Features
Judge Denies AEG Motion To Dismiss Ozzy Lawsuit
– Ozzy Osbourne
Ozzy Osbourne attends a conference in Sao Paulo, Brazil, April 1, 2011.
A U.S. District Judge has thrown out AEG’s motion to dismiss a lawsuit filed by Ozzy Osbourne alleging the promotion giant is unlawfully tying its venues The O2 in London and Staples Center in Los Angeles.
The memorandum seeking dismissal was filed June 1 and essentially claimed Ozzy lacked antitrust standing, hadn’t satisfactorily proven the existence of any element of coercion, and that his preference for The O2 didn’t necessarily mean AEG has adversely affected the market’s competitiveness.
However, Judge Dale S. Fischer ruled Aug. 1 that AEG’s argument for lack of coercion was “unpersuasive” and Ozzy made “numerous plausible allegations of how competition is harmed, most obviously through the restriction of competition in the tied market – indoor arena-sized venues in Los Angeles.”
Fischer also wrote that whether it was Ozzy or tour promoter Live Nation being constrained by the agreement, “it is clear that the complaint alleges that Ozzy personally suffers damage in a fairly direct and non-speculative way by not being able to play in his preferred venues and that the damage stems from the kind of conduct that antitrust law is intended to prevent. “
“AEG is alleged to be using market power in one market to foreclose competition in another through a tying arrangement. That tie allegedly harms Ozzy by constricting his choices on where to play his concerts regardless of whether Ozzy’s or his concert promoter’s name is on the contract with the venue.”
With the motion to dismiss denied, the suit will continue to progress through the courts.
Ozzy’s suit was filed March 21, alleging violation of Section 1 of the Sherman Antitrust Act and seeking injunctive and declaratory relief in the form of an injunction that prohibits enforcement of the “Staples Center Commitment,” a judicial determination that the Staples Center Commitment “is contrary to the antitrust laws of the United States,” that the portion of the agreement signed by Osbourne that conditions the use of The O2 on use of Staples Center is unenforceable, plus attorney’s fees and costs.
That filing followed a public exchange between Sharon Osbourne, Ozzy’s wife and manager, AEG Presents CEO/chairman Jay Marciano and Irving Azoff, whose Azoff MSG Entertainment runs the Forum in Inglewood, Calif. (Irving Azoff is also on the board of Pollstar’s parent company, Oak View Group).
In that spat, Marciano wrote to Sharon: “Please understand this dispute is between The Forum and Staples Center and 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,” followed by a “PS – The other guys started this first!”
Marciano references alleged “block booking” practices between Madison Square Garden Arena in New York and the Forum in Inglewood.
Azoff provided Billboard with a statement last year addressing the competition between venues, writing: “Premium MSG nights are going to loyal friends of the company. Playing the Forum – the obviously better music venue in Los Angeles – makes you a friend of the company. I only wish we could accommodate everyone with dates in Manhattan, but it’s simple supply and demand.” He went on to say: “Unlike London and Germany, there are now four arenas in the New York area, so if an act can’t play the Garden, they can go elsewhere.”
Sharon Osbourne told Pollstar in February after speaking on a panel at Pollstar Live!: “Ozzy loves the Forum, and isn’t as comfortable at Staples Center.
“He played the Forum when he was 21! He is 70 now. And he loves The O2 in London. These are arenas he wants to be in. They wanted signatures saying we would only play Staples Center if we agreed to The O2 and they could sue us if we didn’t. So I said, ‘[expletive] you.’”
Pollstar got in touch with several attorneys after the dispute became public, who offered varied opinions on the matter. One of them was Howard King, who said: “The O2 has limited availability. Why shouldn’t the owner of the building be able to impose whatever conditions they want for someone to book the venue, including saying you have to use the other venue if you ever come to Los Angeles? It’s not like you’re being deprived of food or water, and it’s not like you don’t have another venue in London to go to. There’s lots of venues in London. Where did everybody go before The O2 was built?
“From a PR standpoint, Sharon may be right but from a legal standpoint, it’s not like AEG controls the market for venues in London. … They just happen to have what some people consider the best venue. They’re not a public utility; they don’t have to make it available to everybody.”
Pollstar reached out to representatives for AEG Presents, Azoff MSG Entertainment and Sharon Osbourne for comment, but hadn’t heard back at publication time.