Judd V Weinstein SAGAFTRA Amicus Brief

Case: 19-55499, 09/03/2019, ID: 11419670, DktEntry: 20, Page 1 of 25
No. 19-55499
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASHLEY JUDD,
Plaintiff-Appellant,
v.
HARVEY WEINSTEIN,
Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA (HON. PHILIP S. GUTIERREZ)
NO. 18-5724-PSG
Brief of Screen Actors Guild-American Federation of

Television and Radio Artists as Amicus Curiae
in Support of Plaintiff-Appellant
DUNCAN W. CRABTREE-IRELAND
DANIELLE S. VAN LIER
SCREEN ACTORS GUILD-AMERICAN
FEDERATION OF TELEVISION AND
RADIO ARTISTS
5757 Wilshire Blvd., 7th Fl.
Los Angeles, CA 90036
Telephone: (323) 549-6627
Facsimile: (323) 549-6624
amicus@sagaftra.org
Counsel for Amicus

TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................... i

TABLE OF AUTHORITIES ................................................................................ ii
CORPORATE DISCLOSURE STATEMENT ..................................................... v
INTEREST OF THE AMICUS ............................................................................. 1
SUMMARY OF ARGUMENT ............................................................................ 3
ARGUMENT........................................................................................................ 4
A. Ms. Judd Had A “Business, Service, or Professional Relationship” With
Defendant-Appellee as Described In California Civil Code Section 51.9 .... 4
1. The 2018 Legislation Was Intended To Clarify Section 51.9 .................. 5
B. The History of Hollywood Reflects the Power Imbalance between Actors
and the Industry’s Gatekeepers ................................................................... 7
C. “General” Meetings Are About Building Relationships, Not Interviewing
For a Job ..................................................................................................... 9
D. Ignoring or Reporting on Gatekeepers Can Damage an Actor’s Career..... 13
CONCLUSION .................................................................................................. 16
i
TABLE OF AUTHORITIES
CASES
De Haviland v. Warner Bros. Pictures, Inc., 67 Cal. App. 2d 225 (1944) .............. 8
STATUTES
Cal. Civ. Code § 51.9 ........................................................................................2, 16
Cal. Civ. Code. §51.9 (1996) ................................................................................16
OTHER AUTHORITIES
Bradley Russell Marvel contracts: how long does each actor have left in the
MCU? GamesRadar (Aug. 2019) available at
https://www.gamesradar.com/marvel-actors-contracts-mcu/ ............................. 9
Hawkins DuBois, 5 Hollywood Meetings You Should Master and How to Do

It, No Film School (Aug. 1, 2017) available at
https://nofilmschool.com/2017/07/mastering-meeting-walkthrough-
amateur-staffed-writer......................................................................................11
Jessica Sharzer, Meeting Expectations: How to Take a Meeting Like an Old

Hollywood Pro, Even as a First-Time Filmmaker, MovieMaker (Nov. 17,
2016) available at
https://www.moviemaker.com/archives/mm_guide_2017/meeting-
expectations-take-a-meeting-like-a-hollywood-pro/ .........................................11
Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual
Harassment Accusers for Decades, The New York Times (Oct. 5, 2017)
available at https://www.nytimes.com/2017/10/05/us/harvey-weinstein-
harassment-allegations.html .............................................................................13
Jodi Kantor and Rachel Abrams, Gwyneth Paltrow, Angelina Jolie and Others
Say Weinstein Harassed Them, The New York Times (Oct. 10 2017)
available at https://www.nytimes.com/2017/10/10/us/gwyneth-paltrow-
angelina-jolie-harvey-weinstein.html ................................................... 14, 15, 16
ii
Joseph Pearlman, Casting Directors Are Not the Gatekeepers to Your Success,
Backstage (Jun. 28, 2018) available at
https://www.backstage.com/magazine/article/casting-directors-gatekeepers-
success-635/ .....................................................................................................10
Ken Miyamoto, 3 Simple Ways You Can Impress at Hollywood Meetings, The
Script Lab (Jan. 31, 2019) available at
https://thescriptlab.com/features/screenwriting-101/9866-3-simple-ways-
you-can-impress-at-hollywood-meetings/ ........................................................10
Ken Miyamoto, What to Expect with Your First Hollywood “General

