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POL COLUMNS « The Capital Market Crackup | Legal Imperialism »

February 26, 2007

The long, long, long goodbye

By Walter Olson

(This piece appeared in the Times of London Online, 6-27-06)

In America, the entertainment business furnishes much fodder for lawsuits, which is only fair since the lawsuit business furnishes much fodder for entertainment. Case in point: now that Barbra Streisand has scheduled a back-from-retirement concert tour, some fans say they’re miffed at having paid top dollar for tickets during her previous "retirement" tour on the assumption that would be their last chance to hear her. And so they’re talking about tagging the singing legend with a class-action lawsuit.

Any fan who truly relied on a figure like Streisand to keep to her vow of retiring, of course, would have to be touchingly unacquainted with show business history. The beloved artist's multiply repeated farewell tour has been a standing joke since at least the days of Sarah Bernhardt and Nellie Melba. A host of Sixties and Seventies acts, notably The Who and KISS, have kept this less-than-dignified tradition going to the present day, while Cher pulled a variation by stretching out her farewell tour to three years' duration.

So would a lawsuit in such circumstances be legitimate? After all, most trade authorities frown on the furniture or rug store that claims to have been "going out of business" for years. In fact, as a commenter at pointed out, John Farnham, the Australian pop singer, was denounced to his country’s consumer protection commission by a supposed fan in 2004 when he took to the road again not long after a concert tour billed as "The Last Time". The complaint was rejected and later the supposed fan, a struck-off solicitor, admitted he'd never actually attended the original concerts.

One possibly relevant American precedent comes from, of all places, the automotive business. Years ago it appeared that convertible cars were going to vanish from production and some enthusiasts bought the only model remaining, from General Motors, on the strength of its buzz as "the last convertible built in America". Instead, fashions shifted, convertibles came back into production and lawyers sued GM for loss of the cars’ specialness and associated resale value. Their claim fell short, however: they had trouble showing that the car maker had itself made any such promises, as opposed to standing by while others chattered about the cars being the last of their kind.

Such lawsuits thrive in the first place, of course, because American law is peculiarly welcoming toward the class action format. Recently, following the revelation that James Frey, the author, had invented whole episodes in his sensational autobiographical bestseller A Million Little Pieces, lawyers filed at least a dozen suits around the US asking to represent aggrieved readers. One suit demanded from publishers not only refunds for all book buyers but compensation for the lost time spent reading the book. When Sony was caught using a non-existent reviewer to blurb several of its movies, the resulting class-action suits resulted in a deal in which a grand total of 170 customers filed verified claims, resulting in an aggregate payout of $5,000 by the studio, while lawyers representing the class got $458,000.

A round of jokes at Barbra's expense, rather than a trip to court, would afford the best consumer protection here.

Walter Olson edits and and is a senior fellow at the Manhattan Institute. He is also the author of The Rule of Lawyers.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.