WRITTEN ON BEHALF OF A CLASS OF AMERICAN WRITERS

THIS IS WHAT IT LOOKS LIKE WHEN YOU TELL IT TO THE JUDGE. THE SETTLEMENT IS NOT PART OF THIS LETTER, AND WILL BE EXAMINED SEPARATELY.

WILLIAM RICHERT


Plaintiff in pro per



Service at Attorney's last address/email

March 19, 2009



SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES, CENTRAL CIVIL WEST



RICHERT, an individual, Plaintiff V.

WRITERS GUILD OF AMERICA WEST, INC.

Defendant.



CASE NO. BC 339972



(Related to: Webb v. Director's guild of America, Inc.

and Osmond v. Screen Actor's Guild, Inc.)



Assigned for all purposes to the Honorable Carl J. West



Hearing Date: March 23

Time: 10:00 A.M.



600 Commonwealth Avenue

Los Angeles, CA



DEPT: 311



TO PLAINTIFF'S ATTORNEY NEVILLE JOHNSON, HIS FIRM, AND DEFENDANT AND HIS ATTORNEY OF RECORD AND TO DEFENDANTS ATTORNEY OF RECORD



PLEASE TAKE NOTICE that William Richert, in pro per, respectfully moves this Court to Deny the Application for Dismissal of William Richert and (2) Substitution of Maude Retchin Feil for Pearl Retchin.



The motion to deny is made with reference to the following facts:


WHEREAS new information has been discovered within the past 10 days that Lead Plaintiff William Richert believes will substantially and materially change the terms of this settlement,

WHEREAS for 10 months Plaintiff William Richert was denied information that his co-plaintiff was deceased, and not "Pearl Retchin, An Individual" as stated on each and every one of the Plaintiffs and Defendant's pleadings to court,

WHEREAS A dead plaintiff cannot be said to be “similarly situated” as other class plaintiffs, a basic requirement of class action lawsuits as defined by U.S. Congress,

WHEREAS Dismissal of William Richert as Lead Plaintiff may prejudice the rights of the class as defined in the Settlement Agreement,

WHEREAS The purpose of requiring court approval of a class settlement and court approval of the dismissal of a class action is to protect the interests of the class and its members. (See La Sala v. American Sav. & Loan Assn. (1971) 5 Ca1.3d 864, 871; In re Microsoft 1- V Cases (2006) In the circumstances of a class settlement, the entry of dismissal, governed by rule 3.770, may be inconsistent with a judgment, and

WHEREAS a Class Champion in a class action lawsuit is required to place the interests of his/her class above his/her own,

WHEREAS Plaintiff William Richert acknowledges he asked to be removed in public protest and to protect his good name and peace of mind, but he has since realized such a private protest abandons the true interests of the class he represents since 2005,

WHEREAS Lead Plaintiff William Richert is the only named plaintiff writer "similarly situated" to the writers of all classes affected by this dispute, being a novelist and screenwriter of audio visual works sold abroad, both union and non-union, and also made knowledgeable by 4 years as Lead Plaintiff on this lawsuit,

WHEREAS Class action un-certified plaintiff Maude Feil was paid foreign levies in advance of settlement from Defendant’s attorneys, money not given to other class members and thus introducing a conflict of interest,

WHEREAS the proposed replacement for Pearl Retchin, Maude Feil, was not approved by the court prior to submission of proposed settlement agreement,

WHEREAS named plaintiff Ann Jamison cannot represent non-union writers in the settlement as she is not a non-writer – as falsely stated by Neville Johnson in his letter of February 26, 2008, but the daughter of one,

WHEREAS signed contracts not given in evidence have been discovered between the WGA and the Studios and certain foreign collection societies which directly and fundamentally contradict sworn representations made by Emma Leheny and others in court, thereby staining the case with possible perjury,

WHEREAS the Defendant Writers Guild of America have based their entire case on certain German patent office documents – like Weapons of Mass Destruction --which have never been produced in evidence and which are contradicted by signed documents acquired by Plaintiff s lawyers but not introduced as evidence in Court until included as Exhibits in this Motion,


WHEREAS contracts newly discovered by Plaintiff show that the WGA, in undisclosed agreements with the DGA, WARNER BROS, PARAMOUNT, DISNEY, COLUMBIA, SONY, UNITED ARTISTS, UNIVERSAL, WARNER BROS TELEVISION and others have colluded to denied union members and non-members the protection of their civil rights to authorship under the Berne Convention of 1989, and denied their
membership rightful representation against the studio claims to authorship, claims which Federal Judge Morrow says were illegal,



WHEREAS the WGA and DGA signed contracts with Studios for writers that dismissed the union’s own Minimum Basic Agreements without informing members,



WHEREAS the above named studios have been partners and accomplices with the WGA DGA and SAG in more than a dozen contracts, but hitherto have not been named in this lawsuit as co-signers of all agreements and therefore equally responsible and liable,



WHEREAS the WGA has failed to show that it provided copies of the Proposed RICHERT VS WGA SETTLEMENT agreement to appropriate Federal Officials such as THE ATTORNEY GENERAL OF THE UNITED STATES, and appropriate State Officials, in accordance with the statue 1715,

WHEREAS in Congress' 1711. "Definitions: the term "class" means all of the class members in a class action,

WHEREAS the parties for Defendant and Plaintiff have falsely agreed in declarations to the courts that “there are no unusual legal issues” when there are absolutely unusual legal issues involved in this case,


WHEREAS Neville Johnson has failed to zealously protect the class against an ongoing and future takeover of screenwriter’s and author’s rights and money,


WHEREAS in 2006 the Amended Complaint accepted by the court was filed with 2 of 3 Named Plaintiffs representing themselves in PRO SE,

WHEREAS Pearl Retchin chose to represent herself and her subclass in Pro Se when alive,


WHEREAS Neville Johnson’s motion to relieve himself as William Richert’s counsel effectively removes him from being a lawyer for any of the plaintiffs in this case, leaving the settlement class without representation,





NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING AND THE EXHIBITS ATTACHED HERETO, CLASS REPRESENTATIVE PLEADS FOR JUDICAL INTERVENTION AND ASSISTANCE.

