WGA Files Suit Against Big 4 Agencies re Packaging Fees

by Larry Brody

Where we are now, via the WGA Negotiating Committee yesterday:

Dear Members,

Today the WGA filed suit in California state court against the four largest packaging agencies: WME, CAA, UTA, and ICM.  You can read the lawsuit here.

Guild members Patti Carr, Ashley Gable, Barbara Hall, Deric Hughes, Chip Johannessen, Deirdre Mangan, David Simon, and Meredith Stiehm have agreed to be plaintiffs, representing themselves and all writers harmed by packaging fees.

The goal of the lawsuit is a judicial declaration that packaging fees are unlawful as well as an injunction prohibiting talent agencies from entering into future packaging fee arrangements. The suit will also seek damages on behalf of writers and repayment of illegal profits.

The complaint is comprised of two claims:

  1. Packaging fees violate California fiduciary duty law.  Under state law, talent agents are fiduciaries, who are required by law to represent writers with undivided loyalty and without conflicts of interest.
  2. Packaging fees also violate California’s Unfair Competition Law.  Packaging is an unfair practice because it violates a federal statute, the so-called “anti-kickback” provision of the Taft-Hartley Act.  The direct payment of our agencies by our employers is prohibited under both state and federal law.

The WGA will continue to use all appropriate methods, including negotiation and litigation, to align agency interests with the interests of writers.

In Solidarity,

WGAW Board of Directors

David A. Goodman, President
Marjorie David, Vice President
Aaron Mendelsohn, Secretary-Treasurer
John August
Andrea Berloff
Angelina Burnett
Patti Carr
Travis Donnelly
Jonathan Fernandez
Ashley Gable
Deric A. Hughes
Michele Mulroney
Zak Penn
Luvh Rakhe
David Slack
Meredith Stiehm
Betsy Thomas
Patric M. Verrone
Nicole Yorkin

WGAE Council

Beau Willimon, President
Jeremy Pikser, Vice President
Bob Schneider, Secretary-Treasurer
Monica Lee Bellais
Kyle Bradstreet
Lisa Takeuchi Cullen
Bonnie Datt
Kaitlin Fontana
A.M. Homes
Kim Kelly
Susan Kim
Chris Kyle
Gail Lee
Kathy McGee
Hamilton Nolan
Phil Pilato
Courtney Simon
David Simon
Amy Sohn
Kelly Stout
Tracey Scott Wilson
Michael Winship

Related news:

WGA To Membership: Lawyer Up! David Goodman Explains Why Attorneys & Managers Can Fill The Gap

It’s Been a Big Week in the WGA-ATA Faceoff

by Larry Brody

Where we are now, via the WGA Negotiating Committee last Friday:

Fellow Members,

Last Saturday, at the agencies’ request, the Guild gave them six days beyond AMBA expiration to provide us with a fair offer.  They have not done so.  Among other unacceptable proposals, the agencies insist on continuing their major conflicts of interest.  They insist on continuing to produce and be our employers.  Their “offer” on packaging is to share 1% of their packaging fee with writers.  Here is the response David Goodman presented this afternoon at the bargaining table to the proposal the ATA made yesterday.

So there is no settlement.  The membership voted by 95.3% to implement an Agency Code of Conduct if a negotiated settlement was not reached, and elected leadership set today as the deadline.  As of midnight tonight, every agency will be required to become a signatory to the Code.  And under WGA Working Rule 23, WGA Current members cannot be represented by agencies that have not signed the Code.

So what happens now?  In a strike situation, we all know that we are to refrain from crossing the picket line or writing for a struck company, and we’re asked to show our solidarity by picketing, which is the public and moral face of our dispute.

In this situation there are two actions required of all members:  First, do not allow a non-franchised agent to represent you with respect to any future WGA-covered work.  Second, notify your agency in a written form letter that they cannot represent you until they sign the Code of Conduct.

Linked here is the form letter, in plain and respectful language, which accomplishes this task.  Members who are represented by agencies not signed to the Code of Conduct must e-sign the letter.  This letter also protects you legally in case of any future commission dispute.  The Guild will forward all letters en masse to the appropriate agencies in a few days.  Many of you will also want to inform your agents personally.  We encourage you to do so and to ask them to sign the Code.

We know you may have questions about exactly how to deal with your agent.  We have linked here to a set of rules of implementation and FAQs that clarify how to deal with agencies that are no longer franchised.  It is important that you read both the rules and the FAQ carefully. If you have additional questions about your situation, you should contact the Guild at: agency@wga.org.

