You may have heard the expression “I need a scorecard to keep all the players straight” applied to various situations from complicated family situations to corporate working environments. What Mintz did in almost doodle-like fashion after going over all the basic contracts, though, was literally make himself a scorecard.
The players: me, Digger, Ziggy, DMA LLC (which included me and Digger), Moondog Three (which included me and Ziggy), BNC and by extension Megastar Corporation, Sarah Rogue, and WTA. If everyone sued everyone that could be dozens of lawsuits.
But of course the thing wasn’t just the lawsuits, it was the potential threats of lawsuits that were in play, too. As Feinbaum had once explained to me, most of the lawyers were not interested in having the cases actually land in court, and both the court and the lawyers are usually most interested in the parties coming to a settlement without a trial.
And then there were the backdoor deals, too.
Feinbaum explained it this way. “I got involved when things first got fishy between the band and the label. First album was on an indie label that BNC distributed, so they were intimately familiar with the band’s market.”
I couldn’t stop myself from piping up. “Waitasec. We’ve been saying all along that Charles River knew how to market us and BNC didn’t and that accounted for the drop in sales on the second record. You’re telling me BNC was actually marketing us all along?”
Carynne jumped in. “Marketing is different from sales, though. BNC and CR had completely separate marketing and publicity departments. But distribution being centralized, yeah, I see what you’re saying. That’s about the representation to the retail stores, and yeah, that was the same sales reps, same department, on both records.”
“So all the noise they gave us about the problem with crappy sales being our image was too hard to categorize was just that, noise?”
Feinbaum took hold of the conversation again. “So it would seem. But a certain amount of incompetence and negligence is to be expected. For it to be enough to be considered criminal is unlikely. May I continue?”
I took a breath. “Sure.”
“Don’t get too hung up on their excuses for their failures. Now they’re probably going to say that the success of Prone was a fluke, or entirely because of the breakout of ‘Candlelight.’ Which we’ll get to in a minute.” He produced some spreadsheets. “The first contract breach we have with BNC is the fact that your contract for 1989 explicitly states that the sales of both albums should not be aggregated to count against your advance or tour support. So even if 1989 was a complete flop, you should still be getting paid for Prone‘s sales–and the ‘Candlelight’ single’s sales–separately from other issues.”
“And are they?” Mintz asked.
Carynne pulled out some spreadsheets of her own. “These checks started arriving well after Ziggy’s development deal was signed. I think we were meant to be placated by them but I think they’re just makeup checks on what we’re rightfully owed on Prone sales. Technically over two million dollars was supposed to come to the band as a buyout of the name rights, though, and if we’ve seen a dime of that, it’s news to me. We’ve been given various excuses about the re-org slowing things down. We’ve still never received a statement adequately explaining what the damn checks are.”
“But you’ve been cashing them,” Mintz asked.
“Yes. We’ve been living on them,” she said. “Should I have been escrowing them or something?”
“No no, no worries on that account. If the festering pustules of incompetence in the BNC accounting department send you money, by all means, take it.” He sighed. “Isn’t it funny, though, that whenever they make a mistake it’s always in the company’s favor and not the artist’s? Such a coincidence. You know if all the artists ever got together on this, it’d make a great class action.”
“So why don’t we?” I asked.
“No one wants everyone else to know how much they are, or aren’t, making,” Mintz said with another sigh. “I’ve got my eye on a case forming up in another industry that might have ramifications in another couple of years. Put it out of your mind for now. Harold, you said there were two things. Basketing the earnings was breach number one. What’s number two?”
“Tour support,” Feinbaum said. “In specific, BNC was claiming that the band owed for tour support that the band claims was never received. Digger claims that the support received was never supposed to count against earnings, that he negotiated it to be free of encumbrance. But of course there’s no paperwork to be found now of this deal he supposedly cut, and BNC is disavowing it.”
Carynne raised her hand like a schoolgirl, and added, “Supposedly the concession was that we took on these opening acts at BNC’s insistence, and so BNC supposedly agreed to foot the bill. We threw one band off the bill after they used illegal pyrotechnics and nearly lost Daron an eye.”
Mintz sat up straight for the first time, eyes wide open like he’d just taken an amphetamine. “What? And we’re not suing them?”
Feinbaum waved a hand. “A band called Megaton. They didn’t get anywhere. BNC ended up dropping them. Their management are pretty much out of money. There’s no honey in that pot.”
“All right, all right. But BNC considered throwing them off the bill to be a breach of the backend agreement?” Feinbaum asked.
