Sullivan d/b/a Survivor v. Jamison, No. 06 C 5240, Slip Op. (N.D. Ill. Dec. 1, 2010) (Coleman, J.).
Judge Coleman denied counter-defendants’ (collectively "Survivor Music") Fed. R. Civ. P. 12(b)(6) motion to dismiss counter-plaintiffs’ breach of contract and related claims in this dispute over royalties due based upon the copyrighted songs of the band Survivor — Eye of the Tiger was one of their big hits. Although counter-plaintiffs were not signatories to the agreements from which the song royalties flowed, they were replacement members of Survivor and as such had agreed in writing to be bound by and enjoy the benefits of the agreements. As to Survivor Music’s statute of limitations claim, although the claim was older than five years, counter-plaintiffs did not discover it until less than five years before filing their counterclaims.