Why There’s No End in Sight for the WGA’s Legal Battle With Agencies

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Elliot Stokes for Variety

Will Hollywood writers wait another 14 months for a resolution to the ugly standoff between the largest talent agencies and the Writers Guild of America? The timeline for the legal fight playing out in federal court calls for the trial in the lawsuit filed by WME, CAA and UTA against the WGA to begin in March 2021. That news, which surfaced in a legal filing on Dec. 27, is sure to spur renewed efforts to find a compromise — or at least reach detente — well before 2020 ends.

“This has gone on long enough,” says a showrunner who has been vocal in support of the WGA but is growing frustrated at the lack of movement.

Any hope that the litigation might come to a speedy conclusion seemed to vanish on Dec. 6, when U.S. District Judge André Birotte Jr. indicated that he would deny the WGA’s motion to dismiss, and allow the agencies to pursue their antitrust claims. A final ruling is pending.

The next key moment in the case will come on Jan. 17, when the agencies will urge the judge to dismiss the WGA’s countersuit. The agencies argue the guild has not been harmed by packaging and has no legal standing to sue. Should the agencies prevail on that motion, they hope that might undermine morale at the guild and force the union to deal. If not, both sides will rack up huge legal bills in 2020 for discovery and pretrial motions.

The war began in April after the guild imposed new rules governing the conduct of agents who represent WGA members. The guild is pursuing what leaders believe are overdue reforms to protect members from conflicts of interest in the long-standing industry practice of agents collecting packaging fees from producers of TV shows that agents help clients to assemble. The guild also aims to curb the growth of agency-affiliated production entities, another source of conflict with clients.

Both sides are accusing the other of violating federal antitrust laws. The agencies contend that the WGA has abused its power, inflicting damage on actors, directors and consumers in a misguided attempt to abolish packaging. The WGA, meanwhile, argues that the agencies are colluding with one another in refusing to accept the guild’s new rules.

Many writers are less interested in the legal nitty-gritty, and simply want to know when they can expect to formally reunite with their reps at WME, CAA, UTA, ICM Partners, Paradigm, et al.

“Many writers are less interested in the legal nitty-gritty, and simply want to know when they can expect to formally reunite with their reps.”

One source close to the situation sees a “new normal” settling in. Writers who object to packaging and production can sign with a handful of smaller agencies that have signed the WGA’s Agency Code of Conduct. The WGA imposed the code after a fitful series of negotiations with the Assn. of Talent Agents to replace the agency franchise agreement that was set in 1976 — on the heels of an earlier battle over packaging fees.

In recent weeks, there have been increased anecdotal reports about some prominent writers and showrunners resuming work with agents who were formally terminated in April. Industry insiders report that in some cases, agents have gone so far as to accompany former clients to network and studio meetings on new business. One senior executive at a Big Four broadcast network observed last month that he’s had so much contact with agents for writers during the past few months that he “forgot” about the standoff. But WGA members are trying to keep this activity under the radar out of fear of sanctions from the union or blowback from the many guild members who staunchly support the WGA’s position.

As the battle with the agents drags on, the WGA is also readying to fight a two-front war. The master contract with the AMPTP expires on May 1. Negotiations for a successor agreement are expected to be difficult and could result in a strike.

The WGA may try to address the packaging issue in the AMPTP negotiations. Last spring, the WGA asked the studios to refuse to do business with agencies that had not signed on to the new Code of Conduct. The AMPTP rebuffed that effort, saying it would run afoul of state and federal labor laws, and would likely expose the studios, the guild and individual writers to an antitrust suit.

The guild could seek to raise the matter again, looking for a “no-packaging fee” provision from the studios. However, the antitrust laws bar unions from enlisting non-labor parties in an effort to restrain trade. The agencies have already accused the WGA of doing just that by coercing showrunners to fire their agents. Any effort to use the master contract negotiations to gain leverage in the packaging fight would likely face similar howls of protest from the agents, and quite possibly another lawsuit.