Can You Sue a Tardy Diva?

“Music fans should be on notice that concerts could start really late sometimes. It seems like a tough one to win.”
Photo: Kevin Mazur

Madonna took the lyrics of “Hung Up” a little too literally last month, after the queen of pop started her trio of concerts at Brooklyn’s Barclays Center more than two hours late each night. The time? It really does go by so slowly when you’re waiting with 20,000 fellow attendees in cone bras and wedding dresses. A duo of aggrieved fans decided to take it a step further, though, and sue Madge over her delayed start, accusing her in a class-action lawsuit of false advertising and negligent misrepresentation.

A perpetually tardy performer, Madonna has been sued twice in the past for similar infractions. This new suit hinges on the claim that exhausted ticket-holders had to “get up early to go to work” and “take care of their family responsibilities the next day,” which they allege are consequential enough for damages. But … are they? Is this just a normal rite of passage for seeing an illustrious diva live, or are there legitimate legal complexities for being fashionably late? Benjamin Gross, general counsel at MediaLab and an adjunct lecturer of the law of music at Columbia University, was summoned to weigh in on the matter. “It maybe says something a little bit about your fanbase,” he says with a laugh. “If your fans are getting sleepier, it might be because you got older fans than you used to.”

My first thought reading about this lawsuit was, Oh wow, this is kind of the death of rock and roll and pop star outrageousness. So what if she was late for a show? But people have been pretty even-handed with their opinions of the merit of this case.
I had the same reaction. When I searched the case, everyone on Reddit seemed to be like, Good! About time! They were really happy about this. I agree with you, the reaction has been surprising.

Do you find this legitimate or a stunt tactic?
I’m of two minds about it. I’m sympathetic to the plaintiffs as a sleepy person myself. I would probably have left if the concert started two hours late. But there’s a concept in the law broadly about having constructive notice or actual notice of something that’s a defense of negligence or anything like that. Music fans should be on notice that concerts could start really late sometimes. It seems like a tough one to win. Did you notice that the firm doing this has sued Madonna twice about this already?

Yes, and both of those fizzled out and were voluntarily dismissed. Does this set a bad precedent moving forward?
I would speculate that both of those lawsuits settled, based on what I read. Anyone who went to those concerts — since these are class-action complaints in principle — should have gotten a notice of the settlement and a check. You know when somebody sues Apple about a random battery thing and you happen to have bought that product, so you end up getting an $8 check in the mail? It’s exactly what this is. I doubt the plan is to litigate this to completion.

What do you imagine each attendee will pocket from this? I attended the same show and look forward to the riches that await me!
What is the average ticket to a Madonna concert cost? Around $200 for this tour? I’m sure it will be a fraction of that. My educated guess would be $20. The whole point here is that they’re not willing to refund people for this.

What is the point of the suit if it’s not for a huge profit?
With these types of class-actions, the party that stands to benefit the most are the attorneys who are filing it. They get a percentage of the total settlement, whereas each individual plaintiff being the attendees of the concert, will each get their own share. The attorneys benefit the most.

I’ll go line by line about a few notable things these fans are alleging. The concert was advertised to start at 8:30 p.m. but didn’t begin until 10:30 p.m., so they left the venue around 1 a.m. when the show ended. The complaint reads they “never would have agreed to purchase the tickets” if it was pushed to two hours later. Is this sound legal logic?
In principle, when you enter into a contract when you purchase something, you have certain expectations that you’re relying on. If those are proved to be incorrect and were misrepresented by the seller, that’s sound in theory. If this were ever to go forward, there are a lot of defenses we’d see Madonna and her team make. Presumably there are terms and conditions they have with Ticketmaster with these tickets. If they had language around potential delays it wouldn’t surprise me. There’s also the possibility that there was no intent here. Maybe Madonna was sick, or maybe she had a valid excuse for being late. It’s hard to know. There’s also the question — and this is the funniest thing for me — what are the damages here? It’s like, the damage is you have to stay up later.

These fans left the Barclays Center and, despite being dazzled by a very well-reviewed Madonna show, lament that they were “confronted with limited public transportation, limited ride-sharing, and/or increased public and private transportation costs.” Are those damages?
I guess so. But this is New York City. Is it actually that much more expensive to get an Uber at the Barclays Center two hours after you were planning on leaving? The subways and buses still run at night. If they could prove that, there would be some amount of damages there. If the plaintiffs had a babysitter and they needed that person to stay on longer? If you came into work sleepy and were fired? There are countless other damages you can imagine. But this is tough and tricky in a class-action. There needs to be commonality among the damages for the whole class. Those things aren’t true for every individual fan who was in that concert.

My favorite part of this complaint is that the fans gripe about Madonna’s “flippant difficulty” while starting the show. How can something like that be proven?
With that line, it’s more relevant to the promoters. They sued Live Nation and the Barclays Center as well. They’re basically trying to say Live Nation and the Barclays Center knew Madonna has demonstrated “flippant difficulty” in having timely performances in the past, but they still promoted her show as starting at 8:30 p.m. despite Madonna always being late. If the phrase is being used to suggest the promoters were aware or should’ve been aware this wasn’t going to start on time, that’s why they’re also being sued.

Let’s say there was a strict noise curfew in place in a city. Because of this, Madonna’s lateness means the concert was cut short and attendees didn’t get to experience the full show. Does a scenario like this open up a more legitimate lawsuit?
Certainly if Madonna shows up three hours late for a show, plays “Ray of Light” and walks off, and fans are refused a refund, she’s not delivering the services that were promised in an obvious and material way. That would almost certainly be actionable. If it’s a shorter show than usual, it goes into the scope of reasonable expectation. What would a reasonable Madonna fan expect? A reasonable Madonna fan might expect that a show could be a little bit shorter or start late. It becomes a question of when she crosses the threshold into something no reasonable fan would expect.

Here’s something a little off-topic but relevant. Madonna has marketed her tour as a celebration and retrospection of her career, and she’s played a lot of her classic hits from the ‘80s. If she never played “Holiday” or “Into the Groove” or any of those songs and solely kept to her most recent work, would that be considered fraud?
I don’t think it would be fraud. But could fans sue under false advertising or deceptive business practices? That could happen. Music fans are usually on notice that artists play what they want at these shows no matter what — at least that’s my experience. If Madonna marketed these concerts like, If you were too young in the ‘90s to hear “Vogue” live, this is your chance!, and didn’t play it, then I could see that being a case. That would be more egregious than starting late. I mean, that would be a huge bummer.

What these three lawsuits have in common is that they’re from fans. However, I can’t help but think about the perspective of the venue service workers, who’s time on the clock was also extended. Do you think workers have a stronger case for negligence than attendees, if any of them decided to sue?
I don’t think they would have a stronger case. I suspect the venue workers at the Barclays Center are unionized. Their remedy would be through their union and whatever their contract is with the venue. One thing that’s rough, at least in New York, is that overtime is attached to non-exempt workers over 40 hours a week, but it doesn’t mean working later than expected. That would be covered in your relationship to your employer. Hopefully in the union rules for them, there would be something for additional pay if you’re forced to work much later into the night than expected. There might even be something where Madonna’s team would have to pay Barclays Center more money for occupying the space and not vacating the space at the time they were supposed to. But direct recourse for the workers against Madonna is harder for me to see.

When Madonna goes up on stage and declares, “there’s something that you all need to understand, and that is that a queen is never late,” would that be a good defense in court?
She actually said that?

Verbatim.
Cool. It’s basically like sovereign immunity. That’s a hot issue. The Supreme Court is about to weigh in on that. Madonna can see what they say.