Hollywood Labor Roundup

Keeping you up to date on miscellaneous goings-on in the world of Hollywood labor, here’s what’s happened in the last week or so:

• SAG Commercials Negotiations. These continue in NY under a press blackout. No news to report.
• SAG TV/Theatrical Contract. Rumors abound that a top CAA exec or a studio chief might get involved in trying to mediate between SAG and the AMPTP. Unclear if there’s any substance to the reports.
• Counter Leaving. The AMPTP confirmed what had been an open secret: after 27 years (and after negotiating a staggering 311 union contracts), the studio alliance’s president, Nick Counter, is retiring. That will be effective March 31, 2009. His deputy, Carol Lombardini, executive VP, will serve as acting president, and Counter will continue on as a consultant, including on the SAG negotiations, whenever there are any again.
• Chernin Leaving. After 20 years at Fox, thirteen of them as News Corp.’s president and COO, Rupert Murdoch’s deputy, Peter Chernin, is retiring. That’s of interest to union watchers because Chernin and Disney’s Bob Iger played a role in brokering a deal to end the writers strike last year. Now it seems less likely that Chernin could play such a role in the SAG stalemate, assuming anybody could.
• DGA Hires New Media Consultant. Already planning for thee 2011 labor negotiating cycle, the forward-looking Directors Guild has hired new media consultancy Wolzien LLC to study the issues. Wolzien, whose principal (and apparently sole employee) is Tom Wolzien, was one of two consultancies that performed a similar function for the DGA leading up to the 2007-2008 negotiations. (The other firm has never been publicly identified.)
• WGA Executive Director David Young Defends Writers Strike. Well, what did you expect? Young lays out his case in a statement on the WGA website, which includes a handy chart and a bullet point list (see below).
• Leno Haled Into WGA Court. Jay Leno is facing the music for writing his own material during the WGA strike, which the WGA contends was a violation of strike rules. No word on a verdict yet.

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WGA Chart of Improvements over Studios’ Last, Best and Final Offer

Top of Form

	November 4 AMPTP offer	February 9 final deal
Internet ad-supported streaming – in the first year of the life of a television program	Free for 6 weeks; 1.2% of producer's gross thereafter (equal to 0.24% of distributor's gross)	Free for 17 or 24 days; 3% of applicable minimum; switches for network prime time in the third year of the contract to 2% of distributor's gross
Internet ad-supported streaming – after the first year of the life of a program	1.2% of producer's gross	2.0% of distributor's gross
Internet ad-supported streaming feature films	No residual offered = zero	1.2% of distributor's gross
Electronic Sell-Through (Download to Own)	DVD rates (0.3% and 0.36% of distributor's gross)	0.65% and 0.7% of distributor's gross (though the companies are now reneging on covering library product with these negotiated rates)
Internet Download Rentals	1.2% of distributor's gross	1.2% of distributor's gross
Fair Market Value test	Same as 2001 contract	Enhanced test for related-party transactions
Inspection of New Media Deals and Activity reports	None	Rights for quarterly inspections of unredacted company records
Promotional use in new media	Free, however they define it, including ad-supported streaming of complete programs	Clips only are free and only with clearly promotional purpose
Made-for-New-Media	Jurisdiction over dramatic forms only if derived from MBA-covered scripted programs; excludes original, comedy-variety, serials, etc.	Jurisdiction over all New Media programs; terms and conditions applied to all but the lowest-budgeted productions, only when done by non-professional writers
Creator's rights ("Separated" Rights)	None	TV Separated Rights adapted to New Media

WGA List of Improvements Over the DGA Deal

• The DGA won EST [i.e., Electronic Sell-Through] at 0.65% and 0.7% only for movies and TV first released in 2008. The WGA won EST at 0.65% and 0.7% for our entire library of product – although the companies are trying to renege on this, forcing us to seek arbitration.
• The DGA won only a small raise in the third year of streaming. The WGA, for the first time ever, won a formula by which the writer will be paid 2% of Distributors Gross in the third year of streaming.
• The DGA sunsetted all New Media provisions in their contract. WGA accepted no such sunset clause – we don’t want to start from zero in these hard fought areas when we go back to the bargaining table in 2011.

Leno’s All Charged Up

The wheels of Writers Guild justice grind slowly, it seems. Flashback to January 2007—almost 14 months ago—when Hollywood was in the middle of a long writers strike, rather than an even longer screen actors stalemate. Comedian Jay Leno, after having been off the air for weeks, came back on, this time minus his writers.

That reappearance gave the WGA strike a highly visible supporter, as Jay’s first returning monologue was a recital in favor of the strike. But it also created a problem, because Leno, himself a WGA member, was penning his own material. The WGA said at the time that that was a violation of guild strike rules. Leno and his network, NBC, denied that the strike rules applied to performers writing their own material. The legal analysis is a bit complicated, but I concluded at the time that Jay was probably in violation.

Eventually the strike ended, and we all moved on to other things, such as SAG strife and bank failures. La affaire Leno disappeared into the maw of the WGA. Meanwhile, ironically, Jay made Hollywood labor news again in December, when it was announced that his show was moving to primetime, displacing five hours of scripted primetime programming per week and causing a commensurate loss of acting jobs that upset SAG.

The Writers Guild, in turns out, hadn’t forgotten Jay, or forgiven him either. Why it took 14 months is unclear, but yesterday, reports the LA Times, Leno was called in front of a WGA trial committee to assess whether he had broken the strike rules. The case is a political hot potato, because it pits the power of a Hollywood guild against the even greater power of one of its prominent members. If found guilty, penalties could include a reprimand, a fine or even expulsion from the union (this last seems unlikely). No word, however, on how long that determination might take, or on what appeal procedures might be available.

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Video of public panel discussion re Hollywood Labor

Last night, there was a panel in LA entitled How Will Labor Discord Change Hollywood? A story about the panel and video of the event are available here.

The panel focused on Hollywood labor issues related to new media. Sponsored by Zocalo and moderated by LA Times Editorial Board Member Jon Healey, panelists included AFTRA National Executive Director Kim Roberts Hedgepeth, actress Kathryn Joosten, actor Ron Ostrow, UCLA Law professor David Ginsburg, Veoh Founder and Chief Innovation Officer Dmitry Shapiro, and TroyGould entertainment attorney Jonathan Handel.

AMPTP Offer

People have asked where to find the AMPTP's recent Last, Best and Final Offer to SAG. Here's the link, plus a link to the AMPTP's highlights document and the SAG and AMPTP statements regarding the offer:

* AMPTP's Last, Best and Final Offer to SAG
* Highlights document
* SAG statement
* AMPTP statements

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Public panel discussion re Hollywood Labor

Tomorrow, Monday, Feb. 23, there will be a panel in LA entitled How Will Labor Discord Change Hollywood? The panel will focus on Hollywood labor issues related to new media.

Sponsored by Zocalo and moderated by LA Times Editorial Board Member Jon Healey, panelists include AFTRA National Executive Director Kim Roberts Hedgepeth, actress Kathryn Joosten, actor Ron Ostrow, UCLA Law professor David Ginsburg, Veoh Founder and Chief Innovation Officer Dmitry Shapiro, and TroyGould entertainment attorney Jonathan Handel.

