‘Busker’ vs. brawn

NEW YORK Ruling on a case that has fascinated Broadway’s power players for over two years, an arbitrator handed Tommy Tune a major victory Aug. 24, when he dismissed a novice producer’s claim that the star broke his contract to headline her production of a new Broadway musical.

By the end of the week, many of those players were still trying to figure out how a case that nine months ago looked like a sure win for producer Kim Poster had turned into a ringing rebuke. The hearings, which began May 26, 1992, pitted Poster and her experienced general manager, Peter Neufeld, against ICM agents Sam Cohn (who represents Tune) and Bridget Aschenberg.

The case divided the theater community. Some insisted that Poster was treated harshly and unfairly by an entrenched establishment unwelcoming to newcomers, especially women. Others claimed that because of her arrogance, Poster blew the chance to make her producing debut in a prestigious Tommy Tune vehicle.

Cohn and company are forces no one takes on lightly. But Poster had a signed production contract and the support of some of Broadway’s most powerful denizens , including Shubert president Bernard B. Jacobs, Jujamcyn president Rocco Landesman and producer Emanuel Azenberg. They testified during the arbitration that financial demands placed on Poster by Cohn and Tune were virtually unprecedented.

Poster claimed that on Aug. 2, 1991, Tune terminated a contract to star in her production of “Busker Alley,” a musical by A.J. Carothers and Richard M. and Robert B. Sherman based on the 1938 Charles Laughton movie, “St. Martin’s Lane.” Cohn had informed her the day before that Tune would not do “Busker” because she’d failed to satisfy a clause he’d written into the contract obligating her to raise $ 4.5 million (60% of the show’s $ 7.5 million capitalization) by that date.

It was this requirement — Aug. 1 was 10 months before the show’s scheduled Broadway opening on May 1, 1992 — that stunned industry veterans, who characterized it as a wholesale departure from standard practice. And since Poster had already postponed the show twice to accommodate Tune, it seemed unreasonable that he would then hold her to the hour and date of the contract when more than $ 3 million of the financing was indisputably in place.

Even the arbitrator, New York University law professor Daniel G. Collins, concluded in a Dec. 23, 1992, letter to both sides of the dispute that Poster had jumped through every hoop held up for her — and that Tune appeared to have compelling financial reasons to want Poster to fail. Aug. 1, Collins noted, also happened to be Tune’s deadline for extending his run in a national tour of “Bye, Bye Birdie,” which promised to bring him $ 60,000 to over $ 70,000 per week.

But the issues that Collins found compelling in the cool of December faded in the August sun, after the ICM contingent of Cohn, Aschenberg and lawyer Victoria Traube had had their say.

Ultimately, the arbitration turned on one investor in the show. Cohn and Traube claimed that Eric Aschenberg, who’d pledged $ 1.5 million, was unknown in the theatrical community and not a credible investor, notwithstanding the fact that he’d already come up with $ 125,000 in cash. They also asserted that Eric Aschenberg was a fraud who had previously claimed on several occasions that he was Bridget Aschenberg’s cousin. That was enough to make Tune “insecure,” a legal term that allowed him to terminate the contract.

In December Collins had written that the fact that Bridget Aschenberg “disputed a family relationship to one of Poster’s investors and charged him, without any corroboration, with being dishonest and a ‘phony,’ is not the kind of evidence thatgives grounds for insecurity, particularly where, as here, that investor provided substantial front monies.”

But by August, Collins believed that Cohn, Traube and Aschenberg had supplied enough corroboration to justify terminating the contract.

What was that corroboration? According to the Aug. 24 ruling, two pieces of information: One was Bridget Aschenberg’s portrayal of Eric Aschenberg as a shady character. In his ruling, Collins, who clearly took her testimony seriously, describes her without a trace of irony as a “disinterested, but careful source” despite the fact that she is a partner of Sam Cohn.

The other key testimony came from Cohn himself, who said that a Broadway general manager whom Poster offered as a reference for Eric Aschenberg had “told him on a ‘confidential’ basis to be ‘extremely careful’ ” with Eric Aschenberg. That’s the strongest evidence that appears in the ruling; no mention of him being a crook or a fraud or an unreliable investor.

Fakes and liars

Last week Collins reiterated his belief that Bridget Aschenberg had “no personal interest” in the case. Collins says he was “absolutely convinced” by Cohn’s, Traube’s and Bridget Aschenberg’s testimony that Eric Aschenberg’s money probably wasn’t real. Indeed, by the time he delivered his ruling he was moved not only to dismiss Poster’s claim but to call her a liar in the bargain.

Many who’d followed the case were appalled by the outcome.

“This is a terrible decision for the whole community,” one of Broadway’s most eminent producers concluded last week, echoing a widely-voiced sentiment. “It says that a signed contract means nothing if you have a powerful enough agent.”

The right to produce “Busker Alley” has since reverted to the authors, and Tune and director/choreographer Jeff Calhoun are hoping to stage the show under different auspices next fall.

Reached at his home in Los Angeles, book writer Carothers expressed relief that “the air is clearing.””It’s been frustrating to have things on the shelf so long,” Carothers said. “We hope it will now move forward with dispatch.”

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