Writers vs. Agencies Case Will Go to Court-Ordered Mediation, Eventually

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The mediator will have her hands full — and with a Dec. 25 deadline, no session is scheduled yet.

It’s less than meets the eye: The packaging fee litigation between the Writers Guild of America and the three largest talent agencies is going to court-ordered mediation by the end of the year before an experienced entertainment lawyer whom the parties stipulated Thursday, but the likelihood that this means anything much is close to zero.

That’s not only because the mediation deadline isn’t until Dec. 25, according to a Jan. 8 court order; it’s also because the two sides remain at loggerheads, the federal judge in the case still hasn’t ruled on the agencies’ motion to dismiss the case, the guild is gearing up to ask that Hollywood studios freeze out the agencies — and the parties can’t even agree on whether they’ve been having conversations already.

The mediator agreed to is Gail Migdal Title, a neutral with ADR Services and former litigator who served for 14 years as managing partner for Katten Muchin’s Los Angeles office. But mediation — a non-binding process that seeks an agreed resolution — has not been scheduled, and would seem especially unproductive until a ruling issues on the agency motion to dismiss that was heard Jan. 24. That session left Judge Andre Birotte torn on at least some aspects of WME, CAA and UTA’s challenge to the many-pronged WGA case, which implicates complex aspects of antitrust doctrine, labor law and state statutes and decisions.

And there’s no indication of when Birotte will rule: His Jan. 7 denial of the converse motion — the WGA’s attempt to dismiss the agencies’ claims against the union — came a month after a hearing, even though he had already largely made up his mind and produced a tentative opinion, which he did not do for the agencies’ motion to dismiss.

Meanwhile, the guild released its “pattern of demands” Feb. 7 outlining its priorities in the upcoming negotiations with the Alliance of Motion Picture and Television Producers in advance of a May 1 contract expiration. Among those goals: a provision that would “require signatory companies to negotiate only with agents franchised by the WGA.”

That’s a shot across the bow of the three litigating agencies, as well as ICM and Paradigm, as none of them have signed the WGA’s new franchise agreement, due to disagreements over packaging fees, agency-affiliated production companies and other matters. A so-called Collins clause would bar the major studios and other production companies from doing business with those agencies — but the AMPTP already rejected such a clause last year when the WGA attempted to reopen the 2017-2020 contract and add such the provision.

Smaller agencies with significant writer business — notably, Verve, Kaplan Stahler, Culture Creative Entertainment, Buchwald, Abrams, Rothman Brecher, Gersh and APA — have signed with the guild, but the five largest shops have not.

As for whether the guild and agencies are in talks already, the union told members in a Feb. 14 email that it “has had substantive discussions with all but one” of the five largest. But agency sources disputed the Valentine’s Day missive, at least as to WME, CAA, UTA and ICM talks — and so, despite the agreement on a mediator, the WGA/agency fight seems far from over.