1/06/2008

The Strike Is a Lawyers' Game: How to Play to Win

This piece is by WGA strike captain Alfredo Barrios, a former corporate attorney turned writer. It offers insight into what the AMPTP methods and rationale for undermining the writers' resolve. Thanks to Ashley Gable for submitting this to us. -JA

We’re two months into the strike, and I’ve noticed a certain confusion and fear emanating from certain quarters about how things have been “handled” by our “leadership.” Some ask: are we being too militant with our demands and “rhetoric” and all this picketing and chanting? Isn’t that what’s keeping the studios from “coming back to the table?” Shouldn’t we be nicer guys and gals? If we were, surely they’d come back, right? I mean, we have to show we’re “reasonable.”

From other quarters, people pose the question: why are the studios acting so insanely? Our demands are reasonable. Don’t they understand that they have a lot to lose? Surely, it’s the hardliners who are holding things up, right?

Regardless of what camp you fall in, everyone is grasping for an explanation of why the studios are acting the way they are. That’s because with the exception of a few carefully prepared press releases, a trade ad or two, and some supposed “leaked” stories, we haven’t heard directly from any of the CEOs about the strike. We’ve only heard from Nick Counter – their point man. Their lawyer.

I’m here to tell you, as a former litigator who spent several years at one of the biggest corporate law firms in the world, that we’re all in engaged in a huge lawyering game, and things are proceeding accordingly. For the record, I have never met Nick Counter, but I spent all of my years as a lawyer working for guys like him, in service of the types of conglomerates he now represents, against people like us.

So I’ll briefly spell out the rules of the game and my view of what it will take to win the strike – and by win, I mean accelerating toward a resolution with the studios on terms that are favorable to us.

BASIC RULES

First, understand the relationship between Nick Counter and the studios. It’s essentially a lawyer-client relationship. The AMPTP is run by lawyers like Nick Counter and Carol Lombardini. Think of it as an in-house law firm. Their goal is to “negotiate” deals with unions on behalf of their clients – the studios.

As lawyers, Counter and Lombardi have to justify their paycheck. What does that mean? They have to add value. They’ve promised to deliver a more favorable labor deal than the studios would get without them. Otherwise, there would be no point in hiring them (or more aptly, keeping them around). So our loss is their gain. And the bigger our loss, the bigger their gain.

Now here’s the thing to remember, fairness and reasonableness have NOTHING TO DO

with their approach. No corporate lawyer I’ve ever known has ever met with a

client and promised to get them the most “fair and equitable deal” possible.

That’s not their goal. Instead, they promise to save them a lot of money –

remember, added value. If the studios were genuinely interested in reaching a

fair and equitable deal, the CEOs and their CFOs would talk directly to our negotiating committee and financial people, and a deal could be reached today – by the way, this is what we’re driving towards. We will know we will have won when the CEOs and their CFOs talk to us directly – more on this later. Back to Counter…

So, what exactly have Counter and Lombardi promised their clients – the studio heads? Two things: a specific outcome by a certain point in time and peace of mind.

CEOs hate uncertainty. They run their businesses based on long-range plans that are based on long-range assumptions. So as a lawyer, you do your very best to put their mind at ease when faced with an inherently unstable situation – be it a lawsuit, a takeover deal, or a strike. You say to them, “You don’t have to worry about a thing. We have this under control.” Then you spell out what you believe (more often hope) is the most likely outcome. “We feel confident that we can
…get this suit dismissed at the pre-trial stage.”
“… get this deal closed by Christmas.”
“…resolve this strike by_______ on ________ terms.”
The CEOs nod their heads happily, confident that their well-heeled, well-paid lawyers are looking out for their interests, and then go about their business.

So what is that timeframe and what are the terms? My guess is that Counter and Lombardi promised to hold the line on DVDs (still a significant source of revenue for the studios at $15.7 billion in U.S. sales last year) and to rollback residuals and the attendant pension and health contributions that flow from them. By now, we all know that no payments on new media equals a rollback in residuals. And given pattern bargaining, getting rid of our residuals means getting rid of residuals and attendant P and H contributions industry wide. A huge cost savings. Fairness and equity have nothing to do with it. Remember, added value.

By when? My guess is just short of killing pilot season. Writing off the rest of this season may have been worth the gains that Counter promised. We’re talking about rolling back residuals and P and H contributions not only in this year, but also well into the future.

So why not write off pilot season also? Remember, CEOs hate uncertainty. They can quantify the losses from writing off this season. But they can’t do that with a write-off of the entire upcoming pilot season. Too many variables. How will reality do? How will their advertisers react? How much audience will they lose permanently? On top of that, they forego a huge revenue injection from the upfronts – over $18 billion was reportedly taken in by the TV industry as a whole in 2007 (nearly double the box office take on movies for all of last year). And they face a second labor strike in June – SAG. Shareholders are only so patient… or forgiving. And remember, they like certainty, too. That’s why they’ve already been taking their money elsewhere – shares of media companies have been falling at a greater rate than the market at large (check out TheStreet.com’s December 20, 2007 article, “Strike May Rewrite Stocks’ Script”).

