Bona Law Client Seeks Supreme Court Review of Labor Union Overreach in Antitrust Case
November 12, 2024
In a recent petition for a writ of certiorari, Bona Law asks the U.S. Supreme Court to review the scope of labor unions’ exemption from federal antitrust laws. The petition, filed on behalf of Garth Drabinsky, a prominent theatrical producer, challenges the Second Circuit’s decision that shielded the Actors’ Equity Association (Equity), the labor union representing Broadway performers and stage managers, from antitrust scrutiny for its decision to blacklist Mr. Drabinsky.
Background
Mr. Drabinsky, the celebrated producer behind Tony-winning productions like Kiss of the Spider Woman and Paradise Square, was blacklisted by Equity in July 2022. Despite not being a member of Equity and not being responsible for the wages or working conditions of actors in his productions, Equity placed Mr. Drabinsky on the “Do Not Work” list, which barred him from working as a producer with any Equity members, both on stage and beyond—extending to film, television, and concert productions. This blacklisting was unprecedented in its scope and effect, essentially barring Drabinsky from making a living in the entertainment industry for life.
Equity tried to justify its conduct by claiming that Mr. Drabinsky had breached the union’s collective bargaining agreement (CBA), even though he was not a signatory to the CBA and had no contractual obligations to the union. As alleged, this justification was not only false but also pretextual—created to conceal the union’s broader anticompetitive motives. As a result, Mr. Drabinsky sued Equity, alleging a violation of the Sherman Antitrust Act, which prohibits anticompetitive practices, including unlawful group boycotts.
Legal and Antitrust Implications
This case turned on the statutory labor exemption, which shields certain union activities from antitrust laws. But the exemption applies only when a union acts in furtherance of its legitimate interests related to labor concerns. As the cert petition describes, in Mr. Drabinsky’s case, the union’s conduct—placing him on the blacklist—was not linked to a labor dispute but instead was rooted in a concerted effort to exclude him from the entertainment industry.
Mr. Drabinsky argues that the Second Circuit failed to properly scrutinize the factual claims, including the union’s false justification for its actions. As the petition explains, “When a union’s only justification for its actions is premised on an objectively false claim, this negates the union’s suggestion that it was acting pursuant to a legitimate interest.” Mr. Drabinsky contends that the Second Circuit’s decision to allow invocation of the statutory labor exemption based on this false claim effectively allows unions to escape antitrust liability by offering any justification, no matter how pretextual. This extends the labor exemption far beyond its intended scope, making it virtually impossible for plaintiffs to challenge unlawful union conduct under federal antitrust laws. As the petition discusses, “This also is not the appropriate outcome. Instead, it represents another egregious overreach by a labor union seeking to wield its substantial power well beyond union membership and the terms of its CBA.” This fact underscores the concerns about labor unions exploiting the exemption beyond its traditional scope and the potential danger of setting a precedent that allows such union overreach to go unchecked.
The Request for Supreme Court Review
Mr. Drabinsky's petition emphasizes the broader implications of the case for antitrust enforcement against unions. Specifically, Mr. Drabinsky asks the US Supreme Court to clarify whether the statutory labor exemption should allow unions to circumvent antitrust laws based on fabricated justifications for their actions.
The petition asks the Supreme Court to ensure that the application of antitrust laws against labor unions remains robust and that unions do not gain an unfair advantage by abusing the legal protections afforded to them under the statutory labor exemption. As the petition states, “The antitrust laws should not be defeated so easily by a fabricated, pretextual ‘reason’ offered by a union.” The petition also argues that by upholding this flawed reasoning, the Second Circuit has effectively granted unions a free pass to engage in anticompetitive behavior with no accountability under federal antitrust laws. Such an outcome runs afoul of other recent precedent by the Supreme Court that placed a check on overreach by labor unions and confirmed that disputes involving labor unions are still governed by robust long-standing legal principles, not less stringent standards that some courts had begun to apply.
Next Steps and the Importance of the Case
The petition asks the Supreme Court to assess critical issues related to the scope of the labor exemption and set a precedent for future antitrust challenges involving unions. For Mr. Drabinsky, this case represents not only an effort to restore his career but also a chance to ensure that antitrust laws are applied fairly, without allowing powerful labor unions to overreach and suppress competition in the marketplace.
Mr. Drabinsky is represented by Luke Hasskamp, Jim Lerner, Jarod Bona and Sabri Siraj of Bona Law in the ongoing case, Garth Drabinsky v. Actors’ Equity Association, which could have significant implications for labor unions’ ability to invoke the statutory labor exemption and avoid not only liability but also litigation under federal antitrust laws.