A few days after my blog on the ageism settlement, the New York Times has weighed in.

…a deeper look at the settlement and its terms indicates that the defendants might not be giving up all that much, and that anyone who is expecting the floodgates to open with opportunities for older writers is likely to be disappointed.

Mmm hmmm…

“The best way to look at the settlement is through a fairly narrow lens,” said David R. Ginsburg, the executive director of the entertainment and media law and policy program at the School of Law of the University of California, Los Angeles. He noted that the statements of the targets of the lawsuit that they were settling the case merely as a business matter and their contention that they were not admitting any discriminatory acts “are not the sounds of a chastened defendant.”

True, true…so far, they’re singing my song. But what about the money?

Together, the defendants agreed to a $70 million settlement, but about two-thirds of that will be paid by insurance carriers. That means that no network, studio or agency will itself be on the hook for more than about $1 million — less than the average cost of a single half-hour of television production.

Subtracting the roughly 40 percent of the $70 million that will go for lawyers’ fees and other expenses leaves $43 million for the plaintiffs. About $2.5 million of that will go to create the Fund for the Future, which will issue grants and loans to affected writers “to further their writing careers and study ways to supplement their pensions and improve access to medical insurance,” according to the settlement terms.

While that leaves about $245,000 for each of the named plaintiffs, few if any will get that much, because the payouts will depend on how many people apply for and are granted membership in the class of affected writers. Even a quarter of a million dollars is not much when spread over 10 years, the time the lawsuit has been pending.

Boy, three for three. I’m tempted to think the Times reads this blog, but the fact is that the conclusions are so obvious, it’s far more likely that they arrived at them independently.

And, interestingly enough, the article also talks about how the hiring trend over the last decade has been away from ageism. So what we have here is a settlement addressing a cause that may or may not exist, the circumstances have been getting better on their own, the settlement changes absolutely nothing about how business is done, and the plaintiffs won’t even see much money.

But the lawyers…ohhhh, the lawyers.

Congratulations, Paul Sprenger! You were the lead counsel for the plaintiffs, and you’ve done it! You’ve made THIRTY SEVEN MILLION DOLLARS. Gee, I wonder why these suits are so popular…

Hey, you want to hear something interesting?

Here’s what Paul Sprenger said back when this case began.

Last month, 28 television writers filed a class-action lawsuit that seeks to alter ageist hiring practices in Hollywood that have deprived them of their right to pursue their profession in violation of federal and state civil rights laws. While acknowledging that older writers have “a legitimate ax to grind,” Brian Lowry wrote in his Nov. 1 column (“An Age-Old Question Persists in Television”) that “it’s hard to see” how the suit “will bring about any real change.” I respectfully disagree.

Do you now?

Underlying Lowry’s pessimism is his view that “profit-conscious executives” are “more apt to risk parting with a little pocket change to settle lawsuits” than to hire writers older than 40–at least as long as these executives continue to “presume twentysomethings are best able to write for and appeal to twentysomethings.”

Yes, such pessimism! Studios would never just part with a little pocket change to settle a lawsuit…

The primary goal of our lawsuit, however, is not merely to compensate writers for the income they have lost to date. The main goal is a court order compelling compliance with state and federal laws in the future. This type of court order (called a “consent decree,” if arrived at by settlement) would require networks, studios and talent agencies to institute measures intended to make age discrimination far more difficult, if not impossible, from continuing.

There you go! Now that’s noble. That’s honorable. And you’ll stick to that, right?

During the past 30 years, I have litigated scores of cases, which, like this one, have alleged that the defendants were engaging in a systemwide policy or practice of employment discrimination. In these and hundreds of similar such cases brought throughout the country, the plaintiffs have sought structural reform that is designed to ensure that unlawful discrimination does not occur in the future. Such court-ordered structural reform is pivotal to the resolution of most discrimination class-action lawsuits and has brought systemic change, ranging from desegregation of schools to the breaking of glass ceilings in heavy industry for women.

Yes! Pivotal! A resolution without structural reform is no resolution at all! Preach, brother!

