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ROWE ENTERTAINMENT, INC. v. WILLIAM MORRIS AGENCY

January 4, 2005.

ROWE ENTERTAINMENT, INC., LEONARD ROWE, SUN SONG PRODUCTIONS, INC., JESSE BOSEMAN, SUMMITT MANAGEMENT CORPORATION, FRED JONES, JR., LEE KING PRODUCTIONS, INC., and LEE KING, Plaintiffs,
v.
THE WILLIAM MORRIS AGENCY, INC., CREATIVE ARTISTS AGENCY, LCC, RENAISSANCE ENTERTAINMENT, INC., JAM PRODUCTIONS, LTD., and BEAVER PRODUCTIONS, INC., Defendants.



The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge

OPINION AND ORDER

This opinion will address the motions of Defendants William Morris Agency, Inc. ("WMA"), Creative Artists Agency, LLC ("CAA") and Renaissance Entertainment, Inc. ("Renaissance") (collectively, the "Booking Agency Defendants"), and Jam Production, Ltd. ("Jam") and Beaver Productions, Inc. ("Beaver") (collectively, the "Promoter Defendants"), for summary judgment on the Amended Complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1*fn2 The action, filed on November 19, 1998, is brought by four African-American owned concert promoter companies and their owners: Rowe Entertainment, Inc. ("Rowe Entertainment"), Leonard Rowe, Sun Song Productions, Inc. ("Sun Song"), Jesse Boseman, Summitt Management Corporation ("Summitt"), Fred Jones, Jr., Lee King Productions, Inc. ("King Productions"), and Lee King.*fn3 (Pls.' Am. Compl., dated Aug. 9, 1999 ("Am. Compl."), ¶¶ 12, 14-16.)

The Amended Complaint originally charged eight talent and booking agency defendants,*fn4 each controlled by white persons and doing business throughout the United States, and twenty-six concert promoter defendants,*fn5 each doing business in the United States and controlled by white persons, with violation of section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, and of the Civil Rights Act of 1866 and 1991, 42 U.S.C. §§ 1981, 1985(3) and 1986. (Id. ¶¶ 2-3, 5, 18-25, 29-55.) Due to stipulated orders of dismissal since the filing of the Amended Complaint, only two concert promoter companies, Jam and Beaver, and three talent and booking agencies, WMA, CAA, and Renaissance, remain in this action.

  I. BACKGROUND

  A. General Nature of Claims in Amended Complaint

  Plaintiffs allege "violations of antitrust and civil rights laws in connection with the promotion of live concert performances throughout the United States of pop, rock and urban music (`contemporary music') (hereinafter referred to as `concerts' or `contemporary music concerts')." (Am. Compl. ¶ 1.) The Amended Complaint also asserts:
[b]ecause of an all-white concert promotion fraternity, the black concert promoters are systematically excluded from the promotion of concerts given by white performers. No black promoter, including plaintiffs, has been able to contract to promote a contemporary music concert given by a white artist, or even been given the opportunity to bid on such promotion. In addition, plaintiffs are regularly excluded from the promotion of concerts given by top-drawing black performers.
(Id.)

  The Amended Complaint states that the Booking Agency Defendants, "which are all controlled by white persons, represent performers in booking concerts" and "engage promoters to promote concerts in the particular geographic areas in which concerts are to be presented." (Id. ¶ 2.) Additionally, it states that "[t]he selection of each promoter is within the discretion of the agent." (Id.)*fn6

  The Amended Complaint goes on to state that, as a product of an illegal conspiracy among the Defendants and others to boycott and exclude Plaintiffs and to discriminate against them on the basis of race in violation of section 1 of the Sherman Antitrust Act and the Civil Rights Acts of 1866 and of 1991, "[t]he booking agency defendants refer their promotion business of white acts exclusively to white promoters, predominantly to the promoter defendants," and "plaintiffs are often excluded from promoting concerts given by most popular black artists." (Id. ¶ 4.)

  The Amended Complaint contains six claims: (1) a conspiracy to restrain trade in violation of section 1 of the Sherman Act claiming damages; (2) injunctive relief for violation of section 1 of the Sherman Act; (3) intentional wrongful discrimination on the basis of race concerning Plaintiffs' right to make and enforce contracts in violation of 42 U.S.C. § 1981; (4) conspiracy to deprive Plaintiffs of the equal protection of the laws and equal privileges and immunities under the laws, including the right to make and enforce contracts, in violation of 42 U.S.C. § 1985(3); (5) injunctive relief for violation of 42 U.S.C. §§ 1981 and 1985(3); (6) violation of 42 U.S.C. § 1986 for each Defendant's failure to act or prevent the conspiracy to discriminate against Plaintiffs. (Id. ¶¶ 95-114.)

  Unless stated otherwise, the facts that follow are undisputed. B. Parties to the Litigation

  1. Plaintiffs

  Plaintiff Rowe Entertainment is a corporation organized and existing under the laws of Georgia since 1998. (Id. ¶ 12; Booking Agency Defs.' Joint Rule 56.1 Stmt. of Undisputed Material Facts, dated Feb. 28, 2003 ("Joint 56.1 Stmt."), ¶ 53.) Rowe Entertainment has its primary place of business in Atlanta, Georgia. (Am. Compl. ¶ 12.) Plaintiff Leonard Rowe is its sole shareholder and president. (Id.) Mr. Rowe has been in the concert promotion business for twenty-six years. (Joint 56.1 Stmt. ¶ 52.)

  Plaintiff Sun Song is a corporation organized and existing under the laws of New York since 1976. (Am. Compl. ¶ 14.) Sun Song has its principal place of business in New York, New York, and has operated in New York and along the East Coast of the United States. (Id.) Plaintiff Jesse Boseman is its sole shareholder and chief executive. (Id.)

  Plaintiff Summitt is a corporation organized and existing under the laws of Delaware since 1984. (Id. ¶ 15.)*fn7 Summitt has its principal place of business in Memphis, Tennessee, and promotes primarily in the Memphis metropolitan region. (Id.) Plaintiff Fred Jones is its sole shareholder and president. (Id.)

  Plaintiff King Productions is a corporation organized and existing under the laws of Mississippi since 1976. (Id. ¶ 16.) King Productions has its principal place of business in Jackson, Mississippi, and operates primarily in the southern United States. (Id.) Plaintiff Lee King is the sole shareholder and chief executive. (Id.) 2. Promoter Defendants

  Defendant Jam is an Illinois corporation with its principal place of business in Chicago, Illinois. (Id. ¶ 49.) Jam is owned and operated by Arny Granat and Jerry Mickelson, who are both Caucasian. (Pls.' Rev. Local Rule 56.1 Stmt. of Disputed Facts in Supp. Opp'n to Jam's Mot. for Summ. J., dated Mar. 12, 2003 ("Pls. Rev. Jam 56.1 Stmt."), ¶ 1.) Plaintiffs assert that Jam has promoted an average of 600 to 700 shows or more per year and between 400 to 1,200 events in 2001 and 2002. (Pls.' Rev. Jam 56.1 Stmt. ¶¶ 3-4 (citing Dep. of Arny Granat, undated ("Granat Dep."), attached as Ex. 2 in Exs. Pls.' Rev. Mem. in Opp'n to Jam's Mot. for Summ. J., undated (received Mar. 13, 2003) ("Pls.' Rev. Jam Mem. Exs."), at 25-26, 233-34).) Defendant Jam asserts that Plaintiffs' figures are nationwide figures that include events other than music concerts and that Jam promoted an average of 200 to 300 music concerts in Chicago each year. (Decl. of Jerry Mickelson, dated Mar. 13, 2003 ("Mickelson Decl. II"), attached as Ex. 1 to Decl. of James D. Roberts, dated Mar. 13, 2003 ("Roberts Decl."), ¶ 18.)

  Defendant Beaver is a Louisiana corporation with its principal place of business in New Orleans, Louisiana. (Am. Compl. ¶ 29.) Beaver has promoted concerts for over thirty years. (Decl. of Don Fox, dated Feb. 14, 2003 ("Fox Decl."), attached as Ex. 1 in Exs. Beaver's Mem. in Supp. of Mot. for Summ. J., undated (received Feb. 20, 2003) ("Beaver Exs."), ¶ 3.) Don Fox is the president and sole shareholder of Beaver. (Beaver's Stmt. of Uncontested Material Facts Pursuant to Local Rule 56.1, dated Feb. 19, 2003 ("Beaver 56.1 Stmt."), ¶ 4.)*fn8 Barry Leff is the vice-president. (Id. ¶ 5.) Both Don Fox and Barry Leff are Caucasian. (Pls.' Revised Stmt. of Contested Material Facts Pursuant to Local Rule 56.1, dated Mar. 24, 2003 ("Pls.' Rev. Beaver 56.1 Stmt."), ¶ 7.) Beaver has promoted an average of 200 concerts per year throughout North America, the majority*fn9 of which have taken place in the Greater New Orleans area. (Fox Decl., Beaver Ex. 1, ¶ 3; Dep. of Barry Leff, undated ("Leff Dep."), Pls.' Beaver Ex. 4, at 104.)

