Appeals Court Won't Revive Lawsuit Challenging Talent Agencies Act

The 9th Circuit doesn't think California's agent licensing law flouts due process, equal protection and free speech.
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Rian Johnson

The National Conference of Personal Managers is again out of luck after the 9th Circuit Court of Appeals on Tuesday affirmed the dismissal of the group's lawsuit targeting California's Talent Agencies Act.

The law requires that only licensed agents procure employment for clients, but many non-agents in the entertainment industry — from talent managers to attorneys — detest the law because it's become a way that stars avoid paying commissions. For example, Star Wars: The Last Jedi director Rian Johnson is currently before the California Labor Commissioner in an attempt to show that his ex-agent Brian Dreyfuss breached the TAA and that a 10 percent commission on Star Wars isn't owed.

The NCOPM filed a challenge to the constitutionality of the statute in November 2012, contending that the TAA violates due process, equal protection and involuntary servitude and interferes with interstate commerce and free speech. The following March, a California federal judge rejected the lawsuit, writing, "Plaintiff's members have choices. They have the choice to refrain from procuring employment for their clients, to procure employment without a license and risk the voiding of parts of their contracts, or to obtain a license."

On Tuesday, the 9th Circuit rejects a bid to revive the case.

Although a panel of circuit judges holds that California's governor and labor commissioner can't evoke sovereign immunity to escape the lawsuit, and that NCOPM has proper standing to sue, the decision affirms each of the lower judge's points allowing enforcement of the TAA.

The judges hold that dismissal of the due process claims is warranted because while the managers' group asserted the law was unconstitutionally vague, the term "procure" is not "so lacking in objective content as to render the Act facially unconstitutional."

NCOPM also argued a violation of the dormant Commerce Clause in several respects. One was that out-of-state licenses weren't permitted, but the 9th Circuit responds that the TAA merely mandates that licensees list an address of business, which doesn't preclude out-of-state parties from becoming licensed talent agencies. Another argument was that the law was discriminatory based on a licensee's location, but the appeals court doesn't see how.

Finally, the 9th Circuit also rejects a First Amendment argument.

"We agree with the district court that the TAA regulates non-expressive conduct, not speech," states the opinion. "Because the TAA 'regulates a professional practice that is not inherently expressive, it does not implicate the First Amendment.' It is only subject to rational basis review, which it survives."