Going back to CEO peace of mind. This comes in a couple of forms. First, lawyers tell their clients that they won’t have to get their hands dirty. Lawyers will be the bad cops on their behalf. They’ll serve as a shield for their clients. Lawyers always want their clients to feel comfortable – that’s part of what’s promised. “Go about your life. Don’t worry about a thing.” Second, it comes in the form of laying out how things will play out. “You can expect that the plaintiffs will engage in several months of discovery…” “…the company you’re hoping to acquire will seek a white knight,” “…the strike will lose steam and the writers will fragment.” All things that have a very good chance of happening. And when they do, the lawyer looks like a genius, and his client thinks, “Man, I’m in really good hands. I have nothing to worry about.” It’s about managing expectations.

THE LAWYER’S STRATEGY

Lawyers try to do three things to their adversaries: (1) get them to doubt the validity of their position; (2) undervalue whatever cards they’re holding (in other words, underestimate whatever leverage they have); and (3) kill their resolve.

How does a lawyer get an adversary to doubt his position? Well, in litigation, it comes by spinning the facts. In transactional deals, by spinning the financial numbers. And in a strike situation, by spinning both. One common technique is making a nonsensical argument so many times that it begins to take on the air of a legitimate one and eventually some people (judges, jury, the public in general and sometimes even your adversaries) begin to accept it as truth. Lawyers are masters of this. Think of these doozies: “If the glove doesn’t fit, you must acquit,” “Smoking doesn’t cause cancer,” and my personal favorite, “We don’t have a business plan for or any real revenue from the Internet.” Or how about that $130 million offer that the studios supposedly made us several weeks back? The one that didn’t actually add up. Facts and numbers are spun every day in the courtroom, in the negotiating room and in the press by lawyers.

Now, here’s the thing to remember. It’s the lawyer who does the spinning. No CEO wants to do it. Why? Because so many of them want to be known as “straight shooters” – i.e., guys who don’t lie. Plus, they like to be liked. And going out and spinning facts and numbers… well, that’s like acting like a lawyer. Like Nick Counter. That’s why they hired him to do it. They want to be comfortable. Notably, neither Counter nor any of the CEOs has actually done any real press interviews to defend their position. Not hard to see why: it’s utter nonsense. So they spin in press releases or “leaked” stories that are regurgitated by mouthpiece trade papers and other seemingly “unbiased” but wholly bought off parties.

And how does a corporate lawyer gets an adversary to lose confidence in whatever leverage he has? One way is to engage in positional bargaining. That means anchoring your negotiating position to an extreme and unprincipled number over such a long period of time that your adversary starts to doubt the cards he’s holding and eventually moves off of his number and gets closer to yours. That’s what the AMPTP has been attempting to do with its new media proposals – or actually, lack of proposals. They’ve anchored to basically zero payments for new media in the face of our fairly principled new media proposals. They’re hoping that doubt will creep into our psyche – “Wow, man, those companies are really holding to that number, maybe our bargaining position isn’t as strong as a I thought. Maybe we should take whatever the DGA gets.” And so on…

Once you start down that path, you’re losing your resolve. The corporate lawyer knows you’ll start to rationalize why you should take a really bad deal. And you start to buy into the arguments he’s making – “That lawyer of yours isn’t doing you any favors.” “I hate to tell you this, but you’re wasting a lot of time and energy with this case. It’s a loser.” “As a guy who knows, you should take what we’re offering you because it’s not going to get better.” Sound familiar? It’s the sort of stuff being put out by the AMPTP’s PR guru, Chris Lehane, who, by the way, is also a lawyer – and a classmate of mine from law school. Small world, huh? Couple this psychological warfare with the increasing expense of fighting… and people will crack.

Posture and overwhelm with superior power – or the semblance of power. That’s Corporate Lawyering 101.

So… how do we win?

OUR STRATEGY

In my experience, the guys that win against corporate lawyers and their clients – and believe me, I’ve seen it happen – are the guys that (a) never lose sight of their cards – in other words, aren’t fooled into believing that they’re holding garbage, and (b) play lots of offense.

I’ll begin with playing offense. That means taking the fight to the other guy’s client – the decision makers – the CEOs. Remember, THEY LIKE TO BE COMFORTABLE. That’s what their lawyer promised them they would be. So how do you take the fight to them? Well, in litigation, you bring them into the game by making them the target of discovery – you depose them, go through their papers, ask them all sorts of question. You take them out of their comfort zone. You make them the focal point of the case… they’re the bad guy. In transactional matters, say a takeover attempt where you represent the buyer, you go after the “entrenched management” that wants to deprive the shareholders of the real value of their holdings… they’re the bad guy. In a strike, you hold the CEOs accountable. Why? Because they are ultimately the bad guys… the buck stops with them, and they need to be reminded of that always. Counter is just their hired gun.

And by taking the fight to them. I mean, maintaining picket lines at the studios at peak levels, relentlessly picketing locations, continuing to put out creative videos that entertain and inform people about the strike, denying waivers to award shows and picketing those shows, seeking alternative ways to put out creative work on the Internet for pay, etc.

Playing this kind of offense serves a couple of purposes. First, when a CEO drives through the studio gates, or hears about how a location shoot was impacted by picketing (like for example, when an actor leaves the set or a day has been added to the schedule), or sees how his untenable bargaining positions are being ripped apart on websites, or is told about how his award show is falling apart, or reads how Google is about to form a competing entertainment powerhouse, it all collectively begins to call into question the promise that Counter made – i.e., that we would crumble. It’s a daily reminder that we are not losing our resolve. It makes him worry. His expectations aren’t being met. Things are uncertain again. And it begins to chip away at Counter’s credibility as the guy who could resolve the strike with minimal inconvenience to the studio CEOs.

