Vivid, AHF Reach Settlement in Measure B Legal Battle

Jan 26, 2016 1:11 PM PST

LOS ANGELES — A settlement has been reached in Vivid Entertainment’s federal lawsuit over Los Angeles County’s Measure B.

On Thursday, Vivid attorneys and counsel for intervenors in the suit, the AIDS Healthcare Foundation, told a magistrate judge that they have reached a deal to end their long-running legal battle over porn production requirements.

Details of the Measure B settlement have not been publicly revealed; however terms of the agreement will be subject to approval by the Los Angeles County Board of Supervisors. A hearing date for approval hasn’t yet been made.

The long-running case has its roots in a 2012 ballot measure, titled the County of Los Angeles Safer Sex in the Adult Film Industry Act and sponsored by the AHF, that received the green light from voters.

The measure requires porn performers to wear condoms in all vaginal and anal sex scenes shot in Los Angeles County and forces porn producers to pay an annual fee to the county's Department of Public Health. In addition, all performers and workers on the set also are required to undergo bloodborne pathogen training.

In January 2013,Vivid, one of porn’s most prolific studios, filed a lawsuit against the Los Angeles County and its Public Health department claiming that the measure violated performers’ rights to free speech and expression. The lawsuit included as co-plaintiffs porn performers Kayden Kross and Logan Pierce.

Seven months later, Pregerson struck down portions of the law, including a $2,000 to $2,500 permit fee, but upheld the constitutionality of requiring condoms in adult films and any fee that was “revenue neutral” to cover enforcement costs. Pregerson also denied Vivid’s motion for preliminary injunction.

Vivid appealed Pregerson’s ruling that upheld the measure, and in December 2014 the 9th U.S. Circuit Court of Appeals affirmed the federal jurist’s order denying a motion to overturn the ordinance.

The 9th Circuit, however, held that Pregerson did not abuse his discretion in declining to enjoin the enforcement of Measure B’s condom mandate.

The case was sent back to the lower court to adjudicate Vivid’s claim that its First and Fourth Amendment rights were violated with Measure B.

Vivid all along has claimed that Measure B inhibits the studio’s desire to freely express unprotected sex in the actual making of the film in order to realize its artistic vision; performers are consenting adults and may choose to have sex in the workplace in the manner in which they please; and that the adult film industry takes adequate steps to protect its performers from sexually transmitted infections so no one else should protect them.

But Vivid’s claim that the adult industry already takes adequate steps to protect its performers from STIs, making Measure B unnecessary, became ammunition for AHF President Michael Weinstein and the AHF.

Weinstein and the AHF, the intervenors in the suit, served a subpoena on the performer testing clinic Cutting Edge Testing, a clinic used mostly used by performers signed up in the Free Speech Coalition’s PASS system, for all documents relating to STI test results.

Weinstein sought two categories of documents in discovery: All information uploaded by CET to the PASS system and adult performers’ test results for the past five years.

However, the AHF, as intervenors in the suit, asked the court to impose sanctions against the FSC for not disclosing the information without the protective order.

Meanwhile, Vivid attorneys claimed a misuse of discovery, claiming that “Weinstein is harassing a non-party (e.g.: by seeking to publicly disclose membership lists) in order to support his ‘war of attrition’ against FSC and its members."

The parties were scheduled to meet in court today over the motions to compel depositions and further responses from the FSC, but the hearing was vacated on Thursday.

In a status hearing on Thursday before U.S. Magistrate Judge Alicia Rosenberg, the parties said they had settled the case. With that news in hand, Rosenberger gave them until March 31 to hammer out and finalize the agreement.

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