Vivid, AHF, County In Settlement Talks On Measure B Suit-UPDATE

UPDATE: According to sources close to this situation, no final settlement of the lawsuit has yet been agreed upon, though such settlement is currently being negotiated. The parties have until March 31 to inform Judge Pregerson whether such talks have been successful.

LOS ANGELES—Vivid Entertainment Group has settled its lawsuit against the County of Los Angeles, in which the AIDS Healthcare Foundation (AHF) had been allowed to intervene when it became clear that the County had no interest in fighting the suit. The County Board of Supervisors would still have to approve the settlement. The case revolved around AHF's ballot initiative-created "Measure B," which would require that condoms be used in all content shot within the county that depicted vaginal or anal intercourse.

According to a highly placed source, part of the reason for settling the enormously expensive legal action was the County's assurance that it would be at least a year before County officials would be in a position to enforce the Measure, as well as the fact that Measure B could itself be rendered moot by AHF president Michael Weinstein's "California Safer Sex in the Adult Film Industry Act" ballot initiative which, barring action by the California legislature, will appear on the November 2016 election ballot, and/or the California Division of Occupational Safety and Health (CalOSHA) Standards Board's likely adoption of Health Code revision Sec. 5193.1, which would add several alleged "health and safety" requirements targeting the adult industry.

Another factor may have been Judge Dean D. Pregerson's decision, in August of 2013, invalidating certain provisions of Measure B itself. While Judge Pregerson retained the mandatory condom use requirement, he struck down language that permits health department inspectors from revoking health permits without a hearing, the fees attendant to those permits, and also fines and other penalties contained in the law unless such fines are levied after a proper judicial review of the charges.

The case had been in limbo for several months after the Ninth Circuit Court of Appeals had upheld Judge Pregerson's rulings on the Measure, as well as inexplicably allowing AIDS Healthcare to remain as an Intervenor in the case, despite the fact that the organization has no standing to be involved. That lack of standing was made clear by the U.S. Supreme Court decision in Hollingsworth v. Perry, when Chief Justice John Roberts wrote in that opinion, "Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual 'case' or 'controversy'. As used in the Constitution, those words do not include every sort of dispute, but only those 'historically viewed as capable of resolution through the judicial process.' ... For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have 'standing,' which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit." [Emphasis added]

AHF, of course, has suffered no "concrete and particularized injury" because adult productions generally don't use condoms or other barrier protections for sexual intercourse. In fact, the lack of condoms and other barriers have no effect on AHF or its employees at all.

However, with the Ninth Circuit having certified the case as ready for trial, AHF began sending out subpoenas for depositions (or as they're sometimes known, "examinations before trial") as part of the normal "discovery" process that often takes place in legal cases. Among those subpoenaed to testify included Free Speech Coalition then-CEO Diane Duke, FSC Board Chair Jeffrey Douglas and FSC Board Secretary Mark Kernes—the last being particularly egregious because Kernes, besides being the FSC Board secretary, is also a journalist for AVN Media Network, and as such has been privy to confidential information from various sources—and AHF's attorneys had refused to enter into a protective order which would allow Kernes to refuse to answer certain questions if they pertained to such confidential information.

"This is a rare instance in which a moving party demands that non-parties be compelled to produce large volumes of sensitive information without the benefit of any protective order," wrote Kernes' attorney Jonathan L. Gottfried in response to a Motion to Compel. "In response to Mr. Weinstein’s subpoenas on FSC’s CEO (Diane Duke), board chairman (Jeffrey Douglas), and secretary (Mark Kernes) (collectively, the “Deponents”), the Deponents’ counsel asked for a commonplace precaution: the entry of the Court’s Form Protective Order (“Form Protective Order”)  (or an order analogous to it) so that confidential information would remain non-public and that deposition testimony was not used for purposes unrelated to this litigation. This was necessary because the deposition would likely address the internal affairs of FSC, confidential board meetings, and sensitive information regarding sexually transmitted infections. To the extent that Mr. Weinstein believed that any testimony were improperly designated as confidential, the protective order would enable Mr. Weinstein to challenge the designations. But Mr. Weinstein rejected the idea of entering into any protective order and took the position that nothing that the Deponents could say could be confidential.  Furthermore, Mr. Weinstein refused to agree that he would limit the use of the deposition testimony to this litigation."

In fact, Weinstein's attorneys refused the simple request to "watermark" the videotaped image of the deponents so that Weinstein/AHF could not excerpt portions of the deposition for use in anti-adult industry propaganda.

However, with the settlement of the case, the deposition subpoenas now appear to be moot—but the battle against onerous regulation of the adult industry continues, albeit in other forums.