October 15, 2013

Molly Dwyer, Clerk of Court; Office of the Clerk
United States Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 941 19-3939
R E C E l V E D
MotLy c DWYER CLERK
tJ.s. cotfnT OF AFPEAI.S
OC1 2 1 2213
FILED
nocKii'iD -
DATE INITIAL
Re: Amicus Curiae Letter in Support of Appellant National Conference of
Personal Managers in National Conference of Personal Managers vs. Gov.
Edmond Brown et. aI., App. Case No. 13-55545, Supporting Reversal of District
Court's Affirmation of Appellees' Rule 12(b)(6) Motion To Dismiss Complaint
Dear Ms. Dwyer,
We, the below named and undersigned individuals, having been directly
impacted by the Labor Commissioner's enforcement of the California Talent
Agencies Act (TAA), request permission to submit this letter in lieu of a brief as
amici curiae in support of the Appellant (NCOPM) in the above matter:
Matthew Katz: Party in Buchwald v. Katz 8 Ca1.3d 493 (1972). Under
my guidance, the Jefferson Airplane went from a local Bay Area band
to one of the biggest and most successful bands in the world. This case
was adjudicated under the TAA'S predecessor, the Artists' Managers
Act, which like the TAA had no provision of penalty or voidance of
contract. Yet the Labor Commissioner determined and the CA
Supreme Court upheld the forfeiture of what 1 estimated to be over
$12,000,000 in compensation.
Brad Waisbren: Party in Waisbren v. Peppercorn Productions
43 Ca1.App.4th 246 (1995). The court held that any instance of
unlicensed procurement renders a representative's contract void, a
holding later mooted by a CA Supreme Court finding that TAA
controversies must consider severability. Marathon v. Blasi 2 Cal. 4th
974 (2008). My estimated loss of compensation was close to a half-
million dollars; my efforts 1ed to the sale of my client's business,
reaping him several million dollars. 1 am the author of the brief, no
funds were used in its creation and it was written without help of
counsel.
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October 15, 2013
David Park: Pal'ty in Park v. Dejtones 7 1 Cal.App.4th 1465 (1999). 1
was the Deftones first manager, hired soon after its formation, and
worked four years without compensation for the sole pumose of
securing the band a recording contract. As of 20 13, the Deftones have
released seven albums and sold millions of copies worldwide as a
direct result of the efforts the Labor Commissioner determined violated
the TAA, My efforts mirrored what is specifically stated as lawful in
CA. Lab. Code 1700.4(a), but the Appeals Court affirmation of the
administrative determination led to the forfeiture of over hundreds of
thousands of dollars in personal management compensation.
Howard Wolf: Party in Yoo v. Robi 126 Cal.App.4th 1089 (2005). 1
was able to revitalize the brand of the band çd-l-he Platters.'' My client's
widow petitioned the Labor Commissioner, which found my working
with Midwestem booking agents to get the Platters gigs in the Midwest
without involving a California-licensed agent violated and resulted in a
loss to me of more than $800,000 in compensation.
None of us have ever been affiliated with the NCOPM, and the organization
neither participated in the creation or themes of this letter nor was any financial
support enlisted. We do have common bonds: al1 four of us became entwined in
what became published TAA cases, one a CA. Supreme Court case. And none of
our adjudicators found any non-performance of our duties or fraud; we lost our
right to contact for engaging in a defined activity of a talent agent without a
license, despite the TAA having no statute reserving such activity to licensees.
Due to the emotional and fnancial suffering that resulted from our TAA
controversies, all of us subsequently left the occupation of personal management,
though one has returned after a long hiatus. NCOPM'S argument that the TAA
violates multiple provisions of the U. S. Constitution has affirmed our long-
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October l5, 2013
standing belief that we were deprived of our constitutional rights under color of
law by the Defendants' enforcement of the TAA, and unless this Court takes
action, the unconscionable enforcement will continue to unconstitutionally
compromise generations of our ex-colleagues.
Our experience makes it clear; the Labor Commissioner's invented
prohibition of procurement makes it impossible for a personal manager to
properly do theirjob. A personal manager is the chief executive offcer of an
artist's business, with the client being the Chairman of the Board and the product;
analogous to being Lee Iacocca and the Chrysler. In the corporate hierarchy, a
talent agent is the vice-president of sales; publicists, the vice president of public
relations; a transactional attorney, the vice president of business affairs; a
business manager is the vice president of finance. Artists often have teams of
agents: some have one agent to help find acting work in television, another for
films and another for writing and directing opportunities; a voiceover agent, a
personal appearances agent and a celebrity endorsement agent. And if the artist
had immigrated to the United States, the artist may have similarly empowered
representatives in their native lands. The personal manager supervises, and
usually hires them all. How do you hire and oversee a sales team while avoiding
being involved in the sales effort?