Meeting”, ScreenCraft (Jul. 14, 2016) available at
https://screencraft.org/2016/07/14/handle-first-hollywood-general-meeting/ ...10
Lila Thulin, A Complete List of Sexual Assault and Harassment Allegations

against Harvey Weinstein Slate (Oct. 31 2017) available at
https://slate.com/news-and-politics/2017/10/a-list-of-sexual-assault-and-
harassment-allegations-against-harvey-weinstein.html .............................. 14, 15
Lupita Nyong’o Speaking Out About Harvey Weinstein, The New York Times
(Oct. 19 2019) available at
https://www.nytimes.com/2017/10/19/opinion/lupita-nyongo-harvey-
weinstein.html..................................................................................................15
Marc Maurino, “It’s Just a General”: How to Take a General Meeting,

Filmmaker (Jul. 17, 2014) available at
https://filmmakermagazine.com/86771-its-just-a-general/#.XW2IcyhKhEZ ...11,
12
Mira Sorvino, Why I Spoke Out Against Harvey Weinstein, TIME (Oct. 11
2017) available at https://time.com/4978659/mira-sorvino-harvey-
weinstein-sexual-harassment/...........................................................................15
Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey

Weinstein’s Accusers Tell Their Stories, The New Yorker (Oct. 10, 2017)
available at https://www.newyorker.com/news/news-desk/from-
aggressive-overtures-to-sexual-assault-harvey-weinsteins-accusers-tell-
their-stories ................................................................................................ 14, 15
iii
Rory Carroll and Sam Levin, 'Pack of hyenas': how Harvey Weinstein's power
fuelled [sic] a culture of enablers, The Guardian (Oct. 13 2017) available
at https://www.theguardian.com/film/2017/oct/13/harvey-weinstein-
allegations-hollywood-enablers............................................................ 13, 14, 15
Sara Khorasani, Article, Mixed Messages: Harvey of Hollywood: The Face

that Launched a Thousand Stories, 41 Hastings Comm. & Ent. L.J. 103,
116 (2019) ........................................................................................... 13, 14, 15
Senate Bill 224, 2018 Cal. Legis. Serv. Ch. 951..................................................... 3
Stephanie Zacharek, Eliana Dockterman and Haley Sweetland Edwards, Time

Person of the Year 2017: The Silence Breakers, TIME (Dec. 18 2017)
available at https://time.com/time-person-of-the-year-2017-silence-
breakers/ ..........................................................................................................15
Stephen M. Gallagher, Note, Who's Really "Winning"?: The Tension of

