Back in October 2015, when a group of LA actors served a lawsuit on their own Union, Actors’ Equity, veteran actor and scholar Dakin Matthews was there to give a layman’s analysis of the legal text. Now that Equity has filed a motion to dismiss the case, Dakin is back to scrutinize the new document:
Again, I’m not a lawyer or a judge, and I was never present at any meetings of the Review Committee or at any of the facilitated discussions. I have no inside information from either side, though it must be clear by now that I support the plaintiffs’ side of the lawsuit, even though I think that some of their arguments are questionable. But I can read complex documents – even legalese – and I am pretty aware of the issues involved and the exact wording of the various documents in dispute. So I would like to add something to Steven Leigh Morris’s and Kevin Delin’s already excellent summaries and critiques of the recent Motion to Dismiss from Equity.
The first thing to remember is that a Motion to Dismiss suggests that the plaintiffs don’t even have a case. In response, plaintiffs don’t have to prove their case, only to demonstrate that they have a case. That some issues are litigable; that not all issues are dismissible.
1. Motions to Dismiss are extremely common in all cases, even those in which everyone knows there is not a chance in hell that the judge will grant the motion. It’s a pro forma way for lawyers to prove to their clients that they’re doing their job and deserve all that money. And they sometimes set the plate for the next round, the actual arguments. They also tend to throw everything at the wall to see what sticks; you never know what some judge might find persuasive.
(The plaintiff’s original lawsuit also had some spaghetti-on-the-wall; I’ll wager no one expected the personal complaints against Ms. McColl to stick. I’m guessing they were the bargaining chip that facilitated the “facilitated discussions.”)
2. This Motion is particularly heavy with attachments and ”precedents” – also I think typical of “overkill” and an attempt to sway a judge by the pure weight of verbiage. (Reminded me of the last scene in The Frogs, when Aeschylus’ and Euripides’ verses are actually “weighed” to see which is heavier.)
3. The Motion, I think, accurately points up some of the weaknesses of the plaintiffs’ arguments, especially those that harp on the lopsided vote in the referendum, which was, by the terms of the Settlement Agreement itself, purely “advisory,” or on the fact that the Union called for the advisory vote before any other member or group of members asked for it. Those two are non-starters in my book.
However, the Motion also glosses over many of the weaknesses of Equity’s case as well, and it might be a good idea to note them.
4. The Equity motion faults the lawsuit for being brought by a mixture of union members and non-union members, suggesting that “outside forces” are trying to insert themselves into purely union matters. First of all, only two of the plaintiffs are not members of the union. But numbers are not the important thing. The important distinction is that in the five original complaints of the lawsuit, when the individual complaint is about internal union affairs, only Union members claimed standing. Even then, some of the Union members removed themselves from those complaints, where their participation might be questioned. The First and Second Claims involve the Settlement Agreement and its terms; all plaintiffs, whether members or not, have clear standing in those complaints because the Settlement Agreement is not an “internal union affair” but an external agreement between the union and the plaintiffs. The Third Claim (against Mary McColl) by the 16 union members was withdrawn. The Fourth and Fifth Claims are about AEA’s treatment (Ms. McColl was again dropped from the Fifth) of its own members, and therefore only members could claim standing, and only 11 of the 16 members did so. So the Motion falsely suggests an impropriety in the plaintiffs’ case, when in fact the plaintiffs’ lawyers very carefully and properly distinguished, by the division into five separate claims, those that dealt with internal matters and those that did not.
5A. The most glaring for me, as I have pointed out a number of times before, is that the changes promulgated by Council in the new agreement are not the same as those presented to the membership and the Review Committee – according to the strict terms of the Settlement Agreement – 45 days before Council was scheduled to vote. That document, in fact, does not just require a notification 45 days before Council votes on “changes” or “any changes”; it says specifically before it votes on “those changes” – the exact ones they are specifically called upon to notify membership and the Review Committee of 45 days earlier. I have noted elsewhere that the Settlement Agreement is a flawed document, but it clearly says what it says; and when Equity claims to have followed the procedures “to the letter,” it is not, I would argue, telling the exact truth. The issue is, at least, litigable. And should Equity counter that the changes were too minor to require such notification, that would not be true: The Union itself has boasted frequently about how extensive the changes were that it made at Council. But even if it were true, it would do no good; the Settlement Agreement (SA) still requires a 45-day notification even before “minor” changes (see section SA.5). Live by the letter, die by the letter.
(The idea has been floated that perhaps the Union first voted for the original proposal without changes, thereby (in their thinking) eliminating the Settlement Agreement, and then voted on another proposal making all their changes, and that by so doing it circumvented the 45-day notification rule. As our Council went into Executive Session, only they know exactly what they did legislatively, but I like to think that such a byzantine, deceptive, and essentially ignoble maneuver would have been too much for our elected representatives and brother and sister union members to stomach. Besides, it has always been Equity’s claim that it amended the proposal before voting on it.)