Should the writers who have brought this suit prevail in a trial on the merits or should “profit-conscious executives” feel compelled to settle the suit, they will not be afforded the option of purchasing the right to continue their ageist hiring practices in exchange for “a little pocket change.”

THEY WILL NOT BE AFFORDED that option! Will NOT! Tell us what you’ll make them do instead, Paul!

Rather, as in other cases involving the violation of federal and state civil rights laws, they will be required to alter their practices in a manner that is designed to eradicate the unlawful “custom” of ageism and to ensure that older writers are afforded the right to equal opportunity under the law.

Yeah! Stick it to them, Paul! There’s no way that 10 years later, you’ll be doing exactly what you said you would not and should not do: settling the case for pocket change, getting no structural reform, and not even getting an admission of wrongdoing…but rather a legal confirmation of the absence of wrongdoing.¹

I mean, unless the evil studios pay you off with $37 million dollars. At that point, who can hold it against you?

For the rest of you folks out there who don’t have $37 million dollars in settlement money, here’s what you can do to get a piece of this pie. Cuz honestly…if you don’t take this money, it’s just gonna end up going to the few writers who brought this suit, and that doesn’t seem fair either.

First, do you meet these definitions?

The “Professional Television Writers Settlement Class” means all persons, except Excluded Persons (who are described below in the answer to Question 7), (a) who performed at any time television writing work covered by the Writers Guild of America Minimum Basic Agreement (“MBA”) or who performed for compensation television writing work not covered by the MBA, (b) who were 40 years of age or older as of January 22, 2010, and (c) who, while 40 years of age or older, had an interest in securing Television Writing Opportunities and/or talent agency representation for the purpose of securing Television Writing Opportunities, at any time between October 22, 1996 and January 22, 2010.

The “Aspiring Television Writers Settlement Class” means all persons, except Excluded Persons and members of the Professional Television Writers Settlement Class, who were (a) 40 years of age or older as of January 22, 2010, and (b) who, while 40 years of age or older, had an interest in securing Television Writing Opportunities and/or talent agency representation for the purpose of securing Television Writing Opportunities, at any time between October 22, 1996 and January 22, 2010.

Get that? Are you 40 or older right now? Have you, or have you ever wanted to, write television professionally? Or even just get a TV agent?

I’m gonna guess that covers everyone over the age of 40 who reads this blog.

If you want, go get yourself some cash. The instructions and rules are here.

1. Don’t believe me? Here are the terms of the settlement if you remain in the class…

   If you remain a Settlement Class Member, you will release five types of rights, all of which cover the period October 22, 1996 through and including January 22, 2010:

   · You will release, and never be able to file or re-file, any past age discrimination claims you may have against Defendants and their corporate affiliates (including claims of the kind covered by the federal Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act);

   · You will release, and never be able to file or re-file, any past age discrimination claims against everyone (not just the Defendants and their corporate affiliates) as to any television projects in which a Defendant or one of its corporate affiliates was creatively, financially, or otherwise involved (including claims under and of the kind covered by the federal Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act);

   · You will give up the right to bring a collective action under the federal Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act;

   · You will release claims that Creative Artists Agency, LLC (CAA), aided and abetted the alleged age discrimination of the Defendants or otherwise is jointly liable with the Defendants (including claims that CAA failed to take reasonable steps to prevent age discrimination from occurring at the Defendants and Settling Party Affiliates or in connection with the Television Writing Opportunities covered by the releases);

   · Except to the extent prohibited by law, you will be barred from introducing any purported evidence of age discrimination that occurred prior to January 22, 2010 in making any future age discrimination claim against any Defendant or Settling Party Affiliate. [↩]

13 Comments »

There was once a time in America when great lawyers argued great cases in front of great judges.

A number of those cases were about things far more important than contracts and regulations and petty crime. They were about the soul of our nation.

Those cases literally changed our culture, our understanding of what it meant to be a human being, to be free to choose, to vote, to live as equals…

But I’m not going to talk about any of those cases today. Instead, I’m going to talk about a case that was misguided, silly and frivolous. I’m going to talk about how it dragged on for years, enriching attorneys.