WILLIAM RICHERT ASKS THAT NEVILLE JOHNSON’S MOTION TO DISMISS BE DENIED, AND FURTHER:


1.) LEAD PLAINTIFF WILLIAM RICHERT requests that THE APPLICATION TO DISMISS BY ATTORNEY NEVILLE JOHNSON be denied and turned upside down, and that Neville Johnson, Nicholas Kurtz and Paul Keisel be dismissed with prejudice as class attorneys for the Authors they have failed to represented,

2.) LEAD PLAINTIFF REQUESTS that new lawyers be hired to represent the both the Plaintiffs and Defendants under the supervision of appropriate Federal or State regulators, since the WGA also
claims to represent the Plaintiff in its capacity as a Federal union, and Plaintiff believes their conduct is actionable under both State and Federal law.

3.) LEAD PLAINTIFF REQUESTS that until suitable lawyers be found he continue to represent the class named "for settlement purposes" in the settlement "in pro per" for all American writers and their legal heirs who have been or will be impacted by this settlement and its unusual and profound copyright issues.

4.) LEAD PLAINTIFF REQUESTS that the WGA and Neville Johnson file a COPY OF PROPOSED SETTLEMENT AGREEMENT with the national regulatory agencies the US Congress require to see it after ten days, led by at DOJ by Eric H. Holder, in California by Jerry Brown, and by Steve Cooley in LA County.

5.) THE LEAD PLAINTIFF REQUESTS that all foreign levy contracts signed by the WGA and provided by them in support of their contention they didn't commit fraud or conversion be given in evidence to the court.

6.) THE LEAD PLAINTIFF REQUESTS that all others in his class especially those directly effected by foreign levies be notified immediately wherever they may be found, as in libraries and universities, in film schools and on the internet, so they may join the Plaintiff in seeking a replacement lawyer and justice for the widely dispersed class of non-union and union American writers.

PLAINTIFF WILLIAM RICHERT PLEADS FOR DENIAL OF APPLICATION TO DISMISS, AND FOR TIMELY REMOVAL OF NEVILLE JOHNSON et. al. AS CLASS COUNSEL

MEMORANDUM AND HISTORY
Since September 2005 I have represented various classes of American writers in a class action “On behalf of those similarly situated” who’ve had money taken from the illegally by the Hollywood unions and Studios acting together for at least 18 years.

On January 15, having been constantly been denied my client rights by attorney Neville Johnson, and to let this be known in the only way I knew, I went to court and asked that my name be taken off the case and asked that I be removed as a class representative. I told Judge West that I had read the settlement and would never be able to agree to it.

Two weeks ago I received the “Application for Approval of Dismissal of William Richert” and (2) Substitution of Maude Retchin Feil for her deceased mother, Pearl Retchin.

In a macabre revelation, these documents informed me that my co-plaintiff had been dead ten months and nobody told me, or the court, even though her name was on the final settlement awaiting approval and appeared on every other motion as if she were alive.

In effect, there was a corpse in the courtroom.

I also discovered that the newly-substituted class plaintiff, Pearl’s daughter, named in documents only after the settlement was presented to the Judge, had just recently been paid foreign levies even though the intended writer had been dead since 1971 and declared “untraceable” by the WGA. Mr. Retchin made 2 films in 1956 and 1957.

Although the WGA has provided no accounting of foreign levies since 1990, and has not paid out the 20 million its been holding even after the lawsuit was filed, the union managed to find money to pay Maude Feil since her mother died 10 months ago.

Did the WGA suddenly discover and cash checks written in fifty years ago? And how were those finds divided between the unions and the studios.

As their modus operandi for decades, most of Norman’s money was taken by the studios, who claimed they were authors of his work.

WGA doesn’t mention if it was taking money 50 years ago, whose authority they acted under. And if they weren’t collecting foreign levies then, what kind of money did Emma Leheny pay Maude Feil?

In stupefying contrast: since 2005 the Guild has been unable or unwilling to provide me and thousands of other writers any accounting or records of money they have gotten on our behalf, including personal titles of mine like THE MAN IN THE IRON MASK and THE HAPPY HOOKER – totally non WGA -- and A NIGHT IN THE LIFE OF JIMMY REARDON and WINTER KILLS, which are currently selling in Europe and have been for many years.

How can the WGA pay out foreign levies royalties earned 50 years ago when the WGA wasn’t even collecting them, according to them? AND PAY THEM to a disputed class rep and to no one else? Where did they find them? Did they come from the studio coffers? And why would the studios help the unions locate money in this CLASS ACTION lawsuit?

When I finally managed to obtain a copy of the proposed settlement, I read that the entire agreement was based on the WGA’s allegation that nobody else would collect millions in foreign royalties for American writers unless they did because German “patents” prevented this.

