Lively/Baldoni Lawsuit Part 2

[Anonymous]

Lively may also argue that anything Wayfarer did to harm her rep in August through September or October was directly against their financial interests in IEWU, since she was the star and online backlash against her could have harmed the movie, similar to how online hate towards Rachel Zegler helped torpedo Snow White.

Trying to tank your own film in spite is not, on its own, a liability, but it might help persuade a jury that Wayfarer was retaliating because it raises the question of motivation. The comments from Sarowitz in August about wanting to destroy Blake and Ryan would support this argument.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Anyway, I don't think the argument was TAG using bots to comment. They denied bots that but told Baldoni they were "doing something very specific in terms of what they do." My guess is they had actual fake accounts on reddit (shills, not bots) and some SEO tech to boost certain articles online (this is described in Jones' expert report). There are real time texts between Case and others, reacting during the crisis, sending things to Jed to be boosted and bragging he did a good job. There are texts talking about "we didn't write that article, but if they were talking about comments then maybe lol." That's Wayfarer/TAG people saying that, not Lively. I don't know if Lively will find enough evidence to prove what those things were and the scope of them. I hope so because I want to know more about how this stuff works.

There hasn’t been a specific example by Lively of an article containing falsehoods about her that was boosted, or even a example of such an article.

Why would you pay someone to spread stories, even if true, that make your employee look bad? What do you call that and why would you pay someone to help you do it?

She wasn’t their employee, and what you describe is not a “smear.”

DP. A claim for retaliation in this context can be about a former employee. This is why companies often have boiler plate language to provide about a former employee if contacted for a reference, for example. If an employee made a good faith complaint about working conditions while working for you, and then leaves, bad mouthing them to future employers could give rise to a retaliation claim.

So the question is not whether what Wayfarer did is a "smear" -- that's just the term used in the NYT article and has no legal relevance.

Rather, the question is whether (assuming for the moment that Lively's complaints during the production will be found to be protected activity) Wayfarer sought to retaliate against her for those complaints, by destroying her reputation, harming her career, or causing emotional pain and suffering.

Retaliation in sexual harassment lawsuits is traditionally about demotions, firings or reductions in salary or responsibilities. None of that happened here. Nor is it alleged that Blake had a potential new project contact WF for a reference and received a negative one.


Instead, Blake alleges a “smear” which by definition would involve false information being spread about her.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Anyway, I don't think the argument was TAG using bots to comment. They denied bots that but told Baldoni they were "doing something very specific in terms of what they do." My guess is they had actual fake accounts on reddit (shills, not bots) and some SEO tech to boost certain articles online (this is described in Jones' expert report). There are real time texts between Case and others, reacting during the crisis, sending things to Jed to be boosted and bragging he did a good job. There are texts talking about "we didn't write that article, but if they were talking about comments then maybe lol." That's Wayfarer/TAG people saying that, not Lively. I don't know if Lively will find enough evidence to prove what those things were and the scope of them. I hope so because I want to know more about how this stuff works.

There hasn’t been a specific example by Lively of an article containing falsehoods about her that was boosted, or even a example of such an article.

Agreed, but she only has that one claim for defamation regarding Freedman. She's not claiming the other stories were false, but retaliatory, which is some clever lawyering and perhaps a stretch but has not been challenged. It would be like if a woman complained about SH and her bosses spread (true) gossip about her personal life and mistakes she'd made at work, to destroy her credibility. It could work, but the jury may be looking for falsehoods. Maybe Lively will ask for a ruling that WF can't make that argument.

Hasn’t been challenged? WF makes this argument in their summary judgment briefing—she hasn’t alleged a single falsehood made by any defendant in the course of the “smear” campaign.

I was thinking in terms of their not filing MTD, so yeah, I should have said not challenged until now, in a way that has been ruled on. Liman would tell us in his decision whether falsehoods are relevant to the non-defamation retaliation claims, but WF is not there yet.

[Anonymous]

Also of note from Friday’s filings, Jen Abel filed an 47 expert report on crisis management communication practices and timing. Expert is James Haggerty. Haggerty describes ethical and customary crisis communication practices and finds TAG’s work consistent with that. He also explains there is a lag time of several months between retention of assistance and any effect on public opinion, which ruins Blake’s time line.

[Anonymous]

I hate to disappoint the Blake fans but the literal definition of a smear mmm campaign is the use of false allegations to discredit a public figure. Lively and her lawyers chose the terminology themselves.

[Anonymous]

Anonymous wrote:WF notes in their summary judgment response that they have sealed very little while in Lively’s response nearly everything is sealed. The response further notes that her own evidence contradicts her claims and the pervasive sealing suggests awareness that it would not survive public scrutiny.

Bumping in light of earlier comments by a Blake supporter that the info was sealed because it was so good and deserved a big unveiling to drive press interest.

