Appellee Opening Brief 12-6-13

13-55545
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
NATIONAL CONFERENCE OF
PERSONAL MANAGERS, INC., A
Nevada nonprofit corporation,
Plaintiff/Appellant,
v.
EDMUND G. BROWN JR., Governor of
the State of California, in his official
capacity; et al.,
Defendants/Appellees.

On Appeal from the United States District Court
for the Central District of California
District Court Case No. CV-12-09620-DDP (RZx)
The Honorable Dean D. Pregerson, Judge, Presiding
APPELLEES ANSWERING BRIEF
KAMALA D. HARRIS
Attorney General of California
DOUGLAS J. WOODS
Senior Assistant Attorney General
MARK R. BECKINGTON
Supervising Deputy Attorney
General
MICHAEL GLENN WITMER
Deputy Attorney General
State Bar No. 110717
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 897-4902
Fax: (213) 897-1071
Email: Michael.Witmer@doj.ca.gov
Attorneys for Governor Edmund G.
Brown Jr., Attorney General Kamala
Harris, and California Labor
Commissioner Julie A. Su
Case: 13-55545 12/06/2013 ID: 8893070 DktEntry: 24 Page: 1 of 57
TABLE OF CONTENTS

Page

i
I. Statement of Jurisdiction ........................................................... 1
II. Statement of Issues .................................................................... 1
III. Statement of the Case ................................................................ 1
IV. Introduction ............................................................................... 2
A. Summary of the Case ...................................................... 2
V. Summary of Argument .............................................................. 4
VI. Legal Standards ......................................................................... 7
A. Standards of Review ....................................................... 7
LEGAL BACKGROUND ............................................................................. 8
A. Purpose of the TAA ........................................................ 8
B. History of the TAA ......................................................... 9
C. Mechanics of the TAA .................................................. 11
ARGUMENT ............................................................................................... 13
I. The TAA Is Not Unconstitutionally Vague ............................ 13
A. Appellants Challenge: Facial or As-Applied .............. 13
B. Applicable Standards For Facial Challenge ................. 16
C. The TAA Clearly States the Conduct It Regulates,
And California Cases Have Confirmed the
Commonsense Meaning of Procure Employment .... 18
D. The TAA Applies To All Persons Who Procure
Employment For Artists, Not Just Licensees ............... 19
E. The Statute, and Cases Interpreting It, Provide
Ample Notice of the Consequences For Violation ....... 21
F. The Absence of Criminal or Civil Penalties Does
Not Make the Talent Agency Act Toothless ................ 23
TABLE OF CONTENTS
(continued)
Page

ii
G. The Legislature May Authorize an Administrative
Agency To Resolve Ambiguous Statutory
Concepts ........................................................................ 26
H. The Statute And Case Law Give the Commissioner
Ample Standards To Guide Her Exercise of
Discretion ...................................................................... 30
II. Neither the TAA Nor Its Application Violate the
Thirteenth Amendment ........................................................... 32
III. The Third Claim For Violation of the Commerce Clause
Rests On a False Factual Premise and Unwarranted
Inference .................................................................................. 34
IV. There Is No Violation of the Contracts Clause ....................... 37
V. Neither The TAA Nor Its Enforcement Implicate First
Amendment Rights .................................................................. 38
A. The TAA Regulates Conduct, Not Speech ................... 40
B. Enforcement of the TAA Is Not State Action .............. 41
C. The First Amendment Does Not Protect Unlawful
Commercial Speech ...................................................... 43
D. Even If the TAA Implicated First Amendment
Rights, It Does Not Impermissibly Burden
Commercial Speech ...................................................... 44
CONCLUSION ............................................................................................ 45
TABLE OF AUTHORITIES

Page
iii
CASES
Allen v. City of Beverly Hills
911 F.2d 367 (9th Cir. 1990) ............................................................... 7
Allied Structural Steel Co. v. Spannaus
438 U.S. 234 (1978)........................................................................... 37
Auer v. Robbins
519 U.S. 452 (1997)........................................................................... 32
BMW of America v. Gore
517 U.S. 559 (1995)........................................................................... 24
Bob Jones University v. United States
461 U.S. 574 (1983)........................................................................... 21
Breuer vs. Top Draw Entertainment, Inc.
(Cal.Lab.Com., 1996) ................................................................. 36, 37
Buchwald v. Katz
8 Cal. 3d 493 (Cal. 1972) .................................................................. 13
Buchwald v. Superior Court
254 Cal.App.2d 347 (1967) ............................................... 9, 25, 26, 29
Central Hudson Gas & Elec. Corp. v. Public Service Commission of
New York
447 U.S. 557 (1980)........................................................................... 43
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.
467 U.S. 837 (1984)..................................................................... 27, 28
Christopher v. SmithKline Beecham Corp.
635 F.3d 383 (9th Cir. 2011) ............................................................. 32
Crane v. Hahlo
258 U.S. 142 (1922)........................................................................... 37
(continued)
Page

iv
Daily v. Bond
623 F.2d 624 (9th Cir. 1980) ............................................................. 17
Dimidowich v. Bell & Howell
803 F.2d 1473 (9th Cir.1986), rehg denied, op. modified, 810 F.2d
1517 (9th Cir.1987) ........................................................................... 20
Dunlap v. Credit Protection Assn, L.P.
419 F.3d 1011 (9th Cir. 2005) ............................................................. 7
Dyna-Med, Inc. v. Fair Employment & Housing Comm.
43 Cal.3d 1385 (1987) ................................................................. 24, 26
Edenfield v. Fane
507 U.S. 761 (1993)........................................................................... 44
Fiorito Brothers, Inc. v. Fruehauf Corp.
747 F.2d 1309 (9th Cir.1984) ............................................................ 20
First National Bank of Boston v. Bellotti
435 U.S. 765 (1978)........................................................................... 43
Flagg Brothers, Inc. v. Brooks
436 U.S. 149 (1978)........................................................................... 42
Foti v. City of Menlo Park
146 F.3d 629 (9th Cir.1998) .............................................................. 14
FW/PBS, Inc. v. City of Dallas
493 U.S. 215 (1990)........................................................................... 38
Giboney v. Empire Storage & Ice Co.
336 U.S. 490 (1949)........................................................................... 40
Grayned v. City of Rockford
408 U.S. 104 (1972)........................................................................... 16
(continued)
Page

v
Hewitt v. Joyner
940 F.2d 1561 (9th Cir.1991) ............................................................ 20
Holder v. Humanitarian Law Project
130 S. Ct. 2705 (2010) ....................................................................... 17
Hoye v. City of Oakland
653 F.3d 835 (9th Cir. 2011) ....................................................... 14, 15
Human Life of Washington Inc. v. Brumsickle
624 F.3d 990 (9th Cir. 2010) ............................................................. 17
International Shoe Co. v. Washington
326 U.S. 310 (1945).......................................................................... 36
James v. Thompson Management
(Cal.Lab.Com., 2006) ........................................................................ 36
Knievel v. ESPN
393 F.3d 1068 (9th Cir. 2005) ............................................................. 7
Lambert v. California
355 U.S. 225 (1957)........................................................................... 24
Legal Aid Services of Oregon v. Legal Services Corp.
608 F.3d 1084 (9th Cir.2010) ............................................................ 15
Lujan v. Edmondson Oil Co.
457 U.S. 922 (1982)........................................................................... 42
Marathon Entertainment, Inc. v. Blasi (Marathon)
42 Cal.4th 974 (2008) ................................................................ passim