“Well, no one there came right out and said that. What BNC did do was they proposed we forget the whole thing in favor of a different sort of deal.” Feinbaum paused for dramatic effect, or maybe just to dab his forehead with a hankie. “The idea being that BNC and Moondog Three team up to prove that the tour support money was pocketed by the elder Mr. Marks. We don’t sue them for anything and they stop threatening to counter-sue.”
“Now we’re getting somewhere!” Mintz exclaimed. “Do I dare ask, though, if the elder Mr. Marks bears an apt epithet?”
“You mean did he actually pocket the tour support that was supposed to go to the band?” Carynne asked.
“Exactly. Do we have proof that money changed hands?”
Carynne and Feinbaum exchanged a look. Carynne spoke. “We know BNC made various payments to DMA, though we don’t have a clear itemization of each one. Digger claims everything was paid out that should have been and that the rest was ‘expenses.’ As you know, though, he’s being charged with embezzlement by Sarah Rogue in criminal court.”
Mintz made a face like he bit a lemon. “She’s not trying to get her money back, then. She just wants the sonovabitch to suffer.”
“While I can sympathize with that, how much trouble am I in for being part of his company, though? I mean, Sarah and I should be on the same side. We’ve both been screwed by him. And I’ve done a lot for her career.”
He looked at me. “The devil’s advocate would say that song you wrote for her was good for your career, too. But a couple of things. Do we know if Mrs. Rogala even knows that you’re part of this? And second… well, I’ll get to the second thing in a second.”
No one seemed to have any idea whether Sarah’s mother knew I was part of Digger’s company. “I haven’t asked.”
“Okay. She probably never guessed that you’d be the president of a piece of the company you fired. Second, thing, though, I think, even if you are the president of the company, it won’t be be hard to prove you were kept in the dark. We might want to check on whether your signature could be a forgery or a photocopy. You may get deposed but since you can completely truthfully say you know nothing about how the money was being dealt with, plus the fact that you may be suing him yourself, I think you got nothing to worry about there. Well, not nothing-nothing, but this is the thing. A civil case would be her versus DMA LLC. A criminal case is pinning it on him as an individual.”
“Well, that’s a relief.”
“Don’t relax too much,” Feinbaum said. “Mrs. Rogala is an unknown quantity.”
“Sure, sure.” Mintz waved his hands. “But she’s a low priority worry compared to some.”
“She’s a high priority only in that her case is actually moving forward,” Feinbaum insisted.
“All right, that’s true. So just to be sure we’re all on the same page: you haven’t filed any actual suits against BNC.”
“We’ve fired shots across the bow only,” Feinbaum said.
“I’m a bit concerned that they don’t have any actual interest in acting against Donald Marks Associates and that their offer to team up with you to stick it to him is just a very effective stalling tactic.”
We were all silent at that.
Mintz spread his hands. “Don’t look too glum about it, kids. Give me the lowdown on who made this deal and how.”
When none of the rest of us spoke, Carynne gave it a try. “When Ziggy negotiated his deal with BNC, it was a stipulation.”
Mintz made the sour face again. “An artist negotiated his own deal?”
My turn to jump in. “Well, Digger had been negotiating it. They couldn’t move forward, though, until I signed off on the use of the Moondog name. By the time I did that, Ziggy decided he didn’t want to deal with Digger anymore and got rid of him.”
“And then finished the deal on his own? When did he sign with WTA?”
“Uh.. I don’t remember exactly, but yeah, he signed on his own. The original deal was for five million dollars. He renegotiated it to be $7.5, with $2.5 to go to the band as a buyout. But that’s the money we haven’t received.”
Mintz nodded his head. “Presumably because Digger himself is suing for a piece of that pie. BNC can claim, almost with a straight face, that they’re delaying payment to make sure the money doesn’t fall into the ‘wrong hands.'” He rubbed his own hands together. “Give me the rundown on everyone he’s suing.”
Feinbaum cleared his throat and checked his notes. “It’s a list. Let’s see. Ziggy for wrongful termination. Ziggy for non-payment of commission owed. Moondog Three for non-payment of commission owed. Carynne Handley for conspiracy and theft of trade secrets–”
“What?” Carynne exclaimed, coming half out of her chair.
“Oh wait, sorry, we got that one thrown out already. Conspiracy, honestly.” Feinbaum allowed himself a little chuckle, then sobered at a sharp look from Mintz. “WTA for theft of trade secrets–”
“Wouldn’t Digger be the one who stole trade secrets if he used to work there, learned how to be an agent or manager from them, and then went out on his own?” I asked.