We know that, together, we are about to enter uncharted waters.  Life that deviates from the current system might be various degrees of disorienting.  But it has become clear that a big change is necessary.

We will not only stand together, we will stand up for each other, lean on each other.  We can do this.

In Solidarity,

WGA-Agency Agreement Negotiating Committee

And from David A. Goodman, President of the Writers Guild of America West, on the same day:

I just wanted to respond to your proposals, because I feel it’s necessary that we be honest about where we are. We granted the one week extension with the sincere hope that we could reach a solution, and there have been a few moments of hope. On the subject of independent features, we appreciate the constructive dialogue we have had. I know it’s the feeling of the feature writers on our committee that the conversations and negotiations have been productive, and that we are close to finding an agreement on that issue that will both protect writers and allow agencies to be properly compensated for the important work they do in this area.

Unfortunately, it is the feeling of this committee that this is the only area where we we’ve made progress. Your proposals on information sharing are entirely inadequate. You continue to refuse to recognize the primacy of the Guild and our legal right to the information as exclusive bargaining representative for writers. Any consultation with an attorney experienced in labor law would confirm you are legally protected in this area, and some of you know it from your own experience with the sports unions. CAA is required to turn over the contracts to the NFLPA within 48 hours. The overwhelming majority of our members want their deal memos, contracts and invoices to go directly to the Guild, and any member that doesn’t will have avenues of recourse directly with the Guild.

Your presentation on packaging was a little confusing, not because we don’t understand it, but because you claimed that we didn’t, and then made a presentation that was very close to the speech I gave to our members. Our overall description of the mechanisms of packaging fees was exactly the same. Though we appreciate that you were listening to Mike Schur’s discussion of how important mid and low level writers are to us, your proposal of .8% of your backend of new series in no way realigns your incentives with these writers. You are still receiving money from our employers for access to us, and keeping 99% of the profits of your backend. It does not change your incentives at all. It is not a serious proposal and we reject it.

On your diversity fund proposal, the fact is, it shouldn’t rely on this negotiation. The moral obligation that our industry provide access and opportunity to underrepresented artists of our community is an obligation that we have only begun to address. While we applaud your willingness to confront issues of diversity and inclusion, it shouldn’t be used as a bargaining chip. You should know the comment of the diverse members of this committee upon hearing your proposal, was “We’re not pawns.” We also reject that proposal. And if you really feel that the program you proposed would make a difference, you are free to spend the money you pledged outside of this negotiation.

You have chosen to make no proposal on your affiliates, except to take a “wait and see” approach, which you did not present to us in this room, and so many of us only found out about when we read it in the trades. Even if you had presented it to us, it would still be unacceptable. Despite your protestations to the contrary, these production companies are not independent of your agencies, your private equity investors openly talk about how your leveraging representation of clients to create a production business is why they invested. While we acknowledge that you have made favorable talent deals, they are clearly a loss-leader strategy. We do not need to “wait and see” to know they will disappear when the business settles in. We reject this proposal.

As I said, we granted the week’s extension as a sincere effort to try to find a solution. But it is clear to us that we are not appreciably closer. We are willing to continue meeting with you when you provide a proposal that truly addresses our expressed concerns, but our Friday deadline has arrived and we are moving forward with the implementation of our Code of Conduct and the enforcement of our WGA Working Rule 23. Thank you.

For those who’ve been asking me for more info about what’s happening, the Industry trades have some excellent articles:

Damon Lindelof, Hart Hanson Among Top Showrunners Posting Termination Letters In Wake Of Failed WGA-ATA Negotiations

Inside the Final WGA-ATA Meeting Before Breakdown As Balance Of Power Shifts To Rank-And-File Writers

WGA to Members: ‘There Is No Deal,’ Fire Your Agents

Writers & Agents Set One Last Round Of Talks Before Tonight’s Deadlline; WGA Responds To ATA Demand That Guild Not Deputize Managers & Lawyers To Replace Agents – Update

ATA Offers To Share Packaging Fees With Writers

To those who’ve been asking for my personal opinion on whether or not the current WGA strategy will work, let me say that I’ve been thinking long and hard about not only the issues but the practical political outcome of where we are right now (i.e., firing our agents), and although I’m not nearly so eloquent as David A. Goodman, where I am boils down to this:

For what it’s worth, my experience has been that in any gathering of writers I’ve been at, the majority is made up of writers who either feel horribly let down by their agents or are upset about agents in general because they haven’t been able to obtain representation.

