Am. Sur. Co., 11 N.Y.2d 310, 314 (1962). The presumption may be overcome only by language that is “clear, explicit and unequivocal.” Waldron v. Goddess, 61 N.Y.2d 181, 183-84 (1984). It cannot be overcome by speculation about what may have happened in a mystery transaction between the Broadway Producers and the L&S Defendants. The Respondents bore a heavy burden which they did not meet. Rather than meeting its burden, e.g., by producing a document showing the assignment of the entire Vocal Arranger Agreement or its arbitration provision from the Broadway Producers to any one of the Respondents, there is only the absence of any such evidence. And because it is the Respondents’ burden to prove the right to arbitrate, and it is not Mr. Roberts’ burden to prove the opposite, any factual omissions in the record or lack of directly analogous case law should have been resolved in Mr. Roberts’ favor, not in the Respondents’ favor as the lower court ruled. The lower court’s Order fails to appreciate the nature of the Respondents’ burden, and for that reason it erred and the Order should be reversed. 15 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 II. There is no legal basis for compelling Mr. Roberts to arbitrate with contractual strangers such as the Respondents. The case law cited by the Respondents in support of their positions have no bearing on the proper forum for Mr. Roberts’ claims and the disposition of his appeal. The L&S Defendants cite to Lipman v. Haeuser Shellac Co., 289 N.Y. 76 (1942) and In re Lowenthal, 199 A.D. 39 (1st Dep’t 1921) to support the proposition that an arbitration provision may be invoked not only by the original parties to the agreement, but also by its assignees. (L&S Br., at 15). The reason why neither of these cases applies is elementary: in each of those cases, the non-signatory party being compelled to arbitrate fully stood in the shoes of a signatory to the agreement to arbitrate. In Lipman, the non-signatory being compelled to arbitrate was a signatory’s total assignee. Lipman, 289 N.Y. at 79. In Lowenthal, the non-signatory being compelled to arbitrate was a signatory’s appointed receiver. In re Lowenthal, 199 A.D. at 43. Here, by contrast, there is no evidence of any such assignment, written or otherwise. That factual distinction is the difference between why it can be said that the parties in those cases voluntarily waived their Constitutional right to a trial by jury, and why in this case the same cannot be said. (See U.S. Const. Amend. 7; N.Y. Const. Art. I, § 2); see People v. Coventry First LLC, 13 N.Y.3d 108, 113 (2009) (“[A]rbitration is a matter of consent, not coercion.”). As noted above, the 16 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 presumption of a right to a trial by jury may be overcome only by language that is “clear, explicit and unequivocal.” Waldron v. Goddess, 61 N.Y.2d 181, 183-84 (1984). The federal cases cited by the L&S Defendants also have no bearing on this case because they were decided pursuant to the Federal Arbitration Act, which is not at issue in this state court case. (See L&S Br., at 15 (citing Vitrano v. N.A.R., Inc., No. 18-CV-06754 (KAM) (RLM), 2020 U.S. Dist. LEXIS 54019 (E.D.N.Y. Mar. 27, 2020) and Variblend Dual Dispensing Sys., LLC v. Seidel GmbH & Co., KG, 970 F. Supp. 2d 157 (S.D.N.Y. 2013))). Vitrano is further inapposite because in that case the non-signatory to an agreement seeking to compel arbitration against a signatory was a total assignee of another signatory to that agreement and therefore stood in the shoes of the signatory. Vitrano, 2020 U.S. Dist. LEXIS 54019, at *8-9. The L&S Defendants’ other cases are also inapplicable. In Arrowhead Golf Club, LLC v. Bryan Cave, LLP, 59 A.D.3d 347 (1st Dep’t 2009) and McAlley v. Boise-Griffin S.S. Co., 81 A.D.2d 771 (1st Dep’t 1981) (see L&S Br., at 16), the parties entered into a written agreement that had an arbitration provision, but the plaintiffs were attempting to write it out. See Arrowhead, 59 A.D.3d at 348 (plaintiffs claimed the arbitration provision was unconscionable but otherwise acknowledged the existence of a valid and enforceable agreement with defendant); McAlley, 81 A.D.2d at 771 (“[P]laintiffs rely upon the agreement evidenced in the 17 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 telex of June 22, 1977 but maintain that the particular provision requiring arbitration is not binding upon them.”). The plaintiffs in these cases acknowledged that there was otherwise a valid and enforceable agreement between the parties in the case. That is not what Mr. Roberts is doing here. He does not have any agreement with the Respondents, from which he is attempting to excise an arbitration provision. He is just trying to get paid the royalties he is owed for his important work on the Musical that is still being exploited by the Respondents without payment or credit. In God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, 6 N.Y.3d 371 (2006) (see R&H Br., at 9) and St. John’s Univ. v. Skanksa USA Bldg. Inc., 2011 N.Y. Slip. Op. 30457(U) (Queens Cty. Mar. 1, 2011) (see L&S Br., at 16), the evidence clearly showed that the parties in each litigation intended to be bound by an agreement to arbitrate with each other, and the question of the enforceability of the arbitration agreement turned on the enforceability of an unsigned contract. See God’s Battalion, 6 N.Y.3d at 373 (“[A]n arbitration clause in a written agreement is enforceable, even if the agreement is not signed, when it is evident that the parties intended to be bound by the contract.”).; St. John’s, 2011 N.Y. Slip. Op. 30457(U), ¶ 4 (“Although SJU did not sign the warranty, it is evident that it intends to be bound by it[.]”). Mr. Roberts is not attempting to “pick and choose” his obligations, rights, and liabilities with respect to parties with whom he 18 FILED: NEW YORK COUNTY CLERK 12/08/2023 04:26 PM INDEX NO. 653801/2023 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 12/08/2023 negotiated an unsigned written agreement (or with whom he even chose to discuss a transaction); these cases are therefore also inapposite. III. The R&H Agreement does not bar Mr. Roberts’ claims against the R&H Defendants. The R&H Defendants and Broadway Asia’s cited cases seeking to impose an arbitration obligation on Mr. Roberts under the R&H Agreement similarly fail to reflect the factual circumstances of this case, and therefore do not merit a denial of Mr. Roberts’ appeal. The R&H Defendants cite to Williams v. Progressive Ne. Ins. Co., 41 A.D.3d 1244 (4th Dep’t 2007) and HRH Constr. LLC v. M