Miravalles v. Artists, Inc.
(Cal.Lab.Com., Oct. 11, 2000) .......................................................... 31
(continued)
Page

vi
Morris v. Williams
67 Cal.2d 733 (1967) ................................................................... 24, 25
Natl Abortion Fedn v. Gonzales
437 F.3d 278 (2d Cir.2006) ............................................................... 16
National Broadcasting Co. v. United States
319 U.S. 190 (1943)........................................................................... 28
National Endowment for the Arts v. Finley
524 U.S. 569 (1998)........................................................................... 16
Ohralik v. Ohio State Bar Assn
436 U.S. 447 (1978)........................................................................... 40
Park v. Deftones
71 Cal.App.4th 1465 (1999) .......................................................... 9, 29
People v. Sims
32 Cal.3d 468 (1982) ......................................................................... 29
Pittsburgh Press Co. v. Pittsburgh Commn on Human Relations
413 U.S. 376 (1973)........................................................................... 43
Rendell-Eaker v. Kohn
457 U.S. 830 (1982)........................................................................... 41
Rumsfeld v. Forum for Academic and Inst. Rights, Inc.
547 U.S. 47 (2006)............................................................................. 40
Runyon v. Board of Trustees
48 Cal.4th 760 (2010) ........................................................................ 29
Styne v. Stevens
26 Cal.4th 42 (2001) .............................................................. 11, 12, 23
(continued)
Page

vii
Thomas v. Collins
323 U.S. 516 (1945) (Jackson, J., concurring) .................................. 41
Tidal Oil Co. v. Flanagan
263 U.S. 444 (1923)........................................................................... 38
Tyler v. Laugh Factory
(Cal.Lab.Com., Feb. 3, 2006) ............................................................ 31
U.S. v. Evans
333 U.S. 483 (1948)........................................................................... 24
U.S. v. Williams
553 U.S. 285 (2008)........................................................................... 17
United States v. Eaton
144 U.S. 677 (1892)........................................................................... 24
United States v. Kilbride
584 F.3d 1240 (9th Cir. 2009) .................................................................. 17
United States v. Kozminski
487 U.S. 931 (1988)........................................................................... 33
United States v. Petrillo
332 U.S. 1 (1947) ............................................................................... 17
Univ. of Tenn. v. Elliott
478 U.S. 788 (1986)..................................................................... 29, 30
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.
455 U.S. 489 (1982)........................................................................... 16
Wachs v. Curry
13 Cal.App.4th 616 (1993) .......................................................... 30, 31
Waisbren v. Peppercorn Productions
41 Cal.App.4th 246 (1995) .......................................................... 23, 29
(continued)
Page

viii
Wash. Dept of Ecology v. United States E.P.A.
752 F.2d 1465 (9th Cir.1985) ...................................................... 28, 29
Washington State Grange v. Washington State Republican Party
552 U.S. 442 (2008)........................................................................... 14
White v. City of Pasadena
671 F.3d 918 (9th Cir.2012) .............................................................. 29
Wicks v. Southern Pac. Co.
231 F.2d 130 (9th Cir. 1956) ............................................................. 34
William Morris Agency v. OShannon
(Cal.Lab.Com., Sept. 27, 2007) ......................................................... 35
Yoo v. Robi
126 Cal.App.4th 1089 (2005) ................................................ 21, 23, 29
STATUTES
1943 Cal. Stat. ........................................................................................... 9
28 U.S.C. 1291 ....................................................................................... 1
42 U.S.C. 1983 ..................................................................................... 41
California Civil Code
1599 ................................................................................................ 25
1812.501(a)(1)(A) .......................................................................... 31
1812.509(d) ..................................................................................... 31
California Business & Professions Code 9997 (e) and (f) .................. 31
California Elections Code 29620 ......................................................... 31
Labor Code
1540 ................................................................................................ 31
1700 ........................................................................................ 1, 3, 15
1700.4 ............................................................................. 3, 11, 19, 33
(continued)
Page

ix
1700.4(a) ............................................................................. 11, 18, 25
1700.4(b) ........................................................................................... 2
1700.5 ......................................................................................... 3, 25
1700.19(b) ....................................................................................... 35
1700.23 ............................................................................................. 9
1700.25 ............................................................................................. 9
1700.26 ............................................................................................. 9
1700.29 ........................................................................................... 12
1700.32 ............................................................................................. 9
1700.41 ............................................................................................. 9
1700.44 ..................................................................................... 29, 39
1700.44(a) ................................................................................. 12, 13
1701 .................................................................................................. 8
CONSTITUTIONAL PROVISIONS
First Amendment ............................................................................. passim
Fourteenth Amendment .......................................................................... 41
Thirteenth Amendment ................................................................. 4, 32, 34
Article I, 8 ........................................................................................ 1, 34
Article I, 10 ...................................................................................... 1, 37
Article IV, 1 ......................................................................................... 30
Article XIII ................................................................................................ 1
COURT RULES
Federal Rules of Civil Procedure
Rule 12(c) ............................................................................................ 7
Rule 12(b)(1) ................................................................................... 1, 2
Rule 12(b)(6) ................................................................................... 1, 7
Federal Rules of Appellate Procedure
Rule 4(a)e ............................................................................................. 1

(continued)
Page

x
OTHER AUTHORITIES
Report of the California Entertainment Commission ............................... 9
http://www.dir.ca.gov/databases/dlselr/talag.html ................................. 35
http://www.dir.ca.gov/dlse/talent_agency_license.html ......................... 35
http://www.dir.ca.gov/dlse/dlse-tacs.htm ............................................... 31


1
I. STATEMENT OF JURISDICTION
This Court has jurisdiction over this appeal pursuant to 28 U.S.C.
1291 and rule 4(a) of the Federal Rules of Appellate Procedure.
II. STATEMENT OF ISSUES
This case presents these issues:
1. Is Californias Talent Agency Act, Labor Code 1700,
et seq. (TAA), Unconstitutionally Vague on its Face
or As Applied to Personal Managers?
2. Does the TAA Compel Involuntary Servitude in
Violation of Article XIII of the United States
Constitution or Unlawfully Deprive Violators of
Compensation for Their Services?
3. Does the TAA Violate Article I, Section 8 (the
Commerce Clause) of the United States Constitution?
4. Does the TAA Violate Article I, Section 10
(Impairment of Contracts Clause) of the United States
Constitution?
5. Does the TAA Violate the First Amendment of the
United States Constitution?
6. May a Plaintiff Assert Constitutional Challenges to a
Statutory Regime Based Solely Upon Plaintiffs
Disagreement with Finally Adjudicated Decisions?
III. STATEMENT OF THE CASE
Appellant National Conference of Personal Managers, Inc. (NCOPM)
filed its complaint on November 9, 2012. Excerpts of the Record (ER),
p. 173. Appellees brought a motion to dismiss under rules 12(b)(1) and

2
12(b)(6) of the Federal Rules of Civil Procedure. Under rule 12(b)(1),
appellees argued below that the Governor and the Attorney General have
sovereign immunity and that no case or controversy exists between appellant
and the Labor Commissioner; they also asserted that appellant lacked
standing to bring the case. The court below found that appellant likely has
standing and the Labor Commissioner was likely the appropriate party to sue
for her non-adjudicatory acts, but that the Governor and Attorney General
likely have sovereign immunity. ER, p. 5. However, the court decline[d]
to resolve those issues fully, finding that the motion should be granted on the
merits. Id. The district court then granted the motion under rule 12(b)(6)
without leave to amend and dismissed the action. Id. This appeal followed.
IV. INTRODUCTION
A. Summary of the Case
Plaintiff National Conference of Personal Managers, Inc. is a national
trade association of United States citizens employed as personal managers
who provide representation to artists as defined in California Labor Code
section 1700.4(b). ER 175, 10.
1
As appellant explained in its opposition

1
All citations are to the Complaint, ER 173193.

3
papers below, a personal manager oversees the work of others working for
the artist, such as the publicist, business manager, transactional attorney, and
various talent agents. ER 155.
Californias Talent Agencies Act (Labor Code 1700, et seq. (TAA),
provides that [n]o person shall engage in or carry on the occupation of a
talent agency without first procuring a license therefor from the Labor
Commissioner. 1700.5.
2
A [t]alent agency is defined as a person or
corporation who engages in the occupation of procuring, offering, promising,
or attempting to procure employment or engagements for an artist or
artists . . . . 1700.4. According to appellant, if a person has procured
employment for an artist without a license, the Labor Commissioner is
empowered to impair the contract. ER 182, 38.
Appellant here challenges the constitutionality of the TAA on several
grounds: Appellant asserts that it and its members
3
do not have notice of
which acts personal managers may or may not perform for their clients
without obtaining a license. It alleges (1) that the TAA is unconstitutionally

2
All further unspecified statutory references are to the California Labor
Code.
3
Plaintiff is an organization that is not itself a personal manager, but
purports to speak on behalf of its members and in their interest.

