Lively/Baldoni Lawsuit Part 2

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:lol this ended up exactly as I predicted at the beginning - harassment claims dismissed but retaliation going to the fact finder.

Kind of brilliant legal move because there's no need to have any actual harassment, only retaliation (e.g. defense against) harassment claims, whether or not true

This isn’t correct, Blake will have to convince the jury that her complaints of a hostile work environment were reasonable. The judge threw out a bunch of them, she has left the birthing scene, use of the word sexy by Baldoni, Baldoni allegedly telling crew she didn’t watch pornography and Jamie in the trailer. Opinion, page 116

But this can be considered a feature, not a bug. It means they get to put up evidence related to these SH claims without having to prove they were SH. Only that Blake believed they were. There's a decent amount of contemporaneous evidence to that effect, including texts with Jenny Slate. There will also be testimony from Jenny and Alex Sachs about Blake's complaints to them about Baldoni's and Heath's behavior. Also the testimony of the makeup artists about what happened in the trailer, and their depositions were damaging for Heath.

Basically Blake gets to spend a bunch of time at trial outlining all the extremely questionable and inappropriate things that Baldoni and Heath did on set, without having to meet the legal standard of SH. And all they have to prove with it is that Blake believed she'd been SHed, which is a fairly low bar given the amount of documented evidence and the testimony we've seen so far.

The bigger challenge for Blake will be linking the alleged retaliatory behavior to her complaints. Especially given the fact that many of the conversations between Wayfarer and the crisis team are lost forever because they used Signal. There's also a temporal problem, because of the gap between what happened on set, when Blake complained, and when the PR campaign started. Much bigger hurdle. But that was always true. The case is built around the retaliation claims, they've always known that was the core of it.

But getting to provide evidence and testimony of the most signficiant SH allegations without even needing to prove they were SH is a gift. Will also help protect witnesses like Slate and the MUAs on cross examination because now they are just testifying that these events happened or that Blake complained about them or seemed bothered by them. It actually simplifies a lot of things for Blake's case.

Nope. She doesn’t get to bring up anything beyond the four instances I laid out above, the rest of her allegations were ruled out by the judge and cannot be part of her case. And Baldoni’s side will present evidence of the sexually explicit text messages she sent to her male co-stars, her “sexy boots” video, her use of sexy in her texts etc to show that she herself created a sexually charged environment. Also testimony about what she was actually wearing in the birthing scene, Heath and perhaps other testifying about the trailer, and so on to challenge her credibility.

Yes, the evidence I outlined is all related to the instances the judge is permitting. The point is that she will get to put the odd and concerning behavior of Baldoni and Heath on trial, but without having to prove it was SH.

So a jury only has to agree that, for instance, Heath's behavior in the trailer incident was objectionable, and that they can believe that Blake thought it constituted sexual harassment. They do not have to agree that it was sexual harassment. This effectively neuters testimony Heath might offer as to his intent in that moment. All that matters is Blake's subjective perception of it, as backed by the makeup artists testimony about what happened and Blake's reaction to it.

Yes, the defense can offer evidence that Blake used the term sexy frequently enough that she couldn't have viewed Baldoni's use as harassment. But since Blake doesn't have to prove it's harassment, only that she believed it was, her side can offer contextual evidence that describing her own shoes as sexy is subjectively different, to Blake, than Baldoni making the sexy comment to Blake on set. And in doing this, they can bring in Jenny Slate as an eyewitness.

The text to the friend who is likely Liz Plank that their behavior was "so much" and that she was crying regularly in response will likely be allowed, as generally speaking to her state of mind and not referencing a specific incident. Also the texts to Jenny about her fear of returning to set after the hiatus.

And none of this has to meet the strict standard of hostile work environment. It only has to meet the standard of whether Blake reasonably believed she had been sexually harassed. All while introducing evidence and testimony about Baldoni and Heath doing weird, inappropriate things.

That's a positive. I don't know if I would call it a win, obviously it would be better if she could try the SH allegations AND if I thought she could win them. But I don't know if she could win them because the hostile work environment standard is tough. So getting to bring them in without having to prove SH is actually somewhat beneficial even if it means she can't get a determination that Baldoni or Heath sexually harassed her.

