appellant's opening brief: ncopm v. brown et al

Case No. 13-55545

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________________________________________________________

National Conference of Personal Managers, Inc.

Plaintiff-Appellant

vs.

Edmund G. Brown, Jr. et al

Defendants–Appellees

__________________________________________________________

Appeal from United States District Court, Southern District of California

District Court Case Number CV 12-09620

The Honorable Dean D. Pregerson, Judge, Presiding

__________________________________________________________

APPELLANT’S OPENING BRIEF

__________________________________________________________

STEPHEN F. ROHDE (SBN 51446) RYAN H. FOWLER (SBN 227729)

ROHDE & VICTOROFF CHRISTOPHER B. GOOD (SBN 232722)

1880 Century Park East, Suite 411 FRANK W. FERGUSON, II (SBN 211694)

Los Angeles, CA 90067 FOWLER & GOOD LLP

Tel: (310) 277-1482 15303 Ventura Boulevard, 9th Floor

Fax: (310) 277-1485 Sherman Oaks, CA 91403

Tel: (818) 302-3480

Fax: (818) 279-2436

Attorneys for Appellant National Conference of Personal Managers, Inc.

Case: 13-55545 10/08/2013 ID: 8814615 DktEntry: 9-1 Page: 1 of 64

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Appellant

is a Nevada based private not-for-profit corporation, with no subsidiaries or

affiliates that has issued shares to the public.


iii

TABLE OF CONTENTS

I. STATEMENT OF JURISDICTION ...................................................................... 1

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW ................................. 2

III. STATEMENT OF THE CASE ............................................................................ 2

IV. PROCEDURAL HISTORY ................................................................................ 3

V. STATEMENT OF FACTS AND SUMMARY OF COMPLAINT ..................... 4

VI. SUMMARY OF ARGUMENT ........................................................................... 7

VII. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING

LEAVE TO AMEND................................................................................................. 9

VIII. STANDARD OF REVIEW ............................................................................12

IX. ARGUMENT .....................................................................................................13

A. THE DISTRICT COURT ERRED IN FINDING THE TAA IS NOT

UNCONSTITUTIONALLY VAGUE..................................................................13

1. The TAA Is Unclear As To What Activities It Regulates ..........................13

2. The TAA Lacks Clarity As To Who Is Regulated ......................................15

3 The Ambiguity of the TAA Has Resulted In Conflicting And Arbitrary

Determinations by the Commissioner ...............................................................20

4 The TAA As Applied Exceeds Commissioner’s Statutory Authority .........24

5. The Commissioner Selective Enforcement of the TAA Violates The Equal

Protection Clause Of The Fourteenth Amendment ...........................................26

B. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF HAS NOT

STATED A CLAIM FOR INVOLUNTARY SERVITUDE ...............................27


iv

C. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF DID NOT

STATE A CLAIM FOR VIOLATION OF THE COMMERCE CLAUSE .........30

D. THE DISTRICT COURT ERRED IN FINDING THE TAA REGULATES

CONDUCT AND NOT SPEECH…………………………… ............................39

E. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF FAILED TO

STATE A CLAIM FOR A VIOLATION OF THE CONTRACT CLAUSE OF

THE CONSTITUTION ........................................................................................43

F. THE DISTRICT COURT ERRED BY NOT CONSIDERING

PLAINTIFF’S COMPLAINT IN ITS ENTIRETY..............................................46

X. CONCLUSION .................................................................................................488


v

TABLE OF AUTHORITIES

SUPREME COURT CASES

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ................................................................13

Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104 (1991) ...18

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) .................................................32

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ................................................41

BMW of America v. Gore, 517 U.S. 559 (1995) ......................................................24

Board of Trustees v. Fox, 492 U.S. 469 (1989) .......................................................43

Central Hudson Gas & Electric Co. v. Public Service Comm’n.,

447 U.S. 557 (1980) ....................................................................................... 42, 43

Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003) ...............................................31

City of Chicago v. Morales, 527 U.S. 41 (1999) .....................................................20

Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992) ......................................15

Costello v. United States, 365 U.S. 265 (1961) .......................................................38

Crutcher v. Commonwealth of Kentucky, 141 U.S. 47 (1891) ................................37

Energy Reserves Group v. Kansas Power & Light, 459 U.S. 400 (1983) ...............44

Foman v. Davis, 371 U.S. 178 (1962) .....................................................................10

Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) ..................................40

Gonzales v. Raich, 545 U.S. 1 (2005) ......................................................................31

Granholm v Heald, 544 U.S. 460 (2005) .................................................................36


vi

Grayned v City of Rockford, 408 U.S. 104 (1972) ..................................................19

H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949)....................................36

Halliburton Oil Well Cementing Co.v. Reily, 373 U.S. 64 (1963) ..........................36

Ibanez v. Florida Dept. of Business and Professional Regulation, 512, U.S. 136

(1994) ....................................................................................................................41

Interstate Circuit, Inc. v City of Dallas, 390 U.S. 676 (1968).................................16

Iselin v. United States, 270 U.S. 245 (1926)............................................................32

Kolender v. Lawson, 461 U.S. 352 (1983) ...............................................................20

Lambert v. California, 355 U.S. 225 (1957) ............................................................24

Lanzetta v. New Jersey, 306 U.S. 451 (1939) ..........................................................16

License Cases, 46 U.S. 504 (1847) ..........................................................................32

McCall v. People of The State of California, 136 U.S. 104 (1890) .........................37

Oneale v. Thornton, 10 U. S. (6 Cranch) 53, 68 (1810) ..........................................14

Oregon Waste Sys., Inc. v. Dep’t. of Envir. Quality of Oregon,

511 U.S. 93 (1994) ................................................................................................36

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) ....................................................36

Robertson v. Baldwin, 165 US 275 (1897) ..............................................................28

Rubin v. United States, 449 U. S. 424 (1981) ..........................................................14

Smith v. Gougen, 415 U.S. 566 (1972) ....................................................................20

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U. S. 308 (2007) ............. 9, 13, 46

U.S. v. Evans, 333 U.S. 483 (1948) ……………………………………………24


vii

United States v. Eaton, 144 U.S. 677 (1892) ...........................................................25

United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) ...............................42

United States v. Evans, 333 U.S. 483 (1948) .................................................... 16, 24

United States v. Goldenberg, 168 U. S. 95 (1897) ..................................................14

United States v. Kozminski, 487 U.S. 931 (1988) ................................................7, 28

United States v. Lopez, 514 U.S. 549 (1995) ...........................................................30

United States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989) .........................14

United States v. Schubert, 348 U.S. 222 (1955) ......................................................31

Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S.

748 (1976) ……………………………………………………………………….40

FEDERAL CASES

Astaire v. Best Film, 116 F.3d 1297 (1997) .............................................................14

Balistreri v. Pacifica Police Dept., 901 F.2d 696, 701 (9th Cir.1990) ....................11

Chang v. Chen, 80 F.3d 1293 (9th Cir.1996) ................................................... 11, 12

City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440 (9th Cir. 2011) ........10

DCD Programs, Ltd. v. Leighton, 833 F.2d 183 (9th Cir.1987) .............................10

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003).................10

Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir. 1997) ........................... 12, 13

Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1292

(9th Cir.1983) ........................................................................................................10

Krainski v. Nevada ex rel. Bd. of Regents of NV. System of Higher Educ., 616 F.3d

963 (9th Cir.2010) .................................................................................................11


viii

Lopez v. Smith, 203 F.3d 1122 (9th Cir.2000) .........................................................11

Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242 (5th Cir.1997) ..............................10

LSO, Ltd. v. Stroh, 205 F.3d 1146 (9th Cir. 2000) ..................................................13

Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708 (9th Cir.2001) ...............10

Pacific Merchant Shipping Association v. Goldstene, 639 F.3d 1154 (9th Cir.

2011) .....................................................................................................................35

Palatine Ins. Co. v. Ewing et al, 92 Fed 111 98 (1899) ...........................................45

Schwartz v. Northern Life Ins. Co., 25 F.2d 555 (9th Cir. 1928) ............................37

Shwarz v. United States, 234 F.3d 428 (9th Cir. 2000) ...........................................13

Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) ..........................................................12

U.S. v. Sutcliffe, 505 F.3d 944 (9th Circuit, 2007)...................................................31

United States v. Clayton, 108 F.3d 1114 (9th Cir. 1997)) .......................................31

United States v. Redwood City, 640 F.2d 963 (9th Cir. 1981) ................................12

Walling v. Peavy Wilson Lumber Co., 49 F. Supp. 846 (1943) ...............................16

Ward v. Maryland, 12 Wall. 418 (1871) ..................................................................36

Western Union Telegraph Company v. State of Kansas on the Relation of Coleman,

216 U.S. 1 (1910) ..................................................................................................37

Wicks v. Southern Pacific Co., 231 F. 2d 130 (9th Cir. 1956) ................................28


ix

STATE CASES

Barajas v City of Anaheim, 15 Cal.App. 4th 1808 (1993) .......................................25

Calwood Structures v. Herskovic, 105 Cal.App.3d 519 (1980) ..............................45

Dyna-Med, Inc. v. Fair Employment & Housing Comm., 43 Cal. 3d 1385 (1987) .25

Felix v. Zlotoff, 90 Cal.App.3d 155 (1979) ..............................................................45

Kugler v. Yocum, 69 Cal.2d 371 (1968) ..................................................................20

Marathon Entertainment v. Blasi, 42 Cal. 4th 974 (2008) ............... 5, 16, 20, 29, 42

Matthau v. Superior Court, 151 Cal. App. 4th 593 (2007) .....................................29

Morris v. Williams, 67 Cal 2d 733 (1967) ...............................................................25

Norwood v. Judd, 93 Cal.App.2d 276 (1949) ..........................................................45

Quintano v. Mercury Cas. Co., 11 Cal.4th 1049 (1995) .........................................14

Royal Co. Auctioneers, Inc. v. Coast Printing Equipment Co., 138 Cal.App.3d 868

(1987) ....................................................................................................................25

State Board of Education v. Honig, 13 Cal.App.4th 720 (1993) .............................20

Styne v. Stevens, 26 Cal. 4th 42 (2001) ....................................................................42

Southfield v. Barrett, 13 Cal.App.3d 290 (1970) .............................................. 44, 45

Vitek Inc. v. Alvarado Ice Palace, Inc., 34 Cal.App.3d 586 (1973) ........................45

Wachs v. Curry, 13 Cal.App. 4th 616 (1993) ..........................................................19

Wolff v. Fox, 68 Cal. App. 3d 280 (1977) ................................................................24

Wood v. Krepps, 168 Cal 382 (1914) ................................................................ 25, 45

Yoo v. Robi, 126 Cal. App.4th 1089 (2005) .............................................................38


x

STATUTES

28 U.S.C. 1291 ........................................................................................................... 1

28 U.S.C. 1331 ........................................................................................................... 1

28 U.S.C. 2201 .......................................................................................................1, 2

28 U.S.C. 2202 .......................................................................................................1, 2

42 U.S.C. 1983 .......................................................................................................1, 2

CA BPC § 5000 et seq .............................................................................................16

CA BPC §§ 2000 et seq ...........................................................................................16

CA BPC §§ 2900 et seq ...........................................................................................16

CA BPC §§ 4000 et seq ...........................................................................................16

CA BPC §§ 5615 et seq ...........................................................................................16

CA BPC §§ 6980 et seq ...........................................................................................16

CA BPC §§ 7000 et seq ...........................................................................................16

CA BPC 7065.4 ........................................................................................................33

CA BPC§§ 1200 et seq ............................................................................................16

CA Labor Code § 1700 ..................................................................................... 16, 17

CA Labor Code § 1700.10 .......................................................................................18

CA Labor Code § 1700.12 (b) .................................................................................32

CA Labor Code § 1700.15 .......................................................................................18

CA Labor Code § 1700.19 (b) .................................................................................32


xi

CA Labor Code § 1700.20 .......................................................................................32

CA Labor Code § 1700.23 .......................................................................................18

CA Labor Code § 1700.24 .......................................................................................18

CA Labor Code § 1700.4(a) .......................................................................... 4, 13, 15

CA Labor Code § 1700.41 .......................................................................................18

CA Labor Code § 1700.44 (d) .................................................................................35

CA Labor Code § 1700.44(b) ..................................................................................28

CA Labor Code § 1700.5 .....................................................................................4, 15

