Lively/Baldoni Lawsuit Part 2

[Anonymous]

Anonymous wrote:

Anonymous wrote:Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion.

He’s not asking them for facts. He’s asking each party to provide a list of cases on how the burden issue by Monday with no discussion and specifically include cases that may reflect how Rule 54 may affect the burden of proof under Rule 47.1.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion.

He’s not asking them for facts. He’s asking each party to provide a list of cases on how the burden issue by Monday with no discussion and specifically include cases that may reflect how Rule 54 may affect the burden of proof under Rule 47.1.

Sure fine. I just meant information he needs so draft his ruling. Doesn’t change my point.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion.

I agree it doesn't indicate which way he will rule, only that it indicates his decision will be more than just a quick dismissal based on extraterritoriality. There is no reason for him to do a "full legal analysis" if he's dismissing for extraterritoriality because his analysis would have no weight or bearing. He's a federal judge in a circuit that doesn't even contain CA. If his conclusion is that 47.1 doesn't apply in this case, then he's certainly not going to engage in legal analysis of a novel, untested CA law as applied to the facts of this case.

It's different than when he dismissed the 10 Lively claims because in that situation he was allowing three claims (the retaliation claims) to go forward. In order for the retaliation claims to survive, that had to be based on a good faith complaint of SH by Lively, even if those SH claims ultimately failed because she wasn't an employee. That's why he went through the SH claims and identified those that Lively could reasonably have believed to have been SH if she was an employee, because those served as the basis of her retaliation claims. If he'd actually found that none of her SH claims met the threshold for SH even if she were an employee, then he would also have dismissed the retaliation claims.

The same situation does not apply here. He will either be granting this motion or denying it, and if he is denying for a technical reason like extraterritoriality, there is no reason for him to do an analysis of which side bears the burden of proof for the elements of 47.1. In fact it would be confusing for him to do that.

Which is why I now think it's highly unlikely he'll dismiss for extraterritoriality. He may still deny the motion, but it appears he intends to at least get to the stage of evaluating whether the facts of this case meet the requirements of 47.1.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion.

Just sort of jumping off this bolded part, but this is so interesting. And why I think the law, though well intentioned, is poorly conceived and will be difficult to enforce. Just take Lively out of it for a second and make it a general proposition. The law was intended to cover people who speak out about being SH or SA even if they don't end up filing a lawsuit and being covered by litigation privilege. That would include those who speak to the press or even just women who warn other women about predators on campus or in the workplace. So how do they plead "without malice." Like, as a society is the default that we generally think a person wouldn't make that up unless there's a reason to think otherwise? How do they make an initial showing that they were "without malice?" I think it would be by saying "this actually happened," but stating that it happened is the reason they are being sued for defamation. It's very circular.

At least Wayfarer has sort of a colorable argument that Lively had some other motives to make her complaints because it gave her some editing and approval rights that she supposedly parlayed into taking over the film. But then if you have to make findings on that, you are essentially going to end up litigating the entire case again, and the purpose of the law is supposed to be that cases are disposed of quickly to give the defendants some relief from having to litigate their SH claims, because they are privileged! And what if the finding is that Lively did have a reasonable, good faith belief she was SHed, but *also* had malicious intent (revenge, taking over the movie, etc), the way the law is written you could argue that doesn't meet the standard "without malice."

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion.

Just sort of jumping off this bolded part, but this is so interesting. And why I think the law, though well intentioned, is poorly conceived and will be difficult to enforce. Just take Lively out of it for a second and make it a general proposition. The law was intended to cover people who speak out about being SH or SA even if they don't end up filing a lawsuit and being covered by litigation privilege. That would include those who speak to the press or even just women who warn other women about predators on campus or in the workplace. So how do they plead "without malice." Like, as a society is the default that we generally think a person wouldn't make that up unless there's a reason to think otherwise? How do they make an initial showing that they were "without malice?" I think it would be by saying "this actually happened," but stating that it happened is the reason they are being sued for defamation. It's very circular.

