Astroworld’s Legal Fallout (State Bar of Texas Annual Meeting 2022)

Episode Notes

Transcript

[Music Playing]

Laurence Colletti:  This episode is brought to you by the generous support of LawPay, a Texas member benefit provider.  Getting paid just got a lot easier.  Check them out at lawpay.com.  That’s lawpay.com, for more details and now on to the show.

All right, welcome back everybody with the State Bar of Texas Annual Meeting here.  This is the State Bar of Texas Podcast.  Obviously, I’m not your regular host as I’m sure you have recognized them stepping in here for Rocky Dhir, he is attending some other matters but he’ll be back with another episode or two after this.  But anyway, I have a wonderful panel of guests here.  That I think it just got finished presenting or maybe that was yesterday.  I think it was yesterday, Astroworld aftermath litigation and its impact on the live event industry.  Is that correct you guys did it yesterday?  

Saba Syed:  Yes, that’s right.  

Laurence Colletti:  How’d it go?  Just how you feel about it?  

Brent Turman:  It was a lot of fun.  This is different than a lot of CLEC(ph) because it was kind of a point-counterpoint discussion where we had arguments from the plaintiff side, arguments from the defense side and it was pretty interactive.  

Laurence Colletti:  We need to see a little bit of that cat fight coming up, right, so point-counterpoint thing coming up?  

Saba Syed:  We’re ready.  

Laurence Colletti:  Alright, perfect, well let’s do some introductions.  So I’ve got a nice panel here.  So I’ve got the Saba Syed, she’s joining us.  So where do you work and what do you do?  

Saba Syed:  Hey Laurence, everyone.  My name is Saba Syed.  I am a partner in civil litigator at Bell Nunnally we’re a Dallas Law Firm.  

Laurence Colletti:  Excellent.  And we have Brent Turman, joining us as well.  So, where do you work, what do you do sir?  

Brent Turman:  Yes.  So I’m a partner.  I’m also a litigator at the full-service firm at Bell Nunnally & Martin in Dallas.  And I’m also here because I am the Chair of the State Bar of Texas Entertainment Sports Law Section.  

Laurence Colletti:  Did you know that Saba works at your firm?  

Brent Turman:  I did.  We’ve tried cases before.

Saba Syed:  I’ve never met Brent before.  

Laurence Colletti:  Never?  

Saba Syed:  Yeah, today is my first day meeting him.  

Laurence Colletti:  Awesome, I love it.  All right, so Barrett, where do you work, what do you do?  

Barrett Robin:  I’m a trial lawyer with Hamilton Wingo LLP in Dallas Texas.  We are a plaintiff’s trial boutique firm and we handle primarily catastrophic injury litigation.  

Laurence Colletti:  Okay, so you’re going to be on the opposite side of the fence from Saba, is that correct?  

Barrett Robin:  Yes, sir, the right side, absolutely.  

Saba Syed:  I beg to differ.  

Barrett Robin:  We’ll see about that.  

Laurence Colletti:  All right so, I know there’s a disclaimer coming up here as we try to do before we get into the content.  So who wants to read the disclaimer? 

Brent Turman:  Yeah definitely just I’ll do it for everyone to have to do it.  With this, obviously we are not involved in this litigation.  There’s a gag order in place.  We aren’t going to violate court orders here and obviously, these opinions, are own opinions, they’re not dependents of our firms.  I think that covers it, Barrett, Saba?  

Saba Syed:  I think that’s it.  

Brent Turman:  All right.  

Barrett Robin:  You nailed it.  Thank you Brent.  

Laurence Colletti:  Alright so we’re going to begin.  So obviously this is a mass casualty event, we’ve talked about.  So I mean it’s definitely some topic and this is one, unfortunate I missed a little bit in the news cycle so I’m going to need your help kind of piecing it together.  So let’s start with what happened and as we’re doing on our pregame, I don’t really understand the Astroworld venue.  So as you were saying, it was a former amusement park, closed down, reopened, repurposed, so maybe kind of walk us through that and maybe the events that day.  