CA Labor Code §§ 1700 et seq. (Talent Agencies Act) ............................................ 2

CA Labor Code §§ 1700.25-27 ................................................................................18

California Education Code, Sections 44252, 44253.3, 44257, 44274.2, 44279.1,

44280, 44281, and 44282 ......................................................................................33

Title 5, California Code of Regulations, Section 80413.3 .......................................33

OTHER AUTHORITIES

Albert, Taking Away an Artist’s “Get Out of Jail Free” Card: Making Changes

and Applying Basic Contract Principles to California’s Talent Agencies Act,

Pierce L. Rev., Vol. 8, No. 3 (2010). ....................................................................24

American Federation of Television and Radio Artists, Regs. Governing Agents,

rule 12-C ...............................................................................................................27

CA Talent Agency License Database ......................................................................34

Devlin, Reconciling the Controversies Surrounding Lawyers, Managers, and

Agents Participating in California's Entertainment Industry, Pepperdine L. Rev.,

Vol. 28, 381 (2001). ..............................................................................................23


xii

Johnson & Lang, The Personal Manager in the California Entertainment Industry,

52. S. Cal. L. Rev. 375 (1979) ..............................................................................23

LaFave & Scott, Substantive Criminal Law 1.2(d) (1986); .....................................24

O’Brien, Regulation of Attorneys Under California’s Talent Agencies Act; A

Tautological Approach to Protecting Artists, CA. L. Rev., Vol. 80, Is. 2, 492

(1992). ...................................................................................................................23

Robertson, Don’t Bite The Hand That Feeds: A Call For A Return To An Equitable

Talent Agencies Act Standard, Hastings Comm. & Ent. L. J., 223, 233 (1997). .23

Screen Actors Guild, Codified Agency Regs., Rule 16(g) ......................................27

Zarin, The California Controversy over Procuring Employment: A Case for the

Personal Managers Act, Fordham Intell. Prop. Media & Ent. L.J., Vol. 7 Is. 2,

943 (1997). ............................................................................................................42

Zelinski, Conflicts in the New Hollywood, So. Ca. L. Rev., Vol. 76:979, pp. 989-

990 (2003) .............................................................................................................28

RULES

CA Rules of Court 9.47, 9.48 ..................................................................................31

Fed.R.App.P. 26.1 ..................................................................................................... ii

Fed.R.App.P. 4(a)(1) .................................................................................................. 1

Fed.R.Civ.P. 12 ........................................................................................................33

Fed.R.Civ.P. 12(b)(1) ................................................................................................. 3

Fed.R.Civ.P. 12(b)(6) .......................................................................... 3, 9, 12, 32, 46

Fed.R.Civ.P. 15 ........................................................................................................10

Fed.R.Civ.P. 15(a) ....................................................................................................10


xiii

Fed.R.Civ.P. 57 .......................................................................................................... 3

Fed.R.Civ.P. 65 .......................................................................................................... 3

CONSTITUTIONAL PROVISIONS

Article I, Section 10 (Contracts Clause) ............................................... 2, 3, 9, 44, 46

Article I, Section 8 (Commerce Clause) ............................................... 2, 3, 8, 38, 39

Fifth Amendment ....................................................................................................... 9

First Amendment ............................................................................................. 2, 3, 42

Fourteenth Amendment ................................................................................ 3, 26, 27

Tenth Amendment ................................................................................................8, 32

Thirteenth Amendment ................................................................... 2, 3, 7, 27, 28, 29

LABOR COMMISSION DETERMINATIONS

Baker v. Bash, (TAC 12-96) ....................................................................................38

Behr v Dauer And Assoc., TAC 21-00 .....................................................................21

Billy Blanks Jr. v. Ricco, (TAC 7163) .....................................................................27

Blasi v. Marathon Entertainment, (TAC 15-03)......................................................22

Creative Artists Group v. Jennifer O’Dell, (TAC 26-99) ........................................21

Gittleman v Karolat, (TAC 24-02) ..........................................................................22

James Breuer v. Top Draw Entertainment, Inc.; Antonio U. Camacho,

(TAC 8-95) ............................................................................................................18

James Breuer v. Top Drawer Entertainment, (TAC 18-95) ....................................39


xiv

Jewel v. Inga Vainshtein, (TAC 02-99) ...................................................................22

Kelly Garner vs. Gillaroos, David Delorenzo, David Gillaroos, Chris Wood,

(TAC 1994-65)......................................................................................................39

Krutonog v. Chapman, (TAC 3351) ........................................................................26

Macy Gray v. Lori Leve Management, (TAC 18-00) ..............................................22

Marathon Entertainment v. Nia Vardalos, (TAC 02-03) ........................................26

Martha Robi v. Howard Wolf, (TAC 29-00) ...........................................................38

Nick Sevano v. Artistic Productions, Inc., (TAC 8-93) ...........................................18

Park v. Deftones, (TAC 9-97) ..................................................................................22

Parker Posey v. Lita Richardson, (TAC 7-02) ........................................................21

Thomas Haden Church v. Ross Brown, (TAC 52-92) .............................................18

Tool v. Larrikin Management (TAC-35-01) ............................................................21

Transeau v. 3 Artist Mgmt., (TAC 7306) .................................................................21

Wesley Snipes v. Delores Robinson, (TAC 36-96) ..................................................21


1

I. STATEMENT OF JURISDICTION

The District Court has jurisdiction of this action under to 28 U.S.C. 1331, 28

U.S.C. §§2201 and 2202 and 42 U.S.C. 1983. This Court has jurisdiction under

28 U.S.C. 1291. The District Court Order (Excerpt of Record (“ER”), Vol. I, p.1)

entered March 5, 2013, is the final appealable order in this action. Plaintiff filed a

Notice of Appeal on April 2, 2013 (ER, Vol. II, p.18). This appeal is timely

pursuant to Fed.R.App.P. 4(a)(1).


2

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW

The District Court’s dismissal with prejudice, without leave to amend, of

Appellant National Conference of Personal Managers’ (“NCOPM”) Complaint

for failure to state a claim raises the following issues:

1. Whether NCOPM stated a claim that California Talent Agencies

Act (“the TAA”) is unconstitutionally vague on its face.

2. Whether NCOPM stated a claim that enforcement of the TAA

regulates speech and violates the First Amendment rights of

Plaintiff and its members, as applied.

3. Whether NCOPM stated a claim for involuntary servitude in

violation of the Thirteenth Amendment.

4. Whether NCOPM stated a claim that the TAA violates the

Commerce Clause of the U. S. Constitution.

5. Whether NCOPM stated a claim that enforcement of the TAA

violates the Contracts Clause of the U. S. Constitution.

6. Whether the District Court abused its discretion by dismissing

NCOPM’s Complaint without granting leave to amend.

III. STATEMENT OF THE CASE

NCOPM’s Complaint presented actionable and plausible facial and as

applied constitutional challenges to California Labor Code §1700 et seq., known

as the California Talent Agencies Act (ER, Vol. IV, p. 174, ¶ 1) arising under 42

U.S.C. 1983 and the United States Constitution. (ER, Vol. IV, p. 174, ¶ 5)

NCOPM seeks declaratory relief as authorized by 28 U.S.C. §§2201 and 2202


3

and by Rules 57 and 65 of the Federal Rules of Civil Procedure. (ER, Vol. IV,

pp. 175-176, ¶ 6)

Plaintiff-Appellant NCOPM, a Nevada not-for-profit corporation, is a

national trade association of individuals employed in the occupation of personal

management, who manage and represent talent engaged in entertainment, media

and the performing arts. (ER, Vol. IV, p. 175, ¶ 10)

Defendants-Appellees are Edmund G. Brown, Jr., Governor of the State of

California; Kamala D. Harris, Attorney General of the State of California; and

Julie A. Su, California Labor Commissioner, all in their official capacities. (ER,

Vol. IV, p. 176, ¶ 12-14)

The Complaint alleges NCOPM’s constitutional rights and the constitutional

rights of its members are violated by Appellees’ interpretation and enforcement

of the TAA in violation of Article I, Sections 8 and 10, the First Amendment, the

Thirteenth Amendment and the Due Process and Equal Protection Clauses of the

Fourteenth Amendment of the U.S. Constitution. (ER, Vol. IV, p. 174, ¶ 2)

IV. PROCEDURAL HISTORY

On November 9, 2012, NCOPM filed its Complaint. The Complaint was

never amended. On January 11, 2013, Appellees filed a Motion To Dismiss

pursuant to FRCP Rules 12(b)(1) and 12(b)(6), (ER, Vol. IV, p. 141:5-14) On

March 5, 2013, the District Court issued its Order finding:

1. Plaintiff likely has standing; (ER, Vol. I, p. 5, ¶¶ 15-16)

2. The Labor Commissioner was likely the appropriate party to sue

for her non-adjudicatory acts; (ER, Vol. I, p. 5, ¶¶ 6-18)

3. The Governor and Attorney General likely have sovereign

immunity. (ER, Vol. I, p. 5, ¶¶18-19)

4. Plaintiff failed to state a claim. (ER, Vol. I, p. 5, ¶¶ 6-18)


4

5. Because any amendment to the Complaint would be futile, the

Motion to Dismiss was granted with prejudice. (ER, Vol. I, p. 5, ¶¶

15-16)

Plaintiff filed a timely Notice of Appeal on April 2, 2013. (ER, Vol. II, p.

18)

V. STATEMENT OF FACTS AND SUMMARY OF COMPLAINT

Labor Code §1700.5 states: “No person shall engage in or carry on the

occupation of a talent agency without first procuring a license therefor from the

Labor Commissioner.”

Labor Code §1700.4(a) states: “‘Talent agency’ means a person or

corporation who engages in the occupation of procuring, offering, promising, or

attempting to procure employment or engagements for an artist or artists, except

that the activities of procuring, offering, or promising to procure recording

contracts for an artist or artists shall not of itself subject a person or corporation

to regulation and licensing under this chapter. Talent agencies may, in addition,

counsel or direct artists in the development of their professional careers.”

The TAA has no provisions expressly reserving any of the three defining

activities of a talent agent to licensees nor any notice of consequences should

non-licensees engage in any such activity and/or occupation of talent agent.

The Complaint arose from a decades-long controversy:

“The state Legislature has grappled with the procurement of

employment in the entertainment industry for decades. The ongoing

regulatory tension comes from the attempt to simultaneously govern

personal managers and talent agents - professions that overlap.

Managers often have no choice but to seek employment for clients who

are unable to get licensed agents.


5

The enactment of the TAA in 1978 established the current

regulatory framework. The growing concern was the attempt to

bifurcate the roles and regulation of ‘personal managers’ and ‘talent

agents.’ The TAA aimed to clarify this distinction by redefining ‘artists'

managers’ as ‘talent agents.’ According to the TAA, talent agents are

individuals engaged in the occupation of procuring, offering, promising

or attempting to procure employment for an artist. Personal managers,

in theory, act strictly as coordinators and advisors for an artist's career

opportunities. The TAA establishes that no person can act as a ‘talent

agent’ without first obtaining a license from the labor commissioner.

A disgruntled artist believing a personal manager has violated the

TAA can file a "petition to determine controversy" with the labor

commissioner, and the decision then may be tried de novo in superior

court …

Until 2008, the vast majority of claims resulted in management

contracts being voided ab initio and all earned commissions being

forfeited or, if previously paid, ordered disgorged. That year, the state

Supreme Court decided Marathon Entertainment v. Blasi, 42 Cal. 4th

974 (2008), which held that while fully voiding the parties' contract is

an available remedy, the labor commissioner has discretion to apply the

doctrine of severability to enforce the remaining lawful portions of

management agreements…

Despite the increasing use of severability, however, the

commissioner still voids management contracts ab initio…” (Johnson

& Mueller, Talent Agency the TAA Survives Suit, Clarity Remains

Elusive, Los Angeles Daily Journal, May 10, 2013). (Article reprint

available at http://www.jjllplaw.com/2013/05/11/talent-agency-act-

survives-suit-clarity-remains-elusive.)