This last point is important. Why? Because the way you win is by taking the lawyer out of the equation. Deny him the promise that he made to his client – i.e., that he would add value by battering all of us down. Once the CEOs begin to believe that we’ll stick to our guns until we get a fair and equitable deal, that’s when we’ve won. That’s when the CEOs and their CFOs will step in and begin to deal directly with us. Why not Counter? Because his job wasn’t to deal with real and fair numbers; it was to screw us. Once he fails at that, it’s time for others to step in. Trust me, it happens.

But it requires believing in the cards you’re holding – your leverage – and sticking it out. The bigger the show of resolve, the faster the CEOs will dispatch Counter. As profit losses mount and their share prices take bigger hits, the studios will realize that holding out for Counter’s promise looks increasingly like a fool’s game.

But the CEOs will only step in if they believe a fair a reasonable deal can be reached. That’s why it’s important to always maintain principled bargaining proposals on the table – as I believe we have throughout. Unlike Counter, I don’t believe we’re engaging in the positional bargaining. Having said that, I think we made one very serious mistake in continuing to keep our DVD proposals off the table. Bad faith bargaining – like the type that Counter has engaged throughout – can never be rewarded, and I have heard no compelling reason to keep our DVD proposals off the table. As I mentioned above, DVD sales in the U.S. alone were nearly a $16 billion revenue stream for the studios in 2007. I understand that DVD sales are declining, but they still dwarf revenue from the Internet – which is forecasted to total $4 billion over the next 3 years. And that’s the length of our contract: 3 years. So we gave up a piece of that greater pie for what? Nothing. Some might say: but it was either a DVD bump or a new media deal. Really? Says who? We have principled arguments to get an increased share of DVDs and a fair slice of new media – and, I believe, the leverage to get both.

As the upcoming DGA talks proceed, I predict that Counter will try to ram a really bad deal down the director’s throats. And he may succeed, given the makeup of that union’s membership and their historic appeasement of studios during labor talks. I suspect that whatever deal is reached will be slightly better than what was offered us (it certainly couldn’t be worse) and will be wielded like a stick to beat us into taking it as well. The DGA leadership will certainly have every incentive to spin it as a huge win for them and the industry. How could they not? It costs the studios nothing to take this approach. If we don’t take the same deal, they’re back to dealing with us, and the DGA is the only loser.

As for acting like “nicer” and “more accommodating” guys and gals… Well, let me just say that in all of my years as a corporate lawyer, “nice” and “accommodating” adversaries who never stuck to their guns and didn’t bring the fight to us never got better deals. They only get worse ones. So don’t buy into the our-leadership’s-too-militant line of argument. They’re not. They’re being appropriately tough. Trust me, you wouldn’t want it any other way. Now it’s up to the rest of us to hang tough with them.

44 comments:

troll-proof said...

Perfectly said, Alfredo! Hang tough fellow writers. Refuse to let Nick Counter "add value" at our expense - in fact, let's get his ass fired. Show up on the lines, play offense on all fronts and we'll force the moguls out of their comfort zone. Then things move quickly.

Ashley Gable said...

"And by taking the fight to them, I mean, maintaining picket lines at the studios at peak levels, relentlessly picketing locations. . ."

Picketing. Matters. Picketing is the grab-you-by-the-balls trailer to our feature film called "Strike." Our lines remind everyone who sees them that we are united, we are powerful, and we're not leaving until we get a fair deal.

It's challenging for those who picket because we don't always get to see the concrete effects of our efforts. We don't always get to see the truck turn around.

But know that those trucks _are_ turning. Know the people driving through those gates notice that we're still here. Know they're telling their friends and bosses.

It's OK we don't always get to see the effect of our picketing. We don't get to see the effect of our words, either. We're not there when Joe Iowa gets a tear in his eye from a scene in our movie or TV show. But we still know in our hearts that its a powerful scene.

Picketing's like that. See you on the line.

Jake Hollywood said...

We’re two months into the strike, and I’ve noticed a certain confusion and fear emanating from certain quarters about how things have been “handled” by our “leadership.” Some ask: are we being too militant with our demands and “rhetoric” and all this picketing and chanting? Isn’t that what’s keeping the studios from “coming back to the table?” Shouldn’t we be nicer guys and gals? If we were, surely they’d come back, right? I mean, we have to show we’re “reasonable.”

Personally, I think we haven't been militant enough to satisfy me. I'm really don't like being stepped on and I wonder why it's taken this long (since the last strike) for the WGA leadership to take a strong stand.

I am, however, grateful that we do have a strong leadership core--finally--even if their methodology sometimes confuses me or appears too safe or I disagree with it.

Still, I'm with the cause to the end (and unlike some, I'll never go fi-core, even it means going broke or worse) and see (an I'm now more optimistic than I was then during the first days of the strike) a shorter strike length than originally imagined.

So it's back to the line for me.

smoothlatinkid said...

As it was, I'm down for the long haul.

But if I were in an actual foxhole, this article would be enough to make me bunker down for YEARS.

AS LONG AS IT TAKES.

Alexander Chow-Stuart said...

