CAA List of “Underperforming Writers” Now Under Court Spotlight

In September 2016, a list circulated at CAA that placed John Musero, a scribe on The Newsroom who was picked up by the agency two years prior, among a group of “underperforming writers.” He had an active writing job and didn’t know about the list, let alone that he was on it. At the time, Musero was hopeful that his screenplay for “Main Justice,” a legal drama in the vein of The West Wing following a newly-appointed Attorney General that was optioned, would go into production.

A month later, another document called the “cutting list” was shared between CAA agents, one of whom was the former head of the TV lit department. On that list: a notation that read “getting rid of” next to Musero’s name. The writer was later dropped by the agency.

Those lists are the subject of a long-running lawsuit from Musero against CAA and his former agent Andrew Miller. What started in 2019 as a case over allegations that the agency gave his idea for the drama series to a bigger client without paying him has been growing into what could be a public relations nightmare for CAA. During discovery in 2023, Musero unearthed internal communications over the lists that he says indicate that his agents essentially stopped trying to find him work. And on Wednesday, a court greenlit the allegations for trial while dismissing claims that CAA stole the idea for “Main Justice.” A jury will consider whether the agency breached its duty to Musero by placing him on a secret list of underperforming writers.

“CAA has created secret blacklists of its clients while leading them to believe it continues to represent their interests,” says Ruth Majors, a lawyer representing Musero. “CAA has blocked releasing these blacklists, but we know they exist, confirming what has been suspected by many in the industry for years: CAA clients may have had their careers harmed or killed, unbeknownst to them.”

In a statement, CAA, referring to communications citing the lists, said, “In desperation, Mr. Musero has turned his focus to two emails, created 10 years ago by people who are no longer with the agency, and which had no influence on CAA’s representation of Musero as a client.” It added, “CAA is gratified by the judge’s ruling, dismissing John Musero’s claim that CAA misappropriated his idea for a pilot. Andrew Miller has always operated with integrity. He is a world-class agent whose track record of success speaks volumes about his diligence, expertise, care, and concern for the best interests of his clients.”

The creation and utilization of the lists are in dispute, with much of the information remaining behind closed doors. CAA maintains that the creation of such lists aren’t agency practice and that they were only ever seen by two agents, and Miller isn’t one of them, according to court documents. By its thinking, the lists were used to identify writers who needed extra attention rather than to determine who to let go. “It’s not a breach to conduct internal reviews of clients’ productivity,” CAA said in a court filing. And discovery has yet to reveal other names that were placed on these “underperforming” and “cutting” lists aside from Musero.

On summary judgment, CAA argued that the mere existence of the cutting and underperforming writers lists don’t constitute a breach of any duty. Its defenses included whether a talent agency, unlike realtors or lawyers, even owes its clients loyalty and honesty.

In the ruling, the court rebuffed the assertion. CAA is “hard pressed to argue the proposition that a talent agent can act dishonestly, disloyally, and contrary to their client’s best interests with impunity,” Bessinger wrote.

Responding to claims that he stopped looking for work for Musero, Miller said that he submitted his client’s name for four writing opportunities, including The Good Wife spinoff and an untitled HBO project. Due to his limited experience and credits, there were few writing opportunities available at his level, Miller said in a court declaration. 

Still, the court said that CAA and Miller could’ve “deprived Musero of the ability to find new representation, damaged his reputation, and prevented him for getting work as a writer.”

According to Musero’s version of events, which is contested by CAA, Miller decided he no longer wanted to work with the writer and placed him on the two lists. And before the rights to Musero’s optioned screenplay reverted back to him, CAA redeveloped that idea with another writer and sold it to a major network, which in turn developed it into a pilot without changing the title or crediting Musero.

“CAA secretly blacklists its own clients while leading them to believe it is continuing to represent their interests,” Musero said in a statement. “This case confirms what has been suspected by many in the industry for years. What’s clear is that CAA clients — and Guild members — may have had their careers harmed or killed, unbeknownst to them.”

Among the questions that will be asked at trial: Whether CAA maintains policies to protect writers from the damage likely to result from being placed on these lists and, if not, does that constitute a breach of duty?

The trial will be limited to whether the alleged blacklisting constitutes breaches of contract and fiduciary duty. In a win for CAA, Los Angeles Superior Court Judge Kerry Bessinger dismissed accusations that CAA stole the idea for Musero’s script for use by another, higher-profile agency client, Sascha Penn.

Musero said he submitted the pilot to his agents in September 2015, and independently shared it with a producer who shared it with the head of TV at The Mark Gordon Company, Nick Pepper. The Dan Jinks company expressed interest in bringing the show to CBS, but Musero thought Gordon’s outfit, also a CAA client, was a more attractive buyer. He claimed his agents stopped shopping the project while The Mark Gordon Company was mulling its offer, instead of working to drive up competitive bids.

The dismissal turned on the court finding that the two shows aren’t similar enough to constitute idea theft. “The style and pacing of each ‘Main Justice’ project is attributable to the same influential television show — ‘The West Wing,’” Bensinger wrote. “Further, in a legal-political project such as a DOJ television drama, the ‘West Wing’ style is a common type of presentation.”

The trial is scheduled to start in October.