February 23, 2012 7:46pm PT by Jonathan Handel
SAG Filing Motion to Dismiss Anti-Merger Lawsuit on Friday
A flurry of legal filings is set to begin tomorrow in the lawsuit that seeks to derail the SAG/AFTRA merger referendum. SAG will file a motion to dismiss; the anti-merger forces will file a motion to amend their complaint to include a claim that allows them to seek attorneys fees; and on Monday, the anti-merger forces will file for a preliminary injunction preemptively voiding the referendum.
Ballots are set to be mailed Monday, and the filings are not expected to delay this process. Instead, all three motions will be argued at a hearing on March 26, just four days before ballots are due back. The hearing will be in federal court before Judge James Otero.
SAG has previously blasted the lawsuit as preposterous and without merit. However, the allowable arguments on a motion to dismiss are more strictly legalistic, because the idea is not to knock the plaintiffs out of the box if there’s any conceivable basis for their claim.
Not uncommonly, a motion to dismiss will be granted as to some but not all claims in the complaint, effectively narrowing the focus of the case.
A source close to SAG described the arguments the guild will make in its motion to dismiss:
The plaintiffs’ first claim was that the unions are not permitting a “meaningful vote.” In response, SAG will argue that the plaintiffs are relying on case law that’s been repudiated in the Ninth Circuit, which is the court of appeals region that includes California and a number of other western states.
SAG also denies that the claim is true. However, for the purposes of a motion to dismiss, a court is required to assume that all facts alleged in the complaint are true – and then the question becomes whether there is any legal basis for the claim even if all of the allegations are assumed to be true.
If not, then the claim gets dismissed. If all claims are dismissed, then the lawsuit itself is tossed – unless the plaintiff successfully appeals one or more of the individual dismissals.
The plaintiffs’ second claim was that the merger referendum also extends the term of some of the existing SAG board members (as is also the case for the AFTRA board members) by a year past when their terms would otherwise expire. The plaintiffs say this violates federal law regarding union elections.
SAG counters that Department of Labor regulations permit terms to extended for up to five years in connection with a merger, far longer than will actually be the case here.
The plaintiffs’ third claim is that Appendix I of the SAG constitution requires a study that encompasses actuarial data regarding the impact merger might have on the union’s pension and health plans, before calling the referendum. SAG points out that the language of the constitution says only that committee shall recommend a study to the board and that the study need not include actuarial data. The board conducted a feasibility study, and SAG says this satisfies the constitution.
SAG also says that that the so-called Phase I agreement between SAG and AFTRA – which is what is contained in Appendix I – is no longer in effect. This argument may not figure prominently in the motion, however, because of the requirement that facts alleged in the complaint are assumed to be true for purposes of hearing a motion to dismiss.
The above claims are under various sections of federal labor law, but the fourth – which alleges that the union violated its fiduciary duty to members – is under state law. SAG responds that there’s no legal basis for the claim, and that the claim chills the union’s freedom of speech by attempting to dictate what it should say to its members. For the latter reason, the union will also attack the claim using the California anti-SLAPP statute, which seeks to deter lawsuits from deterring speech on matter of public interest.