In the 1900’s, talent agents were referred to as “Artist Managers” and the

relevant occupational scheme was entitled the Artists’ Managers Act. In 1978, in

part due to the growing number of personal managers, California considered new

legislation to determine who was to be regulated. While the Legislature

recognized that a variety of professionals – talent agents, personal managers,


6

publicists and attorneys – work to advance artists’ careers, it chose only to

regulate one occupation: talent agent. (ER, Vol. IV, pp. 177-181, ¶¶ 16-32) The

scheme’s new title, the Talent Agencies Act, versus the Artists’ Representative’s

Act, underscores the Legislature’s thinking. (ER, Vol. IV, pp. 179-180, ¶¶ 23-24)

Between 1982-1986 the Legislature again revisited and rejected the idea of

regulating the occupation of personal manager. It did amend the Act. Most

relevantly it first temporarily, then permanently, repealed the only penalty

provision ever written into the TAA; under which the selling of a talent agency

without the Commissioner’s consent was a criminal misdemeanor, punishable by

fine or imprisonment. Since then the TAA has never contained any statutory

notice setting forth the consequences for any action undertaken in connection

with its licensing provisions. (ER, Vol. IV, pp. 181, ¶ 32)

Against this background, the Complaint asked the District Court to declare

that the TAA:

(1) fails to provide adequate notice as to who is subject to the TAA (ER,

Vol. IV, pp. 182, ¶ 34) or what acts, if any, are regulated Id.;

(2) has no provision granting the Commissioner, who hears all TAA

controversies, authority to impair contracts or order disgorgement if the TAA

regulations are violated (ER, Vol. IV, pp. 182, ¶ 37);

(3) contains no remedy for the TAA violations (ER, Vol. IV, pp. 183, ¶ 41);

4) unconstitutionally interferes with interstate commerce. (ER, Vol. IV, pp.

182, ¶ 38); and

(5) is unconstitutional as applied, lacking any statutory foundation for

Appellees’ enforcement in practice. (ER, Vol. IV, pp. 183, ¶ 40)

The Complaint alleges the enforcement of the TAA injures the NCOPM and

its members and interferes with their right to life, liberty and property, justifying

declaratory and injunctive relief. (ER, Vol. IV, pp. 183-184, ¶ 45-49)


7

The Complaint alleges the Commissioner’s enforcement of the TAA is

unconstitutional and contrary to the California laws prohibiting administrative

agencies from creating remedies withheld by the Legislature and requiring

statutory provisions for forfeiture of rights to contract in occupational licensing

schemes. (ER, Vol. IV, pp. 185, ¶¶ 56- 57)

The Complaint alleges that the Commissioner routinely orders disgorgement

of compensation earned from lawful services from alleged violators of the TAA,

without statutory authority based on a finding of fraud, failure to perform or a

criminal conviction, thereby creating involuntary servitude in violation of the

Thirteenth Amendment. (ER, Vol. IV, pp. 186, ¶¶ 61-64)

VI. SUMMARY OF ARGUMENT

1. Neither the Legislature, the Commissioner nor any court have ever

provided specific notice as to what constitutes illicit “procurement” or “attempted

procurement.” The District Court concluded, based solely on the limited

information it possessed at the initial pleading stage (and without granting

Plaintiff leave to amend), the TAA provides a person of ordinary intelligence a

reasonable opportunity to know what is permitted and what is prohibited, so they

may act accordingly. Yet the Commissioner and California Supreme Court

acknowledge an ongoing struggle with articulating clear and reliable definitions

of “procurement.” Thus, ruling Plaintiff failed to state a plausible claim that the

TAA is unconstitutionally vague was a reversible error.

2. The U. S. Supreme Court defined involuntary servitude as “a condition of

servitude in which the victim is forced to work by the use or threat of physical

restraint or physical injury or by the use or threat of coercion through law or the

legal process.” United States v. Kozminski 487 U.S. 931 (1988) (emphasis

added). When the Commissioner voids a personal management contract ab initio,


8

ordering the manager to disgorge previously lawfully earned compensation, the

manager is forced through “the legal process” to have worked without

compensation in a private business and for the benefit of the artist, thus

subjecting them to indentured servitude ex post facto.

3. The Commerce Clause grants congressional authority and restricts States’

powers to regulate. The “dormant” Commerce Clause refers to the implied

prohibition against States passing legislation discriminating against or

excessively burdening interstate commerce. Under the Tenth Amendment and the

Interstate Commerce Clause, California only has the power to issue licenses for

the conduct of businesses within its sovereign borders; not for the operation of

businesses wholly outside its borders. The TAA precludes out-of-state persons

from getting licensed and, therefore engaging in California’s entertainment

industry. As this favors California’s “economic interests over their out-of-state

counterparts,” the TAA on its face is discriminatory and per se invalid, and

unconstitutional as applied.

4. Citing a case predating the development of the commercial speech

doctrine, the District Court erred in finding the TAA regulates conduct and does

not regulate speech. Speech, which does no more than propose a commercial

transaction, is protected and is the essence of a personal manager’s contractual

responsibility to promote a client’s career. The facial and as applied restrictions

imposed by the TAA on commercial speech cannot be justified under the current

test for restraints on commercial speech.

5. Based solely on the limited information it possessed at the initial pleading

stage (and without granting leave to amend), the District Court concluded the

TAA regulates conduct; that, “it limits the personal manager’s ability to enforce

contractual obligations when that person engages in the conduct of procuring

employment.” (ER, Vol. I, p. 10:5-7) The TAA has no provisions that (1)


9

expressly prohibit unlicensed persons from engaging in procuring employment;

(2) reserve the right of procurement or the other defined activities of a talent

agent solely to licensees, or (3) impede the right to contract of non-licensees who

engage in the act of procuring employment for artists. Yet, without the required

statutory authority, the Commissioner under color of law routinely and arbitrarily

voids personal management contracts ab initio. She has ordered past

compensation disgorged even when the services were fully and lawfully

performed years before, and without serving any significant or legitimate

purpose. Plaintiff stated a plausible claim that the enforcement of the TAA is in

violation of the Contracts Clause. The Commissioner enforced imaginary

provisions, and as the deprivation of the right to contract for one’s labor without

findings of fraud or non-performance is a criminal penalty, such actions violate

the due process provision of the Fifth Amendment of the Constitution.

6. Contrary to Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U. S. 308

(2007) (“courts must consider the complaint in its entirety, as well as other

sources courts ordinarily examine when ruling on Rule 12(b)(6) motions”) the

District Court failed to consider all of the claims asserted in the Complaint and,

therefore the dismissal should be reversed and remanded to the District Court.

VII. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING

LEAVE TO AMEND

The District Court's denial of leave to amend the Complaint is reviewed for

an abuse of discretion. See Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.

2004). “When reviewing a district court's decision for abuse of discretion, ‘[w]e

first look to whether the trial court identified and applied the correct legal rule to

the relief requested. Second, we look to whether the trial court's resolution of the

motion resulted from a factual finding that was illogical, implausible, or without


10

support in inferences that may be drawn from the facts in the record.”’ City of

Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 454 (9th Cir. 2011).

Generally, under FRCP Rule 15, “leave shall be freely given when justice so

requires.” This policy is “to be applied with extreme liberality.” Owens v. Kaiser

Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001). Foman v. Davis,

371 U.S. 178 (1962) held in “the absence of any apparent or declared reason -

such as undue delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, futility

of amendment, etc. - the leave sought should, as the rules require, be ‘freely

given.’” Id. at 182. “As this circuit and others have held, it is the consideration of

prejudice to the opposing party that carries the greatest weight. See DCD

Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir.1987). Absent prejudice,

or a strong showing of any of the remaining Foman factors, there exists a

presumption under Rule 15(a) in favor of granting leave to amend. See Lowrey v.

Tex. A & M Univ. Sys., 117 F.3d 242, 245 (5th Cir.1997). A simple denial of

leave to amend without any explanation by the district court is subject to reversal.

Such a judgment is ‘not an exercise of discretion; it is merely abuse of that

discretion and inconsistent with the spirit of the Federal Rules.’ Foman, 371 U.S.

at 182, 83 S.Ct. 227; Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau,

701 F.2d 1276, 1292-93 (9th Cir.1983)…” Eminence Capital, LLC v. Aspeon,

Inc., 316 F.3d 1048, 1051-52 (9th Cir. 2003).

The District Court did not find Appellees would be prejudiced had leave to

amend been granted. And for good reason: the case was in its initial stage. The

Complaint had been filed on November 9, 2012 and had never been amended.

Appellees moved to dismiss on January 11, 2013. A Hearing was promptly held

on February 25, 2013 and the District Court granted the motion on March 3,


11

2013. No prejudice whatsoever would have befallen Appellees had Plaintiff been

granted twenty (20) days to amend. Appellees never offered even a hint how

they would suffer any prejudice whatsoever if leave to amend was granted. (ER,

Vol. IV, pp. 139-172)

“Dismissal with prejudice and without leave to amend is not appropriate

unless it is clear on de novo review the complaint could not be saved by

amendment. Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.1996). A district court's

failure to consider the relevant factors and articulate why dismissal should be

with prejudice instead of without prejudice may constitute an abuse of discretion.

(Citations omitted).” Id. at 1052. “The standard for granting leave to amend is

generous.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 701 (9th Cir.1990).

Here, the District Court failed to apply the correct legal standard. There was no

evidence of delay, prejudice, bad faith, or previous amendments, and the District

Court did not find any of those factors were present. Instead, without conducting

the necessary and required analysis, the District Court simply announced,

“[b]ecause any amendment would be futile, the court grants the Motion with

prejudice.” (ER, Vol. I, p. 11, ll. 15-16)

Under the appropriate futility analysis, “[d]ismissal without leave to amend

is improper unless it is clear, upon de novo review, that the complaint could not

be saved by any amendment.” Krainski v. Nevada ex rel. Bd. of Regents of NV.

System of Higher Educ., 616 F.3d 963, 972 (9th Cir.2010); see also Lopez v.

Smith, 203 F.3d 1122, 1130 (9th Cir.2000); Balistreri, 901 F.2d at 701.

Ironically, rather than finding the Complaint could not be cured by

allegations of other facts, the District Court itself presented a potential cure. It

noted how NCOPM claimed, “[a]lmost any act undertaken by Plaintiff, even as

innocuous as helping choose a headshot, could and has been linked to the

ultimate goal of any artist represented by Plaintiff to get a job,” but the allegation


12

“does not appear in the Complaint.” (ER, Vol. I, p. 6, ¶¶ 20-21) That and other

allegations could have been added with leave to amend. Balistreri at 701; Lopez

at 1130-31.

Plaintiff expressly requested leave to amend (ER, Vol. II, p. 78: 5) and

specifically indicated the precise allegations it would add.1 It is clear on de novo

review that the Complaint could be saved by amendment. Chang at 1296.

The District Court's failure to consider the relevant factors and articulate

why dismissal should be “with prejudice,” instead of without prejudice,

constitutes an abuse of discretion and reversible error. The Order dismissing the

Complaint with prejudice should be reversed.

VIII. STANDARD OF REVIEW

This Court reviews de novo a District Court’s dismissal of a complaint for

failure to state a claim under FRCP Rule 12(b)(6). Starr v. Baca, 652 F.3d 1202,

1205 (9th Cir. 2011) Rule 12(b)(6) motions are viewed with disfavor and rarely

granted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). It is

only under extraordinary circumstances that dismissal is proper. United States v.

Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). When considering such

motions, the court must accept as true all factual allegations in the complaint as

well as all reasonable inferences that may be drawn from such allegations. LSO,

Ltd. v. Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. 2000). Such allegations must be

1 “Plaintiff will cite the TAA determinations where the same actions are alternately found

lawful in one instance and unlawful in another;” (ER, Vol. II, P. 55, fn2); “Plaintiff will present

examples of how the Labor Commissioner has advocated for the TAA enforcement versus

staying objective as required for five decades;” (ER, Vol. II, P. 66, fn4); “Plaintiff will present

several examples of efforts asking the Labor Commissioner for clarification on issues that went

ignored;” (ER, Vol. II, P. 68, fn6); and Plaintiff will show “several examples of inconsistent,

contrary interpretations by the Labor Commissioner, at times in almost simultaneous handed

down determinations.” (ER, Vol. II, p. 72, ll. 26-27)


13

construed in the light most favorable to the nonmoving party. Shwarz v. United

States, 234 F.3d 428, 435 (9th Cir. 2000). The issue is not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer evidence to support

the claims. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997).

Under FRCP Rule 8(a), the Court must determine whether the complaint contains

“sufficient factual matter” that, taken as true, “state a claim for relief is plausible

on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Courts must consider the

complaint in its entirety when deciding a Rule 12(b)(6) motion to dismiss.

