tctalent, tc talent, transcontinental talent, trans continental talent, options talent, emodel MODELING AGENCY LAWSUIT amended to name TC Talent RIP-OFF PART 5 OF 5 orlando Florida

PART 5 OF 5......................

FIRST CAUSE OF ACTION
(Price-Fixing as Per Se Violation of Section 1 of the Sherman Act)

1. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 85 as if set forth fully herein.

2. For least the last several years, Defendants have been engaged in an unlawful conspiracy to fix the commissions and charges to professional models and persons who employ professional models. This conspiracy began in or around the mid-1970's, when Defendants Ford (represented by Defendant Jerry Ford) and Wilhelmina agreed to fix the commissions that they charged Plaintiffs to an amount above the statutory limit as provided by GBL 185, and to charge uniform commissions to Plaintiffs. Defendants' agreement to fix prices was later expanded to include Elite and each of the other Defendants, at times and on terms that are known only to Defendants.

3. Pursuant to Defendants' unlawful price fixing agreement, Defendants first raised the commissions they charged to their models to 15%, and then to 20%, which Defendants represent to be the standard commissions models pay in New York (although models earning over $200,000 generally receive a reduced commission rate of 15%). Defendants also conspired over the years regarding the commissions they would charge to the models' employers.

4. Defendants also agreed to implement, and implemented, other price-related restraints that have artificially inflated the costs Plaintiffs must pay to retain an agent. For example, Defendants have worked together and through the IMMA to draft progressively more onerous "standard" contracts that:

1. Require the models to reimburse the agencies for any out of pocket costs incurred by the agencies in advertising the models' portfolios;

2. Require the models to pay the "mother" agency for any modeling job the models obtain, even if the models procured the employment without an agent or with the help of another agency;

3. Require the models to pay usurious interest rates on advanced salaries.

5. Defendants, Plaintiffs and members of the Class work in interstate commerce in the United States and elsewhere.

6. As a direct and foreseeable result of Defendants' violations, Plaintiffs and other members of the Class have been damaged and continue to be damaged in their business or property in that they have to pay non-competitive prices for Defendants' services in the form of the standard 20% commissions (or 15% commissions for those Plaintiffs that are more successful), and revenue that they would otherwise be earning if Defendants did not also charge and collect their additional 20% commission to Plaintiffs' employers.

7. Defendants' price fixing agreement is a per se violation of Section 1 of the Sherman Act. Pursuant to 15 U.S.C. 15(a), Plaintiffs are therefore entitled to recover treble their actual damages caused as a result of Defendants' unlawful price-fixing and such other and further relief as permitted by law, their attorneys fees and the costs of this action.
SECOND CAUSE OF ACTION
(Conspiracy to Evade State Price Regulation as
Per Se Violation of Section 1 of the Sherman Act)

8. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 85 as if set forth fully herein.

9. For least the last several years, Defendants have been engaged in an unlawful conspiracy to evade state regulations that limit the commissions and charges that Defendants could collect as employment agencies.

10. Defendants' conspiracy began in or around the mid-1970's, when Defendants Ford and Wilhelmina agreed to resign their licenses as employment agencies and declare themselves to be managers not subject to state regulation.

11. Defendants' agreement to set prices above the state maximum was later expanded to include Elite and each of the other Defendants, at times and on terms that are known only to Defendants, and has been maintained through the years through various acts, including by the adoption of form contracts and terms that purport to disavow Defendants' legal status as employment agencies.

12. As a direct and foreseeable result of Defendants' unlawful conspiracy, Plaintiffs and other members of the Class have been damaged and continue to be damaged in their business or property in that they have to pay non-competitive prices for Defendants' services in the form of commissions above 10%, and have been required to pay other unlawful charges.

13. Defendants' concerted actions to avoid the price restrictions contained in GBL 170 190 that is, to fix prices constitute a per se violation of Section 1 of the Sherman Act. Pursuant to 15 U.S.C. 15(a), Plaintiffs are therefore entitled to recover treble their actual damages caused as a result of Defendants' unlawful price-fixing and such other and further relief as permitted by law, their attorneys fees and the costs of this action.
THIRD CAUSE OF ACTION
(Violation of Section 1 of the Sherman Act)

14. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 85 as if set forth fully herein.

