ICM Partners on Friday filed a motion in its legal battle with the Writers Guild of America to have the guild and its writers’ complaints against the agency thrown out.
In a demurer filed with the Los Angeles County Superior Court, ICM and its lawyers argue that the WGA lacks the standing to claim the agency breached its fiduciary duty or engaged in fraudulent activity whether intentionally or not. ICM also said that writers Patricia Carr (“Reign”) and Chip Johannessen (“Homeland”) did not provide sufficient facts or examples of ICM engaging in unfair competition.
“In addition to failing to allege a viable theory by which packaging fees could be ‘unlawful,’ plaintiffs also fail to allege facts sufficient to demonstrate that they are ‘unfair,’ or that ICM engaged in any ‘unfair’ practice with regard to them,” ICM’s filing reads. “Plaintiffs’ claims — which allege packaging ‘deprive[s] writers of loyal, conflict-free representation; divert compensation away from the writers and other creative talent . . . ; and undermine the market for writers’ creative endeavors,’ — cannot satisfy the ‘unfairness’ requirements.”
The WGA, in April, filed a civil lawsuit against ICM and three additional top Hollywood talent agencies. The lawsuit, which named eight WGA member writers as plaintiffs, alleged that packaging fees — collected when agencies bundle talent and present them as a package to a studio or network for film or TV projects — are illegal under California and federal law.
The WGA said that packaging fees violate California fiduciary law by “severing the relationship between writers’ compensation and what the agency receives in fees.” Carr and Johannessen, two of the eight writers included in the WGA’s initial lawsuit, said they were both hurt by packaging done by ICM.
In its filings Friday, ICM refuted the claims on a number of fronts. The agency argues not only that packaging and packaging fees aren’t unlawful, but that the WGA and its writers consented to packaging fees through the collective bargaining agreement between the guild and ICM’s member organization, the Association of Talent Agents.
“Through the [Artists’ Manager Basic Agreement], plaintiffs all consented to the structural aspects of packaging. They thus cannot allege a fiduciary breach based on the practice of packaging alone,” ICM argued in its filing. “Separate and apart from its informed consent, the WGA also lacks standing. The WGA does not — and cannot — allege that ICM breached fiduciary duties owed to the WGA; the agencies are indisputably not fiduciaries of the WGA. Rather, the WGA purports to assert claims on behalf of some undisclosed number of its approximately 14,000 members (only a fraction of whom were ever represented by ICM).
“An association, including a union, has standing to bring claims on behalf of its members only when ‘neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit,’” the filing reads. “Where individualized proof would be necessary to prove any component of a claim, standing is lacking, and the claim must be dismissed.”
On top of that ICM argued in its filing that it wasn’t even involved in packaging Carr’s projects, and that Johannessen’s shows weren’t packaged at all.
ICM lays out that Carr said in the initial complaint that she worked on packaged shows “90210,” “Mixology,” “Private Practice” and “Reba,” but does not say those shows were packaged by ICM. ICM began repping Carr in January 2018, after all four shows had ended.
“Plaintiff Carr also fails to plead the elements of her claim for breach of fiduciary duty. While she vaguely asserts that she was harmed ‘by the payment of packaging fees to Agencies,’ she pleads no facts sufficient to establish that ICM breached any fiduciaries owed to her… Carr’s claims thus contain no well-pleaded facts against ICM and must be dismissed,” ICM’s lawyers wrote.
“The constructive fraud claim further fails as to all plaintiffs because none has pled with the requisite specificity. Each element of constructive fraud must be pled with specificity,” the filing continues. “No plaintiff comes close to meeting this heightened standard, including the WGA, Carr, and Johannessen. Instead, plaintiffs provide a hodgepodge of conclusory assertions in paragraph
83 of the [First Amended Complaint] about ICM’s supposed general conduct toward ‘Carr, Johannessen, and other members of the Guilds” regarding “concealing” packaging activities. Not a single statement in the FAC shows the ‘how, when, where, to whom, and by what means [any alleged] representations [or acts of concealment] were tendered.’”