Attorneys for AEG have filed a motion to dismiss Ozzy Osbourne's anti-trust lawsuit challenging the concert promoter's block-booking policy, which requires artists playing the O2 arena in London to also play Staples Center in Los Angeles.
According to a recent filing from AEG's lawyer Paul Salvaty, Osbourne doesn't have standing to sue the company over a proposed Staples Center commitment letter from earlier this year because the rocker was not a party to the agreement. The deal was between AEG and Live Nation, claims Salvaty.
But Osbourne's attorney Dan Wall with Latham Watkins says that argument is "flat wrong."
"The Staples Center Commitment letter binds the artist," Wall tells Billboard. "They're trying to have it both ways and say the letter is signed on an artist's behalf, but (also say) the artist will be bound by it and can't do anything if they think it's unlawful."
AEG's top lawyer Ted Fikre disagreed and accused Live Nation of "trying to recast this as a policy directed at artists because they don't want to be out front on this." He tells Billboard, "Ozzy Osbourne is being used as a straw man for Live Nation who is using this case to drive their agenda."
Live Nation is not a party to the lawsuit, which Osbourne filed in March accusing AEG of violating anti-trust laws in the ongoing venue wars between AEG and Madison Square Garden, owners of the Forum in Los Angeles. In the complaint, Wall accuses AEG of being a "monopolist" and trying to force Osbourne to play their venue in L.A. in exchange for a London date at the O2 Arena. The suit followed an earlier threat by Ozzy's wife and manager Sharon Osbourne to take AEG to court over its block-booking policy, which AEG CEO Jay Marciano has insisted was in response to block-booking between the Forum and Madison Square Garden.
After learning of the policy, Sharon Osbourne sent Marciano an email on Feb. 7 complaining that AEG was "bringing artists into a power struggle that you’re having with your competitor, Live Nation" and said, "Live Nation would never strong-arm an artist into playing a venue they’re not comfortable performing in." Marciano responded that same day, arguing "we couldn’t agree with you more -- it should always be the artist’s choice. We long for the days when artists and fans came first," before signing off, "The other guys started this first!"
Wall has been a longtime lawyer for Live Nation and typically is the lead lawyer defending the company against anti-trust claims, including past high-profile lawsuits by Songkick and I.M.P. Concerts. Fikre said Wall's involvement in the suit shows it's a "front for Live Nation who is using this case to drive their agenda" and trying to find a legal basis for striking down the Staples Center/O2 block-booking policy. He noted a similar challenge to the policy in front of the U.K.'s Competition and Market Authority that ultimately failed.
"We're not withdrawing the policy because of this lawsuit," Fikre says. "In fact, the policy is working. We've seen signs that Live Nation is backing off its practice of trying to book shows around the Staples Center," adding, that leaves the door open to revisit the Staples Center commitment letter at a later date.
Fikre continues: "We're not going to take [Azoff MSG Entertainment head] Irving Azoff's word for it, we're only going to change the policy based on what we see in the marketplace."
As part of the motion, AEG's attorney writes that "Ozzy is not a participant in the alleged relevant markets and has not alleged any facts showing that Live Nation’s execution of the LN/Ozzy Commitment Letter has caused or is likely in the future to cause him 'antitrust injury' or, for that matter, any injury at all." Wall calls that argument "offensive" and say AEG's filing allegedly shows that "the company is essentially telling artists they can't complain" about the tying arrangement between the O2 and Staples Center.
He says, "Here they are taking the legal position that artists who contract for venues in the way that everybody knows that every artist does -- which is through a promoter or some other agent -- can't complain," about being caught in the middle of the rivalry between AEG and MSG. This, he adds, is "AEG arrogance at its highest."
Wall argues the fact Osbourne is affected and potentially harmed by the Staples Center Commitment Letter gives the long-time rocker standing to sue over the arrangement.
"It's outrageous to suggest that an artist that is being forced to play a venue he doesn't want to play doesn't have any standing," he says. "Anyone who is threatened with a loss can bring an action for injunctive relief and clearly the artist is one of the people threatened with a loss. AEG knows that -- it's both a promoter and a venue operator and knows exactly what the relationship between promoters and artists means. That's why I consider this to be so outrageous and an affront to artist rights."