Law360 (May 11, 2023, 8:24 PM EDT) — An award-winning Canadian Broadway producer is appealing to the Second Circuit after a lower court tossed his suit alleging that the Actors’ Equity Association unlawfully blacklisted him following a labor dispute over a musical.
Garth Drabinsky filed a notice of appeal on Thursday in the New York federal court looking to overturn U.S. District Judge Lorna G. Schofield’s ruling last month granting Actors’ Equity Association’s motion to dismiss.
Further details about the appeal were not immediately available, but an attorney for Drabinsky, Richard A. Roth, told Law360 on Thursday he believes the appeal will succeed.
“The lower court made errors that we firmly believe the Second Circuit will reverse,” Roth said. “We look forward to moving forward to get this case back on the calendar and trial ready.”
The court found Drabinsky’s claims under federal antitrust law are blocked by an exemption for union activity and that claims for negligence, defamation and intentional tort are barred by state law precedent.
Drabinsky originally sued Actors’ Equity, which represents Broadway actors and stage managers, for defamation in October 2022. The suit sought $50 million in damages over allegations that the union engaged in “an intentional campaign of harassment and abuse” against Drabinsky stemming from a production of the 2022 musical “Paradise Square.”
The antitrust claims added last December accuse Actors’ Equity of blacklisting Drabinsky when it placed him on a “Do Not Work” list following complaints from the cast of “Paradise Square” that the producer created a hostile work environment and withheld wages.
Judge Schofield found that the union is exempt from the antitrust claims under long-standing U.S. Supreme Court precedent that allows union members to collectively withhold their labor from a particular employer, even when the action is driven by a previous labor dispute.
Drabinsky had argued that Actors’ Equity wasn’t exempt since several other groups, including the American Guild of Musical Artists, American Guild of Variety Artists, Guild of Italian American Actors and SAG-AFTRA, also allegedly took part in the boycott.
But Judge Schofield said the other groups’ participation would also be covered by the labor exemption since their members can compete against the members of Actors’ Equity for roles as actors and positions as stage managers in the entertainment industry.
Judge Schofield tossed Drabinsky’s negligence, defamation and intentional tort allegations under a 1951 ruling by the New York Court of Appeals in Martin v. Curran . In that case, the court found claims against unincorporated associations could proceed only “where the individual liability of every single member can be alleged and proven.”
The judge said Drabinsky cannot show that every member of Actors’ Equity had a part in his placement on the “Do Not Work” list.
A representative for Actors’ Equity declined to comment on Thursday.
Drabinsky is represented by Richard A. Roth of The Roth Law Firm PLLC and Joshua D. Wright and Derek W. Moore of Lodestar Law & Economics PLLC.
Actors’ Equity Association is represented by Susan Davis, Evan Hudson-Plush and Olivia R. Singer of Cohen Weiss & Simon LLP, and Jeffrey L. Kessler, David L. Greenspan and Sarah L. Viebrock of Winston & Strawn LLP.
The case is Drabinsky v. Actors’ Equity Association, case number 1:22-cv-08933, in the U.S. District Court for the Southern District of New York.
–Additional reporting by Beverly Banks and Piper Hudspeth Blackburn. Editing by Kristen Becker.
Update: This story has been updated with a comment from Richard Roth.