Blake Lively- Jason Baldoni and NYT - False Light claims

[Anonymous]

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Anonymous wrote:

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Anonymous wrote:

It’s not even really a “setback.” The jr associates here are acting like getting your discovery narrowed by the judge is some kind of disaster. The whole point was to freak out the other side with a broad request.

I don't think it's a disaster, but I think their subpoena was pointless and time wasting. I don't think it freaked the other side out at all. At most I can see the strategy was to ask for a very broad subpoena that any defendant would absolutely move to quash so they could get in a few silly jabs in the press about Justin and Wayfarer not wanting to show the "receipts" which is just not a strategy I respect. The whole point was they weren't asking for "the receipts" but a bunch of irrelevant, private information.

And yet there is nothing to indicate implementation of any plan ever! The most controversial language was Nathan and Abel agreeing that they were astonished that they didn’t have to act against Lively because of her own goals, and they agreed it was “sad” but “don’t like be a c-.”

"We are crushing on it reddit thanks to Jed" was a pretty good indicator. Baldoni quizzing them about bots and them saying that's not us is a good indicator that there was a paid astroturfing plan in motion that he didn't want to look obvious. I can't buy that they had this whole plan developed, things happened according to the plan, they discussed how they were crushing it, but then claim it actually all was organic. Perhaps the jury will disagree with me, but I think there's enough there for her claims to survive to trial. I'm not saying Lively is likeable. Indeed she had issues and part of their plan was leveraging her own past, real, issues and interviews to destroy her credibility in case her SH complaints should come to life.

Wondering if someone could explain astroturfing and what is legal and illegal? There was just an article that apparently Blake has purchased hundreds of thousands of fake Instagram followers to stop her very obvious drop in followers. I imagine that’s perfectly legal, but it is definitely deceptive to the public.

Is anything Jed is doing legal? Or we think everything is illegal?

PP. To my understanding astroturfing isn't illegal. I would argue it's protected under the first amendment. It's just speech saying someone sucks. You're just having someone else say it instead of saying it directly. It is deceptive and unethical. In order for it to be unlawful and actionable, IMO you need something more.

Astroturfing could be unlawful if it includes defamation, the planting of false statements of fact. As long as this campaign stuck to opinions and true facts, that's not unlawful. If they asked Flaa, or even paid her, to post the interview, since the interview is real, that wouldn't be unlawful, nor would it be unlawful, IMO, to hire people to upvote it on reddit and post comments that Blake sounds like a B.

Tortious interference in a business could be another one. Say you own a restaurant and your competitor hires people to post Yelp opinions that say your food sucks and the staff is rude. Those are opinions, but this is probably unlawful and you could sue.

And then there's her claim of retaliation, which is pretty novel and interesting. The astroturfing itself is not illegal, but it becomes illegal if she can prove it was done as retaliation for reporting sexual harassment. Kind of like firing a person or demoting a person or changing their work schedule is not illegal, but it becomes so when it's done in retaliation. Without this component she wouldn't have much of a case at all. If they had just had the dispute over her taking over the film, and she wanted to ice him out of the premiere, and then he hired crisis PR to plant stories saying she's awful, I don't believe she'd have a cause of action.

Thank you, super helpful. I feel like this is going to be a tough climb for Blake‘s team because she is the one that started this drama. I was the one who posted about Flaa’s recent interview. She was angry about that interview from eight years ago and she didn’t put it out at the time and she decided to put it out now. It should be very easy to prove with an Internet forensic expert that that was organic.

But anyway, Blake was the one that decided to go negative during the premier. Justin did not try to do that. He was out there saying really nice things about Blake in fact. So it’s going to be hard for them to prove that Justin hired the PR firm in retaliation to the sexual harassment. He likely hired the PR firm to counter the terrible things people were saying about him in speculating why he was not allowed at his own premiere.

They literally have texts/docs that show:

- Baldoni/Wayfarer hired their crisis team before the premiere and with the goal of going negative on Lively (this is not my speculation, this is in the TAG proposal that was given to Wayfarer in their pitch)
- Baldoni wanted the campaign to portray Lively as Haley Bieber had recently been portrayed in the media -- as a "mean girl"
- Drag up prior interviews and rumors of conflicts with previous costars going all the way back to Gossip Girl days
- Jed Wallace was contracted in some capacity and that the work of his team provided good results across SM channels
- Baldoni wanted to make sure the campaign could not be traced back to him or Wayfarer (expressing concern about posts that looked like bots and how that could blow back on him)

There are also texts in the Jonesworks suit that could come into play, that show:

- Multiple crisis teams were recommended to Wayfarer by Stephanie Jones and Jennifer Abel in July
- But Jennifer Abel pushed the idea of Melissa Nathan's firm, TAG, which had previously worked on the Depp/Heard trial on behalf of Depp
- Stephanie Jones explicitly warned Abel off of hiring TAG, described Nathan's methods as "shady" in texts to Abel, and was concerned about sending Wayfarer in this direction (all of this happened in July, two weeks before the premiere)
- There is also some indication that a negative story about Justin that was published right before Wayfarer hired TAG (over Jones' objections) was planted BY Melissa Nathan. The story was published in Page Six and guess who the journalist was? It was Sara Nathan, Melissa Nathan's sister.

I'm sorry. I truly am not a Blake Lively fan, I never even saw this movie, and Ryan Reynolds genuinely annoys me. But this stuff is damning. And it's right there in the words and texts of Baldoni, Heath, Abel, and Nathan. Not hearsay that someone told them about. In their texts. From before the premiere. How do you explain this away? And I haven't even gotten to the texts where Abel trashes Justin, indicates that she can't stand him and doesn't believe him, etc. This is not like some crackpot theory Lively cooked up with Reynolds. It's right there in the texts.

Great post. Thank you for the additional context on the Jonesworks suit. I haven't read anything about that case. There are so many freaking dockets related to this.

Not a Lively fan either, and team "the sexual harassment claim is weak but the retaliation case is really damn strong." And that is so interesting because to what extent can the sexual harassment claim fail and the retaliation claim survive? I don't think she needs to prove he's liable for SH, but needs some kind of showing it credible on its face and perceived as such by Baldoni, maybe.

But it is not illegal to hire a PR firm. And what was livelys team doing? How do you think we started hearing about the fat shaming rumors and the inappropriate behavior on set? They were doing the same thing.

None of those things are inherently illegal. We will have to see at trial. But crisis PR is common and even astroturfing is not illegal.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Here's another fun read. This is an attachment to NYT's MTD that shows the correspondence between Jennifer Abel and Meghan Twohey prior to publication of the article: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.107.7.pdf

It includes the statement from Bryan Freedman provided by Abel. Also I thought this was telling -- Twohey asks Abel if the statement from Freedman applies to "Mr. Baldoni, Jamey Heath, Steve Sarowitz, you, Ms. Abel, and Melissa Nathan" and Abel replies:

"Yes, and Jed Wallace."

Wallace is in the middle of all of it. And keep in mind this shows how tightly aligned Abel, Nathan, Freedman, Wallace, Baldoni, Heath, and Sarowitz all were even before the NYT article dropped. Tucked up cozy in bed together, nice and tight.

Wow, just wow. So anyways, what are your thoughts on Ari making a podcast episode disappear?

I think it's funny that you have nothing at all to say on something that is directly relevant one of the lawsuits this whole thread is based on (the one actually referenced in the thread title) and want to redirect to an internet rumor about whether or not Ari Emanuel got Freakonomics to take down a podcast, something that may have happened, I don't know, but has no bearing whatsoever on the lawsuits. I don't care about Ari Emanuel.

Nobody cares about this inside baseball and your crisis PR talking points. It's just Zzzzzzz. Blake and Ryan have already lost. The masses have already concluded this was all a hoax, that Blake and Ryan have been busted red handed, that scummy bullies like Ari helped them, and that the NY Times is a fading dinosaur, which has lost about 20% of its subscribers in the last 24 months.

Ok, Jedbot.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

It’s not even really a “setback.” The jr associates here are acting like getting your discovery narrowed by the judge is some kind of disaster. The whole point was to freak out the other side with a broad request.

I don't think it's a disaster, but I think their subpoena was pointless and time wasting. I don't think it freaked the other side out at all. At most I can see the strategy was to ask for a very broad subpoena that any defendant would absolutely move to quash so they could get in a few silly jabs in the press about Justin and Wayfarer not wanting to show the "receipts" which is just not a strategy I respect. The whole point was they weren't asking for "the receipts" but a bunch of irrelevant, private information.

And yet there is nothing to indicate implementation of any plan ever! The most controversial language was Nathan and Abel agreeing that they were astonished that they didn’t have to act against Lively because of her own goals, and they agreed it was “sad” but “don’t like be a c-.”

"We are crushing on it reddit thanks to Jed" was a pretty good indicator. Baldoni quizzing them about bots and them saying that's not us is a good indicator that there was a paid astroturfing plan in motion that he didn't want to look obvious. I can't buy that they had this whole plan developed, things happened according to the plan, they discussed how they were crushing it, but then claim it actually all was organic. Perhaps the jury will disagree with me, but I think there's enough there for her claims to survive to trial. I'm not saying Lively is likeable. Indeed she had issues and part of their plan was leveraging her own past, real, issues and interviews to destroy her credibility in case her SH complaints should come to life.

Wondering if someone could explain astroturfing and what is legal and illegal? There was just an article that apparently Blake has purchased hundreds of thousands of fake Instagram followers to stop her very obvious drop in followers. I imagine that’s perfectly legal, but it is definitely deceptive to the public.

Is anything Jed is doing legal? Or we think everything is illegal?

PP. To my understanding astroturfing isn't illegal. I would argue it's protected under the first amendment. It's just speech saying someone sucks. You're just having someone else say it instead of saying it directly. It is deceptive and unethical. In order for it to be unlawful and actionable, IMO you need something more.

Astroturfing could be unlawful if it includes defamation, the planting of false statements of fact. As long as this campaign stuck to opinions and true facts, that's not unlawful. If they asked Flaa, or even paid her, to post the interview, since the interview is real, that wouldn't be unlawful, nor would it be unlawful, IMO, to hire people to upvote it on reddit and post comments that Blake sounds like a B.

Tortious interference in a business could be another one. Say you own a restaurant and your competitor hires people to post Yelp opinions that say your food sucks and the staff is rude. Those are opinions, but this is probably unlawful and you could sue.

And then there's her claim of retaliation, which is pretty novel and interesting. The astroturfing itself is not illegal, but it becomes illegal if she can prove it was done as retaliation for reporting sexual harassment. Kind of like firing a person or demoting a person or changing their work schedule is not illegal, but it becomes so when it's done in retaliation. Without this component she wouldn't have much of a case at all. If they had just had the dispute over her taking over the film, and she wanted to ice him out of the premiere, and then he hired crisis PR to plant stories saying she's awful, I don't believe she'd have a cause of action.

Thank you, super helpful. I feel like this is going to be a tough climb for Blake‘s team because she is the one that started this drama. I was the one who posted about Flaa’s recent interview. She was angry about that interview from eight years ago and she didn’t put it out at the time and she decided to put it out now. It should be very easy to prove with an Internet forensic expert that that was organic.

But anyway, Blake was the one that decided to go negative during the premier. Justin did not try to do that. He was out there saying really nice things about Blake in fact. So it’s going to be hard for them to prove that Justin hired the PR firm in retaliation to the sexual harassment. He likely hired the PR firm to counter the terrible things people were saying about him in speculating why he was not allowed at his own premiere.

