Let's say, as recent reports have suggested is imminent, you've been suspended on the basis of a force majeure. Are you in the same boat as others in your situation, and if so, what can you do about it?
When I last wrote on this topic for VIP+ back in May, things were somewhat speculative. The WGA had just gone on strike, and the entertainment industry had not yet been turned upside down. Months later, both have changed, with the WGA and SAG-AFTRA each on the picket lines, the DGA sitting back with its deal, hoping that the "favored nations" status (an improved term tied to those of others negotiating similar terms) it enjoys with its sister-guilds' negotiations bears fruit, and a "town" and business in turmoil. So now we're de aling with practical realities.
The guild agreements provide a certain amount of guidance (and subtle suggestions) in that regard, as do the various studio forms, while independent agreements can vary wildly. First and foremost is determining when and how a force majeure suspension or termination is initiated.
The initial determination of force majeure and its effect(s) and timing are in the hands of the producers (using that term to blanket studios, production companies and networks and not individual producers per se) and, as such, may also be a part of the guilds' own collective-bargaining terms (such as the WGA's Articles 7 and 26 and SAG-AFTRA's Film & Television Agreement Section 61).
Well-negotiated agreements (from the talent's side) often provide that any force majeure suspension or termination must be non-selective; in other words, you cannot be suspended or terminated unless everyone else similarly situated is likewise suspended or terminated.
The flip side of that is a reinstatement right, meaning if you lift the suspension for anyone else similarly situated, yours is lifted contemporaneously. There are any number of subtleties and nuances, such as timing and availability, but that's the gist of it.
Also, while a bit rarer, force majeure event(s) may include more than one event, and experienced dealmakers know to consider whether and the degree to which more than one force majeure suspension (or termination trigger) can occur within a certain period (e.g., no more than one force majeure suspension based upon a given "event" in a five-month period, nor multiple suspensions over nine months in the aggregate during any given 12-month period).
Does that mean a suspension predicated on the WGA strike is a separate suspension from one predicated on the SAG-AFTRA walkout? Assuming so, we may find out the ramifications, given that two separate strikes could allow a significantly longer suspension period in some cases, thus lessening the effect on the producers as they tack on time.
We see now that force majeure can cut both ways, as the companies initiate and the talent has the ability to flip the script, as it were. That's where the tactics kick in. From the producer side, do you declare a force majeure and start a ticking time bomb that may very well blow up in your face, or do you simply ride the strike wave, which has the effect of stopping the clock itself, at least for the striking talent? From the talent side, do you push for reinstatement or termination or call their bluff?
Part of the force majeure dance is pretext to shed unwanted deals, be they overly expensive, less than productive and disfavored deals (as during a regime change) or otherwise. While most producers have been content to shut things down (including the payment spigot) and wait it out as their bottom line temporarily gets a bump (just in time for reporting periods), in a number of cases it has moved into put-up-or-shut-up time.
In other words, contractual force majeure termination rights are now starting to flip to talent and perhaps forcing producers' hands, and the time to terminate (or reinstate) is coming due, meaning that the coming weeks should be revelatory as many productions/talents short- and long-term prospects shake out.
In some cases, the producers don't care and are content to watch talent walk and productions disintegrate; in others, they may not be quite so willing to see actors leave, taking with them potential leverage down the road, especially regarding shuttered television series with viable commercial prospects.
Not to be missed is the "downstream" effect of force majeure — the collateral damage. In the context of a strike in particular, a force majeure is essentially a complete shutdown of production and certain promotional activities utilizing struck guild talent.
During that time, the practices and politics of force majeure will reign. For my money, the guilds would prefer to get back to the table and hammer out a deal, while the producers would prefer to see the guilds burn through their strike funds and the patience of their members while they manipulate release dates with completed content to somewhat pacify (and delay) consumer appetites and increase short-term bottom-line reports. And those with robust distribution (including foreign content) will be less affected, for now.
Understanding the legalities, the landscape and the practical realities (including seeking interim-agreement status, which is a topic for a different day) requires engaging with knowledgeable counsel.
Gregg Ramer is an entertainment attorney in Los Angeles who has represented both talent and companies in addition to having worked for two major entertainment guilds.
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