Great piece, probably the best-argued and most helpful I have read during the strike. And I agree about DVDs: the AMPTP reneged, we should put them back on the table. Blu-ray (or, unlikely now, HD DVD) means a lot of revenue in the immediate future, not least from discounted regular DVDs. We should all hang tough.

Andres said...

WOW! This is great stuff. Just imagine the day it is agreed that the WGA leaders were geniuses for understanding this and their balls are what got an amazing deal to all three guilds. And everyone who critiziced them will eat their own words. And the writers win the strike. Mark my words brothers and sisters, that moment will be infinately better than any orgasm you've ever had. TRUST ME.

Dennis Wilson said...

Sorry, Andres, that shit's just more misdirection. We won't gain anything by caving.

Jake, I too feel we haven't been militant enough. Hey, AMPTP: You want to rerun our TV online? Pay us what we used to get from broadcast!

You want us to start writing movies for you again? Fine -- as long as you start paying the same for movies like Shrek!

You want to resell our work on DVD? Great -- for 2.5 percent of the gross!

And don't give me that "DVDs are the past" dodge. That's irrelevant. Any time our work is resold, we should be paid for it!

ReelBusy said...

Great post. Stay strong. Make them pay fair.

Thomas Cunningham said...

Well articulated and I believe dead on. I also think the WGAs strategy of using divide & conquer against the AMPTP is brilliant. Unlike writers these companies are ultimately competitors and if smaller companies start breaking ranks because A. They can't afford a prolonged strike and B. it gives them an immediate and substantial advantage over their competitors, it will hurt the still struck companies even more and force them to get back in the game or lose more and more ground to the non-struck companies.

Fortune favors the brave and the companies that jump at the opportunity to make a deal with the WGA will have an advantage for as long as the moguls want to hide behind Counter's and their PR firm's bullshit rhetoric that no one is buying.

And at the end of the day, unlike CEOs and Counter and his ilk, writers are more emotional creatures and don't think we won't be more apt to want to deal with a studio that had the balls to step in and agree to a fair deal -even after the strike is resolved.

Stay strong!

Jay said...

Preacher Casey himself couldn't have put it better

cory said...

Uh, this is all good and fine, but, by this rationale, the DGA should experience the same thing the WGA is experiencing with their negotiations. If the AMPTP treats the DGA the same way they are treating the WGA, then this argument is valid. However, if the DGA has an easier time in their negotiations with the AMPTP, then this argument does not hold any water, right?

James said...

Well said. The strike is important for the writers and locally for the Teamsters, the stagehands and SAG and the DGA. Nationalliy, it's extraordinarily important for every other union member - people in the Steelworkers, the Iron Workers, the Auto Workers, the Farm Workers, the health care workers and SEIU, the Oil, Gas and Atomic Energy Workers, the UMWA, the Teachers and AFSCME and lots more - because all have issues at stake when a national employers group "bargains" like AMPTP. What comes out of this strike - including anything that winds up in the NLRB or the courts - is going to have an impact on anyone else'bargaining. When AMPTP pulls this sort of stone wall bullshit, for example, it threatens the Mineworkers' stability, because while they haven't had a strike for a long time and a good run of negotiated contracts, this sort of employer behavior tells the coal companies to wake up and start demanding give backs like AMPTP is pushing. This industry is one of the few where the US still dominates the world - folding early and without satisfaction is going to cost workers across the country, union or not, because union scale and benefits is what an employer has to think about even in a nonunion shop. The WGA has done a remarkably good job so far in selling the union position and the AMPTP owners look a lot more like the schmucks they are far earlier in this process than I ever thought they would. Jackasses.

My thoughts and prayers are with the WGA and the supporting unions and with the men and women who aren't getting paid because the top fat cats want to break a handful of established unions in this industry.

Fuck AMPTP.

ChuckT said...

My god, I see why you no longer work in the legal field. If that's your logic, you're screwed. You just don't get it. It's not about saving money now, it's about restructuring the business for the future!! Jesus Christ, how can you not see something some simple and clear. The AMPTP most certainly WANTS to throw away pilot season because they want to DESTROY PILOT SEASON AS A BUSINESS MODEL (for the love of god, that's not exactly a secret!). They are not just trying to save money and this is NOT a legal game. This is their chance to BREAK THE DAMN UNION -- meaning, by squeezing writers out of the business models of the future, they ensure a better chance of their survival. What you failed to mention is that the producers and businessmen in general have been living with uncertainty for the past several years as a result of this crappy administration, the war, terrorism, a declining economy (and US dollar) and technology/new media that is trouncing on old business models quicker than new ones can be created.

So what does that mean? It means that as far as the AMPTP is concerned THEY HAVE NOTHING TO LOSE in taking a risk with accepting and living with uncertainty now because that uncertainty would be there even if they settled today with the WGA (they STILL have no clue what the next three to five years are going to be - NOBODY DOES). What they know is that if they don't take a huge chance now to distroy the business models that have been burdening the business and keeping them from formulating a successfull new media business model - then they ARE screwed. So they will go for broke, throw away pilot season and try to break the writer's union down as much as possible by rolling back residuals, doing away with pilot season and maintaining the DVD model as it is (among other things).

