Writers React to Agency Lawsuit Ruling: "It Probably Didn't Change Minds Either Way"

Wilshire and Fairfax April 27 2020

While some scribes are "very conflicted," others are with leadership on advancing litigation to its next stage: "It's always been about getting rid of the corruption of packaging."

When a Los Angeles federal judge dismissed eight of the 14 claims the Writers Guild of America brought against the three largest Hollywood talent agencies, The Good Doctor showrunner David Shore expected to be inundated with questions about the ruling the next day when he logged into his now-virtual writers room. “I thought they’d be panicked,” he says. So Shore, who’d gone to law school earlier in his career and is also a co-chair of the WGA’s agency negotiating committee, read through the entire judgement to ensure he’d be prepared to field any and all questions. But to his surprise, there weren’t any.

In the wake of the ruling, the latest development in the prolonged battle between the union and major talent agencies, many were quick to declare victory for CAA, UTA and WME. “[The] WGA leadership have led thousands of writers over a cliff,” declared the three agencies in a blazing joint statement. But some WGA members, particularly those who have been fervent supporters of the guild’s actions up until this point, weren’t convinced the ruling was a devastating loss. If anything, the judgment only reinforced guild members’ positions, with many of those supportive of the lawsuits choosing to see the ruling as a victory (or at least a partial one) and more critical members viewing it as a loss — one they saw coming. “It probably didn't change any minds either way,” acknowledges Meredith Stiehm, another co-chair of the WGA's negotiating committee with agents.

The ruling may not have changed minds, but it did ushered in widespread confusion, at least initially. Multiple scribes The Hollywood Reporter spoke with say they were perplexed by early articles about the court’s decision, unable to decipher the complex legal jargon. It wasn't until WGA West president David A. Goodman sent out an email to members explaining why the ruling wasn’t the big “win” the agencies asserted it to be that those writers felt reassured about the guild’s position — which Shore believes is a key reason his writers had no follow-up questions for him.

“While the agencies are predictably claiming victory in hopes of undermining member solidarity, in private they are not celebrating. This is not the ‘victory’ they predicted or that they needed, which was the complete dismissal of the lawsuit,” wrote Goodman, stating that the guild’s "core claims" — that packaging is a breach of fiduciary duty and that agencies have committed antitrust violations by price fixing — are moving forward to trial. The judge did, however, dismiss a federal claim by the guild alleging price fixing, a state claim by the guild alleging breach of fiduciary duty, a state claim alleging bribery/kickbacks, and four federal racketeering claims. Goodman added, “Through all of this, our goal has always been the same, to realign agency economic interest with ours. This lawsuit remains powerful pressure in that direction.”

It turns out the note was all the reassurance some writers needed. "To be honest, I really don’t understand the ruling’s nuances,” says veteran writer Glen Mazzara (Damien), echoing the sentiment shared by multiple scribes THR surveyed, “so I’ll accept the WGA’s statement that since the lawsuit is advancing to the next stage, it’s not the victory the agencies claim it is."

Fellow Guild member and Crooked Media head writer Travis Helwig had a similar reaction. “Especially when you see the headlines first, it's a little bit disconcerting. They made it seem like the sky was falling," he says of the slew of articles that he felt skewed the news by magnifying the guild’s losses. "But when you actually get into the nitty-gritty of it, it does seem like there's a good amount of the important legal case going forward."

And that, of course, is how WGA general counsel Tony Segall is looking at it: “We think we can litigate the entire range of our complaints about packaging with the six causes of action that survived this week's judgement.” The attorney says that he still plans to file an amended complaint to try and change the judge’s mind about aspects of the April 27 ruling — though many of the dismissals were with prejudice, meaning that they cannot be amended.

One reason some writers weren’t too dismayed by the dismissals is that they anticipated some of them, especially when it came to the racketeering charges. “A civil RICO is a preposterous claim to begin with," says David H. Steinberg, the co-showrunner of Netflix's No Good Nick and a former entertainment lawyer who characterizes the overall judgement as a mixed bag. “The fact that it got dismissed is not surprising and is also irrelevant.”

