Legal Impact Report 2018
Repping clients on both sides of the sexual misconduct wars, lawyers weigh in on Hollywood’s watershed moment
Entertainment lawyers weigh in as sexual harassment scandals continue to plague the showbiz industry.
No earthquake could have shaken Hollywood as intensely as the story that ran last October in the New York Times detailing decades of allegations of sexual harassment against Harvey Weinstein, with multiple women coming forward. The revelations set off a domino effect that took down a string of prominent men — including Louis C.K., Charlie Rose and Kevin Spacey — and that continues to this day. The resulting turmoil also thrust into prominence Hollywood’s legal community, which, by definition and by necessity, has remained at the center of all these events, advising accusers and accused alike — and creating the instruments and the arguments that frame the ongoing battles.
Take non- disclosure agreements, for example. NDAS induce defendants to settle at an early stage, keeping matters out of the public eye and avoiding protracted trials. Critics complain that they allow repeaters to continue their behavior undetected.
“Without the NDA, I think we’re going to have a more expensive and longer journey for plaintiffs to get redress because there is less incentive for a company to settle,” says Victoria Cook, a partner in the entertainment group at law firm Frankfurt Kurnit Klein & Selz, whose talent practice covers several women, including “Mudbound” director Dee Rees.
Cook adds, “The company has deep pockets and can keep litigating, while for an individual plaintiff it’s really expensive.” Other attorneys also say that in some cases, victims actually want anonymity and use a financial settlement to heal in private.
In the aftermath of the Weinstein affair and all the other scandals that have erupted, legal minds are pondering how to handle repeat offenders without completely killing NDAS. Lawyers are also working in a highly charged atmosphere for judging the performance of corporate boards, senior executives, human resources departments and police investigations.
In this environment, organizations such as #Metoo, #Times Up and the entertainment industry commission on sexual harassment led by Anita Hill are taking center stage to advocate justice for victims. But some suggest a pendulum swinging too far in the other direction and that in the fallout, even consensual office romances will be prohibited by increasingly defensive corporate employee policies.
Patricia Glaser of law firm Glaser Weil Fink Howard Avchen & Shapiro laments that companies seem to be “firing people just based on allegations. That’s intolerable in a democracy. We should live by rule of law.” (Glaser represents Harvey Weinstein in disputing the termination of his employment.)
Many lawyers say that they expect a better world to emerge on the other side of today’s turmoil. They reason that clearer lines will be drawn for businesses and individuals alike to understand the tripwires of inappropriate conduct.
Lawyers also stand to benefit from the turmoil because they’re the ones who are helping to navigate this expanding, uncharted territory. In addition to being perceived as relatively independent, they have experienced relatively few sexual harassment scandals among their ranks in contrast to the rest of corporate America.
One exception: Latham & Watkins’ London-based chairman William Voge was forced out last month after allegedly engaging in lewd and threat- ening communications with a woman not related to the law firm. Additionally, law firms have their critics when it comes to gender parity and minority staffing.
But overall, lawyers have a relatively clean track record and are indispensable when it comes to spotlighting issues that can lead to sexual misconduct accusations. For example, they can provide pre- emptive training to lessen the likelihood of misconduct, consult on procedures such as drawing up moral turpitude clauses to insert in contract agreements, advise on disputes, defend or pursue allegations, and supervise investigations.
Lawyers will even evaluate corporate culture that can attract the glare of unfavorable publicity and as evidence of indifference.
“Companies and organizations are being extremely vigilant right now in ensuring that people are behaving appropriately in the workplace and also at events related to the workplace,” says Ivy Kagan Bierman, a partner at Loeb & Loeb. “And it’s not just employees. It’s independent contractors, vendors, clients and sponsors. It’s anyone that companies and organizations are working with.”
Kagan Bierman is active in #Timesup and an outside adviser to the Anita Hill
Commission.
Organizations that hush up misconduct can face a staggering price. For example, it’s estimated that the scandal surrounding USA Gymnastics team doctor Larry Nassar, accused of molesting 250 girls and young women, will result in hundreds of millions of dollars in settlements and legal fees.
Clients are urged to bring in their lawyers early on — before the scandal breaks and camera crews arrive on the front lawn. “In an ideal situation, you want the companies and lawyers to look at problems first, before the New York Times does,” says Susan Estrich, a law school professor and a partner at Quinn Emanuel Urquhart & Sullivan, and co- chair of the law firm’s crisis group. “You can deal with problems responsibly and reasonably if you review first rather than with a gun to your head.”
Estrich’s clients included the late Roger Ailes, who in July 2016 was forced out as chairman and CEO of Fox News and the Fox Television Stations Group following sexual harassment scandal that shook parent company News Corp.
Legal advice is especially critical for smaller companies. Labor attorney Duncan Crabtree-ireland says the Hollywood landscape is dotted with small shops that lack the resources to tackle investigations in-house, so outside advisers can be a necessity. Crabtree-ireland, who is COO and general counsel at SAG-AFTRA, adds that, by contrast, Hollywood’s bigger companies, such as the major studios, have the wherewithal to conduct internal investigations.
But at smaller-sized enterprises, “having someone lower down in the organization is often not effective in investigating someone more senior,” says Crabtree-ireland. “Smaller organizations tend not to have that infrastructure ready to go to respond in a prompt manner to harassment allegations.”
In an area fraught with complications, many ask whether another potential problem is a creeping tendency to lump together many types of misconduct and discrimination issues — including those involving gender, people with disabilities, race and the LGBT community.
Some say this could muddle the focus on sexual harassment, but others disagree. For example, attorney Kalpana Kotagal, who co-authored the much- discussed inclusion rider for workplace diversity, argues that many issues are intertwined, so better to tackle them together.
“There is an increasing recognition since the Weinstein incident of the connection between sex harassment and other forms of discrimination,” says Kotagal, who works on civil rights and employment matters as a Washington D.c.-based partner at Cohen Millstein.
She feels the goal in dealing with sexual harassment should be creating a “robust complaint mechanism and human resources practices that let companies identify problems before they become ‘a Weinstein.’”
You want companies and lawyers to look at problems before the New York Times does.” Susan Estrich
In canvassing the legal community about sexual harassment, Variety detected a gender and age divide. For the most part, men, far more than women, declined requests for on-the-record comments and steered away from commenting.
Older individuals of both genders also expressed reservations. Talking on background, some said that while they support today’s heightened vigilance, they feel that a sense of proportion is often lacking. Infractions such as clumsy faux pas in a social media post seem to get lumped together with truly serious acts like physical assault.
Overall, there seems agreement in the legal community that the industry has reached a watershed moment.
While the current intensity over these issues will inevitably fade over time, many lawyers feel, the mechanisms being erected and cultural intolerance of misconduct will remain.
“I think it’s never going away,” says Linda Lichter of Lichter Grossman Nichols Adler & Feldman. “Once the genie is out of bottle, you can’t put it back in.”