At least Wayfarer has sort of a colorable argument that Lively had some other motives to make her complaints because it gave her some editing and approval rights that she supposedly parlayed into taking over the film. But then if you have to make findings on that, you are essentially going to end up litigating the entire case again, and the purpose of the law is supposed to be that cases are disposed of quickly to give the defendants some relief from having to litigate their SH claims, because they are privileged! And what if the finding is that Lively did have a reasonable, good faith belief she was SHed, but *also* had malicious intent (revenge, taking over the movie, etc), the way the law is written you could argue that doesn't meet the standard "without malice."

No, it's not circular. There is a legal standard for "without malice" and the judge would apply it to available evidence just like in any other situation. It's not like 47.1 is applied simply by asking the accuser a few questions. It only applies if the accused sues the accuser for defamation, and that lawsuit is decided in the accuser's favor. Which means you will have the body of evidence or argument produced in the defamation action, much of which is likely to go straight to the truth of the accusations. The accuser can also testify as to their motive in making their accusations, and there can be a finding of fact on that point. The accused could also testify, or have others testify, or produce other evidence as to the accuser's motives. For instance in this case Baldoni could bring in texts or emails that came out of discovery that his side feels show that Lively's accusations were made with malice. Likewise, Lively can produce text and emails that she believes show her accusations were made without malice. The determination will be based on available evidence, not on just some tautological assertion by the accuser.

[Anonymous]

The 47.1 motion is really interesting to me because I think all of Wayfarer's best arguments against it are procedural/technical, but that the facts favor Lively if she can overcome those challenges.

There are absolutely questions about whether the court can even apply 47.1, including the jurisdictional issues and the question of whether the dismissal of Wayfarer's defamation lawsuit can be considered a final decision in Lively's favor.

However, if those objections are overcome, I think Lively has strong arguments both that there is a protected communication and that her allegations were made without malice. I know the Baldoni folks on here will yell at me for that, but just taking the "without malice" issue, we have the settlement statement saying Lively's concerns deserved to be heard, and we have a text from Baldoni saying that Lively truly believed she had been wronged. And that's on top of Lively's own testimony, texts, and emails, all of which seem to back up the idea that she was genuinely upset about what had happened on set and believed lines had been crossed. I think that's hard to overcome.

[Anonymous]

The critical question from the order:

The Court will receive argument and letter briefs on the following questions: Assuming (without deciding) that an application by a prevailing defendant for relief under California Civil Code Section 47.1(b) may be made pursuant to Federal Rule of Civil Procedure 54, which party bears the burden of proof of showing that the communication is privileged under Section 47.1(a), including whether that burden differs depending on whether the application is for attorneys’ fees alone or also for treble and punitive damages, and whether the burden differs where Section 47.1(b) relief is sought through Rule 54 of the Federal Rules of Civil Procedure. The parties may also address how that burden may be discharged.

I don't think Liman is ever going to get to applying facts to the standard. He's going to find a way to say that the statute isn't applicable or can't be applied under Federal Rules. And for good reason, he shouldn't be the one interpreting a state statute that is likely Unconsistituional.

We'll know more about his thinking after oral arguments.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion.

Just sort of jumping off this bolded part, but this is so interesting. And why I think the law, though well intentioned, is poorly conceived and will be difficult to enforce. Just take Lively out of it for a second and make it a general proposition. The law was intended to cover people who speak out about being SH or SA even if they don't end up filing a lawsuit and being covered by litigation privilege. That would include those who speak to the press or even just women who warn other women about predators on campus or in the workplace. So how do they plead "without malice." Like, as a society is the default that we generally think a person wouldn't make that up unless there's a reason to think otherwise? How do they make an initial showing that they were "without malice?" I think it would be by saying "this actually happened," but stating that it happened is the reason they are being sued for defamation. It's very circular.