The panel starts at 7:30 at the ArcLight Sherman Oaks, 15301 Ventura Blvd., Sherman Oaks, CA 91403. For info and reservations, visit http://www.zocalopublicsquare.org/lectureseries.php?event_id=168.

What Does the Internet Mean for the Movie Business?

There’s been a lot of discussion lately about the relationship between the Internet and television. The talk focuses on such sites as Hulu and such issues as whether and/or when the Internet will overshadow television, or whether all television will be Internet based. The debates have been especially fierce in the context of the SAG stalemate, since compensation and residuals are much lower in new media, and union jurisdiction more limited, under the model proposed by the studios to SAG and adopted by the DGA, WGA, AFTRA and the IA.

But with all the focus on television and the Internet, there’s been little discussion of late on the relationship between movies and the Internet. Sharon Waxman’s recently launched site The Wrap remedied that somewhat with a panel (and party) Wednesday night. Entitled “Hollywood 2.0: Transformation as Opportunity,” the session was moderated by Waxman, and featured Universal Pictures chairman Marc Shmuger and Yahoo! SVP of U.S. audience Jeff Dossett.

It turns out, according to Shmuger, that the Internet doesn’t mean much at all to the movie business yet. He remarked that the Internet is a “broad marketing tool,” but went on to say that $3 million invested in a TV buy creates more awareness than the same amount invested online. He also remarked that the Internet “is not a key influencer” of audience choice in what movies to see. Rather, it’s number three behind trailers and TV spots.

Dossett, for his part, spoke more enthusiastically, asserting that the “efficiency and reach of the Internet is phenomenal,” and offering as evidence the metric that movie trailers on Yahoo! can receive from one to five million views. He also noted that it was “very unlikely that Yahoo! will create feature length movies.”

Asked what the movie industry can learn from the Internet industry, Shmuger cited that sector’s nimbleness, responsiveness, and “courage to act quickly.” He noted that Hollywood doesn’t have nearly enough two-way communication with the audience.

Discussion of the Internet as a distribution platform, rather than just a marketing tool, was striking for its absence at the panel. Shmuger stated that studios were “not making any real money in the digital world,” and asked “Where’s the beef?” in such transactions. Neither panelist discussed piracy in any depth—an example of the Internet as a highly successful distribution platform, albeit one where no revenue is generated for the content’s legitimate owners.

What I didn’t hear was any innovative ideas on how to use the Internet as a distribution medium that allows a uniquely personalized relationship with each audience member. So, as I left the session and grabbed a few remaining tasty desserts, it was hard to escape the notion that Hollywood might well be repeating the mistakes of the music industry. Let’s hope not.

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SAG Rejects Studio Offer; Back to Stalemate

By a vote of 73% to 27%, the Screen Actors Guild board of directors voted Saturday to reject the studios’ most recent offer, which the studio alliance, the AMPTP, had delivered two days earlier. Thus, the offer will not be sent out to the membership for a ratification vote. Nor, however, does the rejection mean that there will be a strike, since the union has not (as yet, at least) sent a strike authorization vote to the membership. There are no further meetings scheduled between the two sides.

What next? No doubt there will be attempts at back-channel talks, but, if so, progress is likely to be slow at best. The studio offer by its terms was to remain on the table for up to 60 days. Now that it’s been formally rejected, however, the studios could presumably impose the proposed deal unilaterally. Or, they could lock actors out. Neither action seems likely though, since either one would tend to unify the SAG membership, and neither approach would give the studios what they want (particularly in the feature realm), which is the absolute assurance that the union won’t strike. That complete assurance comes only when a signed contract is in place.

Thus, the most likely result is continued stalemate. Indeed, in the short term, SAG has other fish to fry: the negotiations over the commercials contract begin Monday. That agreement is SAG’s second most important contract economically. Fresh from today’s boardroom, the union’s leaders must now decamp for New York, where they, along with AFTRA leaders and the two unions’ joint commercials negotiating committee, face off against the Joint Policy Committee (JPC), representing advertisers and ad agencies.

Meanwhile, SAG’s main objection to the AMPTP offer is not new media per se, but the rather more prosaic issue of contract expiration date. SAG wants the contract to expire June 30, 2011, which would put in synch with AFTRA and just a couple months later than the Writers Guild. That synchronicity, with its threat of a possible joint strike, would give the unions negotiating leverage in 2011. They’ll need that leverage to effectively bargain over new media, which will have grown in economic importance by then, perhaps dramatically.

The studios, however, want a three-year deal, which is the usual term for Hollywood labor agreements, and the offer rejected today so reflects. That would put SAG’s expiration in early 2012, or almost a year later than the WGA’s. The stage would be set for a repetition of this year’s labor scenario, in which the SAG deal expired 8 months after the WGA’s did (in fall 2007). Indeed, with a desynchronized expiration date, SAG could find itself playing a weak hand every three years for future negotiating cycles to come. As new media continues to evolve, SAG would find itself entering increasingly difficult negotiations with little leverage.

The studio offer includes an unusual wrinkle: the SAG deal will be allowed to expire on June 30, 2011 (which is the same date the AFTRA agreement expires), but only if SAG and AFTRA jointly bargain and reach a deal before that date. In other words, the two unions would be able to bargain jointly, but SAG would not have a strike threat to back up its negotiating position.

Below are statements released by SAG and the AMPTP.

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STATEMENT FROM SAG NATIONAL BOARD OF DIRECTORS — SAG NATIONAL BOARD REJECTS AMPTP LAST, BEST AND FINAL OFFER

Los Angeles, (February 21, 2009) – The Screen Actors Guild National Board of Directors today voted 73% to 27% to “reject the AMPTPs last, best and final offer dated February 19, 2009.”

We entered this round of negotiations sending an unmistakably clear message that we were ready to make a deal. In an effort to put the town back to work, our negotiator agreed to modify the Guild’s bargaining position to bring the Guild in line with the deals made by our sister unions.

The AMPTPs last-minute, surprise demand for a new term of agreement extending to 2012 is regressive and damaging and clearly signals the employers’ unwillingness to agree to the deal they established with other entertainment unions. The demand for a new term of agreement was not part of their final offer of June 30, 2008; it was not part of the federally mediated talks of November 2008, and should not have been inserted into the discussions when we returned to negotiations on February 17, 2009.

What management presented as a compromise is, in fact, an attempt to separate Screen Actors Guild from other industry unions. By attempting to extend our contract expiration one year beyond the other entertainment unions, the AMPTP intends to deleverage our bargaining position from this point forward.

Screen Actors Guild’s goal is to successfully complete these negotiations and get the industry back to work as soon as possible. The AMPTP has clearly stated their need and desire for financial certainty and industry peace. This new proposal does the exact opposite, and will only result in constant negotiating cycles and continued labor unrest.

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Statement by the AMPTP

The Producers' offer is strong and fair - and has been judged to be strong and fair by all of Hollywood's other major Guilds and Unions. We have kept our offer on the table - and even enhanced it - despite the historically unprecedented economic crisis that has clobbered our nation and our industry.

The Producers have always sought a full three-year deal with SAG, just as we negotiated with all the other Unions and Guilds, and have offered SAG a way to achieve an earlier expiration date without contributing to further labor uncertainty. We simply cannot offer SAG a better deal than the rest of the industry achieved under far better economic conditions than those now confronting our industry.

