Michael Jackson’s agreement with AEG – FRAUD from the very start of it? part 1
Michael Jackson’s agreement with AEG Live is so crucial for understanding what happened to Michael that looking into it cannot be put off any longer.
Please prepare yourself for a top serious discussion.
This post is the first in the many I hope to make as I have numerous questions to President of AEG Live Randy Phillips – from why he insisted on Michael attending every rehearsal to what made him fight so fiercely Katherine Jackson’s request to show her the contract they had signed with her son?
I was somewhat disturbed to find information on the web that alongside AEG the attorneys for the Estate also refused to provide Katherine Jackson with a copy of MJ\AEG’s contract. I didn’t doubt for a second that something was terribly wrong with that agreement but never thought that the Estate could be sitting in the same boat with AEG…
After a little study I’ve come to a conclusion that John Branca and John McClain have no other business with AEG except the desire to settle their outstanding matters with them in Michael’s best interests. A couple of things also make me think that they don’t want to go into much dispute with these people at the moment – however this point should be discussed at another time and place.
The fact is, the Estate attorneys could not make the MJ\AEG contract available to Katherine Jackson for a very simple reason – they had no legal right to do so without the consent of AEG as the second party to the contract. AEG was careful enough to specify a confidentiality clause in the agreement which prevented anyone from disclosing its contents to outsiders.
However as is always the case with Michael Jackson’s matters the Estate’s position was presented in the media in a terribly misleading way. The media heavily implied that the Estate attorneys were fully on AEG’s side and the reason for their refusal was the same as that of the promoters:
“Katherine insists she had no choice but to file official documents because, “The special administrators (of Jackson’s estate) have, up to this point, refused all requests,” insisting the attorneys for her son’s estate are “intent on keeping her in the dark as much and for as long as possible.”
The lawyers and promoters she is targeting claim Jackson’s request is “burdensome and invasive.”
The attorneys have also expressed concern that Katherine would not uphold a confidentiality agreement surrounding the concert deal:
“Without the safeguards necessary to ensure the continued confidentiality of the artist agreement and any proposed modifications, AEG cannot provide such information to Ms. Jackson or her counsel without risking serious harm to its business.” http://www.contactmusic.com/news.nsf/story/jacksons-mother-wants-comeback-concerts-contract_1111147
AEG cannot provide this information to Mrs. Jackson without risking serious harm to its business???
Is it the Estate which is making the above statement? To me it sounds like the official position of AEG whose business can be “seriously harmed” by disclosing the contract (with terms like those stated in that ‘contract’ no doubt it can).
The Estate attorneys denied that it was them who imposed the restrictions:
“A lawyer for McClain and Branca denied those allegations.
“Nothing could be further from the truth,” wrote lawyer Jeryll S. Cohen. She said the “cornerstone” of Katherine Jackson’s complaint was her inability to view a contract between the concert promoter AEG Live and her son. The contract covered a series of 50 concerts in London as well as unspecified film projects between the L.A.-based promoter and Jackson.” http://articles.latimes.com/2009/jul/29/local/me-jackson-mom29
The exclusive information from Radaronline explained the real reason why the attorneys couldn’t share the contract:
Jul 28, 2009. Michael Jackson’s will was the subject of a deposition being sought by Katherine because she alleges Branca has yet to turn over her son’s AEG Live contract to her.
A source close to the situation says “the court put off Mrs. Jackson’s request to take depositions,” and that no further discoveries can be made until August 3. The source is also sure that nothing pertinent is being kept from the singer’s mother. “The executors have no secrets,” the insider said.
“Any inference that we have not been forthcoming in providing information to Katherine Jackson’s attorneys is not accurate,” a spokesperson for the executors said.
Legally, Branca cannot release the contract to Jackson with[out] AEG’s consent. The source says that Londell McMillan, Katherine’s attorney, will not agree to certain confidentiality agreements attached to viewing the document. http://www.radaronline.com/exclusives/2009/07/exclusive-john-branca-deposition-delayed
The official response of the Estate attorneys to Katherine Jackson confirmed that the restrictions were placed not by them, but by AEG:
“The Special Administrators have and will continue to provide timely information to Mrs. Jackson’s counsel regarding potential business opportunities for the Estate. Any inference that we have not been forthcoming in providing information to Katherine Jackson’s attorneys is not accurate.
There is one agreement being requested by Mrs. Jackson’s attorneys where the other party to the contract has agreed to provide the document to Mrs. Jackson and her attorneys but requested that the terms be kept confidential and not be shared with third parties. Mrs. Jackson’s lawyers have refused that offer.”