Morals Clauses in Film and Television 16 Va. Sports & Ent. L.J. 88, 92
(2016); Margaret Heidenry, How Hollywood Salaries Really Work Vanity
Fair (Feb. 12, 2018) available at
https://www.vanityfair.com/hollywood/2018/02/hollywood-movie-salaries-
wage-gap-equality ............................................................................................. 8
iv
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate
Procedure, Amici provide the following disclosures of corporate identity:
Screen Actors Guild-American Federation of Television and Radio Artists
certifies that it is a non-profit corporation; it does not offer stock; and it has no parent
corporation.
v
INTEREST OF THE AMICUS*
Amicus Screen Actors Guild-American Federation of Television and Radio
Artists (“SAG-AFTRA”) is the nation’s largest labor union representing working
media artists, including actors. SAG-AFTRA represents approximately 160,000
actors, announcers, broadcasters, journalists, dancers, DJs, news writers, news
editors, program hosts, puppeteers, recording artists, singers, stunt performers,
voiceover artists and other media professionals. In 2012, SAG-AFTRA was
formed through the merger of two labor unions: Screen Actors Guild, Inc. (“SAG”)
and the American Federation of Television and Radio Artists (“AFTRA”). SAG-
AFTRA members, such as Ms. Judd, are the faces and voices that entertain and
inform America and the world. SAG-AFTRA exists to secure strong protections
for media artists.
In the wake of public revelations about Defendant-Appellee by Ms. Judd and
others, and the ensuing rise of the #MeToo and Time’s Up movements, SAG-
AFTRA received hundreds of reports from the artists it represents regarding
inappropriate behavior by powerful people, predominantly men, in the
*
Pursuant to Federal Rules of Appellate Procedure Rule 29, amicus certifies that
counsel for the parties have consented to the filing of this brief. Amicus further
certifies that counsel for the parties did not author this brief, in whole or in part,
the parties have not contributed money intended to fund preparing or submitting
the brief and no person other than amicus, its members, or its counsel
contributed money that was intended to fund preparing or submitting the brief.
1
entertainment industry. This prompted SAG-AFTRA, among other efforts, to
update its own policies and procedures relating to sexual harassment reports from
its members, to create a code of conduct for employers, to develop and conduct
educational and support initiatives, and to pursue public policy initiatives relating
to the protection and support of media artists working under its jurisdiction.
As part of its efforts, SAG-AFTRA was an early and vocal supporter of
Senate Bill 224 that added the phrase “[d]irector or producer” to California Civil
Code Section 51.9 (“Section 51.9”) in 2018. In support of the bill, it hosted an
informational session between several high-profile SAG-AFTRA members and
legislators, including the legislative sponsor of the bill. The purpose was to ensure
continuing dialogue regarding combatting sexual harassment in the entertainment
industry, including about this important clarification to the law.
The District Court’s opinion opens a giant rift in sexual harassment law that
will potentially leave countless SAG-AFTRA members without recourse against
abusers that hold sway over their careers. Accordingly, SAG-AFTRA and its
members have a fundamental interest in this litigation.
2
SUMMARY OF ARGUMENT
SAG-AFTRA was an early and vocal supporter of Senate Bill 224, 2018
Cal. Legis. Serv. Ch. 951, which added the phrase “[d]irector or producer” to
California Civil Code Section 51.9. Regardless of whether Senate Bill 224 is a
clarification or amendment, Ms. Judd’s relationship with Defendant-Appellee
clearly was a “business, service, or professional relationship.”
Powerful individuals like Defendant-Appellee have dominated the
entertainment industry since its inception. Actors, in particular, have long been
vulnerable to abuse because these individuals are the gatekeepers to the industry.1
Defendant-Appellee was known to be one of a handful of individuals with power
to make or break an actor’s career.
One important way for actors and other creative individuals to gain access to
career opportunities is to attend so-called “generals” — general meetings between
those in positions of power and those seeking to break in. These meetings are not
job interviews nor directly related to employment — they are exploratory meetings
that give the parties the opportunity to get to know each other and to develop or
1
The term “actor” is used throughout this brief in a gender-neutral manner to refer
to both male and female actors. Where gender is relevant, the term “male actor”
or “actress” is used. Similarly, “their” is used as a singular, gender neutral
pronoun, except where a gendered pronoun is necessary to avoid confusion.
3
build upon a business or professional relationship. Based on the descriptions, Ms.
Judd’s meeting with Defendant-Appellee was of this nature.
Just as a meeting with a powerful gatekeeper can open doors for creative
talent, ignoring or denying these gatekeepers can shut them. For working actors,
their reputation within the industry is critical and word-of-mouth is powerful. An
actor who runs afoul of a gatekeeper — whether by denying their advances or
reporting their impropriety — risks retaliation. Ms. Judd experienced just that.
As will be discussed the District Court’s reading of Section 51.9 will
foreclose countless claims by individuals who are only now learning about the
harm that was done to them by powerful gatekeepers like Defendant-Appellee.
ARGUMENT
A. Ms. Judd Had A “Business, Service, or Professional Relationship” With

