LOS ANGELES — Closing his cross-examination of agent Derek Hay, attorney Allan Gelbard, representing five former clients of his LA Direct agency, played his strongest card: a WhatsApp recording where Hay appears to be communicating with adult performer Mia Malkova about an opportunity to meet a gentleman in Dubai in exchange for a large sum of money.
At the last day of the second set of hearings concerning the Labor Board petition filed on behalf of the models, Hay continued testifying after being called to the stand by his own attorney, Richard D. Freeman.
Today’s testimony began with Freeman trying to get Hay to give some clarity about the events of September 3-10, when Sofi Ryan, one of the petitioners, claims he sexually assaulted her during a car ride between Vegas and Los Angeles.
Hay testified he was in Vegas from the 6th to the 9th, and that he never drove Ryan to Los Angeles during that time. He denied both giving her a ride or demanding a handjob while threatening to leave her, in Ryan’s words, “to die in an area without [cell phone] reception.”
I’m Organized
In the argumentatively peripatetic manner that both Freeman and Gelbard have conducted the interrogation of all witnesses, the lawyer then abruptly switched to a completely unrelated line of questioning. More minutiae about kill fees and booking fees were discussed, and Hay explained that he had been one of a new crop of agents around 2003 who had pushed for a standardization of these fees.
Gelbard has repeatedly indicated he intends to argue that booking fees, kill fees and generally any charges that benefit agencies against the models they are supposed to work for, are against California talent agency legislation.
Freeman asked Hay why he hadn’t filed LA Direct’s Best Practices document, which includes the agency’s kill fee information, with the California Labor Board, and Hay said his lawyer at the time he drafted the document, David Pierce, Esq. had advised against it.
Most of the day was taken up with a discussion of Hay’s practices regarding fees and commissions, which are at the core of the specifically contractual differences between the five petitioners and the agent.
As the day went on, though, the issue of Hay booking his models for private parties without security began to be explored. Two events in late 2017, referred to as “the poker party” and “the karaoke party” have been scrutinized during these hearings to determine if Hay’s alleged pressure to make models attend these parties under penalty of fines is against his “fiduciary duty” to his clients.
Yesterday, Gelbard defined an agent’s fiduciary duty as an obligation to “to do what is in your client’s best interest over what’s in your best interest.”
Hay explained he booked his clients as “ambiance models,” which he defined as “in major cities — Las Vegas, New York — they hire attractive young women for an event to make it look like it’s happening.” In the case of adult performers, it’s “not merely attractive young women, but they are wearing lingerie or topless,” he added.
Hay gave more details about the “poker party,” at what he described as “a large Newport Beach house, which I’ve seen listed for $12.5 million, and which some could describe as a mansion,” and the “karaoke party” in downtown Los Angeles. Both parties were organized by a longtime connection of Hay’s with ties to the local construction industry.
“Do you mean construction workers?” asked Gelbard.
Hay sneered. “These are executives from construction companies, not construction workers.”
Hay’s intense, super-focused manner, which Gelbard said “some would call controlling,” was scrutinized, as well as his sex life and his personal relationships, for several minutes. The agent testified yesterday he rose from a stage construction background in London, where his family still resides, and during the hearings much was said about his preference for “upscale” gentlemen’s clubs, steakhouses, what he described self-approvingly as “a corporate style” and “high-end condo topping parties” (celebrations for the completion of a real estate venture).
His demeanor was relevant to the contractual discussions because Hay described the adult industry around 2000, with clear contempt, as “chaotic.”
“My agency,” he testified with pride, “is run in a very structured, organized and corporate fashion.” At one point, he casually referred to his fellow agents as his “rivals.”
“Would you say you’re controlling?” Gelbard asked Hay.
“I’m organized,” the agent replied.
Although yesterday he had stated that “over his lifetime” he had dated people in the adult industry and “civilians” (a term Gelbard asked Hay to define on record), “50/50,” today he admitted that since starting his agency “the majority of people I would choose to date may be in the adult industry.”
“What percentage would you say?” Gelbard asked.
“80/20” the agent replied.
Hay also testified on record and adamantly that, industry gossip notwithstanding, he had never performed as a “crossover” in gay and straight porn during his years as “Ben English.”
But then, as the proceedings seemed to be heading towards a conclusion (Freeman had reserved the very last witness slot for a brief appearance by Hay’s Las Vegas accountant, to explain some discrepancies in invoices that Gelbard had implied constituted evidence tampering) the petitioners’ attorney prepared to play his trump card.
And turns out it was a doozy.
Please Don’t Shoot the Messenger
Leading Hay through the topic of referring his models to one particular escorting agency, which several of the petitioners had testified about, Gelbard started asking him about something off-topic.
“Do you ever solicit any of your models to go to Dubai?”
“No.”
“Have you asked any of your models to do escorting work in Dubai?”
“No.”
Gelbard announced he was going to play a WhatsApp recording.
The recording was of a person with an English accent leaving a message for someone named “Mia” about “someone I know very well” having asked Hay to pass on the message that she could have an opportunity “to travel to Dubai to see a gentleman there.” The amount suggested for her time was something that sounded like “$25,000.”
Hay, on the stand, appeared speechless. Gelbard, speeding up his patter, then started playing sections of the recording to go over details.
Turns out on closer listening, the person (later identified on the record as Hay, who never denied that it was his voice on the recording) was telling “Mia” that he thought she’d probably say "no," implying this was not the first time she had been made a similar offer.
“Please don’t shoot the messenger,” the person mock-begged Malkova in the message, implying he was somehow obliged to pass on the lucrative opportunity.
“Who is this ‘someone I know very well’?” Gelbard asked Hay, after re-playing the first snippet.
“I don’t know.”
“Who are you passing this message from?”
“I don’t know.”
Gelbard then played a second WhatsApp message.
The message suggested Malkova, without agreeing, had asked about the time commitment.
Hay assured her it would be four days total, and to give him an answer so he could “pass the information on to my client.”
“Who is this client?” asked Gelbard.
“I don’t know.”
Special Officer Salazar, who had listened without saying a word, perked up at the word “client.”
“You don’t know your client?” she asked.
“I don’t know.”
“Did you forget?”
Hay composed himself and repeated he had no clients in Dubai, implying that the ultimate issuer of this offer, the mysterious gentleman from the Gulf, must have been the middle-person’s client.
A break was called. Hay left the room, and a few minutes later the petitioners smiled in a celebratory fashion, shaking Gelbard’s hand.
Hay, Freeman and their legal assistant returned, with Freeman posing a few questions about contractual matters and fees.
After several minutes, Freeman tried to get Hay to discredit the recordings by saying that Malkova was “Justin Hunt [Sofi Ryan’s husband] half-sister” and “[Hay client] Danny Mountain’s ex-wife.”
“Until I was played that, I didn’t remember the offer,” Hay added. “It’s obvious that someone had contacted me who knows who the gentleman in Dubai is and [wanted it passed] on to Mia.”
Then Freeman called the Las Vegas accountant, who explained some discrepancies in paperwork turned in to Gelbard as mistakes made by Hay’s former employee, Fran Amador.
“The Otsego rent is never supposed to appear on a statement. Period. And that was something I had to reiterate to Fran multiple times,” testified Jessica Avras, CPA.
Closing arguments will be done by the lawyers as briefs, in written form, and then Special Officer Salazar will render her decision, quite likely in early 2020.
For XBIZ’s continuing coverage of the Derek Hay Labor Commission hearings, click here.