Others agree the claim was a longshot. “While it's sad that I can't say the word 'racketeering' anymore to my friends,” jokes Helwig, “that never has been what it is about for me and most of the writers I know. It's always been about getting rid of the corruption of packaging and getting fair representation.”

Another working writer and guild member, who asked to remain anonymous, says the ruling wasn’t surprising. "Those of us who have been speaking to lawyers through all of this have been told that this was a likely outcome, that these lawsuits were never seemingly meant to go to trial," he says, noting that he still found the outcome "super discouraging.” It’s his belief that the suits were initiated to force agencies to the negotiating table — which he claims worked. “The problem,” he adds, “is that we decided to walk away and never come back.”

For many writers, their hope lies in the breach of fiduciary duty charge leveled by six individual writers. The guild’s claim on that basis was dismissed, which may narrow the scope of discovery, but some writers are nonetheless bullish about what the process might unearth. "I think we'll probably win," predicts Steinberg. Adam Ruins Everything creator and host Adam Conover, who has been a vocal supporter of the guild, believes the fight has already succeeding in improving the representation landscape. “What matters at the end of the day is: Is there a chance that we're going to reenter a world where writers are once again represented by agencies that have these grievous conflicts of interest?” he says. “And I don't think that we are.”

Still, not everyone is so sanguine about last week’s ruling or the union's path forward. Some writers who have been more skeptical of the guild’s actions express concerns about the timing of the dismissals, which come just as the WGA is entering into major contract negotiations with the Alliance of Motion Picture and Television Producers. "We're going into those talks with the studios weaker than I've ever seen in my two-decade career," says one writer-producer, who wouldn't use their name for fear of retribution. “We're going into this having just been humiliated in court.”

And now, amid a global pandemic, some dissenters argue that the ongoing legal battle with agents will only serve to hurt writers whose work is drying up due widespread work stoppages. Scribes without major name recognition who remain loyal to former agents, they contend, may lose out in an increasingly competitive job market as a result. "People were already losing patience as it was, and now there's a pandemic, the economy is in freefall, we have these court rulings, and people are being told to blindly trust this leadership," says one working writer. "To me, that doesn't feel like a plan, it feels like a suicide pact for working writers."

There are also growing concerns about the guild’s mounting legal fees. “Part of what makes it complex and difficult for some of us is that there's been a lack of transparency. We don't know how much our legal fees have been to this point. We don't know what they're projected out to be. We also don't even know where the money's coming from,” says another veteran writer-producer, who adds that there’s also growing resistance from members to the individual writers claims moving forward. “There's some writers who feel very conflicted about this. On the one hand, they support the individual writers. On the other hand, they're not sure they want to support them to the tune of spending their dues to pay for their attorney's fees.” Segall adds that some of those writers have even aired their frustrations with the guild directly.

But other scribes like Stiehm, who is one of the individual plaintiffs, believe those concerns are misguided. “Unions and other civil rights groups bring litigation on behalf of individuals to achieve collective goals,” she says, explaining that it wasn't easy for the WGA to find people who were willing to step up and be a litigant. “It's not an enviable thing.” Shore isn’t even looking at them as individual lawsuits: “These six people have brought this on behalf of all of us. And the benefits that they will reap will be benefits for all of us.”

Segall, for his part, is quick to point out that history is littered with instances of individuals achieving personal gains for the greater good. "As I said in an email to somebody the other day, let's not forget that Linda Brown was the plaintiff in Brown v. Board of Education, which was the biggest impact case ever in the history of American civil rights,” he notes. “So the idea that we’re doing this to benefit the individual members is just crazy.”

And for some guild members like Conover, there’s no better use of membership dues. "I don't know what the fuck a labor union is supposed to spend money on other than battles like this,” he says. "Like, are they supposed to buy nicer bagels at the meetings?"