No such “patents” or “patent office regulation” actually exists regarding American writers, screenwriters and novelists.

Upon reviewing the documents underlying all the contentions made by the WGA, it was overwhelmingly evident that the WGA and DGA had perjured themselves in saying they were given no choice but to accept this money, these millions, all these years, without accounting for them or paying them to the living writers and others who died never knowing that somewhere, their work had earned royalties, in itself an award for writers.

While the WGA and DGA claim their misdeeds were forced upon them under stiff opposition, The German, French, Lithuanian, Italian, Mexican and other contracts show just the opposite.

William Richert’s new discovery reveals that it was not the “German Patent Office” (imagine reading those complex legers and records) but more simply and truthfully it was the WGA who asked foreign agencies to be the sole collector for American writers, and who asked the collection societies to continue share up to 85 percent with the studios.

The WGA said they had a hard time reading these “foreign language” contracts, even though all but one (and the one from Switzerland I’ve just introduced) are in plain English, as the Exhibits show.

While these contracts were presented to Neville Johnson long ago in discovery, I do not believe they were ever properly introduced in court, where they belong.

Maybe Mr. Johnson, intent on settling, never bothered to read them. That would be the kindest explanation.

The 109th congressional mandate for class actions is as clear as can be: the plaintiffs in a class action must be “similarly situated.”

From her grave, and even with the best previous intentions, Ms. Retchin could not possibly represent her class.

Yet in filing after filing and motion after motion, since the beginning of June 2008, for almost a full year, both sets of lawyers have put her name forth as if Pearl were out buying new writing software.

In a courtroom seeking justice for tens of thousands of writers, it is preposterous to have the voice of a corpse as a stand in.

It was disingenuous and misleading for Mr. Johnson to invite “all of you,” that is: we 3 Plaintiffs, to the Joel Grossman mediation when one plaintiff was 85 and on her deathbed, a second was misrepresented as being a non-union writer, and the third- me - sent outraged notice that Mr. Grossman was a signer of the agreements that set this scandal into motion in 1990 and was unfit to mediate this settlement.

It was mendacious to portray Ann Jamison as a fair class rep for non-union writers when she is not a writer at all, but heir to her father Thames Williamson, not a member of the WGA but of the Screen Writers Guild, working between 1938 and 1957. It is sleight-of-hand to portray Ms. Jamison as class representative for the “similarly situated” when there are thousands far better situated to represent the class, starting with William Richert.

It is typically misleading that Ms. Jamison is included in the proposed settlement agreement as if she her father’s role was active and contemporaneous instead of occurring back 1938, before the WGA existed.

The settlement is evidence that Mr. Johnson, against the lawful fiduciary interests of his clients, willfully accepted all of the WGA’s false claims as legitimate, in spite of the evidence to the contrary in signed union/studio contracts and in opposition to our original complaint for fraud and conversion and other things.

Emma Leheny and Tony Segall cannot be said to represent the true interests of their WGA writer clients because they’ve allowed whistle blowers to be paid nearly one million dollars to conceal evidence, and because they have hidden contracts that show union members have denied their rightful share of more than a billion dollars over the past quarter century, with the WGA, DGA and SAG labor unions; approval and connivance.

The DGA recently settled, promising to tell all their members and non-members the details. But there is little more than a single page describing the settlement; actually, only the title page. The rest of the settlement is missing.
Like the WGA, the DGA spreads the following falsehood on its website, where the true and accurate settlement can nowhere be found:
“The Guilds and the Companies also agreed, based upon a condition initially imposed by the German patent office, that the Guilds would distribute levies collected for all U.S. directors and writers regardless of whether they were Guild members and regardless of whether the film or television program was covered by a collective bargaining agreement. Following the resolution of the dispute between the Guilds and the Companies, the Guilds entered into comparable agreements with representatives of independent producers and distributors. The portion of the combined author's share the DGA has obtained has steadily and significantly increased over time from 15% to 50%

No “German Patent Office” regulation has ever been shown to exist. The entire statement is bogus and, in effect, perpetuates an ongoing fraud and 50 year license to steal.

There are a lot more writers in the US than directors, who have no direct issue with copyright. In almost all cases a director can said to be “hired” in recognition of his achievement. But writers are “inspired” and belong to the category of creators, not workers.

If enacted this settlement will deprive American writers of just copyright enforcement and royalty payment in perpetuity, and put into law the studio’s claim they own the copyright of writers, ignoring the Berne Convention of 1989 which changed the old rules.

In the language of the system: Who’s gonna sue Fox or Universal over subverting the Berne Convention? Berne who?

This settlement will give the WGA and DGA and sister unions of the AFL-CIO something they couldn’t achieve in the 2008 strike that cost Los Angeles 2.9 billion dollars, threw thousands out of work and created the “havoc” that destroyed lives: namely, a legal mandate to collect funds for thousands of non-union writers and tens of thousands of ”new media” internet writers, who will thereafter be “known” to the activist unions, and be forced to share royalties with them.

As I understand it, a fraud is committed when a dead person’s name is used to apply for credit.

What kind of crime is committed when lawyers representing two groups of leading American writers use a dead widows name to push through a mendacious settlement involving an entire class of human beings?

Neville Johnson, Nicholas Kurtz, Emma Leheny, Tony Segall all swore together in the August, 2006 Amended Complaint that the case was not “complex” and that “there is nothing unusual in this case.” Perhaps not, to Madoff, Enron and AIG.

