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US venues file lawsuits over rejected Covid relief

More than 60 lawsuits have been filed over the Shuttered Venue Operators Grants (SVOG), the $16 billion aid launched by the US federal government to help live venues survive the pandemic.

A year after the US Small Business Administration (SBA) rolled out the Covid-19 relief programme, the agency is facing dozens of pending lawsuits from companies who say they were unfairly denied millions in relief, according to Billboard.

According to the aggrieved venues, SBA has refused their requests without good reason or a proper explanation, putting particular companies at a huge disadvantage over rivals who have received aid. Attorneys involved in the cases claim that rates of refusal under SVOG “significantly exceed typical government grant programmes.”

Concert Investor LLC, a Tennessee firm that has produced shows for the likes of Twenty One pilots, Little Big Town, O.A.R., is among the companies that have filed lawsuits.

Citing a 94% drop in revenue during the pandemic, the company sought nearly $5 million in aid under SVOG. However, the SBA decided the company didn’t meet the criteria to be a concert producer, saying the company “at best” merely “serves the needs” of artists by providing lighting and sound tech.

At least 33 lawsuits were still pending in federal court as of last week, according to a court filing by the SBA

In a motion filed in court Monday (2 May), Concert Investor’s attorneys asked a federal judge to grant the company a final judgment in its case, arguing the SBA had “ignored” ample evidence about its eligibility and had unfairly awarded grants to direct competitors who provide the exact same services.

“This disparate treatment has placed Concert Investor at a severe and worsening competitive disadvantage relative to other concert producers that can use their SVOG awards to restore and grow their businesses while Concert Investor is deprived of the federal assistance for which it too qualifies,” the company wrote. SBA will soon file its own brief, and the judge will rule on the case in the months ahead.

Some of the lawsuits, however, maybe in the process of getting resolved. Last week, the SBA said it would reconsider refusing $497,000 in aid to Superfan Live Inc., which offers VIP experiences at concerts from artists like Bon Jovi, Genesis, and Journey. The agency asked a federal judge for extra time so that it could “thoroughly examine the allegations in the complaint prior to issuing a new decision”.

At least 33 lawsuits were still pending in federal court as of last week, according to a court filing by the SBA.

Since it debuted in April 2021, the SVOG has handed out just over $11 billion to more than 13,000 businesses in a first wave; a second round of supplemental grants awarded an additional $3.4 billion to more than 9,000 businesses.

The SVOG, also known as the Save Our Stages Act, is part of a $1.9 billion American Rescue Package which was signed into law by President Joe Biden in March 2021.

 


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Boost for Live Nation in Covid insurance lawsuit

Live Nation has been handed a boost in its lawsuit against insurer Factory Mutual (FM) over its failure to cover the promoter’s “severe and unanticipated” losses stemming from the pandemic.

In January 2021, Beverley Hills-based Live Nation launched legal action against FM in the former’s home state of California for allegedly wrongfully refusing to pay out.

The complaint, filed in the US district court for central California, said that LN “reasonably” believed that Factory Mutual Insurance Co. would promptly cover its losses, as it has an “all-risks policy” covering lost income, property damage, extra expenses and interruptions from communicable diseases.

The filing notes that by the end of Q3 2020, the company had cancelled more than 5,000 concerts and pushed around 6,000 shows into 2021.

US district judge John A Kronstadt rejected FM’s bid to trim the lawsuit

According to Law360, Rhode Island-headquartered FM argues that, while it accepts Live Nation is entitled to cover for communicable diseases, it will not provide full coverage under the “physical loss or damage” section of the 2019 policy as Live Nation “did not suffer any physical damage or loss stemming from the virus”.

However, US district judge John A Kronstadt last week rejected FM’s bid to trim the lawsuit, ruling that it cannot be determined that – as a matter of law – the presence of Covid-19 in Live Nation’s properties could not cause “physical loss or damage”.

“The complaint sufficiently alleges that infectious respiratory droplets, which transmit Covid-19, are physical objects that may alter the property on which they land and remain,” he wrote, reports WFAV.

