MANAGERS, AGENTS, ATTORNEYS,

AND THE CA TALENT AGENCIES ACT.

AND NOW, THE STATE BAR ACT, TOO.

PRESENTATION BY RICK SIEGEL

MARATHON ENTERTAINMENT
 AGENTS DO EVERYTHING.
NO, PERSONAL MANAGERS DO.
In the real world, the two representatives work together.

Picture a corporate chart.

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 THE STATUTORY LICENSING SCHEMES…

THE STATE BAR ACT

THE CA TALENT AGENCIES ACT

MANAGERS HAVE NO LICENSING SCHEME BUT ARE SUBJECTED TO TAA REGULATION.

HERE ARE THE $500,000,000 QUESTIONS:

IS THIS ENFORCEMENT CONSTITUTIONAL?

IS IT A CORRECT USE OF JUDICIAL POWER?

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MARATHON V. BLASI, 42 CAL 4TH 974 (2008)

The Marathon Court considered two issues:

(1): it found personal managers are subject to Talent Agencies Act regulation; and
(2): that the CA Labor Commission must consider the theory of severability.

While a major win, it did not satisfy my undying belief that the enforcement of the Act did not align with the
Act’s language. Justice Kathryn Werdegar’s opinion did, however, provide a treasure map for future litigants
looking to show the Act as enforced was unconstitutional.

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WHAT ELEMENTS MUST CLEARLY BE
WRITTEN INTO STATUTES FOR THEM
TO SATISFY THE MINIMUM BAR OF
CONSTITUTIONALITY?

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WHAT ELEMENTS MUST CLEARLY BE WRITTEN INTO STATUTES FOR THEM TO
SATISFY THE MINIMUM BAR OF CONSTITUTIONALITY?

For a law to be constitutional there must be clear notice of:

(1) who is subject to the enacted regulation;
(2) what conduct is being regulated; and
(3) what are the consequences found violators of the statute may face.

(see Due Process Limitations on Occupational Licensing,

Virginia Law Review (Sept. 1973), Vol. 59, No. 6, pg. 1108).

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HERE ARE THE RELEVANT STATUTES…

• 1700.4. (a) "Talent agency" means a

person or corporation who engages in
the occupation of procuring, offering, • 1700.5. No person shall engage in or carry on the
promising, or attempting to procure occupation of a talent agency without first procuring
employment or engagements for an a license therefor from the Labor Commissioner.
artist ... Talent agencies may, in
addition, counsel or direct artists in the
development of their professional
careers.

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WHO IS BEING REGULATED…
Quoting a 2007 Loyola Ent Law Review Article: “A 1979 [law review article] noted that "[f]or over twenty-five years, the
personal manager [] has been in the throes of a controversy, the specific issues of the dispute being whether and when personal
managers need a state license to procure employment for professional entertainers. Change the ”25" to ”50," and this statement
still rings true. It is time again for review, and meaningful change.”

That was 15 years ago. Nothing changed with Marathon, nothing’s changed since.

• Marathon found that because one of the terms on this

• 1700. As used in this chapter, "person" list was “manager,” personal managers had to abide by
means any individual, company, society, firm, the regulations of the Talent Agencies Act.
partnership, association, corporation, limited • Is it a list of occupations, or a list of classifications
liability company, manager, or their agents or
of businesses and positions in those businesses?
employees.
• And if it is an occupation, which manager is being
referenced?

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WHAT IS BEING REGULATED… WELL, NO ONE REALLY KNOWS

• Justice Werdegar: Managers procure.

• Personal managers are “exempt from regulation insofar as they do “what the things that personal managers do” (at 989) but offered
no details as to what it is managers do. It is simply assumed they can do their jobs without procuring.
• this definition “exists in theory only. The reality is not nearly so neat,” especially when the manager is working with “not-yet-
established clients.

• Justice Werdegar: Procurement has never been defined.

• The Act contains no definition [of procurement], and the Labor Commissioner has struggled over time to better delineate which
actions involve mere general assistance to an artist’s career and which stray across the line to illicit procurement.”

