Amicus Curiae Letter from Personal Managers who have been compromised by TAA

7/27/2019 Amicus Curiae Letter from Personal Managers who have been compromised by TAA

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October 15, 2013

Molly Dwyer, Clerk of Court; Office of the Clerk

United States Court of Appeals for the Ninth Circuit

P.O. Box 193939

San Francisco, CA 941 19-3939

R E C E l V E D

MotLy c DWYER CLERK

tJ.s. cotfnT OF AFPEAI.S

OC1 2 1 2213

FILED

nocKii'iD -

DATE INITIAL

Re: Amicus Curiae Letter in Support of Appellant National Conference of

Personal Managers in National Conference of Personal Managers vs. Gov.

Edmond Brown et. aI., App. Case No. 13-55545, Supporting Reversal of District

Court's Affirmation of Appellees' Rule 12(b)(6) Motion To Dismiss Complaint

Dear Ms. Dwyer,

We, the below named and undersigned individuals, having been directly

impacted by the Labor Commissioner's enforcement of the California Talent

Agencies Act (TAA), request permission to submit this letter in lieu of a brief as

amici curiae in support of the Appellant (NCOPM) in the above matter:

Matthew Katz: Party in Buchwald v. Katz 8 Ca1.3d 493 (1972). Under

my guidance, the Jefferson Airplane went from a local Bay Area band

to one of the biggest and most successful bands in the world. This case

was adjudicated under the TAA'S predecessor, the Artists' Managers

Act, which like the TAA had no provision of penalty or voidance of

contract. Yet the Labor Commissioner determined and the CA

Supreme Court upheld the forfeiture of what 1 estimated to be over

$12,000,000 in compensation.

Brad Waisbren: Party in Waisbren v. Peppercorn Productions

43 Ca1.App.4th 246 (1995). The court held that any instance of

unlicensed procurement renders a representative's contract void, a

holding later mooted by a CA Supreme Court finding that TAA

controversies must consider severability. Marathon v. Blasi 2 Cal. 4th

974 (2008). My estimated loss of compensation was close to a half-

million dollars; my efforts 1ed to the sale of my client's business,

reaping him several million dollars. 1 am the author of the brief, no

funds were used in its creation and it was written without help of

counsel.

Case: 13-55545 10/21/2013 ID: 8832764 DktEntry: 19 Page: 1 of 14


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Molly Dwyer, Clerk of Court, Office of the Clerk


October 15, 2013

David Park: Pal'ty in Park v. Dejtones 7 1 Cal.App.4th 1465 (1999). 1

was the Deftones first manager, hired soon after its formation, and

worked four years without compensation for the sole pumose of

securing the band a recording contract. As of 20 13, the Deftones have

released seven albums and sold millions of copies worldwide as a

direct result of the efforts the Labor Commissioner determined violated

the TAA, My efforts mirrored what is specifically stated as lawful in

CA. Lab. Code 1700.4(a), but the Appeals Court affirmation of the

administrative determination led to the forfeiture of over hundreds of

thousands of dollars in personal management compensation.

Howard Wolf: Party in Yoo v. Robi 126 Cal.App.4th 1089 (2005). 1

was able to revitalize the brand of the band d-l-he Platters.'' My client's

widow petitioned the Labor Commissioner, which found my working

with Midwestem booking agents to get the Platters gigs in the Midwest

without involving a California-licensed agent violated and resulted in a

loss to me of more than $800,000 in compensation.

None of us have ever been affiliated with the NCOPM, and the organization

neither participated in the creation or themes of this letter nor was any financial

support enlisted. We do have common bonds: al1 four of us became entwined in

what became published TAA cases, one a CA. Supreme Court case. And none of

our adjudicators found any non-performance of our duties or fraud; we lost our

right to contact for engaging in a defined activity of a talent agent without a

license, despite the TAA having no statute reserving such activity to licensees.

Due to the emotional and fnancial suffering that resulted from our TAA

controversies, all of us subsequently left the occupation of personal management,

though one has returned after a long hiatus. NCOPM'S argument that the TAA

violates multiple provisions of the U. S. Constitution has affirmed our long-



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October l5, 2013

standing belief that we were deprived of our constitutional rights under color of

law by the Defendants' enforcement of the TAA, and unless this Court takes

action, the unconscionable enforcement will continue to unconstitutionally

compromise generations of our ex-colleagues.

Our experience makes it clear; the Labor Commissioner's invented

prohibition of procurement makes it impossible for a personal manager to

properly do theirjob. A personal manager is the chief executive offcer of an

artist's business, with the client being the Chairman of the Board and the product;

analogous to being Lee Iacocca and the Chrysler. In the corporate hierarchy, a

talent agent is the vice-president of sales; publicists, the vice president of public

relations; a transactional attorney, the vice president of business affairs; a

business manager is the vice president of finance. Artists often have teams of

agents: some have one agent to help find acting work in television, another for

films and another for writing and directing opportunities; a voiceover agent, a

personal appearances agent and a celebrity endorsement agent. And if the artist

had immigrated to the United States, the artist may have similarly empowered

representatives in their native lands. The personal manager supervises, and

usually hires them all. How do you hire and oversee a sales team while avoiding

being involved in the sales effort?