The conclusion does not mean that Live Nation’s case has been successful, but that FM has failed to have it dismissed at the earliest stage.

Neither side has commented on the development.

 


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Hundreds of Astroworld lawsuits to be consolidated

Hundreds of Astroworld lawsuits are being formally consolidated into a single case following a court ruling.

Ten people, aged between nine and 27, died and hundreds of others were injured following the crowd crush during Travis Scott’s headline set at the festival at Houston’s NRG Park on 5 November 2021.

Lawsuits were filed against Scott and promoters Live Nation and Scoremore, along with other parties, in each of the 24 district courts in Harris County. Nearly every claim alleges negligence such as “failures of safety and security rules, crowd control and emergency response measures, and failures to provide adequate security, supervision, training and care”.

The Texas Judicial Panel On Multidistrict Litigation has now ruled that 387 suits, representing almost 2,800 alleged victims, can move forward as one case.

“The agreed motion alleges the lawsuits arise out of incidents leading up to, during and following a live performance by Travis Scott during the Astroworld Festival outside NRG Park on November 5, 2021,” states the court papers. “We conclude that the cases arising out of the incident are related, and we find that transfer of those case would result in more efficient pre-trial of the related cases.”

“Houston Police Department continues to lead the investigation”

Billboard reports the move towards a single case was agreed upon by both sides. Scott previously requested to be dismissed from multiple lawsuits relating to the disaster, with a representative saying the rapper “is not legally liable” for the tragedy.

Live Nation, Scoremore and NRG Park owner Harris County Sports and Convention Corporation also deny all allegations against them, but have not asked for their dismissal.

Criminal investigations are still ongoing. Last month, Houston police appealed for Astroworld attendees to submit any photos or videos taken at the event.

“Houston Police Department have already viewed countless hours of video evidence as part of our ongoing investigation into the Astroworld event,” it tweeted. “To ensure that we have captured all possible evidence for a complete investigation, we have partnered with the Federal Bureau Of Investigation for additional technical assistance. The FBI has created a website where the public can upload any photos or video taken at the concert venue. Specifically, we are seeking any photos or videos of the main venue area from 8pm to 11pm. The website to upload your photos or video is fbi.gov/astroworld.

“HPD continues to lead the investigation and we appreciate the assistance from our federal partners at the FBI.”

 


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Drakeo family to sue promoters over stabbing

Family members of Drakeo the Ruler are to file a wrongful death lawsuit against Live Nation, C3 Presents and Bobby Dee Presents after the rapper was stabbed to death backstage at last month’s Once Upon a Time in LA music festival.

The three companies promoted December’s ill-fated festival at the 23,500-cap. Banc of California Stadium. Drakeo, real name Darrell Caldwell, was attacked by a group of masked assailants prior to his scheduled performance at the event, and later died in hospital from his injuries.

Organisers are accused of providing insufficient security in the lead up to the attack, with attorney James Bryant, lawyer for Caldwell’s family members, telling a press conference Drakeo had been “essentially lynched” due to the lack of precautions, reports Billboard.

“His life was taken way too soon,” said Bryant. “This should never have never happened if those promoters had actually had the proper security protocols. This was a preventable death.”

The lawsuit is seeking “at least” $20 million in damages

A criminal investigation into the incident is still ongoing.

“Those who failed Drakeo the Ruler, they’re going to be held accountable,” added Bryant, who said the lawsuit is seeking “at least” $20 million in damages and would be filed in the coming week.

Live Nation, C3 and Bobby Dee Presents have not commented on the claim.

Staged on 18 December 2021, Once Upon a Time in LA was due to be headlined by Al Green, Snoop Dogg, 50 Cent, YG and Ice Cube.

“There was an altercation in the roadway backstage,” said Live Nation in a statement at the time. “Out of respect for those involved and in coordination with local authorities, artists and organisers decided not to move forward with remaining sets so the festival was ended an hour early.”