Tellabs, Inc., 551 U.S. at 322.

IX. ARGUMENT

A. THE DISTRICT COURT ERRED IN FINDING THE TAA IS NOT

UNCONSTITUTIONALLY VAGUE

1. The TAA Is Unclear As To What Activities It Regulates

Labor Code §1700.4(a) defines a talent agent as one who (a) engages in “the

occupation of procuring, offering, promising, or attempting to procure

employment or engagements,” (b) counsels artists in the development of their

professional careers and (c) directs artists in the development of their

professional careers. The TAA does not specify which of these activities are

reserved exclusively for licensees. Nor is there a provision prohibiting those

without licenses from engaging in any or all of these defining activities, nor is

there any provision giving notice that one engaging in any or all of those

activities is thereby engaging in the “occupation” of a talent agent.

Despite finding the TAA is not standardless, the District Court’s own words

support NCOPM’s claim of unconstitutional vagueness. The District Court


14

acknowledged, “the activities of personal managers and talent agents have

significant overlap with respect to procuring employment,” but concluded

without reasoning or explanation, “this breadth does not render the statute

standardless.” Id., p. 6: 23-24. If the District Court cannot articulate which

activities constitute procuring employment and which do not, how can people of

ordinary intelligence be expected to do so?

“We begin by reviewing California law on statutory interpretation.

The California Supreme Court recently stated “[the] first task in

construing a statute is to ascertain the intent of the legislature so as to

effectuate the purpose of the law.” Quintano v. Mercury Cas. Co., 11

Cal.4th

1049 (1995).

“In determining such intent, a court must first look to the words of

the statute themselves, giving to the language its usual, ordinary import

and providing significance, if possible, to every word, phrase and

sentence in pursuance of the legislative purpose… The words of the

statute must be construed in context, keeping in mind the statutory

purpose, and statutes and statutory sections relating to the same subject

must be harmonized, both internally and with each other, to the extent

possible.” Dyna-Med, Inc. v. Fair Employment & Housing Commission

43 Cal.3d 1379 (1987).

"[I]n interpreting a statute a court should always turn to one

cardinal canon before all others. . . .[C]ourts must presume that a

legislature says in a statute what it means and means in a statute what it

says there." See, e. g., United States v. Ron Pair Enterprises, Inc., 489

U. S. 235, 241-242 (1989); United States v. Goldenberg, 168 U. S. 95,

102-103 (1897); Oneale v. Thornton, 6 Cranch 53, 68 (1810). 112 S. Ct.

1146, 1149. Indeed, "when the words of a statute are unambiguous,

then, this first canon is also the last: 'judicial inquiry is complete.'"

Rubin v. United States, 449 U. S. 424, 430 (1981); see also Ron Pair

Enterprises, supra, at 241.” Connecticut Nat'l Bank v. Germain, 503

U.S. 249, 254 (1992) (CNB).

Following CNB (at 254), courts must presume the Legislature meant to

allow anyone to lawfully engage in any of the defining activities, so long as they

are not engaged in the “occupation” of talent agent. As interpreted and enforced


http://supreme.justia.com/cases/federal/us/489/235/case.html



http://en.wikipedia.org/wiki/Case_citation

http://en.wikipedia.org/wiki/Case_citation


15

by the Commissioner, but not as enacted by the Legislature, the TAA only

prohibits unlicensed procurement but not unlicensed directing and unlicensed

counseling of artists. The selective disconnect between the TAA’s actual

language and its enforcement renders the statute unconstitutionally vague as

applied.

Despite the fact the District Court found the TAA is not vague because the

term “procure” is easily understandable, the operative question is not just what

“procuring, offering, promising, or attempting to procure employment or

engagements” means, but at what stage does it become unlawful? (ER, Vol. IV,

p. 184, ¶¶ 47-48) The Complaint alleges a Legislative Commission empanelled to

create a model Act found procuring employment such an ambiguous phrase it left

“reasonable persons in doubt about the meaning of the language or whether a

violation has occurred.”(ER, Vol. IV, p. 177, ¶ 18)

The TAA requires those endeavoring to engage in the occupation of talent

agent to first procure a talent agency license. (CA. Labor Code §1700.5). As

noted, under §1700.4(a), talent agents have three defining responsibilities: (1)

procuring or attempting to procure employment opportunities; (2) directing artists

and/or (3) counseling artists. The Commissioner enforces §§1700.4(a) and 1700.5

(defining artists) as if only licensees can “procure employment” and anyone can

“counsel or direct artists.”

To show the disconnect between the Commissioner’s interpretation and the

legislative intention behind the TAA, it is important to recognize what is and is

not part of the Act’s plain language.

2. The TAA Lacks Clarity As To Who Is Regulated

"[C]ourts must presume that a legislature says in a statute what it means and

means in a statute what it says there." CNB Supra. The statute is entitled the


16

Talent Agencies Act, not the “Talent Procurement Act,” which would have

signaled that anyone who procures employment opportunities must be regulated.

Nor is it entitled the Artists’ Representatives Act. Following CNB, courts must

presume the Legislature expressly chose to regulate only those in the

“occupation” of talent agent, not all representatives of talent who procure

employment opportunities for artists as an incident of acting as an attorney,

accountant, business manager or personal manager.

For Appellees’ enforcement of the TAA to pass constitutional muster, there

must be clear notice of who is regulated by the Act, Lanzetta v. New Jersey, 306

U.S. 451 (1939); what conduct is regulated by the Act, Interstate Circuit, Inc. v

City of Dallas, 390 U.S. 676 (1968); and what consequences alleged violators

would face. United States v. Evans, 333 U.S. 483 (1948). The TAA fails all three

tests.

In concluding that those in the occupation of personal management are

subject to the provisions of the TAA, the California Supreme Court referenced

how in §1700, “’person’ is expressly defined to include ‘any individual,

company, society, firm, partnership, association, corporation, limited liability

company, manager, or their agents or employees.’” Marathon v. Blasi, 42 Cal.

4th 974, 984 (2008). That dicta misinterprets the Act’s verbiage. That list

references one’s place in a company, not their occupation. According to the

statutory canon of ejusdem generis, where, “the general words shall be construed

as applicable only to persons or things of the same general nature or kind as those

enumerated," Walling v. Peavy Wilson Lumber Co., 49 F. Supp. 846, 859 (1943),

courts are required to interpret the term “manager” similarly to the other terms in

that list. Neither “firm” nor “society” nor any of the others are occupations; the

list refers to one’s place in an organization. Further, §1700 offers no specificity

as to which managers might be being regulated. Must all “managers” – personal


17

managers, business managers, property managers, retail store managers– obtain

licenses irrespective of occupation and responsibilities? Following Walling, if

personal managers were to be regulated by the TAA, the Legislature would have

included the word “personal” in §1700. (ER, Vol. IV, p. 184, ¶ 46)

Most California business licensing schemes2 include provisions limiting that

profession’s defined activities to licensees; making it a criminal offense when

unlicensed people ignore those restrictions. The TAA has no such provisions; it

mirrors verbiage of licensing schemes3 that as written and applied do not

regulate conduct. Only licensees can hold themselves out as, for example,

accountants, landscape architects or psychologists, but anyone can engage in

those profession’s defined activities.

The Canon of In Pari Materia obliges courts to compare verbiage and

interpretation of similar statutes when a statute is ambiguous. The words of the

TAA are of the same general nature as those enumerated in the Psychologists and

Landscape Architects Acts, where it is not conduct, but the occupational title that

is reserved for licensees. The TAA is anomalously interpreted and enforced. It is

not treated like the licensing schemes with similar verbiage but instead like

licensing schemes with provisions that expressly restrict conduct. (ER, Vol. IV,

p. 186, ¶¶ 62-64.)

The TAA has no provision for penalty, fine, remedy or consequence should

an unlicensed person procure employment for an artist. “The ‘surplusage rule’ is

the principle whereby each word and phrase of a statute is meaningful and useful.

2 See, among others, the Clinical Laboratory Technology Act (BPC §§1200 et seq., §1270(a)), the

Medical Practice Act (BPC §§2000 et seq. §2050); the Pharmacy Act (BPC §§4000 et seq.,

§4320); the Locksmith’s Act (BPC §§6980 et seq., §6980.10), and the Contractors’ State Licensing

Law (BPC §§7000 et seq., 7027-2031).

3 Examples: The CA. Landscape Architects Act (BPC §§5615 et seq.), the CA. Psychologists

Act (BPC §§2900 et seq.), and among others, the CA Accountancy Act (BPC §5000 et seq.).


18

Statutes should be construed “so as to avoid rendering superfluous” any statutory

language. Astoria Federal Savings & Loan Association v. Solimino, 501 U.S.

104, 112 (1991). The Commissioner’s interpretation makes notice of regulated

activities and consequences superfluous. If one can be punished without codified

provisions, there is no need for provisions that give notice of activities reserved

for licensees or of consequences for those who engage in them without a license

as are contained in the Contractors, Locksmiths and similar schemes.

The Legislature’s decision not to include prohibitive and consequential

provisions in the TAA obliges courts to assume unlicensed procurement of

employment opportunities for artists is lawful and thus Appellee’s enforcement to

the contrary must be viewed as ultra vires and unconstitutional as applied. (ER,

Vol. IV, p. 186, §62).

Appellees’ Motion to Dismiss cites the seven different steps one must take

to comply with the TAA’s precepts. Licensed talent agents are required to

annually renew their license (§1700.10); post a $50,000 bond (§1700.15); file

their contractual forms with the Labor Commissioner (§1700.23); post and file

their fee schedules (§1700.24); comply with trust fund and records requirements

(§§1700.25-27); reimburse travel costs for job opportunities that are not finalized

(§1700.41); and refer controversies to the Labor Commissioner. (ER, Vol. IV, p.

153 11-27).

Appellees’ Reply also cites the six express prohibitions of the TAA, to wit:

agents cannot publish false or misleading information (§1700.32); send artists to

unsafe places (§1700.33); employ persons of bad character (§1700.35); secure

employment for an artist where there is labor unrest without notifying the artist

(§1700.38), split fees with employers (§1700.39), or collect fees or secure

employment with entities the agent has a financial interest (§1700.40). (ER, Vol.

II, p. 39:8-27).


19

The canon of Expressio unius est exculsio aterius obliges courts to assume

that only regulations the Legislature chose to enforce are those expressly

included in a list of requirements and/or prohibitions in the statute. The

Legislature did not include on the TAA’s list of requirements a provision

whereby one must have a license to procure employment for an artist. And

the Legislature did not include on the list of its prohibitions, the act of

procuring employment opportunities for artists without a license.

In rejecting NCOPM’s vagueness challenge, the District Court relied on

Wachs v. Curry, 13 Cal.App. 4th

616, 628-29 (1993) and Grayned v City of

Rockford, 408 U.S. 104, 108 (1972) and used a generic dictionary definition of

“procurement” rather than consider legal precedents and real-world realities.

Wachs concluded that on its face, “the term ‘occupation of procuring

[employment]’ is not ‘so patently vague and wholly devoid of objective meaning

that it provides no standard at all.” However, the Court specifically noted,

“Whether the Act is unconstitutional as applied to Plaintiffs is a question for

another day.” Id at 504. This is that day.

Citing Grayned, the District Court stated a law is not unconstitutionally

vague if it provides a “person of ordinary intelligence” with a reasonable

opportunity to know what is prohibited, so he or she may act accordingly. (ER,

Vol. I, p. 6:3-5) In 1982, the Legislature created the California Entertainment

Commission (“CEC”) to recommend changes to the TAA. Chaired by the

Labor Commissioner, the CEC was comprised of four talent agents, four

personal managers, and four artists, assumedly all of at least ordinary

intelligence. Its recommendation, which the Legislature subsequently adopted,

was that no licensing violation be considered criminal, specifically because they

could not discern what was or was not prohibited by the Act, finding:


20

“… an inherent inequity — and some question of constitutional

due process — in subjecting one to criminal sanctions in violation of a

law which is so unclear and ambiguous as to leave reasonable

persons in doubt about the meaning of the language of whether a

violation has occurred.

“Procuring employment’ is just such a phrase … the

uncertainty of knowing such activity may or may not have occurred …

has left the personal manager uncertain and highly apprehensive about

the permissible parameters of their daily activity.” (See The Report of

the California Entertainment Commission, p. 25.) (Emphasis added.)