Brent Turman:  Yes.  And let me tell you a bit about Travis Scott first because that leads us to a Astroworld.  So a lot of people with this podcast may not be familiar with his brand of music.  People call it Mumble Rap but with it regardless with I guess the used you would say, he is insanely popular and he is I guess famous for his energy, his excitement that he brings at his shows.  They are very, very high energy events and I’m sure the plaintiff’s attorney buried over here will be commenting on that shortly.  But with this, he is famous in Houston, he had an album called Astroworld, and Astroworld for him was a happy place for him growing up because of these excitement roller coasters, up and down, things like that, right?  And so he kind of an homage to that and that part of his life has this festival, today’s music festival called Astroworld, the Astroworld Festival in Houston.  Several years, and the year we’re here to talk about is the November 2021, which we saw in the news and as Saba explained in our presentation, this was a perfect storm for things to go wrong for a lot of reasons.  

Saba Syed:  Right.  And you know, what you have here is an artist who is highly revered, coming back to his hometown and it feels like a homecoming after two years of COVID, everyone’s excited to see him and his music is high-energy just like Brent said but to give you an image of this, people are stage diving off of his concerts, people are moshing.  I mean, it is a true fun event and people love it.  And so, you have an artist like that who is high energy but then on the other hand you have a, what is really a post-pandemic world.  And we all know how hard it is to find good help after COVID.  It’s hard to find people, hard to hire people, now it’s especially true for the live events industry which was effectively on hiatus for two years.  So things like finding enough security, finding the ability to train enough people to guard the entrances.  That’s been challenging.  So what ultimately happened is a perfect storm, you have a high-energy artist and then you have an event that has been somewhat difficult to staff.  

Brent Turman:  And on top, they have very, very excited individuals, and a sold out venue with 50,000 tickets sold.  

(00:05:03)

And on top of that, you have people who have not been used to working live events for years because they haven’t been going on at the scale.  

Laurence Colletti:  Well I think to like, you know, just, you know, when you get a kind of out of practice, there’s little things you forget about.  I mean, just think about, you know, when you don’t travel as much and you go to the airport, you kind of forget a few steps and things happen.  And so if you’re not like in the regular course of doing things, and this is your first event back I’d imagine there’s probably a lot of things missed on the checklist.  But continue on.  

Brent Turman:  Well, that gets us to the event and anyone watch the news, you know, what happened, there was a crowd crush event, reportedly about 30 minutes into Travis Scott’s set which happened after nine o’clock on one evening, it was declared a mass casualty event.  The show went on.  We don’t know the exact timing of the deaths yet, but to date there have been 10 reported deaths and one death of an unborn child and hundreds and hundreds of injuries and we’re currently have the multidistrict litigation.  

Laurence Colletti:  Well, I think Barrett you have some stats on that.  So 11 deaths and then how many, there’s extensive and less extensive injuries?  

Barrett Robin:  Yeah, absolutely.  So in the context of this multidistrict litigation case, it’s kind of lump all these cases together.  They’ve characterized it into kind of three buckets.  You’ve got the deaths and we talked about there, sadly were 11 deaths.  Now, there were about 750 or so injuries requiring extensive medical treatment and then there’s another 1,650 or so injuries requiring less extensive medical treatment.  Now, exactly what that means, we don’t know at this point, those are the types of things that are going to be hashed out and discovery in the individual cases.  

Laurence Colletti:  Is there any idea like how much, I mean, just in medical damages, this is going to be like any estimates, early estimates?  

Brent Turman:  We are so early in this right now because it’s multidistrict litigation.  It’s going to be a long multi year-long process.  We are very early right now.  

Saba Syed:  And some of the earliest numbers that were thrown around was 750 million dollars, but it’s probably going to be much more than that.  Some other numbers that are being thrown around is two billion.  

Laurence Colletti:  Wow.  That’s a staggering number.  That’s, you know, potentially a venue ender right there.  I mean, I don’t know how many businesses can take a two billion dollar loss like that.  

Brent Turman:  And you think about it too, this is probably from Barrett’s and plaintiff’s perspective, there are a lot of potential defendants who have very deep pockets or substantial insurance policies and these are things that are all going to come into play, definitely.  

Laurence Colletti:  Well, let’s talk about the organizations and perhaps individuals or sort of in the crosshairs of all those lawsuits, is this being set up as a class action, they’re pulling people in because similar event or how’s it working so far?