Defendant-Appellee as Described In California Civil Code Section 51.9
California Civil Code Section 51.9 provides a cause of action for sexual
harassment that occurs in the context of a “business, service, or professional
relationship between the plaintiff and defendant.” Cal. Civ. Code § 51.9(a)(1). It
further provides that the subject “relationship may exist between a plaintiff and a
person, including, but not limited to” one in any of the enumerated professions or
“a relationship that is substantially similar” to the listed professions. Id. This
language has been in Section 51.9 since its amendments in 1996. ER 21.
4
SAG-AFTRA agrees with Ms. Judd’s legal analysis of Section 51.9 and her
conclusion that her relationship with the Defendant-Appellee falls within its
coverage. In particular, SAG-AFTRA agrees with Ms. Judd’s analysis regarding
the language “business, service, or professional relationship” as it applies to Ms.
Judd and similarly situated actors and other media artists. See Appellant Op. Br. at
27-30. By its plain meaning, the relationship between Ms. Judd and Defendant-
Appellee was a “business, service, or professional” one at the time the harassment
occurred regardless of whether Senate Bill 224 was an amendment to or
clarification of Section 51.9.
1. The 2018 Legislation Was Intended To Clarify Section 51.9
As a supporter and proponent of Senate Bill 224, SAG-AFTRA fully
understood the legislation to clarify Section 51.9 to highlight the newly added
relationships. SAG-AFTRA and its representatives had numerous conversations
with legislators, legislative staff, and analysts regarding the legislation. Those
parties reiterated that the added relationships “are almost certainly covered under
existing California law” and the purpose of making explicit reference to these roles
was to serve as a greater deterrent in areas where allegations of abuse had become
prominent. ER053.
Spelling out every possible business, service or professional relationship, as
the bill analysis states, would be “unnecessary, probably impossible, and might at
5
some point become counter-productive.” Id. SAG-AFTRA agrees — the longer the
list of examples, the greater the likelihood that a court could infer express
legislative intent to exclude those relationships not listed. Id. Based on the District
Court’s holding, that appears to be exactly the case here.
The California State Senate has filed an amicus curiae brief that thoroughly
sets forth the legislative history and intent behind the Senate Bill 224.
Additionally, the Senate clearly explains how the District Court failed to give due
consideration to this legislative history and intent, as required by California law.
The Senate brief is consistent with SAG-AFTRA’s understanding of Senate Bill
224 and SAG-AFTRA therefore defers to the Senate brief on those points.
Even assuming arguendo that the 2018 amendments are a modification and
not a clarification of the law, the relationship between a powerful producer, such as
Defendant-Appellee, and an actor, such as Ms. Judd, should fall within the
protections of the version of Section 51.9 in effect through 2018. The power
dynamic between an actor and powerful producer is in many ways similar to the
professions enumerated — a powerful individual in a position of trust who has
significant ability to impact the victim’s life, career, and finances. For example, a
banker, trust officer, or loan officer all stand in a position of decision-making
power to individuals with whom they have business, service, or professional
relationships. In much the same way, a producer as powerful as Defendant-
6
Appellee has power enough to simply tell a director to cast — or to avoid — an
actor, thus impacting their career and financial future. Similarly, just as an attorney
is in a position of trust, superior knowledge, and access to redress for their clients,
so too is a powerful producer to whom an actor is looking for mentorship and entré
into the industry.
Ms. Judd and the State Senate have thoroughly briefed the points above.
Amicus writes primarily to provide perspective into the entertainment industry,
particularly regarding actors’ experiences and the relationships between actors and
powerful industry gatekeepers, such as Defendant-Appellee. The actors and other
media professionals represented by amicus are at risk of harm because of the
District Court’s opinion.
B. The History of Hollywood Reflects the Power Imbalance between Actors

and the Industry’s Gatekeepers
This history of Hollywood is replete with powerful gatekeepers exploiting
aspiring actors. For decades, young, wide-eyed, actors have moved to Los Angeles
hoping to “make it big.” Some have succeeded while others have moved on to
other pursuits. Many have fallen prey to predatory gatekeepers who have wielded
and continue to wield extraordinary power over the industry and those hoping to
become a part of it.
From the earliest days of the film industry, actors have been especially
vulnerable to abuse. During Hollywood’s “Golden Age,” from the 1920s through
7
the early 1960s, actors were beholden to a single studio through the so-called
“studio system” and “star system.”2 During this time, the industry was controlled
by eight major studios and actors worked under exclusive contracts to those
studios.3 The studios held actors — even the largest celebrities — under long-term
contracts by which they had the right to assign them to play any part the studio
desired and by which the studios could loan actors to each other.4 This system
started to unravel in the mid-1940s, due in part to litigation challenging the
exclusive contracts that often extended beyond the maximum duration allowed
under California law. 5 De Haviland v. Warner Bros. Pictures, Inc., 67 Cal. App.
2d 225 (1944).
The exclusive contracts of the “Golden Age” have given way to a freelance
industry. Actors work on a project-by-project basis with typical employment
contracts ranging from one day to the entire length of a film or television series’
production, with the former far more common than the latter. Those who achieve
sufficient celebrity may themselves become producers. As franchises, particularly
2
Stephen M. Gallagher, Note, Who's Really "Winning"?: The Tension of Morals
Clauses in Film and Television 16 Va. Sports & Ent. L.J. 88, 92 (2016);
Margaret Heidenry, How Hollywood Salaries Really Work Vanity Fair (Feb. 12,
2018) available at https://www.vanityfair.com/hollywood/2018/02/hollywood-
movie-salaries-wage-gap-equality.
3
Id.
4
Id.
5
Gallagher, supra note 2 at 92.
8
in the superhero and science fiction/fantasy genres, become more prevalent, lead
actors are increasingly contracted to portray their characters for multiple pictures.6
Nonetheless, these lucrative multi-picture or multi-season contracts remain
freelance and the studios are typically free to release and, if the character is
important enough, replace the actor.
Although the studio system has given way to new models of production and
distribution and actors are no longer beholden to a single studio for the majority of
their careers, a small cadre of top producers and executives still hold considerable
power to make or break actors’ careers. Hollywood is a relationship-driven
industry and relationships with one or more of its gatekeepers often is critical for
an actor to access the opportunities to compete for the most coveted roles, be it a
starring role in a superhero franchise, a role likely to garner consideration for
major awards, a leading role on a television series, or otherwise.
C. “General” Meetings Are About Building Relationships, Not

