EXCLUSIVE: What started out in February as a David vs. two Goliaths legal battle has now seen both of the big guys hit back – hard. In a motion to dismiss filed Monday in federal court, ICM Partners are seeking to decimate the big implications antitrust amended complaint from boutique agency Lenhoff & Lenhoff. Having called the initial February complaint “without merit” at the time, fellow defendant UTA filed a similar dismissal motion this week too.
“Under the guise of an antitrust lawsuit, Plaintiff Lenhoff Enterprises, Inc. dba Lenhoff and Lenhoff is attempting to use the court system to complain about the freedom of television industry artists— directors, writers, and actors—to exercise their individual rights to choose the talent agencies that will represent them,” says the August 10 filed notice of motion from ICM’s lawyers Michael Garfinkel, Charles Samel and Jacqueline Young of Perkins Coie (read it here). Attaching a proposed order (read it here), the agency and UTA has both asked for a September 21 hearing before Judge Beverly Reid on their motions. Calling the February complaint “without merit” at the time, fellow defendant UTA filed a similar dismissal motion earlier this week.
At the basis of all this, Lenhoff & Lenhoff alleged in their initial February 13 complaint and the June 15 amended filing that ICM and UTA poached two of their producer clients last year. That’s one thing but more significantly the 18-year-old and 30-client Charles and Lisa Lenhoff founded company claims that packaging and other anti-competitive “predatory practices,” by the “Uber Agencies” rips up the Hollywood playing field. Spotlighting the antitrust charge arising out of the studios and big agencies collaboration, the smaller agency said in its amended complaint that “the consumer suffers, because of the lack of diversity and creativity caused by the monopoly.”
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Unsurprisingly, ICM have a different and openly dismissive perspective.
“Plaintiff’s chief complaint is that it has been disadvantaged in its ability to attract, win, and retain clients because other agencies, in effect, offer more opportunities and charge lower commissions,” asserts the 33-page filing of August 10. “However, that is a common refrain heard from competitors in every industry whenever rival firms compete for customers by offering lower prices or other benefits, and, in fact, is the very nature and goal of fair competition and a free market economy.”
Desiring a reset on the lucrative system that has grown up in the last decade or so, Lenhoff & Lenhoff’s amended complaint sought a court ordered “preliminary and permanent injunction to enjoin Defendants from packaging, producing, financing and distributing of scripted series and all other content programming while maintaining a Talent Agency License.”
Even less surprisingly, ICM is playing defense as offense on that. “As Plaintiff concedes, since at least 1959, the Labor Commissioner has consistently concluded that packaging falls outside the TAA (California’s Talent Agency Act) and, therefore, cannot be in violation of the TAA,” their attorneys argue.
“Rather than alleging any harm to consumers, as required for a private plaintiff to state a claim, Plaintiff concedes that artists are paying lower commissions,” says ICM’s motion this week. “Plaintiff is complaining about harm to competitors, not harm to competition. In any event, the amended complaint does not allege facts sufficient to show the formation and operation of any antitrust conspiracy, and Plaintiff affirmatively alleges that UTA, ICM Partners, and two other agencies planned to share market power, rather than vest monopoly power in a single agency, which is a necessary element of the cause of action that Plaintiff purports to assert.”
Lenhoff & Lenhoff are almost certain to response themselves with a filing before the proposed hearing next month on ICM’s motion.
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