7:48am PT by Eriq Gardner
Writers Guild Says Federal Court Can't End Boycott of CAA, WME Agents
Ever since the Summer of 2019 when the Hollywood war between its writers and top talent agencies got to court, a question has loomed over proceedings: Is the Writers Guild of America conducting legitimate union activity by ordering members to fire agents who firms won't give up packaging fees and cap affiliate production? On Friday night, the question again resurfaced as the WGA told a California federal court that it lacks the authority to issue an injunction thanks to a seminal 1932 labor law.
Both CAA and WME are currently pressing U.S. District Court Judge Andre Birotte Jr. to immediately halt a boycott that they say is irreparably harming their business. Star clients are defecting to other agencies now franchised by the WGA, and so the two agency powerhouse say it's time for the judge to declare a likely victor in the 18-month-old antitrust case. (Here's what CAA is saying; and here's WME's arguments in support of an injunction.)
Now, however, the WGA is pointing to the Norris-LaGuardia Act.
That would be the law that came nearly a century ago when lawmakers looked to stand up to union-busting. Back then, employers were cajoling employees into promises not to join a union, and in Hitchman Coal & Coke Co. V. Mitchell (1917), the U.S. Supreme Court upheld injunctions enforcing so-called yellow-dog contracts. The Norris-LaGuardia Act was a reaction, stripping federal courts of jurisdiction to issue such injunctions.
So in invoking the Norris-LaGuardia Act, the WGA is again focusing Birotte's attention on the fact that this case involves union activity.
It's not the first time.
Previously in the case, after the talent agencies brought antitrust claims, the WGA sought dismissal on the basis that there were statutory and non-statutory labor exemptions from antitrust laws for circumstances when workers organize themselves to improve their working conditions. The topic was so important that the Department of Justice led by Donald Trump appointees filed an extremely rare statement of interest telling the judge to construe the labor exemption narrowly. (The DOJ even wanted time during a court hearing to argue.) This past January, Birotte rejected the WGA's motion to dismiss, nodding to the allegation that the guild had exceeded rightful authority by conspiring with non-members to enforce a boycott. That would be other talent agencies, lawyers, managers, and especially, showrunners (meaning writer-producers).
"Although this Court previously upheld the Agencies’ antitrust claims against a pleadings challenge, the Agencies come nowhere close to presenting evidence to fulfill their burden to prove the statutory labor exemption is inapplicable to the Guilds’ conduct," states the WGA in an opposition to the requested injunction.
"Rather, the numerous declarations in the preliminary injunction record make clear that the Guilds undertook this membership action to protect writers’ legitimate interest in unconflicted talent agent representation, and that the Guilds have not combined with any non-labor parties," continues the motion. "Showrunner and expert declarations show that the Agencies’ claims rest on fundamental misrepresentations of the work performed by Guild members: showrunners engage in extensive writing work, the core of showrunner work is writing, showrunners have a deep economic interrelationship with other writers... and the Guilds have instructed members (including showrunners) to terminate their agents only in relation to their writing work."
Alas, the WGA believes that not only is it likely to prevail on the merits of the antitrust claims because it is conducting itself no different from any other strike in which workers withhold labor until disputed conditions are satisfied, but that the result of the dynamic means no authority for any injunction to issue.
But just in case Birotte disagrees on what the evidence shows, or thinks that the Norris-LaGuardia Act is inapplicable, the WGA responds to the contention by CAA and WME that they are suffering irreparable harm.
"The equities also do not favor an injunction," writes WGA lawyers. "Any injuries to CAA and WME in the form of lost clients (customers) and agents (employees) can be redressed through the Sherman Act’s treble damages remedy, while entry of the injunction would undermine the Guilds’ ability to protect members from conflicted representation and upend Guild agreements with over one hundred other agencies."
Read the WGA's full motion here: