The purpose of the Music#MeToo foundation is to give a voice to victims of insulting behaviour, discrimination, sexualisation and sexual abuse, and to combat this undesirable behaviour in the music industry. The Music#MeToo foundation aims to initiate a class action against Warner Music Benelux B.V. (“Warner”). This entails seeking an order for Warner to comply with its own ethical code of conduct and/or an injunction or a declaratory decision with regard to Warner’s unlawful conduct. According to the Music#MeToo foundation, there is structural misconduct by artists in the Dutch music industry. Warner is alleged to facilitate this misconduct and to fail to act against it.
On 8 December 2020, the Music#MeToo foundation submitted a request to the District Court for a preliminary examination of witnesses to be held. Arnhem-Leeuwarden Court of Appeal 8 December 2020, ECLI:NL:GHARL:2020:10177 The foundation wished to examine directors of Warner and of Spec Entertainment B.V. (an artist management company), together with a few rap artists. As Warner failed to appear before the District Court, the request was granted. On appeal, Warner and six other applicants requested that the decision be set aside and that the request for the holding of a preliminary examination of witnesses be denied after all. According to Warner and three other applicants, the request should be denied because there was no interest on the part of the Music#MeToo foundation. In Warner’s view, the foundation intended to institute proceedings on the basis of Article 3:305a of the Dutch Civil Code, but failed to meet the requirements set for that purpose.
In assessing a request to conduct a preliminary examination of witnesses, the requirements for a class action as referred to in Article 3:305a of the Dutch Civil Code were relevant. The Court of Appeal held that the Music#MeToo foundation had not made a sufficiently plausible case to suggest that it performed any activities to achieve its objects under the articles of association or had a relevant support base. The Music#MeToo foundation did not provide the Court of Appeal with any information to show that it had the support of relevant followers. The Court of Appeal noted that, in the absence of further information about the foundation’s support base, it was not possible to assess whether there were similar interests, in the sense that efficient and effective legal protection for the benefit of the interested parties could be served. As it had not been established that the foundation had a collective interest in initiating proceedings against Warner, or an interest of its own in doing so, it had no interest in the preliminary examination of witnesses requested by it. The request for the holding of a preliminary examination of witnesses was denied.