AEG-Jackson trial Days 18 and 24. The “INTERVENTION” and MYSTERY OF MICHAEL JACKSON’S CONTRACT
To be able to move further we need to look into the contracts and various papers made by AEG with Michael and his so-called managers – Tohme and Frank Dileo. These matters were discussed in detail with Shawn Trell, AEG’s Senior Vice-President, their General Counsel (top lawyer) assigned by AEG to represent the company as the person most knowledgeable about everything connected with the projected tour.
His job was to talk to everyone and review all documents related to it. But the problem the trial revealed was that his memory was extremely selective – he, for example, did not remember anything about the chain of emails captioned “Trouble at the front” which kept other AEG bosses sleepless half the night on June 20th, but on the other hand he remembered perfectly well that hired personnel like Karen Faye and Alif Sankey whom he hardly met did not approach any of the AEG bosses with complaints about Michael’s health – over here his memory was clear and he is absolutely sure they did not (they simply could not due to the chain of command and by the way, Karen Faye did speak to Phillips in the hall).
So whenever we see Shawn Trell’s answers we should take them with a grain of salt remembering the strange peculiarities of his memory.
As regards Michael Jackson’s contract Trell remembers that he drafted it together with Kathy (Kathy Jorrie) and that it was signed either on January 26 or on January 28 (yeeess, on either of these two dates).
The drafting of the contract was described by Trell as a big process – the drafts were many, everyone who was to take part did take part and was duly present at its signing. In short everything was fine:
Ms. Stebbins: Is it fair to say you drafted part of the agreement?
A Yes. I mean, involved in the negotiation and drafting of the terms and conditions that ended up in that document, yes.
Q. Who else besides yourself was involved in the negotiation of the tour agreement?
A Well, principally it was myself, Kathy and Randy Phillips was involved in those negotiations.
Q. And “Kathy,” do you mean Ms. Jorrie?
A Kathy Jorrie, sorry.
Q. And is that –who on the Mr. Jackson side?
A On the Jackson side of it, the people that were involved in drafting and negotiating that document were Dr. Tohme Tohme, his manager at the time, Dennis Hawk, his attorney at the time. There was another lawyer present when we signed the contract, another lawyer for Mr. Jackson, named Peter Lopez. I don’t know what his involvement was with Michael and/or Dennis. I didn’t have any direct negotiations with him about the matter, but he’s -he’s now passed away, but he was a well-known entertainment lawyer. He was present when we signed, and had worked with Michael in the past, so –those would be the people I would say, yes.
Q. So who was Dennis hawk?
A He was Mr. Jackson’s lawyer.
Q. And I think you said Dr. Tohme was his manager at the time.
Q. Mr. Hawk’s manager or Mr. Jackson’s?
A Mr. Jackson’s manager.
A Yes. Sorry.
Q. And how long did negotiations for the tour last?
A They lasted a couple of months.
Q. And did Mr. Hawk and Dr. Tohme provide comments and edits to the draft agreements?
A They did; and we had meetings, you know, where different aspects of the agreement were discussed and gone over, negotiated. There were drafts of that agreement, multiple drafts of that agreement that were exchanged.
Q. So sounds like it was quite a process.
Q. Is that about the typical length of time it takes to come up with a tour agreement for a tour of this type, or was it longer and more complicated?
A Well, some have taken shorter, some have taken longer. I don’t think a couple of months is out of the ordinary, yeah.
At this point we learn that Michael Jackson had a similar offer from AEG’s competitor Live Nation and exactly at the same time, only the way Shawn Trell describes it, it seems that Michael Jackson was not even informed about its existence as all negotiations were conducted with Tohme Tohme and his lawyer Dennis Hawk, and the meeting in Trell’s description looks more like a briefing on how to beat the competitor:
Q. Now, do you know whether Mr. Jackson, at the time he was negotiating with AEG. Live for the “This Is It” tour, was considering any other companies to promote his concerts?
A It’s my understanding they were also talking to or at least receiving offers from a competitor of ours called Live Nation.
Q. And what’s your basis for that understanding?
A My basis for that understanding is we were at a meeting in mid-December at one juncture, “we” being myself, Randy Phillips, John Meglen –I think Paul Gongaware was on a –on the phone –on speakerphone –Dennis Hawk and Dr. Tohme. I was seated next to Dennis Hawk, and he had a document next to him that had three columns in it. One column was –it was various terms of the agreement, and then each of the other two columns were what we had offered and what Live Nation had offered.
Q. So there was a column for Live Nation on this document you saw?
A On the document I saw, yes.
In the book by Sullivan Tohme Tohme indeed said that it was him who had a meeting with Live Nation, they left him unimpressed as he didn’t like those guys:
“Lopez first set up a meeting with Live Nation that left Tohme unimpressed. “I don’t like those guys,” he recalled telling Lopez, who then suggested AEG. Tohme claimed to be unaware of Michael’s previous meeting with Randy Phillips, who had never entirely given up on signing Michael to an AEG Live contract.”
Ms. Stebbins Bina showed Shawn Trell a copy of the AEG agreement with Michael Jackson and Trell said that he saw Michael Jackson signing it:
Q. And is this a Tour agreement ultimately entered between AEG Live and Mr. Jackson?
A Yes, it is.
Q. What were you checking for there?
A The signatures.
Q. Make sure it was the final agreement?
Q. And did Mr. Jackson sign this agreement?
A Yes, he did.
Q. Were you present when Mr. Jackson signed it?
A Yes, I was.
Q. Can you tell me about that?
A About — the signing itself?
A Yes. I went to the home on Carolwood, I walked in –security lets you behind the –the big gates, and then they let you in the front door. I walked in the front door, and I guess I had an experience I’ll probably never forget –I’ll certainly never forget. I mean, Michael Jackson doesn’t know me from a hole in the wall, doesn’t know my name, but got up from where he was seated, walked over, and said, “Hi, welcome. I’m Michael,” which I thought was pretty funny, because he’s a very distinctive-looking guy, obviously.
And we shook hands; and he had a good, firm handshake; and his voice was not like most people, I think, associate his voice. Those are the things I remember from first walking in. We were in the room immediately to the left as you walked in, and seated there was Michael at the head of a long coffee table. Next to him was Paul Gongaware –to his left, Paul Gongaware, Randy Phillips, myself; and then to his right was Dr. Tohme, Dennis Hawk, and Peter Lopez.
Q. And Peter Lopez was another of Mr. Jackson’s attorneys, to your knowledge?
A To –that’s my understanding, yes.
Q. But you –if I understood you correctly a minute ago, you hadn’t interacted with him during the negotiation of the deal?
A No, I had not.
Q. What was your impression –had you met Mr. Jackson before this meeting?
A No. This was the only time that I ever met him.
Q. Had you ever been to his house before?
Q. What was your impression of Mr. Jackson?
A Well, like I said, I mean, he popped up, came over, introduced himself, was very cordial. There was a real –a real positive energy and vibe in the room. He seemed genuinely enthused, and we sat there for some time and he had the -the contract out in front of him, he said he had read every page, he was flipping through it, he was -again, it just felt –he just seemed so enthused by the whole thing. We went through the process of signing it, and then we stayed for some period thereafter.
And, again, you know, his excitement was showing through, he was talking about the various production elements and things that he wanted in the -in the show. I specifically remember –he was really keen on the 3d stuff, and there was going to be this really huge L.E.D. screen that was going to be the backdrop of the stage, and he was talking about the different 3d things that he was hoping to be able to produce, these vignettes and other things that you’ve probably heard referred to.
He was already well down the road in his mind with what that was going to look like. Those are my recollections from –from being there. I was probably there for something close to an hour.
Q. That’s about –that’s what I was going to ask, was how long did this last?
A Ok. Yeah, I would say it was just a little less than an hour, probably, and –and then I left, and that was it. That was the only time I ever met him.
MICHAEL’S CONTRACT REVISITED
Initially I thought that Ms. Stebbins and Shawn Trell were talking of the version of the contract different from ours but when she asked Shawn Trell why it started with “Dear Dr. Tohme” it was a huge relief to realize that we are looking into one and the same strange paper:
Q. Let’s look at the first paragraph. Explain to me why it starts off “dear Dr. Tohme.”
A. Well, he was handling the negotiations, principally, as Michael’s manager on behalf of the Michael Jackson company; and this document, this -this particular tour agreement was in the form of a letter agreement.
No, I will not go into the specifics of that letter agreement as almost everything said about that “contract” before fully applies to it now. The only thing I will do now is make a short comment on the advances and production costs and render a little help to Shawn Trell in recalling how they were to divide profit between Michael Jackson and AEG. At some point this top AEG lawyer got so confused when explaining things to Ms. Stebbins that will really need our help.
But the beginning of his explanations is rather clear – even initially the deal with Michael Jackson was bettter for AEG than similar deals with other superstars:
Q. Under this agreement, how was Mr. Jackson to be compensated?
A. Under this agreement, this –the transaction was –I’ll refer to it as a 90/10 split.
Q. And what does that mean?
A That means that the artist receives 90 percent of what’s defined as contingent compensation, and the promoter would receive 10 percent of what’s defined as contingent compensation.
