Amended suit vs. merger seeks trial, damages

With ballots beginning to hit members' mailboxes, opponents of the SAG-AFTRA merger have amended their lawsuit against SAG to ask for a jury trial and monetary damages. Move comes a week after the four-count civil complaint was filed in Los Angeles. Plaintiffs allege the Screen Actors Guild and its leaders are attempting to merge with the American Federation of Television and Radio Artists "without conducting the necessary due diligence." SAG has labeled the suit "a clear attempt at circumventing the will of the membership" and "a public relations stunt" and has moved to dismiss it.Plaintiffs' attorney David Casselman of Wasserman, Comden, Casselman & Esensten told Variety that SAG is spending more than $2.5 million on the merger. Ballots are being mailed to 120,000 SAG members and 70,000 AFTRA members, touting the combo as giving performers more bargaining clout. To be approved, the merger must receive at least 60% of the votes from each union.The suit is aimed at preventing SAG from counting the votes on March 30. The amended complaint alleges that the plaintiffs had requested a delay in spending until SAG fulfilled its own fiduciary rules."The individual defendants intentionally and knowingly refused to abide by the SAG constitutional requirements, board resolutions and their fiduciary obligations to the members," the complaint said. "They should now be obligated to reimburse SAG for all funds expended, whether by staff or for otherwise, for time and expense associated with this unnecessary and improper merger effort."The lawsuit, filed by more than 60 SAG members including Martin Sheen and Ed Harris, also contends that SAG is violating its own rules by not conducting a comprehensive analysis of combining the SAG and AFTRA pension and health plans -- which are operated separately from the unions and overseen by union-industry boards. The unions' summary of the feasibility study, containing opinions of seven attorneys with experience in the field, noted that several hundred multi-employer pensions have merged over the past 25 years and that there is no legal obstacle to merging the SAG and AFTRA pension and health plans.Monday's filings by the opponents included a declaration by Alex H. Brucker, an attorney with three decades of experience in employee pension and health plans, that blasted SAG for asserting that merging the unions and the plans would "only benefit" participants and that "merger is the best way to protect our benefits.""These are not supportable statements of fact," Brucker said.Merger backers contend that combining SAG and AFTRA will make it easier to combine the plans as a first step toward resolving the problem that performers face in making contributions to the separate plans and then not meeting the earnings qualifications. Brucker said in his declaration that the question of merging SAG and AFTRA is "indistinguishable" from the question of merging the plans and can't be considered separately."It is my opinion, based on my careful consideration of this issue, that a plan merger raises complex issues, could create serious problems and conflicts and could result in loss of benefits for both SAG and AFTRA members," Brucker said. "The precise impact on plan benefits (or required member and co-sponsor contributions) cannot be properly assessed without an ERISA (Employee Retirement Income Security Act) Impact Report."SAG members turned down merger proposals in 1999 and 2003 while AFTRA members supported both combos.Casselman also filed a declaration by Patrick Byrnes, president of Actuarial Consultants, who asserted that the existing SAG pension plan is "relatively richer and more beneficial" to SAG members, than the existing AFTRA plan. "Generally speaking, based on my experience, it is not possible to merge a plan with higher benefits and a plan with lower benefits and (without additional funding) produce a joint plan providing the equivalent of the higher benefit formula for all participants," Byrnes said. He also said that without a study to determine how the pension plans would be merged, there's no way to predict the precise outcome. "But, in my experience, it is likely that the combination of the existing SAG and AFTRA plans will either require additional funding or SAG benefits would have to be reduced," Byrnes added.SAG had no comment Monday about the amended complaint. Both sides asked U.S. District Court Judge James Otero for a hearing on March 26.The guild filed pleadings Monday to dismiss the suit; a pleading contending the opponents lack standing to file; and an anti-SLAPP (strategic lawsuit against public participation) motion. It also filed a declaration by SAG national exec director David White, including his assertion that the merger has been discussed on numerous websites, web pages on well-known social media sites, blogs, and other online communication vehicles devoted to internal SAG issues many of which are member driven, some of which are maintained by the Guild and AFTRA, some by pro-merger groups, some by anti-merger groups, and some that take no official position."Thus, the members of SAG and AFTRA have innumerable outlets to consider the views and information of others on the merger question, and contributetheir own to the debate," he said. Contact Dave McNary at dave.mcnary@variety.com