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99’s Last Stand: Doubling Down on Intemperance

By Myron Meisel

The dispute between Rome and Carthage

Warning to the sensitive: the following screed will not be circumspect. I’m going to impugn other people’s motives. I’m going to express opinions that may be unpopular. However, the opinions, such as they are, are mine alone. Stage Raw has provided me the platform to express them. Whether or not they reflect the views of persons connected in any way with the site, I have no idea. So here goes:

For the survival of Los Angeles theater as an artistically vital ecosystem, everything utterly depends upon a single goal: securing a stay, whether by temporary restraining order or preliminary injunction, of the implementation of the deliberately demolishing Actors’ Equity pseudo-plan on December 14, freezing the status quo in place until the issues in the case can be resolved. At this juncture, nothing else matters, and every effort not concentrated toward that end distracts from the cause.

It is good to be reasonable – it speaks well for those so inclined. Los Angeles theater has always been intrinsically idealistic, because it had to be. In its battle to remain viable, however, such estimable impulses in the struggle against Actors’ Equity Association (Equity) have not made a dent in the Union’s implacable and obsessive determination to annihilate the presence of L.A.’s finest union actors in the county’s smaller theaters, indisputably against those actors’ will.

But that’s not all: Like Rome to Carthage, Equity’s new Agreement will sow the ground with salt as to render it infertile ever after. Without those talents, the aesthetic glory that is our local theater scene will wither as if in time-lapse photography virtually overnight. This conflict was conceived, generated, and has been unremittingly conducted in bad faith, and no amount of persuasion, goodwill or parsing of the opposition’s deliberate and dishonest arguments or contorting contentions is going to alter the outcome.

A Primer

More than forty years ago, I started a relatively short but not insubstantial career as a litigator, with a fair amount of appellate work for one then so young, and an ultimate specialty in defending other lawyers. At this remove, I am undeniably rusty and out-of-date. However, whether in law or business, there are observable patterns and consistencies to human behavior, and well-established strategies, wise or foolish, for getting one’s way through working the system. And you don’t need to be a professional or have other expertise to be familiar with the ways of bullies, or, put another way, parties obsessed with the primacy of their prerogative.

While it may have been laudable for the Plaintiffs to file but not to serve the suit, in order to encourage the start of discussion, Equity characteristically abused that process, extracting concessions upfront, cannily draining resources, and making the most of stalling for time as the best means to obscure and advance their strategy, which, not coincidentally, has been rigorously, even slavishly drawn from the established management playbook for suppressing workers’ rights that every employer-retained labor lawyer deploys. (You can discern the standard checklist approach in their Motion to Dismiss.)

These tactics include the manipulation of unfairly conducted elections (whoops!), advancing simplified and insincere arguments (here, minimum wage) as red herrings, the shameless “spin” of facts, and above all, contriving an endgame in which divide-and-conquer will extinguish remnants of resistance after the dictated terms are enforced upon the unwilling.

People have scratched their heads over how little Equity seems to care about the working conditions currently guaranteed by the Plan. Similarly, does any reasonable person believe that the institution of minimum wage payments will result in one single actor being able to make a living doing local theater? No, and neither does Equity. It’s merely a straw argument to figleaf its intention to scorch the earth so no professional theater will exist in Los Angeles except for those that can afford to offer contract pay.

Oh, and except for all the touring companies of commercially successful shows that hire non-union actors with impunity because the union is too toothless to bring those abuses to heel. And, in their eyes, those contract jobs will go disproportionately to their New York members, the ones who have their respect and pretty near sole attention. (Angeleno actors make great understudies, and those are good gigs.)

Understanding the Legalities

So shall we get down to basics? First of all, the assignment of Judge Hatter to the case is the most positive development imaginable. Judge Hatter presided over the original case in 1989 that generated the 99-Seat Plan, and while he may not remember the case, all can be absolutely certain that he has instructed his clerks to resurrect the files and fully brief him on the facts. The strongest hope for Equity to win either its Motion to Dismiss or the suit itself had been to find a disengaged judge (all of them are overworked) who would not be willing to grasp the context and history of the case and might be hoodwinked by a sleight-of-hand distillation that misrepresents the facts.

Second, the Motion to Dismiss is a pro forma filing and largely a distraction, although I wouldn’t be surprised if Equity, as a client, could be actually deluded enough to believe it has grounds to win it. These are rarely granted, and all the plaintiffs need to demonstrate are triable issues of fact, of which there are many. I find it curious that defendant Equity actually advances the notion that the presence of non-member plaintiffs provides a basis for the dismissal of what it prefers to characterize as an internal union matter (which I am certain is how their tunnel-vision perceives it). To the contrary, the variety of plaintiffs, union members and otherwise, underscores how this case fundamentally is a contract dispute, over the breach of the Settlement Agreement of the 30-year old complaint, which was anything but an action exclusively concerning membership matters.

However, this underscores the essential importance of engagement with the lawsuit not only by actors but also by the community at large, whose fundamental interest in the outcome makes all the difference in consideration of the merits of the case. This means not merely the producers, as Equity would like to insist, but the audience, related businesses, neighborhoods, cultural institutions of all the other arts, politicians, etc.

Crucial to prevailing on the merits will be to demonstrate the outsized, devastating effect that Equity’s imminent action will have on the economy and culture of a major metropolis that will never recover from the depredations wrought by instituting its duplicitous new regime. And make no mistake, none of those so-called exemptions, or “carve outs,” ostensibly permitted will survive beyond a year or two, although I’d expect Equity to move as quickly as it feels it can get away with to eliminate the remaining “membership” companies on technicalities one by one, until it confronts the few it may tolerate to remain with prospective summary execution at its chimerical and unsympathetic will.