They literally have texts/docs that show:

- Baldoni/Wayfarer hired their crisis team before the premiere and with the goal of going negative on Lively (this is not my speculation, this is in the TAG proposal that was given to Wayfarer in their pitch)
- Baldoni wanted the campaign to portray Lively as Haley Bieber had recently been portrayed in the media -- as a "mean girl"
- Drag up prior interviews and rumors of conflicts with previous costars going all the way back to Gossip Girl days
- Jed Wallace was contracted in some capacity and that the work of his team provided good results across SM channels
- Baldoni wanted to make sure the campaign could not be traced back to him or Wayfarer (expressing concern about posts that looked like bots and how that could blow back on him)

There are also texts in the Jonesworks suit that could come into play, that show:

- Multiple crisis teams were recommended to Wayfarer by Stephanie Jones and Jennifer Abel in July
- But Jennifer Abel pushed the idea of Melissa Nathan's firm, TAG, which had previously worked on the Depp/Heard trial on behalf of Depp
- Stephanie Jones explicitly warned Abel off of hiring TAG, described Nathan's methods as "shady" in texts to Abel, and was concerned about sending Wayfarer in this direction (all of this happened in July, two weeks before the premiere)
- There is also some indication that a negative story about Justin that was published right before Wayfarer hired TAG (over Jones' objections) was planted BY Melissa Nathan. The story was published in Page Six and guess who the journalist was? It was Sara Nathan, Melissa Nathan's sister.

I'm sorry. I truly am not a Blake Lively fan, I never even saw this movie, and Ryan Reynolds genuinely annoys me. But this stuff is damning. And it's right there in the words and texts of Baldoni, Heath, Abel, and Nathan. Not hearsay that someone told them about. In their texts. From before the premiere. How do you explain this away? And I haven't even gotten to the texts where Abel trashes Justin, indicates that she can't stand him and doesn't believe him, etc. This is not like some crackpot theory Lively cooked up with Reynolds. It's right there in the texts.

Great post. Thank you for the additional context on the Jonesworks suit. I haven't read anything about that case. There are so many freaking dockets related to this.

Not a Lively fan either, and team "the sexual harassment claim is weak but the retaliation case is really damn strong." And that is so interesting because to what extent can the sexual harassment claim fail and the retaliation claim survive? I don't think she needs to prove he's liable for SH, but needs some kind of showing it credible on its face and perceived as such by Baldoni, maybe.

But it is not illegal to hire a PR firm. And what was livelys team doing? How do you think we started hearing about the fat shaming rumors and the inappropriate behavior on set? They were doing the same thing.

None of those things are inherently illegal. We will have to see at trial. But crisis PR is common and even astroturfing is not illegal.

There's a post in the thread you're quoting explaining when astroturfing can become unlawful.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Here's another fun read. This is an attachment to NYT's MTD that shows the correspondence between Jennifer Abel and Meghan Twohey prior to publication of the article: https://storage.courtlistener.com/recap/gov.uscourts.nysd.634304/gov.uscourts.nysd.634304.107.7.pdf

It includes the statement from Bryan Freedman provided by Abel. Also I thought this was telling -- Twohey asks Abel if the statement from Freedman applies to "Mr. Baldoni, Jamey Heath, Steve Sarowitz, you, Ms. Abel, and Melissa Nathan" and Abel replies:

"Yes, and Jed Wallace."

Wallace is in the middle of all of it. And keep in mind this shows how tightly aligned Abel, Nathan, Freedman, Wallace, Baldoni, Heath, and Sarowitz all were even before the NYT article dropped. Tucked up cozy in bed together, nice and tight.

Wow, just wow. So anyways, what are your thoughts on Ari making a podcast episode disappear?

I think it's funny that you have nothing at all to say on something that is directly relevant one of the lawsuits this whole thread is based on (the one actually referenced in the thread title) and want to redirect to an internet rumor about whether or not Ari Emanuel got Freakonomics to take down a podcast, something that may have happened, I don't know, but has no bearing whatsoever on the lawsuits. I don't care about Ari Emanuel.

Nobody cares about this inside baseball and your crisis PR talking points. It's just Zzzzzzz. Blake and Ryan have already lost. The masses have already concluded this was all a hoax, that Blake and Ryan have been busted red handed, that scummy bullies like Ari helped them, and that the NY Times is a fading dinosaur, which has lost about 20% of its subscribers in the last 24 months.

DP. I care, and this discussion of the filed legal docs is why I’m here. I thought that’s why the thread was created and why Baldoni supporters lobbied for the thread to stay open despite lots of nonsense. I thought it was proved today that actually people don’t really care to read insult word salad. So maybe let’s all try not to post that.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:In the spirit of being as on-topic as possible, here is how the NYT's MTD addresses the False Light claims in Wayfarer's lawsuit:

The Wayfarer Parties’ claim for false light invasion of privacy, asserted under California law, also fails. See FAC ¶¶ 332-39. As discussed above, see supra at 6-8, New York law applies to the Wayfarer Parties’ claims. But New York law does not recognize the tort of false light. See Matthews v. Malkus, 377 F. Supp. 2d 350, 358 (S.D.N.Y. 2005) (“Under New York law, invasion of privacy based on publicity which placed [a plaintiff] in false light is not a cognizable claim”); see also Costanza v. Seinfeld, 181 Misc. 2d 562, 564 (Sup. Ct. N.Y. Cty. 1999) (noting that “New York law does not and never has allowed a common law claim for invasion of privacy”), aff'd as modified, 279 A.D.2d 255 (2001); Henry v. Fox News Network LLC, 629 F. Supp. 3d 136, 151 (S.D.N.Y. 2022) (“New York does not recognize a separate cause of action for false light/invasion of privacy”). The Wayfarer Parties’ false light must, therefore, be dismissed.

I’d be interested in the argument why NY law applies. Obviously, the parties disagree.

Wayfarer willingly refiled their complaint in SDNY after originally filing it in CA, and then voluntarily dismissed their CA claim. NY law applies because the relevant behavior by the NYT and Lively was all performed in New York, the journalists and Lively herself all live in NY, and the New York Times is headquartered in NY. NY is the proper jurisdiction for the matter, as Wayfarer implicitly admitted when it chose to refile its claims in NY and dismiss the CA complaint.

Are these your personal thoughts? Choice of forum and which law governs are not the same thing. The complaint was filed in federal court, not state court, so choice of forum not controlling. Moreover, The NY Times is circulated all over the country and the victim of the alleged tort resides in California. Was choice of law addressed in the brief?