What Can SAG Do Next?

Talks between the Screen Actors Guild and the studio alliance (AMPTP) have collapsed, and the studios have offered SAG a take it or leave it offer. SAG probably has insufficient internal support for a strike, the offer is a bitter pill, and the Guild is in disarray, riven by internal political disputes and losing out dramatically this pilot season to its smaller rival, AFTRA. Add to that, the commercials contract negotiations start next week, and with SAG in a weakened state, the results aren’t likely to be great there either.

What to do? At the risk of sounding too much like of a moon-beam Californian, perhaps judo is in order. No, not so that SAG leaders can take out their frustrations on the previous hard-line SAG leadership that is largely responsible for this mess. Rather than the usual internecine fighting—again, attributable largely to the hard-liners—the martial arts this time should be applied against the studios instead.

And what does that mean? Judo, Wikipedia reminds us, “is the principle of using one's opponent's strength against him and adapting well to changing circumstances.” SAG is weak at this time, and the studios are strong. So, if the studios think this offer is one the membership should vote on—their statement implied as much—perhaps SAG should comply.

In other words, send the offer out—but with no recommendation. That could take the form of a statement to the effect that “SAG leadership is unable to recommend this deal to the membership, but here it is; you tell us.” Or, leadership might even include a recommendation that the members vote no. Either way, the time to do so is this Saturday’s national board meeting, so that SAG can demonstrate unity and resolve before the commercials negotiations commence.

The hard-liners at the studios may have made a big mistake here. There were some simple enhancements they could have added to the deal that would have allowed SAG’s new leadership to save face and argue in the boardroom that the offer should go out with a yes recommendation. There would still probably have been a minority report urging a no vote— I believe such a report is required if at least 25% of the voting power of the board so requests, as would be the case here—but the fight for ratification would have been engaged. Instead, they chose to send out an offer one of whose highlights they tout as the recognition that “dancing on hard and slippery surfaces may qualify as hazardous activity.” Isn’t that just peachy.

Obviously, the studio hard-liners are counting on SAG to be weak. That may turn out to be a dangerous bet for the AMPTP. Recommending this deal would probably be political suicide for the moderates on the SAG board, particularly the Hollywood-based Unite for Strength faction. So, they’re unlikely to push for a yes recommendation. And if the deal proves unratifiable, the studios will have no choice but to add enhancements if they want a deal at all—and they do, so that feature production can resume with absolute certitude that there will be no strike.

Thus, the studio hard-liners’ hopes for a compliant Guild might be realized, but not in the way they wanted. This time, perhaps they can be schooled not just in an Asian martial art, but in an English-language aphorism as well: be careful what you wish for, because you might just get it.

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Is SAG Becoming Irrelevant?

The Screen Actors Guild is besieged by bad news, and thanks to the misguided strategies of the previously-dominant hard-line faction, the union may be slipping towards irrelevance.

Start with the latest: Talks between SAG and the AMPTP (studio alliance) collapsed Thursday night, with the AMPTP presenting SAG with a take it or leave it offer and a 60-day deadline, after which the offer could be modified or withdrawn. (AMPTP statement below; SAG has not yet issued a statement.)

The new Last, Best and Final Offer (highlights here) deletes or modifies several rollbacks contained in the previous AMPTP offer, which had been on the table since June 30, 2008—approximately eight months ago—when the 2005-2008 union agreement expired. Other than the removal or modification of rollbacks (which I had anticipated, see secs. 3(d), (e) & (f) of this post), the new offer contained no significant improvements over the previous offer (SAGWatch has a nice summary). Both the previous and new offer contain improvements over the 2005-2008 agreement, such as approximately 3.5% increases per year in union TV and theatrical minimums.

However, perhaps the most bitter news for SAG is that the studios are insisting on a three year contract, as I predicted might be the case (see sec. 3(g) of this post). The resulting 2012 expiration date means that SAG would not be able to threaten a joint strike in 2011 with the WGA (let alone AFTRA) when those unions’ contracts expire. (The studio proposal would allow SAG to synchronize its expiration with AFTRA’s 2011 date, but only if the two unions jointly negotiate and ratify a deal at that time without a strike.)

Also in the news is a stunning report from the Hollywood Reporter that this year’s pilot season will be more than two-thirds AFTRA. Specifically, says the story, at least 50 of the 70-plus primetime pilots will be AFTRA, a complete reversal from the SAG-dominated pilot seasons that have prevailed for many years. The article quotes studio sources who say the reason for the change is primarily the turmoil and uncertainty surrounding SAG, and the possibility that existed until recently that the Guild might strike.

SAG, and all actors, are also threatened by the continuing rise of non-scripted primetime programming such as reality, game shows, and even Jay Leno’s talk show, but even here, advantage AFTRA: the hosts and celebrity judges of such shows are generally covered by AFTRA contracts.

Add another critical piece of data—the fact that SAG has a total of seven contracts that have expired (or, in one case, is about to)—and you have a picture of a Guild whose strength, effectiveness and relevance may be in decline.

The blame for this situation rests largely on the shoulders of Membership First, the previously dominant hard-line faction headed by SAG President Alan Rosenberg, 1^st VP Anne-Marie Johnson, board member Kent McCord, and former board alternate David Jolliffe. MF held out for the best deal imaginable, in the process ignoring the fact that negotiation is about obtaining the best deal achievable.

The studios wanted to negotiate a year ago, in March 2008, but the MF-led Guild declined, instead delaying talks, and ultimately engaging in a protracted battle against AFTRA. As MF fiddled, the calendar burned, and with each passing month after the 2005-2008 contract expired, it became less and less likely that SAG would be able to maintain the 2011 expiration date that would have been synchronized with the Guild’s traditional ally, the Writers Guild.

Meanwhile, SAG’s (i.e., MF’s) anti-AFTRA antics helped persuade that union to set out on its own and negotiate a deal with the AMPTP. No longer in SAG’s shadow, AFTRA now offers an alternative (in television) to the troubled Guild, and studios have taken to the alternative. MF has devoted so much time to internecine warfare that it now leaves the Guild with the above-mentioned seven expired or nearly-expired contracts. SAG still has a monopoly in feature films, but even that could one day disappear if AFTRA were to assert jurisdiction over features shot digitally rather than on film. AFTRA has said it has no intention to do so, but who knows what might happen if SAG remains mired in turmoil.

SAG’s under new management now, even as Rosenberg and his allies apparently continue to press their lawsuit against their own union. That sort of sideshow is exactly the opposite of the “unity” that MF invokes when convenient. Of course, the union is anything but unified. The new offer might not be ratifiable, if the board even decides to send it to the members for a vote—both of those things remain to be seen. But, in any case, it seems unlikely that SAG will strike, since that requires a 75% affirmative vote of those voting, whereas ratifying, or defeating, a proposed deal takes only a simple majority. How the moderate majority and new staff leaders are going to clean up this mess is anybody’s guess.

