When two weeks ago, The Los Angeles Times published a scathing expose on the small membership and questionable ethical practices of the Hollywood Foreign Press Association, one thing some might have overlooked was that a federal judge was ready at that time to decide whether a Norwegian journalist could move forward in an antitrust lawsuit against the entity behind the Golden Globe Awards. The Los Angeles Time The story begins with a judge last November who sided with the HFPA against Kjersti Flaa, which is true, but the judge allowed Flaa to amend her complaint, which she later did with the HFPA who was now asking for a second dismissal. In short, the trial is ongoing and is probably at its most crucial point.
All of this is relevant because on Monday, Flaa’s attorney asked U.S. District Court Judge Stanley Blumenfeld for judicial notice of what was in the Los Angeles Time February 21. Namely, the story titled “Golden Globes Voters in Uproar: Members Accuse Hollywood Foreign Press Assn. personal dealings and ethical breaches.
On Thursday, the HFPA blasted Flaa’s “most egregious” move to get the judge to recognize “anonymous hearsay.”
“Plaintiffs’ request for judicial notice is a transparent attempt to bias the Court,” writes HFPA attorney Marvin Putnam. “As Defendants asserted from the outset, this case was never about asserting legally viable causes of action…Since then, Plaintiffs’ press campaign has only intensified, its origins still being linked to the unfounded complaint – and nothing more. After the Los Angeles Times allowed himself to be armed to advance Ms. Flaa’s agenda, the plaintiffs are now seeking to use the press they alone created to bolster their baseless antitrust claims or to bolster their legally irrelevant and salacious allegations.
Although there is probably some benefit to a judge acknowledging scandal, there is also an advantage in showing the judge that the other party is pleading in the press. Nor is it new for lawyers to attribute the mere publication of stories to their opponents. (Too easily in our experience. Not everything is the result of a press release.)
For now, in this case, Judge Blumenfeld must assess whether Flaa has addressed the main flaw in his trial which alleges that the HFPA monopolized opportunities for foreign entertainment journalists.
That gap (at least for now) is not whether the HFPA really has market power or even precisely whether the HFPA can hurt non-member journalists like Flaa by taking advantage of its privileged position to interview movie stars. list A, but rather if there is even a market to be defined here. As the judge said in his November ruling, “Plaintiff defines the product market as ‘entertainment information.’ This product description is ambiguous, failing to identify the relevant type, source, or medium of entertainment news. It also fails to allege that “entertainment information”, even if limited to movies and television programs, is not reasonably interchangeable with other forms of entertainment information (e.g., sports, music, literature and travel).
It’s a rather technical failure — and lawmakers like Sen. Amy Klobuchar are currently proposing to change federal antitrust law so that plaintiffs no longer have to define a relevant market before getting the go-ahead in cases. Nevertheless, since this has become the key problem, it allows HFPA to point the Los Angeles Time‘ special access tale (for example, Paramount allegedly offered 30 HFPA members a two-night stay at the five-star Peninsula Paris hotel to promote Emily in Paris) and say it’s not legally relevant.
Or take the fact that the 87 members of the HFPA include no black journalists.
This is what you say to a judge.
The HFPA states, “Leaving aside the fundamental issues of asking the Court to take cognizance of an opinion editorial that the HFPA ‘should be more aggressive’ in creating a racially diverse membership, it would difficult for the plaintiffs to submit less probative statements for their antitrust claims. The plaintiffs, of course, are not alleging that their exclusion from the HFPA was based on racial animosity. The diversity statements are entirely irrelevant to any material fact relating to market definition, market power, antitrust harm, or any other matter that plaintiffs would need to prove. None of these statements assist the Court in adjudicating plaintiffs’ only remaining claims against the HFPA – they are clearly designed to inspire contempt from defendants.
Here is the full HFPA filing yesterday following the Los Angeles Time story:
Correction: This story originally incorrectly reported that the Los Angeles Times article omitted the judge’s acceptance of an amended complaint and the ongoing nature of the legal dispute.