At least Wayfarer has sort of a colorable argument that Lively had some other motives to make her complaints because it gave her some editing and approval rights that she supposedly parlayed into taking over the film. But then if you have to make findings on that, you are essentially going to end up litigating the entire case again, and the purpose of the law is supposed to be that cases are disposed of quickly to give the defendants some relief from having to litigate their SH claims, because they are privileged! And what if the finding is that Lively did have a reasonable, good faith belief she was SHed, but *also* had malicious intent (revenge, taking over the movie, etc), the way the law is written you could argue that doesn't meet the standard "without malice."

No, it's not circular. There is a legal standard for "without malice" and the judge would apply it to available evidence just like in any other situation. It's not like 47.1 is applied simply by asking the accuser a few questions. It only applies if the accused sues the accuser for defamation, and that lawsuit is decided in the accuser's favor. Which means you will have the body of evidence or argument produced in the defamation action, much of which is likely to go straight to the truth of the accusations. The accuser can also testify as to their motive in making their accusations, and there can be a finding of fact on that point. The accused could also testify, or have others testify, or produce other evidence as to the accuser's motives. For instance in this case Baldoni could bring in texts or emails that came out of discovery that his side feels show that Lively's accusations were made with malice. Likewise, Lively can produce text and emails that she believes show her accusations were made without malice. The determination will be based on available evidence, not on just some tautological assertion by the accuser.

Trying to reply point by point here if the formatting cooperates:

There is a legal standard for "without malice" and the judge would apply it to available evidence just like in any other situation.

Is there? It's not defined and the law hasn't been tested. Most think it's not the same definition of malice as in defamation law. I believe Lively's papers have been relying on hundreds of pages of legislative history.

It only applies if the accused sues the accuser for defamation, and that lawsuit is decided in the accuser's favor. Which means you will have the body of evidence or argument produced in the defamation action, much of which is likely to go straight to the truth of the accusations.

Therein lies the rub. 47.1 is supposed to make it easier to get these actions dismissed so the accuser doesn't have to go through expensive litigation. Accuser makes a claim, accused sues for defamation, accuser invokes 47.1 privilege and the case gets dismissed. The Lively case went further because Lively was also suing Wayfarer in a separate case, but a 47.1 accuser doesn't have to do that to invoke the law, and in many cases the only lawsuit at issue will be the defamation lawsuit.

The accuser can also testify as to their motive in making their accusations, and there can be a finding of fact on that point. The accused could also testify, or have others testify, or produce other evidence as to the accuser's motives. For instance in this case Baldoni could bring in texts or emails that came out of discovery that his side feels show that Lively's accusations were made with malice. Likewise, Lively can produce text and emails that she believes show her accusations were made without malice. The determination will be based on available evidence, not on just some tautological assertion by the accuser.

That's what I'm saying. The law is supposed to grant a privilege that protects victims/accusers from having to go through litigation, similar to what the fair report privilege does for journalists, except you do end up having to litigate the same/similar underlying facts.

Suppose a college student warns other girls that a professor tried to get her to sleep with him to change her grade. She even decides to write an article about it in the school paper, naming and shaming him. He sues her for defamation. Her argument is: this is without malice because this actually happened to me and I'm telling the truth. His argument is: this is malicious, as she's lying because she got a bad grade. You end up having to litigate the truthfulness of her underlying claim, while the intent of the law, I think, was for the accuser to not have to do that. That's what I think is circular.

[Anonymous]

Is there some reason why Lively couldn't have filed the 47.1 claim in California state court like the NYT did with their anti-SLAAP? This is so messy.

[Anonymous]

Anonymous wrote:Is there some reason why Lively couldn't have filed the 47.1 claim in California state court like the NYT did with their anti-SLAAP? This is so messy.

Well, that's why several of us have said that her case in its entirety should have be brought in California. But I think with respect to 47.1 in particular, it makes little sense to have a second court involved when the first Court is already familiar with the claims substantively, and the statute seems to require some familarity with those to reach damages beyond ordinary attorney's fees. In any case, the dismissal order already entered here would seem to prohibit any action in another Court.

[Anonymous]

Worth noting that the federal court in Texas is dealing with a similar question. Blake is trying to invoke 47.1 there with respect to a defamation complaint dismissed on the basis of jurisdiction. That's perhaps a more obvious example of what's wrong with 47.1.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion.