4
vague because it does not define procure employment, (2) that it results in
involuntary servitude because personal managers whose contracts are
affected may not be properly compensated for their services in violation of
the Thirteenth Amendment, (3) that it interferes with interstate commerce
because it discriminates against out-of-state personal managers in violation
of the Commerce Clause, and (4) that it restricts appellants commercial
speech in violation of the First Amendment.
Appellant seeks judicial declarations that the TAA violates the
Contracts and Commerce Clauses of the United States Constitution. See
generally, Compl. Prayer, ER pp. 192193.
V. SUMMARY OF ARGUMENT
Appellant makes a facial challenge to a statutory scheme that has been
validly applied for more than 25 years, including by Californias highest
court. It also makes an as-applied challenge, based not on an actual case or
controversy, but on a critique of long-final judicial and administrative
decisions that have for decades consistently and properly applied the statute
to personal managers.
The TAA is not unconstitutionally vague simply because the
Legislature adopted a framework that delegates the determination of factual

5
disputes to the Commissioner. The statutory scheme clearly prohibits
unlicensed persons from procuring employment for artists, and leaves it to
the Commissioner and the courts and to determine whether particular
conduct constitutes procurement.
Appellants primary attack is on the way California courts and the
Commissioner have remedied violations of the TAA. That is, when a
personal manager has been shown to have procured employment for an
artist without a license, the artist may sue to avoid, partially or completely,
the personal managers contract on the grounds that it violates the public
policy articulated in the TAA. Appellant incorrectly argues that the
Commissioner has invented this remedy without a statutory basis, and
asserts that the Commissioner adjudicates peoples rights. But this remedy
is a straightforward application of the California Civil Code provision that
voids contracts whose object is unlawful. As discussed below, the
applicability of this rule to personal managers contracts has been affirmed
by the California Supreme Court.
Appellant argues that because the TAA itself does not provide a
remedy for violation of its licensing requirement, persons not in the
occupation of talent agent (i.e., unlicensed personal managers) are free to
ignore it. But the absence of criminal or civil penalties does not make the

6
TAA toothless. In enacting the TAA, the California Legislature wisely
authorized the Commissioner to resolve what are inherently fact-specific
controversies, and apply statutory concepts to complex situations arising in
a specialized industry. The Commissioner, with the help of the courts, has
developed a specialized body of law that provides ample notice and
guidance to professional personal managers. The Legislature also built
extraordinary due process protections into the TAA, by giving original
jurisdiction of TAA related disputes to the Commissioner, but then
providing a trial de novo in the superior court for any one aggrieved by a
decision of the Commissioner. Likewise, the Commissioners decisions are
not enforceable, except upon petition to the superior court.
Appellant incorrectly argues that the TAA permits only California
residents to obtain talent agency licenses. The statute has no such
requirement or effect, and the district court took judicial notice of the fact
that numerous out-of-state talent agencies have California licenses.
Appellant does not cite a single instance of a license applicant being refused
on account of residency. Thus the TAA does not burden interstate
commerce.
In light of these facts, the TAA cannot be said to impair contracts,
violate free speech or result in involuntary servitude.

7
The conceptual flaws inherent in appellants case are too fundamental
and pervasive to be remedied by amendment. Accordingly, the district court
correctly granted appellees motion to dismiss without leave to amend.
VI. LEGAL STANDARDS
A. Standards of Review
A dismissal for failure to state a claim is reviewed de novo. Knievel v.
ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (applying Fed. R. Civ. P.
12(b)(6)); Dunlap v. Credit Protection Assn, L.P., 419 F.3d 1011, 1012 n.1
(9th Cir. 2005) (applying Fed. R. Civ. P. 12(c)). As in the district court, all
factual allegations in the complaint are accepted as true, and the pleadings
are construed in the light most favorable to the nonmoving party. Knievel,
393 F.3d at 1072.
In contrast, denial of leave to amend is reviewed for abuse of discretion.
Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). The district
courts decision will not be disturbed absent a definite and firm conviction
that it committed a clear error of judgment. Id.
Finally, a court of appeals may affirm on any ground supported by the
record, whether or not the district court decision relied on the same grounds

8
or reasoning adopted by the appellate court. Atel Fin. Corp. v. Quaker Coal
Co., 321 F.3d 924, 926 (9th Cir. 2003).
LEGAL BACKGROUND
A. Purpose of the TAA
As recently as 2009, the California Legislature reaffirmed the need for
the TAA, finding that talent agency contracts in the entertainment industry
too often have worked a fraud, deceit, imposition, and financial hardship
upon the people of this state, particularly upon children and other
minors . . . [and] the talent industry has a significant impact upon the
economy and well-being of this state. Accordingly, the TAA is necessary
for the public welfare. 1701, Historical and Statutory Notes, 2011 Main
Volume Stats. 2009, c. 286 (A.B.1319). To confront this problem, the
Legislature declared that:
[T]he purpose of this act is to safeguard the public
against fraud, deceit, imposition, and financial hardship,
and to foster and encourage competition, fair dealing,
and prosperity in the field of talent services by
prohibiting or restricting false or misleading advertising
and other unfair, dishonest, deceptive, destructive,
unscrupulous, and fraudulent business practices by
which the public has been injured in connection with
talent services.
Id. The stated purpose of the Act is remedial. For example, an agent must
have his form of contract approved by the Labor Commissioner, maintain

9
his clients funds in a trust fund account, record and retain certain
information about his client, and refrain from giving false information to an
artist concerning potential employment. (See 1700.23, 1700.25, 1700.26,
1700.32, and 1700.41.) Because the Act is remedial, it should be liberally
construed to promote its general object. Park v. Deftones, 71 Cal. App. 4th
1465, 1471-1472 (1999), citing Buchwald v. Superior Court, 254 Cal. App.
2d 347, 354 (1967).
B. History of the TAA
Roots of the TAA trace back to 1913, when the state legislature first
enacted the Employment Agencies Act (EAA). Since 1943, it has regulated
any talent agent (then called artist manager) who engages in the
occupation of advising, counseling, or directing artists on the development
of their professional careers and who procures, offers, or promises
employments or engagements of an artist. . . . 1943 Cal. Stat. 1326 (ch. 329)
(emphasis added). See Report of the California Entertainment Commission,
dated Dec. 2, 1985, Cal. Doc. E2035 R4 1985, p. 36.
4
In 1978, the
Legislature considered, but opted not to establish, a separate licensing

4
A copy of the Entertainment Commissions Report (the Report) is
attached as Exhibit 1 to the accompanying motion for judicial notice.

10
scheme for personal managers, but did change the statutes name from the
Artists Managers Act to the Talent Agencies Act.
5
Marathon, 42 Cal. 4th at
984-85.
In 1982, the Legislature provisionally amended the TAA to add a one-
year statute of limitations, eliminate criminal sanctions, and establish a safe
harbor for managers to procure employment if they collaborated with a
licensed agent. Marathon, 42 Cal. 4th at 985. The Legislature also
established a 10-member California Entertainment Commission (the
Entertainment Commission), including three each of agents, managers and
artists, plus the Commissioner. Its task was to evaluate the Act, consider
whether to retain the provisional amendments, and recommend to the
Legislature a model bill. Id. After numerous meetings and hearings over
many months, the Entertainment Commission submitted its report and
recommendations on December 2, 1985. See Entertainment Com. Rep.,
pp. 1-2. In 1986, the Legislature adopted a bill that implemented the

5
The 1978 amendments adopted what is substantially the present
definition of Talent Agent: A talent agency is hereby defined to be a
person or corporation who engages in the occupation of procuring, offering,
promising, or attempting to procure employment or engagements for an
artist or artists. Talent agencies may, in addition, counsel or direct artists in
the development of their professional careers. Id. at p. 36.