What party are they talking of? AEG Live of course, who demanded that Katherine’s lawyers should sign a special confidentiality agreement which wouldn’t let them sue their company because of the information contained in the contract (which makes me think they expected it):
“In a separate filing, a lawyer for AEG said Katherine Jackson’s legal team had refused to sign a confidentiality agreement that, among other things, barred them from using the information contained in the contract in any legal process other than the probate court proceedings. http://articles.latimes.com/2009/jul/29/local/me-jackson-mom29
Fortunately the matter was resolved in Katherine’s favor in court which ruled on August 3, 2009 that AEG was to provide her with a copy of contract with Michael Jackson:
8/3/2009 The judge has ruled that AEG has to provide a copy of their contract with Michael to Katherine Jackson. http://www.tmz.com/2009/08/03/michael-jackson-estate-hearing-guardianship-debbie-rowe/
This was a historic moment, ladies and gentlemen. The court ruling opened to people the agreement which was never meant for the public eye and which was to remain in secret vaults of AEG for centuries to come. It was only due to Michael’s death and a somewhat chance luck of the judge ruling in favor of Michael’s mother that we now have an opportunity to see this awful document and the highly intricate methods employed against Jackson to coerce him into this ‘AEG deal of the century’.
When I finally got hold of the unredacted version of the agreement (it is part of Leonard Rowe’s book on the jetzi site) the impression it made on me was that of deep sadness and even deeper indignation. Whatever reputation Leonard Rowe enjoys I fully agree with him that this agreement is deplorable from the point of view of the terms forced on the Artist. But in addition to that I believe that it should also go under a thorough scrutiny of legal experts who should check its validity at all.
Please do not think that these conclusions are made by a complete laywoman – the fate had it that the first ten years of my professional life were spent studying business contracts in a foreign-language educational institution, while the second ten years were spent implementing them while working for a foreign company operating here.
Of course none of my experience had to do with entertainment business – however it doesn’t matter that much. The good thing about business agreements is that all of them use standard language and follow a standard format or structure – which is done on purpose:
- Standard terms are a way for the parties to speak common language which leaves less room for misunderstanding – each side knows for certain what term stands for what idea, so there is a lesser chance of a dispute over “what means what”.
- And the formal structure of an agreement is standard because it is the presence of these formal elements which makes the agreement an agreement. These elements enable you to see at first sight what kind of a document you are looking at – part of preliminary correspondence which becomes null and void when the final contract is signed, a letter of intent which states the intentions signed by both sides – but is nevertheless far from being the final agreement – or the final contract where all necessary formal requirements to such a document are strictly adhered to, or otherwise it is no agreement at all.
These formal elements include a list of clauses which are a must for every contract – names of the parties, subject of the agreement, obligations of both sides and penalties arising from their infringement, the validity period of the contract, etc.
Another crucial and fundamental point of the agreement is that it should be absolutely clear as to who represents each party and therefore has the right to sign it, complete with the legal addresses of these parties.
In short there is no such thing as ‘unimportant details’ there – all formal elements of a document are very much telling and immediately send the reader to a concrete stage of negotiations we are currently looking at.
Thus the final agreement should be absolutely clear as to the subject of the agreement, who signs it on behalf of whom, what obligations are expected of each party, within what period of time, what legal addresses of the parties are, etc.
If you do not get a clear impression from it about “who answers for what” and “who represents whom” the only message such an agreement sends to the reader is that something is fundamentally wrong with it.
Since I had no idea how Live Performance agreements should look like I did some web search which rewarded me with Standard live performance agreements suggested by the American Federation of Musicians for the US and Canada (here, here and here) .
The above reading is long and tiresome, so here is a simpler alternative from the site by Joy R. Butler, Esq. who wrote a book about entertainment law and is giving legal advice to musicians on how to make a live performance agreement. Let us educate ourselves a bit before we look into the Michael Jackson/AEG riddle:
- When performing live for compensation, it’s a good idea to have a written contract. You may encounter some owners or promoters in smaller venues who refuse to sign a written contract. In these situations, the good news is that a contract for a live performance does not need to be in writing in order to be valid. Of course, for obvious reasons, it’s often more difficult to prove the terms of a verbal agreement. So, if the person hiring you refuses to sign a formal written contract, try to get something in writing – whether it’s a letter of confirmation, a fax or even an e-mail – showing the date and time of the performance and the compensation you will be paid.
It was a big surprise for me to learn that in some cases it is enough to have a verbal agreement about a live performance or just an email defining some terms. However this surely concerns casual performances in ‘small venues’ as the author puts it and not contracts with megastars for multimillion sums at the O2 London arena – so it would be a totally wrong idea to think that a simple email would be enough to cover the contractual relations between Michael Jackson and AEG.
- Performance agreements frequently come in two parts. The first part lists the most general information for the performance such as the names of the band and hiring person, the place, date, time and the payment terms.
