[00:00:02] Speaker 00:
Good morning, Your Honors.

[00:00:03] Speaker 00:
I only have a few points to make, so I'll try not to burden too much of your time.

[00:00:07] Speaker 00:
But the primary issue here is that... Why don't you state your appearance if you could?

[00:00:11] Speaker 00:
Oh, I apologize.

[00:00:12] Speaker 00:
John Litwin, a Barkadarian law firm for Appellant Andrea Bordeaux.

[00:00:17] Speaker 00:
Thank you.

[00:00:18] Speaker 00:
And so the primary issue here is that the district court's refusal to consider

[00:00:24] Speaker 00:
the religious accommodation in the context of both WPI's finances and its place within their parent entity was in error.

[00:00:32] Speaker 00:
That was against both the plain language of Grof and also leads to some strange conclusions.

[00:00:39] Speaker 00:
The district court's reasoning was that a well-resourced defendant would essentially never be able to meet the undue burden standard, which is incorrect.

[00:00:51] Speaker 00:
It just means that the bar is higher

[00:00:53] Speaker 00:
for those entities who are better able to facilitate the public policy of meeting these accommodations.

[00:01:03] Speaker 00:
Also, in relation to the increased day-to-day costs and risk of a shutdown,

[00:01:10] Speaker 00:
It's important to note that appellant is was only asking the Apple ease to abide by the same covid protocols that they agreed to in season one, albeit in a much more limited much more cost effective manner.

[00:01:26] Speaker 00:
So those protocols had already been deemed not to be an undue hardship and so

[00:01:35] Speaker 00:
It stands to reason that during season 2.

[00:01:37] Speaker 04:
I can ask you a question about the season 2 protocols.

[00:01:42] Speaker 04:
Is there a way to relax those protocols at all or is that basically set in stone because of union agreements?

[00:01:51] Speaker 04:
Season two said maybe, you know, five days if you five days of quarantine, if you've been exposed to someone who tests positive, is that something in your belief is set in stone?

[00:02:00] Speaker 04:
There's no way around it.

[00:02:01] Speaker 04:
Or is it something that you think Lionsgate could have accommodated it and relaxed it?

[00:02:06] Speaker 00:
I believe at the time they were union rules, but those protocols were constantly being relaxed as covid became less and less severe as vaccinated by the union, not by Lionsgate, right?

[00:02:16] Speaker 00:
Or correct.

[00:02:19] Speaker 00:
And so also just regarding the risk to Bordeaux's coworkers.

[00:02:24] Speaker 03:
Can I just clarify, on Judge Lee's point, you're not saying that at any point the production company required more than what the union required?

[00:02:34] Speaker 04:
Correct.

[00:02:35] Speaker 04:
And you didn't make any requests to Lionsgate to relax those season two protocols?

[00:02:41] Speaker 00:
No, the request was only that they abide by the same protocols that they put in place in season one, albeit only for appellant, which would have been more limited in scope and more cost effective than they were during season one.

[00:02:55] Speaker 03:
But how could they have not required the union rules be complied with?

[00:03:03] Speaker 00:
And I'm sorry I may have been confused but they were not we were not requiring an exemption from the union rules the union rules did not require vaccination they permitted.

[00:03:13] Speaker 00:
Unvaccinated individuals to keep working, they just had to abide by this.

[00:03:22] Speaker 03:
This, you know, five days if you're quarantine, if you're exposed and unvaccinated under vaccine, then five days to mask.

[00:03:28] Speaker 03:
But if that's a union requirement, I don't see how your client could have gotten an exception.

[00:03:37] Speaker 00:
She's not requesting an exception to the quarantine requirement, but in the event of a requirement, which may or may not have come to pass and may have been speculative, which the odds of that is an issue that we

[00:03:50] Speaker 00:
believe should have been left to the jury.

[00:03:52] Speaker 00:
There may have been other steps that Lionsgate could have taken to mitigate these risks, such as changing filming schedules, as they did when another cast member tested positive, both a main cast member and a temporary cast member.

[00:04:06] Speaker 00:
The court also raised the concern of the risks to Ms.

[00:04:11] Speaker 00:
Bordeaux's co-workers, and appellees cite a significant amount of cases in support of that.

[00:04:17] Speaker 00:
However, I think it's important to note all the cases cited by the majority of the cases cited by Apple ease arose in the context of health care and so health care providers working with individuals who were not or could not.

