Options Talent lawsuit Part 6 Orlando Florida

72. Instead of honoring those obligations to Plaintiffs, Defendant's conduct and admissions show that they do not even consider Plaintiffs to be their clients. If Defendants truly were managers of the models, then they would refer to the models as their clients.

If Defendants are employment agencies, they would regard the photographers, casting agencies, advertising agencies, magazines, retailers and other employers who hire models as their "clients". And, consistent with their operation as employment agencies, Defendants have repeatedly and consistently stated (in court pleadings and elsewhere) that their "clients" are the models, but the employers who use the agency to hire models. Specifically,

a. Defendant Wilhelmina noted in a recently filed court pleading that, "By reason of their key responsibilities, bookers have important and special relationships with the models who are affiliated with a modeling agency and to the ~ who hire the models." Wilhelmina v. Fernandez, Complaint' 6 (emphasis added);

b. In another pleading, Ford acknowledged that "the defendant's position requires skill and professional adeptness since they must often select models that will satisfy a client's particular needs... [the bookers] were required to deal extensively with Ford's models, employees and desiring the services of said models from all across the country and in fact, the world. The defendants necessarily had to use discretion and skill in recommending Qarticular models to certain clients." Ford Models v. Pillard, Plaintiffs Mem.1n Supp. Prelim.lnj., Aug. 26,1977 (emphasis added);

c. Defendant Ford, through the affidavit of Gerard W. Ford, explained, "they [the bookers] were responsible for recommending models to our ~ for particular assignments." Ford Models v. Pillard. Aff. of Gerard W. Ford' 10, Aug. 26,1977 (emphasis added);

d. Defendant Ford on its web page entitled "Frequently Asked Questions" explains: "To remain competitive modeling agencies must contribute the right girls to this network of photographers, magazines and "http://www.fordmodels.comlcontent.cfm (May 24,2002) (emphasis added);

e. Defendant Click's website makes a clear distinction between models, whom it refers to as "talent" and the employers who hire the models, whom it regards as "clients" -- "Click Models remains committed to its successful strategy of continual superior service provided to our and ~ throughout the world." www.clickmodel.comlnv-aboutus.html (May 24,2002) (emphasis added);

f. Defendant Zoli's website makes the same distinction: "Zoli's reputation for respectful and competent service to advertising clients has persistently provided growth opportunities for the ~ they represent. www.zolimodels.com (November 9, 2001) (emphasis added);

g. Defendant Boss, through an interview with John Babin, Men's Division Director, states, "Over the years, the number of clients that are no longer in existence is unbelievable. If you look back at all of the stores that have closed, gone out of business, no longer use models or have been bought up by big conglomerates, it's frightening... There are more agencies and models than ever and fewer clients.. ." httR://modellaunch.com (May 24, 2002) (emphasis added).

73. In addition to these direct admissions, Defendants also acknowledge, endorse and contribute to books that refer to the models' employers as the modeling agency's clients. For example:

a. The Modeling Life (endorsed by Ford and Elite) states "the clients, meaning the companies who hire models - are likely to be familiar with the model and her work. . . the way the industry is set up, agents are in charge of finding out about all job possibilities and sending their models to clients to try to get those jobs." M. at 239 (emphasis added);

b. The Professional Handbook (contributed to by Ford, Click, Wilhelmina and Zoli) explains, "To best serve its ~, the agency should have complete and current information on the models it represents and be able to helQ the client to find the Qerfect model for the job." N. at 204 (emphasis added); and

c. The Wilhelmina Guide, written by Wilhelmina's former president Natasha Esch: "The agency head sheet is an excellent tool because it is designed so that clients will hang it on their office walls for easy reference. The head sheet is poster sized with the name and a beauty shot of each of the models represented by the agency. M. at 53 (emphasis added). In another publication, "client" is defined as one of several alternatives: , "[O]n a magazine shoot, the client is the fashion editor. On a catalog shoot, it's the representative or art director from the catalog company. On an advertising shoot, it's the corporate client." The Complete Guide, (endorsed by Defendant Elite's Chairman, John Casablancas) at 364.

74. The glossaries of industry publications also define "client" as: a. "[T]he company or entity hiring the model." Your Modeling Career (endorsed by Ford; contributed to by Ford and Wilhelmina and Elite) at 246; or , b. "[T]he entity paying the costs of a shooting, or the individual representing the concern paying the model's fee" The Professional Handbook (contributed to by Ford, Click, Wilhelmina and Zoli contributed) at 480.

