It Ends With Lawsuits: Unpacking the Blake Lively and Justin Baldoni Legal Battle

Episode Notes

Transcript

Tracy Brammeier:

Hello everyone and welcome to the CBAs @theBar podcast where we have unscripted conversations with our guests about legal news, topics, stories, and whatever else strikes our fancy. A quick thank you to LexiNexis for supporting this podcast. It ends with us, is a movie about the romantic and abusive relationship between Lily and Ryle, played by Blake Lively and Justin Baldoni, the latter of whom also directed the film. Its release in the summer of 2024 was highly anticipated by fans of the novel on which it is based, who followed news around the production of the film. Closely around that time, fans noticed the stars stayed away from each other and did not pose together for photos. Reports began surfacing about a rift in the real life relationship between the stars, and soon it was speculated that Justin was on the outs with the cast and crew.

Questions about tension in the relationship began to permeate promotional interviews during the press tour and shortly thereafter, negativity about Blake’s behavior began circulating on social media with clips of old interviews being made with commentary suggesting she is habitually rude and disrespectful. On December 20th, 2024, Blake Lively filed a complaint against Justin Bald, his studio and his PR team for sexual harassment, retaliation and more. The next day, the New York Times published a lengthy story about the claims, which alleged that after he realized the fracture in his relationship with Blake was being noticed publicly, Justin and his PR team initiated a smear campaign and worked to bury Blake after she complained about his behavior on set during the film. In response, Justin and his team Countersued for defamation and extortion alleging $400 million in damages. And around the same time, Justin also sued the New York Times for libel saying it disregarded aspects of the facts surrounding Blake’s complaint that were inconsistent with her allegations when it did its reporting.

Here today we have, joining us to untangle this mess is Kyla Weber, an attorney in Mayor Brown’s employment, litigation and counseling practice here in Chicago. Kyla represents and counsel’s employers through highly sensitive personnel matters, particularly those related to claims of sexual harassment, discrimination, and retaliation. In her first month as a lawyer, Kyla was staffed on the Harvey Weinstein case way to start with the bank, Kyla, a matter that is widely credited for driving the hashtag me too movement, Kyla’s early work on that case fueled her passion for helping companies maintain safe and healthy working environments for all employees. She continues to do that today, working with Fortune 500 companies, unemployment issues. Jeff Becker is founder of Swanson Martin and Bell’s entertainment and media law practice Group also here in Chicago. Drawing from his wealth of experience, Jeff helps clients resolve contractual and business disputes wielding his expertise in copyright and trademark claims.

Trade secret battles and defamation lawsuits. Among his clients are Grammy Award-winning recording artists, producers, actors, and athletes for whom he provides comprehensive transactional and litigation services. And finally, we have Jim Hemphill, a trial and appellate lawyer with the firm Graves Dougherty, Huron and Moody in Austin, Texas, where he has practiced First Amendment and media law for more than 30 years. His clients have included Texas Monthly, the Texas Observer, the Austin American Statesman, the Wall Street Journal, the New York Times, and the Los Angeles Times small unrecognizable outlets. So now I can catch my breath. Thank you all for being here. I would like to just start the conversation with Kyla’s reaction as our resident employment law expert Kyla’s reaction to the complaint that was filed by Blake with the California Civil Rights Department in December in which she accused Justin bald of sexual harassment and retaliation. Did that strike you as a standard harassment retaliatory case? And if not, why not?

Kyla Miller:

I wouldn’t necessarily call it standard. There are a lot of, I think, very unique elements about this case. So the fact that she brought a hostile work environment claim and a retaliation claim, those two typically go hand in hand together. But in addition to that, I think what’s so interesting about this case is just the environment in which it comes up. You have something in the entertainment industry and you have an environment where actors are already consenting to some amount of physical touching. For example, if you read Blake Lively’s complaint, she has a lot of allegations in there that essentially Justin Baldoni stepped over the line of her consent. So typically in a regular employment matter, you would have an employee who’s alleging that maybe their supervisor or maybe even just another coworker has either said something offensive or they have physically touched them in a way that was unwelcome.

There’s a whole host of allegations that you could see, and there’s always a wide range in the severity of that. So here it’s different because you have Blake and Justin who are engaging in, for example, lots of intimate scenes. It’s a film that really highlights domestic violence in a way, also a very twisted love story. And so frankly, there are sex scenes there, there are kissing scenes, there’s a scene where she’s giving birth and she’s partially nude. All of those types of things as she alleges in her complaint were things that she had consented to in part part, I think is the key word there, because as soon as the conduct becomes unwelcome, then that’s when it crosses the line into potentially sexually harassing conduct. And that’s really what I think you’re seeing through her complaint.

Kellie Snyder:

I think it was recently came out this past week that the actor who played, I think it was the OB GYN, that was also a friend of Justin Baldoni, said that Blake was actually wearing black shorts underneath. How damning is that for her at this stage of the case and every other incident that she’s claiming? I think from my perspective, that sounded like the worst thing that happened, and now what is she looking at if that’s true?