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:In the spirit of being as on-topic as possible, here is how the NYT's MTD addresses the False Light claims in Wayfarer's lawsuit:

The Wayfarer Parties’ claim for false light invasion of privacy, asserted under California law, also fails. See FAC ¶¶ 332-39. As discussed above, see supra at 6-8, New York law applies to the Wayfarer Parties’ claims. But New York law does not recognize the tort of false light. See Matthews v. Malkus, 377 F. Supp. 2d 350, 358 (S.D.N.Y. 2005) (“Under New York law, invasion of privacy based on publicity which placed [a plaintiff] in false light is not a cognizable claim”); see also Costanza v. Seinfeld, 181 Misc. 2d 562, 564 (Sup. Ct. N.Y. Cty. 1999) (noting that “New York law does not and never has allowed a common law claim for invasion of privacy”), aff'd as modified, 279 A.D.2d 255 (2001); Henry v. Fox News Network LLC, 629 F. Supp. 3d 136, 151 (S.D.N.Y. 2022) (“New York does not recognize a separate cause of action for false light/invasion of privacy”). The Wayfarer Parties’ false light must, therefore, be dismissed.

I’d be interested in the argument why NY law applies. Obviously, the parties disagree.

Wayfarer willingly refiled their complaint in SDNY after originally filing it in CA, and then voluntarily dismissed their CA claim. NY law applies because the relevant behavior by the NYT and Lively was all performed in New York, the journalists and Lively herself all live in NY, and the New York Times is headquartered in NY. NY is the proper jurisdiction for the matter, as Wayfarer implicitly admitted when it chose to refile its claims in NY and dismiss the CA complaint.

Are these your personal thoughts? Choice of forum and which law governs are not the same thing. The complaint was filed in federal court, not state court, so choice of forum not controlling. Moreover, The NY Times is circulated all over the country and the victim of the alleged tort resides in California. Was choice of law addressed in the brief?

Yes it was addressed, the arguments are outlined above, the brief is linked in this thread. Go read it.

Wayfarer accepted NY law when they chose to re-file in NY and drop the CA lawsuit.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:In the spirit of being as on-topic as possible, here is how the NYT's MTD addresses the False Light claims in Wayfarer's lawsuit:

The Wayfarer Parties’ claim for false light invasion of privacy, asserted under California law, also fails. See FAC ¶¶ 332-39. As discussed above, see supra at 6-8, New York law applies to the Wayfarer Parties’ claims. But New York law does not recognize the tort of false light. See Matthews v. Malkus, 377 F. Supp. 2d 350, 358 (S.D.N.Y. 2005) (“Under New York law, invasion of privacy based on publicity which placed [a plaintiff] in false light is not a cognizable claim”); see also Costanza v. Seinfeld, 181 Misc. 2d 562, 564 (Sup. Ct. N.Y. Cty. 1999) (noting that “New York law does not and never has allowed a common law claim for invasion of privacy”), aff'd as modified, 279 A.D.2d 255 (2001); Henry v. Fox News Network LLC, 629 F. Supp. 3d 136, 151 (S.D.N.Y. 2022) (“New York does not recognize a separate cause of action for false light/invasion of privacy”). The Wayfarer Parties’ false light must, therefore, be dismissed.

I’d be interested in the argument why NY law applies. Obviously, the parties disagree.

Wayfarer willingly refiled their complaint in SDNY after originally filing it in CA, and then voluntarily dismissed their CA claim. NY law applies because the relevant behavior by the NYT and Lively was all performed in New York, the journalists and Lively herself all live in NY, and the New York Times is headquartered in NY. NY is the proper jurisdiction for the matter, as Wayfarer implicitly admitted when it chose to refile its claims in NY and dismiss the CA complaint.

Are these your personal thoughts? Choice of forum and which law governs are not the same thing. The complaint was filed in federal court, not state court, so choice of forum not controlling. Moreover, The NY Times is circulated all over the country and the victim of the alleged tort resides in California. Was choice of law addressed in the brief?

Yes it was addressed, the arguments are outlined above, the brief is linked in this thread. Go read it.

Wayfarer accepted NY law when they chose to re-file in NY and drop the CA lawsuit.

That isn’t how it works in federal court. That may be what the New York Times is arguing, but that’s not a particularly strong argument.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:In the spirit of being as on-topic as possible, here is how the NYT's MTD addresses the False Light claims in Wayfarer's lawsuit:

The Wayfarer Parties’ claim for false light invasion of privacy, asserted under California law, also fails. See FAC ¶¶ 332-39. As discussed above, see supra at 6-8, New York law applies to the Wayfarer Parties’ claims. But New York law does not recognize the tort of false light. See Matthews v. Malkus, 377 F. Supp. 2d 350, 358 (S.D.N.Y. 2005) (“Under New York law, invasion of privacy based on publicity which placed [a plaintiff] in false light is not a cognizable claim”); see also Costanza v. Seinfeld, 181 Misc. 2d 562, 564 (Sup. Ct. N.Y. Cty. 1999) (noting that “New York law does not and never has allowed a common law claim for invasion of privacy”), aff'd as modified, 279 A.D.2d 255 (2001); Henry v. Fox News Network LLC, 629 F. Supp. 3d 136, 151 (S.D.N.Y. 2022) (“New York does not recognize a separate cause of action for false light/invasion of privacy”). The Wayfarer Parties’ false light must, therefore, be dismissed.

I’d be interested in the argument why NY law applies. Obviously, the parties disagree.

Wayfarer willingly refiled their complaint in SDNY after originally filing it in CA, and then voluntarily dismissed their CA claim. NY law applies because the relevant behavior by the NYT and Lively was all performed in New York, the journalists and Lively herself all live in NY, and the New York Times is headquartered in NY. NY is the proper jurisdiction for the matter, as Wayfarer implicitly admitted when it chose to refile its claims in NY and dismiss the CA complaint.

Are these your personal thoughts? Choice of forum and which law governs are not the same thing. The complaint was filed in federal court, not state court, so choice of forum not controlling. Moreover, The NY Times is circulated all over the country and the victim of the alleged tort resides in California. Was choice of law addressed in the brief?

Yes it was addressed, the arguments are outlined above, the brief is linked in this thread. Go read it.

Wayfarer accepted NY law when they chose to re-file in NY and drop the CA lawsuit.

