Old rockers singing the blues in lawsuit over their pensions

February 18, 1994|By David Margolick | David Margolick,New York Times News Service

Some of them belonged to legendary groups: the Drifters, the Coasters, the Shirelles and the Young Rascals. Others were leading solo performers.

A list of the songs they made famous resembles one of those hit parades on late-night television: "Under the Boardwalk," "Charlie Brown," "Soul Man," "Sealed With a Kiss," "My Guy."

Now these one-time idols have banded together to form a new group, one that might be called the Plaintiffs. And the song they are singing, in a federal court in Atlanta, imparts as much heartbreak and bitterness as any golden oldie.

"Everyone else is making millions with what we helped invent, but they took us and threw us to the pigs," said Carl Gardner of the Coasters, the group that sang rock standards such as "Charlie Brown" and "Yakety Yak."

Mr. Gardner, 65, who lives in Florida and is recovering from throat cancer, recently learned that his pension account, on which he had never drawn, was worth $3,331.95 -- as little as one-tenth of what should be due, by the reckoning of Richard Perlman, a lawyer for the plaintiffs.

The aging performers, five of them members of the Rock 'N' Roll Hall of Fame, maintain that over the last three decades, record companies that prospered from their work have deprived them and thousands of other former rockers of hundreds of millions of dollars in health and pension benefits due them under an industry agreement reached in 1958.

Making matters worse, the plaintiffs say, is that their own union, the American Federation of Television and Radio Artists, or AFTRA, has let the companies get away with it.

Asked about the plaintiffs' claims, Norman Samnick, a lawyer for three of the record companies and himself a trustee of the union's health and retirement fund, said, "Somebody must be smoking something."

The performers' suit, filed in October in U.S. District Court in Atlanta, accuses the companies of regularly underreporting earnings, withholding payments for years at a time and, in many cases, failing to pay anything at all.

Extrapolating from a series of union audits dealing with earnings in the 1980s and early '90s, the plaintiffs' lawyers -- Mr. Perlman and William McCracken, both of Augusta, Ga. -- place the shortfall over the last 35 years at $750 million. They have asked the court to certify the case as a class action, asserting that the record industry may have cheated as many as 70,000 singers.

To the companies and the union, which as defendants find themselves in rare alliance, the accusations are just so much fantasy.

The claim of missing millions is a wild exaggeration, the defendants contend. Some small amounts may be due, they say, but if so, they stem from genuine disagreement -- not fraud -- that results largely from the complexity of administering detailed collective bargaining provisions.

Making that task all the more complicated was the fleeting nature of many performers' careers during rock's infancy.

Whatever the case, the plaintiffs are people who, as a group, had limited knowledge of finances, particularly during their heyday.

Now, as these pioneers approach old age and its infirmities, they find themselves poorer than they once were or ever expected to be.

Under the 1958 AFTRA National Code for Fair Practice i Phonographic Recording, known in the industry as the Phono Code, record companies pledged to contribute a percentage of the money that a recording generates -- generally a tenth of the artist's royalties -- to the union's health and retirement fund.

Mr. Gardner is a plaintiff in the suit, as are Sam Moore of the duo Sam and Dave -- the team that won a Grammy Award in 1967 for "Soul Man" -- and Lester Chambers of the Chambers Brothers ("Time Has Come Today").

Joining them are solo artists including Brian Hyland ("Sealed With a Kiss"), Curtis Mayfield ("Superfly") and Jerry Butler ("Western Union Man"). Also signing on are Felix Cavaliere, Bill Pinkney and Doris Jackson, who sang, respectively, with the Young Rascals ("Good Lovin' "), the Drifters ("Up on the Roof") and the Shirelles ("Soldier Boy").

The plaintiffs also include Brenton Wood ("Oogm-Boogm") and the heirs of Jackie Wilson ("Higher and Higher"), David Prater (the other half of Sam and Dave) and Mary Wells, who sang "My Guy" and who died of cancer in 1992 in poverty.

"You have a bunch of vocal performers whose works are being played constantly but who are aging and have nothing to fall back on," Mr. Perlman said.

"The record companies have devised every scheme in the world not to report these people's income. And for years they got away with it, in part because AFTRA let the fox loot the chicken coop."

The plaintiffs depict the union's compliance procedures as lackadaisical and chaotic.

Those assertions are buttressed by affidavits from two former officials of the union's health and retirement fund. In one, Frederick Wilhelms III, who from 1989 to 1992 was the fund's administrator, says that not until after he arrived were there any written procedures for audits.

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