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EVEN THE LABOR COMMISSIONER KNOWS THAT IT IS IMPOSSIBLE TO
KNOW WHAT WAS TO BE REGULATED.

• The Report of the CA Entertainment Commission, authored by the Labor Commissioner:

• “… an inherent inequity — and some question of constitutional due process — in subjecting one to criminal sanctions in
violation of a law which is so unclear and ambiguous as to leave reasonable persons in doubt about the meaning of
the language or whether a violation has occurred.

• “’Procuring employment’ is just such a phrase … the uncertainty of knowing such activity may or may not have
occurred … has left the personal manager uncertain and highly apprehensive about the permissible parameters of their
daily activity.” Personal managers are “exempt from regulation insofar as they do “what the things that personal managers
do” (at 989) but offered no details as to what it is managers do. It is simply assumed they can do their jobs without
procuring. https://www.scribd.com/document/133919610/1986-Report-of-the-CA-Entertainment-Commission pg. 25
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HERE ARE THE RELEVANT STATUTES…

• 1700.4. (a) "Talent agency" means a

person or corporation who engages in
the occupation of procuring, offering, • 1700.5. No person shall engage in or carry on the
promising, or attempting to procure occupation of a talent agency without first procuring
employment or engagements for an a license therefor from the Labor Commissioner.
artist ... Talent agencies may, in
addition, counsel or direct artists in the
development of their professional
careers.

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WHAT IS THE LEGAL RELEVANCE WHEN NO ONE KNOWS ‘THE WHAT?

• "Living under a rule of law entails various suppositions, one of which is that ‘[all
persons] are entitled to be informed as to what the State commands or forbids.’”
FCC v. Fox Television Stations, 132 S. Ct. 2307, 2317 (2012).
• “It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. Rockford, 408 U.S. 104, 108
(1972).
• Civil matters must receive the “same basic protections against ‘judgments without
notice’ as criminal matters.” BMW v. Gore, 517 U.S. 559, 574 (1996).
• A ‘statute cannot require the public to speculate as to its meaning while risking []
property in the process.’ Lanzetta v. NJ, 306 U.S. 451, 453 (1939).
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THE CONSEQUENCE.

THERE IS NO DEBATE AS TO WHETHER THE TAA

HAS A PENALTY PROVISION… IT DOES NOT.

Quoting Marathon at 990, “The Act is silent — completely silent — on the subject of the
proper remedy for illegal procurement.”

And at 996, “the Legislature has not seen fit to specify the remedy for violations of the
Act.”

It was hard to read the Marathon ruling. I knew we should have, probably would have
won if we didn’t have failures at oral argument. Only read the day before the deadline to
file for the US Supreme Court, and thought, shouldn’t there be a relevance to the
disconnect between being penalized and there not being a penalty? It took two minutes to
find out yes, finding the quote from the VA Law Review article.

Which along with the quote, led me to US. V Evans.

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THE U.S. SUPREME COURT HAS HELD THAT ASSIGNING
CONSEQUENCES FOR ILLEGAL ACTIVITIES IS AN
EXCLUSIVELY LEGISLATIVE FUNCTION.

“Violations of law are ‘made up of two parts, forbidden conduct and

a prescribed penalty. The former without the latter is no
[violation].’ Substantive Criminal Law 1.2(d) (1986), Wayne R.
LaFave & Austin W. Scott, Jr.” U.S. v Evans at 486.

Assigning a specific recourse for an unlawful activity “is a task outside

of the bounds of judicial interpretation. It is better for [the legislative
arm of government] and more in accord with its function, to revise the
statute than for [a judicial body] to guess at the revision it would
make. That task it can do with precision. We could do no more than
make speculation law.” Id. at 488.
1
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THE CASC HAS REPEATEDLY HELD THAT IF
A STATUTE HAS NO PENALTY PROVISION,
NO ADJUDICATOR HAS THE RIGHT TO
INTERFERE WITH THE RIGHT TO CONTRACT.

