Last month, WME and CAA asked US District Court Judge André Birotte Jr. to end the standoff by ordering the guild to allow the agencies’ writer clients to return to the agencies. They also asked the court to order the WGA to refrain “from utilizing or threatening any form of union sanctions or discipline” against guild members for engaging WME and CAA as the representatives of their writing services. A hearing is set for Dec. 18.
The dispute arose in April 2019 when the guilds ordered all of their members to fire their agents who refused to sign the WGA’s Code of Conduct, which banned packaging fees and agency affiliations with related production companies. Since then, every major agency except CAA and WME have signed a modified code that phases out packaging fees and reduces ownership interests of production companies to just 20%.
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“A year and a half after filing suit challenging the conduct at issue in this motion, after all the other Hollywood talent agencies have signed franchise agreements requiring the elimination of problematic conflicts of interest, CAA and WME now seek preliminary injunctions allowing them to resume their conflicted representation of the Guilds’ writer members and awarding them the full injunctive relief their lawsuit seeks,” the WGA East and West said in court papers filed on Friday.
“The Agencies’ motions are premised on blatant misrepresentations of their own positions in negotiations with the Guilds for a new franchise agreement. Further, as the numerous declarations from prominent respected showrunners, experts, and union officials accompanying this opposition make clear, their motions are premised on a fundamental misrepresentation of both the work performed by the Guilds’ showrunner members and the conflicted representation these Agencies’ continued ownership interest in affiliated production studios (i.e., the writers’ employers) ensures.
“Moreover, their motions ignore entirely that Congress has specifically and expressly eliminated the jurisdiction of the federal courts to issue the injunctive relief they seek in this labor dispute.
“CAA and WME’s motions rest heavily, and critically, on a misrepresentation: Both Agencies paint the false picture that they are currently in compliance with, or willing to comply with, all of the terms of the agreements the Guilds have reached with the other Hollywood talent agencies.
“But critically, CAA and WME acknowledge that they are not willing to agree to a key term that all the other talent agencies have agreed to: that they and their parent companies—including any private equity managers or other stockholders that own those agencies in whole or in part, and thus are likely to control the agencies’ incentives and behavior—be limited to a 20% ownership interest in the production studios that employ the writers WME and CAA seek to represent.
“In other words, WME and CAA ask this Court to require the Guilds to allow them a privilege no other agency has—the ability to represent the Guilds’ writer-members in negotiations with studios while maintaining significant ownership interests in those studios.
“It is WME and CAA’s insistence on an exemption from this key conflict of interest prohibition—not any Guild animosity or favoritism—that prevents them from reaching a new agreement with the Guilds. Now that every talent agency (including CAA and WME) has agreed to end packaging fees, and every talent agency except CAA and WME has agreed to the 20% limitation on agencies’ and agency owners’ interests in production companies that employ writers, WME and CAA seek this Court’s intervention to place its weight on their side in ongoing negotiations over their ownership interest in employers, and to force the Guilds to accede to their demands for conflicted representation.
“This Court should reject the Agencies’ request. Most fundamentally, because this controversy arises out of a labor dispute, the Norris-LaGuardia Act expressly deprives this Court of jurisdiction to enter any injunction. Even were that not so, the Agencies cannot demonstrate likely success, or even serious questions, on the merits.”
In mid-November, CAA and WME filed motions in the ongoing federal lawsuit, asking the court enjoin the WGA’s efforts to require them to comply with the terms of the franchise agreement that all other Hollywood agencies have now accepted.
On December 4, 2020, the WGA and individual writer counterclaimants filed their opposition to the motions for preliminary injunction filed by WME and CAA. The opposition was supported by evidence in the form of sworn declarations by Guild members, WGA executives and expert witnesses.”
See the guilds’ latest motion here.
In his sworn declaration, WGA West executive director David Young said that, “In essence, WME and CAA are asking the court to weigh in on one side of a labor dispute. The Guilds’ leverage to regulate the talent agencies depends on the exercise of collective power: the vote of 95% of the membership to approve a Code of Conduct, followed by the willingness of 7000 writers to fire their agents in support of their demand for unconflicted representation.