Kyla Miller:

Yeah, so let’s talk about that. So her complaint includes a lot. One of, I think I agree, the most salacious allegation is that she’s in this birth scene, and according to her complaint, she had something partially covering her, but she was essentially, I think she alleges she was naked from the waist down and that there were just, the environment in which the scene took place was not in line with standard industry protocol. And so typically as she alleges, you would be given something to wear in between takes. She’s saying she didn’t have anything on and that the OB GYN was a friend of Justin Baldoni and wasn’t really even an actor, and that the set had all these extra people who were watching the scene. And so the way that it is described in the complaint I think is really jarring, and you could see how someone would be incredibly uncomfortable even if they are used to doing scenes that have partial or full nudity in them. So whether or not she had shorts on, I think that’s a big counteract and I think it goes mostly to her credibility if that is true,

But there are so many witnesses to that claim in particular. I mean, her own complaint is alleging that there were tons of people in the room, and so this entire set and this entire scene that you have, there are probably dozens of people who can speak to their own interpretation of what they’ve seen, and it’ll be pretty easy, I think to parse through what happened and what didn’t. And whether she’s wearing shorts or not is something that I think will come out clearly in discovery, but that also makes it very unique to an employment case because you don’t usually have tens of dozens of people who are witnessing the conduct that you’re alleging.

Jeffrey Becker:

Yeah, I don’t know that it’s very damning to her case at this stage, right? We’re at the pleading stage, albeit a very intensely evidentiary filled pleading stage when you look at these complaints, which I think when you combine the two together, they’re longer than the novel itself. But to that point that Kyle’s making, we are the pleading stage and there’s so much information in the complaints that we still have to flush out through discovery, through evidence being presented. The birth scene in particular allegations were that she was wearing what was typically a nude color covering for her genitals, which is pretty standard when you’re talking about nude scenes in films. So it’s not surprising she was wearing that. I would be interested to hear someone saying she was wearing black shorts. That’s much more difficult to edit later on. But regardless, there was a lot of other information stated about that particular scene, the number of people that were there when it wasn’t a close set, they didn’t close off the ability for people to watch it on their phones or other monitors throughout the studio.

The actual individual, as you said, who was brought in to be the actor for the scene was a friend of the producers and not a local actor, which is typically what would be done there. And the entire scene went beyond what was in the original script, which is a really important thing to think about also because the contractual relationships between an actor and the producers, particularly around nudity and nudity writers, you look at what the script is that you’re given initially when you’re deciding if you want to take this role. And a lot of what’s alleged here is that the producers went beyond what the original script said to add new or more aggressive nude scenes than the actor originally agreed to when she signed on to the film.

Tracy Brammeier:

Jeff, thanks for jumping in there. Coming to you and your perspective as an entertainment lawyer on Blake’s filing, I was wondering from an entertainment law perspective, you have a client who’s a celebrity or very well known in their industry and they have something like this happen to them, and they decide to not only take legal action, but to go ahead and publicize their legal action. What are the considerations involved in making that decision and then in going to the press and making sure everybody knows that you made that decision, what’s this really about?

Jeffrey Becker:

That’s a fantastic question, Tracy. This is an interesting case in that it strikes a bit of the Me Too movement, but what I find unique about it is that when you look at a lot of these cases filed during the Me Too movement, it was typically an actress who maybe was not at the time that the incidents occurred, a movie star at the height of their career. These were actors who were on the way up, so to speak, and maybe when they got larger, felt more comfortable discussing these issues, but the harassment that occurred occurred at a stage when they really didn’t have a lot of power. The interesting thing about this particular case is that Blake Lively is probably at the height of her career at this stage. Maybe it’ll go larger, we don’t know, but she certainly is a celebrity, married to a very large celebrity as well, and certainly has a lot more power than many female actors who were put in this position.

I think that the complaint itself, when you see a pleading like this coming from someone who is of notoriety, a lot of times these pleadings are filed not necessarily for the purpose seeking grievances of a monetary form. I don’t know that Blake Lively or Rey Reynolds need to win a great deal of money in this complaint in order to sustain their livelihood or to, what’s the word? I would look, mitigate damages that they suffered as a result of this situation. This film was actually quite successful. I think the considerations that go into this mostly become, do they feel a need to publicly identify an issue that they believe is harming them, whether again it’s financial or not. But reputationally, we’ve seen this in prior cases where celebrities may file defamation lawsuits and they don’t do it, particularly, they need a lot of money out of the case, but because they want the public to know that they did or did not do what is being alleged of them either in another complaint or in the public eye, right?

So it’s interesting when you look at Blake Lively’s complaint, it’s over 170 pages, 160 pages, whatever, it’s the amended complaint is 141 pages. You get about 115 pages of factual evidence into this thing before you even see the first cause of action. And a lot of that I could see as she’s written, it is designed for the media to pick it up and talk about her side of the story and let people know where she’s coming from. I think that to me, really in the first conversation I would have with somebody who would be a public figure in discussing the filing of a complaint, especially one that can’t be filed privately through an arbitration perhaps, is this something that you want the public to pick up on? Because they will, too often we file pleadings or are sued in pleadings, and the first email I get is from Law 360 or TMZ, and you need to consider whether you want this to happen or not. And in this case, I believe they wanted it to happen. Now, I’ll defer to Jim in a moment about what might’ve happened next, which is the complaint being filed as one thing, but whether or not they fed the pleadings to the media and whether or not they then spoke beyond what the four corners of the pleadings say to the media may have a very different impact on things going forward.