[Anonymous]

Anonymous wrote:I hate to disappoint the Blake fans but the literal definition of a smear mmm campaign is the use of false allegations to discredit a public figure. Lively and her lawyers chose the terminology themselves.

That's not how legal claims work. "Smear" is not a legal term if art. If this goes to a jury, the jury will not be instructed on the literal definition of the word smear, and told to find out if there was a smear. They would be instructed on the elements of retaliation and ask to decide if Wayfarer's actions meet those elements.

I would not be surprised if parties were actually disallowed from using the term "smear" in court because it has prejudicial risk for both parties and could confuse the jury. Parties use language in filings all the time that don't make it to court -- filings are meant to be persuasive docs. But juries are presumed to be less savvy than judges, and trials are meant to strip away that sort of persuasion so that the jury rules on the facts alone.

[Anonymous]

Anonymous wrote:

Anonymous wrote:I hate to disappoint the Blake fans but the literal definition of a smear mmm campaign is the use of false allegations to discredit a public figure. Lively and her lawyers chose the terminology themselves.

That's not how legal claims work. "Smear" is not a legal term if art. If this goes to a jury, the jury will not be instructed on the literal definition of the word smear, and told to find out if there was a smear. They would be instructed on the elements of retaliation and ask to decide if Wayfarer's actions meet those elements.

I would not be surprised if parties were actually disallowed from using the term "smear" in court because it has prejudicial risk for both parties and could confuse the jury. Parties use language in filings all the time that don't make it to court -- filings are meant to be persuasive docs. But juries are presumed to be less savvy than judges, and trials are meant to strip away that sort of persuasion so that the jury rules on the facts alone.

There was no falsehood told about me, but by letting people see the true me they destroyed my reputation. Good luck with that.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I hate to disappoint the Blake fans but the literal definition of a smear mmm campaign is the use of false allegations to discredit a public figure. Lively and her lawyers chose the terminology themselves.

That's not how legal claims work. "Smear" is not a legal term if art. If this goes to a jury, the jury will not be instructed on the literal definition of the word smear, and told to find out if there was a smear. They would be instructed on the elements of retaliation and ask to decide if Wayfarer's actions meet those elements.

I would not be surprised if parties were actually disallowed from using the term "smear" in court because it has prejudicial risk for both parties and could confuse the jury. Parties use language in filings all the time that don't make it to court -- filings are meant to be persuasive docs. But juries are presumed to be less savvy than judges, and trials are meant to strip away that sort of persuasion so that the jury rules on the facts alone.

There was no falsehood told about me, but by letting people see the true me they destroyed my reputation. Good luck with that.

Whh would you undertake that campaign at all? What was the point of promoting bad press? For fun?

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I hate to disappoint the Blake fans but the literal definition of a smear mmm campaign is the use of false allegations to discredit a public figure. Lively and her lawyers chose the terminology themselves.

That's not how legal claims work. "Smear" is not a legal term if art. If this goes to a jury, the jury will not be instructed on the literal definition of the word smear, and told to find out if there was a smear. They would be instructed on the elements of retaliation and ask to decide if Wayfarer's actions meet those elements.

I would not be surprised if parties were actually disallowed from using the term "smear" in court because it has prejudicial risk for both parties and could confuse the jury. Parties use language in filings all the time that don't make it to court -- filings are meant to be persuasive docs. But juries are presumed to be less savvy than judges, and trials are meant to strip away that sort of persuasion so that the jury rules on the facts alone.

There was no falsehood told about me, but by letting people see the true me they destroyed my reputation. Good luck with that.

I get stuck on that too. Blake's PR has worked hard but it's still been pretty known that shes a terrible, racist person who has admitted to being totally toxic and poison on sets for more than a decade. She's awful in interviews. I feel like even of someone did boost the views or comments or whatever to make already publicly available videos more visible...eh, it's still all content you put out there originally and had total control over.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I hate to disappoint the Blake fans but the literal definition of a smear mmm campaign is the use of false allegations to discredit a public figure. Lively and her lawyers chose the terminology themselves.

That's not how legal claims work. "Smear" is not a legal term if art. If this goes to a jury, the jury will not be instructed on the literal definition of the word smear, and told to find out if there was a smear. They would be instructed on the elements of retaliation and ask to decide if Wayfarer's actions meet those elements.

I would not be surprised if parties were actually disallowed from using the term "smear" in court because it has prejudicial risk for both parties and could confuse the jury. Parties use language in filings all the time that don't make it to court -- filings are meant to be persuasive docs. But juries are presumed to be less savvy than judges, and trials are meant to strip away that sort of persuasion so that the jury rules on the facts alone.

There was no falsehood told about me, but by letting people see the true me they destroyed my reputation. Good luck with that.

I get stuck on that too. Blake's PR has worked hard but it's still been pretty known that shes a terrible, racist person who has admitted to being totally toxic and poison on sets for more than a decade. She's awful in interviews. I feel like even of someone did boost the views or comments or whatever to make already publicly available videos more visible...eh, it's still all content you put out there originally and had total control over.