  3. Booking Agency Defendants

  Defendant WMA is a privately held company founded in 1898, with its principal offices in Beverly Hills, New York City and Nashville. (WMA's Stmt. Undisputed Material Facts Pursuant to Local Civil Rule 56.1, dated Feb. 28, 2003 ("WMA 56.1 Stmt."), ¶ 1.) WMA represents clients in various entertainment fields, including music, television, books, theatre and movies. (Id. ¶ 2.) WMA's music division has approximately sixty agents and represents over 500 artists. (Id. ¶ 4.) When an agent in WMA's music department receives a bid or bona fide offer concerning an upcoming show or tour, WMA's policy is to transfer the bid or offer to the artist or the artist's manager. (Id. ¶ 5.)*fn10 The artist or the artist's manager makes the final decision as to whether to accept the bid or offer. (Id. ¶ 6.)*fn11

  Defendant CAA was incorporated as a limited liability company under the laws of Delaware on or about August 18, 1995. (CAA's Stmt. of Undisputed Material Facts, dated Feb. 28, 2003 ("CAA 56.1 Stmt."), ¶ 1.) Its principal place of business is Beverly Hills, California. (Am. Comp. ¶ 19.) CAA's music department represents musical artists in the booking of live musical performances. (CAA 56.1 Stmt. ¶ 5.) CAA currently employs approximately twenty-eight music agents and represents over 200 musical artists. (Id.) CAA's music clients include artists "whose musical styles encompass many different genres of music, including pop, rock, urban, R&B, jazz, country and western, Latin, gospel and Christian music." (Id. ¶ 6.) Each year, CAA's music agents are involved in booking thousands of concert dates for its music clients, both nationally and internationally. (Id. ¶ 7.)

  Defendant Renaissance was incorporated under the laws of New York in February 1996. (Renaissance's Stmt. Pursuant to Local Rule 56.1, dated Feb. 28, 2003 ("Renaissance 56.1 Stmt."), ¶ 1.) David Zedeck was the sole principal and president of Renaissance. (Id. ¶ 4.) On December 31, 1999, Renaissance ceased all business operations and sold its assets to Evolution Talent Agency, LLC, which was started by David Zedeck and a partner. (Id. ¶¶ 3-4.)*fn12 During its operation, Renaissance provided booking agent services to musical artists in connection with their live events. (Id. ¶ 5.) Before November 1998, when this action was filed, Renaissance employed no more than three booking agents and had booked fewer than 90 domestic concerts for its represented artists. (Id. ¶¶ 6-7.) After November 1998, Renaissance added three more agents. (Id. ¶ 6.)

  C. The Contemporary Music Concert Promotion Business

  The concert promotion business evidently started in the late 1960s or early 1970s. (Dep. of Stephen Alexander Cooley, dated Mar. 20, 2002 ("Cooley Dep."), in Exs. Pls.' Am. Local Rule 56.1 Stmt. of Disputed Facts in Supp. of Pls.' Opp'n to Booking Agency Defs.' Mot. for Summ. J., dated June 16, 2003 ("Pls.' Am. Joint 56.1 Stmt. Exs."), Vol. II, at 97.) Plaintiffs' claims are founded on disparities that have arisen since the beginning of this industry. As Plaintiffs' counsel asked at the argument on these summary judgment motions, why is it that all white and black promoters started out at the same time and "all of the white [dominant] promoters now have venues, megabucks, all of the acts, and the vast majority of the blacks do not?" (Hrg. Tr. 10/16/03 at 191.)

  1. Allegations in Amended Complaint

  In the Amended Complaint, Plaintiffs assert, "Artists who perform live in concert generally engage booking agencies to procure their engagements. These agencies select and contract with promoters, functioning in particular geographic locations, to present the concerts." (Am. Compl. ¶ 59.) Furthermore,
[a] booking agent, acting on behalf of an artist, contacts a concert promoter in order to retain its services to produce a concert at a particular location, on an agreed date. Sometimes two or more promoters co-promote concerts, and share profits and losses. . . . The artist's fee is usually the greater of (a) 85% of net concert revenues (gross revenues less expenses,*fn13 which include rent, advertising, stage hands, sound, lights, security and the like), or (b) a minimum guaranteed fee. Major artists can command as much as 90% of net concert revenues. A booking agent typically receives between 5 and 10% of an artist's fee. A promoter generally receives the remaining 15% of net revenues, or the amount remaining after the artist's minimum guaranteed fee is paid.
(Id. ¶ 60.) Under the contract between the artist and the promoter, the promoter is obligated
 
[to] rent or otherwise secure the venue where the concert will take place. Venues include small clubs, large clubs, college gyms, auditoriums, outdoor amphitheaters (commonly called "sheds"), large sports arenas and stadiums. Some promoters own or have exclusive booking arrangements with specific venues. If another promoter wishes to promote a concert in such a venue, arrangements can be made with the promoter controlling the venue.
(Id. ¶ 61.)

  Once the artist or artist's manager and promoter enter into a contract for a performance on a particular date at a particular venue, the promoter "advertises the concert, arranges security and performs other tasks to present the concert," including "sell[ing] tickets to the public, either directly or through ticket sales outlets." (Id.)

  2. Role of Booking Agencies and Concert Promoters

  It is undisputed that in the concert promotion business, the concert promoters are the buyers of the talent or artist, and the booking agencies are the sellers of the talent or artist. (Beaver 56.1 Stmt. ¶ 12; Pls.' Resp. Beaver 56.1 Stmt. ¶ 12; Jam's Local Rule 56.1 Stmt. Undisputed Facts in Supp. of Mot. for Summ. J., dated Jan. 29, 2003 ("Jam 56.1 Stmt."), ¶ 14; Dep. of Leonard Rowe, dated Aug. 14, 2001 ("Rowe Dep."), attached as Ex. 6 to Decl. of Monica Petraglia McCabe, Esq., dated Jan. 29, 2003 ("McCabe Decl."), at 1233; Dep. of Bernard Bailey, dated July 26, 2001 ("B. Bailey Dep.") attached as Ex. 7 to McCabe Decl., at 885; Dep. of Fred Jones, dated May 9, 2001 ("Jones Dep."), attached as Ex. 9 to McCabe Decl, at 685-86; Dep. of Lee King, dated May 2, 2001 ("King Dep."), attached as Ex. 10 to McCabe Decl., at 686-87.) The concert promotion business is built on relationships that develop over time among artists, managers, promoters, agents, vendors and radio stations. (Joint 56.1 Stmt. ¶ 1.)*fn14 An artist's manager generally oversees all aspects of the artist's career and may also engage a booking agent to route and book concert tours for the artist. (Id. ¶¶ 2-3.) The booking agent reports to the artist either directly or, often, through the manager. (Id. ¶ 4.)

  The artist or the artist's manager may designate the number of concerts, the period during which they would be performed, and the artist's preference for locale, for venue and for promoter, among other aspects. (Dep. of Ronald Weisner, dated Apr. 3, 2002 ("Weisner Dep."), in J.A., Vol. VI, at 21-26.) The agent at the booking agency then solicits and obtains offers to present to the artist or artist's manager, among other tasks. (Id. at 27.) As Plaintiffs admit, "`One important part of an agent's job is to maximize opportunities to generate revenue for an artist and to promote the artist's career, while minimizing any potential downside risks.'" (Pls.' Local Civil Rule 56.1 Stmt. Resp. CAA's Mot. Summ. J., dated June 25, 2003 ("Pls.' Resp. CAA 56.1 Stmt."), ¶ 9 (admitting in part CAA 56.1 Stmt. ¶ 9) (quoting Decl. of Robert Light, dated Feb. 27, 2003, ("Light Decl. I"), ¶ 7).) Although the ultimate decision as to whether to enter into a contract with the concert promoter belongs to the artist or the artist's manager, it is Plaintiffs' position that most artists delegate this decision to their agents. (Pls.' Am. Joint 56.1 Stmt. ¶ 33.)