[Anonymous]

Anonymous wrote:

Anonymous wrote:I mean, the woman who texts her coworker, “ f you knew me (in person) longer you’d have a sense of how flirty and yummy the ball busting will play. It’s my love language. Spicy and playfully bold, never with teeth” is going to have an uphill battle convincing a jury that the use of the word “sexy” or “ she doesn’t watch porn” creates a hostile work environment.

Luckily, she does not have to prove that. Just that she subjectively believed it and reported it, which the defendants admit she did in several text messages.

Incorrect, the opinion makes quite clear that the jury will be evaluating “the reasonableness” of her beliefs of a hostile work environment.

[Anonymous]

Anonymous wrote:

Anonymous wrote:I mean, the woman who texts her coworker, “ f you knew me (in person) longer you’d have a sense of how flirty and yummy the ball busting will play. It’s my love language. Spicy and playfully bold, never with teeth” is going to have an uphill battle convincing a jury that the use of the word “sexy” or “ she doesn’t watch porn” creates a hostile work environment.

Luckily, she does not have to prove that. Just that she subjectively believed it and reported it, which the defendants admit she did in several text messages.

Exactly.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I mean, the woman who texts her coworker, “ f you knew me (in person) longer you’d have a sense of how flirty and yummy the ball busting will play. It’s my love language. Spicy and playfully bold, never with teeth” is going to have an uphill battle convincing a jury that the use of the word “sexy” or “ she doesn’t watch porn” creates a hostile work environment.

Luckily, she does not have to prove that. Just that she subjectively believed it and reported it, which the defendants admit she did in several text messages.

Incorrect, the opinion makes quite clear that the jury will be evaluating “the reasonableness” of her beliefs of a hostile work environment.

It should help that Wayfarer said her list was not only reasonable, but necessary for protection of everyone on set.

[Anonymous]

Anonymous wrote:

Anonymous wrote:I mean, the woman who texts her coworker, “ f you knew me (in person) longer you’d have a sense of how flirty and yummy the ball busting will play. It’s my love language. Spicy and playfully bold, never with teeth” is going to have an uphill battle convincing a jury that the use of the word “sexy” or “ she doesn’t watch porn” creates a hostile work environment.

Luckily, she does not have to prove that. Just that she subjectively believed it and reported it, which the defendants admit she did in several text messages.

You guys are out of your mind. Discovery is broader than the evidence that will be admitted at trial. The judge has narrowed the case to breach of contract retaliation claims. That’s what’s left. The trial will be about whether the cra was indeed breached a year and a half after it was signed. The judge is not going to allow weeks of testimony on SH claims he threw out. And no one is going to want to testify for Blake given how things are going.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I mean, the woman who texts her coworker, “ f you knew me (in person) longer you’d have a sense of how flirty and yummy the ball busting will play. It’s my love language. Spicy and playfully bold, never with teeth” is going to have an uphill battle convincing a jury that the use of the word “sexy” or “ she doesn’t watch porn” creates a hostile work environment.

Luckily, she does not have to prove that. Just that she subjectively believed it and reported it, which the defendants admit she did in several text messages.

You guys are out of your mind. Discovery is broader than the evidence that will be admitted at trial. The judge has narrowed the case to breach of contract retaliation claims. That’s what’s left. The trial will be about whether the cra was indeed breached a year and a half after it was signed. The judge is not going to allow weeks of testimony on SH claims he threw out. And no one is going to want to testify for Blake given how things are going.

There are 3 claims left, including retaliation under FEHA, not just the contract claim.

I don't see how you get to retaliation without presenting the case on what the protected activity was and what caused it. Wayfarer won't be able to avoid evidence of Heath and Baldoni's behavior and of the complaints and discussions surrounding it (the 17 point list, the all hands meeting, etc).

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:lol this ended up exactly as I predicted at the beginning - harassment claims dismissed but retaliation going to the fact finder.

