The Young and the Restless

While youth is generally a prized commodity in the entertainment industry, some eyebrows were raised when Viacom, which became CBS Corp., hired Jonathan H. Anschell as general counsel for its television network in September 2004. He had compiled a dozen years of experience in the litigation trenches at two high-profile Los Angeles law firms, but had no background as a transactional lawyer negotiating the deals that are so much a part of an in-house counsel’s workload at a TV network. He had made partner at White O’Connor Curry Gatti & Avanzado in January 2000, but would now have to supervise a team of more than 30 attorneys. And he was only 36 years old.

“Normally you look for somebody with gray hair” as a network general counsel, says John M. Gatti, a former colleague of Anschell’s at White O’Connor.

Now 40, Anschell, an expatriate Canadian, still doesn’t have any gray hair and, with his boyish looks and wire-rimmed glasses, could pass for a youthful member of a law school faculty. But four years into his tenure, he has done everything from help negotiate a complicated deal involving the distribution of the network’s flagship CSI franchise to handle a controversy over whether the reality show Kid Nation violated child labor laws. The satisfactions from litigation that he enjoyed in his pre-CBS career, he says, have been matched by those of “pre-emptive lawyering.” “In litigation, things have already gone wrong,” he explains. “We’re attempting to keep things from going wrong.”

The CSI deal allowed CBS to assume control of all international television distribution for the crime show. It was negotiated with a private equity fund managed by Goldman Sachs & Co. and closed in January 2008. “Bridging the gap between two sides in a deal can be gratifying, and when we’re under tremendous time pressure to do that—as we were in the CSI transaction—it’s not hard to stay awake,” Anschell says.

“He took on a very big job at a young age,” says Lindsay A. Conner of Dickstein Shapiro in Los Angeles, one of the attorneys who represented Goldman Sachs in the CSI deal. “But he’s validated the decision of [CBS Corp. Chief Executive] Leslie Moonves and others to give him this kind of responsibility.”

Conner describes Anschell as a “smart, firm but flexible negotiator.” He adds, “Sometimes negotiators in transactional deals become paralyzed by the fear that they are agreeing to language which could be problematic in later litigation. Jonathan doesn’t have that problem, in part because he has a strong litigation background that has given him a sense of when he needs to hold firm and when he can concede to language.”

When Anschell sat down for an interview in his brand-new Studio City office, he was still savoring a major litigation victory. In July, the 3rd U.S. Circuit Court of Appeals overturned the Federal Communications Commission’s $550,000 fine against CBS for broadcasting Janet Jackson’s breast-exposing “wardrobe malfunction” at the 2004 Super Bowl. An attorney with Davis Wright Tremaine argued the case for CBS, but Anschell was present in the courtroom and says he was “very closely involved” in the litigation. “From our standpoint, the case involved very important principles,” he adds. “The court affirmed the principle that broadcast images are entitled to the same protection as words from undue restraint and unwarranted indecency.”

Anschell’s own appellate experience includes arguing before the 9th Circuit on behalf of Baywatch actor José Solano, who sued Playgirl magazine for using a photograph of him in the uniform of his lifeguard character on the cover of its January 1999 issue. In a published opinion, the court agreed with Anschell that Solano had a triable case for invasion of privacy.

Growing up in Calgary, Alberta, Anschell feasted on such TV courtroom dramas as The Paper Chase. An older sister started law school when he was about 11 and, he says, everything about the law “really appealed to me—not much else really crossed my mind.” After majoring in political science at the University of Toronto, he stayed on to study law there and got his first taste of litigation as a summer associate at the local firm of Goodman & Goodman (now Goodmans).

When Anschell got his law degree, rather than embark on a legal career in Canada, in 1992 he joined Christensen, White, Miller, Fink & Jacobs, which at that time was a Los Angeles entertainment law powerhouse that hired other expatriate Canadians. “I thought I’d give it a try for a year or two,” he remembers. He quickly passed the California Bar exam and stayed at Christensen White until 1996 when he joined White O’Connor.

