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Paul Birchall’s Got It Covered:

Ed Asner, et al Vs. Actors’ Equity Association, et al dismissed without prejudice.

By Paul Birchall

In news that just broke on Thursday, December 8, U.S. District Court Judge Hatter has dismissed, without prejudice, the complaint brought against Equity by the Pro 99 Plaintiffs.  Each of the four complaints filed against Equity by the Pro99 plaintiffs – that Equity breached the Agreement, breached the covenant of good faith and fair dealing, breached the duty of fair representation, and violated the Labor Management Reporting and Disclosure Act’s equal rights guarantee – have now been dismissed. The decision, posted earlier today by Footlights, may be found here. 

As far as the complaint on the breach of contract claim is concerned, Hatter suggests that the Plaintiff’s “do not sufficiently allege” that Equity’s actions are not inconsistent with the original agreement with the 99-seat Producers.

He notes that the obligation for Equity to consider changes to their proposal was met by their holding the referendum (which was ignored) and by meeting with the 99-Seat Review Committee on February 18, 20, and 21 of 2015.  

In the discussion of breach of implied covenant, Hatter believes that “no express provision of the Agreement has been breached.”  “The court finds (no facts) that demonstrate the alleged actions, such as Equity’s alleged lack of neutrality through the proposal process, constitute a frustration of Asner’s expectations under the express covenants of the Agreement.”  

 As far as dismissing the third complaint, that of the breach of the duty of fair representation, Hatter notes, “The majority of Equity’s alleged actions, such as not remaining neutral and refusing to meet with the Review Committee… can be characterized as not cooperative, deceitful, or dishonest.  To the extent that certain alleged statements… may be probative of deceit or dishonesty (and this Order does not decide whether the statements are)… these facts cannot satisfy the requirement that the Complaint allege “substantial evidence of bad faith.”  

 In the matter of the Labor Management Reporting and Disclosure Act claim, Hatter notes that the 2015 referendum, which suggested overwhelming local member approval for the maintaining of the 99-seat scene, was “merely advisory, as opposed to binding on the ultimate decision maker.”  “Thus, whether there were irregularities in the voting has no bearing on the validity of the Council’s decision to abolish the 99-Seat Theater Plan and does not give rise to a cognizable claim.”

 This is, obviously, quite bad news for the local theater scene and we will need to take some time to absorb just what all this means and how we will react to it.  Already, we are seeing several  Facebook posts from Equity actors who are vowing to go rogue and act secretly (and, yes, illegally) on 99 seat stages.  Others are seriously discussing the notion of going FiCore, a topic discussed at length in journalist Myron Meisel’s excellent earlier Stage Raw article. 

 We do note that the complaints were dismissed “without prejudice,” which generally means it can be re-filed, but whether the Plaintiffs have the energy or the funding to continue this battle may be worth considering.