No. 13-55545 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATIONAL CONFERENCE OF PERSONAL MANAGERS, INC. Plaintiff—Appellant, v. EDMUND G. BROWN, JR. ET AL, Defendants—Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA THE HONORABLE DEAN D. PREGERSON, JUDGE, PRESIDING DISTRICT COURT CASE NO. CV 12-09620 DDP (RZX) Brief of Amici Curiae in Support of Defendants-Appellees by Screen Actors Guild - American Federation of Television & Radio Artists, Directors Guild of America, Inc. and Writers Guild of America, West, Inc. ANTHONY R. SEGALL ROTHNER, SEGALL & GREENSTONE 510 S. Marengo Avenue Pasadena, CA 91101 Telephone: (626) 796-7555 Fax: (626) 577-0124 Counsel for Writers Guild of America, West, Inc. DAVID B. DREYFUS DIRECTORS GUILD OF AMERICA, INC. 7920 Sunset Boulevard Los Angeles, CA 90046 Telephone: (310) 289-2012 Counsel for Directors Guild of America, Inc. DUNCAN W. CRABTREE-IRELAND DANIELLE S. VAN LIER SCREEN ACTORS GUILD- AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS 5757 Wilshire Blvd., 7 th Fl. Los Angeles, CA 90036 Telephone: (323) 549-6627 Facsimile: (323) 549-6624 Counsel for SAG-AFTRA and Counsel of Record for Amici Case: 13-55545 12/13/2013 ID: 8901747 DktEntry: 28 Page: 1 of 39
39
Embed
Amicus Brief submitted by SAG-AFTRA/DGA/WGA and my Comments
SAG/AFTRA, the DGA and the WGA have banded together to file an Amicus Brief in support of the current enforcement of the TAA. My comments are as follows: pg 9: so what works fine for all other states can't work for California? Why aren't they asking other states for regulations? Pg 10: none of this has to do with managers, and in fact it's not uncommon for those entering any profession to work under such conditions. Pg 11: generalization that falls apart with specifics Pg 11: but it doesn't limit procurement to licensees, that's the point of this suit. Pg 12: this is why attorneys need to be supportive of the NCOPM's efforts Pg 13: so the personal managers hire the agents and supervise them but don't get involved in procurement that's irrational Pg 15: nope, that's all camacho did, all that Park did Pg 16: and when there is no others interested, who protects their clients interest then? Pg 17: creating a better sales product has nothing to do with procurement? Pg 18: except Buchwald, as the reply brief will make clear, is bad law; the court misinterpreted five precedents to make its holding Pg 19: where does this clear? You can't just say something to make it so Pg 21: The only relevant thing legislatively re the CEC Report, according to Marathon Court , is the recommendations, and their brief speaks about the discussion and conclusions of the Commission. And they recommended that the penalties that had been repealed not be reignited; and in the section they're quoting from you get an understanding of the reasoning, no legislative intent can be found. So the non legislative committee's conclusions are irrelevent, but even so, they concluded and recommended that there should be no prohibitionary statute or penalty provision. pg 22: the conclusions are contradictary and irrelevant. What matters is the recommendations, that's what the legislature adopted. Pg 23: Waisbren is mooted by Marathon Pg 24: 1700.4(a) only defines what an agent does, it doesn't prohibit anything Pg 25: something we should have, but it shouldn't be 50K which does no good to anyone, but related to held monies by the representative Pg 26: that's ridiculous. What agency isn't holding 50K of clients monies at any one time? and not true, they go to the Labor Commissioner pg 26: There is nothing in the legislative history of the Act that says artists deserve greater rights than others who may not have the wherewithal to pursue remedies in a court pg 27: so if manager holds back money, the artist has no recourse? They would ask a court to be made whole pg 28: hmmm.... the CA ent "commission was organized in early 1983 (pg 3) and submitted its report in December of 1985. (pg 1) And after studying the Act for three years, the commission found that "no clear legislative intent can be discerned" relevant to whether one needed a license to procure employment for an artist." pg 28: this is a flat out lie. pg 28: engage in activities that are completely lawful but have been enforced wrongly as unlawful. There is no law, it's a myth. pg 29: unless they'd actually read the TAA and took it on its face. pg 29: this is true. And per Marathon, all of these courts were incorrect. pg 30: except there are clear signs that say how fast you can go and statutes clearly defining what the consequences are if the speeder does get caught. If the TAA had a prohibition statute and a penalty provision, then this analogy would have merit. Pg 31: true. And this case will show that this finding is unsupportable because it is based upon Buchwald which was bad law, and was done despite the lack of a prohibition or penalty provision relevant to licensing, it violates the interstate commerce provision, the contract clause, etc... Pg 33: can one negotiate contracts, one of the major defining activities of an attorney, without a license? How do you know? Pg 34: I ask the Amici what could possibly be repealed to make what they claim is unlawful and make it lawful? If t
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
No. 13-55545
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL CONFERENCE OF PERSONAL MANAGERS, INC.
Plaintiff—Appellant,
v.