Vast sums of money are not the real treasure here.

For our society and culture, the real treasure is the freedom to write. No “PENCILS DOWN” as the WGA cries, for all humanity.

Proper union representation is a civil right.

Writing is not a union or labor activity, subject to regulation.

Writing is a human activity, and belongs to everyone. Copyright is a human right.

While not rating very high perhaps in the hierarchy of today’s tragedies occurring both in the US and around the world, the events taking place in this Los Angeles Superior Court regarding copyright ownership can dictate freedom for American writers for years to come. At least the Indians got paid fifteen bucks for Manhattan. These particular unions want our future and for us to pay them to take it. When it appeared that Mr. Johnson would find a way remove me from this case no matter what I did, since preventing a settlement makes me a bad class rep, apparently, while publicly withdrawing can be a legitimate protest, in January I appeared before the Honorable Judge West, and asked, basically “please take this cup from me.”

Now it appears I may have to drink the whole damn thing.

But there will be lots left to drink for other writers in the spigot in the barrel in the stream from the rain along the rivers and the oceans into the vast expanse above our heads, where the thoughts and dreams of writers roam.

I can only have written the foregoing because I believe in the fairness of our judge, and the depth of his concern and the care he took to listen to me in his courtroom. I could not say these things otherwise.

And so, For the reasons stated above, and considering the Exhibits Attached in Evidence, I hope and pray that the Honorable Judge Carl J. West will deny Neville Johnson his request to dismiss William Richert from this case, and will allow him as Class Champion to continue his work unhindered until justice prevails, or writing ceases, whichever happens first.

Sincerely,
William Richert
American author, screenwriter, actor, director
Lead Plaintiff in pro per
RICHERT V. WGAW INC. et. al.

EXHIBITS ENTERED IN SUPPORT OF PLAINTIFF’S MOTION:

WGA SETTLEMENT AGREEMENT FOR FOREIGN LEVIES

PLEASE NOTICE TO ALL AMERICAN WRITERS: THIS APPLIES TO YOU
IN A SENSE, IF THIS PASSES, YOU'RE IN THE UNION NOW

SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Settlement Agreement") is entered into
between each of William Richert, the estate of Pearl Retchin, and Ann Jamison (individually and
collectively "Plaintiff(s)"), as representatives of the settlement class hereinafter described (the
"Settlement Class"), and all members of the Settlement Class, on the one hand, and defendant
Writers Guild of America, west, Inc., a California non-profit corporation ("WGA W"), on the
other hand.
Plaintiffs and WGA Ware sometimes collectively referred to herein as the "Settling
Parties" and individually as a "Settling Party". This Settlement Agreement is entered into as of
the date of the last Settling Party to sign this Settlement Agreement. The Settlement Agreement
is made with reference to the following facts:
WHEREAS, on September 16,2005, William Richert filed an action in the Superior
Court of the State of California for the County of Los Angeles styled William Richert, an
individual and on behalf of those similarly situated v. Writers Guild of America, west, Inc. and
Does 1 through 20, Case No. BC339972, after which WGA W removed the matter to federal
court;
WHEREAS, on August 22, 2006, a First Amended Complaint was filed in United States
District Court for the Central District styled William Richert, an individual; Pearl Retchin, an
individual; Ann Jamison, an individual; and on behalf of those similarly situated v. Writers
Guild of America, West, Inc.; and Does 1 through 20, Case No. CV 05-8257 MMM (PJWx) (the
"Action"), after which the Action was remanded back to the Superior Court of the State of
California for the County of Los Angeles (the "Court");
WHEREAS, during the 1980s, various European countries began to adopt laws imposing
levies on home video rentals, blank cassettes, and recording equipment, which were designed to
provide compensation to rights holders, including writers, of the motion pictures and television
programs exhibited within each country and which were subject to copying. These countries
collected the levies through foreign collection societies. The funds from such levies that were
collected by foreign collection societies shall be collectively referred to in this Settlement
Agreement as the "Foreign Levy Funds";
WHEREAS, in the early 1990s the WGAW and the Directors Guild of America, Inc. (the
"DGA") entered into various agreements with various producers, production companies and
distributors regarding the division between them of the Foreign Levy Funds. Pursuant to these
agreements, certain of the Foreign Levy Funds were and are collected by the WGAW. The
Guilds and the Companies also agreed, based upon a condition initially imposed by the German
patent office, that the Guilds would distribute levies collected for all U.S. writers and directors
regardless of whether a writer or director was a member of the Guilds and regardless of whether
the motion picture was covered by a collective bargaining agreement.;
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WHEREAS, the Action alleges, in essence, that the WGA W has collected substantial
amounts, and earned interest thereon, of the Foreign Levy Funds, but has failed to properly or
adequately account for and pay them to the persons entitled to them;
WHEREAS, the WGA W denies any wrongdoing;
WHEREAS, the Plaintiffs and the WGA W have engaged in five separate days of
mediation before Mediator Joel M. Grossman, Esq.; and,
WHEREAS, Plaintiffs, on behalf of themselves and members of the Settlement Class, on
the one hand, and WGA W, on the other hand, now seek to comprehensively resolve the Action
and the disputes between them covered by the Action.
NOW THEREFORE, in consideration of the preceding recitals and the mutual promises
and consideration set forth below, the sufficiency and adequacy of which are hereby
acknowledged, the Settling Parties agree as follows:
1. The Settlement Class. For settlement purposes only, the Settling Parties
stipulate to certification of the following Settlement Class:
All writers, including members of the WGAW and non-members
of the WGAW, whose works, whether or not written under any
WGAW collective bargaining agreement, earned Foreign Levy
Funds that were paid to the WGA W by foreign collection societies.
This class definition includes the lawful heirs of any such writer
who is no longer living.
2. Certain Obligations To Be Carried Out Only After the Effective Date. Each
and all of the Settling Parties' future obligations and duties under Paragraphs 3, 4, 5, 6 and 7 of
this Settlement Agreement shall be carried out or effectuated as expeditiously as possible after
the "Effective Date," as that term is defined below in Paragraph 10.a. None of obligations and
duties under Paragraphs 3, 4, 5, 6 and 7 of this Settlement Agreement need be carried out or
effectuated prior to the Effective Date.
3. One- Time Review by "Big Four" Accounting Firm.
a. The Settling Parties shall jointly select a "big four" accounting firm (i.e.,
Pricewaterhouse Coopers; Deloitte Touche Tohmatsu; Ernst & Young; or, KPMG) (the
"Selected Accounting Firm").
b. The Selected Accounting Firm shall review the WGAW's foreign levies
program, from inception to the present, according to Generally Accepted Accounting Principles
(GAAP) and shall determine and issue a report analyzing and setting forth the following:
-2-

