Broadway Casting Has Become a Conspiracy, Say Producers in Lawsuit

The next hot Broadway show takes place in the Southern District of New York where a federal judge is being asked to weigh in on a politically tinged fight between producers and casting directors. One side seeks legitimate unionization. The other declares that an antitrust conspiracy is at hand.

On Thursday, the Broadway League filed a lawsuit against seven casting companies along with the Casting Society of America and Teamsters Local 817. According to the complaint from the Broadway League, which represents producers and theater owners, the top casting companies control over 70 percent of the market for Broadway shows, and until recently, competition has been “robust, forcing prices down and sometimes encouraging casting companies to bear some of the risk of early-stage development.”

But the casting directors, like Bernard Telsey, Tara Rubin and Cindy Tolan — who do business through small companies that bear their names and have cast hits like Hamilton, Dear Evan Hansen and Hello, Dolly! — see the situation differently. For the past couple of years, they’ve been angling for more health and pension benefits and have been organizing themselves and exerting pressure on producers with help from the Teamsters.

The Broadway League objects to the description that these casting companies are “employees,” preferring to see them as vendors or independent contractors. In other words, collective bargaining is out of the question, at least with respect to the relationship between the casting community and producers.

Now that the casting companies have banded together “in solidarity,” the lawsuit says they are demanding a 29 percent surcharge on negotiated fees.

“Having created an initial list of demands, the casting cartel proceeded to the next phase in their plan: a boycott of any producer that did not agree to those demands,” states the complaint, asserting a violation of Section 1 of the Sherman Act.

In various press interviews, the casting directors reject the proposition that they are independent contractors just because they work on more than one show at a time. They point to lighting designers and set designers, who have become unionized despite allegedly being in the similar position of offering services to various clients.

The lawsuit frames everything differently with a nod to the way that  employees of casting companies are theoretically free to unionize against the companies themselves.

“Rather than admitting that the casting companies were seeking to enhance their own profits through the elimination of competition, they needed to reframe the issue as a feigned concern over health and retirement benefits,” continues the complaint being handled by attorneys at Proskauer Rose. “The casting companies had never asked for or sought compensation for health and retirement benefits from their clients until they joined forces with the Teamsters and realized they needed an excuse to cartelize the casting services market. Nor are the casting companies’ employees seeking to unionize to get their actual employers — the casting companies themselves — to provide such benefits. In fact, while some casting companies do not provide their employees with health and retirements benefits — choosing profits for their principal-casting-director-owners over the care of their more junior employees — other casting companies do provide such benefits. Regardless, the casting companies’ effort to impose a surcharge on their fees is for their own corporate benefit, either to increase their bottom lines or to shift responsibility for the care of their employees to their clients, the producers.”

It’s a provocative fight, and one that Hollywood narrowly avoided in 2005 when a similar dynamic played out among film and television casting directors. With a threat of strike back then, peace was forged.

This time, it’s going to court after bypassing the different route of adjudication before the National Labor Relations Board.

That’s where politics come into play.

The NLRB often addresses issues of union recognition, and in this instance, the Broadway League says it invited the Teamsters to litigate the issues there.

But the lawsuit quotes Tom O’Donnell, president of Teamster Local 817, as saying, “Casting directors are not going to leave it up to the Trump Administration to decide if they have rights,” and Tolan as commenting, “Currently the President of the United States, of our country, is Donald Trump. Yes, of course they want to put it in front of the NLRB board — obviously know what the outcome will be.”

The NLRB acts as an independent agency, though Presidents get to pick its members, and during the Obama years, it was known as having a pro-union reputation. With new Trump appointments, that could change with the issue of employee versus independent contractor being an especially hot legal topic.

“We have maintained a respectful dialogue with the defendants, and encouraged them to resolve their issues through the National Labor Relations Board,” stated Charlotte St. Martin, president of The Broadway League, of the new lawsuit. “However, the defendants continuing illegal and anti-competitive cartel behavior is jeopardizing the survival of Broadway shows, and bringing real harm to the actors, stagehands, musicians, and others who depend on the theater for their very livelihood. We have no choice but to seek a legal remedy to the cartel’s illegal behavior.”

A rep for Teamster Local 817 released the following statement regarding the lawsuit: “We’ve asked for voluntary union recognition of casting directors, but the Broadway League said no. When casting directors ask for health and pension benefits, the League threatens and sues them. To be clear, the casting directors are not attempting to ‘fix prices,’ neither in wages nor benefit contributions. They simply want the same workplace fairness and healthcare afforded to everyone else who works on Broadway. Broadway made over a billion dollars last year. Rather than engage in a dialogue with forty working men and women who have been instrumental to their success, the League spouts fake facts, bullies, and files lawsuits. Sound familiar?”

Ashley Lee contributed to this report.

Dec. 5, 10 a.m. Updated with Teamsters statement.