The specific current issues aside, so many writers feel trapped by agency agreements they wish they could escape or resentful at the agencies that rejected them as clients, that I’m confident that the vast majority of the Guild’s voting members will do what it takes to say, “Buh-bye” to their agents or just plain, “Fuck you” to the agencies as a whole.

After which they’ll fall into a huge funk, second-guessing what they’ve done and living in a state of neurotic terror about potential consequences.

I say the above with no small about of certainty because, well, because I’ve been a member of this Guild for 50, yep, 50 years, and that’s what we always do.

This could be a very long and bitter battle unless the ATA wises up and, having been reminded that ethics exist, starts being guided by them.

Yours in solidarity!

10 Most Viewed TVWriter™ Posts of the Week – April 15, 2019

Happy Monday everybody!

Hope you’ve had a great weekend. Time now for TVWriter™’s latest look at our most popular blog posts and resource pages during the week ending yesterday. They are, in order:

Writing the Dreaded Outline

How To Write The Perfect TV Series Review To Captivate Your Readers

‘The Following’ Season 4 was Cancelled by Fox Because the TV Series Became a Victim of Lazy Writing!

Empty Promises: My experience submitting scripts to Amazon Studios

Corporal Punishment and Primetime TV

8 Tips for Writing for Children’s TV Shows

SPIDER-MAN UNLIMITED SECOND SEASON ARC

PEOPLE’S PILOT Writing Contest

Looking for TV Pilot Scripts?

How to Write a Script for an Animated Show

Big thanks to everybody for helping us have another terrific week at TVWriter™. Don’t forget to click above and read what you missed and re-read what you loved!

The WGA and the ATA are Negotiating…sorta

The War Between TV and Film Writers and the Association of Talent Agents was scheduled to escalate at midnight, April 6th, but that’s on hold right now because – OMG! Be still our beating hearts! – further talks on what the Guild has named the “Agency Code of Contact” have been scheduled.

Here’s the latest letter of explanation from the Writers Guild of America West:

Dear WGA Members,

On March 31st – and by a vote of 95.3% – you authorized the WGAW Board and WGAE Council to impose an Agency Code of Conduct, if and when appropriate, after expiration of the AMBA at midnight on April 6th.  Empowered by your overwhelming support, the Negotiating Committee pledged that it would continue to seek a negotiated settlement.

This afternoon, a small group of agents met with members of your committee.  We had a frank and open conversation and, for the first time, the agencies acknowledged the depth of the problem that their behavior has caused. In that meeting, they asked us to delay implementation of the Code until end of day Friday, April 12th, so that they could present us with proposals to address those problems and reach a settlement.

In a sincere effort to find agreement, we have accepted that request.  In so doing, we are fulfilling our pledge to you – and the language of your authorization – that we use our best judgment as to the right time to move.  But Friday at midnight, which the agencies themselves proposed, is a true deadline.  Unless we have an agreed-upon deal, the WGAW Board and WGAE Council have voted that the Code of Conduct will go into effect at 12:01 am on Saturday, April 13th.  From that point on, diplomacy can continue alongside powerful collective action.

All of this might have happened last week. Instead, real negotiations begin now, as they always do, with a ticking clock.  It is your power – membership power – and your willingness to use it – that has brought us this far.  Conflicted practices and misaligned financial incentives have plagued our relationships with our representatives for too long.  We sincerely hope that the agencies will now become our true partners in a joint effort to deal meaningfully with both.

In Solidarity,

WGA-Agency Agreement Negotiating Committee

In other words, nobody wants to screw up the upcoming TV staffing season by risking having to get the jobs and negotiate the individual contracts without the help of our backstabbing agents.

Ah, Hollywood!

10 Most Viewed TVWriter™ Posts of the Week – April 8, 2019

Happy Monday everybody!

Hope you’ve had a great weekend. Time now for TVWriter™’s latest look at our most popular blog posts and resource pages during the week ending yesterday. They are, in order:

How To Write The Perfect TV Series Review To Captivate Your Readers

Writing the Dreaded Outline

‘The Following’ Season 4 was Cancelled by Fox Because the TV Series Became a Victim of Lazy Writing!

8 Tips for Writing for Children’s TV Shows

Barbara Hale: Perry Mason’s Right-Hand Gal(e)

Corporal Punishment and Primetime TV

Empty Promises: My experience submitting scripts to Amazon Studios

How to Write a Script for an Animated Show

TV Writers: How To Navigate Staffing Season

PEOPLE’S PILOT 2018 Winners

Big thanks to everybody for helping us have another terrific week at TVWriter™. Don’t forget to click above and read what you missed and re-read what you loved!