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October 15, 2013

Fledgling artists may not be able to garner an agency's interest' often times

the manager comes aboard first. In those cases, just like with other small

businesses, the CEO must take over some of those responsibilities. As such, a

manager must stand in harms way for a talent wishing to avoid commissions -

especially before the Sbusiness' has hired the other needed professionals.

Everything about the enforcement of the TAA is oxymoronic to the real

world. The artist hires the personal manager to help accelerate their career

trajectory, however the manager must be careful not to proactively do so or risk a

TAA controversy and the benefit of their contractual relationship. lt is the artist

who is the beneticialy of the labor, not the laborer; and it is the artist who

ultimately chooses which auditions to go out on, which scripts to write or which

songs to create. Rather than regulating talent agents, as the Act was created to do,

it serves more as a protectionist blanket for them.

To be an agent you have to get a $50,000 bond. As the major agencies often

hold tens of millions of their clients' monies, that bond is of no service. But

imagine being 19 and really believing in four really talented friends named

Richard, John, Paul and George. You could not afford the bond even if you

wanted to be their agent, but what they need is someone who can handle the

multitude of responsibilities; they need a manager. So you sign on and create the



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October 15, 2013

Beatles. But because you had had no license, an agency can tell the no longer fab

four that because you had provided al1 that service without a license, they had no

financial obligation to you. Rather than serving commerce, or creativity, it only

serves the established talent agency community.

lf it seems far-fetched, look at Jewel v Cold War Management, TAC 1999-

02. (httpi//www.dir.ca.gov/dlse/DLsE-TAcs.htm). Jewel was living in her VW

van using her armrest as a pillow when Inga Vainshtein discovered her. (ftfpgs.

2-3). And it was Vainshtein's efforts during that foundational period, before an

agency would sign on, that was cited as the foundational reasons her contractual

rights were voided. (1d., pg. 20, lines 12-20.) The manager took a singer-

songwriter from the streets to the spotlight; efforts to be celebrated, not punished.

The Labor Commission was created to ensure that California's workers are

lawfully paid. Yet when administering the TAA, at least relevant to unlicensed

procurement, it serves the purpose, intentional or otherwise, of providing a

methodology for the hirer to avoid paying the hiree. Most private disputes are

related to a party's alleged failure to perform, to satisfy the objectives of the

complainant. But the TAA artist petitioner is not claiming they have been

rendered less than whole; they are seeking to utilize a potential illegality to avoid



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October 15, 20 l 3

paying a contracted debt for services from which they have benefited. At

minimum, NCOPM'S allegations must be heard in 111.

The Governor And Attorney General Should Defend Their lnactions

We disagree with the Defendants claim that neither Gov. Brown nor

Attorney General Harris have sovereign immunity (''the state officer sued 'must

have some connection with the enforcement of the gallegedly unconstitutionall

act.''' Los Angeles Ctpz/nf

p Bar Assn. v. Eu, 979 F.2d 697, 704 (9th Cir. 1992:.

Verizon Md. Inc. JzC Public Serv.Comm 'n OfMd. (00-1531) 535 U.S. 635

(2002) holds that, tln determining whether the Exparte Young doctrine avoids an

Eleventh Amendment bar to suit, a coul't need only conduct a cstraightforward

inquiry'' into whether the complaint alleges an ongoing violation of federal law

and seeks relief properly characterized as prospective. Idaho v. Coeur d'Alene

Tribe ofldaho, 521 U.S. 261, 296, 298 299.7'

NCOPM seeks relief from unauthorized enforcement. (-l-he alleged ongoing

constitutional violation. . . is precisely the type of continuing violation for which a

remedy may permissibly be fashioned under Exparte Young. . . the Eleventh

Amendment would not bar relief necessary to correct a current violation of the

Equal Protection Clause.'' Papasan v. Allain, 478 U. S. 265 (1986).

dgsjince Exparte Young, 209 U. S. 123 (1908), it has been settled that the



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United States Coul't of Appeals for the Ninth Circuit

October l5, 20l 3

Eleventh Amendment provides no shield for a state official confronted by a claim

that he had deprived another of a federal right under the color of state law. Ex

parte Young teaches that when a state officer acts under a state law in a manner

violative of the Federal Constitution, he Scomes into contlict with the superior

authority of that Constitution, and he is in that case stripped of his official or

representative character and is subjected in his person to the consequences of his

individual conduct. The State has no power to impal't to him any immunity from

responsibility to the supreme authority of the United States.''' 1d. at 159-160.''