5B. There is a question whether the Union held the required reasonable number of meetings with the Review Committee during the 45 days before the Council vote. The Motion claims that such meetings were held on Feb 18, 20, and 21, 2015. The plaintiffs who are on the Review Committee apparently dispute that this satisfied the Settlement Agreement’s requirement that there be “a reasonable number of meetings between AEA representatives and members of the Review Committee for the purpose of receiving the recommendations and opinions of the Review Committee about the proposed changes” (SA.4.a.ii). I do not know what the plaintiffs’ contention is: that there were not enough meetings to reach the level of reasonableness? That they were clumped too closely together to allow time for consideration and consultation? That the meetings were not held for the purposes outlined in the document? That the plaintiff members were not allowed a reasonable opportunity to offer “recommendations and opinions?” (Not that AEA was obligated to follow them, but it was specifically obligated to receive them.) Whatever the reason, these plaintiffs feel the procedure was flawed in this regard, and since the Review Committee is evenly divided between plaintiffs and Equity representatives, there seems no way that an evenly divided RC could agree that the meetings were sufficient in either regard. It is, therefore, litigable.
5C. The Motion claims that it also followed the procedures correctly in holding the strictly advisory referendum, even though there were some glitches in the delayed online posting of pro- and anti-materials. There was no Internet or email when the agreement was written, so the Union argues that, by the letter of the Agreement, there was no violation. However, it might be argued that if members were allowed, even encouraged, to vote electronically (also not available when the Agreement was forged) the same rules for online voting, including timely distribution of pro- and anti-statements, should be in effect as for mail voting.
But there’s another, more important, issue here as well: the Settlement Agreement requires that AEA “shall establish procedures that the advisory referendum is conducted fairly,” and then lists some, but not all, of those fairness-creating procedures. So the Union, while it had absolutely no obligation to follow the results of the referendum, was obliged by the Settlement Agreement to hold it fairly. And I think it is that fairness that the plaintiffs are primarily challenging. Kevin Delin has pointed out the mathematical flaws and misrepresentations in Equity’s interpretation of its own poll results which it used to politic for the proposal, and also pointed out the incredible disingenuousness of Equity’s attempt to diminish its subsequent catastrophic defeat in the advisory vote by citing a percentage turnout figure that was probably four times larger than almost any election Equity has ever held. And I and others have tried, more than once, to point out the egregious misleadings, misstatements, and misinformation both in the Union’s official posts and mailings about the referendum, as well as the untruths in the claims by the union-supported surrogates it favored on its website and in its mailings. The union and its surrogates consistently misinformed its members about what the real issue of the referendum was and misrepresented the position of their opponents. Now I know that a lot of this is politics, and that in campaigns of every kind, candidates and supporters say a lot of exaggerated, untrue, and potentially slanderous things about opponents and opponents’ positions, and rarely does anybody sue anybody over typical campaign slurs and hyperbole.
However, this is not just a campaign, it is also a matter of a Union being required to inform its members honestly and fairly; and if members feel they have been misinformed deliberately by their own union about important issues, then surely they have a case to be made that is litigable, especially as there seem to be no trustworthy internal procedures for redress. And if the plaintiff co-signers of the Settlement Agreement, even non-members of the Union, truly believe and can supply evidence that the referendum, even though it was purely advisory, was not fairly run by the Union (as the Settlement Agreement specifically requires it to be), then surely they too have a case that is litigable. If the Union wishes to live by the letter of the Settlement Agreement, it cannot pick and choose which letters it will follow. Yes, the referendum was only “advisory,” but it was also required to be “conducted fairly.”
5D. This last issue is the most difficult, I think—and again, I think it is because the Settlement Agreement is such a flawed document. Equity claims that its right to propose substantial changes to the plan rightly includes the right to propose a change “regarding. . . the availability of the Plan.” I think Equity’s lawyers saw in that ambiguity a loophole through which the Union might in fact eliminate the Plan, the Settlement Agreement, and the Review Committee in one fell swoop by “changing” the “availability of the Plan” to zero. Whether that was the intention of the original wording is, I think, an issue that is litigable. An argument can easily be made that the phrase was included to mean that the Union might propose a change limiting the availability of the Plan to certain theatres or certain productions or certain space or budget sizes, or based on either current conditions, say, or past violations. To interpret this phrase as giving the Union permission to eliminate the Plan and thus the entire Settlement Agreement itself would seem to me, and apparently to the plaintiffs, to run afoul of the next to last provision in the document itself, SA.13: “The Parties agree that this agreement may only be modified by a writing executed by all of them.” I think the issue is certainly not dismissible out of hand.
I guess the basic question is whether the phrase “change. . . the availability” can be honestly construed to mean “eliminate the availability.” I would argue it can’t. A change to something is not the same as the elimination of something. One might rightly construe that the document gives the Union the right to limit the availability of the Plan. But limited availability is not zero availability. A limited run is not zero performances, a limited cast size is not zero performers, a limited menu is not zero food choices. Zero availability of the Plan is not really just a “significant change” to the Plan, it is its unilateral and total elimination. And that, I do not think, was likely the intention of the wording in the Settlement Agreement, or a fair interpretation of it. And this issue, I also think, is therefore for the court to decide.
[Dakin Matthews is currently appearing on Broadway in Waitress.]