Interviewing For a Job
Amicus agrees with Ms. Judd’s characterization of her meeting with the
Defendant-Appellee as typical of Hollywood “general meetings.” A general
6
For example, many of the actors portraying superheroes in the “Marvel
Cinematic Universe” are under contract for as many as nine or ten films. See
e.g., Bradley Russell Marvel contracts: how long does each actor have left in the
MCU? GamesRadar (Aug. 2019) available at
https://www.gamesradar.com/marvel-actors-contracts-mcu/.
9
meeting, or “general” as it is understood in the entertainment industry, is different
from what one might consider a “general” meeting in other contexts. It is not a
simple informational meeting between someone new in the industry and a seasoned
professional who might help guide their career, like the “informational interview”
recent law graduates hold with law firm partners. Nor is it just a networking
meeting between equals hoping to expand their business network. A general is a
chance for two parties with fundamentally unequal power to meet on a more level
playing field; it is a “respectful (to the actor) and professional way of meeting and
building lasting relationships with these [fundamentally more powerful] industry
professionals.”7
The entertainment industry is fueled by relationships and the purpose of a
“general” “is to network, look for new prospects, and cultivate relationships.” 8 The
relationships formed through general meetings are key to unlocking the doors to
the “Hollywood system.”9
7
Joseph Pearlman, Casting Directors Are Not the Gatekeepers to Your Success,
Backstage (Jun. 28, 2018) available at
https://www.backstage.com/magazine/article/casting-directors-gatekeepers-
success-635/.
8
Ken Miyamoto, 3 Simple Ways You Can Impress at Hollywood Meetings, The
Script Lab (Jan. 31, 2019) available at
https://thescriptlab.com/features/screenwriting-101/9866-3-simple-ways-you-
can-impress-at-hollywood-meetings/
9
Ken Miyamoto, What to Expect with Your First Hollywood “General Meeting”,
ScreenCraft (Jul. 14, 2016) available at
https://screencraft.org/2016/07/14/handle-first-hollywood-general-meeting/
10
A general is an exploratory meeting “without an actual job on the line.”10 It
is a chance for the gatekeepers to get to know the artist as a person, not for a
specific job opportunity.11 If the gatekeeper merely wanted to employ the
individual before the meeting, they would do so without the pretense of the
meeting.12 While there may be a job at the end of the line, the “goal of the general
is to make an authentic connection with the person you’re meeting with” in the
hope that they will use you in future projects or open the right doors.13 Although
not the immediate goal, “[o]ccasionally. . .a general meeting becomes a specific
project meeting.”14
The parties’ roles going into the meeting does not define the nature of the
meeting nor what future opportunities may come of it. Generals are for “building
10
Hawkins DuBois, 5 Hollywood Meetings You Should Master and How to Do It,
No Film School (Aug. 1, 2017) available at
https://nofilmschool.com/2017/07/mastering-meeting-walkthrough-amateur-
staffed-writer.
11
Director Peter Sollett describes it as “not a job interview” but “an introduction to
a culture that you probably haven’t had any exposure to.” Marc Maurino, “It’s
Just a General”: How to Take a General Meeting, Filmmaker (Jul. 17, 2014)
available at https://filmmakermagazine.com/86771-its-just-a-
general/#.XW2IcyhKhEZ.
12
Miyamoto, supra note 9.
13
Du Bois, supra note 10.
14
Jessica Sharzer, Meeting Expectations: How to Take a Meeting Like an Old
Hollywood Pro, Even as a First-Time Filmmaker, MovieMaker (Nov. 17, 2016)
available at https://www.moviemaker.com/archives/mm_guide_2017/meeting-
expectations-take-a-meeting-like-a-hollywood-pro/.
11
relationships and prospecting future talent.”15 It is a chance for the parties to learn
about each other, their goals, their existing relationships, and the projects they are
working on or want to work on.16 Just because one party is an actor does not mean
acting is the only opportunity to come out of the meeting. The actor could be
seeking financing for a project, directing opportunities, new relationships with the
gatekeeper and their contacts, or any number of other opportunities.
General meetings typically occur after the artist has developed a body of
work that has caught a gatekeeper’s interest such that they want to explore a
business or professional relationship. The artist may be relatively new and not fully
established in the industry, but will have worked in some capacity. As with Ms.
Judd, an actor will likely have performed in a few film or television roles that the
gatekeeper has seen. Frequently, the general occurs as the result of an introduction
by an agent, manager, or other individual who might have a prior relationship with
the gatekeeper.17 An introduction is typically necessary when the artist does not
have a substantial body of work.
Actors engage in general meetings because getting on the right side of a
powerful gatekeeper like Defendant-Appellee can help their careers skyrocket.
“For actors, a meeting with Mr. Weinstein could yield dazzling rewards: scripts,
15
Miyamoto, supra note 8.
16
Maurino, supra note 11.
17
See e.g., Miyamoto, supra note 9.
12
parts, award campaigns, magazine coverage, influence on lucrative endorsement
deals.”18 Defendant-Appellant has been described as someone whose good graces
are beneficial to actors and other creative talent because he is “the gatekeeper to
getting projects made, getting your face on screen, to you getting an Oscar.”19
D. Ignoring or Reporting on Gatekeepers Can Damage an Actor’s Career
The nature of today’s freelance industry leaves actors, particularly those who
have not attained celebrity, vulnerable to abuse by powerful industry gatekeepers.20
As freelance workers, actors fear speaking out because to do so means risking their
futures. Word-of-mouth is more prominent in the entertainment industry than most
other industries and a powerful gatekeeper has the power to destroy someone’s
career. Refusing to engage with a powerful gatekeeper, let alone reporting his
impropriety, could put an actor’s career in jeopardy if not ruin it entirely.
Defendant-Appellee was one of the most successful producers of his time.