I said that the terms with MJ were better for AEG than usual because Randy Phillips himself admitted that their usual split with superstars is 95/5 while with Michael Jackson it was 90/10. I wish he could explain why for Michael Jackson they set the terms worse than for other stars though in his particular case the promotion efforts for which they charged 10% were practically non-existent – the tickets were selling themselves:
Phillips declines to release terms of the deal with Jackson, but he says it was better for AEG than the 95%-5% split most superstars receive.
Ms. Stebbins continues:
Q. And looking at this paragraph 4.1, it talks about the contingent compensation. Let me try to find what I’m looking for so I can have pam highlight it. Here we go. Pam, in the middle of that paragraph, “within five business days.” what’s it mean, “subject to promoter’s right to recoup advances”?
A That means that the promoter recoups any artist advances that are –that were previously made prior to the calculation of the 90/10 split.
Q. And in this document, this tour agreement, I see things referred to as artist advances and things referred to as production advances. Can you tell me what the difference in between those?
A Right. Well, the artist advances were the specific –specifically delineated advances that we made. You’ve heard about the –the rent for the Carolwood house, there was another $5 million advance. There was the need to pay off a Settlement agreement that Mr. Jackson had with some sheik or something over in a London court. There was a piece of litigation they had - they had entered into, a settlement agreement, and the reason that was necessary to be paid off is because the underlying dispute there covered Mr. Jackson’s live performance rights, so the sheik or whoever that party was there –it’s called “Two Sea’s records.” They had rights to Mr. Jackson’s live performances. So they had whatever dispute they had, they entered into whatever settlement agreement they entered into, and there was a $3 million payment contemplated there that needed to be made. So that was part of the advances. Those rights needed to be freed up. Mr. Jackson represents in this agreement that he’s has the authority and the power to enter into this; so having those rights freed was, you know, part and parcel of that.
Q. So artist advances were advances that didn’t necessarily relate to the tour, but you were giving to Mr. Jackson?
A Right And then the production costs are those costs associated with mounting the tour, as I described.
Q. And are both artist advances and production advances –are they both loans to Mr. Jackson?
Note: The advances paid to Michael Jackson were not just another $5 million. This was the only advance paid, out of which $3mln went into settling the claim by the “Two Seas records” and the remaining two million went to the account of the Michael Jackson Company to which Tohme had full access via his power of attorney. The $1,2mln for the Carolwood house was not cash money – it was frozen in the bank and was to be paid to the owner of the house directly. Michael had no access to that money.
And “advances” and “production advances” are not the same things, but are absolutely different. The repayment of the $5mln advance was thoroughly secured by a special Promissory note requiring all Michael’s assets in case he didn’t repay the money, and each new advance requested by MJ was to have a similar separate promissory note. Michael’s accountant Kane asked for only $1 mln to be added to the initial $5mln, but Randy Phillips refused him claiming that Michael was in breach of the contract “due to non-attendance of rehearsals”, and over here all their talk about more advances to Michael ended.
As for production expenses AEG spent them freely and did not have a single document from Michael proving that it was his obligation to cover them and he agreed to repay those sums. This is actually what the whole dispute is all about and the reason why AEG is trying so hard to mix real advances and “production advances” together and present them as one, so that nobody is able to see the huge difference between them:
Q. And under this agreement, does Mr. Jackson have to pay back both artist advances and production advances?
A Yes, he does.
Q. Now –it may be a question better asked for someone in the finance department, but Ms. Hollander testified I think on Friday, or it might have been on Monday –yesterday about if the show was not going forward, Mr. Jackson would owe back100 percent of the production advances; and if it did go forward, he would owe back 95 percent of the production advances. Can you explain what that means?
A Well, she’s –what she’s referring to there is the –the 5 percent producer fee at the point In time in which that producer fee is calculated.
Q. Can you explain that a little bit?
A Well, the artist advance –the contingent compensation, you have all the revenues associated with the tour, and all of the expenses associated with the tour, you have –you get a –a Net –a Net number there. Right? From that net number, all the artist advances are recouped, and you get down to another number; and from that number, the production costs are –from that number, the production costs are -are then recouped and –wait a Minute. I got to do the tree.
Artist advances are recouped, there’s then the 90/10 split, we then recoup the production advances. And I’m sorry. Now I’ve lost track of what the question was.
Note: Trell hopelessly mixed everything up so let me explain. 90/10 split means that as soon as all the money was collected AEG was to deduct 10% from the gross sum. This is the fee they got as the promoters. The biggest obligation of the promoters was to sell tickets which, as you remember was done within minutes. When the ticket selling was over AEG was to get its hard-earned 10%.
This left Michael with the remaining gross 90%, but not quite. Out of that sum AEG wanted to recoup its $34 million spent on production and all advances they gave to the artist. A certain sum would be left after that. Out of that net sum AEG was to get another 5% as a producer’s fee, the Artist was to receive only 90% again (if there is anything left there of course) and the remaining 5% was unaccounted for.
Now Shawn Trell says that this 5% is what would have been the cost of production to be covered by AEG. It sounds like a big and generous present they were making to Michael Jackson:
Q. I think maybe this is a better question to ask of one of the financial folks; but I guess the idea is if the tour is a success, and you take the producer fee as well as the promoter fee, is the –that 5 percent of production costs accounted for in some way in terms of how AEG. Live collects its producer fee?
A Right. Effectively we end up paying 5 percent of the –of those costs if the tour is a success.
Q. So as part of the producer fee, you basically give a discount on production costs –on the production advances payback rate?
A Right. That’s right.
Q. I’m probably over simplifying, I’m just trying to make it make sense.
Q. But either way, production costs – production advances and artist advances are both advances?
Q. And they’re both things that Mr. Jackson is borrowing from AEG. Live and has to pay back?
A That’s correct.
Note: I wish they could show us a point in the contract which says an outrageous thing like that. The $5mln advance – YES, the production advances up to $7,5 mln – YES (these were to be paid back) but as to the rest of the expenses – NO.
First of all, these were to be requested by the Artist’s company and second, all those excess expenses were to be agreed upon in writing. Otherwise AEG could spend, spend and spend, and Michael would have to pay, pay and pay.
So the answer is NO – first he was to agree to cover them and only then he was obliged to pay. However the big problem for AEG is that these written approvals from Michael to cover the sums exceeding the initial $7,5mln. were missing.
Q. I’d like to turn to paragraph 8.2, which is on page dash 157.
Q. Yes, 8.2. This is a Provision you were asked about yesterday about this $7.5 million cap. And I think, if I recall correctly, you testified yesterday that when this agreement was drafted, it contemplated that production costs would only go up to 7.5 million –or production advances would only go up to 7.5 million; is that right?
Q. And then can you go down to the — sentence about two-thirds of the way down on the right-hand side, starts “artistco’s shall be responsible.” yes, that one, pam. She’s highlighted the full sentence. Mr. Trell, what’s this sentence about?
A This means that anything that may be over and above that 7 and a half million, Artistco is obligated to reimburse us for that. They’re defined as excess production costs.
Q. And these are the production costs that Mr. Jackson requested be added on top of the 8.5 million –7.5 million?
A Well, the entire –again, what you see on the stage if you’re there at the concert, it’s the artist’s show. So, you know, the production elements and what you see is all something the artist either, you know, has wanted to see come to fruition, you know, or that they’ve developed, and there’s costs associated with that. This particular project, you know, was very fluid. Michael Jackson was known to have very elaborate productions –production –what’s called production values. There was a lot on the stage. ..
Q. Now, you testified yesterday, if I recall correctly, that the production costs for the “This Is It” tour –the production advances, I should say, exceeded 7.5 million ultimately?
Q. And I believe you also testified that you weren’t really familiar with the process by how Mr. Jackson was kept in the loop and how he approved these additional expenses; is that right?
A I’m not, no.
Q. But do you have any reason to believe that Mr. Jackson did not approve the additional advances?
Mr. Panish: there’s no foundation.
A. No, I have no –I have no reason, you know, to believe that. It’s my understanding he was –I’m not even going to use the word “very,” I’m going to use the word “intimately” involved in the production process.
Q. in your experience, when AEG. Live is producing a Tour or concert tour or something along those lines, does AEG. Live normally just advance money without the artist requesting it?
Q. Would that be uncommon, in your experience?
Q. So would it be your assumption, at least, that if additional funds are advanced for the production of the tour, it’s usually because someone in the artist’s camp or the artist himself has requested that?
Mr. Panish: objection; leading and suggestive of the answer.
Q. Yes, absolutely.
Dear reader, now that you know that those excess production costs were to be paid only in case Michael requsted them and requested them in writing, will you ever believe that AEG naively paid all that money just because Michael nodded his head and gave his verbal approval to it?