“The issuance of an order enjoining the boycott that mass action would effectively disarm one side in the dispute. Once the writers are allowed to return to their unfranchised agencies, the solidarity necessary for collective action will be broken and it will be impossible to undo the harm if that Court later determines the merits in favor of the Guilds. In the meantime, WME and CAA will no longer be under any pressure to enter into the franchise agreements they now say they are ready to sign.
“They will be free to continue their operations, conflicted and unregulated in any respect (e.g., limits on commissions; arbitration of client disputes), with an unfair competitive advantage over the agencies that have already signed, which may themselves consider relinquishing their WGA franchises.”
See Young’s declaration here.
The guilds’ Working Rule #23 prohibits members from being represented by unfranchised agents for their writing services, but it doesn’t stop prevent members from being represented by unfranchised agents for their directing and producing services, as Adam McKay, a client of WME, made clear in his declaration. “It is my understanding that Working Rule 23, as with every other of the Guilds’ working rules, applies to Guild members only when performing writing work that is governed by the Minimum Basic Agreement, which is the Guilds’ collective bargaining agreement with television and motion picture production studios,” he said in a declaration filed with the court.
“I have communicated with elected officers and staff members at the Guilds, who have consistently told me that Working Rule 23 applies to me and other Guild members only to the extent that we are performing writing work. These Guild leaders have made it clear to me that it does not violate Working Rule 23 for a Guild member to be represented by a non-franchised talent agency for non-writing work (e.g., directing or producing work).”
Other guild members who filed declarations in support of the guild’s opposition to the agencies’ request for a preliminary injunction include Alex Gansa, Barbara Hall, Chris Keyser, Carol Mendelsohn, Mike Schur, and David Shore. WGA staff who provided declarations include Chuck Slocum, Ellen Stutzman, Sean Graham and Geoff Betts. Legal experts filing declarations on behalf of the guild include Dr. James D. Reitzes, Dr. Coleman D. Bazelon, and Dr. Alisa Perren.
Several guild members who filed declarations in support of the guilds’ position sought to discredit one of the agencies’ key experts in the case – Dr. Edward Snyder, a professor of economics and management at the Yale School of Management, who asserted in his declaration that that showrunners “primarily perform managerial functions,” and “are also involved in the creative process, both in the early conceptual stages and as the shows are developed.”
Keyser, a former WGA West president, said in his declaration that “Dr. Snyder’s description of what showrunners do bears no resemblance to my own experiences as a showrunner or my knowledge of the day-to-day tasks of fellow showrunners. While a showrunner has both writing and production responsibilities, the principal job of a showrunner is writing and working with the writing staff, and the majority of my time is spent on tasks directly connected to writing.
“The core writing tasks that I spend most of my time and energy on when working as a showrunner include creating story arcs (i.e. the overall story for the entire season), developing the stories for each individual episode, writing from scratch the scripts of individual episodes, assigning other scripts to other writers to draft and then providing notes and other feedback on their drafts, rewriting portions of scripts drafted by others on the writing team, and making adjustments to the script during filming.”
Schur, the creator of Parks and Recreation and The Good Place, agreed, saying in his declaration that “Based on my own experience as a showrunner and my knowledge of the day-to-day tasks of fellow showrunners, Dr. Snyder’s description of what showrunners do is wrong. Were Dr. Snyder to spend a single hour in a writers’ room, he would see clearly that the primary duties of showrunners are writing duties. There may be a few showrunners who do not perform the writing duties described in his declaration, but they are a small percentage of the showrunners working at a given time on television programs. It’s difficult for me even to imagine the composition and workflow of such a room.
“Other contentions in Dr. Snyder’s report do not describe my experiences as a showrunner or what I know to be the practice of other showrunners in television. Dr. Snyder asserts, for example, that showrunners are ‘principally responsible for decisions to hire and fire creative talent’ and that the core duties of a showrunner are ‘managing the hiring, firing, and day-to-day work of a long line of writers, actors, and creative departments.’
“In fact, I do a very small amount of hiring and firing or managing of other creative departments as a showrunner. Generally I oversee the hiring of writers at the very beginning of a season, and then (hopefully) no personnel decisions need to be made for a long time. I also, at the beginning of a production, oversee the hiring of department heads and other personnel, but often those people are already known to me, or else are found and recommended by the line producer. Over the course of a season there will be a few meetings about staff members to hire. After those meetings, however, I generally do not spend time worrying about staffing or managing the production departments. Instead, I am mostly engaged in writing with the writing team.”