In the wake of Writers Guild of America orders that may already have left thousands of writers without agents, the guild on Tuesday ratcheted up its campaign to enlist managers and attorneys to perform agent functions for agentless writers.
In an unusual move, the WGA West sent a letter to members stating that the guild itself will reimburse managers and attorneys for such services if the manager or attorney would otherwise go unpaid because of a violation of the California Talent Agencies Act.
The impetus for the move comes from the fact that the TAA prohibits anyone other than a licensed agent from procuring or negotiating employment for certain entertainment industry workers such as writers. The penalty can be forfeiture of fees otherwise earned.
That wouldn’t usually happen unless the writer filed a complaint against the manager or attorney, which the guild notes is unlikely under the circumstances. But were it to happen, managers and attorneys are concerned that they wouldn’t get paid. Hence the guild’s offer to pay the fees.
“The Guild has decided … to encourage its members to honor any commitment to pay a talent manager or attorney for procuring or attempting to procure engagements or employment for the writer or for providing other representation notwithstanding any alleged violation of the Act, until further notice from the Guild,” says the letter. “If a talent manager or attorney who provides such procurement services at a writer’s direction and in good faith is not otherwise paid for those services because of an alleged violation of the Act, the Guild will reimburse the talent manager or attorney in question for those services.”
In early March, the guild met with managers and entertainment attorneys attempting to enlist their support in the WGA’s battle against talent agencies, and unnerved the assembled managers and attorneys. On March 21, the guild issued a public letter purporting to deputize managers and attorneys to perform agent functions, but experts who analyzed the letter felt that it was legally ineffective, a point that the Association of Talent Agencies made last Friday.
As a result, managers and attorneys could face loss of fees, a possibility that the guild’s latest move is intended to blunt. Rumors that managers and attorneys could face other penalties under the TAA appear unfounded, as there are no penalties specified by the TAA or its implementing regulations. And speculation that an attorney could face bar discipline for violating the TAA has not been backed up with any publicly available analysis.
Adding an additional element of confusion, two California Labor Commissioner decisions from 2013 and 2017 hold that even a licensed attorney may not negotiate the terms and conditions of certain entertainment workers’ employment contracts; only an agent can. And if that’s not enough, a case winding its way through the Ninth Circuit Court of Appeals seeks to invalidate the TAA altogether.
Read the entire letter below.
April 16, 2019
Dear Members,
The trades, citing “attorneys” who prefer to remain anonymous, have announced that writers “better think again” if they expect attorneys and managers to represent them during the agency campaign. We have also heard this from members whose managers and attorneys have previously provided the very services they are now questioning, in some cases for many years.
This is the kind of misleading propaganda at which some in Hollywood excel. The legal facts, as described by WGA’s labor and antitrust attorneys at Altshuler Berzon LLP, are as follows:
* The reported concerns raised by attorneys and managers are based on a misunderstanding of the Talent Agencies Act, Cal. Labor Code §1700 et seq. The Act protects writers from receiving fraudulent or conflicted representation, which no writer is demanding a manager or attorney provide. Disputes between writers and talent agents or an entity acting as a talent agent are resolved by the California Labor Commissioner upon receiving notice from the parties of a controversy covered by the Act, a process no writer intends to pursue in the current circumstances. Cal. Labor Code §1700.44.
* Nothing in the Act limits writers’ right to receive necessary representation, including from the managers and attorneys who have long provided representation services separate and apart from the services provided by agents. And nothing in the Act would expose managers or attorneys to any monetary damages or other legal liability under the Act to non-clients. Likewise, nothing in the ethical rules governing California attorneys precludes them from providing representation services to writers who have specifically requested those services. Indeed, attorneys who have been providing their clients with representation in connection with an ongoing matter (such as a contract negotiation) generally have an ethical obligation to continue doing so, and are prohibited from abandoning their clients in the midst of that ongoing matter. And it is clear that managers and lawyers can continue to provide writers with the representation services they have always provided, without facing any legal risk at all, including any risk of loss of payment. See Marathon Entertainment, Inc. v. Blasi, 42 Cal.4th 974, 996 (2008).
Although the concerns raised by certain attorneys and managers are baseless, the Guild has decided that its policy going forward is to encourage its members to honor any commitment to pay a talent manager or attorney for procuring or attempting to procure engagements or employment for the writer or for providing other representation notwithstanding any alleged violation of the Act, until further notice from the Guild. If a talent manager or attorney who provides such procurement services at a writer’s direction and in good faith is not otherwise paid for those services because of an alleged violation of the Act, the Guild will reimburse the talent manager or attorney in question for those services.
Finally, the Guild has heard accounts that managers and/or lawyers may be discussing withholding services from writers who are not represented by talent agents. But the expert antitrust attorneys from Altshuler Berzon LLP have advised that any agreement, explicit or implicit, among two or more managers or attorneys not to provide services to writers who are not represented by a talent agent would constitute a combination in restraint of trade in violation of federal antitrust law — specifically, Section 1 of the Sherman Act, 15 U.S.C. §1. Indeed, it would likely constitute a group boycott that is per se unlawful under longstanding Supreme Court precedent. See, e.g., FTC v. Super. Ct. Trial Lawyers Ass’n, 493 US 411. Please inform us or a member of the Board of Directors if your manager or attorney refuses to provide you with representation services, so that we can evaluate whether such an unlawful boycott has been implemented, or if you learn of any agreement to refrain from providing such services to the Guild’s members.
In the interim, for any members whose lawyers are refusing to work for them, high profile firms have reached out to the guild and offered their services to clients who need new legal representation.
In Solidarity,
David A. Goodman
President, WGAW
David Young
Executive Director, WGAW
For more on this subject, visit THR‘s labor page.