You're right, however, that it's not about being "fair" (only the most naive of you think that - seriously, this isn't 1955). It's about SURVIVAL. The shareholders are incredibly patient. They are also smart. They know that a dirty, long fight today will probably lead to a better more profitable business model for tomorrow. Anyone remember the 12 months following 9/11 - THAT was uncertainty darlings - THIS stupid strike is NOTHING compared to that -- Studio heads have been WELL prepared for this moment and for a long fight. It is NOT about lawyers -- that is your legal ego talking. Again, even if they settle this strike today, they are STILL dealing with the uncertainty of the future and their ability to survive and (here's the BIG one) the fact that they STILL HAVE NO CLUE how to get to that pot of gold on the internet.

characterguy said...

I agree fully with every sentiment having had fought a huge waste management congloms's landfill for over 8 years at the beginning of my writing career. We lost at every stage until we went on the uber offensive as described and made it so painful to the company itself and local politicians at every turn and using the law as well that we got a settlement and rewrote the book on landfill placement as well as financial mitigation for those bearing adverse impacts. Not a sexy cause but the lessons learned are exactly as stated in the article. What did the landfills owner's actually lose over the lifetime of their landfill due to our actions which included creating the environment for them to lose half of their projected waste stream for 25 years (this is same as WGA making deals with both
WWP and others as well as diving into self-created deals with internet parties etc) about $750 million... they chose poorly. We spent about $1000 on stamps and paper. We used WORDS and facts and a relentless offensive to beat them. And we didn't settle with lawyers... we settled with a new CEO's pointman. So WGA leadership... keep on keeping on. The internet WILL be the backbone of every form of media within a short period. And instead 8 cents a DVD it should be 25 cents to $1.00 to come in line with book royalties, music royalties etc. You think for selling 10 million albums Britney gets $300K. Try $10 million. is a movie different from a CD. No. It's entertainment and as stated it represents double box office and last I heard China and India are buying DVD players in droves as the middle class expands. Next time you meet with the AMPTP. Up the ante. Soon enough no matter what they say... their well will begin to run dry. If you don't have content and fresh content and a lot of it... you are toast in the entertainment biz because the world demands lots of fresh content and even more... it has to be quality content and only professional writer's deliver that on a regular and competent basis.

cory said...

This article says that the AMPTP will cave just short of killing pilot season. When is that, approximately?

shortgirl said...

EXT: DESERT - DAY

Screams drown out the squawking of the buzzards and vultures circling overhead. Blowing sand whips over two naked figures helplessly duct taped to the single train tracks. Fire ants are feasting on the juicy unemcumbered parts as JOHN RIDLEY (fictional name, of course) and NICK COUNTER (we could only wish he was) strain at their restraints.
JOHN
Help! Help!

NICK
Help! Help!

JOHN
This isn't what you
promised me Nick.

NICK
When people said you had
no balls Ridley, I didn't
realize until today they
were talking physically.

The point I wanted to stress before my fantasy took over is that the writers have all the leverage and we need to use every avenue available to stop those who have always tried to devalue the creative words and ideas from which they profit handsomely.

The original DVD increase should be put back on the table January 18th. On Feb. 1, the fair and reasonable demands increase .01 per DVD unit and the internet residual increases by a small percentage, with additional increase every two weeks. Anyone who signs before then will enjoy a three year advantage.

The studios and production companies need more content, not less. Period. The old model of TV is over. Year round programming has invaded our culture. If they can't get it on TV, they will turn to web programming and video games. The viewing public are sick of just getting 1st run TV in Sept., Nov., Feb. & May, stuck with the reruns, game shows and reality programs the other months of the year.

One other point I want to make. Politically, the country is waking up to corporate ownership of our lives and laws. Citizens in Iowa & New Hampshire are seeing the effects of this change already and by Super Tuesday, the old mentality of acceptable corporate greed will be on the losing side.

Stay strong Mighty Writers!

cory said...

It's goin' down! I am very eager to see how the these guys (the DGA) do, given all the trouble the WGA has had

DGA's weekend huddle
Guild closer to AMPTP negotiations
By DAVE MCNARYThe DGA is moving toward formal negotiations with the AMPTP, laying the groundwork for talks with informal meetings with moguls.
The guild and the AMPTP had no comment but DGA exec director Jay Roth and negotiating committee chief Gil Cates confabbed over the weekend on the framework for upcoming talks with Disney topper Robert Iger and Fox chief Peter Chernin.

The directors announced on Dec. 13 that they would wait until the end of the year for the WGA to reach an agreement. It's then said repeatedly that it would only announce the start of talks if an "appropriate" framework could be established.

The DGA's expected to focus heavily on new-media compensation issues. It's spent $2 million over the past year in research to back up its proposals.

The DGA contract expires on June 30. It's been under pressure from WGA members to hold off on starting talks but its president Michael Apted has said that the damage from the two-month WGA strike was too significant to wait for the WGA to get back to the table.

The DGA's also indicated that it will arrive at the bargaining table with a proposal that will be narrowly focused on new-media compensation without peripheral issues such as jurisdiction.

Megan said...

Very well-written. I've worked for lawyers for the past seven years, and this is precisely how they work. Stand strong, guys, and you WILL see results.

JimBob said...

My vote has always been to put DVDs back on the table after they pulled the football out from in front of us. In fact, when Patric said, "All deals are off," that's exactly what I thought he meant. I was astonished to hear it wasn't the case. Mucho dinero is going to be made off DVDs in the next three years. Let's think about taking them off the table at the next negotiation, but certainly not this one. The AMPTP has absolutely nothing to complain about if we put them back in play.

buzzearl said...