Tracy Brammeier:

And I think that’s a great place for Jim to chime in. What can you tell us about the considerations involved from the perspective of, I guess both the person with the story, but also the media receiving the story and making decisions about what they’re going to publish, how they’re going to investigate, how much coordination there’s going to be with regard to this sort of thing?

James Hemphill:

Sure, glad to do that. Before I start, I should say that although I have represented the New York Times in the past, I have no connection to this matter whatsoever through the times or through anything else. So I just want to be clear on that. I mean, Jeff makes excellent points here. Pretty soon after these things get filed, we’re talking about privileges, about what someone can and cannot be sued for, defamation for things that are said in a pleading, things that are said in court are typically absolutely privileged. They cannot be the subject of a lawsuit. So Blake Lively can say what she wants to in a filing with the California Civil Rights, her civil rights filing, and in her lawsuit filing, justice Baldoni can say what he wants to in a court pleading they can’t be sued for that. Now, the question then becomes, once they have done that, what’s the extent to which the privilege continues to protect them for out of court statements that describe the allegations they make in the lawsuit?

And at that point, it’s less predictable because states vary on the level of protection they give to litigants or their counsel to repeat allegations made in litigation outside of that litigation, whether to the press or whatever. California, for example, has a statutory privilege that allows the privilege for filing lawsuits to extend the communications to the media. Not every state has that privilege. California’s protection might be stronger than some states. Most states do confine the privilege to staying within the four corners of the allegations made in the lawsuit. And so where this out of court statement privilege applies, typically it won’t apply if they go beyond what’s alleged in the lawsuit. That kind of raises the question about do some parties file this type of lawsuit for PR purposes and is that a legitimate reason to allow the privilege to extend to their out of court statements?

And the same thing applies to the media, right? The media typically has a privilege to fairly truly accurately report on allegations that are made in litigation. And so that’s one of the things that Justin Baldon is going to be fighting against in his lawsuit against the Times is it seemed pretty locked down to sources. What he’s saying is, well, there’s other information that you should have included in the story that you didn’t making kind of a liable by impression argument or liable by implication argument, which those are tougher to sustain if what’s published is factually accurate.

Tracy Brammeier:

And before an outlet like the New York Times publishes a story like this, I mean, they have to know that it’s going to make a splash, right? That’s the intent. When Blake Lively comes to them with a story like this, does the media expect to be targeted with a lawsuit claiming hundreds of millions of dollars in damage as a result? And how do they make the decision to say, well, we’re going to go ahead and go ahead with the story anyways.

James Hemphill:

Well, it’s probably, does the media expect this? They probably expect it more in the past few years than they did before, right? Because libel litigation has become kind of a tool for some celebrities to use to get the story out there. And again, not necessarily for the purpose of seeking a monetary award, but rather to have their side of the story out. And libel has always been sort of like that. I mean, there’ve been studies on libel plaintiffs, and most of the time, well, maybe not most of the time, but much of the time the plaintiffs say, recovering money is not really my goal here. It’s to set the record straight. There’ve been lots of interviews with libel, plaintiffs even who’ve lost, who felt like they won because they got their story out there. And so that happens, but what a newspaper or other media outlet does before they run with a story like this, certainly it would not be unusual for that media outlet to have legal review of the story beforehand. Again, no inside knowledge on this, but that would not be unusual. Ultimately, as a lawyer who advises the media, I see my job as assessing risk, and I think ultimately the decision of what to do is a journalistic decision and not a legal decision, but our job is to assess risk and say, if you say this, you should have X, Y, Z to back it up. You’re saying this, it might be legally safer to say it this way, but the final decision is always up to the journalists. In my view,

Kellie Snyder:

With this case particularly, I’ve noticed that it’s been very much blowing up on TikTok. And do you have thoughts on, so I think maybe 10 years ago, there’s a concern of, okay, information is filed in a lawsuit and then you have journalists that are supposed to be held by certain standards covering these cases, and there’s kind of more of a formulaic experience with that. But then when TikTok enters the game and now you have just random people who are devoting their entire lives in their basement to reading these lawsuits and making allegations and piecing things together, even I heard that some of the lawyers were watching the tiktoks and it helped them find some more information. And so it kind of gives credibility to these videos, and that’s really more where people are getting their news from. So what thoughts do you have on that in terms of the media’s involvement?

James Hemphill:

Sure. I mean, how the law was going to handle the new technology of interactive computer technology, early days of the internet, early days when there were bulletin boards and that sort of thing, the law was kind of developing in a couple of different ways about who can be held liable, can the platform be held liable? There were cases going back and forth, and it resulted ultimately in the passage of what’s called Section two 30, which was part of the Communications Decency Act, most of which was held unconstitutional. But section two 30 wasn’t, and what Section two 30 does is it immunizes the platform, what’s called in the statute the internet service provider, but that could be Facebook, TikTok, Instagram, whatever. They’re not responsible for the content that third parties put on their platform in general. There are exceptions, but that’s the general. And so it’s, as we’ve seen the internet develop and social media develop and the everyone’s a journalist theory that anyone can go on and if they’re controversial enough or colorful enough, have a mass audience and possibly folks that feel like they’re defamed can’t get any kind of at least monetary compensation from these folks because they’re not wealthy publishing companies.