Kind of brilliant legal move because there's no need to have any actual harassment, only retaliation (e.g. defense against) harassment claims, whether or not true

This isn’t correct, Blake will have to convince the jury that her complaints of a hostile work environment were reasonable. The judge threw out a bunch of them, she has left the birthing scene, use of the word sexy by Baldoni, Baldoni allegedly telling crew she didn’t watch pornography and Jamie in the trailer. Opinion, page 116

But this can be considered a feature, not a bug. It means they get to put up evidence related to these SH claims without having to prove they were SH. Only that Blake believed they were. There's a decent amount of contemporaneous evidence to that effect, including texts with Jenny Slate. There will also be testimony from Jenny and Alex Sachs about Blake's complaints to them about Baldoni's and Heath's behavior. Also the testimony of the makeup artists about what happened in the trailer, and their depositions were damaging for Heath.

Basically Blake gets to spend a bunch of time at trial outlining all the extremely questionable and inappropriate things that Baldoni and Heath did on set, without having to meet the legal standard of SH. And all they have to prove with it is that Blake believed she'd been SHed, which is a fairly low bar given the amount of documented evidence and the testimony we've seen so far.

The bigger challenge for Blake will be linking the alleged retaliatory behavior to her complaints. Especially given the fact that many of the conversations between Wayfarer and the crisis team are lost forever because they used Signal. There's also a temporal problem, because of the gap between what happened on set, when Blake complained, and when the PR campaign started. Much bigger hurdle. But that was always true. The case is built around the retaliation claims, they've always known that was the core of it.

But getting to provide evidence and testimony of the most signficiant SH allegations without even needing to prove they were SH is a gift. Will also help protect witnesses like Slate and the MUAs on cross examination because now they are just testifying that these events happened or that Blake complained about them or seemed bothered by them. It actually simplifies a lot of things for Blake's case.

Nope. She doesn’t get to bring up anything beyond the four instances I laid out above, the rest of her allegations were ruled out by the judge and cannot be part of her case. And Baldoni’s side will present evidence of the sexually explicit text messages she sent to her male co-stars, her “sexy boots” video, her use of sexy in her texts etc to show that she herself created a sexually charged environment. Also testimony about what she was actually wearing in the birthing scene, Heath and perhaps other testifying about the trailer, and so on to challenge her credibility.

Yes, the evidence I outlined is all related to the instances the judge is permitting. The point is that she will get to put the odd and concerning behavior of Baldoni and Heath on trial, but without having to prove it was SH.

So a jury only has to agree that, for instance, Heath's behavior in the trailer incident was objectionable, and that they can believe that Blake thought it constituted sexual harassment. They do not have to agree that it was sexual harassment. This effectively neuters testimony Heath might offer as to his intent in that moment. All that matters is Blake's subjective perception of it, as backed by the makeup artists testimony about what happened and Blake's reaction to it.

Yes, the defense can offer evidence that Blake used the term sexy frequently enough that she couldn't have viewed Baldoni's use as harassment. But since Blake doesn't have to prove it's harassment, only that she believed it was, her side can offer contextual evidence that describing her own shoes as sexy is subjectively different, to Blake, than Baldoni making the sexy comment to Blake on set. And in doing this, they can bring in Jenny Slate as an eyewitness.

The text to the friend who is likely Liz Plank that their behavior was "so much" and that she was crying regularly in response will likely be allowed, as generally speaking to her state of mind and not referencing a specific incident. Also the texts to Jenny about her fear of returning to set after the hiatus.

And none of this has to meet the strict standard of hostile work environment. It only has to meet the standard of whether Blake reasonably believed she had been sexually harassed. All while introducing evidence and testimony about Baldoni and Heath doing weird, inappropriate things.

That's a positive. I don't know if I would call it a win, obviously it would be better if she could try the SH allegations AND if I thought she could win them. But I don't know if she could win them because the hostile work environment standard is tough. So getting to bring them in without having to prove SH is actually somewhat beneficial even if it means she can't get a determination that Baldoni or Heath sexually harassed her.