  The concert promoter or co-promoter, as these terms are used by the parties, shares in the profits and losses of the concert. The concert promoter — sometimes referred to as the "lead promoter" — is the entity that acquires the act and contracts with the artist. (Joint 56.1 Stmt. ¶ 5.)*fn15 Generally, the promoter negotiates the terms of the concert with the agent, subject to the approval or direction of the artist or the artist's manager. (Gonzalez Dep., in J.A., Vol. IV, at 233.) The promoter is responsible for all financial obligations of the show, including the artist's guarantee, the building deposit, production cost and advertising. (Joint 56.1 Stmt. ¶ 6;*fn16 Rowe Dep., in J.A., Vol. VI, at 81-82.) This includes the obligation to pay for advertising and all show expenses, regardless of how much money is generated by ticket sales. (Joint 56.1 Stmt. ¶ 7.) Due to this obligation, a promoter can end up losing money on any concert, even when a concert was expected to be profitable. (Id. ¶ 8.)

  A lead promoter may retain the services of a "co-promoter" to assist the lead promoter with certain promotion tasks inside a particular market. (Id. ¶ 9.)*fn17 A promoter may be required to have a co-promoter by the artist, the manager, or the booking agent, or a lead promoter may retain a co-promoter because the co-promoter has particular knowledge of the territory in which the concert is performed. Promoters often select co-promoters based on previous relationships. (Id. ¶ 10.)*fn18 A co-promoter has a financial interest in the show and will share in the profits or losses. (Jones Dep., in J.A., Vol. IV, at 559.) A promoter also may retain "street promoters" or "consultants" who typically receive a flat fee for assisting in a local market with such tasks as advertising and poster and flyer distribution. (Joint 56.1 Stmt. ¶ 11.) Unlike co-promoters, street promoters and consultants do not share in the promotion risks. (Id.)

  In recent years, some artists or artists' managers have asked booking agencies to solicit bids from concert promoters to produce nationwide tours. A "national tour promoter" is a promoter that procures and promotes a tour across the entire country. (Id. ¶ 12.) In that situation, a concert promoter bids for the entire tour and pays the artist an up-front deposit or guarantee based on the number of concerts to be performed. The promoter also makes other payments based on the success of the individual concerts or the aggregated success of the individual concerts, a collateralized tour. (Gonzalez Report, in J.A., Vol. I, ¶ 10(a), (b).) The "national tour promoter" has exclusive rights to the artist's concert performances and may negotiate for specific concerts with "local promoters" instead of the artist or the agent. (Id.) In some cases, the "local promoter" will pay a guarantee versus a certain percentage of the profits of the concert, and in others, the "local promoter" is paid a flat fee. (Id.) The artist generally maintains the right to approve each "local promoter" and the terms granted that promoter. (Id.) Some artists have also chosen to contact a national tour promoter directly without using a booking agency, thereby avoiding the agency's commission. (Joint 56.1 Stmt. ¶ 13.)

  3. Genres of Music

  Within the music industry, distinct genres of music are directed at different audiences. The Amended Complaint relates to contemporary music, which includes urban music (R&B, hip-hop and rap), pop music and rock music, but not Latin, Christian, gospel, or country and western. (Id. ¶ 15.) Additionally, the Amended Complaint refers to certain genres of music as "black music" and other genres of music as "white music." (Id. ¶ 14.) Promoters may specialize in a particular field of music. (Id. ¶ 16.)*fn19 Plaintiffs have specialized in R&B or "urban music," not pop or rock. (Id. ¶ 17.)*fn20 Booking agents at the Defendant Booking Agencies may specialize in a particular genre of music. (See Decl. of Cara Lewis, dated Feb. 27, 2003, ("Lewis Decl."), ¶ 3.) 4. The Bidding Process

  To obtain an act, a promoter must first make an offer. (Joint 56.1 Stmt. ¶ 18.)*fn21 To ensure that they participate in the bidding process, concert promoters "`have to keep a line of communication with the agencies'" to know which artists are planning to tour. (Id. ¶ 19 (quoting Rowe Dep., in J.A., Vol. VI, at 114).)*fn22 The most important aspect of promoting is "`to be up on the situation about who is coming, what artist is coming out, and to try to be a part of the bidding process.'" (Id. (quoting Rowe Dep., in J.A., Vol. VI, at 115).)

  The evidence shows that the booking agencies are not the only sources of information about artists' plans to go on concert tours. There are a variety of sources which promoters use to learn whether an artist is going on tour, "including rumor, internet websites, television, periodicals, contact with other promoters and booking agents, contacts with record companies and radio [station] executives." (Id. ¶ 20.)*fn23 If a particular act interests a promoter, the promoter must call the booking agent to express that interest and to inquire about specific dates and the artist's availability to perform in certain areas. (Id. ¶ 21.)*fn24 Additionally, the artists, whose concerts are the subject of the Plaintiffs' complaint, have managers whose names and addresses are available in Pollstar directories. (See Dep. of Jonathan Edward Stoll, dated Apr. 10, 2002 ("Stoll Dep."), in J.A., Vol. VI, at 87 (noting that Amusement Business and Pollstar publish guides on artists' representation).) When seeking promotion opportunities, promoters must be proactive and assertive and cannot wait for agents to contact them. (Joint 56.1 Stmt. ¶ 22.)*fn25 Successful black concert promoters testify that they are proactive and aggressive in searching out concert opportunities, not only by calling agents, but also by calling the artists' recording studios and managers. (See Dep. of Al Haymon, dated Nov. 11, 2002 ("Haymon Dep."), in J.A., Vol. IV, at 211-13; Dep. of Jerome Williams, dated Apr. 30, 2002 ("Williams Dep."), in J.A., Vol. VI, at 39-40; Dep. of Daryll Brooks, dated Apr. 12, 2002 ("Brooks Dep.), in J.A., Vol. III, at 78-79; Dep. of Larry Bailey, dated Dec. 7, 2001 ("L. Bailey Dep."), in J.A., Vol. III, at 32-33; see also Stoll Dep., in J.A., Vol. VI, at 87.)*fn26

  At times, an agent may call a promoter with whom the artist, the manager, or the agent has a prior relationship to notify the promoter of an artist's plans to tour, but agencies do not contact all promoters, regardless of the race of the promoter, to inform them of every artist's tour. (Joint 56.1 Stmt. ¶ 23.)*fn27 The Booking Agency Defendants assert that they do not give advance notice to the Promoter Defendants of every tour of every major white artist. (Id. ¶ 24;*fn28 see also Dep. of Robert Light, dated Dec. 18, 2001 ("Light Dep."), in J.A., Vol. V, at 353 (stating CAA "didn't give any advance notice necessarily to black promoters" or other promoter groups in connection with a particular music tour.) The Independent Promoters Association, whose members are white, is rarely solicited by an agent or manager to submit an offer for a tour or a concert. (Dep. of Ben Liss, dated June 17, 2003 ("Liss Dep."), in J.A., Vol. V, at 129-130.) The evidence submitted in this case gives no indication that one promoter can prevent another promoter from submitting an offer or a bid to the agencies for a concert promotion opportunity.*fn29 (Haymon Dep., McCabe Decl. Ex. 11, at 48-49, 189-90, 252, 438.)

  5. The Elements of a Bid

  Although a promoter may discuss the terms of his bid over the telephone with a booking agent, the bid must eventually be in writing. (Joint 56.1 Stmt. ¶ 25.)*fn30 An artist or manager will only consider a bid when it is in writing and includes the amount of the guarantee, artist/promoter split and other information that is necessary for the artist or manager to assess the relative value of the bid. This information includes production costs, the cost of the building, participation in any ancillary revenue (such as merchandising or concessions) and projected costs for stagehands, rigging, limousines, catering and advertising. (Id. ¶ 26.)*fn31 Without this information, the manager will not be able to assess the offer. (Id.)

  The artist's guarantee is the amount of money the promoter agrees to pay the artist for a particular performance. (Id. ¶ 27.) This guarantee is the minimum payment to the artist, who can negotiate a guarantee versus a percentage of the net receipts and, thus, earn more than the guarantee on a successful show. (Id. ¶ 28.) Many major artists rely on the percentage, also referred to as the "back-end split," to receive earnings substantially greater than the guarantee. (Id.) When promoters determine what guarantee to offer, they consider expected ticket sales and prices, expected expenses for the concert, and the amount the artist generally expects. (Id. ¶ 29.)*fn32 After the agent receives a written bid from a promoter, the agent forwards the bid to the artist or the artist's management for consideration. (Id. ¶ 30.)*fn33 The artist then chooses whether to accept or reject the offer. (Id. ¶ 31.)*fn34 If the artist rejects the offer, the promoter then decides whether to submit a revised offer attempting to meet the artist's criteria. (Id. ¶ 32.)