Great Post, Alfred and Ashley. Thank you for bringing tremendous clarity to AMPTP/Fabriani and Lehane postering of the last 8 weeks.

Throughout the weeks of the Strike, I have constantly attempted to point out that the many Fabriani and Lehane posters on the board wanted nothing more than to paint the WGA Leadership--specifically Patric Verrone and David Young--as "militants", who were being "unreasonable."

Nothing could be further from the truth.

I believe that Young and Verrone are right on the money, and doing an excellent job of ensuring the future for all of the creative talent--not just the WGA-- within the entertainment industry.

So when you see the 35 additonal posts in this comment section saying that the WGA is "broken", "unreasonable" or my favorite-- "militants"-- just know that the Fabriani and Lehane employees have come to work this A.M.

STAY STRONG WGA MEMBERS!

A WGA Supporter

littlehorn said...

That's an excellent and very informing article! You made my day sir.

createORdie said...

a masterful legal-beagle turn of words. i couldn't be prouder to call myself a hollywood screenwriter, couldn't be prouder to tote my guild card around with me everywhere i go and cou;dn't be more energized to continue to show up through the next phase of this obviously changing battle. they are cracking young scribes, let's keep the heat on!

kimmy2007 said...

If its in the hands of the lawyers why is everyone else saying its each sides fault? Lawyers in my opinion are only out for the money, while picketing and raising heck is what they feel is good, I feel that is really not doing much good now is it? Blaming each other for walking out or not wanting to talk is so lame .If either side wants this strike over soon, they will give up the crap they are slinging and get back to talking. it does not matter what was done before or what was offered before from either side, the question is will anyone want this strike to end before the Oscsrs. Now the Golden Globes probably will not be on the air because the WGA thinks that by saying no one will show that will make the network not air it, well I call that blackmail! Why not have the actors there in support of the nominated writer's and tell everyone why there is a strike ? Would'nt that be more productive than telling all the actors to stay away? I guess the WGA wants to cause more trouble for themselves . Insulting the head of the AMPTP is not doing anyone any good either . He is wrong for walking out , so is the WGA for making them walk , but its so does not matter anymore ,people are losing money , studios are losing money, tv is really sucky with all these reality shows , if its now in the lawyers hands , go and talk to the lawyers and compromise , have a thirty day colling off period where all shows go back and only the most important people keep talking . DO something to stop all this back and forth. If this stirke goes too much longer I think that everyone involved should get fired like the air traffic controllers did , then they will listen!

Rick Ellis said...

I've written before that one thing I think the WGA should be more proactive on is the business side of the story.

When it comes to these big media companies, bad press and public opinion is nearly irrelevant. What matters is the bottom line, and when it becomes cheaper to settle the strike than to continue, the negotiations will get serious.

This requires press releases noting year-to-year ratings comparisons (so when a network touts the success of some reality show in the press, someone is there to note the drop from the same period in previous years).

It requires reaching out to major stockholders and advertisers, and working behind the scenes to encourage boycotts of sister businesses. (The road to ABC almost always runs through the themeparks and kids brands).

I think sometimes Hollywood is still stuck back in the times when disputes could be settled by drawing on personal relationships and common interests. That day is long gone, which I suspect the DGA will sadly find out the hard way.

This strike is more like the coal miners strikes or some of the worst auto worker struggles. It's almost some important core issues, and it's not going to solved without a lot more pain.

And it's also going to mean a lot of collateral damage to non-writers. In the same way that workers at auto parts plants find themselves out of work, a lot of crew members are going to get hurt.

But as it is in the case of any strike, it's not the fault of the strikers. It's a painful side effect of working in any industry where labor negotiations turn nasty.

cory said...

Is this what all the studios are going to start doing? This is part of an article from T.V. Guide.

Michael C. Hall by Peter Iovino/ShowtimeCBS is bringing cable's favorite serial killer to broadcast TV. Starting Feb. 17, the first season of Showtime's Dexter will air Sundays at 10 on the Eye network. Dexter will become the first pay cable show ever to get a full-season broadcast run on CBS, as the network's supply of scripted programs is being depleted by the WGA strike.

Sarah said...

I have a question: how many striking writers have contributed to the MPTV Work Stoppage Relief fund? If not, why?

Please remember who your strike is hurting most of all: the crew. These people didn't do anything to you. You have no right to punish them.

Don't try to blame this on the networks or the studios. You made the decision to stop working. Not the studios. Not the networks. You.

Your actions cost these people their jobs. What are you doing to help them?

Before you ask: yes, I did contribute. And I make less money than most of these workers. If I can afford it, YOU can damn well pony up a few hundred bucks to the fund too.

aburtch said...

This is a great post. It's dead on in it's assessment of how negotiations go down. The scenario the poster has outlined is identical to the one the AMPTP is currently using. Take heed...stay strong.

hollarback said...

Sarah, please point your anger elsewhere. The writers have been out of work longer than anyone else. No one goes into entertainment thinking that it is a stable work place. It isn't. It never ever was. Everyone involved is a big boy or girl, and everyone knew that this strike was coming.

