July 31, 2013 9:32pm PT by Jonathan Handel
SAG-AFTRA Moves to Partially Dismiss Ed Asner Foreign Levies Lawsuit
SAG-AFTRA filed a pair of motions on Wednesday in federal court that, if granted, would reduce the scope of a pending lawsuit by Ed Asner and others but not shut down the litigation altogether. The motions allege that the case is a “rerun” of an earlier one and contains “florid and disconnected allegations” and material that is “prejudicial and not material or pertinent.”
If granted, the union’s motions would leave portions of the suit standing but would significantly reduce the dollar value of the litigation. “This is not the 'big' case that Plaintiffs portray,” says the motion to dismiss. “At most, it is a speculative claim by no more than 17 of the 160,000 members of SAG-AFTRA that they may be owed a very small amount of money.”
The suit, which alleges improprieties in the union’s foreign levies and residuals programs, was filed in May but has essentially lain dormant since then. The union’s motions to dismiss and to strike are the first action in the case since then, as well.
The motion to dismiss has several parts. One asserts that the foreign royalty claims are essentially a repeat of allegations that were settled in 2010 in separate litigation brought by Leave it to Beaver’s Ken Osmond. That was a class-action suit whose settlement was binding on a vast number of performers -- including, says SAG-AFTRA, all but three of the plaintiffs in the current suit. Those three opted out of the Osmond settlement.
“While it is generally a good thing when a theatrical or television production is rerun -- indeed, such reruns generate the very income that is the subject of this litigation -- the opposite is true in litigation,” says the motion to dismiss. “In the legal realm, bringing the same claim again after it was resolved, as plaintiffs have done here, is barred by res judicata.”
That Latin phrase is lawyer language that means that you can’t re-raise claims that were already resolved in another case. And, says the union’s motion, res judicata applies even where the earlier case was resolved in state court and the new one is in federal court. Also irrelevant, says the motion, is that the earlier case was resolved by a settlement rather than a trial.
If granted, this portion of the motion would leave the current litigation with three plaintiffs as to foreign royalties issues. However, all plaintiffs would apparently remain as to claims related to residuals, since that was not a subject of the Osmond case.
Another aspect of the motion to dismiss relates to the breadth of language in the complaint, which seeks relief in various places for all members and, in some places, for non-members as well. According to the motion, the plaintiffs have no standing to seek relief for anyone other than themselves. (The case is not pled as a class action.)
The complaint also has language that ranges back to 2002 and even earlier. Here, the motion to dismiss argues that the statutes of limitations partially bar the claims.
The motion to dismiss also asserts that one of the claims improperly seeks damages and an injunction, and that two others assert fraud without providing necessary detail.
Accompanying the motion to dismiss is a motion to strike portions of the complaint as immaterial and prejudicial. These relate to SAG-AFTRA’s decision to incorporate in Delaware, references to executive director David White’s prior consulting firm and references to the union’s own lawyers.
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