They’re just, again, people in their basement is the stereotype. And so certainly that has had an effect on how folks view things. I know that Congress has several times talked about amending or even repealing section two 30 protections. It hasn’t come to fruition yet, but I think that this is an example of some folks’ frustration with the fact that it is kind of the wild west out there on some of these social media platforms.

Jeffrey Becker:

It’s been a difficult situation from the talent side of things too in dealing with social media because as the world continues to expand in terms of digital footprints, the ability to quickly address a defamatory statement becomes a lot more difficult to do. If you had one outlet like the New York Times putting something out into the world and you want to send a cease to desist to that one outlet and have that addressed or retracted or however you want to do it, it’s a lot more straightforward. We have several clients and we have lawsuits going on right now dealing with online defamation, right? And it’s often difficult to convince certain DSPs, whether social media platforms or others to take down defamatory content. They really don’t want to become the arbiters of defamation. It’s not as simple as using A-D-M-C-A take down in the copyright context to remove infringing content.

So now you have a problem getting the actual providers to retract or remove something. And then as Jim said, the people that are posting these things are anyone from well-established journalists to people in their basement who have either no money or also no real respect for truth. And it becomes almost a whack-a-mole situation where if you get one person to take it down, it comes up somewhere else or someone posts something and 15 people share it, and then 15 people share each of theirs. It’s like a virus and it grows very quickly. And then you run into this newer issue as we are all lawyers here of dealing with jurisdictional concerns. We have a lawsuit going on right now. We have people that are posting things all over the country and we’re trying to find a way to be able to consolidate and sue under one jurisdiction. It’s very difficult to do that. So now you’re running into an issue where an individual might be the plaintiff in one state, and there might be defendants in 15 different states and courts that won’t necessarily want to have them all adjoin under one jurisdiction or venue.

Tracy Brammeier:

Kyla, coming back to you for a minute. Now that we’ve talked about the publicized aspects of this case. When you have a client who’s looking at a sexual harassment and retaliation case, this is this sort of public situation, something that you’re expecting might be a consequence. How do you deal with that side of things when you’re considering these claims?

Kyla Miller:

As you could probably expect, a plaintiff usually wants it public and a defendant usually wants it to be as quiet and get rid of it as quickly as possible. And so you have two conflicting opinions on how the litigation is going to proceed. And so I think when you have allegations and plaintiff and defendants who are as famous as this, it’s obviously an expected consequence, but it is just very abnormal from what you would typically see. Sexual harassment claims very frequently go into private mediation almost immediately after someone sends a demand letter even. I mean, it’s not rare, but you see, I think more than other employment claims, sexual harassment claims proceed first with a demand letter and then with an option to go to mediation versus filing a complaint in the first instance. Because as everyone’s already mentioned, once you file the complaint, the allegations are out there.

And I think for plaintiffs, if a plaintiff is motivated financially and not as, I think Blake Lively’s motivated here to get her point of view out there, I think a private mediation is more enticing to a plaintiff motivated financially because they have sort of that thing they can dangle over the defendant that no one knows yet. And so if I can extract more with the threat that if this doesn’t settle now for the expectation, the monetary expectation that I have, then I will make it public. So here, it’s already been made public, so that is a huge indicator that I don’t think they really, it’s not about money and it really shouldn’t be, but it is. This type of public back and forth is very, very different. And even from a documentary discovery standpoint, I know we touched on it with the TikTok materials, but Justin has his own website now where he’s posting all kinds of text messages and we have the raw footage, and I would imagine we have that one scene that has been released publicly, that 10 minute clip of the two of them kind of close to each other talking seems like they’re talking off script.

And I know both sides think that that supports their argument, which is another discussion. But usually in a sexual harassment case, you are fighting tooth and nail to get the text messages and you wait with anticipation because on both sides of it, whether you’re representing a plaintiff or defendant, you as an attorney, you want to know you want the context because so much of sexual harassment allegations are really nuanced. And so you want to be able to see what was said privately, and usually that’s through the text messages. And so the fact that a lot of that is out there and that it’s just on a website for anyone in the world to go look at is really, it’s a very fascinating element of the case.

Jeffrey Becker:

I think it’s interesting also, it’s in their pleadings in such great detail. As we were saying earlier, they’re really litigating this case very early on in the public eye through these pleadings. Again, I was trying to figure out earlier how much discovery had been done in the case, but I think in the Blake Lively complaint in the amended complaint, they do reference the fact they were able to subpoena certain third parties already and receive a lot of this information. And when you look at how the amended Lively complaint reads, they’re certainly trying to make very clear not only the basis of their case, but how they’re going to prove it with evidence later, which I think is fascinating because you don’t have to allege a lot of this information in federal pleadings. It’s notice pleading. It could be very, very simple what you file, but again, they have hundreds of pages before they get to a single cause of action, all leading towards both the public being able to see what’s happening right now and probably forecasting to their opposing party, this is what we’re going to prove in court.