The studios fired and laid off the crew. Not the writers. If the studios and networks had any intention of settling this quickly in a business-like manner they would have kept people on so that they could hit the ground running when production resumed. But they fired them - to punish the WGA for calling a strike. Tell the truth.

The writers should work with no contract? Why? This is a legal and justified strike. Guess what? Strikes happen. Stop assigning blame, or at the very least, point the finger at the correct party. Last I heard, the WGA didn't sign the crews paychecks.

By the way, what does this demand of yours (which reads a bit rudely) have to do with the actual topic of the post, ie the legal maneuvering of the involved parties? Charity is a private matter, please don't harangue people about it. It serves no purpose.

smoothlatinkid said...

"However, if the DGA has an easier time in their negotiations with the AMPTP, then this argument does not hold any water, right?"

Wrong, Cory. The DGA notoriously capitulates to the AMPTP, so no, just because our sister guild is willing to accept a deal that is unfavorable doesn't mean the WGA should. (Look to 1988 as the example why not.)

"Don't try to blame this on the networks or the studios. You made the decision to stop working. Not the studios. Not the networks. You. Your actions cost these people their jobs. What are you doing to help them?"

Sarah, we struck because the AMPTP was looking to screw us and we were left with the choice of accepting a bad deal or striking. Your inability or refusal to see the entire picture and your knee-jerk recitation of Tom Short's talking points indicates you're either woefully uninformed, or intentionally blind.

It's well-documented here how the writers feel towards their crews and whose fault this strike really is. Sell your guilt elsewhere.

Sunfire said...

What is supposedly wrong with the site? I keep hearing references in the podcast but I tuned in partway. Everything seems normal to me-- are you not able to post new articles?

samwright23 said...

I'm glad that people are getting the word out and I'm VERY glad that the WGA seems to be staning together.

Good job, and good job with the Golden Globes...I call it a minor victory for the "good guys"

buzzearl said...

"Cory": I'm interested that you seem to want to repeatedly post all kinds of second-hand garbage from 8th tier sources in the comment section of this post.

I see that you, Andres, and your pal "Sarah" (yes, Sarah, with your "don't hurt the little guy" b.s. post--which we have alll heard a million times- it couldn't be more obvious that you are reading from your Fabrication and Liar-hane 1/07/08 script as to what you should post all over United Hollywood and Deadline Hollywood) have clocked in for F & L this A.M.

So Sarah, how much did your employers, AMPTP/F & L, contribute to the Fund?

3 Trolls . . and counting.

BuzzEarl

jb_dean said...

sarah, no offense but that is a bleeding heart argument. All strikes hurt other workers - one way or another - and it's not a valid reason to not strike. One day, Heaven forbid, those people you say are being hurt now by this strike, may need to strike and they may cause the writers (or other groups) to have to be laid off but that's the power of a strike. It brings the wheels of progress to a screeching halt. You seem to miss the purpose of a union and the usage of a strike. Why have a union if you're going to just cave in when you don't get what it rightfully yours? They're not asking for what they *want* but what is theirs ... pay for work they have done that the studios get money from and that the studios don't want to pay the writers for. This is also a strong reason why the AMPTP wants to break the WGA. Without a union these same writers would have no collective bargaining power and would end up either getting fired when they made their individual demands or having to go around, on their own, to gather up all their fellow-writers to join them in a collective walk-out with no union to back them and make sure that they get what they deserve.

If you're not for this strike, then you need to not ever get into anything that is Union run because unions will strike when they are getting screwed over.

If you're so concerned for those workers affected but not in WGA, then let the AMPTP know to end this strike and give the writers their fair share and give it to them for the things they create ... which must include DVD & New Media. Those are the people that are causing the others to be out of work, not the strikers that have to do this in order to get what is rightfully theirs.

rene said...

I am so pumped right now. I can see us getting back to work no later than February 2009. We are gonna win this!

VDOVault said...

The only thing this legally trained mind can add to Alfredo's exhaustive analysis comes with an understanding of bargaining styles.

The AMPTP is playing on something that Japanese negotiators taught countries around the world back in the 1980s and that it is a cultural weakness of Americans in negotiations to want to keep talking especially when they are at the table with negotiatiors who remain silent. It is in those silences that are uncomfortable to Americans that the Japanese business executives extracted a lot of concessions from American executives that frankly they didn't think the Americans would give up.

So it has been with the AMPTP and the WGA...the AMPTP says little while the nervous WGA gave up all kinds of goodies in the first rounds of negotiations (like increased DVD residuals).

My advice is for the DGA (who has just started talking to the AMPTP) would be to say as little as possible to the AMPTP but keep dangling the prospect of a deal out there while the AMPTP (which knows it needs a deal with DGA especially to save face with shareholders and 'lord' over the WGA for ego reasons). The DGA can have a lot of fun at the table with the AMPTP (turnabout is fair play), let them ride a rollercoaster of emotions and not do anything till June 30th if they feel like it because the DGA really isn't in a rush.

PS The fact that the DGA invested six figures of cash money and at least a year into figuring out where the money is on the Internet says to me they're not going to rush into a bad deal (or the people who put up the money for the study are going to be very pissed about the squandering of the investment in their negotiations preparations).

Nice piece of analysis Counselor Barrios

drinkof said...

Good comment, and thread.

An additional note, though, about attitude. No problem with raising the ante (DVD's back on table, all that), or with keeping the heat on; picketing is good.