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October 15, 2013
Fledgling artists may not be able to garner an agency's interest', often times
the manager comes aboard first. In those cases, just like with other small
businesses, the CEO must take over some of those responsibilities. As such, a
manager must stand in harms way for a talent wishing to avoid commissions -
especially before the Sbusiness' has hired the other needed professionals.
Everything about the enforcement of the TAA is oxymoronic to the real
world. The artist hires the personal manager to help accelerate their career
trajectory, however the manager must be careful not to proactively do so or risk a
TAA controversy and the benefit of their contractual relationship. lt is the artist
who is the beneticialy of the labor, not the laborer; and it is the artist who
ultimately chooses which auditions to go out on, which scripts to write or which
songs to create. Rather than regulating talent agents, as the Act was created to do,
it serves more as a protectionist blanket for them.
To be an agent you have to get a $50,000 bond. As the major agencies often
hold tens of millions of their clients' monies, that bond is of no service. But
imagine being 19 and really believing in four really talented friends named
Richard, John, Paul and George. You could not afford the bond even if you
wanted to be their agent, but what they need is someone who can handle the
multitude of responsibilities; they need a manager. So you sign on and create the
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October 15, 2013
Beatles. But because you had had no license, an agency can tell the no longer fab
four that because you had provided al1 that service without a license, they had no
financial obligation to you. Rather than serving commerce, or creativity, it only
serves the established talent agency community.
lf it seems far-fetched, look at Jewel v Cold War Management, TAC 1999-
02. (httpi//www.dir.ca.gov/dlse/DLsE-TAcs.htm). Jewel was living in her VW
van using her armrest as a pillow when Inga Vainshtein discovered her. (ftfpgs.
2-3). And it was Vainshtein's efforts during that foundational period, before an
agency would sign on, that was cited as the foundational reasons her contractual
rights were voided. (1d., pg. 20, lines 12-20.) The manager took a singer-
songwriter from the streets to the spotlight; efforts to be celebrated, not punished.
The Labor Commission was created to ensure that California's workers are
lawfully paid. Yet when administering the TAA, at least relevant to unlicensed
procurement, it serves the purpose, intentional or otherwise, of providing a
methodology for the hirer to avoid paying the hiree. Most private disputes are
related to a party's alleged failure to perform, to satisfy the objectives of the
complainant. But the TAA artist petitioner is not claiming they have been
rendered less than whole; they are seeking to utilize a potential illegality to avoid
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October 15, 20 l 3
paying a contracted debt for services from which they have benefited. At
minimum, NCOPM'S allegations must be heard in 111.
The Governor And Attorney General Should Defend Their lnactions
We disagree with the Defendants claim that neither Gov. Brown nor
Attorney General Harris have sovereign immunity (''the state officer sued 'must
have some connection with the enforcement of the gallegedly unconstitutionall
act.''' Los Angeles Ctpz/nf
.p Bar Assn. v. Eu, 979 F.2d 697, 704 (9th Cir. 1992:.
Verizon Md. Inc. JzC Public Serv.Comm 'n OfMd. (00-1531) 535 U.S. 635
(2002) holds that, tçln determining whether the Exparte Young doctrine avoids an
Eleventh Amendment bar to suit, a coul't need only conduct a ûcstraightforward
inquiry'' into whether the complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective. Idaho v. Coeur d'Alene
Tribe ofldaho, 521 U.S. 261, 296, 298 299.7'
NCOPM seeks relief from unauthorized enforcement. (ç-l-he alleged ongoing
constitutional violation. . . is precisely the type of continuing violation for which a
remedy may permissibly be fashioned under Exparte Young. . . the Eleventh
Amendment would not bar relief necessary to correct a current violation of the
Equal Protection Clause.'' Papasan v. Allain, 478 U. S. 265 (1986).
çdgsjince Exparte Young, 209 U. S. 123 (1908), it has been settled that the
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Coul't of Appeals for the Ninth Circuit
October l5, 20l 3
Eleventh Amendment provides no shield for a state official confronted by a claim
that he had deprived another of a federal right under the color of state law. Ex
parte Young teaches that when a state officer acts under a state law in a manner
violative of the Federal Constitution, he Scomes into contlict with the superior
authority of that Constitution, and he is in that case stripped of his official or
representative character and is subjected in his person to the consequences of his
individual conduct. The State has no power to impal't to him any immunity from
responsibility to the supreme authority of the United States.''' 1d. at 159-160.''
Scheuer P: Rhodes, 416 U.S. 232 (1974).