And the last thing I want to make sure I’ve said is Jim made a very interesting point about the scope of litigation privilege and what actually applies after the complaint is filed, right? What can the lawyer say on the courthouse steps once he’s not in the Courtroom, not looking at the pleadings? The lively team, it seems, has done a very careful job of not talking too much to the press. They make a point of saying, we’re not talking to the press about these things. Justin Baldoni filed his complaint and then didn’t just leave it to the media to pick up and do what they will with. He put it on his own website, which I think, again, it goes, in my opinion, it goes beyond simply filing the complaint and focusing on letting the statements live for the purpose of the litigation and now are trying to broadcast it for the entire public to see, which will be interesting if that ends up becoming an issue later, if those statements are at all false in this pleadings, how that’s looked at from a litigation perspective or defamation perspective. Okay.

Tracy Brammeier:

And I think it’s a good time to take a break.

And we’re back. I think Jeff started to introduce us before we took a break to looking at some of what’s happened from Justin B’S side of things. He did put up that website, I think it’s called the litigation or the lawsuit info.com, where he’s posting documents related to the lawsuit. And you mentioned Blake Lively, his lawyers are making a point of not speaking too much to the press. It seems like Justin Baldoni, but also his lawyers are taking the opposite tact. Do any of you have thoughts about that? I know as lawyers, we always have to be careful about how much we’re saying to the media at a certain point, it’s not appropriate and it’s not ethical under our rules.

James Hemphill:

Well, I mean there is sometimes a tension between lawyers’ duties, lawyers’ ethics, and what clients would want them to do as far as publicizing aspects of their litigation. I’m a First Amendment lawyer, I’m a free speech lawyer. So coming from that perspective, I don’t think that it’s a problem from a legal or ethical standpoint for someone to have a website where they post publicly available litigation pleadings. You can say it’s a good or bad idea on other levels, whether from a PR perspective or whether you have a judge who would not appreciate that. I mean, I’ve been in front of a lot of judges and I know some that would not think that is a good idea, and you might be behind the eight ball if you take moves like that. So there might be other reasons to not do that. But then again, you need to be careful if you’re going to do that, you need to be careful in all aspects of what you do, including even as simple as characterizing what a pleading is.

If you post it on a website, but you give it some kind of evaluative title saying, here’s where they lie about X, Y, Z, then you’re going to have a problem. I’m not saying I haven’t looked at Justin’s website, so I’m talking in the abstract here, but yeah, there could be good reasons not to do that. But from a First Amendment perspective, I think that that’s well within a litigant’s right to do it, I think it would be a bad idea for lawyers to do it on their websites. But from a litigant standpoint, I can see in any kind of high profile case or in a case where it’s important for the litigant to tell the public what’s going on in a lawsuit, I have less heartburn than some lawyers would have about that aspect of it.

Tracy Brammeier:

As far as the claims go against the New York Times and Blake Lively, Blake’s attorneys have said that it’s Justin’s lawyers who are trying to influence public perception of the cases and tainting and attempting to prejudice a jury pool beyond repair by sharing false and defamatory statements and character attacks against Ms. Lively to the media. Where do you think the line gets drawn then in a case like this?

James Hemphill:

Well, I think both sides appear to me to be doing exactly that. You can say that, well, we’re not going to try this case in the press, but then you file 170 page complaint that goes way beyond the rules, requirements for specificity of pleadings that pleads a whole bunch of facts in a whole bunch of evidence, and

Tracy Brammeier:

You coordinate the release with the New York Times.

James Hemphill:

And look, I don’t know anything about that. I don’t know anything about this, about whether it was coordinated. I don’t know how the story came to the times. Again, I’m not involved in that at all. So I’ve read the allegations, don’t know how many of them are going to bear out or not, but there is some law in some jurisdictions that would remove the privilege, at least for out of court statements where it would otherwise apply if the court believes that the reason for filing the proceeding in the first place was simply to confer upon the litigant a privilege to repeat the allegations made in that proceeding. And so that’s sometimes called the self-reporting exception to this privilege that if the idea is you shouldn’t be able to confer the privilege upon yourself by filing a lawsuit or some kind of public complaint, if the purpose for filing that complaint was just to give you the right or to try to give yourself the right to say things that would otherwise be defamatory. Not saying that’s the case here, but that could possibly be a complication in claims of privilege here is if either of these actions were filed or any of these actions, I guess there’s more than two now, right? Any of these actions were filed for the purpose of trying to create a privilege for out of court statements.

Kellie Snyder:

Kyla, I wanted to circle back to you. We talked about that video that was posted between Justin and Blake. I’m curious to know your thoughts on, so I’m trying to think of the right way to say this. Looking back on it, Justin’s involvement as the actor, but also the director seems like that makes things very messy for him. I know that there’s some claims, for example, with the coordinator and the intimacy coordinator and the costuming. There’s other aspects of these lawsuits that don’t directly, I think involve Justin’s behavior. But do you think Justin’s looking back on this and regretting being both the director and the male lead here because he’s both in a position of these intimate moments, but also having to direct them and control how far they go?

