Challenge to California's Talent Agent Licensing Law Revived by Appeals Court

The 9th Circuit faults a lower court judge for not doing enough analysis before rejecting a constitutional objection to a law that's hated by talent managers.

Hollywood talent managers had reason to celebrate on Thursday as the 9th U.S. Circuit Court of Appeals has vacated a ruling dismissing a challenge to the Talent Agencies Act, the California law that says only licensed talent agents can procure employment for clients.

The law has been used as a weapon by many performers including Roseanne Barr, Cher, Lisa Kudrow and Richard Pryor to escape paying commissions to managers. The adjudication over whether managers (as well as lawyers and others) are acting as unlicensed agents takes place before the California Labor Commissioner.

In November 2012, the National Conference of Personal Managers filed a lawsuit over the TAA against California Governor Jerry Brown, California Attorney General Kamala Harris, and California Labor Commissioner Julie Su arguing that the statute is unconstitutional as it allegedly violates due process, equal protection, involuntary servitude, and interferes with interstate commerce and free speech.

In March 2013, U.S. District Judge Dean Pregerson dismissed the lawsuit, addressing the merits of the claims by determining that the statute isn't "vague" as alleged, saying that unlicensed agents have "choices" (they can become licensed or refrain from illegal activity), ruling that the statute "regulates conduct, not speech," and so forth.

In his decision, Pregerson got to the merits by skipping over a full analysis of whether the plaintiff had standing to bring the case in the first place and whether his court had jurisdiction to hear it. Instead, the judge merely said that NCOPM likely had standing, that the governor and attorney general likely had sovereign immunity from claims, and that the labor commissioner was likely the appropriate party to sue.

The 9th Circuit didn't like the shortcuts.

"The Supreme Court has repeatedly stated that federal courts have an independent obligation to determine jurisdiction before addressing the merits of a case," states a short memorandum from a panel of three circuit judges.

As a result, Pregerson's ruling is vacated and remanded, and while there's nothing to indicate that the analysis on the merits will change upon a revival at the district court, the NCOPM is nevertheless pleased at another opportunity to fight.

According to Clinton Billups, president of NCOPM, "NCOPM looks forward to returning to the district court to protect the civil rights of personal managers nationwide."

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner

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