Don Walser’s Legal Saga Comes to an End
Judge rules for family for breach of contract, but not rescission
By Austin Powell, 12:34PM, Tue. Jan. 25, 2011
Seven months after the final arguments, the decade-long legal saga between the late Don Walser and his estate against his former record labels – Antone's Records, Texas Music Group, and Texas Clef Entertainment – finally came to an end today as Judge Craig Gargotta issued his judgment and a 46-page opinion in the case.
Craig Barker, the Walsers' lawyer, provided this summation.
"As you can see, the judge ruled for the Walsers on their breach of contract claim but denied the other claims. Under the breach of contract claim, Walsers are entitled to damages of $28,161.41, interest of $1,025.15, and attorney fees (to be determined by subsequent filing/hearing).
As to their specific case, the Walsers are pleased that the court ruled in their favor on the most obvious cause of action, breach of contract. They are disappointed that the court did not agree with their claim for rescission and return of the masters, even though the president of the defendants, Randy Clendenen, repeatedly admitted that they knowingly refused to honor their primary contractual obligation (the obligation to tender semi-annual royalty statements and payments) -- evidence that seemed to clearly establish that the Walsers had no viable legal remedy under the contract, which would make rescission seem particularly appropriate in this case. As legal writers have wondered in the past, one has to wonder what options do artists have when labels simply refuse to comply with their main responsibility under the contract and when they (the artists) don't have the money to sue and hold them accountable?
The Walsers are MOST pleased with the overall outcome of this journey in which their lawsuit ultimately forced the debtors into bankruptcy which in turn:
-- allowed the masters for all the artists of all the labels to be ripped away from those who refused to account and pay royalties; -- allowed the masters to be placed with a reputable company in New West Records; -- allowed the creation of a pool of $275,000 (New West's asset purchase price) to help pay all the artists; and -- allowed the zero-ing out of all the artists' unrecouped balances (even though the Walsers account was already recouped).
Many people deserve credit for all the work they put in on the overall bankruptcy, including Nikki Rowling, the chair of the creditors' committee, which was made up of representatives of artists, and several lawyers besides me and several other music industry professionals who worked for the benefit of they respective clients (artists, writers, publishers) as well as the overall creditor body -- either pro bono or for token fees. The lawyers helping the creditors committee in addition to their clients included: Chris Castle, Amy Mitchell, John Alvis, Jim Hoeffner, Chris Trickey, Catherine Robb, and Josh Grier. Paula Batson also served on the creditors committee. For her work on this, I have nominated Nikki Rowling to receive the 4th Cindi Lazzari Artist Advocate Award, awarded annually by the Entertainment and Sports Law Section of the State Bar of Texas. In many ways, Nikki picked up Cindi's torch on protecting artists' rights in record label/distributor bankruptcies.
One of the unsung heroes of this overall great outcome for the music community is Broadus Spivey, the legendary trial lawyer who financed the Walsers' lawsuit and guided the five years of litigation that triggered the bankruptcy that enabled the masters to finally get away from those who would not pay and find a home with a reputable company. Spivey is a former president of the State Bar of Texas, the International Academy of Trial Lawyers, and the Texas Trial Lawyers Association. He loves Don Walsers' music and willingly took on the cause for Don's heirs, as he has done for so many others in a career distinguished by his fights for the powerless."