Then I’m going to talk about how it ended with a nonsensical whimper, spreading some money around like a balm, but impacting none of us in any real way.

Yes, this should be depressing if I do it right.

Years ago, a number of (mostly television) writers got together and decided they were going to sue Hollywood: all the studios, the networks and the big talent agencies. They were going to sue them because it was their fervently held belief that they were being illegally discriminated against.

How so?

Their age. Now, put aside that the numbers would more strongly support such a lawsuit from black writers or Asian writers or Native American writers or albino writers. And put aside that most of the people running the studios and networks and big talent agencies are over the magic age of 40, which is where the plaintiffs drew the line in the sand. And put aside the fact that just about every hit television show is run by someone over the age of 40.

Hell, put aside all the other arguments I made years ago about why there are perfectly logical reasons why people may find it harder to get work as a Hollywood writer as they get older…none of which involve employers hatin’ on the 40 and overs.

These plaintiffs didn’t care. They believed they stopped working because they got old. In their world, all the people who stop working in their 20′s and 30′s just…well…I dunno, suck I guess…but they stopped working for one reason and one reason only.

Their incredibly advanced age of…40?

Ugh, I actually felt myself getting dumber as I typed that.

Part of the legal argument they made was something like this: the government defines discrimination in a certain way, much of which revolves around outcomes not matching what you’d expect if all things were equal…so if there’s an age imbalance in the writing staffs of television shows, then there must have been de facto ageism involved.

In short, causality is presumed, which, as anyone reasonable will tell you…is just silly.

Silly? Why, then this latest quintessentially American legal excapade might just have a chance!

So what happened? Yesterday, all of the networks and studios and talent agencies (save my agency, CAA…and I urge you to fight this, CAA!) decided to settle. Yes, a settlement. An agreement. An understanding.

Here’s what they did.

They all got together, all gabillion dollars of market cap between them…and they decided, one presumes, that the legal fees were outweighing the actual cost of a settlement, so how much would it take to make this shakedown go away…and the number was…

…drumroll…

$70 million dollars.

Whoa! That’s a lot, right? Well…kind of. On the other hand, that number is split among 17 corporations. If it’s split evenly, that’s about four million bucks a piece. Oh. Well…still…that’s not too bad, considering that–wait, what?

Oh dear. Turns out that about 2/3rds of the money will actually be paid out by the 17 corporations’ insurance companies.

So instead of an average of four million a company, the actual retail price of what each company is paying out? More like an average of a million and a half.

Each.

Wow. That oughta bring them to their knees!

But I’m being negative. It’s not about punishing the companies financially. It’s about changing the unfair system, right? The plaintiffs struck a blow for social justice. They got Hollywood to admit that it was biased against old folks, and–

Oh. Oh no…

The defendants strongly deny the plaintiffs’ allegations and state that their hiring and/or representation practices fully comply with the law and reflect their commitment to equal employment opportunity. They also note that they all have long-standing anti-discrimination policies and regularly employ or represent substantial numbers of writers over the age of forty.

Of course. This is the way it goes. Brown sues the Topeka Board of Education over unfair discrimination. The Board of Education hands Brown an envelope with some cash they’ll never miss, then announce that they’ve never discriminated against anyone and they’re not changing shit about the way they do business, so back to your Colored school, Mr. Brown…

Um, sorry. I forgot. That was a different time.

In this time, the plaintiffs say, “Yup. We’re fine. That’s the settlement. You deny doing anything wrong, we stop chasing you in court, and you give us some cash.”

Which, by the time the lawyers take their cut and divvy the remainder up among the class, well…I’d be surprised if anyone buys a yacht when this is all wrapped up.

And so, this absurd chapter in our business (mostly) concludes. Most of my friends working in the business are still over the age of 40. Most of the people running the business are still over the age of 40. We now have a resolved legal case in which the plaintiffs are willingly going along with a settlement that denies the very argument they made to begin with.

In the end, they behaved true to the oldest of Hollywood principles: they took the cash.

Although, when you think about it, what they really did was take the cash to go away.

Finally, their absence from the work force will have a clear and unambiguous explanation.

26 Comments »