So they did it but it’s definitely not retaliation. Good luck with that.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I hate to disappoint the Blake fans but the literal definition of a smear mmm campaign is the use of false allegations to discredit a public figure. Lively and her lawyers chose the terminology themselves.

That's not how legal claims work. "Smear" is not a legal term if art. If this goes to a jury, the jury will not be instructed on the literal definition of the word smear, and told to find out if there was a smear. They would be instructed on the elements of retaliation and ask to decide if Wayfarer's actions meet those elements.

I would not be surprised if parties were actually disallowed from using the term "smear" in court because it has prejudicial risk for both parties and could confuse the jury. Parties use language in filings all the time that don't make it to court -- filings are meant to be persuasive docs. But juries are presumed to be less savvy than judges, and trials are meant to strip away that sort of persuasion so that the jury rules on the facts alone.

There was no falsehood told about me, but by letting people see the true me they destroyed my reputation. Good luck with that.

I get stuck on that too. Blake's PR has worked hard but it's still been pretty known that shes a terrible, racist person who has admitted to being totally toxic and poison on sets for more than a decade. She's awful in interviews. I feel like even of someone did boost the views or comments or whatever to make already publicly available videos more visible...eh, it's still all content you put out there originally and had total control over.

So they did it but it’s definitely not retaliation. Good luck with that.

I never said that. I said that she has failed to identify any false stories that were promoted by defendants, or even any articles she claims contain falsehoods. You said she didn’t need to despite her lawyers talking nonstop about a smear campaign and her alleging the existence such a campaign to The NY Times. So, absent falsehoods, the best case for her becomes showing promotion of articles accurately describing her statements and behavior. I don’t think that’s enough assuming she could do so. She hasn’t shown anything yet. It may be they just promoted articles that were positive about Wf and tried to downvote articles that were negative about Justin /WF.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Anyway, I don't think the argument was TAG using bots to comment. They denied bots that but told Baldoni they were "doing something very specific in terms of what they do." My guess is they had actual fake accounts on reddit (shills, not bots) and some SEO tech to boost certain articles online (this is described in Jones' expert report). There are real time texts between Case and others, reacting during the crisis, sending things to Jed to be boosted and bragging he did a good job. There are texts talking about "we didn't write that article, but if they were talking about comments then maybe lol." That's Wayfarer/TAG people saying that, not Lively. I don't know if Lively will find enough evidence to prove what those things were and the scope of them. I hope so because I want to know more about how this stuff works.

There hasn’t been a specific example by Lively of an article containing falsehoods about her that was boosted, or even an example of such an article.

Why is falsehood a requirement for proving retaliation? Asking honestly, because I don’t think that is a legal requirement.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Anyway, I don't think the argument was TAG using bots to comment. They denied bots that but told Baldoni they were "doing something very specific in terms of what they do." My guess is they had actual fake accounts on reddit (shills, not bots) and some SEO tech to boost certain articles online (this is described in Jones' expert report). There are real time texts between Case and others, reacting during the crisis, sending things to Jed to be boosted and bragging he did a good job. There are texts talking about "we didn't write that article, but if they were talking about comments then maybe lol." That's Wayfarer/TAG people saying that, not Lively. I don't know if Lively will find enough evidence to prove what those things were and the scope of them. I hope so because I want to know more about how this stuff works.

There hasn’t been a specific example by Lively of an article containing falsehoods about her that was boosted, or even an example of such an article.

Why is falsehood a requirement for proving retaliation? Asking honestly, because I don’t think that is a legal requirement.

Because she chose to allege the retaliation took the form of a smear campaign. She doesn’t allege “normal” retaliation like demotion, lower salary, lose of responsibilities because they didn’t occur.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Anyway, I don't think the argument was TAG using bots to comment. They denied bots that but told Baldoni they were "doing something very specific in terms of what they do." My guess is they had actual fake accounts on reddit (shills, not bots) and some SEO tech to boost certain articles online (this is described in Jones' expert report). There are real time texts between Case and others, reacting during the crisis, sending things to Jed to be boosted and bragging he did a good job. There are texts talking about "we didn't write that article, but if they were talking about comments then maybe lol." That's Wayfarer/TAG people saying that, not Lively. I don't know if Lively will find enough evidence to prove what those things were and the scope of them. I hope so because I want to know more about how this stuff works.

There hasn’t been a specific example by Lively of an article containing falsehoods about her that was boosted, or even an example of such an article.

Why is falsehood a requirement for proving retaliation? Asking honestly, because I don’t think that is a legal requirement.

Because she chose to allege the retaliation took the form of a smear campaign. She doesn’t allege “normal” retaliation like demotion, lower salary, lose of responsibilities because they didn’t occur.

Where exactly does she use the term smear campaign?