Just sort of jumping off this bolded part, but this is so interesting. And why I think the law, though well intentioned, is poorly conceived and will be difficult to enforce. Just take Lively out of it for a second and make it a general proposition. The law was intended to cover people who speak out about being SH or SA even if they don't end up filing a lawsuit and being covered by litigation privilege. That would include those who speak to the press or even just women who warn other women about predators on campus or in the workplace. So how do they plead "without malice." Like, as a society is the default that we generally think a person wouldn't make that up unless there's a reason to think otherwise? How do they make an initial showing that they were "without malice?" I think it would be by saying "this actually happened," but stating that it happened is the reason they are being sued for defamation. It's very circular.

At least Wayfarer has sort of a colorable argument that Lively had some other motives to make her complaints because it gave her some editing and approval rights that she supposedly parlayed into taking over the film. But then if you have to make findings on that, you are essentially going to end up litigating the entire case again, and the purpose of the law is supposed to be that cases are disposed of quickly to give the defendants some relief from having to litigate their SH claims, because they are privileged! And what if the finding is that Lively did have a reasonable, good faith belief she was SHed, but *also* had malicious intent (revenge, taking over the movie, etc), the way the law is written you could argue that doesn't meet the standard "without malice."

No, it's not circular. There is a legal standard for "without malice" and the judge would apply it to available evidence just like in any other situation. It's not like 47.1 is applied simply by asking the accuser a few questions. It only applies if the accused sues the accuser for defamation, and that lawsuit is decided in the accuser's favor. Which means you will have the body of evidence or argument produced in the defamation action, much of which is likely to go straight to the truth of the accusations. The accuser can also testify as to their motive in making their accusations, and there can be a finding of fact on that point. The accused could also testify, or have others testify, or produce other evidence as to the accuser's motives. For instance in this case Baldoni could bring in texts or emails that came out of discovery that his side feels show that Lively's accusations were made with malice. Likewise, Lively can produce text and emails that she believes show her accusations were made without malice. The determination will be based on available evidence, not on just some tautological assertion by the accuser.

Trying to reply point by point here if the formatting cooperates:

There is a legal standard for "without malice" and the judge would apply it to available evidence just like in any other situation.

Is there? It's not defined and the law hasn't been tested. Most think it's not the same definition of malice as in defamation law. I believe Lively's papers have been relying on hundreds of pages of legislative history.

It only applies if the accused sues the accuser for defamation, and that lawsuit is decided in the accuser's favor. Which means you will have the body of evidence or argument produced in the defamation action, much of which is likely to go straight to the truth of the accusations.

Therein lies the rub. 47.1 is supposed to make it easier to get these actions dismissed so the accuser doesn't have to go through expensive litigation. Accuser makes a claim, accused sues for defamation, accuser invokes 47.1 privilege and the case gets dismissed. The Lively case went further because Lively was also suing Wayfarer in a separate case, but a 47.1 accuser doesn't have to do that to invoke the law, and in many cases the only lawsuit at issue will be the defamation lawsuit.

The accuser can also testify as to their motive in making their accusations, and there can be a finding of fact on that point. The accused could also testify, or have others testify, or produce other evidence as to the accuser's motives. For instance in this case Baldoni could bring in texts or emails that came out of discovery that his side feels show that Lively's accusations were made with malice. Likewise, Lively can produce text and emails that she believes show her accusations were made without malice. The determination will be based on available evidence, not on just some tautological assertion by the accuser.

That's what I'm saying. The law is supposed to grant a privilege that protects victims/accusers from having to go through litigation, similar to what the fair report privilege does for journalists, except you do end up having to litigate the same/similar underlying facts.

Suppose a college student warns other girls that a professor tried to get her to sleep with him to change her grade. She even decides to write an article about it in the school paper, naming and shaming him. He sues her for defamation. Her argument is: this is without malice because this actually happened to me and I'm telling the truth. His argument is: this is malicious, as she's lying because she got a bad grade. You end up having to litigate the truthfulness of her underlying claim, while the intent of the law, I think, was for the accuser to not have to do that. That's what I think is circular.