1. on an annual basis, the amount of Foreign Levy Funds collected by
the WGAW from the inception of the WGAW's foreign levies
program to the present, including all interest earned on the Foreign
Levy Funds while in the possession or control of the WGAW;
2. on an annual basis, the amount of Foreign Levy Funds distributed
by the WGA W to writers (or their heirs, successors or other proper
parties) from the inception of the WGA W' s foreign levies program
to the present, including any distributed interest on the Foreign
Levy Funds;
3. on an annual basis, the amount of Foreign Levy Funds currently
held by the WGAW, including all interest earned on the Foreign
Levy Funds while in the possession or control of the WGAW.
c. The comprehensive report will be posted and published on the WGAW's
website and remain so posted and published for a period of five (5) consecutive years.
4. Annual Review of WGA W's Foreign Levies Program.
a. For fiscal year 2009 and all subsequent fiscal years in which WGAW
maintains its foreign levies program, the WGA W shall, as part of its annual financial review,
have a review performed of the foreign levies program. Said review of the foreign levies
program shall be performed by the same accounting firm that WGA W selects for its overall
annual review.
b. WGA W currently posts and publishes on its website annual reports in
their entirety, including full financial statements and notes. The review of the foreign levies
program will be included in this full and complete posting and publication.
5. Evaluation of the WGA W's Foreign Levies Program by Consultants.
a. The WGA W shall engage consultants to provide a one-time review and to
make recommendations to improve the processing and distribution of Foreign Levy Funds to
members of the Settlement Class, including Plaintiffs.
b. Counsel for the Plaintiffs shall select one or two consultants, and the
WGA W may also select additional consultants.
c. The consultants shall prepare and issue a report(s) which shall include
recommendations on how the WGAW can improve the processing and distribution of Foreign
Levy Funds. The report(s) will be provided only to plaintiffs' counsel and the WGAW and will
not be published.
-3-

