UPDATED with agencies’ response: The WGA on Thursday accused the Big 3 talent agencies of making “multiple misrepresentations” to a federal judge who’s presiding over their yearlong legal battle over packaging fees. The guild now is requesting that a hearing that had been taken off calendar be reinstated so oral arguments can be heard about the scope of discovery in the case.
That hearing had been set for May 19 but was taken off calendar April 29 – two days after U.S. District Court Andre Birotte Jr dismissed a large portion of the WGA’s antitrust claims against WME, CAA and UTA. The WGA East and WGA West – who together with several named plaintiffs are the counterclaimants in the case – made their request today to U.S. Magistrate Judge Alexander MacKinnon, who is handling the discovery portion of the case.
In their response, the agencies said they have “no objection to reinstating a telephonic hearing,” but noted that if the WGA had informed them about its intent to request a reinstatement of the hearing before filing “a five-page argumentative brief—which of course is unauthorized by the rules and should be stricken—the Agencies would have consented to the filing of a stipulated request to reinstate the hearing.”
Read the guild’s request here.
On April 27, Birotte threw out the WGA’s claims for federal price-fixing, racketeering and group boycott, but is allowing the guilds to proceed to trial on their state claim of price-fixing, and on several other claims by individual plaintiffs for breach of fiduciary duty, unfair competition and breach of contract.
On Tuesday, the agencies filed a supplemental brief seeking to limit the scope of discovery in in the wake of that ruling, saying that “Discovery should be focused on the issues that remain in the case, and the Guilds should not be allowed to use disproportionate discovery as a cudgel to achieve other ends.”
Today, however, the WGA accused the agencies of “misrepresenting” Birotte’s ruling. “They contend, for example, that the Guilds’ breach of fiduciary duty, constructive fraud, and Unfair Competition Law claims were dismissed ‘with prejudice,’ but those claims were actually dismissed with leave to amend.” The guilds now say that they will “amend and reassert those claims within the time period set by Judge Birotte’s order.”
“The Agencies still have not produced a single document, thereby precluding depositions and other follow-up discovery,” the WGA said in today’s request. “Moreover, also for the first time, the Agencies’ supplemental brief asks this Court to rule that their new proposal satisfies their obligations not only with respect to the discovery requests that are at issue in the current dispute, but also with respect to 16 requests that have not yet been the subject of any of the parties’ meet-and-confer discussions.
“This Court should reinstate the hearing on Counterclaimants’ motion in order to permit Counterclaimants to address the Agencies’ brand new positions that are improperly asserted in their supplemental brief. The Agencies contend that their change in position is justified by Judge Birotte’s April 27 order granting in part and denying in part their motion to dismiss, but the parties were well aware at all times that the Agencies’ motion to dismiss Counterclaimants’ counterclaims was pending, and the parties had agreed that only 16 discovery requests would be stayed pending the resolution of that motion.
“Moreover, Judge Birotte’s decision on the motion to dismiss was issued more than a day before the filing of the parties’ Joint Statement (on discovery). After the order was issued, the Agencies specifically requested and were given an extension of time to provide Counterclaimants with their portion of the Joint Statement in order to address the implications of that order.
“Thereafter, more than a day after issuance of the order, the Agencies requested that the Statement’s description of the issue presented be revised to specifically reference ‘the Agencies’ proposal to produce (i) their centralized files relating to all active package deals since June 2015.’ They thus had adequate opportunity to present any such positions in the Joint Stipulation.”
The WGA said that the documents it’s seeking will provide “evidence that agent misconduct was not rare” and that “conflicts of interest created by packaging frequently harm writers.”
Saying that the agencies acknowledge that Birotte’s ruling allows the WGA’s state price-fixing claim to proceed, the guild said that the agencies now “make the incredible suggestion that they should not be required to produce evidence regarding each of the deals that were the very subject of that price-fixing.”
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