11
Entertainment Commissions recommendations (set out at Entertainment
Com. Rep., pp. 2234). Marathon at 985. The TAA has remained largely
unchanged ever since. Id.
C. Mechanics of the TAA
The TAAs definition of a talent agency narrowly focuses on conduct
intended to secure professional employment or engagements for an artist
or artists. 1700.4(a). Thus, it does not cover other services for which
artists often contract, such as personal and career management (i.e., advice,
direction, coordination, and oversight with respect to an artists career or
personal or financial affairs) [citations], nor does it govern assistance in an
artists business transactions other than professional employment. Styne v.
Stevens, 26 Cal. 4th 42, 51 (2001). Likewise, the TAA permits talent agents
to perform services for which a license is not required. 1700.4 [Talent
agencies may, in addition, counsel or direct artists in the development of
their professional careers.]
Because the TAA regulates the procurement of employment for artists,
it governs such conduct regardless of how the procurer labels their services:
The [TAA] establishes its scope through a functional,
not a titular, definition. It regulates conduct, not labels;
it is the act of procuring (or soliciting), not the title of
ones business, that qualifies one as a talent agency and

12
subjects one to the Acts licensure and related
requirements. ( 1700.4, subd.(a).) Any person who
procures employmentany individual, any corporation,
any manageris a talent agency subject to regulation.
( 1700, 1700.4, subd. (a).) Consequently, as the
Courts of Appeal have unanimously held, a personal
manager who solicits or procures employment for his
artist-client is subject to and must abide by the Act.
Marathon, 42 Cal. 4th at 986 (original emphasis).
The TAA authorizes the Commissioner to license talent agencies, so
she does not directly regulate personal managers as such. Still, a personal
manager may come within the Commissioners jurisdiction if he or she
makes a disputed claim for fees and the artist establishes a colorable claim
that the disputed contract is within the TAA. 1700.44(a); Styne, 26
Cal. 4th at 54-56, and n.6. Then, the Commissioners authority is limited to
hearing and determining the TAA-related dispute between artist and
manager, or else certifying that there is no controversy. 1700.44(a).
6
The
TAA gives the Commissioner original and exclusive jurisdiction over issues

6
1700.44(a) provides, in relevant part, In cases of controversy arising
under this chapter, the parties involved shall refer the matters in dispute to
the Labor Commissioner, who shall hear and determine the same, subject to
an appeal within 10 days after determination, to the superior court where the
same shall be heard de novo. The Labor Commissioner is also authorized
to adopt, amend, and repeal such rules and regulations as are reasonably
necessary for the purpose of enforcing and administering the TAA.
1700.29.

13
arising under its provisions. Marathon, 42 Cal. 4th at 981 (citing Styne v.
Stevens, supra, 26 Cal. 4th at 5456 and 1700.44(a)). But the
Commissioners determinations are not final; either party may appeal to the
superior court within 10 days. 1700.44(a). If no trial de novo is requested
(or is requested but no bond is posted), the prevailing party may petition to
confirm the Commissioners award and enforce the resulting judgment.
Buchwald v. Katz, 8 Cal. 3d 493, 500 (1972). The appealing party is entitled
to a de novo hearing in the superior court, not simply a review of the
Commissioners proceedings. Id. at 498. Still, in the de novo trial parties
can and do rely on evidence, testimony and pleadings presented in the
Commissioners hearing. Id.; see also Marathon, 42 Cal. 4th at 982.
ARGUMENT
I. THE TAA IS NOT UNCONSTITUTIONALLY VAGUE
A. Appellants Challenge: Facial or As-Applied
Appellants brief is muddled on whether it challenges the TAA on its
face or as applied to personal managers. It seems to attempt both

14
approaches, but never really articulates either one.
7
But appellant fails to
make a persuasive case under any analytical approach.
Generally speaking, a facial challenge attacks an entire legislative
enactment or provision. See Foti v. City of Menlo Park, 146 F.3d 629, 635
(9th Cir.1998) (statute is facially unconstitutional if it is unconstitutional in
every conceivable application, or it seeks to prohibit such a broad range of
protected conduct that it is unconstitutionally overbroad). The present
complaint seeks this sweeping relief against the entire TAA. See prayer, ER
pp. 192-193. Where the complaint does not charge statutory overbreadth,
8

a facial challenge must fail where the statute has a plainly legitimate
sweep. Washington State Grange v. Washington State Republican Party,
552 U.S. 442, 449 (2008).

7
The opening brief states that it presents a facial and as-applied
constitutional challenge (AOB p. 2, last par., p. 8 4) but later states that
the Complaint does not advance a facial, but an applied challenge [sic] to
the TAAs constitutionality under the Contracts Clause (AOB p. 44, 1st
par.), but then concludes that the TAA is facially unconstitutional. AOB,
p. 48, last par.
8
Although the complaint uses the boilerplate formula, vague and
overbroad, (ER 192193, 1 and 3) only vagueness is argued in the
opening brief. See Statement of Issues, AOB p. 1, 1 (the TAA is
unconstitutionally vague on its face.).

15
In contrast, the typical as-applied attack challenges only one of the
rules in a statute, a subset of the statutes applications, or the application of
the statute to a specific factual circumstance, under the assumption that a
court can separate valid from invalid subrules or applications. Hoye v.
City of Oakland 653 F.3d 835, 857 (9th Cir. 2011), quoting Richard H.
Fallon, Jr., As-Applied and Facial Challenges and ThirdParty Standing,
113 Harv.L.Rev. 1321, 1334 (2000). At least one of Appellants arguments
invokes this theory, contending that enforcement of the TAA regulates
speech and violates the First Amendment rights of Plaintiff and its members,
as applied. AOB, p. 2, 2. But here again, appellant seeks to enjoin the
entire statute, praying [f]or a declaration that the California Labor Code
1700 et seq., . . . is, on its face and as applied, in violation of Plaintiffs
right to Free Speech under the First Amendment. ER, p. 193, 5.
Since appellant does not show that the statute is unconstitutional on its
face or as-applied, the court may not need to resolve which type of challenge
is being made here. The two types of challenge differ in the extent to
which the invalidity of a statute need be demonstrated. Legal Aid Services
of Oregon v. Legal Services Corp., 608 F.3d 1084, 1096 (9th Cir.2010).
Because the difference between an as-applied and a facial challenge lies
only in whether all or only some of the statutes subrules (or fact-specific

16
applications) are being challenged, the substantive legal tests used in the two
challenges are invariant. Hoye, supra, 653 F.3d at 857858., quoting
Legal Aid Services of Oregon, supra, 608 F.3d at 1096. In other words, how
one must demonstrate the statutes invalidity remains the same for both
types of challenges, namely, by showing that a specific rule of law, usually a
constitutional rule of law, invalidates the statute, whether in a personal
application or to all. See Natl Abortion Fedn v. Gonzales, 437 F.3d 278,
293-94 (2d Cir. 2006).
B. Applicable Standards for Facial Challenge
The plaintiff who asserts a facial challenge on constitutional vagueness
grounds bears a heavy burden. National Endowment for the Arts v. Finley,
524 U.S. 569, 580 (1998) ([f]acial invalidation is, manifestly, strong
medicine that has been employed by the Court sparingly and only as a last
resort) (internal citations omitted). On a facial challenge, where First
Amendment rights are not implicated,
9
a statute should be upheld unless it is
impermissibly vague in all of its applications. Village of Hoffman Estates

9
The absence of a First Amendment issue in this case is explained in IX
below.

17
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-495 (1982). A facial
challenge charges that the law is incapable of any valid application. Id.
A law is not unconstitutionally vague if it provides a person of
ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly. Grayned v. City of Rockford, 408 U.S. 104,
108 (1972); see also Daily v. Bond, 623 F.2d 624, 626 (9th Cir. 1980)
(statute is not unconstitutionally vague if it gives fair warning of the
proscribed conduct). A statute may be found to be unconstitutional if it is
so standardless that it authorizes or encourages seriously discriminatory
enforcement. Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2718
(2010) (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). But
the Due Process Clause, under which a vagueness challenge falls, does not
present an insuperable obstacle to legislation by demanding impossible
standards of precision for criminal laws. United States v. Petrillo, 332 U.S.
1, 7 (1947); see also Holder, 130 S. Ct. at 2719 (We have said that when a
statute interferes with the right of free speech or of association, a more
stringent vagueness test should apply. . . . But perfect clarity and precise
guidance have never been required even of regulations that restrict
expressive activity) (internal citations omitted). When Congress does
not define a term in a statute, we construe that term according to its ordinary,

18
contemporary, common meaning. Human Life of Washington Inc. v.
Brumsickle, 624 F.3d 990, 1021 (9th Cir. 2010) (quoting United States v.
Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009)).
C. The TAA Clearly States the Conduct it Regulates, and
California Cases Have Confirmed the Commonsense
Meaning of Procure Employment
Appellant rests its vagueness argument on a misleading paraphrase of
the defining statute, 1700.4(a),
10
which, according to appellant,
. . . defines a talent agent as one who (a) engages in
the occupation of procuring, offering, promising, or
attempting to procure employment or engagements, (b)
counsels artists in the development of their professional
careers and (c) directs artists in the development of their
professional careers.
AOB, p. 13. Appellant then argues that the TAA does not specify which of
the three activities are reserved exclusively for licensees. Id. But the text of
the provision makes it plain that procuring employment is the activity for
which talent agencies must obtain a license; it is irrelevant that licensed

10
1700.4(a) states in relevant part: Talent agency means a person or
corporation who engages in the occupation of procuring, offering,
promising, or attempting to procure employment or engagements for an
artist or artists . . . [excluding recording contracts]. Talent agencies may, in
addition, counsel or direct artists in the development of their professional
careers. Id. (emphasis added).