No, you are mistaken, this isn’t even argued by the Times. As you suggested, I looked at the brief although I have better uses for my time. What the Times argues is that NY choice of law rules apply because the case is in NY, which is correct. But they cite only two cases, both of which are several decades old. What I think is problematic is relying on Lively residing in NY because the article was really based not so much on Lively but on texts between people who were California residents. I also wonder if the choice of law inquiry will be affected by the fact that media is now distributed primarily digitally, so the NYT does not “emanate” from NY in the same way it did in the 1984 and older case the New York Times relies upon.

There is a similar issue with the defamation argument. The Times is trying to argue its article is entirely based on the California administrative complaint and therefore protected. But the article itself says it is also based on interviews with Lively and independent review of the texts.

I didn’t read the rest of the brief, but it strikes me as less than a slam dunk and that’s without seeing the Wayfarer defendant’ response. I will say it is a significantly better work product than anything produced thus far by Lively’s team.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:In the spirit of being as on-topic as possible, here is how the NYT's MTD addresses the False Light claims in Wayfarer's lawsuit:

The Wayfarer Parties’ claim for false light invasion of privacy, asserted under California law, also fails. See FAC ¶¶ 332-39. As discussed above, see supra at 6-8, New York law applies to the Wayfarer Parties’ claims. But New York law does not recognize the tort of false light. See Matthews v. Malkus, 377 F. Supp. 2d 350, 358 (S.D.N.Y. 2005) (“Under New York law, invasion of privacy based on publicity which placed [a plaintiff] in false light is not a cognizable claim”); see also Costanza v. Seinfeld, 181 Misc. 2d 562, 564 (Sup. Ct. N.Y. Cty. 1999) (noting that “New York law does not and never has allowed a common law claim for invasion of privacy”), aff'd as modified, 279 A.D.2d 255 (2001); Henry v. Fox News Network LLC, 629 F. Supp. 3d 136, 151 (S.D.N.Y. 2022) (“New York does not recognize a separate cause of action for false light/invasion of privacy”). The Wayfarer Parties’ false light must, therefore, be dismissed.

I’d be interested in the argument why NY law applies. Obviously, the parties disagree.

Wayfarer willingly refiled their complaint in SDNY after originally filing it in CA, and then voluntarily dismissed their CA claim. NY law applies because the relevant behavior by the NYT and Lively was all performed in New York, the journalists and Lively herself all live in NY, and the New York Times is headquartered in NY. NY is the proper jurisdiction for the matter, as Wayfarer implicitly admitted when it chose to refile its claims in NY and dismiss the CA complaint.

Are these your personal thoughts? Choice of forum and which law governs are not the same thing. The complaint was filed in federal court, not state court, so choice of forum not controlling. Moreover, The NY Times is circulated all over the country and the victim of the alleged tort resides in California. Was choice of law addressed in the brief?

Yes it was addressed, the arguments are outlined above, the brief is linked in this thread. Go read it.

Wayfarer accepted NY law when they chose to re-file in NY and drop the CA lawsuit.

No, you are mistaken, this isn’t even argued by the Times. As you suggested, I looked at the brief although I have better uses for my time. What the Times argues is that NY choice of law rules apply because the case is in NY, which is correct. But they cite only two cases, both of which are several decades old. What I think is problematic is relying on Lively residing in NY because the article was really based not so much on Lively but on texts between people who were California residents. I also wonder if the choice of law inquiry will be affected by the fact that media is now distributed primarily digitally, so the NYT does not “emanate” from NY in the same way it did in the 1984 and older case the New York Times relies upon.

There is a similar issue with the defamation argument. The Times is trying to argue its article is entirely based on the California administrative complaint and therefore protected. But the article itself says it is also based on interviews with Lively and independent review of the texts.

I didn’t read the rest of the brief, but it strikes me as less than a slam dunk and that’s without seeing the Wayfarer defendant’ response. I will say it is a significantly better work product than anything produced thus far by Lively’s team.

They cite both Jacob and Kinsey, decisions from 2022 and 2021 respectively. And what I described above is exactly their argument, as quoted here:

In other words, the Wayfarer Parties allege that the Article is based on information provided in New York by individuals residing in New York to reporters in New York. And there is no question that Article emanated from New York as well, or that The Times’s principal place of business is in New York. Moreover, the Wayfarer Parties, like the plaintiffs in Jacob and Kinsey, acknowledged New York’s interest in this case by choosing to drop the California state court action and bring their lawsuit in this district. For all these reasons, New York law applies.

They also at no point argue that their article is entirely based on the CRD Complaint. They do argue that, but they also note that Wayfarer only identifies a single allegedly defamatory statement in the NYT article or video -- the description of the PR campaign as a "smear campaign." And for this they argue that argue that this statement is opinion based on news gathering (including the complaint, the Joneswork texts/emails, and interviews).

I never said it was a slam dunk but it's extremely strong and I think they have a very good chance of getting all or most claims dismissed.

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Anonymous wrote:In the spirit of being as on-topic as possible, here is how the NYT's MTD addresses the False Light claims in Wayfarer's lawsuit:

The Wayfarer Parties’ claim for false light invasion of privacy, asserted under California law, also fails. See FAC ¶¶ 332-39. As discussed above, see supra at 6-8, New York law applies to the Wayfarer Parties’ claims. But New York law does not recognize the tort of false light. See Matthews v. Malkus, 377 F. Supp. 2d 350, 358 (S.D.N.Y. 2005) (“Under New York law, invasion of privacy based on publicity which placed [a plaintiff] in false light is not a cognizable claim”); see also Costanza v. Seinfeld, 181 Misc. 2d 562, 564 (Sup. Ct. N.Y. Cty. 1999) (noting that “New York law does not and never has allowed a common law claim for invasion of privacy”), aff'd as modified, 279 A.D.2d 255 (2001); Henry v. Fox News Network LLC, 629 F. Supp. 3d 136, 151 (S.D.N.Y. 2022) (“New York does not recognize a separate cause of action for false light/invasion of privacy”). The Wayfarer Parties’ false light must, therefore, be dismissed.

I’d be interested in the argument why NY law applies. Obviously, the parties disagree.