Kyla Miller:

Precisely. So I think there’s the question that’s out there. Is Justin going to be considered Blake’s coworker? Are they two actors together, two people who were both taking on an executive role with the film? And also I think I would assume that Justin is going to make the argument that when he’s in his role as an actor, I think he’s going to try and separate the two when he is acting as the character he is trying to work within his creative capacity to make the scene work. That’s what I would expect him to argue, because I don’t think that gets him very far because if the conduct is unwelcome by Blake, then it’s unwelcome and that’s the standard. What does she feel? Not how did he feel about it, but I do think he’s going to try and draw a line between the two roles and just show that he’s going to try and make it seem like he was her equal regardless.

But when he was in his role as an actor, he was being more creative, and he’s going to try and say that that’s how it goes on a set. And that’s what you do, that if you watch the, I didn’t watch the full 10 minutes, I saw a minute and I was uncomfortable enough, so I stopped. But you can tell, I know her response was like, or maybe it was her lawyer. It was like any woman who’s been uncomfortable would recognize immediately what’s going on and just the way she’s trying to make small talk and it’s very uncomfortable. And from his perspective, I don’t think he feels that it shows the same thing that she does.

Kellie Snyder:

Ray, I think from his perspective that the part of the video that stood out for me from Justin’s perspective is at the end when he says cut and his demeanor basically changes from actor to director, I think that’s maybe what he’s latching on.

Kyla Miller:

Yeah, that’s interesting. And when he’s directing, you would assume he is not in the scene, and so whether he’s directing and having her, if she’s acting, she’s not acting in her executive capacity, so she’s acting and he’s directing. If there are allegations that occur in that scenario, does he have authority over her and are the things that he does in those types of moments going to be viewed through a different lens than when the two of them are being actors together and are in scenes together and someone else is the directing piece of it? It’s a very complex thing to think about because you don’t often see this.

Kellie Snyder:

Just one more question about that. Do you think in the future men would think twice about putting themselves in that position, being the actor in the director, in a situation like this? Is this setting kind of a precedent of there probably needs to be more of a boundary to protect people from feeling uncomfortable?

Kyla Miller:

Well, yeah, because I mean, who’s the employer and who’s in charge of making the environment safe for everybody? Who is the

Person that, I mean, a huge issue with this case too is who are they supposed to be reporting to if they’re uncomfortable, who is the employer? And if you have concerns about Justin and the CEO of the company, and those are the only two people that you know can report to, that’s not effective. And no court is going to look at that and say, oh, that was acceptable. I mean, if that’s the environment, then you need to go a level up. You need to always provide your employees with multiple avenues to report concerns because of this exact situation. You don’t want to have it be one person and then that one person is the bad actor. So yeah, I think there really needed to be, I think, clear roles for everybody. And even if he was taking on this dual role, I don’t know if it’s necessarily, he’s not the first to do it.

I don’t know in and of itself if that’s improper, but I know she tried to report to Sony at one point, and so she tried to go, I think a step above or a step to the side to get to someone who might be able to take a complaint. But she’s Blake Lively, so she felt comfortable, I think, pursuing different avenues that maybe weren’t clearly outlined. But she also has now at her amended complaint, all these allegations from other actors or people who were on set who certainly didn’t have or didn’t feel like they had the agency that she had or the power to report, or maybe they just weren’t as comfortable. And so that’ll be an interesting thing to watch as well as what happens with these other allegations and how do those play out? Because if there’s more to that, if there’s more teeth to those other employees on set, I think that adds a lot of credibility to her case. Anytime you have other people joining in and making similar allegations about the same person, that’s a very powerful way to move the needle in your direction. From an evidentiary standpoint,

Jeffrey Becker:

I think the Lively team thinks it’s indispensable to their case. When you look at the amended complaint, how many times in the first few pages do they make reference to the fact there are other people who are raising complaints and they bold it and they italicize it, and they point out that it occurred well before any issues on creative control came into this. Right. If we step back a little bit, the two narratives here are that Blake Lively feels that she was sexually harassed as part of this production, and that Justin Baldoni feels that the lively Reynolds team were essentially trying to remove creative control from him in the context of the film as a whole. That’s it, right? Lively says, I didn’t feel comfortable here. Baldoni says You’re using that as a pretense to make me look bad and to remove from me control over film that I optioned.

I think that the Lively team recognized because they filed their amended pleading after Baldoni filed his pleading where they added all these allegations, all these text messages of their own and all these statements about other victims to make clear this is not just about me, this is about other people. And I think it’s extremely telling how many other actors on this production seem to have gravitated to her side, whether or not that’s because she’s a celebrity and they feel they owe it to her, which is possible, or because they’re aware of other issues that occurred in the context of this production too, that this became an issue. We’ll wait to see. I mean, that’s going to come out in the course of the litigation and discovery, but leave it to say here both of these complaints look more like motions for summary judgment than anything I’ve ever seen at the pleading stage as far as from an entertainment lawyer perspective, as far as whether this is going to cause an actor to decide whether he wants to both act and direct, I don’t know that that’s going to change a whole lot.

