By Michael Lipkin
February 26, 2015
Communications between a lawyer for Steven Tyler and an “American Idol” representative over the Aerosmith rocker’s contract negotiations are not protected speech, a California appeals court ruled on Wednesday, reviving a management company’s $2 million suit alleging the attorney sabotaged its bid to get Tyler a more lucrative deal.
The California Court of Appeals reversed a trial court’s ruling that the state’s anti-SLAPP law applied to the claims because emails from lawyer Dina LaPolt allegedly saying the show could get Tyler for cheap were protected. Kovac Media Group claimed the messages undermined its negotiation position and betrayed Tyler.
The court ruled that even though Tyler was a celebrity and his return to “American Idol” was a public issue, the emails themselves were about his contract negotiations and how LaPolt planned to get Tyler to follow her strategy. Not every statement about celebrities is a matter of public interest, the court found, saying that in order to succeed on an anti-SLAPP motion defendants need to show the statements explicitly addressed public issues.
“Notwithstanding Tyler’s celebrity and the public interest in his return to ‘American Idol,’ the specific content of the emails — a dispute among Tyler’s representatives about how best to negotiate his contract extension — is not a matter of public interest,” Justice Lee Smalley Edmon wrote for a unanimous panel.
LaPolt’s emails discussed an airport sighting of actress Suzanne Somers and LaPolt’s theory that Somers lost out on renewing her “Three’s Company” contract because her manager overplayed his hand. She also proposed a negotiation strategy for Tyler and said Somer’s story should be used to convince Tyler to follow along.
But the emails never refer to Tyler or “American Idol” by name and never detail the suggestions from Kovac that LaPolt disagreed with, according to the ruling. A casual reader would have struggled to even see that the first email had anything to do with Tyler’s negotiations, the panel found.
“It therefore is difficult for us to imagine that there is any public interest in this email as we do not believe the public could have known who — or what — was being discussed,” Justice Edmon wrote.
The lower court’s decision tossing three of Kovac’s claims based on the anti-SLAPP law was a crippling blow to a case that Tyler himself described in a court declaration as “an outrage and a travesty,” saying LaPolt “has been my advocate and ally and terrific counsel.” The Aerosmith frontman terminated Kovac Media’s services in August 2011.
Kovac Media, which does business as 10th Street Entertainment, manages such bands as Blondie and Motley Crue. According to its lawsuit, it was seeking to obtain a contract for Tyler to return as an “American Idol” judge that would have paid him an additional $6 million to $8 million.
LaPolt worked closely with 10th Street and its founder Allen Kovac, and advised them on their negotiating strategy, the suit said. But LaPolt allegedly went behind Tyler and 10th Street’s back by telling the “American Idol” agent in the email that Kovac had “overplayed his hand with his aggressive behavior” and Tyler could be signed cheaply. Her motivation, the suit said, was to “curry favor with ‘American Idol’ to refer her other artists and talent.”
The court also rejected LaPolt’s argument on separate claims that she took a share of commission from Tyler’s tours that Kovac Media was entitled to. LaPolt said that claim was based on legal advice she gave to Tyler about what percentage of his income he should pay to his new manager under a settlement with Kovac Media. But the court found the advice wasn’t protected litigation-related activity because the complaint never alleged LaPolt made any statements to Tyler, only that she took a portion of his touring commission.
“LaPolt cites no authority for the proposition that taking a portion of [10th Street Media’s] commissions constitutes a ‘statement’ within the meaning of the anti-SLAPP statute,” Justice Edmon wrote, adding that there was nothing in the agreement with new management to tie the deal to a legal settlement.
Tyler terminated 10th Street’s services in August 2011. An amended version of the complaint also accuses LaPolt of causing Motley Crue to terminate a business manager at another of Kovac’s companies in retaliation for being sued by 10th Street.
“We are very pleased with the Court of Appeal’s decision,” Skip Miller of Miller Barondess LLP, representing Kovac Media, said. “We look forward to trying the case against Dina LaPolt.”
An attorney for LaPolt said also looked forward to addressing the suit on the merits.
“Plaintiffs now will be forced to prove their case, and we are confident that they will come up empty,” Bradley J. Mullins of Mitchell Silberberg & Knupp LLP said.
Justices Lee Smalley Edmon, Patti S. Kitching and Richard D. Aldrich sat on the panel for the Court of Appeal.
Kovac Media is represented by Skip Miller, Alexander Sasha Frid and Mira Hashmall of Miller Barondess LLP.
LaPolt is represented by Valentine A. Shalamitski, Christine Leper and Bradley J. Mullins of Mitchell Silberberg & Knupp LLP, and Patricia L. Glaser and Craig H. Marcus of Glaser Weil Fink Howard Avchen & Shapiro LLP.
The case is Kovac Media Group Inc. et al. v. Dina LaPolt et al., case number B247579, in the Court of Appeal of the State of California, Second Appellate District.
–Editing by Mark Lebetkin.