75. The website for Modelwire, Inc., defines clients in the following manner: "Modeling agencies traditionally use overnight courier and messengers to hand deliver 'packages' of model portfolios to their clients (photographers. casting agents. ad agencies, magazines, retailers, etc.)... and underscores "Every model's go-sees options, and jobs, etc. are linked to an agency's clients." www.modelwire.com (May 24,2002) (emphasis added).

76. As discussed above, Defendants charge their "clients" - i.e., the models' employers - 20% commissions in addition to the 20% commissions Defendants collect from Plaintiffs. This presents a clear conflict of interest, which had to be waived expressly and in writing. Plaintiffs who had oral contracts with Defendants (comprising a substantial number of Plaintiffs) did not waive this conflict.

77. As fiduciaries, Defendants are required to disclose to Plaintiffs all material information that they possess which is relevant to their relationship. Defendants have each consistently breached this duty in various ways, including by

a. misrepresenting to Plaintiffs their true allegiance to the employers, not the models;

b. failing to reveal that they were not licensed to act as employment agencies under New York Law, and thus were unlawfully engaging in the procurement of employment; and

c. failing to disclose that the 20% commissions that Defendants charged were excessive and unlawful under GBL 170 - 190.

78. Defendants have also breached their fiduciary duties to Plaintiffs by misallocating the monies that they receive on behalf of Plaintiffs. Specifically, Defendants have used a portion of the model's compensation to subsidize their own advertising and administration costs in violation of GBL 187, which states that an "employment agency shall not engage in any of the following activities or conduct: ... (10) Require applicants for employment to subscribe to any incidental service or contribute to the cost of advertising."

79. Defendants also violate GBL 187(8) are by requiring Plaintiffs to pay for the cost of advertising the agency's models under contract. Defendants regularly pass on to Plaintiffs other expenses that should be borne by the agency, such as:

(1) the cost of the modeling bag, which contains the essentials a model must bring to a shoot,

(2) delivery costs incurred in sending a model's portfolio to employers and photographers,

(3) costs associated with sending information or prints via fax, and

(4) Plaintiffs' travel expenses when those expenses are not paid for by the models' employers. ~ Your Modeling Career at 95 - 96, ~ Modeling Handbook at 38, The Wilhelmina Guide at 143.

80. Defendants also unlawfully require Plaintiffs to pay a portion of the costs earmarked specifically as "Agency Promotional Materials". The Complete Guide at 197 (endorsed by Elite's Casablancas).

As stated in The Com12lete Guide, Plaintiffs are required to "pay for their own page in the agency promotion book" and "their share of the cost of the agency head sheet", which is circulated among the models' employers. M. at 198. And while Plaintiffs pay for the costs associated with creating and maintaining the promotion books, Defendants admittedly reap the benefits.

As stated by Wilhelmina's Natasha Esch, "The model book and head sheets sent out to clients reflect the agency's [as opposed to the models'] status in the industry." The Wilhelmina Guide at 53 (emphasis added).

81. Defendants have also engaged in abusive and one-sided collection and reimbursement practices. Typically, a model gets paid when the model's employer pays the agency. However, a model-may still get paid if the model's employer does not pay the agency promptly. In the latter case, the agency withholds a percentage of the model's fee representing the employer's commission and places this withholding in a "reserve fund." Once the model's employer pays the agency, the reserve fund is supposed to be released to the model.

It is incumbent upon the model to determine if and when the agency has been paid in full and to advise the agency that it is time for the agency to pay the model. Often times the agency does not release the reserve fund and fails to repay the model.

82. Defendants' ongoing, intentional breaches of fiduciary duty have harmed Plaintiffs in various ways, in amounts to be determined at trial.

83. In addition, Defendants' repeated and deliberate breaches of their fiduciary duties to Plaintiffs were accomplished through false and fraudulent misrepresentations made to the public at large regarding the nature of their operations, and thus constitute an ongoing fraud on the public for which punitive damages are an appropriate remedy.

84. The nature of Defendants' ongoing breaches of fiduciary duties, their affirmative concealment and misrepresentations of their true allegiances and conduct, were done with the purpose and effect of concealing their wrongdoing from Plaintiffs, and thus have tolled any applicable statute of limitations to Plaintiffs' claims.

Dave
Orlando, Florida

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