In the wake of Kira Kener’s settlement from Vivid (I initially believed over one million dollars, now I believe around $300,000 of which at least 50% will go to her attorney), various ex-Vivid girls (from circa 2001) are lining up to sue the company along the same lines that Kira and Marty Singer took.
Porn may never be the same (since Marty Singer took an interest in contract girls).
I’d say that girls such as Malezia, Janine, Christy Canyon, Devon, etc may be very interested in seeking to emulate Kira’ success.
Could you imagine if one of these porn girls got Gloria Allred to rep them?
I wonder if Steve Hirsch’s problems with sleeping pills (ambien?) muddied his thinking on the Kira suit to let it go so far.
Lawmen posts:
The news report should not be taken as a benchmark for what was and was not a factor in the settlement. Nowhere in the report does it say that the marital aid was the “primary factor” in the settlement. That was simply the most salacious aspect of the lawsuit. A news story reading, “Porn Star Glad to Settle Dispute Over Website Revenues” wouldn’t have been nearly as “sexy,” don’t you think? The reporter obviously accessed the same court files that Luke has accessed (and which, presumably, Moxie has accessed, from the same source), and it was the reporter who picked and chose what to emphasize. Settlement conferences are confidential – the reporter would not have been present, and the parties certainly would not have disclosed their reasons for settling, nor did any details of the settlement get disclosed (see the news report). So, Luke’s “reportage” of the figure of a million dollars is nothing more than idle speculation. Ditto for his amendment of the estimate to $300,000 (and under California law, an attorney cannot take fifty percent of a settlement – if the lawyers had advanced costs on the case, they could recoup those costs in addition to a contingency fee of no more than 40% – but in this case, the firm did not advance the fees).
Oh, and as far as not hearing anyone say that Vivid’s interpretation of Kira Kener as an independent contractor was incorrect? You’ll hear it right now: Kira Kener would have been found to have been an employee of Vivid Entertainment under California law. The terms of the written agreement are not controlling in California; you have to look to the totality of the circumstances and the manner in which the hiring party (Vivid) treats the person hired (Kener). Where the hiring party dictates when and where someone works, how they do the job they’re hired to do, what they wear, and whether or not they can be fired, California courts have found that such relationships can be defined as “employer-employee” as opposed to an “independent contractor” situation.
As for the potential grievances of other Vivid girls, those would most likely be based on website revenues, although at least one other Vivid girl had direct personal knowledge of unsanitary conditions on a Vivid set.
Further, do you remember when Cal/OSHA (the California Occupational Safety and Health Administration) wanted to step in and “police” porn sets, stating there were workplace health issues involved? The porn industry said, “No thanks, we’ll police ourselves,” and this led to AIM’s predominance as an industry “safeguard” against the spread of disease. I would not be surprised if the allegations of this lawsuit make their way to the desk of someone at Cal/OSHA and if Cal/OSHA renews its interest in seeking some government regulation of porn shoots.
Luke is saying that Kira’s settlement is over a Million. I’m not sold on that, especially if there were other girls coming next. Why would Vivid give in just to start over again with a new lawsuit? As for other Vivid girls are lining up in the wings- CBS reported that the marital aid was the primary factor in the settlement. Did the other girls work with used marital aids as well?
Vivid’s contract permitted them to terminate Kira at any time. I’ve not heard anyone say that Vivid’s interpretation of their contract was incorrect on this point. The reason that Kira may have gotten past the contract is that she was alledged to have been wrongfully terminated due to blowing the whistle about HIV dangers on the set– a no no under California law. So, no allegations of wrongful termination and the other Vivid girls have no case on the contract.
The only other basis for recovery would be under the web agreement–which has not been reported as being a factor in the settlement. I’ve been clear that I just don’t see that much money in single girl pornstar sites (especially girls like Kira that have not done a film in a few years).
I’m going to get back to reviewing the evidence I’ve collected on Kira’s case and let you know what light that sheds on the settlement.
