The Chicago judge who last week dismissed a class-action suit filed against Creed by four disappointed fans has given the plaintiffs one last chance.
Circuit Court Judge Peter Flynn dismissed the case but left the fans' attorney, Daniel Voelker, the option of amending the suit and refiling within 30 days. Flynn also offered an alternate way to approach the complaint. "He thought that if the case proceeds at all it should be on a basis of 'frustrated commercial expectations,' " Voelker said. "It's unusual for a judge to give what might be viewed as legal advice."
Creed attorney Rob McNeely had a different take on the judge's decision. "He absolutely gutted their lawsuit. He said to their lawyer, 'You're asking judges to become rock critics. You're asking us to decide what's a good show and what's a bad show, and that's no business of the judiciary.' And he said, 'If I were to agree with you, it would have a chilling effect on the arts.' "
The fans' suit claimed the band should be held responsible for a December show in which frontman Scott Stapp allegedly appeared drunk, had trouble singing and passed out (see "Sloppy Creed Show Has Fans Suing For Refunds"). Stapp later said he was simply being dramatic (see "Creed Singer Defends 'Symbolic, Personal Gesture' He Made At 'Drunken' Show"). The suit asked the band to refund ticket and parking costs for all 15,000 fans who attended, at a cost of about $2 million.
In its reshaped form, the suit will target Creed for failing to deliver the kind of professional, high-quality performance fans have come to expect. The suit will again allege that Stapp appeared to be intoxicated, was unable to sing properly and passed out.
"Creed have this reputation in the industry as being a band you can count on," Voelker said. "They don't act in a manner you'd expect from Jim Morrison, Janis Joplin or Jimi Hendrix. So by being intoxicated during a performance, concertgoers are entitled a claim for relief."
Voelker said there is legal precedent to back up his complaint, citing a case in which a man sued a painter who had been commissioned to paint a portrait of his wife. The painting didn't look like the woman, so he sought to recover the fee. The defendant argued that since he was an artist, appreciation of his work was a matter of artistic interpretation. A judge disagreed.
"The lead singer was in a condition he shouldn't have been in onstage," Voelker said. "It's analogous to an opera singer having laryngitis and performing anyway. The audience did not get what it was entitled to."
McNeely said that claim holds no water. "He already tried using that argument in the original case and the judge dismissed it," he said. "At a concert there's no contract between artist and ticket holders. A ticket is just a license to be able to go into an arena and be there to the exclusion of somebody else. It's a license to use a premises. It's not a license of a quality performance. It's not even a guarantee that someone's gonna play."
In his original suit, Voelker basically claimed Creed had breached their contract by playing a terrible show and that a substandard performance was tantamount to a cancellation. That contention didn't hold up because Judge Flynn agreed with the defendants' claim that as long as they took the stage, Creed could play one note, thank the crowd and walk off and it would hold up as an appearance. The decision was based on a previous case in which a judge determined that fans couldn't sue the Chicago Cubs for having a bad season.
McNeely said even if Voelker rejiggers his lawsuit, his clients will no longer be able to file a class-action suit because such a case requires everyone involved to have experienced the same loss for the same reason, and there's no way to prove that all 15,000 members of the crowd were unhappy with the show.
"What Judge Flynn did is take a $2 million case down to a $227 case," the amount Voelker's four clients paid for tickets and parking, McNeely said. "And he did if for defense of the arts. We're very pleased with his decision."