Does AEG produce on you the impression of people who will rush to fulfil every Michael’s whim just as soon as he expressed it? No, they don’t? Then what are we talking about here? Of course they did not spend a single stingy dollar without having some sort of a guarantee that their spending would be fully recovered – in this or that way.
One of those ways could be getting Michael’s assets and in this case the more they spent the better it was, because the more difficult it would be for Michael to repay the costs. If he could not pay in money he would have to pay in assets.
Another way could actually have the same goal but only be done in a different manner – those written approvals could be made by someone in Michael’s “camp” in order to deepen Michael Jackson’s financial troubles and take advantage of them for their own needs.
Why have all of us turned our heads towards Dr. Tohme at this point? Is it because he is just the right kind of person for it and was holding two general powers of attorney from Michael? Yes, he was quite capable of a covert operation like that, however let us remember that by the time his powers of attorney were annulled (some time in April), AEG could not have spent all those $34 mln yet. They had hardly started production by that moment, and this is probably why Michael was in a hurry to terminate Tohme – he knew Tohme’s fraudulent ways and was trying to safeguard himself against this person.
However even after Tohme’s dismissal the formal absence of the necessary credentials and lack of a legal basis for his activities did not stop AEG or Tohme from making the respective papers which shifted all that excess production cost onto Michael (after his death) and this is how the Estate ended up paying those sums.
TOHME NOT THE REAL McCoy
When signing an agreement with Michael Jackson and a separate agreement with Tohme (which said that he was rendering services to the promoter, i.e. AEG) Shawn Trell as the top lawyer of AEG Live knew perfectly well what kind of a guy they were entering into an agreement with.
An independent lawyer whom they hired for drafting all those agreements, Kathy Jorrie was warning them that Tohme was most probably not the real McCoy.
She sent an email dated January 22, 2009 or approximately a week before signing a contract with Michael Jackson saying she understood that AEG had checked Tohme out (!) but she still had reservations about this person and suggested hiring a private investigator to check up on him:
Q. And Ms. Jorrie is saying to you: while I understand you have checked up on the credentials and authenticity of Dr. Tohme through personal sources … Did I read that right, Sir?
A. You read that correctly, yes.
Q. So Mr. Phillips went out and checked … Or you. Was it you or Mr. Phillips that checked out Dr. Tohme through personal sources, credentials and authenticity? Was that you or Mr. Phillips that did that, Sir?
A. It was not me. I don’t know to whom she’s referring.
…Q. Ok, so let’s see what she told you about this Mr. … Dr. Tohme. Let’s look at the next sentence. I nonetheless have reservations about whether or not he is the real mccoy. Have you ever heard that, the real mccoy? You ever heard of that saying?
A. I’ve heard it, yes.
Q. That means whether someone is legit, not a fraud or a fake; right?
A. Right. The real thing.
Q. …Let’s look at the next sentence: when I checked a couple online search engines for Dr. Tohme to see if I could find references to him, the only thing I found were recent quotes from Dr. Tohme of Michael Jackson’s, quote, unquote, publicist, and some reference to him in various blogs by people who referred to him as a mystery man who claims to represent Michael Jackson. Did I read that right, Sir?
Q. And then it says: I found nothing else on him, almost like he never existed until he met Michael Jackson. It’s possible there are references to him on the internet in Arabic rather than English, which I didn’t check because I don’t read Arabic
Q. Did I read that right? Correct. Nonetheless, I recommend that a background check be performed through a private investigator or, at a minimum, that someone at AEG Live meet with Michael Jackson to make sure he understands that we are entering into a tour agreement with him that will require him to perform a worldwide tour. Did I read that right, Sir? That’s what it says. So she was telling you one thing to do is get a private investigator; right?
A. She says that, yes.
Q. You didn’t do that, did you?
The above message from Kathy Jorrie is also remarkable by her saying that 6 days before signing the contract with Michael Jackson she wants to make sure that he understands that they “are entering into a tour agreement with him that will require him to perform a worldwide tour.” This strange reminder makes me think that AEG was doing business mostly with Tohme, and therefore Kathy Jorrie is not sure that Michael Jackson knows of the scope of his responsibilities under the documents they are making for him.
In fact Shawn Trell did earlier testify that all business was discussed solely between Randy Phillips and Tohme, and Tohme also confirmed it in his numerous media interviews – he was not interfering with what Michael was doing and Michael was not supposed to interfere withwhat Tohme was doing.
Trell says they never checked on Tohme, and the fact that Michael could not be aware of the full terms of their agreement was probably even for the better. AEG liked Tohme so much that they signed with him a production management agreement. In what capacity Tohme was acting Shawn Trell cannot explain now – what he knows is that Tohme was neither an interdependent contractor, nor an employee.
According to that contract Tohme was to receive $100,000 for the services asked of him by the producer, however it did not prevent AEG from making Michael responsible for Tohme’s salary.
Trell says that Michael approved all that as their agreement with Tohme was signed on the same day as the contract with Michael Jackson and he saw Michael putting his signature under Tohme’s contract.
However all is not as clear on this horizon as it seems at first sight. The dates of signing those contracts are shrouded in a big mystery and from Mr. Panish’s questions it seems that he knows more than he is saying. The dates are indeed slippery and elusive as everything else in this strange business.
THE MYSTERY OF TWO DATES FOR ONE CONTRACT
First Shawn Trell says that Michael Jackson’s contract was signed on January 26th:
Q No. Well, are you sure about that? Because you testified about it 11 times so far. Were you just estimating that, or did you say — and counsel asked you in the questions, “and it was January 26th when you signed, and it was January 26th –” you’re absolutely sure about that, aren’t you, sir?
A that’s my understanding
Trell says that Tohme’s contract was signed on the same day and he actually saw Michael signing it. The other two signatures were those of Tohme and Randy Phillips:
Q. …I want to ask about another agreement that was entered at the same time as the tour agreement on January 26th, 2009.
Q. And that’s an agreement involving Dr. Tohme Tohme.
A Ok. …This agreement was entered into on, you know, the date of the –well, it was actually signed on the 26th. It’s dated January 24th.
Q. Could we turn to the second page or the third page of this agreement? And there are three signatures here, Mr. Trell?
Q. Whose signatures are they?
A It’s Randy Phillips on behalf of AEG. Live, it’s Dr. Tohme Tohme on behalf of T.T. International, and it’s Michael Jackson on behalf of Michael Jackson.
Q. And did you see Mr. Jackson sign this document?
A It was signed on the date that I described earlier when the tour agreement was signed.
Q. So is that “yes”?
A “Yes.” I’m sorry. “yes.”
Q. No worries. So Mr. Jackson signed this agreement?
A Yes, he did.
But then we recall the email where Shawn Trell called Michael a “freak”. It was dated January 28 and said that Trell was going to the signing procedure on January 28th, 2009:
A Okay it was on the 28th
Q So as sure as you were, just like all your other testimony you were wrong about that weren’t you sir?
A I was wrong about the signing date yes
Q But you told us that 12 times under oath, didn’t you, sir?
A I don’t recall how many times I referenced the 26th, but I referenced the date we signed the contract.
Q ok and then it said… Well, you referenced it quite a bit today sir… And you just did when I questioned you. So let’s talk about that January 28th, not the 26th right?
Q do you want to change your testimony under oath now about that, sir?
A I didn’t have the date, necessarily, in my calendar. It appears from the e-mails it was the 28th.[…] There was a document signing at the home. It was on Wednesday the 28th, not Monday the 26th.
But on still another occasion when Trell speaks of Tohme’s agreement he says it was signed on January 26 adding it was the same day as the agreement with Michael Jackson, so the agreement with Michael again seems to be on January 26th.
The judge asks him about Tohme’s agreement:
Judge: remind me when it was signed?
Trell: It’s dated the 24th. It was signed on the 26th of January.
Judge: okay. I guess what I’m asking is, once they — assuming they got the insurance, would Tohme’s payment, assuming you would get paid, be all the way back to January 26th?
Trell: Right. I understand the question.
Judge: all right.
Trell: (reading docs)
Mr. Panish: What date — I’m sorry? it was signed? on 26th?
Trell: The date when the tour agreement was signed, the 26th.
Mr. Panish: 26th. Okay. Thank you.
Even from how long they are discussing it we understand that the point is of utmost importance:
Q And you told us all about your meeting with Michael Jackson yesterday didn’t you, sir?
A My meeting at the house when we signed the contract is the only time that I met him, yes
Q Ok so you only met Michael Jackson one time in your whole life right?
A That’s right
Q And the one time that you met Michael Jackson, I’ve heard it today at least ten times, was on January 26th, 2009, when the contract was signed… Isn’t that true sir?
Q And you’re as sure about that as all the testimony we heard for the last six hours from you, right?
A I’m sure the contract signing is the only time I met Michael Jackson
Q No sir, you told us ten times, and counsel had it in her questions, that on January 26th, 2009, you met Michael Jackson, and he signed all of those agreements. You told us all about that, didn’t you, sir?