Wood v. Krepps, 168 Cal. 382 (1914), refused to void a contract because the Loving & Evans v. Blick, 33 Cal. 2d 603 (1949), holds, "it has been
relevant ordinance did not “declare that a contract made by any one in the conduct repeatedly declared in this state that 'a contract made contrary to the
of the various businesses for which licenses are provided to be procured ... be terms of a law designed for the protection of the public and prescribing a
invalid; nor is there any provision therein indicating in the slightest that this penalty for the violation thereof is illegal and void, and no action may be
failure was intended to affect in any degree the right of contract.” Wood at 387. brought to enforce such contract.” Loving at 607-608.
https://casetext.com/case/wood-v-krepps https://scocal.stanford.edu/opinion/loving-evans-v-blick-26040

Per Smith v. Bach, 183 Cal. 259 (1920), "The imposition by statute of a penalty Per Severance v. Knight-Counihan, 29 Cal.2d 561, 568 (1967), when “a
implies a prohibition of the act to which the penalty is attached, and a contract statute prohibits or attaches a penalty to the doing of an act, the act is
founded upon such act is void.” void, and this, notwithstanding that the statute does not expressly
Smith 262-263. https://www.courtlistener.com/opinion/3303072/smith-v-bach/ pronounce it so, and it is immaterial whether the thing forbidden is
malum in se or merely malum prohibitum.”
https://casetext.com/case/severance-v-knight-counihan-co?

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THE CASC HAS EXPRESSLY BARRED
ADMINISTRATIVE AGENCIES FROM
CREATING CONSEQUENCES THE
LEGISLATION WITHHELD.

Pardon the oxymoron, but without a penalty provision, the TAA, relevant to
unlicensed procurement, is clearly unconstitutionally vague. As such…

“The general rule is that "[w]here the enabling statute is essentially remedial, and does not
carry a penal program declaring certain practices to be crimes or provide penalties or fines
in vindication of public rights, an agency does not have discretion to devise punitive
measures such as the prescription of penalties or fines. …

 “An administrative agency cannot by its own regulations create a remedy which the
Legislature has withheld. [Citations]. 'Administrative regulations that alter or amend the
statute or enlarge or impair its scope are void and courts not only may, but it is their
obligation to strike down such regulations.' Morris v. Williams, 67 Cal 2d 733, 748 (1967).”
16 Rick Siegel/Jan 30, 2021 Dyna-Med, Inc. v. Fair Employment & Housing Comm., (1987) 43 Cal. 3d 1385,1388.
THE LOGICAL QUESTION: WHERE DOES THE
CA LABOR COMMISSION FIND THE AUTHORITY
TO EXTINGUISH ONE’S CONTRACTUAL RIGHTS?

THE ANSWER: THE JEFFERSON AIRPLANE.

When the Labor Commission or Court finds that a talent representative unlawfully
procured employment for an artist without a license, without the ability to cite a statute
giving them the guidance/authority/requirement to remove a violators’ right to
contract, the determinations uniformly quote from Buchwald v. Superior Court, 254
Cal. App.2d 347, 351 (1967):

"Since the clear object of the Act is to prevent improper persons from becoming [talent
agents] and to regulate such activity for the protection of the public, a contract between
an unlicensed [talent agent] and the artist is void. Wood v. Krepps, 168 Cal. 382, 386;
Loving & Evans v. Blick, 33 Cal. 2d 603, 608-609; Contracts otherwise violative of the
Act are void (see Severance v. Knight-Counihan Co., 29 Cal. 2d 561, 568; Smith v. Bach,
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183 Cal. 259, 262.”

Rick Siegel/Aug 23, 2021

THERE’S MORE…

• Dormant Commerce Clause.

• Eighth Amendment/In Pari Delicto
• Thirteenth Amendment

• Shumway v Bacall.
• Jimmy Butler of the Miami Heat
• Opinion Letter

18 That said…

Rick Siegel/Aug 23, 2021

 SO GRATEFUL…

Thank you.

19 Rick Siegel/Aug 23, 2021