- The second part consists of one or more riders or attachments providing additional requirements and terms. Riders can be very detailed and run up to 20 to 30 or more pages. They may address a number of issues such as specifications for the sound system and light equipment, procedures for ticket sales, promotional efforts, billing, background music, and food, transportation and accommodations provided for the performer. Generally, very detailed riders are reserved for established musicians who are performing at large venues and have ample bargaining power.
The above was really helpful. This information confirmed to me that the structure of performance agreements is the same as in all other businesses – first come parties to the contract, total number of shows, period within which they are to be held and payment terms. I never doubted it of course but it doesn’t hurt to make sure that live performance agreements are subject to generally accepted business rules.
The specifics come with riders (attachments) which are to state everything relating to how to implement the agreement. These may very long and detailed in case of established musicians and performances at large venues. Since this is exactly our case let us remember this point.
Joy R.Butler explains several other specific things about live performance agreements:
HOW WILL YOU BE PAID
- Compensation for live performances is normally structured in one of four ways: 1) payment of a set fee 2) a percentage of ticket sales 3) the greater of a percentage of ticket sales or a set fee (the set fee is a guarantee on the minimum you’ll receive for the performance) 4) a set fee plus a percentage of ticket sales.
- When determining what percentage of ticket sales to request or accept, you’ll want to know at what price tickets are to be sold, how many people are expected to attend the performance, and the number of free tickets the promoter or club owner intends to give away. You’ll also need to know whether you’re getting a percentage of the gross ticket sales or the net ticket sales. If you’re receiving a portion of the net ticket sales, you should ask what deductions will be taken before you get your cut. Preferably, the deductions will be listed in the contract.
WHO’S HIRING YOU
- You may be hired by a promoter or directly by the venue. A promoter is the person or company who organizes the event, hires you to play, rents the hall and does the advertising. When a promoter who doesn’t own the venue is involved, fee arrangements may be a little more complicated because you may be splitting the percentage of ticket sales with the promoter and with the venue.
WHO SIGNS THE CONTRACT FOR THE MUSICIAN
- If you’re a solo performer, this question is very easy to answer. You’ll sign the contract yourself. As you become more established, you may use the services of a personal manager or talent agent to book your live performances. Managers often ask for a power of attorney to sign contracts on your behalf. You may wish to limit the manager’s authority to sign contracts on your behalf to those contracts of a short duration, standard union agreements, and contracts for which the manager has received your verbal consent.
- Sales of CDs, tapes and other wares can be a very lucrative portion of your touring and live performances. The sample contract below provides that all merchandising income will go to the musician. However, some clubs may charge a portion of the revenue you receive from selling your merchandise – up to 40 percent.
The example of a basic contract provides some additional important information – like the need for parties to state their business addresses, a requirement for the promoter to provide a deposit (or the musician can even cancel the performance) and the need to obtain a written approval of the musician if the performance (or rehearsal) is being recorded by him.
I wonder if Randy Phillips obtained a written approval of Michael Jackson before filming his rehearsals by two cameras and why he was doing it…
Here is a sample of a live performance agreement (please take a good look):
THIS PERFORMANCE AGREEMENT is made and entered into as of _________________, 20__, by and between __________________________, whose business address is _________________________ (“Purchaser”) and the musical group or performer __________________________ (“Musician”), whose business address is _____________________________________. In consideration of the mutual covenants herein contained and, intending to be legally bound hereby, the Purchaser and Musician agree as follows:
1) Engagement. The Purchaser hereby engages Musician to render a musical performance (the “Performance”), and Musician hereby agrees to render such Performance under the terms and conditions specified herein.
2) Individuals Comprising Musician. Musician consists of the following individuals:
Musician’s obligation to perform hereunder is subject to the unavailability of Musician as a result of sickness, accidents, acts of God, and other reasons beyond Musician’s control.
3) Location of Performance. The Performance will take place at the following location:
Street Address: ___________________________________________
4) Date and Time of Performance. The date of the Performance is ______________, 20___. The venue will be available for set-up on (date) ______________ at (time) ________. The Musician will play ____ sets as follows:
|Set||Start Time||Ending Time|
5) Payment. In full consideration for all services rendered by Musician at the Performance, Purchaser agrees to make the following payment in U.S. funds to Musician (select one):
|___||Set Fee. A set fee of ______________________ Dollars ($______).|
|___||Percentage of Ticket Sales. An amount equal to ___ percent of the (select one) __ gross __ net ticket sales.|
|___||Percentage of Ticket Sales With Guarantee. The greater of (a) ___________________ Dollars ($_____), or (b) an amount equal to ___ percent of the (select one) __ gross __ net ticket sales.|
|___||Set Fee plus Percentage of Ticket Sales. A fee of ______________________ Dollars ($______), plus an amount equal to ____ percent of the (select one) __ gross __ net ticket sales.|
|___||Other. (specify) _____________________________________.|
a) Deposit. Purchaser will pay ___________________ Dollars ($ _____) of the payment to Musician as a deposit by __________________, 20___. If Purchaser does not pay Musician the deposit, Musician will have the option of canceling this Performance Agreement with no further liability hereunder to Purchaser.
b) Payment of Balance. After the last set on the date of the Performance, Purchaser will pay Musician the remaining balance of the payment in cash or by money order or certified check made payable to ______________________________.
c) Definitions. For the purposes of this Performance Agreement, the following definitions apply: Gross ticket sales means the sum of any and all monies paid for admission to the Performance. Net ticket sales means gross ticket sales minus the actual cost to Purchaser of the following expenses: _________________________________________.
