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A group of black concert promoters have cleared a major hurdle in their case alleging that talent booking agencies and other concert promotion companies operated by whites violated antitrust and civil rights laws. New York Southern District Judge Robert P. Patterson Jr. refused to dismiss the case filed by five black promoters who claimed they were blocked from promoting concerts because of collusion between booking outfits such as the William Morris Agency and a host of concert promoters. Judge Patterson found that the complaint filed by the plaintiffs in Rowe Entertainment Inc. v. The William Morris Agency Inc., 98 Civ. 8272, stated sufficient facts to go forward on both antitrust and civil rights claims. In an amended complaint filed in 1999, the plaintiffs charged that “because of an all-white concert promotion fraternity, the black concert promoters are systematically excluded from the promotion of concerts given by white performers.” Not only were the plaintiffs denied the opportunity to bid on promotions for white artists, they said, but they also were excluded from promoting major black artists. The eight booking agencies named in the suit, they claimed, regularly retained white concert promoters, even though the black promoters had successfully promoted some of the same artists before “they achieved star status.” The claims are based on the fact that booking agencies have talent rosters that include both well-known and virtually unknown artists. The complaint states that the agencies are “able to maintain ultimate control over the concert promotion market and guarantee promotion of all of their acts, include the less successful ones, by assuring promoters that they will always be given the opportunity, to the exclusion of all others, of promoting the booking agents’ top acts in promoters’ assigned territory, at highly profitable rates.” ‘QUID PRO QUO’ “The promoters’ ability to rely on promoting the booking agency’s top act (commanding the highest ticket prices and selling out the largest venues at anti-competitive high rates) is the quid pro quo for their agreements to bear losses on lesser acts.” These exclusive contracts to promote top acts, which the plaintiffs said “sell out without effort or expense,” ensures that the promoters will earn millions of dollars a year. The complaint sought damages and an injunction under �1 of the Sherman Antitrust Act, and damages and an injunction based on racial discrimination under 42 USC �1981 and conspiracy under 42 USC �1985(3). The booking agencies moved to dismiss, arguing the plaintiffs had failed to plead an economically rational motive for the alleged Sherman Act violations. Unconvinced, Patterson declined to dismiss the claims against the eight booking agencies. “Such relationships may, as plaintiffs point out, insure more successful promotion of the booking agents’ lesser-known clients as well as make those booking agents more appealing to performers who want reliability and consistency in the promotion of their concerts,” he said. “Therefore, the motive alleged by plaintiffs for the booking agency defendants to participate in the antitrust conspiracy is sufficiently economically plausible to survive a motion to dismiss.” SELF-INTEREST CITED Patterson added that, under the allegations, the agencies were making agreements against their own “apparent” self-interest, but that those agreements were in their actual self-interest when done in concert with others. Although Patterson refused to dismiss antitrust charges against three concert promoters, based on the fact that they were charged with overt acts in furtherance of the conspiracy, he did dismiss the Sherman Act claims against the bulk of the promoters, saying the plaintiffs offered no evidence of concerted action. The promoters “mere acceptance of promotion opportunities granted by the booking agency defendants, even if those opportunities were denied to the plaintiffs, would constitute only independent competitive decisions by the individual concert promoter defendants, which are not prohibited by Section 1 of the Sherman Act,” he said. The fact that promoter Electric Factory Concerts Inc. was given an exclusive contract to promote tours by Earth Wind & Fire and Barry White, even though those artists were former clients of the plaintiffs, he said, was insufficient to suggest they were part of an antitrust conspiracy with the booking agency defendants. “It does not violate the antitrust law to insist on conducting the promotion of a concert individually,” he said. But Patterson said he would not dismiss charges of racial discrimination despite motions to dismiss by two of the eight booking agencies, and 23 of the 26 concert promoters sued in the action. The plaintiffs had contended at a May hearing that in the last five years, not one concert in the United States has been handled by a black promoter. “No white acts have been promoted by any major black concert promoters,” plaintiffs included, they claim. “This statement,” Patterson said, “… if true and accompanied by additional anecdotal allegations … could lead to a reasonable inference of conspiracy.” The plaintiffs were represented by Martin R. Gold, Christine Lepera, and Robert E. Donnelly of Rubin Baum Levin Constant & Friedman. Defendant William Morris was represented by Charles M. Miller and Helen Gavaris of Loeb & Loeb. The other 33 defendants were represented by a variety of law firms.

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