Wayfarer willingly refiled their complaint in SDNY after originally filing it in CA, and then voluntarily dismissed their CA claim. NY law applies because the relevant behavior by the NYT and Lively was all performed in New York, the journalists and Lively herself all live in NY, and the New York Times is headquartered in NY. NY is the proper jurisdiction for the matter, as Wayfarer implicitly admitted when it chose to refile its claims in NY and dismiss the CA complaint.

Are these your personal thoughts? Choice of forum and which law governs are not the same thing. The complaint was filed in federal court, not state court, so choice of forum not controlling. Moreover, The NY Times is circulated all over the country and the victim of the alleged tort resides in California. Was choice of law addressed in the brief?

Yes it was addressed, the arguments are outlined above, the brief is linked in this thread. Go read it.

Wayfarer accepted NY law when they chose to re-file in NY and drop the CA lawsuit.

No, you are mistaken, this isn’t even argued by the Times. As you suggested, I looked at the brief although I have better uses for my time. What the Times argues is that NY choice of law rules apply because the case is in NY, which is correct. But they cite only two cases, both of which are several decades old. What I think is problematic is relying on Lively residing in NY because the article was really based not so much on Lively but on texts between people who were California residents. I also wonder if the choice of law inquiry will be affected by the fact that media is now distributed primarily digitally, so the NYT does not “emanate” from NY in the same way it did in the 1984 and older case the New York Times relies upon.

There is a similar issue with the defamation argument. The Times is trying to argue its article is entirely based on the California administrative complaint and therefore protected. But the article itself says it is also based on interviews with Lively and independent review of the texts.

I didn’t read the rest of the brief, but it strikes me as less than a slam dunk and that’s without seeing the Wayfarer defendant’ response. I will say it is a significantly better work product than anything produced thus far by Lively’s team.

They cite both Jacob and Kinsey, decisions from 2022 and 2021 respectively. And what I described above is exactly their argument, as quoted here:

In other words, the Wayfarer Parties allege that the Article is based on information provided in New York by individuals residing in New York to reporters in New York. And there is no question that Article emanated from New York as well, or that The Times’s principal place of business is in New York. Moreover, the Wayfarer Parties, like the plaintiffs in Jacob and Kinsey, acknowledged New York’s interest in this case by choosing to drop the California state court action and bring their lawsuit in this district. For all these reasons, New York law applies.

They also at no point argue that their article is entirely based on the CRD Complaint. They do argue that, but they also note that Wayfarer only identifies a single allegedly defamatory statement in the NYT article or video -- the description of the PR campaign as a "smear campaign." And for this they argue that argue that this statement is opinion based on news gathering (including the complaint, the Joneswork texts/emails, and interviews).

I never said it was a slam dunk but it's extremely strong and I think they have a very good chance of getting all or most claims dismissed.

^meant to say they do argue that their article is based *in part* on the CRD complaint, but they also make other arguments to show that the article and video do not contain defamatory statements. They don't rely exclusively on the idea that the article was based on litigation.

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Anonymous wrote:In the spirit of being as on-topic as possible, here is how the NYT's MTD addresses the False Light claims in Wayfarer's lawsuit:

The Wayfarer Parties’ claim for false light invasion of privacy, asserted under California law, also fails. See FAC ¶¶ 332-39. As discussed above, see supra at 6-8, New York law applies to the Wayfarer Parties’ claims. But New York law does not recognize the tort of false light. See Matthews v. Malkus, 377 F. Supp. 2d 350, 358 (S.D.N.Y. 2005) (“Under New York law, invasion of privacy based on publicity which placed [a plaintiff] in false light is not a cognizable claim”); see also Costanza v. Seinfeld, 181 Misc. 2d 562, 564 (Sup. Ct. N.Y. Cty. 1999) (noting that “New York law does not and never has allowed a common law claim for invasion of privacy”), aff'd as modified, 279 A.D.2d 255 (2001); Henry v. Fox News Network LLC, 629 F. Supp. 3d 136, 151 (S.D.N.Y. 2022) (“New York does not recognize a separate cause of action for false light/invasion of privacy”). The Wayfarer Parties’ false light must, therefore, be dismissed.

I’d be interested in the argument why NY law applies. Obviously, the parties disagree.

Wayfarer willingly refiled their complaint in SDNY after originally filing it in CA, and then voluntarily dismissed their CA claim. NY law applies because the relevant behavior by the NYT and Lively was all performed in New York, the journalists and Lively herself all live in NY, and the New York Times is headquartered in NY. NY is the proper jurisdiction for the matter, as Wayfarer implicitly admitted when it chose to refile its claims in NY and dismiss the CA complaint.

Are these your personal thoughts? Choice of forum and which law governs are not the same thing. The complaint was filed in federal court, not state court, so choice of forum not controlling. Moreover, The NY Times is circulated all over the country and the victim of the alleged tort resides in California. Was choice of law addressed in the brief?

Yes it was addressed, the arguments are outlined above, the brief is linked in this thread. Go read it.

Wayfarer accepted NY law when they chose to re-file in NY and drop the CA lawsuit.

No, you are mistaken, this isn’t even argued by the Times. As you suggested, I looked at the brief although I have better uses for my time. What the Times argues is that NY choice of law rules apply because the case is in NY, which is correct. But they cite only two cases, both of which are several decades old. What I think is problematic is relying on Lively residing in NY because the article was really based not so much on Lively but on texts between people who were California residents. I also wonder if the choice of law inquiry will be affected by the fact that media is now distributed primarily digitally, so the NYT does not “emanate” from NY in the same way it did in the 1984 and older case the New York Times relies upon.

There is a similar issue with the defamation argument. The Times is trying to argue its article is entirely based on the California administrative complaint and therefore protected. But the article itself says it is also based on interviews with Lively and independent review of the texts.

I didn’t read the rest of the brief, but it strikes me as less than a slam dunk and that’s without seeing the Wayfarer defendant’ response. I will say it is a significantly better work product than anything produced thus far by Lively’s team.