6) Merchandise. At Musician’s option, Musician may offer CDs, tapes and other items for sale at the Performance. Musician will retain all proceeds from such sales. To facilitate Musician’s merchandising, Purchaser will provide a table and chairs set up in an easily accessible and visible area of the venue.
7) Cancellation. In the event Purchaser cancels the Performance less than _____ weeks prior to the scheduled date, Purchaser will pay Musician a sum equal to (select one) __ ___________________ Dollars ($ ____) __ ___ percent of the set fee specified in paragraph 5. Upon payment of the cancellation fee, Purchaser will have no further liability to Musician hereunder.
8) No Taping of Performance. Purchaser will not, nor will Purchaser allow others to tape, record, reproduce, or transmit in or from the premises in any manner or by any means, the Performance without the written approval of Musician.
9) Miscellaneous. This Performance Agreement and the attached rider(s), if any, set forth the entire agreement between the parties, and may not be amended except in a writing signed by both parties. This Performance Agreement will be governed by and construed in accordance with the laws of the State of __________, without regard to the principles of conflicts of law. In any action or proceeding involving a dispute between the Purchaser and the Musician arising out of this Performance Agreement, the prevailing party will be entitled to receive from the losing party reasonable attorney’s fees.
Musician and Purchaser have each caused this Performance Agreement to be signed by its duly authorized representative.
|(Name of Purchaser)||(Name of Musician)|
|(Signature of Authorized Representative)||(Signature of Authorized Representative)|
|(Printed Name and Title)||(Printed Name and Title)|
1) After learning a little theory it is now time to compare “how it is usually done” with “how it was done” between Michael Jackson and AEG Live.
Their agreement is much more complicated of course, but all formal elements of an agreement should be still there by all means as this is what actually makes it an agreement and a legally enforceable one too.
I suggest analyzing the text as it comes (the way the Artist would do it) with only an occasional jump to the follow-up clauses or attachments.
Since we have two copies of the agreement – the heavily redacted ‘radaronline’ version and a full one from Leonard Rowe’s book “What really happened” – comparison between the two will give us the additional benefit of seeing which parts of the agreement were intentionally blacked out, thus suggesting ideas as to why this could be done (the parts erased in the radaronline variant will come in a lighter font). Here is the beginning of the MJ\AEG document:
January 26, 2009
The Michael Jackson Company, LLC
1875 Century Park East, Suite 600
Los Angeles, CA 90067
Tel: (310) 284-3144
Fac: (310) 284-3145
Attn: Dr. Tohme Tohme
Dear Dr. Tohme,
This agreement (this “Agreement”) is entered between…
Wait, from the very first sentence this “agreement” astonishes you by the total absence of all standard features of a formal contract! It comes in the form of a letter which isn’t even addressed to Michael Jackson but is sent to Dr. Tohme whose position in relation to Michael Jackson and his company is not even specified here!
What does such an opening mean? It means that anyone looking at it will think that this document is part of preliminary correspondence only and will involuntarily relax as to the consequences of its signing.
Even if this letter is not a casual one but is a Letter of Intent (which does resemble a contract) the latter is still no agreement and signing it seals only the Artist’s intention to go into an agreement with the other party along the lines mapped out in the letter.
Definition of a Letter of Intent:
- A letter of intent or LOI is a document outlining an agreement between two or more parties before the agreement is finalized. It is typically written in letter form and focuses on the parties’ intentions.
- LOIs resemble written contracts but are usually not binding on the parties in their entirety. Many LOIs, however, contain provisions that are binding, such as non-disclosure agreements, a covenant to negotiate in good faith, or a “stand-still” or “no-shop” provision promising exclusive rights to negotiate. A LOI may also be interpreted as binding the parties if it too closely resembles a formal contract. http://en.wikipedia.org/wiki/Letter_of_intent
The purposes of an LOI may be:
- to clarify the key points of a complex transaction for the convenience of the parties
- to declare officially that the parties are currently negotiating, as in a merger of joint venture proposal
- to provide safeguards in case a deal collapses during negotiation
Anyone involved in business knows that all letters prior to the final contract become null and void when the contract is signed – so the value the reader (the Artist) will attach to such a paper will be immeasurably lower if he thinks that it is only part of correspondence or a preliminary document like a letter of intent.