[00:04:34] Speaker 00:
have been vaccinated, as well as the bike arc case, which involved a teacher around students who at that time could not have been vaccinated.

[00:04:46] Speaker 00:
That's meaningfully different than the present case, where all of Miss Bordeaux's coworkers had been vaccinated.

[00:04:54] Speaker 00:
So the risks are meaningfully less.

[00:04:56] Speaker 00:
And so whether or not that was a significant risk is an issue that should have been left for the jury.

[00:05:04] Speaker 00:
So on that note, we will submit the matter to the court.

[00:05:08] Speaker 02:
There may be some questions here.

[00:05:10] Speaker 03:
Yeah, I have a question.

[00:05:11] Speaker 03:
Sure.

[00:05:12] Speaker 03:
If we think the potential shutdown is not unduly speculative, then would you agree that the $1.5 to $3 million in increased costs would be a substantial cost under Grof?

[00:05:26] Speaker 00:
We would argue that it's not, or at the very least, it's a matter best submitted to the jury because that would still bring the costs in line with what they were paying in season one, which they deemed were not an undue hardship and was a cost that they could bear.

[00:05:42] Speaker 04:
What does that cost?

[00:05:43] Speaker 04:
You're saying the 1.5 million?

[00:05:46] Speaker 00:
The one point in season one, they expended approximately 6.5 million in COVID protocols.

[00:05:52] Speaker 00:
So yes, the increased cost of 1.5 to 3 million if it came to pass, which may have been able to be mitigated by changing filming schedules.

[00:06:03] Speaker 00:
If that came to pass, that's still not an undue hardship.

[00:06:07] Speaker 04:
If we take your and your position is that we should consider the revenue of the entire Lionsgate company, right?

[00:06:14] Speaker 04:
Correct.

[00:06:15] Speaker 04:
I mean, if we take that to logical conclusions, I mean, can a large company like Apple or Tesla or Amazon, trillion-dollar market cap value, I mean, they would accommodate everyone, right?

[00:06:26] Speaker 04:
Because any cost would be very, very small compared to the revenues of such a large company.

[00:06:32] Speaker 00:
Not necessarily, and it would be, it's in the context of the filming of this season.

[00:06:39] Speaker 00:
The burden for those companies we do submit would be higher than a smaller company because as stated in Grof, we need to take into account the entire context of the company, the entire context of the situation.

[00:06:53] Speaker 00:
And so those companies have a greater ability to grant religious accommodations with less of a burden on

[00:07:03] Speaker 00:
the company, which facilitates the public policy of allowing people to continue to work while adhering to their religious... But in Grof, that employee worked for the U.S.

[00:07:12] Speaker 03:
Postal Service, right?

[00:07:14] Speaker 03:
Correct.

[00:07:14] Speaker 03:
And for the Undo Hardship, they just looked at the hub where that employee worked.

[00:07:19] Speaker 03:
They didn't look at the entire United States Postal Service, right?

[00:07:23] Speaker 03:
So I guess I'm unclear, even under Grof, it doesn't say look at all of Apple, right?

[00:07:28] Speaker 03:
It says look at the hub where the employee works.

[00:07:37] Speaker 03:
We often look at the entire United States Postal Service.

[00:07:40] Speaker 02:
Or the entire United States government.

[00:07:42] Speaker 02:
Exactly.

[00:07:44] Speaker 03:
They said, let's look at the location where this employee works.

[00:07:52] Speaker 00:
That's correct.

[00:07:53] Speaker 00:
Although I will note that a little bit of a distinction, there was no way for the government to accommodate that without infringing on seniority rights, which were an issue in Grof, whereas here we're talking only about a financial

[00:08:05] Speaker 00:
financial matter, which is a little bit different.

[00:08:08] Speaker 03:
But we're trying to figure out, when Grof talks about consider the context, that's really what we're looking at.

[00:08:15] Speaker 03:
And Grof that said the context is the hub where the employee works, not the entire entity.

[00:08:21] Speaker 03:
But let me ask you another question.

[00:08:23] Speaker 03:
On the money, on the 1.5 to 3 million, it seems like your argument was mostly that the potential shutdown was just completely speculative.

[00:08:34] Speaker 03:
I didn't see in your brief that you were actually disputing the money, that that was not a substantial cost.

