Just named the most powerful law firm in sports, Proskauer Rose has landed a high-profile assignment of a different variety: representing a group of concert promoters suing syndicates of British insurer Lloyd’s of London for refusing to pay out a claim related to a Lady Gaga concert in Jakarta, Indonesia, that was scheduled for June 2012 but subsequently canceled.
The planned show was nixed last May after Jakarta police refused to issue Lady Gaga—real name: Stefani Germanotta—a permit in the face of protests by religious groups and conservative politicians in country, The New York Times reported at the time. The Times also reported that one of Indonesia’s largest Islamic groups had called the often-risqué singer "a pornography icon."
Now, according to sibling publication The National Law Journal, concert promoter Live Nation, the singer’s touring company, and talent agency The Atom Factory are suing three Lloyd’s syndicates in U.S. district court in California for breach of contract and breach of the implied covenant of good faith and fair dealing in connection with the canceled show. In their complaint [PDF], which was filed March 1, the plaintiffs claim the Lloyd’s syndicates failed to honor "Terrorism Policies" in the three companies’ contracts that should have covered them for losses incurred by the cancellation.
The complaint claims that the Jakarta concert was called off "to prevent bodily injury and property damage and to protect the lives and safety of Lady Gaga, all members of the Born This Way Tour, and the public . . ." The suit goes on to alleged that the plaintiffs had purchased a total of three terrorism policies from the Lloyd’s syndicates that covered concerts on the tour between April 19, 2012 and March 17, 2013, which allegedly promised to cover the companies for any net losses suffered from the "necessary cancellation" of a performance as a direct result of acts or threats of terrorism.
The companies state in the suit that they each suffered losses as a result of the canceled performance, but that Lloyd’s denied coverage "based on language and purported conditions that are not contained in the terrorism policies."
The complaint points to a May article in the The Australian reporting that supporters of the Islamic Defenders Front had purchased more than 150 tickets to the concert with the intention of stopping the performance. Germanotta herself tweeted in May that Indonesian authorities had asked her to censor the performance and that some religious extremists had threatened violence. (Germanotta’s tour was later canceled completely, last month, after the performer decided to undergo surgery for a chronic hip injury. The Hollywood Reporter notes that the losses from the 21 canceled shows could exceed $25 million, with promoters and insurers likely to be at odds over who will be responsible for those costs.)
Live Nation, Mermaid Touring, and The Atom Factory are all represented by a Proskauer Rose team that includes Chicago-based litigation partner Paul Langer and associate Joshua Pollack, in Los Angeles, according to court filings. When reached for comment by The Am Law Daily, Langer—who left Mayer Brown with two other partners in 2008 to establish Proskauer’s Chicago office—declined to comment on the suit.
It was not immediately certain who is representing the Lloyd’s syndicates. A Lloyd’s spokesman provided The Am Law Daily with the following comment: "The Lloyd’s insurance market always seeks to settle valid claims as quickly as possible."
The three companies are seeking damages in excess of $75,000 on each of the two causes of action stated in their complaint.
LOHAN’S SUIT AGAINST PITBULL IS TOSSED, LAWYER IN THE DOGHOUSE
Lindsay Lohan’s lawsuit against musician Pitbull over the inclusion of her name in the hit 2011 song "Give Me Everything" ended with the actress is getting nothing. Lohan’s lawyer is probably wishing she could say the same.
On February 21, a New York federal judge granted the motion to dismiss Lohan’s complaint filed last March by McDermott Will & Emery on behalf of Pitbull (real name: Armando Christian Perez), as well as such other named defendants as Sony Music Entertainment, RCA Music, the singer Ne-Yo, and Afrojack, a disc jockey.
Lohan filed the suit in November 2011, claiming that the lyric "So, I’m tiptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan" violated her right to privacy and caused her emotional distress while unjustly enriching the defendants. (Though Lohan originally filed the suit in New York State court, McDermott had it moved to federal court based on the fact that Lohan officially resides in California, not New York.)
In his order dismissing the suit [ PDF], U.S. district judge Denis Hurley wrote that the song is a work of art and is therefore protected under the First Amendment. While acknowleding a "relative sparsity of case law" regarding lawsuits over public figures named in songs, Hurley also noted that the mere use of Lohan’s name in the song was not enough to "meet the threshold for extreme and outrageous conduct" that would merit a claim of intentional emotional distress.