California’s judicial branch is equally confounded as to what constitutes

“procurement.” The California Supreme Court has stated:

“The Act contains no definition, and the Labor Commissioner has

struggled over time to better delineate which actions involve general

assistance to an artist’s career and which stray across the line to illicit

procurement.” Marathon at 990.4

3. The Ambiguity of the TAA Has Resulted In Conflicting And

Arbitrary Determinations by the Commissioner

No law should be drafted, interpreted or enforced to facilitate arbitrary and

discriminatory enforcement. City of Chicago v. Morales 527 U.S. 41, 58-59

(1999); Kolender v. Lawson 461 U.S. 352, 357 (1983); Smith v. Gougen 415 U.S.

566, 575 (1972). There are a litany of examples showing the Commissioner has

fluctuated between multiple and conflicting interpretations without standards in

enforcing the TAA’s application. Kugler v. Yocum (1968) 69 Cal.2d 371, 376-77;

State Board of Education v. Honig 13 Cal.App.4th

720, 750 (1993). The

Commissioner has ordered disgorged lawful compensation earned by personal

managers for such common free speech activities as “sending out resumes and

4 Marathon did not address the constitutional challenges presented here by NCOPM.


21

photographs,”5 “distributing resume and videotapes,”

6 and sending “written

materials introducing the client to the casting and development communities.” 7

Managers lawfully create sales/marketing materials and prepare their clients

for market, making a bright line test between marketing and sales completely

impossible. Managers must possess the unfettered ability to interact with, and

speak with their clients and other industry professionals to intelligently advise

and counsel their clients.

The Commissioner herself has determined the “requirements of the [Safe

Harbor] statute cannot be construed to call for a game of ‘Mother May I?’ every

time an artist manager takes some action during a long term relationship … To

find otherwise would be to ignore the realities of the day to day life in the

[entertainment] industry.” Wesley Snipes v. Delores Robinson (TAC 36-96),

Creative Artists Group v. Jennifer O’Dell (TAC 26-99).

But conversely, the Commissioner has found it unlawful when a personal

manager proactively “procures” once without the request of a licensed agent.

Behr v Dauer and Assoc. (TAC 21-00). In Tool v. Larrikin Management (TAC-

35-01), the Commissioner found the personal manager did not qualify for the

Safe Harbor because the manager called the talent agency about an opportunity

rather than the agency calling the personal manager. See also Transeau v. 3 Artist

Mgmt. (TAC 7306).

In Parker Posey v. Lita Richardson (TAC 7-02), the Commissioner voided

the contractual rights of an attorney for procuring without a license. However, in

Jewel v. Inga Vainshtein (TAC 02-99), the Commissioner left the contractual 5 Thomas Haden Church v. Ross Brown, (TAC 52-92), California Labor Commission.

6 Nick Sevano v. Artistic Productions, Inc., (TAC 8-93), California Labor Commission.

7 James Breuer v. Top Draw Entertainment, Inc.; Antonio U. Camacho (TAC 8-95), California

Labor Commission.


22

rights of the attorney intact because the artist only petitioned to void and

recapture her previous payments to her manager.

It is noteworthy the Commissioner acknowledges her difficulty in discerning

violations. “It goes without saying there will not always be a bright line between

what constitutes arranging for the placement of an artist, and what constitutes

selling a product or service, on the other. For close cases, there is no single

formulation that can delineate on which side of the line the activity falls.” Todd v.

Meagher (TAC 13148). This is the very embodiment of unconstitutional

vagueness: if those empowered to enforce the law cannot clearly discern

where lawfulness ends and lawlessness begins, how can a reasonable

layperson of average intelligence do so?

Without judicial redress, the Commissioner will continue to mete out

inconsistent, arbitrary rulings on the meaning of “procurement.” Gittleman v

Karolat, (TAC 24-02), holds that a “talent agency license is not required for the

procurement of a guest appearance on a talk show provided the appearance does

not involve the rendition of artistic services.” Id., p. 27. But in Blasi v. Marathon

Entertainment, (TAC 15-03), decided the same year as Gittleman, the

Commissioner ruled that helping an actress procure appearances on three talk

shows (where the actor was not acting) did violate the Act. Id., p. 21. Same facts,

same year, opposite rulings.

In Macy Gray v. Lori Leve Management, (TAC 18-00), the manager’s right

to enforce a contract with an artist was affirmed even though Commissioner

found the showcase the manager arranged was to procure a recording contract.

Indeed Epic Records promptly signed the artist “as a direct result of the

showcase”. But in Park v. Deftones, (TAC 9-97), the manager was found to have

violated the TAA for organizing 83 showcases for his client until, on the 84th

effort, the band was signed to Maverick Records. The managers in both actions


23

took identical actions but the Commissioner reached opposite results. Ironically,

the manager in Deftones was punished for his tenacious commitment to his client.

Since 1979, the vagueness of the TAA has been an ongoing subject of

commentary in a wide array of law review articles:

“Two questions that remain unresolved after passage of the TAA

are when, if ever, ‘procurement activity’ is permissible by an

unlicensed ‘talent agent,’ and what quantum of activity constitutes

‘procurement activity.’” Johnson & Lang, The Personal Manager in the

California Entertainment Industry, 52. S. Cal. L. Rev. 375 (1979).

“Ambiguous language renders the Act inherently unjust because it

does not give fair and adequate warning of the type of activity that

constitutes procurement and it does not provide a consistent standard

that the Labor Commissioner can apply to determine whether an

individual has violated the Act.” O’Brien, Regulation of Attorneys

Under California’s Talent Agencies Act; CA. L. Rev., Vol. 80, Is. 2,

492 (1992).

“The Legislature fostered confusion by failing to stipulate precisely

which individuals and specific activities fall beneath the umbrella of the

new licensing requirements.” Robertson, Don’t Bite The Hand That

Feeds: A Call For A Return To An Equitable Talent Agencies Act

Standard, Hastings Comm. & Ent. L. J., 223, 233 (1997).

“The TAA, the TAA's predecessors and amendments, the CEC,

California courts, and the Labor Commissioner have each failed to

define precisely which activities constitute ‘procurement.’” Devlin,

Reconciling the Controversies Surrounding Lawyers, Managers, and

Agents Participating in California's Entertainment Industry, Pepperdine

L. Rev., Vol. 28, 381 (2001).

“[I]nconsistent interpretations by the Labor Commissioner and

courts, [have created] an environment where no one is quite sure what

is allowed. The ambiguity leaves unlicensed personal managers unfairly

exposed to staggering potential liability.” Taking Away an Artist’s “Get

Out of Jail Free” Card, Pierce L. Rev., Vol. 8, No. 3 (2010).


24

4. The TAA As Applied Exceeds Commissioner’s Statutory Authority

The District Court ignored Plaintiff’s claim that the Commissioner’s

enforcement is rendered unconstitutional because the TAA gives no notice of any

penalty. The Complaint cited multiple instances where the Commissioner ordered

the disgorgement of compensation despite there being no statutory authority to do

so. (ER, Vol. IV, pp. 182-191, ¶¶ 37-42, 56-58, 70, 72-73, 76, 79-80, 93-97)

“Engrained in our concept of due process is the requirement of notice.

Notice is sometimes essential so that the citizen has the chance to defend charges.

Notice is required before property interests are disturbed, before assessments are

made, before penalties are assessed.” Wolff v. Fox (1977) 68 Cal. App. 3d 280

citing Lambert v. California 355 U.S. 225, 228 (1957); BMW of America v. Gore

517 U.S. 559, 574 (1995) (one is entitled to “fair notice not only of the conduct

that will subject him to punishment but also of the severity of the penalty that a

State may impose.”) Trying to assign a penalty without statutory guideposts “is a

task outside the bounds of judicial interpretation” reserved only by legislative

action. U.S. v. Evans 333 U.S. 483, 495 (1948). (ER, Vol. IV, p. 183, ¶ 40)

In Evans, the statute prohibited both bringing undocumented persons into the

country and harboring them, but only contained a penalty for the former. While

noting Congress wanted to prohibit both actions, the Court stated it was

powerless to create a penalty for harboring because only Congress can assign

penalties. Violations of law are "made up of two parts, forbidden conduct and a

prescribed penalty. The former without the latter is no [violation]." LaFave &

Scott, Substantive Criminal Law 1.2(d) (1986); see Evans at 486.

The District Court ignored the allegation that without notice of a penalty, the

TAA is unconstitutional. (ER, Vol. IV, p. 178-181, ¶ 21 – ¶ 32; p. 185, ¶ 57; p.

186, ¶ 62 – 64)


25

“The general rule is that "[w]here the enabling statute is essentially

remedial, and does not carry a penal program declaring certain practices

to be crimes or provide penalties or fines in vindication of public rights,

an agency does not have discretion to devise punitive measures such as

the prescription of penalties or fines …

An administrative agency cannot by its own regulations create a

remedy which the Legislature has withheld. [Citations]. 'Administrative

regulations that alter or amend the statute or enlarge or impair its scope

are void and courts not only may, but it is their obligation to strike

down such regulations.' Morris v. Williams, 67 Cal 2d 733, 748

(1967).” Dyna-Med, Inc. v. Fair Employment & Housing Comm., 43

Cal. 3d 1385, 1388 (1987). (ER, Vol. IV, p. 185, ¶ 56)

The District Court overlooked how Appellees ignored that the Legislature,

first temporarily in 1982 and then permanently in 1986, repealed the TAA’s only

penalty provision; a change by which it is “presumed that it intended to effect a

substantial change in the law.” Royal Co. Auctioneers, Inc. v. Coast Printing

Equipment Co. 138 Cal.App.3d 868, 873(1987); Barajas v City of Anaheim 15

Cal.App. 4th 1808, 1814 (1993). The Commissioner acted as if there had been no

change; continuing to accept Petitions for Controversy, hold hearings, void

contracts and order disgorgement. For a contract to be voided, there must be a

provision indicating the failure to obtain a license “was intended to affect in any

degree the right of contract.“ Wood v. Krepps, 168 Cal 382, 387 (1914). The

TAA has no such provision. The Commissioner alone created the penalty.

"A violation of reasonable rules regulating the use and occupancy of

the property is made a crime, not by the Secretary, but by Congress. The

statute, not the Secretary, fixes the penalty." United States v. Eaton, 144

U.S. 677, 688 (1892). The Commissioner routinely violates this admonition.


26

5. The Commissioner Selective Enforcement of the TAA Violates The

Equal Protection Clause Of The Fourteenth Amendment

The Complaint alleges the TAA, as enforced, is discriminatory and violates

the Equal Protection Clause of the Fourteenth Amendment. (ER, Vol. IV, p. 174-

182, ¶¶ 1, 29, 37) Along with the arbitrary nature of the enforcement, where the

same action is sometime lawful, sometimes not, an examination of past TAA

Determinations spotlights how, on occasion, the infraction does not appear to be

about the specific activity, but specifically because the accused is labeled a

“personal manager.” For instance, in Marathon Entertainment v. Nia Vardalos

(TAC 02-03), attorney Jon Moonves and producer Gary Goetzman testified to

helping put together “My Big Fat Greek Wedding,” but only the personal

manager was found to have acted unlawfully. (Vardalos Supra, p. 2:27 – p. 3:1).

Another appalling example is Krutonog v. Chapman, (TAC 3351), where the

Commissioner regulated the status, not the conduct, of Boris Krutonog, an actor

and producer. A producer who never held himself out as a “personal manager,”

Krutonog optioned the life story rights of Duane “Dog” Chapman, a colorful

bounty hunter. For eight years Krutonog spent his time and money on the project,

routinely renewing the option, customary producer activities. Id., Pg. 5:11-19. In

2003, the A&E Network agreed to produce a reality show based on Chapman,

and Krutonog signed an agreement to serve as a series co-executive producer. Id.,

p. 6, lines 1-7. But the Commissioner found many of the tasks Krutonog rendered

as a producer were rendered as “a personal manager who also acted as a talent

agent.” Id., p. 13:24-25.

There was no evidence Krutonog had any “personal management” clients

before, during or after his relationship with Chapman and A&E. He testified all

his efforts were done as a producer. Yet because there was evidence others


27

assumed Krutonog was Chapman’s “manager,”8 the Commissioner labeled

Krutonog a personal manager and ordered him to disgorge the considerable

amount of $539,450.21 in otherwise lawful, previously earned compensation.