They cite both Jacob and Kinsey, decisions from 2022 and 2021 respectively. And what I described above is exactly their argument, as quoted here:

In other words, the Wayfarer Parties allege that the Article is based on information provided in New York by individuals residing in New York to reporters in New York. And there is no question that Article emanated from New York as well, or that The Times’s principal place of business is in New York. Moreover, the Wayfarer Parties, like the plaintiffs in Jacob and Kinsey, acknowledged New York’s interest in this case by choosing to drop the California state court action and bring their lawsuit in this district. For all these reasons, New York law applies.

They also at no point argue that their article is entirely based on the CRD Complaint. They do argue that, but they also note that Wayfarer only identifies a single allegedly defamatory statement in the NYT article or video -- the description of the PR campaign as a "smear campaign." And for this they argue that argue that this statement is opinion based on news gathering (including the complaint, the Joneswork texts/emails, and interviews).

I never said it was a slam dunk but it's extremely strong and I think they have a very good chance of getting all or most claims dismissed.

I think it’s more 50/50, and that’s before reading the reply brief. Their arguments, on all counts, are weakened by their extensive contacts with Lively outside of the California complaint and their reliance on (and manipulation of) texts. You are right about the date of the cases though that doesn’t change my analysis. It’s hard to win a motion to dismiss when facts are legitimately in dispute with the deference given to plaintiffs at this stage, and the amount of investigation the Times previously claimed beyond the Complaint creates that.

[Anonymous]

Whatever the result of the MTD, the Times has made Freedman look like a bit of an idiot by calling out Freedman’s ling, vague complaint and “lump everyone together” pleading style. It’s a good shot across the bow by extremely competent attorneys, which is nice to see in the game here. Did Freedman even note the choice of law issue and lack of false light cause of action in NY? If not even in a footnote, that just makes him look stupid.

[Anonymous]

Anonymous wrote:Whatever the result of the MTD, the Times has made Freedman look like a bit of an idiot by calling out Freedman’s ling, vague complaint and “lump everyone together” pleading style. It’s a good shot across the bow by extremely competent attorneys, which is nice to see in the game here. Did Freedman even note the choice of law issue and lack of false light cause of action in NY? If not even in a footnote, that just makes him look stupid.

Meh, there was some flowery language typically of every motion to dismiss I’ve read, but I didn’t think it was particularly effective. Choice of law issues are typically developed in briefing, not complaints, which only need to establish proper jurisdiction (not at issue here). The big issue for The NY Times is their brief basically ignores their independent review and manipulation of the texts and their long history of contacts with Lively that predate the complaint. The reply briefing will not.

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It’s not even really a “setback.” The jr associates here are acting like getting your discovery narrowed by the judge is some kind of disaster. The whole point was to freak out the other side with a broad request.

I don't think it's a disaster, but I think their subpoena was pointless and time wasting. I don't think it freaked the other side out at all. At most I can see the strategy was to ask for a very broad subpoena that any defendant would absolutely move to quash so they could get in a few silly jabs in the press about Justin and Wayfarer not wanting to show the "receipts" which is just not a strategy I respect. The whole point was they weren't asking for "the receipts" but a bunch of irrelevant, private information.

And yet there is nothing to indicate implementation of any plan ever! The most controversial language was Nathan and Abel agreeing that they were astonished that they didn’t have to act against Lively because of her own goals, and they agreed it was “sad” but “don’t like be a c-.”

"We are crushing on it reddit thanks to Jed" was a pretty good indicator. Baldoni quizzing them about bots and them saying that's not us is a good indicator that there was a paid astroturfing plan in motion that he didn't want to look obvious. I can't buy that they had this whole plan developed, things happened according to the plan, they discussed how they were crushing it, but then claim it actually all was organic. Perhaps the jury will disagree with me, but I think there's enough there for her claims to survive to trial. I'm not saying Lively is likeable. Indeed she had issues and part of their plan was leveraging her own past, real, issues and interviews to destroy her credibility in case her SH complaints should come to life.

Wondering if someone could explain astroturfing and what is legal and illegal? There was just an article that apparently Blake has purchased hundreds of thousands of fake Instagram followers to stop her very obvious drop in followers. I imagine that’s perfectly legal, but it is definitely deceptive to the public.

Is anything Jed is doing legal? Or we think everything is illegal?

PP. To my understanding astroturfing isn't illegal. I would argue it's protected under the first amendment. It's just speech saying someone sucks. You're just having someone else say it instead of saying it directly. It is deceptive and unethical. In order for it to be unlawful and actionable, IMO you need something more.

Astroturfing could be unlawful if it includes defamation, the planting of false statements of fact. As long as this campaign stuck to opinions and true facts, that's not unlawful. If they asked Flaa, or even paid her, to post the interview, since the interview is real, that wouldn't be unlawful, nor would it be unlawful, IMO, to hire people to upvote it on reddit and post comments that Blake sounds like a B.

Tortious interference in a business could be another one. Say you own a restaurant and your competitor hires people to post Yelp opinions that say your food sucks and the staff is rude. Those are opinions, but this is probably unlawful and you could sue.

And then there's her claim of retaliation, which is pretty novel and interesting. The astroturfing itself is not illegal, but it becomes illegal if she can prove it was done as retaliation for reporting sexual harassment. Kind of like firing a person or demoting a person or changing their work schedule is not illegal, but it becomes so when it's done in retaliation. Without this component she wouldn't have much of a case at all. If they had just had the dispute over her taking over the film, and she wanted to ice him out of the premiere, and then he hired crisis PR to plant stories saying she's awful, I don't believe she'd have a cause of action.

Thank you, super helpful. I feel like this is going to be a tough climb for Blake‘s team because she is the one that started this drama. I was the one who posted about Flaa’s recent interview. She was angry about that interview from eight years ago and she didn’t put it out at the time and she decided to put it out now. It should be very easy to prove with an Internet forensic expert that that was organic.

But anyway, Blake was the one that decided to go negative during the premier. Justin did not try to do that. He was out there saying really nice things about Blake in fact. So it’s going to be hard for them to prove that Justin hired the PR firm in retaliation to the sexual harassment. He likely hired the PR firm to counter the terrible things people were saying about him in speculating why he was not allowed at his own premiere.