 


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AEG sued over injury at California reggae festival

A man is suing AEG Presents in the US after allegedly being injured when he tripped on a cable at a reggae festival.

The claimant, Timothy Donnelly has accused Anschutz Entertainment Group and its AEG Presents and Goldenvoice subsidiaries of negligence and premises liability in relation to the alleged incident at the promoter’s One Love Cali Reggae Fest on 9 February 2020.

The Long Beach Post reports that Donnelly, who attended the event in Long Beach, California, for business reasons, is seeking unspecified damages for “physical and mental injuries” caused by tripping on black-taped cable.

The lawsuit states that part of the tape had raised, creating a “dangerous trap”

The lawsuit, filed with Los Angeles Superior Court, states that part of the tape had raised, creating “a dangerous trap to catch a pedestrian’s shoe or toe and cause that person to trip and fall”. It adds the tape was hard to see due to being stretched across a walkway of the same colour. Donnelly’s alleged injuries are depicted in a photo included in the suit.

AEG is yet to respond publicly to the claim.

The fifth annual One Love Cali Reggae Fest is a three day festival took place in Queen Mary Park from February 7-9 2020. Acts on the bill included Damian Marley, Lee “Scratch” Perry, The Wailers, Dirty Heads, Pato Banton, Sublime with Rome and Atmosphere.

 


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Live Nation and Ticketmaster face antitrust suit

Live Nation and its Ticketmaster business have been hit with a new class action lawsuit in the US accusing the firms of “anticompetitive” and “predatory” practices.

The complaint, filed in California federal court by lawyers Quinn Emanuel and Keller Lenkner, says the promoter has exploited its market “dominance” by engaging in acts aimed at “eliminating and/or minimising all competition”.

Accusing Ticketmaster of charging “extraordinarily high” fees, it states that 70% of tickets for major US concert venues are sold via Ticketmaster platforms.

It adds that venue operators must consider “the very real possibility” that Live Nation will not route tours through their venues if they do not select Ticketmaster as their primary ticketing provider.

“The combined Live Nation/Ticketmaster behemoth has enormous, and unique, market power in primary ticketing and concert promotion services, and has shown it is unafraid to use that power,” reads the suit, filed with a group of plaintiffs from California, Ohio and Florida, which seeks to represent any Ticketmaster customer who has bought tickets on the platform since last July.

“Ticketmaster’s dominance in primary ticketing services remains unchecked”

The filing continues: “Defendants’ anticompetitive scheme has been wildly successful and today threatens to put nearly all ticketing services for major concert venues (primary and secondary) in the United States under Ticketmaster’s monopolistic thumb.

“Ticketmaster’s dominance in primary ticketing services remains unchecked, and that dominance becomes ever more impregnable with each passing year due to defendants’ exclusive dealing, tying, and other anticompetitive conduct.”

A similar antitrust suit was filed by Quinn Emanuel attorneys in 2020, which went in Ticketmaster’s favour after going to arbitration.

A Live Nation spokesperson tells The Hollywood Reporter: “Plaintiff’s attorneys have made prior, unsuccessful attempts to bring nearly identical class actions. We are confident in the judicial process.”

 


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Coachella wins restraining order over rival event

Coachella has been granted a temporary restraining order against Live Nation in its trademark infringement lawsuit over a rival music event called ‘Coachella Day One 22’.

Live Nation is accused of “contributory infringement”, as Ticketmaster is selling tickets for the 31 December event, which is being organised by Twenty-Nine Palms Band of Mission Indians at a Southern California venue it has named ‘Coachella Crossroads’.

“Despite repeated requests from plaintiffs, Twenty-Nine Palms has refused to adopt its own distinctive event name or venue name and marks,” states the original filing in the Los Angeles district court.

According to the Industry Observer, US district judge R Gary Klausner ruled yesterday (20 December) that Coachella Day One 22 would likely confuse people into thinking it was connected with the established Coachella Festival, run by AEG’s Goldenvoice division.

