ICM Responds to WGA Packaging Lawsuit: Claims are ‘Baseless’ and ‘Absurd’

By Cynthia Littleton

LOS ANGELES (Variety.com) – ICM Partners has asked a judge to dismiss the lawsuit filed against four major talent agencies by the Writers Guild of America as part of the larger war between agencies and the guild over packaging fees on TV series and movies.

The guild sued ICM, CAA, WME and UTA in California state court in April, on the heels of implementing a new Code of Conduct governing how talent agencies can represent guild members. That move sparked the mass firings of agents by more than 7,000 guild members. The WGA is trying to eliminate the decades-old practice of packaging by asserting that it is a conflict of interest that harms guild members in the long run. The agencies have balked at the guild’s self-described “power grab” and challenged the ’s effort to brand as illegal a practice that was expressly recognized as allowed by the terms of the guild’s previous franchise agreement with major talent agents.

ICM’s response asserts that WGA lacks the standing to sue the agencies for breach of fiduciary duty because the agency has no obligation to the guild itself.

“It’s rare to see such a baseless complaint,” ICM attorney Marvin Putnam, of Latham & Watkins, told Variety. “You can’t breach a fiduciary duty that doesn’t exist.”

WME, CAA and UTA last month filed have since filed separate lawsuits against the WGA in federal court, accusing the union of violating anti-trust laws with its campaign to eliminate packaging and agency-affiliated production activities. The agencies say the guild is overreaching the bounds of its authority to regulate how agencies operate. ICM’s response in the state lawsuit echoes the claims made in the federal suits that the WGA’s directive to members to fire agents that don’t adhere to the new code constitutes an “unlawful group boycott.”

“Plaintiffs first attempted their power grab through an unlawful group boycott and mandated mass firing of the agents who represented their writers for decades. Now, plaintiffs seek to eliminate packaging by abusing the court system, brazenly asking this Court to declare packaging illegal,” states in its response to the WGA suit. “But they have no legal basis to do so. Their claims are barred by their own express consent to packaging. Even absent that consent, the claims are not legally cognizable.”

ICM’s filing also takes aim at the WGA’s assertion that packaging fees — a portion of backend profits on series and some films that are paid to agencies by the production entity — amount to a form of bribery.

“Plaintiffs’ final theory — that packaging violates a federal criminal law that prohibits bribing union officials (which agents are most certainly not) — is absurd on its face,” the filing states.

The WGA lawsuit also includes eight individual WGA members as plaintiffs who claim harms from having been involved in packaged series over the years. The ICM response addresses specific claims about the agency raised by plaintiffs Patricia Carr and Chip Johannessen, who were former clients of ICM. In the case of Carr, ICM noted that the incidents of her exposure to packaging that are cited in the WGA complaint relate to jobs that she had before she signed with ICM. In the case of Johannessen, ICM disputes his claim that the agency packaged the 2015 National Geographic TV two-part miniseries “Saints and Strangers.”

“That allegation, however, is wholly false; ICM did not package ‘Saints and Strangers,’ ” the response states.

A hearing in the WGA case is set for Sept. 19.