Wynn v. National Broadcasting Co., Inc.

• Decision Date: 24 January 2002
• Docket Number: No. CV 00-11248SVW(RZx).,CV 00-11248SVW(RZx).
• Citation: 234 F.Supp.2d 1067
• Parties: Tracy Keenan WYNN, et al., Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., et al., Defendants.
• Court: U.S. District Court — Central District of California

Page 1067

234 F.Supp.2d 1067

Tracy Keenan WYNN, et al., Plaintiffs, v. NATIONAL BROADCASTING COMPANY, INC., et al., Defendants.

No. CV 00-11248SVW(RZx).

United States District Court, C.D. California.

January 24, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Dolly M. Gee, Schwartz Steinsapir Dohrmann & Sommers, Los Angeles, CA, Paul C. Sprenger, Michael D. Lieder, Daniel Wolf, Steven M. Sprenger, Jane Lang, Sprenger & Lang, Maia Caplan, Kator Scott & Parks, Washington, DC, William T. Payne, William T. Payne Law Offices, Pittsburgh, PA, Thomas W. Osborne, Daniel B. Kohrman, Laurie A. McCann, AARP

Foundation Litigation, Washington, DC, for plaintiffs.

James N. Adler, Henry Shields, Jr., Harry Arthur Mittleman, Irell & Manella, Los Angels, CA, Andrea R. Hartman, James M. Lichtman, Burbank, CA, for National Broadcasting Co., Inc., NBC Studios, Inc.

Nicole Ann-Jeannette Gustafson, Jane Howard-Martin, Morgan Lewis & Bockius, Los Angeles, CA, Timothy H. Lee, Ford & Harrison, Los Angeles, CA, Grace E. Speights, Morgan Lewis & Bockius, Washington, DC, George A. Stohner, Morgan Lewis & Bockius, New York City, for Viacom, Inc., CBS Broadcasting, Inc., United Paramount Network, Viacom Productions, Inc., Spelling Entertainment, Inc., Spelling Television, Inc., Spelling Daytime Television, Inc., Aaron Spelling Productions, Inc., Big Ticket Television, Inc., Big Ticket Productions, Inc., Dreamworks SKG TV LLC, Carsey-Werner Co., LLCCarsey-Werner Productions LLC.

Vilma S. Martinez, Glenn D. Pomerantz, Allison B. Stein, Monica Wahl Shaffer, Munger Tolles & Olson, Los Angeles, CA, for Universal Television, Inc., Universal Television Entertainment, Inc., Universal Television Enterprises Productions, Inc.

James E. Curry, White O'Connor Curry Gatti & Avanzado, Los Angeles, CA, for Studios USA LLC.

Scott H. Dunham, Gordon E. Krischer, Apalla U. Chopra, O'Melveny & Myers, Los Angeles, CA, for Time Warner Entertainment Co., LP, WB Network Partners LP, Warner Bros. Television, Castle Rock Television, Inc.

Jeffrey F. Webb, Gibson Dunn & Crutcher, Los Angeles, CA, Vilma S. Martinez, Glenn D. Pomerantz, Allison B. Stein, Monica Wahl Shaffer, Munger Tolles & Olson, Los Angeles, CA, Ann K. Calfas, Fox Group Legal Dept., Los Angeles, CA, for Fox Entertainment Group, Inc., Fox Broadcasting Co., Twentieth Television, Inc., Twentieth Century Fox Television, Regency Television, LLC, Greenblatt Janollari Studio, Inc.

Paul Grossman, J. Al Latham, Jr., Kelley L. Sbarbaro, Paul Hasting Janofsky & Walker, Los Angeles, CA, for Walt Disney Co., ABC Inc., Walt Disney Pictures & Television, Touchstone Television Productions, LLC, Miramax Productions, Inc., Buena Vista Television.

William L. Cole, Kevin E. Gaut, Patricia H. Benson, Adam Levin, Mitchell Silberberg & Knupp, Los Angeles, CA, for Columbia Tristar Television Inc.

Nancy P. McClelland, Elisabeth C. Watson, Gibson Dunn & Crutcher,m Los Angeles, CA, William T. Rintals, G. Howden Fraser, Michael B. Garfinkel, Emily Peters, Rintala Smoot Jaenicke & Rees, Los Angeles, CA, Anthony J. Oncidi, Dana Cephas, Akin Gump Strauss Hauer & Feld, Los Angeles, CA, for William Morris Agency, Inc., United Talent Agency, inc., Shapiro-Lichtman, Inc., Lucy Stille & Associates, Inc., Irv Schecter Co., International Creative Management, Inc., Gersh Agency Inc., Endeavor Agency, LLC, Creative Artists Agency, Inc., Broder Kurland Webb Agency, Inc., Agency for the Performing Arts, Inc.

ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS AND GRANTING DEFENDANTS' MOTION TO SEVER

WILSON, District Judge.

