Northern California Record

Monday, February 24, 2020

Appeals court modifies arbitration award between two deathcore band members


By Karen Kidd | Nov 23, 2018

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SAN FRANCISCO – A California appeals court recently modified an arbitration award in a dispute between two original members of the Oakland-based "deathcore" band All Shall Perish.

In its 11-page decision issued Nov. 21, a California First District Court of Appeals panel concluded a lower court properly confirmed the arbitration award and denied a petition to vacate that award. The appeals court panel modified the total monetary amount of the previous judgment to make it conform to the arbitration award but otherwise affirmed a Contra Costa Superior Court decision in March 2016.

The appeals court decision was handed down in the dispute between original band members Matt Kuykendall and Michael Tiner.

The appeals court modified two paragraphs in the arbitrator's award to reflect that Tiner owes Kuykendall a total of $245,165.23, including $5,515.23 in interest, and struck wording that referred to filing and legal fees and costs. The arbitrator had previously awarded Kuykendall an amount in damages plus a percentage in interest rather than a set amount in interest.

The appeals court also ordered Tiner and Kuykendall to pay their own costs for the appeal.

Justice Barbara J.R. Jones wrote the decision in which Justices Mark B. Simons and Henry E. Needham concurred.

Both Kuykendall and Tiner represented themselves throughout much of the litigation.

The band's other founding members, Ben Orum, Caysen Russo and Craig Betit, are not named as parties in the litigation.

"Kuykendall conceived of the band's name," the background portion of the decision said. "The band created a common law trademark in the name 'All Shall Perish' for compositions, performances, and merchandise."

The band released a studio album in 2003 and the following year the band members entered into a partnership agreement to sell merchandise and tickets for live performances with the profits to be divided equally among them. The partners also agreed to arbitration in any disputes. The band also entered an agreement with a record label, released albums and videos, toured and, in 2008, created All Shall Perish Inc., with each band member receiving 250 shares of the new corporation.

Things began to sour in 2010 when Kuykendall was kicked out of the band and frozen out of the partnership.

"Tiner converted most of Kuykendall's shares in the corporation to others and to benefit himself," the appeals court decision said. "Kuykendall did not receive his share of the band’s royalties. Tiner withdrew significant sums of money from the partnership's bank account for himself. He also distributed band assets to persons who did not own them."

An arbitrator later dissolved the partnership and awarded the band's name and all other rights under the partnership or the corporation to Kuykendall, along with all stock that he didn't already own in the corporation, and ordered Tiner to pay $239,650 to Kuykendall in damages plus interest. The arbitrator also prohibited Tiner from using the band's name "in any medium or commercial manner, or in connection with personal appearances, except that Tiner was permitted to refer to himself as a former member of All Shall Perish in biographical materials," the appeals court's decision said.

Contra Costa Superior Court later granted Kuykendall's petition to confirm the arbitration award and denied Tiner's petition to vacate the award. The superior court also denied Tiner's motion for reconsideration.

In his appeal, Tiner argued that the superior court was wrong to confirm the arbitration award and deny his petition to vacate.

The appeals court took issue with Tiner for making "no persuasive effort in his opening brief to justify his late submission of the declaration," the decision said.

"He does not cite any authority compelling an arbitrator to accept evidence offered after the conclusion of an arbitration hearing, without a showing of good cause," the decision continued. "Tiner’s claim in his reply brief that the declaration was 'timely' is not persuasive."

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First District Court of Appeal CaliforniaContra Costa Superior Court

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