If you couple the impression the reader (the Artist) gets from the first page of this document with the impression of the last page of it, you will see that the Artist had every reason to believe that what he was looking at was no final contract at all but a preliminary document outlining the main directions of further negotiations.
The last page explicitly states that the final agreement is still to be discussed and signed ‘expeditiously” (quickly) and “in good faith” (honestly):
- “By signing below each party acknowledges its agreement to the foregoing and agrees to negotiate the definitive agreement expeditiously and in good faith”.
The dictionary explains the word “definitive” as “final; to be looked upon as decisive and without the need for, or possibility of, change or addition”. And this means that by signing that document Michael Jackson agreed to negotiate further for a quick and honest signing of the final agreement.
Why is it so terribly important to determine what document was Michael Jackson looking at? Because it will help us understand how he was interpreting its terms and conditions and what value he was attaching to the signature he was putting under them.
From everything we’ve seen in this paper up till now it does look like nothing but a Letter of Intent.
2) The letter is signed by Brandon K. Phillips who closes it in a manner typical for a letter – “Very truly yours” addressing it evidently to Dr. Tohme, to whose attention the letter is sent. Phillip’s title and company are specified below his signature but no indication is made of his company’s legal address.
Again, if this document were regarded as an agreement this would be another negligent point as the address printed on top or bottom of a standard company’s form isn’t the same as the company’s legal address specified in the text of the agreement. The office may be located at one place and the company may be registered at another place so its legal address may be totally different from the one printed on an office form.
So in addition to having a greeting typical of a letter, the absence of such formal details as a proper address could also misguide the Artist into thinking that this was just a preliminary document, especially if his advisors persuaded him to look at it this way…
3) All these inaccuracies are very dangerous indeed.
Despite coming in the form of a letter “as a matter of law, contracts do not need to be labeled as such to be legally binding”, so unless the matter is disputed in court, it might still turn out to be an agreement and the Artist’s signature under it can make the obligations stated there legally binging on him, even if he is under the impression that he is signing a letter of intent only.
The very first question arising from all this controversy over the formal structure of this document is why AEG would want to present an agreement in the form of an ordinary letter?
Since a hypothesis that AEG didn’t know how to make contracts doesn’t hold water, the only other explanation why this agreement was masquerading as a letter is that it was an intentional and fraudulent method to force Michael Jackson to put his signature under it.
Someone wanted very much to pass this document for a piece of preliminary correspondence and make the Artist think he was signing a letter of intent only - the terms of which are far from being final and can be renegotiated at any time – while in reality the follow-up text included many details which made the obligations taken by the signor of the document legally binding on him.
In short if an Artist thinks that he is signing a letter of intent only it is much easier to obtain his signature under such a preliminary document. And if they want him to sign a contract but present it as a letter of intent it means that it is an intentional fraud.
Usually legal attorneys are standing on the Artist’s guard to prevent such accidents from taking place but this was evidently not the case with Michael Jackson. I really start wondering what his legal advisors were thinking of when they were giving their okay to this document (if they ever gave their okay of course) …
4) More proof of the intentional fraud on the part of those who were preparing this agreement is found in the opening part of it which names parties to the contract. This is what it says after the initial greeting (which shouldn’t be there at all):
Dear Dr. Tohme,
This agreement (this “Agreement”) is entered between AEG Live, LLC dba Concerts West, a Delaware limited liability company (“Promoter”), on the one hand, and The Michael Jackson Company, LLC, a Delaware limited liability company, (Federal Employer Identification Number 20-5536902) (“Artistco”) furnishing the services of Michael Jackson (“Artist”) and the Artist, on the one hand, as follows: ….
So the parties are described as:
- AEG Live, LLC dba Concerts West, a Delaware limited liability company (“Promoter”), on the one hand, and
- The Michael Jackson Company, LLC, a Delaware limited liability company, (Federal Employer Identification Number 20-5536902) (“Artistco”) and Artist on the other hand (please note that the Artist is mentioned somewhat in passing, as there is no name given for him though it should be there).
What attracted my attention first was the word “dba” I never encountered before. It turned out to mean “doing business as”. The definition of DBA is as follows:
- The LLC means Limited Liability Company, a name given to all corporations that have limited liability advantage. However, the DBA is a different thing. DBA means “doing business as”.
- DBA is sometimes also called Assumed name, Fictitious Business Name and Trade Name. If any business is not working with its legal name than registering for DBA is compulsory. The legal name is the name by which the LLC is registered in the filed articles.