A new entertainment law boutique founded by Christensen White alumni, White O’Connor specialized in bringing cases to trial, giving Anschell the courtroom experience he craved. As a trial lawyer, “he was very tough when he had to be,” Gatti says. “He was a very good strategist in the courtroom and … jurors warmed up to him very well.”

Among other successes, he represented Les Haber, a TV producer who sued Girls Gone Wild creator Joe Francis for stealing the idea from him for the Banned from Television series of extreme videotapes. The case settled after a jury awarded Haber $3.5 million. Another Anschell client was the Miss Universe pageant, which won more than $1 million in a breach-of-contract case against Tova Borgnine, founder of the Beauty by Tova cosmetics line and wife of Ernest Borgnine.

The CBS general counsel position opened up when Susan Holliday (who had been in the job since 2000) announced her retirement in the spring of 2004. Being a GC at a TV network, Gatti observes, is “like being a head coach of a pro football team. There are only so many teams and there are only so many networks. It’s clearly a sought-after position.” Despite his relative youth and inexperience, Anschell had one important thing going for him-at White O’Connor, he had frequently represented CBS. “They were very familiar with Jonathan,” Gatti says. “It wasn’t like they took a leap of faith by hiring him.”

Anschell, who is also a CBS executive vice president, confesses to some trepidation about taking the job. “One concern was that I did not have a background as a transactional lawyer,” he says. But he now feels that his litigation background has given him a “very helpful perspective” on negotiating deals and contracts.

“A lot of litigation results from ambiguities in transactions,” he explains. “If you’ve seen things go bad a number of times, you develop an ability to spot problems in advance and hopefully you can head off problems. You’re able to spot the ambiguity [in a contract].”

This “pre-emptive lawyering” is a prerequisite for a TV network general counsel, particularly with the proliferation of reality programming. Anschell witnessed firsthand the pitfalls of the genre when, as a White O’Connor attorney, he defended MTV in an invasion of privacy suit. The plaintiffs were a Washington, D.C., couple who were surprised on their Las Vegas vacation by a bloody fake corpse hidden inside their hotel room—part of a hidden-camera stunt for an MTV reality show called Harassment. The couple’s suit against the network settled in March 2004.

The CBS roster of reality shows includes long-running hits like Survivor and The Amazing Race. As Anschell acknowledges, such shows can never be completely litigation-proofed. “Any time you’re dealing with real people in real-life events, things evolve in ways you haven’t scripted in advance,” he says. The trick is to “protect the creative vision while hedging for all the risks you can identify. … We try to get involved as early as we can [in the creative process]. It’s a primary objective to keep the participants [in a reality show] safe but at the same time deliver a compelling show.”

In the case of Kid Nation, Anschell’s staff drafted a 22-page agreement for participants in the show, which followed 40 children who were chosen to spend 40 days in a New Mexico desert “ghost town” without contact with their parents. The agreement included everything from a comprehensive liability waiver to extensive confidentiality requirements. After production completed, there were some inquiries about compliance with labor laws. CBS insisted “the series was filmed responsibly and within all applicable laws in the state of New Mexico at the time of the production.” Anschell says that “there were no lawsuits arising from the show” and the producers provided for the children’s safety by, among other things, having a child psychologist on the set. “We learn things from every new reality show,” he says, adding, “Our main concern is to limit the risk of unintended consequences.” In the case of Kid Nation, no charges were filed or penalties imposed in regard to violation of labor laws.

Limiting risk may not be as “dramatic” as arguing before a jury. But Anschell says he gets “a lot of satisfaction being part of a business and a creative process, helping the creative side realize a vision even when there may be legal obstacles in the way.” But does he miss the courtroom? “For anybody who enjoys litigation, it’s always hard sitting there as a spectator. But there are enough different satisfactions that come with the [general counsel] job. I don’t have any regrets.”

Anschell has two children with his wife, Abigail Goldman, a Pulitzer Prize-winning journalist with the Los Angeles Times. An avid runner, he has completed the Los Angeles, San Francisco and New York marathons. “I don’t think I’ll do any more marathons,” he says, explaining that the training takes too much time. But when it comes to accomplishing great things in the legal world, he’s already on mile 20.