It notes the temporary restraining order will prevent the sale or advertisement of tickets while the case is further contested. The event listing had already been changed to ‘Day One 22’ on Ticketmaster.

Live Nation advances only one, uncompelling argument

Live Nation’s claim that the order was unnecessary since Coachella’s standing meant it was unlikely to be impacted by a similar-sounding event, was rejected by the judge.

“Live Nation advances only one, uncompelling argument [that] Coachella’s incredible success demonstrates that its reputation will not suffer material harm from [a] ‘one-night New Year’s celebration’,” he said. “This argument is simply unpersuasive.”

Twenty-Nine Palms is not listed as a defendant in the lawsuit as the Native American Tribe has asserted through its lawyers that it is entitled to sovereign immunity.

Coachella Festival is scheduled to return to the Empire Polo Club in Indio, California from 15-17 and 22-24 April 2022. Its last two in-person editions were cancelled due to Covid-19.

 


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Coachella sues Live Nation over ‘Day One’ event

Coachella Music Festival and producer Goldenvoice are suing Live Nation for trademark infringement over a music event called ‘Coachella Day One 22’, which is advertised on Ticketmaster.

The 31 December event is being organised by Twenty-Nine Palms Band of Mission Indians at a Southern California venue it has named Coachella Crossroads.

‘Plaintiffs have no objection to Twenty-Nine Palms holding a festival of their own or hosting events at their venue, but it must adopt and use an event name and mark, as well as a venue name and mark, that avoid a likelihood of consumer confusion and false association with Plaintiffs,” states in the filing in the Los Angeles district court.

“Despite repeated requests from plaintiffs, Twenty-Nine Palms has refused to adopt its own distinctive event name or venue name and marks. Twenty-Nine Palms has even copied plaintiffs’ advertising, promotional and marketing materials, including incorporating similar color schemes along with design elements.”

The claimants note that Twenty-Nine Palms has refused to change the names of Coachella Day One 22 and Coachella Crossroads, despite numerous requests. However, the promoter is not listed as a defendant in the lawsuit as it is asserting through its lawyers that it is entitled to sovereign immunity.

Although Twenty-Nine Palms may have sovereign immunity, others contributing to the infringement do not have the same privilege

“Although Twenty-Nine Palms may have sovereign immunity, others contributing to the infringement do not have the same privilege and are subject to claims for contributory infringement as well as the court’s jurisdiction,” adds the suit.

“Accordingly, Plaintiffs have been forced to file this action to protect the Coachella trademarks and service marks from infringement, and unfair competition, and to protect the public from the likelihood of confusion.”

According to the lawsuit, Coachella and Goldenvoice sent cease and desist letters to both Live Nation and Twenty-Nine Palms in late October.

“The letter further demanded that Live Nation immediately cease all sales of tickets for the Coachella Day One 22 event, and any other music festivals, live music performances or similar events at the Coachella Crossroads, and remove all use of Coachella from any advertising for the event or venue, including on its website.

“Upon receipt of the October 28, 2021, cease and desist letter, Live Nation changed the listing… on ticketmaster.com to read ‘Day One 22’ rather than ‘Coachella Day One 22’. The event, however, continues to be advertised as Coachella Day One 22 in certain Live Nation advertising and in other advertising associated with the event.

“Despite knowing about the infringing conduct, Live Nation continued to provide services supporting Twenty-Nine Palms’ infringement and have materially encouraged, enabled, and contributed to the infringing conduct.”

Goldenvoice’s Coachella Festival is scheduled to return to the Empire Polo Club in Indio, California from 15-17 and 22-24 April 2022. Its last two in-person editions were cancelled due to Covid-19.

 


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ID&T drops lawsuit against Dutch government

ID&T says it sees no legal grounds to advance with the preliminary injunction proceedings against the Dutch government for its restrictions on live music events.

Earlier this week, the government announced that only small, one-day festivals will be permitted to take place in the Netherlands this summer due to the number of Covid-19 infections and hospital admissions.