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Statement by the AMPTP

The AMPTP has offered SAG a Last, Best and Final Offer that contains important enhancements to the Final Offer - a Final Offer that already represented a $250 million increase over SAG's now-expired contract. The AMPTP made these enhancements in an effort to conclude the AMPTP’s sixth major labor agreement in the past year. The terms in the offer are the best we can or will offer in light of the five other major industry labor deals negotiated over the past year and the extraordinary economic crisis gripping the world economy.

The Producers have pledged to leave the Last, Best and Final Offer on the table for 60 days, at which point we reserve the right to modify or withdraw the terms of the offer. We urge SAG members to review the offer for themselves at amptp.org and consider not only the enhancements but the significant gains in wages, benefits, new media residuals and jurisdiction.

SAG-AMPTP Negotiations to Continue for Third Day

SAG and the AMPTP ended their second day of talks at about 10:00 p.m. this evening (Weds.), but will resume tomorrow at 1:00 p.m. for a third, previously unannounced day of talks, said a source. No other info was available on the progress of negotiations, but this is obviously a hopeful sign in a situation that's been largely devoid of them until the last 30 days.

Negotiations had resumed Tuesday, accompanied by dueling protests, one from an organization of below-the-liners calling itself Back to Work, organized largely by camera operators Jon Philion and Andrew Rowlands and cinematographers Ed Gutentag and Bruce McCleery, and the other from Membership First. BtW was urging a deal, while MF was protesting the likelihood that the talks would result in what they consider an unacceptable deal. There were about 100 protesters in all, reports Variety.

The next day, about 50 MF protesters showed up, Variety indicates. Indeed, Wednesday was a banner day for union protests, as the Writers Guild deployed 200 picketers to CBS Television to protest FremantleMedia’s allegedly unfair treatment of its “American Idol” writers and other workers. The DGA, on the other hand, prefers to deploy consultants rather than picketers; thus, the day before, they hired a new media expert to prep for the 2011 contract talks.

Looking ahead (but not as far ahead as 2011), this Saturday will bring a SAG national board meeting. The agenda will probably include a report on the status of negotiations, and perhaps action on a contract for interim National Executive Director David White. On Monday, negotiations commence on New York on the SAG commercials contract, meaning that TV/theatrical negotiations would probably not resume until the following week at the earliest. Of course, if a deal is reached before this Saturday, then no resumption of talks would be necessary, but I’m skeptical that an agreement can be reached that quickly, given the various issues that are probably in play.

This coming Monday, Feb. 23, also brings a panel in LA entitled How Will Labor Discord Change Hollywood? The panel will focus, in particular, on issues related to new media.

Sponsored by Zocalo and moderated by LA Times Editorial Board Member Jon Healey, panelists include AFTRA National Executive Director Kim Roberts Hedgepeth, SAG Unite for Strength spokesperson Ned Vaughn, UCLA Law professor David Ginsburg, Veoh Founder and Chief Innovation Officer Dmitry Shapiro, and myself.

The panel starts at 7:30 at the ArcLight Sherman Oaks, 15301 Ventura Blvd., Sherman Oaks, CA 91403. For info and reservations, visit http://www.zocalopublicsquare.org/lectureseries.php?event_id=168.

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SAG President’s Appeal Denied

Friday the 13^th proved unlucky for SAG president Alan Rosenberg and his co-plaintiffs in their lawsuit against their own union. It turns out that three days ago, they filed an appeal of the Superior Court’s denial of their request for a temporary restraining order that would have blocked negotiations with the studios. Today, that appeal was denied.

For those into legal details, the appeal was in the form of a writ of mandamus, essentially a special form of appeal. Rosenberg and his fellow Membership First plaintiffs 1st VP Anne-Marie-Johnson and board members Diane Ladd and Kent McCord can still file an ordinary appeal of the denial, and they can still continue to press their lawsuit in the Superior Court as well. Both of those processes would take months.

However, although the “Gang of Four” can continue the lawsuit ad nauseam, wasting SAG members’ money in the process, they’re unlikely to gain traction. The remedies they are seeking in the lawsuit—injunctions—are similar to what they’ve already been denied twice, at two different levels of the court system. No judge is likely to micromanage union affairs, wade into internecine politics, and unwind actions taken by the Board and, ultimately, one hopes, by the membership. SAG and the AMPTP rightly are viewing the lawsuit as irrelevant, and plan to proceed with negotiations on Tuesday and Wednesday next week (Feb. 17 and 18).

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SAG-AMPTP Negotiations Still on Despite Lawyers’ Threat

An AMPTP (studio alliance) spokesman confirmed to me today that negotiations between the studios and SAG are still on for next Tuesday and Wednesday, as previously announced, despite a threat from SAG President Alan Rosenberg’s lawyers that any deal reached would be null, void and not binding on SAG members.

That threat, which was contained in a letter Friday that came to light yesterday, arises out the lawsuit filed by Rosenberg and his fellow MembershipFirst plaintiffs 1st VP Anne-Marie-Johnson and board members Diane Ladd and Kent McCord against their own union. To date, the suit has gotten no traction, with a judge denying the plaintiffs’ request for an injunction that would have prevented the negotiations. So, Rosenberg and his allies attempted to obtain via a threatening letter what they haven’t gotten via a lawsuit. That effort too appears to be unsuccessful.

Although the letter indicates that the plaintiffs are appealing the denial, the appeal is likely to face tough going. Its chances were further diminished by SAG’s do-over this past weekend, in which the Board re-affirmed in a meeting the actions it had taken in a written assent document.

Rosenberg’s suit objects to the written assent and requires instead that those actions—firing the previous National Executive Director (Doug Allen) and replacing the negotiating team—must be done in a meeting in order to be valid. Now that those actions have in fact been taken in an actual meeting as well (this time without a 28-hour filibuster), the suit would appear to be moot, but MembershipFirst can be expected to continue their efforts both inside and outside the courtroom.

One thing that no doubt will interrupt the SAG-AMPTP negotiations is the SAG-JPC negotiations over the commercials contract. Those are scheduled to commence Monday, February 23, meaning that the two sets of negotiations will have to compete for SAG staff attention. The chief negotiator, in particular, is the same staff member for both contracts (John McGuire), whereas the other members of the negotiating team are SAG members and are different for the two contracts.

The text of the letter from Rosenberg’s lawyers is below.

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BROWNE WOODS GEORGE LLP

February 6, 2009

VIA FACSIMILE AND U.S. MAIL

Producer Negotiating Committee Chairperson

Association of Motion Picture and Television Producers

15301 Ventura Blvd.

Sherman Oaks, CA 91403

Phone: ___________

Fax: _____________

Re: Rosenberg, et al v. Arkin, et al.

Los Angeles Superior Court, Case No. BC 406 900

To Whom It May Concem:

This firm represents Alan Rosenberg, Anne-Marie Johnson, Diane Ladd and Kent McCord (collectively, the "Directors"), officers and/or directors of the National Board of Directors and members of the Screen Actors Guild ("SAG"). This letter follows up on the previous notice provided to the Association of Motion Picture and Television Producers ("AMPTP"), dated February 2, 2009, provided by Ms. Johnson and Mr. Rosenberg, and dated February 3, 2009, provided by this office.