Co-sign this. She was going to have a hard time proving SH, and I think the jury would feel weird finding no SH but yes on retaliation. If SH is taken out of their hands and the judge clearly instructs them there did not need to be actionable SH, that helps narrow the issue to the one that's really bad for WF. While I disagree with those calling it just a "technicality," it's not the worst thing for her to be able to say the SH claims were dismissed not on their merits but because she was an independent contractor. I'm not going to sit here and say this part wasn't a loss for Blake (unlike someone else's supporters who call everything a win), but it's not without a silver lining.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I mean, the woman who texts her coworker, “ f you knew me (in person) longer you’d have a sense of how flirty and yummy the ball busting will play. It’s my love language. Spicy and playfully bold, never with teeth” is going to have an uphill battle convincing a jury that the use of the word “sexy” or “ she doesn’t watch porn” creates a hostile work environment.

Luckily, she does not have to prove that. Just that she subjectively believed it and reported it, which the defendants admit she did in several text messages.

You guys are out of your mind. Discovery is broader than the evidence that will be admitted at trial. The judge has narrowed the case to breach of contract retaliation claims. That’s what’s left. The trial will be about whether the cra was indeed breached a year and a half after it was signed. The judge is not going to allow weeks of testimony on SH claims he threw out. And no one is going to want to testify for Blake given how things are going.

There are 3 claims left, including retaliation under FEHA, not just the contract claim.

I don't see how you get to retaliation without presenting the case on what the protected activity was and what caused it. Wayfarer won't be able to avoid evidence of Heath and Baldoni's behavior and of the complaints and discussions surrounding it (the 17 point list, the all hands meeting, etc).

This. It won't be weeks of testimony but they will be allowed to present a case as to WHY Blake reasonably believed she'd been SH'd, and in support of her claims in the 17 point list.

Unless Wayfarer wants to accept as fact that Blake reasonably believed she'd been SHed. But they probably don't want to do that.

[Anonymous]

Here’s the language from the opinion:

Hostile work environment claims under FEHA “operate under the same guiding
principles” as those under Title VII. . . . A “hostile
work environment” arises when “the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment. . . .Whether an environment is sufficiently “hostile” or “abusive” “can be determined only by looking at all the circumstances,” including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at
23. Courts must also consider that “[t]he real social impact of workplace behavior often depends
on a constellation of surrounding circumstances, expectations, and relationships which are not
fully captured by a simple recitation of the words used or the physical acts performed.”

The relevant conduct must be discriminatory. “A hostile work environment is not one
that is bad for all living things in a manner that happens to involve characteristics of the
protected class; rather it is one that is discriminatorily hostile to an employee based on his or her
membership in the protected class.” McSweeney, 776 F. Supp. 3d at 262. In other
words, the hostile work environment must have occurred “because of the plaintiff’s protected
characteristic.”

On page 116, the Court says that Blake does not have to prove that a hostile work environment existed, but that one could have a “reasonable belief” that one did.

So it is not sufficient for Blake to prove that she believed it to be so, she also has to establish, in light of all circumstances, that this belief was reasonable.

[Anonymous]

So it is not sufficient for Blake to prove that she believed it to be so, she also has to establish, in light of all circumstances, that this belief was reasonable.

Ok. I was the one that posted she just had to subjectively believe it, and I'll stand corrected on that point.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:lol this ended up exactly as I predicted at the beginning - harassment claims dismissed but retaliation going to the fact finder.

Kind of brilliant legal move because there's no need to have any actual harassment, only retaliation (e.g. defense against) harassment claims, whether or not true

This isn’t correct, Blake will have to convince the jury that her complaints of a hostile work environment were reasonable. The judge threw out a bunch of them, she has left the birthing scene, use of the word sexy by Baldoni, Baldoni allegedly telling crew she didn’t watch pornography and Jamie in the trailer. Opinion, page 116

But this can be considered a feature, not a bug. It means they get to put up evidence related to these SH claims without having to prove they were SH. Only that Blake believed they were. There's a decent amount of contemporaneous evidence to that effect, including texts with Jenny Slate. There will also be testimony from Jenny and Alex Sachs about Blake's complaints to them about Baldoni's and Heath's behavior. Also the testimony of the makeup artists about what happened in the trailer, and their depositions were damaging for Heath.