A That’s my recollection yes
Q And you told us you’re sure because you’ll never forget that moment right?
A I won’t forget meeting Michael Jackson
Q No. On January 26th, 2009, at the 100 Carolwood address in Beverly hills, California, correct?
A That’s where the meeting took place, yes
Q And you’re as sure about that, it occurred on January 26th, the day the contract was signed, as all the testimony you’ve given under oath in this court, isn’t that true sir?
A That’s the date I believe we signed the contract
Q No. Well, are you sure about that? Because you testified about it 11 times so far. Were you just estimating that, or did you say — and counsel asked you in the questions, “and it was January 26th when you signed, and it was January 26th –” you’re absolutely sure about that, aren’t you, sir?
A That’s my understanding
Q Okay. Just as you are about everything else you’ve said in this case, right?
I don’t want to steal the big surprise Brian Panish is preparing for the jury but will still say it as this is what I was actually suspecting for several years by now. It seems that not only Tohme wasn’t the real McCoy, but all the papers AEG had with Tohme and Michael Jackson in the first place are not the real McCoy either.
Let us put two and two together. Only recently Shawn Trell told us in that freakish email dated January 28th that he was on his way to meet Michael Jackson for signing the contract, so this makes the date of signing it January 28. This is when he saw Michael the first and the last time.
On the other hand the agreement with Tohme was signed on January 26th and he saw Michael signing it too. And this is again the first and the last time he saw Michael Jackson.
So Shawn Trell saw Michael only once but on two different occasions and each time signing important documents – on January 26 he saw him signing Tohme’s contract and on January 28 he saw him signing his own contract. And both of them were supposedly on one day as he met Michael Jackson only once. And he is absolutely sure of it.
Who is the freak here I wonder? All right, let us reserve the ridicule for some other time and try to explain what it means instead. Indeed, how all this can be explained?
Easily. Trell is simply lying. But what is he trying to cover up?
What most probably happened is that Michael did not sign the papers on January 28 and that his meeting with the AEG bosses ended in an overall talk and a decision to sign the contract later when everything was settled and agreed upon. This never happened for some reason and in order to have at least something AEG used the two Michael’s signatures obtained from Michael on January 26th.
In which way were they obtained? Well, Tohme could easily ask Michael to sign a preliminary letter of intent sent to him (Tohme) which Michael and the AEG bosses was most probably to discuss on January 28. It was absolutely not definitive but they wanted to fix at least some of their preliminary agreements reached by that time.
Do you remember the phrase with which that letter of January 26th was closing? It said:
· “By signing below each party acknowledges its agreement be foregoing and agrees to negotiate the definitive agreement expeditiously and in good faith”.
Now this page is what the so-called final agreement with Michael Jackson is closing with.
Will you be interested to hear how the top lawyer of AEG is explaining why their final agreement is closing with this strange phrase? Here it is – Ms. Stebbins Bina is asking Trell about this discrepancy and this is the incredible answer he gives:
Q. why don’t you read it.
A ok ….By signing below, each party acknowledges its agreement to the foregoing and agrees to negotiate the definitive agreement expeditiously and in good faith.
Q was there another agreement that was going to be negotiated after this agreement between AEG live and Mr. Jackson?
A No this is another example of a holdover from a form, the last portion of that referencing a definitive agreement
Panish I’m going to again object and move to strike as nonresponsive to this question, which was is this a definitive agreement, not what he said
Bina Your honor, I think the question was there an intention to do another agreement.
Panish That wasn’t the question
Court Let’s strike the answer, go back and ask your question
Q Mr. Trell was there going to be another agreement? A definitive agreement after this one?
A No this agreement was the definitive agreement between the parties
Q Do you have an explanation for why this language would be here?
A Yes this started out as a smaller form summarizing terms and conditions this last language is in that form where a separate, separately negotiated document is contemplated the original form just got expanded upon into the letter agreement format that this tour agreement ended up being in. And Kathy and myself, umm you know, didn’t catch that holdover language
Q You said holdover language?
A Yes, holdover language from the form from which the agreement started
Q Is this language supposed to be here?
Panish objection leading suggestive
A The sentence at top should just end after the word foregoing
Q So the rest of it?
A The balance of it is the holdover language that I would refer to.
So now the top AEG Live lawyer is telling us that the sentence was to be finished at the word “foregoing” and the rest was to be crossed out, but it was not done because he and Kathy “did not catch it”? Two top lawyers were reviewing the main document laying the basis for their cooperation with Michael Jackson and did not notice the crucial fact that it was not final? And they hope that we will believe this ridiculous explanation?
What is actually standing behind all this nonsense is that due to lack of the final contract with Michael Jackson AEG decided to meddle with the papers.
In fact Shawn Trell is describing the method himself – they started with a smaller letter form summarizing the terms and conditions, then a separate document was ‘contemplated’, then they added this separate document to the original small summary keeping the “letter agreement format” and then they forgot to strike out the final sentence about the agreement being indefinite because ‘he and Kathy did not catch it’.
All of it is exactly what we expected it to be – it was a cut-and-paste job where they took the first and last pages of a letter of intent addressed to Dear Dr. Tohme which were absolutely priceless to them as they carried the date (January 26th) and signatures of Michael Jackson.
Then they took away the inside pages and inserted instead a separate document which they ‘contemplated’ later and this combination of papers was passed by them for the final contract with Michael Jackson.
When that separate document was added only God knows – it could be two days later when Trell went to Michael’s home or most probably many months later, when Michael died and they made this cut and paste job before submitting it to the Estate for their scrutiny.
Why the Estate did not notice it or chose not to notice it is another matter which will surely be clarified during this trial. It would be indeed be interesting to know why.
WHO WAS TO PAY TOHME?
Under the agreement with Tohme he was to be paid $100,000 a month. Who was to pay is unclear as Michael’s contract said that Michael was not responsible for Tohme’s salary and the expenses on Tohme were to be included in production costs. This in its turn made us (and Michael) think that production costs were not his responsibility.
Clause 6.8 of Michael Jackson’s contract says that Michael is to pay fees to his own management with the exception of Tohme’s salary as it will be part of production costs:
With the exception of the monthly fee owing under the terms of a separate agreement with TT International, LLC for the services of Dr. Tohme Tohme (not to exceed $100,000 per month), which shall be included in Production Costs, Artistco shall be solely responsible for and shall pay all costs associated with management and agency commissions of fees and legal fees of Artist and/or Artistco, if any;
As you know now AEG considers all production costs Michael’s responsibility and this makes Michael responsible for payment to Tohme too. Trell explains the mess with who was to pay whom in Tohme’s case by another of their mistakes. He and Kathy evidently “did not catch it” again.
Well, whatever it was Tohme was not paid. There was a certain condition for payment to Tohme (he was to earn his money to get it from AEG, you know),and the condition was that AEG would pay to Tohme only after he obtained a non-appearance insurance for them.
And it so happened that Michael Jackson submitted to the medical test, and passed it with flying colors as they say, but the problems with the records for 5 years was still unresolved and then they increased the number from 10 to 50 shows and this demanded doubling the sum of the insurance and the insurers suddenly asked for the second, very thorough medical examination in London – in short a partial and unfinished non-appearance insurance policy was more or less ready by the end of April only with the rest of it to be finalized in London, but by end of April Tohme had already been fired by Michael and this left our poor old Tohme unpaid. Serves his right by the way – he shouldn’t have increased the number of shows to 50, this only delayed the receipt of the insurance policy.
One of the many conclusions we can derive from the above is that Tohme was interested in presenting Michael as a very healthy man – obtaining the insurance was directly connected with the public statements he was making to the press and this is what the insurers were very much listening to.
Another conclusion is that all this time AEG most probably kept Tohme as a bulldog beside Michael to look at “what he was doing”. They suspected him of abusing substances and were most probably thinking of Demerol or other narcotics (which were absolutely not found in MJ’s system). It remains to be seen whether they knew of propofol but as regards narcotics they were surely on the minds of the AEG people.
INTERVENTION & REHEARSALS
The example of what was on Randy Phillips’s mind is his reaction to the email sent by Kenny Ortega on June 14th.
Ortega asked Randy Phillips if he was “aware that MJ’s doctor didn’t permit him to attend rehearsals yesterday?” And you know what Randy Phillips did in reply to that? You will never believe it – he wrote to the already fired Tohme an email about an “intervention”.
This intervention indeed took place on June 16th. Now Phillips calls it a simple meeting about some “protein shakes” and similar innocent things.