This finding was irrelevant to conduct; Krutonog’s actions mirror those of

producers. Rather it was based on the assumption of his being a “personal

manager.”

Similarly, in Billy Blanks Jr. v. Ricco, (TAC 7163), a business partner was

found to have unlawfully procured an appearance for an artist on the “ELLEN”

show Id., p. 9, lines 16-17, expressly because he “also agreed to be the artist’s

manager.” Id., lines 20-22.

The Commissioner presumptively views personal managers as acting

unlawfully, requiring them to prove their innocence. Just being a manager

converts what the Commissioner deems lawful for others into unlawfulness.

Such enforcement violates the Equal Protection clause of the Fourteenth

Amendment.

The District Court erred in finding Plaintiff failed to state a claim that the

TAA is unconstitutionally vague. The Order should be reversed or in the

alternative this matter should be remanded to allow amendment of the Complaint.

B. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF HAS

NOT STATED A CLAIM FOR INVOLUNTARY SERVITUDE

Section 1 of the Thirteenth Amendment of the U. S. Constitution states,

“Neither slavery nor involuntary servitude, except as a punishment for crime

whereof the party shall have been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction.”

8 The evidence all referenced the term manager, not personal manager. One can certainly

manage others affairs without being in the specific entertainment-industry occupation of a

personal manager.


28

“The essence of slavery or involuntary servitude is that the worker must

labor against his will for the benefit of another.” Wicks v. Southern Pacific Co.,

231 F. 2d 130 (9th Cir. 1956). Involuntary servitude “can only exist lawfully as a

punishment for crime of which the party shall have been duly convicted. Such is

the plain reading of the Constitution. A condition of enforced service, even for a

limited period, in the private business of another, is a condition of involuntary

servitude.” Robertson v. Baldwin, 165 US 275 (1897).

The Supreme Court defines involuntary servitude as “a condition of

servitude in which the victim is forced to work for [another] by the use or threat

of physical restraint or physical injury or by the use or threat of coercion

through law or the legal process.” United States v. Kozminski 487 U.S. 931

(1988).

When the Commissioner issues an administrative determination voiding a

personal management contract ab initio and ordering the personal manager to

disgorge their compensation, the personal manager has no choices whatsoever to

avoid being subjected to involuntary servitude.

The TAA expressly states the “failure of any person to obtain a license from

the Labor Commissioner pursuant to this chapter shall not be considered a

criminal act under any law of this state.” §1700.44(b) (emphasis added).

Indentured servitude can only exist lawfully in the United States as a

punishment for a crime of which the party shall have been duly convicted. Since

failure to obtain a the TAA license is not a criminal violation, the

Commissioner’s routine practice of voiding contracts ab initio and ordering the

disgorgement of past compensation without a provision of criminal penalty,

violates the involuntary servitude prohibition of the Thirteenth Amendment.

NCOPM’s claim that such enforcement infringes on the rights of its members to

be free from involuntary servitude is therefore plausible.


29

In finding NCOPM did not state a claim for involuntary servitude in

violation of the Thirteenth Amendment, the District Court found Plaintiff’s

members have choices: they could refrain from procuring employment for their

clients, to procure employment without a license and risk the voiding of parts of

their contracts, or to obtain a license. (ER, Vol. I, p. 8:23-26)

The Court, however, did not answer this important question: can one’s

compensation for labor be forfeited without a finding of non-performance, fraud,

or conviction of a crime, without violating the Thirteenth Amendment, which

expressly forbids “involuntary servitude, except as a punishment for crime

whereof the party shall have been duly convicted?” The Complaint alleges a

plausible case that the answer is no.

The District Court stated NCOPM’s members have the option “to obtain a

license.” One might ask, “Why doesn’t a personal manager simply obtain a talent

agency license?” First, persons of reasonable intelligence who recognize personal

management as a separate, yet incidentally connected to the occupation of talent

agent, so without statutory imperatives, would see no reason to acquire such a

license.

Furthermore, a personal manager applying for and granted a TAA license

would make them talent agents, eliminating their ability to be compensated when,

as is standard in the industry, they co-represent a client with a bona fide talent

agency. The major creative labor guilds limit compensation paid by a guild

member to a talent agent to 10% of the member’s earnings.9 After the bona fide

agency is paid its standard 10%, there is no compensation available for the 9 See Marathon at 979: Artists’ Guilds bylaw “restrictions typically include a cap on the commission

charged (generally 10 percent) … (Screen Actors Guild, Codified Agency Regs., Rule 16(g); American

Federation of Television and Radio Artists, Regs. Governing Agents, rule 12-C; Matthau v. Superior

Court (2007) 151 Cal. App. 4th 593, 596-597; Zelinski, Conflicts in the New Hollywood, So. Ca. L.

Rev., Vol. 76:979, pp. 989-990 (2003); Birdthistle, A Contested Ascendancy, 20 Loy. L.A. Ent. L. Rev.

493, p. 503 (2000).


30

personal manager if they are now licensed as a talent agency. Thus, the option of

a personal manager obtaining a talent agency license is not a real-world option.

C. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF DID

NOT STATE A CLAIM FOR VIOLATION OF THE COMMERCE

CLAUSE

NCOPM alleged the TAA, as written, in practical effect and as enforced,

violates the Commerce Clause of the U.S. Constitution, Art. 1 Sec. 8, (ER, Vol.

IV, pp. 188-190, ¶¶ 75-89) and Appellees, under color of law, have deprived

NCOPM and its members of their rights, privileges and immunities secured by

the Constitution in violation of the Commerce Clause (ER, Vol. IV, p. 188-190,

¶¶ 75-89). Dennis v. Higgins, 498 U.S. 439 (1991).

Art. 1 Sec. 8, of the U.S. Constitution grants Congress the power “to

regulate Commerce” “among the several states.” The Tenth Amendment to the

U.S. Constitution states: “The powers not delegated to the United States by the

Constitution, nor prohibited by it to the states, are reserved to the states

respectively, or to the people.” Derived from the Tenth Amendment and

established in Gibbons v. Ogden, 22 U.S. 1 (1824), the dormant Commerce

Clause doctrine expressly grants Congress the power to regulate interstate

commerce and prohibits states from passing legislation discriminating against or

directly burdening interstate commerce.

United States v. Lopez, 514 U.S. 549, 558 (1995) defined three broad

categories of activity subject to interstate commerce regulation: (1) “the use of

the channels of interstate commerce;” (2) “the instrumentalities of interstate

commerce, or persons or things in interstate commerce, even though the threat

may come only from intrastate activities;” and (3) “those activities having a

substantial relation to interstate commerce.”


31

NCOPM and its members regularly use channels and instrumentalities of

interstate commerce, including cellular telephones (see United States v. Clayton,

108 F.3d 1114, 1117 (9th Cir. 1997)), telephone lines and the Internet (see U.S. v.

Sutcliffe, 505 F.3d 944, 952-53 (9th

Circuit, 2007)).

The Commerce Clause applies when “purely local activities that are part of

an economic ‘class of activities’ have a substantial effect on interstate

commerce.” Gonzales v. Raich, 545 U.S. 1, 2 (2005). Entertainment is a “class

of activities” with a substantial relation to interstate commerce. Entertainment

industry activities that have a substantial relation to interstate commerce include:

“the production, distribution and exhibition of motion pictures,” “producing,

booking and presenting legitimate theatrical attractions” and “the booking and

presentation of vaudeville acts,” even though individual showings of a film or

performance of a stage attraction “is of course a local affair.” United States v.

Schubert, 348 U.S. 222, 225-28 (1955).

“Commerce Clause power ‘may be exercised in individual cases without

showing any specific effect upon interstate commerce’ if in the aggregate the

economic activity in question would represent ‘a general practice . . . subject to

federal control.’” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-7 (2003).

The Court need not determine whether the activities of NCOPM and its

members “…taken in the aggregate, substantially affect interstate commerce in

fact, but only whether a ‘rational basis’ exists for so concluding.” Gonzales at 2.

NCOPM alleges the TAA discriminates against interstate commerce by limiting

the TAA licenses to only talent agencies with in-state premises, thus denying

licenses to non-residents with premises located wholly out-of-state.

The States’ traditional “police power,” also derived from the Tenth

Amendment, is “the “authority to provide for the public health, safety, and

morals.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991). It is a state’s


32

“power to govern men and things within the limits of its dominion.” License

Cases, 46 U.S. 504, 583 (1847) (emphasis added).

Section 1700.19 (b) requires the TAA License application to contain: “A

designation of the city, street and number of the premises in which the licensee

is authorized to carry on the business of a talent agency” and §1700.20 states,

“No license shall protect … any places other than those designated in the

license.” In addition, §1700.12 (b) mandates an annual license fee of “Fifty

dollars ($50) for each branch office maintained by the talent agency in this

state.” (Emphasis added.)

As written, the TAA neither provides for the issuance of a License to an

applicant with an out-of-state business address nor requests identification of any

state location. “A statute… with particularity, and in plain, unambiguous

language, cannot be enlarged by construction to cover other cases omitted

through presumable inadvertence of the legislature.” Iselin v. United States, 270

U.S. 245, 250 (1926).

The District Court found NCOPM’s claim that only California residents may

obtain a talent agency license “is weak and is not plausible in light of public

documents offered by Appellees” (ER, Vol. I, p. 9:15-16). This finding was

incorrect because: (1) on a 12(b)(6) Motion, the district court only considers the

facts presented by a plaintiff, or judicially noticed; (2) the public documents

presented by Appellees10

and accepted by the District Court as undeniable fact do

not show, as, Appellees allege, that there are TAA Licensees wholly located

in states other than California. (ER, Vol. IV, p. 166:1-4); and, (3) when

10

Appellees submitted a “Premise Certification,” which “as part of a talent agent’s license

application, contains spaces for ‘city, state and zip’” (ER, Vol. IV, pp. 165:25-166:01);

and “the Commissioner’s ‘talent agency license database.’”


33

genuine issues of material fact exist, it should not be resolved on a Motion

to Dismiss. FRCP Rule 12.

The “Premise Certification” (ER, Vol. III, p. 2) is an administrative

form prescribed by the Commissioner, not by the Legislature. The form

asks applicants for their State domicile, but that information is not mandated

by provision; thus it is ultra vires and not statutorily authorized.

Secondly, Appellees purported to submit twelve TAA Licensees who

allegedly had out-of-state addresses. (ER, Vol. III, pp. 86-91). However, each

of those Licensees has California residency status:

Digital Development Management Inc. (ER, Vol. III, pp. 86) has

offices in Burlingame, Los Angeles and San Diego.

(www.ddmagency.com)

Allensworth Entertainment Inc. (ER, Vol. III, pp. 87) has an office

in Beverly Hills. (See www.allensworthentertainment.com.)

Atlas Agency (ER, Vol. III, pp. 88) has an office in West

Hollywood. (www.atlastalent.com.)

CAMI Composer Management, LLC (ER, Vol. III, pp. 88) has a

“booking representative” in San Francisco. (www.cami.com.)

Common Chord LLC (ER, Vol. III, pp. 88) is a Florida limited

liability company whose principal is Sony Music Entertainment. (See

http://www.florida-annual-report.com/COMMON-CHORD-

LLC.html), a wholly owned subsidiary of Sony Corporation of

America, which has offices throughout California.

(www.sonymusic.com.)

Ford Models Inc. (ER, Vol. III, pp. 88) has an office in Los Angeles.

(www.fordmodels.com.)

IMG Talent Agency, Inc. (ER, Vol. III, pp. 88) has multiple offices

in Los Angeles and San Francisco. (www.icm.com.)


http://www.ddmagency.com/

http://www.atlastalent.com/

http://www.cami.com/

http://www.sonymusic.com/

http://www.fordmodels.com/

http://www.icm.com/

34

N. S. Bienstock Inc. (ER, Vol. III, pp. 88) has a resident agent in

Sacramento. (www.kepler.sos.ca.gov.)

Next Management, LLC (ER, Vol. III, pp. 88) has an office in

Beverly Hills. (www.nextmanagement.com.)

Mod Media Professional Talent Representation LLC (ER, Vol. III,

pp. 89), which no longer holds an active TAA license, has a resident

agent in Culver City. (www.kepler.sos.ca.gov.)

25 Live LLC (ER, Vol. III, pp. 90) is Florida-owned, by Word

Entertainment LLC (www. http://www.florida-companies-info.com).