In response, the lawyer representing ID&T and more than 40 co-claimants from the live industry contacted the state lawyer to request the Outbreak Management Team’s (OMT) advice and the substantiation of the decision.

After deliberation between all parties, ID&T says it has become clear that the current summary proceedings cannot be continued.

Rosanne Janmaat, COO of the ID&T group says: “We are extremely disappointed in the outcome of the decision. In our opinion, Fieldlab Events has shown that it is possible to organise events in a safe and responsible way, but the cabinet has decided otherwise. Despite this, our lawyers have indicated that, in view of the OMT advice on which the cabinet’s decisions are substantiated this time, there is little chance of overturning the decision by means of summary proceedings.”

“We assume that the cabinet will soon take a structural decision and that we will be able to fully open again in September”

On 13 August, the current decision on live music events will be reconsidered by the cabinet.

“We assume that the cabinet will soon take a fundamental and structural decision and that we will be able to fully open again in September,” continues Janmaat.

“After all, it has always been communicated that when everyone who wants to has been able to vaccinate, that is the way out. If the government lets us dangle again and does not offer a sustainable future perspective, we will prepare possible legal steps and perhaps even call on our entire supporters of fans, suppliers, artists, etc. to mobilise and make themselves heard.”

The Dutch promoter – known for events such as Mysteryland, Sensation, Milkshake and Decibel Outdoor – announced the summary proceedings in early July after the government reimposed Covid restrictions weeks after they were lifted.

ID&T was then joined by more than 40 event organisations including Event Warehouse/Paaspop, DGTL and F1 Dutch Grand Prix Zandvoort.

 


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SA supreme court rejects appeal over concert death

The Supreme Court of Appeal (SCA) of South Africa has rejected an appeal by one of the companies held responsible for a scaffolding tower collapse that killed one person at a Linkin Park show in South Africa in 2012.

In 2017, nearly five years after the death of 32-year-old Florentina Popa, Cape Town magistrate Ingrid Arntsen ruled that Vertex Scaffolding, Bothma Signs and Hirt & Carter – which constructed two large scaffolding towers at Cape Town Stadium and hung an advertisement for Lucozade between them – had been negligent and could be “causally linked” to Popa’s death, while Big Concerts, the promoter of the show, was found not to be responsible.

Popa died of blunt-force trauma after the tower fell on her in strong winds before Linkin Park show’s at the 58,309-seat stadium on 7 November 2012.

Arntsen said the companies should have foreseen that even moderate winds could have blown it over. “[W]inds with speeds of up to 15 metres per second were eminently foreseeable in Cape Town, and the towers could have been designed and constructed in such a way as to withstand the winds that were recorded on the day of the concert,” she said at the time.

“There is, in my view, no discernible material error of law … on which a review might be founded”

“It would appear, then, from all the evidence, that while the wind did come up and create problems, there was no real fear on the part of anyone in authority at the concert that the towers would blow over.”

Durban-based Hirt & Carter, which produces billboards and digital advertising, took the inquest’s findings to the Western Cape High Court, which dismissed the appeal, and then to the Supreme Court of appeal, which has upheld the high court’s ruling.

SCA judge Sulet Potterill, with four judges concurring, found that Arntsen “cannot be faulted for concluding that the death of the deceased was brought about by an act or omission that prima facie amounts to or involves an offence on the part of Hirt & Carter”, reports News24.

“It was premised on a finding of negligence on the part of Hirt & Carter. There is, in my view, no discernible material error of law by the magistrate of the kind on which a review might be founded. Indeed, I can find no error at all.”

Hirt & Carter’s appeal argued that the magistrate had erred when she found that it had omitted to supervise and manage the erection of the towers, which it said was the responsibility of a subcontractor (Bothma Signs).

In her judgment, Potterill disagreed, saying Arntsen “was correctly unpersuaded that the subcontracting of Bothma Signs and Vertex, against the facts of the case, could be relied on to exonerate Hirt & Carter.”

A further 19 people were injured in the accident, with 12 requiring hospitalisation.

 


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