Please be advised that on February 6, 2009, the Directors filed a Notice of Appeal in the above-referenced matter to seek review of the order issued by the Honorable James C. Chalfant denying the Directors' application for a temporary restraining order against SAG. Please be further advised that the Directors intend to immediately file a writ of mandamus with the Court of Appeal seeking the relief requested in their ex parte application, to wit, the issuance of a temporary restraining order against SAG to enjoin it, or any person or entity acting in concert with, at its direction or on its behest, from taking any action pursuant to the “written assent” dated on or about January 26, 2009.

We are informed and believe that the AMPTP has issued an invitation to SAG to meet on February 16 and 17,2009 to resume negotiations over the new commercial contract Until such time as these matters are addressed and resolved lawfully by the courts, be further advised that any agreements or understandings which the new Chief Negotiator or Negotiation Taskforce may proffer or accept are null and void, without force of law or of your membership, and not binding on the artists represented by SAG.

If you should have any questions, please do not hesitate to contact the undersigned.

Sincerely,

Eric M. George

Cc: Mr. John T. McGuire

David White, Esq.

Duncan Crabtree-Ireland, Esq.

Vincent F. Pitta, Esq.

Barry Salzman, Esq.

Sonia Y. Lee, Esq.

Keith Wesley, Esq.

SAG & AMPTP Confirm Meetings for Next Tues-Weds

SAG and the AMPTP confirmed in a joint press release today that they will meet at AMPTP HQ next Tuesday and Wednesday, February 17-18, as was widely expected. In my view, negotiations will probably continue over a period of a few weeks, as a significant number of issues remain.

Meanwhile, MembershipFirst released a statement from key leader and SAG 1^st VP Anne-Marie Johnson that shows they intend to torpedo a deal if possible. Specifically, the statement implies that any deal reached will probably be “disastrous” and will probably not be one “that can be endorsed by an overwhelming majority of the national board and most importantly, by over 50% of the membership.” Nice to know that MF still believes in unity.

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Pro-Deal Rally at SAG

Over 100 crew members and others rallied in front of SAG HQ in LA today, urging the union and the studios to make a deal. The rally, organized largely by camera operators Jon Philion and Andrew Rowlands and cinematographers Ed Gutentag and Bruce McCleery under the rubric “Back to Work,” was joined by another gathering consisting of several dozen Membership First supporters, who protested what they anticipate will be an unpalatable deal.

That protest, whose ranks included Scott Wilson and David Clennon, took place even though negotiations have not yet recommenced, let alone a deal negotiated. Back to Work and MF have indicated they both intend to rally again next Tuesday, Feb. 17^th at the AMPTP (studio alliance), when talks are widely expected to start.

In other SAG news, ousted (and re-ousted) National Executive Director Doug Allen is back, not in person, but in the form of an “open letter” supporting SAG President Alan Rosenberg. The latter, you’ll recall, literally sung Allen’s praises in a self-written song after having also offered an email paean as well.

Now Allen has returned the favor in language only slightly less effusive, asserting that Rosenberg “deserves to be acknowledged and thanked for his selfless leadership, exercised at great personal cost.” That leadership has come most recently in the form of a lawsuit by Rosenberg against his own union, as well as an interview in which he branded actors generally as “frightened little children.”

Photos of the rally are here.

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SAG Board Re-Do Successful

The SAG Board met yesterday and re-affirmed actions already taken in writing two weeks earlier: the ouster of former National Executive Director Doug Allen and the replacement of the negotiating team. That action paves the way for resumed contract talks with the studios, which are expected to start next Tuesday and Wednesday, Feb. 17-18, according to sources and other media reports. Negotiations will probably continue over a period of a few weeks, as a significant number of issues remain.

The Board’s vote would appear to render moot a lawsuit filed last week by SAG president Alan Rosenberg. However, according to a source at yesterday’s board meeting, Rosenberg’s Membership First faction argued that yesterday’s board meeting was itself invalid because it was called by the interim National Executive Director, David White, who was appointed by the written document that Rosenberg’s lawsuit deems to be invalid as well.

A judge reviewing the lawsuit last week disagreed, and it seems unlikely that Rosenberg’s threatened appeal will gain much traction. However, given SAG’s tangled history over the last 12 months of mostly non-negotiations, Rosenberg and his fellow Membership First plaintiffs 1st VP Anne-Marie-Johnson and board members Diane Ladd and Kent McCord can be expected to try to keep their lawsuit alive as long as possible.

The vote in favor yesterday was 59%, which was up from 53% when the written assent document was used two weeks earlier. The change results from two Membership First board members, Angela Watson and Keith Carradine, breaking ranks and voting with the SAG moderates.

In other news, the preparations for joint SAG-AFTRA commercials negotiations are apparently going relatively smoothly, with talks the JPC (representing advertisers and ad agencies) expected to start in two weeks, on February 23. The Guild will thus be in the unusual position of having to negotiate its two largest contracts simultaneously, as well as possibly having to continue to fight litigation by its own president.

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SAG Commercials Negotiations Process Advances

The SAG-AFTRA commercials contract seems to be suffering little of the turbulence afflicting the long-expired SAG TV/theatrical contract. So far anyway ... fingers crossed. Here's a joint statement released today by both unions:

On Saturday, February 7, the Joint National Board of Screen Actors Guild and the American Federation of Television and Radio Artists met in videoconference plenary in Los Angeles and New York and approved by an overwhelming majority a package of proposals for the changes to the AFTRA Television and Radio Commercials Contracts and SAG Television Commercials Contract. The SAG and AFTRA Commercials Contracts will be bargained under the terms of the Phase One Agreement that applies to the Commercials Contracts negotiations only. Negotiations are scheduled to commence on February 23 in New York.

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WGA Awards Fete Slumdog, Milk, Mad Men, 30 Rock

Slumdog Millionaire continued its winning streak this awards season, with Simon Beaufoy winning the 2009 Writers Guild of America award this evening for adapted screenplay. Dustin Lance Black won the award for best original screenplay for Milk. Slumdog has already won DGA, SAG, PGA and Golden Globe awards, and is a multi-award favorite for the Oscars. Milk has won SAG and PGA awards and is also a strong Oscar contender in multiple categories.

On the television side, awards went to the writers of Mad Men (drama), 30 Rock (comedy), Recount and John Adams in long-form categories, and In Treatment, Breaking Bad, and The Simpsons in various other fields. Controversially, among other awards was one for videogame writing (to Star Wars: The Force Unleashed). Some publishers declined to submit their titles for consideration, viewing the award as primarily an organizing tool for a guild seeking to gain a foothold in a non-unionized sector.

Writers are a more subdued bunch than actors, but the WGA Awards included a red carpet. Of course, the visiting actors attracted most of the attention. (It’s a tough town for writers.) Sarah Silverman provided a touch of elegance . . .

. . . and Rainn Wilson of The Office and writing partner Aaron Lee looked spiffy as well:

The awards ceremony was held simultaneously in Los Angeles and New York, with attendees and honorees in each city. See below for a complete list of winners.