Pictures he produced received more than 300 Academy Award nominations and he
18
Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment
Accusers for Decades, The New York Times (Oct. 5, 2017) available at
https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-
allegations.html (quoting director Paul Feig).
19
Rory Carroll and Sam Levin, 'Pack of hyenas': how Harvey Weinstein's power
fuelled [sic] a culture of enablers, The Guardian (Oct. 13 2017) available at
https://www.theguardian.com/film/2017/oct/13/harvey-weinstein-allegations-
hollywood-enablers.
20
Sara Khorasani, Article, Mixed Messages: Harvey of Hollywood: The Face that
Launched a Thousand Stories, 41 Hastings Comm. & Ent. L.J. 103, 116 (2019)
(discussing Hollywood gatekeepers and the “casting couch” concept).
13
“has been thanked more than almost anyone else in movie history, ranking just
after Steven Spielberg and right before God.”21 In the entire history of the motion
picture industry, few executives have been as powerful.22
Ms. Judd’s allegations are far from the only allegations against the
Defendant-Appellee, nor against other powerful gatekeepers.23 The stories
recounted to and in the media over the last two years make clear the power these
gatekeepers wield and the tangible harm they can cause those who deny their
unwanted sexual advances. “More established actresses were fearful of speaking
out because they had work; less established ones were scared because they did
not.”24 This power over people’s careers extends to those who may witness, enable,
or otherwise be aware of the abuse and the threats of harm.25
21
Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey
Weinstein’s Accusers Tell Their Stories, The New Yorker (Oct. 10, 2017)
available at https://www.newyorker.com/news/news-desk/from-aggressive-
overtures-to-sexual-assault-harvey-weinsteins-accusers-tell-their-stories.
22
Id.
23
By the end of 2017, over 80 women had alleged that Defendant-Appellee
harassed or assaulted them. Other gatekeepers to face allegations, including
criminal charges, include Bill Cosby, Bill O’Reilly and others. Khorasani, supra
note 20 at 104,118. See also, Lila Thulin, A Complete List of Sexual Assault and
Harassment Allegations against Harvey Weinstein Slate (Oct. 31 2017) available
at https://slate.com/news-and-politics/2017/10/a-list-of-sexual-assault-and-
harassment-allegations-against-harvey-weinstein.html.
24
Jodi Kantor and Rachel Abrams, Gwyneth Paltrow, Angelina Jolie and Others
Say Weinstein Harassed Them, The New York Times (Oct. 10 2017) available
at https://www.nytimes.com/2017/10/10/us/gwyneth-paltrow-angelina-jolie-
harvey-weinstein.html.
25
Carroll and Levin, supra note 19; Farrow, supra note 21 .
14
Fear, threats, lack of witnesses and lack of support are common experiences
among the victims.26 Many are warned off or discouraged from speaking up,
including when reporting incidents to others within the harasser’s companies.27
Others recount being told that is just how the industry, particularly Defendant-
Appellee, worked.28 Some victims are met with threats, ranging from being
removed from projects to violent retaliation. 29
Many victims, like Ms. Judd, have reason to believe their careers and
reputations suffered as a result of denying their harasser or reporting their abuse.30
In some instances, negative media stories would surface about those who reported
abuse.31 Many intentionally avoided working with their abusers, including
26
Khorasani, supra note 20 at 117.
27
Farrow, supra note 21; Thulin, supra note 23; Mira Sorvino, Why I Spoke Out
Against Harvey Weinstein, TIME (Oct. 11 2017) available at
https://time.com/4978659/mira-sorvino-harvey-weinstein-sexual-harassment/.
28
See e.g., Kantor and Abrams, supra note 24; Lupita Nyong’o Speaking Out
About Harvey Weinstein, The New York Times (Oct. 19 2019) available at
https://www.nytimes.com/2017/10/19/opinion/lupita-nyongo-harvey-
weinstein.html.
29
One actress reported an incident involving a director in which he threatened
violence if she related the event to anyone and then continued the threats for
years. Stephanie Zacharek, Eliana Dockterman and Haley Sweetland Edwards,
Time Person of the Year 2017: The Silence Breakers, TIME (Dec. 18 2017)
available at https://time.com/time-person-of-the-year-2017-silence-breakers/.
See also, Farrow, supra note 20; Thulin, supra note 23.
30
See, e.g., Farrow, supra note 21; Kantor and Abrams, supra note 24; Thulin,
supra note 23.
31
Carroll and Levin, supra note 19.
15
Defendant-Appellee, potentially reducing their opportunities.32 Still others have
lost their enthusiasm for the entertainment industry, some going as far as to give up
on their pursuit of employment.33
These are all tangible, actual harms experienced by victims of sexual
harassment by entertainment industry gatekeepers. They are “pervasive or severe”
because the threats and fear are always in the background, even when the
gatekeeper is not present. Cal. Civ. Code. §51.9(a)(2). These are all forms of
“economic loss or disadvantage” that Section 51.9 is intended to remedy. Cal. Civ.
Code. §51.9(a)(3). To the extent the version of Section 51.9 in effect before Senate
Bill 224 governs this action, these harms all clearly illustrate why a victim may be
unable to easily terminate the relationship. Cal. Civ. Code. §51.9(a)(3) (1996).
CONCLUSION
When an actor is sexually harassed within the context of their employment,
amicus agrees the law and standards applicable to an employment relationship
should govern. However, the entertainment industry is one in which meetings and
relationships between vastly unequal participants play a significant role. It is
through these meetings that actors form business relationships that open the doors
to future opportunity.
32
See, e.g., Kantor and Abrams, supra note 24.
33
Id.
16
It is in the context of these meetings — meetings such as the general in
which the parties are establishing their business relationship — that Section 51.9 is
intended to operate. It is also in this context that SAG-AFTRA’s members are most
likely to be harmed by the District Court’s opinion.
For the foregoing reasons and those in Plaintiff-Appellant’s Brief, Amicus
respectfully urges this Court to REVERSE the decision below.
Respectfully submitted,
Dated: September 3, 2019
/s/ Duncan W Crabtree-Ireland