Brian Panish produced the respective email for Phillips approaching Tohme:
Q. Well, sir, there was an intervention with Michael Jackson in June of 2009, wasn’t there, sir?
A. An intervention? There was a meeting that I called an intervention, yes
Q. Sir, was there an intervention with Michael Jackson in June of 2009?
A. Yes; and it wasn’t drug related.
Q. Is that a “yes,” sir?
A. That’s a “yes,” sir.
Q. OK. Now, sir, let me show you exhibit 274. Did you write that e-mail, sir?
A. Yes.Q. Do you remember writing it, sir?
A. Somewhat, yes.
Q. So let’s put it up. And who are you writing this e-mail to?
A. This is to Dr. Tohme.
Q. OK. Was Dr. Tohme at the intervention?
A. At the meeting, no.
Q. OK. Well, did you call this a meeting or an intervention?
A. Well, I called it I mean, I, obviously, misspelled it; but I called it an intervention.
You might have already guessed that the reason why Randy Phillips was summoning (?) Tohme was not his worries about Michael’s health – all he wanted of Tohme was to force Michael to attend the rehearsals and make him “more focused” on them.
By the way if you still have any questions as to whether AEG had any right to force Michael into rehearsals here is Shawn Trell’s clear answer to it – NO, THEY DID NOT.
This was extensively discussed by Shawn Trell with Mr. Panish and Ms. Stebbins and over here the General Counsel of AEG surprised us by giving a clear and definitive reply. He said that how the artist is to prepare and whether he is to prepare at all is only the artist’s business and an artist rehearses only when an artist desires to rehearse:
Ms. Stebbins: Does this agreement anywhere obligate Mr. Jackson to attend rehearsals to prepare for the show?
A No, no, no. There’s no reference to rehearsals in a -in a Tour agreement. I mean, the –even the notion -the notion of something like that would be offensive to an artist. I mean, it’s their craft, it’s what they do. They’re the artist, it’s their show, it’s their talent. No tour promoter or tour producer is dictating when somebody shows up. Of course, people associated with the show want to make sure it’s, you know, ready, and all of that; but there’s never a Provision in a Tour agreement dealing with rehearsal attendance.
Q. So an artist would be foolish not to rehearse, but they’re not contractually obligated to rehearse? Is that what you’re saying?
A Well, I mean, the artist’s reputation is at issue with its performance. You know, whether it’s an individual or a Group, it’s always their name and reputation at issue; so they always, you know, want to put on a First-class performance. How they prepare and whether they prepare, you know, that’s –that’s up to them.
Panish: Now, I want to now ask you about the rehearsals you can take that down that you talked about yesterday. You said that AEG Live could not make Michael Jackson go to rehearsals; right?
A. Yeah. I said that generally with respect to any artist; that an artist rehearses when an artist desires to rehearse.
Q. Is that a Yes, Sir?
All this is very nice only the top lawyer of AEG Live totally overlooked that the CEO of the company was violating this beautiful principle right under his nose. Randy Phillips went as far as nominate himself and Dr.Murray responsible for Michael’s rehearsals and keeping to the Attendance Schedule, and Trell did not know a thing about it:
Q. Do you know whether Randy Phillips ever demanded that Dr. Murray be present at certain rehearsals?
A I don’t recall if I’m aware of that.
Q. Do you know whether Randy Phillips ever demanded that Dr. Murray be in charge of getting Michael Jackson to rehearsal?
A I don’t recall.
Q. Let’s put that up, Sir. Now, we just talked about rehearsals, and let’s see what Mr. Woolley, your authorized representative, was telling to the person trying to secure the insurance from Lloyds of London. And could you read for us, Sir… [..]
A. Changes are structural only. Kenny Ortega has responsibility only for the show content and structure, in consultation with MJ. Randy Phillips and Dr. Murray are responsible for MJ rehearsal and Attendance schedule.
Q. So Mr. Woolley is telling the insurance man that it’s Mr. Phillips and Dr. Murray that are going to be responsible for making sure MJ is at rehearsal and his attendance schedule; correct?
AEG Objection:. Misstates the document.
The Judge: overruled.
A. Can I have the question again,
Q. Let me … I’ll ask it again. Mr. Woolley, who is your authorized representative, formerly the C.F.O. of your company; right?
Q.Telling the insurance man, who is a long-time friend of his; right?
Q.That Mr. Ortega has responsibility for the show only; right?
Q.And that Randy Phillips and Dr. Murray are responsible for rehearsal and attendance schedule for Michael Jackson; correct?
A. That’s what Timm Woolley says, yes.
Q.Ok, and did Mr. Woolley ever tell you that,
Q.When you were investigating the relationship between Dr. Murray and AEG Live, did you ask Mr. Murray about Mr. Phillips or Dr. Murray being responsible to get MJ to rehearsal?
A. There was no need to. Mr. Woolley’s statement is inaccurate.
Q.Sir… The question is simple. Did you ever ask Mr. Woolley about that statement? Yes or no?
Q.That would be another mistake by AEG; right?
A. Timm Woolley’s statement, in my opinion, is not accurate, Sir.
Q.But you never talked to him about it; right?
This is exactly what’s so bad about it – the top AEG Live lawyer never talked to any of them though he should have. Talking about it now is useless – it was then, when they were exploiting Michael and pushing him about that all these clear-cut statements were needed.
Q.Let’s go to the next sentence. Let me read that for you, Sir: looks like there might have been issue of KO. That’s Kenny Ortega; right?
A. That’s Kenny Ortega, yes.
Q.Not being demanding enough of MJ’s attendance or causing concern with the schedule he was imposing. Did I read it right; Sir?
A. Right. He being Kenny Ortega was imposing.
Q. Right. And he wasn’t being demanding enough on MJ; right?
A. Meaning MJ showed up whenever MJ wanted to show up.
Q.Sir. You’ve never seen this before, have you, Sir?
A. This email?
A. No. I just testified that I had never seen it before.
Q.Right. And you never talked to Mr. Woolley or Mr. Taylor about what they were talking about; right?
Q.And then it says: either way, there are others designated to ensure MJ is front and center for rehearsal. And those others, according to Mr. Woolley, were Randy Phillips, the C.E.O, and Dr. Conrad Murray; correct?
A. I don’t know who he’s referring to by the use of the word others. It would seem odd to be using it there, when the people are referenced in that incorrect statement in the preceding sentence, so …
Q.Well, Sir… He refers to Kenny Ortega being limited, because he’s not doing enough demanding; right? And either way, others … And the only others mentioned in that email are Phillips and Murray; right?
A. You’re asking me what I think he means by that. It would read awkwardly that he would be referring to the same people he’s referring to in the preceding sentence, so I don’t think that’s who he is referring to by that reference.
All this evasive talk means only one thing – they were already playing tough love on Jackson by demanding that he should attend every rehearsal and not just sit there but perform, dance and sing and preferably going full out on his sing and dance routines.
Now Randy Phillips explains that this was needed for production and says he was so insistent due to Ortega’s complaints, but the above e-mail speak to the opposite – Ortega was not demanding enough by the AEG standards, they were dissatisfied with him and had a reserve variant – Randy Phillips and Conrad Murray, both of whom forced Michael to do what was not his obligation and only wasted his energy even before the show started.
Randy Phillips is an exceptionally hard-nosed, insolent and arrogant guy. Despite the overwhelming evidence about the opposite he still insists that Michael was obliged to rehearse. What’s interesting is that he says that he did not even read the contract and was familiar only with the summary of it. This I don’t believe for a second, but if it is true, it makes things only worse – he didn’t know what the contract was saying about MJ’s no need to rehearse, did not bother to look it up but he nevertheless demanded of Michael things he had no right to demand?
Now he is shifting most of the blame for all that insistence to Ortega. Panish is helping Randy Phillips to outline his official position on this point:
A. Towards the middle of June, yes.
Q. And Mr. Ortega’s main concern was that Michael Jackson was not showing up at rehearsals,correct?
A. That is correct.
Q. And that Michael Jackson was not focused in mid to late June on the rehearsals, correct?
A. Correct. Just to correct your previous thing, Michael Jackson was showing up to rehearsals, just not enough of them, in Kenny’s opinion.
Q. Was Kenny Ortega having concerns about Michael Jackson’s performance and him showing up to rehearsals, yes or no?
A. Yes, he was.
Let me interrupt here and remind everyone that according to Travis Payne’s testimony Michael Jackson missed 5 rehearsals at the most, so all that fuss over rehearsals was making a mountain out of a mole-hill.
Q. Now, sir, when Mr. Ortega brought this to your attention, you called Dr. Murray, didn’t you,sir?
A. Dr. I believe Dr. Murray called me, and I believe at the behest of Frank Dileo. I don’t – I don’t think I called him, he called me.
Q. OK. Well, let’s see what you testified to at the criminal trial, page 88 I’m sorry 8255, line26, to 8256, line 11. Did you tell the truth at the criminal trial, sir?
A. I always tell the truth.
Let me intervene again. This call was overlooked by us at Murray’s criminal trial, but now it seems that after Ortega’s email to Phillips on June 14th “Were you aware that MJ’s doctor didn’t permit him to attend rehearsals yesterday?” Phillips called Murray and spoke to him for about half an hour most probably explaining to him what he thought of Murray’s behavior.