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SCREEN WINNERS

ORIGINAL SCREENPLAY

Milk, Written by Dustin Lance Black, Focus Features

ADAPTED SCREENPLAY

Slumdog Millionaire, Screenplay by Simon Beaufoy, Based on the Novel Q and A by Vikas Swarup, Fox Searchlight Pictures

DOCUMENTARY SCREENPLAY

Waltz with Bashir, Written by Ari Folman, Sony Pictures Classics

TELEVISION WINNERS

DRAMATIC SERIES

Mad Men, Written by Lisa Albert, Jane Anderson, Rick Cleveland, Kater Gordon, David Isaacs, Andre Jacquemetton, Maria Jacquemetton, Marti Noxon, Robin Veith, Matthew Weiner; AMC

COMEDY SERIES

30 Rock, Written by Jack Burditt, Kay Cannon, Robert Carlock, Tina Fey, Donald Glover, Andrew Guest, Matt Hubbard, Jon Pollack, John Riggi, Tami Sagher, Ron Weiner; NBC

NEW SERIES

In Treatment, Written by Rodrigo Garcia, Bryan Goluboff, Davey Holmes, William Merritt Johnson, Amy Lippman, Sarah Treem; HBO

EPISODIC DRAMA – any length – one airing time

“Pilot” (Breaking Bad), Written by Vince Gilligan; AMC

EPISODIC COMEDY – any length – one airing time

“Succession” (30 Rock), Written by Andrew Guest & John Riggi; NBC

LONG FORM – ORIGINAL – over one hour – one or two parts, one or two airing times

Recount, Written by Danny Strong; HBO

LONG FORM – ADAPTATION – over one hour – one or two parts, one or two airing times

John Adams, “Episode 1, Join or Die,” Teleplay by Kirk Ellis, Based on the book by David McCullough; “Episode 2, Independence,” Teleplay by Kirk Ellis, Based on the book by David McCullough; HBO

ANIMATION – any length – one airing time

“Apocalypse Cow” (The Simpsons), Written by Jeff Westbrook; Fox

COMEDY/VARIETY – (INCLUDING TALK) SERIES

Saturday Night Live, Head Writers Seth Meyers, Andrew Steele, Paula Pell, Writers Doug Abeles, James Anderson, Alex Baze, Jessica Conrad, James Downey, Charlie Grandy, Steve Higgins, Colin Jost, Erik Kenward, Rob Klein, John Lutz, Seth Meyers, Lorne Michaels, John Mulaney, Paula Pell, Simon Rich, Marika Sawyer, Akiva Schaffer, Robert Smigel, John Solomon, Emily Spivey, Andrew Steele, Kent Sublette, Jorma Taccone, Bryan Tucker, Additional Sketches by Robert Carlock; NBC

COMEDY/VARIETY – MUSIC, AWARDS, TRIBUTES – SPECIALS

2008 Film Independent Spirit Awards, Written by Billy Kimball, Aaron Lee, Jennifer Celotta, Rainn Wilson; IFC/AMC

DAYTIME SERIALS

As the World Turns, Written by Jean Passanante, Leah Laiman, Courtney Simon, Lisa Connor, David A. Levinson, Peter Brash, Richard Culliton, Susan Dansby, Cheryl Davis, Leslie Nipkow; CBS

CHILDREN'S EPISODIC & SPECIALS

“Elmo's Christmas Countdown” (Sesame Workshop), Written by Joey Mazzarino; ABC

CHILDREN’S SCRIPT – LONG FORM OR SPECIAL

“Polar Bears” (The Naked Brothers Band), Written by Polly Draper; Nickelodeon

DOCUMENTARY – CURRENT EVENTS

“Bush's War: Part One” (Frontline), Written by Michael Kirk; PBS

DOCUMENTARY – OTHER THAN CURRENT EVENTS

“Secrets of the Parthenon” (NOVA), Written by Gary Glassman; PBS

NEWS – REGULARLY SCHEDULED, BULLETIN, OR BREAKING REPORT

ABC Weekend News, Written by Joel Siegel, Karen Mooney, David Muir; ABC

NEWS – ANALYSIS, FEATURE, OR COMMENTARY

“Yankee Stadium and the New Gilded Age” (Bill Moyers Journal), Writers Bill Moyers & Michael Winship; PBS

RADIO WINNERS

DOCUMENTARY

Black History Month, Written by Anthony J. McHugh; CBS

NEWS – REGULARLY SCHEDULED OR BREAKING

World News This Week, Written by Marianne J. Pryor; ABC

NEWS – ANALYSIS, FEATURE, OR COMMENTARY

Tributes, Written by Gail Lee; CBS

PROMOTIONAL WRITING AND GRAPHIC ART WINNERS

ON-AIR PROMOTION (RADIO OR TELEVISION)

Jericho: Two-Minute Drills, Written by Eric Jacobson; CBS

TELEVISION GRAPHIC ANIMATION

“Medical Animations” (CBS Evening News), David Rosen; CBS

VIDEOGAME WINNERS

VIDEOGAME WRITING

Star Wars: The Force Unleashed, Writers Haden Blackman, Shawn Pitman, John Stafford and Cameron Suey, LucasArts

Neil Patrick Harris (How I Met Your Mother) hosted the West Coast show, which was executive produced by Emmy Award-winning producer Cort Casady. Presenters scheduled to appear at the Los Angeles show included: Josh Brolin, Steve Carell, Frank Langella, Jon Hamm, Kate Walsh, Alfre Woodard, Sarah Silverman, Evan Rachel Wood, Bryan Cranston, Julia Louis-Dreyfus, Sandra Oh, Dennis Haysbert, Taraji P. Henson, Zach Braff, Jamie Lee Curtis, David Krumholtz, Rob Reiner, and Garry Marshall.

John Oliver of The Daily Show with Jon Stewart hosted the East Coast show. The event was produced by Anne Marie Gaynor, supervised by Marsha Manns, and produced under the creative supervision of head writer David Steven Cohen. Presenters scheduled to appear at the show in New York included: Philip Seymour Hoffman, Talia Balsam, Shari Springer Berman and Robert Pulcini, Marshall Brickman, Christopher Cerf, Alana De La Garza, Susie Essman, Tom Fontana, Judah Friedlander, Terry George, Nancy Giles, Gilbert Gottfried, Bill Irwin, Jack McBrayer, S. Epatha Merkerson, Aasif Mandvi, Ana Ortiz, Linus Roache, John Slattery, Jerry Stiller and Anne Meara, Paul F. Tompkins, Jerry verDorn, and Sam Waterston. Musical entertainment during the ceremony was provided by La Bamba and the Hubcabs. Also in attendance were: Tina Fey, Ethan Coen, Joel Coen, Robert Siegel, David Simon, and Simon Beaufoy.

The Writers Guild of America, West presented special honors to: William Blinn – Paddy Chayefsky Laurel Award for Television; Dustin Lance Black (Milk) – Paul Selvin Award; Carl Reiner and Victoria Riskin – Valentine Davies Award; Larry DiTillio – Morgan Cox Award; and Suso D’Amico for the WGAW’s first-ever Jean Renoir Award for Screenwriting Achievement.

The Writers Guild of America, East presented special honors to: John Patrick Shanley - Ian McLellan Hunter Lifetime Achievement Award; Norman Stiles – Herb Sargent Award for Comedy Excellence; The Committee To Protect Journalists accepted by Board Chairman Paul Steiger and Executive Director Joel Simon – Evelyn F. Burkey Award for contributions bringing honor and dignity to writers everywhere; Chris Albers and Tom Fontana - Jablow Award for devoted service to the Guild; and Sarah Tobianski - John Merriman Award for Study of Broadcast Journalism at American University. In addition, the Writers Guild of America, East Foundation presented the first Michael Collyer Memorial Fellowship in Screenwriting to Sara Van Acker of New York University.