I honestly think that what it would probably do is make someone more cognizant of whether or not they’re taking certain protocols before production even happens, when it comes to nudity writers, when it comes to making the actors comfortable on set when it comes to intimacy coordinators and making sure that they’re having witnesses there to show that they’re approaching things the right way. The reality is if you think about the Me Too movement, most of the time, what we’re looking at from a film perspective, it’s not the actor doing something to another actor. It is the employer. It is the Harvey Weinstein, right? It is the company who is promising more opportunities for an actress to succeed if they do certain things for them in the context of the production that they’re being employed for here. And that’s really the employment context. I’ll let Kylo weigh in on this, but if Baldoni wasn’t in the role of director, it would just be two coworkers working, right?

It’s a little bit different. Certainly it makes it difficult to say, who do we report this to? But they figured it out. Ultimately, they did do it right. She went to Sony, Sony’s like, we’re not the employer. We’ll help mediate. And then they had an all hands on deck meeting, and then they put together this whole contract with 20 different points of what we won’t do anymore. So there were attempts and steps to do all of these things, which I think will be telling also in the future as these narratives play out, but I don’t think necessarily this extremely unique situation will dictate what’s going to happen in the future when someone’s acting and directing.

Kyla Miller:

I think they’re trying to look at whether or not she consented to the conduct. I think that’s a big key element to his defense is, and if their coworkers as a much easier defense to make, it’s more believable that she had the agency to do what she wanted, and if she was in the scene, she agreed to do the movie, she agreed to whatever she agreed and that he wasn’t overstepping, and it wasn’t unwelcome because it was not something that she ever said in the moment she was uncomfortable with.

Kellie Snyder:

Yeah, I think a piece that really stuck out to me, I hope I’m remembering this correctly, but Justin had sent her a text about meeting with the intimacy coordinator, and she kind of wasn’t interested in doing it in the moment or kind of pushed it aside. And I think maybe that speaks to your point of defining roles, because a coworker could be like, okay, yeah, we’ll just meet with them another time. But Jeff, to your point, if he’s in the point of a director, he probably should have been more stern and say, no, the intimacy coordinator is here now we’re going to meet with him. This is the protocol, so get out of

Kyla Miller:

Your trailer. That’s probably why she feels that the other employee’s complaints are so critical to her case. I don’t necessarily disagree it’s not going to rise and fall on that, but it really does do a lot for her if there are others, because looking at someone like her, she’s just in a very unique position to have a lot of power, and it’s almost, it’s harder to sympathize with her or maybe believe that she didn’t consent because it’s Blake Lively and she is so powerful and she’s a strong personality, and you just would have a hard time imagining her not sticking up for herself in the moment. Whereas you have these other employees who are probably working hourly, and it’s very clear in their situations that it’s a supervisor, employee relationship that that method of proof becomes a lot easier.

Jeffrey Becker:

I actually don’t think this lawsuit would’ve gotten filed if the Baldoni team didn’t take the steps that they’re alleged to have taken in a lively complaint. And what I mean by that is, is that Blake did report this. She did attempt to have remedies to the harassment issues during production and really during the COVID, not the COVID lapse, but during the time the Writer’s Guild was on strike, right, that’s when a lot of these conversations happened before they went back to set. And whether she did this specifically for herself or for the female cast member that she was alluding to in her complaint, I don’t know. But she didn’t file this complaint until after a substantial amount of negative press made its way onto social media about her. And I won’t comment on whether or not her personality lended itself to this from prior interviews from years ago, and whether she’s got other media coaching she needs to engage in.

I don’t whether she does or doesn’t, but if you think about it, I’m looking at the causes of action. There are so many causes of action in her complaint, most of which deal with the employment issues, but you get to defamation civil conspiracy, false light, and the negligent intentional infliction emotional distress. Those deal with the campaign that she says that Justin and his PR team engaged in to essentially cancel her. She didn’t file a sexual harassment case when the harassment came and was over and the film wrapped before the film came out. She went through press and marketing the film and never filed a complaint.

Kyla Miller:

I don’t think she had no damage. What would her damages

Jeffrey Becker:

Be? Well, at that point in time though, she have all the sexual harassment claims that she could file,

Kyla Miller:

She could

Jeffrey Becker:

Had all of those claims damages or not already existed. What didn’t exist yet are the claims that were premised on the negative

Tracy Brammeier:

Reputational press

Jeffrey Becker:

Campaign, what they call social manipulation and reputational harm that they engaged in during and after the marketing of the film. And so I think when that happened, she’s like, you know what? I’m filing this lawsuit. I’m raising all the sexual harassment claims that already existed at this point in time, and now I’m also putting in beautiful graphs about how my reputation has gone down in social media as a direct result of this. Oh, and here’s all the text messages between you and your publicists directing this to happen. This complaint may never have been filed, but for that occurring,

James Hemphill:

And certainly there wouldn’t be a lawsuit against the New York Times had that not occurred or allegedly occurred. That was the time story that kicked this whole thing off, was about that alleged negative publicity campaign.

Tracy Brammeier:

What do we think from a strategic perspective about Justin Bald and his team’s choice to fight this aggressively, to try to recast himself as the victim in this scenario and not Blake, instead of what his other option could have been, which was to say, I’m so sorry, Blake, that you ever felt uncomfortable and I never wanted that to happen, and we tried so hard to mitigate it and bring it into some sort of private mediation or bring it into a private resolution. What do you think about the choice to do that?

