Live Nation’s lawyers are due to make another filing with the Supreme Court in Texas today as they work extra hard to try to stop CEO Michael Rapino from having to sit for a deposition as part of the ongoing Astroworld litigation.
The lawyers are responding to a recent court filing that again set out arguments for why Rapino should be forced to answer questions under oath in relation to the fatal crowd surge at the 2021 edition of Travis Scott’s Astroworld festival in Houston, Texas. That filing outlines Rapino’s personal role in securing Live Nation’s business relationship with Scott, and in decision making and communications in the immediate aftermath of the Astroworld tragedy.
He also knew about Scott’s reputation for encouraging reckless behaviour at his live shows, the filing claims. From the off, “Rapino knew of Scott’s dangerous concert antics, which include inciting crowds, encouraging concertgoers to disregard security and attack concertgoers he identifies in the crowd, and encouraging fans to attempt to attend his concerts without a ticket”.
In the wake of the crowd surge on the first day of Astroworld 2021, “Live Nation employees immediately notified Rapino of the carnage”, the filing alleges. “Although the concert had been shut down, questions loomed over the second day. Live Nation looked to Rapino to decide whether to cancel”.
In an email to Live Nation employee Brad Wavra, Rapino wrote, “let's wait for confirmation on deaths once statement is made, we can decide - if five died we would cancel”. As the decision making around the cancellation was ongoing, Rapino also spoke directly to Scott about the situation.
In the days after the tragedy, Rapino “focused his energy on minimising negative press coverage”, the filing adds, citing more communications with Wavra. Noting video footage of people forcing their way into the festival earlier in the day, he wrote “I guess this will be another angle given video of gate crashers and what did we do in response”. He then expressed concern that “someone will want to call a hearing on are festivals safe”.
Hundreds of lawsuits were filed in the wake of the Astroworld tragedy. Live Nation has already settled with the families of the ten people who died, but many of the cases filed by those who were injured or otherwise impacted by the crowd surge continue to work their way through the courts.
The judge overseeing the legal action ruled earlier this year that Rapino should answer questions posed by lawyers working for the affected festival-goers, concluding that the Live Nation chief had “personal and direct knowledge of relevant information”. Live Nation has been seeking to get that decision overturned ever since, ultimately taking the matter to the Texas Supreme Court.
Live Nation’s lawyers are trying to use the ‘Apex deposition doctrine’ to block the deposition. That’s a legal principle in the US that exists to stop plaintiffs in a lawsuit from immediately seeking a deposition with the bosses of any companies involved in a case.
It mainly aims to stop depositions being requested which are less about gathering relevant information and more about inconveniencing and potentially embarrassing a senior executive, in the hope that might pressure the other side to settle.
In a filing last month, Live Nation wrote, “this case presents precisely the sort of freewheeling intrusion into business affairs that this court’s apex-witness doctrine shuts down”. The lower court, it added, ruled that Rapino must sit for a deposition “despite conclusive evidence that he played no role in the 2021 Astroworld festival” and that “he had no ‘unique or superior personal knowledge’ relevant to any claim or defence”.
Lawyers working for the Astroworld victims strongly dispute those claims, insisting that Rapino’s direct involvement in Live Nation’s deals with Scott - and in deciding how to respond to the crowd surge incident - means he has the required ‘unique or superior personal knowledge’ to justify the deposition.
In their filing, they call Live Nation’s recent claims that Rapino was not, in fact, involved in the decision to cancel day two of Astroworld 2021 as “remarkable”. The email correspondence between Rapino and Wavra “speaks for itself” they say, and lawyers working for the victims “want an opportunity to examine Rapino” about the decision to cancel.
As that decision was being made, they go on, “Rapino spoke privately with Scott in a phone conversation that is central to the need for his deposition. Scott has testified about this conversation, but Rapino’s version remains a mystery”.
Live Nation’s latest bid to block the deposition seems somewhat optimistic, however it’s understandable that the lawyers want to pursue every possible route to stop the questioning from happening.
Journalists and investors will be as interested in Rapino’s answers as the lawyers working on the case. With the live giant already in the spotlight over allegations of anticompetitive conduct, there will be plenty of interest in how Rapino deals with questions about his company’s alleged role in causing an incident that resulted in the deaths of ten music fans.