The news report should not be taken as a benchmark for what was and was not a factor in the settlement. Nowhere in the report does it say that the marital aid was the “primary factor” in the settlement. That was simply the most salacious aspect of the lawsuit. A news story reading, “Porn Star Glad to Settle Dispute Over Website Revenues” wouldn’t have been nearly as “sexy,” don’t you think? The reporter obviously accessed the same court files that Luke has accessed (and which, presumably, Moxie has accessed, from the same source), and it was the reporter who picked and chose what to emphasize. Settlement conferences are confidential – the reporter would not have been present, and the parties certainly would not have disclosed their reasons for settling, nor did any details of the settlement get disclosed (see the news report). So, Luke’s “reportage” of the figure of a million dollars is nothing more than idle speculation. Ditto for his amendment of the estimate to $300,000 (and under California law, an attorney cannot take fifty percent of a settlement – if the lawyers had advanced costs on the case, they could recoup those costs in addition to a contingency fee of no more than 40% – but in this case, the firm did not advance the fees).
Oh, and as far as not hearing anyone say that Vivid’s interpretation of Kira Kener as an independent contractor was incorrect? You’ll hear it right now: Kira Kener would have been found to have been an employee of Vivid Entertainment under California law. The terms of the written agreement are not controlling in California; you have to look to the totality of the circumstances and the manner in which the hiring party (Vivid) treats the person hired (Kener). Where the hiring party dictates when and where someone works, how they do the job they’re hired to do, what they wear, and whether or not they can be fired, California courts have found that such relationships can be defined as “employer-employee” as opposed to an “independent contractor” situation.
As for the potential grievances of other Vivid girls, those would most likely be based on website revenues, although at least one other Vivid girl had direct personal knowledge of unsanitary conditions on a Vivid set.
Further, do you remember when Cal/OSHA (the California Occupational Safety and Health Administration) wanted to step in and “police” porn sets, stating there were workplace health issues involved? The porn industry said, “No thanks, we’ll police ourselves,” and this led to AIM’s predominance as an industry “safeguard” against the spread of disease. I would not be surprised if the allegations of this lawsuit make their way to the desk of someone at Cal/OSHA and if Cal/OSHA renews its interest in seeking some government regulation of porn shoots.
Thanks for your input Kira. But I wish you would just comment on my blog. Luke could be correct about the 50% if Marty was billing by the hour and fee’s and expenses amounted to 150, which I believe I predicted they would.
As for the state policing porn sets, I agree and that was one of my arguments for giving performers health insurance (Universal Whore Care). The industry can do it or the State will do it for them.
And if the contractual issues where so clear and balance sheets for the web site so juicy, why did you settle for 300K or even $1M?
Moxie you’re jumping to conclusions about which you have precious little information. I am not Kira. I’ve been an attorney in California since 1989. The reason I don’t post on your blog is because your blog gets re-posted here by Luke Ford, where it obviously reaches a substantially wider audience.
Your “prediction” about hourly rates and what was billed is nothing more than idle speculation, since you have no idea how much time the Lavely & Singer firm actually put into the case. Simply reading the register of actions on a court website won’t give you much insight into the amount of time spent in the preparation of pleadings, discovery, research, and so on. You do not know whether the case was taken on contingency or an hourly basis.
Finally, the only people who know the terms of the settlement are the parties and their attorneys. I don’t claim to know any of the terms; I merely stated that Luke doesn’t know, and the news article stated expressly that the terms of settlement were not disclosed. As an attorney, And Moxie, YOU don’t know the amount of the settlement, so your assumption of settlement for “300K or even $1M” is just that: an assumption. I’m sure you’ve had cases settle where confidentiality clauses have been included in the settlement agreement. Given Steven Hirsch’s aversion to bad publicity, I can’t imagine that he didn’t insist on confidentiality in the settlement of this case.
Finally, if you’d like to read up a little on California law as it pertains to the definitions of “employer-employee” relations vs. “independent contractor” status, check the following link, which may prove informative.
http://www.dir.ca.gov/dlse/FAQ_IndependentContractor.htm