Basically Blake gets to spend a bunch of time at trial outlining all the extremely questionable and inappropriate things that Baldoni and Heath did on set, without having to meet the legal standard of SH. And all they have to prove with it is that Blake believed she'd been SHed, which is a fairly low bar given the amount of documented evidence and the testimony we've seen so far.

The bigger challenge for Blake will be linking the alleged retaliatory behavior to her complaints. Especially given the fact that many of the conversations between Wayfarer and the crisis team are lost forever because they used Signal. There's also a temporal problem, because of the gap between what happened on set, when Blake complained, and when the PR campaign started. Much bigger hurdle. But that was always true. The case is built around the retaliation claims, they've always known that was the core of it.

But getting to provide evidence and testimony of the most signficiant SH allegations without even needing to prove they were SH is a gift. Will also help protect witnesses like Slate and the MUAs on cross examination because now they are just testifying that these events happened or that Blake complained about them or seemed bothered by them. It actually simplifies a lot of things for Blake's case.

No on the SH stuff. I think you want to believe that it can be reconsidered in a different light. Not happening, but you are always the hopeful Lively one.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I mean, the woman who texts her coworker, “ f you knew me (in person) longer you’d have a sense of how flirty and yummy the ball busting will play. It’s my love language. Spicy and playfully bold, never with teeth” is going to have an uphill battle convincing a jury that the use of the word “sexy” or “ she doesn’t watch porn” creates a hostile work environment.

Luckily, she does not have to prove that. Just that she subjectively believed it and reported it, which the defendants admit she did in several text messages.

You guys are out of your mind. Discovery is broader than the evidence that will be admitted at trial. The judge has narrowed the case to breach of contract retaliation claims. That’s what’s left. The trial will be about whether the cra was indeed breached a year and a half after it was signed. The judge is not going to allow weeks of testimony on SH claims he threw out. And no one is going to want to testify for Blake given how things are going.

There are 3 claims left, including retaliation under FEHA, not just the contract claim.

I don't see how you get to retaliation without presenting the case on what the protected activity was and what caused it. Wayfarer won't be able to avoid evidence of Heath and Baldoni's behavior and of the complaints and discussions surrounding it (the 17 point list, the all hands meeting, etc).

I really wish some of you would read the opinion. The judge held that a number of her allegations, even taking the evidence in the light most favorable to her, as a matter of law, cannot establish a hostile work environment. At trial, she has to convince a jury that she has a “reasonable” (not subjective) belief of a hostile work environment, based solely on the birthing scene, trailer incident, use of word “sexy” and “she doesn’t watch porn” comment and this belief must be reasonable based on all the circumstances of the work place, i.e. her own conduct.

[Anonymous]

Baldoni's lawyers will file "Motions in Limine" to block Lively from detailing the alleged harassment, arguing it will unfairly poison the jury against him for claims he's already been cleared of. Judges despise "mini-trials" within a trial. The judge will likely allow Lively to testify that she complained about inappropriate behavior, but will cut her off if she tries to present extensive evidence or call multiple witnesses to prove the underlying behavior itself.

[Anonymous]

To the lawyers, so for the 10 points that were ruled against Lively, who pays Lively's legal fees up until this point? Her, right?

Also, if she takes the case to trial, given that she has shown minimal evidence for retaliation up to now, that claim probably won't be won. For the remaining two claims left, is it even worth it moneywise to pursue in court? What would damages look like?

[Anonymous]

Anonymous wrote:Baldoni's lawyers will file "Motions in Limine" to block Lively from detailing the alleged harassment, arguing it will unfairly poison the jury against him for claims he's already been cleared of. Judges despise "mini-trials" within a trial. The judge will likely allow Lively to testify that she complained about inappropriate behavior, but will cut her off if she tries to present extensive evidence or call multiple witnesses to prove the underlying behavior itself.

Baldoni supporter here and I don’t agree. The opinion makes clear Blake has to establish a “reasonable belief” of a hostile work environment based on a few of her allegations. They can bring in all kinds of evidence to show there can be no such reasonable belief based on her own sexually charged conduct and credibility issues.