It’s a judicial dilemma that could only happen in Los Angeles.
As Hollywood writers take their fight against talent agents to court, the two sides are contending with an unforeseen challenge: finding a judge who doesn’t have personal ties to the entertainment industry.
In the month since writers sued Hollywood’s four biggest agencies, challenging the legality of packaging fees, two Los Angeles Superior Court judges have removed themselves from the case after it was revealed both had personal connections to the TV and movie businesses, which the Writers Guild of America argued would constitute a conflict of interest.
While judicial recusals are common in entertainment cases, experts say that the personal nature of the WGA’s objections is unusual. Litigators typically seek to remove judges from a case based on past rulings, not personal ties.
“It's important for a judge in a case to avoid both the appearance and reality of having a conflict of interest,” said Barry McDonald, a professor of law at Pepperdine University, who isn’t involved in the case.
“Obviously given the breadth of the entertainment industry here in L.A., there's going to be a number of occasions where a judge does have ties to a side in a case where someone can call into question his impartiality.”
The writers’ lawsuit focuses on packaging, a lucrative, decades-old practice in which studios pay agencies money for putting together talent on a show. Writers allege that packaging fees violate state fiduciary law, which requires agents to represent clients with undivided loyalty. They claim agents have prioritized packaging over traditional client representation.
Writers also allege packaging fees constitute an illegal kickback to agencies, one that violates the Taft-Hartley Act.
The unprecedented case is part of a larger dispute between writers and agents that has riveted Hollywood. Writers are also pressuring agencies to renounce production activity — a relatively new phenomenon in which agencies are launching studios that produce and sell shows — because it makes agencies potential employers, potentially posing a conflict of interest.
A resolution to the battle still appears far off despite a resumption of talks scheduled for June 7. But finding a judge has proven more challenging than expected.
L.A Superior Court Judge Marc D. Gross withdrew from the case last month after the Writers Guild of America filed a peremptory challenge, noting that his wife once worked for Endeavor Talent Agency, now a part of WME. The agency is one of the four firms named as defendants in the case.
In California, the parties in a case have one opportunity to contest a judge without having to give a reason.
The spouse, whose name wasn’t revealed in court documents, has also worked for two other entertainment companies, TNT and producer Graham King’s GK-TV. The WGA contended that the spouse’s employment at companies that could have benefited from packaging fees would compromise the judge’s view.
In a response, talent agency CAA, another defendant, argued that the guild’s request was too broad, since many local judges have family and friends working in entertainment.
“That would require the recusal of a significant portion of the bench in the Los Angeles Superior Court,” the agency wrote in its own filing.
The case was then assigned to Judge Craig D. Karlan. But the guild lodged another objection, saying that Karlan himself has worked in Hollywood as a writer. In addition, the guild wrote that the judge has been in discussions with CAA about potential projects.
Karlan stepped down from the case on May 22. He issued a ruling on the matter saying that while his previous work doesn’t necessarily disqualify him from the case, his “recusal would further the interests of justice.”
Judge Elaine W. Mandel is now presiding over the case. She has ruled in cases including Justin Bieber’s dispute last year with a neighbor over alleged eggings.
The WGA, which declined to comment, has not filed any objections to Mandel so far.
In L.A., the judicial sphere often overlaps with the entertainment industry in social settings, with prominent members of both sides socializing at the same events. In some cases, the ties are even closer, with individuals moving from one side to the other.
The most notable instance was Louis Meisinger, who worked for the Walt Disney Co. starting in 1998 as general counsel overseeing legal strategy for the Burbank studio. He left five years later to work at a law firm.
In 2008, he was appointed as a judge in L.A. Superior Court by former Gov. Arnold Schwarzenegger. He served on the bench for six years before retiring from the court in 2014.
Meisinger, who didn’t reply to a request for comment, presided predominantly over non-entertainment cases, including family disputes and personal injury suits, court records show. He is widely respected in legal circles and now works as a private mediator.
Judges who have potential conflicts typically disclose those conflicts early in the case. Having made that disclosure, the judge usually stays on the case, according to Zev Raben, an entertainment attorney at Ramo Law and former litigator at Lavely & Singer.
“Usually a judge will disclose a social relationship with someone,” he said. “But then they don’t recuse themselves.”
L.A. Superior Court judge Susan Bryant-Deason faced a call in 2013 to recuse herself in a plagiarism dispute involving the movie “Avatar.” The plaintiff, who alleged that the filmmakers ripped off his original story, argued that the judge’s spouse once worked for Fox, the studio behind the blockbuster.
But Judge Bryant-Deason ultimately decided to remain on the case, noting in her decision that she had previously disclosed her personal connection and that Fox wasn’t a party to the suit.
Some legal experts have questioned the ability of lawyers to get judges thrown off cases, saying that it amounts to judge shopping. Some say a personal connection to an industry shouldn’t be an automatic disqualifier.
“Should judges who hear real-estate cases recuse themselves because they might own real estate?” asked one entertainment lawyer who requested that his name be withheld due to current cases in front of the courts.
Judicial disqualification tends to rear its head more often in celebrity criminal cases.
Last year, a Pennsylvania judge in one of Bill Cosby’s sexual assault cases declined to step down after the comedian’s team claimed the judge had a personal grudge against a witness.
The WGA filed its civil suit in L.A. Superior Court’s Santa Monica division in April. The four agencies who are the defendants haven’t yet filed their response.
The guild filed an amended complaint in May, giving the agencies more time to submit their responses, which are expected later this month.