Word Entertainment, LLC is co-owned by Warner Music Group and

Curb Records of Burbank.

(http://start.cortera.com/company/research/k7m7ssn6q/warner-music-

group-corp.)

Linda McAlister Talent (ER, Vol. III, pp. 91) has an office in

Pasadena. (www.lmtalent.com.)

All 719 TAA Licensees (as of October 1, 2013) on the Commissioner’s

database (http://www.dir.ca.gov/databases/dlselr/talag.htm) have in–state

resident status; none are wholly domiciled outside of the State of California.

Unlike other California statutes and regulations governing licensing of

non-resident occupations and professions,11

the TAA has no jurisdictional

definitions, State reciprocity agreements or any other provision for

licensing non-residents to “carry on the occupation of a talent agency.”

It is plausible inference that people of reasonable intelligence would

understand that TAA Licenses are neither available to, nor required of, non-

residents with an out-of-state business premise.

11 See CA Rules of Court 9.47, 9.48; California Business and Professions Code §7065.4; and

California Education Code, §§44252, 44253.3, 44257, 44274.2, 44279.1, 44280, 44281, and

44282, and Title 5, California Code of Regulations, §80413.3.


http://www.kepler.sos.ca.gov/

http://www.nextmanagement.com/

http://www.kepler.sos.ca.gov/

http://www.florida-companies-info.com/

http://start.cortera.com/company/research/k7m7ssn6q/warner-music-group-corp

http://start.cortera.com/company/research/k7m7ssn6q/warner-music-group-corp

http://www.lmtalent.com/

35

Appellees’ claim the lack of an “affirmative state residency requirement” is

what makes the TAA constitutional. (ER, Vol. IV, p. 166:25) Just the opposite

is true: licensing non-residents to carry on the occupation of a talent agency at

wholly out-of-state domiciles violates the prohibition established in Pacific

Merchant Shipping Association v. Goldstene, 639 F.3d 1154, 1178 (9th Cir.

2011):

"… the Commerce Clause prohibits state legislation regulating

commerce that takes place wholly outside of the state's borders,

regardless of whether the commerce has effects within the state.”

NCOPM also claims the TAA discriminates against, and directly burdens,

interstate commerce by only allowing unlicensed parties to act in the negotiation

of an employment contract “in conjunction with, and at the request of, a licensed

talent agency…” §1700.44 (d). (ER, Vol. IV, p. 190, ¶ 81).

In effect, any non-resident person or entity with a business premise located

wholly out-of-state (who is therefore, according to Pacific Merchant, ineligible

for a TAA License), even a talent agency licensed elsewhere, can enter the

California talent marketplace only with the consent of one of the 719 in-state

TAA Licensees. Conversely, the TAA in practical effect requires in-state

personal managers to use in-state licensed agents even when the manager’s client

is looking for employment opportunities outside California. (§1700.44(d).)

By licensing the occupation of a talent agency at premises located only

within the State of California and permitting unlicensed parties to act in the

negotiation of an employment contract only “in conjunction with, and at the

request of, a licensed talent agency,” the TAA facially discriminates against, and

directly burdens, interstate commerce.

“We have ‘viewed with particular suspicion state statutes requiring

business operations to be performed in the home State that could more

efficiently be performed elsewhere.’ Pike v. Bruce Church, Inc. (1970)


36

397 U.S. 137, 145. New York’s in-state presence requirement runs

contrary to our admonition that States cannot require an out-of-state

firm ‘to become a resident in order to compete on equal terms.’

Halliburton Oil Well Cementing Co v. Reily 373 U.S. 64, 72 (1963).

“The mere fact of non-residence should not foreclose a producer in

one State from access to markets in other States.” H. P. Hood & Sons,

Inc. v. Du Mond, 336 U.S. 525, 539 (1949). See also Ward v.

Maryland, 12 Wall. 418 (1871).” Granholm v Heald 544 U.S. 460, 472

(2005).

“States may not enact laws that burden out-of-state producers or

shippers simply to give a competitive advantage to in-state

businesses…” Granholm supra.

In Oregon Waste Sys., Inc. v. Dep’t. of Envir. Quality of Oregon, 511 U.S.

93, 93 (1994), the Court ruled:

“The first step in analyzing a law under the negative Commerce

Clause is to determine whether it discriminates against, or regulates

evenhandedly with only incidental effects on, interstate commerce. If

the restriction is discriminatory — i.e., favors in-state economic

interests over their out-of-state counterparts—it is virtually per se

invalid.”

The TAA by its own terms violates the Oregon Waste proscription and

therefore is per se invalid.

The TAA also directly burdens interstate commerce by mandating an

annual license fee of $225.00 as a condition of carrying on the occupation of a

talent agency, which as a general practice involves channels, instrumentalities

and activities that have a substantial relation to interstate commerce.

“We have repeatedly decided that a state law is unconstitutional

and void which requires a party to take out a license for carrying

on interstate commerce, no matter how specious the pretext may be

for imposing it.” Crutcher v. Commonwealth of Kentucky, 141 U.S. 47,

58 (1891). (Emphasis added.)


37

"... no state has the right to lay a tax on interstate commerce in

any form, whether by way of duties laid on the transportation of the

subjects of that commerce, or on the receipts derived from that

transportation, or on the occupation or business of carrying it on, for

the reason that such taxation is a burden on that commerce, and

amounts to a regulation of it, which belongs solely to congress.'"

McCall v. People of The State of California, 136 U.S. 104, 107-108

(1890) (Emphasis added)

“…neither licenses nor indirect taxation of any kind, nor any

system of state regulation, can be imposed upon interstate, any more

than upon foreign, commerce, and that all acts of legislation producing

any such result are, to that extent, unconstitutional and void.”

Crutcher at 62. (Emphasis added.)

“We are aware of no decision by this court holding that a state

may, by any device or in any way, whether by a license tax in the

form of a ‘fee,’ or otherwise, burden the interstate business…”

Western Union Telegraph Company v. State of Kansas on the Relation

of Coleman, 216 U.S. 1, 26 (1910). (Emphasis added.)

The Court rejected NCOPM’s Commerce Clause claim in part because

“Plaintiff does not allege any of its members were refused licenses because they

were located outside of California.” (ER, Vol. I, p. 9:20-23). The Appellant made

no claim that any of its members were refused TAA licenses or engaged in the

occupation of a personal manager yet applied for a License to engage in “the

occupation of a talent agency,” an ancillary occupation but not the principal

business of a personal manager. NCOPM claims that accepting out-of-state

licensees, irrespective of profession, is unconstitutional.

This Court defined “occupation” in Schwartz v. Northern Life Ins. Co., 25

F.2d 555, 560 (9th

Cir. 1928) as: “the principal business of one’s life employment

or calling” and “that which engages his attention and time as distinguished from

that which is incidentally connected with the life of men at any or all

occupations…” In Costello v. United States, 365 U.S. 265, 276 (1961), in

determining a person’s occupation, the Court considered how he derived “his


38

principal income,” how he spent “any appreciable time conducting his affairs”

and whether he made “it his central business concern.”

Furthermore, as applied, the Commissioner’s administration and

enforcement of the TAA under color of law also discriminates against and

directly burdens interstate commerce, as shown in numerous TAA

Determinations.

In Martha Robi v. Howard Wolf, (TAC 29-00) (also see Yoo v. Robi, 126

Cal. App.4th 1089 (2005)), a personal manager who used out-of-state booking

agents to obtain work for “The Platters” at county and state fairs throughout the

Midwest was found to have violated the TAA by employing unlicensed out-of-

state talent agencies.

In Baker v. Bash, (TAC 12-96), singer Anita Baker’s management contract

was voided after the Commissioner found the use of: (1) a New York-based live

bookings agency, the Associated Booking Corporation, co-founded by Louis

Armstrong and recognized as the premiere talent agency for urban artists; and (2)

a Paris-based agency for a French endorsement deal for singer Anita Baker

violated the TAA. Requiring in-state agency representation, as the Labor

Commission decreed in Wolf and Baker, when out-of-state agents are more

qualified to accomplish the objectives, puts up a protectionist barrier that clearly

violates the Commerce Clause. (See Pike supra.)

Just as the Commissioner has acknowledged in Determinations and as Chair

of the CEC the difficulty of ascertaining a clear line for procurement, the

Commissioner has acknowledged a TAA controversy can directly burden

interstate commerce. In Kelly Garner vs. Gillaroos, David Delorenzo, David

Gillaroos, Chris Wood, (TAC 1994-65), the Commissioner dismissed the

controversy acknowledging Respondents were engaged in interstate commerce

and Petitioner's claims arose precisely because of their involvement in interstate


39

commerce. The Commissioner declined to apply California's tolling provisions

against a non-resident engaged in interstate commerce.

Yet in James Breuer v. Top Drawer Entertainment, (TAC 18-95), the

Commissioner exercised jurisdiction over a New York-based personal manager

who arranged a Los Angeles showcase for his New York domiciled client that

resulted in the artist obtaining employment and moving to California to accept

such employment.

The TAA, both facially and as applied, impedes the flow of trade across

state lines and deprives out-of-state competitors of equal access to local markets

and therefore discriminates against NCOPM and its members and directly

burdens interstate commerce in violation of the Commerce Clause.

The finding that NCOPM did not state a plausible claim for violation of the

Commerce Clause was premature and erroneous. This Court should find the TAA

per se invalid or, in the alternative, reverse and remand this case to the District

Court.

D. THE DISTRICT COURT ERRED IN FINDING THE TAA

REGULATES CONDUCT AND NOT SPEECH

The District Court rejected NCOPM’s claim that as a result of the TAA’s

lack of specificity, personal managers wishing to avoid crossing the illusive line

between undefined lawful and unlawful conduct must restrict their speech to the

point where performing their contractual duties is all but impossible. The chilling

effect is far more than incidental; it implicates a significant public interest

preventing individuals to lawfully pursue life, liberty and property as a direct

result of unconstitutional interference by the Commissioner, far beyond the

authority granted by the Legislature.


40

The Court’s finding on this mixed question of fact and law, that the TAA

only regulates “conduct” and does not regulate speech, made without the benefit

of a full record, fails to consider the real-world realities of how personal

managers actually carry out their daily duties. Most everything a manager does

for a client is facilitated and communicated via the spoken or written word. Other

than a handshake or a nod of the head, there is no “conduct” without speech that

can be cited let alone regulated that does not limit or silence a manager and

abridge their ability to perform their job for a client as agreed to by contract.

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949), cited by

the District Court, is inapplicable. Giboney dealt with the efforts of the Ice and

Coal Drivers and Handlers Local Union 953 urging of non-union ice peddlers to

join the union, a violation of a Missouri criminal statute. It was not, as in the

present case, a question of whether the unconstitutional enforcement of laws that

do not exist prevented the performance of a vocation. The picketers sought to

force one holdout distributor to stop selling ice to non-union peddlers. The

picketing was deemed violative of a criminal statute, and the Court was unwilling

to extend any commercial speech protections to an extent that would support a

criminal act in restraint of trade.

Moreover, Giboney predates the Supreme Court’s groundbreaking

development of the commercial speech doctrine. Twenty-seven years after

Giboney, the Court voided a statute that declared it “unprofessional conduct” for

a licensed pharmacist to advertise the prices of prescription drugs. Virginia State

Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

The Court held “speech that does no more than propose a commercial transaction

is nonetheless of such social value as to be entitled to protection.” Id. at 763-64.

State interests asserted supporting the ban, such as protection of professionalism


41

and the quality of prescription goods, were either badly served or served not at all

by the statute.

The primary function of personal managers is to maximize the quality and

quantity of their clients’ career opportunities. In doing so the manager proposes

commercial transactions in which the client is the beneficiary. These efforts are

facilitated via commercial speech and therefore should not be inhibited by the

vague and ambiguous language of the TAA.

Certainly there have been situations in which commercial speech has been

restrained. In distinguishing its ruling in Bates v. State Bar of Arizona, 433 U.S.

350, 356 (1977), the Court refused to extend the prohibition against in-person

solicitation by an attorney to solicitation by a certified public accountant,

explaining that CPAs, unlike attorneys, are not professionally “trained in the art

of persuasion,'' and the typical business executive client of a CPA is “far less

susceptible to manipulation.'' The state may only prohibit such speech if it is

false, deceptive or misleading. If it is not, the state can only restrict "commercial

speech" if it is shown the restriction directly and materially advances a

substantial state interest. Even in these situations, the state's restriction may be no

more extensive than is necessary to serve its interest. Ibanez v. Florida Dept. of

Business and Professional Regulation, 512, U.S. 136 (1994).

