8:14am PT by Eriq Gardner
L.A. Times "Allowed Itself to Be Weaponized," Golden Globes Outfit Tells Judge
When two weeks ago, The Los Angeles Times published a scathing exposé about the tiny membership and questionable ethical practices of the Hollywood Foreign Press Association, one thing that some might have overlooked was that a federal judge was primed at that moment to rule on whether a Norwegian journalist could move forward in an antitrust lawsuit against the entity behind the Golden Globe Awards. The L.A. Times story begins with a judge last November siding with the HFPA against Kjersti Flaa, which is true, but the judge allowed Flaa to amend her complaint, which she later did with the HFPA now seeking a second dismissal. In short, the lawsuit is ongoing and is probably at its most crucial point.
That's all relevant because on Monday, Flaa's attorney requested U.S. District Court Judge Stanley Blumenfeld take judicial notice of what was featured in the L.A. Times on Feb. 21. Namely, the story entitled, “Golden Globes voters in tumult: Members accuse Hollywood Foreign Press Assn. of self-dealing, ethical lapses.”
On Thursday, the HFPA blasted Flaa's "most egregious" move to get the judge to recognize "anonymous hearsay."
"Plaintiffs’ request for judicial notice is a transparent attempt to bias the Court," writes HFPA lawyer Marvin Putnam. "As defendants asserted from the outset, this case was never about asserting legally viable causes of action... Since then, plaintiffs’ press campaign has only intensified, its origins traced as always to the unsubstantiated complaint—and nothing more. After the Los Angeles Times allowed itself to be weaponized to further Ms. Flaa’s agenda, plaintiffs now seek to use the press they alone created to bolster their legally baseless antitrust claims or support their legally irrelevant and salacious allegations."
While there's likely some advantage to having a judge recognize a scandal, so too is there some benefit in showing the judge that the other side is litigating in the press. It's also nothing new for attorneys to pin the mere publication of stories on their adversaries. (Too readily in our experience. Not everything is the result of a press release.)
At the moment, in this case, Judge Blumenfeld must weigh whether Flaa has cured the primary deficiency in her suit that alleges that the HFPA has monopolized opportunities for foreign entertainment news reporters.
That deficiency (at least at the moment) is not whether the HFPA truly has market power or even precisely whether the HFPA can injure non-member journalists like Flaa by taking advantage of its prime position to interview A-list stars, but rather whether there's even a market to define here. As the judge put it in his November ruling, "Plaintiff defines the product market as 'entertainment news.' This product description is ambiguous, as she fails to identify the relevant type, source, or medium of entertainment news. She also fails to allege that 'entertainment news,' even if limited to movies and television programs, is not reasonably interchangeable with other forms of entertainment news (e.g., sports, music, literature, and travel)."
It's a rather technical failing — and lawmakers like Sen. Amy Klobuchar are currently proposing amending federal antitrust law so that plaintiffs no longer must define a relevant market before getting the green light in cases. Nevertheless, given that this has become the key issue, it allows HFPA to point to the L.A. Times' tale of special access (e.g. Paramount reportedly treated 30 HFPA members to a two-night stay at the five-star Peninsula Paris hotel to promote Emily in Paris) and say it's not pertinent from a legal standpoint.
Or take the fact that the HFPA's 87 members include no Black journalists.
Here's what a judge is told.
The HFPA submits, "Leaving aside the foundational problems with asking this Court to take notice of an opinion editorial that the HFPA 'should be more aggressive' in creating a racially diverse membership, it would be difficult for plaintiffs to submit less probative statements for their antitrust claims. Plaintiffs, of course, do not allege that their exclusion from the HFPA was premised on racial animus. The statements about diversity are completely irrelevant to any material fact relating to market definition, market power, antitrust harm, or any of the other elements plaintiffs would need to prove. None of these statements aids the Court in adjudicating plaintiffs’ only remaining claims against the HFPA—they are plainly designed to inspire contempt of defendants."
Here's the full HFPA filing yesterday in the aftermath of the L.A. Times story:
Correction: This story originally reported incorrectly that the Los Angeles Times article omitted the judge's allowance of an amended complaint and the ongoing nature of the legal dispute.