McDermott litigation partner Marcos Jimenez, who led the firm’s team along, with associate Audrey Pumariega, tells The Am Law Daily that the lack of precedent makes this decision all the more notable. "This really [is] an important case in the sense that it further establishes the right of artists and musicians to express themselves, even to the point of using others named in songs without having to worry about being sued by other people," Jimenez says.
Meanwhile, in a somewhat surprising coda to the case, the judge also imposed sanctions against Lohan’s Long Island attorney, Stephanie Ovadia, after the McDermott attorneys proved she had plagiarized documents submitted to the court from online sources, including newspaper articles. All told, Hurley hit Ovadia with $1,500 in fines for false representation and plagiarism. The judge rejected McDermott’s request that Lohan be sanctioned for bringing a frivolous suit.
Ovadia referred The Am Law Daily to her attorney, New York-based Pery Krinsky, who did not immediately respond to a request for comment. In its own report about the suit’s dismissal, sibling publication the New York Law Journal noted that Ovadia had told the court in a letter that she had contacted McDermott about submitting a revised opposition with the allegedly plagiarized material removed, but that Hurley ultimately ruled that even the proposed revision contained evidence of plagiarism.
In 2010, Lohan famously filed a $100 million lawsuit against E-Trade Bank after the company aired a Super Bowl commercial featuring a talking baby named Lindsay who was referred to as a "milkaholic," which the actress alleged was an obvious reference to her previous arrests for driving under the influence. Lohan and E-Trade settled that suit the same year on undisclosed terms, but reports at the time suggested the actress got at least some money in the bargain.
Jimenez says he believes Lohan’s reported success in the E-Trade case may have spurred her to seek legal action against his clients: "I think that case gave her some encouragement, and her lawyers."
As for how he came to represent Pitbull, Jimenez says he met the singer through a mutual friend. According to Jimenez, his friend—who is also a client—works with charter schools in the Miami area, where Pitbull live and where the musician is working to build a free charter school. Jimenez, who is also from Miami, says he believes Pitbull was "happy to have a fellow Cuban-American from Miami" as his counsel.
BT GROUP BUYS ESPN UK AND IRELAND
Freshfields Bruckhaus Deringer is advising British telecommunications company BT Group, which announced recently that it has agreed to buy ESPN’s television channels business in the U.K. and Ireland. The value of the deal was not disclosed.
The business includes ownership of the ESPN and ESPN America channels, as well as live sports rights to events such as the FA Cup, UEFA Europa League, and the German Bundesliga. The deal also allows BT to continue to air such U.S. sports as college basketball and football, and NASCAR, through the ESPN America channel. ESPN will continue to control its various affiliated websites and streaming services in the U.K. and Ireland, as well as ESPN Classic.
The Freshfields team advising BT Group is led by London-based corporate partner Natasha Good. U.K. publication Legal Week reports that Good also advised BT on last year’s $1.1 billion agreement with the Premier League to air 38 soccer matches between 2013 and 2016.
DLA Piper is advising ESPN on the deal with a team led by London-based corporate head Charles Severs, as well as intellectual property and technology partner Nick Fitzpatrick and corporate partner Yunus Maka. Intellectual property head Frank Ryan is leading the firm’s U.S. team, based in New York. Attorneys Kyle Quinn and Caitlin Whale also worked on the deal in the U.K.
DLA advised ESPN last year on its bid to expand the Global X Games franchise to include events in Brazil, Germany, and Spain between 2013 and 2016.
The deal between BT and ESPN is expected to close on July 31, pending regulatory approval.
BERTELSMANN BUYS REMAINDER OF BMG
German media giant Bertelsmann said last week that it has agreed to buy the remaining 51 percent stake in Berlin-based music rights management company BMG that it does not already own. Bertelsmann is paying to take full control of the company from its one-time joint venture partner, investment firm Kohlberg Kravis Roberts (KKR).
Though financial terms were not disclosed, The New York Times, citing an anonymous source with knowledge of the deal, reports that Bertelsmann will pay between $700 million and $800 million. That price would value the company—which holds rights to more than 1 million songs by such artists as Blondie, Cat Stevens (Yusuf Islam), and Frank Ocean—at about $1.4 billion in total.
The deal is expected to close during the first half of the year, pending regulatory approval.
Bertelsmann and KKR formed BMG as a joint venture in 2009, a year after Bertelsmann sold its stake in the Sony BMG Music Entertainment joint venture with Sony to the Japanese company for $900 million. As the Times notes, the original incarnation of BMG (Bertelsmann Music Group) was among the top music rights companies in the ’80′s and ’90′s, before the German company began selling off its music interests. "This is a great day for Bertelsmann: We are bringing the music home to our group," Bertelsmann CEO Thomas Rabe said in a statement.