Cd-l-he Ninth Circuit Court of Appeals has established that: tcoualified
immunity is not available as a defense in j 1983 cases dsagainst a municipality'' or
(tagainst individuals where injunctive relief is sought instead of or in addition to
'' H W v Willden 678 F. 3d 99l (9th Circuit 2012) citing Pearson v. damages. enry . . , ,
Callahan, 555 U.S. 223, 242 (2009).
Los Angeles Colfn/
.
'y Bar Assn. v. Eu also states: Ss-l-his suit, however, is not
based on any asserted general duty to enforce state law. Eu and Wilson have a
specific connection to the challenged statute. Wilson has a duty to appoint judges
to any newly createdjudicial positions, and Eu has a duty to certify subsequent
elections for those positions. In the instant matter, the Governor and Attorney
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October l5, 2013
General have specific connections to the challenged statute: similar to Wilson's
duty to appoint cited in Los Angeles Ct/vzk/
.
p Bar Assn. v. Eu, the Governor has a
duty to appoint the California Labor Commissioner, the executive charged with
administering and enforcing the TAA. Calfornia Labor Code, Sec. 79.
Moreover, çt-f'he Governor shall see that the 1aw isfaithfully (emphasis
added) executed.'' Calfornia Constitution, Article 5, Sec. 1. Emphasis added.) çûlt
shall be the duty of the Attorney General to see that the laws of the State are
uniformly and adequately enforced.'' Calfornia Constitution, Article 5, Sec. l3.
The Governor and the Attorney General have failed or neglected to
adequatelynfaithftlly and unformly execute the TAA in deprivation of the
NCOPM'S constitutional rights, privileges and immunities.
SsEven in the absence of specific state enforcement provisions, the
substantial public interest in enforcing the trade practices legislation involved
here places a significant obligation upon the Governor to use his general
authority to see that state laws are enforced. . . We thus find that the Govel-nor has
sufficient connection with the enforcement of the Act that he falls outside the
scope of eleventh amendment protection and may be sued for the declaratory and
injunctive relief requested here. Were this action unavailable to the plaintiffs,
they would be unable to vindicate the alleged infringement of their constitutional
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October 1 5, 20 13
rights without first violating an Ohio statute requiring a significant change in
their business conduct. Such a result is clearly what the doctrine in Ex Parte
Young was in part designed to avoid.'' AlliedArtists Picture Corp. v. Rhodes, 679
F. 2d 656, 6th Circuit (1982).
ln 2007, NCOPM asked Gov. Arnold Schwarzenegger to investigate acting
Labor Commissioner Robert A. Jones for his administration of the TAA.
(http://variety.com/zoo7/scene/news/managers-seek-iones-probe-l 1 17956901/).
The Governor did not respond to NCOPM'S request.
ln 2008, California's Govemor received :6212 letters by personal managers''
(hdp://o w.mediabistro.com/fshbowlla/siegel-goes-to-terminator-for-
closure b7220) asking for him to look into this issue. The industry similarly
reached out to California's attomey general (when the office-holder was now-
Governor Brown). The Governor had a constitutional oversight of this issue and
ignored the request to examine the Labor Commission's policy to void contracts,
a remedy not codified by the California legislature and therefore enforcement
tsimpossible to defend.'' (1d., quoting letter.)
The State cannot slough off their need to protect its citizenry: ç$A general
obligation to enforce or execute state laws is sufficient to meet the connection
with enforcement requirement set fol'th in Exparte Young. The court is persuaded
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October l5, 2013
in this regard by the Supreme Court's repeated references in Exparte Young to
some vague ''general law'' which gives rise to enforcement obligations, by its
focus on the general obligations attendant on the office of the Minnesota
Attorney General, and, most particularly, by the Coulfs careful affirmance of its
holding in Smyth v. Ames, supra, in light of its subsequent decision in Fitts v.
McGhee, supra.'' NAACP v. CA., 5 1 1 F. Supp.1244, ED California 1981.
The Labor Commissioner Does Not Qualify For Judicial lmmunity
The Defendants also argue that the Labor Commissioner is not a proper
Defendant for she should be given judicial immunity. We disagree. Judicial
immunity provides that judges ddare not liable to civil action for their judicial acts,
even when such acts are in excess of their jurisdiction, and are alleged to have
been done maliciously or corruptly. . . . A judge will not be deprived of immunity
because the action he took was in error, was done maliciously, or was in excess
of his authority; rather he will be subject to liability only when he has acted in the
kclear absence of all jurisdiction'.'' Stump v. Sparkman, 435 U.S. 349, 356, 98
S.Ct. 1099, 1 104, 55 L.Ed.2d 331 (1978).