Saba Syed:  No, this is an MDL litigation and Barrett and I can talk about this little bit from the defense and plaintiff’s perspective but effectively we have of over 400 lawsuits that are being consolidated or actually, in one court Judge Kristen Hawkins’ court and that is going to be the court that handles the pre-trial issues, some of the procedural issues.  

Barrett Robin:  Yeah, absolutely.  So they are individual lawsuits involving individual people who were there, perhaps the family members, family members of folks that passed away, the purpose of that MDL is to kind of create some efficiency so that they don’t have to do a corporate representative depo of Apple or Live Nation, whoever it is, 400 separate times.  And so, the common legal issues, discovery issues, a lot of that are going to be handled in the MDL court.  

Laurence Colletti:  Okay.  So kind of getting back to the defendants, it could be possibly in the crosshairs of this litigation and obviously the venue, so I guess the ownership of the venue, right?  Whatever that is, I guess it’s a closed amusement park that got reopened for limited purpose.  

Brent Turman:  And really, if you see the pictures and presentation, it’s a large parking lot at a venue.  And then the stage is built in its massive but there are so many defendants, we can’t name all today, obviously, the first one, Travis Scott, right?  Travis Scott’s the guy on stage, on top of that, we have other performers, like Drake who appeared on part of that, final set of the night.  We have the companies, various companies who put on and manage these shows.  I think a definite one that’s going to come up is the company who was contracted to do security and we have lots of other legal issues and other people that will be brought in for sure.  We have Apple Music broadcasting it, streaming it live, and a lot more we can get into, but I don’t know how much time we have.  

Laurence Colletti:  Well, let’s talk about that.  So let’s talk about kind of the fault that might be, I think it’s where we’re going to get into sort of the point-counterpoint.  So I guess, you know, maybe from the plaintiff’s side of things, you know, when you’re looking at this and you’re looking at performance artist, I mean, I definitely get it, you’re rallying people up but, you know, it’s also a performance and so, you know, people would go to an event to be excited.  So, walk me through the fault that the performance artist might have, maybe kind of go down the chain there and talk about possible legal theories.  

Barrett Robin:  Well, in terms of the actual artist himself, Travis Scott, for me personally, I think the other entities are more at fault.  

(00:10:00)

And are going to be the more likely and meaningful targets and in the litigation.  But Mr. Scott himself I mean, he’s got lyrics that verbatim say things like “it ain’t no mosh pit unless there’s injuries” you know, he is encouraging this type of behavior and it’s kind of been a pattern and practice of his live shows and you know, bringing that type of injury — energy to a show is fantastic.  That’s why people love him so much but he’s been charged criminally in connection with multiple shows in 2017 in fact a couple of weeks after an incident in which he was charged for inciting a riot I believe is the charge, couple weeks later in New York, a young man fell from a third floor balcony during his show, was paralyzed and this happened minutes after Travis Scott encouraged another concert attendee to literally jump from the second floor balcony into the crowd below, that person was okay but I mean, this looks really bad and it speaks directly to the issue of this being a foreseeable and a preventable disaster.  

Laurence Colletti:  How does the defense side respond to that?  I mean, somebody does get hurt but at the same time it’s not like people don’t have autonomy.  

Saba Syed:  Well, the quick answer is that every defendants going to have different defenses.  So if I was representing Travis Scott, I would take issue with using my lyrics against me for example, you know, the courts have litigated and discussed rap as a form of free artistic expression.  I think that that would play into the discussion here but I think this case really boils down to three defenses, one of them being proportionate responsibility.  It’s a 100% of liability to go around and each defendant is going to be pointing their finger at the other one.  So if I’m Travis Scott, I’m going to pointing the finger at ASM or the party that was managing and contracting for security.  There’s also the third party criminal conduct, it’s well-established in Texas that a party is not responsible for another person’s third-party criminal conduct.  So we have people who were barricading the entrances at the beginning, not responsible for that or for the assaultive behavior during the concert.  

Laurence Colletti:  Well you just mentioned criminal but what about civil?  I mean it’s totally different so how about the civil side of that? 

Saba Syed:  Well, we’re going to have — I mean, that’s a fair point.  But really, it’s going to come down to criminal conduct and there is a way to characterize the conduct as criminals, so trespass for example, is going to be a way we can bring that in.  

Brent Turman:  And that’s one thing I didn’t say earlier, a little background here.  2:00 p.m., the day of the show, people stormed through the entrance.  That’s trespassing, that’s illegal, running past and sometimes through security guards.  So that’s one thing that definitely Saba would bring up as a defense counsel.