- Therefore, by filing LLC DBA, the company can work under any other name than its legal name. http://llcdba.net/
Interesting… So for some reason AEG Live decided to work not under its legal name but as some “Concerts West”? And in addition to that the federal identification number is specified only for Michael’s company while AEG Live will be doing business as some vague “Concerts West” even without its federal identification number mentioned?
Now again, if this was supposed to be a letter no one would expect exact information about the companies stated there – it is simply ridiculous to enumerate all those numbers in every casual letter. But if this was supposed to be an agreement full information should be provided there by all means and for both of the companies too. However what we see above is a strange hybrid where Michael’s company is identified in detail while information about Concerts West is practically none.
Why is this strange focus on Michael Jackson’s company only?
Does this mean that “Concerts West” wanted to be someone vague and not associated with AEG proper (it may be crucial in financial disputes where some little ‘bastard’ cannot answer for its giant ‘parent’) while Michael Jackson’s company was identified in detail – so that if it comes to something serious (like suing it or acquiring its assets) no one should ever, ever doubt what company is meant?
This negligence in stating the parties properly may have again implied to the reader (Artist) that this was nothing but a letter where such omissions are natural – but in case it was to be regarded as an agreement its consequences could be really serious. Michael’s company is defined properly while the Promoter is represented by we don’t know whom – AEG Live, or Concerts West, or both, or none as no identification numbers are given for either of them…
5) What else is wrong about the definition of the parties?
The highly unusual thing is that there is no indication of who represents each party and who is therefore to sign the agreement on their behalf.
I may sound too old-fashioned but in my time we were not allowed to have a contract signed between X and Y companies without first saying who personally represented each company and then have signatures of a Mr. Jones for one party and a Mr. Smith for another party. How were we supposed to know who these people were if they were not specified as the official representatives of each party first?
Since no assumptions are allowed in business agreements, it is usually a complete must to state the persons representing each party in the agreement. The US practice may be different of course but this requirement is still obligatory for the EU Commission for example, whose standard contract requires stating the name of a person representing them and specifically says that this is done for the purposes of signing the contract:
CONTRACT NUMBER ….
The European Union (hereinafter referred to as “the Union”), represented by the European Commission (hereinafter referred to as “the Commission”), which is represented for the purposes of the signature of this contract by Mr. Heinz Zourek, Director General, Enterprise and Industry Directorate-General, of the one part and (the company and who represents it on the other part)
Similarly if Dr. Tohme (for example) was representing the Artist and acting on his behalf the capacity in which he was working for the artist should have been definitely stated in the agreement (the way it is done in the Standard Live Performance Agreement cited earlier in this post).
However all we know about Dr. Tohme is that he is often mentioned in this strange document as “Dear Dr. Tohme Tohme” and “Attn: Dr. Tohme” with no information who the mysterious guy is and what he is doing in this paper.
In contrast to Tohme, Randy Phillips and Michael Jackson as official representatives of the parties are not mentioned at all (at least on page 1) and the only context where Michael’s name is ever stated is that “Artistco” is to furnish the services of Michael Jackson….
Let me point out again that for preliminary correspondence all this gross negligence is perfectly okay – it would be even ridiculous to state the capacity of each person in casual letters – but for an agreement between the parties it is totally unacceptable and even outrageous to say the very least.
This might be another proof that some people wanted to convince the Artist that the document he was signing was preliminary as it didn’t have the necessary formal elements of the final agreement at all.
6) Who is mysterious Dr. Tohme under this paper?
Can you grasp from this document what position Dr. Tohme holds with Michael Jackson’s company? No, of course not. The casual way he is mentioned here shows that he is a legal nobody for this agreement (if it is an agreement). The only thing which more or less connects Dr. Tohme to Michael Jackson’s company is the name and address of the company stated in the headline of the letter and the greeting “Dear Dr. Tohme” addressed to him.
However a mere assumption that a certain Dr. Tohme is working for this company and may represent its interests won’t do for a business agreement (again if it is an agreement). Unless Dr. Tohme and the capacity in which he is operating for the company is officially stated in this document he is still a nobody for it and his presence in the agreement is simply out of the question.
But on the other hand this strange paper produces the impression that the mysterious Dr. Tohme is not only an active participant in this business deal but is the sole representative of the “Artistco” party as all notices about approvals and consents required for the agreement are to be sent solely to him (and a certain Mr. Dennis Hawk) as clause 16.8 explicitly states it:
16.8 Notices. All notices, approvals, and consents required or permitted to be given hereunder, or which are given with respect to this Agreement, shall be in writing, and shall be deemed duly given or made (1) upon delivery or refusal of such delivery of such notice by a recognized courier service … (ii) upon personal delivery … or (iii) upon delivery by fax machine capable of confirming receipt …, and in each case addressed as follows (or at such other address for a party as shall be specified in a notice so given):
If this document were a Letter of Intent the above would be perfectly okay, however if it were an Agreement it would be totally wrong to state the addresses this way – usually the legal address is either provided together with the name of the company and its representative (please look up the Standard Contract again) or below the signature of its authorized representative.
