Months after the dust settled on Fyre Festival, the “luxury” music festival gone awry, and after the failed-festival’s attendees had lodged their individual multi-million dollar lawsuits, citing everything from negligence to fraud, a handful of new lawsuits were filed in conjunction with the bankruptcy filing of Fyre Festival LLC. In a quest to recover the $16 million-plus that Fyre Fest co-creator Billy McFarland raised to stage the ill-fated festival, court-appointed liquidation trustee for Fyre Fest, Gregory Messer initiated a handful of lawsuits of his own against the likes of Kendall Jenner and Emily Ratajkowski, among others, calling foul – or better yet, “fraudulent transfers and actual fraud.”
Messer’s August 2019-filed lawsuits – which seek to avoid payments of hundreds of thousands of dollars to models and musicians linked to the fraudulent festival that drew eager festival-goers, who shelled out between $1,500 and $250,000 for tickets, to the Bahamas in 2017 – are still underway in federal bankruptcy court in New York, and as of the close of the year, developments were afoot.
As of December 30, Messer’s case against Kendall Jenner (in both her personal and corporate capacities), in which he is seeking to claw back the $275,000 that the model and reality star was paid by Fyre Media in connection with a January 2017 promotional Instagram post, is headed to mediation as agreed upon by both parties.
As for the lawsuit that Messer initiated against Emily Ratajkowski and her agency DNA Model Management, that case – in which Messer claims that the model was paid a whopping $299,999.99 to promote the problematic festival – is proceeding in federal bankruptcy court.
In the suit against Ratajkowski and DNA, Messer asserted that Ratajkowski entered into a contract with Fyre Media in furtherance of which she would, among other things, post a single Instagram post to compel individuals to buy tickets to attend the festival. Despite the contract requiring Ratajkowski to “include all necessary disclosures in her social media posts made hereunder to comply with the Federal Trade Commission (“FTC”) Guides, which may include the hashtag: #spon or #ad,” Messer argued that no such disclosures were made (and Fyre Fest’s marketing team, Jerry Media, seemingly did not monitor and/or require any updates to the disclosure-less post, as required by the FTC).
More than that, Messer argued that Ratajkowski failed to inform her “fans and followers that [she] ultimately decided not to attend the Festival because of problems with the Festival of which [she] and [her] agency was uniquely aware.”
In their formal responses to Messer’s complaint, which were filed in December 30, DNA and Ratajkowski almost uniformly deny the assertions made against them or claim that they lack sufficient knowledge to make a statement one way or other, while asserting a list of affirmative defenses that (allegedly) weigh in their favor.
According to her answer, Ratajkowski and her corporate entity EMRATA, Inc. flatly deny or state that they “deny [having] sufficient knowledge or information” to either affirm or deny the majority of Messer’s assertions with some exceptions. For instance, Ratajkowski denies that she failed “to inform [her] fans and followers that [she] ultimately decided not to attend the Festival because of problems with the Festival of which [she] and [her] agency [was] uniquely aware.” She also denies Messer’s claim that her Instagram post helped to “successfully promote the fantasy that the Festival would be populated with models and beautiful people and that fans would be missing out if they were not there.”
As for what she admits in her answer, Ratajkowski asserts that she did “enter into an agreement with Fyre Media, Inc. … on or about December 10, 2016, whereby Ratajkowski agreed to provide certain services in relation to the Festival, including: (i) appearing at a video and photo shoot in December of 2016, and (ii) uploading a single image to her Instagram account (@emrata) using the hashtag: ‘Fyrefestival.com Join #fyrefestival’ on December 12, 2016.”
Counsel for Ratajkowski “avers that Ratajkowski fully and completely performed each of her contractual obligations thereunder,” and thus, was “Fyre Media, Inc. paid $250,000 to DNA on December 12, 2016” – not the $299,999.99 figure previously cited by Messer – “which (less commissions and fees) was released to EMRATA on December 30, 2016 … for Ratajkowski’s full and complete performance of her contractual obligations under the agreement.”
The model denies, however, that she “did not disclose to the public that she was paid or that such payment was a ‘Fraudulent Transfer,’” but does admit that her “Instagram post was removed from the platform and reposted on Ratajkowski’s Instagram account (@emrata) in compliance with FTC Regulations.”
In her defense, Ratajowski sets forth eleven affirmative defenses (i.e., facts other than those alleged by the plaintiff, which, if proven by the defendant, defeat or mitigate the legal consequences of the defendant’s otherwise unlawful conduct), including that Messer’s case is barred by the relevant statute of limitations, and that she “received [the $250,000] transfer in good faith and without knowledge of fraud,” among others. The model’s counsel also argues in her defense that she contracted with Fyre Media LLC – and not Fyre Festival LLC – and thus, was engaged with a “non-debtor third-party [and is] not a creditor” of Fyre Festival LLC.
*The case is Gregory M. Messer v. DNA Model Management, LLC, EMRATA Inc., and Emily Ratajkowski, 1:19-ap-01344.
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