In the latest of the legal battle shaping up between a group of Los Angeles actors who are suing their own union, Actors’ Equity Association, comes the official legal response to Equity’s Motion to Dismiss their lawsuit. The 34-page document, submitted to the court, is a point-for-point rebuttal of Equity’s motion filed on July 21, 2016.

These volleys back and forth make clear this legal battle will not be about the true central issue: whether Equity will support an infrastructure in Los Angeles where actors can volunteer and ply their craft while still under union protection. Instead, the lawsuit will focus on the methodology that Equity used to change the system and whether that method followed the Settlement Agreement made in 1989.

In rebutting Equity’s Motion to Dismiss, the Plaintiffs’ took the opportunity to give their definition of intimate theater in Los Angeles:

The intimate theater world is both a laboratory and a proving ground. A place for volunteer actors to test untried material. Many if not most of these shows will never be seen again.

Although they admit exceptions to this rule (notably the Tony-nominated Spring Awakening and Plaintiff Vanessa Stewart’s Louis and Keely: ‘Live’ at the Sahara), the Plaintiffs paint the picture that the 99-Seat Plan is for riskier work that would not otherwise see the light of day. In fact, they argue:

Volunteer theatrical work accomplishes for actors what training and practice accomplish for other artists… The new prohibition on volunteer theater will have no less an impact on many actors than would a musician’s union prohibition on practicing at home without payment by employers. It would make them less employable.

As discussed in detail by Dakin Matthews and Myron Meisel (a professional lawyer as well as a veteran theater critic), the Plaintiffs have only to convince Judge Terry J. Hatter, Jr., who oversaw the 1989 Settlement, that this case is court-worthy. To that end, the Plaintiffs have delivered to the court a rebuttal to each of Equity’s complaints.

Central to the Plaintiff’s argument is whether Equity followed the procedures described in the 1989 Settlement. Equity, of course, will cite its survey, focus groups, and town hall meetings as proof they were pulling feedback from the community. The Plaintiffs’ view is different: Equity didn’t act in good faith in any of these procedures. In other words, Equity may have been checking off procedural boxes found in the 1989 Settlement but they certainly weren’t employing those procedural steps as intended: a mechanism to work with Los Angeles to evolve the 99-Seat Plan. As evidence, the Plaintiffs note:

  • Equity’s National Council adopted a specific position before engaging the various avenues for consultation available to it
  • Equity used funds to advertise and promote the proposal before official adoption

Key to this discussion is what the 1989 Settlement phrase “act on the proposal” means (Settlement Agreement, Section 4a(i)). Equity claims it acted on the proposal with the final vote on April 21, 2015, after all the discussion. The Plaintiffs claim Equity acted on February 6, 2015, when it sprung its “Promulgated Plan” on Los Angeles, and therefore before all the discussion. That dual-interpretation of the same phrase, the Plaintiffs assert, is enough to warrant a discussion of the ambiguous language in court.

A February 9, 2015 Backstage story regarding the original Equity announcement includes this final paragraph clearly laying out a specific timeline presumably supplied by the Union:

The union has called a meeting of its local members for Feb. 23 while L.A. producers are huddling this week to devise a response. The proposal must be approved by a referendum of Equity’s L.A. County-based membership. Ballots for the vote are set to be mailed March 25. The ballots will need to be returned by April 17, with the union’s council set to make a final decision on the new plan April 21.

Such specific deadlines – to which Equity held – favors the Plaintiffs’ idea that the Union knew where it was going from the very beginning. For the Plaintiffs, that contradicts the Settlement process which

was designed to ensure that [Actors’ Equity Association] not adopt a formal position on the proposal until it had the benefit of the multi-dimensional consultative process mandated by the Settlement Agreement.

The Plaintiffs also remind the court of the advisory referendum specified in the Settlement. They claim legal precedent that Union leadership cannot casually dismiss the referendum’s extremely high turnout and very lopsided defeat of Equity’s proposal. Despite the “advisory” label, the referendum still indicates the feelings of the Los Angeles theater community and such votes ensure members receive an equal right to participate in the process. In addition, the Plaintiffs point out the irregularities in how Equity conducted the vote, including failing to distribute some information (position statements) for the initial three days of the voting period.

The Plaintiffs also rebut Equity’s point that this lawsuit will allow the court to interfere with internal union business. The lawsuit, the Plaintiffs remind the court, is not about the internal affairs of the Union but about the adherence to a contract with a third party. Again, the legal focus is about how Equity broke the 1989 Settlement, not how Equity deals with the LA intimate theater scene.

Finally, Equity was upset that “interested employers” contributed monies to the mediated talks and the legal efforts. Here, the Plaintiffs note the people contributing were neither “interested” nor “employers” in the legal sense claimed by Equity. According to the Plaintiffs, the legal precedents cited by Equity regarding their “outsider funding” complaint do not apply to this case and therefore neither does Equity’s complaint.

So there it is. Judge Hatter will get to decide whether or not there is reason to revisit a Settlement he presided over 27 years ago. Stay tuned.

Originally published August 18, 2016 in Footlights.