And in all cases of course it should be clear as a blue sky who the enumerated people are and what they are doing in this official aper.
All of the above is missing here, however the information contained in this clause is still quite enlightening as it proves to us that all correspondence for the Artist was carried out solely through Dr. Tohme Tohme and a certain Dennis J. Hawk who were evidently the only two guys who were handling Michael Jackson’s business with AEG.
The capacity of Mr. Dennis Hawk is not specified here either and all these omissions confirm to us again and again that what the reader (Artist) was looking at was most probably a Letter of Intent or a document which was pretending to be one – and surely not the final agreement between the parties.
Which is another proof that AEG, Tohme Tohme and Dennis Hawk didn’t want Michael to know that the Letter of intent he was reading would be later turned into the final Agreement.
7) But the worst part of it is yet to come. If the document we are looking at is indeed a binding agreement, then clause 16.8 which we’ve just read will acquire a totally sinister meaning.
- “all approvals and consents … with respect to this Agreement …shall be deemed duly given or made upon delivery by fax machine capable of confirming receipt”.
This means that if someone acting on behalf of Michael Jackson sent a written approval or consent by fax to AEG Live, the moment the fax machine at the AEG end confirmed its receipt such an approval would be automatically regarded as duly given or made by Michael Jackson and his company.
And if we recall that all correspondence was handled solely by Dr. Tohme (with the knowledge of Dennis Hawk) …. my God ….. then technically speaking both of them could take decisions for Michael Jackson even without him knowing about it!
Of course Michael Jackson was to still sign such an approval personally, however clause 16.9 (the last clause of the document) effectively nullifies such a requirement as it says that photocopies of signatures will be regarded as the originals – thus giving vast opportunities for forgery of Michael Jackson’s signatures on those approvals:
16.9 Counterpart/ Fax Signatures “This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and facsimile copies or photocopies of signatures shall be as valid as originals”.
Taken separately point 16.9 seems to refer only to the signatures under the present ‘agreement’ but since it immediately follows point 16.8 which says that “all approvals sent by fax will be deemed duly given or made” it may be easily interpreted as a permission to send all Michael’s major approvals with only a fax signature under them…
This is a highly surprising practice because anyone can forge the signature of his boss by sealing two documents together, making a copy of the resulting sheet and sending it by fax.
However law finds emailed signatures possible and even valid – the only thing it suggests for fax or email signatures to be proved genuine is making a call to the other party and confirming is as authentic. Attorney Cliff Ennico explains it in this video: http://video.answers.com/learn-about-electronic-signatures-126740058
Unless such a precaution is taken this clause gives tricksters ample opportunity for fraud and something tells me that our dear old Dr. Tohme was not above using it a couple of times in case Michael Jackson was especially stubborn in not giving his consent to AEG’s proposals….
By now your head should be spinning because of the numerous irregularities found in this document. So let me review them again point by point:
- this document has been intentionally given all formal elements of a Letter of Intent. In contrast to a contract the signatures under such a letter do not make the obligations stated there binding on the party which signs it.
- the Artist could have been misguided as to the true intent of that paper, and neither legal advisors nor the mysterious Dr. Tohme stopped him from doing so.
- in spite of looking like a letter, this document seems to be the only one available to AEG (they gave it to Katherine Jackson following the court ruling), so this is all they have as their “final agreement”.
- on the other hand there is a special point in this Letter saying that the final agreement is yet to be discussed and signed.
- the fact that AEG has nothing but this paper shows that Michael Jackson never agreed to the terms proposed in AEG’s final version of the agreement.
- one of the surprises of this document is that AEG didn’t want to go under its legal name and suggested Concerts West instead, not even giving any federal identification number for it.
- on the other hand the information about Michael’s company was stated in a very definite way complete with all its numbers.
- the agreement is made not so much with Michael Jackson, but with Michael Jackson’s company.
- no official representatives for the companies are stated in the document, so why Randy Phillips would sign this letter for “Concerts West” is not clear enough (this, however, may be okay if it is a rule for the president of a parent company to be also president of the dba version of it – I simply don’t know it)
- Dr. Tohme Tohme is the only person who seems to be acting on behalf of Michael Jackson and his company. A certain Dennis Hawk is also mentioned as a recipient of all copies of the documents involved.
- the document doesn’t explain who these guys are. Legally speaking both Dr. Tohme and Dennis Hawk are a nobody here as their identity, functions, legal address and what they have to do with Michael Jackson’s company are not stated in any way.
- but despite that they are not only the ones who receive all approvals and consents from AEG Live, but they are also the ones who are “required and permitted” to send approvals and consents to AEG and not only on behalf of Michael Jackson, but on behalf of Michael Jackson’s company too.