No, you are misunderstanding 47.1 especially as it is applied in this case. You can invoke 47.1 in a motion to dismiss but it doesn't, on its own, get the case dismissed. You need other procedural grounds for that (anti-SLAPP or substantive grounds). In Lively's case, the defamation action was dismissed for a mixture of procedural and substantive failures, but Liman didn't use 47.1 at all in the dismissal and does not need to.

Lively is only asking to to apply the damages portion of 47.1 which says that once the defamation action has been resolved *in the accuser's favor* they may be entitled to attorney's fees, treble, and punitive damages from the accused. WAyfarer/Baldoni's defamation action has been deemed to be groundless by the court. It is actually a stronger than usual claim for damages because the defamation lawsuit in question was so meritless.

47.1 is meant to DETER frivolous defamation claims by people accused in good faith of abuse or harassment, by making it very expensive for them to file a defamation claim simply to silence an accuser. The law doesn't on it's own get those defamation claims dismissed because there may be instance (like in the fact pattern you argue) where the defamation claim is actually merited. In your fact pattern, she would have to engage with the defamation allegations directly and either get a verdict in her favor or get them dismissed, and in order to do that she would have to show evidence that her claims were made in good faith. The defamation claims have to be disposed in her favor first before 47.1 would be applied to reward her damages.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Liman has requested briefing and a very interesting question on the 47.1 motion -- he wants the parties to argue who has the burden of proof as to showing a communication is privileged under the law, and whether that burden shifts depending on whether the defendant is pursuing attorneys fees versus treble or punitive damages. He also wants to address whether the burden changes when relief is sought under 47.1 pursuant to the federal rules (as opposed to a defendant seeking relief in CA courts under CA law).

This would indicate that he doesn't intend to dispose of the motion quickly on technical grounds, and that he does intend to make a ruling on the merits.

It's really interesting because there is no case law on 47.1, which means the briefs and arguments on this issue will be novel as well. The parties will need to produce analogous cases (where similar state laws have been applied in federal courts) to support their arguments. A fun one for federal civil procedure nerds.

This isn’t an indicator of anything. He’s just being thorough. Even if he rules 47.1 doesn’t apply b/c it’s a California law and the movie was filmed in New Jersey (or some other reason), he’ll still do a full legal analysis saying “even if it did” plaintiff hasn’t met her burden of without malice or there’s enough to suggest good faith but doesn’t matter b/c 47.1 doesn’t apply. He did the same when he dismissed Lively’s case. Remember ALA doesn’t apply, lively also wasn’t an employee, and even if she was these facts don’t meet threshold for SH. He’s just looking for the facts he needs to write a thorough motion.

Just sort of jumping off this bolded part, but this is so interesting. And why I think the law, though well intentioned, is poorly conceived and will be difficult to enforce. Just take Lively out of it for a second and make it a general proposition. The law was intended to cover people who speak out about being SH or SA even if they don't end up filing a lawsuit and being covered by litigation privilege. That would include those who speak to the press or even just women who warn other women about predators on campus or in the workplace. So how do they plead "without malice." Like, as a society is the default that we generally think a person wouldn't make that up unless there's a reason to think otherwise? How do they make an initial showing that they were "without malice?" I think it would be by saying "this actually happened," but stating that it happened is the reason they are being sued for defamation. It's very circular.

At least Wayfarer has sort of a colorable argument that Lively had some other motives to make her complaints because it gave her some editing and approval rights that she supposedly parlayed into taking over the film. But then if you have to make findings on that, you are essentially going to end up litigating the entire case again, and the purpose of the law is supposed to be that cases are disposed of quickly to give the defendants some relief from having to litigate their SH claims, because they are privileged! And what if the finding is that Lively did have a reasonable, good faith belief she was SHed, but *also* had malicious intent (revenge, taking over the movie, etc), the way the law is written you could argue that doesn't meet the standard "without malice."