  The artist has the ultimate authority to accept or reject an offer by a concert promoter. (Id. ¶ 33.)*fn35 The artist may not make the decision itself, but may rely on the artist's manager or the booking agent to choose a promoter. (Id. ¶ 34 ("Artists handle decisions with respect to the selection of concert promoters in different ways.").)*fn36 6. Selecting a Concert Promoter

  Artists and artists' managers consider a variety of factors when selecting a concert promoter. (Id. ¶ 41 (stating factors include the promoter's "(a) experience with a genre of music; (b) relationship with the artist; (c) relationship with the manager; (d) financial wherewithal; (e) relationships within a particular market or region; (f) reputation; (g) production infrastructure; and (h) relationship with the agency");*fn37 see also Rowe Dep., in J.A., Vol. VI, at 1234-35, 1237-38 (stating factors he would consider in selecting a co-promoter include familiarity with local area, ability of promoter, length of time in the business and previous shows promoted).)

  In selecting a concert promoter, the promoter's relationship and track record with the artist are considered. (See L. Bailey Dep., in J.A., Vol. III, at 28, 30.) There is a preference for promoters who have worked with the artist in the past. (See Casey Dep., in J.A., Vol. III, at 128, 139; Dep. of Bruce Kapp, dated Mar. 1, 2002 ("Kapp Dep."), in Dep. Tr. Exs. to Pls. Opp'n to CAA's Summ. J. Mot., undated (received May 5, 2003) ("Pls.' CAA Dep. Tr."), Vol. I, at 94; Weisner Dep., in J.A., Vol. VI, at 12-13.) Relationships and past experience with managers is also important in the selection of a concert promoter. (Luster Dep., in J.A., Vol. V, at 73-74; Light Dep., in J.A., Vol. V, at 515.) When agencies are asked to recommend a promoter, the promoter's relationship with the agency is also relevant. (Casey Dep., in J.A., Vol. III, at 139.) Similarly, when a promoter seeks to retain a co-promoter, the promoter's relationship with the co-promoter can be very important. (See Rowe Dep., in J.A., Vol. VI, at 1234-1235; Haymon Dep., in J.A., Vol. IV, at 251.)

  A promoter's relationships within a market, e.g., with advertisers, venues or other suppliers, is another consideration in selecting a concert promoter. (See Casey Dep., in J.A., Vol. III, at 120; Weisner Dep., in J.A., Vol. VI, at 13 (considering important factors to include "relationships with the local people, [and] financially, to be able to support and advertise and promote the individual dates").)

  In addition to the personal relationships discussed above, the promoter's past experience and reputation in terms of venue, genre and financial stability are also relevant. A promoter's experience and familiarity with a specific genre of music is important in selecting a concert promoter. (Casey Dep., in J.A., Vol. III, at 119 ("We look for someone who understands the type of the music that the artist performs."); see also id. at 125 (stating that he would not look for a promoter who did Christian promotion to promote a rock and roll show because "[t]hat promoter may not be able to focus his advertising on a target demographic").) Additionally, a promoter with familiarity in a specific geographic area or venue is preferred. (Id. at 119-20 (stating that "we look for someone with a familiarity of the city or marketplace where they are promoting in"); Haymon Dep., in J.A., Vol. IV, at 217).)

  A promoter's financial capabilities are also crucial. (Casey Dep., in J.A., Vol. III, at 120; Phillips Dep., in J.A., Vol. V, at 103-04 (stating that biggest issue in choosing a concert promoter is whether the promoter is financially sound); Weisner Dep., in J.A., Vol. VI, at 13 (stating that when choosing a promoter, he considers, among other things, a promoter's financial ability "to be able to support and advertise and promote the individual dates").) A promoter cannot rely on ticket sales to cover financial obligations (Bea Dep., in J.A., Vol. III, at 21), but rather needs to be able "to not only promote the show, but in event of a loss, to sustain that loss without the show going sideways or canceling" (Casey Dep., in J.A., Vol. III, at 120). In that vein, a good credit history and professional reputation are important to assure an artist and the artist's manager of the promoter's financial stability. (L. Bailey Dep., in J.A., Vol. III, at 32-33; Bea Dep., in J.A. Vol. III, at 23.)

  II. STANDARD OF REVIEW

  A. Summary Judgment Standard

  1. General Standard

  Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a moving party is granted summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

  The summary judgment standard is "well-settled" in the Second Circuit. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285 (2d Cir. 2002). The Second Circuit holds:
The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. . . . Summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party.
Id. at 286 (citations omitted). However, as the Supreme Court has highlighted, "the issue of fact must be `genuine.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. The non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleading," but must set forth "specific facts showing that there is a genuine issue for trial." Fed. Rule Civ. Proc. 56(e). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

  B. The Antitrust Standard

  Plaintiffs argue that the Defendants have committed a per se violation of section 1 of the Sherman Act because they have "`divided the markets into territories'" and, "as a group, `refuses to deal with a competitor,'" like Plaintiffs. (Pls.' Mem. Opp'n Booking Agency Defs.' Joint Mot. for Summ. J., dated Apr. 24, 2003 ("Pls.' Joint Mem."), at 33 (citing Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 211-12 (1959).) In Klor's, the plaintiff retail store alleged a group boycott and a refusal by defendant manufacturers to sell major household appliances to the plaintiff to the advantage of its competitor, defendant Broadway, which operated a chain of department stores, one of which competed with plaintiff. Klor's, 359 U.S. at 209. The defendants did not dispute this allegation, but rather sought summary judgment and dismissal of the complaint for failure to state a cause of action. (Id.) The lower court had dismissed the complaint as a "purely private quarrel . . . which did not amount to a public wrong proscribed by the Sherman Act." Id. at 210 (internal quotations omitted). The Supreme Court reversed the lower court's dismissal of the complaint and remanded for trial because the allegations in the complaint plainly disclosed a concerted refusal to deal or group boycott in violation of the Sherman Act. Id. at 212.

  This case concerns a motion for summary judgment, and Plaintiffs have presented no evidence of any refusal to deal, group boycott, or division of territory by the Defendants. See infra pp. 30-36. Instead, the evidence reveals a long-standing scarcity of bids for contemporary music concerts by Plaintiffs even when the Booking Agency Defendants requested bids from them during the last few years. See infra pp. 48-49, 52, 54-56, 59-60, 155-57, 162-65. Thus, this case cannot be treated as a per se violation of section 1 of the Sherman Act. Accordingly, the case is evaluated under the rule of reason, which states that "defendants' conduct will be deemed illegal only if it unreasonably restrained competition." Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 506 (2d Cir. 2004) (citing Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 342 (1990)).

  Under the rule of reason, a plaintiff bringing a private action under section 1 of the Sherman Act bears the "initial burden to demonstrate the defendant's challenged behavior `had an actual adverse effect on competition as a whole in the relevant market.'" Geneva Pharmaceuticals, 386 F.3d at 506-07 (quoting Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Ass'n, Inc., 996 F.2d 537, 543 (2d Cir. 1993) (emphasis in original)). "[E]vidence that plaintiffs have been harmed as individual competitors will not suffice." Id. at 507 (citing Atlantic Richfield, 495 U.S. at 343-44). "The antitrust laws . . . were enacted for `the protection of competition not competitors.'" Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962)).

  After a plaintiff has established that there has been an actual adverse affect on competition as a whole, a plaintiff "must establish that there is a genuine issue of material fact as to whether [defendants] entered into an illegal conspiracy that caused [plaintiff] to suffer a cognizable injury."*fn38 Matsushita, 475 U.S. at 585-86 (citations omitted). A plaintiff must establish both that there is a conspiracy in violation of the antitrust laws and that the plaintiff suffered an injury resulting from the illegal conduct. Id. at 586. Specifically, a plaintiff must provide evidence, not speculation, that: "(1) there was an agreement among . . . [the defendants] in restraint of trade; (2) [the plaintiff was] injured as a direct and proximate result; and (3) its damages are capable of ascertainment and not speculative." Vkk Corp. v. Nat'l Football League, 244 F.3d 114, 131 (2d Cir. 2001) (quotations and citations omitted).

  In antitrust cases, courts have applied special standards to summary judgment motions due to their unique circumstances. Some courts have expressed reluctance to grant summary judgment motions in antitrust cases due to the complicated factual nature of their claims and the customary lack of explicit evidence of conspiracy. See, e.g., H.L. Hayden Co. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2d Cir. 1989) ("Summary judgment has traditionally been granted sparingly in antitrust cases . . . because the claims `so integrally involve motive and intent to conspire and injure.'" (citations omitted)). "Indeed, antitrust conspiracies are rarely evidenced by explicit agreements, but must almost always be proven by `inferences that may be fairly drawn from the behavior of the alleged conspirators.'" Id. (citations omitted).