This was when AEG began to exert pressure not only on Michael but on Murray too and this point is extremely important for understanding this terrible case. Up till June 14th Murray allowed himself frivolities like giving Michael a sick leave (just once) and allowing him not to rehearse (on June 13th), but after that it seems that he was wholly at AEG’s disposal.
From Panish’s questions we understand that after the news of Michael’s sick leave reached Phillips he called Murray not just once but several times. Now Phillips says that he does not remember the series of those calls and says he called Murray only on June 20th. Discussing it was quite a battle:
We don’t know how many times Phillips called Murray after that sick leave but we do know that all AEG forces were thrown into making Michael come to rehearsals irrespective of the state of his health. One of the main tools of pressurizing Michael was “bringing Murray into the fold”. How did they do it?
Well, look at the timeline.
THE TIMELINE OF REPRESSION
First Kenny Ortega sent an email to AEG “Were you aware that MJ’s doctor didn’t permit him to attend rehearsals yesterday?” ( June 14th) and the next email “He is not in great physical shape, I believe he is hurting, he has been slow at grabbing hold of the work,” (June 15th).
Randy Phillips’s reaction to them was a series of calls to Murray. We can only guess what he said to him over the phone.
Gongaware’s reaction was a message sent on June 14th saying that “he and Frank discussed it” (so Frank Dileo was in it too?) and they “wanted to remind Murray that it was AEG and not MJ who was paying his salary and wanted him to understand what was expected of him”.
Randy Phillips gave three different answers as to seeing this Gongaware’s email. First he said he didn’t receive it, then he didn’t remember it and then he said he got it. He also does not remember whether he took part in a meeting (intervention) arranged immediately after that – on June 16th.
Here is an excerpt from Phillips’ deposition:
…Q. Did you ever admonish or correct Mr. Gongaware to say that that’s not accurate?
A. No, because I don’t remember seeing it in the first place.
At this point Panish caught Phillips blatantly lying because Phillips could not overlook Gongaware’s message due to “focusing on Kenny’s emails” – the emails he is talking about were sent only 5 days later, in the early hours of June 20th. Why Phillips is trying to fool everyone is because he doesn’t want to admit that after that sick-leave message he involved himself in frantic activity which ended in an “intervention” (a meeting):
The information about that meeting was extracted from Phillips by Brian Panish in an exceptionally professional way. Confronted with Panish’s questions Phillips finally had to admit that there was a meeting in the middle of June (the “intervention” one) and he did participate in it. At this point we realize that there were actually three meetings arranged by them for pressurizing Michael.
The meeting on June 16th was the second one out of the three. As we know the person whom Phillips contacted before arranging it was no other but Tohme and this is evidently how and when Tohme reappeared on the scene again. He personally did not take part in the meeting but most probably consulted them on how to deal with Michael.
This meeting was probably the one where the tough love and now-or-never card were played. Murray was reprimanded for his earlier frivolity and was fully “brought into the fold” to ensure that Michael came to every rehearsal. From then on tough love was to be displayed – no more sick leaves and no more sympathy for Michael’s health problems were to be allowed.
In Randy Phillips’ opinion this system of repression against Michael Jackson worked – he said that after that Michael began attending rehearsals.
Indeed Michael came to the rehearsal on June 18th and Karen described Michael on that day as “stoic” (but frightened). On June 19th the situation turned catastrophic which is why Kenny Ortega sent Michael home and this was followed by a series of SOS emails from Bugzee and Kenny Ortega.
So the total number of meetings arranged for Michael by AEG in June 2009 was three and all three of them had a repressive tinge to them.
The first was around June 5th to reprimand him for not attending rehearsals on four days or so after they moved to Forum on June 1st (he had been making videos at the Culvar studios and this was not to AEG’s liking).
Michael came to a rehearsal on June 6th and attended each and every one of them until June 11th. By Friday 12th he was so fatigued that did not come (remember that he wasn’t obliged to waste his energy on rehearsals at all) and on Saturday June 13th Murray gave him a sick leave. The next day Sunday June 14th an uproar started – Phillips kept calling Murray and Gongaware reminded him who was paying his salary. Phillips approached Tohme. On June 15th Michael was at a rehearsal again.
The next meeting was on June 16th which was some kind of an “intervention” evidently meant to explain to Michael that only 20 days were left before the premiere and not a single complaint and missed rehearsal would be tolerated. Murray was turned into an overseer and everyone was told to play tough love and now-or-never card. Somewhere in between those statements the idea of pulling the plug was probably also mentioned.
On June 18th Michael was stoic but looked very frightened according to Karen Faye, and on June 19th he was so weak, cold and shaking that could not even eat.
And the final meeting was on June 20th where Murray famously declared to Ortega to leave Michael’s health to him and not to play amateur psychiatrist or physician there. He behaved in a manner which reminds us of Randy Phillips ways and this makes us think that it was him from whom Murray was drawing his inspiration. In fact Randy Phillips sent an email to Kenny Ortega with exactly the same words reminding him that it was critical not to become amateur doctors for MJ.
All these meetings were initiated by AEG and were pressurizing Michael into rehearsing , forcing him to do as he was told and making him follow the rules set for him by his masters, sorry, partners.
This is how the news about the second meeting was found out:
And this brings us back to Tohme again. For what reason they brought Tohme back into the fold we don’t know yet but the fact that they re-approached him at this stage looks somewhat disturbing. Did they want some special bulldog advice from Tohme on how to handle Michael Jackson? Or did they need him for some other purposes? This will be hopefully clarified later – at this stage we are only learning more and more details about Tohme’s role in the game all these people were playing against Michael Jackson.
TOHME FINAL SERVICES
First of all we find that when Randy Phillips met Tohme to negotiate their deal with Michael Jackson he knew that he was working as a consultant for Colony Capital.
So just as we expected Tohme did work for Colony Capital when he was supposed to work as Michael’s manager and look after his best interests. And he wanted a huge per cent from Michael just for doing the work for Tom Barrack who was paying him anyway?
No, all this is incredible stuff…
From Shawn Trell we also learn that after Michael’s death they had a special role for Tohme to play – he was to make a certain declaration (in addition to the one by Frank Dileo) that Michael agreed to pay all production costs which AEG estimated at $34 million – those with which this post started with.
Though knowing full well that Tohme was no Michael’s representative and could not sign any papers on behalf of the Michael Jackson Company, AEG nevertheless arranged a paper from Tohme which said that he had the right to make all those statements. Shawn Trell pretends that Tohme returned to work for Michael in some capacity:
Q your understanding, if I understood your testimony, was that Dr. Murray….Dr. Tohme had been terminated by Mr. Jackson at some point in early May 2009?
Q and did you ever have an understanding as to whether Mr. Jackson and Dr. Tohme’s relationship changed again?
A yes it was my understanding Dr. Tohme came back into representing him in some capacity.
As I understand it after Michael’s death Tohme presented them with some papers saying he was the officer of MJ company (which is impossible as the powers of attorney were revoked and Tohme had long been fired from all posts even if he had them before). These fictional papers were used by AEG to have a document from Tohme consenting on behalf of Michael Jackson company that it was Michael’s ardent desire to pay all those millions for producing the show and maintaining all its tour personnel.
Why wasn’t the resulting paper disputed by the Estate I do not know and think that its attorneys owe us some explanation about it. All that ‘acknowledgement of the expenses’ on the part of the Michael Jackson company from a man who was not its officer for a single day while Michael was alive and suddenly became one after he had died looks to me very strange indeed.
Even the judge said that all those statements from Tohme were only his belief:
Q. Right, just like you had Dr. Tohme sign off on behalf of Mr. Jackson, right?
Q. And Dr. Tohme approved the payment and submitted it to the estate, right?
…Q in this document, it says that Dr. Tohme Tohme is an officer of the Michael Jackson company?
Q did you believe that to be true at the time this document was entered into?
Q and as you sit here today, do you have any knowledge as to whether it was true or not true, other than what was in the document?
A no I have no knowledge of whether it was true or not true
Q and it says here in paragraph 3 the undersigned, Dr. Tohme Tohme, represents and warrants that he is an officer of artistco; is that right?
Q did Mr. Tohme sign this document?
A Dr. Tohme signed it on behalf of the Michael Jackson company yes
Q okay. Now, what was the purpose of this — let me ask, were you involved in drafting this document?
Q and what was its purpose?
A its purpose was to obtain Dr. Tohme’s acknowledgment of the production costs incurred to date as Dr. Tohme for some period of time at the beginning and then there at the end was representing Michael Jackson in some capacity.
Panish move to strike. There’s no foundation about the end.
Court there’s no foundation —
Panish no foundation for this witness.
Bina your honor, I asked why he created the document and what its purpose was.
Panish then it’s nonresponsive.
Court motion denied. That’s his belief
Q did you — was Dr. Tohme the only manager that Mr. Jackson had in this time period?
A no from the time period that we entered into the tour agreements through June 25th, or the — you know, the date of — of this, June 28th, or whenever, there were two people that were there that represented Michael Jackson in some management capacity, Dr. Tohme and frank Dileo.