No, it's not circular. There is a legal standard for "without malice" and the judge would apply it to available evidence just like in any other situation. It's not like 47.1 is applied simply by asking the accuser a few questions. It only applies if the accused sues the accuser for defamation, and that lawsuit is decided in the accuser's favor. Which means you will have the body of evidence or argument produced in the defamation action, much of which is likely to go straight to the truth of the accusations. The accuser can also testify as to their motive in making their accusations, and there can be a finding of fact on that point. The accused could also testify, or have others testify, or produce other evidence as to the accuser's motives. For instance in this case Baldoni could bring in texts or emails that came out of discovery that his side feels show that Lively's accusations were made with malice. Likewise, Lively can produce text and emails that she believes show her accusations were made without malice. The determination will be based on available evidence, not on just some tautological assertion by the accuser.

Trying to reply point by point here if the formatting cooperates:

There is a legal standard for "without malice" and the judge would apply it to available evidence just like in any other situation.

Is there? It's not defined and the law hasn't been tested. Most think it's not the same definition of malice as in defamation law. I believe Lively's papers have been relying on hundreds of pages of legislative history.

It only applies if the accused sues the accuser for defamation, and that lawsuit is decided in the accuser's favor. Which means you will have the body of evidence or argument produced in the defamation action, much of which is likely to go straight to the truth of the accusations.

Therein lies the rub. 47.1 is supposed to make it easier to get these actions dismissed so the accuser doesn't have to go through expensive litigation. Accuser makes a claim, accused sues for defamation, accuser invokes 47.1 privilege and the case gets dismissed. The Lively case went further because Lively was also suing Wayfarer in a separate case, but a 47.1 accuser doesn't have to do that to invoke the law, and in many cases the only lawsuit at issue will be the defamation lawsuit.

The accuser can also testify as to their motive in making their accusations, and there can be a finding of fact on that point. The accused could also testify, or have others testify, or produce other evidence as to the accuser's motives. For instance in this case Baldoni could bring in texts or emails that came out of discovery that his side feels show that Lively's accusations were made with malice. Likewise, Lively can produce text and emails that she believes show her accusations were made without malice. The determination will be based on available evidence, not on just some tautological assertion by the accuser.

That's what I'm saying. The law is supposed to grant a privilege that protects victims/accusers from having to go through litigation, similar to what the fair report privilege does for journalists, except you do end up having to litigate the same/similar underlying facts.

Suppose a college student warns other girls that a professor tried to get her to sleep with him to change her grade. She even decides to write an article about it in the school paper, naming and shaming him. He sues her for defamation. Her argument is: this is without malice because this actually happened to me and I'm telling the truth. His argument is: this is malicious, as she's lying because she got a bad grade. You end up having to litigate the truthfulness of her underlying claim, while the intent of the law, I think, was for the accuser to not have to do that. That's what I think is circular.

No, you are misunderstanding 47.1 especially as it is applied in this case. You can invoke 47.1 in a motion to dismiss but it doesn't, on its own, get the case dismissed. You need other procedural grounds for that (anti-SLAPP or substantive grounds). In Lively's case, the defamation action was dismissed for a mixture of procedural and substantive failures, but Liman didn't use 47.1 at all in the dismissal and does not need to.

Lively is only asking to to apply the damages portion of 47.1 which says that once the defamation action has been resolved *in the accuser's favor* they may be entitled to attorney's fees, treble, and punitive damages from the accused. WAyfarer/Baldoni's defamation action has been deemed to be groundless by the court. It is actually a stronger than usual claim for damages because the defamation lawsuit in question was so meritless.

47.1 is meant to DETER frivolous defamation claims by people accused in good faith of abuse or harassment, by making it very expensive for them to file a defamation claim simply to silence an accuser. The law doesn't on it's own get those defamation claims dismissed because there may be instance (like in the fact pattern you argue) where the defamation claim is actually merited. In your fact pattern, she would have to engage with the defamation allegations directly and either get a verdict in her favor or get them dismissed, and in order to do that she would have to show evidence that her claims were made in good faith. The defamation claims have to be disposed in her favor first before 47.1 would be applied to reward her damages.