  Although a court deciding a summary judgment motion must view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor, "antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case." Matsushita, 475 U.S. at 588; see also id. at 594 (stating "mistaken inferences in cases such as this one are especially costly, because they chill the very conduct the antitrust laws are designed to protect"). Thus, in order to withstand a summary judgment motion in an antitrust case, "plaintiffs must present evidence of an actual illegal combination, and such evidence must satisfactorily cast doubt on inferences of independent action or proper conduct by defendants." Geneva Pharmaceuticals, 386 F.3d at 507 (citing Matsushita, 475 U.S. at 588 (stating that these inferences must be reasonable "in light of the competing inferences of independent action or collusive action that could not have harmed [plaintiffs]")); see also Pepsico, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002). Additionally, "courts should not permit factfinders to infer conspiracies when such inferences are implausible." Matsushita, 475 U.S. at 593. "[I]f the factual context renders [plaintiffs'] claim implausible — if the claim is one that simply makes no economic sense — respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary." Id. at 587.

  To survive a motion for summary judgment, a plaintiff seeking damages for a violation of section 1 must present evidence "that tends to exclude the possibility" that the alleged conspirators acted independently. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984). "[C]onduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy." Matsushita, 475 U.S. at 588.

  III. ANTITRUST CLAIMS: SHERMAN ACT, 15 U.S.C. § 1

  A. Plaintiffs Have Failed to Present Evidence to Support Their Antitrust Claims

  1. Plaintiffs Have Failed to Establish Antitrust Standing

  Plaintiffs have made a claim for damages and injunctive relief under section 1 of the Sherman Act, which states that "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." 15 U.S.C. § 1. The Amended Complaint alleges that the Defendants' market dominance "provides the promoter defendants and the booking agency defendants with the control and power, which they exercise, to purposefully exclude others, including plaintiffs, from competing in the concert industry." (Am. Compl. ¶ 74.) The Amended Complaint asserts that the conspiracy has an "anticompetitive effect upon interstate trade and commerce" because it "eliminates competition among promoters and prevents concerts from being promoted at lower prices which would benefit the artists and public." (Id. ¶ 78; see also id. ¶ 80 (stating that "[i]f plaintiffs were permitted to compete with defendant promoters for the promotion of concerts given by major acts, white and black promoters' fees would decrease. . . . Reduced promoter fees would benefit the public through lower ticket prices, or artists, through greater net revenues, or both").)*fn39

  To determine whether a market injury exists for standing under the Sherman Act, a plaintiff must first define the relevant market and provide some evidence supporting the definition. Pepsico, 315 F.3d at 105; see, e.g., Ezekwo v. Am. Bd. of Internal Med., 18 F. Supp. 2d 271, 278 (S.D.N.Y. 1998). The relevant market for § 1 purposes must be for all contemporary music concerts that are "reasonably interchangeable" in use for consumers. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395 (1956); see also Pepsico, 315 F.3d at 105.

  The Amended Complaint alleges that the Defendants have market dominance in the market of live contemporary music concerts in venues with more than 3,000 seats throughout the United States (Am. Compl. ¶¶ 65, 78) and that, for live concerts of contemporary music, the "entire United States is a single national market wherein promoters compete for the rights to obtain contracts to promote concerts" (id. ¶ 58). Plaintiffs also allege that "there are local regional markets, generally incorporating the metropolitan areas surrounding each major city, for the promotion of concerts within each such region." (Id.)

  Plaintiffs have offered no evidence to show that the alleged relevant product market for contemporary music concert promotions in venues with 3,000 or more seats is not reasonably interchangeable with concerts conducted in smaller venues. Thus, Plaintiffs have not provided any evidence to support their relevant market definition.

  Even assuming there is a distinct market for contemporary concert promotions in the United States in venues with 3,000 or more seats, Plaintiffs have not provided evidence to support their allegation that the Booking Agency Defendants and the Promoter Defendants have control and power over that market. Plaintiffs rely on an extrapolation made by Plaintiffs' former counsel from Pollstar Magazine*fn40 data for the period from June 1998 to May 1999 for the claim that the total market share of the Booking Agency Defendants named in the Amended Complaint and uncharged booking agency co-conspirators was 71%, or 1,630 of the major concerts.*fn41 (Id. ¶ 71.) Plaintiffs state that: WMA artists gave approximately 11% of the major concerts; CAA artists gave approximately 26.4% of the major concerts; and Renaissance artists gave less than 4% of the music concerts. (Id.) Based on these calculations, the present Booking Agency Defendants together account for less than 42% of the concerts performed in the alleged market. Beaver and Jam, the only remaining Promoter Defendants,*fn42 are alleged to have engaged in, respectively, the promotion or co-promotion of 73 (3%), and of 111 (4.5%) of the 2460 major concerts in Plaintiffs' test period.*fn43 (Id. ¶ 67.)

  The extrapolation by Plaintiffs' former counsel is cited in the Amended Complaint but is not offered in evidence or supported by expert testimony. Thus, there is not evidence to support Plaintiffs' claim of Defendants' control of the market for contemporary music concerts in the United States in venues with 3,000 or more seats.*fn44 Plaintiffs provide no other evidence to support their claim of market control.*fn45 Thus, Plaintiffs have offered insufficient evidence from which a reasonable juror could infer that the Booking Agency Defendants, or Beaver or Jam, either individually or by concerted action with others, have the market power to exclude Plaintiffs from promoting concerts in the contemporary music concert market in the United States, the market alleged in the Amended Complaint.

  Even assuming that Plaintiffs' alleged market serves as the relevant market and that the Defendants have power and control of that market, Plaintiffs have presented no evidence to support the claim that competition among promoters in that market has been eliminated, other than by former defendant SFX's acquisition during the pendency of this action of a number of former defendant concert promoters, against all of whom Plaintiffs have dismissed their claims. No evidence has been submitted showing a division of markets by the Promoter Defendants even though the Plaintiffs have had full discovery, including emails retrieved from the hard drives of the Defendants. Nor is there evidence that any Promoter or Booking Agency Defendant prevented the Plaintiffs, or anyone else, from submitting bids on concerts.

  The Amended Complaint asserts that the alleged conspiracy among the Defendants "makes entry into the booking agency market far more difficult." (Am. Compl. ¶ 79.) Plaintiffs have not provided any evidence indicating that entry into the booking agency market is difficult. On the contrary, the evidence shows that one Booking Agency Defendant, Renaissance, entered the concert promotion market within a year prior to the filing of the complaint and was successful enough to attract top acts and be made a defendant in this action.*fn46 Plaintiffs assert that there is an antitrust injury because the conspiracy prevents Plaintiffs from competing in the market, and if they were allowed to compete "concerts could profitably be promoted at rates of 5% of revenues, or even less," in contrast to the 15% of the net sales revenues they allege that Promoter Defendants currently receive. (Id. ¶ 80.) The Plaintiffs further allege that these reduced promoter fees "would benefit the public through lower ticket prices, or artists, through greater revenues, or both." (Id.) Not only have Plaintiffs provided no evidence to support this claim that concerts would be promoted at lower rates if they were "allowed" to compete,*fn47 Plaintiffs have not provided evidence showing that any change in promoter fees would affect competition among promoters.

  In short, no evidence has been presented to suggest market injury and, accordingly, antitrust standing has not been established.

  2. Plaintiffs Have Provided No Evidence of a Conspiracy in Restraint of Trade

  Even if the Plaintiffs could show an antitrust injury to the relevant market, their claim under § 1 would fail on the merits. Plaintiffs allege that the conspiracy "is conducted by defendants in order to benefit white promoters, particularly the promoter defendants, by eliminating black promoters as competitors, and to maintain a market for the promotion of concerts which can be controlled and ordered by the conspirators." (Id. ¶ 78.) The alleged conspiracy consists mainly of two purported agreements.*fn48 The Amended Complaint first alleges that "[a]s a part of the conspiracy, the promoter defendants are designated specific territories and venues, allowing them great dominance and control in these areas, to the exclusion of plaintiffs and others." (Id. ¶ 76.) Second, it states that the Booking Agency Defendants "assur[e] the promoter defendants that they will always be given the opportunity, to the exclusion of all others, of promoting the defendant booking agents' top acts in the promoter defendant's assigned territory, at highly profitable rates," in exchange for agreeing to promote lesser talents at possible loss.*fn49 (Id. ¶ 79.)