Rally Scheduled to Urge SAG Deal

Below-the–line workers have scheduled a rally this Monday, Feb. 9, at noon to urge SAG to make a deal with the studios. The rally's at SAG HQ, 5757 Wilshire, in LA, and they’re asking all union and guild members to show. Their website for more info is http://www.letsgetbacktowork.com/ and email is info@letsgetbacktowork.com.

Rosenberg v. SAG documents posted

If you want to review the legal documents in the lawsuit filed by Screen Actors Guild President Alan Rosenberg, Guild 1st VP Anne-Marie Johnson, and board members Kent McCord and Diane Ladd against SAG, they are posted here. I'll update the document folder as more documents become available.

Some abbreviations used in document titles:

Cplt = complaint. This is the document that initiates a lawsuit. It includes an outline of the alleged facts and of the legal arguments that the plaintiff is making.

1st Am Cplt = First Amended Complaint. This is a revised complaint.

P's & A's = Memorandum of Points and Authorities. This is the name that California lawyers use for a legal brief - i.e., a detailed legal argument, with references to precedent.

Decl = Declaration. A sworn statement by a party to the lawsuit or by a witness.

Judge Denies SAG President Injunction Against SAG; President to Appeal

A judge today denied a temporary restraining order sought by Screen Actors Guild President Alan Rosenberg and three other board members against their own union, thus allowing negotiations with the studios to proceed. The judge ruled that the SAG moderate majority was within its rights when it replaced its National Executive Director and negotiating committee last month by using a written assent document instead of an actual board meeting. Rosenberg’s lawyer said he would appeal immediately.

[UPDATE: The documents filed by Rosenberg and by SAG are available here.]

The ruling, by California judge James C. Chalfant, leaves in place the new team without restrictions. Indeed, Back Stage magazine’s Blog Stage is reporting that SAG-AMPTP talks are tentatively set for Feb. 17-18, less than two weeks from now. However, a SAG spokeswoman told me that there are no confirmed dates for talks. I asked whether she could confirm that there would be talks at all (i.e., but that the dates were not yet set), but she had no comment on this. An AMPTP spokesman said his organization had no comment.

In any case, resumption of talks would be a smart move for the SAG moderates and the studios, because a judge would probably be less inclined to prevent scheduled talks than to maintain a status quo where talks were frozen. However, the move would not be without risks for the AMPTP, since a legal cloud remains over the negotiating committee. Nonetheless, the appeals process will likely be short—less than two weeks—and the appeals judges are likely to defer to the original judge’s ruling. I have recently blogged on the possible issues and scope of negotiation.

Also upcoming is a SAG national board meeting this Sunday, Feb. 8, at which the moderates are expected to try for a re-do of the assent, this time in a meeting: i.e., re-oust Allen, and again replace the Negotiating Committee by a Negotiating Task Force. If successful—i.e., if they can overcome the likely parliamentary maneuvering by Rosenberg and his Membership First allies—the action would probably render the lawsuit moot, since the actions would then have been taken in both a written document and a meeting.

The court arguments focused on the issue of the moderates’ replacement of the negotiating committee. Also discussed was the portion of the assent prohibiting anyone other than interim NED David White and new chief negotiator John McGuire from speaking on behalf of the Guild, effectively depriving Rosenberg of a role as an official spokesperson for the Guild.

Interestingly, Rosenberg’s lawyers presented no arguments on the issue of unseating White and McGuire and restoring ousted NED / chief negotiator Doug Allen, and one of Rosenberg’s lawyers told me this was a secondary issue. This implies to me that Rosenberg’s lawyers have little confidence that they could reverse these personnel decisions, at least not in these early stage proceedings. Even if the matter had been discussed, it seems unlikely the judge would have undone the personnel decisions, since doing so would cause administrative chaos in the Guild and would also upend the lawsuit itself, since Allen would presumably decide not to fight the suit. Also, almost all of the alleged harm described in the original complaint relates to negotiations. Finally, it’s hard to see why Allen would want to return to SAG, since his contract is being paid out.

Another ruling by the judge retained as defendants the 41 board members who signed the assent, as well as SAG itself. However, they are sued in their capacity as agents for the union, and thus are unlikely to face personal liability. Indeed, the suit does not seek damages from anyone—the board members or SAG—and asks only for injunctions (three type, of increasing duration—a TRO, a preliminary injunction, and a permanent injunction).

Even if the appeal is denied, Rosenberg and his allies may be able to drag out the lawsuit until the SAG election cycle starting in July, then attempt to reclaim the board in the elections, which close in September. However, it is not clear whether they can do so. If they lose once or twice more in the preliminary stages of the case, they become less likely to prevail later.

Thus, there is considerable pressure on SAG moderates and the studios to close a deal before July, and on SAG moderates to close a deal with David White and persuade him to go under contract as permanent, not interim, National Executive Director, if he is willing to do so.

The next phase of the lawsuit, after the appeal, is likely to be a request for preliminary injunction. It will probably be heard by Chalfant also, whose view of the issues may (but need not) remain the same, unless the appeals court instructs him otherwise or the legal briefs take a dramatically different tack.

Later phases will be heard by a different, “all-purposes judge,” specializing in trials (whereas Chalfant specializes in preliminary matters regarding injunctions). That judge, who is not yet determined, may have an entirely different view of the issues, and would probably not be bound by Chalfant’s determinations.

This entire process seems unlikely to inhibit the commercials contract negotiations, which are the subject of a joint SAG-AFTRA board meeting this Saturday, Feb. 7, and which are scheduled to commence in a few weeks. The Joint Policy Committee (JPC), representing the advertisers and ad agencies, has not raised any public objection to negotiating, and SAG and AFTRA have both stated that they expect commercials negotiations to proceed.

The judge’s ruling on the issue of negotiating committee vs. task force was based on two findings: First, he found that under state law the written assent could be effective based on a simple majority, rather than requiring agreement by all 71 members of the SAG board, as Rosenberg contended. In so doing, the judge essentially found that the unanimity statute Rosenberg relied on, California Corporations Code sec. 7211(b), was trumped by sec. 7150(a), which gives an organization wide discretion in adopting bylaws. This decision somewhat surprised me, since Rosenberg’s statute addresses the matter more specifically. That said, I understand that SAG presented other arguments in its briefs, which could support the judge’s result even though he didn’t cite them.

The judge then addressed a second objection presented by Rosenberg’s lawyers, which was that even if non-unanimity was conceded, the threshold should be a 2/3 majority, rather than a simple majority. The Rosenberg argument is based on a section of the SAG bylaws that requires a 2/3 majority if the national board wishes to replace a member of a committee. This argument, if sustained, would have been fatal for the moderates, since they only have a 52.52% majority. However, the judge ruled that another section of the bylaws, which says that committees serve at the pleasure of the board, allows the board to dissolve a committee altogether and replace it with a task force, or perhaps even with an altogether new committee with the same functions.