d. Counsel for the Plaintiffs and representatives of the WGA W shall meet, if
possible with the consultants present, to review the report( s) and discuss implementation of some
or all of the consultants' recommendations. Following this meeting(s), the WGAW shall
implement whichever of the proposals it deems, in good faith, to be appropriate. , If counsel for
the Plaintiffs believe that the WGA W has not acted in good faith in failing to implement any of
the consultants' recommendations, then counsel for the Plaintiffs and the WGA W shall first seek
to resolve by mediation pursuant to Paragraph 14.a. of this Settlement Agreement, and, if
mediation fails, then by binding arbitration pursuant to Paragraph 14.b. of this Settlement
Agreement.
6. Publication Of and Registration Under WGA W's Foreign Levies Program.
a. For a period of three (3) years after the Effective Date (as defined below),
on an annual basis, WGAW shall publicize the existence and availability of Foreign Levy Funds
and the WGAW's foreign levies program to writers in industry and non-industry publications.
The decision as to which publications to utilize for these purposes shall be jointly decided by
Plaintiffs and the WGA W.
b. To further publicize the existence and availability of Foreign Levy Funds
to writers and to further the implementation of the WGA W' s foreign levies program, the
WGAW's website (currently, www.wga.org) will contain the following content, which shall be
published and maintained after the Effective Date and periodically updated, all as follows:
1. the WGAW will report on the status of collection of Foreign Levy
Funds and operation of the foreign levies program, including the
status of any particular issues that may arise which may impact the
payment or collection of Foreign Levy Funds. This report shall be
updated on an annual basis. Each such report shall be maintained
on the WGAW's website for at least a two (2) year period after it
is issued;
2. a description and explanation of the genesis, nature and operation
of the foreign levies program, the sources of Foreign Levy Funds,
and the procedure for a writer or other appropriate person (e.g., a
writer's lawful heir) to submit a claim to the WGAW for the
payment of Foreign Levy Funds. This content will be reviewed,
and if necessary, updated by the WGA W on an annual basis and
shall be continuously maintained on the WGA W' s website;
3. all titles the WGAW is aware of for which Foreign Levy Funds
have been collected but for which a writer (or writers) has not been
identified. Such listing(s) will be reviewed, and if necessary,
updated by the WGA W on an annual basis and continuously
maintained on the WGA W' s website;
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IV. the names of all writers who may be eligible for payment of
Foreign Levy Funds but who have not been paid because the
WGAW cannot locate them or their lawful heirs. Such listing(s)
will be reviewed, and if necessary, updated by the WGA W on an
annual basis and shall be continuously maintained on the
WGA W' s website;
v. an online mechanism for writers to register titles of works for
which payment of Foreign Levy Funds may become due.
c. In addition to registration via its website, the WGA W will create a
registration alternative, other than online registration, for writers to register titles of works for
which payment of Foreign Levy Funds may become due.
d. For all publication and website content called for under this Paragraph 6,
the WGA W shall assign and provide, via its website, the names and contact information of the
person or persons it assigns as contact persons for writers in connection with the WGA W' s
foreign levies program and the payment of Foreign Levy Funds to writers. This information
shall be continuously maintained on the WGA W' s website.
7. Payment of Foreign Levy Funds in WGAW's Possession as of the Effective
Date.
a. The WGAW will use its best efforts to pay all Foreign Levy Funds in its
possession as of the Effective Date to the proper recipients within three (3) years of the Effective
Date (as defined below). Plaintiffs acknowledge that some of these Foreign Levy Funds will not
be able to be distributed.
b. Plaintiffs and WGA W shall discuss in good faith and shall establish the
circumstances and facts under which Foreign Levy Funds in the possession of the WGAW shall
be deemed incapable of distribution, such as the passage of a certain amount of time or the poor
quality of information provided by the collection society. If the parties cannot reach agreement
on this, the matter shall be submitted to mediation pursuant to Paragraph 14.a. of this Settlement
Agreement.
c. Plaintiffs and WGA W shall discuss in good faith and shall establish what
shall be done with Foreign Levy Funds in the possession of the WGAW that have been
determined to be incapable of distribution, including whether such Foreign Levy Funds may be
used to provide enhanced payments to writers whose payments of Foreign Levy Funds were
previously delayed. If the parties cannot reach agreement on this, the matter shall be submitted
to mediation pursuant to Paragraph 14.a. of this Settlement Agreement.
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8. Payment for Administrative Costs of the WGA W's Foreign Levies Program.
a. The cost of administering the WGA W' s foreign levies program, including
the cost of annual reviews, consultants, notices, and publicity called for by this Settlement
Agreement, shall be paid for from interest earned on collected Foreign Levy Funds and from an
administrative fee charged by the WGAW to writers who receive payments of Foreign Levy
Funds.
b. The administrative fee called for under this Paragraph 8 may not exceed
ten percent (10%) of the Foreign Levy Funds paid to writers.
c. The amount of the administrative fee called for under this Paragraph 8
shall be reasonable and any administrative fees collected in excess of the costs of administration
will carry over to offset future costs of the foreign levies program. The reasonableness of the
administrative fee shall be judged by fees charged for similar services by other organizations,
such as the Independent Film & Television Alliance, Canadian Screenwriters Collection Society,
Directors Rights Collective of Canada, and the Directors and Producers' Rights Society of Great
Britain ("DPRS").
9 . Joint Press Release.
The parties shall issue a joint press release in the form of Exhibit _ hereto.
10. No Obligation to Collect.
Nothing herein shall be construed to obligate WGAW to continue to receive and
distribute foreign levies, from any jurisdiction or collecting society. WGA W may elect at any
time not to receive, retain, and distribute foreign levies from some or all jurisdictions and
collecting societies, and may so instruct or agree with any foreign collecting society. Provided,
however, that to the extent WGA W does receive and retain foreign levies, it shall handle such
foreign leviesas set forth in this agreement. In the event WGA W elects at any time not to receive,
retain, and distribute foreign leviesfrom any foreign country, it will provide notice to that effect
by means of a posting on the WGA W website, a single advertisement in Daily Variety and The
Hollywood Reporter, and a letter to each writer to whom it previously has actually paid foreign
