Lawyers for Ozzy Osbourne have called AEG’s motion to dismiss the musician’s anti-trust claims “baseless on the facts and the law alike.”
In the June 1 motion to dismiss the lawsuit from the rock star that seeks injunctive action against AEG over their block booking policy between the O2 Arena in London and Los Angeles’ Staples Center, AEG said that Osbourne cannot claim anti-trust injury since the policy ties the promoter to the agreement, not the artist.
In a rebuttal to the motion to dismiss, Osbourne attorney Dan Wall writes that AEG is misleading the court and are fully aware that the policy forces artists to play their venue in Los Angeles, sometimes against their will.
“Factually, AEG misrepresents its own practices with respect to the tying requirement it enforces,” Wall’s rebuttal reads. He adds, “the formal venue hire agreement for the O2 referenced in the Staples Center Commitment unambiguously requires the promoter to ensure that the artist plays Staples when in Los Angeles.”
AEG has argued that Osbourne has no claim to sue the promoter and venue operator, because he did not sign the “Staples Center Commitment,” which was actually signed by the No More Tours 2 promoter, Live Nation.
“An artist’s promoter is his business representative, so agreements that a promoter signs bind the artist,” Osbourne’s rebuttal reads. “The resulting contract requires Live Nation to direct Ozzy’s tour routing in a variety of significant respects, imposing an obligation on Ozzy to play or not play shows at various venues subject to the conditions established by the agreement.”
The rebuttal states that regardless of who is signing the document, the block-booking policy forces the hand of the artist to follow through with a performance.
AEG’s motion to dismiss said “Ozzy is not a party to the agreement and is not subject to its obligations. Thus, the LN/Ozzy Commitment Letter does not deprive Ozzy of any ‘competitive benefits’ whatsoever. Regardless of whether Live Nation enters the LN/Ozzy Commitment Letter, Ozzy remains free to ‘play venues off each other to negotiate more favorable deal terms.'”
Even as AEG claims in its motion to dismiss that an artist isn’t bound if they use a different promoter for the Los Angeles show, lawyers for Osbourne say that is never specified in the agreement and leaves the artist with less room to play venues off of one another for the most competitive deal. Osbourne’s lawyers explain that for an artist of Osbourne’s caliber, moving a large show across town to play a preferred venue while in Los Angeles would not be financially reasonable. The result would be Osbourne and artists of his status being forced to play all of their Los Angeles dates at Staples Center in order to make the most money on their Southern California tour dates.
“Ozzy is threatened with a causal antitrust injury because he was forced to agree to the Staples Center Commitment to book the O2, which means he is no longer free to book the Los Angeles venue of his choice,” the rebuttal reads.
Additionally, the rebuttal presses the anti-competitive claim due to AEG’s position of power in London with the O2 Arena.
“As a result of the O2’s London location, seating capacity, ability to host major events, and the absence of nearby arenas with similar attributes, the O2’s owner, AEG, wields significant market power—likely monopoly power—in the market for arena-sized indoor venues for musical concerts in London or greater London,” the rebuttal reads, adding that without the block-booking policy, Los Angeles is a competitive market with several venues comparable to Staples Center.
“The point of this lawsuit is that AEG has market power in London, which it uses ‘to distort freedom of trade and competition’ in Los Angeles,'” Wall writes.
Other competitive venues in the Los Angeles market include the Forum which is owned and operated by Irving MSG, who AEG argues started thw venue war. In April 2017, Irving Azoff said “the premium [Madison Square Garden] 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.”
After Azoff’s statement and Azoff MSG ‘squeezing’ Neil Diamond to play the Forum if they wanted to play Madison Square Garden in New York, AEG Live’s Chairman Jay Marciano said the company would implement a block booking policy between the O2 and Staples Center until they reach “a comfort level” and “feel like it is believable [that MSG is not block booking.]”