Q and did AEG live have any similar for this one with Dr. Tohme?
A we did a similar document with Mr. Dileo where he signed a declaration with respect to the same budget production costs that were attached to this document.
Q and do you know what became of these documents? Were they were provided to any of Mr. Jackson’s other representatives?
A they were provided to the estate.
Q and what was the purpose in providing them to the estate, if you know?
A it was just covering the time period at issue through both gentlemen. Ultimately the estate conducted its own audit and investigation of the — and review of the production costs, and confirmed the same.
Q and were the production costs — production advances ultimately approved by Mr. Jackson’s estate?
A yes, they were
How the Estate made their audit and “investigation” of it I don’t know, but as to Frank Dileo it seems that we finally know why he agreed to sign off anything that was submitted to him by AEG. But first a word about what Dileo signed.
FRANK DILEO FINAL SERVICES
A. Yes, it is.
Q. And you testified earlier that Mr. Jackson had two managers over this time period.
A. Yes, Dr. Tohme Tohme initially…. Mr. Dileo then came into the picture or Michael’s life in some capacity. Then it was my understanding Dr. Tohme Tohme later came back into Michael’s life in some capacity.
Q. And in this first paragraph, does Mr. Dileo represent how long he was engaged as Mr. Jackson’s manager?
A. From approximately march until the date of Mr. Jackson’s death.
Q. And does he say anything in this document about whether or not he was involved with Mr. Jackson in preparing for the This Is it tour?
A. He says a lot of things here; but he says he had regular contact directly with Michael Jackson about matters related to the concerts at the 02 arena and the preparation for such concerts.
Q. Can we go down to paragraph 4, does it say whether Mr. Jackson… whether Mr. Dileo worked with Mr. Jackson to approve the budget?
Q. The first sentence of that paragraph reads, Michael Jackson not only approved the attached budget of expenses, and he requested AEG Live to incur such costs to produce the type of show that Michael Jackson said he wanted. And is that consistent with your understanding?
Q. Does this paragraph say anything about the retention of Dr. Murray?
A. Yes, it does, about right at the middle of the paragraph, the sentence that starts with, throughout…
Q. What does it say?
A. Mr. Dileo says, throughout the process of producing the show, Michael Jackson had many requests of AEG Live, and he acknowledged that he would be responsible for the costs associated with such requests. For instance, Michael Jackson asked AEG Live, as the producer of the show, to retain the services of Dr. Conrad Murray, who Michael said was his personal physician.
Q. And can you go down to the bottom of that page…did Mr. Dileo sign this document?
A. Mr. Dileo, under a paragraph that reads, I have personal knowledge of the facts stated herein, and if required to do so, I would and could testify competently to the same. I declare under penalty of perjury under the laws of the state of California, the United States of America, and any other applicable laws, that the foregoing is true and correct. Executed this 13th day of July, 2009, in Los Angeles, California, Frank Dileo.
Q. Mr. Trell, what was your understanding of Mr. Dileo’s role in this time period?
A. That he was acting in a management capacity with or some capacity in connection with the overall management of Michael Jackson.
Q. Did anyone connected with Mr. Jackson ever tell you, as an officer of AEG Live, that Mr. Jackson had not approved any of the costs for the This Is It tour?
Well, despite them saying that Michael had two managers at the time the reality was that Michael had none. Tohme working for AEG was fired in April 2009, and Dileo who was working for I don’t who, was most probably shut off from any real decision-making. AEG themselves were complaining that (now that Tohme was gone) there was no one to deal with in Michael’s camp.
Panish produced a respective email from Randy Phillips where he wrote to a certain Jeff Wald that it was a nightmare for poor AEG to work in such conditions – Michael Jackson had no lawyer, no business manager and no real manager:
Q. Mr. Trell, have you ever seen that e-mail before, sir?
A I saw it at my deposition.
Q. Ok. And are you claiming that’s not an AEG document?
A I didn’t claim that. You asked me if I had seen it before. I saw it at my deposition.
Q. I get ya I’m just saying would you agree that’s an AEG document?
Q. And who is Jeff Wald?
A I don’t know.
Q. Who is Phillips?
A That’s Randy Phillips
Q. Ok. And as the person most knowledgeable about the relationship between Mr. Jackson and AEG. Live, does this document discuss whether or not Mr. -Mr. Jackson had a Manager at that time?
Ms. Stebbins: I’m going to object to the use of this document with this witness. I think it lacks foundation. I also don’t believe that was one of the designated person-most-knowledgeable categories.
Judge: I’m confused as to your discussion. What is it discussed –did he discuss it with somebody? Did he –and you’re not talking about the e-mail, you’re just talking about the subject of whether he had a Manager?
Mr. Panish: let me back up.
Judge: rephrase that.
Mr. Panish: I would be happy to, your honor.
Q. So it’s your –you’ve never seen –or strike that. Can you talk about this e-mail, sir?
A I have no idea who Jeff Wald is or the exchange that took place here. I did not have any discussions with anybody about this exchange.
Q. Ok. Did Mr. Phillips, to your knowledge, ever tell anyone that Mr. Jackson had no lawyer, no business manager, and no real manager, and it was a real nightmare for AEG., to your knowledge?
A According to this e-mail here, that’s what he says, yes.
By the way when Randy Phillips was complaining about having no lawyer on MJ’s side he was right – Tohme was gone and Dennis Hawk was gone together with him as he was Tohme’s lawyer, and not Michael’s, and the only other lawyer left was Joel Katz but as regards him there was a conflict of interests – he had been retained by AEG in 2008 and was a long-time friend of Randy Phillips.
Panish spoke to Shawn Trell about it. This only one instance of that talk:
Q. Did you tell us that Mr. Katz was an attorney for Mr. Jackson, Sir?
A. That was my understanding.
Q. Sir… Mr. Katz was on retainer for AEG at this time, wasn’t he?
A. Not to my knowledge.
Q. Would you agree with me there was conflict of interest for an attorney to be hired and on retainer for one person and then represent another person that’s in an adverse business relationship?
As to Frank Dileo he as Michael’s manager was not taken seriously even by AEG and therefore could not be playing any important role in AEG’s business with Michael Jackson – and this means that he most probably never discussed with Michael (or AEG) any important points about the budget. He preferred not to be involved. We remember that after Michael’s death he gave interviews complaining of his poor health, and the way he nearly lost his eye-sight, and that by the time he joined Michael all decisions had already been taken – actually he was almost openly admitting that he did not really look.
So any papers signed by Frank Dileo are of highly dubious character, especially if we consider the bomb broken by Panish at the very end of Shawn Trell’s testimony – he asked him if he was aware of the $5 mln. payment planned to be made to Frank Dileo.
Trell was devastated. First he “didn’t know” what Panish was talking about, and after being presented with an email addressed to him and telling him that the sum was approved and all they needed was an explanation why it was to be paid, he finally recalled that they did pay to Dileo but only $50,000 and only in connection with the This Is It movie project:
Q. Were you aware that after Michael Jackson died, AEG Live paid Frank Dileo $5 million?
A. No, I’m not aware.
Q. Ok, did you approve Mr. Dileo to get paid money after Michael Jackson died, Sir?
A. Not that I recall.
Q. Ok well, let’s take a look, Sir and that’s something you would recall if you were approving sums of money to be paid to Mr. Dileo; isn’t that true, Sir?
A. Sums of money… you’re talking about $5 million?
Q. Let’s start with any money, Sir.
A. Don’t recall any money being…me being involved in approving the payment of any money to Frank Dileo.
Q. Well, let’s first talk about did you know that AEG paid money to Frank Dileo after Michael Jackson died, yes or no?
Q. This is an e-mail to you, and this is on the fourth page. Do you see that, Sir?
A. Right here.
Q. Shawn Trell, is that you?
A. Yes, I’m on this string, so…
Q. Ok so, let’s put that up first. Let’s start with that. Actually, it’s a whole long string, let’s start there. Can you read it now?
Q. Seen that before, is your name on there, Sir… Shawn Trell?
A. On these two.
Q. Let’s put these first two up. Actually, you’re on the first three, at least. Because you’re on this one, too, right? One, two, three … Ok so here’s one that says, forward Frank Dileo expenses revised, right…that’s sent to you?
A. Right, in October.
Q. Two months after Michael Jackson died … Or, actually, four months, right?
A. Four months, yes.
Q. And then it says, approved 5 million bucket, right?
Q. And then it says, above that, someone needs to generate a check request with a full explanation of what this payment is for. Randy and Shawn can sign off, and it can be charged to additional motion picture expenses.
Q. Do you see that?
A. That’s an e-mail from Rick Webking to me, right.
Let me intervene here for a second. So not only was the sum of $5mln approved for Frank Dileo but after that they also asked for someone to generate a check request explaining this payment!
It means that first AEG agreed to pay and then started thinking how to explain it and under what pretext the money could be charged to the additional motion picture expenses. I think that this request is even more mind-boggling than the sum they were planning to pay!