Slaughter and May is advising Bertelsmann in connection with the purchase, led by London-based M&A partner Richard de Carle and Brussels-based competition partner John Boyce. The Magic Circle firm also advised Bertelsmann as it embarked on the 2009 BMG joint venture with KKR and the firm was also called upon last October as one of several firms advising the company on the combination of subsidiary Random House with Penguin Group. (Davis Polk & Wardwell also advised Bertelsmann on each of those agreements.)
For its part, KKR has turned to frequent outside counsel Simpson Thacher & Bartlett for advice on the sale of its BMG stake. The Simpson Thacher team includes M&A partner Mark Pflug and associate Clare Gaskell, while partner David Vann and associate Etienne Renaudeau are advising on regulatory matters. The firm also advised KKR on the formation of the BMG joint venture.
Elsewhere on the entertainment beat…
–Last October, a federal judge in Illinois dismissed a copyright lawsuit brought by a South African lyricist who had claimed that Sir Elton John stole his lyrics when penning the 1985 song "Nikita." In her order [ PDF], Judge Amy St. Eve wrote that any overlapping themes in the two songs were too general to qualify as copyright infringement. Now, the lyricist, Guy Hobbs—who filed his suit last April—is appealing that ruling, claiming it cited as precedent a Seventh Circuit decision that is at odds with the U.S. Supreme Court’s previous rulings on copyright protection and authors’s rights. Pryor Cashman is representing John, along with his songwriting partner Bernard Taupin and music publisher Big Pig Music. Hobbs, who filed his appeal [ PDF] in November in the Seventh Circuit Court of Appeals, is represented by Chicago-based Voelker Litigation Group. Appellate briefs in the appeal are due April 11.
–Rap mogul Dr. Dre (real name: Andre Young) is suing Yamaha in U.S. district court in California for copyright infringement, claiming the Japanese conglomerate made headphones that too closely resemble his popular Beats by Dre line. The complaint [ PDF], filed February 6, claims that Yamaha’s Pro series of headphones are "knock-offs" of what the claim calls Beats’s patented and "revolutionary" design and thus attempts to confuse customers into purchasing Yamaha products based on Beats’s success. Dr. Dre’s company, Beats Electronics, is represented in the suit by attorneys at Mitchell Silberberg and Knupp as well as Neal Gerber and Eisenberg. Yamaha, which is represented by Los Angeles-based Morrison & Foerster intellectual property partner Bita Rahevi, has until March 29 to respond to the complaint, according to a court filing.
—Sony Music recently announced that it has agreed to purchase EMI’s share of pop music compilation series Now That’s What I Call Music! from EMI parent Universal Music Group. U.K. publication Legal Week reports that White & Case advised Sony on the acquisition, while SJ Berwin took the lead for Universal. The New York Times reports that the came as part of the divestitures European regulators have forced Universal to make in order to win approval of its $1.9 billion purchase of EMI Music from Citigroup, which was announced in November 2011. SJ Berwin also took the lead for Universal on that deal, as well as for its parent, Vivendi. The most recent deal, whose value the Times pegs at about $60 million, gives Sony the series that has released CD and digital compilation albums of popular music since 1983.
–Frank Ocean is being sued in California federal court, along with collaborator Malay (real name: James Ryan Ho), for allegedly failing to credit a songwriter who claims he contributed to a song featured on the Grammy Award–winning singer’s 2012 album Channel ORANGE. In a complaint [PDF] filed March 6 by attorneys at Kelley Drye & Warren, Micah Otano claims he was denied a songwriting credit on the song "Lost." The song is officially credited to both Ocean and Ho, but Otano claims it is based on a song called "Daylight" that he cocreated with Ho. The complaint claims Otano signed away his rights to "Daylight" for $1,500 after being convinced by Ho that the latter had rerecorded all of Otano’s work in order to produce "Lost." Otano now claims "Lost" features Otano’s performances on various instruments copied directly from his previous work on the song he created with Ho. Kelley Drye entertainment and media partners Andrew White and Edward Weiman are representing Otano along with associate Audrey Jing Faber, according to court filings. Otano, whose claims include copyright infringement and breach of contract, is asking the court to award him producing and writing credits to the song along with attorneys fees and unspecified damages to be paid by the defendants, who also include the Island Def Jam Music Group and Universal Music Group.