On February 15, 2016, Kanye West tweeted that his album, The Life of Pablo, “will never never never be on Apple. And it will never be for sale… You can only get it on Tidal.”  A month and a half later, not only was the album on Apple, but it was also for sale on multiple sites other than Tidal.

In October 2016, Justin Baker-Rhett, a Kanye fan, brought claims against Kanye and Aspiro AB, the operator of Tidal, for violations of New York State’s General Business Law and fraudulent inducement in a putative class action in the United States District Court of the Southern District of New York.  Baker-Rhett argues that he and other customers subscribed and paid for the Tidal music service only because of the fraudulent tweet. He asserts that if he had known that Mr. West’s album would be available on other platforms, he would not have subscribed to Tidal.

West filed a motion to dismiss, and in June 2018, U.S. District Judge Gregory H. Woods dismissed the claims arising under New York’s General Business Law.  However, Baker-Rhett’s fraudulent inducement claim may proceed to the extent that it is predicated upon the alleged misrepresentation in West’s February 15, 2016, tweet.

In August, Baker-Rhett filed a motion to have the class certified to proceed with the case.  The proposed class would include anyone who subscribed to Tidal in the six-week period between Kanye’s tweet and the widespread release of “The Life of Pablo,” and anyone who streamed a track from the album within the first 24 hours of subscribing.

On Wednesday, October 3rd, lawyers for Kanye and Aspiro AB urged Judge Woods not to grant class certification.  “The only way to establish which, if any, of the class members were (1) aware of the tweet; and (2) relied on its contents when subscribing to Tidal, is to conduct individualized inquiries of each class member’s subjective experiences and motivations,” wrote attorneys for West and Aspiro AB, the company that owns Tidal.  “That would outweigh any benefits of a class action, and is precisely why consumer fraud actions such as this are inappropriate for class certification.”

Ashley Park is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

Image: Kenny Sun from Boston, Kanye West Saint Pablo Tour TD Garden 2016 5, CC BY 2.0

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