Personal managers are not attorneys. So as long as their speech is not false,

deceptive or misleading, California cannot offer any substantial state interest that

justifies the total restriction imposed on NCOPM and its members by the TAA.

The Court has developed a four-pronged test to measure the validity of restraints

upon commercial expression. Under the first prong, certain commercial speech is

not entitled to any protection; the informational function of advertising is at the

heart of the First Amendment. If it does not accurately inform the public about


http://www.thefreedictionary.com/prohibit

42

lawful activity, it can be suppressed. Central Hudson Gas & Electric Co. v.

Public Service Comm’n, 447 U.S. 557, 563, 564 (1980).

Second, when speech is protected, the interest of the government in

regulating and limiting it must be assessed. The State must assert a substantial

interest to be achieved by restrictions on commercial speech. Id. at 568-69.

Third, the restriction cannot be sustained if it provides only ineffective or

remote support for the asserted purpose. Id at 569. The regulation must, “directly

advance'' the governmental interest. Id. The Court resolves this issue with

reference to aggregate effects, and does not limit its consideration to effects on

the challenging litigant. United States v. Edge Broadcasting Co., 509 U.S. 418,

427 (1993).

Appellees claim the, “[e]xploitation of artists by representatives has

remained the Act’s central concern through subsequent incarnations to the

present day.” (ER, Vol. IV, p. 153:16-17), Marathon at 984 citing Styne v.

Stevens 26 Cal. 4th 42, 50 (2001). With respect, this is incorrect. California’s

Legislature created the statutes now known as the TAA to stop owners of

burlesque halls and bordellos from fronting as talent representatives to lure

ingénues to work for them. (See Zarin, The California Controversy over

Procuring Employment: A Case for the Personal Managers Act, Fordham Intell.

Prop. Media & Ent. L.J., Vol. 7 Is. 2, 943 (1997).)

To the best of NCOPM’s knowledge, not one TAA controversy is based

upon claims that an employer masqueraded as an employment counselor to find

employees. TAA Petitions are not about a personal manager taking advantage of,

or exploiting, an artist, but almost without exception involve opportunistic artists

making the foundational claim that the successful efforts of their managers to

promote and further artists’ careers amounts to a “harmful” act for which the

artists may elect to withhold all compensation to which managers are otherwise


43

contractually entitled. California has never expressed an interest, let alone a

substantial interest, in punishing people for helping others to find gainful

employment as an actor, writer, musician or director.

Fourth, if the governmental interest could be served as well by a more

limited restriction on commercial speech, the excessive restriction cannot

survive. Central Hudson at 569-71. While the Court has rejected the idea that a

“‘least restrictive means' test is required, what is necessary is a ‘reasonable fit'

between means and ends, with the means ‘narrowly tailored to achieve the

desired objective.’” Board of Trustees v. Fox, 492 U.S. 469, 480 (1989).

The restrictions on commercial speech imposed by the TAA cannot be saved

or justified. The enforced restriction limits efforts to procure a lawful commercial

transaction for that benefit of the Artist. The personal manager’s speech is being

expressed pursuant to an agreement between the client and the manager. The

manager’s efforts directly benefit the client who retains the ability to refuse any

such proposals generated as a result of the commercial speech.

NCOPM has stated a plausible claim that the TAA violates Commercial Free

Speech rights under the First Amendment. The District Court’s finding that the

TAA regulates conduct and does not regulate speech is premature at best; in error

at worst. It must be reversed, or in the alternative, this matter should be remanded

to allow the NCOPM the opportunity to amend its Complaint.

E. THE DISTRICT COURT ERRED IN FINDING PLAINTIFF FAILED

TO STATE A CLAIM FOR A VIOLATION OF THE CONTRACT

CLAUSE OF THE CONSTITUTION

Finding, “Plaintiff does not allege that the law has been altered in any way

subsequent to the formation of a particular contract. Because Plaintiff points to

no contract in existence when the TAA was enacted or altered, Plaintiff has failed

to state a claim for a violation of the Contract Clause of the Constitution” (ER,


44

Vol. I, p. 11:6-10) was a misunderstanding of NCOPM’s claim. The Complaint

does not advance a facial, but an applied challenge to the TAA’s constitutionality

under the Contracts Clause.

Article 1, Section 10 of the U. S. Constitution states, “No State shall enter

into any … ex post facto Law, or Law impairing the Obligation of Contracts.”

This prohibition can be waived in deference to a State’s inherent police power to

safeguard the interests of its people. When substantial impairments are

challenged, the State agency that impairs contracts must show significant and

legitimate public purpose behind the regulation and the adjustment of the

contracting parties’ rights and responsibilities are of a character appropriate to the

public purpose justifying the legislation's adoption. Energy Reserves Group v.

Kansas Power & Light, 459 U.S. 400, 401 (1983). Here, there is no regulation,

only enforcement of unwritten provisions.

The Court laid out a three-part test for whether a law conforms to the

Contract Clause in Energy Reserves. First, the state regulation must not

substantially impair a contractual relationship. The TAA does. Second, the State

"must have a significant and legitimate purpose behind the regulation, such as the

remedying of a broad and general social or economic problem." There is no such

purpose here. Third, the law must be reasonable and appropriate for its intended

purpose. 459 U.S. at 411- 413. There is no rationality between the enforcement

and the Act’s legislative purpose.

NCOPM readily acknowledges the general rules regarding forfeiture: "the

public importance of discouraging such prohibited transactions outweighs

equitable considerations of possible injustice between the parties" Southfield v.

Barrett, 13 Cal.App.3d 290, 294 (1970); contracts made in violation of a

regulatory statute are void, Vitek Inc. v. Alvarado Ice Palace, Inc. 34 Cal.App.3d

586, 591 (1973) and normally, courts will not "'lend their aid to the enforcement


45

of an illegal agreement or one against public policy…'" Felix v. Zlotoff, 90

Cal.App.3d 155, 162 (1979); Norwood v. Judd 93 Cal.App.2d 276, 288-

289(1949).

However, "the rule is not an inflexible one to be applied in its fullest rigor

under any and all circumstances. A wide range of exceptions has been

recognized." Southfield Supra at 294. For example, illegal contracts will be

enforced to avoid unjust enrichment at the expense of plaintiff. Id. However, the

rule will not be applied where the penalties imposed by the Legislature exclude

by implication the additional penalty of holding the contract void. Vitek at 591-

592; Calwood Structures v. Herskovic (1980) 105 Cal.App.3d 519, 522.

Commenting on why courts are loath to void contracts, Calwood noted,

“The violation of law was one which did not involve serious

moral turpitude; the policy of protecting the public from the future

consequences of the contract will not be furthered because the

transaction has been completed; . . . Appellee [could] be unjustly

enriched at the expense of plaintiff . . . and the penalty resulting from

denial of relief [could] be disproportionately harsh in relation to the

violation involved." Southfield v. Barrett 13 Cal.App.3d 290, 294

(1970) Calwood supra.

“[F]orfeitures are not favored in law, and the courts will seek to find, if

fairly possible, such a construction of the contracts of parties as will relieve them

from the inequitable consequences arising therefrom.” Palatine Ins. Co. v. Ewing

et al, 92 Fed 111 98 (1899). “[N]or does this court favor the idea of giving one's

goods to another without compensation.” Wood v. Krepps, 168 Cal 382, 387

(1914).

As stated above, the TAA controversies involving personal managers are

almost without fail initiated by artists that were benefited, not harmed, by their

representative’s actions. There is no claim of moral turpitude; the payment of

compensation was completed for transactions between the parties and any


46

forfeiture unjustly enriched the artist and disproportionately penalized the person

working to achieve the artist’s professional objectives.

NCOPM stated a plausible claim that the enforcement of the TAA is in

violation of the Contracts Clause. The District Court’s finding that NCOPM has

failed to state a plausible claim for a violation of the Contract Clause of the U. S.

Constitution is clearly in error and should be reversed.

F. THE DISTRICT COURT ERRED BY NOT CONSIDERING

PLAINTIFF’S COMPLAINT IN ITS ENTIRETY

In Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U. S. 308 (2007), the

USSC held on a Rule 12(b)(6) motion, “courts must consider the complaint in its

entirety, as well as other sources courts ordinarily examine when ruling on Rule

12(b)(6) motions.” The District Court erred by not considering NCOPM’s

Complaint in its entirety, including these claims:

1. The vagueness of the TAA does not provide Plaintiff with notice as to

what specific behavior is to be restrained. It fails to state with

specificity who is subject to regulation and what acts specifically

constitute a violation of the Act. (ER, Vol. IV, p. 183, ¶ 34)

2. There is neither statutory nor constitutional foundation for Appellees’

enforcement of the TAA. It is enforced as if there were codified

statutes restricting activity to licensees; there are not. (ER, Vol. IV, p.

184, ¶ 40)

3. Despite there not being a defined punishment or penalty for alleged

violation of the TAA or the Act expressly stating that no violation can

be considered criminal, the Commissioner routinely determines there

to be illegal behavior and disgorges the violator’s contractual rights to

be paid for their labor, a criminal penalty. (ER, Vol. IV, p. 184, ¶ 42)


47

4. The TAA fails to provide clear notice that: (1) anyone who attempts to

procure is being regulated, (2) clear notice that only those licensed as

talent agents may procure, and (3) clear notice of what the

consequence/penalty will be if one wrongly engages in the regulated

activity. (ER, Vol. IV, p. 185, ¶ 57)

5. The TAA fails to set forth with any ascertainable certainty who or

what person(s) are subject to the TAA restrictions. (ER, Vol. IV, p.

185, ¶ 58)

6. The Labor Commission’s creation of remedies the state’s Legislature

withheld is against California law, unconstitutional as applied and

thus unconstitutional. If there is no notice of penalties, no penalties

can be meted out. (ER, Vol. IV, p. 186, ¶ 62)

7. As the enforcement of the TAA violates every tenet of statutory

construction, it is thus unconstitutional. (ER, Vol. IV, p. 187, ¶ 68)

8. As the enforcement disgorges one’s compensation for labor without

claims of non-performance, fraud, or being duly convicted of a crime,

it is thus unconstitutional. ER, Vol. IV, p. 187, ¶ 68)

/ / /


48

X. CONCLUSION

The District Court’s premature dismissal of the Complaint disregarded the

serious constitutional questions and the compelling public policy issues presented

in this case. NCOPM seeks a reversal of the District Court’s Order, based on this

Court’s finding that the TAA is facially unconstitutional or in the alternative to

remand this matter to the District Court with instructions to allow NCOPM the

opportunity to amend its Complaint.

Dated: October 8, 2013

Respectfully submitted,

STEPHEN F. ROHDE (SBN 51446)

ROHDE & VICTOROFF

1880 Century Park East, Suite 411

Los Angeles, CA 90067

Tel: (310) 277-1482

Fax: (310) 277-1485

RYAN H. FOWLER (SBN 227729)

CHRISTOPHER B. GOOD (SBN 232722)

FRANK W. FERGUSON II (SBN 211694)

FOWLER & GOOD LLP

15303 Ventura Blvd., 9th

Floor

Sherman Oaks, CA 91403

Tel: (818) 302-3480

Fax: (818)279-2436

Attorneys for the Appellant

National Conference of Personal Managers Inc.


49

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, I state that I am not aware of any other cases

that are related to this appeal.


ROHDE & VICTOROFF



Tel: (310) 277-1482

Fax: (310) 277-1485




FOWLER & GOOD LLP


Floor


Tel: (818) 302-3480

Fax: (818)279-2436




50

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief does not exceed the type-volume limitation

imposed by Federal Rules of Appellate Procedure 32(a)(7)(B). The brief was

prepared using Microsoft Word 2008 and contains 13,766 words of proportionally

spaced text. The typeface is Times New Roman, 14-point font.


ROHDE & VICTOROFF



Tel: (310) 277-1482

Fax: (310) 277-1485




FOWLER & GOOD LLP


Floor


Tel: (818) 302-3480

Fax: (818)279-2436




appellant's opening brief: ncopm v. brown et al

Documents

united states district

good sbn

fowler sbn

rohde sbn

statement of jurisdiction

statement of facts

statement of issues

united states court