Scheuer P: Rhodes, 416 U.S. 232 (1974).

Cd-l-he Ninth Circuit Court of Appeals has established that: tcoualified

immunity is not available as a defense in j 1983 cases dsagainst a municipality'' or

(tagainst individuals where injunctive relief is sought instead of or in addition to

'' H W v Willden 678 F. 3d 99l (9th Circuit 2012) citing Pearson v.amages. enry . . , ,

Callahan, 555 U.S. 223, 242 (2009).

Los Angeles Colfn/'y Bar Assn. v. Eu also states: Ss-l-his suit, however, is not

based on any asserted general duty to enforce state law. Eu and Wilson have a

specific connection to the challenged statute. Wilson has a duty to appoint judges

to any newly createdjudicial positions, and Eu has a duty to certify subsequent

elections for those positions. In the instant matter, the Governor and Attorney



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October l5, 2013

General have specific connections to the challenged statute: similar to Wilson's

duty to appoint cited in Los Angeles Ct/vzk/

p Bar Assn. v. Eu, the Governor has a

duty to appoint the California Labor Commissioner, the executive charged with

administering and enforcing the TAA. Calfornia Labor Code, Sec. 79.

Moreover, t-f'he Governor shall see that the 1aw isfaithfully (emphasis

added) executed.'' Calfornia Constitution, Article 5, Sec. 1. Emphasis added.) lt

shall be the duty of the Attorney General to see that the laws of the State are

uniformly and adequately enforced.'' Calfornia Constitution, Article 5, Sec. l3.

The Governor and the Attorney General have failed or neglected to

adequatelynfaithftlly and unformly execute the TAA in deprivation of the

NCOPM'S constitutional rights, privileges and immunities.

SsEven in the absence of specific state enforcement provisions, the

substantial public interest in enforcing the trade practices legislation involved

here places a significant obligation upon the Governor to use his general

authority to see that state laws are enforced. . . We thus find that the Govel-nor has

sufficient connection with the enforcement of the Act that he falls outside the

scope of eleventh amendment protection and may be sued for the declaratory and

injunctive relief requested here. Were this action unavailable to the plaintiffs,

they would be unable to vindicate the alleged infringement of their constitutional



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October 1 5, 20 13

rights without first violating an Ohio statute requiring a significant change in

their business conduct. Such a result is clearly what the doctrine in Ex Parte

Young was in part designed to avoid.'' AlliedArtists Picture Corp. v. Rhodes, 679

F. 2d 656, 6th Circuit (1982).

ln 2007, NCOPM asked Gov. Arnold Schwarzenegger to investigate acting

Labor Commissioner Robert A. Jones for his administration of the TAA.

(http://variety.com/zoo7/scene/news/managers-seek-iones-probe-l 1 17956901/).

The Governor did not respond to NCOPM'S request.

ln 2008, California's Govemor received :6212 letters by personal managers''

(hdp://o w.mediabistro.com/fshbowlla/siegel-goes-to-terminator-for-

closure b7220) asking for him to look into this issue. The industry similarly

reached out to California's attomey general (when the office-holder was now-

Governor Brown). The Governor had a constitutional oversight of this issue and

ignored the request to examine the Labor Commission's policy to void contracts,

a remedy not codified by the California legislature and therefore enforcement

tsimpossible to defend.'' (1d., quoting letter.)

The State cannot slough off their need to protect its citizenry: $A general

obligation to enforce or execute state laws is sufficient to meet the connection

with enforcement requirement set fol'th in Exparte Young. The court is persuaded



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in this regard by the Supreme Court's repeated references in Exparte Young to

some vague ''general law'' which gives rise to enforcement obligations, by its

focus on the general obligations attendant on the office of the Minnesota

Attorney General, and, most particularly, by the Coulfs careful affirmance of its

holding in Smyth v. Ames, supra, in light of its subsequent decision in Fitts v.

McGhee, supra.'' NAACP v. CA., 5 1 1 F. Supp.1244, ED California 1981.

The Labor Commissioner Does Not Qualify For Judicial lmmunity

The Defendants also argue that the Labor Commissioner is not a proper

Defendant for she should be given judicial immunity. We disagree. Judicial

immunity provides that judges ddare not liable to civil action for their judicial acts,

even when such acts are in excess of their jurisdiction, and are alleged to have

been done maliciously or corruptly. . . . A judge will not be deprived of immunity

because the action he took was in error, was done maliciously, or was in excess

of his authority; rather he will be subject to liability only when he has acted in the

kclear absence of all jurisdiction'.'' Stump v. Sparkman, 435 U.S. 349, 356, 98

S.Ct. 1099, 1 104, 55 L.Ed.2d 331 (1978).