- all they need to do to finalize matters between AEG and Michael Jackson’s company is just a photocopy of Michael Jackson’s signature which will be regarded as the original.
- and the approvals and consents sent in such a manner will be considered duly given or made not even by Michael Jackson personally, but by Michael Jackson’s company (with all its valuable assets!).
Did we understand it right? Dr. Tohme as a complete nobody for this agreement sends by fax all approvals to AEG on behalf of Michael’s company and these approvals are considered to be properly made?!
I have no doubt whatsoever that if Michael knew that the document he was signing would be the final agreement between the parties he would never have signed it. But what did he know about this document? And under what circumstances did he sign it?
8.) It is clear by now that Michael was highly misled by the format of the document (anyone would). It started as a letter and finished as a letter – with no legal addresses provided, no official representatives mentioned, no identification numbers given for AEG or Concerts West …. And the last paragraph of the paper said it most explicitly that “by signing below each party acknowledged its agreement to the foregoing and agreed to negotiate the definitive agreement expeditiously and in good faith”.
Judging by the above each of us will agree that Michael was most probably thinking he was signing a preliminary document only and believed that he would have a chance to negotiate the terms of the final agreement later.
However the last page does say that by putting his signature the Artist agreed to the “foregoing”…. What does this foregoing mean?
Frankly, when signatures of the parties come on a separate sheet of paper and when such document is not signed personally in the presence of both parties (and is sent by fax only) “the foregoing” can mean anything you like.
I don’t want to press on you the idea that another fraud could have taken place here – all I know is that special precaution is usually taken not to put signatures on a separate sheet of paper, because it is too easy to attach such a paper to any text preceding it.
In Michael Jackson’s case the page carrying signatures does come as a separate sheet of paper. Well, there is no way I can prove that Michael could be given a different text to read before signing it, but you will probably agree that theoretically such an opportunity was possible.
For you not to regard it as a malicious speculation on my part here are some other things about the last page of this document which look totally weird to me.
Since Randy Phillips was writing a letter to Dr. Tohme I naturally assumed that he signed it then and there as any normal person would. However after a closer look at the last page I realized with a 100% certainty that this was not the case with this letter.
The proof of it is very easy – just look at the place where Randy Phillip signed this paper. Do you see a strange stroke before his signature?
Yes, your guess is right – Michael started writing in the place allotted to Randy Phillips, and it was only after he realized he was signing it in the wrong place that he moved to the line assigned to the Artist – which is in the right-hand corner of the paper.
So when Michael was signing the paper, the place for Randy Phillips’s signature was blank and Randy Phillips put his signature later which is why his name comes over Michael’s initial attempt.
Why should Randy Phillips send his letter to Dr. Tohme unsigned will still need to be looked into (it may be meaningful or may be not), however the order in which the signatures came may be considered an established fact – Michael signed first, Randy Phillips signed second.
Another weird thing about the last page of this document is that Michael’s signature on the right (where the Artist represents himself only) looks quite genuine, while the signature on the left (allegedly put by Michael Jackson on behalf of his company) raises a very big question as to its authenticity.
There are several Michael Jackson’s signatures in the pack of documents making up this highly unusual “agreement” and for some strange reason out of the several of them, only one and the crucial one – for Michael’s company – looks decidedly different from all the others.
Please compare the above two signatures with the other two made on the promissory note:
In my humble opinion the signature in the first picture – where Michael Jackson was to sign for his company – isn’t his handwriting at all, and if I were in the place of Jackson’s family I would put that signature to a graphology test.
Given that the main contracting party with “Concerts West” was Michael Jackson’s company and not Michael Jackson himself, any such doubt in the authenticity of his signature on behalf of his company may turn out to be the crucial factor in disputing the legal force of this “agreement”.
Given that all signatures could have been sent to AEG by fax and that there was no need for their verification or personal presence of the Artist while signing the approvals, you will probably agree that there was ample opportunity for forging this signature.
Given that Dr. Tohme was named as the only person able to handle Michael Jackson’s correspondence there is nobody else who could have forged that signature but him (though the other side’s involvement is not ruled out either).
Given that all copies of the approvals with signatures on them were to be sent to Dennis Hawk, Esq. (I’ve just been told that he is Tohme’s attorney) we have reasons to believe that he as a lawyer turned a blind eye on all those irregularities in the agreement and on the strange signature too.
Now that we see so many inaccuracies in this paper it wouldn’t surprise us why Michael Jackson was so dissatisfied with the services of Dr. Tohme Tohme that at the moment of his death he was “in transition” from Dr. Tohme to Frank Dileo and John Branca.
And I wonder very much indeed if all those who were involved in preparing this ‘agreement’ were happy to see things taking a turn in the direction of a new and brilliant lawyer taking up that case…