To procure or not to procure: Still the question for managers

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Talent managers all but danced in the street this week when the California Supreme Court ruled that a few isolated incidents of "procuring" work would not always prevent them from collecting commissions from former clients. The decision is certainly a marked shift away from 40 years of anti-manager legal precedent. But amid the celebration, an unpleasant reality remains. It is still illegal for managers to do what everyone in the business knows they do: get their clients jobs.

For anyone unfamiliar with California law or "Entourage," the rules are simple: Licensed talent agents can solicit work for clients; managers are allowed only to guide their careers. It's a clear division of labor -- except when it isn't, which is often. The court said it best: "Indeed, the occasional procurement of employment opportunities may be standard operating procedure for many managers and an understood goal when not-yet-established talents, lacking access to the few licensed talent agents in Hollywood, hire managers to promote their careers."

In other words, having a manager who successfully procures work is a problem most talent would kill for -- especially when the client can always avoid paying commissions just by showing a tiny act of procurement.

That's what happened to Rick Siegel, whose client, Rosa Blasi, left him after scoring a part on Lifetime's "Strong Medicine." Siegel sued, but the state labor commissioner voided the deal because Siegel procured work, even if it might have been unrelated to "Strong Medicine." He appealed and the state high court held that, depending on the situation and what's fair, one or two instances of procurement might be "severable," meaning Siegel could lose commissions only on those deals rather than having his entire management contract voided.

On paper, the decision sounds great for managers because it's now tougher for talent to evade a big-payday commission unless they can prove procurement of that particular deal or many others. But the new rule doesn't make soliciting a job any more acceptable. In fact, the court upheld the ban on procurement and left to the labor commissioner the question of what conduct should void a deal. A cut-and-dry rule has just become much more of a subjective evaluation, with wiggle room for lawyers to exploit. As such, we might even see more manager-talent litigation, not less.

"It's unclear how many acts of procurement would prevent a court from severing a contract," says Michael Plonsker, Blasi's lead lawyer. "It's going to take a few years for the commission and the courts to develop a body of law on how much is too much." (Disclosure: I practiced law at Plonsker's firm, though never on this case.)

There's an easy way to avoid this lack of clarity. The state legislature could establish a licensing scheme for managers that recognizes the role many of them now play in an actor or writer's career, just as it first did for agents with the Talent Agencies Act in 1979.

But there are reasons why that likely won't happen. First, agents no doubt prefer the status quo, lest managers someday be able to directly compete with them. And second, managers themselves don't necessarily want to be treated like agents and possibly have to give up a huge asset: the ability to charge what they want and produce their clients' projects.

Still, with managers often acting like agents and agencies now expanding their roles via financing arms and affiliated production entities, the time may be right for the state to re-evaluate the legal difference between an agent and a manager. Until then, despite this small victory, managers will continue to violate the law by doing their jobs.
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