[00:08:41] Speaker 03:
Would you agree with that?

[00:08:42] Speaker 00:
We were not disputing the amount.

[00:08:44] Speaker 00:
We were disputing whether or not that that was an undue hardship, given the amount that the company had deemed was an acceptable cost during season one.

[00:08:59] Speaker 02:
All right.

[00:08:59] Speaker 02:
Thank you, counsel.

[00:09:00] Speaker 02:
Why don't we reserve your time for rebuttal in case you want to respond?

[00:09:09] Speaker 01:
Good morning, Your Honors.

[00:09:10] Speaker 01:
May it please the court, Nari Kim on behalf of Peli's World Productions Inc.

[00:09:14] Speaker 01:
and Lionsgate Entertainment Inc.

[00:09:18] Speaker 01:
There are three distinct grounds on which an undue hardship was found, the first being an added cost of $300,000 in production expenses to accommodate Ms.

[00:09:26] Speaker 01:
Bordeaux's exemption request.

[00:09:28] Speaker 01:
The second was

[00:09:29] Speaker 01:
what we're referencing as the 1.5 to $3 million range in the production shutdown, should Ms.

[00:09:36] Speaker 01:
Bordeaux be required to mask and quarantine for a 10-day period, which was, as Mr. Litwin conceded, required by the union standards.

[00:09:45] Speaker 04:
And then the third- On the second one, sorry to interrupt.

[00:09:47] Speaker 04:
Can you address that point?

[00:09:48] Speaker 04:
Could Lionsgate have asked the union to relax its rules, the five-day quarantine rule, if they wanted to?

[00:09:56] Speaker 01:
I don't believe so.

[00:09:57] Speaker 01:
I believe that it was the SAG-AFTRA return to work agreement that incorporated the CDC guidelines at the time, which required a person who either tested positive themselves or a person who came into close contact, meaning six feet of another person who tested positive.

[00:10:13] Speaker 01:
That person, under these circumstances, an actress on the show would have been required to first quarantine for five days.

[00:10:19] Speaker 01:
and then mask for five days, which would have effectively eliminated her ability to work on a show for 10 seconds.

[00:10:24] Speaker 04:
Was there any provision of agreement that said you can ask for an exception or a variance?

[00:10:28] Speaker 01:
I don't believe so.

[00:10:33] Speaker 01:
So the context of the request here was by a main actress, a leading actress on a television show that filmed eight episodes within a 10-week production timeline.

[00:10:45] Speaker 01:
And this is a person who could not mask because she appeared on screen.

[00:10:48] Speaker 01:
And this was a person who could not socially distance because she was required to interact with her screen partners and other cast and crew.

[00:10:55] Speaker 01:
So this is a pretty exceptional case, and quite frankly, one in which there isn't really a close call and undue hardship.

[00:11:01] Speaker 01:
We're talking about pretty staggering numbers in the $1.5 to $3 million range, which is well in excess of the magnitude of cost that Transworld Airlines and Grof were dealing with.

[00:11:11] Speaker 01:
Can I ask you?

[00:11:12] Speaker 03:
What metric are we supposed to use, citing whether the financial impact of a requested accommodation is an increased cost?

[00:11:22] Speaker 03:
Do we look at profit?

[00:11:24] Speaker 03:
Do we look at total revenue?

[00:11:26] Speaker 03:
Do we look at cash on hand?

[00:11:29] Speaker 03:
Do we look at operating expenses?

[00:11:30] Speaker 03:
What are we supposed to consider?

[00:11:33] Speaker 01:
So to be clear, there's both economic burdens and non-economic burdens that are part of the analysis.

[00:11:38] Speaker 01:
So the economic burdens, I believe, include at least

[00:11:41] Speaker 01:
per grof, the operating cost of the employer and the employer size.

[00:11:45] Speaker 01:
Those are two of the factors that are enumerated in the grof standard.

[00:11:48] Speaker 01:
But grof is also very clear in that it needs to be an overall analysis of the practical impact of the accommodation that's made by this particular person.

[00:11:56] Speaker 01:
And here, that would include not only the operating cost of World Productions Inc., which

[00:12:02] Speaker 01:
by the way, as the employer being sued.

[00:12:04] Speaker 01:
And I think there was some confusion over which Lionsgate entity should have been sued in the first instance.