Duncan W. Crabtree-Ireland
(Counsel of Record)
Danielle S. Van Lier
Screen Actors Guild-American Federation
of Television and Radio Artists
5757 Wilshire Blvd, 7th Fl.
Los Angeles, CA 90036
Tel: (323) 549-6627
amicus@sagaftra.org
17
CERTIFICATE OF COMPLIANCE.
I hereby certify that pursuant to Federal Rules of Appellate Procedure 29(a)(4)(G),
32(a)(7)(C) and Ninth Circuit Rule 32-1, this brief complies with the typeface
requirements of Federal Rules of Appellate Procedure 32(a)(5) and (6), because it
is written in 14-pt Times New Roman font, and with the type-volume limitations of
Fed. R. App. P. 29(d), because it contains 3,625 words, excluding the portions
excluded under Federal Rules of Appellate Procedure 32(a)(7)(B)(iii). This count
is based on the word-count feature of Microsoft Word.
DATE: September 3, 2019 By: /s/ Duncan W. Crabtree-Ireland
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing Brief of Screen
Actors Guild - American Federation of Television and Radio Artists as Amicus
Curiae in Support of Plaintiff-Appellant by with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on September 3, 2019.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s/ Duncan W. Crabtree-Ireland

Judd V Weinstein SAGAFTRA Amicus Brief

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Case: 19-55499, 09/03/2019, ID: 11419670, DktEntry: 20, Page 1 of 25

