Talent Managers Lose Legal Effort to Toss California Law

Talent Managers Lose Legal Effort Toss
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Statute Prohibits Reps From Procuring Employment

A federal judge has dismissed an effort by talent managers to strike down a California law that prohibits them from procuring employment for their clients.

U.S. District Judge Dean Pregerson on Tuesday threw out a suit challenging the state’s Talent Agencies Act that was filed by the National Conference of Personal Managers, claiming, among other things, that the state’s ban on unlicensed managers from “procuring” employment was “unconstitutionally vague.”

But Pregerson said that courts have already have sufficiently established what “procuring” means, noting that it is contained in “numerous California statutes” that have not been challenged.

In a 2008 decision, the California Supreme Court ruled that the Talent Agencies Act does apply to personal managers and that they may not recover fees from clients if they procured work for the. The case stemmed from a case involving Rosa Blasi, an actress on the TV show “Strong Medicine.” After her management firm, Marathon Entertainment, sought unpaid commissions, she filed a petition with the state Labor Commissioner who sided with her and voided the management contract.

Pregerson also rejected a claim brought by the personal managers that the state statute creates a situation of “involuntary servitude” because they can be denied a commission.

“Plaintiffs are incorrect,” Pregerson wrote. “Not being compensated for work performed does not inevitably make that work involuntary servitude. Plaintiff’s members have choices.”

He also rejected claims that the Talent Agencies Act violated the Commerce Clause, the Contracts Clause and the First Amendment. Of the latter, he wrote that the state statute “protects conduct, not speech. It does not limit the speech of a personal manager; it limits the personal manager’s ability to enforce contractual obligations when that person engages in the conduct of procuring employment.”

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  1. Undaunted by an initial rebuff, the National Conference of Personal Managers (NCOPM) will take their challenge of the constitutionality of the California Talent Agencies Act (TAA) to the Ninth Circuit of the U. S. Court of Appeals.

    The U. S. District Court for the Central District of California granted a motion last week to dismiss an NCOPM lawsuit filed late last year. The NCOPM suit claimed the TAA violates freedom of speech and association guarantees of the First Amendment, indentured servitude prohibitions of the 13th Amendment, due process and equal protection provisions of the 14th Amendment and the Interstate Commerce Clause of the U. S. Constitution. Named as defendants in their official capacities were California Gov. Edmund G. Brown Jr., Attorney General Kamala D. Harris and Labor Commissioner Julie A. Su.

    Although the U. S. District Court found that NCOPM likely had standing to sue and appropriately sued the California Labor Commissioner, the Court dismissed the action seeking declaratory and injunctive relief with a determination that NCOPM “failed to state a claim.”

    “Obviously, we disagree with the judge’s conclusions. For a ruling on a motion to dismiss, the court’s opinion is an abuse of judicial discretion,” said Clinton Ford Billups Jr., NCOPM National President. “Appropriately, NCOPM has instructed our legal counsel to proceed with an appeal.”

    “NCOPM will pursue this appeal not only on the basis of judicial error, but also because the TAA controversy has plagued our occupation long enough,” said Mr. Billups.

    “In January, 2008, the California Supreme Court stated in Marathon v. Blasi, ‘We, of course, have no authority to rewrite the regulatory scheme. In the end, whether the present state of affairs is satisfactory is for the Legislature to decide, and we leave that question to the Legislature’s considered judgment.’ Since neither the California Supreme Court nor the Legislature has resolved this controversy, our only recourse is to seek resolution in the federal courts,” said Mr. Billups.

    The California Labor Commissioner has historically penalized personal managers for allegedly acting as unlicensed talent agencies, voided personal management contracts and ordered management compensation to be forfeited or returned. Personal management compensation, which has been either disgorged by the Labor Commissioner or negotiated away by a manager afraid to face a TAA controversy, is estimated to have cost personal managers in excess of one-half billion dollars in earnings, according to Mr. Billups.

    Originally founded in 1942, NCOPM is the nation’s oldest and largest professional association of personal managers who provide representation of talent engaged in entertainment, media and performing arts.

    Christopher B. Good, Esq., and William Ferguson, Esq., of Fowler & Good, LLP, filed the lawsuit on behalf of NCOPM. The case citation is National Conference of Personal Managers v. Edmund G. Brown, Jr., Kamala D. Harris, Julie A. Su, et al., No. CV12-9620 DDP (RZx), C.D. Cal.

  2. rick siegel says:

    With respect, the determination doesn’t determine all of the issues raised, including the most fundamental: how can the Labor Commission mete out penalties without having statutory notice of what the consequence would be for unlicensed procurement? It is a 14th Amendment argument of due process and equal protection; and none of those three phrases appear in the determination. Nor does the word applied, and all but one of our challenges were as applied. Neither do the words ‘consequence’ nor ‘penalty’ appear in the determination.

    The determination clearly doesn’t understand our 13th Amendment argument, which isn’t about involuntary servitude, but that the Amendment preserves the right of every American to be paid for their labor unless they have been ‘duly convicted’ of a crime, and the TAA specifically states that no TAA violation can be considered criminal. So the issue the judge was asked to answer is past meting out any penalty without notice, how can the penalty meted out be criminal when there is no criminal activity.

    The determination responds to part of the Commerce Clause and Free Speech claims, but not all that are raised.

    But most quizzically, the determination seems to misunderstand what is needed to prevail in a 12(b)(6). Though it memorializes that, “When considering a Rule 12(b)(6) motion, a court must
    “accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff,” the judge accepted all the material facts presented by the defendants as true and rejected our facts out of hand. The basis of our claims is that the Act in fact does not determine conduct, based on there being no statute that specifically limits the activity of procuring employment for artists to licensees, whereas the Contractors, Physicians and all other licensing schemes that in fact do determine conduct have such statutes.

    As such, unless he could specifically point to such a statute which would make our claim frivolous, the Judge was beholden to accept our raising the material fact that there is no statute limiting any activity to licensed talent agents. But instead the determination states how “The court agrees with Defendants that ‘the TAA licenses the conduct of procuring employment for artists, not the expressive means by which employment is procured.” That is a blatant judicial mistake: the court cannot choose whose facts are correct in a 12 (b) (6) motion, he must accept the Plaintiff’s allegations of fact. And he didn’t.

    The Act is unconstitutional. Had this court done it’s job, we’d be a step closer to ending this blight on our system. the next step is appeal, and because of the above — that the judge didn’t speak to all the issues raised and his failure to follow basic procedure — the Plaintiffs expect the ruling to be turned around by the Ninth Circuit. Or at least they know it should be.

  3. Spike says:

    This is a mock law anyway and is universally ignored. Indeed many directors, writers and actors have both an agent and a manager and everybody gets along fine. So the California court can sit in their robes in their ivory tower and delude themselves they’re doing anything of value with regard to this issue, while the rest of us will get on with the job of making movies and TV which the “justices” (and I use the term extremely loosely) can enjoy.

  4. Michael says:

    Another ignorant Judge delivers another ignorant decision. I always knew Justice was blind, but in Judge Pregerson’s case, it’s blind deaf and REALLY dumb.

    Hopefully an appeals panel will tone down the ignarance and come up with a solution which is fair to all parties.

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