## Facts

- Michael Coppel Promotions Pty. Ltd. (MCP), an Australian concert promoter, negotiated with singer Michael Bolton and his touring company, MBO Tours, Inc., for an eight-concert Australian tour scheduled for May 14–28, 1996.
- MCP alleged that in early March 1996 the parties orally agreed on material terms, including dates, locations, and compensation: the greater of $1,200,000 or 85% of net door receipts.
- MCP alleged it began ticket sales for six dates and undertook extensive promotion with the apparent consent of defendants’ booking agent, consistent with industry custom.
- The parties continued to exchange telefaxes and calls, and defendants sent draft written documents (including a concert agreement and a rider).
- MCP faxed back that the documents generally reflected the agreement but raised concerns, including the timing and terms of the advance payment; MCP sent a further fax on April 22, 1996 addressing those points.
- MCP alleged defendants sought to cancel or postpone due to poor ticket sales and, after MCP refused, cancelled the tour about two weeks before it was to begin.
- MCP sued for breach of contract, alleging unjustified repudiation and seeking damages for expenditures made in reliance on the agreement.

## Issues

1. Whether the amended complaint plausibly alleged an enforceable oral contract under New York law.
2. Whether MCP’s April 22, 1996 fax necessarily constituted a counteroffer that extinguished any prior agreement as a matter of law.
3. Whether references in later draft documents to written acceptance and advance payment constituted unambiguous conditions precedent to formation, defeating the claim on the pleadings.

## Decision

- The court denied defendants’ Rule 12(b)(6) motion to dismiss.
- Accepting MCP’s allegations as true, the complaint adequately pleaded an oral agreement on material terms and subsequent conduct consistent with contract formation.
- The April 22 fax could reasonably be read as either a counteroffer or a request to clarify or adjust nonessential details; that characterization could not be resolved on a motion to dismiss.
- Later, unsigned draft documents did not conclusively establish that the parties intended not to be bound absent a signed writing or payment of an advance.

## Legal Principles

- On a Rule 12(b)(6) motion, the court accepts well-pleaded factual allegations as true and draws reasonable inferences in the plaintiff’s favor.
- An oral agreement that includes material terms may be enforceable even if the parties later exchange written drafts.
- Partial performance and reliance consistent with industry custom may support an inference that the parties intended to be bound.
- A later, unsigned rider or draft sent after an alleged oral agreement is not, by itself, clear and unambiguous proof that formation required a signed writing or other conditions.
- Whether a communication is a counteroffer or part of ongoing discussions may present a factual question inappropriate for resolution on the pleadings.

## Conclusion

The court held that MCP plausibly alleged a binding oral agreement for Bolton’s Australian tour and that disputes about the effect of MCP’s April 22 fax and later draft “conditions” required factual development, so dismissal at the pleading stage was improper.


Michael Coppel Promotions Pty. Ltd. v. Bolton, 982 F. Supp. 950 (S.D.N.Y. 1997)