Saba Syed:  Right.  And the final defense I could see coming up is more of a procedural issue and that’s a responsible third party designation and I can see responsible third party designation for Harris County.  Harris County certainly had some involvement in this and there are reports that they actually met with Travis Scott the day before the concert because they had concerns about its safety.  

Brent Turman:  And with that too, there’s one other really interesting fact here and this is going to be key in discovery in evidence knowing what people knew and when they knew it.  And this is what secondhand, third-hand, I’m not sure it has been officially stated, but it’s been, I guess speculate today, the Houston PD knew approximately halfway through Travis Scott set, this was a mass casualty event.  Someone you know, is again secondhand, third-hand, I wouldn’t there decided that if we shut down the show now it is going to be a guaranteed riot and things will be worse than what happens if we let the show go forward.  

Laurence Colletti: In the spirit of equity, I’m going to loop Barrett back because there are two of you on this side of it.  So I’m going to loop it back in just for a brief reply there.  

Barrett Robin:  Well, there’s a lot there but particularly, I want to just maintain a laser focus on the fact that this was preventable, and this was foreseeable.  This was a massive event.  They were charging attendees $300 for a base level ticket, there were more expensive tickets than that and we’re talking about 50,000 ticketed attendees.  Now, yes, there were some folks jumping over barricades and pushing people around, those things are going to happen but as an organizer, as a producer, as a promoter of one of these events, you have to plan for that.  And we’re going to hear through the course of this litigation from some experts that we’ve heard from one already that I’ve read he’s been quoted in a few articles his name is Paul Wertheimer and he actually consults on this, he’s got a firm called Crowd Management Strategies and he says, when you don’t plan for the worst, it will happen and he notes he studies these events and says it’s the same recurring theme over and over again and it’s been happening for decades.  

(00:15:08)

And that is crowd surged, crowd rush, crowd collapse, death and the sad thing is, it gets a lot of news when it happens but then nothing changes.  And it will happen again until some of these companies are held accountable and they make sure that they put in the right investment into making these safe events for the attendees.  

Laurence Colletti:  Barrett is making a pretty good argument here for the standard of care that’s due and these are licensees after all with the ticket holders.  So I’ll give you guys one more part, then I want to move on to how this changes venues because and I’m drawing sort of a correlation here to the Champlain Towers down in Florida, when those went down that sent shockwaves across HOAs, across the country and so, people reacting and I know the building, I was living in there updating their insurance policies immediately after that.  So I want to transition to that, but I want to give you guys the final word there, just to respond on that standard of care.  

Oh, yeah.  And one thing these standards of care can be important because the legal issue for every defendant and each defendant is involved to a different capacity, right?  They’re going to have different standards of cares to what they’re expected to do.  But one thing I have to say before we move on is plaintiff’s attorney is going to have a lot of bad things to say about defendants.  Strategically, when you represent a defendant, you can what he says about other defendants to your advantage, there’s 100% to go around.  You want to make sure you vigorously advocate for your client and make sure you have the smallest percentage on you to the extent there’s sometimes business considerations could make that difficult to do in the client’s interest but those are things to think about going forward.

Saba Syed:  And to follow up on the standard of care, experts are going to be so important by both plaintiffs and defendants in setting that standard of care.  And I think that we do see changes in the Live Events industry, it’s going to be through the expert testimony.  Harris County decided not to do an independent investigation to this event.  So the expert testimony that comes out in this case is really going to be critical and changing how we conduct live events in the future.

Laurence Colletti:  Well, let’s get into that because I can imagine that insurance policies are probably going to have to have larger, I guess payouts at some point if you have one of these huge events, there’s probably going to be insurance companies, they’re going to be looking at this and to say I am not going to ensure this building, unless you have some type of crowd control mechanism in there, you got to have X amount of maybe security.  So, maybe talk about some of that, let me quickly go over to Barrett here, we just kind of go down the table and just come up with some ideas.  What do you think’s coming down the pipeline here?  

