Lively/Baldoni Lawsuit Part 2

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

I actually don't think he was tough on her. But that might actually be a bad sign. I think he was challenging Blake's side to see how they handled the toughest argument against and Gottlieb handled comfortably. Ellyn seemed sidelined.

My read is that Liman can't see a way around applying 47.1 but is struggling with how to do so, especially how to assess damages.

Gottlieb didn't hande it comfortably at all -- nothing he said addresses the Constitutional issues, or even the logistical issues of Blake trying to collect without the right record. The 7th Amendment issue, which is the one really bothering the judge, went unanswered.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

Adding this is why Liman volunteered that a 47.1 fee/damages claim really should be brought as a counterclaim.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

Why? They bought a meritless lawsuit and it was dismissed. CA law awards attorneys fees and compensatory damages where a a good faith accuser prevails in a defamation action brought on the basis of their accusations. What would the trial be on the basis of? The judge deemed the defamation action to have no proper basis.

The sticking point is damages, but judges can determine damages without a trial and do sometimes in default judgments or where the court declares one side prevails as a matter of law. If he needs assistance in determining damages, he could hold a hearing and serve as the fact finder on the damages issue exclusively. None of this violates constitutional rights.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

He could but based on his questions in the hearing and history in this case, I don’t think he will. Even if he says “I didn’t rule on it” he’ll still do a full analysis like he did with the SH claims. I would expect that if he rules that 47.1 doesn’t apply b/c he didn’t rule on it or b/c California law doesn’t apply to something that happened in New Jersey, he’ll still go on to say “even if it did” Baldoni’s complaint would be protected by the first amendment and even if it wasn’t he couldn’t assess damages without a jury trial b/c of the seventh amendment.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

Adding this is why Liman volunteered that a 47.1 fee/damages claim really should be brought as a counterclaim.

But how could that be applied here? There is zero precedent that would have indicated Lively needed to bring it as a counterclaim to Wayfarer's lawsuit against her. They raised it immediately after the MTD was granted. And if they had brought it as a counterclaim in the Wayfarer v. Lively lawsuit, Liman would have been in the exact same situation he is in now, needing to determine how to apply 47.1 without a trial, since that case had no basis in fact and therefore was never going to trial. It would change nothing.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

Why? They bought a meritless lawsuit and it was dismissed. CA law awards attorneys fees and compensatory damages where a a good faith accuser prevails in a defamation action brought on the basis of their accusations. What would the trial be on the basis of? The judge deemed the defamation action to have no proper basis.

The sticking point is damages, but judges can determine damages without a trial and do sometimes in default judgments or where the court declares one side prevails as a matter of law. If he needs assistance in determining damages, he could hold a hearing and serve as the fact finder on the damages issue exclusively. None of this violates constitutional rights.

You have a very different interpretation of the constitution than judge Liman if you saw the questions he asked during the hearing.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

Adding this is why Liman volunteered that a 47.1 fee/damages claim really should be brought as a counterclaim.

But how could that be applied here? There is zero precedent that would have indicated Lively needed to bring it as a counterclaim to Wayfarer's lawsuit against her. They raised it immediately after the MTD was granted. And if they had brought it as a counterclaim in the Wayfarer v. Lively lawsuit, Liman would have been in the exact same situation he is in now, needing to determine how to apply 47.1 without a trial, since that case had no basis in fact and therefore was never going to trial. It would change nothing.

That’s not quite right. A counterclaim would be a lawsuit against Baldoni for malicious prosecution, which btw is what some felt he should’ve filed against her (though I’m sure he waived that in settlement). That would be a new case with deposition and trial.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

Why? They bought a meritless lawsuit and it was dismissed. CA law awards attorneys fees and compensatory damages where a a good faith accuser prevails in a defamation action brought on the basis of their accusations. What would the trial be on the basis of? The judge deemed the defamation action to have no proper basis.

The sticking point is damages, but judges can determine damages without a trial and do sometimes in default judgments or where the court declares one side prevails as a matter of law. If he needs assistance in determining damages, he could hold a hearing and serve as the fact finder on the damages issue exclusively. None of this violates constitutional rights.

Sure it does, in federal court, only a jury can determine damages unless the parties waive those rights. That what Liman means when he invokes the Seventh Amendment. That’s why Ellyn said that WF did not waive its Seventh Amendment rights.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

Adding this is why Liman volunteered that a 47.1 fee/damages claim really should be brought as a counterclaim.