They literally have texts/docs that show:

- Baldoni/Wayfarer hired their crisis team before the premiere and with the goal of going negative on Lively (this is not my speculation, this is in the TAG proposal that was given to Wayfarer in their pitch)
- Baldoni wanted the campaign to portray Lively as Haley Bieber had recently been portrayed in the media -- as a "mean girl"
- Drag up prior interviews and rumors of conflicts with previous costars going all the way back to Gossip Girl days
- Jed Wallace was contracted in some capacity and that the work of his team provided good results across SM channels
- Baldoni wanted to make sure the campaign could not be traced back to him or Wayfarer (expressing concern about posts that looked like bots and how that could blow back on him)

There are also texts in the Jonesworks suit that could come into play, that show:

- Multiple crisis teams were recommended to Wayfarer by Stephanie Jones and Jennifer Abel in July
- But Jennifer Abel pushed the idea of Melissa Nathan's firm, TAG, which had previously worked on the Depp/Heard trial on behalf of Depp
- Stephanie Jones explicitly warned Abel off of hiring TAG, described Nathan's methods as "shady" in texts to Abel, and was concerned about sending Wayfarer in this direction (all of this happened in July, two weeks before the premiere)
- There is also some indication that a negative story about Justin that was published right before Wayfarer hired TAG (over Jones' objections) was planted BY Melissa Nathan. The story was published in Page Six and guess who the journalist was? It was Sara Nathan, Melissa Nathan's sister.

I'm sorry. I truly am not a Blake Lively fan, I never even saw this movie, and Ryan Reynolds genuinely annoys me. But this stuff is damning. And it's right there in the words and texts of Baldoni, Heath, Abel, and Nathan. Not hearsay that someone told them about. In their texts. From before the premiere. How do you explain this away? And I haven't even gotten to the texts where Abel trashes Justin, indicates that she can't stand him and doesn't believe him, etc. This is not like some crackpot theory Lively cooked up with Reynolds. It's right there in the texts.

Great post. Thank you for the additional context on the Jonesworks suit. I haven't read anything about that case. There are so many freaking dockets related to this.

Not a Lively fan either, and team "the sexual harassment claim is weak but the retaliation case is really damn strong." And that is so interesting because to what extent can the sexual harassment claim fail and the retaliation claim survive? I don't think she needs to prove he's liable for SH, but needs some kind of showing it credible on its face and perceived as such by Baldoni, maybe.

But it is not illegal to hire a PR firm. And what was livelys team doing? How do you think we started hearing about the fat shaming rumors and the inappropriate behavior on set? They were doing the same thing.

None of those things are inherently illegal. We will have to see at trial. But crisis PR is common and even astroturfing is not illegal.

There's a post in the thread you're quoting explaining when astroturfing can become unlawful.

Even so, I would argue that absolutely none of this would have been “retaliation” for a SH claim or complaint.
The hiring of the crisis PR was to combat the negative press and speculation BL generated when she did public things like cut him out of promos, excluded him for vast gatherings, had his name removed from poster, allegedly orchestrated mass social media unfollowing by the cast (would love to see the texts that coordinated that effort), and banned him from his own premiere!

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Anonymous wrote:Hi can someone explain why she doesn't just limit what she's asking for? By keeping the scope within the context of this situation she can still learn about the different pr players they reached too. I don't get why she's making it so complicated

Her argument would be that due to the anonymous nature of the smear campaign, it's not possible to identify all the parties and phone numbers they communicated with, therefore she wants logs of all calls made during that time period (to somehow ascertain who these parties were, and I'm not sure how one would even do that). The judge ruled that this was overbroad and disproportionate as it would also capture all their personal contacts and doctors, etc (something I have argued in this thread as well).

The judge said she should use other tools to try to ascertain who these parties are (for example, she can serve interrogatories asking them for information, contact lists, and phone numbers about other parties who may have information, and then subpoena phone records of communications between the Wayfarer parties and those parties).

+1, while this was definitely a loss for Lively's side, the judge communicated a lot of openness to a more narrowly tailored discovery plan. I am a little surprised they didn't just go for that to begin with, I don't totally get the strategy from Lively's legal team here. I know people on here will say "oh it's because Blake is selfish and demanded they ask for everything" but her lawyers are serious people, I don't actually believe they'd file for discovery based on a client's whim -- it would not be that hard to explain even to a demanding or difficult client that you have to go about discovery in a specific way to get what you want.

So I don't totally get it. Michael Gottlieb isn't a dummy and he's had plenty of very demanding clients in the past. This was a calculated choice but I don't fully understand it.

Her lawyers just aren’t that good. It’s been obvious since the get go. Outplayed by Freedman over and over again.

If she is so powerful that she and her husband have Sony in their back pocket, why can't they afford good lawyers?

Literally her lead trial lawyer has represented Sony in litigation. Do you think Sony can't afford to hire good lawyers?

I am judging him on his work product. It’s been pretty bad. Sony was likely another captive client, meaning Wilkie does other work for them and they get a discounted rate for sending over more work.

Honey, no. Gottlieb moved to Wilkie from Boise Schiller. He's a real deal powerhouse lawyer.

Perhaps he is not litigating the case for the peanut gallery on Reddit or in order to impress TMZ, but rather with an eye toward the long game. I know for people unfamiliar with how litigation like this works, that might not make sense. But the take that Gottlieb is just a crap lawyer is ridiculous. I don't know if this case is a winner or not, but saying stuff like that makes you sound ignorant. Because of a single discovery setback. Good lord, sometimes I wonder if this thread is mostly populated with like 13 year olds bored during Algebra class.

So funny, Ivy League educated lawyer here who advanced far beyond junior associate and at firms far more prestigious than Wilkie. His work is mediocre. His results are mediocre. There is no secret plan to win by losing all discovery battles.

By the way, your efforts to promote him by insulting others are laughable unpersuasive. Yet you keep trotting them out for some reason. Something tells me your legal career has also been less than stellar.

+1 not a lawyer but it does appear that Lively’s lawyers ended up with a worse outcome than they would have had they negotiated in good faith with the wayfarer parties to begin with. The judge pointed out that Lively’s complaint states the retaliation began in August 2024 and therefore nothing prior to that is relevant. Brian Freedman said the subpoena was overly broad but he wasn’t that specific. The judge has limited lively quite a bit, more I think than Freedman would have.