EDMUND G. BROWN, JR. ET AL, Defendants—Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
THE HONORABLE DEAN D. PREGERSON, JUDGE, PRESIDING
DISTRICT COURT CASE NO. CV 12-09620 DDP (RZX)
Brief of Amici Curiae in Support of Defendants-Appellees by
Screen Actors Guild - American Federation of Television & Radio Artists,
Directors Guild of America, Inc. and Writers Guild of America, West, Inc.
ANTHONY R. SEGALL
ROTHNER, SEGALL & GREENSTONE
510 S. Marengo Avenue
Pasadena, CA 91101
Telephone: (626) 796-7555
Fax: (626) 577-0124 Counsel for Writers Guild of America, West, Inc.
only they've got the pages all wrong, it's 13, and the only relevant thing is according to Marathon, is the recommendations, and on page 14 they recommended that 1700.44 and on 15, no legislative intent can be found, so this non legislative committee's conclusions are irrelvent, especially since they didn't state there should b a prohibitionaer statute.
16
in the Commission’s meetings. Cal. Entertainment Comm’n Rep. at p. 7.
Recognizing the managers’ contention that sometimes they engage in “limited
activities which could be construed as procuring employment,” activity that is
“only a minor and incidental part of their services to the artists,” the Commission
did attempt to formulate a compromise to allow limited unlicensed procurement
activity. Id. at 9-11. The Commission considered exempting “casual
conversations” regarding an artist or manager involvement in contract negotiations,
as well as exemptions where no fee or commission is charged. Id. at p.10-11.
Nonetheless, the Commission concluded that the prohibitions against
unlicensed procurement must remain total and without exceptions. Id. at p. 11.
After attempting to craft a compromise, the Commission concluded that:
“the prohibitions of the Act over the activities of anyone
procuring employment for an artist without being
licensed as a talent agent must remain, as they are today,
total. Exceptions in the nature of incidental, occasional or
infrequent activities relating in any way to procuring
employment for an artist cannot be permitted: one either
is, or is not, licensed as a talent agent, and, if not so
licensed, one cannot expect to engage, with impunity, in
any activity relating to the service which a talent agent is
licensed to render. There can be no ‘sometimes’ talent
agent, just as there can be no ‘sometimes’ professional in
any other licensed field of endeavor.”
Id. at 11-12.
The Commission also deemed it unnecessary to license personal managers
because the act of procurement is regulated, not the person. It concluded that,
that's ridiculous. What agency isn't holding 50K of clients monies at any one time? and not true, they go to the Labor Commissioner
ricksiegel
Sticky Note
There is nothing in the legislative history of the Act that says artists deserve greater rights than others who may not have the wherewithal to pursue remedies in a court
21
agreements establish standards of conduct for agents and require compliance with
certain conditions, limitations, and protections that augment and supplement the
Act. 9 For example, the Unions’ franchises: authorize certain types of inspections
of prospective agents, including site inspections; require the use of contracts
promulgated or approved by the Union; limit commissions on certain income
streams; and limit or prohibit financial interests that may pose a conflict of interest
with an agent’s clients. Additionally, certain of the Unions may require the agent
post additional surety bonds with the Union.
The Act and the Union franchises include many protections for artists that
unlicensed individuals avoid. Without the protections and remedies incorporated
in the Act and the Union franchises, vulnerable artists may be without a remedy in
instances of malfeasance. Moreover, each of the Unions’ franchise agreements
incorporates an arbitration procedure that either the artist or the agent can institute
when a dispute arises under the franchise.
5. The Law Regulating Procurement of Artists’ Employment is Clear
and/or NATR-member agents pending further action, a policy which SAG-AFTRA
has left in place for work under legacy-SAG agreements. The Basic Contract
between SAG and the ATA and NATR, which governed the formal relationship
between them, expired on or about October 20, 2000 and no amendment or
extension has since been entered into, other than a fifteen (15) month period during
which ATA and/or NATR-member agents maintained the status quo.
9 Each of the Unions requires that a talent agent seeking to represent its
members have a valid license as a prerequisite to becoming franchised.
hmmm.... the CA ent "commission was organized in early 1983 (pg 3) and submitted its report in December of 1985. (pg 1) And after studying the Act for three years, the commission found that "no clear legislative intent can be discerned" relevant to whether one needed a license to procure employment for an artist."
ricksiegel
Sticky Note
engage in activities that are completely lawful but have been enforced wrongly as unlawful. There is no law, it's a myth.
23
disingenuous for a talent manager of any experience to claim he is unaware that
procuring employment for his clients subjects him to potential liability.
The Act, its legislative history and decades of case law interpreting it make
clear that procurement of employment by anyone other than a licensed agent is
unlawful. Accordingly, until recently, courts have consistently held that under
which managers engage in unlawful procurement are void ab initio. See, e.g.Yoo.
v. Robi, 126 Cal. App. 4th 1089 (2005) (acts of procurement rendered contract
between manager and singer void despite express recognition that manager was not
an agent); Park, 71 Cal. App. 4th 1465 (personal manager’s unlicensed
procurement of engagements for a band rendered the parties’ contract void);
Waisbren, 41 Cal. App. 4th 246 (incidental or occasional acts of procurement by
manager were sufficient to render the parties’ contract unenforceable).