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

Brief of Screen Actors Guild-American Federation of

Counsel for Amicus

TABLE OF CONTENTS ....................................................................................... i

Cal. Civ. Code § 51.9 ........................................................................................2, 16

Cal. Civ. Code. §51.9 (1996) ................................................................................16

Hawkins DuBois, 5 Hollywood Meetings You Should Master and How to Do

Jessica Sharzer, Meeting Expectations: How to Take a Meeting Like an Old

Ken Miyamoto, What to Expect with Your First Hollywood “General

Lila Thulin, A Complete List of Sexual Assault and Harassment Allegations

Marc Maurino, “It’s Just a General”: How to Take a General Meeting,

Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey

Sara Khorasani, Article, Mixed Messages: Harvey of Hollywood: The Face

Senate Bill 224, 2018 Cal. Legis. Serv. Ch. 951..................................................... 3

Stephanie Zacharek, Eliana Dockterman and Haley Sweetland Edwards, Time

Stephen M. Gallagher, Note, Who's Really "Winning"?: The Tension of

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rules 26.1 and 29(c)(1) of the Federal Rules of Appellate

Procedure, Amici provide the following disclosures of corporate identity:

Screen Actors Guild-American Federation of Television and Radio Artists

INTEREST OF THE AMICUS*

Amicus Screen Actors Guild-American Federation of Television and Radio

Artists (“SAG-AFTRA”) is the nation’s largest labor union representing working

media artists, including actors. SAG-AFTRA represents approximately 160,000

actors, announcers, broadcasters, journalists, dancers, DJs, news writers, news

editors, program hosts, puppeteers, recording artists, singers, stunt performers,

voiceover artists and other media professionals. In 2012, SAG-AFTRA was

for media artists.

In the wake of public revelations about Defendant-Appellee by Ms. Judd and

AFTRA received hundreds of reports from the artists it represents regarding

inappropriate behavior by powerful people, predominantly men, in the

entertainment industry. This prompted SAG-AFTRA, among other efforts, to

As part of its efforts, SAG-AFTRA was an early and vocal supporter of

informational session between several high-profile SAG-AFTRA members and

continuing dialogue regarding combatting sexual harassment in the entertainment

industry, including about this important clarification to the law.

will potentially leave countless SAG-AFTRA members without recourse against

members have a fundamental interest in this litigation.

clarification or amendment, Ms. Judd’s relationship with Defendant-Appellee

clearly was a “business, service, or professional relationship.”

Powerful individuals like Defendant-Appellee have dominated the

Defendant-Appellee was known to be one of a handful of individuals with power

to make or break an actor’s career.

career opportunities is to attend so-called “generals” — general meetings between

build upon a business or professional relationship. Based on the descriptions, Ms.

Judd’s meeting with Defendant-Appellee was of this nature.

their reputation within the industry is critical and word-of-mouth is powerful. An

actor who runs afoul of a gatekeeper — whether by denying their advances or

As will be discussed the District Court’s reading of Section 51.9 will

harm that was done to them by powerful gatekeepers like Defendant-Appellee.

A. Ms. Judd Had A “Business, Service, or Professional Relationship” With

harassment that occurs in the context of a “business, service, or professional

“a relationship that is substantially similar” to the listed professions. Id. This

coverage. In particular, SAG-AFTRA agrees with Ms. Judd’s analysis regarding

the language “business, service, or professional relationship” as it applies to Ms.

occurred regardless of whether Senate Bill 224 was an amendment to or

clarification of Section 51.9.

1. The 2018 Legislation Was Intended To Clarify Section 51.9

As a supporter and proponent of Senate Bill 224, SAG-AFTRA fully

relationships. SAG-AFTRA and its representatives had numerous conversations

Spelling out every possible business, service or professional relationship, as

Court’s holding, that appears to be exactly the case here.