Kyla Miller:

I dunno, I think I’ve read somewhere that he was thinking about making, explaining away the conduct, because I dunno if any of you read about that, that would be an interesting angle to take in response. I think that was in the context of all of the press, maybe in some of the text messages or wherever it was. I think he could have alternatively leaned into that and either played been a little bit of a victim, or he could also have leaned into that and then acknowledged that his conduct was inappropriate and that he maybe struggles with social interactions and try and deal with it that way. I think when Blake comes out with a complaint that has the level of detail that she does and includes the amount of evidence it does, I’m not particularly surprised that he responded in kind, I think, with the same amount of detail. Otherwise, it does sort of seem a bit, it’s conceding that in one way or another that all these things occurred.

Tracy Brammeier:

Yeah, it could be seen that way. I guess I’m asking the question because number one, it’s sort of like he’s saying take blame the victim route. He’s making himself the victim, and that’s always, I think, a very dangerous path to go down. But number two, I think because of the way that he is hit back in her and because of the way that this has been sort of litigated in the press, I mean, you could argue that it’s ballooned much bigger and that his reputational harm has been heightened as a result, versus if her complaint came out, the New York Times published his story, and he said, and he took a more conciliatory approach, I guess,

James Hemphill:

And I think that it became more difficult for him to take a conciliatory approach when the whole PR campaign allegations from Blake Lively’s camp came out. I mean, it would’ve been one thing if it was just a situation where he could have credibly said, I’m sorry that she felt like this was improper. This was a situation where different people can see things, different ways, can take the same facts and interpret them different ways, but some of the allegations of we can bury anybody from his PR team, I think made it a lot harder for him to take that kind of approach and probably edged him into a position where the best defense was a good offense.

Jeffrey Becker:

This is such a messy situation, but it’s not that unique to the entertainment industry, unfortunately. Right. First of all, Justin Bald is not alone in this. He’s got partners of this production company. He’s got one billionaire partner that apparently lives in Highland Park, and then he’s got Mr. Heath as well. And I think a lot of what was happening here was also groupthink where he and his publicists and his partners were all getting together and trying to decide how to approach this not only for the potential, what they would argue is or protection of Mr. Bald, but also Wayfair, right? The production company, which this is their biggest film they had done at this point. And I think to your point, Tracy, there comes a point where you have to ask yourself, should I be filing this complaint? How is the filing of this lawsuit going to impact things?

But to Jim’s point, this did not balloon at the filing of a complaint. He was not the first to file a complaint. She was right. She filed first. And to Jim’s point, again, that’s because he engaged in the media blitz designed to create that strong offense as a good defense. It was all around their fear that his actions on set or alleged actions on set were going to come to light. The Neurodivergence point that you’re talking about, that was in her complaint when they were talking specifically about ways that they might cover up or explain away

His onset misconduct. So I actually very much agree with the premise of your question, Tracy, which was there a way to actually bring this to an amicable resolution before this happened? And I’d like to think that at the point in time where he’s being told, we want you and your family to go into the basement of this building while all the actors are coming out to the red carpet, may have been a good time to say, gee, you know what? I think maybe I need to sit down with this woman, sit down with her husband and practice everything he talks about on his own podcast, right? Because I mean, let’s not lose sight of the fact that this is a terrible set of facts to have to deal with on either side of litigation. Just really a sad set of facts. But it also all happens in the context of an individual who asserts himself to be a male feminist.

I mean, that site can’t be lost throughout her complaint, where she makes points of saying, every time, despite him saying all of these things, he did all of these things, right? Actions speak louder than words, so to speak. And it would’ve been, in my opinion, something we practice at our firm all the time, making sure our clients have looked at every single path towards amicable resolution before the litigation starts, knowing that you could have avoided it. I don’t know that they did that. They got scared, and if what the allegations are saying are true, launched a very intense social manipulation scheme in an attempt to offset the damages caused by the allegations against them,

Kellie Snyder:

It’s definitely going to be an interesting

Tracy Brammeier:

Trial.

Jeffrey Becker:

Oh, yeah.

Tracy Brammeier:

Yeah. And Jeff, what I’m hearing you say is that maybe we have a case of a client who didn’t listen to his lawyer.

Jeffrey Becker:

Yeah. That may be very much the case. Can case. Could you figure that out? Wow.

Tracy Brammeier:

Never happens. None of us know what that’s like. Right, right.

Yeah. Okay. I think on that note, I would just want to thank everybody for being here today. I also want to thank our executive producer, Jen Byrne, Adam Lockwood on Sound, and everyone at the Legal Talk Network Family. Remember, you can follow us and send us comments, questions, episode ideas, or just troll us on Facebook, Instagram, and Twitter at cba, at theBar, all one word. You can also email us at [email protected]. Please also rate and leave us your feedback on Apple Podcast, Google Play, Stitcher, Spotify, audible, or wherever you download your podcast helps us get the word out. Until next time, for everyone here at the CBA, thank you for joining us, and we’ll see you soon at theBar.

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