For the above reasons, the judge found that Rosenberg had not shown a likelihood of success on the merits—i.e., in the ultimate lawsuit. Such a showing is a requirement for issuance of a TRO. However, the judge did find that Rosenberg had satisfied the other requirement, which is a showing of irreparable harm. He did not give a reason for this finding, and there was no discussion of it, or of the harm to the membership and industry of the continuing failure to achieve a contract. In any case, Rosenberg’s burden was to satisfy both requirements. He failed, and therefore the TRO was not granted.

As to the issue of the assent’s limitation on who may speak for the Guild—which Membership First has characterized as a “gag order”—the judge’s reasoning was that this was not a gag order at all, since Rosenberg is not barred from speaking in his personal capacity. Rather, the judge saw the issue as one of authority—i.e., who has authority to speak for the organization.

In my opinion, this ruling does not take into account the difference between a membership organization, such as the Guild, where the members expect the president (as one of only two nationally-elected officers) to speak for them, and a conventional corporation. Indeed, a related point is that, in another part of the discussion, the judge had to ask about the function of the NED. Also, as Steve Diamond has blogged, the muzzling was heavy-handed from the start. On the other hand, the judge’s ruling does prevent the chaos that could result from having dueling spokespeople, i.e., Rosenberg vs. White. And, White has permitted Rosenberg to use the Guild’s email system, with Rosenberg noting in his email to members that he was speaking on his own behalf, not the Guild’s.

The hearing lasted about an hour, and was in depth. The lawyers for both sides seldom stumbled, and the judge asked generally incisive questions. The audience included Membership First partisans Rosenberg, Guild 1^st VP Anne-Marie Johnson, and board members Kent McCord and Eugene Boggs; and, from the opposing faction, Unite for Strength leader Ned Vaughn.

Another hearing had taken place two days earlier, but the request for TRO was dismissed that time by the same judge, for procedural reasons. I will post or link to today’s legal documents when available, so check back later.

Here’s some further background information. This is based on the legal papers filed on Tuesday, so there could be differences in the revised papers filed today but not yet available.

Parties—Plaintiffs

The plaintiffs—Rosenberg, plus 1^st VP Anne-Marie-Johnson and board members Diane Ladd and Kent McCord—are suing on behalf of themselves and “derivatively” on behalf of SAG itself. This is akin to a shareholders derivative suit.

Note, btw, that ousted National Executive Director Doug Allen is not a plaintiff.

Parties—Defendants

The defendants include 41 board members, which are (I believe) the board members who signed the written assent.

Also a defendant is SAG itself, which means that SAG, in a sense is suing itself. This reflects the fact that the dispute is really an attempt by individuals to determine who controls the organization.

Finally, another set of defendants are 20 “Doe defendants.” This is a reference to “John Doe”—i.e., these are unknown defendants who committed unknown action that the plaintiffs might wish to add to their lawsuit later. Doe defendants are very common in a lawsuit such as this. There may not turn out to be any people that plaintiffs wish to add to their suit, but they are inserting these placeholder defendants just in case.

Relief Sought—Monetary

The complaint does not ask for damages. However, it does ask for attorneys fees and costs (such as filing fees and the like). In most lawsuits, the prevailing party—i.e., the winner—does not get awarded their legal fees. However, the rules might be different in shareholders derivative suits (I don’t know), which this suit is analogous to. So, if the plaintiffs ultimately prevail, they might have a chance of getting the court to order the defendants (i.e., SAG, but almost certainly not the board members individually) to pay the plaintiffs’ legal fees. I don’t know.

Also, of course, if the plaintiffs prevail, or even if they don’t, they will probably make a board motion at some point that the Guild should voluntarily reimburse their legal fees even if the court doesn’t order it. If they have control of the board, such a motion would pass, of course.

An obvious question is who is paying for all this right now. SAG is paying for the defense, but I have no idea if the plaintiffs are paying their own fees and costs or if someone else is.

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Lawsuit Blocks SAG Negotiations

A lawsuit to be filed this morning by Screen Actors Guild president Alan Rosenberg against his own union has blocked scheduled negotiations between the Guild and the studio alliance, or AMPTP. The development marks a stunning turn in a SAG negotiating cycle that has moved so far beyond bizarre in the last 12 months that words seem inadequate.

The suit, in which Guild 1^st VP Anne-Marie Johnson is also reportedly a plaintiff, seeks a court order blocking SAG from implementing the written assent document that (a) fired the previous National Executive Director (Doug Allen), (b) split his job in two and appointed replacements (David White and John McGuire), (c) dissolved the Guild’s negotiating committee and replaced it with a task force, and (d) barred Rosenberg and others from speaking on behalf of the Guild.

Thus, if granted, the order would (among other things) apparently reinstate Allen and the previous negotiating team. The negotiations were to have taken place today and tomorrow. Instead, a hearing on the suit will take place this morning in Los Angeles Superior Court. The uncertainty created by the soon-to-be-filed litigation led SAG and the AMPTP to postpone their talks, with no new date set.

Rosenberg, notably, threatened two weeks ago to lead a “fucking civil war” in the union if the moderates fired Allen. He appears to be a man of his word. The self-pitying Rosenberg of a few days ago is gone, replaced by the more-familiar hardliner who seems ready to burn the union down in order to save it.

Unknown at this time is whether the pendency of the suit will affect the joint SAG-AFTRA plenary (relating to the commercial negotiations) scheduled for this Saturday. One source close to the situation says there will be no effect. Night-time phone calls to SAG and AFTRA spokespeople have not yet been returned.

The likelihood of success of the suit is unclear. However, law professor Steve Diamond believes Rosenberg and Johnson will achieve little traction. Nonetheless, he indicates that the legal proceedings could take a week or two to resolve. I’m inclined to believe this could take longer, when likely briefing schedules and possible appeals are taken into account.

Meanwhile, a meeting of the Guild’s hardline-dominated Hollywood Board took place tonight from 6:30-10:15 p.m. in open session, and another hour (approximately) in executive session. The meeting was preceded by a rally of about 30 supporters of the hardliners, the Membership First faction. The meeting (other than the executive session) was open to SAG members to observe, and it appeared that most or all who came were able to get in the room or an overflow room.

According a source in the room, the meeting consisted mostly of questions directed at interim National Executive Director David White by Membership First. The MF-ers worked from a sheet of prepared questions, and different MF board members asked various questions. In contrast, Unite for Strength spokesman Ned Vaughn did most or all of the talking for UFS board members. White remained cool under strenuous questioning.

The meeting was apparently orderly, a far cry from the contentious national board meeting two weeks ago. One dramatic moment came when Frances Fisher hurled an accusation at Unite for Strength: “There’s blood on that written assent!” she cried, “It’s on you!” [UPDATE: After this piece appeared, Fisher called me and denied having said this. I regret not having contacted Fisher for her comment before posting. I checked again with my source, who is not affiliated with any SAG faction, and my source confirmed that Fisher was the speaker.] Strangely, none of the board members or executives discussed Rosenberg and Johnson’s impending lawsuit until the end of the meeting, meaning that the litigation came as a surprise for some of the observers.

The lawsuit was first reported by The Wrap, with details added by other sources and reported in Variety, Back Stage’s blog, the Hollywood Reporter, and SAGWatch (and here).

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