15. Defendants possess significant market power. Collectively, Defendants are reported to be the largest modeling agencies in the industry and are reported to control well over half of the market, measured by total volume of bookings, for models in New York.

16. As noted above, through Defendants concerted actions, Plaintiffs are required to pay (i) 20% commissions for any modeling engagements, (ii) usurious interest rates for salary advances, and (iii) for the costs incurred by the agencies in advertising the models' portfolios.

17. Defendants have been able to maintain their anti-competitive prices through various formal meetings, such as the IMMA meetings, and through various less formal meetings, at which information on rates, charges, and other terms are discussed, and in which Defendants recently discussed how to respond to new competitors who have offered lower rates than Defendants.

18. Because of Defendants' market power, Defendants have been able to maintain these restraints on competition in violation of Section 1 of the Sherman Act.

19. As a direct and foreseeable result of Defendants' violations, Plaintiffs and other members of the Class have been damaged and continue to be damaged in their business or property in that they have to pay non-competitive prices for Defendants' services in the form of commissions above 10%.

20. Defendants' standardization practices constitute a violation of Section 1 of the Sherman Antitrust Act. Pursuant to 15 U.S.C. 15(a), Plaintiffs are therefore entitled to recover treble their actual damages caused as a result of Defendants' unlawful price-fixing and such other and further relief as permitted by law, their attorneys fees and the costs of this action.
FOURTH CAUSE OF ACTION

11. (Violations of GBL 170 190)

1. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 85 as if set forth fully herein.

2. GBL 186 provides in relevant part, "Any employment agency which collects, receives or retains a fee or other placement contrary to or in excess of the provisions of this article shall return the fee" no matter how they characterize themselves.

3. Because Defendants more than incidentally procure employment for Plaintiffs, Defendants are employment agencies within the meaning of GBL 171(2) and do not fall within the exclusionary provision of GBL 171(8).

4. As such, Defendants must be licensed pursuant to GBL 172, may not charge over 10% commissions pursuant to GBL 185, may conduct only employment agency business on the premises pursuant to GBL 187, and may not impose charges for the incidental costs associated with advertising the models' portfolios.

5. Because Defendants are not licensed, charge over 10% commissions, conduct other businesses on their premises, and charge Plaintiffs for the costs associated with advertising Plaintiffs' portfolios, Defendants are in violation of the aforementioned sections.

6. Pursuant to GBL 186, Defendants are required to return all of the wrongfully obtained fees from Plaintiffs.
FIFTH CAUSE OF ACTION
(Breach of Fiduciary Duty)

1. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 85 as if set forth fully herein.

2. As specified in the agreements between the parties, and as matter of law, Defendants' relationship with Plaintiffs was that of a fiduciary. Plaintiffs reposed trust and confidence in Defendants that they would discharge their various obligations to Plaintiffs in an honest, diligent, and loyal manner. In exchange for their various services, Defendants have received millions of dollars in excessive commission fees from Plaintiffs.

3. As fiduciaries, Defendants had a duty to deal candidly and in good faith with Plaintiffs. Above all else, Defendants' fiduciary duties required them to disclose to Plaintiffs the fact that they were operating as employment agencies without a license in contravention of New York State Law.

4. By failing to disclose that they were in fact acting as employment agencies, and by charging excessive fees for their principal service procuring employment Defendants breached their fiduciary duties owed to Plaintiffs.

5. In addition, Defendants failed to disclose to certain Plaintiffs their conflict of interest in their dual representation of Plaintiffs and Plaintiffs' employers such as photographers, casting agents, advertising agencies, magazines and retailers.

6. As a direct and proximate result of Defendants' breaches of duty as alleged above, Plaintiffs have suffered and will continue to suffer substantial damages, including but not limited to the excessive compensation wrongfully obtained.