19
agencies may in addition do other functions for which a license is not
required. The history of the TAA confirms this:
Personal managers contend that . . . [t]he essence of
their service, which is counseling the artist in the
development of his/her professional career, is not the
kind of activity which can feasibly or legitimately be
made the subject of licensure. They argue that if they
are required to be licensed, they will not only be
required to procure employment for their clients, which
is not the essence of their service to clients, but their
fees, the length of the contracts, and other aspects of
their service will be controlled by the Labor
Commissioner and the unions.
Entertainment Com. Rep. p. 9, emphasis added. Based on what personal
managers claimed at the time was an essential difference between their
occupation and that of talent agents, the Commission stated there is no need
to license personal managers:
There is no rationale or practical justification for the
enactment of a law requiring the licensing of personal
managers . . . [] For protection of artists, anyone who
procures employment for an artist should be licensed.
Such person has been legally defined as a talent agent,
and licensure requirements and other regulatory
provisions of the Talent Agencies Act are necessary and
sufficient.
Id. at p. 20 (emphasis added). In short, the TAA clearly defines procuring
employment as the conduct for which a license is required.
D. The TAA Applies to All Persons, Not Just Licensees

20
Appellant next argues that read literally, 1700.4 applies only to
persons in the occupation of talent agent. AOB 14-15. The California
Supreme Court has already considered and rejected that very argument. See
Marathon, 42 Cal. 4th at 98688. This Court should defer to that
construction, because [w]hen interpreting state law, federal courts are
bound to follow the decisions of the states highest court. Hewitt v. Joyner,
940 F.2d 1561, 1565 (9th Cir.1991). Moreover, [w]here the states highest
court has not decided an issue, the task of the federal courts is to predict how
the state high court would resolve it. Dimidowich v. Bell & Howell, 803
F.2d 1473, 1482 (9th Cir. 1987). In determining how state courts would
decide the interpretation of a state law, federal courts look for guidance to
decisions by intermediate appellate courts of the state. Dimidowich at 1482.
In this case, the Court need look no further than Marathon to see that
the California Supreme Court accepted and relied upon the interpretation
and application of the TAA by lower courts, and the Commissioner as well.
Except for the narrow question of whether an illegal management contract
was void in its entirety or merely as to a severable portion, the California
Supreme Court reviewed and effectively approved the entire body of TAA
interpretation that had developed by the Courts of Appeal up to that point.
42 Cal. 4th at p. 987 [Consequently, as the Courts of Appeal have

21
unanimously held, a personal manager who solicits or procures employment
for his artist-client is subject to and must abide by the Act] Marathon
likewise cites with approval a long string of Talent Agency Cases decided
by the Commissioner for the same proposition (id.) and cites Yoo v. Robi
126 Cal. App. 4th 1089 (2005) for the proposition that [t]he weight of
authority is that even the incidental or occasional provision of such services
requires licensure. Id.
Quite apart from the question being settled law in California, a court
should go beyond the literal language of a statute if reliance on that language
would defeat the plain purpose of the statute. Bob Jones University v.
United States, 461 U.S. 574, 586 (1983) If appellants logic were accepted,
and the TAA only applied to those who self-identify as talent agencies, then
anyone could circumvent the statute by simply abjuring the label talent
agency.
E. The Statute, and Cases Interpreting it, Provide Ample
Notice of the Consequences for Violation
Appellant acknowledges, and even invokes (when convenient) the
authority of the Entertainment Commission, selectively quoting it for the
proposition that the term procure employment was too vague a concept to
fairly permit any penalty for doing so without a license. See, e.g., AOB 15

22
and 1920. The Entertainment Commission did recommend against
criminal sanctions, but did so specifically because it found existing civil
remedies, including the avoidance of illegal contracts, to be adequate. It
stated that the power of the Commissioner to avoid a contract was most
effective weapon to assure compliance with the Act:
The majority of the Commission believes that existing
civil remedies, which are available by legal action in the
civil courts, to anyone who has been injured by breach
of the Act, are sufficient to serve the purposes of
deterring violations of the Act and punishing
breaches . . . Perhaps the most effective weapon for
assuring compliance with the Act is the power of the
Labor Commissioner, at a hearing on a Petition to
Determine Controversy, to find that a personal manager
or anyone has acted as an unlicensed talent agent and,
having so found, declare any contract entered into
between the parties void . . . [] These civil and
administrative remedies for violation of the Act
continue to be available and should serve adequately to
assure compliance with the Act.
Entertainment Com. Rep., supra, pp. 1718. It is fully within the
Legislatures authority to abolish a criminal sanction, while continuing to
declare public policy and thereby afford relief from illegal contracts to a
protected class of persons. This is especially so where, as here, the civil
remedy may prove the strongest deterrent to illegal contracts:
The rationale for denying a personal manager recovery
even for activities which were entirely legal is based on
the public policy of the Act to deter personal managers

23
from engaging in illegal activities. Knowing they will
receive no help from the courts in recovering for their
legal activities, managers are less likely to enter into
illegal arrangements. In Waisbren, the court observed
one reason the Legislature did not enact criminal
penalties for violation of the Act was because the
most effective weapon for assuring compliance with the
Act is the power . . . to declare any contract entered
into between the parties void from the inception.
Yoo v. Robi, supra, 126 Cal.App.4th at 1104, quoting Waisbren v.
Peppercorn Productions, 41 Cal.App.4th 246, 262 (1995) and Ent. Comm.
Rep.
F. The Absence of Criminal or Civil Penalties Does Not
Make the Talent Agency Act Toothless
Appellant argues the Commissioners enforcement is rendered
unconstitutional because the TAA gives no notice of any penalty. AOB,
p. 24, par. 1. By appellants reasoning, because the TAA contains no
penalties, it can be ignored with impunity. But this would thwart the TAAs
remedial purpose, to protect artists seeking professional employment from
the abuses of talent agencies. Styne v. Stevens, supra, 26 Cal. 4th at 50, 51
(2001); see also Marathon, 42 Cal. 4th at 984. As already noted when the
Legislature decided to eliminate criminal sanctions from the TAA, it left
untouched the existing civil remedy of contract avoidance and the
administrative mechanism that governs how and when it is applied.

24
The fact that the artists remedy may operate to the detriment of an
unlicensed manager does not transform that remedy into a penalty, criminal
or otherwise.
11

Appellant argues that the Commissioner has created a remedy that the
Legislature withheld. AOB, p. 24, par. 2, citing Morris v. Williams, 67
Cal. 2d 733, 748 (1967) and Dyna-Med, Inc. v. Fair Employment & Housing
Comm., 43 Cal. 3d 1385, 1388 (1987). To the contrary, the civil remedy of
contract avoidance is not the invention of the Commissioner, but the
consequence of the ancient rule that courts will not enforce an illegal
contract. The Marathon decision notes that while the TAA contains no

11
Appellants authorities on this point are irrelevant because they all
concern the creation of crimes and penalties imposed by government action.
See United States v. Eaton, 144 U.S. 677, 688 (1892) [agency may not
impose penalty by regulation where statute provides none]; Lambert v.
California 355 U.S. 225, 22728 (1957) [due process forbids penalizing
felon for failure to register where felon had no actual knowledge of duty and
failure not willful]; BMW of America v. Gore, 517 U.S. 559, 574 (1995)
[punitive damage case, due process requires notice both of forbidden
conduct and of penalty state may impose]; and U.S. v. Evans 333 U.S. 483,
495 (1948) [language of criminal statute too ambiguous for court to resolve
uncertainty as nature of several proscribed acts and penalty assigned to
each]. BMW of America, supra, actually undermines appellants argument.
The strict constitutional safeguards afforded to criminal defendants are not
applicable to civil cases, but the basic protection against judgments without
notice afforded by the Due Process Clause is implicated by civil penalties.
Id. at n. 22, original emphasis.

