By The Last tear (Lou)
On June 17, we heard the witness expert David Berman who testified for the plaintiffs in the case Katherine Jackson vs AEG Live.
Berman studied, among other things, the tripartite relationship between AEG Live – Michael Jackson -Conrad Murray and came to the conclusion that by hiring Murray on behalf of Jackson, AEG Live caused a conflict of interest.
Berman added also that once AEG Live established employer-employee relationship with Murray, they excluded Jackson from their talks and decisions.
The expert witness explained also that AEG Live could easily avoid this an inappropriate situation by letting Jackson hire his own doctor.
Why did AEG Live do that? Berman said AEG Live wanted to control Jackson’s doctor.
Let us review quickly Berman’s testimony by reading some of ABC 7 tweets (to see all the tweets and articles, please read the page dated June 17, 2013 under AEG trial material):
Short on David Berman
Berman has been an executive in the music industry for 45 years. He has BA in Business Administration from University of Michigan and JD from Harvard (ABC7)
Berman represented artists, negotiated management agreements, worked with Beach Boys Temptations, A&M records, 20th Century Fox, the Doors (ABC7)
Berman explained 60 to 70% of his practice involved contracts. He became president of Capitol Records, supervised running the record company (ABC7)
We found out that Berman who retired from the industry in 2001, has worked since then as an industry expert. He has been engaged 38 times to testify in court, 60% of times for plaintiffs and 40% for defendants.
The plaintiffs’ attorneys contacted Berman on December 2012 and hired him as an expert witness. Berman has worked about 60 hours on KJ vs AEG Live case.
Bloss: Do you have opinion if tour producer should hire physician for the artist?
Berman: I believe it’s entire inappropriate highly unusual (ABC7)
I’ve never done it, I’ve never heard it being done Berman said about hiring doctor “It’s my understanding until this time AEG hadn’t done”(ABC7)
It creates an inherent conflict of interest, Berman opined. “The physician has obligation to the person treating and the entity paying him”(ABC7)
It is a more egregious conflict given the factors in this case, Berman expressed (ABC7)
It is my understanding AEG never did anything to check out Dr. Murray, Berman testified, “It shows they were aware of potential conflict (ABC7)
On excluding Jackson:
The expert said AEG was aware of another physician, Dr. Finkelstein, had been willing to take the position as MJ’s doctor for $40k a month.
Berman: If there was an alternative to Dr. Murray at a fraction of the price, it seems to me that information should’ve been passed on to MJ
Berman said he understands that Mr. Gongaware was the one dealing with Dr. Murray’s hiring on behalf of AEG Live.
Berman expressed AEG was in the process of negotiating and securing an agreement between themselves and Dr. Murray to be MJ’s physician.
Bloss showed the email where Paul Gongaware wrote “Done at $150k a month, per MJ.”
It’s indicative of fact that agreement had been reached on behalf of AEG Live that Dr. Murray, Berman explained.
Berman said he didn’t think this email alone proves AEG hired Dr. Murray.
Judge: to the jury, YOU will decide whether Dr. Murray was hired. All the testimony by hiring is made on assumption he was hired (or not)
Berman opined that emails between AEG and Dr. Murray offered more details of the terms of the engagement between AEG Live and Dr. Murray.
Berman said it was a three party agreement between AEG Live, Dr. Murray and MJ. Berman said emails about the agreement were never sent to MJ
Berman explained it is as if one party was being denied participation in the bind in the terms of the agreement. (all from ABC7).
How AEG could avoid the conflict:
Bloss: Did you ever hear of a music company retaining a physician for an artist whether it was at artist’s request or not?
Berman: No (ABC7)
Bloss: How could conflict be avoided?
Berman: By hiring a doctor with no relationship to AEG (ABC7)
Why did AEG Live do it?
Bloss showed Berman a tour budget dated May 16, 2009. Berman explained it included $300k for medical management.
Berman said the amount on budget is consistent with $150k for Dr. Murray for the months of May and June, 2009.