The calculated risk inherent in unlicensed procurement can be analogized to
risks many drivers take. Many drivers do not abide by posted speed limits,
recognizing that law enforcement does not have the means to stop every driver
who exceeds it. They rationalize that even if caught, the penalties may not be so
severe if they were not exceeding the limit by too much. The driver gauges the
traffic and surroundings, estimating how fast he can go before he risks drawing
attention to his vehicle. Similarly, many unlicensed and uninsured individuals
except there are clear signs that say how fast you can go and statutes clearly defining what the consequences are if the speeder does get caught. If the TAA had a prohibition statute and a penalty provision, then this analogy would have merit.
25
The California Supreme Court affirmed the lower court’s unanimous holding
that the Act applied to personal managers. The court correctly noted that the Act
“regulates conduct, not labels; it is the act of procuring (or soliciting), not the title
of one’s business, that qualifies one as a talent agency and subjects one to the
true. And this case will show that this finding was wrong because it is based upon Buchwald which was bad law, and was done despite the lack of a prohibition or penalty provision relevant to licensing.
26
Court deferred its application to the Labor Commission and the trial courts.
Marathon, 42 Cal. 4th at 998.
In the years since Marathon was decided, the Labor Commissioner has
exercised her discretion to sever unlawful acts. See, e.g. Kesha Rose Sebert pka
Ke$ha v. DAS Communications, Ltd., No. TAC 19800 (Cal. Lab. Comm’n Mar.
27, 2012) (applying the doctrine of severability to reduce a manager’s commission
despite finding that the illegal activities “were substantial and significant”); Plana
v. Quinn, No. TAC 15652 (Cal. Lab. Comm’n Feb. 24, 2012) (applying the
doctrine of severability because the "management services took up the bulk of the
relationship"); Yoakam v. The Fitzgerald Hartley Co., No. TAC 8774 (Cal. Lab.
Comm’n Jan, 11, 2010) (applying the doctrine of severability upon finding that the
procurement was collateral to the main purpose of an agreement and insubstantial).
But see, Solis v. Blancarte, No. TAC 27089 (Cal. Lab. Comm’n Sep, 30, 2013)
(finding no basis for severance where the central purpose of the parties’ agreement
was illegal).
3. Similar Regulatory and Enforcement Principles Are Used in
Other Professions
Laws restricting activities to licensed professionals are not limited to the
entertainment industry. The practice of medicine is restricted to licensed doctors.
Cal. Bus. & Prof. Code § 2052(a) (“[A]ny person who practices or attempts to
practice… any system or mode of treating the sick or afflicted in this state, or who
this is the epitome of why there's a suit. This statute doesn't say doctors diagnose, treat, operate and prescribe and the public and adjudicators must surmise illegality, it clearly states that doing those activities without a valid medical certificate "is guilty of a public offense." The TAA has no such clarity.
ricksiegel
Sticky Note
can one negotiate contracts, one of the major defining activities of an attorney, without a license? How do you know?
28
lawyers in this country.”). As with the Talent Agencies Act, these regulatory acts
use a functional test, rather than one’s job title, to determine who falls within their
purview.
The efficacy of the Talent Agencies Act’s functional test can be seen in
courts’ application of Marathon to other licensed professions. The holding –
allowing the severance of lawful and unlicensed conduct – has been applied to
compensation disputes in other regulated professions, notably real estate.
California's Real Estate Law bears some similarity to the Talent Agencies
Act, particularly in the functional test defining its coverage. It provides: "[i]t is
unlawful for any person to engage in the business, act in the capacity of, advertise
or assume to act as a real estate broker or a real estate salesman within this state
without first obtaining a real estate license ...” Cal. Bus. & Prof. Code §10130. A
real estate broker is: “a person who, for a compensation or in expectation of a
compensation…does or negotiates to do one or more of” five listed acts. Cal. Bus.
& Prof. Code §10131. Like the Talent Agencies Act, the definition is functional,
providing that it is the acts performed rather than the individual’s job title that
subject him to regulation.
In Venturi & Company v. Pacific Malibu Development Corporation, the
parties’ contract required the plaintiff to provide a range of services, some that
require a real estate broker license, which the plaintiff did not possess. Venturi &
except the Real Estate Law has statutes that define what only licensees can do, and how violations of the Act can lose their license or be found guilty of a misdemeanor.
I ask the Amici what could possibly be repealed to make what they claim is unlawful and make it lawful? If the answer is nothing -- and the answer is nothing -- then there is nothing that makes any activity unlawful.
ricksiegel
Sticky Note
and again, what is procuring employment? Does it include creating the sales materials? Hiring and supervising the sales staff? Certainly that is part of the sales process. And this brief ignores perhaps the greatest contribution SAG has repeatedly says managers provide -- representing artists before or after agents are willing to do so. Perhaps thats because if managers were to follow the fantasy that the Amici present in this brief, it would be impossible for a manager to represent and service a client without an agent already in place.
31
For the foregoing reasons and those in the Appellee’s Brief, Amici
respectfully urge this Court to affirm the decision below.