Shapiro Arato Bach Wins Affirmance in California Court of Appeal of Summary Judgment Victory for Lizzo
On March 6, 2024, the California Court of Appeal affirmed all aspects of Shapiro Arato Bach’s earlier summary judgment victory on behalf of Big Grrrl Big Touring, Inc. (the touring company for the recording artist Lizzo) in a breach of contract action relating to the cancellation of the “Virgin Fest Los Angeles” music festival. The appeal concerned whether Lizzo and other artists who were scheduled to perform at the festival were entitled to keep their performance fees under the terms of their contracts with VFLA—the festival organizer—following VFLA’s cancellation of the festival in May 2020. Lizzo had been scheduled to headline the first night of the festival.
In a unanimous published opinion, the Court of Appeal accepted Shapiro Arato Bach’s argument that to retain the fee following the festival’s cancellation, Big Grrrl only needed to establish that Lizzo would have been “ready, willing, and able” to perform at Virgin Fest if the COVID-19 pandemic had not occurred. The court held that the force majeure provision at the heart of the dispute was “not reasonably susceptible to VFLA’s interpretation,” under which Big Grrrl could only retain the fee if it could establish that Lizzo would have been willing to perform in the face of the pandemic and related government restrictions.
The court held that VFLA’s interpretation suffered from “fundamental problems,” and that Big Grrrl’s “interpretation of the force majeure provision is the only correct reading that gives meaning to each part of the provision and makes it definite and capable of being carried into effect while reflecting the intention of the parties.” Moreover, the court agreed with SAB’s argument that, even if the language of the contract was susceptible to VFLA’s interpretation, the parol evidence favored Big Grrrl’s interpretation and would require affirming the grant of summary judgment. The court also held that Big Grrrl’s interpretation did not result in an invalid forfeiture or penalty, and did not make the performance contracts unlawful.
The Shapiro Arato Bach team representing Big Grrrl included Cynthia S. Arato, Julian S. Brod, and Avery D. Medjuck. Shapiro Arato Bach’s opposition brief can be found here. The court’s opinion can be found here.