25
remedy for illegal procurement, California Civil Code section 1599 does. 42
Cal. 4th at 991. That statute provides, Where a contract has several distinct
objects, of which one at least is lawful, and one at least is unlawful, in whole
or in part, the contract is void as to the latter and valid as to the rest. Cal.
Civ. Code 1599 (emphasis added). Applying ordinary rules of statutory
interpretation, Marathon construed 1599 and the TAA so as to effectuate
both. Id. It concluded that the two are not in conflict; indeed the Civil Code
provides the remedy the TAA lacks. The Act defines conduct, and hence
contractual arrangements, that are illegal. 1700.4(a) and 1700.5.
Both cases appellant cites fail to give any support to its position. For
example, Morris v. Williams, supra, dealt with an agencys rule-making
authority, finding that the agency exercised quasi-legislative authority that
exceeded the bounds of its statutory mandate. 67 Cal. 2d at 74849. Here,
the Commissioner acts in a quasi-judicial, not quasi-legislative capacity.
The Commissioners authority to hear and determine cases comes from the
Legislature. Buchwald v. Superior Court, supra, 254 Cal. App. 2d at 357
(Act is broad and comprehensive; Labor Commissioner empowered to hear
and determine disputes under it, including validity of contract and liability, if
any, of parties).

26
Also inapposite is Dyna-Med, Inc. v. Fair Employment & Housing Com.
There, the Fair Employment and Housing Commission imposed punitive
damages against an employer. The California Supreme Court held that the
purpose of the FEHA is to provide effective remedies to eliminate
discrimination, and noted that the statutorily authorized remedies were
exclusively corrective and equitable in nature, designed to make employee
whole. Punitive damages, by contrast, are neither equitable nor corrective;
punitive damages serve but one purposeto punish and through punishment,
to deter. (43 Cal. 3d at 13871388.) The Court concluded that the
Commission had exceeded its authority. Id. Here, avoidance of an illegal
contract is not punitive, it is remedial, and therefore well within the authority
delegated to the Commissioner by the Legislature.
In sum, the consequence for acting as an unlicensed talent agent is a
creature of statute, not administrative fiat. Non-enforcement of an illegal
contract is not a punishment imposed by the Commissioner; it is a statutory
remedy invoked by private parties and enforced through the courts.
G. The Legislature May Authorize an Administrative
Agency to Resolve Ambiguous Statutory Concepts
It is well-established that less clarity is required of civil statutes than
criminal statutes, and great flexibility is allowed in statutes administered by

27
an agency. Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984). In Chevron, the Court recognized that
considerable weight should be accorded to an executive departments
construction of a statutory scheme it is entrusted to administer, particularly
where the subject matter requires more than ordinary knowledge. Id. at 844-
845. Courts should defer administrative interpretations, said the Court,
when statutory construction involves reconciling conflicting policies, and a
full understanding of the force of the statutory policy in the given situation
has depended upon more than ordinary knowledge respecting the
regulations subject matter. Id. In Chevron, the Court upheld an EPA
regulation based on a permissible construction of a statutory term by the
agency: The court need not conclude that the agency construction was the
only one it permissibly could have adopted to uphold the construction, or
even the reading the court would have reached if the question initially had
arisen in a judicial proceeding. Id. at 843, n.11.
12

12
This principle largely disposes of the arguments raised in the Southwest
Law Schools amicus brief. We certainly have neither technical
competence nor legal authority to pronounce upon the wisdom of the course
taken by the Commission. Our duty is at an end when we find that the
action of the Commission was based upon findings supported by evidence,
and was made pursuant to authority granted by Congress. It is not for us to
say that the public interest will be furthered or retarded by the
(continued)

28
Appellant attacks the entire TAA, charging that as applied to personal
managers, Commissioners Talent Agency Cases (TACs) have fluctuated
between multiple and conflicting interpretations without standards. AOB
p. 20. But the purported inconsistency in administrative determinations on
one narrow issue cannot justify overturning the entire statute, particularly
where the difficulty of line-drawing was what prompted the Legislature to
delegate those determinations in the first place. Appellants own cases
affirm the principle that after declaring broad public policy, the Legislature
may appropriately delegate interpretive and implementing power to
administrative agencies. Federal authorities hold likewise. See, e.g.,
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. supra 467
U.S. at p. 844; see also Washington Dept of Ecology v. United States E.P.A.,
752 F.2d 1465, 1469 (9th Cir.1985) [agencys interpretation of statute
entitled to deference even if court would have construed statute differently].
This principle is especially apt where, as here, statutory construction
involves reconciling conflicting policies, and a full understanding of the

(continued)
. . . [challenged] Regulations. The responsibility belongs to the Congress
for the grant of valid legislative authority and to the Commission for its
exercise. National Broadcasting Co. v. United States, 319 U.S. 190, 224-
225 (1943).

29
force of the statutory policy in the given situation [depends] upon more than
ordinary knowledge respecting the matters subjected to agency regulations.
Washington Dept of Ecology, supra, 752 F.2d at 1469.
Here, the California Legislature explicitly delegated interpretation of
the TAA to the Commissioner ( 1700.44) and appellant cannot reopen now-
final administrative determinations.
13
Federal courts apply res judicata to
unreviewed determinations of state administrative agencies if the state itself
would do so.
14
Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) [when a
state agency acting in a judicial capacity resolves disputed issues of fact
properly before it which the parties have had an adequate opportunity to

13
Nor may cases be relitigated by those who lost their state court appeals,
including putative amici Matthew Katz (party in Buchwald v. Superior
Court, supra, 254 Cal.App.2d 347); Brad Waisbren (party in Waisbren v.
Peppercorn Productions, Inc., supra, 41 Cal.App.4th 246); David Park (of
Park v. Deftones, supra, 71 Cal.App.4th 1465); and Howard Wolf (of Yoo v.
Robi, supra, 126 Cal.App.4th 1089).
14
Under California law, a prior administrative proceeding, if upheld on
review (or not reviewed at all), will be binding in later civil actions to the
same extent as a state court decision if the administrative proceeding
possessed the requisite judicial character. White v. City of Pasadena, 671
F.3d 918, 927928 (9th Cir.2012), emphasis added, citing Runyon v. Board
of Trustees, 48 Cal.4th 760 (2010). A decision possesses the requisite
judicial character if the administrative agency acted in a judicial capacity
and resolve[d] disputed issues of fact properly before it which the parties
have had an adequate opportunity to litigate. Id., internal quotes omitted,
citing People v. Sims, 32 Cal.3d 468 (1982).

30
litigate, federal courts must give the agencys fact-finding the same
preclusive effect to which it would be entitled in the States courts (internal
quotation marks and citation omitted)]. This rule is based in the Full Faith
and Credit Clause of the U.S. Constitution, article IV, 1, and serves the
values of both repose and federalism. Id. at 798-99.
In light of these rules, it is unnecessary and inappropriate to justify the
Talent Agency Case (TAC) decisions appellant criticizes. The parties to
those proceedings had the right to a trial de novo, followed by an appeal.
Those matters are final and no longer subject to review.
H. The Statute and Case Law Give the Commissioner
Ample Standards to Guide Her Exercise of Discretion
Appellants argument that the Commissioners determinations are made
without standards (AOB, p. 20) is refuted by every TAC decision
appellant cites. These reflect thoughtful and thorough application of
statutory, regulatory and precedential authorities to the evidence submitted
by the parties. These authorities supply ample standards for applying the
concept of procuring employment to real life fact patterns. California
cases have examined the term and concluded that its common meaning
suffices: To procure means to get possession of: obtain, acquire, to
cause to happen or be done: bring about. Wachs v. Curry, 13 Cal. App.