  (i) The Alleged Territory Allocation Conspiracy

  Plaintiffs assert that each of the dominant promoters is a member of a horizontal conspiracy to exclude Plaintiffs and restrain competition by honoring each others' market areas, which the Booking Agency Defendants also honor. (Hrg. Tr. 10/17/03 at 64-72.) The Amended Complaint sets forth the market areas each of the promoter defendants are allegedly designated to dominate. (Am. Compl. ¶¶ 29-54.) Plaintiffs have submitted no evidence that supports the allegation that the promoter defendants are "designated" specific areas as opposed to being physically located in specific areas. Plaintiffs make their claims of dominance based on Plaintiffs' former counsels' extrapolation, not offered in evidence, which is based on Pollstar's published information for the period June 1998 through May 1999,*fn50 but offer no evidence, including inferential evidence, of the alleged horizontal conspiracy agreement between concert promoters named in the Amended Complaint to divide these markets. Review of the evidence Plaintiffs have offered follows.

  Plaintiffs cite to the January 19, 2001, affidavit of Richard Johnson to support their claim that each of the current and former Promoter Defendants in the Amended Complaint has a territorial monopoly. (Pls.' Joint Mem. at 7.) Mr. Johnson was employed in the music division of Defendant WMA as a booking agent from 1982 to 1986, twelve years before the filing of this complaint, and has been employed in an unrelated economic area ever since. (R. Johnson Aff., Pls.' Beaver Ex 9, ¶ 1.) Mr. Johnson does not identify Beaver or Jam as the dominant promoters in any particular territory. Mr. Johnson states in his affidavit that the highly competitive industry described by the Defendants (in supporting their unsuccessful motion opposing the disclosure of certain documents on the grounds of exposure of trade secret information to competitors) simply did not exist. (Id. ¶ 3.) Mr. Johnson states:
On the contrary, each major market in the United States was controlled essentially by one primary or dominant promoter, whose identity is well known among all the major booking agents. . . . When a white artist represented by WMA wanted to have a concert in one or more cities, or stage a nationwide tour, there was no competitive "bidding" process, in which WMA engaged in arms length bargaining with several promoters in each major venue in order to get the best deal for themselves and their artists. [The booking agents of WMA], who were also organized by territory, instead were instructed to book their artists through the dominant promoter in his or her market. Agents would typically not reach out to any promoter other than the one that controlled his respective territory, and if any unsolicited offer or bid came to an agent from a secondary promoter, it would very likely never leave his or her desk.
(Id. (emphasis added).) Mr. Johnson's affidavit about WMA's practice of selecting primary or dominant promoters in each major city contains no evidence of the existence of an agreement among the "dominant concert promoters" to divide the market, to exclude competition, or to restrain trade in the United States. Nor does he state that WMA was party to an agreement with any concert promoter or booking agency to direct concerts to a single promoter in a market area. Indeed, Mr. Johnson's knowledge is limited to WMA's procedures for booking agents for the period of 1982 to 1986 and to his personal knowledge of WMA's internal practices.*fn51 Mr. Johnson's affidavit does not demonstrate that he has knowledge of how other booking agencies, both defendants and non-defendants, selected concert promoters. Furthermore, little other evidence before the Court relates to the time period cited by Mr. Johnson.

  Plaintiffs also cite to the testimony of Bruce Kapp, a SFX executive who is a former concert promoter at Pace and Magicworks, concerning the manner in which various promoters achieved dominance in particular markets as support for their claim of a horizontal conspiracy. (Hrg. Tr. 10/17/03 at 64-65.) Mr. Kapp testified that Bill Graham came to "dominate" the San Francisco market because he owned or had exclusive booking arrangements with specific venues. According to Mr. Kapp, Bill Graham "[b]uilt venues in San Francisco, the Philmore [sic], with his own money or partner's money, whatever; promoted and bought the shows — almost all the shows; took the risk; and same way that every other promoter did it" (Kapp Dep., Pls.' Joint Mem. Ex. 12, at 231-32); Larry Magid established his dominance in the Philadelphia market the same way that Bill Graham did in San Francisco (id. at 232-33); Don Law in Boston did similarly (id. at 235); and all these promoters probably dominated their markets by the mid 1980's" (id. at 236).

  Similar to the testimony of Mr. Johnson, Mr. Kapp's testimony about the dominance promoters have over concert promotions in these cities contains no evidence of the existence of an agreement among the "dominant concert promoters" to exclude competition or restrain trade in the United States, as claimed in paragraphs 74 and 75 of the Amended Complaint. Nor does he assert that other promoters or booking agencies assisted these promoters in gaining their positions of dominance. Mr. Kapp's testimony is limited to his knowledge as a former concert promoter at Pace and Magicworks. Even accepting the proof of promoter dominance based on the Plaintiffs' counsel's statistical extrapolation and assuming Mr. Kapp could testify as an expert,*fn52 Mr. Kapp's testimony is that the alleged dominant promoters achieved dominance in the early 1980s by taking risks, buying almost all the shows and building venues. Mr. Kapp's testimony does not suggest any agreement between the Promoter Defendants to divide the market in the United States, nor does it suggest the Booking Agency Defendants agreed together or with any concert promoter that the market should be so divided. In fact, neither Defendant Renaissance nor Defendant CAA existed during the time period discussed by Mr. Kapp and by Mr. Johnson.

  As evidence of the alleged conspiracy between the booking agencies and the dominant concert promoters, Plaintiffs cite two letters, dated February 25, 1998, and March 2, 1998, from a booking agent, WMA's agent Shelly Schultz, to Sherry Wasserman and Greg Perloff of Bill Graham Presents, a former promoter defendant.*fn53 (Pls.' Joint Mem. at 21 (citing Pls.' Joint Mem. Exs. 41, 42).) The February 25, 1998 letter attempts to persuade Wasserman and Perloff to promote Culture Club-Human League-Howard Jones concerts in Graham's "market" of the San Francisco Bay area. (See Am. Compl. ¶ 31.) Mr. Schultz states, "I thought I would never, ever think about moving into the Bay Area with another promoter. But then again, the winds are blowing and changes are happening. Don't mistake this for a threat. If you don't get it, there are others who do." (Pls.' Joint Mem. Ex. 41.) Earlier in the letter, he stated, "you need to understand that there are others who are chomping at the bit to move into your marketplace and want this show." (Id.) The March 2, 1998, letter reads in full as follows: "I am sorry you chose to ignore the Culture Club matter for the Bay area. This agency still has to do business. If the walls are down around the Bay area it's because you allowed that to happen . . . with your friends no less."*fn54 (Pls.' Joint Mem. Ex. 42.)

  There is also evidence in the record that shows that Mr. Schultz made efforts to get other promoters to promote Culture Club in the Bay Area. Mr. Schultz wrote Mr. Perloff on August 13, 1998, about the Culture Club concert stating, "I told you the whole package would be $50,000 and the purchaser provides local sound and lights to Artist specifications. This figure is for CULTURE CLUB and the support Artist. If that's not the case, let me know. I have no problem using another promoter in the Bay Area." (Exs. to Pls.' Opp'n to WMA's Summ. J. Mot., undated (received May 5, 2003) ("Pls.' WMA Exs."), Ex. 151.) On August 14, 1998, Mr. Schultz of WMA wrote Mr. Vallon, a concert promoter from Los Angeles, stating "I feel very strongly about opening up the San Francisco marketplace to other promoters. Therefore, would you like to be considered for a Culture Club date plus support in the Bay area in October?" (Pls.' Hrg. Ex. 14.) In a letter dated August 18, 1998, Jeff Trisler of Universal makes an offer for a Culture Club concert at a venue in the Bay Area to Guy Richard of WMA and copies the letter to Mr. Schultz and Mr. Vallon. (Pls.' WMA Ex. 91.)

  These letters allow the inference that Mr. Schultz of WMA may have favored Bill Graham Presents as a concert promoter in the Bay Area prior to February 1998. However, the correspondence on the Culture Club concert does not evidence: (1) an agreement among the Promoter Defendants; (2) an agreement between the Booking Agency Defendants; or (3) an agreement by WMA and Bill Graham Presents to exclude other promoters from Bill Graham's "market." The inference raised by Mr. Schultz's letter to Mr. Vallon, attempting to interest him in buying the promotion for a Culture Club concert in the Bay Area, is that Mr. Schultz had no agreement with Bill Graham Presents to exclude other promoters from that market.

  The other evidence Plaintiffs point to for support of their claim of a territorial agreement is a letter dated May 22, 1996, from Rob Light of CAA to Mitch Slater of Delsener/Slater, a former promoter defendant,*fn55 stating, "You're always asking me to protect you in the market." (Pls.' Hrg. Ex. 17.) At most this letter shows that Delsener/Slater had asked CAA to give it a preference in the market. There is no showing of any agreement to any territorial arrangement.