“In this case, the ‘trade secret’ probably refers to the client information that WTA received about Sarah Rogue, Ziggy, and/or possibly Moondog Three, but he doesn’t have a leg to stand on. A client has the right to change representation. He’ll have a tough time proving that WTA actively poached. But then again if his aim is to create a nuisance, then he doesn’t have to have a truly legitimate claim. He’s just trying to make your lives as difficult as poss–” Feinbaum cut himself off as Mintz cleared his throat, and continued the list. “BNC for undue influence, misprepresentation, and non-payment. Ronald Cutler and Nomadic Enterprises Inc. for bodily injury and emotional distress resulting from from civil assault and battery.”
I leaned over to Carynne. “Remo’s real name is Ronald?”
“I think it’s his middle name,” she murmured back to me.
Ronald and Donald. No wonder my two father figures went exclusively by their nicknames.
“Is that it?” Mintz asked.
“That’s everything we know about,” Feinbaum hedged. “We haven’t made contact with any of his other clients, yet.”
“Were there many?” Mintz winced.
“I think only one of note, a model-actress named Galani Gilliman.”
“I bet Ziggy knows how to get in touch with her,” I said. “And if not him, I think we know a couple of other people who know her.”
“It’d be nice to know if she can be reached. Even better, deposed in our LA office, but I’m getting ahead of myself.” Mintz yawned and stretched. “Okay, last question before we break for lunch because I’m starving. What do you want?”
He was looking at me, but I still asked, “Me?”
“You. You’re the client. What you want steers our decisions. We’ll behave differently if what you want most is, say, for this to all go away with minimum fuss, versus, oh, sticking it to him as hard as we can. Because it’s fairly clear to me that although a lot of parties are in this tangled web, Mr. Donald “Digger” Marks is really the linchpin. Pull him out and the whole thing unravels.”
And Digger probably knew it, too. “You know, at one point he told me if I gave him ten grand that he’d drop everything.”
“Oh, really? And what did you say?”
“I told him that was extortion and to fuck off. That was probably when he’s claiming Nomad’s security roughed him up, but it was actually the venue’s police detail who escorted him off property so…?” I shrugged.
Mintz rubbed his hands. “Here’s the thing. If his lawyer walked in here and put down that he’d agree to drop everything for a settlement of ten thousand, I’d advise you to take it. What’s ten grand compared to the two million that’s being held up? But that’d be too good to be true.”
“We didn’t believe him,” I said. “And that was before Mrs. Rogala got him dragged into criminal court for embezzlement.”
“You still haven’t answered my question.” Now Mintz was looking right at me, a wisp of his gray frizz bobbing above his eyebrows.
“I’ve got no problem seeing Digger get what he deserves, including rot in jail.” I cracked my knuckles out of reflex and I swear it wasn’t that I was trying to seem tough. “But mostly I just want him to go away. And the two million plus. I want that, obviously.”
“You don’t sound very sure of yourself,” Mintz said.
“You know what? Because I’m not. What I really want is for none of this crap to have ever happened. If BNC had held up their end of the bargain in the first place, huge swaths of this would have never come to pass. We’d have done a followup album to 1989, everyone would have made a decent cut of the profits, and by now we would have probably fired Digger anyway. Maybe we would have given him ten grand in severance, I dunno. Or he would have kept some points on album sales, but he would have been out of our hair. Instead he doesn’t get anything on album sales because we’re unrecoupable; none of us do. And it must burn him something awful to realize he could have gotten more for Ziggy and that Ziggy went out and got it for the rest of the band.” It had been a long, long time since I’d let myself play the what-if game and daydream about what might have been. “So what I really want isn’t going to happen. I’d settle for getting the money and never having to see or talk to Digger again.”
Mintz gave a nod. He and Feinbaum nodded to each other and the next thing I knew we were all standing up. A round of handshakes went around. Various things were said but it was all rote-sounding so it didn’t really stick. Feinbaum got in the elevator with us to return to the street.
“Let’s get some lunch,” he suggested.
“Grand idea,” Carynne agreed. “So how do you two know each other? I mean, how do you know Mintz.”
Feinbaum sighed. “Law school. He was quite a bit ahead of me, as you might have gathered. Has never let me forget it.”
“He seems like quite a character,” she said.
“He’s a pain in the ass, but he’ll get the job done.”
“Does he always look like that?”
“Not in court,” Feinbaum said. “But here’s hoping we don’t need much in the way of court time.”
“I like him,” I said, as the elevator let us out into the lobby. “Seems like a good guy.”
“Yeah,” said Feinbaum, “for an asshole.”
(Mini-site-update: The website continues to have glitches. Recently our RSS feed started working again, but now I’m no longer receiving notifications of new comments?? I’ll just check back every few days…? -ctan)