[00:12:10] Speaker 01:
And I think Ms.

[00:12:11] Speaker 01:
Bordeaux would concede that she'd never managed to sue the right one.

[00:12:15] Speaker 01:
And so we're dealing with World Productions, Inc.

[00:12:17] Speaker 01:
as the sole employer at issue.

[00:12:19] Speaker 01:
There's non-economic burdens as well, which were recognized by Grof and validated by Grof, including the health risks that can be posed to coworkers, as well as just

[00:12:30] Speaker 01:
Morale, things of that nature.

[00:12:32] Speaker 01:
I think Mr. Litwin mentioned seniority rights.

[00:12:35] Speaker 01:
So for instance, if there were union rules that required seniority rights to be honored, that's not necessarily an economic cost, but it's still part of the analysis.

[00:12:43] Speaker 01:
many relevant factors and two of which are the employer size and operating costs.

[00:12:47] Speaker 04:
Should we look beyond just the WPI, the entity that was formed to create this show?

[00:12:52] Speaker 04:
Maybe we don't go as far as the entire lines get as your friend on the other side explains, but I mean maybe we should look just beyond WPI because I mean it's

[00:13:02] Speaker 04:
No offense to your client or your industry, but there's well-known Hollywood accounting.

[00:13:06] Speaker 04:
It's like the reverse of Enron accounting.

[00:13:08] Speaker 04:
They create special purpose vehicle not to hide losses, but to hide profits.

[00:13:13] Speaker 04:
So, I mean, should we look maybe beyond at least WPI and a little bit broader?

[00:13:18] Speaker 04:
Again, I don't think you go to the extreme end of the entire company, the conglomerate.

[00:13:23] Speaker 01:
I think the panel really hit the nail on the head when it noted that, at least in Grof, the analysis was confined to

[00:13:30] Speaker 01:
the small rural station at which Mr. Groff requested a transfer.

[00:13:34] Speaker 01:
And that was, I believe, the one in Holdwood.

[00:13:35] Speaker 01:
And they mentioned it by name.

[00:13:36] Speaker 01:
And I think that's important.

[00:13:38] Speaker 01:
They also focused only on the regional hubs that would otherwise be affected in that area.

[00:13:43] Speaker 01:
The context is where the employee works.

[00:13:46] Speaker 01:
And I think that's not only clear in Groff, but it's also clear in the predecessor case, Transworld Airlines, where, again, this was a national domestic airline, one of the largest operating at the time.

[00:13:57] Speaker 01:
And analysis focused exclusively on this one airport base in this one city and the two or three departments that would be affected by this employee.

[00:14:05] Speaker 01:
And again, returning to the point that it's not just economic burdens, but non-economic burdens as well.

[00:14:10] Speaker 03:
That's really the only common sense way to look at it because... Could you imagine a situation where you would look broader if Grof says look at the overall context?

[00:14:18] Speaker 03:
Can you imagine a situation where even though it looks like they're two entities, they really

[00:14:23] Speaker 03:
I don't know whether the analogy would be like piercing the veil or something that there really are effectively one entity and should be considered together.

[00:14:31] Speaker 03:
Imagine any situation where that would be the case.

[00:14:35] Speaker 01:
I'm sure it is possible, but the case at hand is a television production of a single show on which Miss Bordeaux starred as one of the leading actresses.

[00:14:42] Speaker 01:
So I think hypothetically maybe there is a situation in which a plaintiff does properly sue joint employers and there might be some other alternative theory of liability for

[00:14:53] Speaker 01:
a parent company or an affiliate, but that's not the situation we're in here.

[00:14:57] Speaker 04:
Should we look at in assessing the substantial cost or burden?

[00:15:00] Speaker 04:
Should we look at the position of the person who's asking for the accommodation?

[00:15:06] Speaker 04:
So for example, you mentioned $300,000 would be the cost to accommodate Ms.

[00:15:10] Speaker 04:
Bordeaux.

[00:15:11] Speaker 04:
Obviously, $300,000 would probably be a substantial burden to accommodate an extra on the set, who gets paid pittance, or the best boy, Grip, who don't get paid that much.

[00:15:21] Speaker 04:
But for, you know, the star of a show or star of a movie, you know, it's well known, again, in this industry, you have a lot of millionaire malcontents who make a lot of unreasonable and costly demands.