levies.
11. Released Claims.
a. As of the Effective Date, and excepting the ongoing and future obligations
and duties called for under this Settlement Agreement, Plaintiffs and the members of the
Settlement Class, on behalf of themselves, their heirs, and their past, present and future spouses,
agents, attorneys, trusts, beneficiaries, devisees, legatees, predecessors- and successors-in-
interest and assigns (all collectively referred to as "Releasors"), hereby release, discharge and
dismiss WGA W, including each of its predecessor and successor firms, affiliated companies,
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current and former parents and subsidiaries, and all of their respective shareholders, directors,
officers, employees, agents, attorneys, insurers and assigns (all collectively referred to as the
"Releasees") of and from any and all "Released Claims." "Released Claims" shall mean any and
all known and unknown claims for relief, causes of action, suits, rights of action, or demands, at
law or in equity, whether sounding in contract, tort or equity, including, without limitation,
claims for equitable or injunctive relief, damages, indemnity, contribution, or for costs, expenses
and attorneys' fees, which Releasors now or at any past or present time have, own or hold
against the Releasees based upon and/or arising out of the facts and circumstances alleged in the
Action.
b. Plaintiffs and the Settlement Class expressly, knowingly and voluntarily
waive any and all rights and/or benefits conferred upon them by Section 1542 of the California
Civil Code. Section 1542 of the California Civil Code reads in its entirety as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
12. Class Certification and Court Approval of Settlement.
a. This Settlement Agreement is conditioned on the Court certifying the
Settlement Class described in Paragraph 1 hereof and approving all of the terms of settlement
stated in this Settlement Agreement. The conditions set forth in this Paragraph shall be deemed
satisfied upon the "Effective Date," which is defined as the expiration of (a) the time for any
person to appeal the Judgment of Dismissal giving final approval to the class settlement reflected
in this Settlement Agreement; or (b) if timely appeal of the Judgment of Dismissal is taken, upon
issuance of the remittitur, or upon dismissal or other termination of the appellate proceedings
that affirms the Court's certification of the Settlement Class and approval of all of the terms of
settlement stated in this Settlement Agreement. Plaintiffs shall not hereafter object to the
settlement and shall not appeal the Judgment of Dismissal.
b. Class Certification and Preliminary Approval Order. The Plaintiffs, as
representatives of the Settlement Class, shall file a motion with the Court requesting certification
of the Settlement Class described in Paragraph 1 hereof and a preliminary approval order
providing for:
1. a finding that mailing of a class notice to the members of the
Settlement Class at the last known address to the extent such
information is available to WGA W through its records in the form
attached hereto as Exhibit "1" (mail) and Exhibit "2" (publication)
are the only notices required of the settlement to members of the
Settlement Class and that such notice satisfies the requirements of
due process and applicable state law;
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11. a finding preliminarily that the terms of settlement set forth in this
Settlement Agreement are fair, reasonable and adequate to the
Settlement Class; and
12. the setting of schedules for mailing and publication of notice to the
Settlement Class, Right to Object, Hearing on Fairness and Final
Approval of Settlement, and Hearing on Attorneys' Fees and
Costs.
The WGA W shall approve the form and content of the class certification and preliminary
approval order, after which it shall not oppose this motion and shall file a joinder requesting that
the Court grant the motion in all its particulars.
c. Notice o[Preliminary Approval Order and Final Fairness Hearing. If the
Court certifies the Settlement Class and enters the preliminary approval order described in
Paragraph 10.b. above:
1. within twenty (20) days of the entry of such Order, the
Administrator (as defined below in Paragraph 12) shall cause to be
delivered by First Class U.S. Mail the Notice approved by the
Court and attached hereto as Exhibit" 1" to each member of the
Settlement Class at his or her last known address to the extent such
information is available to WGA W through its records;
2. as soon as practicable, the Administrator (as defined below in
Paragraph 12) shall cause publication of the Notice approved by
the Court and attached hereto as Exhibit "2" in the publications
and at the frequency approved by the Court in the Preliminary
Approval Order.
d. Final Approval/Fairness Hearing/Judgment. The final approval hearing
shall be on , 2008, or at such later time as the Court may order. If
the Court orders final approval of the settlement of the Action as outlined in this Settlement
Agreement, then at the same final approval hearing the Settling Parties shall immediately request
the Court for a final judgment. The judgment shall:
1. find that the previously given notices to the Settlement Class
satisfy the requirements of due process and the requirements of
applicable state law;
2. find that the terms of the settlement set forth in this Settlement
Agreement are fair, reasonable and adequate to the Settlement
Class under applicable state law;
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111. find that each member of the Settlement Class shall be bound by
this Settlement Agreement, including the release set forth at
Paragraph 11 hereof, and conclude that the settlement provided in
this Settlement Agreement should be and is approved;
IV. enter judgment;
v. retain jurisdiction over all matters relating to the interpretation,
administration, implementation, effectuation and enforcement of
this Settlement Agreement;
VI. as further discussed in and in accordance with Paragraph 15
hereof, determine reasonable legal fees and costs for counsel for
Plaintiffs and the Settlement Class in the Action;
V11. provide for enhanced compensation to each Plaintiff in the amount
of Dollars and No Cents ($?,???OO) as and for the time
and expense each Plaintiff has incurred and will incur in serving as
representative for the Settlement Class herein, with such enhanced
compensation to be paid by WGA W; and
V111. enter such other and further orders as the Court deems necessary
and appropriate to carry out the agreements of the Settling Parties
expressed in this Settlement Agreement.
e. Ifmore than ten percent (10%) of the putative members of the Settlement
Class properly and timely opt-out of the settlement provided in this Settlement Agreement, then
the WGA W, at its sole discretion, may void such settlement and this Settlement Agreement.
WGA W shall have the burden of establishing that ten percent (10%) of the putative members of
the Settlement Class, in fact, properly and timely opted-out of the settlement stated in this
Settlement Agreement. If Plaintiffs and the WGA W disagree in this regard, then either party
may file a motion for determination by the Court.
13. Judgment. The Settling Parties shall submit a proposed Judgment in the form