31
4th 616, 629 (1993) (citing Websters New Internat. Dict., (3d ed. 1981),
p. 1809). The Wachs decision also observed that: [t]he term procure in
connection with employment is used in numerous California statutes. The
fact none of these statutes has ever been challenged is some evidence the
term is well understood. Id. & n.3 (citing Cal. Bus. & Prof. Code
9997 (e) and (f); 9998.1(c); Cal. Civil Code 1812.501(a)(1)(A) and
1812.509(d); Cal. Elec. Code 29620; and Cal. Lab. Code 1540; and
noting that the issue has been raised, but not reached, in just one California
case).
Wachs approach and definition have been used consistently in the
Commissioners TACs. See, e.g., Blanks vs. Riccio, (Cal.Lab.Com., Jan. 9,
2009) TAC No. 7163 (ER, p. 93)
15
; Brooks vs. Ax,(Cal.Lab.Com., Nov. 7,
2006) TAC No. 43-04 (ER p. 101); Tyler v. Laugh Factory, (Cal.Lab.Com.,
Feb. 3, 2006) TAC No. 31-01 (ER p. 107) and Miravalles v. Artists, Inc.,
(Cal.Lab.Com., Oct. 11, 2000) TAC No. 33-99 (ER p. 116).

15
All Talent Agency Cases cited here were supplied to the district court
with a request for judicial notice and are in the Excerpts of the Record at the
cited pages. Additional TACs accompany the appellees Request for
Judicial Notice. These and other TACs are also available online at
http://www.dir.ca.gov/dlse/dlse-tacs.htm and through Westlaw.

32
Just as the Commissioner follows the guidance of the courts, California
courts defer to the Commissioners expertise in interpreting the TAA.
Marathon, 42 Cal.4th at 987. Federal courts apply the same rule of
administrative deference. If the language of the statute or regulation does
not speak directly to the question at issue, courts will give appropriate
deference to the agencys interpretation of its own regulations, unless the
interpretation is plainly erroneous or inconsistent with the regulation.
Christopher v. SmithKline Beecham Corp., 635 F.3d 383, 392 (9th Cir.
2011), citing Auer v. Robbins, 519 U.S. 452, 461 (1997).
But here, administrative deference is hardly necessary because the
statutory phrase, procure employment is unambiguous. In sum, appellant
cannot carry its burden to show both that the statute is so vague that a person
of ordinary intelligence cannot ascertain what is prohibited, or that it is
impermissibly vague in all of its applications, or that it is in any way
unconstitutional as applied to personal managers.
II. NEITHER THE TAA NOR ITS APPLICATION VIOLATE THE
THIRTEENTH AMENDMENT
Plaintiff contends that since a violation of the TAA sets up a basis for
avoiding a covered contract, it deprives personal managers of compensation
for unlicensed services and therefore violates the Thirteenth Amendment.

33
As the court below noted, [t]he Supreme Court has traditionally found
involuntary servitude to exist only where the victim had no available choice
but to work or be subject to legal sanction. ER pp. 78, citing United States
v. Kozminski, 487 U.S. 931, 943 (1988). The court below noted that
appellants members can choose to refrain from procuring employment for
their clients; or they can choose to procure employment and hope their client
will pay them anyway, or most notably, they can choose to get a license. Id.
Appellant quibbles with this last option, asserting that it is not a real-
world option. AOB 29-30. Were personal managers to become licensed
talent agents, appellant argues they would be limited to the 10 per cent
commissions that talent agents earn. But by appellants own argument a 10
percent commission is what talent agents earn for procurement services.
There is no inhibition to a licensed talent agent contracting for and providing
additional services for additional compensation. 1700.4 (Talent agencies
may, in addition, counsel or direct artists in the development of their
professional careers.).
Whatever the real world constraints on appellants members options, they
do not rise to the level of the use or threatened use of physical or legal
coercion found to be the essence of involuntary servitude in Kozminski,
supra, 487 U.S. at 944. And long before Kozminski, this court had dispelled

34
the notion that the Thirteenth Amendment can be implicated in contractual
relationships where a party is free not to contract. In Wicks v. Southern Pac.
Co., 231 F.2d 130, 138 (9th Cir. 1956), railroad workers who refused to
become members of labor unions challenged the constitutionality of union
shop clauses in the collective bargaining agreements between the unions and
the railroads. The challenged clauses permitted the unions to order the
employing railroads to dismiss the plaintiffs. The Ninth Circuit rejected the
workers contention that this arrangement resulted in their involuntary
servitude. Even though quitting would cause the workers serious financial
hardships, the Thirteenth Amendment did not apply because the workers
were not being compelled or coerced to work against their will for the
benefit of another. Id. at 138. Likewise here, the fact that plaintiffs
members can choose not to manage artists, or can avoid procuring
employment for them, or can collaborate with a licensed talent agent or
simply get a license, takes this matter outside the Thirteenth Amendment.
III. THE THIRD CLAIM FOR VIOLATION OF THE COMMERCE CLAUSE
RESTS ON A FALSE FACTUAL PREMISE AND UNWARRANTED
INFERENCE
Appellant argues that the TAA interferes with interstate commerce in
violation of article 1, section 8 of the Constitution. This entire claim rests on
the premise that only persons who reside in California may obtain a talent

35
agents license. See, e.g., Compl. 38, ER 182:23-25. Plaintiff cites no
authority for this notion, other than an unwarranted inference from the fact
where the statute requires a license to state the licensees address, it omits to
include the licensees state of residence. See 1700.19(b). The complaint
infers that because [n]o provision is made in the Act for identification of
any State location other than California, only California residents can be
licensed.
Beyond this strained inference, the TAA has no affirmative residency
requirement. To the contrary, the Premise Certification required by the
Commissioner as part of a talent agents license application contains spaces
for city, state, and zip.
16
And, the Commissioners talent agency license
database http://www.dir.ca.gov/databases/dlselr/talag.html lists six
licensees in New York City, with others in Minnesota, Massachusetts,
Oregon, Tennessee and Texas.
17
Additionally, in William Morris Agency v.
OShannon (Cal.Lab.Com., Sept. 27, 2007) TAC No. 06-05 (RJN Exh. **)
the Commissioner found that the petitioner, a Delaware LLC, was a licensed

16
The form for this certificate is published at the Commissioners
website, see http://www.dir.ca.gov/dlse/talent_agency_license.html, item 4
under the question, What other documentation must be submitted with my
new application form? ER p. 83.
17
See ER 8591, judicially noticed by the court below.

36
talent agency and upheld its right to a commission from the respondent. Id.
Apart from the contrary evidence, glaringly absent from appellants
complaint and opening brief is the vaguest suggestion that any of its
members or anyone else was ever refused a license by the Commissioner on
account of being non California residents. Against the foregoing affirmative
showings, appellants unsupported and unwarranted inference cannot prevail.
Alternatively, appellant suggests that the TAA violates the Commerce
Clause because it regulat[es] commerce that takes place wholly outside of
the states borders, regardless of whether the commerce has effects within
the state. Here again however, appellant fails to cite a single case or TAC
where this occurred. In fact, when confronting cases where one or both of
the parties were out-of-state residents, the Commissioner has always applied
standard federal jurisdiction analysis. See, e.g., Breuer vs. Top Draw
Entertainment, Inc. (Cal.Lab.Com., 1996) TAC No. 18-95 [applying
minimum contacts analysis under International Shoe Co. v. Washington
(1945) 326 U.S. 310]; and see James v. Thompson Management
(Cal.Lab.Com., 2006) TAC No. 17-03 [Commissioner declined to assert
jurisdiction over unlicensed out-of-state personal manager who allegedly
attempted to procure work for artist in California on one occasion;
distinguishing Breuer v. Top Draw Entertainment, Inc., supra.]

37
In short, appellant simply has not and cannot state a claim that the TAA
violates the Commerce Clause.
IV. THERE IS NO VIOLATION OF THE CONTRACTS CLAUSE
Appellant contends that the TAA violates article I, section 10 of the
Constitution. ER p. 182 35-37. This clause provides: No State
shall . . . pass any . . . Law impairing the Obligation of Contracts. The
claim lacks merit for three fundamental reasons. First, the contracts with
which appellant is concerned presumably arose after 1985 enactment of the
TAA in its present form. The Contract Clause only protects contracts that
existed before the challenged enactment. Allied Structural Steel Co. v.
Spannaus, 438 U.S. 234, 242 (1978). Contracts are presumed to incorporate
the laws that exist at the time they are entered.
Second, the Contracts Clause does not protect illegal contracts. The
contract clause does not protect expectations that are based upon contracts
that are invalid, illegal, unenforceable, or which arise without the giving of
consideration. (Crane v. Hahlo, 258 U.S. 142, 146 (1922).
Third, the Contracts Clause is directed against impairment by
legislation, not by adjudication. Tidal Oil Co. v. Flanagan, 263 U.S. 444,

38
451 (1923). The TAA only impairs contracts that are adjudicated to have
been illegal.
V. NEITHER THE TAA NOR ITS ENFORCEMENT IMPLICATE FIRST
AMENDMENT RIGHTS
Preliminarily, it should be noted that appellant does not challenge the
TAAs licensing scheme per se. Nor does it challenge the states right to
regulate talent agents, or argue that the licensing scheme vests the
Commissioner with unfettered discretion to grant or deny a license. So, this
is not a case covered by the principles articulated in FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 223 (1990) (while facial challenges are generally
disfavored, they are permitted in First Amendment context where the
licensing scheme vests unbridled discretion in the decision maker and where
the regulation is challenged as overbroad.)
Appellants First Amendment challenge rests on the theory that a
personal managers conduct in procuring employment for a client involves
expressive activity. Based on this theory, appellant contends that the license
requirement of the TAA can be applied to them only within the strict
confines of the First Amendment, i.e., requiring a substantial state interest,
which can only be advanced in the least restrictive and content-neutral
manner.

