Madonna (search) is in trouble. Her American Life album drops from No. 1 to about No. 8 this week, selling a paltry 65,000 copies. That's down from 235,000 the first week.
Of course, the whole record business bottomed out last week, with the top 10 albums selling fewer than 750,000 copies. Rapper 50 Cent (search) regained first place, and two albums connected to American Idol did well enough to make the top five. Additionally, Cher (search) continues to astound with her greatest hits collection.
But woe is Madonna, who looks like she will have her first real flop in two decades. At this rate she'll be lucky to hit half a million copies. A Madonna album is so expensive to market — what with flying everyone around first class and catering to all whims — Warner Bros. must be in a panic. Stay tuned.
Imagine if the story of Erin Brockovich had turned out differently — if she'd done all that research work for her law firm and in the end been told, "You were difficult to work with so you don't get anything."
That's essentially the story of Joyce Moore (search). Joyce and her husband, legendary R&B singer Sam Moore, laid out hundreds of thousands of dollars in expenses over the last 10 years in a class action lawsuit representing recording artists over pension fraud. But the Moores — who claimed $1 million in total expenses for a decade of office expenses, travel, phone, and consulting — were recently told by a federal judge they'd only be able to recoup $25,000. The result is a financial blow of huge proportions.
Sam Moore's numerous hits as one half of the hit duo Sam and Dave included "Soul Man" and "Hold On, I'm Coming." I've known the Moores for a little over four years; they are both in Only the Strong Survive, the documentary I've co-produced, although this issue is not part of the film.
But it is undeniably a big part of their lives. Ten years ago the Moores — who take care of two of Sam's children and two of his grandchildren — became lead plaintiffs in a lawsuit against AFTRA (the American Federation of Television and Radio Artists). That's because Sam was told in 1992 that his pension check from the union would come to a shocking $67 a month. It turns out the record companies for which he recorded never properly reported his royalties to the union.
This is a problem that does not affect only R&B singers. Members of famous rock groups like the Eagles are in the same boat. This is why AFTRA has more than a $1 billion surplus. The other plaintiffs in the case include the estates of Mary Wells ("My Guy") and Jackie Wilson ("Higher and Higher"), as well as living artists such as The Chambers Brothers ("Time Has Come Today"), Jerry Butler ("For Your Precious Love"); and Brian Hyland ("Gypsy Woman").
Like Erin Brockovich, Joyce Moore is tenacious and bright. She immersed herself in learning pension law. She quickly became an expert, with the intent to save her husband's future as well those of their friends and peers who'd been ripped off by the record companies and were now destitute.
The lawyers who were hired to bring a class action suit against AFTRA treated her that way. She is listed in court documents as a "paralegal" to the case. Attorneys from the Philadelphia firm Miller Faucher wrote many memos and letters to Joyce Moore praising her for her work, asking her for advice and thanking her for making "a valuable contribution" to the case.
But now Miller Faucher's Ellen Merriwether, as well another lead attorney, William McCracken of Augusta, Ga., have blocked the Moores from getting the bulk of their reimbursements. Both McCracken and Merriwether made declarations to the federal judge in Atlanta, Clarence Cooper, that Joyce Moore, in sum, had acted independently and out of her own pocket of her own free will.
It should be noted the lawyers finally settled the case against AFTRA for a measly $8 million. The lawyers complained they could have gotten twice as much for the recording artists -- but that would have meant waiving all their future rights. The lower number, with the right to sue intact, was advocated by the Moores, who disagreed with McCracken and Merriwether.
"They were going to sell the whole thing out," said Moore, who made sure the record company portion of the case is still active and in litigation. That could be worth potentially hundreds of millions of dollars.
In the end, the lawyers' fees (including another firm, Feldman Rifkin in Philadelphia) have eaten up 30 percent of the settlement.
I asked William McCracken last week what happened, why the Moores got so little. He said, "Joyce at different times acted as a paralegal, legal secretary and assistant.
"I have no idea why the judge didn't award the Moores more money in expenses," McCracken said. "I took a neutral position."
But he also said he stood by his declaration to the court, which goes to great lengths to paint the Moores as freeloaders who were only out for themselves in the class action suit. In his statement to the judge, McCracken said he was "unaware of any sums whatsoever Plaintiff Moore may have advanced other than for the benefit of his wife to assist him individually ..."
Unaware? In July, 1996, Joyce Moore sent McCracken a letter via Federal Express describing what a hardship it had become to continue advancing personal funds for the case. Moore wrote to McCracken: "I'd like to have some assurance that I'm going to recover the hard cash that I've advanced the cause" and asked for a "comfort level."
McCracken told me: "I never got that letter. There was another lawyer on the case who was around then, and I think he must have taken it."
Moore not only has the signed Federal Express receipt, she has all her bills, in detail.
McCracken says of a woman whom he describes has having endless persistence in all matters: "She never mentioned it to me."
Moore said: "They absolutely knew. Dennis Faucher knew about it even in 1998. All the main plaintiffs knew it too."
As for Merriwether, she too gave a statement to the court painting Joyce Moore as someone who spent personal funds on the case voluntarily. She said: "It is impossible to tell without an itemization of the work performed, very little, if any of the work was authorized by Petitioning Counsel or actually benefited the suit."
This is the same Ellen Merriwether who identified Joyce Moore to the judge in court as McCracken's "paralegal." Moreover, there's plenty of documentation of Miller Faucher's correspondence with Moore. For example: on July 10, 1998, Merriwether asked Moore in a memo to answer four complicated questions about pensions. "Is there a monthly, yearly, or lifetime maximum pension payment?" the lawyer wrote. "What happens to your pension if you die (a) before you retire; and (b) after you retire and are drawing on your pension?"
Her dutiful paralegal submitted lengthy and complete answers.
And there are many citations from Merriwether's law firm to Moore confirming the latter's role. On October 29, 1997, Dennis Faucher wrote to Moore: "You are providing a major contribution to the process."
However, at a hearing to determine expense reimbursements earlier this year, Faucher seemed confused about how to describe Moore, who — along with AFTRA and many others — had disagreed with the original proposed settlement. According to the court transcript, he told Judge Cooper that Moore deserved no compensation for being "counterproductive." He told the judge: "She definitely did not work for us. She did not work at our request."
Then, once the judge digested that, Faucher backtracked and added: "Since reaching the settlement, she has played a productive role."
"But the damage was done," said Moore, who was asking for $50 an hour for her time for 10 years' worth of work. Merriwether and McCracken billed the plaintiffs an average of $450 an hour according to court documents.
Merriwether told me yesterday: "We never had any idea that she was keeping track of her time and expecting to be paid or reimbursed for it. The district court judge ruled against her and now it's on appeal. Joyce was helpful in getting the case started but a lot of what she did was interfere in the litigation. The issues are the standards for compensation."
The Moores are appealing Judge Cooper's ruling. And they are considering taking action against the law firms. "We weren't trying to make a profit," Joyce Moore said. "But we also weren't expecting to have to go into bankruptcy either."