Dr. Murray acknowledged he’s in agreement with terms of May 8th email, Berman explained, saying he was performing services that day already
Berman noted Dr. Murray wrote “I have performed and continue to fulfill my services to the client in good faith” and “as per our agreement”
I’ve never heard of it and, to my knowledge, AEG had not done it before, Berman said about retaining a doctor.
I think an artist is perfectly entitled to engage any physician he chooses, Berman said.
Berman testified it is not unusual for an artist to hire and bring his own doctor on tour
However, Berman opined that AEG inserted themselves in the middle of the deal as an attempt to be in position to control MJ’s doctor (all from ABC7).
On the other hand, on June 18, Mr. Tom Mesereau had an interview with HLNTV where he said that AEG wanted to make a lot of money with Jackson who launched his comeback tour. When Michael introduced Conrad Murray to them, AEG just took the chance and let him be the doctor. The only thing AEG wanted was to gain money. But now when things have gone bad, AEG just ignores what they had agreed to.
Let us see if we can put all of these accurate observations together and have a clearer picture:
As Mr. Mesereau said, AEG wanted to gain millions and millions of dollars. If Jackson had done these 50 shows, that would be fine by AEG of course! They would be richer and extremely happy.
Still, they wanted to be in control of the “doctor” by showing Murray a beautiful prospect: a contract with the lovely figures $ 150K /month and a London home for him and his girlfriend and son. In return, Murray had to see that Jackson does what he has to do without giving too much information to the artist.
Do you remember Phillips saying that Jackson might have breached his contract by missing some rehearsals? On June 13, Putnam asked Phillips if he did tell that to MJ and Phillips said no:
Putnam: Did you ever tell MJ or his management team he was in breach of his contract? Phillips: No (ABC7).
The reason Phillips kept this from Jackson is also another example on how AEG wanted to exclude the artist from what was going on. Besides, the act of “breaching a contract” is a serious matter which could be used to intimidate Jackson if / when the artist refused to perform or obey the promoters. This is another example on how AEG Live tried to control the star. In our opinion, hiding this “information” from Jackson is an act similar to what Murray did on May 10, 2009, recording secretly his patient.
But all we said above was in case Jackson did his shows. What would happen if he failed?
In this case, AEG Live needed an insurance to cover the money they would lose. They wanted to control the “doctor” because he could help them to solve the insurance problematic.
Perhaps you remember that in February 2009, Jackson did a medical test and Dr. Slavit declared him being in good health. Bob Taylor used this test to secure the 31 shows written in the pre agreement of TII.
But AEG wanted insurance for 50 shows since they increased the number of the shows in an oral agreement with the artist. Besides, they wanted a full insurance which would cover not only the case of the death but also the sickness. To obtain all of this, AEG needed Conrad Murray. And that brings us to the matter of Jackson’s medical history and Phillips phone calls to / with Murray.
In our blog, Some dates and names: Review 1- Conrad Murray and more posted on May 2, 2012, we showed how Murray falsified some “medical documents” to build three years medical history for Jackson. He did that to help AEG Live to get a full insurance for TII. Randy Phillips admitted this on June 10:
On 6/25/09 the insurance broker wrote to Dr. Murray at 12:54:15 pm, probably London time (approximately 5 to 5am LA time): Email: We are dealing with a matter of great importance and your urgent attention would be greatly appreciated. The email talked about getting MJ’s medical records. Phillips said he learned from the media that Dr. Murray had been treating MJ since 2006.Panish: This is Dr. Murray doing something to help AEG get insurance, fair enough? Phillips: Fair enough (ABC7)
Phillips also admitted on June 5 that he had a 25 minutes phone conversation with Murray:
Phillips remembers one phone call with Dr. Murray that lasted probably about 25 minutes. Phillips told Panish he’d know how many times he called Dr. Murray because the attorney subpoenaed the exec’s phone records. Panish said he never subpoenaed any phone records, that it was LAPD that did it. Phillips said he made an assumption. The only phone call Phillips remembers is the one that Dr. Murray called him on June 20, 2009.(ABC7)
The matter of getting a full insurance was serious for AEG Live and it would not be a surprise if Phillips talked himself about it with Murray to be sure that “the doctor” would fix it. In our opinion, it is safe to say that the phone call on June 20 between the two men was about Jackson’s medical history. As we showed in our blog mentioned above, some of the documents are false. The question is, if so, where can this information be used to benefit the artist?