  In addition, Plaintiffs' exhibits contradict their claims of a horizontal agreement to divide markets. Those exhibits include contracts between the Booking Agency Defendants and alleged dominant concert promoters in cities where the Amended Complaint asserts that another concert promoter is dominant. (See e.g., Pls.' Joint Mem. Ex. E.)*fn56 In the face of evidence showing that the artists represented by the Booking Agency Defendants contract with other concert promoters for concerts in the "designated markets" of the alleged dominant concert promoters, Plaintiffs' claim of an agreement between the Booking Agency Defendants and the Promoter Defendants to restrain trade in the designated areas throughout the United States is too implausible to be inferred by the trier of fact.*fn57 See Matsushita, 475 U.S. at 593.

  (ii) The Alleged Reciprocal Agreement

  The Amended Complaint asserts that:
[t]he booking agency defendants are able to maintain ultimate control over the concert promotion market, and guarantee promotion of all their acts, including the less successful ones, by assuring the promoter defendants that they will always be given the opportunity, to the exclusion of all others, of promoting the defendant booking agents' top acts in the promoter defendant's assigned territory, at highly profitable rates.*fn58 In exchange for this lucrative, anti-competitive agreement, the booking agency defendants are able to assure artists that the promoter defendants will guarantee the sale of tickets for concerts given by less successful acts on the booking agency defendants' talent rosters.
(Id. ¶ 79 (emphasis added).)

  Although Plaintiffs have had complete discovery of the Defendants' files, including email and hard drive discovery, Plaintiffs have offered no evidence showing that any Booking Agency Defendant has made any assurance to any Promoter Defendant that it will have exclusive access to that booking agency's top acts. Nor have Plaintiffs have offered evidence of any assurance to any artist that a Promoter Defendant will guarantee the sale of tickets for concerts of less successful acts.

  Additionally, Plaintiffs have failed to present evidence to show that the Booking Agency Defendants and Promoter Defendants have an economic rationale to participate in this alleged exchange, even considering the alleged "interrelated and interdependent conduct." (Id. ¶ 81.) Plaintiffs allege that:
[i]n furtherance of the conspiracy, all of the booking agency defendants are willing to forego the enhanced compensation they would receive from major artists through reduced promoter fees which would result from unrestrained competition, although it is apparently against their economic self-interest. This is because the conspiracy ensures that all of their acts, including their less stellar acts, will be accepted and promoted by the promoter defendants within each of their geographically allocated territories. The promoter defendants are uniformly willing to promote the lesser acts in exchange for promoting the successful acts and for their continuing dominant presence in their assigned geographic territories. The acts of all of the defendants are thus interrelated and interdependent, and the success of the conspiracy depends upon all of the defendants consciously pursuing the identical parallel conduct, which they have done.
(Id.)

  As to the Booking Agency Defendants, Plaintiffs have failed to offer evidence that any Booking Agency Defendant has been willing to forego this enhanced compensation. Additionally, Defendants provide expert evidence by Dr. Williams, who states that due to competitive factors, the Booking Agency Defendants could never recoup their losses from agreements such as the one described by the Plaintiffs. (Williams Report, J.A., Vol. I, ¶¶ 16-22, Exs. 1, 1a, 1b.) Furthermore, such an agreement could result in the booking agency's client, the artist, not receiving the most lucrative concert contract with a resulting loss of income to the artist and to the Booking Agency Defendant. According to Dr. Williams's report, competition between the booking agencies is intense, and artists often switch to other booking agencies. (Id. ¶¶ 26-29.) Thus, the alleged conspiracy would be against the economic interest of the Booking Agency Defendants because artists who were not receiving competitive contractual terms would switch to another agency.

  As to the Promoter Defendants, Plaintiffs have failed to offer evidence to support their allegation that the Promoter Defendants promote lesser acts in exchange for the promotion of successful acts and territorial dominance. Again, Plaintiffs rely on Mr. Johnson's affidavit, which states that:
WMA's interest in giving as much lucrative business as possible to the same promoter ensured that the promoter would also promote less prominent (but potentially more promising) acts. (R. Johnson Aff., Pls.' Beaver Ex. 9, ¶ 4.)
  Mr. Johnson does not state that WMA artists agreed, or that WMA caused them to agree, to less favorable financial terms for a concert if the promoter agreed to promote less prominent acts. (Id.) Mr. Johnson only states that WMA recognized that a concert promoter benefiting from receiving prominent acts for promotion would be more willing to promote less prominent acts. (Id.) This testimony, while evidence of a business practice by WMA in 1986, well prior to the limitations period, does not show any "agreement" by WMA with any of the Promoter Defendants to restrain trade in the United States, which is the claim in the Amended Complaint. Nor does it show any agreement among the concert promoters to restrain trade in the contemporary music concert promotion market in the United States as alleged in the Amended Complaint and restated at oral argument.

  Plaintiffs also rely on the deposition testimony of Mr. Kapp, in which he stated that when he was in the concert promotion business, promoters "promoted acts they otherwise would not want to promote, in the hope or expectation that they would obtain other acts from [the booking] agencies" (Kapp Dep., Pls.' Joint Mem. Ex. 12, at 230) and that 20 to 30 years ago he and Defendant Jam (Arny Granat and Jerry Mickelson) had competed in this manner in Chicago (id. at 226-28).

  Although Mr. Kapp testified that promoters do take on "baby acts" in the hopes that they would "get another act," his testimony is that he and other promoters did so not because of an ongoing arrangement between the dominant promoters and the booking agencies or because the marketing power of booking agencies forced them to take on such acts, but rather because they hoped to improve their competitive position and prestige in the area and to receive more business from the booking agency. (Id. at 173, 226-30.) Thus, Mr. Kapp's testimony does not support Plaintiffs' allegation, but rather raises the strong inference that competition among promoters led to their taking on "baby acts" and that promoters seek to gain an edge on their competition in the area by occasionally taking on baby acts, even though such acts could increase their potential liabilities. (Id.)

   Additionally, Plaintiffs assert that Beaver has an economic rationale to participate in the conspiracy because:
[t]he promoters earn enormous profits by reason of their control over specific territories. The agents, who guarantee the promoters market exclusivity, profit by requiring promoters to promote acts they otherwise would not take, a practice which provides concert outlets for their lesser known or new talent to become groomed for future stardom. Attached to the Rowe Decl. as Comp. Exhibits A and B, respectively, are contracts which show that Beaver has promoted concerts with extremely low guarantees to the artists, sometimes as low as $1.00, and Beaver's contracts for the superstar acts such as Celine Dion, Eric Clapton, Michael Bolton, Bette Midler, among others, which Beaver is given in exchange for promoting the lesser known or new talent.
(Pls.' Resp. Beaver Mem. at 7 (emphasis in original) (citations omitted).)

   Exhibit A, referred to above, is a single contract on a WMA form for the artist Protein to perform as a special guest at Howlin' Wolf in New Orleans on April 15, 1997, for $100 flat guarantee (not $1.00) with no deposit. (Rowe Beaver Decl., Pls.' Beaver Ex. 6, Ex. A.) The contract contained in Exhibit A refers to Beaver as the "purchaser" but is executed by Howlin' Wolf. Exhibit B contains various contracts on CAA forms and a single contract on a WMA form for the artist Korn to perform in St. Louis, Missouri, on April 24, 1999, with a $101,500 guarantee (versus the right to 85% of the gross box office receipts after the approved expenses with a deposit of $10,150) to be paid to WMA by April 9, 1999 and the balance of $91,350 plus $23,000 for production to be paid to Korn prior to the first performance. (Id. Ex. B.) The Court's review of all of the exhibits did not reveal any testimony showing that CAA gave Beaver the various contracts contained in Exhibit B in exchange for Beaver agreeing to the Howlin' Wolf contract on the WMA form. Nor is a reward from CAA likely for an alleged benefit to WMA. Nor could the Court find any evidence linking the contract on the WMA form for the artist Protein with the contract on the WMA form with Beaver for the artist Korn, a concert which occurred two years later.*fn59

   Plaintiffs have also failed to present evidence which would tend to exclude the possibility of independent action by the Defendants. See Monsanto, 465 U.S. at 764. Plaintiffs allege that the actions of the Defendants were interrelated and interdependent. (Am. Compl. ¶ 81.) "Actions against the apparent individual economic self-interest of the alleged conspirators may raise an inference of interdependent action." Modern Home Inst., Inc. v. Hartford Accident & Indem. Co., 513 F.2d 102, 111 (2d Cir. 1975). Evidence of actions, which are "only in one's self interest if done in concert with others, may also provide the basis for an inference of illegal conspiracy." Id. Although Mr. Kapp's testimony that concert promoters did take on less successful acts in the hopes of receiving other acts may show actions against the apparent self-interest of those promoters, this conduct is "as consistent with permissible competition as with illegal conspiracy" and cannot, "standing alone, support an inference of antitrust conspiracy." See Matsushita, 475 U.S. at 588. Mr. Kapp testified that a promoter would take this action to improve its competitive position. (Kapp. Dep., Pls.' Joint Mem. Ex. 12, 173, 225-30.)*fn60 3. Plaintiffs Have Failed to Provide Evidence of Any Injury Resulting from the Alleged Conspiracy

   Although Plaintiffs allege that they have been excluded from promoting contemporary music concerts, Plaintiffs have presented no evidence to show that any of the Plaintiffs have ever been excluded from promoting in the geographic areas designated for Jam and Beaver in the Amended Complaint, or in any other area. Each of the Plaintiffs do business in areas different than Jam and Beaver. Furthermore, the Plaintiffs have seldom, if ever, presented the Booking Agency Defendants with bids to promote concerts. See infra pp. 48-49, 52, 54-56, 59-60, 155-57, 162-65. When Plaintiffs have made bids, Plaintiffs have not provided evidence to show that they have been damaged by any concerted action of the Defendants. See infra pp. 69-71, 110-15, 148-51.

