Virgin Fest Los Angeles Sues WME Over Unreturned Performance Fees

Organizers of Virgin Fest Los Angeles filed suit against WME July 16 over the agency’s decision to not return performance fees for the festival’s planned debut in June, which was canceled because of the COVID-19 pandemic. 

Virgin Fest Los Angeles was set to take place June 6-7 at Exposition Park in Los Angeles and was to feature Lizzo, A$AP Rocky, Major Lazer and more. The event, like many others, was called off when the spread of COVID-19 prompted the cancellation of all major public gatherings in California by order of Governor Gavin Newsom. 

VFLA Eventco, LLC, the company representing Virgin Fest in the complaint filed in Los Angeles Superior Court, says that after the cancellation every agency the festival dealt with except WME has either returned or agreed to return performance fees for the event. WME, it says, has refused to return the fees on the grounds that the artists were willing and able to perform. 

The essential point of dispute seems to be a paragraph describing “excused performance” in the contracts for Ellie Goulding, Kali Uchis and Lizzo, which are all included as Exhibits with the complaint. 

The contract language reads: “’Force Majeure Event’ means any act beyond the reasonable control of Producer, Artist, or Purchaser which makes any performance by Artist impossible, infeasible, or unsafe (including, but not limited to, acts of God, terrorism, failure or delay of transportation, death, illness, or injury of Artist or Artist’s immediate family (e.g.spouses, siblings, children, parents), and civil disorder). In the event of cancellation due to Force Majeure then all parties will be fully excused and there shall be no claim for damages, and subject to the terms set forth herein.

“Producer [the agency or touring company] shall return any deposit amount(s) (i.e., any amount paid to Producer pursuant to the Performance Contract prior to payment of the Balance) previously received (unless otherwise agreed). However, if the Artist is otherwise ready, willing, and able to perform Purchaser [the festival] will pay Producer the full Guarantee unless such cancellation is the result of Artist’s death, illness, or injury, or that of its immediate family, in which case Producer shall return such applicable pro-rata portion of the Guarantee previously received unless otherwise agreed.” 

Virgin Fest emphasizes that after California Gov. Gavin Newsom and Los Angeles Mayor Eric Garcetti decreed all live events should be canceled and Deputy Mayor of Los Angeles William Chun wrote specifically to Virgin Fest that the event would not be allowed. Putting on the gathering, Virgin Fest contends, would thus have been unlawful and Force Majeure is fully applicable. The complaint even cites specific language from Newsom reading: “Whereas state and local officials may, as they deem necessary in the interest of public health, issue guidance limiting or recommending limitations upon attendance at public assemblies, conferences, or other mass events, which could cause the cancellation of such gatherings through no fault or responsibility of the parties involved, thereby constituting a force majeure.”

WME however, insists that the artists are under no obligation to return their fees. 

“Our clients are contractually entitled to the money already paid to them, plain and simple,” a WME statement provided to Pollstar reads. “We have stated our position numerous times to Virgin Fest, and attempted to work with them to find an impactful way forward in today’s climate despite our clients’ clear contractual rights, and especially considering that our clients booked these engagements in large part due to the charitable component, only to be met with hostile threats.”

Virgin Fest is suing WME and companies representing Ellie Goulding, Kali Uchis and Lizzo – alleging the agency acted “with malice, fraud, and oppression, and in conscious disregard for VFLA’s rights” – for damages equal to at least the amount paid in performances, punitive damages, injunctive damages, interest and legal fees. 

Billboard has reported the touring fees for the three artists combines to $6 million.