Barrett Robin:  You know, I think there’s a possibility certainly for special event insurance having higher underwriting requirements in terms of what is your crowd management safety plan look like, how many security staff per attendees are you going to have?  And you know, what types of inspections are going to be done on the front end?  I mean, one interesting issue that we’ve seen in setting this event, is there we’re actually security staff that quit the day of because they got there and saw that that conditions were so bad, they didn’t want to be involved in it.  And so I think those types of planning issues on the front end, they’re just going to be enforced a lot more heavily moving forward.  

Brent Turman:  And so one thing I thought was really interesting.  So my first career, I was in television film production.  Worked for ESPN college football for years and if you’ve been to a big high-profile college football game, you see there’s this person on the field called the Red Hat and most time it’s a guy but he’s got a red hat on and he’s got his arm up in the air when we’re on commercial break.  Everyone knows to look to him; they look to him to know when they can’t play and when they can.  Now, that does not fix everything right?  But ideas like that, because think about Travis Scott, he’s up on stage you cannot hold him accountable for knowing what’s going on throughout that entire crowd of people.  So things we can put in place to have clear communication or things I’m definitely looking forward to seeing.

Saba Syed:  And one more change that I would anticipate for the live events and this surge, just something to look out for.  If you’re a vendor in the live events industry, is take a look at your contracts and see what the insurance policy and insurance provisions look like so if you have an insurance policy that excludes penalty damages, then that could be a concern because what we have here is claims of negligence, but also gross negligence.  So you don’t want to be on the hook for gross negligence, (00:19:17) damages, especially if you are a company with deep pockets.  The other issue to look at is your identification provisions.  So identification is kind of the way you pass the buck on liability, who’s really responsible for the wrongful conduct, taking a look at that, making sure you’re not on the hook for someone else’s wrongful conducts is going to be important.  

Laurence Colletti:  When we saw a little bit and I’m going to cross the chasm over from the civil side back to the criminal side.  But we saw a little bit in Florida, you know after the civil arrest of 2020, they started passing some legislation that would hold people that rioted more accountable at least from a criminal, I mean, do you foresee that in Texas happening and maybe, you know, people seeing this event as mass casualty events that hey, you know when you have these outdoor venues and gets beyond a certain number, maybe we need to pass some legislation to kind of control the crowd from a criminal point of view or not so much one over.  

(00:20:02)

Brent Turman:  I’m a little skeptical about that.  Particularly in Texas, we care a lot about individual rights and certainly, we’ve been going to concerts for as long as I can remember and I’ve certainly been in a mosh pit before and been pushed around and pushed a little bit.  

(Voice Overlap)

Brent Turman:  I was going out publicly?  But what I’m saying is, I don’t think that they’re going to criminalize a reasonable participation in like the physical aspect of being in a mosh pit at a concert.  I mean, first off, I don’t know how you would enforce it, are they going to bring police in and arrest everybody that bumps into somebody at a concert?  No, I don’t think so.  And I don’t think anyone’s arguing for that either because we don’t want to take away the heart and soul of the live performance industry.  We want this to be an enjoyable outlet for folks.  And you know, with Travis Scott, you had a bunch of young people going to see their hero, one of their heroes and we want them to be able to engage with them on a meaningful level and there is a physical aspect to it.  I just don’t think that it will be or should be criminalized at least as I see it right now.  

Laurence Colletti:  We have to leave it there because we’re definitely out of time, but I want to open the floor field at least some contact information.  If our listeners want to follow up a little bit more and since you were so kind to come out and present on, let’s leave with some contact information.

Saba Syed:  Hey everybody, this is Saba Syed, would you like me to leave my email? 

Laurence Colletti:  Whatever you’re comfortable with.  

Saba Syed:  Yeah.  My email address is [email protected].  That’s B-L-L, N-U-N-N-A-L-L-Y dotcom. 

Brent Turman:  And Brent Turman.  I’m [email protected], don’t need to spell it again, but come find me on LinkedIn.  

Laurence Colletti:  Alright, sounds good, Barrett.  

Barrett Robin:  My email is [email protected].  

Laurence Colletti:  And that’s a wrap, all the time that we have for this episode of State Bar of Texas Podcast brought to you by LawPay.  Thank you so much again LawPay and also, big thank you to our listeners for tuning in.  If you like what you heard, please rate and review us in Apple Podcast, Google Podcast, Spotify, now Amazon Music, or better yet your favorite podcasting app.  I’m Laurence Colletti, until next time.  Thank you for listening.