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Judge Tosses MF Complaint on Technicality; Group Can Re-File Thursday


 California Superior Court Judge James C. Chalfant rejected on technical grounds an attempt by SAG national president Alan Rosenberg and his fellow hard-liners in the union to restore to power Doug Allen, the guild's recently deposed national executive director and chief negotiator. However, Rosenberg and his faction can refile the complaint on Thursday, which is likely to extend indefinitely the seven-month stalemate between the actors union and movie and television producers.

The complaint is here: Download SAGDOCS.

Lawyer/blogger Jonathan Handel attended the proceedings and provided us with some details and analysis.

The complaint alleges that self-described moderates on the national board "unilaterally co-opted the democratically elected leadership of SAG." The plaintiffs seek to restore that leadership. In addition the Rosenberg faction wants to prevent Allen's replacements--interim NED David White and chief negotiator John McGuire--"from taking any actions on SAG's behalf." Later in the complaint, plaintiffs allege that if negotiations go forth, SAG members will suffer irreparable harm.

The technical problems with the suit, Handel said, included the misnaming of one or some of the defendants, which are the guild itself and every national board member who signed a written assent that fired Allen and dissolved the negotiating committee. Two of the names misspelled were of national board members from the regions: David Hartley-Margolin (spelled "Hartly") and Steve Fried (spelled "Fired").

Variety said the complaint needs to be amended by giving specific causes of action and notifying all 41 defendants.

In addition to the guild and signatories to the written assent, the complaint names as defendants 20 John and/or Jane Does, who the complaint alleges bear "responsibility for the events and happenings" and "caused damage" to the defendants.

Rosenberg did not return a call seeking comment. Johnson issued a statement that read: "My attorney has advised me not to make any comments regarding any events that took place on Feb. 2nd, 2009."

Monday night, Rosenberg and Johnson delivered to the guild a notice of intent to seek a temporary restraining order. This led to the postponement of the resumption of talks, scheduled for today and Wednesday, between the new negotiating team and the AMPTP.

The thrust of the complaint centers on the written assent that fired Allen and replaced the negotiating committee, and the plaintiffs argue that it was undemocratic according to the SAG constitution. Among the allegations and assertions of MF:

* The moderates only contacted "those board members who agreed with them or whom they believed could be persuaded if deprived of the counter arguments by other board members." Thus, the plaintiffs assert, the rank and file was denied the right to hear views of those who did not agree with them or "those board members who, if allowed to hear all sides of the issues, likely would not have approved of the resolution."

This could be difficult to pass muster, considering board members participated in 28 hours of continual debate on whether to fire Allen and replace the negotiating committee. Even if MF argues that there were persuadable national board members among those who did not participate in the marathon meeting--but instead were represented by alternates--enough information about the issues had surfaced in the media and elsewhere for them to have made up there minds.

* Moderates got 41 board members, representing 52.5 percent of the vote, to sign the assent, which is provided for in Article V, Section 1 (J) (4), which states: "Except as provided otherwise in this constitution, any acts shall be valid for all purposes with or without a meeting if approved by the written assent of the majority of the national board of directors, or such higher percentage of the board votes as may be required by this constitution."

However, MF is arguing the the written assent "purports to hold a meeting in absentia." Therefore, the moderates' claim to legitimacy via Article V, Section 1 (J) (4) is overruled by Article V, Section 1 (J) (3), which states that special meetings can only be called by two-thirds vote and with three days notice. This seems dodgy also, but not when taken in conjunction with the next point, which is MF's strongest argument.

* It comes at the bottom of page 10 of the complaint. "The California law under which SAG was organized requires unanimous approval of a nonprofit organization's directors before a written consent, in lieu of a meeting, may be utilized." [Emphasis added.] 

Handel told Strike Watch the resolution of this could take from 6 or 7 weeks, maybe less, maybe more. He said that even if MF is denied the restraining order and the appointments of White and McGuire are effectively upheld, negotiations could not resume between SAG and producers because MF's lawsuit could still go forward. Whatever agreement the guild and the AMPTP reach could later be thrown out, so the AMPTP wouldn't bother.

The guild has been working off an expired contract since July. There have been a few attempts to restart negotiations, including a few days of federal mediation. TV production in Hollywood remains healthy, but film production has slowed, for factors that go beyond labor turmoil.

Still, if Rosenberg et al. are successful in getting a restraining order, that could have a direct impact on film production. Credit markets are tight, and lenders may be even more reluctant to finance films the longer this impasse continues. The state of the economy is one of the reasons why moderates wanted Allen and his negotiating team removed.

They maintain that the hard-line positions of Allen & Co. were preventing a contract from being negotiated and settled. Allen and his team refused to bend on terms concerning content made directly for new-media platforms, even those terms had been agreed to by its sister union, AFTRA. Moderates believe that there is no point in fighting for a more expensive contract, particularly in the current economy, when producers would simply sign new-media contracts with the federation, rather than the guild.

Heated arguments over the guild's relationship with AFTRA is among the core issues wracking the union. In addition to the TV/film deal, the union has a handful of other contracts that have expired or are about to, including those covering commercials, video games, and basic cable.

The commercials deal, the second-most lucrative behind the TV/film contract, is to be bargained for jointly with AFTRA. Negotiations for the commercials deal is to begin Feb. 23. An AFTRA spokeswoman said they would proceed apace, despite the guild's present situation.

--Andrew Salomon

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Where is Rosenberg's Joseph Welch? "At long last, sir, have you no sense of decency?"

This is just surreal. How much more damage can Membership First do? It's like a scorched earth policy. How soon can we remove these clowns from office? I hope Unite 4 Strength and/or lots of non-affiliated, NON-Membership first candidates are getting their paperwork ready. The next SAG elections can't come soon enough.

Andrew --

Can you also post the ex parte application papers? They should also be available.


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