The necessary inquiry must be whether at the time the adjudicator took the

challenged action he had jurisdiction over the subject matter before him. (f ., 435

U.S. at 356, 98 S.Ct. at 1 105.) ln Stump, a Judge who had approved a petition for



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October l 5, 20 1 3

$$$ hat retarded' ls-year o1d daughter'' sterilized iin an exmother of a somew

parte proceeding without a hearing and without notice to the daughter or

appointment of a guardian ad Iitem'' (1d. at 349) was found to be timmune from

damages liability even if his approval of the petition was in error'' because

dilndiana 1aw vested in Judge Stump the power to entertain and act upon the

petition for sterilization.'' (1d. at 356.)

Per Labor Code j 1700.44 (a), the Commissioner tshall hear and determine''

all cases of controversy arising under gthe TAAI.'' But there is no controversy

relevant to unlicensed procurement: as detailed in NCOPM'S Opening Brief, the

California Legislature has never created laws barring the unlicensed procuring of

employment opportunities for artists; thus it did not vest the Labor Commissioner

the authority to hear and determine a petition to void the contractual rights of a

talent representative based upon claims of unlicensed procurement.

Therefore, for the reasons stated above and in the NCOPM'S Opening Brief,

we respectfully request this Coul't require the Califomia Govemor, Attomey

General and Labor Commissioner be required to explain how the seemingly

unconstitutional intemretations and enforcement of the TAA are lawful; and if

impossible, that their enforced deprivation of rights, privileges and immunities

secured by the Constitution is ended by finding the TAA to be unconstitutional



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Molly Dwyer, Clerk of Coul't, Office of the Clerk


October l 5, 20l 3 '

both on its face and as applied. Or, in the alternative, we request this Coul't to

remand the case to the District Court to be given a full hearing.

Attesting that l have the express permission and approval of all of the

statements made in this brief by the below Amici, this letter is

Respectfully Submitted:

W w o -

/s/ Brad Waisbren

P.O. Box 1928

Studio City, CA 91614

818.506.3000

[email protected]

Matthew Katz

29903 Harvester Road

Malibu CA 90265

Phone: 310.457.9055

[email protected]

David Park

4101 Saul Court

Elk Grove, CA 95758

916.509.9545

[email protected]

Howard Wolf

2550 E. Desel't lnn Road //220

Las Vegas, (NV 89121

702.735.9200

[email protected]



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October 15, 2013

CERTIFICATE OF COMPLIANCE

As the author of this brietl l certify that this letter complies with the type-

volume limitation set forth in Rule 32(a)(7)(B) of the Federal Rules of

Appellate Procedure. This letter is proportionally spaced, uses a Times New

Roman typeface and l4-point font, and according to Microsoft Word, the

brief as a whole contains approximately 2,674 words.

DATED: October 18, 20 13 . A x 3y:

Brad Waisbren



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CCRTIFICATE OF SERVICE Xksa-En-

..

-

DATE INITIAI

CASE NAME: National Conference of Personal Managers vs. Gov. Edmond

Brown et. al., App. Case No. 13-55545

R E C E l V E D

MQLI.Y .DWYER

.

GLERK

,

s.ccURT OF A/PEALS

OCT 2 1 2213

CASE NO: 13-55545

1, the undersigned, declare that: l am and was at the time of service of the papers

herein referred to, over the age of eighteen years and not a party to the within action. I am

employed in the County of Los Angeles, California, where the mailing occurred, and my

business address is: P.O. Box 1928, Studio City, CA 91614

I further declare that 1 am readily familiar with the business practice for collection

and processing of correspondence and pleadings for mailing with the United States Postal

Service, and that the mailings are deposited with the United States Postal Service thesame day in the ordinary course of business. I caused to be served the following

documentts): Amicus Curiae Letter in Support of Appellant

BY MAIL: by placing the documentts) listed above in a sealed envelope with

postage thereon fully prepaid, in the United States mail at Studio City, California

addressed to:

Molly Dwyer, Clerk of Court; Office of the Clerk


P.O. Box 193939

San Francisco, CA 941 19-3939

Kamala Harris: Attorney General of California

Douglas J. Woods, Sr.: Assistant Attorney General

Michael Glenn Witmer: Deputy Attorney General

300 S. Spring Street Suite 1702 Los Angeles CA 90013

I am readily familiar with the business practice for collection and processing of

corresjondence and pleadings for mailing with the United States Postal Service, and that

the mallings are deposited with the United States Postal Service the same day in the

ordinary course of business. l am aware that on motion of the party served, service is

presumed invalid if postal cancellation date or postage meter date is more than one day

after date of deposit for mailing in affidavit.

1 declare under penalty of perjury under the laws of the State of California that the

above is true and correct. Executed on this 18th day of October, 2013, Studio City,

California,


Documents

Amicus Curiae Letter from Personal Managers who have been compromised by TAA