   Plaintiffs assert that there is an antitrust injury because "concerts could profitably be promoted at rates of 5% of revenues or less," in contrast to the 15% of the net sales revenues they allege that Promoter Defendants currently receive. (Am. Compl. ¶ 80.) Not only have Plaintiffs offered no evidence to support this alleged antitrust injury,*fn61 such an injury does not support a § 1 claim because higher promoter fees in the industry tend to benefit Plaintiffs as promoters. Matsushita, 475 U.S. at 585 n. 8.

   Even if Plaintiffs had antitrust standing, taking the evidence as a whole, no showing of conspiracy is plausible and no reasonable jury could infer a conspiracy in restraint of trade from the evidence Plaintiffs have provided. Thus, Defendants' motions for summary judgment as to the section 1 of the Sherman Act are granted. IV. DISCRIMINATION CLAIMS

   In addition to their claim under the Sherman Act, Plaintiffs have brought claims for compensatory and punitive damages and injunctive relief under three provisions of the Civil Rights Acts of 1866 and of 1991, 42 U.S.C. §§ 1981, 1985(3) and 1986.

   A. Legal Standard for Summary Judgment Motion

   1. Applicable Statutes

   Section 1981 provides, in pertinent part, that all persons "shall have the same right . . . to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens."*fn62 42 U.S.C. § 1981(a). In order to succeed under § 1981, a plaintiff must present evidence to "show both that he was subjected to intentional discrimination, and that this discrimination interfered with a contractual relationship." Murray v. Nat'l Broad. Co., 844 F.2d 988, 995 (2d Cir. 1988) (citations omitted); see also Runyon v. McCrary, 427 U.S. 160, 170-71 (1976) ("[Section 1981] right to `make and enforce contracts' is violated if a private offeror refuses to extend [on account of race] the same opportunity to enter into contracts as he extends to white offerees."); Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 139-40 (2d Cir. 1999) ("In order for plaintiff to prevail on his claims for violation of . . . 42 U.S.C. § 1981, proof of racially discriminatory intent is required.").

   Section 1985(3) prohibits, in pertinent part, conspiracies undertaken "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws" and provides for "an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." 42 U.S.C. § 1985(3). To prevail on a claim under § 1985(3), a plaintiff must demonstrate that defendants "(1) engaged in a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons the equal protection of the laws, or the equal privileges and immunities under the laws; (3) acted in furtherance of the conspiracy; and (4) deprived such person or class of persons the exercise of any right or privilege of a citizen of the United States." N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1358 (2d Cir. 1989); see also Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971).

   As in § 1981, a showing of intent is crucial in a § 1985(3) claim. "[I]n order to prove a private conspiracy in violation of the first clause of § 1985(3), a plaintiff must show, inter alia, (1) that some racial, or perhaps otherwise class-based, invidiously discriminatory animus lay behind the conspirators' action, and (2) that the conspiracy aimed at interfering with rights that are protected against private, as well as official, encroachment." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68 (1993) (internal quotations omitted).

   Section 1986 provides a private cause of action for neglect to prevent conspiracy. Specifically, it states that "[e]very person who, having knowledge [of a § 1985 conspiracy] and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, . . . shall be liable . . . for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented." 42 U.S.C. § 1986. An action for neglect to prevent a conspiracy must be "commenced within one year after the cause of action has accrued." Id.

   2. Discrimination Summary Judgment Standard

   In "a discrimination case where intent and state of mind are in dispute, summary judgment is ordinarily inappropriate." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). Accordingly, "a trial court should exercise caution when granting summary judgment to a [defendant] where . . . its intent is a genuine factual issue." Id. Nonetheless, at times summary judgment can be appropriate in discrimination cases. "For a plaintiff in a discrimination case to survive a motion for summary judgment, he must do more than present `conclusory allegations of discrimination,' he must offer `concrete particulars' to substantiate his claim." Murphy v. Bd. of Educ., 273 F. Supp.2d 292, 299-300 (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). As the Second Circuit has pointed out, "To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases." Meiri, 759 F.2d at 998; see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases."); Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999) ("Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.").

   In determining summary judgment motions under § 1981, the courts have generally applied the same analysis utilized in Title VII cases, following the burden-shifting scheme established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (U.S. 1973) and Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 n. 1 (1993) (assuming that the "McDonnell Douglas framework is fully applicable to racial-discrimination-in-employment claims under 42 U.S.C. § 1983"); Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (stating that the McDonnell Douglas/Burdine scheme of proof "should apply to claims of racial discrimination under § 1981").

   Under McDonnell Douglas, "the plaintiff has the [initial] burden of proving by the preponderance of the evidence a prima facie case of discrimination."*fn63 Burdine, 450 U.S. at 252-53. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment action. Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n. 3 (2003); McDonnell Douglas, 411 U.S. at 802. If the defendant satisfies this burden, the presumption of intentional discrimination disappears. Raytheon, 540 U.S. at 50 n. 3; McDonnell Douglas, 411 U.S. at 804. The plaintiff then "must be afforded the `opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253)). "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, 530 U.S. at 148.

   Under the McDonnell Douglas standard, the Supreme Court has found summary judgment on behalf of a defendant appropriate when (1) "the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred;" or (2) "the record conclusively revealed some other, nondiscriminatory reason for the employer's decision." Reeves, 530 U.S. at 148.

   B. General Claims Regarding Bidding and Contemporary Music Concert Promotion

   The Amended Complaint alleges that the Defendants prevented and conspired to prevent Plaintiffs from entering concert promotion contracts for white artists and major black artists because of their race. (Am. Compl. ¶ 5.) As for Plaintiffs' prima facie case under § 1981, it is uncontroverted that Plaintiffs are members of a racial minority, and thus, meet the first element of proof set forth in McDonnell Douglas.

   As to the second element of McDonnell Douglas, whether Plaintiffs applied and were qualified for a position, the Amended Complaint alleges that Plaintiffs are "skilled, experienced and financially sound concert promoters," who "are regularly retained by booking agents, including booking agency defendants named herein, to promote concerts throughout the United States" (id. ¶ 4), and that "[d]uring the last several years, plaintiffs have accounted for most of the business done by black concert promoters within the United States" (id. ¶ 1). These allegations have been shown to be largely false and misleading.

   1. Promotion Records of Plaintiffs

   Plaintiffs have admitted that for several years they have submitted only a few bids for concert promotions and that they have not had a record of successful contemporary music concert promotion remotely equal to that of the concert Promoter Defendants. Plaintiffs also have presented no evidence that they have been regularly retained to promote concerts throughout the United States or in the Amended Complaint's designated territories for the Promoter Defendants Jam and Beaver. Furthermore, other black promoters have accounted for most of the business done by black promoters in the United States. The following facts, unless otherwise noted, are undisputed.

   (i) Leonard Rowe, Rowe Entertainment

   Leonard Rowe has worked in the concert promotion business for over twenty-six years. (Joint 56.1 Stmt. ¶ 52.) He is currently president of Rowe Entertainment, Inc., which was incorporated in 1998 and is located in Atlanta, Georgia. (Id. ¶¶ 53-54.) Mr. Rowe mainly specializes in R & B music, not pop or rock. (Rowe Dep., in J.A., Vol. VI, at 237.) Rowe Entertainment employs one other person, LaShonda Goodwin, who serves as secretary to Mr. Rowe and Rowe Entertainment. (Joint 56.1 Stmt. ¶ 54.)*fn64

   (a) Bids

   Mr. Rowe does not remember having submitted any written proposals to promote concerts from 1988 to 1998. (Id. ¶ 60.)*fn65 From 1998 to 2001, he submitted at most three written offers, not for concerts, but for national tours.*fn66 Mr. Rowe has never submitted a written bid to promote a white artist. (Id. ¶ 61.)*fn67 Additionally, he has ...


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