7. Defendants have acted willfully, maliciously, and with intentional disregard for Plaintiffs' rights under the agreements. Accordingly, they are liable to Plaintiffs for exemplary and punitive damages in an amount to be determined at trial.
SIXTH CAUSE OF ACTION
(Unjust Enrichment)

8. Plaintiffs repeat and reallege the allegations of Paragraphs 1 through 85 as if set forth fully herein.

9. As discussed above, Defendants are employment agencies as defined by GBL 171. Thus, Defendants must, among other things, be licensed by the Department of Consumer Affairs, limit their commissions to 10% or less, and are prohibited from charging for the incidental costs associated with advertising the models' portfolios.

10. Defendants, however, are not licensed by the Department of Consumer Affairs. Moreover, Defendants have entered into oral and written contracts with Plaintiffs that require Plaintiffs to pay at least 20% commissions in violation of New York state law.

11. Because these oral and written contracts violate GBL 172 and 185, the contracts are unenforceable.

12. Defendants have been unjustly enriched by these unlawful contracts. Thus, Plaintiffs are entitled to an award of damages equal to the fees that Defendants have unlawfully retained.
SEVENTH CAUSE OF ACTION
(Accounting)

13. Plaintiffs repeat and reallege paragraphs 1 through 85 as if set forth fully herein.

14. Defendants have acted willfully, maliciously and in bad faith, in a manner designed to undermine Plaintiffs' efforts to earn a living as models.

15. By charging an excessive and unlawful fee in connection with their services, and engaging in other wrongful practices regarding their billing, expenses and reimbursement practices, Defendants have made a substantial profit at Plaintiffs' expense.

16. Defendants have been unjustly enriched from their wrongful conduct, and should therefore account to Plaintiffs for their profits during the class period.
RELIEF REQUESTED
WHEREFORE, Plaintiffs demand judgment against defendants as follows:

17. That the Court determine that this action may be maintained as a Class Action under Rule 23 of the Federal Rules of Civil Procedure and that Plaintiffs be certified as a Class Representatives and their attorneys as Class Counsel;

18. That the unlawful conspiracy alleged herein be adjudged and decreed a per se restraint of trade or commerce in violation of Section 1 of the Sherman Act;

19. Forfeiture and disgorgement of all fees paid to Defendants, and all secret profits that the Defendants have received as a result of their wrongful conduct;

20. Punitive and exemplary damages to the extent permitted by law;

21. An accounting of all costs and expenses claimed to be incurred on behalf of Plaintiffs;

22. Pre-judgment interest and post judgment interest from the date of entry until the date of satisfaction at the highest rates allowable by law;

23. Reasonable attorneys fees and costs incurred by Plaintiffs in this action; and

7. Such other and further relief as this Court deems just and proper.
Armonk, New York
September 23, 2002
BOIES, SCHILLER & FLEXNER LLP
By: ____________________________________
Andrew W. Hayes (AH-2570)
80 Business Park Drive
Armonk, New York 10504
Tel: (914) 273-9800
Fax: (914) 749-8265
Paul R. Verkuil
570 Lexington Avenue
New York, New York 10022
Tel: (212) 446-2300
Fax: (212) 446-2350
Neville Johnson
Brian Rishwain
JOHNSON & RISHWAIN LLP
12121 Wilshire Boulevard, Suite 1201
Los Angeles, California 90025
(310) 826-2410
Co-Lead Counsel for Plaintiffs

1
39. See Society of Models, Inc. v. Moss, 53 N.Y.S.2d 424, 425-426, (N.Y. Sup. Ct., 1944). ("Especially laudable is [the Commissioner's] obvious sincere desire to protect models against stratagems and machinations to mulct them of illegal fees for procuring jobs. The elaborate law regulating employment agencies bespeaks the necessity of such protectionalthough there were other evils, the business was subject to the abuse of extortionate overcharges. The legislators regarded this as one of the principal reasons for regulation.")
40. 2 This website for Defendant Zoli is no longer accessible.

Merry
clifton, New Jersey
U.S.A.

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