I. INTRODUCTION

This action is brought under the Age Discrimination Employment Act ("ADEA"), California's Fair Employment and Housing Act ("FEHA"), and New York State's Human Rights Law ("NYHRL"), as well as the Labor Management Relations Act ("LMRA") and common law claims. Plaintiffs, 51 individual television writers, allege that they have been the victims of an industry-wide "pattern or practice" of age discrimination, perpetrated by Defendants, 50 separate entities in the television industry, ranging from broadcasting companies to talent agencies. Pursuant to this Court's request that the parties attempt to consolidate their briefings, the 40 network and studio defendants ("Employer Defendants") and the 11 talent agency defendants ("Agency Defendants") have each filed consolidated motions to dismiss, and, in the alternative, to sever both Plaintiffs and Defendants as improperly joined, under Fed.R.Civ.P. 12(b)(6), 20, and 21. Defendant Studios USA has joined Employer Defendants and Agency Defendants in their motions to dismiss and sever, but has brought a separate motion to dismiss on grounds unique to Studios USA.

For the reasons set forth below, the Court grants in part Employer Defendants' and Agency Defendants' motions to dismiss, grants Employer Defendants' and Agency Defendants' motions to sever, and grants Studio USA's motion to dismiss.

II. STATEMENT OF FACTS

Plaintiffs consist of 50 former or current writers for television programming, who all claim to be members of the Writers Guild of America (the "Guild"). Plaintiffs reside in various states and Canada, although a majority of Plaintiffs reside in California. They range in age from early forties to late seventies. Each Plaintiff alleges a different background in terms of qualifications and experience. They each claim to have written for different television programs, which run the gamut from comedies to dramas to westerns to children's shows. Some Plaintiffs have written for one or two programs, while others have written for a multitude of programs. Some Plaintiffs claimed to have had work as recently as 1999, while others have allegedly not obtained work since the early 1980s. There are Plaintiffs that allegedly have won awards for their work, while many others make no such allegations.

Plaintiffs each allege that they have been a victim of a pattern or practice of age discrimination in the television industry. However, not one Plaintiff has alleged that he or she applied for a specific writing position available with a specific Defendant. Instead, most claim to have "made efforts" to obtain employment with certain Employer Defendants, and claim to have "sought, without success, to obtain representation" from certain Agency Defendants. See, e.g., Plaintiffs' First Amended Complaint ("FAC"), at ¶¶ 110-11, 137-38, 237-38. Many of these alleged efforts had manifested in different ways. Some Plaintiffs only sought to contact Employer Defendants via Agency Defendants, while others used direct contacts. Some Plaintiffs claim to have obtained agents, while some others claim to have lost their agents. Some Plaintiffs have apparently not contacted any Employer Defendants at all, either directly or indirectly.

According to Plaintiffs' complaint, the 51 Defendants consist of 40 Employer Defendants and 11 Agency Defendants.¹ The Employer Defendants consists of entities in the television industry that employ writers of television programming in any of three capacities: "staff writer," "freelance writer" and "show runner." The Employer Defendants are subdivided into two subgroups, Studio Defendants and Network Defendants. The Studio Defendants, according to the complaint, have been in the business of developing, producing, and/or distributing television programming for broadcast on the various networks. The Network Defendants, Plaintiffs allege, have been principally in the business of broadcasting television programming via a network of affiliated television stations, and, in certain instances, have also been involved in the business of producing such programming. Plaintiffs further assert that most Employer Defendants are part of larger corporate families (termed by Plaintiffs as "Employer Defendant Families"), which have parent corporations known in this case as Parent Defendants. Plaintiffs claim that all Employer Defendants are bound by the terms of the Theatrical and Television Basic Agreement with the Guild (the "Collective Bargaining Agreement" or "CBA").

Plaintiffs identify the Agency Defendants as entities in the television industry that operate or have operated a talent agency. In the regular course of business, Agency Defendants represent television writers and refer or recommend such writers to employers, such as Employer Defendants, for employment and/or employment opportunities.

According to Plaintiffs, since at least the early 1980s, virtually every major studio, network and talent agency in Hollywood has engaged in a systematic pattern or practice of age discrimination against television writers. Plaintiffs seek to certify two umbrella classes consisting of (1) all television writers who have been denied employment by, and/or been deterred from seeking employment with, one or more of the Employer Defendants because of their ageist hiring practices, and (2) all television writers who have been denied representation and employment referral by, and/or been deterred from seeking representation from, one or more of the Agency Defendants because of their ageist representation and referral practices.

Plaintiffs also seek to join all Defendants into a single action. Plaintiffs claim that "[b]y virtue of their having contributed to the industry-wide practice of age discrimination, the conduct of each of the Defendants has been a substantial factor in causing indivisible injury to each class member who was discouraged from seeking employment as a result of that practice." FAC, at ¶ 14. Furthermore, "numerous linkages among all of the Defendants bind them together and make them responsible, both as a factual and legal matter, for the discriminatory practices of other Defendants. In view of these linkages, all such Defendants should be joined in a single action to ensure the efficient adjudication of common issues and a final and comprehensive resolution of the...