After seeing that email Trell finally began to recall things:
Q. Did you sign off and approve any expenses for Mr. Dileo to be paid after Mr. Jackson died, yes or no?
A. This looks like a $50,000 payment was made to Frank Dileo in connection with the motion picture.
Q. Ok well, let’s start with that. So after Mr. Dileo signed exhibit … Let’s put that up now … I’m going to be all messed up here, but … What would that be called… after Mr. Jackson died, after you got Mr. Dileo to sign, then AEG paid money to Mr. Dileo, right?
Q. Did you go to Mr. Dileo … AEG Live, and get him to sign this document?
Q. Can we put that up, Sir… I believe Frank volunteered to sign it, and if he didn’t sign, he wouldn’t get paid any money by AEG, would he, Sir?
A. No, I don’t think that’s the case.
Q. Ok Sir, is Mr. Dileo’s money included in what was submitted … Did AEG submit this, Sir?
A. Well, if I have an opportunity to answer this question fully…
Judge: Ok, answer it fully.
A. The $50,000 payment to Frank would have had to do with something, it’s not clear to me, related to the motion picture. And the reference to the $5 million bucket is an agreement as between AEG and the estate regarding additional motion picture expense … Like a contingency. You know, we had a bucket to deal with additional expenses incurred as the film was produced, so that’s … When it says $5 million bucket, it means it’s to be accounted for in that bucket. It does not mean Frank was paid $5 million.
However Randy Phillips said that the sum of $50,000 was paid to Frank Dileo while Michael was still alive, at Michael’s request and sometime at the beginning of May too, so that sum could never have anything to do with making a motion picture which they said they decided to make only after Michael’s death.
If those $5 million were indeed mentioned in connection with Frank Dileo’s name and had to be explained by attaching them to the motion picture expenses (though Dileo had nothing to do with the film) this will be the most incriminating evidence against Frank Dileo that can be onl thought of – but I am still making some reservations about it as we still need to see what information his computer will produce for us.
The other fact which is restraining me from making final conclusions is the fact that Dileo died as a result of a coma which was induced by an accidental double doze of anesthesia and this, coupled with Peter Lopez’s alleged shooting himself with no weapon found near the body is putting some unpleasant ideas into my head.
Though previously Randy Phillips complained about a “nightmare” situation with Michael having no manager, no lawyer, etc. now he is presenting Dileo as the real Michael Jackson’s manager – evidently to give more force to the paper Frank Dileo signed for AEG:
Q. I want to ask you this, sir. Let’s isn’t it true, sir, that when Dr. Murray was hired, there was noone acting as Mr. Jackson’s personal manager?
A. No, that’s not true. Frank Dileo was hired in some capacity. I don’t know if Michael referred to him as his manager or not, but Frank Dileo was representing him.
Q. Did Michael Jackson have a personal manager or not?
A. My understanding is that Frank Dileo was functioning in that role.
Q. OK. And do you have a writing that said, “this is my agent”?
Q. OK. What did it say?
A. It said it was when we advanced Frank Dileo I believe $50,000 at Michael’s direction.
Q. You gave Mr. Dileo Mr. Dileo, did he have a contract with AEG?
A. Not that I am aware of.
Q. Well, sir, and AEG Gave money to Mr. Dileo; is that right?
A. At Michael Jackson’s direction, yes.
Q. OK. And when was that, sir?
A. Most likely it was sometime in either May or June.
Q. OK. Well, let me show you, sir, exhibit 185, dash, 1.Have you seen that before?
A. I probably have.Q. OK. And when was Mr. Dileo what’s the date of that, sir?A. Monday, May 11th.Q. And did you pay 50,000 to Mr. Dileo after May 11th?
A. Hold on. This letter is dated May 2nd, 2009. The cover letter from Evvy Tavasci to PaulGongaware was on the 11th, and the actual document that Michael signed was on the second
FINAL WORD ABOUT THE PAPERS
From all the mess with the two managers for Michael Jackson out of which none was a real one, one more thing is also becoming clear – the papers they gave to AEG were to mask the fact that Michael did not give any written approval to spending all that excess money on production. He either did not know that it was his obligation (we remember that the inside papers were inserted into the contract later) or he never agreed to cover those expenses at all.
This is why AEG so desperately needed the services of those two managers. They gave their written consent to covering the production expenses, and they were indeed covered by the Estate on the basis of papers submitted by Tohme and Frank Dileo. Tohme did it on behalf of the Michael Jackson Company though he was never its officer (and AEG knew about it), and Frank Dileo confirmed it as a manager whose credentials even AEG had a difficulty to accept and believe in.
Why were the AEG people so desperate to have those papers? Could they do without them? I doubt they could – their own contract explicitly said that all approvals were to be made in writing, and from Michael Jackson they had absolutely nothing:
Q. Mr. Dileo, who you say was authorized to approve things … You say he was authorized by Michael Jackson to approve things, right?
A. That was my understanding.
Q. And he approved the Dr. Murray expense, didn’t he, Sir?
A. If this was contained in the attachment at this time, that’s what Frank was signing off on behalf of Michael Jackson.
Q. Right, just like you had Dr. Tohme sign off on behalf of Mr. Jackson, right?
Q. And Dr. Tohme approved the payment and submitted it to the estate, right?
Q. And, Sir… under Mr. Jackson’s contract, which I hate to do this … Let me just try to do it without showing it. Ok now, in this part of the contract, it says all notices … Does it say … Does it say some notices, ones that are verbal, does it ever say that, Sir?
A. No, it doesn’t.
Q. All notices, approvals and consent required or permitted to be given hereunder or which are given with respect to this agreement shall be in writing, did I read that correctly, Sir?
Q. And Mr. Jackson, he was the sole officer of the Michael Jackson Company, correct?
A. That was my understanding as of the date this agreement was entered into.
Q. And you told us that there was a verbal agreement to extend it to 50 shows, right?
A. Yes, there was a mutual understanding to go to 50, yes.
Q. And the contract requires any notice or approvals or consents to be in writing, correct?
A. That’s what this provision says, yes.
Q. And, Sir… for Mr. Jackson’s expenses and production, you had Mr. Tohme and Mr. Dileo sign after Mr. Jackson was dead, right?
Q. And you had no signature before Mr. Jackson was dead, did you?
A. That’s correct.
Q. And, Sir … So AEG took the position that somebody could sign that was authorized by Mr. Jackson after the fact, correct?
A. We took the position that his management could sign on his behalf in that regard, all of it rendered moot by the estate ultimately signing off on it anyway. The estate is Michael Jackson, so I’m not sure I understand your question.
Q. Because you don’t want to answer it. I know… let me say it again.
A. I am answering it.
Q. Isn’t it true that AEG took the position to satisfy the contract that Dileo and Tohme could sign after Mr. Jackson was dead, yes or no?
A. Yes, they signed off on it.
Q. And isn’t it true that Tohme and Dileo signed off on Dr. Murray after Mr. Jackson was dead?
A. It was included in that version of the expenses at that time, yes.
Q. And they got paid, Dileo and Tohme, after they signed to submit the … The documents, correct?
A. I’m not aware of any payments to Dr. Tohme; and I’m only aware of this $50,000 payment to Frank in connection with the film, as I just described.
So from Michael Jackson himself AEG had no papers – neither for 50 shows, nor for covering the production expenses. In fact I am not even sure that AEG had a proper contract with Michael Jackson at all as the dates of its “signing” are indeed raising too many red flags.
By the way when Ms. Stebbins asked the top lawyer of AEG whether there would be an agreement with Michael Jackson if he walked away from the room without signing it and the top AEG lawyer answered that there would be no contract with him, she was probably right.
Most probably Michael did indeed walk out of that room without signing, and all the fuss AEG arranged with the papers with Tohme and Frank Dileo was meant to close the huge gaps they were having after doing all their cut-and-paste job and reshuffling the only papers they had.
The fact that neither of the AEG people can properly explain a simple thing like when their contract with Michael Jackson was signed probably means that Michael did not sign it – and if he did not sign, it means that there was no contract as Shawn Trell himself explained it to his lawyer.
It would be over-simplifying things but AEG lawyers are doing it too, so I really like Ms.Stebbins’ idea:
Ms. Stebbins. When did you have a contract with Mr. Jackson?
A. As of January 28th
Q. And if Mr. Jackson had walked into the room on January 28th, 2009, and said, you know what, I changed my mind. I’m not signing this…would you have had an agreement?
* * *
The transcripts used for this post are as follows:
Shawn Trell-2: http://teammichaeljackson.com/archives/8632
Shawn Trell- 4: http://teammichaeljackson.com/archives/8643
Also Randy Phillips-2: http://teammichaeljackson.com/archives/8709
Guys, please don’t hesitate to donate to TeamMichaelJackson for buying the transcripts: http://teammichaeljackson.com/archives/8530
Nothing can be dearer than the truth.