[00:15:31] Speaker 04:
The studios almost always meet those demands.

[00:15:35] Speaker 04:
Apparently, they don't consider it really substantial aside, apart from this context.

[00:15:38] Speaker 04:
So here, Miss Bordeaux was one of the key stars of the show.

[00:15:42] Speaker 04:
So maybe if you do a very fact-specific analysis, should we take that into account?

[00:15:47] Speaker 01:
I believe we actually addressed her salary and the amount of compensation she was paid on the show and the $300,000 would have been quite substantial in relation to Miss Bordeaux with respect who was not quite an A-list celebrity and I think the $300,000 compared quite large in comparison to what she would have been paid over the course of not just the first two seasons but the rest of the contract.

[00:16:10] Speaker 01:
So it would have been substantial in this context.

[00:16:14] Speaker 04:
But you think we should consider the position as part of the fact-specific analysis required under DeJoy?

[00:16:21] Speaker 01:
I think in the graph, all of the relevant factors, including the identity of the person requesting the accommodation, are supposed to be considered.

[00:16:29] Speaker 01:
And in this case, when we do consider it, whether it's the $300,000 metric or the $1.5 million to $3 million range, those are vastly

[00:16:39] Speaker 01:
vastly substantial in comparison to what Ms.

[00:16:42] Speaker 01:
Bordeaux would have been paid under her contract.

[00:16:53] Speaker 02:
You've got seven minutes.

[00:16:55] Speaker 02:
It's up to you how you want to use it.

[00:16:56] Speaker 01:
Well, if there are no other specific questions from the panel, I'd be happy to submit on the papers and arguments.

[00:17:02] Speaker 02:
Very well.

[00:17:02] Speaker 01:
Thank you.

[00:17:06] Speaker 02:
No, go ahead.

[00:17:07] Speaker 02:
You've got six minutes.

[00:17:10] Speaker 00:
Thank you, Your Honor.

[00:17:11] Speaker 00:
So just very brief rebuttal.

[00:17:14] Speaker 00:
To Your Honor's points about Hollywood accounting and the regional hub, I do think it's a little misleading to or it's extremely misleading to look at WPI only as a separate company or one production when in reality it is in a lot of ways a vessel for the larger Lionsgate entity to park their assets to produce

[00:17:36] Speaker 00:
this company, given that both season one and season two were produced ahead of time, knowing that they were projected to run at a loss.

[00:17:57] Speaker 00:
I can see that the attorneys handling the matter at that time likely should have done that.

[00:18:02] Speaker 00:
But I don't think it's relevant in that we can still consider.

[00:18:07] Speaker 00:
or I don't think it's dispositive as we can still consider WPI's place in the larger company.

[00:18:15] Speaker 00:
Just on the issue of the company running a loss and those magnifying the burden of granting the accommodation, that was one of the reasonings the district court relied on that a company should not be required to magnify its losses

[00:18:35] Speaker 00:
That leads to the conclusion that any company operating at a loss would be absolved from the requirement to accommodate a religious accommodation, which is clearly a faulty reasoning.

[00:18:48] Speaker 00:
So I also think that that point undermines their argument.

[00:18:51] Speaker 00:
But on that, well, if there are no further questions, I will submit the matter on the papers in the argument.

[00:18:59] Speaker 03:
Just quickly, looking at your opening brief, it looks like the only challenge you make to the potential shutdown is that it's completely speculative.

[00:19:08] Speaker 03:
Can you give me a site as to where you say the 1.53 million is?

[00:19:16] Speaker 03:
I'm looking at page 13.

[00:19:17] Speaker 02:
Is this the opening brief or the reply brief?

[00:19:22] Speaker 02:
This is the opening brief.

[00:19:29] Speaker 00:
That may not be explicitly laid out in our opening brief, but these numbers are cited by appellees in their brief.

[00:19:40] Speaker 00:
And we do argue that these are the same accommodations that were granted voluntarily at the studio's own initiative in season one.

[00:19:48] Speaker 00:
So providing them at a reduced cost is therefore not an undue burden.

[00:19:59] Speaker 02:
I thank you very much, Council.

[00:20:00] Speaker 02:
Thanks to both of you for your briefing and argument in this very interesting case.

[00:20:04] Speaker 02:
Hollywood is always interesting.

[00:20:06] Speaker 02:
This matter submitted.