Let’s examine the prospects and requirements for freezing current circumstances in place during the pendency of the litigation. Temporary restraining orders or preliminary injunctions are customarily hard to obtain. One cannot be sanguine: It’s an uphill battle, but it is possible, and everything hangs in the balance.

Generally speaking, there are four requirements that must be met for a TRO or preliminary injunction to be ordered: (a) a likelihood that failure to issue the order will result in “irreparable harm” that cannot otherwise be compensated for by money damages or other legal remedy; (b) there is a likelihood that the party will prevail on the merits in the suit; (c) a public interest would be served by granting the request or harmed by not granting it; and (d) that the balance of harm favors the moving party.

My own assessment: Showing the likelihood of irreparable damage should be demonstrable by the plaintiffs. It will require a goodly amount of evidence to inform the Court of the context in which it can appreciate the enormity of consequences if the Equity plan is implemented, however briefly. It will take a lot of work to make the case well. Luckily, one great benefit of the extended debates that have taken place since the initial attack (which in hindsight was obviously planned long before launched) is that many ideas have been advanced from which to organize a persuasive presentation. I am confident this essential element can be established.

A dicier proposition is the likelihood of ultimately prevailing on the issues in the complaint. Although couched as an objective standard, there is much room for subjectivity on the part of the Judge in how demanding he will be on this point. I don’t pretend to know how the suit will ultimately be decided by a jury, if tried; my own preference would probably be for the judge to be the trier of fact. Clearly I believe the plaintiffs to be in the right, but that is hardly transparently so, and the defendants will strive mightily to obfuscate the facts and the issues. No outcome is assured for either side. However, my best guess is that with a strong showing of irreparable harm, the Judge will be prone to look favorably upon the motion and not deny it on this ground alone if it is deemed to be a close question.

That brings us to the issue that is most amenable to effective action by the actors, the audience, the private sector (both business and philanthropic), public servants, indeed all the citizenry and institutions of Los Angeles: the indisputably substantial public interest that would be served (or more piquantly, not yet harmed) by securing the status quo in place for now.

Equity, Why?

Experience has taught me that speculation on the deep motives of others is a suckers’ game. We never know anything about other people’s marriages, no matter how things may appear. Most people are deeply vested in their ultimate inscrutability. Institutions, especially entrenched ones, all the more so. Experience has also shown me that I rarely follow what I’ve learned from experience, and I suspect I’m not alone in that.

But why does Equity so detest the 99-Seat Plan in Los Angeles? Because they do not believe that sustained work of any genuine artistic value can possibly be mounted here given that local actors must be beneath consideration except as practioners of the lesser arts of television and movies.

Obviously, they are afraid that the Plan’s existence represents a contagion that could spread (we can only hope, for the sake of actors everywhere). They claim it undermines them in contract negotiations with producers, although Dakin Matthews, among others, have surely demolished that contention.

My own first intimation of the troubles to come was the announcement of the new Equity headquarters in North Hollywood. Sure, it’s great to have a meeting place and all that, but my knee-jerk reaction was: Why were they spending all that money, and mostly on themselves, less for the actors’ benefit? Well, I intuited, they are going to need to show some results to justify that cost, and the 99-Seat Plan, I believe, was their target all along.

Kevin Delin of Footlights has made the trenchant observation that the financial strain caused by Equity’s relatively recent affiliation with the AFL-CIO may be a pertinent factor.

But my own sense of the psychological forces animating Equity’s hostility are not based in unionism, nor in concern for the welfare of the members, nor indeed any genuine principle at all. Instead, they feel elementally weak and ineffectual on their members’ behalf, and they derive a sense of power from bullying those whom they perceive contradict their authority.

Essentially so enamored of their own inflated sense of prerogative that they misinterpret as a duty, Equity cannot tolerate the rank insubordination of actors believing so passionately in their own art and craft that they demand the license to decline to toe the Company line. Those big union salaries might be going to their officers’ heads.

Organize!

Whether it takes the form of petitions, letters, friends of the Court submissions, or what have you, it’s best to take guidance from the plaintiffs’ lawyers, but I believe it is impossible to overdo: Organize! Everyone must devote all their energies in a single direction.

Organizing can make an enormous difference to the case: Indeed, can contribute meaningfully to the prospect of our theater culture’s survival.

We are all concerned, many distraught, and some of us dispirited. Nevertheless, the time for this campaign to focus is now.

It’s crunch time: Leave the arguments to the lawyers. Focus not on the merits of the issues but on winning the case. That requires a better general understanding of the lawsuit and its prospective outcomes than has generally been bruited on social media and elsewhere.

It’s time to grow up and accept the realities: Equity as presently constituted will never countenance any hint of Los Angeles live performance apart from commercial endeavors or pure vanity projects, which happens to confirm its unshakeable prejudice that those are the only conceivable manifestations of Los Angeles theatrical culture. Their contempt and condescension are absolute: Los Angeles actors are permitted to work in television or film, the lesser arts, and while they may be dues-paying members of their union, Equity fundamentally views its mission almost entirely in terms of servicing the wants and needs of its New York constituency.

I will be even more forcefully provocative: Any settlement or compromise with them must have rigorous and rapid enforcement remedies, because they will breach any such agreement in every way, tiny or substantial, that they can conceivably test, because, even if constrained to agree to a continuation of the Plan in some form, they will never concede their defeat, nor their opposition to artistic freedom of choice for their Los Angeles members.

Stop Equity’s destructive plan in its tracks before everyone loses what took decades to build, at least until the equities of the legal system (remember, it’s not a “justice” system) work themselves out.

Correction: An earlier version of this article had the incorrect name of the judge assigned to the Asner v. Equity case. The correct name is Terry J. Hatter, Jr.