The second day of Woodstock 50’s court battle with Japanese financier Dentsu ended Tuesday (May 14) without a decision, but the New York Supreme Court judge in the case said he would issue a ruling within 24 to 36 hours, according to a rep for the festival.
The means a verdict will like come sometime Wednesday after 5 p.m. EST, as Justice Barry R. Ostrager wades through two different sets of arguments at play. On the surface, the case is a contractual dispute about whether Woodstock 50’s financial backer, Dentsu Aegis, had breached its agreement by canceling the festival on April 29 in statements made to vendors, agents and the press. Denstu attorney Marc Greenwald, however, appeared determined to show Justice Ostrager that Dentsu and its affiliate, Amplifi Live, were justified in pulling the plug on the anniversary concert scheduled for Aug. 16-18 in Watkins Glen, New York.
Greenwald’s lines of questioning directed at his two witnesses — Dentsu’s chief commercial officer DJ Martin and MKTG chief operating officer Peter Office, who had been hired by Martin — portrayed lacking infrastructure, permits and basic safety measures in place to throw a three-day, 150,000 person-strong nostalgia-fest in less than three months.
Office, who was selected as a consultant by Dentsu to Woodstock 50 because he has produced Super Bowls, PGA Gold Championships, Ryder Cups and the Harley-Davidson 100th Anniversary Tour, said he stopped working on the festival because it had not secured a mass gathering permit, finalized traffic plans or began necessary road construction. He also said Woodstock 50 lacked New York State Department of Health requirements to have an emergency response plan in place and it had not hired sufficient security personnel.
“Given that no work has started on the site and there are 82–84 days until the festival, I think it would be very, very challenging” to pull it off, he said on the stand.
Woodstock 50 attorney Marc Kasowitz frequently objected to parts of Office’s testimony that he designated “hearsay,” which Justice Ostrager sustained. For example, Office began relaying what the head of operations at the Watkins Glen International racetrack had told him before Kasowitz interrupted him. Kasowitz did not object, however, to Office’s account of conversations he had with one of Michael Lang’s partners in W50, Susan Cronin.
“There was one conversation early on where Michael Lang requested that Danny Wimmer [talent buyer for the festival] be used as a concessionaire, and Susan Cronin and I said that was not a smart idea,” he said. “There were conversations held where Susan Cronin was not complimentary to Michael, and wished he was not part of the program. She thought he was interfering in multiple things related to the program.”
After the hearing, which adjourned without a resolution, Kasowitz’s and Greenwald’s teams met privately in Justice Ostrager’s chambers. Speaking to a small group of reporters clustered outside the courtroom, Kasowitz said he would “absolutely” not comment on their private conversation with the judge but expressed irritation with what Office said about Cronin’s disparaging comments toward Lang.
“I thought that was really out of line,” he said. “I don’t think it’s true. I thought it was some cheap shot the witness was trying to manufacture to sow some kind of dissension on our side.”
As Justice Ostrager reminded everyone the previous day, the hearing was meant to decide a contractual dispute and not serve as a conversation about the historical importance of Woodstock 50 nor, on the other hand, whether the festival could be pulled off. As such, Kasowitz used his opportunity to cross-examine a visibly agitated and defensive Martin to allege that Dentsu was not entitled to cancel the festival — even though Martin claimed he notified Woodstock 50 it was in breach of its contract on April, and then used a mechanism in the contract to take control of the event, and then announced it was cancelled.
While the contract did include language allowing Dentsu to seize control of the festival, it also included plain language that the festival could only be canceled if both sides agreed.
“Why did Dentsu and Amplifi choose to exercise the control option, rather than terminate the agreement, which they had the right to do, assuming there were breaches, which you claim there are?” Kasowitz asked.
“If we took control, it was the best path to protect and minimize our losses,” Martin responded, clarifying that this decision was made at the urging of Dentsu’s legal counsel to minimize the cost of the cancelation. “We wanted to make sure no further damage could be done to Woodstock, our partners and our audience.”
By this point, Kasowitz had gone through much of the contract section by section, establishing that by exercising the control option, Dentsu allowed itself to unilaterally cancel the festival and sweep all the funds from its shared bank account to its own account, all the while retaining rights under the Woodstock name licensing agreement, thus preventing Woodstock 50 from using it going forward.
“Earlier you said — it’s here, I have it written down — that, ‘We made the business decision in the best interest of the festival.’ It’s not in the best interest of the festival, it’s in the interest of Dentsu and Amplifi,” Kasowitz asked Martin.
Outside the courtroom, Kasowitz said the strategy all along was to use the language of the Dentsu agreement with Woodstock 50 to argue that Martin had no right to announce the event was canceled or withdraw the company’s remaining investment from the festival’s bank account, which Dentsu controlled and provided Woodstock 50 with read-only access.
“I think our case turns on the contract, clear as day,” Kasowitz said.