The necessary inquiry must be whether at the time the adjudicator took the
challenged action he had jurisdiction over the subject matter before him. (f#., 435
U.S. at 356, 98 S.Ct. at 1 105.) ln Stump, a Judge who had approved a petition for
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October l 5, 20 1 3
$$$ hat retarded' ls-year o1d daughter'' sterilized çiin an ex a mother of a somew
parte proceeding without a hearing and without notice to the daughter or
appointment of a guardian ad Iitem'' (1d. at 349) was found to be çtimmune from
damages liability even if his approval of the petition was in error'' because
dilndiana 1aw vested in Judge Stump the power to entertain and act upon the
petition for sterilization.'' (1d. at 356.)
Per Labor Code j 1700.44 (a), the Commissioner çtshall hear and determine''
all ûçcases of controversy arising under gthe TAAI.'' But there is no controversy
relevant to unlicensed procurement: as detailed in NCOPM'S Opening Brief, the
California Legislature has never created laws barring the unlicensed procuring of
employment opportunities for artists; thus it did not vest the Labor Commissioner
the authority to hear and determine a petition to void the contractual rights of a
talent representative based upon claims of unlicensed procurement.
Therefore, for the reasons stated above and in the NCOPM'S Opening Brief,
we respectfully request this Coul't require the Califomia Govemor, Attomey
General and Labor Commissioner be required to explain how the seemingly
unconstitutional intemretations and enforcement of the TAA are lawful; and if
impossible, that their enforced deprivation of rights, privileges and immunities
secured by the Constitution is ended by finding the TAA to be unconstitutional
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Molly Dwyer, Clerk of Coul't, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October l 5, 20l 3 '
both on its face and as applied. Or, in the alternative, we request this Coul't to
remand the case to the District Court to be given a full hearing.
Attesting that l have the express permission and approval of all of the
statements made in this brief by the below Amici, this letter is
Respectfully Submitted:
W w o -
/s/ Brad Waisbren
P.O. Box 1928
Studio City, CA 91614
818.506.3000
waisbren@earthlink.net
Matthew Katz
29903 Harvester Road
Malibu CA 90265
Phone: 310.457.9055
sfsound@charter.net
David Park
4101 Saul Court
Elk Grove, CA 95758
916.509.9545
dpark@recombinantinc.com
Howard Wolf
2550 E. Desel't lnn Road //220
Las Vegas, (NV 89121
702.735.9200
howwolf@aol.com
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October 15, 2013
CERTIFICATE OF COMPLIANCE
As the author of this brietl l certify that this letter complies with the type-
volume limitation set forth in Rule 32(a)(7)(B) of the Federal Rules of
Appellate Procedure. This letter is proportionally spaced, uses a Times New
Roman typeface and l4-point font, and according to Microsoft Word, the
brief as a whole contains approximately 2,674 words.
DATED: October 18, 20 13 .# A x 3 By:
Brad Waisbren
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Molly Dwyer, Clerk of Court, Office of the Clerk
United States Court of Appeals for the Ninth Circuit
October l5, 20l 3
CCRTIFICATE OF SERVICE Xksa-En--..
-
DATE INITIAI
-
CASE NAME: National Conference of Personal Managers vs. Gov. Edmond
Brown et. al., App. Case No. 13-55545
R E C E l V E D
MQLI.Y . c DWYER
. GLERK U
,
s.ccURT OF A/PEALS
OCT 2 1 2213
CASE NO: 13-55545
1, the undersigned, declare that: l am and was at the time of service of the papers
herein referred to, over the age of eighteen years and not a party to the within action. I am
employed in the County of Los Angeles, California, where the mailing occurred, and my
business address is: P.O. Box 1928, Studio City, CA 91614
I further declare that 1 am readily familiar with the business practice for collection
and processing of correspondence and pleadings for mailing with the United States Postal
Service, and that the mailings are deposited with the United States Postal Service the
same day in the ordinary course of business. I caused to be served the following
documentts): Amicus Curiae Letter in Support of Appellant
BY MAIL: by placing the documentts) listed above in a sealed envelope with
postage thereon fully prepaid, in the United States mail at Studio City, California
addressed to:
Molly Dwyer, Clerk of Court; Office of the Clerk
United States Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 941 19-3939
Kamala Harris: Attorney General of California
Douglas J. Woods, Sr.: Assistant Attorney General
Michael Glenn Witmer: Deputy Attorney General
300 S. Spring Street Suite 1702 Los Angeles CA 90013
I am readily familiar with the business practice for collection and processing of
corresjondence and pleadings for mailing with the United States Postal Service, and that
the mallings are deposited with the United States Postal Service the same day in the
ordinary course of business. l am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day
after date of deposit for mailing in affidavit.
1 declare under penalty of perjury under the laws of the State of California that the
above is true and correct. Executed on this 18th day of October, 2013, Studio City,
California,
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