The fact that Phillips cannot “remember” his other phone calls with Murray is not a denial that he had these conversations. On the contrary, he admits that the two of them talked several times. The question is if LAPD possesses any or all of these conversations? If yes, why not use them in the current trial?
As we described in the blog Some dates and names: Review 1- Conrad Murray and more, on June 24, Michael Jackson did not authorize Murray to send his medical documents to Bob Taylor. We added that Jackson’s reaction was a sign of tension and conflict between him and Murray. Knowing now David Berman’s approach, we can indeed say that Jackson realized that something was going on and he did know about it. If he did not die, he would surely do something about Murray acting behind his back.
Michael Jackson vs AEG/AEG Live
The alliance with AEG and AEG Live could not have a happy ending for Jackson. The artist was already in debt to several people, the Prince, Colony and others. AEG Live advances tied him up even more. As Travis Payne said, TII was not like the other tours where Jackson was his own boss. This time, they had to work under the reign of Phillips and his Co. And Phillips and Co are members of the music industry.
For some in the music industry – after 2005 and even 1993 – Michael Jackson was “a has-been” who owned very lucrative assets. In fact, these people and their media have done all they could, to bring down the legendary artist and to force him to sell his catalogs and properties.
This is not a coincidence if on January 2009, Ted Fikre, the attorney on the board of AEG wrote to his pal Shawn Trell: “Does this mean you get to meet the freak?” and Trell answered: “Apparently. Not sure how I feel about that. Interesting for sure, but kind of creepy.”
This is not a coincidence that Randy Phillips who admits that the artists do not have to rehearse made an exception when it comes to Jackson. On June 13, Phillips said to his attorney Marvin Putnam:
Phillips said he does not remember ever seeing a contract where the artist is required to rehearse. “The only requirement an artist had is to deliver a class act show,” Phillips explained. Enrique Iglesias never showed up to rehearsals in the last tour Phillips did, the exec said. “I thought it was odd, but Enrique Iglesias showed up in Boston, did an amazing show, got great reviews.”
Phillips said he expected MJ to rehearse because he hadn’t been on stage over 12 years. “As everything with MJ, this production was the biggest, the best, the greatest the world has ever seen,” Phillips explained. Phillips testified MJ told Kenny Ortega he did not need to rehearse because he had been dancing his songs all his life (ABC7).
In Phillips’ eyes, Jackson was not even equal to Enrique Iglesias – no offense to Enrique Iglesias and his fans!
In truth, for Colony, AEG /AEG Live and their friends, Jackson was an “unfree master”.
The notion of “unfree masters” was used by Carole Pateman in her influential 1988 book The Sexual Contract. She created this terminology to describe the husbands in market society.
Matt Stahl, assistant professor of information and media studies at the University of Western Ontario, borrowed this term from Pateman, applied it to the recording artists and wrote a book about the recording artists and the politics of work. Mr. Stahl studied the music industry for several years and has written articles and other books.
In our next MJ-Captain EO blog which will be ready in a couple of weeks, we will share some of precious information that Matt Stahl has gathered in his recent book Unfree Masters, Recording Artists and the Politics of Work, Duke University Press, 2013.
Two quotes from this book:
“The recording artist – the successful recording artist, in particular – is a double figure. On the one hand, she is a symbolic figure offered for our consumption, contemplation, and identification . On the other hand, she is a political and economic actor, a working person whose contractually governed relationship to her company is sometimes one of real subordination. In this doubleness, the recording artist embodies a paradox: as an agent of self-expression under contract to a major entertainment conglomerate or a subsidiary company, the recording artist is both autonomous and the target of control. He must be free to generate new material and unfree when it comes to the labor and intellectual property covered by the contract ” (page 2).
“ Like the husband in past centuries, today’s professional recording artist under contract to a record company (or, increasingly, to a concert promote or management company) is a master in some areas and a servant in others ” (page 3).
But Michael Jackson was a politically conscious artist who stubbornly fought to unfree himself.