But there's something to be said for bemusement. What amounts to a 'yeah, yeah, get back to me when you're serious' attitude. That says 'I know you have to go through this long stroll, but I have other stuff to do today. Just let me know when the real day gets here. And, by the way, I can wait a lot longer than you can.'

Cool. Bemused. Saddened that the other guys can't get it together. The best lawyers / negotiators know all about that.

Per the original comment, of course, you need to find ways to make sure the CEO's know you're taking that attitude; the lawyers sure won't tell them. Find out where they're lunching, and have a hilarious table next to them? Ahead of them on the golf course, looking like writing today would just get in the way of your game? Front row, or in the beer line, at the Lakers game?

Attitude!

rajugird said...

The strike was not a smart move. Only time will make the writers realize this.

Writers have put their own jobs at risk without any chance to win the strike.

I'm sorry for the writers...

jb_dean said...

rajugird, what would have been a smart move? To renew their contact and get screwed out of payment for their work? I seriously can't believe how many people say this ... it truly has to be ignorance on how a union works, how a strike works, and how collective bargaining works.

They made the right move because the only other one would have been to keep getting jilted out of compensation that is rightfully theirs and will rightfully be that of all future WGA members.

The internet is the future but that future is NOW. For the AMPTP to tell WGA that they want the first year online to be FREE and to only give a writer $250 (one-time-payment) after that is more than absurd! Who watches eppys online a year later? The DVD sets are out by then ... but wait. That's right, the AMPTP also wants to screw the writers out of that 2.5 pennies more their asking for on DVD sales.

Yeah, striking was such a bad idea. Don't under estimate these people. They will not lose out and the suffering they're going through now, they believe (as do we that support them) is well worth it for them now and for all future writers.

I SUPPORT THE STRIKE 110%!

jb_dean said...

This strike keeps bringing to mind a court case that The Walt Disney Company had with Ms. Peggy Lee. Ms. Lee was the voice (and signer) of the 2 Siamese cats in Lady and the Tramp. It seemed that when the film was made the legal blah-blah didn't mention VHS. (Gee, wonder why? VHS wasn't around for home use then.) So, when the film was released on VHS Disney didn't pay Ms. Lee. But Ms. Lee wasn't the sleeping old lady that Disney took her for (no disrespect meant) and her lawyers took Disney to court. The judge basically said, 'Who cares if VHS wasn't mentioned by word in her contract? She sang the song, she spoke the words ... pay her!'

And so it is with this situation. Who cares if the AMPTP doesn't know how much money will be earned online? Who cares if DVD sales go on or some other medium takes their place? Who cares ... who cares! They wrote the words ... PAY THEM!

josh said...

Great article! Thank you, Alfredo, and all the responders!

I'm an organizer for a service workers' union and we frequently deal with many of these questions.

Union-busting lawyers are all the rage these days, and Alfredo is right - their whole purpose is to insulate the client.

Our job, then, is to unmask the client, and to apply pressure -wherever- they go.

Keep up the good work!

p.s. here's an interesting article about union-busting lawyers:

The New Face of Unionbusting
by David Bacon
http://dbacon.igc.org/Unions/02ubust1.htm

cory said...

BuzzEarl, I don't know if we can say definitively what is "second-hand garbage" or what are "8th-tier sources". I just think it's interesting to get different takes on this whole thing. Like this article I lifted saying that writers are about to make another side deal with another production company. It's looking like you guys are about to win this thing.

Writer's Strike: Now the Weinsteins Are Looking to Deal
Posted Jan 7th 2008 9:02PM by Kim Voynar
Filed under: Celebrities and Controversy, Scripts, Newsstand, Politics

Well, well ... seems the scales may finally be tipping in the WGA's favor here. First the fall of the Golden Globes, and then the news that Tom Cruise and Paula Wagner's United Artists were making a side deal with the WGA similar to the deal struck earlier with David Letterman's Worldwide Pants. Now the Weinsteins, according to this story in the New York Post, are also close to making a "me too" deal, and Deadline Hollywood Daily is also tossing out rumors of Lionsgate and Lucasfilm coming around.

Neither Cruise nor the Weinsteins are stupid; making independent deals with the WGA can only give them a huge advantage over the major studios, and the more the independents strike deals, the more like arrogant assholes rich guys the moguls look. And you've gotta love any deal that makes Tom Cruise and the Weinsteins look like the nicest guys in the room, right?

It seems as though the WGAs strategy of making deals with the independent studios might not have been such a bad idea after all ... could this signal the beginning of the end of the writer's strike? Stay tuned ...

jb_dean said...

Cory, you know when I first learned of the deal Letterman and WWP made I was ticked off. I thought of the poor guys and gals still walking the picket lines that didn't have that option but many of my fellow writer supports tried to show me the light but I was stubborn. LOL But with this latest deal I now get it! It is fantastic and it does make those suits look like the greedy bastids that they are. I am hoping that more individual deals will be struck and the big studios will start to see not only the talented writers going *over there* but, surely, the talented actors, director and producers, too as they follow those that pen the words. :D

Brandon Laraby said...

This is a fantastic article!

It's articles like this that fill me with hope - brutally honest "this is where we are right now" pieces that inspire and serve to remind us all what this fight's about.

Thank you very much Alfredo!

Cheers,
Brandon

ntx420 said...

what if i know how to end the writers strike?