39
ER p. 191 93-95.
The claim fails for three reasons, more fully developed below: First, as
the complaint itself alleges, the TAA regulates activity, i.e., procurement of
employment, and not speech. See ER p. 185, 56. Second, because the
Commissioner acts only as a neutral arbiter here, enforcement of 1700.44
against unlicensed personal managers is the result of private, not state, action.
Third, the First Amendment does not protect unlawful speech. Fourth, even
if procuring employment were protected expressive conduct, it is
commercial speech and the TAAs restrictions are constitutional.
A. The TAA Regulates Conduct, Not Speech
The Supreme Court has held that it has never been deemed an
abridgement of freedom of speech or press to make a course of conduct
illegal merely because the conduct was in part initiated, evidenced, or
carried out by means of language, either spoken, written, or printed.
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949); see also
Ohralik v. Ohio State Bar Assn, 436 U.S. 447, 456 (1978) (the State does
not lose its power to regulate commercial activity deemed harmful to the
public whenever speech is a component of that activity). If combining
speech and conduct were enough to create expressive conduct, a regulated

40
party could always transform conduct into speech simply by talking about
it. Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 66
(2006).
Moreover, the state has a legitimate interest in licensing certain
professions:
The modern state owes and attempts to perform a duty
to protect the public from those who seek for one
purpose or another to obtain its money. When one does
so through the practice of a calling, the state may have
an interest in shielding the public from the
untrustworthy, the incompetent, or the irresponsible, or
against unauthorized representation of agency. A usual
method of performing this function is through a
licensing system.
Thomas v. Collins, 323 U.S. 516, 544 (1945) (Jackson, J., concurring).
Here, the TAA licenses the conduct of procuring employment for artists,
not the expressive means by which employment is procured. And, while the
TAA is context specific (i.e., employment for artists), it is content neutral.
Nor does it matter who is doing the procuring. If the employment solicited
is for an artist, the solicitor must be licensed to perform this service if he
or she hopes to enforce any contract requiring the artist to pay compensation.
B. Enforcement of the TAA Is not State Action

41
Section 1983 was enacted to enforce the Fourteenth Amendment,
which prohibits interference with federal rights under color of state law.
Rendell-Eaker v. Kohn, 457 U.S. 830, 838 (1982). Whenever a 42 U.S.C.
1983 action against the state is based on an alleged deprivation of rights
secured by the United States Constitution, there must be a threshold showing
that the deprivation was the result of state action. [T]he Fourteenth
Amendment, which prohibits the states from denying federal constitutional
rights and which guarantees due process, applies to acts of the states, not
acts of private persons or entities. Id. at p. 837. In other words, in a 1983
case charging constitutional violations, it must be demonstrated that the acts
of the private person are in fact properly attributable to the state. Id. at
p. 838 (If the action of the respondent . . . is not state action, our inquiry
ends.)
Here, the Commissioner exercises her authority over personal managers
only in connection with the contracts of private parties, and only when her
jurisdiction is invoked by one of those parties. The Commissioner only
determines the rights of private parties under their private contracts. It is
well settled that the invocation of state law remedies by a private party
unaccompanied by affirmative enforcement action on the part of public
officialsdoes not constitute state action. Flagg Brothers, Inc. v. Brooks,

42
436 U.S. 149, 157 (1978) (private enforcement of statutory lien). Only
when a public official takes affirmative steps to enforce those remedies does
state action arise. See Lujan v. Edmondson Oil Co., 457 U.S. 922 (1982)
(discussing ex parte attachment of property by sheriff)
18
.
Plaintiff has not alleged any case in which the Commissioner undertook
affirmative enforcement beyond playing her adjudicatory role in
determining the effect of the TAA on private parties contractual rights.
Further, the resulting decisions are not binding on the superior court, either
for a specific case (which must be heard de novo) or as case precedent. In
the context of TAA enforcement against personal managers, it is private
litigants who enforce state court judgments. Once her office issues a
determination, the Commissioner is not involved with the decision of a party
to pursue further remedies. In sum, even if the TAA did burden plaintiffs
First Amendment rights, those burdens are the result of private, not state,
action.
C. The First Amendment Does Not Protect Unlawful
Commercial Speech

18
Even in Lujan, the attaching party was sued, not the state itself.

43
The First Amendments concern for commercial speech is based on the
informational function of advertising. See First National Bank of Boston v.
Bellotti, 435 U.S. 765, 783 (1978). Consequently, there can be no
constitutional objection to the suppression of commercial messages that do
not accurately inform the public about lawful activity . . . or commercial
speech related to illegal activity . . . . Central Hudson Gas & Elec. Corp. v.
Public Service Commission of New York 447 U.S. 557, 563-564 (1980.
Here, if the law requiring a license to procure employment for artists is
otherwise legal, then speech by unlicensed persons engaged in that pursuit is
not protected speech.
D. Even if the TAA Implicated First Amendment Rights, it
Does Not Impermissibly Burden Commercial Speech
But even if procuring employment was protected expressive conduct,
the TAA would still pass muster. [L]aws restricting commercial speech,
unlike laws burdening other forms of protected expression, need only be
tailored in reasonable manner to serve substantial state interest in order to
survive First Amendment scrutiny, as commercial speech is linked
inextricably with commercial arrangement that it proposes, so that states
interest in regulating underlying transaction may give it concomitant interest
in expression itself. Edenfield v. Fane 507 U.S. 761, 767 (1993). Thus,

44
laws restricting commercial speech need only be tailored in a reasonable
manner to serve a substantial state interest in order to survive First
Amendment scrutiny. (Ibid.)
Here, the entertainment industry comprises a major segment of the
California economy. The State has a substantial interest in protecting the
creative core of that industryartistic talentfrom exploitation by
unscrupulous or overreaching promoters. The TAA furthers that interest by
licensing and regulating those who procure employment for artiststalent
agents. Talent agents channel and direct the artists efforts and act as
gatekeepers of opportunity, and routinely act in fiduciary capacities by
receiving and managing the artists compensation.
Requiring persons to be licensed as a condition for performing these
functions for money is a reasonably tailored approach to achieve the states
public policy, and appellant has not proposed any narrower alternative which
could achieve these ends.
CONCLUSION
For all the foregoing reasons, appellees respectfully request that the
Court affirm the judgment.


45
Dated: December 6, 2013 Respectfully submitted,

KAMALA D. HARRIS
Attorney General of California
DOUGLAS J. WOODS
Senior Assistant Attorney General
MARK R. BECKINGTON
Supervising Deputy Attorney General

S/ MICHAEL GLENN WITMER
MICHAEL GLENN WITMER
Deputy Attorney General
Attorneys for Governor Edmund G. Brown
Jr., Attorney General Kamala Harris, and
California Labor Commissioner Julie A. Su
SA2013112067
61111620.doc
CERTIFICATE OF SERVICE

Case Name: National Conference of Personal
Managers, Inc. v. Brown,
Edmund G. (ON APPEAL)
No. 13-55545

I hereby certify that on December 6, 2013, I electronically filed the following documents with
the Clerk of the Court by using the CM/ECF system:

APPELLEES ANSWERING BRIEF

I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on December 6, 2013, at Los Angeles,
California.

Angela Artiga s/ Angela Artiga
Declarant Signature

61151048.doc

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13-55545

IN THE UNITED STATES COURT OF APPEALS

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