Concert promoter wins $150K after Ne-Yo is no-show 

Posted: 8:37 pm Wed, August 25, 2010
By Barbara Grzincic
Daily Record Managing Editor/Law

A $1.5 million lawsuit against R&B star Ne-Yo and a Silver Spring-based booking agent ended this week with verdicts totaling about one-tenth that amount.

But to the lawyer for concert promoter Kenyohn Clark, who survived an attorney general’s fraud investigation after the Grammy Award winner failed to show at a New Year’s Eve event in 2008, the win goes beyond money.

“His name was mud,” attorney Jason C. Brino said of Clark, his client. “This thoroughly vindicates him.”

On Tuesday afternoon, Judge Philip T. Caroom ordered Ne-Yo and Esterman Entertainment Inc. to pay Clark nearly $132,000 for Ne-Yo’s last-minute cancellation of the 2008 event.

Caroom also ordered Mike Esterman personally to pay $24,565 in punitive damages for intentionally misrepresenting some elements of the deal, such as the amount of his commission.

The decision comes three weeks after the end of a four-day bench trial in Anne Arundel County Circuit Court. Brino, an entertainment lawyer with Bowie & Jensen LLC in Towson, described the case as hard-fought.

“The defense tried to throw everything at us they could,” he said.

Defenses rejected

Among other things, each of the defendants argued they were not actually parties to the contract, the judge noted. They also claimed they were not to blame for any damages Clark sustained, and that he was inexperienced and hadn’t sold enough tickets to make a profit even if Ne-Yo had been able to make it to the venue.

The singer, who missed the concert because of plane trouble returning from Africa, also said his team had repaid Clark’s $90,000 deposit to Esterman, who kept it. The judge rejected that defense, saying Ne-Yo (whose given name is Shaffer Smith) knew the refund belonged to Clark.

“Smith himself testified that he knew in his ‘heart of hearts’ the funds should have been returned to [Clark],” Caroom wrote. “There hardly could be a more clear acknowledgment as to what would be fair and equitable under the circumstances.”

John A. Scaldara of Offit Kurman, who represented Ne-Yo at trial, did not return a call for comment.

As for the poor ticket sales, Caroom found they were due in no small part to the defendants’ actions, including but not limited to Ne-Yo’s failure to record a “drop,” or radio spot, confirming that he would be at the event.

On the Web

The judge also found that Clark acted reasonably in finding and vetting Esterman’s credentials on the Internet.

After citing figures from a Pew Report and the U.S. Census Bureau, Caroom wrote, “the Court now finds that a ‘reasonable man’ in the United States in present times properly may (and does) rely on internet research to assist in making decisions as to important business transactions.”

On his website, Esterman offers to connect party-throwers with celebrities like Ne-Yo, Carmen Electra and a bevy of beautiful people from TV shows including “The Bachelor” and “Rock of Love.” Ne-Yo appears in a “drop” for Esterman on the site.

Also on the site, Esterman has this “Best Advice” to offer: “Always be honest with the deals at hand or they always come back to bite you in the ass. Keep a good name as I’ve strived to do all these years. The bigger you get or become, the harder they try to throw rocks at you.”

Esterman wasn’t taking phone calls on Wednesday, saying only that questions could be submitted by e-mail. He did not answer an e-mail asking about the quote on his website.

Soon after that e-mail was sent to Esterman, though, one arrived from his attorney, Brian D. Lyman of Hillman, Brown & Darrow P.A. in Annapolis. It was not clear if Lyman was responding to the e-mail to Esterman or a telephone message left at his office.

“My client is weighing his options and determining if a settlement on satisfaction of the judgment can be reached with the Plaintiff and [Ne-Yo] in advance of filing an appeal,” Lyman wrote. “I have no further comment at this time.”

Previously, Brino said, Esterman offered to settle the suit by returning $76,000 to Clark in exchange for a release of all claims. No other settlement offers were made, Brino said.

No word

Clark, a decorated Iraq War veteran, had acquired experience in the service arranging USO entertainment, according to Caroom’s opinion. When he returned home to Kent, Wash., he formed Wet Entertainment LLC.

The New Year’s Eve concert in Bellevue, Wash., was designed “to launch his brand,” Brino said.

According to the complaint, Wet Entertainment learned Ne-Yo’s flight would not make it in time on the afternoon of the event, and attempts on behalf of Esterman to find a last-minute substitute were unsuccessful.

Clark and Wet Entertainment filed suit in February 2009. The complaint was filed in Anne Arundel County because that’s what the contract specified, Brino said.

In debt and with no credibility left among his contacts in the area, Brino said, Clark gave up on the idea of becoming a promoter and is now a defense contractor in Afghanistan.

Clark took leave to be here for the trial, but was back on the job this week, Brino said. As of press time Wednesday, the lawyer had not been able to reach his client to tell him of the decision.