July 27, 2009
Brown M&Ms and Monitoring
Posted by Gordon Smith

You may already know the story about Van Halen's M&Ms rider, but I had checked out of rock music by the early 1980s, so this was new to me. Thanks to This American Life, however, I am finally up to speed. Here's the background, as told by The Smoking Gun:

Since we began publishing backstage concert riders about 10 years ago, TSG has been searching for the most famous rider of them all, the one in which Van Halen famously stipulated that brown M&M's were to be banished from the band's dressing room. Well, ... the hunt is over. TSG has finally obtained the the 1982 Van Halen World Tour rider--typewritten and 53 pages long--containing the M&M prohibition (and a few other unique demands). The document, ... also stipulated that promoters provide the group with "herring in sour cream," four cases of "Schlitz Malt Liquor beer (16 ounce cans)," and a total of eight bottles of wine and liquor. Oh, and the band also needed "One (1) large tube KY Jelly." The rider's "Munchies" section was where the group made its candy-with-a-caveat request: "M & M's (WARNING: ABSOLUTELY NO BROWN ONES)."

Here is the excerpt from the rider:

I suppose one might infer from this contract that Van Halen was very picky, perhaps even superstitious, about M&Ms. Or you might speculate that Van Halen was planting trip wires in the contract for its counterparties, means by which VH might weasel out the contract if a concert became suddenly undesirable. But according to David Lee Roth, the M&Ms clause was actually a very clever monitoring device:

Van Halen was the first band to take huge productions into tertiary, third-level markets. We'd pull up with nine eighteen-wheeler trucks, full of gear, where the standard was three trucks, max. And there were many, many technical errors — whether it was the girders couldn't support the weight, or the flooring would sink in, or the doors weren't big enough to move the gear through.

The contract rider read like a version of the Chinese Yellow Pages because there was so much equipment, and so many human beings to make it function. So just as a little test, in the technical aspect of the rider, it would say "Article 148: There will be fifteen amperage voltage sockets at twenty-foot spaces, evenly, providing nineteen amperes . . ." This kind of thing. And article number 126, in the middle of nowhere, was: "There will be no brown M&M's in the backstage area, upon pain of forfeiture of the show, with full compensation."

So, when I would walk backstage, if I saw a brown M&M in that bowl . . . well, line-check the entire production. Guaranteed you're going to arrive at a technical error. They didn't read the contract. Guaranteed you'd run into a problem. Sometimes it would threaten to just destroy the whole show. Something like, literally, life-threatening.

Yes, you could ask a fun hypothetical about contract doctrine using these facts, but why waste such wonderful facts on trivialities? Teach your students how a transactional lawyer and David Lee Roth would think about this provision

P.S. If you are planning to listen the episode of This American Life, do not miss Act Two, a laugh-out-loud dramatic reading of a contract between a son and his visiting mother.

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