Victory Appeals Judge’s Ruling

Victory Records is appealing a judge’s ruling that says Hawthorne Heights is free to record albums with other labels while still honoring its contract with the indie label.

Victory’s attorney Robert Meloni filed a motion to reconsider in response to U.S. District Judge James Moran ruling that the band’s contract is non-exclusive.

"We find the agreement is unambiguous as to this point, and that plaintiffs’ services to defendants during the term of the recording agreement are not exclusive," Moran wrote in his ruling. "The agreement contains no exclusivity provision, nor does any of its language appear to prevent plaintiffs from recording elsewhere during the life of the agreement."

Victory filed a motion March 6th to reconsider based on its contention that Hawthorne Heights has only delivered two of four consecutive albums it owes Victory, and could indefinitely drag out completing the other two under Moran’s ruling.

"Although Hawthorne Heights claims that they can make records for any other record company now because the Agreement does not mention the word ‘exclusive,’ they do not provide the court with any guidance as to what their contractual commitments really are," the court papers said. "The reason is obvious – their myopic reading of the agreement is intended to divert the Court’s attention from the most unambiguous, and unassailable, aspect of the agreement, i.e., the plaintiffs’ obligation."

The Chicago-based label and owner Tony Brummel have been in a nasty legal battle with Hawthorne Heights members Eron Bucciarelli-Tieger, Casey Calvert, Micah Carli, Matt Ridenour and JT Woodruff since last August when the band filed a lawsuit claiming fraudulent accounting practices, among other charges.

Hawthorne Heights then released a statement titled "The REAL Manifesto" announcing that the band had left Victory and detailing many of its grievances against Brummel.

According to the suit, the band had a non-exclusive contract with Victory that it terminated last August, but the label continued to sell the band’s music and use its trademark.

Victory Records then filed a lawsuit in November against Virgin Records and its parent, EMI Music, Virgin president Jason Flom and head of business affairs Jason Kempler, claiming Virgin executives poached its flagship act before the band had fulfilled its contract.