attached as Exhibit "3" and the Court shall retain jurisdiction to enforce the terms of this
Settlement Agreement pursuant to California Rules of Court, Rule 1859(h).
14. The Administrator. The coordination and giving of notices in accordance with
the terms of this Settlement Agreement and ultimate orders of the Court will be administered by
a third party administrator. The third party administrator shall also receive and track the number
of persons properly opting-out of the settlement stated in this Settlement Agreement. The
Settling Parties agree that the third party administrator shall be _
WGA W shall be responsible for the third party administrator's fees and costs.
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15. Attorneys' Fees and Costs.
a. The allowance, disallowance, or modification by the Court of the
application by plaintiffs' counsel for an award of attorneys' fees and costs are not part of this
Settlement Agreement and are to be considered by the Court separately from the Court's
consideration of the fairness, reasonableness, adequacy, and good faith of the settlement.
WGAW will not oppose a request by plaintiffs' counsel for attorneys' fees in an amount which
equals _% of actual fees (but not costs) based on time and expense records provided by
plaintiffs' counsel, but which in no event will exceed $ __ , including costs. Plaintiffs'counsel
may further apply for additional reasonable attorneys' fees incurred to the extent necessary to
prevail on any appeal filed by a third party on an issue other than attorneys' fees. Any award of
attorneys' fees to plaintiffs' counsel in connection with this Settlement Agreement shall be the
sole award payable to plaintiffs' counsel in connection with (i) the subject matter, allegations,
and causes of action asserted in this Action, (ii) any foreign levies distributed by WGA W or
deposited/remitted to any governmental authority at any time, and (iii) any claim under Section
1021.5 of the California Code of Civil Procedure, and all undersigned counsel for plaintiffs agree
that they shall be barred from seeking any fee recovery in connection with the foregoing.
b. Any order or proceedings relating to the application by plaintiffs' counsel
for an award of attorneys' fees and costs, or any appeal from any order relating thereto or
reversal or modification thereof, shall not operate to terminate or cancel the Settlement
Agreement, or affect or delay the finality of the judgment approving the Settlement Agreement
and the settlement of this action, as set forth herein.
16. Mediation and Binding Arbitration.
a. Any mediation called for under this Settlement Agreement shall be before
Joel M. Grossman, Esq. Mr. Grossman was the mediator during the previous mediation sessions
between the Settling Parties. Mr. Grossman's current business address and telephone are: ADR
Services, Inc., 1900 Avenue of the Stars, Suite 250, Los Angeles, CA 90067-4304; (323)933-
1916.
b. Any binding arbitration called for under this Settlement Agreement shall
be before Bernard Gold, Esq. The arbitration shall be conducted pursuant to the Commercial
Rules (Complex) of the American Arbitration Association. Mr. Gold's current business address
and telephone are: Proskauer Rose LLP, 2049 Century Park East, Suite 3200, Los Angeles, CA
90067; (310)557-2900. Each party participating in binding arbitration hereunder shall bear its
own fees and costs, including attorneys' fees.
17. No Admission. This Settlement Agreement is entered into for purposes of
settlement and compromise only. Neither this Settlement Agreement nor anything contained
herein, nor any act or thing done in connection herewith, is intended to be nor shall be construed
or deemed to be an admission by any party to this Settlement Agreement of any liability, fault or
wrongdoing, or an admission by any such party of any fact, allegation or claim whatsoever.
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18. Integrated Agreement. This Settlement Agreement constitutes and contains the
entire agreement and understanding between Plaintiffs and WGA Wand supersedes and replaces
all prior statements, representations, negotiations and agreements, proposed or otherwise,
whether written or oral, concerning the subject matter hereof. This is an integrated document.
This Settlement Agreement may only be modified by a writing approved and executed by all
parties and their counsel.
19. Independent Legal Advice and Authority. Each of the Settling Parties has
received independent legal advice from his, her or its counsel regarding the meaning and legal
effect of this Settlement Agreement, the advisability of making the agreements provided for
herein, and the execution of this Settlement Agreement, and fully understand the same. The
Settling Parties executing this Settlement Agreement have the full right and authority to enter
into this Settlement Agreement on behalf of himself, herself, or itself, or any person or entity on
behalf of whom it enters into this Settlement Agreement in a representative capacity, to bind
fully such person or entity to the terms and obligations of this Settlement Agreement. The
Settling Parties executing this Settlement Agreement have full power to enter into this
Settlement Agreement and have not heretofore assigned, transferred or encumbered, or purported
to assign, transfer or encumber, voluntarily or involuntarily, to any person or entity, all or any
portion of the obligations or rights which are the subject of this Settlement Agreement.
20. No Reliance On Representations By Other Settling Parties. In making their
decision to enter into this Settlement Agreement, none of the Settling Parties are relying on any
representation, express or implied, of any kind by any other Settling Party, or any representative
of any Settling Party, and all Settling Parties have read the contents hereof, have been fully
advised by counsel as to the consequences thereof, and have signed the same as a free act.
21. Counterparts. This Settlement Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which taken together shall constitute a
single instrument. Photographic or facsimile copies of signed counterparts may be used in lieu
of originals for any purpose and shall have the same force and effect as an original ink signature.
22. California Law. This Settlement Agreement shall be interpreted in accordance
with the laws of the State of California.
23. Notices to Counsel. All notices and communications called for under this
Settlement Agreement to Plaintiffs or WGA W, or their respective counsel, shall be addressed as
follows:
If to Plaintiffs:
Neville L. Johnson, Esq.
Johnson & Johnson, LLP
439 North Cannon Drive, Suite 200
Beverly Hills, CA 90210
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Phone: (310)975-1080
FAX: (310)975-1095
and
Paul R. Kiesel, Esq.
Kiesel Boucher Larson LLP
8648 Wilshire Boulevard
Beverly Hills, CA 90211
Phone: (310)854-4444
FAX: (310)854-0812
If to WGAW:
Emma Leheny, Esq.
Rothner, Segal & Greenstone
510 South Marengo Avenue
Pasadena, CA 91101
Phone: (626)796-7555
FAX: (626)577-0124
IN WITNESS WHEREOF, the Settling Parties have caused this Settlement Agreement
to be executed by each Plaintiff, WGA Wand their respective duly authorized attorneys:
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