Now address Lively's attempt to use 47.1 to get fees in the Texas case where the dismissal was based on jurisdiction.

There is a reason that Liman is specifically questioning whether a California rule can be applied under Federal Rule 54, and if it can be, whether the burden/standard of proof changes. I also think he is watching the Texas case, and vice versa.

[Anonymous]

Anonymous wrote:Is there some reason why Lively couldn't have filed the 47.1 claim in California state court like the NYT did with their anti-SLAAP? This is so messy.

It's really not that messy. I don't understand why people are so freaked out about a federal court applying a state law. This happens daily. I get this law is new and untested but that doesn't really change the fact that a federal court can of course apply a state law in a federal case.

Another reason I don't get this argument is that Baldoni's defamation claims against Lively were dismissed under California law, and Baldoni/Wayfarer are the ones who requested the court apply California law in its consideration of the motion to dismiss. Lively didn't object to this (NYT, Reynolds, and Sloane did and wanted NY law applied to them as defendants) and CA law was applied.

It is nonsensical, after requesting and agreeing to the application of CA law to their defamation action in a federal court, to then complain that the court cannot possibly apply a CA law (47.1) to reward damages based on the outcome of that action.

This is one of the places where I feel Bryan Freedman failed to understand what this case was actually about and, in engaging in his usual PR-based practice to try and get Baldoni exonerated in the public eye, missed the forrest for the trees. Freedman has seemed unconcerned or even unaware of the 47.1 threat from the start, even though what he did in filing the 400m defamation action (which was poorly written and poorly argued) falls so squarely within what 47.1 was passed to address. It was a huge oversight. I think he really dropped the ball and that it's going to come back to bite him and Wayfarer.

[Anonymous]

Anonymous wrote:

Anonymous wrote:Is there some reason why Lively couldn't have filed the 47.1 claim in California state court like the NYT did with their anti-SLAAP? This is so messy.

It's really not that messy. I don't understand why people are so freaked out about a federal court applying a state law. This happens daily. I get this law is new and untested but that doesn't really change the fact that a federal court can of course apply a state law in a federal case.

Another reason I don't get this argument is that Baldoni's defamation claims against Lively were dismissed under California law, and Baldoni/Wayfarer are the ones who requested the court apply California law in its consideration of the motion to dismiss. Lively didn't object to this (NYT, Reynolds, and Sloane did and wanted NY law applied to them as defendants) and CA law was applied.

It is nonsensical, after requesting and agreeing to the application of CA law to their defamation action in a federal court, to then complain that the court cannot possibly apply a CA law (47.1) to reward damages based on the outcome of that action.

This is one of the places where I feel Bryan Freedman failed to understand what this case was actually about and, in engaging in his usual PR-based practice to try and get Baldoni exonerated in the public eye, missed the forrest for the trees. Freedman has seemed unconcerned or even unaware of the 47.1 threat from the start, even though what he did in filing the 400m defamation action (which was poorly written and poorly argued) falls so squarely within what 47.1 was passed to address. It was a huge oversight. I think he really dropped the ball and that it's going to come back to bite him and Wayfarer.

This is a ridiculous post in several respects:

(1) the Court has already found that the California law has limited extraterritoriality;

(2) WF has already successfully argued that California law does not apply to Blake's sexual harassment claims because the alleged conduct occurred in NY;

(3) "People" aren't worried about the application of 47.1 in Federal Court -- the judge has independently requested briefing on how 47.1 should be applied given Federal Rule 54. Further, the Supreme Court just issued a case earlier this year that specifically addresses what should happen when a state rule conflicts with a federal rule and a case is brought in federal court.

(4) Lively is overreaching and trying to get 47.1 applied in a Texas federal court in a related case where the dismissal was based on jurisdiction. Liman's decision will be on the scenario before him, but very likely he is aware of and considering the effect of his ruling on that case as well.