But how could that be applied here? There is zero precedent that would have indicated Lively needed to bring it as a counterclaim to Wayfarer's lawsuit against her. They raised it immediately after the MTD was granted. And if they had brought it as a counterclaim in the Wayfarer v. Lively lawsuit, Liman would have been in the exact same situation he is in now, needing to determine how to apply 47.1 without a trial, since that case had no basis in fact and therefore was never going to trial. It would change nothing.

That’s not quite right. A counterclaim would be a lawsuit against Baldoni for malicious prosecution, which btw is what some felt he should’ve filed against her (though I’m sure he waived that in settlement). That would be a new case with deposition and trial.

In the 47.1 action, Lively is the defendant not WF.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

Why? They bought a meritless lawsuit and it was dismissed. CA law awards attorneys fees and compensatory damages where a a good faith accuser prevails in a defamation action brought on the basis of their accusations. What would the trial be on the basis of? The judge deemed the defamation action to have no proper basis.

The sticking point is damages, but judges can determine damages without a trial and do sometimes in default judgments or where the court declares one side prevails as a matter of law. If he needs assistance in determining damages, he could hold a hearing and serve as the fact finder on the damages issue exclusively. None of this violates constitutional rights.

You have a very different interpretation of the constitution than judge Liman if you saw the questions he asked during the hearing.

She doesn’t understand the Seventh Amendment. A state statute cannot preempt federal law in federal court.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Judge was tough on both sides. I don't think he's decided, personally. He sounded open to arguments on both sides, and skeptical of both.

In what world was he tough on Ellyn? He barely questioned her. He clearly has concerns this law as applied here would violate the first and seventh amendment.

Yes, and I don't think Gottlieb suggested a way around it. But the 7th seems to be the bigger obstance.

I'll admit that I didn't really focus on 47.1 as he didn't rely on it in reaching his decision on Lively's MTD. It's super problematic -- probably unconstitutional conceptuallly and poorly drafted as it doesn't establish a procedure for awarding special damages.

I don't think he wants to find it unconstitutional, he may go with the prececdent Ellyn gave him, and rule that it isn't invoked here because the MTD was not decided on the basis of the 47.1 privilege.

I’m not sure he has any other choice but to find it unconstitutional. Here’s the thing, he’s a federal judge, his allegiance has to be to the constitution. Some well meaning women’s advocates are choosing to put their heads in the sand and pretend these constitutional issues don’t exist. And Blake’s lawyers are trying to treat this like an indictment on Justin “male feminist dismantles law meant to protect women.” But we should all be treating this like an indictment on California. They wrote a shitty law with glaring constitutional issues probably for political reasons knowing that when the courts inevitably rule it unconstitutional they can say “we tried” but people just don’t care about women as much as we do in good ole California.

He can say that he didn't decide the MTD on the basis of the 47.1 privilege and kick the can down the road. That same argument would get rid of her 47.1 motion in Texas federal court as well. That's how I would do it. Or he can say that he can't get around the 7th Amendment right to a jury where damages are being decided in Federal Court. An evidentiary hearing in front of Liman would not suffice, WF is entitled to a jury under the Seventh Amendment.

Adding this is why Liman volunteered that a 47.1 fee/damages claim really should be brought as a counterclaim.

But how could that be applied here? There is zero precedent that would have indicated Lively needed to bring it as a counterclaim to Wayfarer's lawsuit against her. They raised it immediately after the MTD was granted. And if they had brought it as a counterclaim in the Wayfarer v. Lively lawsuit, Liman would have been in the exact same situation he is in now, needing to determine how to apply 47.1 without a trial, since that case had no basis in fact and therefore was never going to trial. It would change nothing.

You can tell that to Liman, it’s his comment. In any case, I assume, had she done so, the counterclaim would have been tried along with her primary claims at trial. The cases were consolidated, after all, and the dismissal of his claims would not moot such a counterclaim.

[Anonymous]

One of the architects of 47.1 has come out against Blake, saying Blake’s weaponizing the law and shouldn’t get fees.

[Anonymous]

Anonymous wrote:One of the architects of 47.1 has come out against Blake, saying Blake’s weaponizing the law and shouldn’t get fees.

Unclear. It's a screenshot of a private comment from a private but unverified account and that person's verified LinkedIn account has numerous supportive statements of Blake. She definitely hasn't come out publicly against Blake. I'm reserving judgment until Victoria Burke actually makes a public statement on the matter. It would be a 180 from her so if it's a real comment, she'll need to explain it.